Published on 8 July 2021
FIRST SECTION
Application no. 1819/21
K.B. against Poland
and 3 other applications
(see list appended)
communicated on 1 July 2021
STATEMENT OF FACTS
The applicants are Polish nationals. Their names and personal details are set out in the attached appendixThe circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows. Facts submitted by all applicants
(a) Request of 2017
On 22 June 2017 a group of 104 parliamentarians lodged a request with the Constitutional Court to declare sections 4a (1) 2 and 4a (2) of the Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act (“the 1993 Act”) (Ustawa o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży), relating to legal abortion due to foetal abnormalities, incompatible with the Constitution (case no. K 13/17).
The request was signed, inter alia, by K.P., a parliamentarian who subsequently, on 5 December 2019, was elected to the post of a judge of the Constitutional Court.
In October 2019 parliamentary elections were held.
On 21 July 2020 the Constitutional Court discontinued the proceedings on the ground that the request had been lodged during the previous term of the Sejm.
(b) Request of 2019
On 19 November 2019 a group of parliamentarians again lodged a request with the Constitutional Court to declare sections 4a (1) 2 and 4a (2) (1st sentence) of the 1993 Act incompatible with the Constitution (case no. K 1/20).
On 22 October 2020 the Constitutional Court, sitting in plenary (thirteen judges), held by a majority of eleven votes to two, that sections 4a (1) 2 and 4a (2) (1st sentence) of the 1993 Act were incompatible with the Constitution. The bench comprised in particular, judge K.P., judges M.M., J.W. and J.A.P and was presided by judge J.P., the president of the Constitutional Court. Publication of the judgment in the Journal of Laws was postponed.
The applicants submit that following the delivery of the judgment certain hospitals refused to perform abortions in cases of foetal defects. They further state, that following interventions made by NGOs and some MPs, public hospitals resumed carrying out abortions in cases relating to foetal defects.
(c) Street protests
The Constitutional Court’s ruling prompted large mass street protests and demonstrations involving thousands of participants. The protests were organised by All-Poland Women’s Strike, a women’s social rights movement in Poland. For example, as submitted by the applicants, on 30 October 2020, approximately 100,000 people took part in the protests in Warsaw and more than 500,000 in various events organised throughout the country.
(d) The President’s bill
On 30 October 2020 the President submitted to Sejm a bill amending the 1993 Act. The amendment reintroduces the possibility of terminating a pregnancy due to foetal abnormalities, although only limited to “lethal” defects. On 3 November 2020 the bill was referred to the Parliamentary Commission for Health and the Commission for Justice and Human Rights.
(e) Composition of the Constitutional Court
The applicants submit that in 2015 the terms of office of five judges of the Constitutional Court came to an end. The term of office of three judges came to an end still during the Sejm of the 7th term (“the old Sejm”) and two other judges during the Sejm of the 8th term (“the new Sejm”). In October 2015 the old Sejm elected five judges. Following the amendments to the Constitutional Court Act the new Sejm also elected five judges on 2 December 2015. The President refused to accept an oath from the judges elected by the old Sejm. Subsequently, he accepted an oath from the judges elected by the new Sejm (for further details, see Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 4-63, 7 May 2021).Facts after the applications were lodged with the court
On 27 January 2021 the Constitutional Court published the reasoning of its judgment of 22 October 2020. On the same date, the judgment was published in the Journal of Laws. The judgment entered into force on the day of its publication. Two judges appended their dissenting opinions to the judgment and three judges appended concurring opinions as to the reasoning of the judgment.Application no. 1819/21
The applicant submits that she is twenty seven years old and lives in a stable relationship. She is soon getting married and was planning to start a family. However, recently she has discovered that her partner suffers from a chromosome abnormality. She has been informed that her chance of having a healthy pregnancy is lower than 50% and she has a very high risk of having a chromosome-related condition. If she gets pregnant there is a high probability that she will have a miscarriage or that the baby will die shortly after birth.
The applicant submits that the Constitutional Court’s judgment has a chilling effect on her family plans. She is so worried that she put aside the decision to start family.Application no. 3682/21
The applicant submits that she is thirty four years old and a mother of a disabled child. She would like to have another child, but the Constitutional Court’s judgment causes her a lot of stress and anxiety. She is worried what would happen if she gets pregnant and the foetus is found to be defective.Application no. 4957/21
The applicant submits that she is thirty five years old and suffers from chronic leukopenia, severe allergy and from severe myopia. During the last few years, she has experienced several anaphylactic shocks. Because of her illnesses she has been taking contraceptives and is not planning a pregnancy. However, no contraceptive method is completely effective. The applicant submits that she is very worried of the effect the Constitutional Court’s judgment will have on her situation.Application no. 6217/21
The applicant submits that she is forty years old and have been undergoing infertility treatment for the last ten years. She has undergone three unsuccessful cycles of IVF treatment. During the first pregnancy the embryo did not develop, and she spent several days in hospital for a pharmacological termination.
Despite the fact that her age does not exclude pregnancy and her financial situation allows her to continue IVF treatment given the current situation in Poland she will stop trying for a baby. She is worried that given her medical history, if she gets pregnant and the foetus is found to be defective she will not be able to terminate the pregnancy. Tis situation for her amounts to mental torture. She is also worried to access to prenatal testing will be difficult. Relevant domestic law and practiceThe 1993 Act
Until 1993 women in Poland had the right to terminate pregnancy on demand.
