PARTLY DISSENTING OPINION OF JUDGE BAKA

While I fully agree with the Court in holding that the restriction was prescribed by law, I regret that I cannot follow the majority as far as the question of the necessity in a democratic society is concerned. I am also unable to accept that Mrs X and Ms Geraghty can be considered as "victims" in the present case.

In my view the scope of the injunction granted by the domestic courts involved more than the restraint of information; it restricted various kinds of activities which were considered to be unlawful. The injunction granted by the High Court stated that "the Defendants ... be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice or to obtain abortion". Similarly, the Supreme Court ordered that the Defendants "... 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".

While we are only concerned with the freedom of information in this case, we have to take into account the fact that providing (and receiving) information had been only one - albeit vitally important - feature of the applicants ’ services. The main concern of the domestic courts was not so much to stop the dissemination of information but rather to terminate an illegal activity which inevitably gave rise to certain restrictions on freedom of information as well. Unlike the majority, I do not perceive this restriction to be "absolute" since, in reality, the information was readily available "... from other sources in Ireland such as magazines, telephone directories or by persons with contacts in Great Britain " (judgment, paragraph 76).

Examining the proportionality of the restriction against this background, I consider that it was unavoidable, subsidiary and limited in nature and has been not only necessary to protect the constitutionally enshrined right to life of the unborn, but also to maintain and safeguard the integrity of the Irish legal system. In my opinion therefore the injunction was proportionate and necessary in a democratic society. Consequently, there has been no breach of Article 10 (art. 10) of the Convention.

Nor can I follow the majority view which accepts that Mrs X and Ms Gerahty are "victims" in this case. The above-mentioned domestic judgments refer only to the corporate applicants, their servants and agents. It is obvious that the clients of these companies would have been affected as well. On the one hand, it is undeniable that society as a whole is potentially a victim of an interference with freedom of information. On the other hand, an applicant should be required to show that there is a direct and immediate interference, or at least a possible risk of a direct, immediate interference with his or her individual rights before he or she can be considered to be a "victim" before the Court.

In my view, the rights of these individual applicants were not endangered by imposing restrictions on the activities of Open Door and Dublin Well Woman which counselled pregnant women only (see judgment, paragraph 13). They were not stated to be either pregnant or clients of the corporate applicants. Since their rights were not directly affected by the injunction, they could not therefore claim to be "victims" within the meaning of Article 25 para. 1 (art. 25-1) of the Convention. Their application falls into the category of actio popularis .

DISSENTING OPINION OF JUDGE BLAYNEY

I am unable to agree with two of the decisions of the majority of the Court:

Firstly, that there was a breach of Article 10 (art. 10), and secondly, that Mrs X and Ms Geraghty were victims. In this opinion I propose to deal solely with Article 10 (art. 10). As regards Mrs X and Ms Geraghty, I agree with the reasoning in the dissenting opinion of Judge Baka.

In my opinion the Supreme Court injunction was not disproportionate to the aims which it pursued. Having found that the activities of the applicants were unlawful having regard to Article 40.3.3 o of the Constitution, and having made a declaration to that effect, the injunction followed as a logical consequence. The source of the injunction was to be found in the Constitution itself. In granting it, the Court was simply fulfilling its obligation to uphold the Constitution and to defend the rights of the unborn guaranteed by the Article in question. It was not a case of the Court granting an injunction in exercise of a discretionary jurisdiction. Once the Court had found that the activities of the applicants were unlawful having regard to Article 40.3.3 o , the injunction followed as a necessary consequence. It was not open to the Court to adopt any lesser measure.

In the circumstances, the injunction could not in my opinion be said to be disproportionate. It was the only measure possible to uphold Article 40.3.3 o . There was no other course that the Court could have taken. It was inconceivable that it should refuse to grant an injunction since this would have amounted to an abdication of its duty to protect the rights of the unborn and would have fatally undermined the moral values enshrined in Article 40.3.3 o .

I am also of the opinion that our Court is precluded by Article 60 (art. 60) of the Convention from finding that there has been a breach of Article 10 (art. 10).

Article 60 (art. 60) provides as follows:

"Nothing in [the] Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party."

The right of the unborn to be born is clearly a human right and it is guaranteed in Ireland by Article 40.3.3 o of the Constitution. Under Article 60 (art. 60) nothing in the Convention is to be construed as limiting or derogating from that right. If Article 10 (art. 10) is to be construed as entitling the applicants to give information to pregnant women so as to assist them to have abortions in England , then in my opinion it is being construed so as to derogate from the human rights of the unborn. In his judgment in the Supreme Court in the case of The Attorney General at the relation of the Society for the Protection of Unborn Children (Ireland) Limited v. Open Door Counselling Limited and Dublin Well Woman Centre Limited ([1988] Irish Reports, p. 593, Finlay CJ said at page 624:

"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."

The decision that the injunction constituted a breach of Article 10 (art. 10) amounts to interpreting that Article as permitting information to be given which clearly derogates from the rights of the unborn since it assists in their destruction. In my opinion Article 60 (art. 60) precludes such a construction.

The applicants in their submissions placed reliance on the fact that the information provided by them was available elsewhere, and that the injunction did not prevent Irish women from continuing to have abortions abroad. In my opinion neither of these matters has any relevance to whether or not Article 60 (art. 60) applies. The sole issue is whether a finding that the injunction constitutes a breach of Article 10 (art. 10) amounts to interpreting that Article as derogating from the human rights of the unborn as guaranteed by the Constitution, and in my opinion it does. For this reason also, I consider that it is not possible to conclude that there has been a breach of Article 10 (art. 10).

[*]  The case is numbered 64/1991/316/387-388.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  As modified by Article 11 of Protocol No. 8 (P8-11), which entered into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 246-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[1] See paragraph 20 of the judgment.

[2] See paragraphs 53 and 66 of the judgment.

[3] Judgment of 26 November 1991 , Series A no. 216, p. 46.

[4] Unless such restraints are rendered strictly necessary by situations of the kind envisaged in Article 15 (art. 15) of the Convention, which was manifestly not the case in this instance.