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Caso Fogarty

La dispensa si riferisce alle lezioni di Diritto Processuale Civile I, tenute dal Prof. Giorgio Costantino nell'anno accademico 2011.
Il documento riporta il testo in inglese della sentenza della Corte europea dei Diritti dell'Uomo relativa al c.d. Caso Fogarty.
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Esame di Diritto Processuale Civile I docente Prof. G. Costantino



Convention on State Immunity, Article IIIC of which dealt with contracts of employment and was

similar in its terms to Article 5 of the Basle Convention. An amendment was added to Article IIIC at

the ILA’s 1994 conference, providing for immunity to be granted where “the employee was appointed

under the public (administrative) law of the foreign state such as, inter alia, members of the mission,

diplomatic, consular or military staff”. In the explanatory commentary on the amendment the

Committee stated that it wished “to make clear that the employment relationship of any and all

diplomatic and consular staff and other members of the mission should be immune from the

jurisdiction of the courts of the forum state”.



21. The applicant complained that, as a result of the doctrine of State immunity, she had been

denied access to court, contrary to Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ...

tribunal...” 8 prof. Giorgio Costantino

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A. Applicability of Article 6 § 1 of the Convention

1. The submissions of the parties

22. The Government contended that Article 6 § 1 of the Convention did not apply, because the

applicant had no actionable domestic claim. The principle of sovereign immunity removed the dispute

from the competence of the national courts, which could not assert jurisdiction over the internal affairs

of foreign diplomatic missions. Secondly, with reference to Pellegrin v. France, [GC], no. 28541, §§

64-67, ECHR 1999, they submitted that there was no “civil” right involved, because questions of

employment of members of diplomatic missions fall within the core of sovereign power and thus form

part of public law.

23. The applicant argued that there was a “right” under domestic law to be free from sex

discrimination, as evidenced by her first successful claim against the Embassy. Sovereign immunity did

not extinguish the right but simply prevented the courts from examining disputes thereon. Moreover,

the right was “civil”. The posts for which she had applied did not fall within the scope of the Pellegrin

exception. They were of a strictly administrative or secretarial character and they would neither have

required nor enabled her to wield a portion of the State’s sovereign power.

2. The Court’s assessment

24. The Court recalls its constant case-law to the effect that Article 6 § 1 does not itself guarantee

any particular content for “civil rights and obligations” in the substantive law of the Contracting States.

It extends only to contestations (disputes) over “civil rights and obligations” which can be said, at least

on arguable grounds, to be recognised under domestic law (see Z. and Others v. the United Kingdom,

[GC], no. 29392/95, § 87, ECHR 2001, and the authorities cited therein).

25. Whether a person has an actionable domestic claim may depend not only on the content, properly

speaking, of the relevant civil right as defined under national law but also on the existence of

procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter

kind of case Article 6 § 1 may be applicable. Certainly the Convention enforcement bodies may not

create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the

State concerned. However, it would not be consistent with the rule of law in a democratic society or

with the basic principle underlying Article 6 § 1 - namely that civil claims must be capable of being

submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the

Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil

claims or confer immunities from civil liability on large groups or categories of persons (see the Fayed

v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, § 65).

26. Section 6 of the Sex Discrimination Act 1975 (“the 1975 Act”: see paragraph 15 above) creates a

statutory right which arises, inter alia, when an employer refuses to employ a woman on grounds of

sex discrimination or by reason of the fact that she has already taken proceedings under the 1975 Act.

Thus, the proceedings which the applicant intended to pursue were for damages for a cause of action

well known to English law. The Court does not accept the Government’s plea that because of the

operation of State immunity she did not have a substantive right under domestic law. It notes that an

action against a State is not barred in limine: if the defendant State does not choose to claim immunity,

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the action will proceed to a hearing and judgment, as occurred with the first discrimination action

brought by the applicant (see paragraph 10 above).

The Court is, therefore, satisfied that the grant of immunity is to be seen not as qualifying a substantive

right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial

Tribunal (see, mutatis mutandis, Tinnelly and Sons Ltd and McElduff v. the United Kingdom, nos.

20390/92 and 21322/93, § 62, ECHR 1998-IV).

27. The Government have also submitted that because the applicant’s claim related to recruitment to

the United States’ Embassy, it did not concern a “civil right”.

