Abortion and rape, Poland and the ECHR

The seemingly-random operation of Poland’s abortion laws has come before the ECtHR yet again. In P and S v Poland 57375/08 HEJUD [2012] ECHR 1853 (30 October 2012) the applicants were a daughter and mother resident in Lublin. In 2008, aged fourteen, P was raped and became pregnant. In order to have an abortion, as required by the Law on Family Planning 1993 she obtained a certificate from the public prosecutor that her pregnancy had resulted from unlawful sexual intercourse.

The applicants complained that from then on they encountered considerable difficulties in obtaining access to an abortion, partly because of contradictory and inaccurate information from two public hospitals in Lublin about what conditions, if any, had to be complied with and partly because of general obstructiveness and lack of cooperation.

The head of the gynaecology ward of one of the Lublin hospitals took P to see a Roman Catholic priest without first consulting her: it became clear that the priest had already been informed about the pregnancy and the purpose of the exercise was to persuade her to carry the pregnancy to term. It should be remembered that the informal links between the Roman Catholic Church and the Polish State are unusually strong, not least because during the Communist era the Church was often the only organised opposition to the regime and Lech Wałęsa, the co-founder of Solidarity (Solidarność) was and is a devout Roman Catholic.

Ultimately, after an argument with S, the girl’s mother, the head gynaecologist refused on grounds of conscience to allow the abortion to be performed in her ward. the Lublin hospital also issued an anonymised press release about P’s case. Futhermore, on 1 July the Lublin District Court instituted proceedings against P on suspicion that she had committed a criminal offence punishable under Article 200§1 of the Criminal Code: sexual intercourse with a minor under 15 years of age.

P and S subsequently travelled to Warsaw, where P was admitted to hospital on 3 June 2008. She was informed there that she could have an abortion on the basis of the certificate issued by the prosecutor and a medical certificate issued by the national consultant in gynaecology but that she would have to wait three days before the termination could take place. In the meantime, a doctor told her that the hospital was under pressure not to perform the abortion and had received lots of critical e-mails. She also got text messages from the priest who had talked to her previously, trying to get her to change her mind. Feeling manipulated and helpless, P and S left the hospital on 5 June. They were harassed by anti-abortion activists and were eventually taken to a police station where they were questioned for several hours. On the same day, the police were told that the Lublin Family Court had decided to place P in a juvenile shelter as an interim measure in proceedings to divest S of her parental rights. The police took P to a juvenile shelter in Lublin from which she was transferred to hospital for a week.

After complaining to the Ministry of Health, S was eventually told that P could undergo an abortion in Gdańsk, approximately 500 kilometres from their home in Lublin: the abortion was carried out on 17 June.

Finally, on 25 September P was summoned to court in Lublin for questioning but in November the proceedings were dropped after the court held that she was the victim of a criminal offence, not the perpetrator.

At Strasbourg the applicants made a series of complaints about breaches of the ECHR:

  • that the absence of a legal framework guaranteeing P’s timely and unhindered access to termination under the conditions set out by the applicable laws and the authorities’ breach of confidentiality about her case violated Article 8 (private and family life);
  • that P’s removal from the custody of her mother to a juvenile shelter and later a hospital had violated Article 5 § 1 (liberty and security); and
  • that the conduct of the affair as a whole amounted to a contravention of Article 3 (inhuman or degrading treatment).

The Fourth Section (De Gaetano J dissenting in part) noted the right of physicians under Article 9 ECHR to refuse certain services on grounds of conscience. However, the Court pointed out that states parties were obliged to ensure that patients could obtain access to the health services to which they were entitled by law. Polish law provided in principle for mechanisms to reconcile doctors’ conscientious objections with patients’ interests by obliging a doctor who objected to refer the patient to another doctor who did not; but those requirements had not been met in P’s case. The medical staff had not considered themselves obliged to carry out the requested abortion, they had given P and S misleading and contradictory information and had not given them objective medical counselling.

Furthermore, it had not been shown that Polish law allowed for S’s concerns to be properly addressed in a way that would respect her views and attitudes and balance them in a fair and respectful manner against the interests of her pregnant daughter. While legal guardianship could not be considered to give the parents of a minor an automatic right to take decisions about the minor’s reproductive choices, it could not be overlooked that the interests and life prospects of the mother of a pregnant minor girl were also involved in the decision whether or not to carry the pregnancy to term.

