Dr K. v. K.

The case concerns the immunities from civil proceedings of agents of international organizations and their relatives.

In particular, Dr. K., a citizen of the United States of America working as high-ranking official of the United Nations Development Organization (UNIDO) in Vienna, instituted a divorce proceeding before the Vienna District Court. Before the District Court, the wife invoked her immunity from legal process, established under the Headquarters Agreement concluded between Austria and UNIDO in 1967. Specifically, Article 28 provided that, in addition to the functional immunity recognized to UNIDO’s officials, “other officials having the professional grade of P-5 and above, and such additional categories of officials as may be designated, in agreement with the Government, by the Executive Director in consultation with the Secretary General of the United Nations on the ground of the responsibilities of their positions in the UNIDO, shall be accorded the same privileges and immunities, exemptions and facilities as the Government accords to members, having comparable rank, of the staffs of chiefs of diplomatic missions accredited to the Republic of Austria”.

The District Court rejected the plea of immunity and exercised its jurisdiction on the case. The Court of Appeal reached a similar conclusion, affirming that the wife of the UNIDO’s official cannot rely on the diplomatic immunity accorded to the relatives of UNIDO’s high-ranking agents. The wife challenged the decision of the Court of Appeal before the Supreme Court.

The Supreme Court held that Austrian courts had jurisdiction in the instant case. The Supreme Court ascertained that the applicant, as a high-ranking official of UNIDO and holder of a red card  (the diplomatic accreditation pass issued by the Austrian Ministry of Foreign Affairs)  enjoyed immunity from Austrian civil jurisdiction”. However, the Supreme Court reminded that  Article IX Paragraph 2 of The Introductory Act to the Austrian Jurisdiction Code establishes that Austrian jurisdiction extends to individuals who enjoy diplomatic privileges and immunities under the principles of international law, if and insofar as they voluntarily submit to the domestic courts. The Supreme Court also noted that, according to Article 32 Paragraph 3 of the Vienna Convention on Diplomatic Relations,  the diplomat cannot invoke immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim if he himself initiated proceedings. Therefore, by having initiated the proceeding before the District Court of Vienna, Dr. K had waived his personal immunity.

As regards the status of the wife, the Supreme Court clarified that, since she was not employed by the UNIDO,  her  immunity had to be derived from her status as the spouse of a UN official. However, as affirmed by the Supreme Court, the wife ceased to enjoy immunity if the couple have lived separately for a prolonged period of time and have dissolved their joint household, or in any case upon legal validity of the divorce decree.