Lexploria

Application Nos. 14234/88 and 14235/88

OPEN DOOR COUNSELLING LTD.

and

DUBLIN WELL WOMAN CENTRE LTD. AND OTHERS

against

IRELAND

REPORT OF THE COMMISSION

(adopted on 7 March 1991)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-17) 1-3

A. The applications (paras. 2-5) 1

B. The proceedings (paras. 6-12) 2

C. The present Report (paras. 13-17) 3

II. ESTABLISHMENT OF THE FACTS (paras. 18-38) 4-9

III. OPINION OF THE COMMISSION (paras. 39-75) 10-18

A. Complaints declared admissible (para. 39) 10

B. Points at issue (para. 40) 10

C. As regards Article 10 of the Convention 10-14

(paras. 41-57)

a) As regards the applicant companies and 11-13

the second applicant company's employees

(paras. 44-53)

aa) Interference with freedom of expression 11

(para. 44)

bb) Prescribed by law (paras. 45-52) 11-13

Conclusion (para. 53) 13

b) As regards the applicants X and Y 14

(paras. 54-57)

aa) Interference with freedom of expression 14

(paras. 54-55)

bb) Prescribed by law (para. 56) 14

Conclusion (para. 57) 14

D. As regards Article 8 of the Convention 15-16

(paras. 58-65)

a) The applicants, X and Y 15-16

(paras. 59-61)

Conclusion (para. 62) 16

b) The first applicant 16

(paras. 63-64)

Conclusion (para. 65) 16

E. As regards Article 14 of the Convention 16-17

(paras. 66-70)

Conclusion (para. 70) 17

F. Recapitulation (paras. 71-75) 17-18

Concurring opinion of Mr. H.G. SCHERMERS 19-23

Concurring opinion of Mrs. G.H. THUNE 24

Partly concurring and partly dissenting opinion 25-29

of Sir Basil HALL

Dissenting opinion of Mr. E. BUSUTTIL 30-31

Dissenting opinion of Mr. F. MARTINEZ 32

Dissenting opinion of Mrs. J. LIDDY 33

Dissenting opinion of Mr. L. LOUCAIDES 34-35

joined by Mr. A. WEITZEL

APPENDIX I History of the proceedings 36-37

APPENDIX II Decision on the admissibility 38-50

of the applications

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The applications

2. The first application (No. 14234/88) is brought by Open Door

Counselling Ltd., a company which was engaged, inter alia, in

non-directive counselling of pregnant women in Dublin and other parts

of Ireland. This company was represented before the Commission by

Messrs. Amorys, solicitors, Dublin.

3. The second application (No. 14235/88) is brought by several

applicants:

- the Dublin Well Woman Centre Ltd., a company like Open Door

Counselling Ltd., which was also engaged, inter alia, in non-directive

counselling of pregnant women in Dublin;

- Ms. Bonnie Maher, born in 1945, a citizen of the United States

of America, who works as a trained counsellor for the Dublin Well

Woman Centre Ltd.;

- Ms. Ann Downes, born in 1960, a citizen of Ireland, who also

works as a counsellor for the Dublin Well Woman Centre Ltd.;

- Mrs. X, born in 1950, a citizen of Ireland, who is a

television producer and is married with three children.

- Miss Y, born in 1970, a citizen of Ireland, who is, at

present, unemployed.

The applicants in the second application were represented by

Mmes Barbara Hussey and Co., solicitors, Dublin.

4. The applications are directed against Ireland. The respondent

Government were represented by their Agent, Mr. Peter E. Smyth,

succeeded by Ms. Emer Kilcullen, both of the Department of Foreign

Affairs.

5. The applications concern restrictions placed on the applicant

companies to prevent them from providing information to pregnant women

as to the location or identity of, or method of communication with,

abortion clinics in Great Britain. They raise issues under Articles

8, 10 and 14 of the Convention.

B. The proceedings

6. The first application, brought by Open Door Counselling Ltd.,

was introduced on 19 August 1988 and registered on 22 September 1988.

7. The second application, brought by the Dublin Well Woman

Centre and Others, was introduced on 15 September 1988 and registered

on 22 September 1988.

8. After a preliminary examination of the cases by the Rapporteur,

the Commission decided on 14 March 1989 to join the applications, to

give notice of them to the respondent Government, pursuant to Rule 42

para. 2 (b) of its Rules of Procedure (former version), and to invite

the parties to submit their written observations on the admissibility

and merits of the applications insofar as they raised issues under

Article 10 of the Convention and, as regards the second application

No. 14235/88, Article 8 of the Convention. The Government's

observations were submitted on 15 September 1989, following extensions

of the time-limit until 1 September 1989. The applicants'

observations in reply were submitted on 2 November 1989 (first

application) and 9 November 1989 (second application).

9. The Commission next considered the applications on 5 February

1990 and decided, in accordance with Rule 42 para. 3 of its Rules of

Procedure (former version), to invite the parties to appear before it

at a hearing on the admissibility and merits of the applications

insofar as they raised issues under Articles 8 and 10 of the

Convention.

10. The hearing took place in Strasbourg on 15 May 1990. The

Government were represented by Mr. P.E. Smyth, Agent, Mr. D. Gleeson,

S.C., and Mr. J. O'Reilly, S.C., of counsel, as well as Mr. J.F.

Gormley of the Office of the Attorney General, acting as an adviser.

The applicants were represented by Mrs. M. Robinson, S.C., and Mr. F.

Clarke, S.C., of counsel, together with Ms. B. Hussey, solicitor, and

Mmes R. Burtonshaw and M. McNeaney from the Dublin Well Woman Centre

Ltd. as advisers.

11. Following the hearing and deliberations the Commission

declared the two applications admissible. On 12 June 1990 the parties

were sent the text of the Commission's decision on admissibility and

they were invited to submit such further observations or evidence on

the merits as they wished. On 2 August 1990 the Government submitted

supplementary observations. The applicants did not submit any further

observations. The applicants were granted legal aid on 7 September

1990.

12. After declaring the cases admissible, the Commission, acting

in accordance with Article 28 para. 1 (b) of the Convention, also

placed itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which a settlement can

be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

M. F. MARTINEZ

Mrs. J. LIDDY

M. L. LOUCAIDES

14. The text of the Report was adopted on 7 March 1991 and is

now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

16. A schedule setting out the history of the proceedings before

the Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the applications as APPENDIX II.

17. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

18. The first applicant company, Open Door Counselling Ltd., was,

at the material time, a company which was engaged, inter alia, in

counselling of pregnant women in Dublin and other parts of Ireland.

The second applicant company is a company providing similar services

at two clinics in Dublin. It was established in 1977 and is a

registered charity. It provides a broad range of services relating to

counselling and marriage, family planning, procreation and health

matters. The services offered by the Centre relate to every aspect of

women's health, ranging from smear tests to breast examinations,

infection testing, screening, gynaecological problems, contraception,

infertility, artificial insemination and counselling of pregnant

women. This counselling was provided in a non-directive manner, i.e.,

as regards the question of abortion, neither advising for or against

an abortion as the preferred option, but rather providing objective

information about such an option if desired by the patient. The

Centre employs doctors, nurses and counsellors at its Dublin clinics.

19. The applicant companies were defendants in proceedings in the

High Court which were commenced on 28 June 1985 as a private action

brought by the Society for the Protection of Unborn Children (Ireland)

Ltd. (SPUC), which was converted into a relator action brought at the

suit of the Attorney General by order of the High Court of

24 September 1986 (the Attorney General at the relation of the Society

for the Protection of Unborn Children (Ireland) Ltd. v. Open Door

Counselling Ltd. and the Dublin Well Woman Centre Ltd.).

20. The plaintiff sought a declaration that the activities of the

applicant companies in counselling pregnant women within the

jurisdiction of the court to travel abroad to obtain an abortion were

unlawful having regard to Article 40.3.3° of the Constitution, which

provides as follows:

"The State acknowledges the right to life of the unborn and,

with due regard to the equal right to life of the mother,

guarantees in its laws to respect, and, as far as

practicable, by its laws to defend and vindicate that right."

The plaintiff further sought an order restraining the defendants from

such counselling or assistance.

