Information Note on the Court’s case-law No. 88
July-August 2006
D. v. Ireland (dec.) - 26499/02
Decision 27.6.2006 [Section IV]
Article 8
Article 8-1
Respect for family life
Respect for private life
Abortion laws obliging applicant to have an abortion abroad despite accepted fatal foetal abnormality: inadmissible (non-exhaustion of domestic remedies)
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights: inadmissible
In late 2001 the applicant, an Irish national, became pregnant with twins. In early 2002 an amniocentesis indicated that one foetus had stopped developing at eight weeks and that the second foetus had a chromosomal abnormality known as Trisomy 18 (or Edward’s Syndrome) which she was given to understand was a fatal abnormality. A second amniocentesis confirmed those findings. The applicant therefore decided that she could not carry the pregnancy to term. Unable to obtain an abortion in Ireland, she travelled to the United Kingdom where the abortion was performed. She could not remain in the United Kingdom for counselling on, among other things, the genetic implications for future pregnancies, although she was given some statistical information about the recurrence of the abnormality. As a result of the abortion, she required follow-up medical treatment in Ireland: she explained to the hospital and to her own family doctor that she had had a miscarriage.
Before the Court the applicant complained about the lack of abortion services in Ireland in the case of lethal foetal abnormality. She maintained that the devastating impact of the diagnosis was unnecessarily exacerbated by the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 which limits what a doctor can tell a pregnant woman with a lethal foetal abnormality and prohibits that doctor from making proper arrangements, or a full referral, for a therapeutic abortion abroad. She also complained that she had been discriminated against.
The parties disagreed as to whether the applicant had complied with the requirement to exhaust domestic remedies laid down in Article 35(1). The Court emphasised that it is an established principle, that in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation. A declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights. As to the accessibility of this remedy, the applicant had not argued that she would have been unable to obtain legal representation in what would have been a landmark case. Moreover, a declaration by the Supreme Court that a self-executing provision of the Constitution allowed an abortion in Ireland in the applicant’s case, accompanied by a mandatory order, would have been capable of providing redress. Since abortions (in the case of a “real and substantial risk” to the mother’s life) were already available in Ireland and since the Masters of the main obstetric hospitals were not against terminations in the case of a fatal foetal abnormality, the Court found unsubstantiated the suggestion that the relevant declaratory and mandatory orders would not have been implemented in good time.
The Court then examined whether the proposed remedy could be considered adequate and effective in the circumstances of the applicant’s case, whether there were special circumstances absolving the applicant from so exhausting and, more generally, whether it can be concluded that she did everything that could be reasonably expected of her in the circumstances to satisfy the exhaustion requirements of Article 35 (1). The applicant considered that she could not have been reasonably expected to undertake the proposed constitutional remedy for a number of reasons: she pointed to the delay any such proceedings would involve; she maintained that the proceedings could lead to her identification and that she would be unable to cope with the inevitable publicity her case would attract; and maintained that her costs exposure would be too high.
The Court accepted that a constitutional remedy had been in principle available to the applicant but that some uncertainty had attached to three relevant matters arising from the novelty of the substantive issue and the procedural imperatives of the applicant’s position – the chances of success, the timing of the proceedings and the guarantees of the confidentiality of the applicant’s identity. Having regard to the potential and importance of the constitutional remedy in a common law system especially as regards the matter at issue the applicant could reasonably have been expected to have taken certain preliminary steps towards resolving the above - noted uncertainties. In the Court’s view, she should have obtained legal advice on those substantive and procedural uncertainties and issued a Plenary Summons allowing her to apply for an urgent, preliminary and in camera hearing to obtain the High Court’s response to her timing and publicity concerns. The Court was satisfied on the evidence that such preliminary steps could have been completed without disclosing the applicant’s identity and in a matter of days and, further, that the evolution of those initial steps would have elucidated some of the uncertainties and allowed her to assess the effectiveness of the remedy in her situation as the days went by. She had not therefore complied with the requirement to exhaust domestic remedies as regards the availability of abortion in Ireland in the case of fatal foetal abnormality.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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