FIRST SECTION

DECISION

Application no. 67171/17 B.B. against Poland

The European Court of Human Rights (First Section), sitting on 18 October 2022 as a Chamber composed of:

Marko Bošnjak , President,

Péter Paczolay ,

Krzysztof Wojtyczek ,

Alena Poláčková ,

Erik Wennerström ,

Raffaele Sabato ,

Davor Derenčinović , judges, and Renata Degener, Section Registrar,

Having regard to the application lodged on 21 August 2017,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having regard to the observations submitted by the Polish Government (“the Government”) and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the Polish Commissioner for Human Rights, Center for Reproductive Rights, European Centre for Law and Justice (ECLJ), Federation for Women and Family Planning, Helsinki Foundation for Human Rights and Ordo Iuris,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms B.B., is a Polish national who was born in 1976 and lives in X. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms A. Bzdyń and Ms M. Gąsiorowska , lawyers practising in Warsaw.

2. The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.

The circumstances of the case

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

4. The applicant became pregnant at the end of 2013. The date of birth was expected to be 2 August 2014. On 23 January 2014 she underwent a prenatal examination in the thirteenth week of pregnancy which did not show any foetal abnormalities.

5. On 27 and/or 28 March 2014 the applicant underwent a prenatal examination during the twenty-first week of pregnancy, which showed that the foetus had many serious abnormalities. Dr M.G. from the Warsaw Holy Family Specialist Hospital ( Szpital Specjalistyczny im. Świętej Rodziny – hereinafter “the hospital”) informed the applicant that on account of those abnormalities she could terminate the pregnancy. However, he did not inform the applicant about the details or deadlines for that procedure. The applicant was also informed that the director of the hospital, Prof. B.Ch., would be notified of her case.

6. On the same day the applicant was transferred to the Pregnancy Pathology Ward of the Warsaw Mother and Child Institute ( Oddział Patologii Ciąży Instytutu Matki i Dziecka – hereinafter “the Institute”). Further medical examinations were carried out, which confirmed the earlier diagnoses. The applicant was informed that she had a right to an early termination of the pregnancy owing to serious foetal abnormalities. The applicant declared that she wanted to have an abortion, but the Institute did not carry it out.

The applicant was transferred back to the hospital, where several other examinations were performed, including genetic tests. On several occasions she repeated her wish to have an abortion.

7. On 14 April 2014 a meeting took place between the applicant, Dr M.G., Prof. B.Ch. and the hospital’s Commissioner for Patients’ Rights ( Rzecznik Praw Pacjenta – hereinafter “the Commissioner”). Prof. B.Ch. tried to persuade her not to terminate the pregnancy and offered help with giving the baby up for adoption or placing it in an orphanage. On the same date the applicant signed a declaration at the hospital stating her wish to terminate the pregnancy and a request to have that procedure carried out there.

8. On 16 April 2014 Prof. B.Ch. handed the applicant a “refusal on the grounds of conscientious objection” for the abortion to be performed at the hospital, without giving her any information about any other facilities where the abortion could be carried out instead.

9. The applicant tried to obtain an abortion in another medical centre but was informed that the pregnancy was in its twenty-fourth week and that therefore abortion was no longer legal in her case.

10. On 30 June 2014 the applicant’s son was born by caesarean section in Bielany Hospital, in the thirty-fifth week of pregnancy, with multiple defects, in particular massive hydrocephalus and missing part of his skull. He received palliative care and died on 9 July 2014.

11. On 9 June 2014, during her pregnancy, the applicant lodged with the Commissioner a complaint concerning Prof. B.Ch.’s refusal to have the abortion carried out at the hospital. The Commissioner issued several decisions, establishing multiple breaches of Polish law in connection with her medical treatment and the fact that it had been impossible for her to have access to an abortion.

12. On 25 June 2014 the Commissioner established that the hospital had violated the applicant’s rights by not providing her with full medical information concerning the state of her health and that of her foetus and depriving her of the right to appeal against a medical certificate as none had been issued.

13. On 29 July 2014 the Commissioner further established that the applicant’s right to medical treatment and to access her medical file had also been violated by the hospital.

14. On 16 February 2015 the Commissioner established in proceedings conducted proprio motu that the applicant’s right to medical treatment had been violated in that she had not received adequate prenatal examinations in the period around the thirteenth week of pregnancy.