21. No evidence was adduced at the hearing of the action which

proceeded on the basis of certain agreed facts which were admitted by

each of the two defendants. The relevant agreed facts concerning the

second applicant company may be summarised as follows:

a. it counsels in a non-directive manner pregnant

women resident in Ireland;

b. abortion or termination of pregnancy may be one of

the options discussed within the said counselling;

c. if a pregnant woman wants to consider the abortion

option further, arrangements will be made by the

applicant to refer her to a medical clinic in

Great Britain;

d. in certain circumstances, the applicant may arrange

for the travel of such pregnant woman;

e. the applicant will inspect the medical clinic in

Great Britain to ensure that it operates at the

highest standards;

f. at those medical clinics abortions have been performed

on pregnant women who have been previously counselled

by the applicant;

g. pregnant women resident in Ireland have been referred to

medical clinics in Great Britain where abortions are

performed for many years including the months of November

and December 1984.

22. The first applicant company agreed in substance to all of

the above facts with the exception of point (d).

23. The meaning of the concept of non-directive counselling was

described by the Supreme Court as follows (judgment of 16 March 1988,

Mr. Justice Finlay C.J., p. 6):

"It was submitted on behalf of each of the Defendants that

the meaning of non-directive counselling in these agreed

sets of facts was that it was counselling which neither

included advice nor was judgemental but that it was a

service essentially directed to eliciting from the client

her own appreciation of her problem and her own considered

choice for its solution. This interpretation of the phrase

'non-directive counselling' in the context of the activities

of the Defendants was not disputed on behalf of the

Respondent. It follows from this, of course, that

non-directive counselling to pregnant women would never

involve the actual advising of an abortion as the preferred

option but neither, of course, could it permit the giving of

advice for any reason to the pregnant women receiving such

counselling against choosing to have an abortion."

24. On 19 December 1986 Mr. Justice Hamilton found that the

activities of the defendants in counselling pregnant women within the

jurisdiction of the Court to travel abroad to obtain an abortion or to

obtain further advice on abortion within a foreign jurisdiction were

unlawful having regard to the provisions of Article 40.3.3° of the

Constitution of Ireland.

25. Mr. Justice Hamilton confirmed that Irish common and criminal

law makes it an offence to procure or attempt to procure an abortion,

to administer an abortion or to assist in an abortion by supplying any

noxious thing or instrument (cf. sections 58 and 59 of the Offences

against the Person Act 1861). Irish law also protects the right to

life of the unborn from the moment of conception onwards.

26. An injunction was therefore granted "... that the Defendants

and each of them, their servants or agents, be perpetually restrained

from counselling or assisting pregnant women within the jurisdiction

of this Court to obtain further advice on abortion or to obtain an

abortion." The High Court made no order relating to the costs of the

proceedings, leaving each side to bear its own legal costs.

27. The defendants appealed against the decision of the High Court

to the Supreme Court which delivered judgment on 16 March 1988

rejecting the appeal.

28. The Supreme Court noted that the appellants did not consider

it essential to the service which they provided for pregnant women in

Ireland that they should take any part in arranging the travel of such

women who wished to go abroad for the purpose of having an abortion or

that they arranged bookings in clinics for such women. However, it

was considered essential to the service they sought to provide that

they should be at liberty to inform such women who wished to have an

abortion outside the jurisdiction of the court of the name, address,

telephone number and method of communication with a specified clinic

which they had examined and were satisfied that it was one which

maintained a high standard.

29. As regards the central issue in the case, the Supreme Court,

in a judgment delivered by Mr. Justice Finlay C.J., found as follows:

"... the essential issues in this case do not in any way

depend upon the Plaintiff establishing that the Defendants

were advising or encouraging the procuring of abortions.

The essential issue in this case, having regard to the

nature of the guarantees contained in Article 40.3.3° of the

Constitution is the issue as to whether the Defendants'

admitted activities were assisting pregnant women within the

jurisdiction to travel outside that jurisdiction in order to

have an abortion. To put the matter in another way, the

issue and the question of fact to be determined is: were

they thus assisting in the destruction of the life of the

unborn?

I am satisfied beyond doubt that having regard to

the admitted facts the Defendants were assisting in the

ultimate destruction of the life of the unborn by abortion

in that they were helping the pregnant woman who had

decided upon that option to get in touch with a clinic in

Great Britain which would provide the service of abortion.

It seems to me an inescapable conclusion that if a woman was

anxious to obtain an abortion and if she was able by

availing of the counselling services of one or other of the

Defendants to obtain the precise location, address and

telephone number of, and method of communication with, a

clinic in Great Britain which provided that service, put in

plain language, that was knowingly helping her to attain her

objective. I am, therefore, satisfied that the finding

made by the learned trial Judge that the Defendants were

assisting pregnant women to travel abroad to obtain further

advice on abortion and to secure an abortion is well

supported on the evidence ...".

30. The Supreme Court indicated in its judgment that the phrase in

Article 40.3.3° "with due regard to the equal right to life of the

mother" did not arise for interpretation in the case since the

applicants were not claiming that the service they were providing for

pregnant women was "in any way confined to or especially directed

towards the due regard to the equal right to life of the mother ...".

31. The Supreme Court also considered whether there was a

constitutional right to information about the availability of abortion

outside the State. The Court stated as follows:

"The performing of an abortion on a pregnant woman

terminates the unborn life which she is carrying. Within

the terms of Article 40.3.3° it is a direct destruction of

the constitutionally guaranteed right to life of that

unborn child.

It must follow from this that there could not be an

implied and unenumerated constitutional right to information

about the availability of a service of abortion outside the

State which, if availed of, would have the direct consequence

of destroying the expressly guaranteed constitutional right

to life of the unborn. As part of the submission on this

issue it was further suggested that the right to receive and

give information which, it was alleged, existed and was

material to this case was, though not expressly granted,

impliedly referred to or involved in the right of citizens

to express freely their convictions and opinions provided by

Article 40.6.1° (i) of the Constitution, since, it was

claimed, the right to express freely convictions and opinions

may, under some circumstances, involve as an ancillary right

the right to obtain information. I am satisfied that no right

could constitutionally arise to obtain information the purpose

of the obtaining of which was to defeat the constitutional

right to life of the unborn child."

32. The Court upheld the decision of the High Court to grant an

injunction but varied the terms of the order as follows:

"And it is ordered that the Defendants and each of them,

their and each of their servants or agents be perpetually

restrained from assisting pregnant women within the

jurisdiction to travel abroad to obtain abortions by

referral to a clinic, by the making for them of travel

arrangements, or by informing them of the identity and

location of and the method of communication with a specified

clinic or clinics or otherwise."

33. In a further hearing before the Supreme Court on

3 May 1988 the costs of the Supreme Court appeal were awarded against

the defendants, making them liable for costs amounting to £42,166.71.

34. Following the judgment of the Supreme Court the first

applicant company ceased to operate. It had no assets and, therefore,

the burden of paying the aforementioned legal costs fell on the second

applicant company.

35. In a subsequent case concerning abortion information contained

in a students' publication the Supreme Court issued an interlocutory

injunction restraining students from "publishing or distributing or

assisting in the printing, publishing or distribution of any

publication produced under their aegis providing information to

persons (including pregnant women) of the identity and location of and

the method of communication with a specified clinic or clinics where

abortions are performed" (Society for the Protection of Unborn

Children (Ireland) Ltd. v. Stephen Grogan and Others, judgment of

19 December 1989).

36. Mr. Justice Finlay C.J. considered that the reasoning of the

Court in the case brought against the applicant companies applied to

the activities of the students (loc. cit., p. 11):

"I reject as unsound the contention that the activity

involved in this case of publishing in the students' manuals

the name, address and telephone number, when telephoned from

this State, of abortion clinics in the United Kingdom, and

distributing such manuals in Ireland, can be distinguished

from the activity condemned by this Court in the Open Door

Counselling case on the grounds that the facts of that case

were that the information was conveyed during periods of

one-to-one non-directive counselling.

It is clearly the fact that such information is conveyed to

pregnant women, and not the method of communication which

creates the unconstitutional illegality, and the judgment of

this Court in the Open Door Counselling case is not open to

any other interpretation."

37. Mr. Justice McCarthy, whilst concluding that an injunction

should be made in the Grogan case, nevertheless commented as follows:

"In the light of the availability of such information

from a variety of sources, such as imported magazines,

etc, I am far from satisfied that the granting of an

injunction to restrain these defendants from publishing

the material impugned would save the life of a single

unborn child."

38. The applicants presented evidence to the Commission that there

had been no significant drop in the number of Irish women having

abortions in Great Britain, that number being well over 3500 women per

year. This evidence also indicated that since the applicant companies

ceased their abortion referral service, the Irish women concerned seem

to be going to Great Britain for abortions at a later stage of their

pregnancy, the increased foetal size resulting in greater health

risks. Moreover, not many of these women are having the normal six

week medical check-up after the operation, with, again, a greater risk

to their health.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

39. The Commission has declared admissible the applicants'

complaints that the Supreme Court injunctions prohibiting the

dissemination of information to pregnant women about abortion services

in the United Kingdom constituted breaches of their rights under

Articles 8, 10 and 14 (Art. 8, 10, 14) of the Convention.

