CONSEIL
DE ĽEUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE ĽHOMME
EUROPEAN COURT OF HUMAN RIGHTS
COURT (PLENARY)
CASE OF OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND
(Application no. 14234/88; 14235/88)
JUDGMENT
STRASBOURG
29 October 1992
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
In the case of Open Door and Dublin Well Woman v. Ireland
,
The European Court of Human Rights, taking its decision in plenary session in pursuance
of Rule 51 of the Rules of Court and composed of the following judges:
Mr R. RYSSDAL, President,
Mr J. CREMONA,
Mr Thór VILHJÁLMSSON,
Mr F. GÖLCÜKLÜ,
Mr F. MATSCHER,
Mr L.-E. PETTITI,
Mr R. MACDONALD,
Mr C. RUSSO,
Mr R. BERNHARDT,
Mr A. SPIELMANN,
Mr J. DE MEYER,
Mr N. VALTICOS,
Mr S.K. MARTENS,
Mrs E. PALM,
Mr I. FOIGHEL,
Mr R. PEKKANEN,
Mr A.N. LOIZOU,
Mr J.M. MORENILLA,
Mr F. BIGI,
Sir John FREELAND,
Mr A.B. BAKA,
Mr M.A. LOPES ROCHA,
Mr J. BLAYNEY, ad hoc judge,
and also of Mr M.-A. EISSEN, Registrar, and Mr H. PETZOLD, Deputy Registrar,
Having deliberated in private on 26 March and 23 September 1992,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights ("the
Commission") on 24 April 1991, and on 3 July 1991 by the Government of Ireland ("the
Government"), within the three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental

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.
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CHAPPELL v. THE UNITED KINGDOM JUDGMENT
Freedoms ("the Convention"). It originated in two applications against Ireland lodged with the
Commission under Article 25 (art. 25) on 10 August and 15 September 1988. The first (no.
14234/88) was brought by Open Door Counselling Ltd, a company incorporated in Ireland;
the second (no. 14235/88) by another Irish company, Dublin Well Woman Centre Ltd, and
one citizen of the United States of America, Ms Bonnie Maher, and three Irish citizens, Ms
Ann Downes, Mrs X and Ms Maeve Geraghty.
The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and the
declaration whereby Ireland recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46) and the Governmenťs application referred to Article 48 (art. 48). The object of the
request and the application was to obtain a decision as to whether or not the facts of the case
disclosed a breach by Ireland of its obligations under Articles 8, 10 and 14 (art. 8, art. 10, art.
14) and also, in the case of the application, to examine these issues in the context of Articles
2, 17 and 60 (art. 2, art. 17, art. 60).
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of
Court, the applicants stated that they wished to take part in the proceedings and designated the
lawyers who would represent them (Rule 30). On 23 January 1992 the President granted
leave, pursuant to Rule 30 of the Rules of Court, to the first applicant company to be
represented at the oral proceedings by a lawyer from the United States of America.
3. The Chamber to be constituted included ex officio Mr B. Walsh, the elected judge of
Irish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). In a letter to the President of 8 May 1991, Mr Walsh stated
that he wished to withdraw pursuant to Rule 24 para. 2, as the case arose out of a decision of
the Irish Supreme Court in which he had participated. On 19 June the Agent of the
Government informed the Registrar that the Hon. Mr Justice Blayney had been appointed as
ad hoc judge (Article 43 of the Convention
and Rule 23) (art. 43).
On 26 April the President of the Court had drawn by lot the names of the other seven
members of the Chamber, namely Mr J. Cremona, Mr L.-E. Pettiti, Mr J. De Meyer, Mrs E.
Palm, Mr R. Pekkanen, Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and,
through the Registrar, consulted the Agent of the Government, the Delegate of the
Commission and the representatives of the applicants on the organisation of the procedure
(Rules 37 para. 1 and 38). In accordance with the Presidenťs orders and directions, the
Registrar received, on 31 October and 4 November 1991, the memorials of the applicants and
the Government and, on 6 December 1991, the observations of the Delegate of the
Commission.
5. On 28 August 1991, the President had granted, under Rule 37 para. 2, leave to "Article
19" (the International Centre against Censorship) to submit written comments on specific
aspects of the case. Leave had been granted on the same date to the Society for the Protection
of Unborn Children (S.P.U.C.). The respective comments were received on 28 November.
6. On 27 January 1992 the President consented to the filing of a document, pursuant to
Rule 37 para. 1, second sub-paragraph, submitted by Dublin Well Woman Centre Ltd.

As modified by Article 11 of Protocol No. 8 (P8-11), which entered into force on 1 January
1990.
3
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
7. As directed by the President, the hearing took place in public in the Human Rights
Building, Strasbourg, on 24 March 1992. The Chamber had held a preparatory meeting
beforehand during which it decided, pursuant to Rule 51, to relinquish jurisdiction forthwith
in favour of the plenary Court. It also consented to the filing of various documents by the
applicants and refused a request by lawyers acting on behalf of S.P.U.C. to address the Court.
There appeared before the Court:
- for the Government
Mrs E. KILCULLEN, Assistant Legal Adviser,
Department of Foreign Affairs, Agent,
Mr D. GLEESON, Senior Counsel,
Mr J. O'REILLY, Senior Counsel, Counsel,
Mr J.F. GORMLEY, Office of the Attorney General, Adviser;
- for the Commission
Mr J. FROWEIN, Delegate;
- for the applicants
Open Door Counselling Ltd
Mr F. CLARKE, Senior Counsel,
Mr D. COLE, Centre for Constitutional Rights (New York), Counsel,
Mr J. HICKEY, Solicitor,
Ms R. RIDDICK, Adviser;
Dublin Well Woman Centre Ltd and Others
Mr A. HARDIMAN, Senior Counsel,
Mr B. MURRAY, Counsel,
Ms B. HUSSEY, Solicitor,
Ms R. BURTENSHAW, Chief Executive,
Ms P. RYDER, Director,
Ms M. MCNEANEY, Counsellor, Advisers.
The Court heard addresses by Mr Gleeson and Mr O'Reilly for the Government, by Mr
Frowein for the Commission and by Mr Clarke, Mr Hardiman and Mr Cole for the applicants,
as well as replies to questions put by the Court.
8. The Government made further submissions concerning the applicants' claims under
Article 50 (art. 50) on 10 April 1992. Comments by the applicants in reply were filed on 15
June 1992.
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CHAPPELL v. THE UNITED KINGDOM JUDGMENT
AS TO THE FACTS
I. INTRODUCTION
A. The applicants
9. The applicants in this case are (a) Open Door Counselling Ltd (hereinafter referred to as
Open Door), a company incorporated under Irish law, which was engaged, inter alia, in
counselling pregnant women in Dublin and in other parts of Ireland; and (b) Dublin Well
Woman Centre Ltd (hereinafter referred to as Dublin Well Woman), a company also
incorporated under Irish law which provided similar services at two clinics in Dublin; (c)
Bonnie Maher and Ann Downes, who worked as trained counsellors for Dublin Well Woman;
(d) Mrs X, born in 1950 and Ms Maeve Geraghty, born in 1970, who join in the Dublin Well
Woman application as women of child-bearing age. The applicants complained of an
injunction imposed by the Irish courts on Open Door and Dublin Well Woman to restrain
them from providing certain information to pregnant women concerning abortion facilities
outside the jurisdiction of Ireland by way of non-directive counselling (see paragraphs 13 and
20 below).
Open Door and Dublin Well Woman are both non-profit- making organisations. Open Door
ceased to operate in 1988 (see paragraph 21 below). Dublin Well Woman was established in
1977 and provides a broad range of services relating to counselling and marriage, family
planning, procreation and health matters. The services offered by Dublin Well Woman relate
to every aspect of women's health, ranging from smear tests to breast examinations,
infertility, artificial insemination and the counselling of pregnant women.
10. In 1983, at the time of the referendum leading to the Eighth Amendment of the
Constitution (see paragraph 28 below), Dublin Well Woman issued a pamphlet stating inter
alia that legal advice on the implications of the wording of the provision had been obtained
and that "with this wording anybody could seek a court injunction to prevent us offering" the
non-directive counselling service. The pamphlet also warned that "it would also be possible
for an individual to seek a court injunction to prevent a woman travelling abroad if they
believe she intends to have an abortion".
B. The injunction proceedings
1. Before the High Court
11. The applicant companies were the defendants in proceedings before the High Court
which were commenced on 28 June 1985 as a private action brought by the Society for the
Protection of Unborn Children (Ireland) Ltd (hereinafter referred to as S.P.U.C.), which was
converted into a relator action brought at the suit of the Attorney General by order of the High
Court of 24 September 1986 (the Attorney General at the relation of the Society for the
5
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd and Dublin Well
Woman Centre Ltd [1988] Irish Reports, pp. 593-627).
12. S.P.U.C. sought a declaration that the activities of the applicant companies in
counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an
abortion were unlawful having regard to Article 40.3.3o
of the Constitution which protects the
right to life of the unborn (see paragraph 28 below) and an order restraining the defendants
from such counselling or assistance.
