Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28177/95

by Dublin Well Woman Centre Limited

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mr. M.P. PELLONPÄÄ, Acting President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 June 1995 by

Dublin Well Woman Centre Limited against Ireland and registered on

8 August 1995 under file No. 28177/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant company is a non-profit-making organisation. It was

established in 1977 and offers a wide range of services relating to

counselling and marriage, family planning, procreation and health

matters. The services offered by the applicant company relate to every

aspect of women's health ranging from smear tests to breast

examinations, infertility, artificial insemination and pregnancy

counselling.

The facts of the case, as submitted by the applicant company, may

be summarised as follows.

On 29 October 1992, the European Court of Human Rights delivered

its judgment in a case which had been introduced by, inter alia, the

present applicant company (Eur. Court HR, Open Door and Dublin Well

Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A).

In this judgment the Court found a violation of Article 10 of the

Convention as regards the injunction granted against the applicant,

prohibiting it from assisting pregnant women within the jurisdiction

of Ireland to travel abroad to obtain abortions by referral to a

clinic, to make travel arrangements for such women or to inform them

of the identity and location of and the method of communication with

a specified clinic or clinics or otherwise.

The Court further decided that Ireland should pay the applicant

company an amount of IR£ 25,000 for pecuniary damage in respect of loss

of income due to the discontinuance of its pregnancy counselling

service following the issuance of the injunction at issue and an amount

of IR£ 100,000 less FRF 52,577 for legal costs incurred by the

applicant company.

On 29 January 1993, the compensation awarded by the Court was

paid by the Irish Government to the applicant company.

Following the Court's judgment of 29 October 1992, an amendment

of Article 40.3.3 of the Irish Constitution, pursuant to which the

injunction against the applicant company had been granted, was adopted

through the Fourteenth Amendment of the Constitution Act 1992.

It entered into force on 23 December 1992.

By letter of 22 January 1993, the applicant company informed the

Attorney General that it was anxious to resume its non-directive

pregnancy counselling activities, but that it could not do so until

such time as the legal prohibitions imposed on the applicant company

had been fully and properly removed. It requested the Attorney General

to ensure that the injunction was removed. It further informed the

Attorney General that in the absence of any steps in this direction,

it would apply to the High Court to lift the injunction at issue.

On 29 January 1993 the Attorney General informed the applicant

company that he would not oppose an application to lift the injunction.

On 11 March 1993 the applicant company filed a motion with the

Supreme Court seeking an order lifting the injunction. Following a

hearing held on 29 March 1993, the Supreme Court rejected the motion

on 20 July 1993, finding it lacked the competence to hear it.

On 22 September 1993 the applicant company started proceedings

before the High Court against Ireland and the Attorney General in order

to obtain a declaratory judgment that it was lawful to provide the

services prohibited by the injunction previously issued. The High Court

fixed the hearing in these proceedings for 22 July 1994.

On 18 July 1994 the Society for the Protection of the Rights of

the Unborn Child (hereinafter referred to as "SPUC") requested to join

the proceedings as a co-defendant. The High Court granted the request

and adjourned the hearing to 12 October 1994.

On 12 October 1994 SPUC requested the High Court judge,

Ms. Justice M.C., to disqualify herself on the grounds that her

activities as Chairwoman for the Commission on the Status of Women

constituted a basis for a reasonable fear of bias. Having sought the

views of the other parties in the proceedings at issue (namely the

Attorney General who had confirmed the State's intention to abide by

the High Court's decision on the issue and the applicant company who

had opposed it and insisted on a continuation of the hearing of the

case), Ms. Justice M.C. rejected SPUC's request, stating that she would

hear the case with an open mind and that she knew she was not biased

in the matter.

SPUC filed an appeal against the decision of Ms M.C. with the

Supreme Court. On 21 December 1994, the Supreme Court allowed the

appeal and found that Ms. Justice M.C. should have disqualified herself

as there could be said to have been reasonable apprehension of bias in

the circumstances. Disregarding the objections raised by the applicant

company to the effect, inter alia, that it had had no say in the

composition of the High Court, the Supreme Court awarded the costs

incurred by SPUC in the Supreme Court appeal against the applicant

company.

These costs were determined at IR£ 19,398.02, being the same

amount the applicant company had to pay for its own legal

representation.

