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KLARA POLACKOVA VAN DER PLOEG
CYIL 5 ȍ2014Ȏ
performance of the functions of the diplomatic mission, and the Russian Federation
therefore enjoyed immunity pursuant to the Vienna Convention. Specifically, the
building of the mission enjoyed protection by virtue of Article 22, which guarantees
the inviolability of the premises of the mission. This inviolability would not be ensured
if the Russian Federation were prohibited from entering the Russian Embassy as
requested by Ms. Popper. Consequently, the Supreme Court concluded that regardless
of the ownership of the Popper’s Villa, the Supreme Court concluded that Czech courts
do not have jurisdiction to decide on her preliminary measures request.
28
3. Analysis of the Law of State Immunity as Applied by Czech Courts
The three leading Czech cases have dealt with some of the more difficult and
interesting scenarios that arise within the law of State immunity: (i) immunity
within the context of employment at an embassy; (ii) immunity in a tort case;
and (iii) immunity from enforcement measures with respect to the premises of a
diplomatic mission.
Immunity prevents one State from adjudicating the dispute of another State.
In the most general terms, it is an international law rule that bars the exercise of
territorial jurisdiction by one State over another State. It thus represents a departure
from the principle of territorial sovereignty and the jurisdiction that flows from it.
29
Since the late 2000’s, the Supreme Court of the Czech Republic has articulated
and enforced the restrictive doctrine of State immunity within the Czech Republic,
granting immunity to foreign States only in cases involving the exercise of sovereign
authority
(acta jure imperii)
. Yet, the State immunity regime is still largely underdeveloped
and many issues remain open for judicial elaboration in future cases.
3.1 Domestic Framework for Application of State Immunity
Although the Czech Republic is obliged to grant immunity to foreign States
by virtue of general international law, Czech courts have had to deal with the issue
of jurisdictional immunities of States formally on the basis of a domestic statute.
Until January 2014, the particular provision was § 47 of Act No. 97/1963 Coll.,
on International Private and Procedural Law, (the “1963 Act”),
30
which was also the
legal basis for all the leading cases. As of 1 January 2014, this provision was replaced
with § 7 of Act No. 91/2012 Coll., on Private International Law (the “2012 Act”),
which repealed and replaced the 1963 Act as a part of a large re-codification of Czech
civil law.
31
28
The Supreme Court also confirmed its previous position that Article 31 of the Vienna Convention is
inapplicable because the defendant is a foreign State and not a diplomatic agent.
29
See, Jurisdictional Immunities of the State
(Germany v. Italy), International Court of Justice, Judgment
of 2 February 2012, para. 57.
30
The text of § 47 Sec. 1 of the 1963 Act is reproduced at ft 14 above.
31
Act No. 91/2012 Coll., on Private International Law, § 7:
“
(1)
Foreign states shall be exempted from the
jurisdiction of Czech courts in proceedings arising from their conduct and acts carried out in the exercise
of their sovereign, governmental, and other public powers and functions, including their property, which