Providing medical information to the public
II. RELEVANT DOMESTIC LAW AND PRACTICE CONCERNING PROTECTION OF THE UNBORN A. Constitutional protection 28. Article 40.3.3 o 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, ..." 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). 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 [*]. 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 Court ’ s 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 GOVERNMENT ’ S 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 Government ’ s plea as regards the applicant counsellors (Ms Maher and Ms Downes ) conflicted with their concession in the 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 Government ’ s 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). 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 Government ’ s 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: "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). 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 40.3.3 o 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 40.3.3 o 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 Ireland ’ s 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 Court ’ s 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 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. Court ’ s examination of the issue 59. This question must be approached by considering not merely the wording of Article 40.3.3 o 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 40.3.3 o 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 40.3.3 o, 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. 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 Court ’ s 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 Government ’ s argument based on Article 2 (art. 2) of the Convention does not fall to be examined in the present case. On the other 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 Court ’ s 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 40.3.3 o 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 Government ’ s 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 Government ’ s pleading on this point would amount to an abdication of the Court ’ s responsibility under 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 Court ’ s 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 Court ’ s 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. 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. 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 IR£62,172 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. The Government have submitted that it was unclear on what basis or in what manner the sum of IR£62,172 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 IR£25,000 under this head. B. Costs and expenses 1. Open Door 88. Open Door claimed the sum of IR£68,985.75 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 IR£63,302.84 for costs and expenses incurred in the national proceedings. They further claimed IR£21,084.95 and IR£27,116.30 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, IR£16,000 and IR£19,000 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 IR£100,000 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.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found that the restriction imposed on the applicant companies had created a risk to the health of women who did not have the resources or education to seek and use alternative means of obtaining information about abortion. In addition, given that such information was available elsewhere, and that women in Ireland could, in principle, travel to Great Britain to have abortions, the restriction had been largely ineffective.