Published on 8 July 2021

FIRST SECTION

Application no. 3639/21 K.C. against Poland and 3 other applications (see list appended) c ommunicated on 1 July 2021

STATEMENT OF FACTS

The applicants are Polish nationals. Their names and personal details are set out in the attached appendix.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

(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 the Sejm.

(b) Request of 2019

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. K 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.

The applicants submit that following the delivery of the judgment certain hospitals refused to perform abortions in cases of foetal defects. They further state, that following interventions made by NGOs and some MPs, public hospitals resumed carrying out abortions in cases relating to foetal defects.

(c) 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 applicants, 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.

(d) The President ’ s bill

On 30 October 2020 the President submitted to Sejm a bill amending the 1993 Act. The amendment reintroduces the possibility of terminating a pregnancy due to foetal abnormalities, although only limited to “lethal” defects. On 3 November 2020 the bill was referred to the Parliamentary Commission for Health and the Commission for Justice and Human Rights.

(e) Composition of the Constitutional Court

The applicants submit 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).

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.

The applicant submits that she is thirty eight y ears ’ old and thus at an increased risk of having a child with genetic abnormalities. Shortly before the delivery of the Constitutional Court ’ s judgment she had discovered that she was pregnant. Until she received her medical test results, she was very anxious.

The applicant submits that she is thirty years ’ old and twelve weeks pregnant. She states that she is very worried in case the foetus has genetic defects. She is afraid that she will not be able to receive the requisite care from the State. She submits that it would have amounted to torture if she was required to carry the child to term even in a situation when the foetus was shown to be defective.

The applicant submits that she is twenty seven years ’ old and ten weeks pregnant. However, instead of happiness she feels anxiety. She is afraid that in case of complications she would be deprived of requisite medical care. She is also worried that this situation will negatively affect her pregnancy.

The applicant submits that she has one preschool-age child. At the time of the delivery of the Constitutional Court ’ s judgment she was fifteen weeks pregnant. The pregnancy was intentional. However, she discovered that the child she was carrying had suffered from Trisomy 18. She was worried that she could be denied an abortion in Poland if the judgment entered into force, therefore she travelled to the Netherlands where the procedure was carried out.

The applicant submits that she had suffered stress on account of the physical and phycological impact of her travelling abroad for an abortion, notwithstanding the financial burden this situation had entailed.

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.”

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.

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 106 th Plenary Session on 11-12 March 2016 (CDL ‑ AD( 2016)001).

COMPLAINTS

1. The applicants complain that they are potential victims of a breach of Article 8 of the Convention. While they were not refused abortion on the ground of foetal defects, the 1993 Act breaches their rights even though it was not directly applied to them. The applicants claim that the domestic law obliges them to adapt their conduct. If pregnant, they are required to carry the child to term even in a situation when the foetus is shown to be defective.

2. The applicants also complain under Article 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.

3. The applicants further claim to be potential victims of a breach of Article 3 of the Convention. The prospect of being forced to give birth to an ill or dead child causes them anguish and distress. They stress that they are worried and afraid to get pregnant. The Constitutional Court ’ s judgment deprives them of the possibility to terminate pregnancy on the ground of foetal defects. The obligation to carry the child to term, even in a situation when the foetus is shown to be defective, causes them suffering, stress, humiliation, feelings of helplessness and other, difficult to predict, consequences to their mental and physical health.

QUESTIONS TO THE PARTIES

1. Can the applicants claim to be victims of a violation of their rights under Article 8 and/or Article 3 of the Convention (see, S.A.S. v. France [GC], no. 43835/11, ECHR 2014 (extracts))?

2. In the particular circumstances of each applicant ’ s case, has there been an interference with their 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?

3. 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 applicants ’ 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. z o.o . v. Poland . no. 4907/18, judgment of 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”?

4. Alternatively, has there been a breach of the State ’ s positive obligations under Article 8 of the Convention (compare TysiÄ…c v. Poland , no. 5410/03, § 107, ECHR 2007 ‑ I)?

5. Does any issue arise under Article 3 of the Convention?

APPENDIX

No.

Application no.

Case name

Lodged on

1.

3639/21

K.C. v. Poland

08/01/2021

2.

4188/21

A.M. v. Poland

08/01/2021

3.

5876/21

A.F. v. Poland

14/01/2021

4.

6030/21

A.R. v. Poland

11/01/2021