DISSENTING OPINION OF JUDGE ROZAKIS

I greatly regret that I am unable to subscribe to the Court's decision that there has been no violation in the present case in respect of the applicant’s right of access to a court, as provided for by Article 6 § 1 of the Convention. The reasons for my dissent are the following:

1. The main issue under consideration in the case is proportionality. The majority’s decision is founded on the conclusion that the restriction imposed upon the applicant’s right to have access to the Irish courts was proportionate to the aim pursued. It is difficult for me to accept such a conclusion based on the premise that (a) in matters of State immunity there is simply a trend towards limiting this right in respect of personal injury actions in respect of acts occurring within the jurisdiction of the State in which the proceedings are brought, and that (b) the applicant, being on the other side of the balancing spectrum, had alternative means to protect effectively his rights under the Convention.

2. With regard to the extent of the obligation of a State to respect a plea of sovereign immunity in personal injury actions occurring within its jurisdiction, I generally subscribe to the opinions of my learned colleagues Caflisch , Cabral Barreto , Vajić and Loucaides expressed in their own dissent. I deviate, to a certain degree, from them in that I believe that, in the period under consideration (1994-95), the status of international law, as aptly described by the dissenters, was such that it allowed a State to invoke sovereign immunity in order to bar access to a court without flagrantly violating general international law. Yet, the fact that the law on sovereign immunity was - and still is - at a stage of transition, and that the clear preference of the international community was - and is - to limit it in specific States’ actions, has a weighty impact on the proportionality test under the Convention. In other words, I can accept that the invocation of sovereign immunity by Ireland in 1994-95 served a legitimate interest, but when we come to the balancing exercise of weighing the various interests involved, the plea of sovereign immunity loses much of its weight in view of the developments of international law and the current status of the law on sovereign immunity.

3. Against this background, namely a rather weak invocation of a State’s interest, lies the right of the applicant to have access to a court to sue the United Kingdom for damages on account of an assault which had occurred in the territory of Ireland. The elements supporting him in the weighing exercise seem to me more important than the justification put forward by Ireland. Firstly, the applicant is an Irish citizen, a matter which usually creates a jurisdictional bond between a person and his State and, in

international law, a prima facie obligation on the State to protect him. Secondly, the assault against the applicant occurred within Irish territory, a matter which further reinforces the jurisdictional bond. Thirdly, the applicant invoked a number of practical difficulties (see p. 9 of the admissibility decision of 9 February 2000) with regard to the alternative possibility of bringing proceedings in the United Kingdom, which do not seem to me to be altogether irrelevant or negligible.

4. The above-mentioned elements seriously weaken the Court’s argument that the applicant had reasonable alternative means to protect effectively his right under the Convention. In any event, I seriously dispute an unqualified transposition of a principle that the Court applied in a specific category of case (e.g. Waite and Kennedy v. Germany ) - namely the circumscribed scope of Article 6 in circumstances where a State party to the Convention has relinquished parts of its jurisdiction to an international organisation - to all cases involving a jurisdictional plurality. The Waite and Kennedy precedent referred to specific circumstances concerning persons working within an international organisation and labour disputes for which internal proceedings existed and were known to the applicants when they decided to become employees of the organisation. There is no relationship whatsoever between that case and the present one, where the subject matter of the dispute was damages for assault, and where the applicant did not have any link with the United Kingdom jurisdiction - other than the incidental link of the national origin of the defendant - or any kind of allegiance and loyalty to that foreign jurisdiction.

Under these circumstances I consider that the applicant was unduly deprived of his right of access to a court and that the deprivation was disproportionate and impaired the very essence of this right.