Information Note on the Court’s case-law 226

February 2019

Ndayegamiye-Mporamazina v. Switzerland - 16874/12

Judgment 5.2.2019 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Immunity from jurisdiction of a foreign State in a labour dispute, under a strict interpretation of the notions of waiver and residence: no violation

Facts – The applicant, a Burundi national, was recruited in 1995 a s an administrative secretary by the Permanent Mission of the Republic of Burundi to the United Nations in Geneva, under “local recruitment” procedure. At the time the applicant lived near Geneva, albeit in French territory. A contractual clause provided f or the jurisdiction of the local judiciary as far as permissible under “normal diplomatic practice”.

In 2007 the applicant brought an action for unfair dismissal before the Swiss courts. Burundi claimed immunity from jurisdiction. The court of first instan ce nevertheless examined the case, considering that the aforementioned clause pointed to the parties’ shared intent to opt for Swiss jurisdiction. Conversely, the higher courts recognised Burundi’s immunity from jurisdiction: the Federal Court held that th e “diplomatic practice” reservation prevented the impugned clause from being regarded as an advance waiver of immunity from jurisdiction; on the other hand, the applicant’s nationality and place of residence precluded the specific jurisdiction granted to t he State where work is accomplished in matters of employment contracts.

Law – The Court referred to the United Nations Convention on Jurisdictional Imm unities of States and their Property (UNCJIS – not yet in force), which in essence reprises customary rules, and to the commentaries of the International Law Commission on the Draft Articles that preceded the UNCJIS .

(a) The refusal to consider that Burundi had waived its immunity from jurisdiction in advance – It follows from Article 7 § 1 (b) UNCJIS that international law allows a State to waive, in particular under contractual clauses, the immunity from jurisdic tion customarily granted to it before the courts of another State, on the condition, however, that explicit consent is given. In other words, as the International Law Commission explained, such consent cannot be presumed: it has to be clear and unequivocal .

However, the relevant clause in the applicant’s contract of employment had been interpreted very differently by the three judicial levels at which it had been considered. Consequently, the contractual clause could not be said to express clearly and unequiv ocally the intention of the Republic of Burundi to waive its immunity from jurisdiction. Furthermore, the Court discerned nothing arbitrary in the Federal Court’s interpretation to the effect that the “diplomatic practice” reservation set out in the clause in question should be taken as including immunity from jurisdiction.

(b) The refusal to set aside immunity from jurisdiction in respect of the employee’s links with Switzerland – As regards disputes concerning a contract of employment concluded between e mbassy or permanent missions and their support staff, the Court has always protected both nationals of the forum State and non-nationals living there (see Sabeh El Leil v. France [GC], 34869/05, 29 June 2011, Information Note 142 ; Cudak v. Lithuania [GC], 15869/02, 23 March 2010, Information Note 128 ; Fogarty v. the United Kingdom [GC], 37112/97, 21 November 2001, Information Note 36 ; Naku v. Lithuania and Sweden , 26126/07, 8 November 2016, Information Note 201 ; Wallihauser v. Austria , 156/04, 17 July 2012, Information Note 154 ).

That well-established case-law is in line with international practice as codified in the UNCJIS: in principle, a State cannot rely on immunity from jurisdiction in the framework of a dispute concerning a contract of employment executed in the territory of the Forum State. However, exceptions to that principle include cases where “the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the perm anent residence in the State of the forum” (Article 11 § 2 (e)). Furthermore, in the words of the International Law Commission, if the employee has the nationality of the employer State he or she can appeal to the latter’s courts.

In the present case when the applicant – who has the nationality of the employer State – brought her action she was resident in Switzerland neither within the meaning of public international law nor for the purposes of domestic law.

In fact, the applicant was living with her husba nd and children in French territory when she brought her action. Neither the fact that her post was in Switzerland nor the existence of an alleged Franco-Swiss administrative practice in the relevant sphere enabled the Court to question the Swiss courts’ f inding that objectively, the criterion of residence in the Forum State was not fulfilled. It is of little consequence that the applicant subsequently settled in Switzerland.

That is sufficient to justify the refusal to set aside the immunity from jurisdic tion (since the relevant provisions of the UNCJIS present alternatives, there is no need to consider the nature of the duties carried out by the applicant).

(c) Alleged lack of access to justice other than in Switzerland – As regards the applicant’s doubt s concerning access to an independent and impartial tribunal in Burundi, the Court reiterated that the compatibility of immunity from jurisdiction with Article 6 § 1 of the Convention did not depend on the availability of reasonable alternatives in order t o settle the dispute (see Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 65542/12, 11 June 2013, Information Note 164 ).

Moreover, the applicant does have alternative means at h er disposal. First of all, the applicant had apparently, in the past, brought an employment dispute before the Burundi authorities, which dispute the latter had successfully settled. Secondly, during the proceedings in Switzerland, Burundi gave the applica nt assurances that her application to a Swiss court would be recognised by the Burundi courts as having stopped the limitation period running.

***

In sum, the Swiss courts had not departed from the principles of international law recognised in the sphere o f State immunities and that the restriction on the right of access to a court could not be considered disproportionate.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind t he Court.

Click here for the Case-Law Information Notes