15. On 18 February 2015 the Commissioner established in proceedings conducted proprio motu that the applicant’s right to medical treatment had been violated by the Institute.

16. On 10 June 2014 the Democratic Left Alliance ( Sojusz Lewicy Demokratycznej ), a political party, lodged with the Warsaw-Mokotów district prosecutor’s office ( Prokurator Rejonowy ) a formal notice that an offence of exposure to danger and causing grievous bodily harm had been committed against the applicant on account of the refusal to carry out an abortion.

The applicant testified as a witness; she was represented in the proceedings by a lawyer of her choice.

17. On 30 April 2015 the prosecutor discontinued the proceedings. The applicant did not appeal against the decision.

18. On 30 May 2015 the Commissioner for Disciplinary Matters ( Naczelny Rzecznik Odpowiedzialności Zawodowej ) discontinued the disciplinary proceedings it had begun in the case concerning the refusal to perform the abortion in the hospital.

19 . On 26 August 2014 the Commissioner lodged a civil claim on behalf of the applicant against the hospital and its insurer, claiming compensation for non-pecuniary damage caused by violations of her rights to medical treatment, full medical information including prenatal testing and to lodge an appeal against a medical certificate.

20 . On 21 January 2015 the applicant and her husband joined the civil proceedings against the hospital, claiming compensation for non-pecuniary damage arising from a breach of their personal rights, specifically the “refusal to perform an abortion despite the detection of genetic defects in the foetus, and the failure to provide information about the possibility of performing the procedure in question in another medical facility, which in consequence led to the birth on 30 June 2014 of a child suffering from genetic disorders, who died on 10 July 2014”.

21 . On 27 April 2017 the Warsaw Regional Court ( Sąd Okręgowy ) discontinued all civil proceedings concerning the applicant because the parties had reached a settlement and the hospital had paid compensation. The hospital agreed to pay compensation for “pecuniary and non-pecuniary damage [resulting from] the infringement of [the applicant’s] personal rights and the infringement of the patient’s rights to health services referred to in [the Law of 7 January 1993 on family planning, protection of the human foetus and conditions permitting pregnancy termination (“the 1993 Act”)]”. The settlement also stated that the applicant and her husband “unanimously declare that they accept all the claims and terms of the Settlement and that the Settlement exhausts all their claims, both main and ancillary, arising in connection with the events [covered by the settlement]”. The applicant accepted the terms of the settlement and agreed to withdraw the civil claim and inform the Commissioner that she and her husband had waived all claims in respect of the events in question.

(a) Audit ordered by the Warsaw Municipal Office

22 . Between 10 June and 8 August 2014, an audit ordered by the Warsaw Municipal Office further to a complaint lodged by the applicant was carried out at the hospital.

23. The audit revealed numerous irregularities in the way patients’ medical records were stored and in the implementation of outdated internal procedures.

24. As regards the applicant’s case, the audit revealed that the applicant had not been informed of the date until which an abortion could have been legally carried out and which other hospitals could have carried out the procedure. It had not been necessary to wait for the genetic test results as the previous examination had clearly revealed serious abnormalities of the foetus. Lastly, the director of the hospital had not been entitled to refuse to carry out the abortion; only the attending doctor had had such a right. This negative assessment of Prof. B.Ch. resulted in his dismissal from the position of director of the hospital on 21 July 2014.

25. All recommendations indicated in the audit were implemented, as confirmed by the post-audit check in 2015.

(b) Audit ordered by the Minister of Health

26. Between 3 January and 3 June 2014, a second audit was carried out in the hospital, this one ordered by the Minister of Health. It was carried out by the National Consultant in the field of gynaecology and obstetrics ( Konsultant Krajowy ). The audit was to cover an “assessment of the correctness of all actions by the medical staff and adequacy of the diagnostic and therapeutic process applied to [the applicant]”. The post-audit statement included the following conclusions:

“1. prenatal tests had not been proposed to [the applicant], nor were they carried out, although they should be performed routinely in such clinical situations;

2. the examination carried out on 10 March 2014 was not performed diligently and was not analysed thoroughly ...;

3. although foetal abnormalities were established on 24 March 2014 the applicant was released from the hospital with a referral for further testing. This led to delays in the diagnostic process;

4. Prof. B.Ch. delayed the date of the visit which made it impossible to terminate the pregnancy within the legal time-limit;

5. the refusal by Prof. B.Ch. to indicate another doctor or medical centre willing to carry out the abortion violated the legal regulations then in force.”