13. No evidence was adduced at the hearing of the action which proceeded on the basis of
certain agreed facts. The facts as agreed at that time by Dublin Well Woman may be
summarised as follows:
(a) It counsels in a non-directive manner pregnant women resident in Ireland;
(b) Abortion or termination of pregnancy may be one of the options discussed within the
said counselling;
(c) If a pregnant woman wants to consider the abortion option further, arrangements will
be made by the applicant to refer her to a medical clinic in Great Britain;
(d) In certain circumstances, the applicant may arrange for the travel of such pregnant
women;
(e) The applicant will inspect the medical clinic in Great Britain to ensure that it operates
at the highest standards;
(f) At those medical clinics abortions have been performed on pregnant women who have
been previously counselled by the applicant;
(g) Pregnant women resident in Ireland have been referred to medical clinics in Great
Britain where abortions have been performed for many years including 1984.
The facts agreed by Open Door were the same as above with the exception of point (d).
14. The meaning of the concept of non-directive counselling was described in the
following terms by Mr Justice Finlay CJ in the judgment of the Supreme Court in the case
(judgment of 16 March 1988, [1988] Irish Reports 618 at p. 621):
"It was submitted on behalf of each of the Defendants that the meaning of non-directive counselling in
these agreed sets of facts was that it was counselling which neither included advice nor was judgmental but
that it was a service essentially directed to eliciting from the client her own appreciation of her problem and
her own considered choice for its solution. This interpretation of the phrase `non-directive counselling' in
the context of the activities of the Defendants was not disputed on behalf of the Respondent. It follows from
this, of course, that non- directive counselling to pregnant women would never involve the actual advising
of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any
reason to the pregnant women receiving such counselling against choosing to have an abortion."
15. On 19 December 1986 Mr Justice Hamilton, President of the High Court, found that
the activities of Open Door and Dublin Well Woman in counselling pregnant women within
the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice
on abortion within a foreign jurisdiction were unlawful having regard to the provisions of
Article 40.3.3o
of the Constitution of Ireland.
He confirmed that Irish criminal law made it an offence to procure or attempt to procure an
abortion, to administer an abortion or to assist in an abortion by supplying any noxious thing
or instrument (sections 58 and 59 of the Offences against the Person Act 1861 - see paragraph
6
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
29 below). Furthermore, Irish constitutional law also protected the right to life of the unborn
from the moment of conception onwards.
An injunction was accordingly granted "... that the Defendants [Open Door and Dublin
Well Woman] and each of them, their servants or agents, be perpetually restrained from
counselling or assisting pregnant women within the jurisdiction of this Court to obtain further
advice on abortion or to obtain an abortion". The High Court made no order relating to the
costs of the proceedings, leaving each side to bear its own legal costs.
2. Before the Supreme Court
16. Open Door and Dublin Well Woman appealed against this decision to the Supreme
Court which in a unanimous judgment delivered on 16 March 1988 by Mr Justice Finlay CJ
rejected the appeal.
The Supreme Court noted that the appellants did not consider it essential to the service
which they provided for pregnant women in Ireland that they should take any part in
arranging the travel of women who wished to go abroad for the purpose of having an abortion
or that they arranged bookings in clinics for such women. However, they did consider it
essential to inform women who wished to have an abortion outside the jurisdiction of the
court of the name, address, telephone number and method of communication with a specified
clinic which they had examined and were satisfied was one which maintained a high standard.
17. On the question of whether the above activity should be restrained as being contrary to
the Constitution, Mr Justice Finlay CJ stated:
"... the essential issues in this case do not in any way depend upon the Plaintiff establishing that the
Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having
regard to the nature of the guarantees contained in Article 40, s.3, sub-s.3 of the Constitution, is the issue as
to whether the Defendants' admitted activities were assisting pregnant women within the jurisdiction to
travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and
the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn?
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. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion
and if she was able by availing of the counselling services of one or other of the Defendants to obtain the
precise location, address and telephone number of, and method of communication with, a clinic in Great
Britain which provided that service, put in plain language, that was knowingly helping her to attain her
objective. I am, therefore, satisfied that the finding made by the learned trial Judge that the Defendants
were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an
abortion is well supported on the evidence ..."
The Court further noted that the phrase in Article 40.3.3o
"with due regard to the equal
right to life of the mother" did not arise for interpretation in the case since the applicants were
not claiming that the service they were providing for pregnant women was "in any way
confined to or especially directed towards the due regard to the equal right to life of the
mother ...".
18. Open Door and Dublin Well Woman had submitted that if they did not provide this
counselling service it was likely that pregnant women would succeed nevertheless in
7
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
obtaining an abortion in circumstances less advantageous to their health. The Court rejected
this argument in the following terms:
"Even if it could be established, however, it would not be a valid reason why the Court should not
restrain the activities in which the defendants were engaged.
The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction
to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues
and to the parties before them.
If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well
do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that
wide approach. They are confined to dealing with the parties and issues before them. I am satisfied,
therefore, that it is no answer to the making of an order restraining these defendants' activities that there
may be other persons or the activities of other groups or bodies which will provide the same result as that
assisted by these defendants' activities."
19. As to whether there was a constitutional right to information about the availability of
abortion outside the State, the court stated as follows:
"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying.
Within the terms of Article 40.3.3o
it is a direct destruction of the constitutionally guaranteed right to life of
that unborn child.
It must follow from this that there could not be an implied and unenumerated constitutional right to
information about the availability of a service of abortion outside the State which, if availed of, would have
the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As
part of the submission on this issue it was further suggested that the right to receive and give information
which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly
referred to or involved in the right of citizens to express freely their convictions and opinions provided by
Article 40, s.6, sub-s.1 (i) of the Constitution, since, it was claimed, the right to express freely convictions
and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I
am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of
which was to defeat the constitutional right to life of the unborn child."
20. The court upheld the decision of the High Court to grant an injunction but varied the
terms of the order as follows:
"... that the defendants and each of them, their servants or agents 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."
The costs of the Supreme Court appeal were awarded against the applicant companies on 3
May 1988.
21. Following the judgment of the Supreme Court, Open Door, having no assets, ceased its
activities.
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CHAPPELL v. THE UNITED KINGDOM JUDGMENT
C. Subsequent legal developments
22. On 25 September 1989 S.P.U.C. applied to the High Court for a declaration that the
dissemination in certain student publications of information concerning the identity and
location of abortion clinics outside the jurisdiction was unlawful and for an injunction
restraining its distribution. Their standing to apply to the courts for measures to protect the
right to life of the unborn had previously been recognised by the Supreme Court following a
similar action in the case of Society for the Protection of Unborn Children (Ireland) Ltd v.
Coogan and Others ([1989] Irish Reports, pp. 734-751).
By a judgment of 11 October 1989 the High Court decided to refer certain questions to the
European Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty
concerning, inter alia, the question whether the right to information concerning abortion
services outside Ireland was protected by Community law.
23. An appeal was brought against this decision and, on 19 December 1989, the Supreme
Court granted an interlocutory injunction restraining the students from "publishing or
distributing or assisting in the printing, publishing or distribution of any publication produced
under their aegis providing information to persons (including pregnant women) of the identity
and location of and the method of communication with a specified clinic or clinics where
abortions are performed" (Society for the Protection of Unborn Children (Ireland) Ltd v.
Stephen Grogan and Others, [1989] Irish Reports, pp. 753-771).
Mr Justice Finlay CJ (with whom Mr Justice Walsh, Mr Justice Griffin and Mr Justice
Hederman concurred) considered that the reasoning of the court in the case brought against
the applicant companies applied to the activities of the students:
"I reject as unsound the contention that the activity involved in this case of publishing in the students'
manuals the name, address and telephone number, when telephoned from this State, of abortion clinics in
the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity
condemned by this Court in [the Open Door Counselling case] on the grounds that the facts of that case
were that the information was conveyed during periods of one to one non-directive counselling. It is clearly
the fact that such information is conveyed to pregnant women, and not the method of communication which
creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is
not open to any other interpretation."
Mr Justice McCarthy also considered that an injunction should be issued and commented
as follows:
"In the light of the availability of such information from a variety of sources, such as imported
magazines, etc., I am far from satisfied that the granting of an injunction to restrain these defendants from
publishing the material impugned would save the life of a single unborn child, but I am more than satisfied
that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in A.G. (S.P.U.C.) v.
Open Door Counselling Ltd ([1988] Irish Reports 593), then the rule of law will be set at nought."
24. In a judgment of 4 October 1991 on the questions referred under Article 177 of the
EEC Treaty, following the Supreme Courťs judgment, the Court of Justice of the European
Communities ruled that the medical termination of pregnancy, performed in accordance with
the law of the State in which it is carried out, constitutes a service within the meaning of
Article 60 of the Treaty. However it found that the link between the activity of the student
associations and medical terminations of pregnancy carried out in clinics in another member
State was too tenuous for the prohibition on the distribution of information to be capable of
9
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
being regarded as a restriction on the freedom to supply services within the meaning of
Article 59 of the Treaty. The Court did not examine whether the prohibition was in breach of
Article 10 (art. 10) of the Convention. In the light of its conclusions concerning the restriction
on services it considered that it had no jurisdiction with regard to national legislation "lying
outside the scope of Community law". Accordingly, the restrictions on the publication of
information by student associations were not considered to be contrary to Community law
(see paragraphs 22-23 above, the Society for the Protection of Unborn Children (Ireland) Ltd
v. Stephen Grogan and Others [1991] European Court Reports I, pp. 4733-4742).
