Chapter VIII. Decisions of national tribunals

1. Argentina

   In re PEDRO DANIEL WEINBERG: DECISION OF 15 JANUARY 1980

   Case referred to the Supreme Court by the judge of first instance because the person concerned was an international civil servant — Conclusions of the Court regarding the legal status of the person concerned in view of his nationality and the limited character of the privileges and immunities granted to international civil servants — Referral of the case to the judge of first instance

   The case concerned an expert of the Inter-American Centre for Research and Documentation on Vocational Training, a body attached to the ILO, against whom criminal proceedings had been instituted. The judge of first instance had declared himself to be incompetent because of the legal status of the person concerned and had referred the case to the Supreme Court.

   The Court, referring to the information provided by the ILO Office in Buenos Aires and by the Argentine Ministry of Foreign Affairs, ruled that since the person concerned was an Argentine national employed in a technical post in an international agency and did not have the status of a diplomatic agent stricto sensu, did not represent the Organization and did not have full immunity, criminal proceedings instituted against him in connexion with an act unrelated to his professional activities did not fall within the original competence of the Court. It added that, without prejudice to the foregoing, the question of the existence and scope, in the case concerned, of immunity from arrest or any other privilege which the person concerned might claim in accordance with the applicable legal rules' should be settled by the competent judge, to whom it therefore referred the case.

2. Switzerland

   (a) CANTONAL COURT OF THE CANTON OF VAUD (INSURANCE COURT)

   X. v. EQUALIZATION FUND OF THE CANTON OF VAUD: JUDGEMENT OF 21 NOVEMBER 1979

   Swiss employee of the United Nations participating in the United Nations Pension Fund — Mandatory participation in the national old-age insurance scheme — Exemption from such participation accorded only when the combined contributions would constitute an excessive burden for the person concerned

   The plaintiff, a Swiss national employed by the United Nations in Geneva and domiciled in the canton of Vaud, had requested the Equalization Fund of the canton of Vaud to exempt him from participation in the Swiss old age and survivors' insurance scheme because the combined contributions to that Fund and the United Nations Pension Fund would constitute an excessive burden for him. In support of his request he had produced a certificate stating that he was a participant in the United Nations Pension Fund and paid to that institution a contribution equal to 7 per cent of his salary. Having been requested by the cantonal Fund to state the amount of the salary from which the 7 per cent contribution was deducted, he had omitted to provide that

   information and his request for exemption from payment of his contributions to the old age pension scheme had therefore been rejected.

   Before the Court, the plaintiff invoked the practice followed by the Equalization Fund of the canton of Geneva, which automatically exempts international civil servants of Swiss nationality if they present a certificate confirming that they are participants in the pension fund of an international organization. According to the plaintiff, it was unacceptable that a Swiss international civil servant should be treated differently according to whether he had his domicile in the canton of Vaud or the canton of Geneva. He likewise invoked the Headquarters agreement concluded between the Swiss Confederation and the United Nations.2 Lastly, he submitted to the Court the certificate which the cantonal Fund had requested of him, indicating the amount of his salary and of his contribution to the Pension Fund.

   The Court reviewed the legislation and regulations governing the matter. It concluded that the plaintiff, a Swiss national, could not be exempted from the mandatory Swiss insurance scheme unless his contributions to that scheme, combined with his contributions to the United Nations Pension Fund, constituted an excessive burden. With regard to the Agreement between the Swiss Confederation and the United Nations invoked by the plaintiff, the Court concluded that it could not be deduced from any of the provisions of that Agreement that Swiss employees of the United Nations were entitled to exemption from the obligation to contribute to the Swiss old age insurance scheme.

