Posts Tagged ‘ECHR’

Challenge to the mandatory life sentence for murder

February 16, 2010 3 comments

Two men convicted of murder are challenging the mandatory life sentence prescribed for murder and treason in section 2 of the Criminal Justice Act 1990, on the grounds that it contravenes Bunreacht na hÉireann and the European Convention on Human Rights.
In essence, the men are alleging that mandatory sentencing scheme in Ireland breaches the separation of powers and the doctrine of proportionality. Few people imprisoned for life in Ireland are likely to serve this full sentence – so, the Minister for Justice, following a report from the Parole Board, will direct release.

Their arguments were advanced previously in the High Court in Whelan and Lynch v Minister for Justice, Equality and Law Reform [2007] IEHC 374, where Irvine J rejected their challenge. There the plaintiffs argued that section 2 amounts to a sentencing exercise by the Oireachtas and thereby offends the doctrine of the separation of powers; that the absence of discretion of the trial judge offends the doctrine of proportionality; and that the direction by the Minister for Justice to release a prisoner serving a life sentence represents a judicial function, thus offending the separation of powers. Moreover, the men contended that they suffer inhuman and degrading treatment, contrary to Article 3 of the ECHR, due to the uncertainty of their imprisonment. They further alleged that Articles 5 and 6 are breached by the role of the Parole Board and the process whereby the Minister considers the continued detention, given that the former requires judicial determination of detention and review on a regular and frequent periodic basis and the latter protects a fair trial.

In rejecting all these contentions, the High Court relied on Deaton v. Attorney General [1963] I.R. 170 and Osmanovic v. DPP [2006] I.E.S.C. 50 to emphasise that mandatory sentences have never been viewed as unconstitutional. Indeed the High Court further stressed that judicial discretion in fact is impacted upon by laws which directs the court as to how certain evidence must be treated by at trial, and by requiring mandatory consequential orders to be imposed following upon conviction for road traffic offences, for example.

Regarding proportionality, the court differentiated the right to proportionality in sentencing (required where a trial judge is vested with a discretion as to the sentence that may be imposed) from the constitutional concept of proportionality which in this context is concerned with the public good to be achieved by the deprivation of liberty. The constitutional significance of the right to life, the harm wreaked by a killing on families (as protected by the Constitution) and the unique nature of the offence of murder were relied upon to conclude that s2 was not in breach of the doctrine of proportionality.

Furthermore, no breach of the separation of powers was found on the basis that the role of the court ceases once sentence has been passed and it is then up to the executive to carry out the sentence and, if appropriate, to exercise its rights of clemency. Indeed, in exercising his right to commute or remit punishment, the Minister was seen to be fulfilling the role afforded by Article 13.6 of the Constitution.

As regards the ECHR, the plaintiffs acknowledged that they are unlikely to serve out their life sentence and thus the High Court felt their sentences would not be such duration or unwarranted severity that would breach them within the scope of Art 3. Furthermore, the court did not see a distinction between the plaintiffs who could not anticipate their likely release date from other prisoners who are serving lengthy prison sentences. Moreover, the Court rejected arguments based on Articles 5 and 6 on the basis that the mandatory life sentence for murder is entirely punitive, and so their trial satisfied the requirements of Article 5(1) and they have no rights to a review by an independent body of their detention under Article 5(4) or Article 6(1). Similarly the intervention by the Parole Board and or the first named defendant in reviewing their continued detention was not viewed as a sentencing exercise.

Whether such a resounding rejection of their arguments is replicated in the Supreme Court remains to be seen.

Call for Ban on FGM in Ireland

February 5, 2010 3 comments

According to a report in the Irish Times, a number of participants at an event held by the National Steering Committee on Female Genital Mutilation to mark International Day of Zero Tolerance to FGM called for a stepping up of the campaign for a new law banning the practice of FGM in Ireland.

During the event, serious concerns were expressed about whether the current legal framework in Ireland served as an effective tool for addressing the practise of FGM. While Government advice has indicated that female genital mutilation constitutes an offence under assault laws, speakers at the seminar said distinct legislation was needed.

According to the Irish Times report, a spokesman for Minister for Health Mary Harney said: “The question of introducing specific legislation to ban female genital mutilation remains under review. However, we cannot be specific on a timeframe for this review at this stage.”

