The Gazette 1992

GAZETTE

DECEMBER 1992

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P r o c e e d i ngs h ad been b r o u g ht against the a p p l i c a nt c omp a n i es in Ireland by the A t t o r n ey Ge n e r al at the request of the Society for the P r o t e c t i on of U n b o r n Ch i l d r e n. T h e S u p r eme Co u rt on Ma r ch 16, 1988 f o u n d t h at non-directive counselling assisted in the d e s t r u c t i on of the life of the u n b o r n, c o n t r a ry to the c o n s t i t u t i o n al right to life of the u n b o r n expressly g u a r a n t e ed by article 40.3.3 of Bu n r e a c ht na hE i r e a nn (the Co n s t i t u t i on of Ireland). T h e c o u r ts in Ireland h a d restrained the a p p l i c a nt c omp a n i es a n d their servants or agents f r om assisting p r e g n a nt women within the jurisdiction to travel a b r o ad to o b t a in a b o r t i o ns by referral to a clinic, by the ma k i ng for t h em of travel a r r a n g eme n t s, or by i n f o r m i ng t h em of the identity, a n d location of a n d the m e t h od of c ommu n i c a t i on with, a specified clinic or clinics, or otherwise. T h e C o u rt of H u m a n Rights n o t ed t h at the Irish Go v e r nme nt accepted t h at the i n j u n c t i on interfered with the f r e e d om of the c o r p o r a te a p p l i c a n ts to i mp a rt i n f o r ma t i o n. It also f o u nd t h at there was an interference with the rights of the a p p l i c a nt counsellors to i mp a rt i n f o r ma t i on a nd the rights of Mr s. X a n d Ms. Ge r a g h ty to receive i n f o r ma t i on in the event of being p r e g n a n t. To d e t e rmi ne wh e t h er such an interference entailed a violation of Article 10 of the Co n v e n t i o n, the C o u r t h ad to examine wh e t h er or not it was j u s t i f i ed u n d er Article 10, p a r a g r a ph 2, by reason of being a restriction prescribed by law which was necessary in a d emo c r a t ic society on o ne or o t h er of the g r o u n ds therein specified.

discretion in the field of protection of mo r a ls was n ot un f e t t e r ed a n d unreviewable (see mu t a t is mu t a n d i s, Norris -v- Ireland (1988) Series A, No. 142, p. 20 p a r a g r a ph 45). T he Co u rt h a d to d e t e rm i ne wh e t h er there existed a pressing social need for the me a s u r es in question a n d, in particular, wh e t h er the restriction c omp l a i n ed of was p r o p o r t i o n a te to the legitimate a im p u r s u e d. In t h at context, the C o u rt recalled that f r e e d om of expression was also applicable to i n f o r ma t i on or ideas that o f f e n d, shock or d i s t u rb the State or any section of the p o p u l a t i o n. T h e Co u rt of H u m a n Rights was first struck by the a b s o l u te n a t u re of the S u p r eme C o u rt order which i mp o s ed a p e r p e t u al restraint o n the provision of i n f o r ma t i on to p r e gn a nt women c o n c e r n i ng a b o r t i on facilities a b r o ad regardless of age or state of health or their reasons for seeking counselling o n the t e rm i n a t i on of pregnancy. On t h at g r o u nd a l o ne the restriction a p p e a r ed over-broad a nd d i s p r o p o r t i o n a t e. p r e g n a nt women in the course of which counsellors neither a d v o c a t ed n or e n c o u r a g ed a b o r t i o n, b ut c o n f i n ed themselves to an e x p l a n a t i on of the available o p t i o n s. T h e decision as to wh e t h er or not to act o n the i n f o r ma t i on so provided was t h at of the w om an c o n c e r n e d. In the second place, i n f o r ma t i on c o n c e r n i ng a b o r t i on facilities a b r o ad could be o b t a i n ed f r om o t h er sources in Ireland such as ma g a z i ne a n d t e l e p h o ne directories or by p e r s ons with c o n t a c ts in Gr e at Britain. T h e i n f o r ma t i on t h at the orders of the Irish c o u r ts sought to restrict was therefore already O t h er factors i n f l u e n c ed the Co u rt of H u m a n Rights. In the first place, the c o r p o r a te a p p l i c a n ts were engaged in the counselling of

by Eamonn G. Hall

Freedom to Receive and Impart Information Violated by Ireland T h e Eu r o p e an Co u rt of H u m a n Rights in Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd. -v- Ireland, ( j u d gme nt delivered on October 29, 1992), held that an injunction granted by the Irish Su p r eme Co u rt restraining counselling services f r om, inter alia, providing pregnant women with i n f o rma t i on concerning a b o r t i on facilities a b r o ad violated the applicants' right to receive a nd imp a rt i n f o rma t i on as guaranteed by article 10 of the Eu r o p e an Convention on H u m a n Rights. T he decision was by a majority, 15 votes to 8. Article 10 of the Co n v e n t i on provides, inter alia, t h at the right to f r e e d om of expression includes f r e e d om to hold o p i n i o ns a nd to receive a nd i mp a rt i n f o r ma t i on a n d ideas w i t h o ut interference by public authority. T\vo a p p l i c a t i o ns were lodged with the E u r o p e an C omm i s s i on of H u m a n Rights in August a nd September, 1988: the first by Op en D o o r Co un s e l l i ng Ltd, a c omp a ny which was e n g a g e d, inter alia, in non-directive counselling of p r e g n a nt women in Ireland c o n c e r n i n g, if requested, the possibility of o b t a i n i ng a b o r t i o ns in Gr e at Britain. T h e second was b r o u g ht by Du b l in Well Wom an Ce n t re Ltd, a c omp a ny involved in similar activities, Ms. Bonnie Maher, a citizen of the USA w h o wo r k ed as a trained counsellor for the Well Wo m an Centre, Ms. Ann Downes, an Irish citizen, w h o also worked as a counsellor there, Mr s. X a n d Ms. Maeve Geraghty, b o t h Irish citizens of child-bearing age.

T h e C o u rt recalled t h at the State's

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