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Savita’s family may take a case to the European Court of Human Rights

TheJournal.ie takes a look at the procedure – and why the failure to implement the Coroners’ Bill 2007 impacts this case.

Image: PA/PA Wire/Press Association Images

PRAVEEN HALAPPANAVAR’S LAWYER has told RTÉ that he plans to take a case to the European Court of Human Rights (ECHR) if the Government fails to announce a public inquiry into the death of his wife Savita by the end of the day.

The Halappanavar family have warned on numerous occasions that they want nothing less than a public investigation into the medical treatment received by the 31-year-old at Galway University Hospital last month.

Seventeen weeks pregnant, she was admitted after presenting with severe back pain on 21 October. It was discovered that she was miscarrying, an event which continued for two-and-a-half-days. Immediately afterwards, Savita was brought to a high-dependency unit suffering from septicaemia. She died four days later on 28 October.

Solicitor Gerard O’Donnell told RTÉ News that he had heard nothing from the Department of Health since receiving a letter confirming the family’s request for a public inquiry.

The process

If the family does bring proceedings to Strasbourg, there may be a fight to even have the case heard.

The ECHR receives allegations of violations of the European Convention on Human Rights after receiving applications from individuals or States.

The first stage is for the court to decide if the case is admissible as it can only deal with matters where all domestic remedies have been exhausted. In the well-known ABC versus Ireland, the court dismissed the State’s objection that ‘C’ had failed to exhaust all domestic remedies, agreeing there was no suitable domestic remedy available to her. In the cases of ‘A’ and ‘B’, the court accepted that any constitutional action in Ireland would have little prospect of success.

Fiona de Londras, Professor of Law, Durham Law School, told TheJournal.ie that the Halappanavar family would be relying on the same outcome if it brings its complaint to the ECHR.

“Unless he can establish that there was no reasonable prospect of succeeding in a judicial review in Ireland, it is unlikely that the Court would find he had exhausted all domestic remedies,” she explained.

According to the Irish Council for Civil Liberties, a human rights group which has been dealing with the family’s solicitor, none of the three investigations into Savita Halappanavar’s death fully satisfy Article 2 of the European Convention. The court has interpreted the article on a number of occasions, giving member States a duty to investigate suspicious deaths and, in certain circumstances, a positive duty to prevent foreseeable loss of life.

Mark Kelly, director at the ICCL said, “The HSE, HIQA and inquest procedures that have begun do not satisfy the requirements of Article 2 of the European Convention on Human Rights. It appears to the Irish Council for Civil Liberties that, short of a full public inquiry, Mr Halappanavar may have no effective remedy in Ireland under Article 2. An application may proceed directly to Strasbourg if there are no effective domestic remedies for a potential violation of the Convention.”

The coroner’s role

An inquest in Ireland does not satisfy the article as coroners are still working under a 1962 Act which prohibits an inquest looking beyond the how, when and where. It cannot, therefore, be seen as an independent investigation into the circumstances of the death. Draft legislation to bring the Bill into line with the European Convention was entered in 2007 but never implemented.

Under current law, questions of civil or criminal liability cannot be considered or investigated at an inquest. The 50-year-old Act states, “Every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when, and where the death occurred.”

In 2007, then Justice Minister Michael McDowell introduced the Coroners Bill, which he said would bring “one of the State’s oldest public services into the 21st century”.

His department said the bill would “widen the current scope of the inquest from investigating the proximate medical cause of death to establishing in what circumstances the deceased met his or her death”.

A Coroners Review Group recommended this extension of the remit of the coroner in its 2000 report. It also asked for it to be expressed in positive terms in any new legislation.

At the time, McDowell said he was of the view that the new Bill would better fulfil the obligations placed on the State by the European Convention, particularly with regard to the Article 2 requirement to investigate certain deaths of people which involved the State.

The draft legislation currently sits at committee stage in the Seanad. At a conference dinner with the Coroners Society of Ireland in September this year, current Justice Minister Alan Shatter said the challenges with regard to public finances had affected plans to reform services.

“While it would be my intention to progress the Coroners Bill as soon as is practicable, the Government’s current legislative programme – particularly in the Justice area – is very heavy. I cannot, unfortunately, be definitive tonight on timeframes,” he added.

Earlier this week, Savita’s father Andanappa Yalagi said the family did not trust or understand the HSE investigation and appealed for a public inquiry.

Savita: Family give Health Minister public inquiry ‘ultimatum’

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