In the case of R.R. v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Nicolas Bratza,
President,
Lech Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 29 March 2011 and on 10 May
2011,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no.
27617/04) against the Republic of Poland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Polish national, Ms R.R. (“the applicant”), on 30 July 2004. The President of the Chamber acceded to the applicant’s request not to
have her name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Ms Monika Gąsiorowska
and Ms Irmina Kotiuk, lawyers practising in Warsaw, assisted by Ms
Christina Zampas. The Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant alleged that the circumstances of
her case had given rise to violations of Article 8 of the Convention. She also
invoked Article 3 of the Convention. The applicant further complained
under its Article 13 that she did not have an effective remedy at her
disposal.
The parties replied in writing to each other’s
observations.
In addition, third-party comments were received
from the United Nations Special Rapporteur on the Right of Everyone to the Enjoyment
of the Highest Attainable Standard of Physical and Mental Health, from the
International Federation of Gynaecology and Obstetrics and from the
International Reproductive and Sexual Health Law Programme, University of
Toronto, Canada, which had been given leave by the President to intervene in
the written procedure (Article 36 § 2 of the Convention and Rule 44
§ 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1973.
Early in December 2001 the applicant visited Dr S.B.
in a hospital in T., in the region covered by the then Małopolska Regional
Medical Insurance Fund (replaced later by the countrywide
National Health Fund). Having performed an
ultrasound scan, Dr S.B. estimated that the applicant was in the 6th or 7th
week of pregnancy.
. On 2 January 2002, in the 11th week of her pregnancy, the applicant - who was at that time 29
years old, was married and had two children - was registered as a pregnant
patient in her local clinic.
. On 23
January and 20 February 2002 ultrasound scans were performed, in the 14th and
18th weeks of the applicant’s pregnancy. On the latter date Dr S.B. estimated
that it could not be ruled out that the foetus was affected with some
malformation and informed the applicant thereof. The applicant told him that
she wished to have an abortion if the suspicion proved true.
. The
Government submit that in January and February 2002 the applicant visited Dr S.B.
at a private clinic. They argue that such an institution had no right to issue a
referral to any public health institution.
. The
applicant disagrees. She first submits that at the material time Dr S.B.
worked both at a public hospital in T. - where she visited him in December 2001
and in February 2002, after the second scan - and at a non-public clinic. She
further submits that the Polish health care system is composed of so-called
public health units and non-public health units. The latter, most often being
first contact and basic care institutions, have financing contracts with the
public National Health Fund (and had such contracts with its predecessors, the Regional
Medical Insurance Funds, at the material time). Medical services available in non-public
clinics are partly financed by public funds, constituted by premiums paid by
all persons covered by the universal system of health insurance. Doctors
working for non-public units have the same rights and duties to provide health
care to patients as doctors employed by public units, including a right to
refer a patient to a public unit.
12. Subsequently, the applicant
went to a hospital in T. The results of a third ultrasound scan
performed in that hospital confirmed the likelihood that the foetus was
suffering from some malformation. A genetic examination by way of amniocentesis
was recommended by Dr O., in order to confirm or dispel this suspicion.
On 28 February 2002 the applicant had another ultrasound scan in a private clinic in Łódź. She had no referral
from Dr S.B. and had therefore to pay for the service herself. Under the
applicable laws, her expenditure could not be reimbursed. The results of that
scan confirmed the likelihood that the foetus was affected with an unidentified
malformation. Genetic tests were recommended again.
She was subsequently received by Professor
K.Sz. in Łódź, a specialist in clinical genetics. A genetic test was
again recommended. Professor K.Sz. recommended that the applicant should obtain
a formal referral from her family doctor, S.B., to have the test carried out in
a public hospital in Łódź, which was outside her region covered by
the then Universal Medical Insurance Fund.
Subsequently, Dr S.B. refused to issue a referral, because in
his view the foetus’ condition did not qualify the applicant for an abortion
under the provisions of the 1993 Act (see paragraph 66 below).
The Government submit that no reference to the
possibility of the foetus being affected with Edwards syndrome was ever made.
The applicant disagrees. She submits that during
that visit she was told that the scan gave rise to a suspicion of either
Edwards or Turner syndrome.
In the first week of March 2002 the applicant
and her husband visited Dr S.B. during his night duty at the hospital in T. They
demanded termination of the pregnancy. He refused and indicated that the
results of the ultrasound scan could not be treated as a sole ground for
diagnosis that the foetus was affected with severe malformation. He proposed having
a panel of doctors from the same hospital review his decision. The applicant
refused.
On 11 March 2002 the applicant was admitted to a public hospital in T., within her region covered by the National Health
Insurance Fund, and requested advice. She was told that a decision on
termination could not be taken at that hospital and was referred to a university
hospital in Kraków, to a pathological pregnancies ward, in another region of
the Fund, for further diagnosis (“w celu dalszej diagnostyki”).
