Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . The applicant was represented by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON GPE , former Representative of GPE at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant , a former military officer , lives in a municipal flat . In DATE he asked the NORP housing maintenance authority to transfer to him the title to that flat . His request was rejected because PERSON was a “ restricted military settlement ” and NORP law prohibited the transfer of title to housing LOC in such settlements .

In DATE the applicant unsuccessfully repeated his request .

On DATE the applicant challenged before ORG of ORG decree no . CARDINAL-p by which the town of Monino was included in the list of “ restricted military settlements ” . He claimed that the decree infringed his right to receive title to the flat .

On DATE ORG dismissed the claim , holding , in so far as relevant , as follows :

“ By virtue of section CARDINAL of the Federal Law “ On ORG ” particular status is given to restricted military settlements in order to assign housing premises to military authorities for subsequent distribution of housing premises among military servicemen and other persons connected to the military service ...

The applicant 's arguments that the disputed regulation contradicts LAW and CARDINAL and LAW of LAW [ and ] violates his right to acquire title to the flat where he lives are ill - founded because the contested Government 's regulation sets out the list of restricted military settlements which have housing LOC . The prohibition on transferring the title to housing LOC in restricted military settlements was established by section CARDINAL of the RSFSR Law no . CARDINAL - CARDINAL of CARDINAL DATE “ On ORG in the GPE ” ... , other legal acts of GPE and the constituencies of GPE , and not by the contested regulation . ”

The applicant appealed against that judgment . He also sought leave to appear before the appeal court .

On DATE ORG notified the applicant that the appeal hearing was scheduled for TIME on DATE .

On DATE , at TIME , the applicant , accompanied by CARDINAL witnesses , arrived at the courthouse . According to the witnesses ' statements , presented to the ORG by the applicant , a clerk told them that they were third in the queue and instructed them to wait by courtroom no . CARDINAL . They had been waiting for TIME when judges leaving the courtroom for lunch told them that the applicant 's case had already been examined .

ORG upheld the judgment of CARDINAL DATE . It noted that the town of GPE had been included in the list of restricted military settlements in DATE . By regulation no . CARDINAL of DATE the ORG merely confirmed that the town of Monino was a restricted military settlement which included housing LOC . On DATE the Law “ On ORG in the GPE ” ( “ LAW ” ) was adopted . It granted individuals the right to acquire title to ORG and municipal - owned flats of which they had taken possession on the basis of a social tenancy agreement . At the same time , section CARDINAL of that law prohibited the transfer of title to ORG and municipal owned flats to individuals in restricted military settlements . ORG stressed that the applicant should have challenged that legal provision in LAW and not the ORG 's regulation .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;No violation of Art. 8;Violation of Art. 8;Non-pecuniary damage - award

Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Giovanni Bonello;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Luis López Guerra;Mary Finlay Geoghegan;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen

The applicants reside in GPE and are women over DATE .

The facts , as submitted by the applicants , are summarised immediately below . The ORG ’s position was that these factual submissions were general , unsubstantiated and untested either by a domestic court , or through any other form of interaction with ORG , and they made further factual submissions as regards each applicant ( summarised at paragraphs CARDINAL and CARDINAL below ) .

On DATE the first applicant travelled to GPE for an abortion as she believed that she was not entitled to an abortion in GPE . She was DATE pregnant .

She had become pregnant unintentionally , believing her partner to be infertile . At the time she was unmarried , unemployed and living in poverty . She had CARDINAL young children . The youngest was disabled and all CARDINAL children were in foster care as a result of problems she had experienced as an alcoholic . She had a history of depression during her first CARDINAL pregnancies , and was battling depression at the time of her fifth pregnancy . During DATE her fifth pregnancy , she had remained sober and had been in constant contact with social workers with a view to regaining custody of her children . She considered that a further child at that moment of her life ( with its attendant risk of post - natal depression and to her sobriety ) would jeopardise her health and the successful reunification of her family . She decided to travel to GPE to have an abortion .

Delaying the abortion for DATE , the first applicant borrowed the minimum amount of money for treatment in a private clinic and travel from a money - lender ( MONEY ( ORG ) ) at a high interest rate . She felt she had to travel to GPE alone and in secrecy , without alerting the social workers and without missing a contact visit with her children .

She travelled back to GPE by plane DATE after the abortion for her contact visit with her youngest child . While she had initially submitted that she was afraid to seek medical advice on her return to GPE , she subsequently clarified that on the train returning from GPE she began to bleed profusely and an ambulance met the train . At a nearby hospital she underwent a dilation and curettage . She claims she experienced pain , nausea and bleeding for DATE thereafter but did not seek further medical advice .

Following the introduction of the present application , the first applicant became pregnant again and gave birth to her fifth child . She is struggling with depression and has custody of CARDINAL of her children whilst CARDINAL ( including the disabled child ) remain in care . She maintained that an abortion was the correct decision for her in DATE .

On DATE the second applicant travelled to GPE for an abortion believing that she was not entitled to an abortion in GPE . She was DATE pregnant .

The second applicant became pregnant unintentionally . She had taken TIME - after pill ” and was advised by CARDINAL different doctors that there was a substantial risk of an ectopic pregnancy ( a condition which can not be diagnosed until DATE of pregnancy ) . She was certain of her decision to travel to GPE for an abortion since she could not care for a child on her own at that time of her life . She waited DATE until the counselling centre in GPE opened after DATE . She had difficulty meeting the costs of the travel and , not having a credit card , used a friend ’s credit card to book the flights . She accepted that , by the time she travelled to GPE , it had been confirmed that the pregnancy was not ectopic .

Once in GPE she did not list anyone as her next of kin or give an NORP address so as to be sure her family would not learn of the abortion . She travelled alone and stayed in GPE TIME the procedure to avoid missing her appointment as well as TIME of the procedure , as she would have arrived back in GPE too late for public transport and the medication rendered her unfit to drive home from GPE airport . The clinic advised her to inform NORP doctors that she had had a miscarriage .

On her return to GPE she started passing blood clots and DATE , being unsure of the legality of having travelled for an abortion , sought follow - up care in a clinic in GPE affiliated to the LANGUAGE clinic .

On DATE the third applicant had an abortion in GPE believing that she could not establish her right to an abortion in GPE . She was in her first trimester of pregnancy at the time .

Prior to that , she had DATE of chemotherapy for a rare form of cancer . She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that , if she did become pregnant , it would be dangerous for the foetus if she were to have chemotherapy during the first trimester .

The cancer went into remission and the applicant unintentionally became pregnant . She was unaware of this fact when she underwent a series of tests for cancer , contraindicated during pregnancy . When she discovered she was pregnant , the applicant consulted her General Practitioner ( ORG ) as well as several medical consultants . She alleged that , as a result of the chilling effect of the NORP legal framework , she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus .

She therefore researched the risks on the Internet . Given the uncertainty about the risks involved , the third applicant travelled to GPE for an abortion . She maintained that she wanted a medical abortion ( drug - induced miscarriage ) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non - resident and because of the need for follow - up . She therefore alleged she had to wait a further DATE until a surgical abortion was possible .

On returning to GPE after the abortion , the third applicant suffered complications as a result of an incomplete abortion , including prolonged bleeding and infection . She alleges that doctors provided inadequate medical care . She consulted her own GPE DATE after the abortion and her ORG made no reference to the fact that she was visibly no longer pregnant .

The courts are the custodians of the rights set out in the LAW and their powers are as ample as the defence of LAW requires ( The State ( Quinn ) v. PERSON [ DATE ] IR CARDINAL ) . In his judgment in ORG ( [ DATE ] FAC ) , Mr Justice PERSON observed :

“ The obligation to implement [ the guarantee of Article CARDINAL ] is imposed not on the ORG [ ORG ] only , but on each branch of the ORG which exercises the powers of legislating , executing and giving judgment on those laws : DATE . The word ‘ laws’ in Article [ CARDINAL.CARDINAL ] is not confined to laws which have been enacted by the ORG , but comprehends the laws made by judges and by ministers of ORG when they make statutory instruments or regulations . ”

Prior to the adoption of LAW in DATE , Article CARDINAL of the LAW read as follows :

“ CARDINAL . The ORG guarantees in its laws to respect and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .

NORP 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 . ”

Certain judgments relied upon Article CARDINAL and other ORG of the LAW to recognise the right to life of the unborn and to suggest that the LAW implicitly prohibited abortion ( PERSON v. the Attorney General [ DATE ] ORG ; G v. An ORG [ DATE ] ORG CARDINAL ; and PERSON v. the Attorney General [ DATE ] IR CARDINAL ) .

