Legal summary

June 2023

A.M. v. Poland (dec.) - 4188/21, 4957/21, 5014/21 et al.

Decision 16.5.2023 [Section I]

Article 34

Victim

In abstracto complaints without convincing evidence that applicants at real risk of being directly affected by amendments effectively banning access to legal abortion on foetal malformation grounds: inadmissible

Facts – The applicants complained about the Constitutional Court’s judgment of 22 October 2020 which removed one of the provisions legalising abortion from the 1993 Law on family planning, protection of the human foetus and conditions permitting pregnancy termination (“the 1993 Act”) and thus effectively banned access to legal abortion on the grounds of foetal malformation.

Law – Article 34 (victim):

The applicants had argued that they belonged to a group of people, namely “women of child-bearing age”, who risked being directly affected by the measure. They had not claimed that they had been denied access to legal abortion, but that the 1993 Act, as amended in October 2020, infringed their rights nonetheless since the national law obliged them to adjust their conduct and they were confronted with a concrete legal obligation to carry pregnancies to term, even if the foetus was damaged or sick, and potentially give birth to a seriously ill child. At the same time the Government had called into question the applicants’ status as “victims”, noting that the applicants’ aim had been to request the Court to review, in abstracto , the law and practice concerning termination of pregnancy and that the applications had amounted to actio popularis .

It was only in highly exceptional circumstances that an applicant might claim to be a victim of a violation of the Convention owing to the risk of a future violation. It was true that in Open Door and Dublin Well Woman v. Ireland the class of persons at real risk of being directly affected by an impugned measure had been defined very broadly. However, that case had concerned complaints under Article 10 of the Convention and the restriction that had been imposed on the applicants on receiving information relating to abortion clinics operating lawfully in Britain. In that case it had been clear that the two applicants as “women of child-bearing age” might have been adversely affected by the restrictions imposed by the relevant injunction. However, in the present case the applicants had complained generally about the removal of one specific ground for legal abortion from the 1993 Act. In the Court’s view the class of persons who could claim to be “victims” of such a violation had to be much narrower. While a woman of child-bearing age in Poland, being exposed to the risk of pregnancy with foetal abnormalities, might be affected by the impugned restrictions on access to therapeutic abortion, for an applicant to be able to claim to be a victim in such a situation, she had to produce reasonable and convincing evidence of the likelihood that a violation affecting her personally would occur. The applicants, however, in the present case had not done so. In particular:

- applications nos. 4957/21 and 6217/21: the applicants had not provided any medical evidence to substantiate their claims that they had medical conditions which allegedly caused a higher risk of foetal malformation.

- applications nos. 4188/21 and 5876/2: the applicants who had been pregnant at the time of lodging their applications had not alleged that their foetuses had been diagnosed with any abnormalities and had not adduced any evidence as to their state of health or their potentially running a higher risk of foetal malformation.

- applications nos. 5014/21 and 5523/21: the applicants had merely stated that they had been planning pregnancy, the Constitutional Court’s judgment had caused them stress and anguish and they feared they would not receive adequate medical care from the State.

– application no. 6114/21: the applicant had stated that after the delivery of that judgment she had stopped trying to become pregnant as she was anxious that if she did and the foetus was found to have a serious abnormality, she would not receive help.

– application no. 8857/21: the applicant had merely noted that she did not wish to risk her life and health in the event of possible complications during a pregnancy.

As to the applicants’ arguments that their life or health might be endangered in case of health problems during a future pregnancy or that they would not be able to receive adequate medical care, the relevant section of the 1993 Act providing that if the pregnancy endangered the mother’s life or health, medical abortion was authorised by law, was still in force. Lastly, none of the applicants had argued, either explicitly or in substance, that because of their age they had been at a higher risk of having a child with chromosomal abnormalities.

The applicants’ situation had to be clearly contrasted with that of applicants in other cases examined by the Court who had faced the dilemma of either complying with the contested regulations or refusing to do so and facing prosecution. It was also distinguishable from that of Parrillo v. Italy [GC], where the very existence of the contested legislation had continuously and directly affected the applicant’s private life as she had been unable to donate her embryos to research since that legislation had come into force.

It thus appeared that the restrictions resulting from the amendments introduced by the Constitutional Court’s judgment could only have hypothetical consequences for the applicants’ personal situations which seemed too remote and abstract for them to arguably claim to be “victims” within the meaning of Article 34. Further, in the complete absence of detailed individual particulars or any documentary evidence relating to the applicants’ personal circumstances, it had been impossible to assess their situation.

Conclusion : inadmissible (unanimously).

(See also Dudgeon v. the United Kingdom , 7525/76 , 22 October 1981; Open Door and Dublin Well Woman v. Ireland , 14234/88 and 14235/88, 29 October 1992, Legal summary ; Michaud v. France , 12323/11, 6 December 2012, Legal summary ; S.A.S. v. France [GC], 43835/11, 1 July2014, Legal summary ; Parrillo v. Italy [GC], 46470/11, 27 August 2015, Legal summary ; Zambrano v. France (dec.), 41994/21, 21 September 2021, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

To access legal summaries in English or French click here . For non-official translations into other languages click here .