27. Prof. B.Ch. appealed against the findings of the audit; his appeal was dismissed by the Minister of Health on 13 April 2015.

28 . The final post-audit statement included the following recommendations for the hospital:

“(1) absolute observance of the principles concerning the ordering and performance of prenatal tests in patients displaying the relevant medical indications;

(2) absolute observance of the provisions of the [relevant laws] concerning patients’ right to information, in particular as regards informing patients about the possibility and principles of prenatal tests and indicating the doctor or healthcare unit that can perform, in accordance with the law, terminations of pregnancy;

(3) in the case of hospital physicians’ invoking the so-called ‘conscience clauses’, absolute compliance with the obligation to indicate the possibility of obtaining such services from another physician or healthcare unit, and to justify and record this fact in medical documentation;

(4) absolute elimination of situations in which the period of medical examinations and consultations is unreasonably prolonged, which may cause the time-limit within which the termination of pregnancy may be lawfully carried out to be exceeded;

(5) increased supervision of the quality of diagnostic tests performed, in particular ultrasound examinations, while maintaining the principle that each description should be accompanied by a photograph, or other electronic medium; and recording in the medical records the examinations performed;

In making the above recommendation, I expect the Director, within thirty days from the date of receipt of this audit statement, to provide information on the manner of implementation of the recommendations, the use of the conclusions, and the actions taken in order to implement them or reasons for not taking them.”

COMPLAINTS

29. The applicant complained under Article 3 of the Convention that she had been subjected to inhuman and degrading treatment in that she had had to carry her pregnancy to term, to give birth, and to provide care to a severely, irreversibly and fatally ill child, in spite of her wish to have an abortion. The applicant further complained that the facts of the case showed deficiencies in access to legal abortion as she had not been informed of another facility willing to carry out the procedure. The applicant submitted that the facts of the case also amounted to a breach of Article 8 of the Convention alone and taken in conjunction with Articles 13 and 14 of the Convention.

THE LAW

30. The applicant complained that in 2014 she had been prevented from undergoing an abortion, which had been legally available in cases of serious and irreversible damage to the foetus. She relied mainly on Article 3 (prohibition of inhuman and degrading treatment), but also on Articles 13 and 14 of the Convention in respect of her rights guaranteed by Article 8, complaining that she had been forced to continue the pregnancy, to give birth to a severely malformed child and to witness his death.

The Court considers that the applicant’s complaints should be examined solely from the standpoint of Article 3, bearing in mind that the Court is master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).

Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

31. The Government raised three preliminary objections on the grounds of: non-exhaustion of the domestic remedies, the applicant’s lack of victim status, and abuse of the right of petition as she had applied to the Court after having received a substantial amount of money in a settlement in which she had waived all claims in respect of the events of the case.

32. The Government argued that the applicant had not allowed the domestic authorities to redress the violations alleged by her. Firstly, the applicant should have lodged an objection with the Medical Board at the Office of the Commissioner for Patients’ Rights directly after she had received the refusal of Prof. B.Ch. to perform the abortion at the hospital. Secondly, the applicant had failed to pursue criminal proceedings as she had not appealed against the decision of 30 April 2015 given by the Warsaw District Prosecutor to discontinue the investigation. At the time the applicant had been represented by a lawyer who had been duly served with the decision. Thirdly, the applicant had accepted a settlement with the hospital and withdrawn her civil claim relating to the facts of the case. The Government underlined that in the light of the domestic courts’ case-law, a civil action for protection of personal rights and seeking compensation for non-pecuniary damage had been an adequate remedy for issues relating to family planning and the right to undergo an abortion under the 1993 Act.

33. In the light of the above, the Government argued that the applicant could no longer claim to be a victim of a violation of the Convention within the meaning of Article 34. According to the settlement with the hospital, on 11 April 2015 the applicant had received a substantial amount of money exceeding awards the Court had previously made in similar cases. The redress obtained by her was thus appropriate and sufficient. Her subsequent decision to withdraw the civil claim had been subjected to judicial review by the Warsaw Regional Court, which had considered the settlement to be in accordance with the domestic law.

34 . By accepting the settlement, the applicant had precluded the domestic courts from reaching a ruling on the merits and acknowledging a breach of her rights. However, the Government submitted that the violations of the applicant’s rights had been clearly acknowledged by the Commissioner for Patient’s Rights and in two sets of audit proceedings carried out at the hospital at the request of the Minister of Health and the Warsaw Municipal Office.