During the applicant’s stay in the hospital in
T. a hospital lawyer was asked to give an opinion with a view to ensuring that the
laws on the availability of legal abortion were respected. The applicant was also
told that termination of pregnancy would entail a serious risk to her life and
that the two caesarean births which she had previously had constituted the most
important risk factor in deciding whether she should have a genetic test at
all.
On 14 March 2002, immediately after being discharged from the T. hospital, the applicant travelled 150 kilometres to Kraków.
She went to see Dr K.R. at Kraków University Hospital. He criticised her for contemplating
a termination. She was also informed that the hospital categorically refused to
carry out abortions and that no abortions had ever been performed there for the
last 150 years. She was also refused a genetic examination, Dr K.R. being
in the opinion that it was not necessary in her case. She stayed in the hospital
for three days and had another ultrasound scan performed, the results of which
were inconclusive. Urine and blood tests were also performed. She was
discharged on 16 March 2002. The applicant’s discharge record stated that the
foetus was affected with developmental abnormalities (“wady rozwojowe
płodu”). The same was stated in a medical certificate signed by Dr
K.R. He recommended genetic testing in order to establish the character of the
ailment.
On 21 March 2002 the applicant again contacted Professor
K.Sz., who had examined her in February. Another ultrasound scan performed in a
private clinic where Professor K.SZ. received patients confirmed the suspicion
of malformation. The applicant obtained a referral from the professor to the
Mother and Child Hospital in Łódź, but he informed her that he was in
fact not competent to issue it. The professor told her that in order to have a
genetic test carried out in Łódź, which was outside her region, she
needed a referral issued by a doctor practising in her region and, in addition,
an approval by a regional insurance fund, together with an undertaking that it would
reimburse the costs of the test to the regional fund where the test was to be performed.
The professor advised her to report to the Łódź hospital as an
emergency patient, claiming that she was about to miscarry, as it was likely
that she would then be admitted to that hospital.
Subsequently, on 22 March 2002, the applicant asked Dr K.R. for a referral.
The Government submit that Dr K.R.
could not refer the applicant for a genetic test in Kraków because neither the University Hospital nor any other hospital in Kraków carried out such tests as a routine
procedure. The applicant disagrees. She submits that Dr K.R. told
her that she would not obtain the referral for testing because if the results
were positive she would want to have an abortion.
Afterwards, on the same day, she again unsuccessfully
asked Dr S.B. for a referral to the Łódź hospital.
The Government submit that the applicant obtained
from him a referral to the same Kraków University Hospital where she had already
been hospitalised between 11 and 14 March. The applicant disagrees and submits
that no referral was issued to her.
The Court notes this discrepancy in the parties’ submissions
and notes that no copy of that referral has been submitted to it.
On 24 March 2002 the applicant went to the Łódź Mother and Child Hospital.
The Government submit that she went to the
hospital with a referral issued by Professor K.Sz.
The applicant disagrees. She submits that she
went to that hospital without a referral, as advised, and was admitted as an
emergency patient.
Genetic test (amniocentesis) was performed there
on 26 March 2002, in the 23rd week of pregnancy, and the applicant
was told that she had to wait two weeks for the results.
The Government submit that the tests were
carried out despite the fact that the applicant had not sought from the
Małopolska section of the medical insurance fund any approval for financing
them.
The applicant was discharged from the
Łódź hospital on 28 March 2002. Before the results were available, on
29 March 2002 the applicant, increasingly desperate as by then she was
very afraid that the foetus was suffering from severe genetic abnormalities,
reported to the T. hospital, where she submitted a written request for an
abortion. Dr G.S. told her that he could not take such a decision himself. He
had to speak with the consultant.
By a letter of 29 March 2002 the applicant requested the hospital in T. to terminate the pregnancy, referring to the
provisions of the 1993 Act. She requested that in case of a negative reply it
should be made in writing “as soon as possible”.
On 3 April 2002 the applicant went to that
hospital again and was told that the consultant could not see her because he
was ill. The visit was rescheduled for 10 April 2002. On the same day she wrote a letter of complaint to the director of the T. hospital, submitting that she
had not received adequate treatment and that she felt that the doctors were
intentionally postponing all decisions in her case so that she would be unable
to obtain an abortion within the time-limit provided for by law.
On 9 April 2002 she again requested doctors at the T. hospital to carry out an abortion. She referred to the results of the
genetic tests which she had received on that date. The certificate, established
by Professor K.Sz., confirmed that the karyotype indicated the presence of
Turner syndrome. The certificate further read:
“A chromosomal aberration and an
ultrasound image were established, indicating the presence of congenital
defects which can have a serious impact on the child’s normal development.
Further handling of the case under the provisions of the 1993 law on termination
of pregnancy can be envisaged. A relevant decision should be taken with due
regard to the parents’ opinion”.
