Tuesday, December 15, 2009

A,B and C Case V Ireland

The European Court of Human Rights in Strasbourg on Wednesday heard a case against Ireland brought by two Irish women and a Lithuanian woman, known "A, B and C v. Ireland". All three women, resident in Ireland travelled to the UK for abortions and claim that lack of availability of abortion in Ireland resulted in medical complications, expense and "trauma" for each of them. The women are being supported in the case by the Irish Family Planning Association (IFPA), an affiliate of International Planned Parenthood (IPPF) and the Centre for Reproductive Rights (CRR). The significance of the case has been highlighted by the decision to hear it before the Grand Chamber of 17 Judges rather than the usual seven Judge ordinary chamber. Pro-life organisations involved in the case fear that it could have major implications for Irish abortion law. The decision of the court will not be available until next Spring

During the hearing a pro-life prayer vigil organised by the Society for the Protection of Unborn Children was held outside the court in Strasbourg. This was well attended by youth groups inclubing Ireland's Youth Defence

Ireland being a contracting State party to the European Convention on Human Rights was invited to present its case first.

The defence team was lead by Ireland's attorney general, Paul Gallagher who argued that as the Court had recognised in “Open Door” the protection afforded under Irish law to the right to life of the unborn was based on “profound moral values deeply embedded in Irish society”.

Mr Gallagher told the Court that the country’s legal position on abortion had been endorsed in three referendums, as well as being safe-guarded in protocols attached to the Maastricht and Lisbon treaties. He said that the European Convention on Human Rights has recognised over 60 years the diversity of traditions and values of the member states, as well as extending protection to unborn children.

Mr Gallagher also said that the case put forward by the plaintiffs was based on “legal and factual propositions which, when analysed, cannot be supported”. He said the fact that no case involving the three women had not been before a domestic court meant the facts of case had not been established and that many of the facts presented were of an assumed and conditional nature, such as a woman not going to a doctor because she feared treatment would not be available. He told the Court that […] if these issues are to come before this court, it should be on the basis of established facts.”

He also rejected the women’s claims that their rights were violated due to poor provision of post-abortion counselling and medical support. This he said amounted he said to a “significant attack on the Irish system, on the medical treatment available, on the advice available and the support available to people” in crisis pregnancies.

The case against Ireland was presented by Counsel Julie Kay and Carmel Stewart Senior Counsel

Ms Kay told the Court that Ireland's law on abortion was not sufficiently clear and precise, since the Constitutional term 'unborn' was vague and the criminal prohibition on abortion was open to different interpretations.

Ms Kay also told the Court that the lack of any effective remedy in Ireland meant the women had been forced to have their cases heard before the European Court of Human Rights. She said taking a case domestically would have been costly and futile

Referring to the Supreme Court's ruling in the 1992 "X" case, Ms Kay said the Government has failed to produce any legislation for doctors or medical practitioners on this issue. As a result, doctors were not prepared to intervene for fear of losing their medical licences or facing potential life imprisonment if the termination was later found to be unlawful or unnecessary.

Ms Kay in her submissions referenced a Polish case decided by the ECtHR in 2007 known as the Tysiac case in which the Court ruled that Poland had violated the European Convention by denying a woman a so called "therapeutic" abortion that allegedly would have saved her eyesight.
When both sides had made their presentations two member of the panel of Judges tabled questions for the parties. Judge Elisabet Fura from Sweden asked the Irish team if the Irish Government was currently considering any reform either Constitutional or Criminal.

The Irish Judge on the panel Mary Finlay Geoghegan asked a number of questions, the most significant of which were that counsel for the plaintiffs were asked to explain the scope of the right under Article 8 of the Convention as they apply to the facts of the case and the Irish Government team were asked to advise the Court on how it should view the question of domestic remedies under Article 35
The Court at this point rose for a short break after which both parties addressed the questions

In response to the question by Judge Fura as to whether there are currently any planned legal developments, Mr Gallagher confirmed that there are no legislative proposals presently under consideration, but reiterated the different initiatives which the Irish government has taken since 1996 to date including the medical council guidelines and the Crisis Pregnancy Agency guidelines. Mr Gallagher also told the Court that it is quite clear that question of stigma or disapproval should not arise.

A webcast of the entire proceedings of the case can be viewed on this link