25. The interpretation to be given to Article 40.3.3o
of the Constitution also arose before
the Supreme Court in the case of The Attorney General v. X and Others which concerned an
application to the courts by the Attorney General for an injunction to prevent a 14-year-old
girl who was pregnant from leaving the jurisdiction to have an abortion abroad. The girl
alleged that she had been raped and had expressed the desire to commit suicide. The Supreme
Court, in its judgment of 5 March 1992, found that termination of pregnancy was permissible
under Article 40.3.3o
where it was established as a matter of probability that there was a real
and substantial risk to the life of the mother if such termination was not effected. Finding that
this test was satisfied on the facts of the case the Supreme Court discharged the injunction
which had been granted by the High Court at first instance.
A majority of three judges of the Supreme Court (Finlay CJ, Hederman and Egan JJ.)
expressed the view that Article 40.3.3o
empowered the courts in proper cases to restrain by
injunction a pregnant woman from leaving the jurisdiction to have an abortion so that the
right to life of the unborn might be defended and vindicated.
During the oral hearing before the European Court of Human Rights, the Government
made the following statement in the light of the Supreme Courťs judgment in this case:
"... persons who are deemed to be entitled under Irish law to avail themselves of termination of
pregnancy in these circumstances must be regarded as being entitled to have appropriate access to
information in relation to the facilities for such operations, either in Ireland or abroad."
D. Evidence presented by the applicants
26. The applicants presented evidence to the Court that there had been no significant drop
in the number of Irish women having abortions in Great Britain since the granting of the
injunction, that number being well over 3,500 women per year. They also submitted an
opinion from an expert in public health (Dr J.R. Ashton) which concludes that there are five
possible adverse implications for the health of Irish women arising from the injunction in the
present case:
1. An increase in the birth of unwanted and rejected children;
2. An increase in illegal and unsafe abortions;
3. A lack of adequate preparation of Irish women obtaining abortions;
4. Increases in delay in obtaining abortions with ensuing increased complication rates;
5. Poor aftercare with a failure to deal adequately with medical complications and a failure
to provide adequate contraceptive advice.
10
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
In their written comments to the Court, S.P.U.C. claimed that the number of abortions
obtained by Irish women in England, which had been rising rapidly prior to the enactment of
Article 40.3.3o
, had increased at a much reduced pace. They further submitted that the number
of births to married women had increased at a "very substantial rate".
27. The applicants claimed that the impugned information was available in British
newspapers and magazines which were imported into Ireland as well as in the yellow pages of
the London telephone directory which could be purchased from the Irish telephone service. It
was also available in publications such as the British Medical Journal which was obtainable in
Ireland.
While not challenging the accuracy of the above information the Government observed
that no newspaper or magazine had been produced in evidence to the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE CONCERNING PROTECTION OF
THE UNBORN
A. Constitutional protection
28. Article 40.3.3o
of the Irish Constitution (the Eighth Amendment), which came into
force in 1983 following a referendum, reads:
"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of
the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate
that right."
This provision has been interpreted by the Supreme Court in the present case, in the
Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan and Others ([1989]
Irish Reports, p. 753) and in The Attorney General v. X and Others (see paragraphs 22-25
above).
B. Statutory protection
29. The statutory prohibition of abortion is contained in sections 58 and 59 of the Offences
Against the Person Act 1861. Section 58 provides that:
"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully
administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other
means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any
woman, whether she be or not be with child, shall unlawfully administer to her or cause to betaken by her
any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with
the like intent, shall be guilty of a felony, and being convicted thereof shall be liable, [to imprisonment for
life] ..."
Section 59 states that:
"Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or
thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to
procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a
misdemeanour, and being convicted thereof, ..."
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CHAPPELL v. THE UNITED KINGDOM JUDGMENT
30. Section 16 of the Censorship of Publications Act 1929 as amended by section 12 of the
Health (Family Planning) Act 1979 provides that:
"It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing
granted to him under this section
(a) to print or publish or cause or procure to be printed or published, or
(b) to sell or expose, offer or keep for sale or
(c) to distribute, offer or keep for distribution,
any book or periodical publication (whether appearing on the register of prohibited publications or not)
which advocates or which might reasonably be supposed to advocate the procurement of abortion or
miscarriage or any method, treatment or appliance to be used for the purpose of such procurement."
31. Section 58 of the Civil Liability Act 1961 provides that "the law relating to wrongs
shall apply to an unborn child for his protection in like manner as if the child were born,
provided the child is subsequently born alive".
32. Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory
prohibition of abortion and states as follows:
"Nothing in this Act shall be construed as authorising (a)
the procuring of abortion,
(b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences
Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any
instruments to procure abortion) or,
(c) the sale, importation into the State, manufacture, advertising or display of abortifacients."
C. Case-law
33. Apart from the present case and subsequent developments (see paragraphs 11-25
above), reference has been made to the right to life of the unborn in various decisions of the
Supreme Court (see, for example, McGee v. Attorney General [1974] Irish Reports, p. 264, G.
v. An Bord Uchtala [1980] Irish Reports, p. 32, Norris v. Attorney General [1984] Irish
Reports, p. 36).
34. In the case of G. v. An Bord Uchtala (loc. cit.) Mr Justice Walsh stated as follows:
"[A child] has the right to life itself and the right to be guarded against all threats directed to its existence,
whether before or after birth ... The right to life necessarily implies the right to be born, the right to preserve
and defend and to have preserved and defended that life ..."
35. The Supreme Court has also stated that the courts are the custodians of the fundamental
rights set out in the Constitution and that their powers in this regard are as ample as the
defence of the Constitution requires (The State (Quinn) v. Ryan [1965] Irish Reports 70).
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CHAPPELL v. THE UNITED KINGDOM JUDGMENT
Moreover, an infringement of a constitutional right by an individual may be actionable in
damages as a constitutional tort (Meskell v. C.I.E. [1973] Irish Reports, p. 121).
In his judgment in The People v. Shaw ([1982] Irish Reports, p. 1), Mr Justice Kenny
observed:
"When the People enacted the Constitution of 1937, they provided (Article 40,s.3) that the State
guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal
rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust
attack and in the case of injustice done, vindicate the life, person, good name and property rights of every
citizen. I draw attention to the use of the words `the State'. The obligation to implement this guarantee is
imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of
legislating, executing and giving judgment on those laws: Article 6. The word `laws' in Article 40,s.3 is not
confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges
and by ministers of State when they make statutory instruments or regulations."
PROCEEDINGS BEFORE THE COMMISSION
36. In their applications (nos. 14234 and 14235/88) lodged with the Commission on 19
August and 22 September 1988 the applicants complained that the injunction in question
constituted an unjustified interference with their right to impart or receive information
contrary to Article 10 (art. 10) of the Convention. Open Door, Mrs X and Ms Geraghty further
claimed that the restrictions amounted to an interference with their right to respect for private
life in breach of Article 8 (art. 8) and, in the case of Open Door, discrimination contrary to
Article 14 in conjunction with Articles 8 and 10 (art. 14+8, art. 14+10).
37. The Commission joined the applications on 14 March 1989 and declared the case
admissible on 15 May 1990. In its report of 7 March 1991 (Article 31) (art. 31), it expressed
the opinion:
(a) by eight votes to five, that there had been a violation of Article 10 (art. 10) in respect of
the Supreme Court injunction as it affected the applicant companies and counsellors;
(b) by seven votes to six, that there had been a violation of Article 10 (art. 10) in respect of
the Supreme Court injunction as it affected Mrs X and Ms Geraghty;
(c) by seven votes to two, with four abstentions, that it was not necessary to examine
further the complaints of Mrs X and Ms Geraghty under Article 8 (art. 8);
(d) unanimously, that there had been no violation of Articles 8 and 14 (art. 8, art. 14) in
respect of Open Door.
The full text of the Commission's opinion and of the seven separate opinions contained in
the report is reproduced as an annex to this judgment
.

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.
13
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
38. At the public hearing on 24 March 1992 the Government maintained in substance the
arguments and submissions set out in their memorial whereby they invited the Court to find
that there had been no breach of the Convention.
AS TO THE LAW
I. SCOPE OF THE DUBLIN WELL WOMAN CASE
39. In their original application to the Commission Dublin Well Woman and the two
counsellors, Ms Maher and Ms Downes, alleged that the Supreme Court injunction
constituted an unjustified interference with their right to impart information, in breach of
Article 10 (art. 10) of the Convention.
In their pleadings before the Court they further complained that there had also been a
breach of Article 8 (art. 8). They had not raised this complaint before the Commission.
40. The scope of the Courťs jurisdiction is determined by the Commission's decision
declaring the originating application admissible (see, inter alia, the Brogan and Others v. the
United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 27, para. 46). The
Court considers that the applicants are now seeking to raise before the Court a new and
separate complaint. As such it has no jurisdiction to entertain it.
II. THE GOVERNMENŤS PRELIMINARY OBJECTIONS
A. Whether Ms Maher, Ms Downes, Mrs X and Ms Geraghty can claim to be
"victims" of a violation of the Convention
41. The Government submitted, as they had done before the Commission, that only the
corporate applicants could claim to be "victims" of an infringement of their Convention
rights. Ms Maher, Ms Downes, Mrs X and Ms Geraghty had not been involved in the
proceedings before the Irish courts. Moreover the applicants had failed to identify a single
pregnant woman who could claim to be a "victim" of the matters complained of. In this
respect the case was in the nature of an actio popularis, particularly as regards Mrs X and Ms
Geraghty.
