AA, BB, CC, e DD v. Council of Europe

This case concerns a claim brought by four plaintiffs against the Council of Europe seeking compensation for alleged patrimonial and non-patrimonial damages resulting from the European Court of Human Rights (ECtHR) declaring inadmissible their complaint. The plaintiffs argued that this inadmissibility decision violated their rights under Articles 6 and 13 of the European Convention on Human Rights (ECHR), causing significant harm with direct effects in Portugal, their residence.

The issue before the Supreme Court was whether the Council of Europe enjoys jurisdictional immunity before Portuguese courts. Both the trial court and the Court of Appeal had upheld the Council’s immunity, dismissing the plaintiffs’ claims. The plaintiffs contested this, claiming the Council’s immunity was not absolute and that Portuguese tort law on extra-contractual liability should apply.

The Supreme Court grounded its decision on Portugal’s ratification of the 1949 Statute of the Council of Europe and the 1949 General Agreement on Privileges and Immunities, which confer functional immunities necessary for the Council to perform its duties. Specifically, Article 40(a) of the Statute grants immunity to the Council in member states’ territories, and Article 3 of the General Agreement provides immunity from jurisdiction and execution, unless expressly waived by the Committee of Ministers.

Rejecting the plaintiffs’ argument that the Council’s legal capacity to be a party in court conflicted with immunity, the Court clarified that legal capacity and immunity are distinct and compatible concepts. The Court emphasized the functional nature of immunity, designed to safeguard the organization’s independence and operational effectiveness, thus preventing national courts’ jurisdiction from interfering with its functions.

Further, the Court noted that the ECtHR, as a constituent organ of the Council of Europe, acts within the organization’s essential functions. Therefore, its decisions are protected by immunity under international law. Subjecting the ECtHR’s rulings to review by national courts would contradict the European human rights system’s logic and violate Portugal’s international commitments.

The Court distinguished the immunity of international organizations from state immunity, explaining that the former rests on the principle of functional necessity, ensuring independence from member states’ interference. This immunity extends to judicial acts of the ECtHR exercised in its mandate.

The Court held inapplicable the provision of the Portuguese Civil Procedure Code expanding national courts’ international jurisdiction in cases of denial of justice. According to it, the difficulty of litigating abroad did not override the Council’s internationally recognized immunity, especially as the Convention system includes internal review mechanisms, such as petitions for reconsideration before the ECtHR or submissions to the Committee of Ministers. Lastly, the Court rejected applying Portuguese law on extra-contractual civil liability of public entities to the Council of Europe, given its status as an international organization outside the scope of national public law.

In conclusion, the Supreme Court unanimously upheld the lower courts’ decisions, affirming that jurisdictional immunity prevented the claim from proceeding. With immunity established, the Court found it unnecessary to examine other claims raised by the plaintiffs.