The doctors in the T. hospital refused to carry out an abortion,
Dr G.S. telling her that it was too late by then as the foetus was able at
that stage to survive outside the mother’s body.
On 11 April 2002 the applicant again
complained in writing to the Director of the T. hospital about the manner in
which her case had been handled and about the procrastination on the part of Dr
G.S.
In April 2002 the applicant and her husband
submitted a number of complaints to various health care system institutions. In
a reply from the Ministry of Health, dated 16 May 2002, it was stated that “it
was impossible to establish on the basis of the available documents why the
genetic tests were postponed until 28 February 2002 when the foetus had already
become capable of surviving outside the mother’s body.”
On 29 April 2002 she received a reply from the T. hospital to her complaints of 29 March 2002 and 3 April 2002. The letter contained an account of the facts of the case and quoted
provisions of the 1993 Act. No assessment of the lawfulness of the conduct of
the medical staff involved was made.
On 11 July 2002 the applicant gave birth to a baby girl affected with Turner syndrome.
On 31 July 2002 the applicant requested the prosecuting authorities to institute criminal proceedings against the persons
involved in handling her case. She alleged serious failure on the part of the
doctors, acting as public agents, to safeguard her interests protected by law, on
account of their failure to perform timely prenatal examinations. As a result,
the applicant had been denied information on the foetus’ condition and,
consequently, divested of the possibility to decide for herself whether or not
she wished to terminate her pregnancy in the conditions provided for by law,
and she had been forced to continue it.
On 16 December 2002 the Tarnów District Prosecutor discontinued the investigations, finding that no criminal offence had been
committed. The prosecutor relied on an expert opinion prepared by the Białystok Medical University, according to which under the 1993 Act legal abortion was
possible only when foetal malformation was severe. It was not possible to
assess whether malformations of a foetus were severe enough to justify an
abortion until the foetus was able to live on its own outside the mother’s
body. It concluded that in the applicant’s case an abortion would have been
possible until the 23rd week of pregnancy. The applicant appealed.
On 22 January 2003 the Regional Prosecutor
allowed her appeal and ordered that the investigation be re-opened. Additional
medical evidence was taken during the investigation. On 5 December 2003 the
prosecutor again discontinued the investigation, finding that no criminal
offence had been committed.
The applicant appealed, complaining, inter
alia, that the prosecuting authorities had failed to address the critical
issue of whether, in the circumstances of the case, genetic tests should have
been carried out in order to obtain a diagnosis of the foetus’ condition. Instead
the investigation had focused on whether or not the applicant had a right to an
abortion under the applicable law.
Ultimately, on 2 February 2004, the competent court upheld the decision of the prosecuting authorities. The court held that
doctors employed in public hospitals did not have the quality of “public servants”,
which in the circumstances of the case was a necessary element for the
commission of the criminal offence of breach of duty by a public servant.
On 11 May 2004 the applicant filed a civil lawsuit with the Kraków Regional Court against doctors S.B., G.S. and K.R. and
against the Krakow and T. hospitals. She argued that the doctors dealing with
her case had unreasonably procrastinated in their decision on her access to
genetic tests and had thereby failed to provide her with reliable and timely
information about the foetus’ condition. They had also failed to establish the foetus’
condition in time for her to make an informed decision as to whether or not to
terminate the pregnancy. As a result of an unjustified delay in obtaining
relevant information she had been divested of the possibility of exercising an
autonomous choice as to her parenthood.
The applicant further argued that the laws in force authorised
abortion in specific situations. However, that right had been denied her as a
result of difficulties in obtaining timely access to genetic tests and the lengthy
delay before she had ultimately obtained such access.
The applicant referred to section 4 (a) 1.2 of the 1993 Family
Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy
Termination) Act and to Articles 23 and 24 of the Civil Code guaranteeing so-called
personal rights.
The applicant argued that the circumstances in which the
determination of her access to genetic testing had been decided had breached
her personal rights and dignity and had deeply humiliated her. No regard had
been had to her views and feelings.
She also claimed compensation from Dr S.B. for hostile and
disparaging statements about her character and conduct which he had made in a
press interview about her case. He had disclosed to the public details about
her and the foetus’ health covered by medical secret and told the journalist that
the applicant and her husband were bad and irresponsible parents.
She claimed just satisfaction in a total amount
of PLN 110,000 for breach of her rights as a patient and her personal
rights. She also sought a declaration that the three medical establishments
were responsible in respect of future costs to be borne by the applicant in
connection with her daughter’s treatment.
On 28 October 2004 the Tarnów District Court
found S.B. guilty of having disclosed to the public, in an interview he had
given to the press, information covered by medical secrecy, including the fact
that she had envisaged the termination of the pregnancy. It conditionally
discontinued the proceedings against him and fixed a period of probation.
