Information Note on the Court’s case-law No. 36
November 2001
McElhinney v. Ireland [GC] - 31253/96
Judgment 21.11.2001 [GC]
Article 6
Civil proceedings
Article 6-1
Access to court
State immunity bar on claim for damages in respect of acts of foreign soldier: no violation
Facts – The applicant, an Irish police officer (garda), accidentally drove into the barrier at a British army check-point when crossing from Northern Ireland into the Republic of Ireland. The vehicle which the applicant's car was towing apparently hit a British soldier, who was thrown on to the tow-bar, although the applicant maintained that he was unware of this. The soldier fired a number of shots and the applicant, fearing a terrorist attack, drove on. He drove to a police station, where the soldier ordered him to get out of the car and stand against a wall with his hands up. When the applicant turned to explain that he was a police officer, the soldier attempted to fire his weapon which, however, jammed. The applicant was arrested by the Irish police on suspicion of having driven after consuming excess alcohol and was later convicted of having refused to provide a blood or urine sample. He lodged an action in the Irish High Court against the soldier and the British Secretary of State for Northern Ireland. However, on the application of the latter, who invoked sovereign immunity, the High Court struck out the summons on the ground that the applicant was not entitled to bring an action in the Irish courts against a member of a foreign government. The applicant's appeal was dismissed by the Supreme Court. He did not pursue the proceedings against the soldier.
Law – Article 6 § 1: Whether a person has an actionable domestic claim may depend not only on the substantive content of the right as defined under national law but also on the existence of procedural bars. It would not be consistent with the rule of law or the basic principle underlying Article 6 § 1 if a State could, without control by the Convention organs, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities on large groups or categories. In the present case, the action which the applicant intended to pursue was well known to Irish law, namely an action for damages for assault, trespass to the person, negligence and breach of duty, and the grant of immunity did not qualify a substantive right but constituted a procedural bar on the courts' power to determine the right. There thus existed a serious and genuine dispute over civil rights and Article 6 was applicable.
The right of access to court may be subject to limitations, provided they do not impair the very essence of the right. Such limitations must pursue a legitimate aim and be proportionate. The grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States. As to proportionality, the Convention should as far as possible be interpreted in harmony with other rules of international law, including those relating to State immunity. Thus, measures taken by a State which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court. In that respect, while there appears to be a trend in international and comparative law towards limiting State immunity in respect of personal injury caused by an act or omission within the forum State, this practice is by no means universal and indeed the trend may primarily refer to "insurable" personal injury, that is incidents arising out of ordinary road traffic accidents, rather than matters relating to the core area of State sovereignty such as the acts of a soldier on foreign territory which, of their very nature, may involve sensitive issues affecting diplomatic relations between States and national security. Certainly, Ireland is not alone in holding that immunity applies in this area and it is not possible to conclude that Irish law conflicts with the general principles of international law. Moreover, in the present case it would have been open to the applicant to bring an action in Northern Ireland against the British Secretary of State for Defence. In these circumstances, Ireland could not be said to have exceeded the margin of appreciation.
Conclusion: no violation (twelve votes to five).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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