Dec 15, 2010
In advance of A, B & C v Ireland: A Primer on the ECtHR
Following on from Máiréad’s post here, I thought it might be useful to provide a very quick primer on the Court and the Convention, particularly given the level of confusion that is already being expressed about it. For people familiar with the Court (pictured left) there will be nothing new here, but hopefully it will help to put the judgment into some context for people when it is released tomorrow. I proceed along a number of questions: what is the European Court of Human Rights, what is the Grand Chamber, is this part of the EU, are the judgments binding on Ireland, can the Court change the Constitution, and (broadly) what the implications of the judgment might be. Readers might also check out the ICCL Know Your Rights Pack on the ECHR, which can be downloaded here.
What is the European Court of Human Rights?
The European Court of Human Rights (ECtHR) is a regional human rights court established to adjudicate on cases arising from the European Convention on Human Rights. These cases can take a few forms the most common of which are individual complaints (individual(s) complain that the state in which they reside/which exercised control over them violated their rights under the Convention), inter-state complaints (one state complains that another member state violated the Convention). The Court has jurisdiction over 47 states that have voluntarily signed up for it and covers a geographical area of over 800 million people. There are currently more than 100,000 applications (or complaints) awaiting decision before the Court, and it is estimated that 90% of them are inadmissible (i.e. that the merits of the complaints can’t be considered because they do not reach the basic requirements for being heard before the Court).
The European Court of Human Rights is not some kind of European Supreme Court or anything like it; it has a very discrete function (i.e. deciding questions relating to the Convention itself). In order to bring a case to the Court one has to ‘exhaust domestic remedies’ first, i.e. bring the case through your domestic legal system and try to achieve satisfaction there from the perspective of the Convention before going to Strasbourg. You can be excused from this if you can establish that, for a narrow number of reasons, there was no reasonable prospect of success in domestic courts. The European Court of Human Rights does not decide on factual disputes, or rehear cases. It simply answers narrow questions relating to the compatibility of a state’s actions with its obligations under the Convention.
What is the Grand Chamber?
The European Court of Human Rights can sit in a number of configurations (i.e. with different numbers of judges). The most serious cases will generally be heard by the largest configuration, i.e. the Grand Chamber consisting of 17 judges. Tomorrow’s decision will be given by a Grand Chamber.
Is this part of the EU?
NO. The Convention and the European Court of Human Rights are not part of the EU. They exist as part of another international organisation called the Council of Europe. All EU member states happen to be members of the COE, but the organisations are distinct.
Are judgments of the Court binding on Ireland?
The Convention provides that judgments of the Court are binding as a matter of international law on the states who are parties to those judgments. In other words, Ireland will be bound internationally by the judgment tomorrow.
Can the Court change the Constitution?
Absolutely not. The Constitution is Irish supreme law (let’s leave aside for the purposes of this the status of EU treaties) and the Convention does not impact on it, nor do the decisions of the European Court of Human Rights. They might point out ways in which constitutional provisions place Ireland in violation of the Convention, but they cannot change the Constitution. The Irish Constitution can be amended only by a referendum of the people.
Will the judgment mean anything in real terms?
Yes; the fact that the judgment is international law doesn’t mean it has no meaning. First of all if Ireland is found to be in breach of the Convention that means that it is in breach of a fundamental international obligation, so there is an international compulsion to change. Also the execution (or compliance with) the judgment will be supervised (i.e. checked) by the political branches of the COE. Secondly, under s. 4 of the European Convention on Human Rights Act 2003 Irish courts are required to take account of ECtHR judgments in their decisions (they are not bound by them and of the course the Constitution maintains its superiority). Furthermore, s. 3 of the European Convention on Human Rights Act 2003 provides that organs of the state (such as the HSE) are obliged to carry out their functions in a manner compatible with the Convention. Perhaps most importantly, the judgment (whichever way it goes) will create political pressure for action to—at the least—clarify the law in Ireland relating to abortion following the decision of X v Attorney General.
What will the government have to do if the applicants win?
This will depend on a few things, especially what we mean by ‘winning’. What the Government will need to do to bring Irish law into compliance with the Convention if they are found to be in breach tomorrow will depend very much on the judgment itself. In other words, on how the European Court of Human Rights says the Irish law is incompatible with the Convention. Whether the Government does or does not actually do anything in response to the judgment will ultimately be a matter of political choice.
Will the applicants win?
This is an impossible question to answer. The personal stories are compelling and seem, on their faces, to be unjust (see this Antiroom post). But the Court and the Convention have some strict rules regarding admissibility that may cause difficulty, especially relating to the obligation to exhaust domestic proceedings before going to the European Court of Human Rights. In addition, the Convention does not give anyone a right to have an abortion per se; it is more likely that the focus will be on the failure to provide clear guidelines as to when and how an abortion can be accessed in Ireland in the light of the X Case. However, following the judgment there will be extensive commentary here on HRinI and it is best to leave any analysis of who ‘won’ (if, indeed, anyone can be said to have won in situations like this) to tomorrow and the following days.
