CONCURRING OPINION OF JUDGE MORENILLA

1. I agree with the conclusions of the majority in the present case but not with the reasoning leading to the finding of a violation of Article 10 (art. 10) of the Convention. In my opinion the interference resulting from the injunction of the Supreme Court of Ireland prohibiting the dissemination of information to pregnant women concerning abortion services in the United Kingdom was not "prescribed by law" as required by paragraph 2 of this Article (art. 10-2), having regard to the interpretation given by the Court to Articles 8 to 11 (art. 8, art. 9, art. 10, art. 11) of the Convention and Article 2 paras . 3 and 4 of Protocol No. 4 (P4-2-3, P4-2-4), where the same condition can be found. In consequence, I cannot accept paragraphs 59 and 60 of the judgment.

Having found that the interference did not satisfy this requirement, I do not think it necessary to follow the majority in its further examination of the question whether the restriction was justified under paragraph 2 of Article 10 (art. 10-2). Consequently, I cannot share the opinion of the majority as expressed in paragraphs 61 to 77 of the judgment.

2. In my view, the concept "prescribed by law" refers to the requirement of legality under the rule of law to impose restrictions on fundamental rights or freedoms. According to the jurisprudence of this Court this condition implies that there must be a measure of protection in national law against arbitrary interferences with the rights safeguarded by paragraph 1 (see, inter alia, the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 33, para. 88; the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 32-33, paras . 67-68; and the Kruslin and Huvig v. France judgments of 24 April 1990, Series A no. 176-A, pp. 22-23, para. 30, and no. 176-B, pp. 54-55, para. 29); and it "does not merely refer back to domestic law but also relates to the quality of law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble of the Convention" (see the above-mentioned Malone judgment, ibid.). The Court had also declared that not only "the interference in question must have some basis in domestic law", but "firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequence which a given action may entail" (Sunday Times v. the United kingdom judgment of 26 April 1979, Series A no. 30, p. 31, para. 49). In the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990 (Series A no. 173, p. 26, para. 68) the Court determined that "the scope of the concepts of foreseeability and accessibility depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed".

3. This Court has also consistently declared since the Handyside v. the United Kingdom judgment of 7 December 1976 (Series A no. 24, p. 23, paras . 48-49) that Article 10 para. 2 (art. 10-2) does not give the Contracting States an unlimited margin of appreciation when interpreting and applying the domestic laws in force, the Court being empowered to give a final ruling on whether the restriction is reconcilable with freedom of expression as protected by Article 10 (art. 10) and that the European supervision "covers not only the basic legislation but also the decision applying it, even one given by an independent court" (ibid., p. 23, para. 49; see also the Sunday Times judgment, ibid., p. 36, para. 59). Therefore the power of the national authorities to interpret and apply the internal law when imposing a restriction on the freedom to receive and to impart information and ideas "goes hand in hand with the European supervision" (see the above-mentioned Handyside judgment, p. 23, para. 59). Consequently the supervision at a European level may result in a more extensive protection of the individual than at State level because the law must be restrictively interpreted in order to secure the observance of the international engagement undertaken by the States under Articles 1 and 19 (art. 1, art. 19) of the Convention.

4. The injunction granted by the High Court on 19 December 1986 and upheld by the Supreme Court of Ireland (judgment of 16 March 1988 ) was based on Article 40.3.3 o of the Irish Constitution (see paragraph 28 of the judgment).

5. On reading this provision it seems to impose primarily obligations upon the State, including the enactment of a law defining the scope of the protection of the right to life of the unborn - acknowledged, according to the provision, "with due regard to the equal right to life of the mother", both rights to be defended and vindicated by the State "as far as practicable". As Mr Justice Niall McCarthy said in a recent judgment delivered by the Supreme Court of Ireland on 5 March 1992 in the Attorney General v. X and Others case (judgment of 5 March 1992 ):

"I think it reasonable, however to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced as to regulate the manner in which the right to life of the mother could be reconciled ... the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable."

6. In my view, in the absence of specific legislation, the new constitutional provision did not provide a clear basis for the individual to foresee that imparting reliable information about abortion clinics in Great Britain would be unlawful: the penal, administrative or civil legislation on abortion then in force (paragraphs 29-32 of the judgment) or the case-law of the Irish courts presented in this case relating to the protection of the right to life of the unborn before the Eighth Amendment (see paragraphs 33-35 of the judgment) did not give sufficient ground for such an assertion; moreover, until the present case, the Supreme Court did not have the opportunity to interpret this Amendment.

7. The above situation may explain why the two corporate applicants were peaceably imparting this information for several years before and after the introduction of the Eighth Amendment until the commencement of the proceedings at issue on 28 June 1985 , as a private action, to be converted by the Attorney General into a relator action fourteen months later. It also explains why British and other foreign magazines containing such information were circulating freely in Ireland (see paragraph 23 of the judgment), and that no prosecution or any civil action was instituted in Ireland against Irish women who had abortions abroad, as well as the Government ’ s statement (paragraph 25 of the judgment) that in certain circumstances, under Irish law, persons could be entitled to have appropriate access to such information.

8. In these circumstances, de jure and de facto, my conclusion is that the relevant domestic law restricting freedom of expression, in an area of information so important for a large sector of Irish women, lacked the necessary definition and certainty. Accordingly, the injunction imposed on the two applicant corporations and their counsellors was not justified under Article 10 para. 2 (art. 10-2) of the Convention.

9. Taking into account the vague and uncertain relationship between the information given by the corporate applicants and protection of the unborn (see paragraph 75), I also consider that none of the applicants could reasonably have foreseen that these activities were unlawful and that their freedom to impart and receive reliable information about abortion services in Great Britain could be restricted under the domestic law prevailing prior to the Supreme Court judgment in this case.

In consequence, the above-mentioned legal uncertainties could not have been clarified by "appropriate legal advice"; nor could the exercise of the right to receive such important confidential information have been elucidated by a previous consultation as to its lawfulness. The vagueness of both the constitutional provision and Irish case-law previous to the present case was, in itself, inconsistent with the legality of the measure required, under the rule of law, to justify the interference with freedom of expression under paragraph 2 of the Convention.