AS TO THE ADMISSIBILITY OF
Application no. 26499/02
The European Court of Human Rights (Fourth Section), sitting on 6 September 2005 and 27 June 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr J. Hedigan,
Mr M. Pellonpää,
Mr K. Traja,
Mr J. Borrego Borrego,
Mrs L. Mijović, judges,
and, successively, Messrs M. O’Boyle and T. L. Early, Section Registrars,
Having regard to the above application lodged on 11 July 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by The Irish Family Planning Association, The Center for Reproductive Rights, the Pro-Life Campaign and the Society for the Protection of Unborn Children,
Having regard to the parties’ oral submissions at the hearing on 6 September 2005,
Having deliberated, decides as follows:
A. The circumstances of the case
B. Relevant domestic law and practice
1. The legal position prior to the Eighth Amendment of the Constitution
“1 The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
“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 be taken 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 ...”
Section 59 of the 1861 Act 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 ...”
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".
“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)
(c) the sale, importation into the State, manufacture, advertising or display of abortifacients.”
The meaning of section 58 of the 1861 Act was considered in England and Wales in the case of R-v- Bourne  1 KB 687. This case involved a fourteen-year-old girl who had become pregnant as a result of multiple rape. An abortion was carried out by Dr. Bourne, who was then tried under the section. In his ruling, Macnaghten J. accepted that abortion to preserve the life of a pregnant woman was not unlawful and, further, where a doctor was of the opinion that the probable consequence of a pregnancy was to render a woman a mental and physical wreck, he could properly be said to be operating for the purpose of preserving the life of the mother.
The Abortion Act 1967 (as amended) now supercedes the Bourne case in England and Wales. The 1967 Act permits the termination of pregnancy on one or more of the following grounds:
A. the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy was terminated;
B. the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;
C. the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman;
D. the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant woman;
E. there is a substantial risk that if a child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped
or, in emergency, certified by the operating practitioner as immediately necessary
F. to save the life of the pregnant woman; or
G. to prevent grave permanent injury to the physical or mental health of the pregnant woman.
No time-limit attaches to grounds A, B and E, but there is a time-limit of 24 weeks for abortions under grounds C and D.
2. The Eighth Amendment of the Constitution
“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 is a self-executing provision of the Constitution not requiring legislation to give it effect.
3. Relevant case-law thereafter and the Thirteenth and Fourteenth Amendments
The Supreme Court held that, if it were established as a matter of probability, that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful. The Supreme Court accepted the evidence that had been adduced in the High Court that the girl had threatened to commit suicide if compelled to carry her child to full term and deemed this threat of suicide to constitute a real and substantial risk to the life of the mother.
“36. Such a harmonious interpretation of the Constitution carried out in accordance with concepts of prudence, justice and charity, ... leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother’s right to life.
37. I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article [40.3.3] of the Constitution.
Considering that a suicide risk had to be taken into account in reconciling the right to life of the mother and the unborn, the Chief Justice continued:
“44. I am, therefore, satisfied that on the evidence before the learned trial judge, which was in no way contested, and on the findings which he has made, that the defendants have satisfied the test which I have laid down as being appropriate and have established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy.
45. It is for this reason that, in my view, the defendants were entitled to succeed in this appeal, and the orders made in the High Court have been set aside.”
Similar judgments on the substantive issue were delivered by three other judges. McCarthy J noted that “the right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery”. He went on:
141. In my judgment, ... It is not a question of balancing the life of the unborn against the life of the mother; if it were, the life of the unborn would virtually always have to be preserved, since the termination of pregnancy means the death of the unborn; there is no certainty, however high the probability, that the mother will die if there is not a termination of pregnancy. In my view, the true construction of the Amendment, bearing in mind the other provisions of Article 40 and the fundamental rights of the family guaranteed by Article 41, is that, paying due regard to the equal right to life of the mother, when there is a real and substantial risk attached to her survival not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not be practicable to vindicate the right to life of the unborn. It is not a question of a risk of a different order of magnitude; it can never be otherwise than a risk of a different order of magnitude.
142. On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy.”
The first proposal related to what was described as the “substantive” issue of the circumstances in which an abortion would be permissible within the State. The following wording, an addition to Article 40.3.3, was proposed as the Twelfth Amendment of the Constitution but it was rejected (1,079, 297 votes to 572,177):
“It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction”.
The second proposal, an addition to Article 40.3.3, concerned the issue of travelling abroad to obtain an abortion. It was accepted (1,035,308 votes to 624,059) and this Thirteenth Amendment reads as follows:
“This subsection shall not limit freedom to travel between the State and another state”
The third proposal (the Fourteenth Amendment) was also accepted (992,833 votes to 665,106) and it concerns the provision of information and read as follows:
“This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.”
4. The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 (“the 1995 Act”)
“Where a person to whom section 5 applies is requested, by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant, to give information, advice or counselling in relation to her particular circumstances having regard to the fact that it is indicated by her or on her behalf that she is or may be pregnant-
(a) it shall not be lawful for the person or the employer or principal of the person to advocate or promote the termination of pregnancy to the woman or to any person on her behalf,
(b) it shall not be lawful for the person or the employer or principal of the person to give Act information to the woman or to any person on her behalf unless-
(i) the information and the method and manner of its publication are in compliance with subparagraphs (I) and (II) of section 3 (1) (a) and the information is given in a form and manner which do not advocate or promote the termination of pregnancy,
(ii) at the same time, information (other than Act information), counselling and advice are given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances aforesaid, and
(iii) the information, counselling and advice referred to in subparagraph (ii) are truthful and objective, fully inform the woman of all the courses of action that are open to her in relation to her particular circumstances aforesaid and do not advocate or promote, and are not accompanied by any advocacy or promotion of, the termination of pregnancy.”
