KOKASHVILI v. GEORGIA
Inadmissible
András Sajó;Egidijus Kūris;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Ms Marina Kokashvili, is a Georgian national, who was born in 1962 and lives in Tbilisi. She was represented before the Court by Ms M. Kobakhidze, Ms E. Fileeva, Ms Ts. Javakhishvili, Ms L. Mukhashavria and Mr V. Vakhtangidze, lawyers practising in Tbilisi. 2. The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was born in 1962 and lives in Tbilisi. 5. On 1 January 1998 the Office of the Personal Representative of the Organisation for Security and Cooperation in Europe Chairman-in-Office, located in Tbilisi (“the OSCE Tbilisi office”), recruited the applicant as a local fixed-term staff member. She was assigned the tasks of an administrative and information assistant, such as drafting letters, providing interpretation and translation services, answering to telephone calls in the office, file keeping, making travelling arrangements for the Personal Representative of the OSCE and so on. According to the employment contact, the parties were entitled to terminate the contract unilaterally either by giving one month’s prior notice or upon the completion of the OSCE Tbilisi Office mandate. 6. On 11 June 2001 the applicant, who was pregnant at that time, requested maternity leave from 18 June to 7 October 2001, which was granted by her employer. 7. On 22 September 2001 the mission coordinator of the OSCE Tbilisi Office notified the applicant of their intention to terminate the employment contract with her on 26 October 2001 by sending her the requisite one month’s prior notice, as stipulated in the employment contract. 8. On 26 November 2001 the applicant filed a lawsuit against the OSCE Tbilisi office with the Vake-Saburtalo Court, complaining that her dismissal had been contrary to Article 164 § 3 of the Labour Code of Georgia. 9. In reply to the applicant’s claim, on 20 December 2001 the Office of the Secretary General of the OSCE in Vienna (“the OSCE Vienna Office”) filed comments with the Vake-Saburtalo District Court in Tbilisi, arguing that the Georgian courts lacked jurisdiction over employment disputes between the OSCE Tbilisi Office and its local staff members. In support, it referred to the Memorandum of Understanding signed between the Government of Georgia and the Personal Representative of the OSCE (“the Memorandum”) on 24 October 1995, according to which the members of the OSCE Missions and Personal Representatives enjoyed “immunity from legal process in the host country”. Consequently, the dispute arising from the job termination notice of 22 September 2001 which was clearly issued by the OSCE Tbilisi Office in the performance of their official duties could not be adjudicated under the Georgian law. The OSCE Vienna Office invited the court to address the Ministry of Foreign Affairs of Georgia (“the MFA”) for any further clarification on the matter. 10. On 13 February 2002 the MFA was involved as a third party to the proceedings. 11. Since neither the respondent, the OSCE Tbilisi Office, nor the third party, the MFA, was present at the main hearing of 12 June 2002, the VakeSaburtalo District Court delivered a judgment by default on that day. The court first reasoned that international organisations could not be said to enjoy immunity from legal process with respect to labour disputes with local staff. Consequently, the Georgian legislation should be held applicable to the dispute between the applicant and the OSCE Tbilisi Office. The District Court found that the applicant’s dismissal was clearly in breach of Article 164 § 3 of the Labour Code, restoring her to the position of administrative assistant and ordering the respondent organisation to compensate her for the loss of salary from the date of her unlawful dismissal. 12. The judgment of 12 June 2002 was never appealed by either the applicant or the respondent OSCE Tbilisi Office, whilst the MFA did not have standing to lodge an appeal as a third party, and thus became binding. 13. On 2 October 2002 the Vake-Saburtalo District Court issued an enforcement writ. It was sent to the Enforcement Office of the Georgian Ministry of Justice. 14. By a notification of 11 October 2002, a bailiff invited the OSCE Tbilisi Office to enforce voluntarily the judgment of 12 June 2002 within five days. In reply, the OSCE Vienna Office addressed to the MFA a note verbale stating that “as the [OSCE Tbilisi] Office does not intend to comply with the decision wrongly made by the court, the Secretariat would be grateful if the Ministry would ensure, in accordance with the relevant international law, that the [OSCE Tbilisi] Office will not be subject to any execution measures.” 15. On 4 November 2002 the Ministry of Foreign Affairs invited the Ministry of Justice to terminate the enforcement proceedings. 16. On 26 December 2002 the bailiff returned the enforcement writ to the applicant, officially informing her about the discontinuation of the enforcement proceedings. The notification mentioned that, in view of the debtor’s immunity from legal process in Georgia, it was impossible either to hold its administration criminally liable for the non-enforcement or to resort to any other measures of compulsory enforcement. Article 6 § 2 “The legislation of Georgia conforms to universally recognised norms and principles of international law. International treaties or agreements concluded by Georgia, if they do not contradict the Constitution of Georgia and a constitutional agreement, take precedence over domestic normative acts.” 17. Pursuant to Section 3 (a) of the Act on International Treaties, an “international treaty” was an international agreement concluded between the Georgian State and other State(s) or international organization(s) in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever was its particular designation. 18. Section 6 of the Act stated, similarly to Article 6 § 2 of the Constitution, that an international treaty, subject to its compliance with the country’s Constitution, should take precedence over domestic statutes. 19. Section 7 of the Act specified that the Georgian State could express its consent to be bound by an international treaty by several means, including by the signature of its representative. 