Published on 4 July 2022
FIRST SECTION
Application no. 57338/21
I.Z. against Poland
and 4 other applications
(see list appended)
communicated on 13 June 2022
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
Background to the casesThe facts of the cases, as submitted by the applicants, may be summarised as follows.
Proceedings before the Constitutional Court(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 Sejm.
(b) Judgment of 22 October 2020
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.
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
Composition of the Constitutional CourtThe applicant submits 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).
Street protestsThe 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 applicant, 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
The circumstances of the present casesApplication no. 57338/21The applicant submits that she became pregnant at the beginning of 2021. She underwent a number of medical tests which determined that the foetus was affected with Trisomy 21.
Since the applicant was not entitled to legal abortion in Poland she travelled to the Czech Republic. The procedure was carried out in a private clinic in Ostrava on 26 May 2021. The applicant was fourteen weeks pregnant at that time.
She submits that the medical fees in the Czech Republic (including Covid testing) amounted to 782 Euros (“EUR”), she also had to pay about EUR 1,205 for the costs of medical testing in Poland (in private facilities).
Application no 60699/21The applicant became pregnant in 2021. She submits that it was a planned and desired pregnancy. In May 2021 she underwent a number of medical tests which disclosed that the foetus was affected with Trisomy 20.
As the applicant was not entitled to an abortion in Poland on the ground of foetal malformation she travelled to Spain. The procedure was carried out in a private clinic in Madrid on 27 May 2021. The applicant was twenty one weeks pregnant at that time.
The applicant submits that her transportation and medical fees amounted to EUR 3,653.
Application no. 646/22The applicant has one child. She became pregnant again in 2021. She underwent a number of medical tests which determined that the foetus suffered from cerebellar hypoplasia. This congenital malformation could not be treated.
The applicant decided to travel to Czech Republic to undergo an abortion. The procedure was carried out in a private clinic in Ostrava on 20 July 2021. The applicant was twenty two weeks pregnant at that time.
The applicant submits that her medical fees amounted to nearly EUR 375.
Application 1255/22The applicant has one child. She became pregnant again in 2021. She underwent several medical tests in the Cracow University Hospital which determined that the foetus was affected by Trisomy 18 (Edwards syndrome).
As she could not have had a legal abortion in Poland she travelled to the Netherlands. The procedure was carried out in a clinic in Heemstede on 25 June 2021.
The applicant submits that her medical fees amounted to EUR 850.
Application 8179/22The applicant became pregnant at the beginning of 2021. She underwent several medical tests in the Orlowski Hospital in Warsaw which determined that the foetus was affected by Trisomy 18 (Edwards syndrome).
As she could not have had a legal abortion in Poland she contacted an NGO “Abortion Without Borders”, which helped her to organise a trip to the Netherlands. The procedure was carried out in a clinic in Heemstede on 29 July 2021. The applicant was eighteen weeks pregnant at that time.
The applicant submits that her medical fees amounted to EUR 600.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
The 1993 ActUntil 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 ActTermination 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 CourtThe 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) and in the Court’s judgment in the case of Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 4-63, 7 May 2021.
COMPLAINTS
1. The applicant claims that she is a victim of a breach of Article 3 of the Convention. The Constitutional Court’s judgment deprived her of the possibility to terminate pregnancy on the ground of foetal defects. She was in fact forced to choose between maintaining pregnancy and giving birth to an ill child or travelling abroad to undergo an abortion. She submits that travelling abroad for an abortion was psychologically arduous as well as financially burdensome. This situation caused her suffering, stress, humiliation, feelings of helplessness and other, difficult to predict, consequences to her mental and physical health.
2. The applicant also complains that she is a victim of a breach of Article 8 of the Convention. As a direct consequence of the Constitutional Court’s judgment she was forced to maintain pregnancy and give birth to an ill child. She could no longer have an abortion on the ground of foetal defects and had to travel abroad to undergo the termination.
3. The applicant also complains invoking Articles 6 and 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.
QUESTIONS TO THE PARTIES
(For all cases)
1. In the particular circumstances of the applicant’s case, has there been an interference with her 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?
2. 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 applicant’s 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. o.o. v. Poland no. 4907/18, 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”?
3. 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 and A, B and C v. Ireland [GC], no. 25579/05, §§ 244‑268, ECHR 2010)?
4. Does any issue arise under Article 3 of the Convention?
APPENDIX
No.
Application no.
Case name
Lodged on
Represented by
1.
57338/21
I.Z. v. Poland
13/11/2021
Monika GĄSIOROWSKA
2.
60699/21
A.K. v. Poland
27/11/2021
Kamila FERENC
3.
646/22
B.H. v. Poland
18/12/2021
Monika GĄSIOROWSKA
4.
1255/22
B.W. v. Poland
13/12/2021
Monika GĄSIOROWSKA
5.
8179/22
J.S. v. Poland
29/01/2022
Monika GĄSIOROWSKA