European Convention On Human Rights Notes

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...

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