Supreme Court Judge Says Strasbourg Has ‘very Serious Questions’ over New Role

By Ronan McGreevy
Irish Times
September 5, 2014

http://www.irishtimes.com/news/crime-and-law/supreme-court-judge-says-strasbourg-has-very-serious-questions-over-new-role-1.1918068

Mr Justice Adrian Hardiman: said it was up to the European Court of Human Rights to clarify if had abandoned the principal of subsidiarity or if the O’Keeffe judgment was simply an “outlier”. Photograph: Eric Luke/The Irish Times

A senior judge has warned the European Court of Human Rights in Strasbourg may be exceeding its own powers by taking on cases that have not been fully heard in member states. Mr Justice Adrian Hardiman of the Supreme Court said it would appear from the recent Louise O’Keeffe judgment that the Strasbourg court’s interpretation of its own powers had been changed in a “radical and indeed a revolutionary way”.

At a legal conference in Dublin City University yesterday, Mr Justice Hardiman said that article 35.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which set up the court, was specific in what cases it could hear. “The court may only deal with the matter after all domestic remedies have been exhausted,” it states.

However, Mr Justice Hardiman said that principal was exceeded in the case of the landmark judgment of Louise O’Keeffe v Ireland, in which Ms O’Keeffe successfully sued the State for liability over the sexual abuse she suffered at the hands of her primary school principal in Kinsale during the 1970s.

In 2005, Ms O’Keeffe brought a case to the High Court alleging that the State was directly liable in negligence for the abuse she suffered, although national schools are privately owned and run usually by the Catholic Church. The High Court rejected her case. She also brought a case that the State was vicariously liable as it had a supervisory role in ensuring that the school principal involved, Leo Hickey, behaved properly towards his pupils.

She appealed the case of vicarious liability to the Supreme Court, but did not appeal the claim of direct liability. Instead, she went to the European Court of Human Rights with the claim of direct liability.

Mr Justice Hardiman said its decision to hear the case would appear to be at “odds with the long-established jurisprudence of the Strasbourg court itself”.

The court allowed the case to go ahead because it deemed that the “core grievance” of neglect by the State was the same in both the direct liability and vicarious liability cases she had taken. The court ruled in her favour, awarding her ˆ30,000 in damages and ˆ85,000 in legal costs.

The State objected to the case being heard because of article 35.1, but it was rejected by a majority decision of the court. Mr Justice Hardiman said the justification given for the decision to allow the O’Keeffe case to go ahead “appears to me to amount to an attempted amendment of the charter”.

He told the conference: “If there is now to be a right simply to bypass national courts or any of them, then having regard to the role of those courts in Bunreacht na hEireann, very serious questions might arise.”

Mr Justice Hardiman said it was now up to the European Court of Human Rights to clarify if had abandoned the principal of subsidiarity or if the O’Keeffe judgment was simply an “outlier”.