GRAND CHAMBER

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31253/96 by John McELHINNEY against Ireland and the United Kingdom

The European Court of Human Rights, sitting on 9 February 2000 as a Grand Chamber composed of

Mr L. Wildhaber, President , Mrs E. Palm, Mr C.L. Rozakis, Sir Nicolas Bratza, Mr M. Pellonpää, Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr G. Ress, Mr L. Caflisch, Mr L. Loucaides, Mr I. Cabral Barreto, Mr K. Jungwiert, Mr B. Zupančič, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru, Mr E. Levits, Judges , Mr N. Kearns, Ad hoc Judge , and Mr P. Mahoney , Deputy Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 April 1996 and registered on 30 April 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision of 31 August 1999 by which the Chamber of the Third Section, to which the case had originally been assigned, relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),

Having regard to the observations submitted by the Irish Government as well as by the Government of the United Kingdom and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 9 February 2000,

Having deliberated on 9 February 2000, decides as follows:

THE FACTS

The applicant is an Irish citizen, born in 1944. He is a Garda (policeman) and resides in Greencastle , County Donegal. In the proceedings before the Court he is represented by Mr. P. Brennan, a solicitor practising in Dublin. At the oral hearing of 9 February 2000 he was represented by Mr M. Forde S.C. and Mr C. Bradley, Counsel, and Ms. A. O' Sullivan and Mr S. Groarke , Advisers.

The Government of the Republic of Ireland were represented by Mr R. Siev , Agent, Mr P. Gallagher S.C. and Mr D. Rossa Phelan , Counsel, and Mr R. Barrett , Adviser.

The Government of the United Kingdom were represented by Ms. S. McCrory , Acting Agent, Mr D. Lloyd Jones Q.C. and Mr. D. Anderson Q.C. , Counsel, and Mr O. Paulin and Ms. J. Foakes , Advisers.

The facts of the case, as they have been submitted by the parties, can be summarised as follows:

A. The particular circumstances of the case

The applicant claims that on 4 March 1991 he was assaulted by a member of the United Kingdom armed forces on active duty. The incident apparently occurred while the applicant was crossing a checkpoint at the Northern Ireland border, which was guarded by the soldier in question. At the time of the assault the soldier was allegedly on the territory of the Republic of Ireland. The applicant claimed that the soldier pointed a loaded gun at him and pulled the trigger. While there was a conflict of evidence as to the exact circumstances, it appears that the applicant drove through the checkpoint, towing a truck, and that the soldier was standing on the towbar and was carried across the border. The Irish Government claim that the soldier, before being carried over onto the territory of the Republic, had fired shots in Northern Ireland.

The applicant was subsequently prosecuted and convicted in Ireland for refusal to provide a blood or urine sample. Although no disciplinary proceedings were instituted against the applicant, he was transferred to another area.

On 29 June 1993 the applicant lodged in the High Court in Ireland a civil action for assault, trespass to the person, negligence and breach of duty against the person who had allegedly assaulted him and the United Kingdom Secretary of State for Northern Ireland. Summonses were issued against both defendants.

On 15 November 1993 the United Kingdom Government via its Irish solicitors informed the applicant that, if he considered that he had a valid claim, there was nothing preventing him from pursuing it in Northern Ireland against the proper body. On 15 December 1993 the Irish solicitors of the United Kingdom Government informed the applicant that there was no bar under Northern Ireland law to his taking proceedings in the courts of Northern Ireland against the competent authority.

On 13 January 1994 the applicant applied for permission to substitute the United Kingdom Secretary of State for Defence for the second defendant. On 21 January 1994 the Secretary of State for Northern Ireland, claiming sovereign immunity, applied for the summons to be set aside.

On 15 April 1994 a High Court judge granted the application of the Secretary of State, on the ground that the applicant was not entitled to implead the second defendant as a member of a foreign sovereign Government in the courts of Ireland. The applicant appealed arguing, first, that the doctrine of sovereign immunity did not apply to claims for damages for personal injury caused by torts taking place within the jurisdiction, secondly, that the principle of reciprocity should apply and the Irish court should not grant immunity to the United Kingdom in circumstances in which the courts of the United Kingdom, applying the State Immunity Act 1978, would not grant Ireland immunity and, thirdly, even if the doctrine of state immunity applied, it should yield in his case which consisted of an infringement of a constitutionally protected right.

