AS TO THE ADMISSIBILITY OF
Application No. 28177/95
by Dublin Well Woman Centre Limited
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mr. M.P. PELLONPÄÄ, Acting President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 June 1995 by
Dublin Well Woman Centre Limited against Ireland and registered on
8 August 1995 under file No. 28177/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant company is a non-profit-making organisation. It was
established in 1977 and offers a wide range of services relating to
counselling and marriage, family planning, procreation and health
matters. The services offered by the applicant company relate to every
aspect of women's health ranging from smear tests to breast
examinations, infertility, artificial insemination and pregnancy
counselling.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
On 29 October 1992, the European Court of Human Rights delivered
its judgment in a case which had been introduced by, inter alia, the
present applicant company (Eur. Court HR, Open Door and Dublin Well
Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A).
In this judgment the Court found a violation of Article 10 of the
Convention as regards the injunction granted against the applicant,
prohibiting it from assisting pregnant women within the jurisdiction
of Ireland to travel abroad to obtain abortions by referral to a
clinic, to make travel arrangements for such women or to inform them
of the identity and location of and the method of communication with
a specified clinic or clinics or otherwise.
The Court further decided that Ireland should pay the applicant
company an amount of IR£ 25,000 for pecuniary damage in respect of loss
of income due to the discontinuance of its pregnancy counselling
service following the issuance of the injunction at issue and an amount
of IR£ 100,000 less FRF 52,577 for legal costs incurred by the
applicant company.
On 29 January 1993, the compensation awarded by the Court was
paid by the Irish Government to the applicant company.
Following the Court's judgment of 29 October 1992, an amendment
of Article 40.3.3 of the Irish Constitution, pursuant to which the
injunction against the applicant company had been granted, was adopted
through the Fourteenth Amendment of the Constitution Act 1992.
It entered into force on 23 December 1992.
By letter of 22 January 1993, the applicant company informed the
Attorney General that it was anxious to resume its non-directive
pregnancy counselling activities, but that it could not do so until
such time as the legal prohibitions imposed on the applicant company
had been fully and properly removed. It requested the Attorney General
to ensure that the injunction was removed. It further informed the
Attorney General that in the absence of any steps in this direction,
it would apply to the High Court to lift the injunction at issue.
On 29 January 1993 the Attorney General informed the applicant
company that he would not oppose an application to lift the injunction.
On 11 March 1993 the applicant company filed a motion with the
Supreme Court seeking an order lifting the injunction. Following a
hearing held on 29 March 1993, the Supreme Court rejected the motion
on 20 July 1993, finding it lacked the competence to hear it.
On 22 September 1993 the applicant company started proceedings
before the High Court against Ireland and the Attorney General in order
to obtain a declaratory judgment that it was lawful to provide the
services prohibited by the injunction previously issued. The High Court
fixed the hearing in these proceedings for 22 July 1994.
On 18 July 1994 the Society for the Protection of the Rights of
the Unborn Child (hereinafter referred to as "SPUC") requested to join
the proceedings as a co-defendant. The High Court granted the request
and adjourned the hearing to 12 October 1994.
On 12 October 1994 SPUC requested the High Court judge,
Ms. Justice M.C., to disqualify herself on the grounds that her
activities as Chairwoman for the Commission on the Status of Women
constituted a basis for a reasonable fear of bias. Having sought the
views of the other parties in the proceedings at issue (namely the
Attorney General who had confirmed the State's intention to abide by
the High Court's decision on the issue and the applicant company who
had opposed it and insisted on a continuation of the hearing of the
case), Ms. Justice M.C. rejected SPUC's request, stating that she would
hear the case with an open mind and that she knew she was not biased
in the matter.
SPUC filed an appeal against the decision of Ms M.C. with the
Supreme Court. On 21 December 1994, the Supreme Court allowed the
appeal and found that Ms. Justice M.C. should have disqualified herself
as there could be said to have been reasonable apprehension of bias in
the circumstances. Disregarding the objections raised by the applicant
company to the effect, inter alia, that it had had no say in the
composition of the High Court, the Supreme Court awarded the costs
incurred by SPUC in the Supreme Court appeal against the applicant
company.
