The European Convention for the Protection of Human Rights and Fundamental Freedoms is a binding International Treaty of the Council of Europe. The Irish Act came into effect on 31 December 2003. It has the effect of requiring the courts to interpret domestic legislation in a manner consistent with the Convention. Rights under the Convention are now enforceable in Irish courts, and Irish Courts are obliged to interpret domestic legislation in a manner consistent with the Convention. The Act obliges “every organ of the State” to “perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
The Act requires that “judicial notice” be taken of the Convention provisions and any decisions of the Convention institutions. A court must “take due account” of the principles established by these decisions when dealing with Convention-related proceedings. Accordingly, judgments of the European Court of Human Rights are persuasive authorities in Irish courts when dealing with Convention rights.
The Act empowers the superior courts to make a “declaration of incompatibility” where a “statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.” The Taoiseach would have to bring the order containing any such declaration before both houses of the Oireachtas within twenty-one days of the making of the Order. A party to any such proceedings can make an application to the Attorney General for compensation arising from the incompatibility (and the Government can make an ex gratia payment to that party. A statutory provision or rule of law that is declared incompatible with the Convention is still law.
Certain rights and freedoms protected by the Convention are of special relevance to asylum and immigration law and the identification of persecution, serious harm, or possible refoulement issues. These include the right to life (Article 2); the prohibition against torture (Article 3); the right to liberty and security (Article 5); the right to a fair trial (Article 6); the prohibition on retroactive criminal punishment (Article 7); the right to respect for family and private life (Article 8); the prohibition against discrimination (Article 14); the prohibition against restrictions on political activity of aliens (Article 16); and the right to an effective remedy (13), which is a subsidiary right to all the substantive rights and freedoms in the Convention. The protocols to the Convention also contain certain relevant provisions, including re the protection of freedom of movement (Article 2 of Protocol 4), safeguards relating to the expulsion of aliens (Article 1 of Protocol 7), and the prohibition of the death penalty (Articles 1 and 2 of Protocol 6, and Article 1 of Protocol 13).
In response to criticisms that the Act is an inadequate incorporation of the Convention into Irish law the Minister stated that the “…Convention was never intended to have the effect as a shadow constitution for any Member State of the Council of Europe” (See Department of Justice, Equality and Law Reform, 2003).