In a judgment delivered on 15 December 1995, the Supreme Court noted that the acts complained of were unrelated to any commercial activity and did not come within the concept of acta jure gestionis . After reviewing, inter alia, United Kingdom, Canadian, Australian and American legislation and case-law and an article by Dr. Helmut Steinberger in the 1984 Encyclopedia of Public International Law, the Supreme Court held that it was not a principle of international law, which Irish courts had to apply in such circumstances, that the doctrine of sovereign immunity did not apply to tortious acts causing personal injury allegedly inflicted in the forum State by or on behalf of a foreign Government when such act is committed jure imperii .

It also considered that it did not have to decide whether the terms of the European Convention on State Immunity were part of domestic law. It was true that Article 11 of that treaty provided the following:

“A Contracting Party cannot claim immunity from the jurisdiction of a court of another Contracting Party in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred. ”

However, Article 31 of the same treaty provided as follows:

“Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting Party in respect of anything done or omitted to be done by or in relation to its armed forces on the territory of another Contracting State.”

Moreover, the Supreme Court considered that reciprocity was irrelevant in the actual context and that the principle of sovereign immunity did not contravene any of the applicant's constitutional rights. In the light of all the above, the Supreme Court rejected the applicant's appeal.

The soldier who had allegedly assaulted the applicant never responded to the applicant’s statement of claim. The applicant did not bring any proceedings to force the soldier in question to submit a defence. Nor did he apply for a judgment in his favour in default of a defence.

B. Domestic law and practice

1. The United Kingdom ratified the 1972 European Convention on State Immunity on 3 July 1979. Ireland is not a party to that Convention.

2. In Byrne v. Ireland and the Attorney General [1972] I.R. 241 the Supreme Court of Ireland held that the former prerogative from suit did not exist in Ireland after the enactment of the Constitution of the Irish Free State in 1922. The State was vicariously responsible for the tortious act one of its servants committed in the course of his employment and the courts had jurisdiction to entertain and determine an action brought by a plaintiff who claimed damages from the State in respect of that tort.

3. In its Schmidt v. the Home Secretary of the Government of the United Kingdom et al. judgment of 24 April 1997 the Supreme Court of Ireland held that the Commissioner and an individual agent of the Metropolitan Police (United Kingdom) were also entitled to rely on sovereign immunity before the Irish courts.

4. In Buron v. Denman (1848) 2 Ex. 167 it was held that the Crown could not be sued before the courts of the United Kingdom in respect of “acts of State” abroad.

COMPLAINTS

1. The applicant complains under Article 6 § 1 and Articles 5 and 13 of the Convention that, by invoking and applying the doctrine of sovereign immunity, the United Kingdom Government and the Irish courts denied him the right to a judicial determination of his compensation claim arising out of an incident in which he had been allegedly assaulted by a British soldier on the territory of the Republic of Ireland.

2. He also complains of a violation of Article 14 of the Convention because the doctrine of sovereign immunity would not apply in the case of a person suing before the British courts for an assault committed by an Irish soldier in the United Kingdom.

THE LAW

The applicant has submitted complaints under Articles 5, 6 § 1, 13 and 14 of the Convention both against Ireland and the United Kingdom.

Article 5 of the Convention guarantees everyone’s right to liberty and security of person.

Article 6 § 1 provides the following:

“In the determination of his civil rights and obligations … everyone is entitled to a … hearing … by a … tribunal …”

Article 13 provides the following:

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 provides the following:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

1. The applicant’s complaints under Articles 5 and 13 of the Convention

Submissions by the parties

The applicant submits that, since he could not sue the United Kingdom Government before the Irish courts for assault and trespass to person, there was a violation of Articles 5 and 13 of the Convention.

The Irish Government submit that any interference with Article 5 of the Convention could only be attributable to the defendants in the proceedings instituted by the applicant in Ireland, i.e. the soldier and the United Kingdom Government. They also submit that the applicant had effective remedies under Article 13 of the Convention because he could institute proceedings against the soldier and the United Kingdom Government before the courts of the United Kingdom.

The Government of the United Kingdom submit that the applicant has not shown why they should be accountable under the Convention for his alleged assault by the soldier on the territory of the Republic of Ireland.