“(1) It shall not be lawful for a person to whom section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.
(2) Nothing in subsection (1) shall be construed as prohibiting the giving to a woman by a person to whom section 5 applies or the employer or principal of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in the possession of the person or the employer or principal of the person or a copy or copies thereof in written form.”
“The [1995 Act] merely deals with information relating to services lawfully available outside the State for the termination of pregnancies and the persons who provide such services.
The condition subject to which such information may be provided to a woman who indicates or on whose behalf it is indicated that she is or may be pregnant is that the person giving such information is
(i) not permitted to advocate or promote the termination of pregnancy to the woman or any person on her behalf;
(ii) not permitted to give the information unless it is given in a form and manner which do not advocate or promote the termination of pregnancy
and is only permitted to give information relating to services which are lawfully available in the other State and to persons, who in providing them are acting lawfully in that place if
(a) the information and the method and manner of its publication are in compliance with the law of that place, and
(b) the information is truthful and objective and does not advocate or promote, and is not accompanied by any advocacy or promotion of the termination of pregnancy.
At the same time information, counselling and advice must be given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances and such information, counselling and advice must not advocate or promote and must not be accompanied by any advocacy or promotion of, the termination of pregnancy.
Subject to such restrictions, all information relating to services lawfully available outside the State and the persons who provide them is available to her.”
“It was further submitted that in certain circumstances a woman’s life and/or health may be placed at serious risk in the event that a doctor is unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated.
This submission is based on a misinterpretation of the provisions of the [1995 Act] and in particular that of Section 8(1).
This section prohibits a doctor or any person to whom Section 5 of the [1995 Act] relates from making an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.
It does not preclude him, once such appointment is made, from communicating in the normal way with such other doctor with regard to the condition of his patient provided that such communication does not in any way advocate or promote and is not accompanied by any advocacy of the termination of pregnancy.
While a doctor is precluded by the terms of the [1995 Act] from advocating or promoting the termination of pregnancy, he is not in any way precluded from giving full information to a woman with regard to her state of health, the effect of the pregnancy thereon and the consequences to her health and life if the pregnancy continues and leaving to the mother the decision whether in all the circumstances the pregnancy should be terminated. The doctor is not in any way prohibited from giving to his pregnant patient all the information necessary to enable her to make an informed decision provided that he does not advocate or promote the termination of pregnancy.
In addition Section 8(2) does not prohibit or in any way prevent the giving to a woman of any medical, surgical, clinical, social or other like records relating to her.
Having regard to the obligation on [parliament] to respect, and so far as practicable, to defend and vindicate the right to life of the unborn having regard to the equal right to life of the mother, the prohibition against the advocacy or promotion of the termination of pregnancy and the prohibition against any person to whom Section 5 of the Bill applies making an appointment or any other arrangement for and on behalf of a woman with a person who provides services outside the State for the termination of pregnancies does not constitute an unjust attack on the rights of the pregnant woman. These conditions represent a fair and reasonable balancing of the rights involved and consequently Sections 5 and 8 of the Bill are not repugnant to the Constitution on these grounds.”
5. The Constitution Review Group Report 1996
“Although thousands of women go abroad annually for abortions without breach of domestic law, there appears to be strong opposition to any extensive legalisation of abortion in the State. There might be some disposition to concede limited permissibility in extreme cases, such, perhaps, as those of rape, incest or other grave circumstances. On the other hand, particularly difficult problems would be posed for those committed in principle to the preservation of life from its earliest stage.”
6. A & B v. Eastern Health Board, Mary Fahy, C and the Attorney General (notice party)  4 IR 464 (the “C case”).
However, the High Court indicated that it would have granted the relief sought by the parents to annul the District Court order. The Thirteenth Amendment was framed in negative terms so that one could not be prevented from travelling abroad to have an abortion but the amendment was never intended to give a new substantial right to travel abroad to have an abortion. While the High Court had advised the parties to approach the Supreme Court to facilitate an early appeal and while the Supreme Court cleared its schedule to hear any appeal within days, no appeal was lodged.
7. The Interdepartmental Working Group Green Paper on Abortion, September 1999 (“Green Paper on Abortion”)
“The current situation ... is that, constitutionally, termination of pregnancy is not legal in this country unless it meets the conditions laid down by the Supreme Court in the X case; information on abortion services abroad can be provided within the terms of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995; and, in general, women can travel abroad for an abortion.
There are strong bodies of opinion which express dissatisfaction with the current situation, whether in relation to the permissibility of abortion in the State or to the numbers of women travelling abroad for abortion.
