CASE OF McELHINNEY v. IRELAND
No violation of Art. 6-1
Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
7. The applicant is a police officer (garda). At 11 p.m. on 4 March 1991, when off-duty, the applicant and two passengers, in a private car (described in subsequent police reports as a “jeep”) towing a van on a trailer, crossed from Northern Ireland into Ireland at a United Kingdom permanent vehicle checkpoint in County Derry. Precisely what occurred that night is disputed between the parties. It is not, however disputed that the applicant accidentally drove his car into the checkpoint barrier. The check-point was manned by armed British soldiers, one of whom, a corporal in the British Royal Military Police, approached the applicant after the accident. The Government contend that he asked the applicant to stop and was ignored. The applicant alleges that he did stop and that the soldier then waved him on. In any event, it would appear that the soldier moved towards the car and was hit by the vehicle being towed. He was thrown forward on to the tow-bar and dragged for a short distance until he managed to pull himself up into a standing position on the tow-bar. The applicant maintains that he was unaware of the soldier’s position and continued driving into Ireland. According to the report completed by the Irish Police in April 1991 following their investigation into the incident (see paragraph 9 below), the soldier fired six shots, one of which entered the car’s exhaust pipe, another of which went through the back windscreen and exited through the roof. The Government claim that some, at least, of these shots were fired in Northern Ireland. According to the applicant he heard the shots and, fearing a terrorist attack, continued driving until he reached a police station, where he considered he would be safe. He stopped the car about two miles from the border, in the village of Muff, in County Donegal, Ireland. According to the police report, at this stage the soldier, described by witnesses as in a state of “blind panic”, ordered the applicant and the two passengers to get out of the car and stand against the wall with their hands in the air. The applicant alleges that he turned to face the soldier, intending to explain that he was a police officer and that there was no cause for alarm. Again, according to the applicant, the soldier then aimed his gun at him and pulled the trigger twice, although the shots did not fire because the gun jammed. 8. The Irish police had been notified of the incident at the border and soon arrived at Muff. The applicant was arrested on suspicion of driving having consumed excess alcohol. He refused to comply with police requests to provide blood and urine samples. 9. As mentioned above, the Irish Police carried out an inquiry into the incident in the course of which 71 witnesses were interviewed. In his report the investigating officer concluded that the applicant had shown “a regrettable degree of recklessness” in leaving the scene of the accident at the check-point. The report continued: “This was a most serious incident and one which could have resulted in the serious injury or death of one or more persons. First of all the soldier was at great risk, had he fallen off the draw-bar. The three occupants of the jeep may well have been shot by [the soldier] or his colleagues at the check-point. The safety of the bystanders at Muff was also put in jeopardy resulting from the presence of the armed and terrified soldier. This matter has been vigorously and thoroughly investigated and the only conceivable reason that I can find that would prompt Garda McElhinney to deliberately leave the scene of the accident would be because he was intoxicated ...”. The applicant was subsequently prosecuted and convicted in Ireland for his refusal to provide blood and urine samples. No disciplinary proceedings were taken against him, but he was transferred to another area. 10. The applicant alleges that he feared for his life and suffered severe post-traumatic shock as a result of the above incident. On 29 June 1993 he lodged an action in the Irish High Court against the individual soldier and the British Secretary of State for Northern Ireland. He claimed damages, including exemplary and punitive damages, in respect of his allegation that the soldier had wrongfully assaulted him by pointing a loaded gun at him and pulling the trigger. 11. On 5 November 1993 the United Kingdom Government’s solicitors wrote to the applicant’s solicitors as follows: “... The Secretary of State for Northern Ireland bears no responsibility for the actions of the first defendant who is a soldier in the British Armed Forces under the authority of the Secretary of State for Defence in the United Kingdom and accordingly the Secretary of State for Northern Ireland is not a proper defendant to these proceedings. Even if the Secretary of State was the proper defendant, both it and [the soldier] contend that they are exempt from the jurisdiction of the Irish courts on the basis of the doctrine of sovereign immunity. If your client considers that he does have a valid claim there is nothing to prevent him from pursuing it in Northern Ireland against the proper body. ...” The applicant’s solicitors replied in a letter dated 3 December 1993: “... We have also sought advice on the issue of foreign sovereign immunity raised by you and have been advised that, in these circumstances, no such immunity would apply. That being so, our client prefers to seek his redress in the courts of this jurisdiction where the incident in question occurred. ...” 12. On 13 January 1994 the applicant applied for permission to substitute for the second defendant the United Kingdom Secretary of State for Defence. On 21 January 1994 the Secretary of State for Northern Ireland, claiming sovereign immunity, applied for the summons to be set aside. 13. On 15 April 1994 a High Court judge granted the Secretary of State’s request, on the ground that the applicant was not entitled to bring an action in the Irish courts against a member of a foreign sovereign government. 14. 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 forum State’s jurisdiction. Secondly, he submitted that the principle of reciprocity should apply to prevent the Irish court granting immunity to the United Kingdom in circumstances in which British courts, applying the State Immunity Act 1978, would not grant immunity to Ireland. Thirdly, he put forward the argument that, even if the doctrine of state immunity applied, it should yield in his case since he alleged an infringement of the constitutionally protected right to bodily integrity. 15. The Supreme Court gave judgment on 15 December 1995, rejecting the applicant’s appeal. The applicant had relied on the Supreme Court’s judgment in Government of Canada v. the Employment Appeals Tribunal (1992) 2 IR 484, but the court held that that judgment was authority only for the proposition that the doctrine of immunity did not apply in respect of commercial or trading activities carried out by a foreign government. The facts alleged by the applicant did not relate to any commercial activity, and it was not established that, as a principle of public international law, immunity no longer applied in respect of personal injuries caused by the tortious act of a foreign State’s servant or agent acting within the sphere of sovereign activity (“de jure imperii”). In his judgment, Chief Justice Hamilton, with whom Justices O’Flaherty and Blayney agreed, observed: “There can be no doubt but that the first defendant [the soldier] in carrying out his duties at the said checkpoint was acting within the sphere of governmental or sovereign activity and the acts complained of must be regarded as ‘jure imperii’ even though alleged to have been committed within this jurisdiction. It is submitted on behalf of the plaintiff that, as the acts complained of were tortious and caused personal injuries to him, the principle of foreign sovereign immunity should not apply to such acts and that it was a near-universally recognised principle of international law that claims for personal injuries allegedly inflicted in the forum state by or on behalf of a foreign government constitute an exception to the sovereign immunity principle. In support of such submission, counsel for the plaintiff referred in particular to the United Kingdom State Immunity Act 1978; the Canadian State Immunity Act 1982; the Australian Foreign Sovereign Immunities Act 1985 and the European Convention on State Immunity 1972. ... The plaintiff relies on these statutes as indicative of a recognised principle of public international law. ... Distinction must be drawn between the provisions of legislation in a number of states and the provisions of public international law, and the principles set forth in individual state legislation cannot be regarded as establishing principles of public international law. The provisions of statutes cannot be used as evidence of what international law is: statutes are evidence of the domestic law in the individual states and not evidence of international law generally. Article 11 of the European Convention on State Immunity provides that:- ‘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 forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.’ I do not have to decide, in the circumstances of this case, whether the terms of the Convention are part of the domestic law of this State because even if it were, the plaintiff’s claim herein would fail by virtue of the terms of Article 31 of the said Convention, which provides that:- ‘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 when on the territory of another Contracting State.’ The terms of Article 31 recognise that, as a matter of international law, immunities and privileges in respect of anything done or omitted to be done by or in relation to armed forces, when on the territory of another Contracting State, exist. ... Despite the Herculean efforts of the plaintiff’s legal advisers in making available to the court copies of all relevant decisions, articles and draft Conventions, and the cogent arguments of counsel, I am not satisfied that it is a principle of public international law that the immunity granted to sovereign states should be restricted by making them liable in respect of tortious acts, committed on their behalf by their servant or agent, causing personal injuries to the person affected by such act or omission, when such act or omission is committed jure imperii and I would dismiss the appeal on this point ...” 16. The applicant did not pursue his action against the individual soldier who had allegedly assaulted him. 17. In his judgment in the Government of Canada case (cited in paragraph 15 above), Justice Hederman described the position of sovereign immunity in Irish law as follows: “The doctrine of sovereign immunity is one of the generally recognised principles of international law, which, by Article 29, s.3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states .... [T]he Oireachtas [the National Parliament] has never sought to qualify or modify this position ...”. 18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal), but has not been signed or ratified by Ireland. It provides in Article 11: “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. ” Article 31 of the same Convention provides: “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.” 19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 12 that: “... a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.” In its commentary on that passage, the ILC noted that the “physical injury ... appears to be confined to insurable risks. The areas of damage envisaged in Article 12 are mainly concerned with accidental death or physical injuries to persons ... involved in traffic accidents ... Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of State immunity and evading its liability to the injured individuals.”