4 Best Irish Cases Flashcards
Irish Cases at the ECHR
Ireland was the first country to accept the ECHR’s jurisdiction - I.e. that Irish nationals could bring a case against the state at the ECHR - since 1959
- between 1959-2020 = 39 judgments relating to Ireland
They have pointed out issues in Irish law and pointed out changes which needed to be made to rectify the law
Think about what IMPACT and what DIFFERENCE these cases made
BUT the changes have been very slow so far / Ireland has been very slow to implement
Airey v. Ireland (1979) - Article 6
Married woman claimed violation of Art. 6, on the basis that she could not effectively access the High Court to obtain judicial separation due to absence of civil legal aid in Ireland
- judicial separation was ONLY available in the HC so the fact that she was unable to afford legal representation left her trapped in a marriage with an abusive, drunk husband who had assaulted and then abandoned her (refusing to sign a deed for marital separation) - Mary Robinson was counsel
ECtHR: Art. 6 right to fair trial implies a right of effective access to court to have civil rights and obligations determined.
This might require state to provide legal aid if necessary for effective access.
Deemed necessary in this context.
There was a violation as Ireland did not provide civil legal aid.
Led immediately to introduction of civil legal aid in Ireland:
initially = Civil Legal Aid and Advice Scheme in 1980
then in form of Civil Legal Aid Act 1995
Norris v. Ireland (1988)
ECtHR considered whether Irish statutory provisions which criminalised male homosexual conduct were compatible with the right to respect for private life - Article 8
These provisions had been upheld as constitutional by SC.
ECtHR: no pressing social need to justify criminalisation of private homosexual conduct.
- even if it is offensive or disturbing to some members of
the public, that does not warrant penal sanctions
Even if any benefit could be obtained, the impact on persons affected would be disproportionate.
For that reason, provisions deemed to violate Art. 8.
Case decided on grounds similar to Dudgeon v. UK
Led to change, eventually: Criminal Law (Sexual Offences) Act 1993 removed the criminal prohibitions created by Offences Against the Person Act 1861 and the Criminal Law Amendment Act 1885.
A, B and C v. Ireland (2010)
Challenged various aspects of the abortion regime
A = unmarried and unemployed mother of 4 children in state care who she was trying to get back, travelled to England at her own expense
B = emergency contraception failed, pregnancy would likely be ectopic, travelled to England at her own expense
A & B: challenged the constitutional prohibition on abortion on well-being grounds
C = cancer patient who had been advised that the effects pregnancy would have on her cancer were unknown + chemo would be dangerous for the foetus, travelled to England at her own expense. No doctor would sign off on it being a risk to her life.
C: complained that lack of certainty as to when entitled to abortion in Ireland violated Art. 8.
No domestic proceedings had been brought
ECtHR: rejected challenge to substantive grounds for abortion, but held that Art. 8 violated given the lack of implementing legislation which would provide an effective and accessible procedure through which a person could determine whether lawfully entitled to abortion.
ECHR: state had positive obligation to secure respect for private life by implementing legislative/regulatory regime providing accessible and effective procedure for her to establish whether she had the lawful right to an abortion (under Article 40.3.3)
Impact:
The decision led directly to the introduction of the sort of implementing legislation envisaged by the Court.
The Protection of Life During Pregnancy Act 2013 defined the circumstances within which abortion in Ireland can be legally performed, and the way a risk to the life to the mother is to be determined.
Subsequently overtaken by referendum in May 2018.