On 19 October 2005 the Kraków Regional Court awarded
the applicant PLN 10,000 against S.B., finding that in a press interview
published in November 2003 he had disclosed information relating to the
applicant’s health and private life in connection with her pregnancy. He had
also made disrespectful and hurtful comments about the applicant’s conduct and
personality.
The court dismissed the remaining claims which
she had lodged against doctors G.S. and K.R. and against the hospitals. The
courts found that the applicant’s personal and patient’s rights had not been
breached by either of these doctors or the hospitals. There had been no
procrastination on the doctors’ part in the applicant’s case. Under the World Health
Organisation standards termination was permissible only until the 23rd week
of pregnancy, whereas the applicant had reported to the hospitals concerned
when she was already in the 23rd week of pregnancy, and on 11 April 2002
she had been in the 24th week. Hence, neither her right to decide about her
parenthood nor her rights as a patient had been breached in such a way as to place
the defendants at fault.
On 12 December 2005 the applicant appealed. She submitted that the right to health-related information was protected both by Article
24 of the Civil Code, providing for legal protection of personal rights, and by
section 19 of the Medical Institutions Act of 1992. In her case doctors
S.B., K.R. and G.S. had been of the view that genetic tests were relevant to
establishing the foetus’ condition, but had not given her the necessary
referral. K.R. had not been able to cite any legal basis for his refusal. G.S.
had stated before the court that he had not issued a referral because the
applicant had not asked for one. However, it was for a doctor with the required
professional knowledge to decide what tests were called for in a given medical
situation. The testimony given by the defendants had clearly shown that their
conduct in the case had failed to comply with the applicable legal provisions. The
doctors had tried to shift the responsibility for the way in which her case had
been handled to the applicant, despite the obvious fact that the fundamental
responsibility for the proper handling of a medical case lay with them as
health professionals. The doctors had also been well aware, as shown by the
evidence which they had given, that the applicant had been desperate, in
reaction to information that the foetus might be affected with a genetic
disorder.
The applicant submitted that the doctors’
conduct had breached the law, in particular section 2 (a) of the 1993 Act in so
far as it imposed on the authorities an obligation to ensure unimpeded access
to prenatal information and testing, in particular in cases of increased risk
or suspicion of a genetic disorder or development problem, or of an incurable
life-threatening ailment. The applicant had therefore had such a right, clearly
provided for by the applicable law, but the defendants had made it impossible
for her to enjoy that right.
On 28 July 2006 the Kraków Court of Appeal
dismissed the applicant’s appeal and upheld the first-instance judgment,
endorsing the conclusions of the lower court.
On 11 July 2008 the Supreme Court allowed her
cassation appeal, quashed the judgment of the appellate court in its entirety
on grounds of substance and ordered that the case be re-examined.
The Supreme Court observed that the applicant’s claim was two-pronged:
it was based firstly on the failure to refer her for genetic testing and,
secondly, on the breach of her right to take an informed decision which
resulted from this failure.
As to the first part of her claim, the Supreme
Court observed that it was not open to doubt (and had been confirmed by
an expert opinion prepared for the purposes of the criminal investigation) that
only genetic testing could confirm or dispel suspicions that the foetus was
affected with Turner syndrome. The doctors concerned had known of the procedure.
They were obliged, under the Medical Institutions Act 1992 (ustawa o
zakładach opieki zdrowotnej), insofar as it guaranteed patients’
rights, to refer the applicant for genetic testing of their own motion, without
her asking for it. Under the same Act, the applicant had a legally protected
right to obtain adequate information about the foetus’ health. Had the doctors
had conscientious objections to issuing a referral, they should have informed
the applicant thereof and referred her to another practitioner who would have referred
her for the testing, in accordance with the applicable laws on the medical
profession governing the relevant procedure, but they had failed to do so.
The procedures
governing the carrying out of genetic tests and their financing by various
parts of the then Medical Insurance Fund, applicable at the material time, could
not be validly relied on as exempting doctors from issuing a referral, in particular
as those procedures were not of a statutory character and could not be plausibly
relied on to justify restricting the applicant’s rights as a patient. The obligation
to refer the applicant had not, contrary to the courts’ position, ended on the
date when legal abortion of a foetus affected with suspected malformation was
no longer possible (that is, after the 22nd week), since there were no legal -
or medical - grounds on which to automatically link genetic testing with access
to legal abortion. Furthermore, at the material time there had been no temporal
limitation in law on the carrying out of these tests during pregnancy. It was
only in 2004 that an ordinance had been enacted under which genetic testing became
available only until the 22nd week of pregnancy.
The Supreme Court considered that there were
therefore good reasons to accept that the doctors dealing with the applicant’s
case had breached her personal rights within the meaning of Article 24 of the
Civil Code and her patient’s rights guaranteed by the Medical Institutions Act.
