The case concerns the Portuguese authorities’ decision to prohibit the ship Borndiep (owned by an association called Women on Waves), which had been chartered with a view to staging activities promoting the decriminalization of abortion, from entering Portuguese territorial waters in 2004. In this case, the Court held that there had been a violation of Article 10 (freedom of expression). However, it considered it not necessary to examine separately the complaints under Articles 5, 6 and 11 of the Convention and Article 2 of Protocol No. 4 to the Convention.

The Court observed that the applicant association had not trespassed on private land or publicly owned property. Also, it noted the lack of sufficient evidence of any intention on their part to deliberately breach Portuguese abortion legislation. It reiterated that as long as the person concerned did not commit any reprehensible acts, freedom to express opinions during a peaceful assembly could not be restricted. 

The availability of alternatives was considered an important aspect of the case. In seeking to prevent disorder and protect health, the Portuguese authorities could have resorted to other means that were less restrictive of the applicant associations’ rights. The court suggested seizing the medicines on board as an example. It highlighted the deterrent effect for freedom of expression in general of such a radical act as dispatching a warship.

The Court decided that the situation complained of should be examined under Article 10 of the Convention alone. While the Court acknowledged the legitimate aims pursued by the Portuguese authorities, namely the prevention of disorder and the protection of health, it reiterated that pluralism, tolerance and broadmindedness towards ideas that offended, shocked or disturbed were prerequisites for a “democratic society”. The Court considered that in this case, the restrictions imposed by the authorities had affected the substance of the ideas and information imparted. It was further highlighted that the right to freedom of expression included the choice of the form in which ideas were conveyed, without unreasonable interference by the authorities, particularly during symbolic protest activities. Since the interference by the authorities had been disproportionate to the aims pursued, the Court therefore concluded that Article 10 was violated.