The Government is likely to argue that the woman who is bringing a case challenging the constitutional ban on abortion in the European Court of Human Rights cannot do so because she has not exhausted all domestic remedies.
It emerged at the weekend that a woman, known as "D", was bringing such a case to the Strasbourg court. Normally a person can only argue a case in Strasbourg after all domestic remedies have been exhausted. Yesterday the Minister for Justice pointed this out, and said that he was unaware of any such case being taken to the Irish courts. He also said he was not familiar with the case.
It was reported at the weekend that D became pregnant with twins. One of these died in the womb, and the second was found to suffer abnormalities. As abortion is illegal in Ireland, unless the woman's life is in danger, she travelled to Britain and had an abortion. She is arguing that having to do so breaches her rights under Articles 3 and 8 of the European Convention on Human Rights. Article 3 prohibits inhuman or degrading treatment, and Article 8 guarantees respect for private and family life.
If a case is taken against Ireland to the European Court of Human Rights, the Department of Foreign Affairs is contacted in the first instance. The Department of Justice would become involved only if the matter came under its remit when it was a domestic matter. The Attorney General has been instructed by the Departments of Health and Foreign Affairs in this instance, and the Government is defending the case.
It is open to anyone to write to the Strasbourg court and state that his or her human rights have been infringed by a state that is signatory to the European Convention on Human Rights. But usually where domestic remedies have not been exhausted these cases are rejected. According to legal sources this is likely to be argued strongly by the Government.
However, in exceptional cases a person can argue that no domestic remedy was available. There is a high bar to cross to have this argument accepted, but it sometimes is, allowing the case to go ahead.
According to a Government spokesman, this case is at a very preliminary stage, and the papers on both sides are still being filed. "We'll see how things pan out when the papers are filed," he said.