What are human rights?
Human rights are rights we all have simply because we are human beings.
For example:
- Certain protections from wrongs, like torture or abuse
- Certain freedoms, such as the freedom to practice your religion etc.
It is the responsibility of the State to protect and vindicate the human rights of its citizens and those residing in the State. As such, the law in relation to the protection of human rights becomes important when a person engages with the institutions of the State.
What rights are set out in the Irish Constitution?
Article 40 of the Constitution sets out the following personal rights:
Article 40.1 – Equality before the law
All people are to be treated equally in law and by the law. The State must not ‘unjustly, unreasonably or arbitrarily’ discriminate between individuals. However, the Constitution does state that Irish law and the Government may take account of a person’s capability and circumstances.
Article 40.3.2 – The right to life
The Constitution protects everyone’s right to life. This means the Government must take appropriate measures to safeguard everyone’s life by making laws to protect citizens and people living in Ireland.
The courts have ruled that the right to life in the Constitution does not cover a right to euthanasia. In other words, there is no constitutional right to unnaturally bring forward the time of your death (for example, in a case of terminal illness).
Article 40.4 – Personal liberty
Every Irish citizen and others living in Ireland have the right to liberty.
However, this Article also states that Irish law may set out certain exceptions to this right. For example, you can be imprisoned if you are found guilty of having committed a crime.
Article 40.6.1.i – Freedom of expression
You have the right to freely express your views and opinions. However, the right can be restricted or limited provided this is done legally and proportionately.
The Constitution allows restrictions to be placed on the right in the interests of public order and morality. For example, speech that would incite violence is unlawful as it may put public order at risk.
The Constitution also protects a person’s right to their good name in Article 40.3.2. If you believe that another person has unlawfully tarnished your good name, you may be able to take a legal case against them for defamation.
Article 40.6.1.ii – Freedom of assembly
Everyone has a right to assemble or meet peacefully. Like the right to freedom of expression, this right can be limited or restricted in the interests of public order and as provided for by law.
Article 40.6.1.iii – Freedom of association
People have the legal right to form associations or unions. These may include, for example, sporting, social, charitable, commercial or political unions. However, this right is also limited as the law restricts certain types of associations and unions in order to protect public order and as provided for by law.
Does the Constitution protect any unwritten rights?
The law recognises that Article 40 gives rise to some personal rights that are not written down. These are called ‘unenumerated rights’. They include the:
- Right to fair procedures
- Right to bodily integrity
- Right to privacy
- Right to earn a livelihood
The right to fair procedures
This covers a wide range of rights, such as:
- The right to be heard: If the Government or a public body is considering a decision that may adversely or negatively affect you, they must tell you about it in advance. You have the right to comment before the decision is taken. You must therefore be shown all the information that is being considered. In some situations, such as asylum applications where officials need to be sure you are telling the truth, you have the right to an oral hearing in person.
- The right to be given reasons for the decision: When Government or another public body makes a decision that may adversely or negatively affect you, they must give you details of the decision and the reason for the decision without delay. This usually means sending you the decision in writing, with enough detail to explain what it is and why it was reached. This is very important, as it enables you to challenge the decision in the courts if necessary.
- The principle against bias: This rule means that a person who is making a decision on behalf of the Government must be independent and impartial. They should have nothing to gain from the decision and have no personal interest in it. Where you can appeal against an initial decision, the appeal should be conducted by someone who was not involved in making the original decision. For instance, if a council official refuses to place you on its housing list, and you appeal that decision, you can ask for a different official to deal with your appeal.
The right to bodily integrity
The State cannot interfere with your body, unless it does so in a manner that is justified and proportionate in accordance with law. Also, the State must not torture you or treat you in an inhuman or degrading way – and must take steps to prevent such treatment.
The right to privacy
The right to privacy includes the right to:
- Vote by secret ballot in elections
- Have your private written communications and phone conversations kept confidential
- Protection of marital privacy
However, your right to privacy may be limited if necessary for public order and in accordance with law. For example, An Garda Síochána may obtain a search warrant for your records if they believe that you are a suspect in a criminal investigation.
The right to earn a livelihood
Everyone in Ireland has the right to work and earn a wage or a salary. This includes those seeking asylum in Ireland.
What special rights do children have under the Constitution?
Article 42A of the Constitution gives children separate and additional rights to those of their parents. Article 42A became part of the Constitution in 2015.
Article 42A – The rights of children
- The best interest of the child is the most important factor when the State has to step in to protect their safety or welfare. For example, if the Child and Family Agency applies for a court order to take a child into care, the judge’s main consideration must be the child’s best interest.
- Children have a right to have their views heard and considered (taking into account their age and level of maturity) in court cases that concern them.
These rights may arise in cases involving adoption, divorce and separation, child protection, and many more.