B. Points at issue

40. The following are the points at issue in the present cases:

- whether the Supreme Court injunction imposed on Open Door

Counselling Ltd. and Dublin Well Woman Centre Ltd. was in violation of

freedom of expression, ensured by Article 10 (Art. 10) of the

Convention, in respect of those companies and the employees of the

second applicant company, Mmes Maher and Downes;

- whether this injunction was also in violation of the freedom

of expression of the applicants X and Y;

- whether the injunction was in violation of X's and Y's right

to respect for private life, ensured by Article 8 (Art. 8) of the

Convention;

- whether the injunction was also in violation of any such right

to respect for private life which the first applicant company could

claim under Article 8 (Art. 8) of the Convention;

- whether the injunction discriminated against women, as

represented by the first applicant company, contrary to Article 14

(Art. 14) of the Convention, read in conjunction with Articles 8 and

10 (Art. 8, 10).

C. As regards Article 10 (Art. 10) of the Convention

41. The relevant part of Article 10 (Art. 10) of the Convention

provides as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers ...

2. The exercise of these freedoms, since it carries with it

duties and responsibiities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society ...

for the prevention of disorder or crime, for the protection

of health or morals, for the protection of the ... rights of

others ..."

42. On 16 March 1988 the Supreme Court of Ireland imposed on the

applicant companies an injunction prohibiting them from "assisting

pregnant women within the jurisdiction to travel abroad to obtain

abortions by referral to a clinic, by making for them of travel

arrangements, or by informing them of the identity and location of and

the method of communication with a specified clinic or clinics or

otherwise." The applicants claimed that this injunction constituted

an unjustified interference with their freedom of expression, in

particular their freedom to receive and impart information, regardless

of frontiers, within the meaning of Article 10 (Art. 10) of the Convention.

43. The Commission must analyse whether the injunction interfered

with the applicants' freedom of expression and, if so, whether that

interference was prescribed by law. If there has been an interference

which was prescribed by law, the Commission must then proceed to

examine whether that interference had a legitimate aim and whether it

was necessary in a democratic society to meet that aim, i.e. whether

it corresponded to a pressing social need and was proportionate to the

pursuit of the aim.

a) As regards the applicant companies and the second

applicant company's employees

aa) Interference with freedom of expression

44. It has been conceded by the respondent Government that the

injunction imposed on the applicant companies constituted an

interference with their freedom to impart information, regardless of

frontiers, envisaged by Article 10 para. 1 (Art. 10-1) of the

Convention, and a similar interference with the freedom of the two

applicant counsellors, Mmes Maher and Downes, to impart information.

bb) Prescribed by law

45. Any interference with freedom of expression must be prescribed

by law. The word "law" in the expression "prescribed by law" covers

not only statute but also unwritten law such as Irish common law. Two

requirements flow from this expression, that of adequate accessibility

and that of foreseeability of law, to enable individuals to regulate

their conduct in the light of the foreseeable consequences of a given

action (Eur. Court H.R., Sunday Times judgment of 26 April 1979,

Series A No. 30, pp. 30-31, paras. 47-49).

46. The applicants contended that the imposition of the injunction

in the present cases was not "prescribed by law" within the meaning of

Article 10 para. 2 (Art. 10-2) of the Convention, as under the

relevant domestic law it was insufficiently foreseeable. The

Government refuted this contention. They submitted that the law

relating to the right to life of the unborn was both adequately

accessible and foreseeable in Ireland, being covered by the common

law, statute law and as an enumerated personal right under the Irish

Constitution, confirmed or acknowledged by the constitutional

amendment, Article 40.3.3°. The Irish courts have held that the

activities of the applicant companies directly threatened the

enjoyment of that right and, accordingly, the restrictions on these

activities were entirely foreseeable.

47. The Commission considers that the present cases are not

limited to the protection of the right to life of the unborn, as

suggested by the respondent Government. The present cases involve

freedom to receive and impart information on a wider and more complex

scale, involving not only the right to life of the unborn, but also

women's health, pregnancy, family planning and abortion.

48. In this connection it should be emphasised that the applicant

companies were not advocating or promoting abortion. They were

providing non-directive counselling on pregnancy matters and, were any

of their clients to inquire about abortion, the applicant companies

provided objective information about abortion and its implications,

including information about reliable and lawful services available in

the United Kingdom.

49. The Commission notes that Irish criminal law and common law

make it an offence to procure or attempt to procure an abortion, to

administer an abortion or to assist in an abortion by supplying any

noxious thing or instrument. It also protects the right to life of

the unborn from the moment of conception onwards. However, it is not

a criminal offence to obtain an abortion abroad or to travel abroad

for that purpose. A woman procuring an abortion outside Irish

jurisdiction faces no legal consequences on her return to Ireland. A

suggestion by the Government that the applicant companies may have

been liable to be prosecuted for aiding and abetting the procurement

of an abortion cannot be accepted by the Commission, given the absence

of any principal offence being committed by the women concerned. The

Government also suggested that the present cases may have had the

components of the offence of conspiracy to corrupt public morals,

albeit without a sufficient degree of proof. However, the Commission

observes that there is no evidence in the present cases that any

prosecution on this basis had been contemplated by the competent

authorities. The Government did not provide any relevant, well

established case-law to demonstrate the criminal nature of the

activities of the applicant companies. Thus any lawyer advising

whether it would have constituted a criminal offence to provide

information in Ireland about abortion services abroad prior to the

Supreme Court judgment in the present cases could, in the Commission's

opinion, have reasonably concluded that no criminal offence was being

committed.

50. Similarly the Commission has not been persuaded by the

Government that the provision of such information would have

constituted a civil wrong (tort) or breach of contract or other civil

right. The Government have made reference to the possibility that an

unjustified interference with Irish constitutional rights, whether by

the State or a private individual, may amount to a constitutional

tort. However, again, the Government were unable to provide the

Commission with any relevant, well-established case-law which makes it

clear that, on an issue as important as the conflicting constitutional

rights of the right to life of the unborn and freedom of expression,

the applicant companies could reasonably have foreseen that their

non-directional counselling service on abortion matters was a

constitutional tort in breach of the civil law. Confirmation of the

applicants' position concerning the prevailing legal situation can be

found, in the Commission's view, in the fact that no sanctions under

civil or criminal law were applied to prevent magazines with

advertisements and other information about abortion clinics in Great

Britain apparently freely circulating in Ireland.

51. The Commission has also examined the text of the Eighth

Amendment to the Constitution, Article 40.3.3°, by which "the State

acknowledges the right to life of the unborn and, with due regard to

the equal right to life of the mother, guarantees in its laws to

respect, and, as far as practicable, by its laws to defend and

vindicate that right". In the Commission's view this provision

primarily imposes obligations upon the State, including an obligation

to legislate for the protection of the right to life of the unborn. It

does not provide a clear basis for the individual to foresee that

providing information about lawful services abroad, albeit affecting

the right to life of the unborn, would be unlawful. This is supported

by the fact that the applicant companies were providing the full

counselling/information service for some considerable time without

restriction by the State until a private organisation, the Society for

the Protection of Unborn Children (Ireland) Ltd, took up the issue as

a private action against the applicant companies. It was only after

the initiation of those proceedings that the Attorney General of

Ireland decided to intervene.

52. In these circumstances the Commission is of the view that the

applicants could not reasonably have foreseen that their activities

were unlawful and that their freedom to receive and impart information

about abortion services in Great Britain could lawfully be restricted

under the domestic law prevailing prior to the Supreme Court judgment.

The Commission considers that a law which restricts freedom of

expression in such a vital area requires particular precision to

enable individuals to regulate their conduct accordingly. This is

especially so when the matter concerned is information received across

frontiers, as guaranteed by Article 10 (Art. 10). The Commission

again recalls, in this context, that newspapers and magazines freely

circulating in Ireland apparently describe the conditions prevailing

in the United Kingdom as to abortion. The Commission finds,

therefore, that the relevant domestic law was insufficiently precise

at the material time. Accordingly the Commission is of the opinion

that, insofar as it concerned the provision of information, the

injunction imposed on the applicant companies was not "prescribed by

law" within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. In view of this opinion, it is not necessary for the

Commission to explore further the other issues raised by these

applicants under Article 10 (Art. 10) of the Convention.