1. Ms MahDoneer and Ms Downes
42. The Delegate of the Commission pointed out that the Governmenťs plea as regards the
applicant counsellors (Ms Maher and Ms Downes) conflicted with their concession in the
14
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
pleadings before the Commission that these applicants were subject to the restraint of the
Supreme Court injunction and could therefore properly claim to have suffered an interference
with their Article 10 (art. 10) rights.
43. The Court agrees with the Commission that Ms Maher and Ms Downes can properly
claim to be "victims" of an interference with their rights since they were directly affected by
the Supreme Court injunction. Moreover, it considers that the Government are precluded from
making submissions as regards preliminary exceptions which are inconsistent with
concessions previously made in their pleadings before the Commission (see, mutatis
mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November
1991, Series A no. 222, pp. 21-22, para. 47, and the Kolompar v. Belgium judgment of 24
September 1992, Series A no. 235-C, p. 54, para. 32).
2. Mrs X and Ms Geraghty
44. The Court recalls that Article 25 (art. 25) entitles individuals to contend that a law
violates their rights by itself, in the absence of an individual measure of implementation, if
they run the risk of being directly affected by it (see, inter alia, the Johnston and Others v.
Ireland judgment of 18 December 1986, Series A no. 112, p. 21, para. 42).
In the present case the Supreme Court injunction restrained the corporate applicants and
their servants and agents from providing certain information to pregnant women. Although it
has not been asserted that Mrs X and Ms Geraghty are pregnant, it is not disputed that they
belong to a class of women of child-bearing age which may be adversely affected by the
restrictions imposed by the injunction. They are not seeking to challenge in abstracto the
compatibility of Irish law with the Convention since they run a risk of being directly
prejudiced by the measure complained of. They can thus claim to be "victims" within the
meaning of Article 25 para. 1 (art. 25-1).
B. Whether the application complies with the six-month rule
45. At the oral hearing the Government submitted that the application should be rejected
under Article 26 (art. 26) for failure to comply with the six-month rule, on the grounds that
the applicants were relying on case-law and arguments which were not raised before the
domestic courts.
46. The Court observes that while this plea was made before the Commission (see
Appendix II of the Commission's report) it was not re-iterated in the Governmenťs memorial
to the Court and was raised solely at the oral hearing. Rule 48 para. 1 of the Rules of Court,
however, required them to file it before the expiry of the time-limit laid down for the filing of
their memorial, with the result that it must therefore be rejected as being out of time (see,
inter alia, the Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 28, para.
56).
15
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
C. Whether the applicants had exhausted domestic remedies
47. In their memorial the Government submitted - as they had also done before the
Commission - that domestic remedies had not been exhausted, as required by Article 26 (art.
26), by:
1. Open Door as regards its complaints under Articles 8 and 14 (art. 8, art. 14);
2. both Open Door and Dublin Well Woman in so far as they sought to introduce in their
complaint under Article 10 (art. 10) evidence and submissions concerning abortion and the
impact of the Supreme Court injunction on women's health that had not been raised before
the Irish courts;
3. Ms Maher, Ms Downes, Mrs X and Ms Geraghty on the grounds that they had made no
attempt to exhaust domestic remedies under Irish law and that they had not been involved in
any capacity in the relevant proceedings before the Irish courts.
48. As regards (1) the Court observes that Open Door would have had no prospect of
success in asserting these complaints having regard to the reasoning of the Supreme Court
concerning the high level of protection afforded to the right to life of the unborn child under
Irish law (see paragraphs 16-25 above).
49. As regards (2) Open Door and Dublin Well Woman are not introducing a fresh
complaint in respect of which they have not exhausted domestic remedies. They are merely
developing their submissions in respect of complaints which have already been examined by
the Irish courts. Article 26 (art. 26) imposes no impediments to applicants in this regard. It is
clear from the judgment of the Supreme Court that the applicants had in fact argued that an
injunction would adversely affect women's health and that this submission was rejected (see
paragraph 18 above).
50. Finally, as regards (3) it emerges from the judgments of the Supreme Court in the
present case and in subsequent cases (see paragraphs 16-25 above) that any action brought by
the four individual applicants would have had no prospects of success.
51. Accordingly, the Governmenťs objection based on non- exhaustion of domestic
remedies fails.
Conclusion
52. To sum up, the Court is able to take cognisance of the merits of the case as regards all
of the applicants.
III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
53. The applicants alleged that the Supreme Court injunction, restraining them from
assisting pregnant women to travel abroad to obtain abortions, infringed the rights of the
corporate applicants and the two counsellors to impart information, as well as the rights of
Mrs X and Ms Geraghty to receive information. They confined their complaint to that part of
the injunction which concerned the provision of information to pregnant women as opposed
to the making of travel arrangements or referral to clinics (see paragraph 20 above). They
invoked Article 10 (art. 10) which provides:
16
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by public authority and regardless of
frontiers ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
54. In their submissions to the Court the Government contested these claims and also
contended that Article 10 (art. 10) should be interpreted against the background of Articles 2,
17 and 60 (art. 2, art. 17, art. 60) of the Convention the relevant parts of which state:
Article 2 (art. 2)
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a crime for which this penalty is
provided by law.
..."
Article 17 (art. 17)
"Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to
engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for in the Convention."
Article 60 (art. 60)
"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."
A. Was there an interference with the applicants' rights?
55. The Court notes that the Government accepted that the injunction interfered with the
freedom of the corporate applicants to impart information. Having regard to the scope of the
injunction which also restrains the "servants or agents" of the corporate applicants from
assisting "pregnant women" (see paragraph 20 above), there can be no doubt that there was
also an interference with the rights of the applicant counsellors to impart information and with
the rights of Mrs X and Ms Geraghty to receive information in the event of being pregnant.
To determine whether such an interference entails a violation of Article 10 (art. 10), the
Court must examine whether or not it was justified under Article 10 para. 2 (art. 10-2) by
reason of being a restriction "prescribed by law" which was necessary in a democratic society
on one or other of the grounds specified in Article 10 para. 2 (art. 10-2).
17
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
B. Was the restriction "prescribed by law"?
1. Arguments presented by those appearing before the Court
56. Open Door and Dublin Well Woman submitted that the law was not formulated with
sufficient precision to have enabled them to foresee that the non-directive counselling in
which they were involved would be restrained by the courts. It was not clear from the
wording of Article 40.3.3o
of the Constitution (the Eighth Amendment), which gave rise to
many difficulties of interpretation and application, that those giving information to pregnant
women would be in breach of this provision. In the same way, it was not clear whether it
could have been used as a means of prohibiting access to foreign periodicals containing
advertisements for abortion facilities abroad or of restricting other activities involving a
"threat" to the life of the unborn such as travelling abroad to have an abortion.
In this respect the applicants pointed out that the provision had been criticised at the time
of its enactment by both the Attorney General and the Director of Public Prosecutions on the
grounds that it was ambiguous and uncertain. Furthermore, although there was an expectation
that there would be legislation to clarify the meaning of the provision, none was in fact
enacted.
They also maintained that on its face Article 40.3.3o
is addressed only to the State and not
to private persons. Thus they had no way of knowing that it would apply to non-directive
counselling by private agencies. Indeed, since none of Irelanďs other laws concerning
abortion forbids such counselling or travelling abroad to have an abortion they had good
reason to believe that this activity was lawful.
Finally, the insufficient precision of the Eighth Amendment was well reflected in the recent
judgment of the Supreme Court of 5 March 1992 in The Attorney General v. X and Others
which, as conceded by the Government, had the consequence that it would now be lawful to
provide information concerning abortion services abroad in certain circumstances (see
paragraph 25 above).
In sum, given the uncertain scope of this provision and the considerable doubt as to its
meaning and effect, even amongst the most authoritative opinion, the applicants could not
have foreseen that such non-directive counselling was unlawful.
57. The Government submitted that the legal position was reasonably foreseeable with
appropriate legal advice, within the meaning of the Courťs case-law. The applicants ought to
have known that an injunction could be obtained against them to protect or defend rights
guaranteed by the Constitution, or recognised at common law, or under the principles of the
law of equity. Indeed, evidence had now come to light subsequent to the publication of the
Commission's report that Dublin Well Woman had actually received legal advice concerning
the implications of the wording of the Amendment which warned that a court injunction to
restrain their counselling activities was possible (see paragraph 10 in fine above). It was thus
not open to the applicants, against this background, to argue that the injunction was
unforeseeable.
58. For the Commission, the Eighth Amendment did not provide a clear basis for the
applicants to have foreseen that providing information about lawful services abroad would be
18
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
unlawful. A law restricting freedom of expression across frontiers in such a vital area required
particular precision to enable individuals to regulate their conduct accordingly. Since it was
not against the criminal law for women to travel abroad to have an abortion, lawyers could
reasonably have concluded that the provision of information did not involve a criminal
offence. In addition, the Government had been unable to show, with reference to case-law,
that the applicant companies could have foreseen that their counselling service was a
constitutional tort (see paragraph 35 above). Moreover, the wording of the Amendment
suggested that legislation was to have been enacted regulating the protection of the rights of
the unborn.
2. Courťs examination of the issue
59. This question must be approached by considering not merely the wording of Article
40.3.3o
in isolation but also the protection given under Irish law to the rights of the unborn in
statute law and in case-law (see paragraphs 28-35 above).
