The Irish judge tipped to lead European Court of Human Rights at a ‘watershed moment’

The European Court of Human Rights is not part of the European Union – it’s separate, older and larger, comprising 46 countries – and was born in the wake of the second World War with the aim of preventing its horrors from recurring.

The court is nevertheless the target of polemicists that deliberately conflate it with EU courts in public statements – most recently in Britain’s Conservative leadership campaign, in which candidates competed by suggesting withdrawing from the court as part of a supposedly unfinished Brexit process.

The next president of the court could be an Irishwoman: Síofra O’Leary (no relation to this reporter), who taught law for years in various European universities before being appointed as Ireland’s judge at the court in 2015.

She told The Irish Times she “wouldn’t speculate” about the election to replace the current office holder, Iceland’s Robert Spano, whose term expires in May. But, as the court’s current vice president, she would be in a natural position to run.

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It’s at a time when the court and the principles face historic challenges, as the world’s democracies reduce in number, and war has returned to the European continent.

“I think you’re absolutely right to identify this as a watershed moment,” the Dubliner said.

“We’ve had a lot of challenges in states in Europe in recent years. We’ve had the financial crisis, we’ve had a migration crisis, we’ve had to a certain extent in some states had a Brexit crisis, and we’ve had Covid, and now we have war.

“But perhaps the events on the 24th of February [when Russia invaded Ukraine] reminded people of exactly why this organisation, the court and the convention system is so important,” she said.

“The raison d’etre of the court is to ensure that Europe doesn’t relive the horrors of the past.”

To recap a little history, the idea that European countries should have international commitments to uphold certain fundamental human rights took hold in the wake of the Nuremberg trials, at a time when the continent was grappling with how to prevent a repeat of mass murder and the crushing of freedoms by authoritarian regimes.

Civil and political leaders including Britain’s Winston Churchill, France’s François Mitterrand and Germany’s Konrad Adenauer met in 1948 for a Congress of Europe in The Hague. They jointly pledged their desire for “a charter of human rights guaranteeing liberty of thought, assembly and expression as well as right to form a political opposition” – with a court empowered to enforce implementation.

Ireland had a role in this process. Judge O’Leary points in particular to the contribution of Seán MacBride, sometime chief of staff of the IRA, who went on to become an international statesman as minister for external affairs and pushed for acceptance of the court’s jurisdiction in Ireland.

MacBride belonged to a camp that pushed for a system whereby individuals could bring a case challenging a decision by national authorities to an international court – something taken for granted now.

“In the 1950s, that was revolutionary in terms of international law,” O’Leary said.

[ Retired High Court president Mary Irvine: ‘I have left the job that I have loved most’ ]

What emerged was the European Convention on Human Rights, setting out that individuals had a basic right to life, freedom from torture, fair trials and so on. The European Court of Human Rights was established to rule on cases alleging breaches of rights. Countries found in breach are required to make changes domestically to stop it happening again. These are enforced more or less through peer pressure, in the regular meetings of representatives of its 46 member states in the Committee of Ministers – currently chaired by Minister for Foreign Affairs Simon Coveney, as Ireland holds the presidency.

Just as Ireland had a role in forming the human rights convention and the court, so too did it shape Ireland. The 1979 Airey v Ireland case, taken by a Cork woman who sought to separate from her abusive husband but could not afford a lawyer, led to the establishment of a civil legal aid programme. A decade later, senator David Norris successfully took a case arguing that Ireland’s criminalisation of homosexual acts between consenting adults infringed his right to privacy.

Not long after, the court ruled in favour of two organisations seeking freedom to provide information about abortion services abroad to Irish women.

Take a look at any list of judgments regarding a country, “and you’ll see a bit the reflection of how history and society have evolved in any particular state”, Judge O’Leary said.

“And you can see from one country to the next where certain weaknesses in the system can be located. And that’s partly our function: to act as a mirror for the state.”