On 12 May 1995, the Regulation of Information (Services Outside

the State for the Termination of Pregnancies) Act 1995 entered into

force.

On 23 June 1995, the High Court issued an order which, insofar

as relevant, reads:

"A declaration that the (applicant company), their agents or

servants may make available within the State, information which

is likely to be required by a female person for the purposes of

availing herself of services provided outside the State for the

termination of pregnancies and relates to such services and the

persons who provide them, subject to the conditions provided for

in the Regulation of Information (Services Outside the State for

the Termination of Pregnancies) Act 1995."

On 25 June 1996, the Committee of Ministers of the Council of

Europe, in the exercise of its functions under Article 54 of the

Convention, adopted its Resolution DH(96) 368 in which it accepted the

measures taken by the Government of Ireland in consequence of the

European Court's judgment of 29 October 1993.

In reaching this finding the Committee of Ministers examined the

Fourteenth Amendment to the Irish Constitution and the Regulation of

Information (Services Outside the State for Termination of

Pregnancies). It had further regard to the fact that, by judgment of

23 June 1995, the High Court had lifted the injunction against the

applicant company.

COMPLAINTS

1. The applicant company complains under Article 6 para. 1 of the

Convention that it did not have a fair hearing because, as a result of

the failure by the Irish authorities to lift, by the latters' own

initiative, the injunction against it following the European Court's

judgment, it was obliged to take proceedings itself in the course of

which proceedings an order to pay the costs of a defendant in relation

to a point for which it bore no responsibility was made against it.

According to the applicant, these costs could have been avoided had the

Irish authorities taken the necessary steps immediately. The applicant

company submits that it was thus forced to bear the unfair financial

burden of expensive litigation in order to vindicate its rights which

the European Court had in fact found to have been violated by the

State.

2. The applicant company complains under Article 10 of the

Convention that the failure of the State to take steps to lift the

injunction after the delivery of the European Court's judgment in its

case constituted a continued violation of its rights under this

provision.

3. The applicant company complains under Article 14 in conjunction

with Article 10 of the Convention that, as from 23 December 1992, it

was the only legal person in Ireland prohibited from imparting the

information referred to in the relevant injunction.

4. The applicant company complains under Article 53 of the

Convention that, in the proceedings at issue, the Attorney General had

failed to bring to the attention of the courts that the pertinent

proceedings concerned the implementation of a judgment of the European

Court.

THE LAW

The applicant company refers to the judgment given by the

European Court of Human Right in its case and complains that Ireland

has violated its obligations under this judgment by continuing to deny

the applicant company the full exercise of its rights under Article 10

(Art. 10) of the Convention by not having discharged the injunction

granted against the applicant company and leaving this initiative to

the applicant company. It invokes Article 6 para. 1 (Art. 6-1), Article

10 (Art. 10), Article 14 (Art. 14) and Article 53 (Art. 53) of the

Convention.

The Commission recalls that it has no competence to examine

whether the High Contracting Party has complied with its obligation

under a judgment given by the European Court of Human Rights.

The Commission cannot assume any function in relation to the

supervision of the Court's judgment, this supervision being entrusted

under Article 54 to the Committee of Ministers (cf. Nos. 19255/92 &

21655/93, Dec. 16.05.95, D.R. 81, p. 5).

The Commission notes that the Committee of Ministers has

discharged its supervisory functions in relation to the judgment of the

European Court of Human Rights in the case of the applicant company by

the adoption of its Resolution DH(96) 368 of 25 June 1996.

The Commission must, therefore, limit its examination in the

present case to the question as to whether, after the judgment in the

applicant company's case, there has been a new violation of Article 10

(Art. 10) of the Convention both in itself and in conjunction with

Article 14 (Art. 10+14) of the Convention.

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. This Article shall not prevent States from

requiring the licensing of broadcasting, television or

cinema enterprises.

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

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

Article 14 (Art. 14) of the Convention reads:

"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."

The Commission finds that the applicant company complains in

substance of the fact that the Irish Government, after the judgment of

the European Court in its case, failed to take any measures aimed at

lifting the injunction against the applicant company.

The Commission notes that, when the applicant company itself

instituted proceedings to discharge the injunction on 11 March 1993,

the Fourteenth Amendment to the Irish Constitution had already entered

into force. However, the applicant company considered it could not, in

respect of the complaint it had brought before the Strasbourg organs,

benefit from this Amendment as the injunction at issue had been granted

before the entry into force of the Fourteenth Amendment.