It is true that it is not a criminal offence to have an abortion outside Ireland and that the
practice of non-directive counselling of pregnant women did not infringe the criminal law as
such. Moreover, on its face the language of Article 40.3.3o
appears to enjoin only the State to
protect the right to life of the unborn and suggests that regulatory legislation will be
introduced at some future stage.
On the other hand, it is clear from Irish case-law, even prior to 1983, that infringement of
constitutional rights by private individuals as well as by the State may be actionable (see
paragraph 35 above). Furthermore, the constitutional obligation that the State defend and
vindicate personal rights "by its laws" has been interpreted by the courts as not being confined
merely to "laws" which have been enacted by the Irish Parliament (Oireachtas) but as also
comprehending judge-made "law". In this regard the Irish courts, as the custodians of
fundamental rights, have emphasised that they are endowed with the necessary powers to
ensure their protection (ibid.).
60. Taking into consideration the high threshold of protection of the unborn provided under
Irish law generally and the manner in which the courts have interpreted their role as the
guarantors of constitutional rights, the possibility that action might be taken against the
corporate applicants must have been, with appropriate legal advice, reasonably foreseeable
(See the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p.
31, para. 49). This conclusion is reinforced by the legal advice that was actually given to
Dublin Well Woman that, in the light of Article 40.3.3o
, an injunction could be sought against
its counselling activities (see paragraph 10 in fine above).
The restriction was accordingly "prescribed by law".
C. Did the restriction have aims that were legitimate under Article 10 para. 2 (art. 10-
2)?
61. The Government submitted that the relevant provisions of Irish law are intended for the
protection of the rights of others - in this instance the unborn -, for the protection of morals
and, where appropriate, for the prevention of crime.
19
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
62. The applicants disagreed, contending inter alia that, in view of the use of the term
"everyone" in Article 10 para. 1 (art. 10-1) and throughout the Convention, it would be
illogical to interpret the "rights of others" in Article 10 para. 2 (art. 10-2) as encompassing the
unborn.
63. The Court cannot accept that the restrictions at issue pursued the aim of the prevention
of crime since, as noted above (paragraph 59), neither the provision of the information in
question nor the obtaining of an abortion outside the jurisdiction involved any criminal
offence. However, it is evident that the protection afforded under Irish law to the right to life
of the unborn is based on profound moral values concerning the nature of life which were
reflected in the stance of the majority of the Irish people against abortion as expressed in the
1983 referendum (see paragraph 28 above). The restriction thus pursued the legitimate aim of
the protection of morals of which the protection in Ireland of the right to life of the unborn is
one aspect. It is not necessary in the light of this conclusion to decide whether the term
"others" under Article 10 para. 2 (art. 10-2) extends to the unborn.
D. Was the restriction necessary in a democratic society?
64. The Government submitted that the Courťs approach to the assessment of the
"necessity" of the restraint should be guided by the fact that the protection of the rights of the
unborn in Ireland could be derived from Articles 2, 17 and 60 (art. 2, art. 17, art. 60) of the
Convention. They further contended that the "proportionality" test was inadequate where the
rights of the unborn were at issue. The Court will examine these issues in turn.
1. Article 2 (art. 2)
65. The Government maintained that the injunction was necessary in a democratic society
for the protection of the right to life of the unborn and that Article 10 (art. 10) should be
interpreted inter alia against the background of Article 2 (art. 2) of the Convention which,
they argued, also protected unborn life. The view that abortion was morally wrong was the
deeply held view of the majority of the people in Ireland and it was not the proper function of
the Court to seek to impose a different viewpoint.
66. The Court observes at the outset that in the present case it is not called upon to
examine whether a right to abortion is guaranteed under the Convention or whether the foetus
is encompassed by the right to life as contained in Article 2 (art. 2). The applicants have not
claimed that the Convention contains a right to abortion, as such, their complaint being
limited to that part of the injunction which restricts their freedom to impart and receive
information concerning abortion abroad (see paragraph 20 above).
Thus the only issue to be addressed is whether the restrictions on the freedom to impart
and receive information contained in the relevant part of the injunction are necessary in a
democratic society for the legitimate aim of the protection of morals as explained above (see
paragraph 63). It follows from this approach that the Governmenťs argument based on Article
2 (art. 2) of the Convention does not fall to be examined in the present case. On the other
20
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
hand, the arguments based on Articles 17 and 60 (art. 17, art. 60) fall to be considered below
(see paragraphs 78 and 79).
2. Proportionality
67. The Government stressed the limited nature of the Supreme Courťs injunction which
only restrained the provision of certain information (see paragraph 20 above). There was no
limitation on discussion in Ireland about abortion generally or the right of women to travel
abroad to obtain one. They further contended that the Convention test as regards the
proportionality of the restriction was inadequate where a question concerning the extinction
of life was at stake. The right to life could not, like other rights, be measured according to a
graduated scale. It was either respected or it was not. Accordingly, the traditional approach of
weighing competing rights and interests in the balance was inappropriate where the
destruction of unborn life was concerned. Since life was a primary value which was
antecedent to and a prerequisite for the enjoyment of every other right, its protection might
involve the infringement of other rights such as freedom of expression in a manner which
might not be acceptable in the defence of rights of a lesser nature.
The Government also emphasised that, in granting the injunction, the Supreme Court was
merely sustaining the logic of Article 40.3.3o
of the Constitution. The determination by the
Irish courts that the provision of information by the relevant applicants assisted in the
destruction of unborn life was not open to review by the Convention institutions.
68. The Court cannot agree that the State's discretion in the field of the protection of
morals is unfettered and unreviewable (see, mutatis mutandis, for a similar argument, the
Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 20, para. 45).
It acknowledges that the national authorities enjoy a wide margin of appreciation in
matters of morals, particularly in an area such as the present which touches on matters of
belief concerning the nature of human life. As the Court has observed before, it is not possible
to find in the legal and social orders of the Contracting States a uniform European conception
of morals, and the State authorities are, in principle, in a better position than the international
judge to give an opinion on the exact content of the requirements of morals as well as on the
"necessity" of a "restriction" or "penalty" intended to meet them (see, inter alia, the
Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para.
48, and the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p.
22, para. 35).
However this power of appreciation is not unlimited. It is for the Court, in this field also,
to supervise whether a restriction is compatible with the Convention.
69. As regards the application of the "proportionality" test, the logical consequence of the
Governmenťs argument is that measures taken by the national authorities to protect the right
to life of the unborn or to uphold the constitutional guarantee on the subject would be
automatically justified under the Convention where infringement of a right of a lesser stature
was alleged. It is, in principle, open to the national authorities to take such action as they
consider necessary to respect the rule of law or to give effect to constitutional rights.
However, they must do so in a manner which is compatible with their obligations under the
Convention and subject to review by the Convention institutions. To accept the Governmenťs
pleading on this point would amount to an abdication of the Courťs responsibility under
21
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
Article 19 (art. 19) "to ensure the observance of the engagements undertaken by the High
Contracting Parties ...".
70. Accordingly, the Court must examine the question of "necessity" in the light of the
principles developed in its case-law (see, inter alia, the Observer and Guardian v. the United
Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59). It must
determine whether there existed a pressing social need for the measures in question and, in
particular, whether the restriction complained of was "proportionate to the legitimate aim
pursued" (ibid.).
71. In this context, it is appropriate to recall that freedom of expression is also applicable
to "information" or "ideas" that offend, shock or disturb the State or any sector of the
population. Such are the demands of that pluralism, tolerance and broadmindedness without
which there is no "democratic society" (see, inter alia, the above-mentioned Handyside
judgment, Series A no. 24, p. 23, para. 49).
72. While the relevant restriction, as observed by the Government, is limited to the
provision of information, it is recalled that it is not a criminal offence under Irish law for a
pregnant woman to travel abroad in order to have an abortion. Furthermore, the injunction
limited the freedom to receive and impart information with respect to services which are
lawful in other Convention countries and may be crucial to a woman's health and well-being.
Limitations on information concerning activities which, notwithstanding their moral
implications, have been and continue to be tolerated by national authorities, call for careful
scrutiny by the Convention institutions as to their conformity with the tenets of a democratic
society.
73. The Court is first struck by the absolute nature of the Supreme Court injunction which
imposed a "perpetual" restraint on the provision of information to pregnant women
concerning abortion facilities abroad, regardless of age or state of health or their reasons for
seeking counselling on the termination of pregnancy. The sweeping nature of this restriction
has since been highlighted by the case of The Attorney General v. X and Others and by the
concession made by the Government at the oral hearing that the injunction no longer applied
to women who, in the circumstances as defined in the Supreme Courťs judgment in that case,
were now free to have an abortion in Ireland or abroad (see paragraph 25 above).
74. On that ground alone the restriction appears over broad and disproportionate.
Moreover, this assessment is confirmed by other factors.
75. In the first place, it is to be noted that the corporate applicants were engaged in the
counselling of pregnant women in the course of which counsellors neither advocated nor
encouraged abortion, but confined themselves to an explanation of the available options (see
paragraphs 13 and 14 above). The decision as to whether or not to act on the information so
provided was that of the woman concerned. There can be little doubt that following such
counselling there were women who decided against a termination of pregnancy. Accordingly,
the link between the provision of information and the destruction of unborn life is not as
definite as contended. Such counselling had in fact been tolerated by the State authorities
even after the passing of the Eighth Amendment in 1983 until the Supreme Courťs judgment
in the present case. Furthermore, the information that was provided by the relevant applicants
concerning abortion facilities abroad was not made available to the public at large.