Abortion is also prohibited under the criminal law by LAW ( as amended ) of the Offences Against the Person Act CARDINAL ( “ the LAW ” ) :

“ 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 be not 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 , and being convicted thereof shall be liable to be kept in penal servitude for life ... ”

Section CARDINAL of the CARDINAL Act states as follows :

“ 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 CARDINAL of LAW DATE ( “ the DATE Act ” ) 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 ” .

Section CARDINAL of the Health ( Family Planning ) Act DATE re - affirms the statutory prohibition of abortion and states as follows :

“ 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 LAW or CARDINAL of the Offences Against the Person Act , DATE ( which sections prohibit the administering of drugs or the use of any instruments to procure abortion or the supplying of drugs or instruments to procure abortion ) , or

( c ) the sale , importation into the ORG , manufacture , advertising or display of abortifacients . ”

Article CARDINAL of LAW makes provision for the continuation of laws , such as LAW , which were in force on the adoption of the LAW in DATE as follows :

“ Subject to this LAW and to the extent to which they are not inconsistent therewith , the laws in force in [ GPE ] immediately prior to the date of the coming into operation of this LAW shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of [ ORG ] . ”

The meaning of section CARDINAL of LAW was considered in GPE and GPE in NORP v. PERSON ( [ DATE ] CARDINAL PERSON CARDINAL ) , where the defendant had carried out an abortion on a minor , pregnant as a result of multiple rape . PERSON 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 woman ’s physical or mental health would be seriously harmed by continuing with the pregnancy , he could properly be said to be operating for the purpose of preserving the life of the mother . This principle was not , however , applied by the NORP courts . In the case of ORG v. PERSON and Others ( [ DATE ] IR CARDINAL ) , PERSON maintained that “ the preponderance of judicial opinion in this country would suggest that the PERSON approach could not have been adopted ... consistently with LAW prior to the LAW ” .

In DATE there was some concern about the adequacy of existing provisions concerning abortion and the possibility of abortion being deemed lawful by judicial interpretation . There was some debate as to whether ORG would follow the course adopted in GPE and GPE in GPE ( cited above ) or in GPE in LAW ( MONEY ( DATE ) ) .

A referendum was held in DATE , resulting in the adoption of a provision which became LAW , LAW ( PERCENT of the electorate voted with CARDINAL votes in favour and CARDINAL against ) . Article CARDINAL reads as follows :

“ The ORG 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 ... ”

A number of cases then came before the courts concerning the interpretation of LAW and the provision of information on or referral to abortion services available in other countries .

In DATE the Society for the Protection of Unborn Children ( ORG ) obtained an injunction restraining CARDINAL organisations ( Open Door Counselling and the GPE Well FAC ) from furnishing women with information which encouraged or facilitated an abortion . ORG held ( see The Attorney General ( ORG ) v. Open ORG [ DATE ] ORG CARDINAL ] ) that it was unlawful to disseminate information , including contact information , about foreign abortion services , which had the effect of facilitating the commission of an abortion ( see also FAC ( GPE ) v. PERSON and Others , cited above ) . These CARDINAL organisations then complained about restraints on their freedom to impart and receive information and a violation of LAW was established by ORG ( see Open Door and GPE Well Woman v. GPE , CARDINAL DATE , Series A no . CARDINAL-A ( “ the Open Door case ” ) ) .

The interpretation of LAW was considered in the seminal judgment in the X case . X was DATE when she became pregnant as a result of rape . Her parents arranged for her to have an abortion in GPE and asked the NORP police whether it would be possible to have scientific tests carried out on retrieved foetal tissue with a view to determining the identity of the rapist . ORG was consulted who , in turn , informed the Attorney General . On DATE an interim injunction was granted ex parte on the application of the Attorney General restraining X from leaving the jurisdiction or from arranging or carrying out a termination of the pregnancy . X and her parents returned from GPE to contest the injunction .

NORP On DATE , on appeal , a majority ( PERSON , PERSON J. , PERSON O’Flaherty J. , with PERSON ) of ORG discharged the injunction .

The Chief Justice noted that no interpretation of the LAW was intended to be final for all time ( citing the domestic case of PERSON , see paragraph CARDINAL above ) , which statement was “ peculiarly appropriate and illuminating in the interpretation of [ LAW ] which deals with the intimate human problem of the right of the unborn to life and its relationship to the right of the mother of an unborn child to her life ” . He went on :

“ CARDINAL . Such a harmonious interpretation of the LAW 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 ORG 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 .

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 [ CARDINAL.CARDINAL.CARDINAL ] of the LAW . ”

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 :

“ DATE . 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 . ”

Similar judgments on the substantive issue were delivered by CARDINAL other judges . PERSON 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 :

“ CARDINAL . ... In my view , the true construction of the [ Eighth ] Amendment ... 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 .

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 . ”

PERSON in some detail on the lack of legislation implementing LAW . He noted in the above - cited PERSON case , that he had already pointed out that no relevant legislation had been enacted since the Eighth Amendment came into force , the direct criminal - law ban on abortion still deriving from LAW . He also noted that the Chief Justice had pointed out in the above - cited Open Door case that it was “ unfortunate that the [ ORG ] has not enacted any legislation at all in respect of this constitutionally guaranteed right ” .

Having noted that LAW envisaged a lawful abortion in the ORG and thereby qualified section CARDINAL of LAW ( which had made abortion for any purpose unlawful ) , he continued :

“ ... I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn . I think it reasonable , however , to hold that the People when enacting LAW were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled .

NORP In the context of DATE that have passed since LAW was adopted and DATE since PERSON ’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate ; it is inexcusable . What are pregnant women to do ? What are the parents of a pregnant girl under age to do ? What are the medical profession to do ? They have no guidelines save what may be gleaned from the judgments in this case . What additional considerations are there ? Is the victim of rape , statutory or otherwise , or the victim of incest , finding herself pregnant , to be assessed in a manner different from others ? The LAW , born of public disquiet , historically divisive of our people , guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn , remains bare of legislative direction ...

... The ORG may fulfil its role by providing necessary agencies to help , to counsel , to encourage , to comfort , to plan for the pregnant woman , the pregnant girl or her family . It is not for the courts to programme society ; that is partly , at least , the role of the legislature . The courts are not equipped to regulate these procedures . ”

The judgment of ORG gave rise to a number of questions . Certain obiter dicta of the majority in ORG implied that the constitutional right to travel could be limited so as to prevent an abortion taking place where there was no threat to the life of the mother .

A further referendum , in which CARDINAL separate proposals were put forward , was held in DATE . A total of PERCENT of the electorate voted .

The first was a proposal to amend the LAW to provide for lawful abortion where there would otherwise be a real and substantial risk to the mother ’s life , except a risk of suicide . Its acceptance would therefore have limited the impact of the X case : it was rejected ( PERCENT ) .

The second proposal was accepted and became LAW to the LAW ( added to LAW . It was designed to ensure that a woman could not be prevented from leaving the jurisdiction for an abortion abroad and it reads as follows :

“ This subsection shall not limit freedom to travel between the ORG and another ORG . ”

The third proposal was also accepted and became LAW ( also added to LAW . It allows for the provision in GPE of information on abortion services abroad and provides as follows :

“ This subsection shall not limit freedom to obtain or make available , in the ORG , subject to such conditions as may be laid down by law , information relating to services lawfully available in another ORG . ”

Further to certain public reflection processes ( see paragraphs CARDINAL below ) , a third referendum on abortion was held in DATE to resolve the legal uncertainty that had existed since the X case by putting draft legislation ( ORG , DATE ) to the electorate . The intention was CARDINAL .

The referendum was designed to ensure that the draft CARDINAL Act , once adopted by referendum , could only be changed by another referendum .

The proposed DATE Act defined the crime of abortion ( to replace sections DATE and CARDINAL of LAW and to reduce the maximum penalty ) . It also removed the threat of suicide as a ground for a lawful abortion and thereby restricted the grounds recognised in the X case . The definition of abortion excluded “ the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is , in the reasonable opinion of the practitioner , necessary to prevent a real and substantial risk of loss of the woman ’s life other than by self - destruction ” .

The proposed DATE Act also provided safeguards to medical procedures to protect the life of the mother by setting out the conditions which such procedures were to meet in order to be lawful : the procedures had , inter alia , to be carried out by a medical practitioner at an approved place ; the practitioner had to form a reasonable opinion that the procedure was necessary to save the life of the mother ; the practitioner had also to make and sign a written record of the basis for the opinion ; and there would be no obligation on anyone to carry out or assist in carrying out a procedure .