What rights do I have concerning my home, under the Constitution?
Article 40.5 – The inviolability of the dwelling
- Entry: No-one can enter your home without a legal right to do so. This rule applies to many types of home, including caravans and mobile homes. An Garda Síochána may enter only if they have a warrant or if they believe that a crime is about to be committed there.
- Proportionality: Courts can only permit bodies such as local authorities to interfere with people’s homes if it is proportionate to do so.
For example, if you have unlawfully parked a caravan on public land, the local council may apply for a court warrant to remove it. The court must decide if this would be a proportionate measure. Proportionality here means balancing your right to an undisturbed home life against other people’s right to use the public land, and the court might ask the council to consider a less abrupt solution than towing away your caravan.
What rights are set out in the European Convention on Human Rights (ECHR)?
Article 2 – Right to life
Article 2 of the European Convention on Human Rights (ECHR) protects the right to life. This means that the Government cannot try to end anybody’s life and must take measures to safeguard everyone’s life.
Example: Safeguarding a family fleeing domestic violence
If a parent has to escape a home where their or their children’s lives are at risk, the local authority must provide alternative housing or a refuge.
Example: Investigating a death in custody
When a person dies in custody or while detained in, for example, a psychiatric hospital, there must be an independent investigation. This also applies where the State is involved in a death (such as if someone is shot and killed by a member of An Garda Síochána).
For more information, we have a guide on the rights of family members at inquests under Article 2 of the ECHR.
The European Court of Human Rights (ECtHR) has also published a guide on the right to life under Article 2.
Article 3 – Freedom from torture and inhuman or degrading treatment
No Government or government agency can subject any person to torture or to inhuman or degrading treatment. There are no circumstances where this type of treatment is permitted. In some cases, this may also prohibit the Government from deporting someone who is seeking asylum in this country.
Torture means deliberately causing serious and cruel physical or mental suffering to another person for a reason such as punishment or seeking to obtain information.
Inhuman treatment is treatment that causes intense physical or mental suffering.
Degrading treatment is treatment that is extremely humiliating and undignified. Factors that make treatment degrading include how long it lasts, its physical or mental effects, and the personal characteristics of the person who is subjected to it.
The ECtHR has published a guide to Article 3 of the ECHR.
Article 4 – Freedom from slavery and forced labour
The right to be protected against slavery is absolute. This means it can never be altered.
On the other hand, freedom from forced labour is a limited right. It does not apply to:
- Prison or community service
- Work that the Government requires in a state of emergency
- Other civic obligations, such as serving on a jury
The ECtHR has published a guide to Article 4 of the ECHR.
Article 5 – Right to liberty and security
This is a qualified right. It means you cannot be denied your personal freedom or detained unless it is necessary and allowed by law.
This right to liberty can be restricted if, for example:
- You are found guilty of a crime and detained in prison.
- There is a reasonable suspicion that you have committed a crime.
- Someone is trying to stop you from committing a crime.
- You have a mental health condition that means you should be detained to protect your safety or the safety of others.
The ECtHR has published a guide to Article 5 of the ECHR.
Article 6 – Right to a fair trial
You have the right to a fair and public trial if you are charged with criminal or other offences. The hearing must take place within a reasonable period of time and must be dealt with by an independent and impartial decision-maker. The information upon which the decision is based must be made available to everyone involved.
Article 6 also covers legal aid. It states that, in certain circumstances, legal aid must be provided to ensure you can have a fair trial. Factors in deciding whether you should get legal aid include:
- The importance of what is at stake for you
- Your vulnerability and ability to represent yourself
- Your emotional involvement and how it affects your case
- The need to use expert evidence and to question witnesses
The ECHR recognises that there are times when the public and the media may not be allowed to access court hearings, such as where the hearing relates to family law matters or children.
The ECtHR has published a guide to Article 6 and criminal law, as well as a guide to Article 6 and civil law.
Article 7 – No punishment without law
Article 7 ensures that nobody can be charged with a criminal offence for an action that was not a crime at the time of the action.
The ECtHR has published a guide to Article 7.
Article 8 – Respect for your private and family life
Article 8 protects your right to respect for your private life, your family life, your home and your correspondence (such as letters, emails and text messages) and phone calls.
Private life: The right to a private life under the ECHR covers many areas. It includes:
- Your right to not be persecuted for your sexual orientation
- Your right to accept or refuse medical treatment
- The need to keep sensitive documents, such as medical records or official records, securely and not to share them, except with your permission or in certain specific circumstances
Family life: The concept of family life is separate from, but linked with, private life. The right to enjoy a family life means the Government should not interfere in your family relationships. Family life includes relationships between a couple who are not married, an adopted child and their adoptive parents, and in some cases a foster parent and fostered child.