They had been aware that only genetic testing was capable of determining the
foetus’ genetic situation, but had still refused a referral; instead they had
sent her for various tests carried out in a hospital setting which were not
relevant to such a diagnosis.
Moreover, the lower courts had erred in their finding that the
applicant had not suffered non-pecuniary damage as a result of the doctors’
acts. Such damage had been caused by the distress, anxiety and humiliation she
had suffered as a result of the manner in which her case had been handled.
. As
to the second part of the applicant’s claim, the Supreme Court observed that it
transpired from the case-law of the Supreme Court (IV CK 161/05, judgment
of 13 October 2005; see paragraph 80 below) that a right to be informed
about the foetus’ health and to take informed decisions, in the light of that information,
as to whether to continue the pregnancy or not was a personal right within the
meaning of the Civil Code. If a child affected with a genetic problem was born
as a result of failure to carry out genetic testing, a claim for just
satisfaction (zadośćuczynienie) arose on the parent’s part. The
lower courts had erred in that they had found that there was no adequate causal
link between the doctors’ conduct in the applicant’s case and the fact that she
had not had access to legal abortion. In this respect the court noted that
there had been enough time between the 18th week of the pregnancy, when the
suspicions had arisen, and the 22nd, when the time-limit for legal abortion had
expired, to carry out genetic testing. When the tests had finally been carried
out, the applicant had received the results two weeks later. The tests should
therefore have been carried out immediately after the suspicions had arisen, but
instead, as a result of procrastination on the part of doctors S.B., G.S. and
K.R., they had ultimately been conducted much later.
The court finally held that the amount of
PLN 10,000 to be paid by doctor S.B. for denigrating statements he had
made in a press interview about the applicant was, in the circumstances of the
case, manifestly inadequate.
Hence, the judgment had to be quashed and the
case remitted for re-examination in its entirety.
On 30 October 2008 the Kraków Court of Appeal
gave a judgment. It stated, referring to the findings of the Supreme Court, that
Dr S.B. had failed to refer the applicant for genetic testing as soon as the
suspicions as to the foetus’ condition had arisen. He had referred her twice to
the Kraków hospital, despite the fact that she had already been at that
hospital and that no genetic tests had been carried out at that time. The court
held that the applicant’s claim of PLN 20,000 should therefore be allowed.
It further amended the judgment of the
first-instance court by increasing to PLN 30,000 the just satisfaction to be
paid to the applicant by S.B. for breach of her personal rights in making denigrating
public statements about her in the press.
In so far as the action was directed against the
T. hospital, the court held that the applicant had not received a proper
diagnosis. Dr G.S., working at the T. hospital, had not referred her for genetic
testing, but only to Kraków hospital, even though he had been aware that
genetic testing was not carried out there. When the applicant had eventually received
the results of the tests and, relying on them, had asked G.S. on 29 March 2002
to perform an abortion, a written negative reply had been served on her a month
later, namely on 29 April 2002.
In respect of Kraków University Hospital, the court noted that when the applicant had been admitted there on 14 March 2002, she had already had the results of the scan made by Professor K.Sz. in
Łódź, which strongly indicated that the foetus was affected with
Turner syndrome. In such circumstances, the hospital was under an obligation to
carry out tests in order to either confirm or dispel these suspicions, but had
failed to do so. Other tests had been carried out instead, concerning a
possible inflammatory condition of the foetus, which were irrelevant for the
diagnosis of Turner syndrome. The hospital had exposed the applicant to
unnecessary stress, while the correct diagnosis had not been made. The
defendants had been aware that time was of the essence in the availability of
legal abortion, but had failed to accelerate their decision-taking. The
hospitals were liable for the negligent acts of their employees in so far as it
was their duty to provide the applicant with full information about any genetic
disorder of the foetus and how it might affect its development and to do so in
time for her to prepare herself for the prospect of giving birth to a child
with a genetic disorder. Moreover, the doctors had failed to make any record of
their refusals and the grounds for them, an obligation imposed on them by section
39 of the Medical Profession Act.
As Kraków University Hospital had a higher referral
level, its liability was more serious as a high level of professional skill
could have been reasonably expected of it. The applicant had legitimately
expected that she would obtain diagnostic and therapeutic treatment of the requisite
quality, whereas her case had in fact been handled with unjustifiable delays.
Having regard to the defendants’ failure to
respect the applicant’s rights, the court awarded the applicant PLN 5,000 against
T. Hospital of St. Lazarus and PLN 10,000 against Kraków University Hospital, and dismissed the remainder of her appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
Article 38 of the Constitution reads as follows:
“The Republic of Poland shall ensure the legal protection of
the life of every human being.”
Article 47 of the Constitution reads:
“Everyone shall have the right to legal protection of his
private and family life, of his honour and good reputation and to make decisions
about his personal life.”
