European Court Cannot Enforce Its Decisions Here, Says Ireland’s Chief Justice

13.12.2009

Source: Family & Life

Irish courts are entitled to ignore decisions of the European Court of Human Rights (ECHR) unless the Oireachtas votes to change Irish law, according to the Chief Justice. In a ruling as part of the Supreme Court’s unanimous pre-Christmas decision in a case involving a sperm donor, Mr Justice John Murray stated, ‘‘Orders or declarations of the [European Court of Human Rights] are not enforceable at national level unless national law makes them so”.

The ruling will affect how the courts interpret any ruling by the ECHR on the abortion case it’s currently considering. Two Irish women and a Lithuanian woman who lives in Ireland have asked the ECHR to rule that Ireland’s abortion laws violate the European Convention on Human Rights.

The three women, who all aborted their babies in England, alleged they were ‘‘stigmatised and humiliated’’ by being unable to have abortions in Ireland because their lives were not in danger.

At the European court, the Irish Government has robustly defended Ireland’s constitutional protection of the equal right to life of the unborn baby and his or her mother. Following a hearing in Strasbourg before Christmas, the 17 judges of the court’s Grand Chamber are due to deliver their decision in the Spring.

Murray was one of five judges who ruled that the High Court was wrong to exclude a sperm donor from access to his son. The High Court judge—formerly a judge of the ECHR—had ruled that the boy’s mother and her lesbian girlfriend were a de facto family under Article 8 of the convention.

But in the Supreme Court, Mr Justice Hugh Geoghegan noted that, although the expression “de facto family” was a ‘‘useful shorthand’’, it could foster misunderstandings about “particular applications of it by the European Court of Human Rights’’. The Chief Justice declared that states may freely ignore the ECHR’s decrees. ‘‘It is clear that the convention is not directly applicable as part of the law of [Ireland], and may only be relied upon in the circumstances specified in the European Convention on Human Rights Act", he explained.

‘‘Even though the contracting parties undertake to protect convention rights by national measures, the convention does not purport to be directly applicable in the national legal systems of [Council of Europe member states]. Nor does the convention require those parties to incorporate the provisions of the convention as part of its domestic law”.

Mr Justice Nial Fennelly added that ‘‘Any consideration of the convention in Irish law requires reference to be made to Article 29, section 6, of the Constitution, which provides that ‘No international agreement shall be part of the domestic law of the state, save as may be provided by the Oireachtas’”. The Sunday Business Post. December 13.