National differences are crucial to the European Court of Human Rights, its president, Luzius Wildhaber, tells Carol Coulter, Legal Affairs Correspondent
Major changes in social legislation in Ireland, ranging from the institution of a system of civil legal aid to the legalisation of contraception and homosexuality, have followed judgments of the European Court of Human Rights in Strasbourg. They occupy an important place in Irish legal history.
The president of the court, Swiss judge Luzius Wildhaber, was in Dublin last week to address a judicial conference. He began by speaking about the role of domestic courts in applying the European Convention on Human Rights.
The convention was incorporated into Irish law two years ago, and the case law from the Strasbourg court must now be taken account of in the Irish courts and by public bodies.
However, the form of incorporation was at "sub-constitutional" level, so the Irish Constitution remains the primary legal document in the State, to which all other law is subordinate.
This fits in with the "margin of appreciation" afforded to all signatories to the convention, which includes all the European countries except Belarus, as well as Turkey and Russia.
This was exemplified in a recent judgment by the court, which involved Turkey. The court was asked by a female medical student, Leila Sahin, to decide whether Turkey's ban on the wearing of the Islamic headscarf in public institutions (such as the university) infringed her rights under the convention.
By a vote of 16-1 the court found it did not. "The court says very expressly that there is no uniform view on what must be done in such cases," Mr Wildhaber told The Irish Times.
"We did take up what the Turkish constitution said. Secularism is at the root of the Turkish constitution. The Turkish constitution is also for gender equality, and sees the ban as very important there. We cannot fault these aims. Laicism and secularism are legitimate under the convention."
Of course, Mr Wildhaber added, this does not mean that a state permitting the wearing of religious symbols, such as the Islamic scarf, in public institutions would in any way violate the convention. It would be up to each signatory state how it interpreted the right to the free expression of religion.
Each of the 46 signatories to the convention has the right to appoint a judge, and at present the Irish judge on the court is John Hedigan SC. They are divided into four sections and committees of three judges sit in each section. Chambers of seven members are also constituted within each section for more important cases, and a 17-judge Grand Chamber hears major cases (such as the Turkish headscarf ban).
However, this structure is insufficient to deal with the volume of applications. There were 44,100 last year, according to Mr Wildhaber, and there are 82,000 pending. "Twenty to 25,000 will disappear for administrative reasons. We will declare about 95 per cent inadmissible, but we have to look at the files. The backlog contains 7,250 cases, meaning they are not handled in the three-year time limit we set ourselves.
"We have been understaffed and underfunded for years. A report from internal and external auditors said we should have doubled the budget.
"However, that is unlikely. So we must consider whether we should have a separate way of coming to the court, a filtering system, or more obstacles. We have to provide for quality case law," Mr Wildhaber said.
This issue has been referred to a group of "wise people" to consider, and its report will come before a meeting of the Council of Europe (the court derives from this; it is not an EU institution) next May.
"The states will have to deliberate. They will convoke an international conference and see if they can accept such proposals. There is no way around the fact that we have too many cases, given our budget and procedural requirements."