Human rights and rule of law ‘under increasing threat’ across Europe, Chief Justice says

Problems with populism and “aggressive nationalism” are evident across Europe, and human rights and the rule of law are under increasing threat, the Chief Justice has told a legal conference in Dublin.

Donal O’Donnell said people in Europe were looking to the European Court of Human Rights (ECHR) as “a beacon” and many considered it “really important” that an Irish woman, Ms Justice Síofra O’Leary, would be leading that court. She will be “a talisman” to women and men “who find the rights they need to be hard won”.

Ms Justice O’Leary, who takes up the presidency on November 1st and is the first Irish judge to do so, said the post-war model of judicial protection of human rights was “under greater stress than ever before” but could, and must, be protected.

She said the European Convention of Human Rights still mattered for reasons including that it guarantees a right of access to court and helps protect against “backsliding” in relation to the rule of law. It is a constitutional instrument of European public order and a living instrument to be interpreted in light of present day conditions.

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The ECHR, she stressed, was a “court of last resort”. It falls first and foremost on Irish judges and national authorities to secure the rights and freedom enshrined in the convention, many of the protections which are already in place in the Irish Constitution. However, she said that did not mean references to the convention were “misplaced or unnecessary”.

Effective access to justice for litigants was what the convention seeks to provide to those who consider that national remedies or authorities have failed them, she said.

Both judges were addressing a conference, Human Rights in a Time of Change: Perspectives from Ireland and from Strasbourg, at Dublin City University during a two-day visit by judges of the European court to Ireland.

In his address, the Chief Justice said the relationship between Ireland and the Irish courts on one side, and the convention and the ECHR on the other, was characterised by a high degree of mutual respect and understanding.

There was a feeling decades back that protection of rights such as liberty, free speech, association and freedom from torture were “givens” but, over the past decade and with every passing year, society is facing unimaginable threats and challenges that “have more of an echo of the mid-20th century than the bright modern future we imagined”.

Robert Spano, outgoing president of the European court, said the convention was one of the “greatest peace projects in history” and ensuring the observance of human rights by a strong mechanism of judicial control was “a factor of stability, security and peace”.

He outlined the court’s role in respect of conflict prevention, including by implementation of its judgments concerning the rights to freedom of expression and association. He also addressed the court’s role in conflict resolution including by deciding a growing number of interstate applications, some involving Ukraine v Russia, and tens of thousands of related individual applications.

Some could ask if Russia’s invasion of Ukraine was proof the convention was powerless in the face of determined military action, he said, adding that it created a climate in which the escalation of conflict becomes less likely.

Supreme Court judge Ms Justice Iseult O’Malley and law professor Colm O’Cinneide also addressed the conference. Minister for Children Roderic O’Gorman delivered the closing address and launched the first Irish translation of the European Convention on Human Rights and Fundamental Freedoms. Translated by Donncha Ó Conmhuí, the text was presented in honour of the poet Máire Mhac an tSaoi, Ireland’s first female ambassador to the Council of Europe, who died last October.