Conclusion

53. The Commission concludes, by 8 votes to 5, that there has been

a violation of Article 10 (Art. 10) of the Convention in respect of

the Supreme Court injunction of 16 March 1988 as it affected the

applicant companies and Mmes Maher and Downes.

b) As regards the applicants X and Y

aa) Interference with freedom of expression

55. The Government did not accept that the Supreme Court

injunction interfered with the freedom under Article 10 para. 1

(Art. 10-1) of the Convention of the two individual women of

child-bearing age, applicants X and Y, to receive information as

neither woman had claimed to be pregnant at the material time.

56. However, the Commission refers to its decision on

admissibility of 15 May 1990 in which it held that these two

applicants could claim under Article 25 para. 1 (Art. 25-1), first

sentence, of the Convention to be "victims" of a violation of Article

10 para. 1 of the Convention, because the Government had not shown

that they would be entitled, under the legal situation prevailing in

Ireland, to receive information about abortion services in Great

Britain in advance of any pregnancy. The Commission also notes that

since the Supreme Court judgment of 19 February 1989 in the case of

the Society for the Protection of Unborn Children (Ireland) Ltd v.

Stephen Grogan and Others and the imposition of an interlocutory

injunction on the latter preventing them from informing anyone

(including pregnant women) about abortion services abroad, it is clear

that the Supreme Court has interpreted its judgment in the present

cases to be a total ban on providing any information about such

services. In the light of these considerations the Commission

considers that the applicants X and Y may require access to this

information and that its denial constitutes an interference with their

freedom to receive information regardless of frontiers ensured by

Article 10 para. 1 (Art. 10-1) of the Convention.

bb) Prescribed by law

56. The Commission is of the opinion that the interference with

the freedom of expression of the applicants X and Y was not prescribed

by law for the reasons outlined above at paragraphs 45-52. Although

these applicants were not a party to the proceedings against the

applicant companies and their interests did not directly concern the

imparting of information, but the receipt of information, the

Commission considers that the state of Irish law at the relevant time

was insufficiently precise to enable X and Y to foresee that it would

be unlawful for the applicant companies, or indeed anyone else, to

provide them with reliable, specific information about abortion

clinics in Great Britain should they need to consult such clinics.

Conclusion

57. The Commission concludes, by 7 votes to 6, that there has been

a violation of Article 10 (Art. 10) of the Convention in respect of

the Supreme Court injunction of 16 March 1988 as it affected the

applicants X and Y.

D. As regards Article 8 (Art. 8) of the Convention

58. The relevant part of Article 8 (Art. 8) of the Convention

provides as follows:

"1. Everyone has the right to respect for his private

... life ...

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society ... for the prevention of disorder or crime, for

the protection of health or morals, or for the protection

of the rights and freedoms of others."

a) The individual applicants, X and Y

59. The individual applicants, X and Y, in the second application

(Dublin Well Woman Centre and Others) claimed that the injunction of

16 March 1988 issued by the Supreme Court of Ireland constituted an

unjustified interference with their right to respect for private life,

within the meaning of Article 8 (Art. 8) of the Convention. They

submitted, inter alia, that, being two women of child bearing age,

they are directly affected by this injunction, clarified and, in

effect extended, in the Grogan case (para. 35 above) in that they are

unable to have access to reliable information on abortion issues,

including specific information of the names and addresses of abortion

clinics in Great Britain from reliable sources like the applicant

clinics. These applicants were concerned that such information should

be available to them prior to becoming pregnant in order to be

informed of the necessary health and safety aspects of lawful abortion

services which, in the event of pregnancy, might need to be consulted

or used quickly. As pregnancy and the incidence of pregnancy are part

of private life, they contended that a ban on information about lawful

services related to pregnancy and its termination constituted an

unjustified interference with their right to respect for private life

for the same reasons which they invoked above under Article 10 (Art.

10) of the Convention.

60. The Government submitted, inter alia, that X and Y are

entitled to receive any information from the Dublin Well Woman Centre

which they desire, provided that such information is given in

accordance with Irish law and medical ethics. The Supreme Court

injunction of 16 March 1988 restrained the Centre from informing

pregnant women about abortion services in Great Britain. If either

individual applicant were to become pregnant her claim to respect for

private life would necessarily be reduced in order to take account of

the interests of the right to life of the unborn (cf. No. 6959/75,

Brüggemann and Scheuten v. the Federal Republic of Germany, Comm.

Report 12.7.77, D.R. 10 p. 100, para. 61). They contended that there

has been no interference with these applicants' right to respect for

private life.

61. The Commission considers that these applicants' right to

receive the information in question has been dealt with above in the

context of Article 10 (Art. 10) of the Convention. Implicit in the

Commission's finding that there had been an interference with the

applicants' Article 10 (Art. 10) right is the fact that, as they are

women of child bearing age, this information may be important for

their private lives. The Commission is, therefore, of the opinion

that it is not necessary further to pursue the matter in the light of

Article 8 (Art. 8) of the Convention.

Conclusion

62. The Commission concludes, by 7 votes to 2, with 4 abstentions,

that it is not necessary to examine further the complaints of the

applicants X and Y under Article 8 (Art. 8) of the Convention.

b) The first applicant

63. The first applicant, Open Door Counselling Ltd., also claimed

to have suffered a violation of Article 8 (Art. 8) of the Convention.

It was contended, inter alia, that by preventing the company's clinics

from providing any information about abortion services outside

Ireland, and thus limiting an individual woman's access to information

about her body and her needs, the Irish Supreme Court had effectively

nullified her right to privacy in decision-making about her life and

family. The injunction issued by the Supreme Court has made

non-directive counselling impossible and has thereby harmed the

applicant company and the services it provided. The Government in

reply refuted the first applicant's claim to have private life which

could be protected by Article 8 (Art. 8) of the Convention.

64. The Commission agrees with the Government's submission. It is

clear from the arguments submitted by the first applicant that the

claim is a general one concerning the rights of their clients. Open

Door Counselling Ltd. itself has not made out a case that it had any

private life which fell within the protection of Article 8 (Art. 8) of

the Convention or with which there had been any interference.

Conclusion

65. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

first applicant company.

E. As regards Article 14 (Art. 14) of the Convention

66. Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

67. The first applicant company, Open Door Counselling Ltd.,

claimed to have suffered a violation of Article 14 (Art. 14) of the Convention.

It was submitted, inter alia, that the Irish Supreme Court injunction

disparately harmed women and persons who supported consideration of

lawful abortion abroad as one option among others in non-directive

counselling. It constituted sexual discrimination against women in

the enjoyment of their right to respect for private life. It also

constituted discrimination on the grounds of political or other

opinions, as it censored those in favour of communicating information

about abortion services in Great Britain, but allowed those against

such services to express their views freely.

68. The Commission considers that the first applicant cannot

complain on behalf of their clients, or women in general, who might

feel they have suffered discrimination in the securement of their

right to respect for private life as a result of the Supreme Court

injunction. The company had no personal right to respect for private

life within the meaning of Article 8 (Art. 8) of the Convention (para. 64

above) which could have been the object of any discrimination.

69. On the question of freedom to express opinions, the Commission

does not find that the first applicant was subjected by the injunction

to any treatment under the domestic law different from that to which

others in a comparable position were exposed. Everyone within the

jurisdiction of Ireland, following the injunction, would have been

prohibited from providing specific information about abortion services

abroad. No one was prevented from expressing their opinion about the

availability or desirability of such services, or the expediency of

the injunction, or about abortion issues in general. In these

circumstances the Commission is of the opinion that the first

applicant did not suffer any discrimination in the enjoyment of its

Article 10 (Art. 10) rights, contrary to Article 14 (Art. 14) of the Convention.

Conclusion

70. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 14 (Art. 14) of the Convention in respect

of the first applicant company.

F. Recapitulation

71. The Commission concludes, by 8 votes to 5, that there has been

a violation of Article 10 (Art. 10) of the Convention in respect of

the Supreme Court injunction of 16 March 1988 as it affected the

applicant companies and Mmes Maher and Downes (para. 53).

72. The Commission concludes, by 7 votes to 6, that there has been

a violation of Article 10 (Art. 10) of the Convention in respect of

the Supreme Court injunction of 16 March 1988 as it affected the

applicants X and Y (para. 57).

73. The Commission concludes, by 7 votes to 2, with 4 abstentions,

that it is not necessary to examine further the complaints of the

applicants X and Y under Article 8 (Art. 8) of the Convention (para. 62).

74. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 8 (Art. 8) of the Convention in respect of the

first applicant company (para. 65).

75. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 14 (Art. 14) of the Convention in respect

of the first applicant company (para. 70).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

CONCURRING OPINION OF MR. H.G. SCHERMERS

I agree with the Commission's opinion that the present cases

disclose a breach of Article 10 of the Convention in respect of the

applicant companies and Mmes Maher and Downes, but I base my decision

on different reasons. I think that the Irish law was sufficiently

precise as to be "prescribed by law", but that the interference with

the applicants' freedom of expression has not been shown to be

justified.

a) Prescribed by law

I note that Ireland provides extensive protection of the right

to life of the unborn through its criminal and common law and the

Irish Constitution. The paramount importance of this right,

overriding other constitutional rights such as freedom of expression,

was acknowledged by the Irish people in their referendum leading to

the Eighth Amendment to the Constitution, Article 40.3.3°. By this

provision "the State acknowledges the right to life of the unborn,

and, with due regard to the equal right to life of the mother,

guarantees in its laws to respect, and, as far as practicable, by its

laws to defend and vindicate that right." I consider that the

emphasis in Irish law on the protection of the right to life of the

unborn could reasonably have enabled the individual to conclude that

any activity which might at some stage lead to the procurement of an

abortion, even abroad, would be condemned, if challenged, before the

domestic courts. It would appear to have been the logical consequence

of the climate of opinion at the relevant time, and the state of the

domestic law, that the Supreme Court would seek to uphold the right to

life of the unborn and seek to end the abortion referral service

provided by the applicant companies to pregnant women. The ensuing

injunction imposed on the applicant companies can, therefore, be said

to have been adequately foreseeable. In these circumstances, I

conclude that the interference with the applicants' freedom of

expression, by the injunction imposed on the applicant companies by

the Supreme Court on 16 March 1988, was "prescribed by law", within

the meaning of Article 10 para. 2 of the Convention.

b) Legitimate aim

Interference with freedom of expression may only be justified

if it pursues a legitimate aim such as the prevention of crime, the

protection of morals or the protection of the rights of others. These

are the aims relied on by the respondent Government to justify the

interference with the applicants' freedom of expression in the present

cases.

However, I find no basis in the present cases for the reliance

on the prevention of crime. I am not satisfied that, on the basis of

the evidence provided by the parties, the applicant companies could be

said to have been in breach of Irish criminal law in providing

information about services lawfully provided in another Member State

of the Council of Europe, albeit services concerning abortion.

Moreover, it is clear that it is not a criminal offence under Irish

law for a woman to obtain an abortion in Great Britain or to travel

there for that purpose. She would not face criminal prosecution on

her return to Ireland.

As regards the Government's reliance on the protection of the

rights of others, the Commission refers to its constant case-law under

Article 2 of the Convention, which guarantees the right to life, but

which right does not confer absolute protection on the foetus

(No. 8416/79, Dec. 13.5.80, D.R. 19 p. 244). However, I am of the

view that wider considerations may apply to the scope of the rights of

others envisaged by Article 10 para. 2 of the Convention. I note that

in the Member States of the Council of Europe there is a wide

divergence of thinking as to the stage at which unborn life requires

legal protection, whether it be from conception onwards, as under

Irish law, or whether some notion of the viability of the foetus is

required, as under English law. In such a controversial area I

consider that a High Contracting Party is entitled to confer the

protective status of "other", within the meaning of Article 10 para. 2

of the Convention, upon the life of the unborn.

I am also of the view that the issues in the present cases

fall within the notion of the protection of morals. Accordingly the

justification for the interference with the applicants' freedom of

expression must be examined in the context of the legitimate aim of

the protection of the rights of others and the protection of morals.

c) Necessary in a democratic society

The decisive question in the present cases is whether it was

necessary in a democratic society to impose the injunction on the

applicant companies.

For two reasons I consider that in the present cases the

requirement of necessity in a democratic society has not been met.

The first reason focuses on notion of a democratic society, an

addition to the necessity question which, so far, has received only

little separate attention, but to which some particular meaning must

be attributed. The second reason concerns the need for the injunction

irrespective of the society in which it has been imposed.

1. What kind of democratic society should be the model

for deciding the necessity question ?

The Convention is a European convention. Therefore the

European democratic society must be the model. Traditionally,

European society is a society of nation States. Each European State

has its own cultural and moral values which may not be identical to

the values of the other European States. For establishing whether an

interference with rights is necessary in a democratic society it is

therefore justified to look first at the meaning of necessity for the

State concerned. Both the European Court of Human Rights (1) and the

Court of Justice of the European Communities (2) did so in their

case-law.

But what is necessary for the State concerned cannot be

decisive. The Convention requires that restrictions on freedom of

expression must be necessary in a democratic society in general.

Account must therefore be taken of other democratic societies as well.

These other democratic societies are not only the societies of

other European States. Since the second half of the twentieth century

the nation States are no longer the only societies in Western Europe.

Increasingly States have transferred sovereign powers to common

institutions. Next to (or above) the national societies a European

society is developing. For deciding whether in Europe a specific

restriction on freedom of expression is necessary the European society

as a whole should also be taken into account.

It is of specific importance that the freedom of movement of

persons is one of the freedoms guaranteed by the European Economic

Community. It is part of the Community's legal order that people are

free to move to any place in the Community, either to establish

themselves or to work, or to render or receive services. This freedom

of movement is not just another economic right. It is a fundamental

principle of the Community and it is part of its cultural richness.

The possibility to move freely from one European culture to another is

one of the basic values of Europe. The Member States of the Community

are prohibited to restrict it in any way. One may therefore safely

submit that, although for internal legislation on abortion Irish

society may be of decisive importance, the European (Community)

society should be paramount when the question of necessity concerns

the movement of people or the performance of services across borders.

The requirement in the present cases is that the injunction must be

necessary in a society in which not only freedom of information but

also freedom of movement is one of the fundamental principles.

The question has arisen whether under European (Community) law

the injunctions involved in the present cases are permitted. Thereon

the Irish High Court has sought a preliminary ruling from the Court of

Justice of the European Communities under Article 177 EEC (3). But,

even if the injunctions are not prohibited by Community law this would

be far from accepting that they are necessary.

In the European context, where the injunction belongs, I

consider that the injunction has not been shown to be necessary in a

democratic society.

----------

(1) In the Handyside case, Eur. Court H.R., judgment of

7 December 1976, Series A No. 24.

(2) In the Henn and Darby case (34/79), 14.12.79,

consideration 15, <1979>ECR 3813.

(3) Grogan case, 11.10.89, <1990> 1 CMLR 689.

--------------

2. The need for the injunction, irrespective of the society

Even in the Irish context the injunction cannot be seen as

necessary. The principal ground for the injunction seems to be that

the counselling in some indirect way stimulates or contributes to the

act of abortion which is a crime in Ireland. It may well be accepted

that it is necessary in a democratic society to prohibit counselling

on how to commit a crime abroad.

But that is not what actually happens. The counselling (in as

far as it concerns abortion) is on how and where to go in England to

obtain a lawful abortion there. Travelling abroad to obtain an

abortion is lawful in Ireland. An Irish law prohibiting pregnant

women seeking an abortion abroad could hardly be enforced and would

meet with serious objections under European Community law. It is

understandable, therefore, that such a law does not exist. In the

absence of such a law seeking an abortion abroad cannot be a criminal

offence, which means that a prohibition on help to seek an abortion

abroad cannot be necessary for the prevention of crime within the

meaning of Article 10 para. 2 of the Convention.

With respect to the question whether the injunction may be

necessary for the protection of morals or for the protection of the

rights of others one first has to establish whether the injunction can

be effective. It is hard to accept that a restriction can be

necessary for a particular aim if it is of such a character that it

cannot achieve the aim. The possible effectiveness of the injunction

in the present cases is subject to serious doubt. Magazines with

advertisements and other information about abortion clinics in Great

Britain freely circulate in Ireland. Mr. Justice McCarthy, whilst

concluding that an injunction should be made in the Grogan case,

commented :

"In the light of the availibility of such information

from a variety of sources, such as imported magazines,

etc, I am far from satisfied that the granting of an

injunction to restrain these defendants from publishing

the material impugned would save the life of a single

unborn child" (para. 37 of the Commission's Report above).

According to the case-law of the Court, a restriction on

freedom of information under paragrah 2 of Article 10 can only be

permitted when there is a pressing social need for such a restriction.

In deciding whether there is such a pressing social need the general

interest of the protection of morals and the protection of the rights

of others should weighed against the interests of the individual and a

fair balance must be struck.

In the present cases the general interest in abortion

questions may be great, but the general interest in this particular

injunction is relatively small because of its limited effect. The

individual interests involved are considerable, on the other hand.

