CASE OF NAKU v. LITHUANIA AND SWEDEN
Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Helena Jäderblom;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1959 and lives in Vilnius. 6. From 2 March 1992 to 2 January 2006 the applicant worked at the Swedish embassy in Vilnius. 7. She began as a receptionist and translator and was later promoted to be cultural, information and press officer. 8. On 9 February 2001 the applicant wrote a letter to the Swedish ambassador in Vilnius. She stated that since 1998 a major change had been made to her work description – she had started managing cultural affairs, enjoying partial independence in decision-making and a high degree of responsibility for financial matters. She was considered as being responsible for certain categories of business because she had to draft budgets for cultural projects. Unfortunately, up to that point no adjustment in her contract had been made. 9. The contract drawn up by the Swedish embassy in Vilnius on 19 November 2001, which the applicant and the ambassador signed, read as follows: “Work description – Sniege Naku – information officer (cultural affairs, social secretary etc.) Ms Naku’s work description is as follows: - handles cultural and information matters in consultation with the Ambassador and the Cultural Attaché in Riga - programme-maker for visitors from Swedish Government Offices as well as for other Swedish authorities - social secretary – mainly to the Ambassador but if needed also to the Counsellor, First and Second secretary’s - replacement for D.Z. and I.N.” 10. The applicant submitted several letters of recommendation to the Court which were written between 1994 and 2006 by her Swedish colleagues at the embassy, including the ambassador to Lithuania between 1991 and 1994. The letters attested to her loyalty, dedication, communication skills and good working record. The applicant also submitted another letter, signed on 30 June 2011 by her former Swedish colleague, Ms G. F. In the letter Ms G. F. stated that between 2003 and 2004 she had been posted as cultural attaché to the Baltic states, stationed in Riga, but also accredited to Vilnius, where she worked approximately one week a month. Ms G. F. stated that during that time she had worked closely with the applicant and that they had planned and carried out various projects. All the major projects had been cleared with the ambassador. The budgets had been relatively modest. Ms G. F. also stated that for the four years she had worked with the applicant she had never felt that the applicant had made a single payment without asking her, or without clearing them with the ambassador. 11. According to the Swedish Government, in 2003 and 2004 a new routine was introduced at the Vilnius embassy by which diplomatic staff had to take decisions on financial support payments, and the applicant lost her authority to deal with those matters independently. It was around that time that a new ambassador, Mrs M. K., was appointed. 12. The accreditation certificate issued to the applicant by the Lithuanian Foreign Ministry on 6 October 2004 stated that the applicant was “part of the administrative technical staff at the embassy of the Kingdom of Sweden (Švedijos Karalystės ambasados administracinio techninio personalo narė)”. The other page of the certificate stated that the applicant “did not enjoy any diplomatic immunities or privileges (asmens imunitetai ir privilegijos: NĖRA)”. It also said that pursuant to Article 38 § 2 of the Vienna Convention jurisdiction over the applicant was to be exercised so that the functioning of the embassy would not be disturbed (see paragraph 53 below). 13. On 3 November 2004 the applicant and the Swedish ambassador M. K. signed a document entitled “Terms and conditions of employment for locally engaged personnel at the Embassy of Sweden in Vilnius”. The document read that Lithuanian laws applied to the employment relationship between the applicant and the embassy regarding conditions such as the payment of tax, social security contributions, overtime, sick leave, the right to leaves of absence or severance payments. Pursuant to section 17 of that document, Lithuanian legislation was to be complied with as regards dismissal from work and the employer had to have “objective grounds for dismissal”. Under section 18, an employee could be dismissed for committing a criminal act, seriously neglecting his duties, or committing further breaches of the requirements of his duties despite warnings having been given. 14. The applicant was also the chairperson of the trade union for locally employed staff at the embassy, which was registered in 1999. Between October 2004 and June 2005 the trade union made several written complaints to the embassy about working conditions. The letters complained of a deteriorating and oppressive working atmosphere, the confused delegation of tasks, incomplete job descriptions or changes in job descriptions without local employees being consulted, a lack of clear communication, and a lack of trust. The union expressed the view that a collective agreement between the locally employed staff and the embassy could resolve such issues. 