Binding on State
Ireland ratified the European Convention on Human Rights in 1953. From that time, the Convention was binding on the Irish state. Treaties do not automatically become a part of domestic law in Ireland.
For almost the first 50 years of its existence, the Convention was binding on the Irish state but did not form part of Irish law. Petitioners applied directly to the court set up under the Convention for a declaration of incompatibility of the State\’s law with the Convention.
The Convention has influenced the Irish courts in the interpretation of the Irish Constitution. The human rights set out in the Convention are reflected in other treaties and standards worldwide. The Irish courts have, on occasion, in interpreting Irish constitutional principles, followed the broad principles of the European Convention on Human Rights.
Prior to 2003, it was possible for an Irish citizen to apply to the European Court of Human Rights for a declaration that a particular law or practice in the State was inconsistent with the Convention. When this occurred, Ireland generally changed its laws to reflect its commitment to the Convention as a matter of international obligation.
Prior to the 2003 Act, the Convention did not have direct automatic effect. It was given effect by the state, later changing its laws to abide by the terms of the Convention. In 2004, the European Convention on Human Rights Act made the Convention part of domestic Irish law.
Proceedings under the European Convention of Human Rights are intended to be a last resort, and other options must first be exhausted. There is a time limit within which the proceeding must be commenced, which may be extended.
Ireland is required to execute European Court judgments. States’ implementation of a judgment is supervised by the Council of Europe Committee of Ministers. This amendment is the only remaining issue for implementation in relation to this judgment.
If a person wishes to vindicate a right under the Convention, they must first exhaust all possible remedies which may be availed of under national law, before going on to plead their case before the Court of Human Rights in Strasbourg.
Some famous examples include the Airey case, on the basis of which a civil legal aid scheme was introduced and the Norris case, on the basis on which certain male homosexual acts were decriminalised.
Part of Irish Law
The European Convention on Human Rights Act 2003 permits cases to be brought in the Irish courts on the basis of breach of the ECHR. Under the 2003 act, the Irish courts are to interpret statute provisions and laws in accordance with the ECHR insofar as possible.
If the statutory provision or common law rule applies, it is to prevail where there is no other remedy; the High Court, Court of Appeal or Supreme Court may make a declaration that it is incompatible with the state’s obligations under the ECHR. The legislation is not stroked down. Application may still be required to the European court to compel the state to comply with its obligations.
The provisions of the 2003 Act ensure that there are two complementary systems in place in Ireland for the protection of fundamental rights and freedoms, with the superior rules under the Constitution taking precedence.
The ECHR is subsidiary to the Constitution. The Constitution will prevail as a matter of internal law. However, as with the Norris case (where the legislation was found compatible with the Constitution by a three to two majority), it will still be the case that the state may be in breach of its obligations under the Convention.
The 2014 Act extends the definition of the Convention in the 2003 Act to include reference to Protocols Nos. 11, 13 and 14. Protocols Nos. 11 and 14 relate to the administrative workings of the European Court of Human Rights.
The reforms contained in Protocol No. 14 were designed mainly to address the problem created by the large number of inadmissible cases or cases involving repeat violations following pilot judgments and to enable the court to concentrate on the most important cases. Protocol No. 14 also made new rules concerning the terms of office of judges of the European Court of Human Rights. Protocol No. 13 concerns the abolition of the death penalty.
Interpretation by Courts
Under Irish legislation, courts must interpret legislation in a manner compatible with the European Convention on Human Rights. The High Court, Court of Appeal and Supreme Court may make declarations of incompatibility and award damages against the states and state entities who act contrary to the obligation in the Convention. As the position in England and Wales, the declaration of incompatibility does not invalidate the law concerned.
The Act obliges Irish courts to take note of the decisions of the European Court on Human Rights. The principles are to be applied by the Irish courts in relation to European Convention on Human Rights matters.
Where a declaration is made, the Taoiseach must bring it to the attention of the Oireachtas. The party to the proceedings may apply to the Attorney General for loss alleged to have occurred as a result of incompatibility. The government may make an ex gratia payment.
The 2003 Act establishes the framework through which further effect is to be given to the provisions of the Convention. Any statutory provision meanings shall be interpreted, in so far as possible, in a manner compatible with the State’s obligations under the Convention. This applies retrospectively and prospectively.
A statutory provision means any provision of an Act of the Oireachtas, or of any order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created thereunder or any statute, order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created and any rule of law.
Organs of State Bound
All organs of the State shall, subject to any statutory provision or rule of law (other than the Act), perform their functions in a manner compatible with the State’s obligations under the Convention.
An organ of the State is defined and includes tribunals 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 powers of the State are exercised.
The courts are excluded from the definition on the basis that they are already under a duty to administer justice by virtue of the Constitution.
