Summary of airey case

Facts : Mrs. Airey, four children, was maried to an alcoholic husband. Her husband frequently threatened her, and occasionally subjected her to physical violence. For about eight years, Mrs. Airey tried in vain to conclude a separation agreement with her husband. No result. Finally, she has been endeavouring to obtain a decree of judicial separation on the grounds of Mr. Airey's alleged physical and mental cruelty to her and their children, and has consulted several solicitors in this connection. However, she has been unable, in the absence of legal aid and not being in a financial position to meet herself the costs involved, to find a solicitor willing to act for her.

The application was manifestly ill-founded : Two principles have been established 1/ the Commission's decisions by which applications are accepted are without appeal, 2/ the Court is endowed with full jurisdiction and may determine questions as to admissibility previously raised before the Commission (Klass 1978).The Commission is normally required, after examining the merits of the case, to state an opinion as to whether or not there has been a breach (Article 31).
Domestic remedies have not been exhausted : The rule embodied in Article 26 (art. 26) "dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system" (De Wilde, 1971). There is no question of estoppel (forclusion), the Commission is the only one to decide in this matter

2/ Alleged violation of article 6 §1 (alone), her right of access to a court was effectively denied (the cost of litigation is prohibitive) : "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democractic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

A specialist in Irish family law regards the High Court as the least accessible court. The Court considers it most improbable that a person in Mrs. Airey's position can effectively present his or her own case.

The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (Belgian Linguistic, 1978). The Court is aware that the further realisation of social and economic rights is largely dependent on the situation - notably financial - reigning in the State in question. But, the Convention must be interpreted in the light of present-day conditions (Marckx, 1979) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals. The Article 6 § 1guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations", it leaves to the State a free choice of the means to be used towards this end. Despite the absence of a provision on legal aid for civil litigation, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, or by reason of the complexity of the procedure or of the case. The respect of civil rights is a duty of the State, even if it has an economical cost. The State should pay a lawyer if there is a fair chance to get into rights.

3/ Alleged violation of article 14 taken in conjonction of article 6 § 1, judicial separation is more easily available to those who can afford to pay than to those without financial resources :

Article 14 (art. 14) has no independent existence ; it constitutes one particular element (non-discrimination) of each of the rights safeguarded by the Convention. If the Court does not find a separate breach of one of articles that has been invoked both on its own and together with Article 14, it must also examine the case under the latter Article (art. 14). The position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case but this does not apply in the present case.

4/ Alleged violation of article 8, the failure of the State to ensure that there is an accessible legal procedure to determine rights and obligations in family legislation : "1/ Everyone has the right to respect for his private and family life, his home and his correspondence. 2/ There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. But, there may be positive obligations inherent in an effective respect for private or family life. Effective respect for private or family life obliges Ireland to make this means of protection effectively accessible to anyone who may wish to have recourse to the High Court to seek recognition in law of de facto separation from the husband or the wife ; violation of Article 8.

5/ Alleged violation of article 13, she was deprived of an effective remedy before a national authority for the violations complained of : "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

Since Articles 13 and 6 para. 1 (art. 13, art. 6-1) overlap in this particular case, the Court does not deem it necessary to determine whether there has been a failure to observe the requirements of the former Article (art. 13)