461 / 532
445
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
assess whether the tortious act would constitute
acta jure gestionis
or
acta jure imperii
.
However, again, a narrow reading of the relevant Denied Entrance in the Austrian
Cultural ForumCase seems to be warranted considering, that one of the basic principles
of statutory interpretation is to assign meaning that is in accordance with international
law unless the Czech courts specifically hold otherwise.
3.4.3 Differentiation between Immunity from Jurisdiction and Immunity
from Enforcement
Two aspects of State immunity must always be distinguished: immunity from
jurisdiction and immunity from enforcement.
106
The fact that a court may be competent
to exercise jurisdiction with regard to a foreign State does not automatically entail that
the court may take enforcement measures against the State or any property of that State
situated in the territory of the forum.
107
The Popper’s Villa Case, in contrast to the other two leading cases, involved an
issue of immunity from enforcement. The Czech Supreme Court, however, did not
in any way distinguish one from the other, as if the same legal principles governed
both.
108
Yet, enforcement immunity has not undergone changes in the same way as
jurisdictional immunity and is still far-reaching.
109
In general, execution is permissible
only against the property used for commercial or private purposes, but not against
property used for sovereign or public purposes. Additionally, some categories of
State property, such as diplomatic, consular and military property, are completely
immune from execution.
110
The ‘purpose’ test, which has been largely discredited in
the context of immunity from jurisdiction, reemerges here as a determinative factor.
106
Stoll P.-T., State Immunity, para. 50; Yang X., State Immunity in International Law, 343-361, 422;
Wefelscheid M.,
Vollstreckungsimmunität Fremder Staaten
(P. Lang 2013).
107
Some domestic courts, most notably the Swiss Federal Tribunal, have taken the view that execution is
a logical consequence of adjudication.
See, Greece v. Julius Bär
, (1956) 23 ILR 195, 198, Ground 10.
However, even in the absence of immunity from jurisdiction, these courts would nevertheless hold the
execution in certain instances impermissible.
See
, for example,
Z v. Geneva
, (1990) 102 ILR 205, 207.
Admittedly, qualifying certain proceedings as one or the other is at times rather complex.
See
, Fox H.
and Webb P., The Law of State Immunity, 496-497.
108
Yet, already in a pre-1989 opinion, the Czechoslovak Supreme Court recognized the distinction
between immunity from jurisdiction and immunity from enforcement, when it stated that the
submission of the foreign State to the jurisdiction of Czechoslovak courts does not entail that
the foreign State also submits to the execution of any decision. Opinion of the Supreme Court of
the Czechoslovak Socialist Republic dated 27 August 1987, No. Cpjf 27/86. In contrast with the
1963 Act, the new 2012 Act now also explicitly mentions immunity from execution separately from
immunity from jurisdiction in § 7 Sec. 4. The provision is quoted at ft 31 above.
109
Jurisdictional Immunities of the State
(Germany v. Italy), International Court of Justice, Judgment of
2 February 2012, para. 113; Simma B. and Müller A., ‘Exercise and Limits of Jurisdiction’ in James
Crawford and Martti Koskenniemi (eds),
The Cambridge Companion to International Law
(Cambridge
University Press 2012), 151; Fox H. and Webb P., The Law of State Immunity, 479.
110
For example, in 1997, a Prague district court (admittedly before the Polish Embassy Driver Case’s
turn away from absolute immunity) held a Palestinian embassy account immune from enforcement,
unless Palestine consented to the enforcement. Ruling of the District Court for Prague 6, case No. E
1426/97, dated 15 December 1997.