Open Door and Dublin Well Woman v. Ireland

Information Note on the Court’s case-law No.

October 1992

Open Door and Dublin Well Woman v. Ireland - 14235/88 and 14234/88

Judgment 29.10.1992

Article 10

Article 10-1

Freedom to impart information

Injunction granted by Supreme Court in March 1988 restraining the applicants (counselling agencies) inter alia from providing pregnant women with information concerning abortion facilities abroad: violation

[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]

I.SCOPE OF THE DUBLIN WELL WOMAN CASE

In their pleadings before the Court, Dublin Well Woman and the two counsellors made a complaint under Article 8 which had not been raised before the Commission.  No jurisdiction to entertain what amounts to new and separate complaint.

II.GOVERNMENT'S PRELIMINARY OBJECTIONS

A.Whether the four individual applicants can claim to be "victims" of a violation

1.Ms Maher and Ms Downes were directly affected by injunction.  Government precluded from making submissions as regards preliminary objections which are inconsistent with concession made before Commission.

2.Mrs X and Ms Geraghty, although not pregnant, belong to a class of women of child-bearing age which may be adversely affected by the restrictions imposed by the injunction - can thus claim to be "victims".

B.Six-month rule

Plea not made in Government's memorial to the Court - rejected as being out of time - Rule 48 § 1.

C.Whether applicants had exhausted domestic remedies

Open Door would have had no prospects of success in asserting complaints under Articles 8 and 14 - Open Door and Dublin Well Woman, by introducing evidence concerning the impact of the injunction on women's health, not introducing a fresh complaint - four individual applicants would have had no prospects of success in bringing proceedings before the Irish courts.

Conclusion: pleas dismissed (fifteen votes to eight as regards A.(2), unanimously as regards remainder).

III.ARTICLE 10 OF THE CONVENTION

A.Whether there was an interference with the applicants' rights

Not disputed that injunction interfered with corporate applicants' freedom to impart information - also interference with the right of the applicant counsellors to impart information and the right of Mrs X and Ms Geraghty to receive information in event of pregnancy.

B.Whether the restriction was "prescribed by law"

Having regard to the high threshold of protection of the unborn under Irish law and the manner in which the courts have interpreted their role as guarantors of constitutional rights, the possibility that action might be taken must have been reasonably foreseeable - conclusion reinforced by legal advice actually given to Dublin Well Woman - restriction thus "prescribed by law".

C.Whether the restriction had "legitimate aims"

Restriction did not pursue the prevention of crime since neither provision of information nor obtaining abortion outside jurisdiction involved a criminal offence.  However, protection under Irish law of the right to life of the unborn is based on profound moral values concerning the nature of life - restriction thus pursued aim of protection of morals of which protection in Ireland of right to life of unborn is one aspect - not necessary to decide whether "others" in this provision extends to the "unborn".

D.Whether the restriction was "necessary in a democratic society"

1.Article 2 of the Convention

Court not called on to examine whether right to abortion guaranteed under Convention or whether foetus encompassed by right to life in Article 2.

2.Proportionality

State's discretion in field of morals not unfettered and unreviewable although wide margin of appreciation in this area - but power of appreciation not unlimited.  Measures not automatically justified where right to life of the unborn is at stake - national authorities must act in manner compatible with obligations subject to review by Convention institutions.

Major principles in Court's case-law recalled - freedom of expression also applicable to "information" or "ideas" that offend, shock or disturb - limitations on information concerning activities which are tolerated by the authorities call for careful scrutiny as to conformity with tenets of democratic society.

Court struck by absolute nature of injunction which imposed "perpetual" restraint regardless of age or health or reasons for seeking counselling on termination of pregnancy - on this ground alone restriction appears disproportionate - this assessment confirmed by other factors - thus corporate applicants did not advocate or encourage abortion but confined themselves to explanation of available options - such counselling had been tolerated after Eighth Amendment until the injunction proceedings - not disputed that such information can be obtained from other sources such as magazines and telephone directories or persons with contacts in Great Britain - injunction largely ineffective since it did not prevent large numbers of women from continuing to obtain abortions abroad - available evidence suggests that injunction has created a risk to health of women who are now seeking abortions at later stage of pregnancy and who are not availing themselves of customary medical supervision after abortion - the injunction may also have had more adverse effects on women who were not sufficiently resourceful or who lacked necessary level of education to have access to alternative sources of information.

3.Articles 17 and 60 of the Convention

Government submitted, with reference to Articles 17 and 60, that Article 10 should not be interpreted so as to limit, destroy or derogate from the right to life of the unborn.

Recalled that injunction did not prevent Irish women from having abortions abroad and that information was available from other sources - thus not the interpretation of Article 10 but position in Ireland as regards the implementation of the law that makes possible the continuance of the current level of abortions obtained abroad.

Conclusion: violation (fifteen votes to eight).

IV.ARTICLES 8 AND 14 OF THE CONVENTION

In light of finding of breach of Article 10 not necessary to examine remaining complaints made by Open Door, Dublin Well Woman, Mrs X and Ms Geraghty.

Conclusion: not necessary to examine remaining complaints (unanimously).

V.ARTICLE 50 OF THE CONVENTION

Claim for damage by Dublin Well Woman upheld in part - claim for reimbursement of domestic and Strasbourg costs upheld for Open Door and Dublin Well Woman (in part).

Conclusion: Ireland to pay Dublin Well Woman specified sum in respect of damage (seventeen votes to six) and to Dublin Well Woman and Open Door for costs (unanimously).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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