15. The applicant’s job description of 21 March 2005, although not signed by either the Swedish ambassador or the applicant, gave her title as “Cultural, Information and Press Officer”, who worked “in cooperation with and under the guidance of the Counsellor for Political Affairs/Cultural Attaché or in relevant matters with the Second Secretary”. The applicant’s functions were described as follows: “Operates, coordinates and assists in cultural/information events and general promotion projects; Coordinates the annual and long-term cultural/information and general promotion planning; Coordinates the cultural and information budget; Operates and assists in matters regarding press, TV and radio; Assists the Second Secretary with the communication strategy; Handles and prepares correspondence and inquiries related to cultural, information and press matters Responsible for the ‘cultural calendar’ on the home page; Prepares and Processes applications for financial and other support; Processes the annual report on culture and other relevant reports; Responsible for the Head of Missions newspapers’ review and certain translations; Prepares and makes drafts of speeches on certain occasions; Acting as interpreter on certain occasions; Responsible for collecting, filing and translating various cultural and other adequate information; Handles customs’ matters, as well as relevant notes, and setting arrangements for other proceedings including transportations of individuals and exhibitions; Setting arrangements for cultural events in cooperation with the Counsellor for Political Affairs/Cultural Attaché for lunches, dinners and receptions, including making guests lists writing invitation, bookings and other general assistance; Responsible for the information material from the Swedish Institute - including ordering, filing and distribution and as well the information room; Responsible for the ‘interpreters’ list’ and the ‘cultural board’; Handles the annual ‘book list’; Accepts and performs other duties assigned by the Head of Mission.” 16. By a letter of 17 May 2005 the Lithuanian State Civil Servants’ Trade Union (Lietuvos valstybės tarnautojų profesinė sąjunga) also wrote to the Swedish ambassador to Lithuania. The letter expressed concern that local personnel at the embassy were treated unfairly. The union also considered that diplomatic immunity in labour relations applied only to diplomats and their families. In contrast, labour relations between a diplomatic representation and staff who were permanent residents of Lithuania were regulated by Lithuanian law. This also flowed from the 1961 Vienna Convention, which did not grant diplomatic immunity from the civil jurisdiction. 17. On 14 July 2005 the ambassador replied to the union that the embassy was “very anxious to be a good employer”. However, the embassy “had not signed, and would not sign, collective agreements. The embassy as a diplomatic representation is subordinated by the Vienna Convention and thus does not have to adhere to the Lithuanian Labour Code”. 18. On 26 July 2005 Swedish radio announced and other media published articles about a report by the Swedish Labour Inspector that locally employed staff at Swedish embassies received less pay and had worse working conditions than their Swedish colleagues. The Swedish trade unions also stated that although there was no lack of legal regulation, locally employed staff would often not assert their rights for fear of losing their job. 19. According to the Swedish Government, in the autumn of 2005 a new post of counsellor for cultural affairs was established at the embassy, which was taken up by a Swedish diplomat, Mr T. S., who became the applicant’s immediate superior. The Swedish Government also stated that according to internal embassy memorandums drafted by T.S. the applicant was a source of conflict at the embassy. There were long but fruitless discussions concerning the applicant’s work description. According to T.S., the applicant ignored his decisions and instructions, took decisions on her own on granting financial support, failed to follow agreed plans and lacked skills in a number of areas. 20. On 8 November 2005 the embassy drafted a new job description for the applicant. She was named “Officer for Cultural and Information Affairs”, and was to handle “cultural matters in consultation with the Counsellor for Cultural Affairs T.S.”. Her functions were essentially identical to those given in the job description of 21 March 2005 (see paragraph 15 above). The same day, the applicant informed the embassy in writing that she did not agree with that job description because it lacked a clear definition of her responsibilities and those of T.S. She expressed a wish to involve a neutral person in negotiations over her working duties. 21. The following day, 9 November 2005, the ambassador presented the applicant with a “Letter of caution”. According to the letter, the ambassador saw no future for the applicant at the embassy, due to the applicant’s “difficulties to cooperate”, “lack of performance”, “constant questioning and arguing over duties to be performed” and “inability to cope with changes in [the] Embassy’s and/or [the applicant’s] own tasks”. The applicant was given two days to hand in her resignation, or the embassy would “take other action”. 22. According to a statement written by one of the applicant’s former Lithuanian colleagues at the embassy, D.K., on 9 November 2005 the applicant was asked to hand over her keys to the embassy and leave the premises immediately. The following day the applicant came to work as usual but was not let into the embassy. According to D.K., he saw the applicant “waiting in terrible cold for around one hour outside until the reception opened for visitors. Then she walked in, sat for a while and then left. The next day she fell seriously ill and never returned [again]”. 23. On 11 November 2005 the applicant went on sick leave. The sick leave certificates, issued by the Central Polyclinic (Centro poliklinika) in Vilnius, confirm that she was on sick leave as of that date. The leave was prolonged on a weekly basis and without interruption until 2 March 2006. At one point during that time, in January 2006, she was admitted for two weeks to Vilnius University Hospital’s neurology unit, where she was diagnosed with reversal ischemic neurological deficit in the vertebrobasilar basin. The applicant was also on sick leave in December 2006 and for some months in 2007. 