Action for Breach
Where a person has suffered injury, loss or damage as a result of a breach of the above obligation on the part of the Stage and its organs to comply with the Convention, the person may, if no other remedy is available, institute proceedings in either the High Court or the Circuit Court, to recover damages arising from such a loss. In proceedings before the Circuit Court, the amount of damages payable is limited to the monetary jurisdictions of that Court.
Proceedings must be brought within one year of the alleged breach. This limitation period may be extended at the discretion of the Court, where it considers it appropriate in the interests of justice.
Therefore damages are awardable in a case where an organ of the State commits a breach of the Convention unless the body in question could not, under the law of the State, have acted differently. Where this is the case, it will be a matter for consideration as to whether the statutory provision or rule of law with which the organ of the State was complying could be found to be incompatible with the Convention under the declaration of incompatibility.
Declaration of Incompatibility
If the statutory provision or rule of law in question is found to be incompatible with the Convention, the High Court or the Court of Appeal or Supreme Court on appeal may make a declaration of incompatibility. In this instance, it would be a matter for the injured party to apply to the Government through the Attorney General for compensation by way of an ex gratia payment.
The Courts may examine the interpretation of the Convention’s provisions by the European Court of Human Rights, the former European Commission on Human Rights and the Committee of Ministers of the Council of Europe and take their interpretations into account.
Where the High Court or the Court of Appeal or Supreme Court on appeal, decide in any case that it is not possible to interpret a statutory provision or rule of law in a way which is compatible with the Convention, and where there is no other legal remedy adequate and available, the Court may, either on application by the injured party or of its own motion, make a declaration that the provision or rule of law is incompatible with the provisions of the Convention.
Notice to State Bodies
The Attorney General is to be given notice of proceedings in which a court may make a declaration of incompatibility. The Attorney General shall be entitled to appear in any such proceedings. The purpose is to ensure that, before a Court makes its decision, the Attorney General can bring to its attention all constitutional and legal arguments which may be relevant to the issues before the Court.
The Human Rights Commission may institute proceedings in any Court of competent jurisdiction for the purposes of obtaining relief of a declaratory or other nature in respect of matters concerning the human rights of a person or persons under the Act.
Effect of Declaration
This declaration shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law which was found to be incompatible with the Convention. This means that because of the primary law-making role assigned to the Oireachtas under the Constitution, the statutory provision or rule of law will remain in place and it will be a matter for the Government to consider what steps should be taken to remedy the particular incompatibility in question.
This situation is similar to that which formerly obtained when the Strasbourg Court ruled that a provision in Irish law contravened the Convention. The 2003 Act preserves the existing right of a party to an action in which a declaration is made to bring a case to the European Court of Human Rights in Strasbourg if he or she so wishes. The purpose of this provision is to preserve the right of individuals to petition the Court of Human Rights.
The Taoiseach must cause a copy of any order containing a declaration of incompatibility to be laid before the Houses of the Oireachtas within 21 days of the making of that order. The purpose is to provide a mechanism to ensure that both Houses of the Oireachtas are notified as to the making by the Court of a declaration of incompatibility.
Following a declaration of incompatibility by the Courts, the injured party may apply to the Government, through the Attorney General, for ex-gratia compensation payment in respect of any loss, injury or damage suffered as a result of the incompatibility.
The reason any such payment would be made by the Government and not the Courts is that the Courts could not award damages where there is compliance with a statutory provision or rule of law which, while incompatible with the Convention, remains Constitutionally valid.
In the absence of such a compensation scheme, the injured party seeking damages would have to take a case to Strasbourg, and this would be inconsistent with the principle underlying the 2003 Act to give further effect to the Convention in national law by enabling cases to be taken and remedies obtained before national courts in respect of violations of the Convention.
There is provision for the appointment by the Government of an adviser to advise them as to the quantum of damages, if any, to be paid to the injured party. Where the Government considers that it may be appropriate to make such payment, the adviser will take account of the principles and practice of the Court of Human Rights in affording just satisfaction to an injured party under the Convention.
The 2014 Act amended the European Convention on Human Rights Act 2003 to provide for an enforceable right of compensation in the case of unlawful deprivation of liberty due to judicial error in contravention of Article 5 of the Convention and to update the definitions of the Convention and of the convention provisions in that Act.
There is an enforceable right to compensation for a person whose detention is found to be in breach of Article 5 of the European Convention on Human Rights and where the detention was as a result of judicial error. This is a requirement of Article 5(5) of the Convention.
The amendment follows an appeal of a Supreme Court judgment to the European Court of Human Rights, which found that Ireland is in breach of the Convention by reason of not having an enforceable right to compensation in cases where unlawful deprivation of liberty is as a result of a judicial error.