Various options have been proposed to resolve what is termed the “substantive issue” of abortion but there is a wide diversity of views on how to proceed. The Taoiseach indicated shortly after the Government took office in 1997 that it was intended to issue a Green Paper on the subject. The implications of the X case were again brought sharply into focus in November 1997 as a result of the C Case, and a Cabinet Committee was established to oversee the drafting of this Green Paper, the preparatory work on which was carried out by an interdepartmental group of officials.
While the issues surrounding abortion are extremely complex, the objective of this Green Paper is to set out the issues, to provide a brief analysis of them and to consider possible options for the resolution of the problem. The Paper does not attempt to address every single issue in relation to abortion, nor to give an exhaustive analysis of each. Every effort has been made to concentrate on the main issues and to discuss them in a clear, concise and objective way.
Submissions were invited from interested members of the public, professional and voluntary organisations and any other parties who wished to contribute. ...”
“4.20 A number of submissions seek that abortion be permissible on grounds of foetal impairment in cases of extreme abnormality or where the condition of the foetus is incompatible with life. Many others, however, express strong opposition to any such provision.
4.21 Many countries permit abortion on grounds of foetal impairment. Foetal impairment is sometimes referred to specifically, for example in England and Wales “where there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. In other countries there is no specific provision in this regard. However, in some of these an abortion may be obtained on the grounds of adverse effect on the mother’s mental health.
4.22 Congenital malformations/anomalies are a major cause of stillbirth, neonatal death and of physical and mental defects and metabolic disorders. Approximately 2% of new-born infants have a major malformation. The incidence may be as high as 5% if malformations detected later in childhood, including abnormalities of the heart, kidneys, lungs and spine, are included. Malformations are also common among spontaneous abortions.
4.23 There are many causes of congenital malformations. Approximately half are due to genetic abnormalities. In about 40% the cause is unknown and the remaining cases are due to chromosomal abnormalities, teratogens (anything capable of disrupting foetal growth and producing malformation) and other factors. Major malformations are structural abnormalities that have serious medical, surgical or cosmetic consequences. Minor anomalies which have no serious consequences however are common and affect approximately 4% of children. Abnormalities may be inherited (a chromosome defect or a gene flaw) or acquired which means that the embryo was initially normal but was damaged during its development by an injurious agent e.g. drugs, infection, irradiation or maternal metabolic disorder.
4.24 Examples of genetic abnormalities include achondroplasia (a condition causing dwarfism and hydrocephalus), cystic fibrosis and haemophilia. Other malformations include neural tube defects. These are among the more common birth defects. In Western Europe the incidence is approximately 5 per 1,000 births. There is a spectrum of neural tube defects ranging from minor defects to anencephaly. In anencephaly the brain fails to develop and the death rate is 100%, with most infants dying during delivery. Chromosomal defects account for a small percentage of abnormalities (approximately 1%). Down’s syndrome is the most common chromosomal abnormality and is responsible for 30% of all cases of severe mental handicap. Its frequency is approximately 1 in every 700 births.
4.25 The identification of pregnancies that are of greater risk is a fundamental concept of antenatal care. This is achieved through a process of history taking, physical examination and screening. The purpose is to detect and treat any condition that puts the mother and baby at risk. Prenatal screening is also used to detect and assess possible congenital malformation. There are a number of prenatal diagnostic tests available. Common indications for prenatal diagnosis are advanced maternal age and a previous child with either Down’s Syndrome or neural tube defect. Amniocentesis is frequently used in the detection of these conditions. Other prenatal diagnostic tests include ultrasound and the use of cellular and biochemical markers to detect potential foetal abnormalities.
4.26 Estimates of the incidence of congenital abnormalities in Europe, which include statistics on induced abortions, suggest that induced abortions as a result of foetal malformations represented 14.8% of all reported congenital abnormalities in 1994. Induced abortions among pre-natally diagnosed cases of malformation were the most frequent in anomalies of the nervous system (anencephaly) and in chromosomal anomalies (Down’s syndrome).
4.27 In 1996 in England and Wales a total of 1,929 abortions were carried out under ground E, i.e. where there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. Of these, 882 were terminated because of congenital malformations, 561 were due to chromosomal abnormalities and 486 were due to other conditions. In total they account for slightly more than 1% of all abortions carried out in England and Wales.
4.28 Terminations where a congenital abnormality is suspected are usually performed before 20 weeks gestation with a number of exceptions (usually 24 weeks). Authorisation of abortions on these grounds is usually given by one, two or a panel of doctors. In Belgium and France after the first trimester two doctors must agree that the foetus is believed to be seriously impaired. In Denmark authorisation is made by a committee comprising a social worker and two doctors. In Finland an abortion on grounds of foetal impairment must be authorised by the State Medical Board. In England and Wales, in common with the other statutory grounds under which abortion is available, the abortion must be certified as justifiable by two registered medical practitioners, while in Spain authorisation involves two specialists of an approved public or private health centre neither of whom is the doctor performing the abortion or under whose direction the abortion is to be performed.”
- an absolute constitutional ban on abortion;
- an amendment of the Constitution so as to restrict the application of the X case;
- the retention of the current position;
- the retention of the constitutional status quo with a legislative restatement of the prohibition of abortion;
- legislation to regulate abortion as defined in the X case;
- a reversion to the pre-1983 position; and
- permitting abortion beyond the grounds specified in the X case.
“7.80 This option would permit abortion where a congenital malformation of the foetus had been diagnosed ante-natally.