B. The 1993 Family Planning (Protection of the Human
Foetus and Conditions Permitting Pregnancy Termination) Act and related
statutes
The Family Planning (Protection of the Human
Foetus and Conditions Permitting Pregnancy Termination) Act, which is still in
force, was passed by Parliament in 1993. Section 1 provided at that time that
“every human being shall have an inherent right to life from the moment of
conception”.
Section 2 (a) of the 1993 Act reads:
“The State and local administration shall ensure unimpeded
access to prenatal information and testing, in particular in cases of increased
risk or suspicion of a genetic disorder or development problem or of an
incurable life-threatening ailment.”
Section 4(a) of the 1993 Act 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;
2) prenatal tests or
other medical findings indicate a high risk that the foetus will be severely
and irreversibly damaged or suffering from an incurable life-threatening
ailment;
3) there are strong
grounds for believing that the pregnancy is a result of a criminal act.
2. In the cases listed above under 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 3) above, until the end of the twelfth
week of pregnancy.
3. In the cases listed under 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 paragraph 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.”
An ordinance issued by the Minister of Health on
22 January 1997, on qualifications of doctors authorised to perform abortions,
contains two substantive sections. In its section 1, the requisite
qualifications of doctors authorised to perform legal abortions in the conditions
specified in the 1993 Act are stipulated. Section 2 of the Ordinance
reads:
“The circumstances indicating that pregnancy constitutes a
threat to the woman’s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman’s condition.”
On 21 December 2004 the Minister of Health
enacted an Ordinance on Certain Medical Services (rozporządzenie
Ministra Zdrowia w sprawie
zakresu świadczeń opieki zdrowotnej).
An Appendix No. 3 to this Ordinance, entitled Scope of Medical Prenatal
Services (...) (Zakres lekarskich badań prenatalnych (...)) read,
in so far as relevant:
“1. Prenatal tests are to be understood as
examinations and diagnostic procedures carried out in respect of pregnant women
during the first and second trimesters of pregnancy where there is an increased
risk of genetic ailment or malformation, but not later than in the 22nd
week of pregnancy.
2. Prenatal tests comprise: 1) non-invasive
examinations [including ultrasound scans and biochemical tests [marking of
serum levels in a pregnant woman’s blood]; 2) invasive tests [including biopsy
of the trophoblast and amniocentesis].
3. Prenatal tests are recommended, in particular,
where ... 5) results of the ultrasound scan carried out during the pregnancy
indicate an increased risk of the foetus being affected with a chromosomal
aberration or other malformation.”
C. Relevant provisions of the Criminal Code
Termination of
pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence
punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a
pregnancy in violation of the Act or assists 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.
Under Article 157 (a) 1, causing physical damage
to an unborn child is a criminal offence punishable by a fine, by limitation of
liberty, or by imprisonment of up to two years.
D. Patients’ rights
At the relevant time, patients rights were
provided for by the Medical Institutions Act 1992 (ustawa o zakładach
opieki zdrowotnej). Its section 19 (2) provided that a patient had a right
to obtain information about his or her condition.
E. Rights and obligations of doctors
Under section 39 of the Medical Profession Act (ustawa
o zawodzie lekarza), a doctor may refuse to carry out a medical service,
invoking her or his objections on the ground of conscience. He or she is
obliged to inform the patient where the medical service concerned can be
obtained and to register the refusal in the patient’s medical records. Doctors
employed in health care institutions are also obliged to inform their
supervisors of the refusal in writing.
Section 31.1 of the Medical Profession Act 1996 provides
that physicians are under an obligation to provide to the patient, or his or
her representative, comprehensible information about his or her health,
diagnosis, proposed and possible diagnostic and therapeutic methods,
foreseeable consequences of a decision to have recourse to them or not, and about
possible results of therapy and prognosis.
Section 37 of the 1996 Medical Profession
Act provides that in the event of any diagnostic or therapeutic doubts, a
doctor may, on his or her own initiative or at a patient’s request and if he or
she finds it reasonable in the light of the requirements of medical science,
obtain an opinion of a relevant specialist or arrange a consultation with other
doctors.
F. Civil liability in tort
Articles 415 et seq. of the Polish Civil
Code provide for liability in tort.
Under this provision, whoever by his or her fault causes damage to another
person, is obliged to redress it.
Pursuant to Article 444 of the Civil Code,
in cases of bodily injury or harm to health, a perpetrator shall be liable to
cover all pecuniary damage resulting therefrom.
Under Article 448
of the Civil Code, a person whose personal rights have been infringed may seek
compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation
for non-pecuniary damage (krzywda)
suffered by anyone whose personal rights have been infringed. Alternatively,
the person concerned, without prejudice to the right to seek any other relief
that may be necessary to remove the consequences of the infringement sustained,
may ask the court to award an adequate sum for the benefit of a specific social
interest. ...”
