In J.C and Others v Belgium, twenty-four individuals had taken a class action in the Belgian Courts against the Holy See, particular Roman Catholic organisations, and a number of senior members of Roman Catholic clergy in Belgium, France and the Netherlands. The complainants alleged damage arising from what they described as a ‘structurally deficient’ approach to allegations of child abuse.

In 2013, the Ghent Court of First Instance determined that the principles of diplomatic and sovereign immunity applied to the Holy See, and declined jurisdiction to hear the case against the Holy See. This meant that the Holy See could not be subjected to the judicial procedures of Belgium, as under international law it is entitled to the same immunity from legal actions as any other foreign state. The Ghent Court of Appeal then listened to legal arguments on whether state immunity was appropriate in cases of this nature and whether the Holy See is an entity capable of invoking immunity, and upheld the decision in February 2016.

The case was then appealed to the European Court of Human Rights, claiming a breach of Article 6 (1) of the European Convention on Human Rights. This Article concerns the right to a fair trial and access to justice. The European Court of Human Rights was tasked with finding whether the Court in Ghent acted reasonably in declining jurisdiction by reason of  jurisdictional immunity of the Holy See. It considered the application of Article 5 of the United Nations Convention of Jurisdictional Immunities of States and their Property and Article 15 of the European Convention on State Immunity. It held that the approach of the Ghent Court of Appeal was consistent with customary international law, as the Holy See is ‘recognised internationally as having the common attributes of a foreign sovereign power.’ Like any independent State, the Holy See is party to international treaties and it has diplomatic relations with 185 States. As a sovereign state the Holy See is entitled to rely on the UN Convention and on the European Convention, to avoid having to answer legal proceedings in another state. This procedural obstacle to the complainants was not a disproportionate block on their right of access to justice, and the Ghent Court had not acted in an arbitrary or unreasonable manner.

The ECHR decision is not final, however, and a Grand Chamber Review may be lodged within three months of the October 12th decision.

The above is provided for information purposes and is not intended as legal advice. If you have questions about any aspect of public international law we, at Fitzsimons Redmond, would be happy to advise you. Please contact us on 01-676 3257.

By Lisa Quinn O’Flaherty

Partner at Fitzsimons Redmond