7.81 The relevant provisions in other countries do not seem to include detailed specification of the conditions covered by such arrangements. Diagnosis that the foetus is impaired and the question of an abortion are matters between the woman and the medical personnel treating her.
7.82 This option is one of the most complex, were it to be considered. It could be expected that the question would arise as to what types of condition would be covered and how it could be ensured that the provisions would not be open to abuse, particularly if a tightly circumscribed arrangement were considered desirable.
7.83 It would not be practical to include in the Constitution a detailed specification of the types of conditions for which abortion would be permissible. It would be difficult even to do so in legislation, given the very lengthy list of conditions which might be involved. The desired parameters of any provision would also need to be considered, for example, would only conditions incompatible with survival after birth be at issue, or would a category such as "severe handicap" be admitted? The discussion in Chapter 4 has already described the difficulty of neatly defining conditions incompatible with life and has shown that there is a wide spectrum of congenital malformations which cause greatly differing degrees of incapacitation or handicap. While pre-natal testing may indicate the likely presence of a handicapping condition, with many conditions the severity of a child’s handicap is often apparent only after birth or during the child’s developmental period. This could present a difficulty for any arrangement the intention of which was to permit abortion only in circumstances where a severe malformation of the foetus was diagnosed. Indeed, the difficulty of accurately diagnosing abnormalities in utero could result in the abortion of a foetus which was in fact healthy.
7.84 The chances of a child with some of the conditions considered surviving after birth vary according to the condition involved and the circumstances of each individual case. Therefore it would probably not be practical to have a category of “incompatibility with life”, as the period of survival after birth can vary from nil to some hours, several days, weeks or even months. For example, with anencephaly, where the brain fails to develop, most infants die during delivery but some may survive for a matter of hours. With some of the conditions involving chromosomal defects many children die in the early months of life, but some may live for considerably longer, even into adulthood.
7.85 Where gene defects are concerned, the hereditary nature of the conditions involved means that that chance of the condition being inherited by a carrier’s children may be relatively high and there is a body of opinion which considers that termination should be available where pre-natal testing indicates the presence of the condition in the foetus. A contrary view is that abortion should not be permissible, even in such circumstances.
7.86 The issues identified above would require detailed examination if abortion on grounds of foetal impairment were to be considered. While other countries have legislation permitting abortion in these circumstances, it would appear that they specify in general rather than specific terms what types of condition are covered.”
8. The Oireachtas Committee on the Constitution
9. The proposed Twenty-fifth Amendment to the Constitution
10. Public nature of proceedings: relevant case-law and legal provisions
(a) The Irish Constitution
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
(b) The Superior Court Rules
“10. Every pleading shall be delivered between parties, and shall, be marked on the face with the date of the day on which it is delivered, the reference to the record number of the action, the Court (if any) to which the action is assigned, the title of the action and the description of the pleading, and shall be endorsed with the name and the registered place of business of the solicitor delivering the same, or the name and address for service of the party delivering the same if he does not act by a solicitor.
11. Copies of all pleadings shall, within two days after the same shall have been so delivered, be left with and filed by the proper officer of the Central Office, and an entry of each pleading shall, upon the same being filed, be entered in the Cause Book.”
“Every pleading shall be delivered between parties, and shall, in addition to the matters specified in Order 121, rule 4, contain reference to the record number of the action, the Court (if any) to which the action is assigned, the title of the action and the description of the pleading.”
(c) Letter of 17 May 2006 from the Courts Service
“- Officials in the Central Office only make files available for inspection to a party or his solicitor. The person requesting the file is required to sign for it in a book retained in the Office for that purpose.
- Files are available to the solicitors on record for each of the parties.
- Files may only be viewed by the parties upon their producing satisfactory evidence of their identity.
- Persons other than the solicitor on record are only allowed to inspect a file upon production of the written consent of one of the solicitors on record or the party if self-represented.
- Files may be viewed by members of the Law Library (barristers) as a precedent for their work, but no photocopying is permitted.
- No person viewing a file has permission to bring it outside the Central Office other than for official purposes e.g. to another Court office or to a Judge in Court.
- Where the President of the High Court or any Judge of the High Court so directs, certain files are retained by the Central Office Registrar in a safe and are not available for inspection.”
“It is the duty of a barrister:
(a) to comply with the provisions of the Code;
(b) not to engage in conduct (whether in pursuit of his profession or otherwise) which is dishonest or which may bring the barristers’ profession into disrepute or which is prejudicial to the administration of justice;
(c) to observe the ethics and etiquette of his profession; ...”
“It is the essence of a barrister’s function that he should be told by his client things which the client would not tell to others, and that he should be the recipient of other information on a basis of confidence. Confidentiality is therefore a primary and fundamental right and duty of the barrister. The barrister’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. Accordingly subject to the provisions of (d), (e) and (f) herein a barrister is under a duty not to communicate to any third party, information entrusted to him by or on behalf of his client and not to use such information to his client’s detriment or to his own or another client’s advantage. This duty continues at all times after the relation of barrister and client has ceased and after the death of his client and subsists unless he has the consent of his client to make such a communication or it is necessary to make such a communication when answering accusations against him by his client.”
