Database
The immunities of States and international organisations
This database contains the original national contributions bringing together information on The immunities of States and international organisations
Information on the contribution
- Member State
- Portugal
- Themes
- Type of document
- Jurisprudence
- Permanent link to the contribution
- http://www.cahdidatabases.coe.int/C/Immunities/Portugal/2002/222
- Translations
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Database of the CAHDI "The immunities of States and international organisations" - contribution of Portugal - Jurisprudence of 13/11/2002
Database of the CAHDI "The immunities of States and international organisations" - contribution of Portugal - Jurisprudence of 13/11/2002
A. (individual) v. Israel (State)
Author(ity)
Supreme Court (Supremo Tribunal de Justiça) – Appeal
Date of the decision, of the judgment
13/11/2002
Points of law
- a foreign State does not enjoy immunity from jurisdiction in a case brought against it by a domestic servant of the ambassador’s residence claiming that she was unlawfully dismissed.- such contractual relationship is ruled by Portuguese law similarly to other labour contracts for the performance of domestic services celebrated with any other private person.
Summary of the case
In an appeal before the Supreme Court by an individual against the State of Israel, the Court considered that:The customary rule of international law according to which foreign States enjoy immunity from jurisdiction in local courts has not been derogated by the Constitution of the Portuguese Republic of 1976, since that rule does not contradict any of the fundamental constitutional norms.
The formulation of such rule that is in accordance with the Portuguese Constitution is the narrow one, restricting immunity to acts jure imperii and excluding acts practised jure gestionis; i.e. immunity does not encompass acts practised by the foreign State that could have been performed by a private person, but only those that manifest its sovereignty.
The scope of the above-mentioned rule and the criteria to distinguish the different types of activities are not fixed and evolve in accordance with the practice, namely of the courts, of the different States that compose the international community.
Concerning labour disputes, notably cases arising from unlawful dismissal, such State practice has not recognised State immunity when the worker is subjected to an hierarchy and does not have independent and command functions in the organisation of the civil service of the defendant or functions of authority and representation.
A foreign State does not enjoy immunity from jurisdiction in a case brought against it by a domestic servant claiming that she was unlawfully dismissed, when such activity was being performed at the ambassador’s residence and consisted essentially in house cleaning and preparation of meals.
Such contractual labour relationship is ruled by Portuguese law similarly to other labour contracts for the performance of domestic services celebrated with any other private person.