35. The applicant reiterated her complaint that she had been prevented from obtaining an early termination of her pregnancy although the foetus had suffered from severe malformations. In such cases abortion had clearly been permitted under the domestic law at the material time.

36. In her observations on the admissibility and merits, the applicant asserted that the domestic law had provided no remedy that could have been effective in her case and that would have allowed her access to legal abortion at the time of her pregnancy in 2014. In particular, a civil claim or criminal complaint could not have been considered effective in her case as they could not have allowed her to have an abortion of the fatally ill foetus performed without undue delay. The applicant had needed a remedy that would have allowed the speedy and effective enforcement of her legal right to have an abortion performed within the legal time frame. Such a remedy had not been available and neither civil nor criminal proceedings would have been effective in such circumstances. For instance, registering an objection with the Medical Board, which was one of the potential remedies referred to by the Government, would not have been possible because any objection would have been considered procedurally inadmissible, given that Prof. B.Ch. had not provided the applicant with a reasoned refusal of the abortion. Moreover, the objection procedure was usually lengthy and statistically had not been effective in enforcing the right to an abortion on time.

37. With respect to the settlement reached by the applicant, she submitted that “it only referred to the consequences of actions and omissions caused by the infringement of [her] rights as a patient and her personal rights”. In consequence it could not have had the “effect of restoring or remedying the applicant’s right to have an abortion performed as it had been too late” to do so. The fact that the applicant had received compensation and just satisfaction as a result of signing of the friendly settlement with the hospital did not affect her status as a victim in terms of the Convention as the settlement had not referred to the subject matter of the complaint raised before the Court.

38. In sum the applicant submitted that for a period of three months between March and July 2014 she had been subjected to inhuman and degrading treatment in breach of Article 3 of the Convention. Moreover, she had been deprived of her right to make decisions about her own body and she had not been allowed to effectively exercise her right to have a legal abortion.

(a) Polish Commissioner for Human Rights

39. The intervener submitted that the national regulations had not guaranteed effective and practical access to lawful termination of pregnancy.

(b) Center for Reproductive Rights

40. The intervener provided an analysis of international and comparative law and case-law and an “overview of the now firmly established European consensus in favour of access to abortion”.

(c) European Centre for Law and Justice (ECLJ)

41. The intervener emphasised that the applicant could no longer be considered a victim of any violations of the Convention as she had used effective remedies and had settled her case. The ECLJ submitted that the case was an actio popularis and part of a strategic litigation programme run by Polish non-governmental organisations.

(d) Federation for Women and Family Planning,

42. The intervener provided an analysis of problems with the enforcement of the right to terminate a pregnancy in Poland based on data from the Federation’s monitoring, information gathering and its own interventions. The Federation also submitted that there had been no effective procedure for an appeal against the refusal of care based on conscientious objection.

(e) Helsinki Foundation for Human Rights

43. The intervener considered that the existing procedure for objecting to a doctor’s decision was excessively formalistic and did not guarantee that a pregnancy could be terminated within the legal time-limit. Additionally, hospitals were under no obligation to inform women about other facilities where abortions could be performed. Therefore, the Foundation concluded that in Poland there was no effective and expedient procedure that could ensure that women could exercise their right to have a legal abortion.

(f) Ordo Iuris

44. The intervener submitted that States enjoyed a wide margin of appreciation in cases concerning sensitive moral and ethical issues. In Poland the domestic law did not grant women the right to abortion, but granted an exemption from prosecution for abortion in certain clearly defined, exceptional and dramatic situations for women.

45. The Court does not find it necessary to deal with all the preliminary objections raised by the Government since, for the reasons stated below, the applicant cannot be considered a “victim” for the purposes of Article 34 of the Convention.

46. Article 34 of the Convention provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

47. The Court reiterates that it falls firstly to the national authorities to redress any violation of the Convention. In this regard, the question of whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia , Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010).

48. In the present case, in the twenty-first week of the applicant’s pregnancy it was discovered that that the foetus was suffering from severe malformations which meant that the applicant qualified for a legal abortion. In spite of that diagnosis, the director of the hospital, Prof. B.Ch., a well-known anti-abortion campaigner, refused to have the abortion performed in the hospital managed by him. The applicant complained that in spite of having fulfilled the conditions to obtain an abortion under the 2013 Act, as in force at the material time, she had been prevented from terminating the pregnancy. Also, in breach of the domestic law, she had not been informed of any other facilities where she could have undergone an abortion and had been forced to carry on with her pregnancy and give birth to the child, who suffered from serious malformations and was incapable of living.