(d) In Re a Ward of Court  2 IR 73
This concerned the “right to die” of persons in a vegetative state. The High Court heard the case in camera and, while the Supreme Court did not, it directed that the parties would not be identified and reserved the right to direct that part of the hearing be held in camera.
(e) Irish Times Limited and Others v. Murphy,  1IR 359
(f) Roe v. the Blood Transfusion Service Board ( 3 IR 67)
(g) Rogers v. the Information Commissioner and Others, 2000 96 MCA
“While not relevant here, I would hold that, as the courts are entitled to regulate the conduct of court business, a practice not having its origin in the Rules of the Superior Courts would likewise amount to a prohibition eg. the practice of confining access to Central Office files to the parties and their representatives.”
(h) In Re Ansbacher (Cayman) Ltd ( 2IR 517),
“... In my view what the judgments of the Supreme Court do establish is that the phrase “as may be prescribed by law” is extended beyond statute law to special and limited cases which may expressly or by inference be prescribed in the constitution itself. ...
The judgments in [another] case would seem to confirm that the Supreme Court judgments in The Irish Times Limited case were intended to be restricted to criminal cases and to exceptions which arose under Article 38 of the Constitution. In particular, it was made quite clear that a desire for confidentiality could not under any circumstances be considered one of the special and limited cases prescribed by law.
... The applicants here claim that they have a constitutional right to privacy as one of the unenumerated personal rights guaranteed by Article 40 and also a right to their good name pursuant to Article 40.3.2. This is undoubtedly so and I think the essential question before me is whether the existence of either of these rights could be said to be a constitutional provision which could be said under any circumstances to be a special and limited case prescribed by law as referred to in Article 34.1.
... Article 40.3 is a guarantee by the State to use its laws to protect the personal rights of citizens. However, what we have in this case is not a conflict between a personal right of the citizen and the law of the State, but a possible conflict between a personal right of the citizen under Article 40.3 and the constitutional provisions under Article 34.1, which latter are not part of the laws enacted by the State, but are part of the law enacted by the people. Furthermore, Article 40.3 only applies “as far as practicable”, and only protects citizens from “unjust attack”. It is not an absolute guarantee of the personal rights of the citizen.
No case has been cited to me in which a right to a good name or a right to privacy can justify anonymity in Court proceedings. A request for such anonymity was expressly refused [in the Roe case]. ...
It has been said in a number of cases that, while there may be a hierarchy of rights under the Constitution, initially the Court should attempt to reach a judgment which harmonises the possible conflicting rights, and it is only if this is not possible that the Court continues and considers the strength or rankings of respective rights. I entirely agree with this approach, and it seems to me that to extend the right to privacy or the right to a good name to anonymity in a Court case could not possibly be said to be a practicable way for the State to defend and vindicate these rights in the light of Article 34.1. As I have said, the personal rights are not absolute, and in considering the extent of such personal rights, one must do so in the light of other constitutional provisions including Article 34.1. The only harmonious construction of the personal rights must be that their exercise does not interfere with other constitutional requirements which are inserted for the public good. Were that not so, it would make nonsense of parts of the Constitution. In one sense it may violate a person’s privacy and a person’s good name to have them charged with a serious offence before the Courts, but it could not possibly be said to be a violation of their constitutional rights if they are named, or that they have a constitutional right to be charged under an assumed name. Similarly, and I think it is analogous to the present case, if a person wishes to seek an injunction to restrain the publication of a libel, such person must make such application in their own name. There are of course cases envisaged by Article 34.1 where parties’ names will not be disclosed, such as the names of defendants in criminal proceedings who are minors, or the names of parties to matrimonial proceedings. These are matters regulated by statute. ...”
“In my view, therefore, there is no possible harmonious construction of the Constitution whereby the applicants’ personal rights could be considered to give rise to any special or limited case prescribed by law as an exception to Article 34.1.
Finally, I would emphasise the views expressed in the passage I have already quoted from the judgment of Denham J. in [De Gortari v. His Honour Judge Peter Smithwick  4 IR 223], at p. 233 where she said that in seeking the exercise of the jurisdiction of the Court the factors put forward by the applicant were related to the French law of procedure and the applicants wished to keep the matter confidential. She commented:-
‘Neither factor meets the requirements of Irish law: Irish Times Limited -v- Ireland. Neither matter is sufficiently weighty when balanced against the constitutional requirement of the administration of justice should be in public to warrant a decision in favour of the applicant.’
... The fact that Article 34.1 requires Courts to administer justice in public by its very nature requires the attendant publicity, including the identification of parties seeking justice. It is a small price to be paid to ensure the integrity and openness of one of the three organs of the State namely the judicial process, in which openness is a vital element. It is often said that justice must not only be done, but must also be seen to be done, and if this involves innocent parties being brought before the Courts in either civil or criminal proceedings, and wrongly accused, that is unfortunate, but is essential for the protection of the entire judicial system. I do not believe I am called upon to consider any hierarchy of rights in the present case, but if I had to do so, I have no hesitation whatever in saying that the right to have justice administered in public far exceeds any right to privacy, confidentiality or a good name.”
