The A. B. and C. v. Ireland judgment does not require the
Irish government to legalize abortion: The ECLJ submits its memorandum to the
Committee of Ministers of the Council of Europe on the execution of the A., B.
and C. v Ireland judgment on abortion.
Grégor Puppinck, PhD,
Director of the ECLJ,
Strasbourg, 26 September 2012
The European Centre for Law and Justice (ECLJ) has submitted
to the Committee of Ministers of the Council of Europe a memorandum on the
execution by the Irish government of the judgment of the European Court of
Human Rights in the case of A., B. and C. v Ireland concerning the Irish ban on
abortion. The Committee of Ministers is in charge of the supervision of the
execution of the judgment by Ireland. The Irish Government is currently
expecting the report of the “expert group” tasked with providing options and
recommendations on how to implement the judgment. Concerns have been expressed
that the composition of this expert group seems predisposed to issue
recommendations that leads to the legalisation of abortion, rather than a
simple clarification. The Irish Government should then decide.
Because many misinterpretations of the A. B. and C. judgment
have been diffused with a political aim, the purpose of the ECLJ memorandum is
to provide for an objective description of the status of abortion within the
European Convention on Human Rights and a precise delimitation of the
conventional obligations of Ireland in the execution of the judgment.
The ECLJ memorandum explains that while executing the A., B.
and C. judgment, the Irish government does not have to address the issue of
abortion in general, nor to address specific aspects that do not concern the
situation of Applicant C. The A. B. and C. judgment require the government to
adopt measures so that applicant C, or any other woman in the same situation,
would be able to know whether her medical situation necessitate the termination
of her pregnancy on grounds of the risk to her life. The decision taken by the
national authorities whether the medical situation of applicant C would or not
necessitate the termination of the pregnancy has no incidence provided the
right to life of applicant C is protected. In other words, Ireland is not
required to make sure that abortion would be available to applicant C, but only
to clarify its regulation in one sense or the other. The government is free to
choose the most appropriate means of complying with this obligation, such as
publishing medical information on the treatment of pathologic pregnancies, as
the Court suggested. While describing how medical treatments should be carried
out to save the life of the mother, even if such treatment results in the
unintented loss of life of her unborn child, the Government can perfectly
reaffirm the prohibition of direct abortion. This clearly means that the A. B.
and C. judgment does not require the Irish government to liberalize its
regulation on abortion. Moreover, because abortion is not a human right and
cannot stem from the Convention, such a requirement from the Court would simply
not be legally possible. Ireland can legitimately maintain its constitutional
choice to protect the life of the baby and the one of the mother on an equal
footing.
After the A., B. and C judgment became final, it is to the
Committee of Ministers of the Council of Europe (CM) to supervise its
execution. The Irish Government is required to present the measures it will
adopt in order to prevent similar violations of the Convention in the future.
The State has the choice of the means of addressing the issue indicated by the
ECHR. The CM, as a governmental body composed by the Foreign Affairs Ministers
of all the member States, is a political body and not a judicial one; therefore
it can only exercise political or diplomatic pressure in order to determine a
State to fulfil its obligation under the Convention. Except the infringement
proceedings, which “should be brought only in exceptional circumstances” and
were never applied by the CM, there are no sanctions against a State which
refuses to execute a judgment or which delays complying with the ECHR judgment.
Although, the CM can refer a case to the Court if it considers that the
execution of the judgment is hindered by a problem of interpretation of the
judgment or if it considers that the respondent State is refusing to abide by
the judgment,this has never happened. Eventually, the CM adopts final
resolutions, when it considers that the measures proposed by the State are apt
to prevent future similar violations. The execution of a judgment is therefore
also dependant on the political situation within the CM. It happens that a
significant portion of the members of the CM disagree with a Court judgment and
understand the reluctance of the concerned State to comply with it. Inversely,
it may also happen that some members of the CM pressure a State to go further
than what is required by the Court.
Therefore, the requirements of the CM toward the measures
expected from the Irish government following the A. B. and C. judgment also
depend, on a real extent, on the political situation within the CM, and
therefore on the political strategy of the Irish government. But it cannot be
said that the A., B. and C. judgment requires the legalisation of abortion in
Ireland.
RELATED DOCUMENTS
Communication by the ECLJ to the Committee of Ministers on
the execution of A. B. and C. v. Ireland
Action plan DH-DD(2011)480 and Updated Action plan DH-DD(2012)66E submitted by the
Irish government to the Committee of Ministers
A., B. and C. v. Ireland, (N° 25579/05) September 2009 (ECLJ
Amicus curiae before the Grand Chamber)
A., B. and C. v. Ireland, (N° 25579/05) November 2008 (ECLJ
Amicus curiae before the Court section)