28. The Court recalls that in the above mentioned Pellegrin judgment, it adopted a functional test for

the purposes of determining the applicability of Article 6 § 1 to employment disputes involving public

servants, based on the nature of the employee’s duties and responsibilities. An employment dispute is

excluded from the scope of Article 6 § 1 if it concerns a public servant whose duties typify the specific

activities of the public service in so far as he or she acts as the depository of public authority

responsible for protecting the general interests of the State. The question therefore arises whether or not

the applicant’s case falls within this category. However, for the reasons set out in the following

paragraphs, the Court does not find it necessary to determine this issue, and will proceed on the

assumption that Article 6 is applicable. 10 prof. Giorgio Costantino

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B. Compliance with Article 6 § 1 of the Convention

1. The submissions of the parties

29. The Government argued that if there was any restriction to the right of access to court, it

pursued a legitimate aim, namely promoting respect for the independence and equality of other

sovereign States in accordance with public international law.

The restriction was, moreover, proportionate, since section 16(1)(a) of the 1978 Act was a justifiable

reflection of the principles of public international law that were its source. In this connection, the

Government referred to an article by Richard Garnett (“State Immunity in Employment Matters” in

International and Comparative Law Quarterly, [vol. 46, January 1997], pp. 81 - 124) in which the

author noted a variety of approaches by States with regard to according immunity to other States in

employment matters. He concluded that the variety of approaches suggested that States had difficulty

in agreeing where the line should be drawn. On the specific question of the application of State

immunity to claims by employees of embassies and consulates, he noted a division between States

which based their policy on the context or place of employment (including the United Kingdom and

Germany), and those which advocated a relaxation of the strict exclusion of local jurisdiction in the

case of employment at a diplomatic mission (including the United States and most European civil law


30. For the Government, selection of embassy staff was a sovereign act jure imperii. Even the service

staff of an embassy might be involved in sovereign activities and have access to confidential

information. Any adjudication upon the fairness of the dismissal of an embassy employee or a decision

whether or not to employ her would involve an investigation into the internal organisation of the

embassy which would be an interference with the sovereign functions of the State. Given the difficulty

in distinguishing between acts jure imperii and acts jure gestionis, it was appropriate to allow States a

considerable margin of appreciation and the United Kingdom legislation fell within that margin. Article

5 of the Basle Convention, read in the light of its Article 32 (see paragraph 18 above), showed that the

drafters of that Convention wanted to exclude from its scope matters in the exercise of the functions of

diplomatic missions, including recruitment for employment in embassies. The practice of other

Contracting States did not support the applicant’s claims and the practice of the United Kingdom vis-à-

vis its own embassy personnel was irrelevant. 11 prof. Giorgio Costantino

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31. The applicant accepted that section 16(1)(a) of the 1978 Act pursued a legitimate aim. However,

she considered that it introduced a disproportionate limitation to the right of access to court for four


First, she contended that since her claim concerned sex discrimination, freedom from which is one of

the core values of a democratic society, it was disproportionate to block her access to court in respect

of it. Secondly, she pointed out that there was no alternative means available to her that could have

provided a remedy for this complaint, since the United States was clearly not prepared to exercise

jurisdiction. Thirdly, in the applicant’s submission, the United Kingdom was not obliged under

international law to grant immunity in respect of her claim. The tendency towards restricting the scope

of State immunity was reflected in Articles 5 and 7 of the Basle Convention (see paragraph 18 above)

and the Government’s understanding of Article 5 of that Convention was not supported by the general

practice of the other members of the Council of Europe or by academic commentators. The

appointment of a member of a mission was not covered by Article 32 of the 1972 Convention. In

practice, the United Kingdom did not itself claim absolute immunity in respect of disputes between

foreign employees and British embassies and the United States did not consider itself obliged under

international law to confer an immunity in respect of all embassy employment disputes. It followed that

absolute sovereign immunity was not required by considerations of international comity. Moreover, the

International Law Commission was of the view that disputes concerning habitual residents of the forum

State involving functions not closely connected with sovereign acts of government were not the

appropriate subject of a claim to State immunity where the subject matter of the dispute did not involve

a court ordering another State to take on an employee. Fourthly, the United States had not claimed

immunity in relation to the applicant’s first Industrial Tribunal claim. If immunity was not considered

necessary in respect of the first claim, it was difficult to see how it could genuinely be necessary to

meet the requirements of international co-operation in relation to the second claim.

