Thursday, 16 December 2010

Ireland (Sort Of) Loses Abortion Case

The European Court of Human Rights returned its verdict today on the Irish abortion case:

The European Court of Human Rights has ruled that Irish abortion laws violated the rights of one of three women who sought terminations in Britain.

The woman, who was in remission for a rare form of cancer, feared it might return as a result of her pregnancy.

Despite the press speculation, the judgment isn't a significant departure from current Irish law. It has ruled that abortion access must be made easier in life-threatening situations, an extension to existing law in Ireland - which was the result of the 'X' case, however the ECHR has not ruled that abortion must be widely available in other circumstances. So technically Ireland is not required to legalise abortion but will probably be under pressure to adopt a more flexible position in subsequent attitudes.

This still leaves a couple of issues. Can Ireland implement the ECHR's judgment without breaching the anti abortion condition of the constitution; the eighth amendment? If it does breach this, it would trigger a referendum. Even the Court acknowledges the implementation will be difficult to implement:
As to the burden which implementation of Article 40.3.3 would impose on the State, the Court accepts that this would be a sensitive and complex task. However, while it is not for this Court to indicate the most appropriate means for the State to comply with its positive obligations (Marckx v. Belgium judgment, § 58; Airey v. Ireland judgment, § 26; and B. v. France, § 63, all cited above), the Court notes that legislation in many Contracting States has specified the conditions governing access to a lawful abortion and put in place various implementing procedural and institutional procedures (Tysiąc v. Poland judgment, § 123). Equally, implementation could not be considered to involve significant detriment to the Irish public since it would amount to rendering effective a right already accorded, after referendum, by Article 40.3.3 of the Constitution.
Given the current circumstances, should a referendum be triggered it's hard to imagine that the Irish will do anything other than reject further perceived erosion of their sovereignty, thus putting the nation on a collision course with the ECHR. Certainly at the very least Brian Cowen's 'clarification' on abortion, in order to secure a 'yes' in the second vote on Lisbon, looks a very empty one indeed. Can his already record low support in the polls get any lower?

But there was a more potential and fundamental far-reaching outcome of this judgment. Has the ECHR just effectively by-passed the domestic courts, thus breaching its mandate? Article 35/1 of the Convention of the Protection of Human Rights and Fundamental Freedoms requires that all possible domestic remedies be exhausted before the ECHR has jurisdiction:

Article 35 – Admissibility criteria

  1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
The women in question; A,B & C, did not exhaust 'domestic remedies' and this formed part of the Irish Government's defence.

In the Court's response to this defence, it's important to note that there is a difference between C’s claim and that made by A&B. C’s complaint was that her situation was allowed under the Irish constitution but no suitable domestic remedy was available to her - there was a lack of legislation that allowed her to have her abortion case to be assessed properly despite being entitled to. Her ability to exhaust domestic remedies was limited, therefore the court ruled accordingly:

154. The third applicant feared her pregnancy constituted a risk to her life and complained under Article 8 about the lack of legislation implementing the constitutional right to an abortion in the case of such a risk. She argued that she therefore had no effective procedure by which to establish her qualification for a lawful abortion in Ireland and that she should not be required to litigate to do so.

155. In those circumstances, the Court considers that the question of the need for the third applicant to exhaust judicial remedies is inextricably linked, and therefore should be joined, to the merits of her complaint under Article 8 of the Convention (Tysiąc v. Poland, no. 5410/03 (dec.) 7 February 2006).

4. The Court’s conclusion

156. Accordingly, the Court dismisses the Government’s objection on grounds of a failure to exhaust domestic remedies as regards the first and second applicants and joins this objection to the merits of the third applicant’s complaint under Article 8 of the Convention.

Conversely A&B were bringing a case that was not permitted under the Irish constitution. And it's clear from the judgment that the ECHR considered that any domestic remedies would have been next to pointless which is why they also considered their cases - again the ability to exhaust 'domestic remedies' was very limited:
147. However, the Court does not consider that it has been demonstrated that such an action would have had any prospect of success, going against, as it would, the history, text and judicial interpretation of Article 40.3.3 of the Constitution.
Thus the view that domestic remedies were virtually non-existent permitted the ECHR to rule on these cases, allowing them to bypass domestic courts.

The Court's rulings though have essentially upheld the Irish constitution. It did not condemn abortion and in the case of A&B it appears to have tried to strike a balance between women's rights and the wishes of the Irish people:
The Court considers it reasonable to find that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which, on the Government’s own submissions, went against the profound moral values of the majority of the Irish people.
However the Court ruled that C's case was a failure of the state to legislate properly under her right of the constitution:*
‘The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation‘
In my view the ECHR has pulled off quite a deft trick here (if cynically you think courts judge in political terms not legal ones); subtlety changing Ireland's abortion laws without breaching legally its mandate.

Though I doubt any appreciation of the slight trick of the hand will be enough to pacify Ireland, as anti-Europe emotions are still running high; the reaction is likely to be altogether different.

*It's worth noting here, that I think a conflict arises here between the ECHR's (and EU state's) 'positive obligations' and Ireland's common law based 'classical obligations'.

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