“In the determination of
his civil rights and obligations
[...], everyone is entitled
to a [...] hearing [...] by
[a] tribunal [...]”
(Article 6.1 of the Convention for the Protection
of Human Rights and Fundamental
Freedoms).
In March 2000, the Federation of International
Civil Servants’ Associations (FICSA)
drew two landmark judgements of the European
Court of Human Rights to the attention
of its members (FICSA Update 3/2000). In
Beer and Regan v. Germany and Waite and
Kennedy v. Germany, the Court held:
“The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention [for the Protection of Human Rights and Fundamental Freedoms], however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial [...]”
“For the Court, a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.”
«... It would seem, however,
that it is the first time that a
Supreme Court confirms the
primacy of the right to a
tribunal over said immunity ...»
The cases were eventually dismissed,
essentially because the complainants had
held an employment contract with an outside
firm, and not ESA. What matters, however, is
that the principle was firmly established, and
was so at the level of a continent.
The French judiciary has recently ruled on
the basis of that principle in a case involving
a former official of the African Development
Bank (ADB). The facts are simple: the official
was terminated in 1995 “in the framework of ‘involuntary separations’ implemented by
ADB under a reorganisation and redeployment
programme” (quoted from the judgement
of the Court of Appeals). At that time,
ADB only had a system of review of administrative
decisions by a Staff Appeals Board
making a recommendation to the President of
the Bank. An “in-house” Administrative Tribunal,
whose decisions are binding, was
established with effect from 1 January 1998,
though, but the decision-making bodies took
great pains – so to speak – to exclude from its
jurisdiction all cases that had arisen before
that date.
The official, Mr. Alexis Degboe, thus
brought an action with the Paris Labour
Court to claim an indemnity in lieu of termination
notice, payment of allowances in
arrears and compensation for dismissal without
real and effective justification. The Court
declared itself competent, Mr. Degboe being
a French national, and ruled in his favour.
ADB appealed, but to no avail. In its judgement
of 7 October 2003, the Court of Appeals
indeed found that:
“the application of jurisdictional immunity to the dispute between Mr.Degboe and ADB would infringe the very substance of his ‘right to a tribunal’, and he would be the victim of a denial of justice; moreover, the fact that ADB is forced to defend itself before a French Court on the merits of the dispute over the dismissal of Mr. Degboe is not such as to impair ADB’s efficient functioning.”
The case was then brought to the Supreme Court (Cour de cassation). In its decision of 25 January 2005, the Court affirmed the Court of Appeals’ ruling:
“whereas the African Development Bank may not assert jurisdictional immunity in its dispute with its dismissed worker since at the material time it had not established a tribunal competent to entertain complaints of this nature, for the inability for one party to refer its claim to the competent judge for a ruling and to exercise a right vested onto him by international public order constitutes a denial of justice which in turn establishes the competence of the French Judiciary when there is a connection with France.”
This is not the first time that a national tribunal
accepts to hear a complaint involving
an international institution despite the jurisdictional
immunity that the latter
may adduce. It would seem, however,
that it is the first time that a
Supreme Court has confirmed the
primacy of the right to a tribunal
over said immunity.
The decisions of the French
courts are fully relevant to international
Geneva. On the one hand, the
headquarters agreements signed
with the Swiss Confederation generally
provide that the international
institutions must take the necessary
steps to ensure the satisfactory settlement
of any disputes arising from
contracts to which they are party;
this provision cannot but apply to
employment or service contracts
and it is only meaningful if any failure
is remedied by an ex judicio
waiver of the immunity. On the
other hand, Switzerland has recognized
the competence of the European
Court of Human Rights, and
the Waite and Kennedy decision is
thus also binding upon her.
In any event, that “[e]veryone is
entitled in full equality to a fair and
public hearing by an independent
and impartial tribunal” is a human
right (Article 10 of the Universal
Declaration of Human Rights),
whereas jurisdictional immunity is
only a right granted for purposes of
convenience. The decisions of the
French judiciary are therefore of
worldwide significance.
But what is the practical meaning of the judgements?
For one, the Executive Heads of
the many organizations which have
not yet created or recognised a tribunal
are warned that they must do so; and,
by the way, a tribunal is an instrument for
both parties for it sets out the law to both the
staff and management (and member States).
Let us be clear: an internal appeals board
making recommendations to the Executive
Head is not sufficient. The French Court of
Appeals in fact noted that “the dispute has
thus been examined solely by the ADB President;
it is common ground that Mr. Degboe
has no other recourse to effectively safeguard
his rights” (our emphasis). In some cases, the
credibility – independence and impartiality –
of an “in-house” tribunal may also be successfully
challenged before a national Court.
For another, some categories of personnel,
particularly those on precarious contracts, are
told that they are not deprived of legal protection,
even where their organization deploys
efforts to convince them of the opposite (for
instance by stipulating in the employment contract
that the Staff Rules – and thus the recourse
procedure – are not applicable to them).
The Administrative Tribunal of the International
Labour Organisation also did so in
1998, but somewhat timidly, in judgement
No. 1118 (Cissé v. ILO). But, in these times
when precarious employment is made the
rule, the ruling of the French Supreme Court
is most welcome.
