Wyrok Trybunału Konstytucyjnego (K 1/20) praktycznie zakazujący aborcji osądzi 14 grudnia Europejski Trybunał Praw Człowieka (ang.)

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14 grudnia przed Europejskim Trybunałem Praw Człowieka stanie wyrok polskiego Trybunału Konstytucyjnego z 22 października 2020 roku (K 1/20).

Skarżąca zaszła w ciążę w 2020 r. i po około czternastu tygodniach stwierdzono, że płód jest obciążony zespołem Trisomia 21 (zespół Downa). Nie mogąc dokonać aborcji w Polsce, skarżąca ostatecznie musiała udać się do prywatnej kliniki w Holandii, aby tam poddać się zabiegowi.
Pani ML skarży państwo polskie o złamanie artykułu 3 (zakaz nieludzkiego i poniżającego traktowania) oraz artykułu 8 (prawo do poszanowanie życia prywatnego i rodzinnego) Europejskiej Konwencji Praw Człowieka. Także, według skarżącej, sędziowie, których orzeczenie z dnia wprowadziło przedmiotowe ograniczenie, zostali powołani w postępowaniu sprzecznym z art. 6 (prawo do rzetelnego procesu sądowego). Chodzi o sędziów-dublerów.

Opis sprawy w zbiorze HUDOC:

FIRST SECTION

Application no. 40119/21
M.L.
against Poland
lodged on 26 July 2021
communicated on 8 October 2021

STATEMENT OF FACTS

The applicant, Ms M. L., is a Polish national, who was born in 1985 and lives in Warsaw. She is represented before the Court by Ms A. Bzdyń and Ms K. Ferenc, lawyers practising in Warsaw.

  1. Background to the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

  1. 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. 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

  1. Composition of the Constitutional Court

The 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).

  1. 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 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

  1. The circumstances of the present case

The applicant submits that she became pregnant in 2020. On 12 January and 20 January 2021, when she was respectively fourteen and fifteen weeks pregnant, the applicant underwent medical tests which determined that the child she was carrying suffered from Trisomy 21.

On 25 January 2021, doctor L.K., a professor in medical genetics, gave an opinion and confirmed that the foetus suffered from Trisomy 21.

On 26 January 2021 the applicant was examined by three medical practitioners from Bielański Hospital in Warsaw who stated that the foetus’ condition qualified the applicant for an abortion under section 4a (1) 2 of the 1993 Act. The procedure was to be carried out in the same hospital and the applicant obtained a referral for 28 January 2021.

However, on 27 January 2021 the Constitutional Court’s judgment of 22 October 2020 entered into force (see above 1 (b)). On the same day, the applicant received information from the hospital that she should not come for her appointment as all scheduled abortions had been cancelled.

The applicant travelled to the Netherlands where the procedure was carried out in a private clinic on 29 January 2021. She submits that her transportation and medical fees amounted to 1,220 Euros.

  1. Relevant domestic law and practice
    1. The 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.”

  1. 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.

  1.  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 (CDLAD(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

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?

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