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.