CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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