For women who have decided to seek an abortion in Great Britain it is

of great interest to obtain objective, reliable information about the

existing possibilities. For women under mental stress because they

feel unable to have their baby, objective information, covering all

possibilities, including abortion abroad, may be of great support. In

this respect it should be underlined that the applicant companies did

not advocate abortion but explored all options available to pregnant

women. The absence of easily available counselling may even endanger

the health of the women concerned as it may cause delay in their

decision-making and thus lead to an abortion at a later stage of the

pregnancy.

In these circumstances I am of the opinion that it has not

been shown that the restriction on the applicants' freedom to receive

and impart information effectively met any pressing social need or was

proportionate to the aims of protecting morals or protecting the

rights of others, within the meaning of Article 10 para. 2 of the

Convention. I conclude, therefore, that there has been a violation of

Article 10 of the Convention in respect of these applicants.

CONCURRING OPINION OF MRS. G.H. THUNE

I have voted with the majority since I consider that the

interference was not "prescribed by law" within the meaning of Article

10 para. 2 of the Convention.

In addition I want to express the view that even if the

injunction in these cases may be said to have been "prescribed by

law", the applicants' rights under Article 10 have been violated

because the interference was not justified as being necessary in a

democratic society.

I refer to the partly concurring opinion of Sir Basil Hall

below, and I agree with the arguments he makes on the necessity issue.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION

OF SIR BASIL HALL

1. I, like the majority of the Commission, conclude that there

has been a breach of Article 10 of the Convention in these cases in

respect of the two applicant companies, Open Door Counselling Ltd. and

Dublin Well Women Centre Ltd., and of the two counsellors of the

latter company, Mmes Maher and Downes. My reasons for reaching that

conclusion however differ from those of the majority.

2. On 16 March 1988 the Supreme Court dismissed an appeal by the

two applicant companies from a decision of the High Court granting an

injunction against them restricting them from counselling pregnant

women. The Supreme Court however varied the terms of the injunction.

So far as is relevant to these cases the injunction was as follows :

"It is ordered that the Defendants and each of them and

each of their servants or agents be perpetually restrained

from assisting pregnant women within the jurisdiction ...

by informing them of the identity and location of and the

method of communication with a specified clinic or clinics

or otherwise."

3. The injunction plainly restricted the four applicants' freedom

of expression. The question immediately arises whether the

restriction was "prescribed by law" as is required by Article 10

para. 2 of the Convention.

4. It is plain from the judgment of the Supreme Court that the

Court was concerned with information as to clinics in Great Britain

(England, Scotland and Wales). The point for immediate consideration

is whether it was, under the law of Ireland, a foreseeable consequence

that an injunction might be granted preventing the giving of such

information (Eur. Court H.R., Sunday Times judgment of 26 April 1979,

Series A No. 30, pp. 30-31, paras. 47-49). It is of course plain that

it could have been an offence to have given information as to the

possibilities of terminating pregnancy at a place in Ireland, unless

the life of the mother-to-be was at stake. Within Ireland, with that

qualification, abortion is unlawful. The laws of Great Britain

however permit abortion in other circumstances. Was it then

foreseeable that an injunction might be granted to prevent the giving

of information about the places where pregnancies might be lawfully

terminated outside the territories of Ireland ?

5. The Government contended that the right to life in Ireland was

covered by common law, statute law and under the Constitution. In my

view it is not established that under the common law or under statute

law it was foreseeable that an injunction preventing the giving of

information about clinics in Great Britain could be given. To give

such information would not appear to be a crime, nor would it be a

delict, apart from the exceptional category of "constitutional tort"

referred to below. Foreseeability depends on the interpretation

placed on the relevant constitutional provision. Indeed the judgments

of the Supreme Court, and its declaratory order, made it plain that

Article 40.3.3° of the Constitution was the law under which the

injunction was made.

6. Article 40.3.3° reads as follows :

"The State acknowledges the right to life of the unborn and,

with due regard to the equal right to life of the mother,

guarantees in its laws to respect and, as far as practicable,

by its laws to defend and vindicate that right."

It appears to me that if that provision imposes direct

responsibilities on individuals, it must have been foreseeable that a

court might hold that giving information about clinics in Great

Britain where pregnancies could be terminated showed a lack of respect

for the life of the unborn. The problem for me was that the Article

appeared to impose an obligation on the State and not on individuals.

7. I have however been persuaded that the provision is to be more

widely interpreted and that that wider interpretation was

foreseeable. The Government contended that it places an obligation on

the courts as to the way in which they apply the law. They also

contended that such a constitutional provision is directly

enforceeable, a violation being a "constitutional tort", citing

Meskell v. CIE, and hence something which the Irish courts can control

by injunction.

8. I therefore consider that the restriction placed on the first

four applicants' freedom of expression was prescribed by law.

9. It next falls to be examined whether the restriction pursued

one or more of the aims specified in paragraph 2 of Article 10 of the

Convention. The Government contended that it was justified as being

for the prevention of crime, the protection of morals and the

protection of the rights of others. There was no suggestion that

information was being, or was likely to be given, which would lead to

the performance of criminal acts in Great Britain, nor that the giving

of the information was itself a criminal act. The aim of the

restriction was not for the prevention of crime. Whether an unborn

foetus, at whatever stage of its development, has the status of

"other" for the purposes of Article 10 para. 2 of the Convention is to

my mind a matter of doubt. I note that the Commission has held that

Article 2 of the Convention, which guarantees the right to life, does

not confer absolute protection of the foetus (No. 8416/79, Dec.

13.5.80, D.R. 19 p. 244). Unquestionably, however, the aim of the

restriction was the protection of morals.

10. Is then the restriction "necessary in a democratic society" ?

This, according to the jurisprudence of the Court, does not mean

"indispensable". It means that the restriction complained of must

correspond to a pressing social need, recognising however that the

margin of appreciation available to Contracting States in assessing a

pressing social need for the imposition of restrictions on freedom of

expression for the protection of morals is a wide one.

11. The applicants contended that there was no pressing need for

any injunction. They submitted, inter alia, that thousands of Irish

women are seeking abortions in Great Britain every year. These women

are in need of objective, reliable information about abortion services

abroad in what can be stressful circumstances, particularly if account

is taken of the fact that abortion would not be available in Ireland

even in extreme circumstances, for example if a woman became pregnant

after being raped, or if a teenager became pregnant by her incestuous

father. The information services which they offered were

non-directive, did not advocate abortion, but explored all the options

available to pregnant women. The injunction has been ineffective, not

having stemmed the stream of Irish women seeking abortion in Great

Britain. Instead it has increased the risk to the health of these

women, who are apparently seeking abortions at a later stage of their

pregnancy, through lack of proper counselling or knowledge, and who

are not availing themselves of medical check-ups after the abortion in

order to prevent post-operative complications, and in order to discuss

other related matters, such as contraception. The injunction has,

therefore, not upheld the right to life of the unborn, but has instead

increased the risks to the health and safety of women.

12. The Government replied, inter alia, that the prevention of

abortion is a moral question of high seriousness. The Irish people,

by way of a referendum and an amendment to the Irish Constitution,

have chosen to provide unlimited protection to the right to life of

the unborn from conception onwards. It was the domestic courts' duty

to sustain the logic of that constitutional protection and uphold the

rule of law by restricting the dissemination of certain limited

information which, as a matter of fact, constituted a step in the

chain of events which could have led to the destruction of life. The

injunction was proportionate in that it did not seek to stop women

travelling abroad; it was strictly limited, within Irish jurisdiction,

to activities which sought to undermine the right to life of the

unborn. Given the legitimacy of the Irish views on abortion, a moral

view point entrenched in the European tradition despite the absence of

any uniform policy in the Member States of the Council of Europe, the

State must be allowed to enjoy a wide margin of appreciation in this

area.

13. The question then is whether, notwithstanding the wide margin

of appreciation a Contracting State has in determining what is

necessary for a democratic society, the organs of the Convention

should in the exercise of their supervisory role, determine that the

restrictions imposed were not within that margin. In this connection

it should be emphasised that the applicants were not advocating or

promoting abortion. They were providing non-directive counselling on

pregnancy matters and, were any of their clients to inquire about

abortion, the applicant companies provide objective information about

abortion and its implications, including objective information about

reliable and lawful services available in the United Kingdom.

However, the Irish Courts decided to give no weight to this

trans-frontier element. I consider, therefore, that the Irish Courts

have failed to identify the wider and more complex issues raised in

the present cases, which concern not only the right to life of the

unborn but also freedom of expression and, in particular, freedom to

receive and impart information which may be crucial to women's health,

pregnancy, family planning and abortion.