The Irish Steering Committee came together in early 2008 to develop the Plan of Action to address Female Genital Mutilation, which was finalised in late 2008. The report is a valuable source of information on the practise of FGM in Ireland and elsewhere. The document highlights that ‘a proactive and coordinated response is required to prevent the establishment of the practice [of FGM] in Ireland and to provide care for women and girls living in Ireland who have already undergone FGM in their country of origin’. It identifies a number of strategies ‘as being essential to addressing FGM in Ireland and in other countries through Irish development policies’, focusing on actions under 5 strategy headings: legal, asylum, health, community and development aid. From a legal perspective, the report quotes earlier research carried out by the Women’s Health Council which, amongst other things, highlighted the shortcomings and the inappropriateness of existing legislation in terms of prosecuting FGM. Read more…

A, B and C v. Ireland – Before the Grand Chamber Soon.

December 1, 2009 Leave a comment

The Irish Times reminded us on Monday that the case of A, B and C v. Ireland, which examines our restrictive abortion laws, will be before the Grand Chamber of the European Court of Human Rights in a week. I posted about the case  in October. We will cover the case as it progresses.

Arrest for the purpose of DNA sampling

November 24, 2009 Leave a comment

A report published today by the Human Genetics Commission (HGC) in the United Kingdom, which advises the government in that jurisdiction in relation to genetic issues, contains a claim that police officers deliberately arrest people in order to get DNA samples from them to add to the DNA database. The claim, put forward by an unnamed retired police superintendent, is contained in a report entitled “Nothing to Hide, Nothing to Fear?”.

Obviously, it is difficult to investigate the truth of the claim that persons are being arrested solely for the purpose of obtaining DNA samples where they would not be arrested in other circumstances, and indeed, such a claim has been denied by the Association of Chief Police Officers. However, the Chairman of the HGC, Professor Jonathan Montgomery, has admitted that there is some evidence to substantiate the allegation. Professor Montgomery has also suggested that the DNA database in the UK has suffered from “function creep” since its introduction in 1995, evolving from a database of offenders into a database of suspects. Liberty‘s director of policy Isabella Sankey has also observed the extent of the use currently being made of DNA databases and the manner in which policing decisions can be influenced:

Not only are we stockpiling the most sensitive information of innocents who have never been charged, let alone convicted, we are also creating a perverse incentive for officers to arrest the innocent.

The UK DNA database is the largest of its kind in the world and this is not the first time that it has been the subject of controversy and debate, although Professor Montgomery suggests that there has not been enough public or parliamentary debate on the issue.

Read more…

Guest Contribution: Daly Responds to Quinn on Lautsi and Parental Choice

November 6, 2009 3 comments

We are delighted to feature this short guest contribution from Eoin Daly, PhD student at the Law School at University College Cork. You can find out more about Eoin on the Guest Contributors page. Eoin has produced the following response to an article in the Irish Independent by David Quinn (left) entitled “The European Court of Human Rights is Part of an Agressive and Belligerent Drive towards secularism.” Rather than select quotations from Mr. Quinn’s article, we suggest that you read it in full before reading Eoin’s response.

Perhaps David Quinn should properly read the Lautsi decision and the associated jurisprudence before engaging in such strident commentary as he did in today’s Independent. The ECtHR’s recent ruling in APPEL-IRRGANG c. Allemagne, for example, suggests that persons do not have a right to be protected from exposure to religious beliefs as such in schools. In Lautsi, the court has merely found that the State may not provide public education through schools which privilege a particular religious viewpoint, in such a manner as does not respect the inevitable plurality of beliefs within a democratic society.

I frankly do not see how the imperative of “choice” requires that any particular belief be exalted or privileged within a publicly-funded school. If there is a “right” to the sort of “choice” Mr. Quinn relies on, how is it to be extended to all? Or does Mr. Quinn suggests that the exercise of this “right” is confined to what happen to be the most prevalent denominations in a particular state?

It is time that Mr. Quinn dispensed with this ill-placed “choice” rhetoric. He suggests, in today’s column and elsewhere, that while “choice” does not prevent the State from propagating beliefs systems contrary to beliefs of parents such as Ms Lautsi within schools, it somehow requires a positive imperative of support for the beliefs of other parents. This is manifestly ill-founded in common sense as well as any viable democratic theory. Clearly, the absence of interference with parents’ religious and moral education of their children must take priority over any positive assistance the State might give in helping parents to transmit these beliefs. The state cannot seek to buttress or exalt the choice of some to a greater extent than is necessary and in doing so, deny the legitimate choices of others.

Furthermore, Mr. Quinn disingenuously conflates secularism as non-denominational or non-confessional ethos, with secularism as a comprehensive philosophical doctrine in itself. A clear and necessary distinction exists between these. To argue otherwise is to suggest, bizarrely, that any refusal by the State to privilege any particular religious viewpoint in its public schools necessarily favours some sort of atheist or anti-religious doctrine.