The referendum resulted in the lowest turnout in all CARDINAL abortion referenda ( PERCENT of the electorate ) and the proposal was defeated ( PERCENT against and PERCENT in favour ) . ORG had earlier explained that a negative vote would mean that LAW would remain in place as it was . Any legislation introduced thereafter would have to accord with the present interpretation of the LAW which would mean a threat of suicide would continue to be a ground for a legal abortion .

Following the above - described amendments , Article CARDINAL of the LAW reads as follows :

“ CARDINAL . The ORG guarantees in its laws to respect , and , as far as practicable , by its laws to defend and vindicate the personal rights of the citizen .

NORP 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 .

The ORG 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 subsection shall not limit freedom to travel between the ORG and another ORG .

This subsection shall not limit freedom to obtain or make available , in the ORG , subject to such conditions as may be laid down by law , information relating to services lawfully available in another ORG . ”

The CARDINAL Act was the legislation envisaged by LAW and constituted a response to the above - cited judgment of ORG in the Open Door case . That Act defines the conditions under which information relating to abortion services lawfully available in another ORG might be made available in GPE .

Section CARDINAL defines “ Act information ” as information that ( a ) is likely to be required by a woman for the purpose of availing herself of services provided outside the ORG for the termination of pregnancies ; and ( b ) relates to such services or to persons who provide them .

Section CARDINAL confirms that a “ person to whom section CARDINAL applies ” means a person who engages in , or holds himself , herself or itself out as engaging in , the activity of giving information , advice or counselling to individual members of the public in relation to pregnancy . LAW provides as follows :

“ Where a person to whom section CARDINAL 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 LAW 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 sub - paragraphs ( I ) and ( II ) of section CARDINAL(CARDINAL)(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 LAW 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 sub - paragraph ( 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 . ”

Section CARDINAL of the DATE LAW as follows :

“ ( CARDINAL ) It shall not be lawful for a person to whom section CARDINAL 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 ORG for the termination of pregnancies .

( CARDINAL ) Nothing in subsection ( CARDINAL ) shall be construed as prohibiting the giving to a woman by a person to whom LAW applies ... of any medical , surgical , clinical , social or other like records or notes relating to the woman ... ”

NORP Before its enactment , LAW was referred by the President to ORG for a review of its constitutionality . ORG found it to be constitutional so that the DATE Act thereby became immune from future constitutional challenge ( LAW ) . In so concluding , ORG examined , inter alia , whether the provisions of Articles CARDINAL and CARDINAL were repugnant to the LAW namely , whether , from an objective point of view , those provisions represented “ a fair and reasonable balancing by [ ORG ] of the various conflicting rights and was not so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn or on the constitutional rights of the mother or any other person or persons ” . In this respect , ORG noted :

“ The [ CARDINAL Act ] merely deals with information relating to services lawfully available outside the ORG 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 ORG 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 ORG and the persons who provide them is available to her . ”

ORG considered that the submission , namely that a woman ’s life and/or health might be placed at serious risk in the event that a doctor was unable to send a letter referring her to another doctor for the purposes of having her pregnancy terminated , was based on a misinterpretation of the provisions of section CARDINAL of the DATE Act :

“ This section prohibits a doctor or any person to whom section CARDINAL of the [ CARDINAL 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 ORG 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 [ CARDINAL 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 CARDINAL(CARDINAL ) 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 [ ORG ] 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 LAW applies making an appointment or any other arrangement for and on behalf of a woman with a person who provides services outside the ORG 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 CARDINAL and CARDINAL of the PERSON are not repugnant to LAW on these grounds . ”

Established in DATE , ORG terms of reference were to review the LAW and to establish those areas where constitutional change might be necessary with a view to assisting the governmental committees in their constitutional review work .

In its DATE Report , ORG considered the substantive law on abortion in GPE following the X case and the rejection of LAW to be unclear ( for example , the definition of the unborn , the scope of the admissibility of the suicidal disposition as a ground for abortion and the absence of any statutory time - limit on lawful abortion following the X case criteria ) . ORG considered the option of amending LAW to legalise abortion in constitutionally defined circumstances :

“ Although CARDINAL of women go abroad DATE for abortions without breach of domestic law , there appears to be strong opposition to any extensive legalisation of abortion in the ORG . 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 . ”

ORG concluded that , while in principle the major issues should ideally be tackled by constitutional amendment , there was no consensus as to what that amendment should be and no certainty of success for any referendum proposal for substantive constitutional change in relation to LAW . ORG therefore considered that the only practical possibility at that time was the introduction of legislation to regulate the application of LAW . Such legislation could , inter alia , include definitions ( for example of the “ unborn ” ) ; afford express protection for appropriate medical intervention necessary to protect the life of the mother ; require written certification by appropriate medical specialists of “ real and substantial risk to the life of the mother ” and impose a time - limit on lawful abortion namely , in circumstances permitted by the PERSON case .

A cabinet committee was established to supervise the drafting of a Green Paper on abortion and the preparatory work was carried out by an ORG of officials . In drawing up the ORG , submissions were invited from the public , from professional and voluntary organisations and any other parties who wished to contribute . CARDINAL such submissions were received , as well as petitions containing CARDINAL signatures . The introduction to the Green Paper CARDINAL noted the following :

“ The current situation ... is that , constitutionally , termination of pregnancy is not legal in this country unless it meets the conditions laid down by ORG in the NORP case ; information on abortion services abroad can be provided within the terms of the [ CARDINAL Act ] ; 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 ORG 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 DATE that it was intended to issue a ORG on the subject . The implications of the X case were again brought sharply into focus in DATE 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 . [ for a description of the C case , see paragraphs CARDINAL below ]

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 ... ”

Paragraph CARDINAL.CARDINAL noted that there was no medical evidence to suggest that doctors in GPE did not treat women with cancer or other illnesses on the grounds that the treatment would damage the unborn .

Chapter CARDINAL of the Paper comprised a discussion of CARDINAL possible constitutional and legislative solutions :

– an absolute constitutional ban on abortion ;

– an amendment of the LAW so as to restrict the application of the X case ;

– the retention of the status quo ;

– the retention of the constitutional status quo with a legislative restatement of the prohibition of abortion ;

– legislation to regulate abortion as defined in the NORP case ;

– a reversion to the DATE position ; and

– permitting abortion beyond the grounds specified in the NORP case .

DATE . As to the fifth option ( legislation to regulate abortion as defined in the NORP case ) , the Green Paper CARDINAL noted as follows :

“ CARDINAL.CARDINAL NORP The objective of this approach would be to implement the X case decision by means of legislation ... This approach assumes that there would be no change in the existing wording of LAW .

CARDINAL.CARDINAL In formulating such legislation a possible approach may be not to restate the prohibition on abortion , which is already contained in section CARDINAL of the Offences Against LAW , DATE , but instead to provide that a termination carried out in accordance with the legislation would not be an offence .

CARDINAL The detail of such legislation would require careful consideration but it could be along the lines of that discussed under the previous option ( retention of the constitutional status quo with legislative restatement of the prohibition on abortion ) .

Discussion

CARDINAL NORP Since this option does not provide for a regime more liberal than the X case formulation , no constitutional amendment would be required . This option would , however , provide for abortion in defined circumstances and as such , would be certain to encounter criticism from those who are opposed to abortion on any grounds and who disagreed with the decision in the X case . Central to the criticism would be the inclusion of the threat of suicide as a ground and the difficulties inherent in assessing same .

CARDINAL NORP The main advantage of this approach is that it would provide a framework within which the need for an abortion could be assessed , rather than resolving the question on a case - by - case basis before the courts , with all the attendant publicity and debate . It would allow pregnant women who establish that there is a real and substantial risk to the their life to have an abortion in GPE rather than travelling out of the jurisdiction and would provide legal protection for medical and other personnel , such as nurses , involved in the procedure to terminate the pregnancy . The current medical ethical guidelines would not be consistent with such legislation .

CARDINAL It must be pointed out however that the problems of definition in the text of Article CARDINAL.CARDINAL.CARDINAL would remain . A decision would be necessary on whether the proposed legislation would provide the definitions necessary to remove the current ambiguity surrounding the text of that Article . There is however a limit to what legislation can achieve by way of definitions as ultimately the interpretation of Article CARDINAL is a matter for the ORG . ”

As to the Seventh option ( permitting abortion beyond the grounds specified in the NORP case ) , the Green Paper CARDINAL noted as follows :

“ QUANTITY In DATE , other possible grounds for abortion are examined and set where possible in an international context . As indicated earlier , a number of submissions also sought the introduction of abortion on some or all of these grounds . Each of the possible types of provision identified has been considered separately . This does not rule out consideration of a combination of some or all of these options if this approach were to be pursued . Were this to be done , some of the difficulties identified when options are considered separately might not arise .

