RULING:A MINORITY of six judges out of the total of 17 sitting in the Strasbourg court's Grand Chamber found the rights of all three applicants had been violated by the denial of abortion facilities in Ireland.
The majority only found in favour of one applicant.
The Irish judge on the court, Ms Justice Mary Finlay Geoghegan, concurred with the majority ruling, but expressed reservations on the manner in which a European “consensus” on the issue of abortion was regarded.
The dissenting judgment of the minority was strongly critical of the position of the majority that the “profound moral views” of the Irish people, as expressed in Article 40.3.3 of the Constitution and subsequent referendums, should outweigh the existence of a European consensus that abortion should be available to women in the circumstances of applicant “A” and “B”. It described the majority ruling as “a real and dangerous departure in the court’s case-law”.
The judgment pointed out that these women could have legally accessed abortion in respectively 40 and 35 of the states which have signed up to the European Convention on Human Rights.
The minority stated that the existence of such a consensus was very important in developing the law of the court. Where the court finds that a consensus exists among European states on a matter touching upon a human right, it usually concludes that this decisively narrows the “margin of appreciation” – that is, the individual discretion – that states might otherwise have in deciding how to interpret the convention.
“One of the paramount functions of the case-law is to gradually create a harmonious application of human rights protection, cutting across the national boundaries of the contracting states and allowing the individuals within their jurisdiction to enjoy, without discrimination, equal protection regardless of their place of residence,” they state.
In this case the majority had decided that such consensus did not narrow the “margin of appreciation” enjoyed by Ireland.
Ms Justice Finlay Geoghegan also focused on the existence of a European consensus on the subject of abortion. However, she questioned its relevance to this case, arguing that it was not comparing like with like.
When examining whether the Irish State’s prohibition of abortion balanced the rights of the applicants to the right to life of the unborn, the court had no evidence as to whether the European states it referred to carried out such a balancing exercise at all.
To be relevant, a consensus had to exist on the balance to be struck between the right to private and family life of the applicants and the public interest in protecting a right to life of the unborn.