Legal summary

December 2023

M.L. v. Poland - 40119/21

Judgment 14.12.2023 [Section I]

Article 8

Article 8-1

Respect for private life

Prohibition of abortion on grounds of foetal abnormality following amendments introduced by the Constitutional Court, resulting in the applicant travelling abroad for termination: violation

Facts – The conditions for legal abortion in Poland are set out in the Law on family planning, protection of the human foetus and conditions permitting the termination of pregnancy (“the 1993 Act”). One of the grounds provided initially by that Act where legal abortion was possible, was where there was a high risk of foetal malformation. However, on 22 October 2020 the Constitutional Court held that the relevant provisions of the 1993 Act (sections 4a(1)(2) and 4a(2)) were incompatible with the Constitution. That judgment came into force on the 27 January 2021.

The applicant became pregnant in 2020 and the foetus was subsequently diagnosed with a genetic disorder, trisomy 21. A scheduled hospital abortion was cancelled after the Constitutional Court’s judgment took effect. Since the applicant did not wish to give birth to a child with genetic disorder, she was forced to travel abroad to terminate the pregnancy.

Law –

Article 8:

(a) Applicability – While Article 8 could not be interpreted as conferring a right to abortion, the prohibition of abortion in Poland on the grounds of foetal malformation, where abortion was sought for reasons of health and well-being, came within the scope of the applicant’s right to respect for her private life, and accordingly Article 8 applied.

Conclusion : preliminary objection dismissed ( ratione materiae ).

(b) Merits – The Court analysed the applicant’s complaint as one concerning negative obligations. Having regard to the broad concept of private life within the meaning of Article 8, including the right to personal autonomy and to physical and psychological integrity, the Court found that the applicant’s being prohibited from terminating her pregnancy on the grounds of foetal abnormality, where the termination had been sought for reasons of health and well-being, had amounted to an interference with her right to respect for her private life.

The impugned restriction had been based on the Constitutional Court’s judgment of 22 October 2020. While it was true that the applicant had not been a party to the constitutional review proceedings that led to the adoption of that judgment, they had been of key importance to her rights and to those of many other persons in similar situations; the effects of that court’s judgments were the same and affected the rights of all persons in comparable situations. As a direct consequence of the Constitutional Court’s ruling, the applicant’s hospital appointment had been cancelled and she had been almost instantly left with no other option but to travel abroad to have a termination. Those proceedings had therefore been directly decisive for her rights, in particular her right to respect for her private life.

The Court reiterated that the rule of law was inherent in all the Articles of the Convention and the whole Convention drew its inspiration from that principle. Accordingly, the guarantees under Article 8 must also be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declared the rule of law to be part of the common heritage of the Contracting States. In the context of Article 6 § 1, the Court had already held that the right to a “tribunal established by law” was a reflection of the principle of the rule of law. It was thus implied that any interference with Article 8 rights must emanate from a body which was itself “lawful”, without which it would lack the legitimacy required in a democratic society.

The composition of the Constitutional Court that had delivered the judgment at issue had included judges who had been appointed in a procedure which had been found to be in breach of Article 6 of the Convention in its judgment in the case of Xero Flor w Polsce sp. z o.o. v. Poland. More specifically, in December 2015 the President of the Republic had refused to swear three judges who had been legally elected to the Constitutional Court by the previous Sejm (the lower house of Parliament). The new Sejm had then elected three judges to the seats that had already been filled . The Court had held that the breaches in procedure had been of such gravity as to impair the legitimacy of the election process and had undermined the very essence of the right to a “tribunal established by law”. One of the new judges and replacements of the other two (who had passed away in the meantime) had been on the bench of the Constitutional Court which had issued the 2020 ruling. Consequently, given that the irregularities in the election procedure of the above-mentioned judges had compromised the legitimacy of the Constitutional Court’s bench which had introduced the impugned restriction as a “tribunal established by law”, its ruling had fallen short of what the rule of law required.

The Court therefore found that the interference with the applicant’s rights could not be regarded as lawful in terms of Article 8 because it had not been issued by a body compatible with the rule of law requirements. Furthermore, the circumstances of the present case disclosed the lack of foreseeability required under Article 8, given that the Constitutional Court’s ruling had interfered with the medical procedure for which the applicant had qualified and which had already been put in motion, thus creating a situation where she had been deprived of the proper safeguards against arbitrariness. In conclusion, the interference with the applicant’s rights had not been “in accordance with the law” within the meaning of Article 8.

Conclusion : violation (five votes to two).

Art 41: EUR 1,004 in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.

(See also A, B and C v. Ireland [GC], 25579/05, 16 December 2010, Legal Summary ; Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal Summary ; Xero Flor w Polsce sp. z o.o. v. Poland , 4907/18, 7 May 2021, Legal Summary )

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

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