The Commission finds that, insofar as the applicant company

complained in its previous case of a violation of Article 10 (Art. 10)

of the Convention, the European Court has finally dealt with the issue

and also considered the question of just satisfaction to the applicant

company under Article 50 (Art. 50) of the Convention. In these

circumstances, it cannot be seen as a new violation of the Convention

if, after the Court's judgment, the injunction remained in force in the

applicant's case. A State, which adapts its laws to comply with the

case-law of the European Court cannot in general be required to make

the new rules retroactively applicable to cases already finally decided

in the past (cf. No. 19438/92, Dec. 29.3.93, D.R. 74, p. 220 and No.

22651/93, Dec. 18.10.95, D.R. 83, p. 14).

The Commission considers that, unlike the case of Vermeire

(Eur. Court HR, Vermeire v. Belgium judgment of 29 November 1991,

Series A no. 214-C), the respondent Government has acted with due

diligence as regards the law reforms required.

It is true that, notwithstanding the Amendment to the

Constitution, the injunction granted against the applicant remained

formally in force. However, in the light of the terms of the Amendment,

the Commission finds that the injunction could not in practice have

been invoked to restrain them from supplying information as to the

availability of pregnancy termination services outside Ireland. While

the desire of the applicant company to discharge the injunction or to

obtain the declaratory relief which was eventually granted is

understandable, the Commission cannot find that the injunction in

practice operated as a continuing interference with the applicant

company's Convention rights. In this respect, the case differs from the

case of Olsson (Eur. Court HR, Olsson v. Sweden (No. 2) judgment of

27 November 1992, Series A no. 250).

Insofar as the applicant company relies on Article 14 (Art. 14)

of the Convention, the Commission considers that, in the light of its

findings above, the alleged difference in treatment lacks foundation.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

The applicant company complains under Article 6 para. 1

(Art. 6-1) of the Convention that it did not have a fair hearing in the

proceedings it had instituted in order to have the injunction lifted

in that certain procedural costs were awarded against it.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal established by law..."

The Commission notes that the proceedings instituted by the

applicant company were aimed at the discharge of the injunction

previously granted against the applicant company, which prohibited it

from exercising certain activities.

The Commission recalls that the European Court, in its judgment

of 29 October 1992, considered under Article 50 (Art. 50) of the

Convention that the discontinuance of the applicant company's

counselling service must have resulted in a loss of income (Eur. Court

HR, Open Door and Dublin Well Woman v. Ireland, loc. cit., p. 33, para.

87). It follows that the proceedings at issue can be considered as

determining the applicant company's civil rights and obligations within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No.

10364/83, Dec. 7.10.87, D.R. 53, p. 28).

The Commission notes that the applicant company does not, as

such, complain that the proceedings were unfair, but merely that the

decision by the Supreme Court to award the costs incurred by SPUC in

the proceedings before the Supreme Court against it was unfair in the

sense of it being unjust that the applicant company had to bear

considerable costs which could have been avoided had the domestic

courts examined the argument that the proceedings were in fact only

proforma as the underlying merits had already been determined by the

European Court of Human Rights.

The notion of a fair trial within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention concerns mainly procedural

aspects, as well as the right of access to a court and the right to

equality of arms. It does not include any guarantees as to the

assessment by domestic courts of arguments advanced by parties or the

outcome of proceedings, including decisions on the award of costs.

The Commission recalls that it is not an unreasonable requirement

of civil litigation that the unsuccessful party pay the adversary's

legal costs (cf. No. 15007/89, Dec. 1.10.90, unpublished).

The Commission further recalls that costs were awarded against the

applicant company because it had unsuccessfully resisted the appeal of

SPUC against the decision of Ms. Justice M.C. not to discharge herself.

The Commission cannot find, in these circumstances, that the

decision to award the costs of the Supreme Court appeal against the

applicant company, as such, deprived it of a fair hearing within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary Acting President

to the First Chamber of the First Chamber

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DUBLIN WELL WOMAN CENTRE LIMITED v. IRELAND

DUBLIN WELL WOMAN CENTRE LIMITED v. IRELAND

LEXI