These costs were determined at IR£ 19,398.02, being the same
amount the applicant company had to pay for its own legal
representation.
On 12 May 1995, the Regulation of Information (Services Outside
the State for the Termination of Pregnancies) Act 1995 entered into
force.
On 23 June 1995, the High Court issued an order which, insofar
as relevant, reads:
"A declaration that the (applicant company), their agents or
servants may make available within the State, information which
is likely to be required by a female person for the purposes of
availing herself of services provided outside the State for the
termination of pregnancies and relates to such services and the
persons who provide them, subject to the conditions provided for
in the Regulation of Information (Services Outside the State for
the Termination of Pregnancies) Act 1995."
On 25 June 1996, the Committee of Ministers of the Council of
Europe, in the exercise of its functions under Article 54 of the
Convention, adopted its Resolution DH(96) 368 in which it accepted the
measures taken by the Government of Ireland in consequence of the
European Court's judgment of 29 October 1993.
In reaching this finding the Committee of Ministers examined the
Fourteenth Amendment to the Irish Constitution and the Regulation of
Information (Services Outside the State for Termination of
Pregnancies). It had further regard to the fact that, by judgment of
23 June 1995, the High Court had lifted the injunction against the
applicant company.
COMPLAINTS
1. The applicant company complains under Article 6 para. 1 of the
Convention that it did not have a fair hearing because, as a result of
the failure by the Irish authorities to lift, by the latters' own
initiative, the injunction against it following the European Court's
judgment, it was obliged to take proceedings itself in the course of
which proceedings an order to pay the costs of a defendant in relation
to a point for which it bore no responsibility was made against it.
According to the applicant, these costs could have been avoided had the
Irish authorities taken the necessary steps immediately. The applicant
company submits that it was thus forced to bear the unfair financial
burden of expensive litigation in order to vindicate its rights which
the European Court had in fact found to have been violated by the
State.
2. The applicant company complains under Article 10 of the
Convention that the failure of the State to take steps to lift the
injunction after the delivery of the European Court's judgment in its
case constituted a continued violation of its rights under this
provision.
3. The applicant company complains under Article 14 in conjunction
with Article 10 of the Convention that, as from 23 December 1992, it
was the only legal person in Ireland prohibited from imparting the
information referred to in the relevant injunction.
4. The applicant company complains under Article 53 of the
Convention that, in the proceedings at issue, the Attorney General had
failed to bring to the attention of the courts that the pertinent
proceedings concerned the implementation of a judgment of the European
Court.
THE LAW
The applicant company refers to the judgment given by the
European Court of Human Right in its case and complains that Ireland
has violated its obligations under this judgment by continuing to deny
the applicant company the full exercise of its rights under Article 10
(Art. 10) of the Convention by not having discharged the injunction
granted against the applicant company and leaving this initiative to
the applicant company. It invokes Article 6 para. 1 (Art. 6-1), Article
10 (Art. 10), Article 14 (Art. 14) and Article 53 (Art. 53) of the
Convention.
The Commission recalls that it has no competence to examine
whether the High Contracting Party has complied with its obligation
under a judgment given by the European Court of Human Rights.
The Commission cannot assume any function in relation to the
supervision of the Court's judgment, this supervision being entrusted
under Article 54 to the Committee of Ministers (cf. Nos. 19255/92 &
21655/93, Dec. 16.05.95, D.R. 81, p. 5).
The Commission notes that the Committee of Ministers has
discharged its supervisory functions in relation to the judgment of the
European Court of Human Rights in the case of the applicant company by
the adoption of its Resolution DH(96) 368 of 25 June 1996.
The Commission must, therefore, limit its examination in the
present case to the question as to whether, after the judgment in the
applicant company's case, there has been a new violation of Article 10
(Art. 10) of the Convention both in itself and in conjunction with
Article 14 (Art. 10+14) of the Convention.
Article 10 (Art. 10) of the Convention provides as follows:
"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. This Article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema enterprises.
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."
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission finds that the applicant company complains in
substance of the fact that the Irish Government, after the judgment of
the European Court in its case, failed to take any measures aimed at
lifting the injunction against the applicant company.