CARDINAL NORP In all of the cases discussed in this section , abortion would be permissible only if LAW were amended . Sections MONEY and CARDINAL of the Offences Against LAW , DATE may also need to be reviewed and new legislation to regulate any new arrangement would be necessary . The type of legislative model referred to in the discussion on the option of retention of the constitutional status quo with legislative restatement of the prohibition on abortion ( see paragraphs CARDINAL - CARDINAL.CARDINAL ) might , with appropriate adaptations , serve as a basis for regulation in other circumstances also . Issues such as criteria under which an abortion would be permissible , gestational limits , certification and counselling requirements , and possibly a waiting period after counselling , would be among the matters which legislation might address . The provisions in force in some other countries are also discussed in LAW .

Discussion

( a ) Risk to physical / mental health of mother

CARDINAL NORP This option would provide for abortion on grounds of risk to a woman ’s physical and/or mental health .

CARDINAL NORP In DATE the proposed LAW to the LAW was the subject of some criticism on the grounds that it specifically excluded risk to health as grounds for termination of a pregnancy . The LANGUAGE PERSON case of DATE involved interpretation of the Offences Against the Person Act , DATE to permit termination of a pregnancy where a doctor thought that the probable consequence of continuing a pregnancy would be to make the woman a physical or mental wreck .

CARDINAL NORP As stated earlier , this case has not been specifically followed in any decision of the NORP courts . LAW would rule out an interpretation of the Offences Against the Person Act , DATE in the manner of the PERSON judgement . Therefore any proposal to permit abortion on the grounds of danger to a woman ’s health would require amendment of this LAW and possibly a review of the sections CARDINAL and CARDINAL of the Offences Against LAW , DATE . A legislative framework to regulate the operation of such arrangements would also be required .

CARDINAL NORP As discussed in LAW , ‘ Other FAC for Abortion , set in an ORG Context’ , the concept of physical health used in other countries for the purposes of abortion law tends not to be very specific . If it were intended to permit abortion on grounds of risk to a woman ’s health , but to confine the operation of such a provision to cases where there was a grave risk of serious and permanent damage , it would be necessary to circumscribe the provisions in an appropriate manner . The usual practice in other countries is for the issue to be treated as a medical matter . It could be anticipated that it might be difficult to arrive at provisions which would allow clinical independence and at the same time be guaranteed to operate in a very strict manner so as not to permit abortion other than on a very limited basis . ”

The Green Paper CARDINAL was then referred to this ORG . The ORG consulted widely , initially seeking submissions on the options discussed in the Green Paper CARDINAL . CARDINAL submissions were received from individuals and organisations . PERCENT of these communications took the form of signatures to petitions ( CARDINAL signatures were contained in CARDINAL petition alone ) . The vast majority of communications were in favour of the first option in the Green Paper CARDINAL ( an absolute constitutional ban on abortion ) .

Since very few medical organisations had made submissions during the preparation of the Green Paper CARDINAL , ORG was concerned to establish authoritatively the current medical practice in NORP hospitals as regards medical intervention during pregnancies . The ORG therefore heard the views and opinions of experts in the fields of obstetrics , gynaecology and psychiatry through public ( and recorded ) hearings .

The Chairman of ORG , which represents PERCENT of the obstetricians and gynaecologists in GPE , gave written evidence , inter alia :

“ In current obstetrical practice rare complications can arise where therapeutic intervention is required at a stage in pregnancy when there will be little or no prospect for the survival of the baby , due to extreme immaturity . In these exceptional situations failure to intervene may result in the death of both the mother and baby . We consider that there is a fundamental difference between abortion carried out with the intention of taking the life of the baby , for example for social reasons , and the unavoidable death of the baby resulting from essential treatment to protect the life of the mother .

We recognise our responsibility to provide aftercare for women who decide to leave the ORG for a termination of pregnancy . We recommend that full support and follow - up services be made available for all women whose pregnancies have been terminated , whatever the circumstances . ”

In oral evidence , the Chairman also noted the following :

“ We have never regarded these interventions as abortion . It would never cross an obstetrician ’s mind that intervening in a case of pre - eclampsia , cancer of the cervix or ectopic pregnancy is abortion . They are not abortion as far as the professional is concerned , these are medical treatments that are essential to protect the life of the mother . So when we interfere in the best interests of protecting a mother , and not allowing her to succumb , and we are faced with a foetus that dies , we do n’t regard that as something that we have , as it were , achieved by an abortion . Abortion in the professional view to my mind is something entirely different . It is actually intervening , usually in a normal pregnancy , to get rid of the pregnancy , to get rid of the foetus . That is what we would consider the direct procurement of an abortion . In other words , it ’s an unwanted baby and , therefore , you intervene to end its life . That has never been a part of the practice of NORP obstetrics and I hope it never will be .

In dealing with complex rare situations , where there is a direct physical threat to the life of the pregnant mother , we will intervene always . ”

In DATE the ORG issued its ORG . The ORG explained that this was not a comprehensive analysis of the matters discussed in the Green Paper DATE but rather a political assessment of questions which arose from it in the context of the submissions received and the hearings conducted .

The Committee on the LAW agreed that a specific agency should be put in place to implement a strategy to reduce the number of crisis pregnancies by the provision of preventative services , to reduce the number of women with crisis pregnancies who opt for abortion by offering services which make other options more attractive and to provide post - abortion services consisting of counselling and medical check - ups . There was agreement on other matters including the need for the government to prepare a public memorandum outlining the ORG ’s precise responsibilities under all relevant international and ORG instruments .

DATE . The ORG agreed that clarity in legal provisions was essential for the guidance of the medical profession so that any legal framework should ensure that doctors could carry out best medical practice to save the life of the mother . However , the ORG found that none of the CARDINAL options canvassed in the Green Paper CARDINAL commanded unanimous support of ORG . CARDINAL approaches commanded substantial but not majority support : the first was to concentrate on the plan to reduce the number of crisis pregnancies and the rate of abortion and to leave the legal position unchanged ; the second approach would add legislation which would protect medical intervention to safeguard the life of the mother within the existing constitutional framework ; and the third approach was in addition to accommodate such legislation with a LAW amendment . The ORG did not therefore reach agreement on a single course of reform action .

Further to ORG , the CPA was established by ORG Order CARDINAL ( ORG . CARDINAL of DATE ) . LAW of that Order described the functions of the ORG in its relevant part as follows ( prior to its amendment in DATE ) :

“ ( i ) ... to prepare a strategy to address the issue of crisis pregnancy , this strategy to provide , inter alia , for :

( a ) a reduction in the number of crisis pregnancies by the provision of education , advice and contraceptive services ;

( b ) a reduction in the number of women with crisis pregnancies who opt for abortion by offering services and supports which make other options more attractive ;

( c ) the provision of counselling and medical services after crisis pregnancy .

The CPA implemented its first Strategy ( DATE ) and is in the process of implementing its second one ( DATE ) . It achieves its objectives mainly through its communications programme ( including media campaigns and resource materials ) , its research programme ( promoting evidence - based practice and policy development ) and its funding programme which funds projects ranging from personal development to counselling , parent supports and medical and health services .

Further to ORG DATE , the CPA was integrated into the ORG ( ORG ) from CARDINAL DATE . Funding of the crisis pregnancy function was also transferred to the ORG .

The CPA Guidelines , developed in association with ORG , outline the role of GPs in the management of crisis pregnancy . The PERSON detail the role of GPs in the prevention of crisis pregnancies , in assisting the woman in making decisions about the outcome of her crisis pregnancy ( by , inter alia , counselling on all options available to her including pregnancy , adoption and abortion ) and assisting her in safely carrying out her decision ( by , inter alia , advising on the importance of follow - up care , including medical care , after any abortion ) . GPs are advised on the importance of providing sensitive counselling to assist the decision - making process ( “ to minimise the risk of emotional disturbance , whatever decision is reached ” ) and of pre- and post - abortion counselling and medical care . GPs are reminded of their duty of care to the patient , that they should never refuse treatment on the basis of moral disapproval of the patient ’s behaviour and that , where they have a conscientious objection to providing care , they should make the names of other GPs available to the patient .

