Points of law

The Supreme Court of Serbia, deciding upon the request for review, found that the lower-instance courts had correctly applied the provisions of the Law on Litigation, the Vienna Convention on Consular Relations of 1963 and the Consular Convention with the PR of China of 1982.

The Supreme Court of Serbia also found that the lower-instance courts, in line with the opinion of the Federal Ministry of Justice, properly ruled that the dispute to establish responsibility for the damage caused by the diplomatic agent of a foreign State was not an act of a private legal nature for which the foreign State concerned would be responsible and for which the domestic court could find that it had jurisdiction.

Summary of the case

In August 1999, BB filed a complaint to the First Municipal Court in Belgrade against the Serbian insurance company “D” and the People’s Republic of China for compensation for the damage caused in a car crash. The crash involving the vehicle driven by the applicant and the vehicle driven by the Counsellor of the Chinese Embassy was caused by the employee of the Chinese Embassy. The Chinese vehicle was insured by “D” insurance company.

The first-instance Court dismissed the complaint because of the immunity enjoyed by the Embassy of the PR of China, referring to article 26 of the Law on Litigation and the opinion of the Federal Ministry of Justice. The opinion of the said Ministry stated that according to international law, a foreign diplomatic or consular mission does not enjoy immunity before domestic courts in the performance of private acts, and that it enjoys immunity only when acting as the holder of sovereign power.

The District Court in Belgrade, acting in the second-instance, rejected the applicant’s appeal and confirmed the first-instance ruling of the First Municipal Court in Belgrade.

Sources

Judgment of the First Municipal Court in Belgrade of December 2002, Judgment of the District Court in Belgrade of October 2003 and the Judgment of the Supreme Court of Serbia of November 2004.

Additional information (explanations, notes, etc.)

The Federal Ministry of Justice, in its opinion given to the first-instance Court in June 2000, stated that the question of immunity of foreign states concerning the jurisdiction of domestic courts in the legal system of the (then) FRY was not more specifically regulated by international conventions (the FRY was not a party to the European Convention on State Immunity) nor was it regulated more specifically by the domestic regulations, as well as that this immunity should be viewed bearing in mind the existing rules of international law and the theory of limited immunity of states which was dominant in contemporary doctrine and international court practices.

According to this concept, when establishing the legal immunity of foreign countries, both for litigation and execution purposes, a distinction should be drawn between official actions of a foreign state when it acts as holder of sovereign public authority (acts de iure immperii) over which the domestic state cannot declare its jurisdiction.

Since the case in point was a dispute to establish responsibility of the sending State for the damage caused by its diplomatic agent in the receiving State, that, in their opinion, was not the case of responsibility based on the private legal actions of a foreign state over which a domestic court could declare its jurisdiction.