S v India

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.

State immunity Jurisdictional immunity Employment dispute Locally recruited employee of foreign embassy Employee a national of neither sending State nor receiving State Claim for dismissal Entitlement of foreign State to immunity Distinction between sovereign and non-sovereign activities Distinction between senior and subordinate employees European Convention on State Immunity, 1972 Whether Convention rules applicable to non-parties State practice

Diplomatic relations Immunity Embassy technical and administrative staff Right to institute proceedings in courts of receiving State Whether authorization of sending State required National of neither sending nor receiving State Vienna Convention on Diplomatic Relations, 1961, Article 32(3) Sources of international law Treaties European Convention on State Immunity, 1972 Whether declaratory of existing rules of customary international law Whether applicable to third States The law of Switzerland

Summary: The facts:In 1957 the Indian Embassy in Berne hired S, an Italian national, to work as a radio-telegraph operator. In time S was moved from technical tasks to office work, including translation and correspondence. From 1976 his functions were limited to purely clerical duties and his employment was terminated in 1979. Following his dismissal, S lodged a claim for 20,000 Swiss francs. The Court of Appeal of Berne held that, whilst India was not entitled to invoke State immunity, the diplomatic immunity of the claimant prevented him from instituting proceedings before the Swiss courts. S appealed to the Federal Tribunal.

Held:The appeal was allowed.

(1) Pursuant to Article 31(1) of the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoyed immunity from the civil jurisdiction of the receiving State. But neither this nor any other provision of the Convention required the consent of the sending State for the institution of judicial proceedings by such an agent. On the contrary, Article 32(3) of the Convention, which precluded a diplomatic agent who had instituted proceedings from invoking immunity in respect of a counterclaim connected with the principal claim, implied that a diplomatic agent had the right to institute proceedings without the authorization of the sending State.

(2) A foreign State, acting in the exercise of its sovereign powers, was not subject to the jurisdiction of the municipal courts. The nature of the legal relationship at issue was decisive. In this case any private individual could have hired the claimant as a radio-telegraph operator. The purpose of the act was not the decisive factor for determining its nature. It was therefore not sufficient to state that the maintenance of a mission related to the sovereign powers of the sending State so that the hiring of personnel for such a mission automatically constituted an act performed jure imperii.

(3) A distinction was to be drawn between members of missions exercising senior functions and subordinate employees. In the case of subordinate employees who were not nationals of either the sending State or the receiving State and had been recruited locally, it was perfectly acceptable to subject their employment relationships to the jurisdiction of municipal courts as this did not interfere with the performance of the tasks of the Embassy. Whilst it was open to question whether a radio-telegraph operator fulfilled subordinate functions, it was clear that the clerical functions subsequently performed by the claimant for a number of years were indeed subordinate.

(4) The European Convention on State Immunity did not apply in relations between Switzerland and India. Although the Convention had been referred to in the jurisprudence of the Federal Tribunal as expressing the contemporary direction of international law, this did not indicate that it reflected the present state of customary international law so that no decisive conclusions could be drawn from its provisions in this case. The practice of Switzerland and other European States indicated that the employment relationship at issue was not regarded as being governed by jus imperii. The Indian Ambassador had stated that it was general practice for all members of the administrative and technical staff of a diplomatic mission to be regarded as Government officers whose position could not be modified by contractual stipulation. But this was not decisive since it had not been established that this alleged practice had been brought to the knowledge of the claimant prior to the conclusion of the contract so as to enable it to be relied upon against him.

The following is the text of the judgment of the Court:

A.By a letter of 11 December 1957 the Indian Embassy in Berne offered to employ S, an Italian national, as a radio-telegraph operator. S, who until that time had lived in Rome, had travelled to Switzerland as a tourist in November 1957 and took up his new employment on 13 January 1958 In the course of time, S performed fewer and fewer technical tasks and was moved instead to various forms of office work including the transposition of telex messages in technical language into good polished English, the translation of French newspaper reports and Italian correspondence into English and photography. From 1976 his functions were limited to those of an office clerk. The employment relationship was finally terminated on 30 June 1979.

B.Following his dismissal S lodged a claim for 20,000 Swiss francs against the Indian State, on the basis of his contract of employment. The Court of Appeal of the Canton of Berne limited its consideration of the case to the preliminary issue of the applicability of State and diplomatic immunity. On 25 May 1983, without considering the substance of the case, the Court of Appeal rejected the claim on the ground that, although the defendant was not entitled to State immunity, the claimant was covered by diplomatic immunity so that he was not subject to the jurisdiction of the Federal Swiss courts or the courts of Berne.

The claimant has appealed and contends that the decision of the Court of Appeal should be quashed, the jurisdiction of the Swiss courts upheld and the case remitted to the cantonal court for a decision on the merits. The Federal Tribunal allows the appeal.

From the grounds of the judgment

2.The Court of Appeal declined to exercise jurisdiction on the basis that the claimant was...

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