The European Court of Human Rights held that the applications filed by eight Polish citizens arguing that the restriction of access to legal abortion means that the Constitutional Tribunal’s ruling of October 2020 cannot be interpreted as a confirmation of the compliance of the current legal situation in Poland with the European Convention on Human Rights are inadmissible. This is because it is of a formal nature – the European Court of Human Rights did not refer to the problem of admissibility or inadmissibility of depriving women of access to abortion in the event of foetal damage, but accepted that the applications were inadmissible because the women who filed them were not ‘victims’ in the meaning of the ECHR.

 

Background of the case

 

In the ruling of 22 October 2020, the Constitutional Tribunal held that the provisions of the Act on family planning, protection of the human foetus and the conditions of admissibility of abortion are unconstitutional to the extent to which they admit that abortion is legal in the event of ‘a high probability of severe and irreversible impairment of the foetus or an incurable life-threatening disease’. The ruling incited considerable and justified controversy – this is because the Tribunal not only adjudicated in a bench which contained people elected as judges of the Constitutional Tribunal in breach of the law, but also completely ignored women’s rights, including their right to the protection of their health and dignity.

 

Applications from Polish women who felt that their rights could be breached as a result of the restriction of access to legal abortion started to flow into the European Court of Human Rights shortly after the Constitutional Tribunal announced its ruling in this case. The European Court of Human Rights reported in July 2021 that the number of such applications is already more than 1,000. While all of these applications were based on similar allegations related to breaches of Article 8 (unlawfulness and disproportionate interference with privacy) and Article 3 of the European Convention on Human Rights (inhuman or degrading treatment), there were significant differences between their actual situations.

 

Some of the applicants were not yet pregnant at the time their applications were filed. However, they argued that the mere restriction of access to abortion after the Constitutional Tribunal’s judgment constituted a breach of their rights. Other applicants were also not pregnant at the time their application was filed with the ECtHR, but argued that they had a higher risk of foetal damage because of health problems (their own or those of their partners). Another group of applicants were pregnant at the time the application was filed, but had not yet been informed of any possible foetal defects.

 

A separate category are applications filed by women who were pregnant at the time the application was filed and who had already been informed about foetal damage as a result of which they went abroad to have an abortion. In some cases, the trip abroad was preceded by a refusal to perform an abortion by a hospital in Poland because of the change in the legal situation.

 

The European Court of Human Rights also noticed differences in the facts of the individual cases. This is because, when it communicated the matters to the Polish government, it divided them into 6 groups more or less corresponding to the descriptions presented above.

 

 

Status of a victim

 

The main issue that the European Court of Human Rights had to resolve in these proceedings was whether the applicants could be considered ‘victims’ in the meaning of the European Convention on Human Rights.

 

The general rule in proceedings before the ECtHR is that only a victim, namely a person whose rights guaranteed by the European Charter of Human Rights have been breached, can file an application. Therefore, an application to the ECtHR is not an actio popularis, namely a common complaint that anyone who disagrees with a specific regulation can file.

 

This is because we need to demonstrate that we, as applicants, have become victims of this regulation.

 

Therefore, the allegations must be sufficiently specified and must refer to the applicant’s situation.

 

The status of the victim is not in doubt in many cases. If our case is examined by a defectively appointed judge – we may be considered a direct ‘victim’ of a breach of Article 6 of the European Convention on Human Rights. Similarly, if we are in pre-trial detention for too long, we may be considered direct victims of a breach of Article 5 of the European Convention on Human Rights. However, it is also sometimes admissible to file an application through an indirect victim, namely by a person who was not directly affected by the State’s action, but was closely related to the direct victim, who is most often dead or missing.

 

In certain cases, the European Court of Human Rights also accepts the concept of so-called potential victims. A good example of this structure is the case of Dudgeon v United Kingdom. It applied to the laws penalizing homosexual relations in Northern Ireland back in the 1980s. However, in practice, these provisions were very rarely applied. A man filed an application with the ECtHR after he was summoned to the police and questioned, but no criminal proceedings were ultimately initiated in his case. Even so, he argued that the mere fact that such provisions were applicable breached his rights. The ECtHR accepted that the applicant could be considered a victim. The regulations had a direct impact on his situation: in deciding to have sexual intercourse with another man, he was exposing himself to criminal liability.

 

Under certain conditions, the European Court of Human Rights also refers the structure of ‘potential victim’, to cases of wiretapping if domestic law does not provide an effective remedy for a person who suspects that he has been subjected to such activities (Zakharov v Russia). On the side-line, it is worth noting that one of the most important problems that the ECtHR will have to address in the near future is the matter of the status of the victim in cases involving human rights violations arising from the effects of climate change.

 

 

Decision of the ECtHR

The decision of the ECtHR applied to eight cases that can be included in the first or third of the groups referred to above. The six applicants were not pregnant at the time their applications were filed. Two of them referred to their health problems. In turn, two applicants were pregnant, but there was no information about any irregularities in those pregnancies.

