Monitoring of human rights violations concerning abortion in Poland

EUROPE: ABORTION

Committee of Ministers of the Council of Europe, Interim Resolution CM/ResDH(2021)44 of 11 March 2021 (execution of the judgments of the European Court of Human Rights, Tysiac, R.R. and P. and S. against Poland)

The Committee of Ministers urges the authorities to effectively ensure an effective access of women to abortion and to present an impact assessment of the judgement of the Constitutional Court of Poland of 22 October 2020 which has invalidated the ground for abortion related to the foetus health.

I.          Main grounds of the resolution
 
This Committee of Ministers supervises the execution of the final judgements of the European Court of Human Rights (hereinafter «The Court”; Art. 46 ECHR). It has taken an interim resolution towards Poland because despite three judgements of the Court exposed below, Poland has namely failed to «put in place procedures enabling pregnant women to effectively contest decisions refusing lawful abortion on medical grounds or pre-natal examination and to receive equal treatment in their access to lawful abortion.» Furthermore, the Constitutional Court of Poland has meanwhile invalidated the ground for lawful abortion related to the foetus health, which means that abortion in Poland only remains possible if the pregnancy threatens the life or the health of the pregnant woman or results from a prohibited act such as rape or incest.
 
II.         Judgements of the Court concerned by the interim resolution
 
The three judgements concerned by the interim resolution are the following.
 
A.) In a judgement of 20 March 2007 (Tysi?c / Poland), the Court found that there was no effective mechanisms determining whether the conditions for obtaining a lawful abortion had been met in cases where disagreement arises between the pregnant woman and her doctors or between the doctors themselves (points 121 and 124), so that article 8 ECHR granting the right to respect for the private life had been violated.
 
B.) In a judgement of 26 May 2011 (R.R. / Poland), the Court found that a pregnant had been humiliated by doctors’ lack of sensibility to her plight in violation of article 3 ECHR (which prohibits torture and inhuman or degrading treatments or punishments; points 160-161 and 225) because during six weeks, she had repeatedly tried without success – because of the procrastination of the health professionals – to undergo the genetic prenatal test which was necessary to confirm a possible malformation of her foetus. Although she was entitled to abortion, she had only obtained this test thanks to a subterfuge and it had then been too late for abortion. Article 8 ECHR had also been violated because «it had not been demonstrated that Polish law contained any effective mechanisms which would have enabled the applicant to have access to the available diagnostic services and to take, in the light of their results, an informed decision as to whether to seek an abortion or not» (point 209).
 
C.) In a judgement of 30 October 2012 (P. and S. / Poland), the Court examined the case of a 14 years old person (P.) who had reported to be victim of a rape by a boy of her own age, which had resulted in her pregnancy. Consequently, a prosecutor had certified that the pregnancy had resulted in an «unlawful sexual intercourse with a minor under 15 years of age». In these circumstances, P. fulfilled the strict conditions for abortion in Poland. However, she had in vain requested an abortion to several hospitals. She had been put under pressure by the chief doctor, obliged to talk to a catholic priest and her mother had been accused by the doctor to be a bad mother. One of the hospitals had disclosed his refusal to perform the abortion in a press release. Consequently, P. had been harassed by third parties who tried to make her abandon her intention to abort. A family court had expressed doubts as to whether the wish of P. to abort was the result of the pressure of her mother. Consequently, by order of the court – quashed 13 days later –, P. had been detained in a juvenile shelter and deprived of her mobile phone. A proceeding – discontinued eight months later – had also been instituted to devest her mother from her parental rights. P. finally abort in an hospital situated 500 km away from her home with the help of the Ministry of Health. Two weeks later, proceedings – discontinued five months later – were instituted by a court against P. for «unlawful sexual intercourse with a minor under 15 years of age». Investigations against the perpetrator of the alleged rape also took place but were discontinued three years later. The Court found that Article 8 ECHR had been violated 1.) because while requesting abortion, P. and her mother had been given «misleading and contradictory information», «did not receive appropriate and objective medical counselling which would have due regard to their own views and wishes” and «no set procedure was available to them under which they could have their views heard and properly taken into consideration with a modicum of procedural fairness» (points 108 and 112) and 2.) because the medical data of P. had been disclosed by a hospital in a press release (points 128-137). The Court also found that Article 5, §1er ECHR granting the right to liberty and security had been violated because «the essential purpose of the decision on the […] placement [op P. in a juvenile shelter] was to separate her from her parents, in particular from [her mother], and to prevent the abortion» (point 148). Having regard to the sufferings caused to P. by the authorities, the Court also found that Article 3 ECHR had been violated (points 161-169).
 
III.        Resolution
 
In its resolution, the Committee of Ministers namely urges Poland 1.) «to adopt clear and effective procedures on the steps women need to take to access lawful abortion, including in the event of a refusal of abortion on grounds of conscience»; 2.) «to ensure that they are provided with adequate information on these procedures»; 3.) to ensure «that no additional unnecessary requirements are imposed on them by hospitals beforehand»; 4.) «to adopt the necessary reforms of the objection procedure without further delay», to oblige hospitals «to refer a patient to an alternative healthcare facility if a medical service is refused on the grounds of conscience» and «to monitor effectively its observance in practice»; and 5.) «to ensure an effective monitoring of contractual obligations and functioning of contractual liability mechanism if lawful abortion or pre-natal examination contracted by a hospital is not performed, […]». It also calls on Poland to present an assessment of the impact of the judgement of the Constitutional Court of 22 October 2020 on the availability of prenatal examination in Poland. Finally, it decides to examine this group of cases again in December 2021.

Direct link to the press release (coe.int)
Direct link to the resolution (coe.int)