Communicated on 29 January 2020 Published on 17 February 2020

FIRST SECTION

Application no. 67171/17 B.B . against Poland lodged on 21 August 2017

STATEMENT OF FACTS

The applicant, Ms B.B., is a Polish national who was born in 1976 and lives in Warsaw. The President granted the applicant ’ s request for her identity not to be disclosed to the public (Rule 47 § 4).

A. The circumstances of the case

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

1. The applicant ’ s pregnancy and failed attempt to obtain an abortion

The applicant became pregnant at the end of 2013. The date of birth was calculated for 2 August 2014.

On 9 January 2014 the applicant became a patient of Dr M.G. in the Warsaw Holy Family Specialist Hospital ( Szpital Specjalistyczny im . Świętej Rodziny – hereinafter “the hospital”), which was a public facility. On 23 January 2014 she underwent a prenatal examination in the thirteenth week of pregnancy which did not show any foetal abnormalities. On 5 February 2014 the applicant underwent placement of a cervical cerclage and was released from the hospital.

On 8 March 2014 the applicant was admitted to the hospital because of severe abdominal pain. She submits that the doctor who performed the ultrasound did not inform her about the foetus ’ s condition.

On 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. informed the applicant that due to those abnormalities she could terminate the pregnancy. However he did not inform the applicant of the details or deadlines for that procedure. That applicant was also informed that the head of the hospital, Prof. B.Ch., would be informed about her case.

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.

On 2 April 2014 the applicant was transferred back to the hospital. She informed the doctors, including M.G., of her wish to have an abortion. However, she was informed that Prof. B.Ch. had to agree first to the removal the cervical cerclage and then to the termination of the pregnancy. At the same time her anti-contraction medication was withdrawn. On 3 April 2014 the applicant was released from the hospital.

On 4 April 2014 Dr M.G. informed her that Prof. B.Ch. had agreed to the removal of the cervical cerclage. The procedure took place on 7 April 2014. The applicant was in the twenty-third week of pregnancy. Then the applicant was invited to a meeting with Dr B.Ch. The meeting was originally scheduled for 10 April 2014 but it was postponed because the applicant was told to wait for the results of genetics tests.

On 14 April 2014 the 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 left in the hospital a declaration stating her wish to terminate the pregnancy and a request to have that procedure done there.

On 16 April 2014 Prof. B.Ch. handed to her his “refusal on the grounds of conscientious objection” and without giving any information, although required to do so by law, of another facility where the abortion could be carried out.

The applicant turned to Bielany Hospital ( Szpital Bielański ) for help, but Dr M.D. informed her there that the pregnancy was in its twenty-fourth week and that abortion was no longer legal in her case. The ultrasounds performed on 18 April and 4 June 2014 confirmed multiple foetal abnormalities which had to be considered fatal.

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 a part of a cranial bone. He received palliative care (including morphine) and died on 9 July 2014.

After the birth the applicant underwent psychological treatment for a long time. She submits that she suffered because she was forced to give birth to a fatally ill child and then witnessed her son ’ s suffering.

2. Proceedings before the Commissioner

On 9 June 2014, during her pregnancy, the applicant lodged with the Commissioner a complaint concerning Prof. B. Ch . ’ s refusal to carry out the abortion. The Commissioner issued several decisions, confirming multiple breaches of Polish law in connection with her medical treatment and the impossibility for her to access an abortion.

On 25 June 2014 the Commissioner established that the hospital had violated the applicant ’ s rights, because she had not received full medical information concerning the state of health of her and the foetus and that she had been deprived of a right to appeal against a medical certificate as one had not been issued.

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

On 16 February 2015 the Commissioner established in the 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 thirteenth week of pregnancy.

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

3. Criminal proceedings

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 had been committed against the applicant.

On 30 April 2015 the prosecutor discontinued the proceedings. It appears that the applicant was not a party to those proceedings and did not appeal against the decision.

4. Disciplinary proceedings

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.

5. Civil proceedings

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 right to medical treatment, full medical information and to lodge an appeal against a medical certificate.

On 21 January 2015 the applicant and her husband joined the civil proceedings against the hospital, claiming compensation for non-pecuniary damage caused by the refusal to perform the abortion.

On 27 April 2017 the Warsaw Regional Court ( Sąd Okręgowy ) discontinued the proceedings initiated by the applicants because the parties had reached a settlement and the applicant and her husband had withdrawn the civil claim.

B. Relevant domestic law and practice

The relevant domestic law and practice has been set out in the Court ’ s judgments in R.R. v. Poland (no. 27617/04, §§ 64-89, ECHR 2011 (extracts)) and TysiÄ…c v. Poland (no. 5410/03, §§ 32-47, ECHR 2007 ‑ I).

COMPLAINTS

The applicant complains under Articles 3, 8, 13 and 14 of the Convention that she was prevented from accessing an abortion of her fatally ill child in spite of the procedure being clearly allowed by domestic law.

Under Article 3, she complains that she was forced to carry her pregnancy to term knowing that the foetus suffered from severe fatal abnormalities, would not be able to live independently, would die soon after birth and would suffer unbearably. Moreover the applicant was forced to provide care to her child and her personal opinions and wishes were not taken into account.

The State failed in its positive obligation to protect her private and family life, in breach of Article 8 of the Convention, by not allowing her to access a legal abortion, despite the fact that fatal foetal abnormalities had been officially diagnosed. The State failed to secure an effective legal framework which could have allowed for an early diagnosis and prompt abortion, which would have prevented much suffering on the part of the baby and herself.

The applicant complains, under Article 13 of the Convention, that the domestic system did not offer sufficient protection to pregnant women, in particular in cases where there was a disagreement with a doctor who had invoked a “clause of conscience”. The applicant did not have any effective remedy to enforce her rights.

Lastly the applicant alleges that she was discriminated against on the basis of her lack of financial resources as she was unable to access an abortion outside Poland, which she had been encouraged to do.

QUESTIONS TO THE PARTIES

1. Can the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34? Reference is made to the fact that the applicant reached a settlement with the hospital and the insurer and received compensation.

2. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Reference is made in particular to the complaint that the applicant had to carry her pregnancy to term, to give birth, and to provide care to severely, irreversibly and fatally ill child, in spite of her wish to have an abortion.

3. Has there been an unjustified interference with, or failure to respect, the applicant ’ s right to respect for her private life within the meaning of Article 8 of the Convention in connection with the applicant ’ s efforts to access an abortion? Reference is made, in particular, to the following:

( a) that she had to continue the pregnancy to term knowing that the foetus had severe and irreversible abnormalities and was prevented from having an abortion;

( b) the applicant was informed of her right to a legal abortion, but not issued with the required certificate and the abortion was not carried out,

several public hospitals refused to carry out the abortion and the applicant was not informed of another facility willing to carry out the procedure,

the applicant received contradictory information about the requirements that had to be complied with in order to have a lawful abortion,

that Polish law does not contain any effective procedural mechanisms capable of determining, within the time-limits laid down by the relevant the Family Planning (Protection of the Human Foetus , and Conditions Permitting Pregnancy Termination) Act 1993, whether the conditions for obtaining a lawful abortion on the grounds of the foetus being “severely and irreversibly damaged” within the meaning of section 4 (a) 1 of that Act have been met.

4. Do the circumstances of the case discl ose a breach of Articles 13 and 14 of the Convention in respect of the applicant ’ s rights guaranteed by Article 8?