As a result of the passing of this convention into law, both individuals and states can now seek a remedy at European level. This legislation dominates law in this country to a huge extent and in our view is one of the very best things to come out of the European Union. Having said that, our government only introduced this piece of legislation from 1950, almost 50 years later.
All EU states must accept the jurisdiction of the European Court of Human Rights and it is now the first international court to which individuals have automatic direct access for alleged breaches of a state’s international obligations.
Under article 34 of the ECHR, individuals and also NGOs (Non Governmental Organisations) can make an application to the European Court of Human Rights (ECHR).
Making an application to Strasberg is extremely straightforward. Any sort of written complaint will be considered and an application form will be sent to the applicant and a decision will then be made as to whether the complaint should be dealt with by a committee or a chamber and to get beyond this stage, the complaint must satisfy a number of criteria being
- You have to have exhausted all local remedies and
- You must bring the complaint within six months of the date when the final domestic decision was made.
- The applicant must also be the victim of the complained violation and the application cannot be anonymous and cannot have been examined previously by any international procedure.
- The application must also not be manifestly ill founded or regarded as an abuse of the right to petition and it must not be incompatible with the Convention itself.
The remedies available to the European Court are fairly limited – for instance compensation awards are always extremely low and full legal costs are rarely covered. Orders made by the court generally consist of a declaration that a violation has occurred and the court can order an interim measure where there is an emergency. Having said that, decisions of the European Court are almost always adhered to and carry enormous weight both locally and internationally.
The main rights we have tried to enforce on foot of the ECHR are Article 5 rights to liberty and in particular Article 8 rights concerning respect for private and family life. Previous cases under this heading have established that the right to family life exists between engaged couples, non-marital fathers and their children and children and parents who are no longer cohabiting and whose relationship has broken down.
In the various same actions we have taken on behalf of non-nationals, we usually make applications under this Article 8 heading and in relation to any cases we take where the family home is threatened, we will similarly invoke the provisions of Article 8.
Article 9 protects freedom of thought, conscience and religion and Article 10 protects freedom of expression.
The European Convention on Human Rights Act, 2003 came into force in Ireland on 31st December 2003 and has had a profound effect on Irish jurisprudence.
In addition to all of the above Ireland is also a party to numerous international human rights conventions and treaties. Ireland has adopted the policy that they will not accede to any treaty until they have ensured that domestic law complies with all the various obligations and this can be troublesome given that there are many treaties that Ireland ought to accede to but have not for this very reason – that they know that current domestic law would necessarily mean that they would be in breach of their obligations. For instance Ireland signed the International Covenant on Civil & Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966 but they did not come into force in Ireland until 1976.
The following are a list of areas of law which have been fundamentally affected by the introduction of human rights treaties, legislation and domestic case law.
- Child & Family Law:
Articles 41 and 42 of the Constitution are still hugely relevant in almost every case involving the welfare of children and family rights in Ireland.
We are mainly involved in cases where a person’s family home is at risk and there is a growing body of legislation and case law protecting the family home. The same applies to the rights of children. The rights of children were set out in the UN Convention on the Right of the Child, 1989, which was ratified by Ireland in 1992 but has not yet been introduced into domestic law and the problem really is because of the existence of Article 41 of our Constitution, which really requires updating and amendment. The European Convention on Human Rights Act, 2003, in particular Article 8, is the main body of international law affecting Irish family law at the moment but again the difficulties with Article 41 of the Constitution remain.
- Freedom of Expression:
At present, there is enormous publicity attaching to attempts to limit freedom of expression by revealing the private lives of celebrities.We have had reason to invoke the provisions of Article 10 of the ECHR in cases where there has been what we regarded as attempts to incite hatred and there is separate statutory legislation to cover this area. Like many areas however it is rarely enforced. The case of Jon Venables and Robert Thompson, the two boys who carried out the horrific murder of James Bulger created a huge amount of new law, particularly when they sought injunctions preventing their identification for the rest of their lives. The injunctions were granted but were subsequently varied due to intervening circumstances. However the fundamental point remains that freedom of expression is regarded as one of the fundamental rights but it is very much open to variation and, we would argue, abuse from time to time, particularly where celebrities are concerned. In these cases, we would argue that bad law is often created in order to protect celebrities given that this law will often filter down to affect the rest of us.
- The Right to Live & Right to Bodily Integrity:
This area of law has had an enormously high profile in Ireland in recent years due to the ongoing debate over the right to life of the unborn. The X case caused enormous controversy in Ireland. This was a case where a 14-year-old girl had been raped and had become pregnant. The High Court granted an injunction prohibiting her from leaving the State for the purposes of obtaining an abortion.The Supreme Court overturned the High Court and said that abortion was permissible in certain circumstances but only where there is a real and substantial risk to the life of the mother which only a termination could avoid.This created huge difficulties in relation to cases where individuals wished to travel for the purposes of an abortion and this creates huge difficulties for health care professionals.
A growing debate is taking place around Europe concerning cases involving euthanasia and the so called “right to die”. Abortion remains a very tender subject here in Ireland and this is a fundamental area where the rights of the mother, the rights of the family unit and the rights of the unborn child have all to be balanced before final decisions are made. Ongoing medical developments in the area of reproduction and genetics all have enormous implications in relation to this area of law and will continue to develop.
Equality law is an area of law which always attracts substantial publicity. European Community Law has resulted in huge developments in the area of equal pay, equal treatment, positive action and women’s rights in employment.Following the implementation of the Employment Equality Act, 1998, it is now illegal to discriminate in the area of employment on the basis of:
- Marital Status
- Family Status
- Sexual orientation
- Religious belief
- Membership of the Traveller community
This discrimination is aimed at preventing access to employment, imposing unfair conditions of employment, and an employer cannot discriminate against an employee or a perspective employee in imposing certain training regulations and cannot discriminate in relation to promotion or the classification of employment positions based on any of the above grounds.
Everyone is aware of recent high profile cases involving sexual harassment in the work place (and outside).
The Equal Status Act of 2000 sets out to combat discrimination in areas other than employment on the same grounds as set out above.
- Right to a Fair Trial and Due Process:
As you can imagine, the area of criminal law and trials generally have provided a huge amount of ammunition for lawyers and the judiciary generally. Fundamental rights such as the presumption of innocence, the entitlement to a trial within a reasonable period of time and the right for this trial to be heard in public are all subject to ongoing scrutiny and development. Prejudicial publicity in criminal law cases is something that happens on a regular basis and can often prevent any possibility of a fair trial. As you can see, the right to freedom of expression has to be very carefully balanced in such cases where there is a right to a fair trial.European and constitutional law also guarantees the right to legal representation and financial assistance in relation to criminal trials and there are specific guarantees to ensure fairness in criminal trials provided by the European Court of Human Rights.