My thoughts on today's ECtHR rulings in the #symphysiotomy cases: the Court took a narrow, formalistic approach, that allowed technical and procedural considerations to obscure egregious rights violations, and expected the impossible of the applications. (Thread)

The complaint related to breaches of Art 3 (inhuman and degrading treatment), Art 8 (private life/physical integrity) & Art 13 (effective remedy). However, the Court engaged with little substantive case law on any of these. Its reasoning seemed more focused on Art 6 (fair trial).

The Court accepted (LF, para 129) that the women did not know that a symphysiotomy would be performed on them - but yet never engaged in any assessment of whether this constituted absence of informed consent in ECHR (as opposed to Irish) law, even though this was the core issue.

Questions about violation of physical integrity were glossed over by reference to the paternalistic culture of the time. No assessment was made of whether this culture was consistent with the human rights established by the ECHR in 1950.

Findings of adequacy of domestic court proceedings were bolstered by reference to various reports and the ex gratia scheme. The Court cited criticisms of those processes by multiple international human rights bodies as background information, but ignored them in its reasoning.

The Art 3 complaint in KO'S was dismissed due to non-exhaustion of domestic remedies. The Court did not point to any principles of domestic law that might have supported such a claim (departing from its own approach in O'Keeffe v Ireland, when it required the State to do this).

The ECHR Act 2003 could not apply as it does not have retrospective effect; and the relevant constitutional right (protection from inhuman and degrading treatment) had not yet been recognised by the Courts when KO'S had her symphysiotomy. No other obvious cause of action existed.

This suggests that applicants must try to fashion novel causes of action before domestic courts if they are to be deemed to have exhausted domestic remedies. But the range of potential novel actions is essentially limitless. This is an insurmountable barrier to inadmissibility.