20. Sections 31, 32 § 2 and 33 of the Act provided that the Georgian State was under the obligation to abide by the commitments provided for by an international treaty in good faith, and that its executive branch of power, notably the Government represented through its various Ministries, was required to supervise that the approved international agreements were duly enforced throughout the territory of the Georgian State. 21. Article 164 § 3 of the Labour Code of Georgia, in force at the material time, read as follows: “The administration [of an organisation] shall not dismiss a pregnant woman, or a woman who has a child under three years of age, unless this organisation...has been completely liquidated...” 22. The Memorandum was signed on behalf of the Georgian State by the Minister of Foreign Affairs on 24 October 1995. Article 2 of the Memorandum provided: “The Tbilisi Office will be manned by the Personal Representative and his Field Assistants who shall enjoy in full the legal capacity as provided for in the Provisions Concerning the Legal Capacity of the CSCE Institutions and Privileges and Immunities (Rome Council 1993/Decision no. 2), and with local staff to insure its proper functioning.” 23. Section 15 of the above-mentioned Rome Council Decision no. 2 read as follows: “Members of OSCE Missions and Personal Representatives of the ChairmaninOffice enjoy immunity from legal process, even after the termination of their mission, in respect of acts, including words spoken or written, performed by them in the exercise of their functions.” 24. On 20 July 2000 the Permanent Council of the OSCE, a major decision-making body of the Organisation, adopted, by its Decision no. 366, an amended version of the OSCE’s Staff Regulations and Staff Rules for FixedTerm Staff. This official document set out the conditions of service and the basic duties, obligations and rights of staff members of the OSCE, and, according to its Regulations 1.01 (c) and 1.02 applied “to all staff members of the OSCE Institutions holding a fixed-term appointment”, including staff occupying local posts. 25. Regulations 11.01 and 11.02 and Rule 11.01.1 contained rules on examination of employment related disputes between coordinators of the various OSCE Institutions and fixed-term staff members. In particular, two procedures for examination of such disputes were provided for: a purely administrative one – the so-called “internal appeals procedures” – and a quasi-judicial, arbitration instance – the so-called “external appeals procedures”. Those Regulations and Rules read, in their most relevant parts, as follows: Regulation 11.01 – Internal Appeals Procedures “The Secretary General shall establish, in consultation with the other Heads of Institution, an administrative procedure with staff participation to advise the Secretary General and the Head of Institution concerned in the event of any appeal by a staff member against an administrative decision in which the staff member alleges non-observance of the terms of his/her appointment.” Rule 11.01.1 – Internal Review Board (a) In the event of an appeal by a staff member under Staff Regulation 11.01, an Internal Review Board shall be established to advise the Secretary General and the Head of Institution concerned regarding that appeal. (b) The Internal Review Board shall consist of three members as follows: (i) A Chairman designated by the Secretary General, after consultation with the Head of Institution concerned and the Staff Representatives; (ii) One member appointed by the Head of Institution concerned; (iii) One member appointed by the Staff Representatives. ...” Regulation 11.02 – External Appeals Procedures (a) Further to the procedure established in Regulation 11.01, a staff member shall have a right of final appeal to a Panel of Adjudicators against an administrative decision directly affecting him/her in accordance with the Terms of Reference of the Panel to be established by the Permanent Council. ... (b) The Panel of Adjudicators shall be appointed by the Chairman of the Permanent Council from a roster to which all participating states are invited to nominate candidates, and shall carry out its functions in accordance with the Terms of Reference referred to above.” Rule 11.02.1 – Adjudication “(a) Staff members shall have the right to appeal to a Panel of Adjudicators after compliance with the internal appeals procedure set forth in Rule 11.01.1. (b) A staff member may, in agreement with the Secretary General or the Head of Institution concerned, waive the jurisdiction of the Internal Review Board and appeal directly to the Panel of Adjudicators.” 26. On 26 November 2000, during its 312th plenary meeting, the Permanent Council of the OSCE examined and endorsed a report containing a study and recommendations on the question of legal capacity of the OSCE and the granting of privileges and immunities to the organisation in the various participating States. 27. Relevant excerpts from the report read as follows: “36. [T]absence of a constituent treaty has not prevented participating States from endowing the OSCE over the years with the attributes usually regarded as those of an international organisation: ... (b) The OSCE is no longer only a vehicle for meetings and the organisation of cooperation between States; it acts as an organisation with functions of its own entrusted to it by participating States. For doctrine, such autonomy presupposes that the organisation has the necessary capacity to carry out its mandate at the international level and under public international law, i.e. that the organisation has become a subject of public international law. ... (e) The staff of the OSCE are employed by the organisation (international and local staff) and not participating States. ... (f) The OSCE has also established an internal legal structure and norms (Staff Regulations and Rules, Financial Regulations, Financial Instructions, Organisation and Administrative Directives), and its own mechanism for settling employment disputes through a Panel of Adjucators rather than national courts.”