Strasbourg Grand Chamber rules on Diplomatic Immunity
14 July 2011
Farouk Sabeh el Leil v France (29 June 2011) – read judgment
When a diplomatic employee takes action for compensation for unfair dismissal, the host country’s courts cannot simply rule out the possibility of a claim on the basis that the employer has state immunity. This would impair the very essence of his right of access to a court under Article 6 of the Convention.
The applicant, a French national, had been employed as an accountant in the Kuwaiti embassy in Paris since August 1980. He was promoted to head accountant in 1985. In March 2000, the Embassy terminated his contract as part of a cost-cutting exercise. His application to the local employment tribunal was initially successful but ultimately failed before the Paris Court of Appeals which found that the State of Kuwait enjoyed jurisdictional immunity on the basis of which it was not subject to court actions against it in France.
He complained that the French courts had dismissed his claims without giving relevant and sufficient reasons, thus impairing the very essence of his right of access to a court, in violation of Article 6 (1). The Court upheld this complaint and ordered 60,000 euros to be paid by way of general and pecuniary damages combined.
Reasons for the judgment
The Court observed that the application of absolute state immunity had been clearly weakened for a number of years, in particular with the adoption of a UN Convention which introduced the principle that immunity did not apply to employment contracts between states and staff of its diplomatic missions abroad. While France had not yet ratified this Convention, it was nevertheless part of customary law, and as such it applied even to countries which had not ratified it.
The applicant, who had not been a diplomatic or consular agent of Kuwait, nor a national of that state, had not been covered by any of the exceptions enumerated in the 2004 Convention. In particular, he had not been employed to officially act on behalf of the state of Kuwait, and it had not been established that there was any risk of interference with the security interests of that country. While the domestic courts had referred to certain additional responsibilities that Mr Sabeh El Leil had supposedly assumed, they had not specified why they had found that, through those activities, he was officially acting on behalf of the State of Kuwait.
As such, the application of diplomatic immunity to his case so as to remove the protections of Article 6 was a disproportionate interference with his right of access to court under Article 6.
Comment
This ruling turns on the question, critical to the application of Article 6, of the particular nature of an individual’s employment. The closer an employee is to the functioning of state power, the further the due process entitlements of the Convention are from his grasp: see the detailed attention given to this matter by Nicol J in Crosbie v Secretary of State for Defence [2011] EWHC 879 (our post here).
The Strasbourg test for the inapplicability of Article 6 to civil servants is a two stage approach (see Vilho Eskelinen v Finland). First, the state in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest.
Both these requirements were clearly fulfilled in this case. However another layer of complexity is added when the individual concerned is the servant of a foreign state within the respondent government’s jurisdiction. The Convention on Human Rights must take cognisance of other international laws and diplomatic immunity is one of them. As a rule of customary international law, it pursues the legitimate aim of promoting comity and good relations between states through the respect of another State’s sovereignty.
So, did Mr Sabah El Leil’s role in the Kuwaiti embassy fall outside the zone of state immunity, so as to attract Article 6 protections, or within it, so that his proximity to state authority meant that Article 6 was inapplicable in his case?
In his original contract, the applicant was entrusted with “the management of administrative tasks.” He was also accountable “for any shortcomings in respect of everything connected with the work of his department.” On these grounds, the respondent government argued that the applicant did not perform mere acts of management but enjoyed a “certain autonomy” which meant that he carried out his activities in the interest of the public diplomatic service.
But the evidence before the Court was that the applicant did not perform any duties that involved him in the exercise of state power. Two documents issued concerning Mr Sabah El Leil, an official note of 1985 promoting him to head accountant and a certificate of 2000, only referred to him as an accountant, without mentioning any other role or function that might have been assigned to him. Only one statement, signed some twelve years ago by the applicant and other employees indicated that the applicant had also assumed another role, that of staff representative on an unofficial basis. This was not enough to characterise his engagement as exercising government authority, so as to engage one of the exceptions to the 2004 Convention and distance him from the protections of Article 6.
It is hard to predict the outcome of these civil servant/state power Article 6 cases, since the way in which the test must be applied is heavily fact-dependent; precisely what is or isn’t an individual employee’s remit is not always a matter of formal engagement, reflected in his or her contract of employment.
Such evidence was sparse in this case but in the comparable case of Crosbie the particular difficulties of separating out these functions are manifest: at first glance it would seem that an army chaplain has spiritual duties that are quite distinct, and distant, from the duty designed to safeguard the general interests of the state. And therefore in theory at least there should be no bar to Article 6 protections.
But Crosbie lost his case because, after careful consideration of a chaplain’s role in the field of battle, Nicol J concluded that a person in such a position acts as a lightning conductor of the unit’s mood, a receiver of confidences, and a communicator of grievances to the commanding officers. As such, army chaplains fulfilled both parts of the Eskelinen second test: they were part of a sector of public employment, namely the armed forces which plainly did exercise state power.
It would be unwise to rely on any of these cases as being authority for the proposition that a given office or function falls outside the zone of state power so as to attract the protection of Article 6 because it is always open to the courts to find that such and such a post or position depends on a special bond of trust and loyalty, so as to bring it within the exclusion zone delineated by Strasbourg in Pellegrin v France (2001) 31 EHRR 26.
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