Under Article 8 of the ECHR, your home is any structure you live in, such as a house, caravan or tent, and it can be owned, rented or loaned. The right to respect for your home is the right to use it without unlawful or disproportionate interference.
Nobody can enter or interfere with your home unless they have a legal right to do so. For example, the police may only enter if they have a warrant or believe a crime is about to be committed there. Courts can only permit bodies such as local authorities to interfere with people’s homes (for example, by removing a caravan that is unlawfully placed on public land) if it is proportionate to do so.
In certain cases, where it is legal, necessary and proportionate, the State can interfere with your right to a private life and family life.
It can do this to:
- Protect national security
- Protect public safety
- Protect the economy
- Protect health or morals
- Prevent disorder or crime
- Protect the rights of other people
The European Court of Human Rights (ECtHR) has published a guide to Article 8 of the ECHR.
Article 9 – Right to respect for freedom of thought, belief and religion
Article 9 gives you the right to hold and practise religious beliefs, and also the right not to have religious beliefs. It protects your right to act on any beliefs in public (for example, by wearing religious clothing such as a headscarf in a public space).
Limitations can only be placed on this right in particular circumstances where it is proportionate and necessary to protect public safety, public order, health, or the rights and freedoms of other people.
The ECtHR has published a guide to Article 9 of the ECHR.
Article 10 – The right to freedom of expression
The ECHR gives you the right to freely express your views and opinions. However, the right can be restricted or limited as long as this is allowed by law for a legitimate purpose and is done in a proportionate way.
Legitimate reasons for restricting the right include to:
- Protect national security, territorial integrity (the borders of the state) or public safety
- Prevent disorder or crime
- Protect health or morals
- Protect the rights and reputations of other people
- Prevent the disclosure of information received in confidence
- Maintain the authority and impartiality of judges
The ECtHR has published a guide to Article 10 of the ECHR.
Article 11 – The right to freedom of assembly and association
The ECHR gives you a right to assemble (for example, in staging a peaceful protest) and to join an association, such as a trade union or other grouping. This right can be limited or restricted in the interests of national security or public safety, to prevent disorder or crime, to protect health or to protect the rights and freedoms of others. However, limitations can only be placed on the right if they are necessary, proportionate and permitted by Irish law.
The ECtHR has published a guide to Article 11 of the ECHR.
Do all laws in Ireland conform with the Constitution?
All government legislation must conform with the Constitution.
All laws are therefore considered, by definition, to meet the requirements of the Constitution unless a court decides otherwise. This is called the presumption of constitutionality.
Where a judge finds that a piece of legislation, or part of it, does not conform with the requirements of the Constitution, they may strike down all or part of the legislation, so it is no longer valid.
Do all laws in Ireland conform with international human rights law?
All laws are also presumed to conform with the European Convention on Human Rights (ECHR), which is part of Irish law to the extent set out in the European Convention on Human Rights Act 2003 (the ECHR Act).
What if a government ruling breaches human rights law?
Under Section 5 of the ECHR Act 2003, the High Court, the Court of Appeal or the Supreme Court (known as the Superior Courts) can declare that an Irish law is wholly or partly incompatible with the ECHR. In this situation, the law remains in place and the Government must decide what to do about it.
Can I challenge a government measure that has violated my human or constitutional rights?
You may be able to challenge a government measure or legal ruling by going to court if:
- You can show that the government measure has caused or may cause you physical or other harm
- You believe you have been denied your human or constitutional rights
- You believe a legal rule does not conform with the Constitution or the ECHR
This advice applies to breaches of your rights under the Constitution or the ECHR Act 2003. It does not apply to cases of discrimination, which are covered by the Equal Status Acts 2000-2018 or the Employment Equality Acts 1998-2015. For more information, see the section below: Where do I take a case of discrimination?
We recommend that you get legal advice before challenging a breach of law in court.
How can I challenge an action or decision of the Government in court?
There are two ways to challenge the Government:
- Judicial review, or
- Plenary proceedings
What is judicial review?
Judicial review is a way for the High Court to challenge a decision, or decision-making process, of a public body or lower court. This decision must involve public law (for example, a council’s failure to maintain the roads or how it prioritises applicants for housing). The public body must be a person or organisation with a public function, such as a government minister, local council, planning authority or tribunal.
To apply for judicial review, you must show you have been affected by the decision you want to challenge. In most cases, you should apply for judicial review within three months of the decision, but the time limit is shorter for matters of immigration or asylum.
What are plenary proceedings?
Plenary proceedings take place in the High Court where there is a dispute between you (the plaintiff) and the other party (the defendant). This is where both sides make reasoned arguments. Plenary proceedings are also used where you are claiming an unspecified or complicated amount of compensation.
Proceedings start with a plenary summons. Next, the parties exchange pleadings. In other words, you send the defendant a statement of claim setting out your complaint, and they return a statement of defence. A trial will be arranged, and witnesses may be called.