49. The Court takes note of the Government’s statement that the violation of the applicant’s rights had been acknowledged at the domestic level, in particular in the course of two sets of audit proceedings (see paragraphs 22 ‑ 28 and 34 above). In those proceedings it was established that the applicant had not been correctly informed about the conditions for the performance of the procedure and that the director of the hospital had not been entitled to refuse permission for the procedure on the basis of the “conscience clause.” This resulted in the dismissal of Prof. B.Ch. from his position as the hospital’s director on 21 July 2014.

50. The applicant instituted a civil action for compensation against the hospital and its insurer for a breach of her personal rights on account of having been prevented from accessing a legal abortion. The claims lodged by her and by the Commissioner, joined to the same proceedings, encompassed other factual elements of the case: the right to early prenatal testing and access to information about facilities in which the abortion could have been performed (see paragraph 19 and 20 above).

51. The Court considers that the civil proceedings for compensation against the hospital initiated by the applicant were per se an effective manner of challenging the failures alleged by the applicant. The applicant was of the same opinion at the material time, as she did not lodge her application with the Court directly after having been refused an abortion and having been forced to give birth to her child in June 2014. Instead, she initiated civil proceedings for compensation and lodged her application with the Court some three years later, after having settled her claims in the civil proceedings. The Court reiterates that it is for an applicant to select the legal remedy that is most appropriate in the circumstances of the case (see Airey v. Ireland , 9 October 1979, § 23, Series A no. 32). Referring to the applicant’s submission before the Court that there had been no effective domestic remedies in respect of her complaints about being prevented from accessing an abortion, the Court notes that it had been open for her to lodge her application with it within six months from the events in question.

52. The applicant’s civil claim was not determined on the merits by the Polish courts as she had reached a settlement with the hospital and was paid a substantial amount of money in compensation. The settlement stipulated that it covered all claims raised against the hospital that were pending before the civil courts in connection with the applicant’s pregnancy and her giving birth (see paragraph 21 above). The settlement exhausted all the applicant’s claims against the hospital and its acceptance resulted in their withdrawal. The settlement was accepted by a court, which discontinued the civil action brought by the applicant on 27 April 2017 (ibid).

53. The applicant asked the Court not to disclose the amount of money awarded to her as compensation in the settlement with the hospital. Regard being had to that request, the Court will only note that the amount awarded exceeded the amounts it has granted in other Polish cases concerning matters of access to abortion and the sums it would usually grant for violations of applicants’ rights under Articles 3 and 8 of the Convention (see TysiÄ…c v. Poland , no. 5410/03, ECHR 2007 ‑ I; P. and S. v. Poland , no. 57375/08, 30 October 2012; and R.R. v. Poland , no. 27617/04, ECHR 2011 (extracts)).

54. The Court accordingly finds that the applicant denied herself access to the best means of establishing breaches of the domestic law and elucidating the extent of the director of the hospital’s responsibility for the events complained of, and their consequences for her. Moreover, the applicant decided not to pursue any other legal avenue available in Poland to complain about the events in question.

55. The Court has held in the past that an applicant may no longer claim to be a victim of a violation of a substantive breach of Article 3 of the Convention if he or she has accepted a settlement in civil proceedings (see Bailey v. the United Kingdom (dec.), no. 39953/07, 19 January 2010; Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I; and, more recently, Penati v. Italy , no. 44166/15, § 155, 11 May 2021). The Court has also held that “where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim” (see Calvelli and Ciglio v. Italy [GC], no. 32967/96 , ECHR 2002 ‑ I, and Powell v. the United Kingdom (dec.), no. 45305/99 , ECHR 2000-V). The Court sees no grounds for reaching a different conclusion in the instant case.

56. Having regard to the above considerations, the Court finds that in bringing civil proceedings for compensation the applicant used the domestic remedies available and in settling those claims for a substantial amount of compensation and waiving the further use of such remedies, she may no longer claim to be a victim of a violation of the substantive guarantees of the Convention within the meaning of Article 34 of the Convention.

57. Accordingly, this application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 November 2022.

Renata Degener Marko Bošnjak Section Registrar President