G. Case-law of the Polish courts
In a judgment of 21 November 2003 (V CK
167/03) the Supreme Court held that unlawful refusal to terminate a pregnancy
where it had been caused by rape, that is to say in circumstances provided for
by section 4 (a) 1.3 of the 1993 Act, could give rise to a
compensation claim for pecuniary damage sustained as a result of such refusal.
In a judgment of 13 October 2005 (IV CJ 161/05)
the Supreme Court expressed the view that a refusal of prenatal tests in
circumstances where it could be reasonably surmised that a pregnant woman ran a
risk of giving birth to a severely and irreversibly damaged child, that is to
say in circumstances set out by section 4 (a) 1.2 of that Act, gave rise to a
compensation claim.
H. Relevant non-Convention material
1. Texts adopted within the
Council of Europe
On 21 June 1990 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (90) 13 on
prenatal genetic screening, prenatal genetic diagnosis and associated genetic
counselling. The recommendation contains, inter alia, the following
principles:
“The Committee of Ministers [...] noting that in recent decades
considerable progress has been achieved in detecting genetic abnormalities in
the child to be born, through genetic screening and through prenatal diagnosis
of pregnant women, but also noting the fears that these procedures arouse;
Considering that women of childbearing age and couples should
be fully informed and educated about the availability of, the reasons for and
risks of such procedures;
Convinced that the genetic diagnosis and screening must always
be accompanied by appropriate genetic counselling but that such counselling
should in no cases be of a directive nature and must always leave the woman of
childbearing age fully informed to take a free decision; ...
Recommends that the governments of the member States adopt
legislation in conformity with the Principles contained in this Recommendation
or take any other measures to ensure their implementation.
"Prenatal diagnosis" is the term used to describe
tests used to confirm or exclude whether an individual embryo or foetus is
affected by a specific disorder.
Principle 1 : No prenatal genetic screening and/or
prenatal genetic diagnosis tests should be carried out if counselling prior to
and after the tests is not available.
Principle 2 : Prenatal genetic screening and/or
prenatal genetic diagnosis tests undertaken for the purpose of identifying a
risk to the health of an unborn child should be aimed only at detecting a
serious risk to the health of the child. ...
Principle 4 : The counselling must be non-directive;
the counsellor should under no condition try to impose his or her convictions
on the persons being counselled but inform and advise them on pertinent facts
and choices. ...
Principle 9 : In order to protect the woman’s
freedom of choice, she should not be compelled by the requirements of national
law or administrative practice to accept or refuse screening or diagnosis. In
particular, any entitlement to medical insurance or social allowance should not
be dependent on the undergoing of these tests.
Principle 10 : No discriminatory conditions should
be applied to women who seek prenatal screening or diagnostic testing or to
those who do not seek such tests, where these are appropriate.”
In 2008 the Parliamentary Assembly of the
Council of Europe adopted Resolution 1607 (2008) “Access to safe and legal
abortion in Europe”. This resolution, in so far as relevant, reads:
“1. The Parliamentary Assembly reaffirms that abortion can in
no circumstances be regarded as a family planning method. Abortion must, as far
as possible, be avoided. All possible means compatible with women’s rights must
be used to reduce the number of both unwanted pregnancies and abortions.
2. In most of the Council of Europe member states the law
permits abortion in order to save the expectant mother’s life. Abortion is
permitted in the majority of European countries for a number of reasons, mainly
to preserve the mother’s physical and mental health, but also in cases of rape
or incest, of foetal impairment or for economic and social reasons and, in some
countries, on request. The Assembly is nonetheless concerned that, in many of
these states, numerous conditions are imposed and restrict the effective access
to safe, affordable, acceptable and appropriate abortion services. These
restrictions have discriminatory effects, since women who are well informed and
possess adequate financial means can often obtain legal and safe abortions more
easily.
3. The Assembly also notes that, in member states where
abortion is permitted for a number of reasons, conditions are not always such
as to guarantee women effective access to this right: the lack of local health
care facilities, the lack of doctors willing to carry out abortions, the
repeated medical consultations required, the time allowed for changing one’s
mind and the waiting time for the abortion all have the potential to make
access to safe, affordable, acceptable and appropriate abortion services more
difficult, or even impossible in practice.
4. The Assembly takes the view that abortion should not be
banned within reasonable gestational limits. A ban on abortions does not result
in fewer abortions but mainly leads to clandestine abortions, which are more
traumatic and increase maternal mortality and/or lead to abortion “tourism”
which is costly, and delays the timing of an abortion and results in social
inequities. The lawfulness of abortion does not have an effect on a woman’s
need for an abortion, but only on her access to a safe abortion.
...
6. The Assembly affirms the right of all human beings, in
particular women, to respect for their physical integrity and to freedom to
control their own bodies. In this context, the ultimate decision on whether or
not to have an abortion should be a matter for the woman concerned, who should
have the means of exercising this right in an effective way.
