Interim Resolution CM/ ResDH ( 2021)44

Execution of the judgments of the European Court of Human Rights

TysiÄ…c , R.R. and P. and S. against Poland

(Adopted by the Committee of Ministers on 11 March 2021 at the 1398 th meeting of the Ministers ’ Deputies)

Application No.

Case

Judgment of

Final on

5410/03

TYSIAC

20/03/2007

24/09/2007

27617/04

R.R.

26/05/2011

28/11/2011

57375/08

P. AND S.

30/01/2013

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases and in particular to the violations of Articles 3 and 8 of the Convention established on the account of the lack of an effective mechanism to enable women to effectively access lawful abortion on grounds of maternal or foetal health where the doctor disagrees that such grounds exist or that prenatal tests are necessary to assess this or make other decisions ( cases of Tysiac and R.R.) and the authorities ’ failure to provide access to reliable information on the conditions and procedures enabling pregnant women and girls, including victims of rape, to effectively access lawful abortion (in the case of P. and S .);

Stressing the importance for pregnant women to be able to effectively contest decisions refusing lawful abortion on medical grounds or pre-natal examination and to receive equal treatment in their access to lawful abortion, including through unified procedures to be followed by all hospitals, including when a doctor refuses to perform an abortion on grounds of conscience;

Noting with regret, in this context, the lack of information on any measures putting in place such procedures and providing adequate information on them;

Noting also with regret that while amending the Medical Professions Act in July 2020 the Polish Parliament failed to take into account the calls from the Committee of Ministers and the Council of Europe Commissioner for Human Rights to provide for an explicit obligation of hospitals to refer patients to alternative services when a medical procedure was not performed due to the use of the conscience clause;

Noting with regret the lack of explanation on the reasons for persisting regional disparities and on hospitals not performing lawful abortion, as well as the lack of convincing measures to ensure adequate monitoring and implementation of contractual obligations or the hospitals ’ responsibility for breach of contractual obligation to provide lawful abortion;

Noting with serious concern that the objection procedure provided by the Law on the Rights of the Patient and the Ombudsman for the Rights of the Patient in its current form is not effective, due inter alia to formalism and risk of delays, and that, despite repeated calls of the Committee of Ministers, the authorities commitments in this respect in 2014 and concerns presented by civil society, the authorities have not reformed it yet;

Noting also the Constitutional Court ’ s judgment of 22 October 2020, invalidating the ground for lawful abortion related to the foetus health and its potential impact on the provision of prenatal tests which allow taking decisions unrelated to lawful abortion;

STRONGLY URGED the authorities to adopt clear and effective procedures on the steps women need to take to access lawful abortion, including in the event of a refusal of abortion on grounds of conscience, and to ensure that they are provided with adequate information on these procedures and that no additional unnecessary requirements are imposed on them by hospitals beforehand;

URGED the authorities to ensure that lawful abortion and pre-natal examination is effectively accessible across the country without substantial regional disparities and without delay caused by the refusal to perform it due to the use of the conscience clause or to restrictions due to the COVID ‑ 19 pandemic;

STRONGLY URGED the authorities to adopt the necessary reforms of the objection procedure without further delay and URGED them also to include in the legislation an obligation for hospitals to refer a patient to an alternative healthcare facility if a medical service is refused on the grounds of conscience and to monitor effectively its observance in practice;

URGED them moreover to ensure effective monitoring of contractual obligations and functioning of contractual liability mechanism if lawful abortion or pre-natal examination contracted by a hospital is not performed, including on the grounds of conscience, and that every instance of such breach of contractual obligations is adequately responded to;

CALLED ON the authorities to present their assessment of the impact of the Constitutional Court ’ s judgment of 22 October 2020 on the availability of pre-natal examination, in particular as it is not strictly linked to the access to lawful abortion but also helps to make informed decisions during pregnancy related to pre-natal treatment or preparation for birth, and to ensure that it is not limited;

DECIDED to resume consideration of this group of cases at its 1419 th meeting (December 2021) (DH).