Cudak v. Lithuania and the European Court of Human Rights approach to the state immunity doctrine.
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The application of the state immunity doctrine with regard to the guarantee of access to court in the case-law of the European Court of Human Rights (hereinafter referred to as the ECHR) has been proved to be a complicated issue. In the ECHR’s case-law before the case Cudak v. Lithuania, the application of the state immunity doctrine had been considered as a proportionate restriction of the right of access to court even in cases of the realization of the protection of the jus cogens norm which was very much criticized by the scholars of international law. Thus, the referral of the case Cudak v. Lithuania to the Grand Chamber could or should change the ECHR’s case-law in this sphere or at least develop certain criteria which would afford ground for a more effective protection to the right of access to court in cases of the application of the state immunity doctrine despite the fact that this right is not absolute. However, the case Cudak v. Lithuania has not fully satisfied these aims. Contrary, the case Cudak v. Lithuania left much obscurity, giving a strong indication that, what regards the realization of the right of access to court, the state immunity doctrine is more a material than a procedural ban, since the argumentation given by the ECHR in this case does not guarantee practical protection of this right. Moreover, the case Cudak v. Lithuania allows, in a way, to cast doubts on its compliance with the rules of international law as it concerns the retrospective application of the 2004 UN Convention on Jurisdictional Immunities of States and their Property which is not yet in force even today. Therefore, at the end of this article the author presupposes that a better way of ensuring the guarantee of access to court in cases of the application of the state immunity doctrine would be to leave this issue of a clear political shadow to be solved between the two states by means of diplomatic negotiation.
- Straipsniai / Articles