CONCURRING OPINION OF JUDGE KŪRIS

1. After brief consideration (see paragraphs 90-94 of the judgment), the Chamber was satisfied that “ by plainly considering that everyone who worked in a diplomatic representation of a foreign State, including the administrative, technical and service personnel, by virtue of that employment alone in one way or another contributed to the meeting of the sovereign goals of a represented State (see paragraph 38 above), and thus upholding an objection based on State immunity and dismissing the applicant ’ s claim without giving relevant and sufficient reasons that the applicant in the instant case in reality performed specific duties in the exercise of governmental authority (see paragraphs 32, 34 and 38 above), the Lithuanian courts impaired the very essence of the applicant ’ s right of access to a court” (paragraph 95).

This sentence, albeit not a short one, forms the concentrated basis both for the dismissal of the Government ’ s objection that Article 6 § 1 was inapplicable in the present case and for finding a violation of that Article.

2. Given that the Lithuanian courts devoted many pages (some of them directly quoted in the judgment) to the applicant ’ s duties, more explicit reasoning would have been instructive. It would also have been in line with the Court ’ s position of principle, which is reflected verbatim in paragraph 95 (cited above), that courts should give “relevant and sufficient reasons” for their findings. However, in its reasoning as to why it found a violation of Article 6 § 1 in respect of Lithuania, the Chamber itself appeared to be quite sparing with its language. I am not sure that the manner in which the finding of a violation is substantiated in paragraphs 90 to 94 is conducive to regarding the reasons given by this Court as “relevant” or “sufficient”. My doubt is even greater in view of the Court ’ s assertion that “ in the instant case ... the reopening of the case, if [the applicant] so requests, represents in principle an appropriate way of redressing the violation” (see paragraph 110 of the judgment).

The words used in paragraph 95 should have been explicitly substantiated before being used in that “summing up” paragraph.

3. The words “ without giving relevant and sufficient reasons” could have been substantiated in the following way. It transpires from the case file that the applicant ’ s title as the “head” of culture, press and information projects appeared only in some of her own submissions to the domestic courts, and not in any of her job descriptions at the embassy. On the other hand, in her objection to the civil proceedings, the Swedish ambassador neither gave the applicant ’ s title nor explained the applicant ’ s duties in order to justify the application of State immunity by the Lithuanian courts (see paragraph 31 of the judgment). T he Chamber rightly attached no particular weight to how the applicant interpreted and designated her own duties, because litigants are free to employ different strategies in court proceedings. But this aspect was passed over in silence, as was the striking parallel between the present case and Cudak v. Lithuania ([GC], no. 15869/02, § 71, ECHR 2010 ). More particularly, in Cudak , the Lithuanian Supreme Court acknowledged that it had been unable to obtain any information allowing it to establish the scope of the applicant ’ s “actual duties”. In the present case the domestic courts did not even go that far. Instead, the Vilnius Regional Court and the Court of Appeal simply based their reasoning on the “job position itself” and “the title of the job itsel f” respectively (see paragraphs 32 and 34 of the judgment), thus finding that the applicant had “to a certain extent” helped Sweden to carry out its sovereign functions. The courts did not explain to what extent that was so by examining the actual duties she performed, nor did they justify their decisions by explaining on what basis – documents or facts brought to their attention – they had reached such a conclusion. Thus, the level of legal consideration concerning the merits of the applicant ’ s argument was unjustifiably limited. All of this took place against the background of the applicant ’ s plea that no evidence about the scope of her functions had ever been analysed (see paragraph 33 of the judgment). On this point it could have been noted that the provisions of Article 11 of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (although not ratified by Lithuania, it is used by its courts as a “guideline” ), and in particular the exceptions enumerated therein, must be strictly interpreted (see Sabeh El Leil v. France ([GC], no. 34869/05, § 66, 29 June 2011). This last provision from the Grand Chamber ’ s case-law – although it is the most important and directly relevant to the case under examination! − is not even mentioned in the judgment. An attentive student would ask: why? Does it signify that the Court ’ s attitude is about to change?

4. The words “ by plainly considering that everyone who worked in a diplomatic representation of a foreign State, including the administrative, technical and service personnel, by virtue of that employment alone in one way or another contributed to the meeting of the sovereign goals of a represented State ..., and thus upholding an objection based on State immunity” could have been substantiated by mentioning the following circumstances. The Supreme Court noted that, pursuant to Article 3 of the Vienna Convention on Diplomatic Relations, the gathering of information about a receiving State, as well as the promoting of cultural relations, were among the functions of a diplomatic representation (see paragraphs 38 and 53 of the judgment). That being the case, the Supreme Court also held that everyone who worked in the diplomatic representation of a foreign State, including the administrative, technical and service personnel, in one way or another contributed to the meeting of the sovereign goals of the represented State, with the result that the diplomatic representation ’ s immunity from jurisdiction was justified (see paragraph 38). To support that finding in the present case, the Supreme Court then relied on its own earlier finding in A. Cudak vs the Embassy of Poland . Such an overarching application of State immunity to everyone who works at a diplomatic representation is in plain contradiction with the current developments in international law (see Sabeh El Leil , cited above, § 53) as well as with the spirit of the Court ’ s judgment in Cudak (cited above). The Supreme Court ’ s choice to grant State immunity in this case thus appears to have been based largely on the Swedish ambassador ’ s demand to that effect (see paragraph 38 in fine ). Such “expanded” reasoning would also have provided justification for the dismissal of the Government ’ s objection that Article 6 § 1 was inapplicable on account of the applicant ’ s special bond of trust and loyalty to the Swedish embassy.

5. Lastly, it would have done no harm (rather the opposite) had the Chamber explicitly dealt with the Supreme Court ’ s conclusion that despite the fact that an employment contract had been concluded between the Swedish embassy and the applicant the latter, just like any other person working in a diplomatic representation, was considered as being in the civil service of the represented State, that is, Sweden (see paragraph 38 of the judgment). Such a conclusion appears to run counter not only to Swedish legislation, as the Public Employment Act does not apply to staff employed locally by Sweden abroad (see paragraph 52), but also to the arguments provided by the Swedish Government (see paragraph 101).

6. The above considerations do not affect my agreement with the findings of the judgment. Still, the Court should seek to make its judgments as clear as possible and thus to provide them with what is sometimes called greater “e ducational value”. At times, the overly concise reasoning of the domestic courts alone prompts this Court to find a violation of the applicable Article of the Convention. However, when overly concise reasoning is provided in this Court ’ s judgment, which – being the “last word in law” – is not subject to any review, there remains scope for unnecessary and undesirable guesswork and speculation, first of all at the national level, as to what precisely this Court had in mind.

Why serve up a concentrate to the readership – which includes the domestic courts – when that concentrated version can at no extra cost be made into a full drink?