The Court’s assessment

The Court notes that the application concerns neither the applicant’s detention in any of the two Contracting Parties nor his “security of person” within the meaning of Article 5 as interpreted by the Convention organs (cf. Bozano v. France judgment of 18 December 1986, Series A no. 111, pp. 23 and 26, §§ 54 and 60 and Application No. 10475/83, Dec. 9.10.84, D.R. 39, p. 246). Even assuming that the applicant may be considered as having exhausted domestic remedies in this respect – which is doubtful -, the Court considers that no appearance of a violation of Article 5 of the Convention is disclosed by the facts of the case. Moreover, the applicant does not have any “arguable claim” in this connection under Article 13 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicant’s complaints under Articles 6 § 1 and 14 of the Convention against the United Kingdom

Submissions by the parties

The applicant complains under Article 6 § 1 of the Convention that the United Kingdom Government, by pleading sovereign immunity, frustrated the action for damages he had brought against them before the courts of the Republic of Ireland. He submits that the United Kingdom Government are responsible because they claimed immunity while they could have waived it. In fact the United Kingdom claimed in Ireland an immunity that its own law does not give any other country. Although the Government of the United Kingdom told the applicant that he could have instituted proceedings in Northern Ireland, they did not waive the act-of-State defence.

The Government of the United Kingdom submit that they are not obliged under Article 1 of the Convention to secure the rights of persons out of their jurisdiction. The United Kingdom Government were not in a position to secure the applicant a fair trial in Ireland. In any event, the applicant could have instituted proceedings before the United Kingdom courts. The possibility of raising an act-of-State defence was ruled out by the letters that the United Kingdom Government had sent the applicant. The United Kingdom legislation on State immunity was irrelevant because State immunity does not operate on a basis of reciprocity.

The Court’s assessment

a) In so far as the applicant may be considered as complaining that the United Kingdom did not provide him with a remedy for his tort action concerning the alleged assault by the soldier on the territory of the Republic of Ireland, the Court notes that the applicant did not bring any proceedings in Northern Ireland although he was told by the United Kingdom Government in the context of the Irish proceedings that he could do so. While the applicant claims that an action in Northern Ireland would have been met by an act-of-State defence, the United Kingdom Government deny this. In the circumstances, there is doubt as to the existence of an effective remedy. However, the Court recalls that, in accordance with the case-law, the mere existence of doubts as to the prospects of success of a remedy does not absolve an applicant from exhausting it (application No. 12268/86, Dec. 7.9.88, D.R. 56, p. 62 and, mutatis mutandis , Van Oosterwijk v. Belgium judgment of 6 November 1980, Series A no. 40, p. 18, § 37). It follows that the applicant has not exhausted domestic remedies in this respect, as required by Article 35 § 1 of the Convention. This part of the application must therefore be rejected in accordance with Article 35 § 4 of the Convention.

b) In so far as the applicant complains under Article 6 § 1 of the Convention about the stance taken by the Government of the United Kingdom in the Irish proceedings, the Court does not consider it necessary to address in the abstract the question of whether the actions of a Government as a litigant before the courts of another Contracting State can engage their responsibility under Article 6 § 1 of the Convention. The Court considers that, in the particular circumstances of the case, the fact that the United Kingdom Government raised the defence of sovereign immunity before the Irish courts, where the applicant had decided to sue, does not suffice to bring him within the jurisdiction of the United Kingdom within the meaning of Article 1 of the Convention. It follows that this complaint is incompatible with the provisions of the Convention ratione personae .

In so far as the applicant further complains under Article 14 of the Convention that the United Kingdom Government claimed in Ireland an immunity that the law of their country does not give any other Government, the Court recalls that Article 14 does not have an independent existence (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36). The applicant’s complaint under Article 6 § 1 of the Convention having been found incompatible with the provisions of the Convention, his complaint under Article 14 must be also rejected.

It follows that this part of the application is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The applicant’s complaints under Articles 6 § 1 and 14 of the Convention against Ireland

Submissions by the parties

The applicant

The applicant claims that the appropriate forum for his action was that of the locus delicti , the Republic of Ireland. He submits that there is no evidence that he took the soldier deliberately to Ireland. The soldier jumped on what the applicant’s car was towing and was carried over to Ireland without the applicant knowing. In any event, the United Kingdom Government could have relied on the act-of-State defence in the courts of Northern Ireland.

The applicant further submits that Article 6 § 1 applies to the proceedings in question. The sovereign immunity exception is an exception from local jurisdiction only and not from legal responsibility. It is only a procedural bar.

