| Analysis |
Woman is hindered in filing for legal divorce. Violation of Article 6 ECHR, right to access to a court and right to a remedy. Also violation of Artilce 8 ECHR? Yes, the Court finds: ‘The Court does not consider that Ireland can be said to have “interfered” with Mrs. Airey’s private or family life: the substance of her complaint is not that the State has acted but that it has failed to act. However, although the object of Article 8 (art. 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: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. In Ireland, many aspects of private or family life are regulated by law. As regards marriage, husband and wife are in principle under a duty to cohabit but are entitled, in certain cases, to petition for a decree of judicial separation; this amounts to recognition of the fact that the protection of their private or family life may sometimes necessitate their being relieved from the duty to live together. Effective respect for private or family life obliges Ireland to make this means of protection effectively accessible, when appropriate, to anyone who may wish to have recourse thereto. However, it was not effectively accessible to the applicant : not having been put in a position in which she could apply to the High Court, she was unable to seek recognition in law of her de facto separation from her husband. She has therefore been the victim of a violation of Article 8.’
Remarkable, a number of dissenting judges find. Why would this be considered a violation of the right to privacy, if it really concerns the right to an effective remedy, which the Court already found a violation of. In addition, like the Marckx case, it might be wondered whether, instead to a reference to ARticle 8 ECHR, a reference to Article 12 ECHR might not have been better, as the latter provision covers the right to marry.
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