We recommend that you get legal advice if you believe your legal rights have been breached by a decision of the Government or by a legal ruling.
Where do I take a case of discrimination?
Most cases of discrimination fall under the Equal Status Acts 2000-2018 or the Employment Equality Acts 1998-2015. This applies whether you have been discriminated against by a private organisation or person (such as a retailer or your employer), or by the Government or other public body.
You normally take such cases to the Workplace Relations Commission (WRC) rather than to a court, although there are some exceptions to this rule.
If you are discriminated against on or at the point of entry to a licensed premises, for example a bar or club, you will need to take a case under the Intoxicating Liquor Act 2003 to the District Court.
What is the European Court of Human Rights?
The European Court of Human Rights (ECtHR) is an international court based in Strasbourg, France. It is an institution of the Council of Europe, and consists of a judge from each EU member state. The Court considers allegations that states have breached or failed to meet the requirements of the ECHR.
Can I bring a case to the European Court of Human Rights?
You can complain to the ECtHR if you feel your rights under the ECHR have been breached or violated. This court decides whether your complaint is justified and it publishes a written judgment (a decision). When the ECtHR issues a judgment, the state involved has a legal duty to comply with it. However, the court has no way of enforcing this duty.
In Irish legislation, the European Convention on Human Rights Act 2003 requires the Irish courts to take account of judgments of the ECtHR when making decisions about cases in Ireland.
Before you can bring a case to the European Court of Human Rights, you must first bring it as far as possible within the Irish legal system. This means you must go through all stages of appeal in the Irish court system.
You can find more information on taking a case to the European Court of Human Rights here.
If I do not wish to take court action, do I have other options?
Yes, there are other ways to make a complaint if you do not want to go through the courts. You may be able to take your complaint to:
- An Garda Síochána
- Office of the Ombudsman
- Ombudsman for Children (OCO)
- Garda Síochána Ombudsman Commission (GSOC)
- Data Protection Commission
- Office of the Information Commissioner
An Garda Síochána
If you believe a crime has been committed, call An Garda Síochána on 999. If it is not an emergency, you can call the Garda Confidential Line on 1800 666 111 or your local Garda station.
If you are deaf, hard of hearing or speech impaired, you can report a crime in an emergency by SMS text message on 112. Your phone must be registered first.
For more information on reporting crimes, see An Garda Síochána website.
The Office of the Ombudsman
The Ombudsman examines complaints about a range of public bodies. These include government departments, local authorities, the HSE, nursing homes and publicly funded third-level education bodies.
Generally, the Ombudsman cannot examine decisions or actions of public bodies if the courts are dealing with them, except in special circumstances. The Ombudsman may give opinions and recommendations about the decisions or actions of a public body, but has no power of enforcement.
For information on how to make a complaint, see the Ombudsman website.
Ombudsman for Children
The Ombudsman for Children, also known as the Office of the Ombudsman for Children (OCO), was established by the Ombudsman for Children Act 2002. The OCO protects and promotes the human rights and welfare of children. Its work includes advising Government ministers on policy, and raising public awareness of matters relating to children.
The OCO has the power to investigate the actions of public bodies, including schools, towards children. Complaints relating only to the treatment of a child are usually dealt with by the OCO rather than the Office of the Ombudsman. The OCO can make recommendations but has no power of enforcement.
For information on how to make a complaint, see the OCO website.
Garda Síochána Ombudsman Commission
The Garda Síochána Ombudsman Commission, more commonly known as the Garda Ombudsman or GSOC, is responsible for investigating complaints about the conduct of members of An Garda Síochána.
On receiving a complaint, GSOC must first decide whether it is ‘admissible’ (in other words, a complaint that it is legally permitted to deal with). It must meet the following conditions, as set out in the Garda Síochána Act 2005:
- The complaint must be made by a member of the public or by someone they have asked to act on their behalf.
- The complaint must be about police conduct that would amount to misbehaviour if proven to be true.
- The complaint must be made within 12 months of the conduct having occurred (although GSOC can extend this time limit if there is good reason to do so).
- The complaint must not be ‘frivolous or vexatious’. In other words, it must be based on fact and not malice.
GSOC cannot investigate the actions of members of An Garda Síochána who are off duty, unless their actions (if proven) would discredit An Garda Síochána.
Data Protection Commission
You have the right to raise concerns with the Data Protection Commission (DPC) about how an organisation has handled your personal data or how much access they have given you.
For information on how to complain, see the DPC website.
Office of the Information Commissioner
If you are not satisfied with how a request for information under the Freedom of Information Act 2014 has been handled, you can apply to the Office of the Information Commissioner (OIC) for a review.
For information on the types of decisions that the OIC can review, and how to apply for a review, see the OIC website.