The 1993 Act provided that legal abortion was possible only until the twelfth week of pregnancy where the pregnancy endangered the mother’s life or health; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest.
On 4 January 1997 the 1993 Act was amended and allowed for legal abortion during the first twelve weeks where the mother either suffered from material hardship or was in a difficult personal situation. However, in December 1997, following the Constitutional Court’s judgment, the provision legalising abortion on grounds of material or personal hardship was declared to be incompatible with the Constitution.
Subsequently, on 22 October 2020, the Constitutional Court declared that the provision allowing for legal abortion in case of foetal abnormalities was also incompatible with the Constitution. The judgment entered into force on 27 January 2021.
Section 4a of the 1993 Act, as it stands at present, reads, in its relevant part:
“(1) An abortion can be carried out only by a physician where
1. pregnancy endangers the mother’s life or health;
3. there are strong grounds for believing that the pregnancy is a result of a criminal act.
(2) In the cases listed above under sub-paragraph 2, an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; in cases listed under sub-paragraph 3 above, until the end of the twelfth week of pregnancy.
(3) In the cases listed under sub-paragraphs 1 and 2 above the abortion shall be carried out by a physician working in a hospital.
...
(5) Circumstances in which abortion is permitted under subsection (1), sub‑paragraphs 1 and 2, above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life.”Criminal offence of abortion performed in contravention of the 1993 Act
Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists in such a termination may be sentenced to up to three years’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act.Constitutional Court
The chronology of events relating to the election of the Constitutional Court judges in 2015 is set out in detail in the Venice Commission’s opinion adopted at its 106th Plenary Session on 11-12 March 2016 (CDL‑AD(2016)001).
COMPLAINTS
1. The applicants complain that they are potential victims of a breach of Article 8 of the Convention. While they were not refused abortion on the ground of foetal defects, the 1993 Act breaches their rights even though it was not directly applied to them. The applicants claim that the domestic law obliges them to adapt their conduct. If pregnant, they are required to carry the child to term even in a situation when the foetus is shown to be defective.
2. The applicants also complain under Article 8 of the Convention that the restriction was not “prescribed by law” (i) the composition of the Constitutional Court was incorrect and in breach of the Constitution, since Judges J.A.P., M.M. and J.W., assigned to the bench, had been elected by the Sejm to already filled judicial posts; (ii) the appointment of Judge J.P., the President of Constitutional Court, who presided in the present case is also open to challenge (iii) Judge K.P. who sat in the case, was not impartial since she had previously been an MP in favour of restricting abortion laws in Poland and in that capacity she had signed the request in 2017 (to declare abortion on grounds of foetal abnormalities as incompatible with the Constitution) which had been worded similarly as the request of 2019.
3. The applicants further claim to be potential victims of a breach of Article 3 of the Convention. The prospect of being forced to give birth to an ill or dead child causes them anguish and distress. They stress that they are worried and afraid to get pregnant. The Constitutional Court’s judgment deprives them of the possibility to terminate pregnancy on the ground of foetal defects. The obligation to carry the child to term, even in a situation when the foetus is shown to be defective, causes them suffering, stress, humiliation, feelings of helplessness and other, difficult to predict, consequences to their mental and physical health.
QUESTIONS TO THE PARTIES
1. Can the applicants claim to be victims of a violation of their rights under Article 8 and/or Article 3 of the Convention (see, S.A.S. v. France [GC], no. 43835/11, ECHR 2014 (extracts))?
2. In the particular circumstances of each applicant’s case, has there been an interference with their rights under Article 8 of the Convention on account of the restrictions imposed by the Constitutional Court’s judgment of 22 October 2020 ( K1/20) with respect to legal abortion on the ground of foetal defects?
3. If so, was that interference justified in terms of Article 8 § 2?
a) In particular, was the impugned interference “in accordance with the law”, having regard to the applicants’ argument (i) that the bench of the Constitutional Court that gave the contested ruling included judges appointed to that court in the allegedly unlawful manner, (ii) that the appointment of the President of the Constitutional Court, judge J.P. presiding over the bench, was defective (see, mutatis mutandis - in the context of Article 6 § 1 of the Convention - Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020 and Xero Flor w Polsce sp. z o.o. v. Poland. no. 4907/18, judgment of 7 May 2021, §§ 243-291) and (iii) that judge K.P. lacked impartiality?
b) In the affirmative, was the interference “necessary in a democratic society”?
4. Alternatively, has there been a breach of the State’s positive obligations under Article 8 of the Convention (compare Tysiąc v. Poland, no. 5410/03, § 107, ECHR 2007‑I)?
5. Does any issue arise under Article 3 of the Convention?
APPENDIX
No.
Application no.
Case name
Lodged on
1.
1819/21
K.B. v. Poland
23/12/2020
2.
3682/21
A.K. v. Poland
08/01/2021
3.
4957/21
E.P. v. Poland
08/01/2021
4.
6217/21
M.O.- M. v. Poland
08/01/2021
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