A Supreme Court judgment on a challenge to the Garda investigation of the murder of Seamus Ludlow signals a "new direction" for the courts when dealing with cases which raise claims under the European Convention of Human Rights, the Chief Justice has said.
The Ludlow judgment means there has to be “closer and separate” analysis of claims advanced under the ECHR, Chief Justice Donal O’Donnell said in an address on Friday analysing Ireland’s approach to the convention since the ECHR Act 2003, which incorporated it into Irish law.
The address was delivered to a conference organised by the Immigration, Asylum & Citizenship Bar Association (IACBA) and chaired by Attorney General Paul Gallagher who, along with the Chief Justice, praised the work of the association and expressed sympathy over the deaths of 27 migrants who drowned this week when trying to get to the UK from France.
The Chief Justice said the 2003 Act was designed to provide a domestic remedial regime in respect of the rights to which Ireland was subject in international law under the ECHR. Since a consideration of ECHR rights was the default provision if no other remedy was available, that has had a significant effect in a number of cases.
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The most recent phase concerning consideration of the 2003 Act here has prioritised constitutional claims, he said.
As the Constitution guarantees most, if not all of the rights protected, it was unrealistic to think the 2003 Act would have a similar impact on the legal system here. However, decisions of the European Court of Human Rights has had a “subtle but significant” impact on the development of Irish constitutional law and the limits of the constitutional approach may be seen to be becoming apparent.
The Supreme Court judgment in the Ludlow case, delivered by then Chief Justice Frank Clarke, decided, due to "significant legal difficulties and hurdles", it was not possible to advance the Ludlow family's claim seekig to have the State set up a commission of inquiry into the Garda investigation into Mr Ludlow's murder by reference to the ECHR and the jurisprudence of the European court.
Mr Ludlow, a 47-year-old forestry worker with no paramilitary connections, was shot after leaving a bar in Dundalk, Co Louth. His body was found on May 2nd, 1976 in a lane near his home. The Garda investigation was stood down after three weeks and the family claimed gardaí failed to pursue a line of inquiry that he was shot by either British or loyalist forces who mistook him for a senior member of the IRA.
The Chief Justice said the Supreme Court judgment in the case held the Constitution and the ECHR are different documents adopted for different reasons and different purposes and noted the Constitution is an autonomous human rights instrument.
Whatever about the correct interpretation of an international agreement, the case is potentially quite significant in suggesting a new direction in Irish human rights jurisprudence, he said. It means there will have to be “closer and separate” analysis of Convention claims in most cases, which could have “significant benefits”, including concerning interaction with the European court.
While the past 18 years of the 2003 Act may not have lived up to some of the more ambitious predictions about it, the courts may have done something “more modest, but arguably more important” as the application of the ECHR in Irish law has been put “on very firm foundations”, he said.
