“The focus at Strasbourg is not and never has been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the Applicant’s Convention rights have been violated.”
The effect of the ECHR Act so far:
I mentioned earlier that the ECHR Act, 2003 and its limited incorporation of the European Convention into Irish domestic law had initially had relatively little impact. In the last 12 months or so, however, its effect has begun to be seen in some cases which were commenced after 1st January 2004.
So far there have been only four cases that I am aware of where the European Convention has had a major or decisive influence on the outcome. They all concerned Article 8 of the Convention (right to respect for private and family life) and all were High Court decisions. Three were Judicial Reviews and the fourth started off as a Judicial Review but concluded under a slightly different procedure.
The cases are as follows:
Bode v. Minister for Justice, Equality and Law Reform  IEHC 341. Here Ms Justice Finlay Geoghegan gave judgment on 14th November 2006 in a case involving parents of Irish citizen children who were refused leave to remain under the IBC05 scheme for dealing with such cases. Judge Finlay Geoghegan held that the Minister had failed to consider separately the rights of the children concerned and that this constituted a breach of Article 8 of the Convention. An appeal in this case was heard by the Supreme Court earlier this year (2006) and a decision is expected shortly.
O’Donnell v. South Dublin Council, unreported, 22nd May 2007. This case concerned a Traveller family, three of whom suffered from a severely incapacitating condition. Ms Justice Laffoy found that there had been a breach of Article 8 because the Respondent Council had failed to provide adequate accommodation for the family.
“Mr. G,” unreported, 11th September 2007. In this case Mr. Justice McKechnie held that the Article 8 rights of an unmarried father had been breached when his former partner was able to remove their children to England without his consent.
Lydia Foy v. An t-Ard Chlaraitheoir & Others, unreported, 19th October 2007. This is the case of a transgendered woman seeking the provision of a birth certificate in her acquired gender as recognition of her new gender identity. This case is interesting in terms of the procedure involved as well as the outcome.