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.