She submitted that she was obliged to research abortion options in the United Kingdom and to travel abroad to be treated by unknown medical personnel in an unknown hospital. She did not have the involvement of her treating doctor or even a proper discussion with, or referral from, her specialist (as a result of the 1995 Act). Irish law on abortion contributed to the taboo surrounding the subject: she felt obliged to maintain the secrecy of her termination in Ireland even vis-à-vis a hospital treating her and her family doctor. Certain follow-up matters (formal genetic counselling, autopsies, counselling for bereavement, medical follow-up) are not available in Ireland following an abortion abroad and, with two children in Ireland, she could not remain in the UK for counselling there.
As to Article 8, she argued that there was a disproportionate interference with an intimate and personal aspect of her private and family life and/or a failure to fulfil a positive obligation to protect those Article 8 rights. In these respects, she pointed out that she was the person primarily concerned with the pregnancy; that the State might have had a certain margin of appreciation but not an unfettered discretion in this area; that particularly serious reasons were required to justify an interference with “a most intimate part of an individual’s private life”; that she would have preferred to have had a full and open discussion with her specialist; and that she did all she could to respect the foetus (an induced labour, a coffin and a religious burial in Ireland). The foetus was condemned in any event and, in addition, she had her own physical and mental health together with her existing family responsibilities and interests to consider. By denying the few women in her situation an abortion in Ireland through the overall ban on abortion, the State put an unduly harsh burden on such women: it was arbitrary and draconian, made worse by the information restrictions set down by the 1995 Act. Ireland was, the applicant maintained, in a minority of European countries in these respects.
As to Article 10, she submitted that her right to receive information had been violated in that sections 5 and 8 of the 1995 Act imposed unnecessary restraints on what a doctor could tell her and prohibited that doctor making proper arrangements, or a full referral, for an abortion abroad.
Exhaustion of domestic remedies: Article 35 § 1 of the Convention
1. Submissions of the Government.
This was particularly the case for a common-law constitutional system which had a distinguished record in the protection of human rights. Where there were key factual, legal and interpretative issues, it was vital to submit them to domestic courts and in Ireland via declaratory relief to assert constitutional rights, thereby testing the extent of the protection and allowing the domestic courts to develop such protection by interpretation. In such cases, the Court should be slow to proceed on the assumption that it would be futile to ventilate questions such as the appropriate interpretation of a constitutional provision on abortion and of the 1995 Act. The X case demonstrated the fundamental and exclusive role of the domestic courts in interpreting the Constitution: the issue of abortion in Ireland involved a delicate mingling of social attitudes, values and legal provisions and the decisions of the Supreme Court in that respect demonstrated both the difficulty of the issues and the care with which the Irish courts have considered them.
More centrally, it was an open question as to whether Article 40.3.3 could have allowed a lawful abortion in Ireland in the applicant’s circumstances. The X case demonstrated the potential for judicial development in this area and, further, the X case did not exclude possible evolution in cases such as the applicant’s: the foetus was viable in the X case whereas in the present case there might be an issue as to the extent to which the State was required to guarantee the right to life of a foetus which suffered from a lethal genetic abnormality. The meaning of “unborn” in Article 40.3.3 had attracted some public and academic comment (notably, the Green Paper on Abortion at paragraphs 35-38 above and a leading textbook on Irish constitutional law “The Irish Constitution”, Kelly, at § 7.3.28). However, there had been little judicial examination of the meaning of “unborn” and certainly no case comparable to the present. Accordingly, although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant’s situation in Ireland.
The Government also maintained that the applicant’s interpretation of the 1995 Act was erroneous and would have benefited from examination in domestic declaratory proceedings. The 1995 Act only prohibited a doctor doing two things: (a) giving “act information” in a manner which advocated or promoted abortion; and (b) making the initial appointment or having a formal arrangement with an abortion provider. In short, the 1995 Act allowed non-directive advice, assistance and counselling by doctors. In any event, she stated that she had already made up her own mind before she spoke to the doctors so the non-directive limitation in the 1995 Act was irrelevant. The Act did not preclude communication between Irish and UK doctors or interrupt the continuity of care as she alleged: Article 8(2) of the 1995 Act specifically envisaged the giving to a woman of her medical notes and, importantly the Supreme Court found that it did not prohibit referral information and referral communication in the normal way between Irish and UK practitioners; and the Act did not therefore prevent a formal referral from an Irish Consultant to another hospital, provided the Irish doctor did not make the actual appointment. Any inability to be reimbursed for treatment abroad resulted from her insurance policy and not from the 1995 Act: the Supreme Court found that there was no ground for suggesting that section 7 would create problems for women with medical insurance with regard to medical fees concerning abortion. Nothing in the Act prevented her from discussing with a doctor the necessary post-abortion medical follow-up (indeed this was recommended by the Primary Care Guidelines 2004 and by the guidelines published by the Irish College of General Practitioners in 1995): it was the applicant who chose not to consult on her return. There had been no prosecutions to date under the 1995 Act.