   With regard to the concept of an excessive financial burden, the Court recalled that the Federal Insurance Court had had occasion to specify that that concept did not imply a state of want and that the burden could be considered excessive if the simultaneous payment of two contributions involved the insured in serious financial difficulties. According to the judicial practice of the Federal Insurance Court, in 1962, combined contributions representing a total of 17 per cent of the salary of the insured had not constituted an excessively heavy burden provided that the insured was left with an annual income of 29,000 francs for himself and his family. In the present case, the Court concluded that the condition of an excessively heavy double burden had clearly not been fulfilled, since the two contributions combined had represented 16.4 per cent of the plaintiff's salary in 1969 and 15.9 per cent in 1968. In view of the amount of the plaintiff's salary and the fact that he was a bachelor, the Court considered that the combined contributions did not constitute an excessive burden in his case.

   With regard to the practice of the Fund of the canton of Geneva invoked by the plaintiff, the Court considered that neither the Fund of the canton of Vaud nor the Court itself was bound by that practice. The Court observed, however, that the guidelines applied in Geneva deviated from normal legal and juridical practice, so that the plaintiff could not invoke that practice in the canton of Vaud to prove that he had been the victim of unequal treatment.

   The Court therefore rejected the appeal and confirmed the contested decision.

   (b) CENTRAL COURT OF THE CANTON OF VAUD

   (CRIMINAL COURT OF CASSATION)

   X. v. Ministere public: DECISION OF 19 MAY 1979

   Immunity from criminal jurisdiction accorded to international civil servants and members of their families — Obligation of the judge pronouncing on the merits to consider the status of an accused person falling within that category — Silence of the judgement on this point renders it null and void

   By a judgement of 27 February 1979, the Juvenile Court had fined the son of an international civil servant 50 francs with suspended execution of sentence for causing a fire through negligence. On appeal, the father of the accused had drawn attention to the fact that his son was the holder of

   a card issued by the Federal Political Department stating that he had been accorded inviolability and immunity from criminal, civil and administrative jurisdiction.

   The Criminal Court of Cassation observed that the judgement stated "the father is an international civil servant employed by the United Nations in Geneva". The Court concluded that in those circumstances, the first judge should have automatically considered the status of the accused and that, since he had not done so, the judgement v/as tainted by irregularities that rendered it null and void. There were therefore grounds for automatically quashing the judgement and referring the case back to the Juvenile Court so that it could determine whether the accused enjoyed immunity from criminal jurisdiction and, if appropriate, request that that immunity be waived.

   The Criminal Court of Cassation thus automatically quashed the judgement of the Juvenile Court and referred the case back to that Court for a new investigation and a new judgement as indicated in the preamble.

3. United States of America

   (a) NEW YORK SUPREME COURT: APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT

   SHAMSEE v. SHAMSEE: DECISION OF 19 MAY 19803

   Appeal of the United Nations Joint Staff Pension Fund et al. from orders inter alia denying a motion

   to vacate prior orders holding the Fund and its Secretary in contempt of court for non-compliance with a sequestration order relating to the pension entitlement of a retired employee of the United Nations — Competence of the courts of the United States to decide on questions of immunity from legal process under treaties and statutes of the United States — Immunity of the United Nations Joint Staff Pension Fund and its Secretary from the sequestration order under the applicable federal law

   The case concerned the estranged wife of a retired employee of the United Nations, who had obtained in 1976 a sequestration order against her husband. As a participant in the United Nations Joint Staff Pension Fund, the husband received from the Fund a pension which was his chief remaining asset in the United States. The Fund's Secretary had declined to comply with the sequestration order, invoking immunity from legal process for the Fund and for himself in his official capacity under the Convention on the Privileges and Immunities of the United Nations and under the International Organizations' Immunities Act, and had as a result been held, together with the Fund, in contempt of court.

   A stay of the Secretary's arrest had subsequently been granted by the Supreme Court at Special Term pending a determination of the question of immunity. In this connexion two affidavits were submitted to the court, one from the Legal Counsel of the United Nations (attesting to the fact that the Fund is an organ of the United Nations, regulated by the General Assembly, that its assets are the property of the United Nations, immune from process by virtue of treaty and statute and that the Secretary of the Fund is likewise immune for acts performed in his official capacity) and the second from an official of the State Department...