To compound the above points it suffices, I believe, to imagine that one lived in a society where the beliefs one wished to transmit to one’s children were different from the beliefs of the majority, and were not sufficiently popular in one’s local area to warrant the establishment of a school. How, then, would Mr. Quinn translate the imperative of “choice”?

UPDATE: In related news, the Irish Times reports that the Department of Education has written to  “Dr Martin  [the Catholic Archbishop of Dublin] following a speech in which he said the church would be willing to withdraw its patronage from some Dublin schools. It has asked the archbishop to identify schools that might be suitable for divesting…”

Irish Reactions to Lautsi v Italy

November 4, 2009 2 comments

Reaction to Lautsi v Italy, which Máiréad blogged about here yesterday, is beginning here in Ireland.

On Morning Ireland this morning Paddy Agnew reported on the case from Italy (albeit with a mistake: he said the Court found a violation of Articles 2 and 9, whereas the Court actually found a violation of Article 2, Protocol 1 not Article 2 of the Convention (right to life!) but this was clarified through the magic of Twitter after the report! [morning_ireland]). Unfortunately there is also a mistake on the MI website report of the news. The website reports that “EU rules against crucifixes in schools”–the European Court of Human Rights is not, of course, a court of the EU. MI is not alone in this–the extremely widely-read AmericaBlog just published a story entitled “EU Court Bans Crucifix in Italian Schools” and then goes on to talk about the (non-EU) ECtHR…

In the report in today’s Irish Times Paddy Agnew repeats his mistake re: Article 2 (am I just being difficult here?…) but, more interestingly, notes the Italian reaction to the decision. According to Agnew the Italian government “will be appealing” so we assume that there will be a Grand Chamber decision on the matter. He also reports on the anger and outrage of Italian government and the Vatican in relation to the ruling.

Prof. William Schabas also reflects on the decision on his excellent PhD Studies in Human Rights Blog. Schabas writes:

I would expect there is a lot of hand-wringing in Dublin today about this decision. The Irish school system was criticized by the Human Rights Committee last year in its concluding observations on the Irish periodic report (UN Doc. CCPR/C/IRL/CO/3): ‘22. The Committee notes with concern that the vast majority of Ireland’s primary schools are privately run denominational schools that have adopted a religious integrated curriculum thus depriving many parents and children who so wish to have access to secular primary education. (arts. 2, 18, 24, 26). The State party should increase its efforts to ensure that non-denominational primary education is widely available in all regions of the State party, in view of the increasingly diverse and multi-ethnic composition of the population of the State party’.

The core paragraph from the judgment (currently only available in French) is:

‘La Cour estime que l’exposition obligatoire d’un symbole d’une confession donnée dans l’exercice de la fonction publique relativement à des situations spécifiques relevant du contrôle gouvernemental, en particulier dans les salles de classe, restreint le droit des parents d’éduquer leurs enfants selon leurs convictions ainsi que le droit des enfants scolarisés de croire ou de ne pas croire. La Cour considère que cette mesure emporte violation de ces droits car les restrictions sont incompatibles avec le devoir incombant à l’Etat de respecter la neutralité dans l’exercice de la fonction publique, en particulier dans le domaine de l’éducation’

Presumably the implementation of this decision is going to hang quite substantially on the interpretation of an “[]exposition obligatoire d’un symbole d’une confession” (emphasis added). As Antoine Buyse notes this morning on the excellent ECHR Blog, Italian law required the crucifix to be displayed. To the best of my knowledge there is no such mandatory display of religious symbols in public schools in Ireland (and I would be truly shocked if there was). I have to agree with Antoine that a Grand Chamber judgment clarifying the extent to which this is an absolute ban on display of religious symbols would be most welcome in this case.

Lautsi v. Italy: Religious Symbols and Parents’ Rights at the ECHR

November 3, 2009 4 comments

Today, in Lautsi v. Italy, the European Court of Human Rights has held that the display of the crucifix in the State school attended by the applicant’s daughter was contrary to the applicant’s right to ensure her child’s education and teaching in conformity with her religious and philosophical convictions, within the meaning of Article 2 of Protocol No. 1. The display of the cross had also breached her freedom of conviction and religion, as protected by Article 9 of the Convention.  The judgment is available here, in French only.

