European Court dismisses case of Irish activists for swearing “to Almighty God”
European human rights judges have rejected a legal challenge to the presidential oath, a setback for activists seeking to remove from the Constitution statements made “in the presence of Almighty God”.
The presidential oath is enshrined in the Constitution and a ruling that it violates the European Convention on Human Rights has reportedly prompted calls for a referendum to change it.
The judgment of the European Court of Human Rights follows a case brought by social democratic co-leader Róisín Shortall and four co-litigants. The Government had argued that the action should be dismissed because the litigants were not victims of the constitutional obligation to make such declarations.
Thursday, unanimously, the case was declared inadmissible by a chamber of seven judges of the court of Strasbourg. “The decision is final,” he said.
“The tribunal, in declaring the applications inadmissible, found that the applicants had not provided reasonable and convincing evidence that they risked being directly affected by these requirements and therefore could not claim to be victims of a violation of the Convention. he added.
“The Convention did not allow applicants to complain about a provision of national law simply because they considered, without being directly affected by it, that it might contravene the Convention.
“The court had previously admitted that applicants could be potential victims in certain circumstances. But in order to claim to be a potential victim, an applicant had to produce reasonable and convincing evidence of the likelihood that a violation concerning him personally would occur; a mere suspicion or conjecture was insufficient.
These were clauses which oblige the president and members of the Council of State, which advises the president, to swear a declaration referring to “Almighty God” when taking office. Judges are required to take a similar oath.
Ms Shortall took the case with Sinn Féin TD John Brady, Senator David Norris, former Barnardo leader and former union adviser Fergus Finlay and Professor David McConnell of Trinity College Dublin.
In its submissions, the Government challenged both their status as litigant and the merits of their argument that the oaths violate their rights under the Convention. Government lawyers also argued that the rights of litigants to freedom of thought, conscience and religion had not been violated.
The litigants declared in their initial request that they should take an oath “to which they have a conscientious objection” if they were elected president or if they were asked to join the Council of State.
The oaths have already been questioned by the UN Human Rights Committee, which called for changes while in 1998 an Oireachtas committee recommended a choice of religious or non-religious statements. .
In an interview last May, President Michael D Higgins said he believed the religious oath he swore when he was inaugurated should be removed and replaced with an affirmation.
Regarding the presidency, however, the court said that the category of people who can claim to be victims of a requirement applicable only in election to the highest office of state must be much narrower than in other cases where it accepted a broad category of potential victims. .
“Mr. McConnell and Mr. Norris had shown no interest in running for President in the future. The remaining candidates had expressed their interest in very general terms, but suggested that it would be unnecessary for them to run for office. because they could not occupy the post if they were elected, ”said the court.
“None of the candidates sought to establish that they had a realistic prospect of successfully running for this post given their particular political situation and the demands of the Constitution.”
Regarding the Council of State, the court declared that litigants had to demonstrate that appointment to this body was a realistic possibility in order to show that they were directly concerned.
“None of the candidates had been invited to sit or claimed that such an appointment was under consideration. Mr. Finlay and Mr. Norris had made no comments on this issue, ”he said.
“The other candidates had suggested that their current or future experience qualified them for the service.
“However, given the entirely discretionary nature of such appointments, the Court considered their requests to be speculative. It follows that none of the applicants produced reasonable and convincing evidence of the likelihood that a violation affecting personally l one of them occurs because of this requirement.
In its writings, the Government had directly quoted the European Convention on Human Rights, asserting that the declarations were “necessary in a democratic society in the interests of public security, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others ”.
The litigants, however, said that such statements “exclude conscientious non-Christians and non-believers, as well as those who do not wish to violate their conscience, from some of the highest public offices in the country, unless they are willing to publicly declare and subscribe to a formula that goes against their conscience ”.
They noted that they were senior politicians and prominent members of civil society, claiming that they can legitimately and aspire to be elected president or appointed to the Council of State. “There is a real personal risk for them that these demands will prevent them from taking office or force them to publicly declare allegiance against their conscience,” they said.
But the government said the case law meant that litigants could not be rightly seen as “victims” of the alleged rights violation. “On this basis alone, the complaint must be declared inadmissible. “
The litigants responded that they were indeed victims, saying that claims that oaths were “necessary in a democratic society” could not be taken seriously. They also accused the government of hyperbole.