The Supreme Court has ruled that the European Convention on Human Rights Act (ECHRA) 2003 cannot be applied retrospectively - prior to its coming into effect here on December 31st, 2003.
In an important judgment on whether the Act has retrospective application, the five-judge court yesterday answered a number of questions referred to it by the Circuit Court arising from proceedings in which a Dublin woman, Jeanette Fennell, and her family sought to challenge a notice to quit their Ballymun home for alleged misbehaviour.
Mr Justice Nicholas Kearns yesterday delivered the judgment of the court and the other four judges all agreed with his decision. In the case, Dublin City Council and the Attorney General had argued against retrospective application of the ECHRA while the Human Rights Commission adopted and supported the submissions of Ms Fennell.
The judge noted the council had let a house at Balbutcher Lane, Ballymum, to Ms Fennell in March 1996 under a written tenancy agreement under which neither the tenant nor any member of her household should cause any nuisance, annoyance or disturbance. A notice to quit was served on Ms Fennell in July 2003. On December 12th, 2003, the District Court made an order for possession of the house. Ms Fennell appealed to the Circuit Court on December 23rd, 2003.
On December 31st, 2003, the ECHRA came into operation.
In October 2004, Ms Fennell's appeal came before the Circuit Court and the council requested the court to refer four questions of law for determination by the Supreme Court.
Yesterday Mr Justice Kearns answered three of those questions in the negative. Answering question one, he decided that the provisions of the ECHRA do not apply to proceedings issued, prior to December 31st, 2003, by the council under Section 62 of the Housing Act 1966.
Answering question two, he decided the provisions of the ECHRA do not apply to the proceedings brought by Ms Fennell before the Circuit Court in which Ms Fennell and her daughter were living but in respect of which the council had purported to terminate Ms Fennell's tenancy prior to December 31st.
Answering question three, the judge decided that, in the present situation involving an appeal taken by Ms Fennell in proceedings initiated by the council prior to December 31st, 2003, Section 2 of the ECHRA did not place an obligation on the court to interpret Section 62 of the Housing Act in a manner compatible with Ireland's obligation under the convention.
Given his answers to the first three questions, he held he was not required to answer question four which asked, in the event of a positive answer to question three, whether the effect of Section 2 of the ECHRA required a local authority to adduce evidence justifying its decision to terminate a tenancy.
