Information Note on the Court’s case-law 253
July 2021
K.B. v. Poland (communicated case) - 1819/21, 3682/21, 4957/21 et al.
Article 8
Article 8-1
Respect for family life
Respect for private life
Statutory provision for abortion in the case of foetal abnormalities declared unconstitutional by the Polish Constitutional Court: communicated
[This summary also covers the communicated cases K.C. v. Poland, nos. 3639/21 et al. and A.L.–B. v. Poland, nos. 3801/21 et al., 1 July 2021]
The Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act 1993 provided for the possibility of legal abortion in the case of foetal abnormalities. In 2017, a group of parliamentarians unsuccessfully applied to the Constitutional Court to have the relevant provision declared unconstitutional. A similar application was subsequently lodged by a group of parliamentarians in 2019 and, in October 2020, the Constitutional Court held that the provision was incompatible with the Constitution. The judgment came into force in January 2021, after the present applications with the Court had been lodged.
The applicants – Polish nationals – allege that, following the delivery of the judgment, certain hospitals refused to perform abortions in cases with foetal abnormalities. They also make individual submissions as to their personal circumstances.
They complain in particular that they are potential victims of a breach of Article 8, since the domestic law obliges them to adapt their conduct: if pregnant, they are obliged to carry the foetus to term even in a situation when the foetus is shown to be defective. They also complain that the restriction was not “prescribed by law”, as the Constitutional Court was irregularly composed, given that three members had been elected in breach of the Constitution, and the appointment of the President of the Constitutional Court, who presided in the present case, was open to challenge (see Xero Flor w Polsce sp. z o.o. v. Poland); and that one of the sitting judges was not impartial, since she had been involved in the previous case as a party, while a member of parliament. The applicants further complain that they are the potential victims of a breach of Article 3, in the light of the distress caused by the prospect of being forced to give birth to an ill or dead child.
Communicated under Articles 3 and 8 of the Convention.
(See also Xero Flor w Polsce sp. z o.o. v. Poland, 4907/18, 7 May 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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