22
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
76. It has not been seriously contested by the Government that information concerning
abortion facilities abroad can be obtained from other sources in Ireland such as magazines and
telephone directories (see paragraphs 23 and 27 above) or by persons with contacts in Great
Britain. Accordingly, information that the injunction sought to restrict was already available
elsewhere although in a manner which was not supervised by qualified personnel and thus
less protective of women's health. Furthermore, the injunction appears to have been largely
ineffective in protecting the right to life of the unborn since it did not prevent large numbers
of Irish women from continuing to obtain abortions in Great Britain (see paragraph 26 above).
77. In addition, the available evidence, which has not been disputed by the Government,
suggests that the injunction has created a risk to the health of those women who are now
seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and
who are not availing themselves of customary medical supervision after the abortion has
taken place (see paragraph 26 above). Moreover, the injunction may have had more adverse
effects on women who were not sufficiently resourceful or had not the necessary level of
education to have access to alternative sources of information (see paragraph 76 above).
These are certainly legitimate factors to take into consideration in assessing the
proportionality of the restriction.
3. Articles 17 and 60 (art. 17, art. 60)
78. The Government, invoking Articles 17 and 60 (art. 17, art. 60) of the Convention, have
submitted that Article 10 (art. 10) should not be interpreted in such a manner as to limit,
destroy or derogate from the right to life of the unborn which enjoys special protection under
Irish law.
79. Without calling into question under the Convention the regime of protection of unborn
life that exists under Irish law, the Court recalls that the injunction did not prevent Irish
women from having abortions abroad and that the information it sought to restrain was
available from other sources (see paragraph 76 above). Accordingly, it is not the interpretation
of Article 10 (art. 10) but the position in Ireland as regards the implementation of the law that
makes possible the continuance of the current level of abortions obtained by Irish women
abroad.
4. Conclusion
80. In the light of the above, the Court concludes that the restraint imposed on the
applicants from receiving or imparting information was disproportionate to the aims pursued.
Accordingly there has been a breach of Article 10 (art. 10).
IV. ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 (art. 8, art. 14)
81. Open Door also alleged a violation of the right to respect for private life contrary to
Article 8 (art. 8) claiming that it should be open to it to complain of an interference with the
privacy rights of its clients. Similarly, Mrs X and Ms Geraghty complained under this
provision that the denial to them of access to information concerning abortion abroad
constituted an unjustifiable interference with their right to respect for private life.
23
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
Open Door further claimed discrimination contrary to Article 14 in conjunction with
Article 8 (art. 14+8) alleging that the injunction discriminated against women since men were
not denied information "critical to their reproductive and health choices". It also invoked
Article 14 in conjunction with Article 10 (art. 14+10) claiming discrimination on the grounds
of political or other opinion since those who seek to counsel against abortion are permitted to
express their views without restriction.
82. The applicants in the Dublin Well Woman case, in their memorial to the Court,
similarly complained of discrimination contrary to Article 14, firstly, in conjunction with
Article 8 (art. 14+8) on the same basis as Open Door, and secondly, in conjunction with
Article 10 (art. 14+10) on the grounds that it followed from the decision of the Court of
Justice of the European Communities in the Grogan case (see paragraph 24 above) that, had
Dublin Well Woman been an "economic operator", they would have been permitted to
distribute and receive such information.
83. The Court notes that the complaints of discrimination made by the applicants in Dublin
Well Woman were made for the first time in the proceedings before the Court and that
consequently it may be questioned whether it has jurisdiction to examine them (see paragraph
40 above). However, having regard to its finding that there had been a breach of Article 10
(art. 10) (see paragraph 80 above) the Court considers that it is not necessary to examine
either these complaints or those made by Open Door, Mrs X and Ms Geraghty.
V. APPLICATION OF ARTICLE 50 (art. 50)
84. Article 50 (art. 50) provides as follows:
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention,
and if the internal law of the said Party allows only partial reparation to be made for the consequences of
this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured
party."
A. Damage
85. Open Door made no claim for compensation for damage. Dublin Well Woman, on the
other hand, claimed pecuniary damages amounting to IR62,172 in respect of loss of income
for the period January 1987 to June 1988 due to the discontinuance of the pregnancy
counselling service.
86. The Government submitted that the claim should be rejected. In particular, they
contended that it was made belatedly; that it was inconsistent with Dublin Well Woman's
status as a non-profit- making company to claim pecuniary damage and was excessive.
87. The Court notes that the claim was made on 24 February 1992 and thus well in
advance of the hearing of the case on 24 March 1992. Furthermore, it considers that even a
non-profit- making company such as the applicant can incur losses for which it should be
compensated.
24
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
The Government have submitted that it was unclear on what basis or in what manner the
sum of IR62,172 was computed and Dublin Well Woman has not indicated how these losses
were calculated or sought to substantiate them. Nevertheless, the discontinuance of the
counselling service must have resulted in a loss of income. Having regard to equitable
considerations as required by Article 50 (art. 50), the Court awards IR25,000 under this
head.
B. Costs and expenses
1. Open Door
88. Open Door claimed the sum of IR68,985.75 referable to both the national proceedings
and to those before the Convention institutions. This sum did not take into account what had
been received by way of legal aid from the Council of Europe in respect of fees. On 1 May
1992 Mr Cole, a lawyer who had appeared on behalf of Open Door, filed a supplementary
claim for US$24,300 on behalf of the Centre for Constitutional Rights.
89. The Government considered the claim made by Open Door to be reasonable.
90. The Court observes that the claim made by Open Door includes an amount for the
services of Mr Cole of the Centre for Constitutional Rights. It rejects his supplementary claim
on behalf of the Centre for Constitutional Rights which was not itself a party to the
proceedings. However, it allows Open Door's uncontested claim less 6,900 French francs
paid by way of legal aid in respect of fees.
2. Dublin Well Woman
91. Dublin Well Woman claimed a total sum of IR63,302.84 for costs and expenses
incurred in the national proceedings. They further claimed IR21,084.95 and IR27,116.30 in
respect of proceedings before the Commission and the Court. These sums did not take into
account what had been received by way of legal aid in respect of fees and expenses.
92. The Government accepted that the claims for domestic costs were reasonable. However
they submitted that, in the light of the claim made by Open Door, IR16,000 and IR19,000
were more appropriate sums for the proceedings before the Commission and Court.
93. The Court also considers that the amount claimed in respect of the proceedings before
the Commission and Court is excessive taking into account the fees claimed by Open Door
and the differences between the two applications. It holds that Dublin Well Woman should be
awarded IR100,000 under this head less 52,577 French francs already paid by way of legal
aid in respect of fees and expenses.
94. The amounts awarded in this judgment are to be increased by any value-added tax that
may be chargeable.
25
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
FOR THESE REASONS, THE COURT
1. Dismisses by fifteen votes to eight the Governmenťs plea that Mrs X and Ms Geraghty
cannot claim to be victims of a violation of the Convention;
2. Dismisses unanimously the remainder of the Governmenťs preliminary objections;
3. Holds by fifteen votes to eight that there has been a violation of Article 10 (art. 10);
4. Holds unanimously that it is not necessary to examine the remaining complaints;
5. Holds by seventeen votes to six that Ireland is to pay to Dublin Well Woman, within three
months, IR25,000 (twenty-five thousand Irish pounds) in respect of damages;
6. Holds unanimously that Ireland is to pay to Open Door and Dublin Well Woman, within
three months, in respect of costs and expenses, the sums resulting from the calculation to
be made in accordance with paragraphs 90, 93 and 94 of the judgment;
7. Dismisses unanimously the remainder of the claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights
Building, Strasbourg, on 29 October 1992.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of
the Rules of Court, the following separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Cremona;
(b) partly dissenting opinion of Mr Matscher;
(c) dissenting opinion of Mr Pettiti, Mr Russo and Mr Lopes Rocha, approved by Mr Bigi;
(d) separate opinion of Mr De Meyer;
(e) concurring opinion of Mr Morenilla;
26
CHAPPELL v. THE UNITED KINGDOM JUDGMENT
(f) partly dissenting opinion of Mr Baka;
(g) dissenting opinion of Mr Blayney.
R.R.
M.-A.E
27
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGE CREMONA
DISSENTING OPINION OF JUDGE CREMONA
There are certain aspects in this case which merit special consideration in
the context of the "necessary in a democratic society" requirement for the
purposes of Article 10 para. 2 (art. 10-2) of the Convention.
Firstly, there is the paramount place accorded to the protection of unborn
life in the whole fabric of Irish public policy, as is abundantly manifest from
repeated pronouncements of the highest judicial and other national
authorities.
Secondly, this is in fact a fundamental principle of Irish public policy
which has been enshrined in the constitution itself after being unequivocally
affirmed by the direct will of a strong majority of the people by means of
the eminently democratic process of a comparatively recent national
referendum.
Thirdly, in a matter such as this touching on profound moral values
considered fundamental in the national legal order, the margin of
appreciation left to national authorities (which in this case the judgment
itself describes as wide), though of course not exempt from supervision by
the Strasbourg institutions, assumes a particular significance. As has been
said by the Court on other occasions (a)
"it is not possible to find in the legal and social orders of the
Contracting States a uniform European conception of morals" so that "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" (Müller and Others v. Switzerland
judgment of 24 May 1988, Series A no. 133, p. 22, para. 35; and see also
Handyside v. the United kingdom judgment of 7 December 1976, Series A
no. 24, p. 22, para. 48); and
(b) "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
an 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" (ibid.).
