ECHR Act 2003

Question 1

3 Ways a Litigant can seek to enforce the ECHR in Ireland:

Answer 1

1. ss 3 OR 5 of the ECHR Act 2003 = take a claim in the domestic / Irish national courts
2. Use ss 2 and 4 as persuasive authority before Irish courts to argue how statute, common law or constitution should be interpreted
3. Take a case to the ECtHR

Question 2

Incorporation =

Answer 2

an act by a High Contracting Party of enshrining Convention rights within domestic law, so that they can be directly relied upon

all contracting parties have now taken steps to do this

Question 3

Netherlands = ideal example

Answer 3

1. ECHR has supra-constitutional status
   
   • Incorporation of rights into the Constitution itself, or “direct legislative incorporation” so Convention had quasi-constitutional status.
2. Dutch courts consider the provisions of the Convention to be self-executing

Question 4

What is the situation re Convention corporation in Ireland?

Answer 4

1. Incorporated ECHR in 2003 = last contracting party to do so
   - Came into force = 31st December 2003
2. Almost identical to UK approach = arguably inappropriate considering the differences in the systems
3. “Indirect Legislative Incorporation”
   - Convention can only be relied on before Irish courts to the extent that it is written into law by an Act of Oireachtas
4. Kearns J: “sub-constitutional level in a form of indirect or interpretative incorporation”

Question 5

Section 2

Answer 5

As far as is practicable

the court is under an obligation

to interpret statutory provisions and the common law

in a way that is compatible with the rights guaranteed under the Convention.

Question 6

Section 3

Answer 6

Duty on “organs of the State” to respect Convention rights

1. Person may bring claim for damages,
2. for an loss, injury or damage,
3. resulting from a failure to uphold this duty.

Question 7

Section 4

Answer 7

Court obliged to take judicial notice

of relevant provisions and case law of the ECHR

Question 8

Section 5

Answer 8

litigant can seek a “declaration of incompatibility”

Question 9

What is the purpose of the ECHR Act 2003?

Answer 9

The Convention cannot be directly relied on to ground a claim before the Irish courts.
DF v. Garda Commissioner & Ors

Can only be relied on indirectly, through the prism of the limited options of 2003 Act

An extremely limited measure

Question 10

2003 Act does not incorporate the Convention itself. What are the cases?

Answer 10

Byrne v. An Taoiseach [2011]

 No provision of the ECHR directly justiciable as a matter of domestic law

 The provisions of the ECHR are only enforceable in Irish Courts insofar as they are enforceable under the provisions of the ECHR Act 

McD v. L & Anor. [2009]

 provisions of the Convention not directly applicable