2. The Court’s assessment

32. In the Golder case the Court held that the procedural guarantees laid down in Article 6

concerning fairness, publicity and promptness would be meaningless in the absence of any protection

for the pre-condition for the enjoyment of those guarantees, namely, access to court. It established this

as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of

law and the avoidance of arbitrary power which underlie much of the Convention. Thus, Article 6 § 1

secures to everyone the right to have any claim relating to his civil rights and obligations brought

before a court (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18,

pp. 13-18, §§ 28-36).

33. The right of access to court is not, however, absolute, but may be subject to limitations; these are

permitted by implication since the right of access by its very nature calls for regulation by the State. In

this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision

as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the

limitations applied do not restrict or reduce the access left to the individual in such a way or to such an

extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible

with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of

proportionality between the means employed and the aim sought to be achieved (see Waite and

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Kennedy v. Germany [GC], no. 26083/94, ECHR 1999-I, § 59).

34. The Court must first examine whether the limitation pursued a legitimate aim. It notes in this

connection that sovereign immunity is a concept of international law, developed out of the principle

par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction

of another State. The Court considers that the grant of sovereign immunity to a State in civil

proceedings pursues the legitimate aim of complying with international law to promote comity and

good relations between States through the respect of another State’s sovereignty.

35. The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls

that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23

May 1969 on the Law of Treaties, and that Article 31 § 3 (c) of that treaty indicates that account is to

be taken of “any relevant rules of international law applicable in the relations between the parties”. The

Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the

Convention’s special character as a human rights treaty, and it must also take the relevant rules of

international law into account (see, mutatis mutandis, the Loizidou v. Turkey judgment of 18

December 1996, Reports of Judgments and Decisions 1996-VI, § 43). The Convention should so far as

possible be interpreted in harmony with other rules of international law of which it forms part,

including those relating to the grant of State immunity.

36. It follows that measures taken by a High Contracting Party which reflect generally recognised rules

of public international law on State immunity cannot in principle be regarded as imposing a

disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right

of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on

access must likewise be regarded as inherent, an example being those limitations generally accepted by

the community of nations as part of the doctrine of State immunity.

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37. The Court observes that, on the material before it (see paragraphs 16-20, 29 and 31 above), there

appears to be a trend in international and comparative law towards limiting State immunity in respect

of employment-related disputes. However, where the proceedings relate to employment in a foreign

mission or embassy, international practice is divided on the question whether State immunity continues

to apply and, if it does so apply, whether it covers disputes relating to the contracts of all staff or only

more senior members of the mission. Certainly, it cannot be said that the United Kingdom is alone in

holding that immunity attaches to suits by employees at diplomatic missions or that, in affording such

immunity, the United Kingdom falls outside any currently accepted international standards.

38. The Court further observes that the proceedings which the applicant wished to bring did not

concern the contractual rights of a current embassy employee, but instead related to alleged

discrimination in the recruitment process. Questions relating to the recruitment of staff to missions and

embassies may by their very nature involve sensitive and confidential issues, related, inter alia, to the

diplomatic and organisational policy of a foreign State. The Court is not aware of any trend in

international law towards a relaxation of the rule of State immunity as regards issues of recruitment to

foreign missions. In this respect, the Court notes that it appears clearly from the materials referred to

above (see paragraph 19) that the International Law Commission did not intend to exclude the

application of State immunity where the subject of proceedings was recruitment, including recruitment

to a diplomatic mission.

39. In these circumstances, the Court considers that, in conferring immunity on the United States in the

present case by virtue of the provisions of the 1978 Act, the United Kingdom cannot be said to have

exceeded the margin of appreciation allowed to States in limiting an individual’s access to court.

It follows that there has been no violation of Article 6 § 1 in this case.



40. The applicant submitted that, since the proceedings she sought to pursue were to enforce an

anti-discrimination provision, the restriction of access to court engaged Article 14 in conjunction with

Article 6 § 1 of the Convention. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on

any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association

with a national minority, property, birth or other status.”