14. Whilst the majority of Irish people may not wish to see

abortion performed in Irish territory, this cannot, in my view, be

seen as a justification to prevent a minority of people receiving

reliable information about lawful services elsewhere. It has been

acknowledged by the Supreme Court that restrictions on this kind of

information will probably not effectively stop abortions abroad (para.

37 above). Magazines with advertisements and other information about

abortion clinics in Great Britain freely circulate in Ireland. There

is an inconsistency in a situation where women may read about abortion

clinics in Great Britain, but may not be informed orally about them

though competent professional sources like the applicant clinics. It

seems there has been no appreciable diminution in the number of Irish

women seeking abortions in Great Britain since the applicant companies

were obliged by the Supreme Court injunction to stop providing

information about the competent clinics. This might indicate that a

wealthier, better educated section of the population is able to obtain

information which others are denied by these injunctions. However, a

serious consequence of this lack of accessible counselling services is

that the women concerned are at a greater health risk, because they

are apparently seeking abortions later on in their pregnancies, with

the attendant risk of complications, and are not having proper

post-operative medical checks. So not only is the Supreme Court

injunction of limited effect, but it is also contributing to greater

health risks for a substantial group of women (over 3500 per year),

who are nevertheless leaving Ireland to procure a lawful abortion

abroad.

15. In these circumstances I am of the opinion that it has not

been shown that the restriction on the first four applicants' freedom

to receive and impart information effectively met any pressing social

need or was proportionate to the aims of protecting morals or

protecting the rights of others, within the meaning of Article 10

para. 2 of the Convention. I conclude, therefore, that there has been

a violation of Article 10 of the Convention in respect of these

applicants.

16. I agree with the majority of the Commission that there has

been no violation of the right of Open Door Counselling Ltd. to

respect for its private life.

17. The fifth and sixth applicants, Mrs. X and Miss Y, were not

parties to the proceedings in the Irish Courts, and the injunction did

not apply directly to them. The effect of the injunction however was

to prevent their receiving information from the two applicant

companies and their servants or agents. They were however not

pregnant, and the lack of information about clinics in Great Britain

carrying out abortions did not directly affect them. They contended

that the lack of ability to obtain information from the two applicant

companies may affect the way in which they conduct their private

lives. Even if this were to be so, it does not appear to me that the

Court, in making the order it did, can be said to have shown a lack of

respect for their private lives. In my view there was no violation of

Article 8 in respect of these two applicants.

18. Mrs. X and Miss Y have also complained tht the restriction

imposed by the injunction constitutes a violation of Article 10

because it prevents them from receiving information. Undoubtedly it

does so, but they were not pregnant, and the considerations which lead

me to the conclusion that the restrictions on imparting information

imposed by the injunction were not necessary in a democratic society

do not apply to them. I conclude that there was no violation of

Article 10 in their cases.

DISSENTING OPINION OF MR. E. BUSUTTIL

I find myself unable to subscribe to the opinion of the

majority that the Supreme Court ban on the dissemination of

information about abortion services in the United Kingdom constituted

a breach of the applicant companies' freedom to impart information

regardless of frontiers ensured by Article 10 of the Convention. I

consider that, while the information ban was an obvious interference

within the meaning of Article 10 para. 1, such interference was

justified in that it was prescribed by law and was necessary in a

democratic society for the protection of morals and the protection of

the rights of others under paragraph 2 of the same Article.

(i) Prescription by law

Irish law provides comprehensive protection of the right to

life up the unborn. In terms of the Offences against the Person Act

1861, the procurement of abortion is a criminal offence; in addition,

aiding and abetting such an offence is itself an offence under the

general criminal law in Ireland. Again, under the Censorship of

Publications Act 1946, the Censorship of Publications Appeals Board

may ban the sale and distribution of future issues of any publication

advocating the procurement of abortion. The ban in the instant cases

concerns a roughly parallel situation. Finally, and more importantly,

the Eight Amendment to the Irish Constitution, adopted by the Irish

people in a referendum and now enshrined in Article 40.3.3°,

acknowledges the right to life of the unborn as an overriding

principle of State policy in Ireland, involving a compulsive political

obligation of implementation.

In those circumstances, it should have been reasonably

foreseeable by any Irish citizen of voting age and ordinary

intelligence that any activity which might at some stage have led to

the procurement of an abortion, even if it occurred abroad, would

sooner or later have been open to challenge in the Irish courts since

the effects of such an abortion would ultimately have been felt in

Ireland.

(ii) Legitimacy of the aim pursued

I accept the position of the Irish Government that the problem

of abortion and information about abortion procurable in neighbouring

countries is a moral issue with a profound dimension. The Irish

people have rejected abortion in a referendum held fairly recently,

culminating in a constitutional amendment by virtue of which the State

acknowledges the right to life of the unborn and guarantees respect

for that right in its legislation. Accordingly, there is a general

acknowledgement in Ireland that the unborn must be protected from the

moment of conception, not only from a moral standpoint, but also from

a recognition of their status as "others" within the meaning of

Article 10 para. 2 of the Convention. Indeed, as the Court pointed

out in the Muller case (Eur. Court H.R., Muller and Others judgment of

24 May 1988, Series A No. 133, para. 30), there is a natural link

between the protection of morals and the protection of the rights of

others.

For these reasons, the interference with the applicants'

freedom of expression in the present cases had the legitimate aim of

protecting morals and the rights of others.

(iii) Necessity for the interference in a democratic society

The Court has consistently held that the word "necessary" in

Article 10 para. 2 implies the existence of a "pressing social need".

Contracting States have a certain margin of appreciation in assessing

the existence of the need, but such assessment is ultimately subject

to the supervisory jurisdiction of the Convention organs embracing

both the legislation and the decisions applying it. In exercising

their jurisdiction, the Convention organs remain free to determine

whether the interference at issue is proportionate to the legitimate

aim pursued and whether the reasons adduced by the national

authorities to justify it are relevant and sufficient.

In the instant cases, the pressing social need emanated from

the overriding principle of State policy embodied in Article 40.3.3°

of the Irish Constitution protecting the right to life of the unborn.

The means employed were a court injunction inhibiting within the Irish

jurisdiction the dissemination of information to pregnant women about

abortion services in the United Kingdom which could ultimately have

resulted in the destruction of the life of the unborn. The

information inhibited was thus extremely limited. Viewed against the

background of the seriousness of the moral issue involved, it cannot

be deemed to have been disproportionate.

Today, as at the time of the Handyside judgment, it is still

not possible to find in the legal and social orders of the Contracting

States a uniform European conception of morals. In view of the

absence of such uniformity, the national authorities are in principle

in a better position than the Convention organs to judge the moral

requirements of a particular society, as well as the necessity of any

restrictions imposed with a view to meeting them. As far as the

present cases are concerned, it is also essential not to lose sight of

the fact that the Irish authorities had been in direct touch with

vital public opinion in Ireland through a recent referendum on the

subject.

In all the circumstances, therefore, and having particular

regard to the margin of appreciation enjoyed by the national

authorities under Article 10 para. 2, I come to the conclusion that

the Irish courts were entitled to consider it "necessary" for the

protection of morals and the rights of others to restrict the abortion

referral information provided by the applicant companies in order to

sustain the logic of the constitutional protection afforded to the

unborn in the Irish Constitution.

DISSENTING OPINION OF Mr. F. MARTINEZ

While agreeing with the arguments put forward by other members

of the Commission who concluded against a breach of the Convention, I

should like to explain my view of the case.

The major difficulty in the present case concerns the

controversy created by the subject of abortion in ethical terms. This

is why it seems preferable to approach the issue from a strictly legal

angle and to set aside the moral considerations inherent in the case.

Under Sections 58 and 59 of the "Offences against the Person Act"

of 1861, abortion is a criminal offence in the Irish legal system.

This is in no way contrary to the European Convention on Human Rights;

besides, Ireland is not the only member State of the Council of Europe

in which voluntary termination of pregnancy is made criminal.

To ensure a clearer legal approach to the problem the word

"abortion" should be replaced by "offence". We then find that the

Irish judge is being accused of nothing more than prohibiting the

provision of information to women on the possibilities of committing

the "offence" in question in another country, in the best possible

conditions for their health and, the implication being, with complete

impunity.

From the point of view of criminal law, to give information

likely to facilitate the commission of a criminally indictable act,

may be regarded as an act of incitement to commit the "offence". I

find it difficult to accept that the Convention on Human Rights would

not allow member States to defend their legal systems by prohibiting

the dissemination of information which is to be used to infringe the

law.