 

The applicants based their allegations on the structure of a potential victim. They pointed out that, although they are not directly being denied access to abortion because of foetal defects, the mere applicability of the restrictive regulations has a negative impact on their rights. As women of reproductive age, they fall into the group of women who are subject to the said legal regulations. The restriction of access to abortion affects their behaviour and choices regarding reproduction, which is the most intimate part of human privacy.

 

Of course, the government disagreed with such arguments, claiming that the allegations raised in the applications were purely hypothetical.

 

Furthermore, according to the government, the right to abortion does not arise from the European Convention on Human Rights.

 

The European Court of Human Rights pointed out that it is only in exceptional cases that a person can be considered a victim if that person is in a situation posing a threat to his rights in the future. In this respect, the ECtHR decided to distinguish the applications of the Polish citizens from the Open Door and Dublin Well Woman v Ireland case. The latter applied to the national court’s prohibition of the dissemination by non-governmental organizations (NGOs) of information on the possibility of gaining access to abortion. The ECtHR held that the victims of interference with freedom of expression were both NGOs, with respect to which such an order had been issued, and women of reproductive age, who had been deprived of access to information on the availability of abortion by the order.

 

According to the ECtHR, in the Irish case, there was no doubt that the court order restricted the right of women to obtain information. Meanwhile, in the Polish case, the applicants questioned the very repeal of one of the conditions of the legality of abortion. However, according to the ECtHR, a change in the legal status is insufficient in this case to consider the complaint to be admissible. In order to be able to apply as victims, applicants would have to provide ‘reasonable and convincing’ evidence of the probability of breaches affecting them personally.

 

According to the ECtHR, the applicants had not presented such evidence.

 

According to the Court, two women who pointed out that they were more at risk of foetal damage because of their health problems did not submit medical documents confirming this information. Two further applicants were actually pregnant, but they did not report any damage or risk to the foetus during the proceedings. In turn, the last group of applicants formulated only general allegations, referring to stress and anxiety after the entry into force of the legal changes arising from the Constitutional Tribunal’s ruling.

 

In turn, referring to the arguments regarding possible threats to life and health in connection with the restriction of access to legal abortion, the European Court of Human Rights pointed out that Polish law still allows for the termination of pregnancy in the event of a threat to the woman’s life or health.

 

Therefore, the Court held that the applicants had not demonstrated that they were directly affected by the effects of the legal changes arising from the Constitutional Tribunal’s ruling. These changes could affect them only hypothetically, and this is not enough to consider the applications admissible.

 

Consequences of the ECtHR’s ruling

 

The ECtHR’s ruling is not a big surprise.

 

The Court frequently takes a rather restrictive approach to assessing the admissibility of applications. In this case, to some extent, it was justified by the possible consequences of adopting a more liberal interpretation. This is because, if the Court found the complaints in question admissible, it would have to be accepted that, in principle, every woman of childbearing age in Poland could be considered a victim. Furthermore, the adoption of such an interpretation could also affect the examination of complaints in cases not related to abortion. After all, applicants could argue that, since it has been accepted in Polish cases that a person, who may only be affected in the future by the effects of unfavourable legal changes, may be a victim, then, likewise in other cases, not necessarily regarding abortion, it should be possible to raise the allegation of a breach of Convention rights in connection with the mere entry into force of certain regulations. Regardless of whether or not they have already been applied to a specific applicant. In turn, this could lead to the transformation of a complaint to the European Court of Human Rights into an actio popularis instrument, and therefore to the flooding of the Court with numerous applications based on hypothetical allegations.

 

From this point of view, it seems reasonable for the European Court of Human Rights to require that complaints regarding access to abortion in Poland after the ruling of the Constitutional Tribunal contain specific and individualized allegations of a breach of Convention rights. However, the question arises as to what this specification and individualization should look like and when the applicant could be considered a ‘victim’ in the meaning of the ECHR.

 

It appears that the situation of women who have been refused abortion in Poland in connection with the entry into force of the Constitutional Tribunal’s ruling seems to be the easiest to assess. This is because, in such a situation, this is the application of the legal changes in question to the specific and individual case. It is worth noting that all the cases examined by the European Court of Human Rights in the past regarding access to abortion in Poland, which ended with the finding of a breach of the Convention, applied to precisely the situation in which the specific applicant was denied access to an abortion. Therefore, in these cases, it could be acknowledged that the applicants are ‘victims’ in the meaning of the European Convention on Human Rights.

 

In my opinion, women who, although not having explicitly been denied access to abortion, but who had to travel abroad to have an abortion because of severe foetal abnormalities having been found, could also be considered victims. This is because, since it arises from the provisions of the law that abortion is prohibited in Poland in such cases, it is difficult to expect women to waste their time and expose themselves to stress and health problems by requesting the termination of their pregnancies in Poland only to receive a negative answer.