The Court had already held in Tysiąc v Poland [2007] ECHR 5410/03 (20 March 2007) that the provisions of civil law as applied by the Polish courts did not enable a pregnant woman seeking an abortion fully to vindicate her right to respect for her private life – and there were no grounds for a different conclusion in P’s case. Effective access to reliable information on lawful abortion and the procedures to be followed was directly relevant to the exercise of personal autonomy: moreover, the time factor was critical. The uncertainty faced by P, despite the fact that she had a right to lawful termination under the 1993 Family Planning Act, therefore amounted to a violation of Article 8.

As to the disclosure of the applicants’ personal data, the Lublin hospital had issued a press release about P’s case and while it had not identified P or S, it gave enough information to make it possible for third parties to establish their whereabouts because P had been contacted by various people urging her to abandon the abortion. The fact that P had herself texted a friend about her situation could not be equated with the intention to disclose that information to the public. The press release also had interfered with her rights under Article 8: the fact the availability of legal abortion in Poland was the subject of heated debate did not absolve the medical staff from their professional obligation of confidentiality.

The Court also found a violation of Article 5§1, in particular that P had been put in a juvenile shelter in order to separate her from her parents and prevent the abortion. what had happened could not be justified as detention of a minor for the purpose of educational supervision within the meaning of Article 5§1(d). Had the courts been concerned that an abortion would be carried out against P’s will they should have considered less drastic measures than locking up a fourteen-year-old girl – but they did not.

Finally, P’s treatment had been inhuman and degrading. According to the medical certificate issued after the rape, she had been subjected to physical force – and she had been only fourteen at the time. Though she had been very vulnerable when admitted to hospital, pressure had been put on her and on her mother not to go through with an abortion. Furthermore, when P had been harassed, instead of being protected by the police she had been put in a juvenile shelter. The Fourth Section was particularly struck by the fact that the authorities had instituted criminal proceedings on charges of unlawful intercourse against her when, according to the prosecutor’s certificate and the forensic findings, she should have been considered to be a victim of sexual abuse. The cumulative effects of all this, combined with the authorities’ procrastination and lack of objective counselling and P’s separation from her mother, amounted to a violation of Article 3.

Comment: The majority judgment has one or two rather strange features that were picked up by the Maltese judge, Vincent De Gaetano, in his partial dissent. The majority had found a violation of Article 8 “as regards the determination of access to lawful abortion in respect of both applicants” – but neither the Convention nor Article 8 conferred a right to abortion as such:

“The issue was in this case – as it was in many other cases – one of regulatory frameworks and procedural mechanisms: in essence, how to enforce a ‘right’ granted by domestic law in the face of opposition, direct or oblique, from public authorities. The issue should therefore have been examined under Article 6. Invoking Article 8 in such cases not only distorts the true meaning of ‘private life’, but ignores the most fundamental of values underpinning the Convention, namely the value of life, of which the unborn child is the carrier” (partially dissenting judgment paragraph 1).

Nor could De Gaetano J understand how the majority had found a violation of Article 8 in respect of S, the mother, taking issue with the statement in paragraph 109 of the majority judgment that “it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not”.

As to the violation of Article 3, however – on which he voted with the majority – De Gaetano J was, if anything, even more scathing than his colleagues. The affair

“… should never have been allowed to degenerate, as happened in the instant case, into trickery, deceit and the emotional manipulation of a vulnerable person, which constitute an abuse of the dignity of the person. While the reluctance, indeed refusal, of some of the doctors to perform the abortion was understandable and was within their right to conscientious objection, the authorities’ overall handling of the case was at best shambolic and at worst disgraceful. The violation of Article 3 stems not from the simple fact that some people (including the priest) tried to persuade the first applicant not to have an abortion but because of the way they went about it, coupled with the publicity that was given by the authorities to the case, their disclosure of confidential information and their illegal arrest of the first applicant. Indeed, instead of being treated as a victim of rape and as person in need of help, she was treated as a criminal. Her parents fared only slightly better” (partially dissenting judgment paragraph 3).

Further comment is unnecessary.

Cite this article as: Frank Cranmer, "Abortion and rape, Poland and the ECHR" in Law & Religion UK, 4 November 2012, https://lawandreligionuk.com/2012/11/04/abortion-and-rape-poland-and-the-echr/

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