CONCURRING OPINION OF JUDGE LÓPEZ GUERRA, JOINED BY JUDGE CASADEVALL

1. I agree with the conclusions of the Grand Chamber with respect to the violation of Article 8 of the Convention in the case of the third applicant, and the non-violation of that Article in the case of the first and second applicants. However, I must express my concern with regard to the reasoning applied in these last two cases. I believe it omits an aspect of these cases that is highly relevant for the future application and interpretation of Article 8 of the Convention in relation to abortion issues.

2. I certainly agree that the States enjoy a margin of appreciation under Article 8 of the Convention in dealing with abortion cases, in which a fair balance must be struck between the health and well-being of the woman seeking an abortion and other interests and principles to be defended by the State authorities. In that regard, the present judgment underscores the fact that Irish law has chosen to prohibit abortion in Ireland based on the woman’s health and well-being, while allowing women wishing to have an abortion for those reasons the option of lawfully travelling to another State to do so.

3. However, while States enjoy a margin of appreciation in this regard, this does not confer on them absolute discretion or freedom of action, as the Court has reiterated on many occasions. As the judgment affirms (see paragraph 232), where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted. As I see it, this consideration must be applied to the circumstances of each case in which a woman wishing to have an abortion for reasons of health or well-being is prohibited from doing so. While bearing in mind the State’s margin of appreciation, the degree of intensity and gravity of the present dangers to the woman’s health or well-being must be taken into account case by case, in order to appraise whether the prohibition falls within that margin of appreciation.

4. The failure to make this appraisal is the aspect of the judgment’s reasoning that concerns me. The judgment analyses in abstracto the regulations present in Irish law and how they seek to achieve a balance between opposing interests. In general terms, the judgment affirms that “the Court does not consider that the prohibition in Ireland of abortion for health and well-being reasons ... exceeds the margin of appreciation accorded in that respect to the Irish State” (see paragraph 241). But the issue raised by the applicants, which this Court should address, refers to specific violations of their rights and not to the general compatibility of Irish law on abortion matters with Article 8 of the Convention. Moreover, as a basis for its conclusions the judgment does not make reference to the degree of gravity of the real or perceived dangers to the applicants’ health or well-being in their individual cases, and in their particular and specific circumstances.

5. I think this degree of gravity should have been considered a crucial point in deciding the case. Given the circumstances of the first and second applicants, and the alleged dangers derived from the prohibition on their having an abortion in Ireland, in my view these cases do fall within the Irish State’s margin of appreciation, and I therefore agree with the Grand Chamber’s conclusion. But (and this is the point that is not adequately addressed in the present judgment) this conclusion should be understood as referring exclusively to the applicants and deriving from their particular circumstances. Therefore, it cannot be excluded that in other cases, in which there are grave dangers to the health or the well-being of the woman wishing to have an abortion, the State’s prohibition of abortion could be considered disproportionate and beyond its margin of appreciation. In such cases, this would result in a violation of Article 8 of the Convention, since the latter protects the right to personal autonomy as well as to physical and psychological integrity.

CONCURRING OPINION OF JUDGE FINLAY GEOGHEGAN

1. I agree with all the decisions in the judgment of the Court and with most of the reasoning leading to those decisions. However, I consider it necessary to address the issue of the relevance of the identified consensus to the breadth of the margin of appreciation to be accorded to the Irish State in determining whether a fair balance was struck between the competing interests in question in the claims of the first and second applicants for a violation of Article 8 by reason of the prohibition of abortion in Ireland where sought for health and/or well-being reasons.

2. As it appears from paragraph 230 of the judgment, the margin of appreciation occurs in the context of the Court examining “whether the prohibition of abortion in Ireland for health and/or well-being reasons struck a fair balance between, on the one hand, the first and second applicants’ right to respect for their private lives under Article 8 and, on the other, profound moral values of the Irish people as to the nature of life and consequently as to the need to protect the life of the unborn”.

3. I agree for the reasons set out in paragraphs 231-33 that a “broad margin of appreciation is ... in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention”.

