European Convention On Human Rights - Irish Constitutional Law

European Convention on Human Rights

European Convention on Human Rights Act 2003

s.1 'organ of state' includes a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial functions of the State are exercised.

s.2 (1) In interpreting and applying any statutory provision or rule of law the court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.

s.3 (1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner consistent with the State's obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of sub-section (1) may, if no other remedy is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to the limits on its jurisdiction to award damages, the Circuit Court) and and the Court may award to the person such damages (if any) as it considers appropriate.

s.5 (1) In any proceedings, the High Court or the Supreme Court on appeal, may, having regard to the provisions of sub-section 2, on an application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as a declaration of incompatibility) that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions.

(2) A declaration of incompatibility A) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which a declaration of incompatibility was made.

(3) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order.

Carmody v Minister for Justice (HC 2005)

Facts

1. The plaintiff was charged with offences under the Diseases of Animals At 1966 and challenged the failure of the State to provide him with free legal aid under the ECHR and Constitution.

Issue

• European Convention of Human Rights

Judgment (Laffoy J)

• The Oireachtas can not have intended that, where a statutory provision enjoys the presumption of constitutionality, the judiciary should examine its constitutionality before it examines its compaitiblity with the ECHR – such an approach would be at variance with the practice of the Courts and the expressed intentions of the Act itself which expressly subordinates the Convention to the Constitution.

• Whether obtaining a declaration of incompatibility would resolve the issues between the parties to such an extent that the court should refrain from deciding the constitutional issue is not in issue in this case.

Dublin City Council v Fennell (SC 2005)

Facts

1. The defendant was the subject of an order for possession by the plaintiff.

2. The plaintiff claimed that under the ECHR she was entitled to be given reasons for the termination of her tenancy.

Issue

• European Court of Human Rights

Judgment (Kearns J)

• The Constitution precludes the Oireachtas from declaring acts to be infringements of the law which were not so at the time of their commission – this applies to civil as well as criminal law and as the 2003 Act allows the award of damages, the court should interpret the Act to have only prospective effect.

• Thus, the defendant's case having arisen before the passage of the Act, can not be decided by reference to it.

• The relevant section having survived constitutional challenged can not be challeged again but may have been successful on Convention grounds.

Caldwell v Mahon (HC 2006)

Facts

1. The plaintiff sought to assert his right of privacy under the Constitution and Convention in order to avoid having to give certain articles of evidence to the Mahon Tribunal.

Issue

• European Convention on Human Rights

Judgment (Hanna J)

• Although the European Convention on Human Rights Act does not apply to this case, the decisions of the ECtHR are of persuasive authority.

• The core question in applying the right of privacy in the Constitiution and Convention is how far the right extends – both the Irish Court and the European Court have similar approaches in answering this question in that they look to A) whether the interference was prescribed by law, B) whether it was necessary in a democratic society, C) whether it related to a pressing social need and D) whether it was...