Pfarr v Anonymous

CourtFederal Labour Court (Germany)
Docket Number(Case No 17 SA 1468/11)

Federal Republic of Germany, Regional Labour Court (Berlin-Brandenburg) (LAG).

(Case No 17 SA 1468/11)

Pfarr
and
Anonymous

Diplomatic relations — Diplomatic immunity — Immunity from jurisdiction — Action by domestic servant seeking compensation for alleged acts by diplomat — Whether diplomat protected by diplomatic immunity — Whether immunity absolute — Whether immunity from both civil and criminal jurisdictions — Purpose of immunity — Whether immunity applicable in case of grave human rights violations — Whether diplomat deciding upon own immunity — Whether application of German law incorporating Vienna Convention on Diplomatic Relations, 1961 violating constitutional rights under Basic Law for Federal Republic of Germany — Whether diplomat exempt from jurisdiction of German courts

Human rights — Grave human rights violations — Whether diplomatic immunity applicable — Whether infringement of constitutional guarantees — Property rights — Right of access to court — Whether necessary that plaintiff's claim enforceable in sending State — Compensation — Rule of law principle — German law incorporating immunity — Whether violating constitutional rights — Whether diplomat exempt from jurisdiction of German courts

Relationship of international law and municipal law — Treaties — Application — Vienna Convention on Diplomatic Relations, 1961 — German law incorporating Article 31(1) of Vienna Convention — Relevance of public international law rules — Whether immunity applicable where grave human rights violations — Whether entitlement to immunity dependent on existence of alternative means of securing redress — Basic Law for Federal Republic of Germany — Constitutional guarantees — Whether law incorporating treaty unconstitutional — Whether diplomat exempt from jurisdiction of German courts — The law of Germany

Summary:1The facts:—The plaintiff, a legal successor of a domestic servant employed by the defendant, an accredited diplomat of the Saudi

Arabian embassy in Berlin, sought compensation for human rights abuses allegedly committed by the diplomat against her legal predecessor. The plaintiff maintained that the diplomat had mistreated his domestic servant by not providing her with appropriate food, housing conditions and annual leave. The defendant argued that he was exempt from the jurisdiction of the German courts on the basis of diplomatic immunity. He also maintained that the accusations against him and his family were unfounded.

On 14 June 2011, the Labour Court (Arbeitsgerichts Berlin) dismissed the plaintiff's claim, upholding diplomatic immunity for the defendant. It found that immunity applied even for grave human rights violations, maintaining that, if the claims were justified, the plaintiff could sue the defendant by claiming compensation against the State of Germany. The plaintiff appealed. She argued that the defendant, while immune from criminal prosecution, was subject to the jurisdiction of German courts with respect to civil actions, but that there was an exception to immunity in cases of grave human rights violations. She maintained that the application of immunity in those circumstances would deprive her of her constitutional rights, contravening her right to protection of property under Article 14 of the Basic Law for the Federal Republic of Germany, 19492 (“Basic Law”, GG), not providing her with compensation and preventing her access to justice, especially given her inability to bring her claims in Saudi Arabia due to conditions there. She also asserted that the rule of law principle under Article 20(3) would be violated. She requested that her case be referred to the Federal Constitutional Court for clarification as to the general rules of public international law and the constitutionality of Section 18 of the Courts Constitution Act (GVG),3 which incorporated the rules on immunity.

Held:—The appeal was dismissed.

(1) Members of diplomatic missions were immune from the jurisdiction of German courts pursuant to Section 18 of the Courts Constitution Act, which incorporated Article 31(1) of the Vienna Convention on Diplomatic Relations, 1961 (“the Vienna Convention”). The defendant benefited from immunity from criminal and civil (which included labour) jurisdiction. Diplomatic immunity served a legitimate purpose. It existed in order to protect the professional activity of the diplomats and of their missions and not the person of the respective diplomat. It could not be overridden by the fact that the allegation concerned violations of human rights, nor by specific rules of

public international law, no matter how serious those violations might be (paras. 16–18).

(2) The defendant was not subject to the jurisdiction of German courts. His immunity applied sine die for his official acts, but it ended with the final departure from the receiving State for any other acts, so the plaintiff could seek civil redress against him after this date. Immunity did not depend upon whether the case concerned enforcement of civil claims or criminal prosecution. Neither did it depend upon the severity of the claims brought against the defendant (para. 21).

(3) There was no need for the Court to decide under which circumstances and in which cases diplomatic immunity did not apply. It was for the receiving State to declare the respective diplomat persona non grata pursuant to Article 9 of the Vienna Convention; it was not for the diplomat to decide upon his own immunity (paras. 19–21).

(4) The granting of immunity did not violate the property rights or the right of access to a court of the plaintiff. Neither did it violate the rule of law principle (paras. 23–6).

(5) The claims did not infringe Section 18 of the Courts Constitution Act. Immunity from German jurisdiction violated neither higher-ranked law nor the principle of the rule of law. The plaintiff's argument that she had no chance of enforcing her claim in Saudi Arabia did not justify a different conclusion. It was not certain that a claim would have been dismissed since it had not been made there. Neither...

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