To quote from the court’s press release:

The presence of the crucifix – which it was impossible not to notice in the classrooms – could easily be interpreted by pupils of all ages as a religious sign and they would feel that they were being educated in a school environment bearing the stamp of a given religion. This could be encouraging for religious pupils, but also disturbing for pupils who practised other religions or were atheists, particularly if they belonged to religious minorities. The freedom not to believe in any religion (inherent in the freedom of religion guaranteed by the Convention) was not limited to the absence of religious services or religious education: it extended to practices and symbols which expressed a belief, a religion or atheism. This freedom deserved particular protection if it was the State which expressed a belief and the individual was placed in a situation which he or she could not avoid, or could do so only through a disproportionate effort and sacrifice.

The State was to refrain from imposing beliefs in premises where individuals were dependent on it. In particular, it was required to observe confessional neutrality in the context of public education, where attending classes was compulsory irrespective of religion, and where the aim should be to foster critical thinking in pupils.

The Court was unable to grasp how the display, in classrooms in State schools, of a symbol that could reasonably be associated with Catholicism (the majority religion in Italy) could serve the educational pluralism that was essential to the preservation of a “democratic society” as that was conceived by the Convention, a pluralism that was recognised by the Italian Constitutional Court.

The compulsory display of a symbol of a given confession in premises used by the public  authorities, and especially in classrooms, thus restricted the right of parents to educate their children in conformity with their convictions, and the right of children to believe or not to believe. The Court concluded, unanimously, that there had been a violation of Article 2 of Protocol No. 1 taken jointly with Article 9 of the Convention.

The Guardian reports on the reception of the judgment in Italy here. The Vatican has called the ruling ‘shocking’. More coverage here from NPR. The judgment has obvious implications for schools across Europe.

Creating a Human Rights Culture in Legislative Design: Shortfallings of the ECHR Act 2003

October 23, 2009 Leave a comment

dailchamberI am currently finishing a book with Cliona Kelly on the ECHR Act 2003, which will be published by Thompson Round Hall next year. One of the chapters for which I have responsibility is on the legislative impact of the Act, and reading Aoife’s post here about Maurice Manning’s recent speech in which he recommended the establishment of a proper parliamentary committee on human rights put me in mind of some of the arguments that we make in that chapter. The passage of the ECHR Act was an opportunity for the creation or structures through which we could try to bring about a culture of taking human rights obligations seriously in the design and passage of legislation. In reality, however, I am not sure that this has in fact happened especially as a result of the failure to set up a standing Oireachtas committee to carry out rights-based scrutiny of legislation and to require ministerial statements in relation to whether proposed legislation complies with the Convention. Both of these mechanisms are in place in the UK where they are very effective.

Read more…

Purdy and Assisted Suicide in the Northern Ireland Assembly

October 20, 2009 2 comments

Debbie Purdy & Omar PuenteIn heated Assembly debate last week MLAs took turns to pour scorn on the House of Lords decision in R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45. At the end of July Debbie Purdy (pictured with her husband, Omar Puente), who suffers from primary progressive multiple sclerosis, succeeded in her judicial review seeking further guidance upon the exercise of prosecutorial discretion should her husband assist her if she chose to commit suicide. In the aftermath of this decision the Director of Public Prosecutions in England and Wales and the Public Prosecution Service in Northern Ireland undertook to clarify their guidance.

Mr Danny Kennedy (UUP, Newry & Armagh) rounded on the courts as the instigators of the assisted suicide debate:

‘The present debate in the UK flows from the decision that the Law Lords made a relatively short time after Parliament had spoken definitively against suicide. That is not how the law in the United Kingdom or anywhere should be made. The courts exist to interpret law, not to make it’.

Mr Simon Hamilton (DUP, Strangford) followed with an assertion that, ‘we were seeing another example of potential legislating from the bench. That is not the way that law is or should be made in this part of the world. Law is supposed to be made by legislators such as us and enacted in the courts by the judiciary, not made by the judiciary itself’.

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New Programme for Government Promises the Introduction of Gender Recognition Legislation

October 16, 2009 5 comments

Dr Lydia FoyNext Monday it will be two years since Mr Justice Liam McKechnie handed down his groundbreaking decision in Foy v An tArd Chlaraitheoir (No 2). In that case His Lordship issued the first ever Declaration of Incompatibility between Irish law and Ireland’s obligations under the European Convention on Human Rights. The cause of the incompatibility was the inability of Irish law to recognise the preferred gender identity of transgender people.

The Declaration should have put in motion a series of events which would have resulted in the Taoiseach reading the order into the records of each House of the Oireachtas within 21 working days (s5 of the ECHR Act, 2003). However, as this was the first time such an order had been handed down, His Lordship put a stay of two months on the implementation of the order to give the State the opportunity to decide whether to appeal the decision to the Supreme Court. On Friday, March 28th 2008 notice of such an appeal was lodged with the Supreme Court. The case has yet to be listed for hearing.

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