It would be, at the very least, curious for a State to be

unable to prohibit, within its borders, acts of aid or assistance

likely to incite citizens of that State to commit an act, condemned

under its own legal system, in countries where it is not punishable.

The fact that such an act is not an offence under the

legislation of other States does not entitle citizens of the first

State to commit it. Impunity does not derive from a personal right

but from the limited scope of internal law. It is widely known that

no law has unlimited scope, either in space or in time. I therefore

find it surprising that the interest of a State in protecting its

legal system has been placed on the same footing as the interest of

persons wishing to contravene that system by receiving information on

how to commit the act that is criminal there but permitted elsewhere.

DISSENTING OPINION OF MRS. J. LIDDY

1. I have approached these cases on the basis that issues of

health ("the equal right to life of the mother" clause in Irish law)

do not arise for consideration on the facts. The issue is rather

whether prohibiting the giving of specified information to pregnant

women, which would be a concrete step in the obtaining of an abortion

outside Ireland, constituted a violation of the Convention.

2. It is only in exceptional circumstances that a contingent

violation of Convention rights can be established. The applicants X

and Y are not pregnant, and it is not clear what information they have

been unable to obtain. I think they have failed to establish either

as a matter of fact, or exceptionally as a contingency, any

interference with their own rights.

3. With regard to the two companies and two employees, I consider

that the injunction was a restriction "prescribed by law" within the

meaning of Article 10 para. 2. The question is whether these

applicants could reasonably have foreseen that their activities were

unlawful. Having regard to the undisputed information provided to the

Commission concerning (a) the pre-existing constitutional case-law on

constitutional torts and the right to life of the unborn, even before

the explicit addition of Article 40.3.3° after the 1983 Referendum,

(b) the Offences against the Person Act 1861, (c) the Censorship of

Publications Act 1946, (d) the Civil Liability Act 1961, and (e) the

Health (Family Planning) Act 1979, I think that they could so have

foreseen. With appropriate legal advice, it could be expected that

the courts' jurisdiction would be invoked to prohibit activities which

(if proven, or, as here, admitted in the course of proceedings)

clearly constituted a concrete step in assisting pregnant women in

Ireland to obtain abortions outside the jurisdiction, that is, in

ending the life of the unborn.

4. In the case of Muller and Others (Eur. Court H.R., judgment of

24 May 1988, Series A No. 133 para. 35) the Court said, "The view

taken of the requirements of morals varies from time to time and from

place to place, especially in our era, characterised as it is by a

far-reaching evolution of opinions on the subject. By reason of their

direct and continuous contact with the vital forces of their

countries, State authorities are in principle in a better position

than the international judge to give an opinion on the exact content

of these requirements as well as on the 'necessity' of a 'restriction'

or 'penalty' intended to meet them."

5. The primary plea in these cases was that the injunction was

necessary for the rights of others. Applying by analogy the above

quotation, and having regard to Article 60 of the Convention, I

consider that it was so necessary.

DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. A. WEITZEL

I am unable to agree with the majority that the present cases

disclose a breach of Article 10 of the Convention. I consider that

the interference with the applicants' freedom of expression was

prescribed by law and it was justified for the protection of morals.

a) Prescribed by law

Article 40.3.3° of the Irish Constitution provides as follows:

"The State aknowledges the right to life of the unborn and

with due regard to the equal right to life of the mother,

guarantees in its laws to respect, and, as far as practicable,

by its laws to defend and vindicate that right".

I consider that this constitutional provision is clear enough

to enable the individual Irish citizens to foresee that any activity

on their part in Ireland that tends to assist or facilitate the

procurement of an abortion whether in Ireland or abroad would be

considered by the Irish courts as inconsistent with the superior law

of Ireland and therefore as illegal. Even though the abortions

themselves, for which the information services of the applicant

companies were offered, were not expected to take place in Ireland,

such services were being offered in Ireland with the aim of assisting

or facilitating the procurement of abortion of Irish pregnant women,

in other words with the aim of contributing to the deprivation of the

life of the unborn, protected by the Irish Constitution. Therefore it

should be expected that these services could reasonably be considered

by the domestic courts as incompatible with the above constitutional

provision. Hence the ensuing injunction imposed on the applicant

companies in order to end their abortion referral services can be said

to have been adequately foreseeable.

In these circumstances I conclude that the interference with

the applicants' freedom of expression, by the injunction imposed on

the applicant companies by the Supreme Court on 16 March 1988, was

"prescribed by law" within the meaning of Article 10 para. 2 of the

Convention.

b) Legitimate aim

I consider that the question of abortion is a serious moral

issue in respect of which there is a divergence of views. The

arguments in support of the different views are forceful and

substantial. In fact in the Contracting States there is no consensus

on this issue. It was therefore reasonably open for the respondent

State to seek to protect through its laws the "life of the unborn" as

a moral principle of its own society and to restrict freedom of speech

when and to the extent that was reasonably necessary in order to

achieve that protection. In this respect it should be borne in mind

that the Irish people have expressed their moral belief on the

question of abortion in a referendum leading to a constitutional

amendment reinforcing their rejection of abortion as far as possible

within Irish jurisdiction. There is thus a general consensus in

Ireland that the unborn must be protected from conception onwards from

a moral standpoint.

In the circumstances I accept the position taken by the

respondent Government in these cases that the aim of the interference

with the freedom of expression of the applicants was the legitimate

aim of the protection of morals within the meaning of Article 10 para.

2 of the Convention.

c) Necessary in a democratic society

The imposition of the injunction on the applicant companies

was necessary in order to stop the operation of their information

services which were rendering assistance to pregnant women in Ireland

to terminate the life of the unborn - such life being protected by the

Irish Constitution. As already stated, such constitutional protection

was reflecting the moral approach of Irish society on the issue of

abortion. Freedom of speech may legitimately, under the Convention,

be curtailed in a democratic society if that is necessary in order to

uphold and maintain the moral values of such society. The more so

when such values are expressed and entrenched in constitutional

provisions as in the present cases.

The European Court has acknowledged that the margin of

appreciation available to States in assessing the pressing social need

for the protection of morals is a wide one (Eur. Court H.R., Handyside

judgment of 7 December 1976, Series A No. 24, p. 22 para. 48).

It is important to note that the information services of the

applicant companies affected by the injunction in question did not aim

at informing people about the question of abortion generally or

expressing views or ideas on such a question. They were providing

specific information to pregnant women in Ireland as to how they could

best have an abortion abroad. Therefore it is reasonable to consider

that such an activity was directly undermining the moral values of the

Irish people enshrined in their Constitution and that the restriction

on the applicants' freedom of expression and freedom to receive and

impart information in the circumstances of these cases responded to

and was proportionate to a genuine and pressing social need in

Ireland.

For the above reasons I conclude that there has been no

violation of Article 10 of the Convention in these cases.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

19.08.88 Introduction of first application

15.09.88 Introduction of second application

22.09.88 Registration of both applications

Examination of admissibility

14.03.89 Commission's deliberations and

decision to join the applications

and to invite the parties to submit

their written observations on

admissibility and merits

15.09.89 Government's observations

09.11.89 Applicants' reply

05.02.90 Commission's deliberations and

decision to hold a hearing

15.05.90 Hearing on admissibility and merits,

the parties being represented as

follows:

Government:

Mr. P.E. Smyth, Agent

Mr. D. Gleeson, SC, Counsel

Mr. J. O'Reilly, SC, Counsel

Mr. J.F. Gormley, Adviser, Office

of the Attorney General

Ms. E. Kilcullen, Adviser,

Department of Foreign Affairs

Applicants:

Mrs. M. Robinson, SC, Counsel

Mr. F. Clarke, SC, Counsel

Ms. B. Hussey, Solicitor

Ms. R. Burtonshaw, Adviser,

Dublin Well Woman Centre Ltd.

Ms. M. McNeaney, Adviser,

Dublin Well Woman Centre Ltd.

15.05.90 Commission's deliberations and

decision to declare the applications

admissible

Examination of the merits

12.06.90 Parties invited to submit further

written observations on the merits

02.08.90 Government's observations

07.09.90 Applicants granted legal aid

03.10.90 Commission's consideration of

the state of proceedings

09.01.91 Commission's consideration of

the state of proceedings

26.02.91 Commission's deliberations on the

merits and on the text of its

Article 31 Report. Final votes taken

07.03.91 Adoption of Report

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OPEN DOOR COUNSELLING LTD ; AND DUBLIN WELL WOMAN CENTRE LTD ; AND OTHERS v. IRELAND

OPEN DOOR COUNSELLING LTD ; AND DUBLIN WELL WOMAN CENTRE LTD ; AND OTHERS v. IRELAND

LEXI