4. I also agree, as stated in paragraph 234, that the next question is whether this wide margin of appreciation is narrowed by the existence of a relevant consensus. However, whilst the Court identifies a consensus, it does not appear to me that it considers, as ought to be done, whether such a consensus is relevant to the margin of appreciation at issue.

5. The consensus identified at paragraph 235 is “a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. ... [T]he first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States.”

6. The facts set out in paragraph 235 derive from the legislation in force relating to abortion in the Contracting States. The facts available to the Court only relate to the legislation in force. The Court had no facts before it relating to the existence or otherwise of a legal protection for or right to life of the unborn or any identified public interest arising out of profound moral values in relation to the right to life of the unborn in any of the majority of Contracting States. Further, and importantly, there were no facts before the Court which, in my view, permit it to deduce that the abortion legislation in force in the majority of Contracting States demonstrates either a balance struck in those Contracting States between relevant competing interests, or the existence of a consensus amongst those Contracting States on a question analogous to that in respect of which the margin of appreciation under consideration relates, that is, the fair balance to be struck between the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives protected by Article 8 of the Convention.

7. The Court refers to the role long played by consensus in its judgments. The case-law indicates that it has been used in different contexts and for different purposes. As stated, these include interpretation of the Convention as a living instrument in the light of present-day conditions (see Tyrer v. the United Kingdom , 25th April 1978, § 31, Series A no. 26; Marckx v. Belgium , 13th June 1979, § 41, Series A no. 31; Dudgeon v. the United Kingdom , 22nd October, 1981, § 60, Series A no. 45; and Soering v. the United Kingdom , 7th July 1989, § 102, Series A no. 161). However, this is not a case of the use of consensus for interpretation of the Convention. The Court has interpreted Article 8 as not conferring a right to abortion without resort to consensus (see paragraph 214 of the judgment).

8. The Court has also previously, in its judgments, used consensus or a lack thereof to assist in determining the breadth of the margin of appreciation to be accorded to States when striking a balance between competing interests or whether a particular decision comes within the State’s margin of appreciation (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; Fretté v. France , no. 36515/97, § 41, ECHR 2002-I; and Vo v. France [GC], no. 53924/00 § 82, ECHR 2004-VIII). Where consensus is used for this purpose it appears from those decisions (and is implicit in paragraph 232 of the Court’s judgment herein) that, for the consensus to be relevant, it must be a consensus on the question in respect of which the margin of appreciation is accorded to the State. On the present facts, such question is the balance to be struck between the rights of the first and second applicants to respect for their private lives, pursuant to Article 8, and the legitimate aim of the protection of the public interest variously expressed as the protection accorded under Irish law to the right to life of the unborn and profound moral values of the Irish people as to the nature of life, and consequently as to the need to protect the life of the unborn. Abstracting the question from Ireland and the applicants, the consensus to be relevant should be a consensus on the balance to be struck between the potentially competing interests of the rights of women to respect for their private lives under Article 8 and a legitimate aim of a recognised public interest in protecting a right to life of the unborn.

9. I do not consider that the abortion legislation in force may be considered as demonstrating the striking by a Contracting State of a particular balance between such interests. Legislation may be passed for multiple reasons. The Court had no facts in relation to the existence or otherwise of a public interest in the protection or recognition of a right to life of the unborn in the majority Contracting States which permit abortion on broader grounds than in Ireland. Unless there exists in each Contracting State an analogous public interest in the protection of the right to life of the unborn to that in Ireland, it is difficult to understand how the Contracting States could be engaged in striking an analogous balance to that required to be struck by the Irish State. The consensus to be relevant must be on the striking of the balance which in turn, on the facts of these cases, depends on the existence in each Contracting State of a public interest in the protection of the right to life of the unborn. No such public interests were identified.

10. Accordingly, it appears to me that it follows from the existing case ‑ law of the Court (and using consensus in the sense used therein) that the consensus identified in the judgment amongst a majority of Contracting States on abortion legislation is not a relevant consensus with the potentiality to narrow the breadth of the margin of appreciation to be accorded to the Irish State in striking a balance between the competing interests. If however, contrary to the views expressed, the consensus is relevant, then I agree with the subsequent reasoning and conclusion of the Court that it does not narrow the broad margin of appreciation to be accorded to the Irish State.