Cudak v Lithuania: ECHR 23 Mar 2010

Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in Vilnius, Lithuania. The Supreme Court of Lithuania’s decision was based on the Strasbourg court’s decision in Fogarty. It had upheld Poland’s claim to state immunity on the ground that: ‘there was no uniform international practice of states whereby the members of staff of foreign states’ diplomatic missions who participated in the exercise of the public authority of the states they represented could be distinguished from other members of staff. As there were no legally binding international rules, it was for each state to take its own decisions in such matters.’
Held: The Court reiterated the general principles governing the application of article 6 in such cases, which they had previously laid down in Fogarty. Although Fogarty had been a complaint about the employer’s recruitment practices, the same principles applied to claims arising out of a subsisting employment relationship. However the Lithuanian courts had exceeded the margin of appreciation available to them, since there were now binding international rules on contracts of employment. These rules were in article 11 of the International Law Commission’s draft articles of 1991 on Jurisdictional Immunities of States and their Property.
The Court recognised that the draft articles were not a treaty and that Lithuania had not ratified the Convention ultimately adopted. But article 11 was nevertheless binding on the state because it reflected customary international law. None of the five exceptions in draft article 11(2) applied. In particular, exception (a) did not apply.
The Court considered the Lithuanian Supreme Court’s findings of fact and concluded that it had given inadequate reasons for regarding the applicant’s employment as being related to the exercise of governmental authority: ‘The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government. Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file-nor has the Government provided any details in this connection-that she actually performed any functions related to the exercise of sovereignty by the Polish State.
In its judgment of June 25, 2001 the Supreme Court stated that, in order to determine whether or not it had jurisdiction to hear employment disputes involving a foreign mission or embassy, it was necessary to establish in each case whether the employment relationship in question was one of a public-law nature (acta jure imperii) or of a private-law nature (acta jure gestionis). In the present case, however, the Supreme Court found that it had been unable to obtain any information allowing it to establish the scope of the applicant’s ‘actual duties’. It therefore referred solely to the title of her position, and to the fact that Poland had invoked immunity from jurisdiction, in concluding that the duties entrusted to her had ‘facilitated, to a certain degree, the exercise by the Republic of Poland of its sovereign functions.”


Jean-Paul Costa, P


15869/02, [2010] ECHR 370, (2010) 51 EHRR 15




European Convention on Human Rights 6-1


Human Rights

Cited by:

CitedReyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedBenkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 14 June 2022; Ref: scu.403492