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41. The Government argued that Article 14 did not apply because Article 6 was inapplicable. In the

alternative, they reasoned that the applicant was not treated differently from any other person wishing

to sue the United States Embassy in respect of employment.

42. The Court recalls that the applicant was prevented from pursuing her claim in the Industrial

Tribunal by virtue of sections 1 and 16(1)(a) of the 1978 Act (see paragraph 16 above), which confer

an immunity in respect of proceedings concerning employment within the staff, including the

administrative and technical staff, of an embassy. This immunity applies in relation to all such

employment-related disputes, irrespective of their subject-matter and of the sex, nationality, place of

residence or other attributes of the complainant. It cannot therefore be said that the applicant was

treated any differently from any other person wishing to bring employment-related proceedings against

an embassy, or that the restriction placed on her right to access to court was discriminatory.

43. It follows that there has been no violation of Article 14 in conjunction with Article 6 § 1 of the

Convention in this case.


1. Holds by sixteen votes to one that there has been no violation of Article 6 § 1 of the Convention;

2. Holds unanimously that there has been no violation of Article 14 taken in conjunction with

Article 6 § 1 of the Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights Building,

Strasbourg, on 21 November 2001. Luzius Wildhaber


Paul Mahoney

Registrar 15 prof. Giorgio Costantino

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In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the

following separate opinions are annexed to this judgment:

(a) concurring opinion of Mr Caflisch, Mr Costa and Mrs Vajić;

(b) dissenting opinion of Mr Loucaides. L. W.

P. J. M.


We agree with the general thrust of the judgment, which we base on the following line of reasoning:

The selection of a State’s diplomatic and consular staff must be dictated by that State’s interests, laws

and procedures. It is inconceivable that a State, when appointing those who will represent it abroad –

including clerical staff –, would have to submit to the standards set by the laws and procedures of

another State, in particular those of their host country. Accordingly, when selecting its foreign service

officers, the first State is evidently acting within its public authority, jure imperii, and, in so doing, is

covered by sovereign immunity.

This view is reflected in the International Law Commission’s Draft Articles on the Jurisdictional

Immunities of States and their Property, mentioned in § 19 of the judgment, Article 11(1) of which

states, authoritatively in our view, that

“a Contracting State cannot claim immunity from the jurisdiction of another Contracting State if

the proceedings relate to a contract of employment between the [first] State and an individual

where the work has to be performed in the territory of the State of the forum”.

The Article adds, however, with equal authority, that the above exception does not apply in situations

where “the subject of the proceeding is the recruitment, renewal of employment or reinstatement of the

individual” and where the person to be recruited will “perform functions closely related to the exercise

of governmental authority”. This exception, according to the Commission’s commentary on Article 11

of its Draft, applies to each and every person to be employed by diplomatic missions or consular posts

(Yearbook of the International Law Commission 1991, Vol. II/Part 2, 42-43). In other words, while

immunity is complete when it comes to selecting diplomatic and consular personnel, this may no

longer be the case, in certain situations, once the individual concerned has been hired.

The immunity just described must apply in the present case: (i) because the present case pertains to

the recruitment of diplomatic or consular staff rather than to the application of a contract of

employment; (ii) because it does not prevent the application of any provision of the Convention having

the value of jus cogens; (iii) because, for that reason, the immunity rule will stand, unless (iv) it can be

shown that the resulting restriction of the right of access to court is disproportionate from the angle of

Article 6 § 1 of the Convention.

As the Court points it out in paragraph 36 of its judgment: “measures taken by a High Contracting Party

which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded

as imposing a disproportionate restriction on the right of access embodied in Article 6 § 1”.

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La dispensa si riferisce alle lezioni di Diritto Processuale Civile I, tenute dal Prof. Giorgio Costantino nell'anno accademico 2011.
Il documento riporta il testo in inglese della sentenza della Corte europea dei Diritti dell'Uomo relativa al c.d. Caso Fogarty.
La Corte di Strasburgo è chiamata a esprimersi sulla questione dell'immunità giurisdizionale degli Stati esteri nelle cause di diritto del lavoro.

Corso di laurea: Corso di laurea magistrale in giurisprudenza
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Processuale Civile I e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Costantino Giorgio.

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