An early landmark case in international law was when Ireland as a state took the United Kingdom to the court in 1978 over the inhumane treatment of prisoners in Northern Ireland. This developed some precedents in how to deal with a state that is not co-operating, and how evidence can be gathered in those circumstances, that are now being brought to bear in ongoing proceedings regarding Ukraine and Russia.

Ukraine was exceptionally quick to turn to the court in the immediate days after the Russian invasion, lodging a case alleging massive human rights violations on February 28th.

The court delivered interim measures three days later – an urgent instruction where there is risk of imminent harm – telling Russia “to refrain from military attacks against civilians and civilian objects”.

Russia was expelled from the Council of Europe two weeks later in a vote of its Committee of Ministers. It is an unprecedented situation, and it is somewhat unclear how it will play out for the cases involving Russia still making their way through the court. Formally, Russia remains a party to the convention on human rights until mid-September.

The ignoring of judgments by states is a wider issue, notably by Turkey over the long years of detention without trial of prominent Kurdish politician Selahattin Demirtas. The court has found his detention was politically motivated, noting it took place during “two crucial” electoral campaigns. His release was granted in 2019, only for a fresh arrest warrant to be issued keeping him in jail.

There is trouble brewing between Ireland and the UK on this too. A Bill is currently working its way through Westminster that would offer amnesty to co-operative individuals regarding Troubles-era killings.

It was introduced by a British government that campaigned on a pledge to stop the prosecution of British soldiers. There are deep concerns this would shut off access to justice for victims and their families, something the British government was instructed to provide following a series of challenges to the adequacy of investigations taken to the court, known as the McKerr group.

For Ireland, and for states that transitioned from communism in Europe, being part of the court was part of emerging statehood and part of building robust democratic structures.

“For larger states, it’s perhaps a little bit more complicated,” Judge O’Leary observed.

“Each state and particularly venerable democracies, if you like, perhaps presumed and still presume to this day that everything’s fine at home. But in fact, our case law and the way in which the court has operated over the years demonstrates that all states have their weak points.”

Why would a state choose to be part of it? “It’s all about a commitment to a rule of law-based order and multilateralism. And for Ireland, I don’t think that’s ever been a question. We went from a situation of isolation to integration on that journey.”

Technically, cases should only come to the court when all national routes for redress have been exhausted.

“We are not here to replace national judges. We’re not here to replace the Irish Constitution,” Judge O’Leary said. “We’re here as a court of last resort, when in the eyes of the individual, the domestic mechanisms have failed.”

Asked which cases have stuck with her over the years, Judge O’Leary mentions an instance in which a child born through surrogacy was taken away from the commissioning parents (“an incredibly difficult case legally, a very difficult case emotionally”), and a case taken regarding the conditions of detention for a man imprisoned in Ukraine.

It involved a “young man who wasn’t much older than my own son, whose life meant that by the time the case got to us, he had already died,” she said.

“The level of violence and the difficulties that he had been subjected to – is Europe better off without a system to which his mother can come and actually complain about the treatment that he received?”

Such cases “reminded me very clearly that the job we do here is almost like we’re legal or judicial surgeons. We have to keep a very cool mind. We have to stick to the law. That’s our job, and that’s where we’re strongest,” she said.

“But never forgetting that there is a human life behind the case.”

The court currently has an intimidating backlog of more than 70,000 cases pending cases, and works through it with an annual budget of €74.5 million (for context, that of the Court of Justice of the European Union, which adjudicates on EU law, is €464.8 million).

The court tweaked procedures to speed matters up: allowing single judges to filter out cases that are inadmissible or manifestly unfounded, and reserving the full grand chamber of 17 judges for only the most difficult or far-reaching cases.

“If you thought every day about the enormity of the task, you wouldn’t get the job done,” Judge O’Leary said. “If you wake up in the morning and think there are 72,000 cases pending – how are we going to manage this?”

“We have to concentrate on what we do best which is upholding the rights and freedoms in the convention. Case by case, with a broader reference to the overall case law,” she said. “And you soldier on trying to ensure that the judgments are based on law. Not on politics, not on passion, and are as rigorously reasoned as possible.”