EIT: Venäjän tuomioistuinten olisi tullut tutkia tarkemmin diplomaattisen koskemattomuuden ulottuvuus19.3.2013 | Oikeusuutiset
Euroopan ihmisoikeustuomioistuin (EIT) on Venäjää vastaan antamassaan tuomiossa katsonut, ettei venäläisten tuomioistuinten olisi tullut jättää tutkimatta väitettyyn velaksiantoon perustuvaa saatavaa pelkästään sillä perusteella, että velaksiottaja oli Pohjois-Korean edustustoon kuuluva, ja hänen väitettiin toimineen Pohjois-Korean edustajana.
The Court reiterated that it could not examine the part of the application directed against the DPRK since it was not a party to the European Convention. It further considered that the right of access to court could be subject to some restrictions, such as those generally accepted as part of the rule of State immunity. However, it would not be consistent with Article 6 if a State could arbitrarily remove from the jurisdiction of the courts a wide range of civil claims or confer immunities from civil liability on categories of persons.
Therefore, the Court had to determine whether the restriction on the right of access to court of Mr Oleynikov had been justified by the circumstances of the case.
The Court held that the limitation had pursued the legitimate aim of complying with international law in order to promote comity and good relations between States through the respect of national sovereignty. Nevertheless, the Court reiterated that Russia had signed the 2004 Convention on Jurisdictional Immunities of States and their Property, which endorsed the principle of restricted immunity when a State engages in a commercial transaction with a foreign natural person. Moreover, the President of Russia and the Supreme Commercial Court had both acknowledged that restrictive immunity had become a principle of customary law. Finally, the new Code of Commercial Procedure adopted in 2002 provided for restrictive immunity and the 1960 Treaty on Trade and navigation between the USSR and the DPRK provided for a waiver of immunity in respect of foreign trade transactions.
Despite the above-mentioned provisions, the Khabarovsk Regional Court had rejected Mr Oleynikov’s claim without examination. Indeed, it had applied absolute State immunity from jurisdiction without trying to establish whether the claim had related to acts of the DPRK performed in the exercise of its sovereign authority or as a party to a transaction of a private law nature. Therefore, the Court concluded that the rejection by the Russian courts of Mr Oleynikov’s claim concerning the repayment of his loan had been disproportionate and had impaired the very essence of his right of access to a court, in violation of Article 6 § 1.
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