In the applicant’s view, the limitation on his right of access to court does not pursue a legitimate objective. The immunity asserted by the United Kingdom Government no longer exists in public international law. By 1995 most countries had changed their sovereign immunity rules to permit actions for personal injuries inflicted in the forum State. This new position is reflected in the International Law Commission’s draft Convention. In any event, public international law has to be reconciled with human rights guarantees. Article 31 of the 1972 European Convention on State Immunity only applies when foreign armed forces are stationed on another State’s territory with its consent. As evidenced by Byrne , the Irish courts were not obliged to grant immunity. The case did not concern paramilitaries and there is no evidence that the relations between the United Kingdom and Ireland would have deteriorated significantly if the Irish court had rejected the sovereign immunity plea. Moreover, the limitation cannot be proportionate if the United Kingdom does not consider it necessary to grant immunity to foreign Governments in similar situations. The applicant had no alternative remedy. He could not sue the soldier individually who, according to Schmidt (cited above), also enjoyed immunity in Ireland. Contrary to what happens in France, there is no rule in Ireland allowing for the compensation of persons whose claims are rejected because of sovereign immunity.

Finally, in so far as Article 14 of the Convention is concerned, the applicant argues that reciprocity lies at the heart of the 1972 European Convention on State Immunity.

The Irish Government

The Irish Government submit that the applicant has not exhausted domestic remedies. In their view, he should have instituted proceedings in Northern Ireland, where a gun had been fired at him, instead of in the Republic of Ireland, where there had allegedly been just an attempt at firing a gun at him. The courts in Northern Ireland were easily accessible to the applicant, the relevant law was substantially identical to that in Ireland and the United Kingdom is a High Contracting Party to the Convention. The applicant did not allege before the Irish courts that he could not sue in Northern Ireland because of the act-of-State doctrine. In any event, the United Kingdom Government were not prepared to rely on this defence. The other reasons invoked by the applicant for not suing in Northern Ireland – unavailability of discovery, unavailability of the power to subpoena witnesses and unavailability of legal aid – were not valid.

The Irish Government further argue that Article 6 § 1 of the Convention does not apply to the proceedings in question. Under Irish law there is no right to sue in respect of torts allegedly committed by the armed forces of another sovereign power. The Irish courts have no discretion in this respect. In this instance sovereign immunity was functionally restricted and concerns an aspect of sovereign power, a fundamental act jure imperii . Article 6 § 1 cannot be interpreted so as to deprive Ireland sub silentio of the right to apply an international law rule that clearly existed at the time of the entry into force of the Convention. Contrary to what the applicant argues, Byrne (cited above) concerned the lack of immunity of the Irish but not of a foreign State.

Furthermore, the Irish Government argue that the limitation of the applicant’s right of access to court had a legitimate objective, namely compliance with generally recognised principles of international law and the promotion of harmonious relations, mutual respect and understanding between nations. They stress in this connection the context in which sovereign immunity was applied in the present case. The United Kingdom had exercised sovereign powers designed to safeguard its interests within its territory by operating a security checkpoint on its border with the Republic of Ireland in order to curb paramilitary activities. Ireland was entitled to a margin of appreciation, especially since its courts applied sovereign immunity very carefully following two full and very detailed hearings. The applicant had an alternative means of recourse in Northern Ireland.

Finally, as regards Article 14 of the Convention, the Irish Government argue that the Irish courts could not under international law rely on reciprocity to deny the Government of the United Kingdom an immunity that United Kingdom law does not give to foreign Governments.

The Court’s assessment

As to the argument of the Irish Government according to which the applicant has not exhausted domestic remedies because he did not sue in Northern Ireland, the Court observes that the purpose of the domestic remedies rule is to give the respondent State the opportunity of preventing or putting right the violations alleged against it ( Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 19, § 36). Accordingly, the Irish Government cannot rely for the purposes of Article 35 § 1 of the Convention on the applicant’s failure to use a remedy in the United Kingdom. The applicant took his complaints to the highest court in the Republic of Ireland and, therefore, exhausted domestic remedies in so far as that country is concerned.

As regards the Irish Government’s other arguments that the proceedings in question did not concern a “right” recognised under domestic law and that the limitation of the applicant’s right to court was proportionate because alternative ways of recourse existed in the United Kingdom, the Court considers that they raise issues that are closely linked to the substance of the applicant’s complaints under 6 § 1 and 14 of the Convention.

Having examined the parties' observations on the substance of these complaints, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, by a majority,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaints against Ireland that he was refused access to court and discriminated against;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE .

Paul Mahoney Luzius Wildhaber Deputy Registrar President