CASE OF RADUNOVIĆ AND OTHERS v. MONTENEGRO
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicants were born in 1982, 1967 and 1978 respectively and live in Podgorica. 6. The applicants were employees of the USA Embassy (“the Embassy”) in Montenegro. The first applicant worked as a protocol specialist/translator, and the second and third applicants as security guards. All the applicants were local staff. 7. The employment contract between the locally employed staff and the Embassy provided, inter alia, as follows: “3. Services to be Performed. The employee agrees to perform all the duties set forth in the Position Description in accordance with the terms and conditions set forth herein. [...] 12. Disputes. All disputes between the employee and the Government arising out of this agreement shall be decided by the Management Officer or, in the absence thereof, the designee of the Management Officer, provided that the employee shall have the right to appeal in writing within thirty (30) days of receipt of notice of any such decision to the Chief of Mission [at the American Embassy Podgorica].” 8. The first applicant’s main duties and responsibilities were related to assisting in organising official receptions, lunches and dinners; questions relevant to protocol and local practices and customs; maintaining a contact database; drafting correspondence in English and Montenegrin; interpreting and translating documents, articles and incoming correspondence; arranging official calls; ensuring press coverage of ceremonial events; organising official visits and serving as a contact person between the front desk and the host country officials. 9. The second and third applicants’ main duties and responsibilities were continuous surveillance of an area around their fixed posts for security hazards; checking ID cards, screening visitors and vehicles, and controlling parking; recognising emergencies and unusual incidents, and acting accordingly. They could occasionally be required to work at other locations and for special functions such as VIP visits, receptions and dinners at the Principal Officer’s Residence. 10. Between 14 February 2009 and 28 June 2012 the applicants were informed by the Embassy that they were dismissed. 11. On 26 July 2010 the Court of First Instance (Osnovni sud) in Podgorica, apparently upon the third applicant’s claim to that effect, quashed the decision on his dismissal and ordered his reinstatement. It would appear that on an unspecified date thereafter this decision became final. 12. Between 22 November 2010 and 26 July 2012 the applicants instituted separate civil proceedings against the Embassy. All the applicants claimed compensation: the first applicant sought compensation for non-pecuniary damage caused by the wrongful dismissal, and the second and third applicants claimed compensation for loss of earnings. The first and second applicants, in addition, sought reinstatement. 13. On 26 May 2011 the Court of First Instance in Podgorica declared that it lacked competence to deal with the first applicant’s claim and rejected it (tužba [se] odbacuje), which decision was upheld by the High Court on 21 June 2011. On 4 October 2011 the Supreme Court quashed these decisions. Relying on section 29 of the Civil Procedure Act, section 2 (1) of the Labour Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 30, 33 and 35 below), the Supreme Court considered that the Montenegrin courts had jurisdiction to examine the merits of the first applicant’s claim. 14. Between 8 September 2011 and 24 September 2012 the Court of First Instance in Podgorica declared that it lacked competence to deal with the applicants’ claims (in a re-trial in respect of the first applicant) and rejected them. In substance, the court considered that the respondent State had immunity provided for by international law, and therefore could not be subjected to the jurisdiction of another State’s court. In rejecting the first applicant’s claim the court further held that granting immunity to the respondent State could not be considered a restriction on access to court, as provided in Article 6 of the Convention. While the court acknowledged that in international and comparative law there were restrictions on State immunity in respect of employment-related disputes, it also held that recruitment (pitanja u vezi sa zapošljavanjem) in a foreign diplomatic mission or an embassy was an issue which could be “very sensitive or of a confidential nature” and might relate to the diplomatic and organisational policy of a foreign State. In ruling upon the second and third applicants’ claims, the Court of First Instance relied also on the Vienna Convention on Diplomatic Relations, which provided that the function of Embassies was to represent foreign States, and held that therefore the jurisdiction of the domestic courts was excluded. The court also relied on Article 22 of the Vienna Convention, which provided for the inviolability of the premises of Embassies. 15. On various dates thereafter the applicants appealed. The first applicant submitted, inter alia, that by examining the merits of her claim the courts would not interfere with the other party’s sovereignty. She also submitted that the Court of First Instance had to examine the claim on the merits pursuant to the decision of the Supreme Court of 4 October 2011 and relied on section 415 of the Civil Procedure Act (see paragraph 32 below). 16. Between 20 November 2011 and 6 December 2012 the High Court upheld the first-instance decisions, in substance endorsing their reasoning. The High Court further held, upon the first applicant’s appeal, that a violation of sections 367 (1) and 415 of the Civil Procedure Code (see paragraphs 31 and 32 below) by the first-instance court did not render the first-instance decision unlawful, in particular as it was undisputed that the respondent party had its seat in another State and only a diplomatic representation in Montenegro. In ruling upon the second applicant’s claim it held that the jurisdiction of the domestic courts was not explicitly provided for either by the law or an international agreement. 17. Between 1 November 2012 and 10 May 2013, ruling upon the applicants’ appeals on points of law, the Supreme Court upheld the previous decisions on the grounds that the respondent party was a foreign State with its own legal personality and the domestic courts had no competence to rule upon the applicants’ claims. The court relied on section 29 of the Civil Procedure Act, section 46 of the Resolution of Conflict of Laws and Regulations of other States Act, and Article 3 of the Vienna Convention on Diplomatic Relations. In ruling upon the third applicant’s appeal on points of law the Supreme Court also held, inter alia, that granting immunity to a foreign State in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between States, and that it could not be considered as a restriction on access to court in violation of Article 6 of the Convention. 18. Between 10 January 2013 and 12 July 2013 the applicants lodged separate constitutional appeals. On 18 November 2015 the Constitutional Court dismissed the first and third applicants’ constitutional appeals, while the second applicant’s constitutional appeal would appear to be still pending. The Constitutional Court held that there had been no violation of Article 6 of the Convention as the decisions had been issued by tribunals established by law, which had acted within their competence, and which had given clear reasons for their decisions. There was therefore no arbitrariness in the courts’ rulings. In ruling upon the third applicant’s constitutional appeal the Constitutional Court in addition held that pursuant to the case-law of the Court and the Constitutional Court “it [was] not the task of these courts to examine the conclusions of the regular courts in respect of the substantive law application, except in cases where [...] procedural rights were violated ([such as ...], the right of access to court) [...]”. However, it did not go into any analysis about the third applicant’s right of access to court.