They argued that the “prescribed by law” exceptions to the publicity rule in Article 34(1) meant a restriction imposed by legislation (and they argued that section 45 of the Courts Supplemental Provisions Act 1961 concerning minors had some application to the present case) as well as under the courts’ inherent jurisdiction to make an exception to the publicity rule when necessary to vindicate constitutional rights, such as, those of the accused in criminal cases (the above cited Irish Times Ltd and Ansbacher cases). Beyond this, there remained the power exercised by Irish Courts to request that parties should not be identified, and so far those requests had been honoured. The Courts always treated sensitive cases with care: see the above-cited X and C cases together with Re a Ward of Court. Even if (since the above-cited Roe case) proceedings could not have been commenced under a pseudonym, the change to the Superior Court Rules in 1986 meant that pleadings (apart from the initiating summons) did not have to be filed in the plenary proceedings the Government proposed. Relying on the letter from the Courts Service in Ireland (paragraphs 49-50 above) and the above-cited case of Rogers v. Information Commissioner and Others), the Government maintained that pleadings were available to third parties only with the consent of the relevant party. A plenary summons would therefore be served on the other party and filed in the Central Office, the name of the litigant and case number would be on that document and published, but otherwise the subject matter and any other detail about the case would not be known. While it was “most likely” that the applicant’s case would have been heard in open court, “in all likelihood” neither the full name or identity of the applicant would have been disclosed: “in practice” the courts did “not insist” on the reading out of the personal details of litigants save to the extent necessary for the case; it was “not uncommon” for the courts to “request” journalists not to reveal the identity of the litigant, although the courts would make it clear that they had no power to impose such a restriction; and, consistently, a judgment of the court “would frequently” only use initials and not disclose either the identity or address of the applicant or other parties.
2. The applicant’s submissions
She reiterated that her profound distress was exacerbated by the draconian regime in Ireland requiring her to travel abroad and to leave behind the comfort of the familiar, by the associated lack of information or support and by the lack of post-abortion services and facilities. She maintained that the legal position contributed to the stigma attaching to abortion in Ireland and, consequently, added to the already heavy psychological weight of an abortion. She considered that she had given sufficient substantiation of her submission that she was distressed and depressed, which situation was augmented by the regulation of abortion in Ireland.
As to the 1995 Act, she essentially argued that the Act’s restrictions were so broadly drafted and its sanctions of such severity that Irish doctors were intimidated, guarded and cautious and were put off communicating with their patients about abortion in a free and frank manner. It was unlawful for her doctors to “make an appointment” for her or to make “any other arrangement” with a foreign abortion service provider including, she argued, making a referral. She was unable to obtain a referral and Hospital B advised that it could not provide her medical notes. In any event, the therapeutic relationship is such that the doctor should be allowed to take the lead in making appointments and arrangements with other health professionals. It was no answer for the Government to seek to shift the responsibility for the harm, inflicted by the underlying legislative and constitutional limitations, to her efforts to alleviate its impact. There may have been no criminal prosecutions under the 1995 Act as yet, but that was simply because doctors erred on the side of caution.
Moreover, the Irish courts would not examine an issue that it considered moot and such an action was likely to be so classified given her advancing pregnancy. She cited a number of cases concerning women who wished to have home births and alleged that the State purposefully delayed those cases until after the birth when the issue became, and was found to be, moot (including, Nevin Maguire v. South Eastern Health Board  3 IR 26 and subsequently in at least five other home birth cases). Indeed the courts had even refused to continue with a case where it was foreseen that the issue would become moot by the time it was finally heard. In Julie Walsh v. Mid Western Health Board case (unreported, JR 250/2003) the plaintiff was planning a home birth for late June 2003 and instituted proceedings on 7 April 2003 to secure a home birth service. On 28 April 2003 the High Court held that, notwithstanding that she had an arguable case for her action to be heard, it would not be permitted to proceed because the date of birth was too close. Similarly, any proceedings launched or continued after an abortion in UK would even more surely have fallen at the same “moot” hurdle.
None of the statutory exceptions to the publicity rule in Article 34(1) was relevant to her case: it was simply untenable to suggest that section 45 of the 1961 Act had any application. While preliminary applications for an in camera hearing protected the identity of the relevant persons (the above-cited Roe and Ansbacher cases), she considered it unlikely that the courts would have accepted that she had a constitutional right to privacy which was superior to the publicity rule, given the findings in, especially, the above-cited Ansbacher case. In any event, to issue proceedings she would have had to disclose her identity on the Court pleadings as she could not use a pseudonym.
The question of access to the court files in the Central Office had not been “conclusively resolved”. If Order 19 of the Superior Court Rules as amended in 1986 omitted the requirement to file pleadings, Orders 5, 12, 36 and 39 of the Superior Court Rules continued to require the filing of summonses, appearances, books of pleadings to set a case down for trial, evidence presented in open court, affidavits, judgments and transcripts. Any documents relied upon in open court, as a matter of principle also entered the public domain. Although the applicant referred in her oral submissions to the Court to a direction by the President of the High Court of 1986, she did not provide any further detail, noting simply that Order 126, Rule 5 provided that “any file or record may be kept in such form as may be approved from time to time by the President of the High Court”. The courts and not the Courts Service controlled the court records (section 65 of the Courts Officers Act 1926 and section 46 of the Freedom of Information Act 1997) and the matters referred to in the letter of the Courts Service (paragraphs 49-50 above) were simply practices, never challenged in proceedings. It was difficult to see, despite the reference in the above-cited Rogers case, how this practice was consistent with the publicity requirement of Article 34(1). The Ansbacher line of authority was not considered in the Rogers case. The applicant was not persuaded that the Irish Bar’s Code of Conduct was a sufficient guarantee of the confidentiality of pleadings inspected by barristers. She pointed out that, when a hearing began, the parties’ names and addresses were read out: a request to avoid that could be made but it was “by no means clear” that a judge would agree and, even if the judge did, it would not be binding so that any accidental revelation of the name during the hearing could be lawfully reported upon.