 

The situation of women, who have not yet become pregnant but have a greater risk of foetal damage because of their own or their partner’s health problems, is a little more complicated. However, I would not rule out the possibility that the status of a victim could also be awarded to the applicants in these cases. This is because para. 78 of the ECtHR’s decision states that a woman is required to present ‘reasonable and convincing evidence of the likelihood that a violation affecting her personally will occur’.

 

Therefore, the European Court of Human Rights refers here to the likelihood of future events, which means that it allows for the possibility of an application being filed by a person who has not yet been directly affected by the effects of the restrictions on access to abortion, but there are convincing arguments constituting evidence that such effects can take place in the future. It therefore seems that, if a woman were to present appropriate arguments, in particular medical opinions and medical documentation, demonstrating an increased risk of foetal damage, she could be considered a ‘potential victim’.

 

It can therefore be expected that at least some of the complaints submitted and communicated to date will be considered admissible ratione personae, i.e. submitted by people who have the status of ‘victims’. However, at this point, it is difficult to predict whether they will also be considered justified and whether the European Court of Human Rights will agree with the allegation of a breach of the European Convention on Human Rights in connection with the restrictions on access to abortion in Poland.

 

On the one hand, the existing case law of the Court in cases regarding access to abortion is quite restrained. The European Court of Human Rights acknowledges that the ‘right to abortion’ does not arise from the Convention and has never held that the inability to terminate a pregnancy in the case of severe foetal defects breaches the Convention. In most of the cases examined to date, the breach of the European Convention on Human Rights involved the lack of access to abortion in practice, even though national law allowed it in certain cases (such as in Tysiąc v Poland).

 

On the other hand, the European Court of Human Rights mentions that the refusal to perform an abortion in the case of a threat to the patient’s health, life or ‘well-being’ could fall within the scope of Article 8 ECHR (e.g. A, B and C v Ireland). The case law of the ECtHR is constantly evolving and it cannot be ruled out that the Court will make certain changes in its case law and impose more far-reaching obligations on States with regard to ensuring access to abortions.

 

Furthermore, regardless of the existing case law of the ECtHR, it is worth noting that, in Polish cases, there is an additional circumstance that may be important to the Court’s decision. This is because the restriction of access to abortion was introduced by a ruling of the Constitutional Tribunal issued in breach of the Constitution.

 

It can therefore be reasonably argued that this is interference with privacy which has been conducted unlawfully.

 

Or perhaps the UN?

 

The fact that I am not criticizing the ECtHR’s dismissal of the group of complaints in question does not mean, of course, that I am negative about them having been submitted. On the contrary, the legal changes arising from the Constitutional Tribunal’s ruling pose a real threat to women’s rights in Poland and it was reasonable to take steps before international bodies. Strategic litigation, understood as handling court cases to obtain ground-breaking decisions contributing to the development and raising of human rights standards, always carries the risk of failure – this is because obvious cases are rarely ground-breaking.

 

However, the risk of failure does not mean that it is not worth taking such steps at all.

 

Women affected by the consequences of the Constitutional Tribunal’s ruling may also consider taking steps before UN bodies, the judgments of which on access to abortion are more liberal than those of the ECtHR. First, an individual notice can be submitted to the Committee on Human Rights. In 2016, this body issued a very important ruling in Mellet v Ireland, in which it held that the inability of a woman to obtain an abortion in Ireland in the event of severe foetal damage and the related need to travel abroad to conduct the procedure breached the provisions of the International Covenant on Civil and Political Rights, including Article 7 (the prohibition of cruel, inhuman and degrading treatment) and Article 17 (the right to privacy).

 

The next body that can be approached with a notice is the Committee on the Elimination of Discrimination against Women, operating on the basis of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In the past, it considered cases regarding restrictions on access to abortion and regularly calls on States to liberalize the rules on legality. In 2014, it issued a statement that States should legalize abortion at least in the case of threats to the woman’s life or health, serious foetal damage, or when the pregnancy is a result of rape or incest.

 

Neither of these UN bodies is particularly popular in Poland. This is evidenced by the fact that the CEDAW Committee has not issued a single substantive decision in Polish cases to date, but only two decisions on the fact that it is inadmissible to file a notice. This may be, among other things, because, unlike the ECtHR, the UN committees do not issue judgments imposing a clear obligation on States to pay an applicant whose rights have been breached a specific amount of money as compensation or redress. Instead, they formulate certain recommendations of an individual nature (which may include, for instance, the payment of compensation to the victims of breaches, but without specifying their amount) and of a general nature.

 

However, his does not mean that they can be completely ignored – special mechanisms have been introduced in some countries in order to implement the decisions of UN bodies at national level. The Spanish Supreme Court stated in 2018 that the decisions of the CEDAW Committee are binding and can constitute grounds for formulating claims for damages against the State. Therefore, it cannot be ruled out that, likewise in Poland, more frequent use of UN mechanisms could lead to the implementation of the decisions of these bodies.

 

Translated by Roman Wojtasz