The European Court of Human Rights recently ruled that Portugal had violated freedom of expression guaranteed by the European Commission on Human Rights by prohibiting the ship Borndiep, which promoted the decriminalization of abortion, from entering Portuguese territorial waters.
The applicants were three non-governmental organizations particularly active in promoting the debate about reproductive rights – Women on Waves, a Dutch foundation based in Amsterdam, and two Portuguese associations, Clube Safo and Não te Prives (Group for the Defense of Sexual Rights), based in Santarém and Coimbra (Portugal). Women on Waves’ mission is to prevent unsafe abortions and empower women to exercise their human right to physical and mental autonomy. The organization charters ships to sail to countries where abortion is illegal. After sailing to international waters doctors aboard the ship can provide early medical abortions safely and legally. National penal legislation, including abortion laws, extends only to territorial waters; outside that 12-miles radius the ship is only beholden to the law of the country of its registration.
In 2004 Women on Waves chartered the ship Borndiep and sailed towards Portugal after being invited by the two other applicant associations to campaign in favor of the decriminalization of abortion. At the time Portugal was the only country within the EU that actively prosecuted women and doctors for illegal abortion. Meetings on the prevention of sexually transmitted diseases, family planning and the decriminalization of abortion were planned to take place on board from August 30 to September 12, 2004. But on August 27, 2004 a ministerial order banned the ship from entering Portuguese territorial waters on the basis of maritime law and Portuguese health laws. A Portuguese warship blocked the Borndiep’s entrance. On September 6, 2004 the Administrative Court rejected a request by the applicant associations for an order allowing the ship’s immediate entry. The authorities indicated that they thought, erroneously, that the Women on Waves ship would give Portuguese women access to forbidden abortion procedures and medicines.
The applicant associations tried to appeal against that decision but without success. They subsequently applied to the Supreme Administrative Court, which found that the matter in dispute was not of sufficient legal or social significance to justify its intervention. Women on Waves’ sources say that a number of demonstrations in support of the three associations took place in Portugal, attracting media attention.
The organizations decided to lodge an application with the European Court of Human Rights on August 18, 2005. Almost four years later, the Court decided that there had been a violation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court concluded that the interference by the authorities violated Article 10, as it had been disproportionate to the aims pursued. The Court not only noted that nothing indicated that the NGOs had wanted to administer abortion medicines, but, furthermore, because the NGOs’ aim was to to inform people about reproductive health, the authorities should have respected their rights to hold sessions on the ship as they always had. The Court also noted that the use of a war vessel in itself to stop the ship may have had a chilling effect on the work of Women on Waves.
While the Court acknowledged the legitimate aims pursued by the Portuguese authorities, as the "prevention of disorder and the protection of health, it stated that pluralism, tolerance and broadmindedness towards ideas that offended, shocked or disturbed were prerequisites for a ‘democratic society.’" It pointed out that the right to freedom of expression included the choice of the form in which ideas were conveyed, without unreasonable interference by the authorities. The Court considered that in this case, the restrictions imposed by the authorities had affected the substance of the ideas and information imparted. It noted that the choice of the ship for the events planned had been crucially important to the applicant associations and in line with the activities that Women on Waves had carried out for some time in many European states. The Court highlighted that the applicant associations had not trespassed on private land or publicly owned property, and it noted the lack of sufficiently strong evidence of any intention to deliberately breach Portuguese abortion legislation.
In early December 2004, only two months after the ship’s visit to Portugal, the Portuguese government dissolved. The Socialist Party won the elections in February 2005 with an overwhelming majority and promised to hold a national referendum on abortion law. Portugal subsequently legalized abortion in February 2007, two and half year after the Women on Waves ship visited Portugal.
While the length and difficulty of this case may be disheartening, it marks a great change in Portuguese society. When the last case involving dissemination of information on abortion was decided in 1992, it was a highly contentious case resulting in a divided court. In contrast, this 2009 judgment was unanimous.