3. The Court’s assessment
(a) General principles
“74. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions ... . Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity - that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ... . Thus the complaint intended to be made subsequently to the Court must first have been made - at least in substance - to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law ... .
75. However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied ... . In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal ... .
76. Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement ... . One such reason may be constituted by the national authorities’ remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what they have done in response to the scale and seriousness of the matters complained of (ibid.).
77. The Court would emphasise that the application of this rule must make due allowance for the [Convention] context. Accordingly, it has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism ... . It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case ... . This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants ... .”
(b) Application to the present case
The recognition in the X case, of an exception to the protection of the unborn when the mother’s life was at risk from self harm, was not a judicial interpretation of Article 40.3.3 which had been foreseeable with any certainty. Indeed, as argued by the Government, the X case illustrated the potential of the constitutional courts to develop the protection of individual rights by way of interpretation and the consequent importance of providing those courts with the opportunity to do so: this is particularly the case when the central issue is a novel one, requiring a complex and sensitive balancing of equal rights to life and demanding a delicate analysis of country-specific values and morals. Moreover, it is precisely the interplay between the equal right to life of the mother and the “unborn”, so central to Article 40.3.3, that renders it arguable that the X case does not exclude a further exception to the prohibition of abortion in Ireland. The presumption in the X case was that the foetus had a normal life expectancy and there is, in the Court’s view, a feasible argument to be made that the constitutionally enshrined balance between the right to life of the mother and of the foetus could have shifted in favour of the mother when the “unborn” suffered from a abnormality incompatible with life. The Court also notes the subsequent rejection (in 1992 and 2002) of the proposed amendments to the Constitution to restrict the effect of the judgment in the X case.
The general rule is that proceedings must take place in public (Article 34(1) of the Constitution). The Court finds unpersuasive the Government’s suggestion that section 45 of the Courts Supplemental Provisions Act 1961 (a statutory exception to the publicity rule as regards minors) had any application to the applicant’s surviving foetus. More pertinent to the present case is the courts’ inherent power to recognise that a competing constitutional right of a particular person may be sufficiently strong as to override the constitutional publicity rule: non-statutory exceptions to the publicity rule have therefore been recognised to ensure a fair criminal trial (the above-cited cases of The Irish Times Limited and Others v. Ireland and Ansbacher). The Court notes the above-cited comments of Mr Justice McCracken in the Ansbacher case in refusing to make an exception in favour of the right to privacy of two applicants who were to be named in a report of inspectors appointed under the Companies Act 1990. However, it does not appear that that judgment excluded, as a matter of principle, such an exception from the publicity rule since Mr Justice McCracken went on to assess the particular position of those applicants before refusing them the in camera order they had requested. The present applicant had, in the Court’s view, a stronger case for an exception, given the intimate and personal nature of the subject matter of the proceedings and since the attention from the media and other quarters would have been exceptionally intrusive. In addition, as in the Ansbacher and Roe cases, the applicant could have requested that any preliminary application for such an exception to the publicity rule did not itself disclose her identity.
If an in camera hearing was eventually refused, it is true that there remained certain practices which the applicant could have requested should be adopted to keep her identity secret. However, the Government could not be more definite than indicating that “in practice” the courts would “not insist” on reading out the names of the parties to the action and accepted that a request by a judge to those in attendance not to publish identities did not amount to a legal obligation of discretion. Using her initials in judgments would not have assisted the applicant if the prior proceedings had not kept her identity confidential.
The Court is of the view that, having regard to the potential and importance of the constitutional remedy in a common law system especially as regards the matter at issue (detailed at paragraph 90 above), the applicant could reasonably have been expected (see paragraphs 84 and 93 above) to have taken certain preliminary steps towards resolving the above-noted
uncertainties. In the Court’s view, she should have obtained legal advice on those substantive and procedural uncertainties and issued a Plenary Summons allowing her to apply for an urgent, preliminary and in camera hearing to obtain the High Court’s response to her timing and publicity concerns. It is true that it is assumed by the above that the applicant would continue during those steps an already advanced pregnancy. However, the Court is satisfied on the evidence that such preliminary steps could have been completed without disclosing the applicant’s identity and in a matter of days and, further, that the evolution of those initial steps would have elucidated some of the uncertainties and allowed her to assess the effectiveness of the remedy in her situation as the days went by.
In her oral submissions, the applicant alluded to the fact that she had “sought advice, informally, from a friend who was a lawyer” who had “told her that if she wrote to the authorities to protest, the State might try and prevent her travelling abroad for a termination” and that she was “not prepared to take this risk”. The Court does not consider that informally consulting a friend amounts to instructing a solicitor or barrister and obtaining a formal opinion. In any event, and as made clear in the C case, the purpose of the Thirteenth Amendment was to ensure that a person could not be prevented from travelling abroad for an abortion (paragraph 23 above).
Accordingly, in the absence of those preliminary steps, the Court is unable to dismiss as ineffective the constitutional remedy available in principle to the applicant.
For these reasons, the Court by a majority
Declares the application inadmissible.
T.L. Early Nicolas Bratza