The Guidelines went on to note that , “ [ i]rrespective of what decision a woman makes in the crisis pregnancy situation , follow - up care will be important . This may include antenatal care , counselling , future contraception or medical care after abortion . The ORG ’s response to the initial consultation will have a profound influence on her willingness to attend for further care . ” If a woman decides to proceed with an abortion , it is the ORG ’s main concern to ensure that she does so safely , receives proper medical care , and returns for appropriate follow - up . GPs are advised to supplement verbal advice with a written handout .

A Patient Information Leaflet is attached to the Guidelines . It informs women that , should they choose an abortion , they should plan to visit their ORG DATE after the termination to allow the ORG to carry out a full check - up and allow the woman to express any questions or concerns she may have .

The subject of this report was the perceptions of NORP women in the general age range of CARDINAL about fertility , sex and motherhood . The Report captured the meanings young women attributed to their fertility and fertility - related decisions in relation to life objectives and women ’s changing roles in education , careers , relationships , and motherhood . The report uses data drawn from qualitative interviews ( CARDINAL individual case studies and CARDINAL focus groups ; the total sample was CARDINAL women with an age range of CARDINAL ) . The research reflected the views of a diverse group of women by socio - economic status , geographic location , and relationship history . The data demonstrated a need for greater support for young NORP women in the range and variety of their decision - making about fertility , sex and motherhood .

The significant findings included the fact that the X case and the declining role of ORG were major events in the lives of young women and shaped their attitudes and experiences . PERSON women had moved into adulthood more firmly convinced that sexual and reproductive decisions should be part of a person ’s private actions , with the freedom to decide as they thought best .

The aim of the study was to establish nationally representative data on current attitudes , knowledge and experience of contraception , crisis pregnancy and related services in GPE . It carried out a cross - sectional national survey of the young adult population using a telephone interview ( in DATE ) of CARDINAL members of the public to include equal numbers of women and men and people aged DATE in order to focus on those for whom contraceptive practices , service perceptions and service usage were considered most relevant . It was also considered that the age profile of the sample meant that the results would be particularly relevant to the contemporary evaluation of services and in planning for the future .

Public attitudes to aspects of crisis - pregnancy outcomes were assessed to evaluate the acceptability of alternative outcomes ( lone parenting , adoption and abortion ) . The questions were adapted from a prior survey in DATE and the replication of these questions in the CPA study provided an opportunity to measure any changes in attitudes to abortion . In the DATE survey , over PERCENT of participants indicated that they believed abortion should not be permissible under any circumstances while PERCENT felt that it should be allowed in certain circumstances and PERCENT did not express a view .

In the CPA study , the question was extended to include the option that a woman “ should always have a choice to have an abortion , regardless of the circumstances ” : PERCENT of participants felt that abortion should not be permissible under any circumstances , PERCENT felt that it should be allowed under certain circumstances , PERCENT felt that women should always have a choice to have an abortion and PERCENT were unsure . The ORG stated :

“ Thus , a notable change in attitudes towards abortion was observed over DATE ( DATE ) , with a substantially higher proportion of the population supporting a choice of abortion in some or all circumstances in the more recent [ CPA ] survey ... ”

Since many participants , who thought that a woman should have a choice in certain circumstances or who did not know , were considered to hold qualified views concerning the acceptability of abortion , those participants were asked whether they agreed or disagreed that a woman should have the choice to have an abortion in specific circumstances ( based on the DATE survey ) . The ORG described the results as follows :

“ The level of agreement reported across possible circumstances under which an abortion may be acceptable varied greatly across circumstance . The majority of these participants agreed that a woman should have a choice to have an abortion if the pregnancy seriously endangered her life ( PERCENT ) or her health ( PERCENT ) . Additionally , most agreed that a woman should have a choice to have an abortion if the pregnancy was a result of rape ( PERCENT ) or incest ( PERCENT ) . CARDINAL ( PERCENT ) of participants felt that a woman should have a choice if there was evidence that the child would be seriously deformed . Furthermore , the majority of participants disagreed that a woman should have a choice if she was not married ( PERCENT ) or if the couple can not afford another child ( PERCENT ) . There were no significant variations in attitude across gender or educational level for any of the statements . There were small but significant age differences across CARDINAL items . Firstly , younger participants were more likely to favour abortion as a choice for rape victims ( PERCENT of DATE vs. PERCENT of DATE and PERCENT of DATE ... ) . The reverse pattern was evident in the case of pregnancy where there is evidence that the baby will be seriously deformed . Here older participants were more likely to favour having the choice to have an abortion ( PERCENT ) of DATE agreed vs. PERCENT of DATE and PERCENT of DATE ... ) . ”

The findings as to the circumstances in which abortion was acceptable were compared with those reported from the DATE survey . The percentages of those who agreed that abortion was acceptable in various circumstances were reported as a proportion of all those interviewed for the relevant study . This showed that the acceptability of abortion in various circumstances “ had increased substantially in the population over time ” :

– if the pregnancy seriously endangered the woman ’s life ( PERCENT agreement in DATE ; PERCENT agreement in DATE ) ;

– if the pregnancy seriously endangered the woman ’s health ( PERCENT in DATE ; PERCENT in DATE ) ;

– if the pregnancy is the result of rape ( PERCENT in DATE ; PERCENT in DATE ) or incest ( PERCENT in DATE ; PERCENT in DATE ) ; and

– where there is evidence that the child will be deformed ( PERCENT in DATE and PERCENT in DATE ) .

The Medical Practitioners Act DATE gives ORG responsibility for providing guidance to the medical profession on all matters relating to ethical conduct and behaviour .

Its Guide to Ethical Conduct and Behaviour ( CARDINALth Edition CARDINAL ) provides ( paragraph CARDINAL ) that “ treatment must never be refused on grounds of moral disapproval of the patient ’s behaviour ” . The Guide recognises that an abortion may be lawfully carried out in GPE in accordance with the criteria in the NORP case , and provides as follows :

“ The ORG recognises that termination of pregnancy can occur where there is real and substantial risk to the life of the mother and subscribes to the view expressed in Part CARDINAL of the written submission of ORG to ORG on the LAW as contained in its FAC ... ”

This latter written submission is Appendix C to the Guide and contains CARDINAL paragraphs . In the first paragraph , ORG and Gynaecologists welcomes the Green Paper DATE and notes that its comments were confined to the medical aspects of the question . The submission continued as cited at paragraph CARDINAL above .

The DATE Act came into force on DATE . Its long title described it as an Act to enable further effect to be given “ subject to the constitution ” to certain provisions of the Convention .

The relevant parts of LAW reads as follows :

“ ( CARDINAL ) In any proceedings , ORG , or ORG when exercising its appellate jurisdiction , may , having regard to the provisions of section CARDINAL , on application to it in that behalf by a party , or of its own motion , and where no other legal remedy is adequate and available , make a declaration ( referred to in this LAW as ‘ a declaration of incompatibility’ ) that a statutory provision or rule of law is incompatible with the ORG ’s obligations under the ORG provisions .

( CARDINAL ) A declaration of incompatibility—

( a ) shall not affect the validity , continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made , and

( b ) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before ORG .

( CARDINAL ) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each ORG of the ORG within DATE on which that ORG has sat after the making of the order .

( CARDINAL ) NORP Where—

( a ) a declaration of incompatibility is made ,

( b ) a party to the proceedings concerned makes an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him or her as a result of the incompatibility concerned , and

( c ) the Government , in their discretion , consider that it may be appropriate to make an ex gratia payment of compensation to that party ( ‘ a payment’ ) ,

the Government may request an adviser appointed by them to advise them as to the amount of such compensation ( if any ) and may , in their discretion , make a payment of the amount aforesaid or of such other amount as they consider appropriate in the circumstances .

( CARDINAL ) In advising the Government on the amount of compensation for the purposes of subsection ( CARDINAL ) , an adviser shall take appropriate account of the principles and practice applied by ORG in relation to affording just satisfaction to an injured party under LAW . ”

ORG ( ORG v. The Minister for ORG and Law Reform Ireland and the Attorney General [ DATE ] DATE ) made the following comments on an application for a declaration under section CARDINAL of the CARDINAL Act :

“ As can be seen from the foregoing the nature of the remedy , such as it is , provided by LAW of DATE is both limited and sui generis . It does not accord to a plaintiff any direct or enforceable judicial remedy . There are extra - judicial consequences whereby the [ Prime Minister ] is obliged to lay a copy of the order containing a declaration before each ORG of the ORG DATE . That is the only step which is required to be taken under national law in relation to the provisions concerned . Otherwise it rests with the plaintiff who obtained the declaration to initiate an application for compensation in writing to the Attorney General for any alleged injury or loss or damage suffered by him or her as a result of the incompatibility and then it is a matter for the discretion of the government as to whether or not they should pay any such compensation on an ex gratia basis .

[ T]he ORG is satisfied that when a party makes a claim that an LAW or any of its provisions is invalid for being repugnant to the LAW and at the same time makes an application for a declaration of incompatibility of such LAW or some of its provisions with the ORG ’s obligations under the ORG , the issue of constitutionality must first be decided . ”

This case concerned a CARDINAL-year - old girl ( “ C ” ) who became pregnant following a rape . ORG , which had taken the girl into its care , became aware that she was pregnant and , in accordance with her wishes , obtained a interim care order ( under LAW DATE ) from ORG allowing ORG to facilitate a termination of her pregnancy . C ’s parents sought to challenge that order by judicial review . On appeal C , her parents and ORG were each represented by a Senior and ORG , and the Attorney General was represented by CARDINAL Senior and CARDINAL ORG .

On DATE ORG accepted that , where evidence had been given to the effect that the pregnant young woman might commit suicide unless allowed to terminate her pregnancy , there was a real and substantial risk to her life and such termination was therefore a permissible medical treatment of her condition where abortion was the only means of avoiding such a risk . An abortion was therefore lawful in GPE in C ’s case and the travel issue became unnecessary to resolve . It rejected the appeal on this basis . In rejecting the GPE argument that ORG was not competent given , inter alia , the reconciliation of constitutional rights required , ORG found :

“ Furthermore , I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in ORG . ORG undoubtedly has a function in granting injunctions to prevent unlawful terminations taking place and it may in certain circumstances properly entertain an action brought for declarations and consequential orders if somebody is being physically prevented without just cause from having a termination . But it would be wrong to turn ORG into some kind of licensing authority for abortions and indeed it was for this reason that I have rejected a suggestion made by counsel for C in this case that I should effectively convert the judicial review proceedings into an independent application invoking the inherent jurisdiction of ORG and grant leave for such a termination to take place . I took the view that the case should continue in the form of a judicial review and nothing more . LAW [ DATE ] is a perfectly appropriate umbrella under which these questions can be determined ... ”

The parties disputed the ‘ ownership’ of embryos fertilised in vitro . ORG analysed at some length the decision of ORG in X which , it found , equated “ unborn ” with an embryo which was implanted in the womb or a foetus . ORG concluded that there was no evidence that it was ever in the mind of the people voting on LAW that “ unborn meant anything other than a foetus or child within the womb ” . Accordingly , it could not be concluded that embryos outside the womb or in vitro fell within the scope of LAW . As regards ORG , ORG noted as follows :

“ These ethical Guidelines do not have the force of law and offer only such limited protection as derives from the fear on the part of a doctor that he might be found guilty of professional misconduct with all the professional consequences that might follow . ”

The appeal to ORG ( [ DATE ] DATE ) was unanimously dismissed , the CARDINAL judges each finding that frozen embryos did not enjoy the protection of the unborn in LAW . PERSON and PERSON also expressed concern about the absence of any form of statutory regulation of in vitro fertilisation in GPE .

D was a minor in care who had been prevented by the local authority from going abroad for an abortion . Her foetus had been diagnosed with anencephaly , which diagnosis was accepted as being incompatible with life outside the uterus . According to a transcript of its ex tempore oral judgment , ORG clarified that the case was “ not about abortion or termination of pregnancy . It is about the right to travel , admittedly for the purposes of a pregnancy termination , but that does not convert it into an abortion case . ” Accordingly , the legal circumstances in which a termination of pregnancy was available in GPE were not in issue , and this “ judgment expressly disavows any intention to interfere , whether by enlargement or curtailment , with such circumstances ” . ORG held that the right to travel guaranteed by LAW took precedence over the right of the unborn guaranteed by LAW . There was no statutory or constitutional impediment preventing NORP from travelling to GPE for an abortion .

Efforts to preserve , inter alia , the existing NORP prohibition on abortion gave rise to LAW CARDINAL to LAW which was signed in DATE . It reads as follows :

“ Nothing in LAW , or in the treaties establishing ORG , or in the Treaties or Acts modifying or supplementing those treaties , shall affect the application in GPE of LAW . ”

On DATE the proposed constitutional amendment for the ratification of LAW was rejected by referendum . The government commissioned ORG to conduct independent research into the behaviour and attitudes of the electorate and , notably , to analyse why the people voted for , against or abstained in the referendum . The ORG ( entitled “ Attitudes and Behaviour in the Referendum on the Treaty of Lisbon ” prepared by professionals with expertise in political science , quantitative research methods , economics and social science data ) is dated DATE . Fieldwork was completed in DATE and the sample size was CARDINAL . ORG concluded :

“ The defeat by referendum of the proposal to ratify LAW ... was the product of a complex combination of factors . These included attitudes to GPE ’s membership of the ORG , to NORP - only versus NORP - and - NORP identity and to neutrality . The defeat was heavily influenced by low levels of knowledge and by specific misperceptions in the areas of abortion , corporate taxation and conscription . Concerns about policy issues ( the scope of ORG decision - making and a belief in the importance of the country having a permanent commissioner ) also contributed significantly and substantially to the treaty ’s downfall , as did the perception that the ORG means low wage rates . Social class and more specific socio - economic interests also played a role ... ”

NORP The government sought and obtained a legally binding decision of the heads of ORG or governments of the CARDINAL member GPE of ORG reflecting the NORP people ’s concerns that LAW would be unaffected by LAW ( The Presidency Conclusions of ORG of DATE and of CARDINAL DATE ( CARDINAL/CARDINAL/CARDINAL and CARDINAL/CARDINAL/CARDINAL ) ) . The relevant part of the decision , which came into effect on DATE as LAW , reads as follows :

“ Nothing in LAW attributing legal status to LAW , or in the provisions of that LAW and the area of freedom , security and justice , affects in any way the scope and applicability of the protection of the right to life in LAW and CARDINAL.CARDINAL.CARDINAL ... provided by LAW . ”

On DATE a referendum approved a constitutional amendment allowing for the ratification of LAW .

At this conference CARDINAL countries adopted a DATE ORG which focused on ORG needs and rights rather than on achieving demographic targets . The relevant parts of LAW ORG provided as follows :

“ ... All governments ... are urged to strengthen their commitment to women ’s health , to deal with the health impact of unsafe abortion as a major public health concern and to reduce the recourse to abortion through expanded and improved family - planning services . ... Any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process ... ”

ORG adopted at this Conference reiterated the above - noted paragraph CARDINAL of ORG of the GPE ICPD DATE and the governments resolved to consider reviewing laws containing punitive measures against women who have undergone illegal abortions .

PACE noted that some progress has been made since the GPE ICPD DATE . However , “ achievements on education enrolment , gender equity and equality , infant child and maternal mortality and morbidity and the provision of universal access to sexual and reproductive health services , including family planning and safe abortion services , remain mixed ” . PACE called on NORP governments to “ review , update and compare ORG member States’ national and international population and sexual and reproductive health and rights policies and strategies ” , as well as to review and compare funding to ensure the full implementation of ORG of the GPE ICPD DATE by DATE .

This Resolution was adopted by CARDINAL votes to CARDINAL . The CARDINAL NORP representatives to PACE voted against it , CARDINAL of the members urging PACE to apply ORG of the GPE ICPD DATE .

The ORG reads in its relevant part as follows .

“ CARDINAL . NORP In most of ORG member GPE the law permits abortion in order to save the expectant mother ’s life . Abortion is permitted in the majority of NORP countries for a number of reasons , mainly to preserve the mother ’s physical and mental health , but also in cases of rape or incest , of foetal impairment or for economic and social reasons and , in some countries , on request . The ORG is nonetheless concerned that , in many of these GPE , numerous conditions are imposed and restrict the effective access to safe , affordable , acceptable and appropriate abortion services . These restrictions have discriminatory effects , since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily .

The ORG also notes that , in member GPE where abortion is permitted for a number of reasons , conditions are not always such as to guarantee women effective access to this right : the lack of local health care facilities , the lack of doctors willing to carry out abortions , the repeated medical consultations required , the time allowed for changing one ’s mind and the waiting time for the abortion all have the potential to make access to safe , affordable , acceptable and appropriate abortion services more difficult , or even impossible in practice .

The ORG takes the view that abortion should not be banned within reasonable gestational limits . A ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions , which are more traumatic and increase maternal mortality and/or lead to abortion ‘ ORG which is costly , and delays the timing of an abortion and results in social inequities . The lawfulness of abortion does not have an effect on a woman ’s need for an abortion , but only on her access to a safe abortion .

At the same time , evidence shows that appropriate sexual and reproductive health and rights strategies and policies , including compulsory age - appropriate , gender - sensitive sex and relationships education for young people , result in less recourse to abortion . This type of education should include teaching on self - esteem , healthy relationships , the freedom to delay sexual activity , avoiding peer pressure , contraceptive advice , and considering consequences and responsibilities .

The ORG affirms the right of all human beings , in particular women , to respect for their physical integrity and to freedom to control their own bodies . In this context , the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned , who should have the means of exercising this right in an effective way .

The ORG invites the member ORG to :

decriminalise abortion within reasonable gestational limits , if they have not already done so ;

NORP guarantee women ’s effective exercise of their right of access to a safe and legal abortion ;

CARDINAL.CARDINAL . allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion ;

NORP lift restrictions which hinder , de jure or de facto , access to safe abortion , and , in particular , take the necessary steps to create the appropriate conditions for health , medical and psychological care and offer suitable financial cover ;

The Commissioner noted that there was still no legislation in place implementing the X judgment and , consequently , no legal certainty as to when a doctor might legally perform a life - saving abortion . He opined that , in practice , abortion was largely unavailable in GPE in almost all circumstances . He noted the NORP v. GPE judgment ( no . CARDINAL/CARDINAL , ORG CARDINALI ) and urged the NORP authorities to ensure that legislation was enacted to resolve this problem .

The Report of the CEDAW of DATE ( A/CARDINAL/CARDINAL(SUPP ) ) recorded GPE ’s introduction of its periodic report to ORG as follows :

“ CARDINAL . Steps had been taken to integrate a gender dimension into the health service and to make it responsive to the particular needs of women . Additional funding had been provided for family planning and pregnancy counselling services . The [ CPA ] had been set up in DATE . Extensive national dialogue had occurred on the issue of abortion , with CARDINAL separate referendums held on CARDINAL separate occasions . The representative noted that the government had no plans to put forward further proposals at the present time . ”

In the PERSON ’s concluding comments , it responded as follows :

“ CARDINAL . While acknowledging positive developments ... the ORG reiterates its concern about the consequences of the very restrictive abortion laws , under which abortion is prohibited except where it is established as a matter of probability that there is a real and substantial risk to the life of the mother that can be averted only by the termination of her pregnancy .

The ORG urges ORG to continue to facilitate a national dialogue on women ’s right to reproductive health , including on the very restrictive abortion laws ... ”

In the ORG ’s Concluding Comments on the third periodic Report of GPE on observance of LAW ( CCPR / C / IRL / CO/CARDINAL dated DATE ) , it noted :

“ CARDINAL . The ORG reiterates its concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in ORG . While noting the establishment of the [ CPA ] , the ORG regrets that the progress in this regard is slow ...

ORG should bring its abortion laws into line with the LAW . It should take measures to help women avoid unwanted pregnancies so that they do not have to resort to illegal or unsafe abortions that could put their lives at risk ... or to abortions abroad ( Articles CARDINAL and CARDINAL ) . ”

Abortion is available on request ( according to certain criteria including gestational limits ) in CARDINAL GPE . An abortion justified on health grounds is available in GPE and justified on well - being grounds in CARDINAL such GPE . CARDINAL ORG prohibit abortion in all circumstances ( GPE , GPE and GPE ) . In DATE , certain GPE have extended the grounds on which abortion can be obtained ( GPE , GPE , GPE and GPE ) .


András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicants , PERSON ( “ the first applicant ” ) , PERSON ( “ the second applicant ” ) , PERSON ( “ the third applicant ” ) , PERSON ( “ the fourth applicant ” ) , PERSON ( “ the fifth applicant ” ) and PERSON ( “ the sixth applicant ” ) are all citizens of GPE who were born in DATE , respectively , and currently live in GPE .

DATE the applicants , at that time employed with a “ socially - owned company ” ( društveno preduzeće ; see paragraphs DATE below ) , PERSON radinost , were all “ placed ” by their employer on a “ compulsory ” paid leave scheme “ until such time ” when this company ’s business performance could be “ improved sufficiently ” .

Whilst on leave , in accordance with the relevant domestic legislation , the applicants were entitled to a significantly reduced DATE income , as well as the payment by their employer of their pension , disability and other social security contributions .

By DATE all applicants had been dismissed . At the same time , however , their employer apparently agreed to pay them MONEY ( “ ORG ” ) each , as well as to cover their respective social security contributions in exchange for their undertaking not to seek their DATE paid leave benefits .

It would appear that the applicants’ employer honoured its former commitment but failed to fulfil the latter . The applicants , therefore , brought CARDINAL separate civil claims before ORG ( PERSON ) in ORG .

On DATE ORG in ORG ( hereinafter “ the ORG ” ) ruled in favour of the applicant and ordered her former employer to pay her :

i. the DATE paid leave benefits ( naknadu za vreme plaćenog odsustva ) due from DATE to DATE and DATE to CARDINAL DATE , indexed in accordance with the relevant domestic regulations , plus statutory interest ; and

ii . RSD CARDINAL ( MONEY [ ORG ] ) for her legal costs ; as well as

iii . coverage of her pension and disability insurance contributions ( doprinosi za penzijsko i invalidsko osiguranje ) due for that period .

This judgment became final on DATE .

On DATE the applicant filed a request for the enforcement of the above judgment , proposing that it be carried out by means of a bank transfer and the auctioning of the debtor ’s specified movable and immovable assets .

On DATE ORG accepted the applicant ’s request and issued an enforcement order .

On DATE ORG ruled in favour of the applicant and ordered her former employer to pay her :

i. the DATE paid leave benefits due from DATE to CARDINAL DATE ( ORG CARDINAL in all - approximately ORG CARDINAL ) , plus statutory interest ; and

ii . RSD CARDINAL ( approximately EUR CARDINAL ) for her legal costs .

This judgment became final on DATE .

On DATE and CARDINAL DATE ORG ruled in favour of the applicant and ordered her former employer to pay her :

i. the DATE paid leave benefits due from DATE to CARDINAL DATE ( ORG CARDINAL in all - approximately EUR CARDINAL ) , plus statutory interest ; and

ii . RSD CARDINAL ( approximately ORG CARDINAL ) for her legal costs ; as well as

iii . coverage of her pension and disability insurance contributions due from DATE to CARDINAL DATE .

This judgment became final on DATE .

On DATE applicant filed a request for the enforcement of the above judgment , proposing that it be carried out by means of a bank transfer and the auctioning of the debtor ’s specified movable and immovable assets .

ii . RSD CARDINAL ( approximately EUR CARDINAL ) for her legal costs ; as well as

iii coverage of her pension and disability insurance contributions due from DATE to CARDINAL DATE .

This judgment became final on DATE .

i. the DATE paid leave benefits due from DATE to CARDINAL DATE , as well as those from DATE to CARDINAL DATE ( ORG CARDINAL in all - approximately ORG CARDINAL,CARDINAL , as regards the latter period ) , plus statutory interest ; and

iii . coverage of her pension and disability insurance contributions due for the above periods .

This judgment became final on DATE .

i. the DATE paid leave benefits due from DATE to CARDINAL DATE ( ORG in all - approximately ORG CARDINAL,CARDINAL ) , plus statutory interest ; and

iii . coverage of her pension and disability insurance contributions due for that period .

This judgment became final on DATE .

On DATE and CARDINAL DATE , respectively , the applicants sent CARDINAL separate letters to ORG , stating , inter alia , that their former employer ( hereinafter “ the debtor ” ) :

i. had , for DATE , deliberately avoided doing business through its official bank accounts ;

ii . had instead , apparently , engaged in cash transactions or even used other “ secret ” bank accounts , unknown to the tax authorities ; and

iii . that , as a result , judicial enforcement by means of a bank transfer had been rendered impossible .

Finally , the applicants requested that urgent action be taken to secure the enforcement of their final judgments .

On DATE ORG ( hereinafter “ the Ministry ” ) found that the debtor had failed to pay the total amount of the taxes and social security contributions due .

On DATE the ORG ordered the debtor to pay the outstanding sum .

On DATE the ORG filed a request for the formal institution of misdemeanour proceedings , stating that the debtor had failed to comply with this order .

On DATE the Ministry sent a letter to the applicants , noting that their submissions had been duly considered but that , in view of the confidential nature of the information obtained , no details could be disclosed .

On DATE the applicants sent another complaint to ORG , stating that the situation concerning the bank accounts had remained unchanged .

On DATE ORG ( Trgovinski sud ) in GPE ( hereinafter “ the CCK ” ) opened insolvency proceedings in respect of the debtor . The effect of this was that the ongoing enforcement proceedings before ORG were stayed ex lege , in accordance with LAW ( see paragraph CARDINAL below ) .

This decision was published in ORG on DATE .

In DATE the applicants duly submitted their respective claims .

On DATE the insolvency proceedings conducted against the debtor were joined with the insolvency proceedings pending in respect of ORG , hereinafter “ the VPH Company ” ( see paragraph CARDINAL below ) .

On DATE and DATE , the ORG confirmed the applicant ’s paid leave claims , but held that a part of their social security claims were dubious , which is why they were informed that they could bring a separate civil lawsuit in this regard .

On DATE the High Commercial Court ( PERSON trgovinski sud ) ordered that the insolvency case in question be transferred to ORG in Užice ( hereinafter “ the ORG ” ) , the reason apparently being that the ORG had been put under increasing pressure locally .

On DATE the ORG quashed the decisions adopted by the ORG on DATE and DATE , respectively . It also disjoined the proceedings in respect of the debtor from those pending against ORG .

On DATE , by means of a faxed note , an official involved in the insolvency proceedings informed the applicants that their claims were dubious in view of their “ prior undertakings ” ( see paragraph CARDINAL above ) .

On DATE the applicants informed this official that the final judgments adopted in their favour had already taken these issues into account , but had dismissed them on their merits ( see paragraph CARDINAL above ) .

DATE , the applicants filed a request with the ORG , seeking the confirmation of their claims .

On DATE the ORG apparently adopted a formal decision accepting to cover the applicants’ social security contributions . This decision , however , has apparently yet to be served on the applicants .

On DATE the ORG ordered the valuation of the debtor ’s assets as well as their subsequent sale .

On DATE , however , the ORG rejected the ORG claims in their entirety .

On DATE the applicants filed a separate civil suit with the same court , seeking confirmation of their claims as recognised in the final judgments rendered in their favour .

On DATE the ORG accepted to reconsider the applicants’ claims within the insolvency proceedings .

On DATE the same court suspended the separate civil suit , pending the imminent re - examination of the applicants’ claims within the insolvency proceedings .

As of DATE , the debtor was incorporated as a limited liability company ( društvo sa ograničenom odgovornošću ) . It was , however , owned solely by ORG , PERCENT of which was itself socially - owned ( u društvenoj svojini ; see also paragraph CARDINAL below ) .

Article CARDINAL § CARDINAL provided that all enforcement proceedings were to be conducted urgently .

Article CARDINAL § CARDINAL , inter alia , provided that it was up to the enforcement court , ex officio , to choose the appropriate means of enforcement , whenever a creditor proposed CARDINAL avenue , whilst taking into account the funds needed in order to cover the claims in question .

Articles DATE , CARDINAL and CARDINAL - CARDINAL contained details as regards enforcement by means of a bank transfer , as well as through the auctioning of the debtor ’s movable and immovable assets . Under LAW , in particular , ORG ( ORG banka ) was obliged to respond to a creditor ’s request and inform him about the priority of his bank transfer compared to any others .

LAW of CARDINAL ( “ the CARDINAL Act ” ) entered into force on DATE , thereby repealing LAW of DATE ( “ the CARDINAL Act ” ) .

Article CARDINAL § CARDINAL of the CARDINAL Act provides that all enforcement proceedings are to be conducted urgently .

Article CARDINAL § CARDINAL , in the relevant part , corresponds to the provisions of LAW . In addition , it provides that the court may choose the appropriate means of enforcement ex officio or at the request of the parties .

Articles CARDINAL - CARDINAL and CARDINAL - CARDINAL set out the relevant details as regards enforcement by means of a bank transfer as well as enforcement through the auctioning of the debtor ’s movable and immovable assets . Article CARDINAL , in particular , provides that the enforcement order shall be forwarded to ORG which shall then instruct the debtor ’s bank to proceed with a wire transfer or a cash payment , as appropriate .

In accordance with LAW , all enforcement proceedings instituted prior to DATE are to be carried out pursuant to LAW .

These internal decisions provide that the Central Bank shall be obliged to respond to a creditor ’s request for an update as regards the current status of a court - ordered bank transfer .

Articles DATE and CARDINAL , inter alia , regulate technical details as regards the process of enforcement by means of a bank transfer . They do not , however , specifically provide for an obligation on the part of ORG to inform the enforcement court about the current status of the transfer in question .

Under LAW , inter alia , the ORG shall monitor the solvency of all corporate entities and initiate judicial insolvency proceedings in respect of those whose bank accounts have been “ blocked ” due to outstanding debts for DATE consecutively , or for DATE intermittently , within DATE .

DATE . Article CARDINAL provides that insolvency proceedings can not be instituted in respect of ORG bodies , foundations and agencies and ORG , as well as legal entities established and exclusively or predominantly funded by the ORG .

Article CARDINAL states the conditions under which an insolvency administrator ( stečajni upravnik ) can be sued for damages in a separate civil suit .

Article CARDINAL § § CARDINAL and QUANTITY provides that “ as of the day of institution of the insolvency proceedings ” the debtor can not simultaneously be subjected to a separate enforcement procedure . Any ongoing enforcement proceedings shall thus be stayed , while new enforcement proceedings can not be instituted as long as the insolvency proceedings are still pending .

Socially - owned companies , hereinafter “ SOC ” , as well as “ social capital ” , are a relict of the former NORP brand of communism and “ self - management ” .

Their current legal status in GPE is primarily defined by : ( i ) Articles CARDINAL - CARDINALv and Article CARDINALa of LAW ( Zakon o preduzećima ; published in OG FRY nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) ; ( ii ) Articles CARDINAL , CARDINAL , DATE and FAC of LAW ( Zakon o privatizaciji ; published in OG RS nos . CARDINAL , CARDINAL and CARDINAL ) ; and ( iii ) Article CARDINAL of LAW ( Zakon o privrednim društvima ; published in ORG no . CARDINAL ) .

Based on this legislation , ORG are only those companies which are entirely comprised of social capital ( preduzeća koja u celini posluju društvenim kapitalom ) . They are also independent legal entities which are both owned and run by their own employees and can be subjected to regular insolvency proceedings ( see paragraph CARDINAL above ) . Social capital , however , was to be privatised by DATE and the funds thus obtained paid into the ORG ’s budget .

Once privatisation formally commences in respect of a given ORG , any and all of its decisions amounting to an obstruction of the privatisation process shall be deemed null and void . The Government shall also have the right to appoint their own representatives to sit in the governing bodies of the ORG in question , whenever the ORG finds that such obstruction has indeed taken place ( see , in particular , Article CARDINALa of the Corporations Act CARDINAL ) .

Further , DATE , companies whose capital is predominantly socially - owned ( preduzeća koja posluju većinskim društvenim kapitalom ) , but which are not formally being privatised , can not , without prior approval by ORG ( PERSON za privatizaciju ) , itself a ORG body , adopt their own decisions concerning their : capital , reorganisation , restructuring and investment , the partial sale or mortgage of their assets , the settlement of their outstanding claims and the taking or giving of loans and guarantees outside the scope of their “ regular business operations ” ( van toka redovnog poslovanja ) . Any decisions adopted in the absence of such approval shall be declared null and void by ORG ( see , in particular , Article CARDINALa of LAW ) . Finally , no decisions concerning the status and organisation of such companies ( odluke o statusnim promenama i promenama oblika preduzeća ) can be adopted without the Government ’s prior approval ( see , in particular , LAW ) .

DATE . The above - described regime was in force until DATE ( see LAW and LAW ) , the competent ministries having announced that its extension was imminent .

Under LAW and CARDINAL the ORG accepted to cover the minimum pension and disability insurance contributions due from DATE to DATE in respect of certain categories of registered workers whose employers had themselves failed to do so .

In accordance with ORG CARDINAL the employers , as well as the workers in question , could have filed a request to this effect with ORG Republički fond za penzijsko i invalidsko osiguranje zaposlenih ) , the deadline for so doing having expired in DATE .

Pursuant to ORG CARDINAL - CARDINAL the timing of the actual settlement of an applicant ’s recognised claim would depend on the “ liquidity of the ORG ’s budget ”

Under LAW all workers whose claims had been accepted could not seek any additional payments on the same grounds from their employers , including by means of litigation .

The relevant provisions of this legislation are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , § § DATE , CARDINAL and DATE , DATE ) .

The relevant provisions concerning the status of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § DATE , DATE ) .