The Commission notes that, when the applicant company itself
instituted proceedings to discharge the injunction on 11 March 1993,
the Fourteenth Amendment to the Irish Constitution had already entered
into force. However, the applicant company considered it could not, in
respect of the complaint it had brought before the Strasbourg organs,
benefit from this Amendment as the injunction at issue had been granted
before the entry into force of the Fourteenth Amendment.
The Commission finds that, insofar as the applicant company
complained in its previous case of a violation of Article 10 (Art. 10)
of the Convention, the European Court has finally dealt with the issue
and also considered the question of just satisfaction to the applicant
company under Article 50 (Art. 50) of the Convention. In these
circumstances, it cannot be seen as a new violation of the Convention
if, after the Court's judgment, the injunction remained in force in the
applicant's case. A State, which adapts its laws to comply with the
case-law of the European Court cannot in general be required to make
the new rules retroactively applicable to cases already finally decided
in the past (cf. No. 19438/92, Dec. 29.3.93, D.R. 74, p. 220 and No.
22651/93, Dec. 18.10.95, D.R. 83, p. 14).
The Commission considers that, unlike the case of Vermeire
(Eur. Court HR, Vermeire v. Belgium judgment of 29 November 1991,
Series A no. 214-C), the respondent Government has acted with due
diligence as regards the law reforms required.
It is true that, notwithstanding the Amendment to the
Constitution, the injunction granted against the applicant remained
formally in force. However, in the light of the terms of the Amendment,
the Commission finds that the injunction could not in practice have
been invoked to restrain them from supplying information as to the
availability of pregnancy termination services outside Ireland. While
the desire of the applicant company to discharge the injunction or to
obtain the declaratory relief which was eventually granted is
understandable, the Commission cannot find that the injunction in
practice operated as a continuing interference with the applicant
company's Convention rights. In this respect, the case differs from the
case of Olsson (Eur. Court HR, Olsson v. Sweden (No. 2) judgment of
27 November 1992, Series A no. 250).
Insofar as the applicant company relies on Article 14 (Art. 14)
of the Convention, the Commission considers that, in the light of its
findings above, the alleged difference in treatment lacks foundation.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention that it did not have a fair hearing in the
proceedings it had instituted in order to have the injunction lifted
in that certain procedural costs were awarded against it.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law..."
The Commission notes that the proceedings instituted by the
applicant company were aimed at the discharge of the injunction
previously granted against the applicant company, which prohibited it
from exercising certain activities.
The Commission recalls that the European Court, in its judgment
of 29 October 1992, considered under Article 50 (Art. 50) of the
Convention that the discontinuance of the applicant company's
counselling service must have resulted in a loss of income (Eur. Court
HR, Open Door and Dublin Well Woman v. Ireland, loc. cit., p. 33, para.
87). It follows that the proceedings at issue can be considered as
determining the applicant company's civil rights and obligations within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No.
10364/83, Dec. 7.10.87, D.R. 53, p. 28).
The Commission notes that the applicant company does not, as
such, complain that the proceedings were unfair, but merely that the
decision by the Supreme Court to award the costs incurred by SPUC in
the proceedings before the Supreme Court against it was unfair in the
sense of it being unjust that the applicant company had to bear
considerable costs which could have been avoided had the domestic
courts examined the argument that the proceedings were in fact only
proforma as the underlying merits had already been determined by the
European Court of Human Rights.
The notion of a fair trial within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention concerns mainly procedural
aspects, as well as the right of access to a court and the right to
equality of arms. It does not include any guarantees as to the
assessment by domestic courts of arguments advanced by parties or the
outcome of proceedings, including decisions on the award of costs.
The Commission recalls that it is not an unreasonable requirement
of civil litigation that the unsuccessful party pay the adversary's
legal costs (cf. No. 15007/89, Dec. 1.10.90, unpublished).
The Commission further recalls that costs were awarded against the
applicant company because it had unsuccessfully resisted the appeal of
SPUC against the decision of Ms. Justice M.C. not to discharge herself.
The Commission cannot find, in these circumstances, that the
decision to award the costs of the Supreme Court appeal against the
applicant company, as such, deprived it of a fair hearing within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy