The European Court of Human Rights (ECHR) has upheld the principle of the immunity from civil legal action of foreign states in a judgment in a case brought by a member of the Garda S∅ochβna. Two other judgments involving sovereign immunity were also issued yesterday by the Strasbourg-based court.
Mr John McElhinney, a member of the Garda, had attempted to sue the British government and a member of the British army in the High Court in Dublin. The British government had pleaded sovereign immunity, and this was accepted. The ruling was later upheld by the Supreme Court.
The case arose from an incident in March 1991 in which the solider was carried over the Border on the tow-bar of Mr McElhinney's car. According to the judgment, issued yesterday, the precise circumstances of the incident are disputed. Mr McElhinney was subsequently prosecuted for refusing to provide blood and urine samples, after his arrest on suspicion of drunk driving.
In 1993 he brought a case against the soldier and the British government in the High Court, claiming damages. This was set aside by the court, which accepted the British government's arguments on immunity. Yesterday, the ECHR found that "granting sovereign immunity to a state in civil proceedings pursued the legitimate aim of complying with international law to promote good relations between states through the respect of another state's sovereignty." It also commented that the European Convention on Human Rights should, as far as possible, be interpreted in harmony with other rules of international law. Sovereign immunity was part of that.
One of the other cases also involved an Irish citizen, Ms Mary Fogarty, who worked in the US embassy in London. She successfully took a case to an industrial tribunal alleging sexual harassment, and later took a second case, alleging she was not re-employed because of her earlier case. The embassy successfully pleaded sovereign immunity in relation to contracts of employment. The court found that, while international law was divided on this matter, the British court's ruling did not fall outside international standards.
The third case involved a Kuwaiti citizen allegedly tortured by the Kuwaiti government. The ECHR found it was not yet established in international law that claims of damages for torture was an exception to sovereign immunity.