I think this assumes particular importance in the present case in view of
the popular expression in a national referendum. The interference in
question is in fact a corollary of the constitutional protection accorded to
those unable to defend themselves (i.e. the unborn) intended to avoid setting
at nought a constitutional provision considered to be basic in the national
legal order and indeed, as the Government put it, to sustain the logic of that
provision.
Fourthly, there is also a certain proportionality in that the prohibition in
question in no way affects the expression of opinion about the permissibility
of abortion in general and does not extend to measures restricting freedom
28
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGE CREMONA
of movement of pregnant women or subjecting them to unsolicited
examinations. It is true that, within its own limited scope the injunction was
couched in somewhat absolute terms, but what it really sought to do was to
reflect the general legal principle involved and the legal position as then
generally understood.
I am convinced that any inconvenience or possible risk from the
impugned injunction which has been represented as indirectly affecting
women who may wish to seek abortions, or any practical limitation on the
general effectiveness of such injunction cannot, in the context of the case as
a whole, whether by themselves or in conjunction with other arguments,
outweigh the above considerations in the overall assessment.
In conclusion, taking into account all relevant circumstances and in
particular the margin of appreciation enjoyed by national authorities, I
cannot find that the injunction in question was incompatible with Article 10
(art. 10) of the Convention. In my view it satisfied all the requirements of
paragraph 2 (art. 10-2) thereof. There was thus no violation of that
provision.
29
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
1. (a) Despite the Courťs reference (at paragraph 44 of the present
judgment) to paragraph 42 of the Johnston and Others v. Ireland judgment
(which incidentally does not appear to me to be to the point because it
concerns a very different situation), I have my doubts about the status of
"victims" of the applicants Mrs X and Ms Geraghty, who have in no way
claimed that they wished to seek information of the type the disclosure of
which the contested injunction restrained.
By according, in these circumstances, the status of victims to the two
applicants, the Court has, to my mind, adopted too broad an interpretation of
this requirement, which is an essential condition for any individual
application; in so doing it is liable to destroy the distinction between such
applications and applications of the actio popularis type, which are not
permissible under the Convention.
This amounts to affirming that anyone could claim to be the victim of a
violation of the right to receive information once there is a restriction in any
Contracting State on the disclosure of certain information. In my opinion, to
be the victim of an infringement of this right, an applicant must assert, at
least plausibly, that he or she wished to obtain information whose disclosure
had been restrained in breach of the requirements of Article 10 (art. 10).
(b) It is also my view that, for the reasons set out under (a) above, there
has been no interference with the right protected by Article 10 (art. 10) in
respect of these two applicants.
2. I subscribe fully to the opinion of the majority that the interference in
question was "prescribed by law".
3. On the other hand, I cannot follow the majority where it finds a
violation of the Convention in this case on the ground that the interference
in question was not "necessary in a democratic society". I shall try to
explain my position:
(a) The case under review highlights the tension which exists between
two of the conditions provided for in the second paragraphs of Articles 8 to
11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of the Convention, which if
satisfied may render permissible interferences with the rights guaranteed
under those Articles, the conditions in issue here being that of a "legitimate
aim" and that of "necessity in a democratic society".
According to my understanding of the position, the criterion of
"necessity" relates exclusively to the measures which the State adopts in
order to attain the (legitimate) "aim" pursued; it therefore concerns the
appropriateness and proportionality of such measures, but it in no way
empowers the European organs to "weigh up" or to call in question the
30
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
legitimacy of the aim as such, in other words to inquire into whether it is
"necessary" to seek to attain such an aim (see my opinion - in which I
dissented on other grounds - attached to the Dudgeon v. the United
Kingdom judgment of 22 October 1981, Series A no. 45, p. 33).
That is why I cannot accept the definition of the term "necessary" as
"corresponding to a pressing social need", which in fact expresses the
intention of the European Court to assess for itself whether it is "necessary"
for a national legislature or a national court to seek to attain an aim which
the Convention recognises as legitimate. (This definition is, moreover,
wholly inappropriate for the assessment of the "necessity" of a measure
which is designed only to protect the legal position or the interests of an
individual; but that is not the situation here.)
(b) The aim which the Irish courts were pursuing by prohibiting all
"institutionalised" activity for the provision of information concerning the
possibilities of obtaining abortions in the United Kingdom (and the
organisation of trips to and stays in British clinics carrying out abortions,
although this was not in issue in the present application, see paragraph 53; it
was nevertheless, in my view, an inherent aspect of the activities at least of
Dublin Well Woman and - in assessing the legitimacy of the aim pursued
and the necessity of the alleged interference - it cannot be dissociated from
the first aspect, as the contested decision of the Irish courts concerned both
aspects jointly) undoubtedly falls under "the prevention of disorder" and
"the protection of (according to Irish standards) ... morals". I would mention
further "the protection ... of the rights of others" (of the unborn child and
also of his father). Indeed I consider that to reduce the problem of the
"legitimate aim" solely to the protection of morals is to take too narrow a
view of the case (see in this connection the very relevant arguments put
forward by the Irish Government, paragraph 64 et seq. of the present
judgment).
I leave aside the argument concerning "the prevention of crime",
although it would not be correct to affirm that an abortion carried out abroad
is lawful under Irish law (which is what might be understood from the
judgment); it is not prosecuted simply because of the strictly territorial
nature of Irish criminal law, but that does not mean that it can be classified
as "lawful" for the purposes of Irish law.
(c) I shall refrain from expressing an opinion on whether, from the point
of view of legislative policy, the prohibition of and the imposition of
criminal sanctions for abortion in Ireland can still be regarded as reasonable
and desirable, or indeed whether the consequences of such a policy may
even be pernicious.
The choice was made by the legislature, following the 1983 referendum.
The introduction of Article 40.3.3o
of the Constitution, protecting the life of
unborn children and prohibiting abortion, is merely the legislature's
response to the democratically expressed will of the Irish people. I also
31
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
accept that recently a number of derogations from this absolute prohibition
have been allowed. That choice must be respected and is in no way contrary
to the requirements of the Convention, and it is not even necessary in this
connection to have recourse to the notion of the margin of appreciation
which the national legislature enjoys in respect of such measures.
(d) If the Convention recognises as legitimate the aim (or aims) which
the Irish legislation seeks to attain, it is not for the European Court to call in
question that aim simply because it may have different ideas in this regard.
It remains only to examine the "necessity", within the meaning of Article
10 para. 2 (art. 10-2), of the measures adopted by the Irish authorities,
necessity to be assessed as explained under (a).
In my view those measures can be regarded as appropriate and as
consistent with the criterion of proportionality.
There is, however, one more argument which has to be refuted in this
discussion: it has been said that, in view of the fact that the women
interested in having an abortion abroad were free to obtain the information
they required from publications, whose distribution in Ireland was not
prohibited, the ban on information services of the kind offered by the two
applicant associations must inevitably be an ineffective measure, and thus
no longer "necessary".
Nevertheless I consider there to be a considerable difference between
advertisements in the press, whose circulation in a free country it is virtually
impossible to prohibit, and the setting up of specific advice and information
services (together with the organisation of trips to and stays in appropriate
clinics in the United Kingdom which carry out abortions), so that the
contested interference cannot be regarded as ineffective. Indeed it
constitutes an entirely appropriate means - although evidently not 100%
effective - to attain the (legitimate) aim pursued; in any event, without such
a measure there was a risk that the aim in question would not be attained.
In these circumstances I do not see how the "necessity" of the contested
measure can be denied.
4. I agree with the unanimous opinion of the Court that it is not necessary
to consider whether there has been a breach of other provisions of the
Convention.
5. Even if I had accepted the position of the majority of the Court as
regards the substance of the case, I could not agree with the award of any
sum to Dublin Well Woman in respect of pecuniary damage (at the most it
might have been possible to envisage the award of compensation for nonpecuniary
damage, if such a claim had been submitted). If this applicant is
an idealistic, non-profit-making association, as it gave the Court to
understand, it is not entitled to claim compensation for loss of earnings; if,
on the other hand, it also operates as a commercial undertaking - a
32
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
specialised travel agency - the whole case should equally appear to the
majority in a rather different light.
33
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGES PETTITI, RUSSO AND LOPES ROCHA,
APPROVED BY JUDGE BIGI
DISSENTING OPINION OF JUDGES PETTITI, RUSSO AND
LOPES ROCHA, APPROVED BY JUDGE BIGI
(Translation)
We did not vote with the majority of the Court on two points: firstly we
do not accept that the two individual applicants had the status of victims and
we share Judge Matscher's view in this respect; secondly we considered that
the majority had adopted a wrong approach to the issue brought before it,
perhaps because underlying the analysis of the application from the point of
view of Article 10 (art. 10) of the European Convention on Human Rights
was the problem of abortion.
It is our opinion that the effect of the criminal provisions in question
should have been examined as if it were a typical problem of criminal law.
On a general level more account should have been taken of the basis and
object of the Irish legislation on the protection of life.
