Judment 40119/21

Applicant name M.L.
Applicant type Natural person
Number of applicants 1
Country Poland
Application no. 40119/21
Date 14/12/2023
Judges Alena Poláčková, President,
 Krzysztof Wojtyczek,
 Péter Paczolay,
 Ivana Jelić,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Unlawfull
Type of privacy Bodily privacy
Keywords Abortion
Facts of the case The Court finds it necessary to clarify the scope of the case, together with the provisions under which the complaints are to be examined. The applicant firstly claimed that she had been a victim of a breach of Article 3 ECHR, as the Constitutional Court’s judgment had deprived her of the opportunity to terminate her pregnancy on the grounds of foetal defects. Secondly, she alleged that there had been a breach of Article 8 of the Convention. She submitted that as a direct consequence of the Constitutional Court’s judgment, she had been under an obligation to maintain her pregnancy and give birth to a seriously ill child. She had not been able to have an abortion on the grounds of foetal defects, and had had to travel abroad to have a termination. Thirdly, invoking Articles 6 and 8 of the Convention, the applicant specifically alleged that the restriction had not been “prescribed by law”: (i) the composition of the Constitutional Court had been incorrect and in breach of the Constitution, since Judges J. Piskorski, M. Muszyński and J. Wyrembak, assigned to the bench, had been elected by the Sejm to judicial posts which had already been filled; (ii) the appointment of Judge J. Przyłębska, the President of Constitutional Court, who had presided over the present case, was also open to challenge; and (iii) Judge K. Pawłowicz, who had sat in the case, had not been impartial, since she had previously been a member of parliament in favour of restricting abortion laws in Poland. In the Court’s view, the applicant’s complaints must be examined solely under Articles 3 and 8 of the Convention. However, because the impact on applicant’s interests was not sufficiently high, the Court dismisses the claim with respect to Article 3 ECHR.  
Analysis As to the objection of the government ratione materiae, the Court observes that the applicant was informed that the child she was carrying had a genetic disorder. After the Constitutional Court’s judgment took effect, it was impossible for the applicant to obtain an abortion, which is why she was forced to travel abroad to terminate the pregnancy. While Article 8 cannot be interpreted as conferring a right to abortion, the Court finds that the prohibition of abortion in Poland on the grounds of foetal malformation, where abortion is sought for reasons of health and well-being, comes within the scope of the applicant’s right to respect for her private life, and accordingly Article 8 applies in the present case.

As to the objection ratione personae, the Court reiterates that it does not allow complaints in abstracto, nor an actio popularis, meaning that applicants may not complain about a provision of domestic law, a domestic practice or public acts simply because they appear to contravene the Convention. However, an individual may nevertheless argue that a law breaches his or her rights in the absence of a specific instance of enforcement, and thus claim to be a “victim”, if he or she is required either to modify his or her conduct or risk being prosecuted, or if he or she is a member of a category of persons who risk being directly affected by the legislation. In the present case, the applicant maintained that she had been directly affected by the changes to the legislative framework, since she had had to modify her conduct in the most intimate sphere of her personal life. The Court accepts the applicant’s argument that this caused her pain and suffering and had a significant psychological impact on her.

The Court observes that the applicant’s grievances essentially concerned the argument that the prohibition in Poland of abortion on the grounds of foetal defects, where an abortion was sought for health and/or well‑being reasons, had disproportionately restricted her right to respect for her private life. Thus, the Court considers it appropriate to analyse this complaint as one concerning negative obligations.

The Court finds that the interference with the applicant’s rights cannot be regarded as lawful in terms of Article 8 of the Convention because it was not issued by a body compatible with the rule of law requirements. Furthermore, the circumstances of the present case disclose the lack of foreseeability required under Article 8 of the Convention, given that the Constitutional Court’s ruling interfered with the medical procedure for which the applicant had qualified and which had already been put in motion, thus creating a situation where she was deprived of the proper safeguards against arbitrariness.

Some judges concur, but feel that ARticle 3 ECHR should have been considred, others dissent, pointing to the wide margin of appreciation for states with respect to Article 8 ECHR in this instance and because they believe the constitutional court was a lawfull body.
Other Article violation? No
Damage awarded hat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,004 (one thousand four euros) plus any tax that may be chargeable, in respect of pecuniary damage;
Documents Judgment