CYIL 2014

STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS Supreme Court (naturally) made international law standards sound quite clear and unambiguous; yet, the State immunity regime is far from uniform. These questions are thus truly open in the sense that more than one legal solution is often available, and choices will have to be made. Overall, the Supreme Court’s decisions in the three leading cases are very broadly worded. As will become clear, they consequently require a narrow reading within the scope of the facts of each case; otherwise, they would in many respects completely depart from the international law standard and could potentially engage the State responsibility of the Czech Republic. Much refinement remains for further judicial development. In light of the imminent ratification of the UN Convention, the European Court of Human Rights’ (the “ECtHR”) practice, 77 and the position of the Czech government and legislature, 78 Czech courts might increasingly take into account the provisions of the UN Convention in their decision-making on State immunity. However, as the UN Convention will (still) not be binding law, Czech courts will be free to continue developing their independent jurisprudence and to develop the concept of State immunity as domestic courts have always done. The following section is intended to provide several examples of the questions left open by the three leading cases, in order to suggest the types of issues that the Czech courts will need to address in the future. 3.4.1 Employment Matters of Persons Involved in the Exercise of Public Authority In the Polish Embassy Driver Case, the Czech Supreme Court stated that Poland did not enjoy immunity from jurisdiction in Czech courts with respect to the employment termination dispute, because “in a case where a State acts not as a sovereign bearer of public authority, but as a juridical person in matters deriving from individual labor relationships characterized by the legal equality of their participants, the rules of of Czech constitutional law, only published treaties ratified by the Parliament and binding on the Czech Republic form part of Czech law. However, it would have been quite in order, and arguably even appropriate, for the courts to use the UN Convention as a persuasive authority, given that the Czech Republic and its organs are bound not to defeat the object and purpose of the UN Convention by virtue of Article 18 of the Vienna Convention on the Law of Treaties from the moment of its signature. Additionally, Czech courts are required, under Article 1(2) of the Constitution, to interpret domestic law in accordance with the international law obligations of the Czech Republic ( See Judgment of the Constitutional Court of the Czech Republic dated 19 November 2008, case No. Pl. ÚS 14/07, para. 34). See also Stoll P-T, State Immunity, para. 15 and 23. 77 The European Court of Human Rights has been holding signatories to the UN Convention to its standards even if they did not ratify it, holding that the UN Convention expresses the state of custom, and the fact of signing confirms that the state in question did not object to the formation of that customary rule (and the application of the persistent objector doctrine is thus excluded). See , for example Case of Sabeh El Leil v France European Court of Human Rights, Application No. 34869/05, Grand Chamber Judgment of 29 June 2011, para. 58. 78 See Section 3.6 below.

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