JOINT PARTLY DISSENTING OPINION OF JUDGES ROZAKIS, TULKENS, FURA, HIRVELÄ, MALINVERNI AND POALELUNGI

1. While we agree with most of the majority’s findings as to the admissibility and merits of this case, we are regretfully unable to follow them in their conclusion that there has been no violation of Article 8 of the Convention with regard to the first and second applicants (A and B). We more particularly disagree with the majority’s reasoning when applying the proportionality test (see paragraphs 229 et seq . ), which leads to the conclusion that there has been no violation with regard to these two applicants.

2. Let us make clear from the outset that the Court was not called upon in this case to answer the difficult question of “when life begins”. This was not the issue before the Court, and undoubtedly the Court is not well equipped to deal effectively with it. The issue before the Court was whether, regardless of when life begins – before birth or not – the right to life of the foetus can be balanced against the right to life of the mother, or her right to personal autonomy and development, and possibly found to weigh less than the latter rights or interests. And the answer seems to be clear: there is an undeniably strong consensus among European States – and we will come back to this below – to the effect that, regardless of the answer to be given to the scientific, religious or philosophical question of the beginning of life, the right to life of the mother, and, in most countries’ legislation, her well-being and health, are considered more valuable than the right to life of the foetus.

This seems to us a reasonable stance for European legislation and practice to take, given that the values protected – the rights of the foetus and the rights of a living person – are, by their nature, unequal: on the one hand there are the rights of a person already participating, in an active manner, in social interaction, and on the other hand there are the rights of a foetus within the mother’s body, whose life has not been definitively determined as long as the process leading to the birth is not yet complete, and whose participation in social interaction has not even started. In Convention terms, it can also be argued that the rights enshrined in that text are mainly designed to protect individuals against State acts or omissions while the former participate actively in the normal everyday life of a democratic society.

Consequently, we believe that the majority erred when it inappropriately conflated in paragraph 237 of the judgment the question of the beginning of life (and as a consequence the right to life), and the States’ margin of appreciation in this regard, with the margin of appreciation that States have in weighing the right to life of the foetus against the right to life of the mother or her right to health and well-being.

3. When we come to the proportionality test which the Court should properly apply in the circumstances of the case, there are two elements which should be taken into consideration and which weigh heavily in determining whether the interference with the private lives of the two applicants was justified: the first is the existence of a European consensus in favour of allowing abortion; the second is the sanctions provided for by Irish law in cases of abortions performed for health or well-being reasons in breach of the prohibition on abortion in the territory of Ireland.

4. It emerges clearly from the material in our possession that there exists 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” (see paragraph 235 of the judgment). As the Court conceded, “the 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. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life.” (Ibid.)

5. According to the Convention case-law, in situations where the Court finds that a consensus exists among European States on a matter touching upon a human right, it usually concludes that that consensus decisively narrows the margin of appreciation which might otherwise exist if no such consensus were demonstrated. This approach is commensurate with the “harmonising” role of the Convention’s case-law. Indeed, one of the paramount functions of the case-law is to gradually create a harmonious application of human rights protection, cutting across the national boundaries of the Contracting States and allowing the individuals within their jurisdiction to enjoy, without discrimination, equal protection regardless of their place of residence. The harmonising role, however, has limits. One of them is the following: in situations where it is clear that on a certain aspect of human rights protection, European States differ considerably in the way that they protect (or do not protect) individuals against conduct by the State, and the alleged violation of the Convention concerns a relative right which can be balanced – in accordance with the Convention – against other rights or interests also worthy of protection in a democratic society, the Court may consider that States, owing to the absence of a European consensus, have a (not unlimited) margin of appreciation to themselves balance the rights and interests at stake. Hence, in those circumstances the Court refrains from playing its harmonising role, preferring not to become the first European body to “legislate” on a matter still undecided at European level.

6. Yet in the case before us a European consensus (and, indeed, a strong one) exists. We believe that this will be one of the rare times in the Court’s case-law that Strasbourg considers that such consensus does not narrow the broad margin of appreciation of the State concerned; the argument used is that the fact that the applicants had the right “to travel abroad lawfully for an abortion with access to appropriate information and medical care in Ireland” suffices to justify the prohibition of abortion in the country for health and well-being reasons, “based as it is on the profound moral views of the Irish people as to the nature of life” (see paragraph 241 in limine ).

7. We strongly disagree with this finding. Quite apart from the fact, as we have emphasised above, that such an approach shifts the focus of this case away from the core issue, which is the balancing of the right to life of the foetus against the right to health and well-being of the mother, and not the question of when life begins or the margin of appreciation afforded to States on the latter issue, the majority bases its reasoning on two disputable premises: first, that the fact that Irish law allows abortion for those who can travel abroad suffices to satisfy the requirements of the Convention concerning applicants’ right to respect for their private lives; and, second, that the fact that the Irish people have profound moral views as to the nature of life impacts on the European consensus and overrides it, allowing the State to enjoy a wide margin of appreciation.

8. On the first premise, the Court’s argument seems to be circular. The applicants’ complaints concern their inability to have an abortion in their country of residence and they consider, rightly, that travelling abroad to have an abortion is a process which is not only financially costly but also entails a number of practical difficulties well illustrated in their observations. Hence, the position taken by the Court on the matter does not truly address the real issue of unjustified interference in the applicants’ private lives as a result of the prohibition of abortion in Ireland.

9. As to the second premise, it is the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views”. Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law. A case-law which to date has not distinguished between moral and other beliefs when determining the margin of appreciation which can be afforded to States in situations where a European consensus is at hand.

10. Finally, a word on the sanctions which can be imposed for abortions performed in Ireland in situations going beyond the permissible limits laid down by Irish (case-)law. Although the applicants were not themselves subjected to the severe sanctions provided for by Irish law – since they went abroad to have an abortion – the fact remains that the severity of the (rather archaic) law is striking; this might also be seen as an element to be taken into account when applying the proportionality test in this case.

11. From the foregoing analysis it is clear that in the circumstances of the case there has been a violation of Article 8 with regard to the first two applicants.