Let us consider what would be the position if Irelanďs neighbouring
States were to adopt legislation decriminalising drugs, whilst in Ireland
itself they remained prohibited under the criminal law. If associations or
organisations which provided services promoting trips for Irish nationals
abroad and their introduction to the use of drugs in the countries concerned
were prosecuted, the Courťs approach under the Convention would
probably lead to a finding that, in view of the sovereignty of States in the
field of the criminal law and the margin of appreciation, Ireland would not
be infringing Article 10 (art. 10) by prohibiting this type of provision of
service. Similar reasoning should apply to activities of the kind engaged in
by Open Door. In its judgment in the Grogan case (ECR 1992 - see
paragraph 24 of the present judgment), the Court of Justice of the European
Communities classified as the provision of services the medical
interventions in question. The scope of the activities proposed by Open
Door went beyond social welfare or medical advice and served the interests
of agencies and practitioners.
It is worth recalling here the substance of the applicable Irish provisions.
The provision of the Constitution in issue (Article 40.3.3o
) (which was
not in the original text adopted in 1937) was supported by the majority of
the population and adopted in a national referendum in 1983. There was a
substantial majority - 67% of the votes - opposed to abortion.
This new provision concerns solely the protection and preservation of
human life and does not refer to sexual morality, or to public or private
morality. The issues of freedom of expression are dealt with in general
under Article 40.6.1o
(i) of the Constitution.
34
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGES PETTITI, RUSSO AND LOPES ROCHA, APPROVED BY
JUDGE BIGI
The judgments of the Irish courts examined only the question of the
protection of human life as provided for in the Constitution.
The Constitution applies without distinction to all children in their
mother's womb, irrespective of whether they were conceived in or out of
wedlock.
It is not correct to regard the adoption of a position on the question of
abortion as simply an expression of a view on morality and sexuality.
In our opinion the Court has failed to take sufficient account of the
reference to "the rights of others" in Article 10 (art. 10) of the Convention
and of Article 60 (art. 60) in relation to the provisions in the Irish legislation
which afford a broader protection of rights than the Convention.
The Court confines itself to an assessment of the moral issues without
really replying to the reasoning invoked by the Government to explain why
they had to conform to the Constitution.
The injunctions of the Irish courts concerned questions related to the
protection of unborn children, mothers and embryos on Irish territory with a
view to preventing transactions or services which in Ireland were designed
to achieve the contrary by promoting operations abroad, for which
preparations were made in Ireland. In the Governmenťs opinion, these
activities constituted the preparation in Ireland of an abortion carried out
abroad. Under Irish law the constitutional obligation is to protect such life
while the future mother is in Ireland, which in turn necessitates the adoption
of measures that can be implemented on Irish territory; it in no way
concerns sexual morality.
It is well known in Ireland that abortions are possible subject to various
conditions in other countries and the State has not tried to conceal this
information. It is important to remember that in several member States
abortion remains in principle a criminal offence, albeit with numerous
exceptions and derogations. What is at issue for the Irish State is the setting
up in Ireland of links between private clients and clinics carrying out
abortions and the doctors at such clinics in the United Kingdom. These links
are established with the aim of performing an act which is contrary to the
Constitution and to the decisions of the Irish courts which must conform
thereto.
Had it been a question of providing persons consulting the organisations
concerned with advice on important health matters, the Irish medical and
hospital services could have answered the patients' queries and catered for
their needs.
The majority accept that the restriction was "prescribed by law" and that
it pursued the "legitimate aim" of protecting morals, an aspect of which was
the protection in Ireland of the unborn chilďs right to life. They also accept
that the latter protection, recognised under Irish law, is based on moral
values relating to the nature of life which are reflected in the attitude
adopted by the majority of the Irish people.
35
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGES PETTITI, RUSSO AND LOPES ROCHA,
APPROVED BY JUDGE BIGI
It was merely considerations relating to the necessity and the
proportionality of the injunctions concerning the activity of the applicant
agencies which led the majority to conclude that there had been a violation
of Article 10 (art. 10) of the Convention; in other words they reached the
conclusion that the restraints imposed are too broad and disproportionate.
In our view, the restrictions were justified and, in any event, did not
overstep the bounds of what was permissible. It was by any standards a
minimal interference with the right to freedom of expression - concerning
the aspect of that freedom relating to the communication and receipt of
information - aimed at securing the primacy of values such as the right to
life of the unborn child in accordance with the principles of the Irish legal
system, which cannot be criticised on the basis of different principles
applied in other legal systems.
The fact that Ireland cannot effectively prevent the circulation of reviews
or of English telephone directories containing information on clinics in the
United Kingdom, so that anyone can obtain information on abortion clinics
in that country and the possibility of having an abortion in such clinics, can
only, in our view, confirm the necessity of a specific measure such as that
taken by the Irish courts. Such reviews, the directories and the persons
possessing information on abortion clinics in the United Kingdom are
"passive" factors, which require a personal and spontaneous attitude on the
part of the person seeking advice. The activity of agencies which organise
trips and provide special services for their clients, thereby influencing the
decisions of those clients, is something entirely different.
The partial ineffectiveness of a law or a principle of case-law is not a
reason for deciding not to take specific measures designed to prevent the
activities of organisations committed to seeking means of obtaining results
which do not conform to the interests and values of the legal system.
Moreover the fragmentary nature of legislation is well known,
particularly in the field of criminal law, which aims to ensure that values
protected by the law are fully respected.
The fact that the Irish legal system opts not to punish certain criminal
behaviour where it occurs abroad does not mean that such conduct is no
longer unlawful. Such a policy is simply a limit imposed on extra-territorial
jurisdiction because of the difficulties of obtaining the necessary evidence.
In other words, the absence of an objective condition for imposing
sanctions does not affect the unlawful nature of the act carried out outside
the territorial jurisdiction of the criminal law.
Finally, the doctrine of la fraude  la loi (evasion of the law) may be
invoked. This notion provides a legal system with a valid justification for
taking legitimate measures in order to prevent results which are undesirable
according to its fundamental legal standards and principles (the doctrine of
36
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGES PETTITI, RUSSO AND LOPES ROCHA, APPROVED BY
JUDGE BIGI
fraus legis commented on by, among others, Mr Santoro Passarelli in his
general theory of civil law).
It follows that the right of the authorities of a country to adopt
appropriate measures to forestall the perpetration of the act calculated to
evade the law and the effects of that act cannot be contested.
In conclusion, we consider that the decisions of the Irish courts did not
violate Article 10 (art. 10) of the Convention.
37
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
SEPARATE OPINION OF JUDGE DE MEYER
SEPARATE OPINION OF JUDGE DE MEYER
(Translation)
I. The merits
1. The fundamental aim of the injunction in issue was to prohibit the
applicant associations from helping pregnant women within the jurisdiction
of the Irish State to travel outside Ireland to have abortions; the very terms
of the injunction made this clear1
.
The injunction clarified its scope by citing expressly three ways of
providing the prohibited assistance. These were: referring the pregnant
women to a clinic, making travel arrangements for them and informing
them of the identity and location of and the method of communication with
a specified clinic or clinics. Such methods were, however, only examples,
since the prohibition also covered any assistance provided "otherwise".
2. As the Court points out, the applicants would seem to have confined
their complaint to that part of the injunction which concerned the provision
of information2
.
In this respect I take the view, like the majority of my colleagues but on
different grounds, that there has been a violation of the freedom of
expression. I reached this conclusion for the reasons set out in the separate
opinion that I and several other judges submitted in the Observer and
Guardian case with regard to the prior restraints which were in issue in that
case3
.
3. Clearly the present case is not one involving the press like the
Observer and Guardian case. However, the freedom of expression also
exists for those who exercise it otherwise than through the press.
4. It is true, equally, that the applicant associations were restrained from
communicating information only in so far as such information was intended
to help pregnant women obtain abortions outside Ireland, and thus evade the
restrictions resulting from the prohibition and punishment of abortion in
Ireland itself and, in particular, violate the right of unborn children to be
born.
In this context, it is indeed essentially that right which is at stake, much
more so than the protection of morals, and this therefore also raises serious
problems from the point of view of Articles 2, 17 and 60 (art. 2, art. 17, art.
60) of the Convention.
There could thus be very good reasons justifying the adoption of criminal
provisions punishing the communication of information of this type, but I
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.
38
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
SEPARATE OPINION OF JUDGE DE MEYER
do not think that they could warrant a derogation from the, in my view
essential, principle that the imposition of prior restraints on the exercise of
the freedom of expression, even where they take the form of judicial
injunctions, cannot be permitted1
.
5. There was, of course, nothing to preclude the imposition of restrictions
of this nature in respect of the activities by which the applicant associations
helped, otherwise than by the communication of information or ideas,
pregnant women to obtain abortions.
II. Application of article 50 (Art. 50)
As regards the damage which Dublin Well Woman claims to have sustained,
I consider that, in the circumstances of the case and in particular in view of
the fact that the communication of information represented only one of the
aspects of this association's activity, it is not entitled to compensation.
I subscribe to the conclusions set out in the judgment concerning the costs
and expenses.
1
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.
39
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
CONCURRING OPINION OF JUDGE MORENILLA
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
40
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
CONCURRING OPINION OF JUDGE MORENILLA
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 abovementioned
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 40.3.3o
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
41
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
CONCURRING OPINION OF JUDGE MORENILLA
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
Governmenťs 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.
42
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE BAKA
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
43
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE BAKA
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.
44
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGE BLAYNEY
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 40.3.3o
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 40.3.3o
, 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 40.3.3o
.
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 40.3.3o
.
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 40.3.3o
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)
45
OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND JUDGMENT
DISSENTING OPINION OF JUDGE BLAYNEY
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).
46