Mrs Airey claimed that the rights to a fair trial, respect for family life and non-discrimination guaranteed a right to legal aid in cases for judicial ordered separation; positive obligations of State; economic and social nature of civil and political rights; self-representation may not result in effective remedy; legal assistance to be provided where indispensable for determination of civil rights.
Mrs Airey sought judicial separation from her physically abusive husband. As she was unable to conclude a separation agreement with her husband, she sought a judicially ordered separation. She was unable to obtain such an order since she lacked the financial means, in the absence of legal aid, to retain a solicitor. The European Court of Human Rights held this was a violation of her right to access a court for determination of her civil rights and obligations (Article 6). Citing international law and the Convention’s intention they said that remedies must be effective not illusory. They noted that many civil and political rights had social and economic implications involving positive obligations. Accordingly, there was a right to legal assistance if it was indispensable for effective access to the courts. In this case, self-representation was ineffective given the complex procedure of the Irish High Court, the relevant Irish law, the emotional dimension of marital disputes and the possibility that her husband may be represented. The Court further determined that Article 8 -respect of family life- was violated. The right to respect for family life could entail positive obligations for the effective access to protective mechanisms concerning family life, in this instance, the ability to effectively petition for judicial separation. The Court did not address the claim of discrimination which raised the question as to whether denial of civil rights due to poverty amounts to discrimination.
Keywords: Airey v Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 E.H.R.R. 305, Women, Rights
Ireland later enacted a civil legal aid system but Mrs Airey no longer qualified because she had secured employment. The Irish government agreed, after being pressured, to fund her judicial separation action in the High Court. Mrs Airey eventually obtained a judicial separation. In 1980 a Scheme of Civil Legal Aid and Advice was established followed by legislation in 1995 but both have been criticized for lack of funding and an almost exclusive focus on family matters.
This case has been frequently cited as a precedent for demonstrating there are economic and social rights dimensions within civil and political rights and that States may have positive obligations with respect to civil and political rights. In addition, the case has formed an important precedent for arguing that the right to legal aid is an integral part of human rights.
Advocate: Solicitor: Mr Brendan Walsh Barrister: Mary Robinson Brendan Walsh & Partners 34 Upper Baggot Street Dublin 4, IRELAND Tel: +35 31 6602 9555