24. Whilst the applicant was on sick leave, on 21 November 2005, the Lithuanian trade union confederation (Lietuvos profesinių sąjungų konfederacija) organised a protest in front of the Swedish embassy building in Vilnius against the applicant’s dismissal. The protest was covered by news outlets in Sweden. According to a statement by one of the applicant’s former Lithuanian colleagues at the embassy, K.M.P., the local staff of the embassy did not attend the protest for fear of negative repercussions. 25. On 23 November 2005 the Swedish embassy sent a decision to the applicant’s home address which stated that a disciplinary sanction would be imposed on the applicant – dismissal from work for gross misconduct. The ambassador stated that she had been informed on 4 and 9 November 2005 that the applicant had accused her Swedish colleague T.S. of being “unbalanced”, that on several occasions the applicant had breached security rules at the embassy by opening a window on street level that had no bars, and that she had conducted a private meeting at the embassy, which was an unacceptable use of her working time. 26. In written replies of 5 and 8 December 2005, the applicant noted that she had indeed called T.S. “unbalanced” during an employee meeting at the embassy, but that that had been because he had earlier shouted at her and had never apologised. The applicant also stated that staff at the embassy had never signed any safety or security regulations. Lastly, the meeting referred to by the ambassador had concerned asking a cleaning company to come to the embassy, and that such a practice had been begun by Swedish staff and had been used continually during previous years. The applicant noted that she had never received any prior warning of the accusations against her, which were a pretext to get rid of her because of her trade-union activities. 27. On 20 December 2005 the embassy sent a letter to the applicant’s home, stating that the embassy had had confirmation of the applicant’s sick leave from the social insurance office (Sodra), attesting that the applicant had been ill up to 3 December. The applicant was asked to present a continuous or new doctor’s certificate no later than 30 December, including an indication of when she would recover. 28. On 30 December 2005 the Swedish embassy dismissed the applicant from her post, effective as of 2 January 2006. The order referred to Article 136 § 3 (2) of the Lithuanian Labour Code, which permits an employer to terminate an employment contract without giving prior notice to the employee if the latter has committed an act of gross misconduct. The embassy referred to its decision of 23 November 2005 in order to impose such a sanction on the applicant (see paragraph 25 above). The embassy also stated that on 5 December 2005 it had received a sick leave certificate from the applicant that was valid until 3 December, but that no medical certificates had been presented thereafter, despite a written request. According to the applicant’s version of events, and as attested in writing by her former Lithuanian colleague D.K., in November and December 2005 she had kept the Swedish embassy informed of her illness, with her husband also taking sick leave certificates to the embassy in person. An internal embassy memorandum shows that on 5 January 2006 the applicant’s husband had taken a sick leave certificate to the embassy for the period up to 2 January 2006. 29. The applicant’s dismissal was subsequently mentioned on the internet site of the International Confederation of Free Trade Unions as one of the mistreatments which had taken place in 2005. The report stated: “the explanation given by [the ambassador], when interviewed by Swedish radio, was that Ms Naku was dismissed for not doing her job properly, but she declined to give further details. However, before the new ambassador took office, Ms Naku had not received any complaints about her work during her fourteen years of service. Meanwhile, [the ambassador] explained to the Baltic Times newspaper ... that, as a diplomatic representation, the embassy did not have to comply with Lithuanian labour legislation, that the tone of trade union letters was rude and that there could not be any collective agreements in a diplomatic mission.” 30. Arguing unlawful dismissal, the applicant brought proceedings against the Swedish embassy in the Vilnius Regional Court. She submitted that “for the last seven years I have been the Head of Culture and information projects at the embassy (pastaruosius septynis metus esu ambasados Kultūros ir informacios projektų vadovė)”, and asked to be reinstated to her former post. She also sought pecuniary and non-pecuniary damages. The applicant argued that she had been dismissed while on sick leave, which was a clear breach of Lithuanian law (see paragraph 48 below). She also challenged the allegation that she had committed acts of gross misconduct as the grounds for her dismissal, contrary to what had been suggested by the embassy. Lastly, she noted that as a result of her arbitrary dismissal she had suffered loss of reputation and her health had significantly deteriorated. She stated that she had been destroyed, both psychologically and physically. 31. On 19 May 2006, the Kingdom of Sweden claimed immunity from the jurisdiction of the Lithuanian courts: “Reply to civil claim – re Mrs Sniege Naku With reference to the Court’s letter/announcement of March 6, 2006, regarding civil case No. 2-1479/41/06, the Swedish Government demands that the plaintiff’s case is refused with reference to acknowledged case law of the Republic of Lithuania (V.Stukonis vs. US Embassy and A.Cudak/Senkevic vs. the Embassy of the Republic of Poland).