7. The Assembly invites the member states of the Council of
Europe to:
7.1. decriminalise abortion within reasonable gestational
limits, if they have not already done so;
7.2. guarantee women’s effective exercise of their right of
access to a safe and legal abortion;
7.3. allow women freedom of choice and offer the conditions for
a free and enlightened choice without specifically promoting abortion;
7.4. lift restrictions which hinder, de jure or de
facto, access to safe abortion, and, in particular, take the necessary steps to
create the appropriate conditions for health, medical and psychological care
and offer suitable financial cover ...”
The provisions of the Convention for the
Protection of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine (Convention on Human Rights and
Biomedicine), adopted in Oviedo, Spain, on 4 April 1997, in so far as
relevant, read:
“Article 5 - General rule
An intervention in the health field
may only be carried out after the person concerned has given free and informed
consent to it. This person shall beforehand be given appropriate information as
to the purpose and nature of the intervention as well as on its consequences
and risks. ...
Article 10 - Private
life and right to information
Everyone has the right to respect for
private life in relation to information about his or her health.
Everyone is entitled to know any
information collected about his or her health. However, the wishes of
individuals not to be so informed shall be observed.”
2. The texts adopted within the United Nations
. The
Polish Government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5),
stated:
“106. In Poland data about abortions relate solely to abortions
conducted in hospitals, i.e. those legally admissible under a law. The number
of abortions contained in the present official statistics is low in comparison
with previous years. Non-governmental organisations on the basis of their
own research estimate that the number of abortions conducted illegally in Poland amounts to 80,000 to 200,000 annually.
107. It follows from the Government’s annual Reports of the
execution of the [1993] Law [which the Government is obliged to submit to the
Parliament] and from reports of non-governmental organisations, that the Law’s
provisions are not fully implemented and that some women, in spite of meeting
the criteria for an abortion, are not subject to it. There are refusals to
conduct an abortion by physicians employed in public health care system units
who invoke the so-called conscience clause, while at the same time women who
are eligible for a legal abortion are not informed about where they should go.
It happens that women are required to provide additional certificates, which
lengthens the procedure until the time when an abortion becomes hazardous for
the health and life of the woman. There [are] no official statistical data
concerning complaints related to physicians’ refusals to perform an abortion.
... In the opinion of the Government, there is a need to [implement] already
existing regulations with respect to the ... performance of abortions.”
The United Nations Human Rights Committee
considered the fifth periodic report of Poland (CCPR/C/POL/2004/5) at its
2240th and 2241st meetings (CCPR/C/SR.2240 and 2241), held on 27 and 28 October
2004 and adopted the concluding observations which, in so far as relevant, read:
“8. The Committee reiterates its deep concern about restrictive
abortion laws in Poland, which may incite women to seek unsafe, illegal
abortions, with attendant risks to their life and health. It is also concerned
at the unavailability of abortion in practice even when the law permits it, for
example in cases of pregnancy resulting from rape, and by the lack of
information on the use of the conscientious objection clause by medical
practitioners who refuse to carry out legal abortions. The Committee further
regrets the lack of information on the extent of illegal abortions and their
consequences for the women concerned (art. 6).
The State party should liberalize its legislation and practice
on abortion. It should provide further information on the use of the
conscientious objection clause by doctors, and, so far as possible, on the
number of illegal abortions that take place in Poland. These recommendations
should be taken into account when the draft Law on Parental Awareness is
discussed in Parliament.”
The Committee on the Elimination of
Discrimination against Women (CEDAW), at its 37th session, held from
15 January to 2 February 2007, considered the combined fourth and fifth
periodic report (CEDAW/C/POL/4-5) and the sixth periodic report of Poland (CEDAW/C/POL/6). It formulated the following concluding comments:
“24. ... The Committee is concerned about the lack of official
data and research on the prevalence of illegal abortion in Poland and its impact on women’s health and life.
... 25. The
Committee urges the State party to take concrete measures to enhance women’s
access to health care, in particular to sexual and reproductive health
services, in accordance with article 12 of the Convention and the Committee’s
general recommendation 24 on women and health. It calls on the State party to
conduct research on the scope, causes and consequences of illegal abortion and
its impact on women’s health and life. It also urges the State party to ensure
that women seeking legal abortion have access to it, and that their access is
not limited by the use of the conscientious objection clause.”
3. The International Federation of Gynaecology and
Obstetrics
The objective of the International Federation of
Gynaecology and Obstetrics (FIGO) is to promote sexual and reproductive health
and rights through educational research and advocacy activities. In 1991 its
Ethics Committee issued a statement on Ethical Issues Concerning Prenatal
Diagnosis of Disease in the Conceptus. It states that:
“Prenatal diagnosis has become an established
service in the care of pregnant women. Further advances, especially at the
molecular level, will expand the accuracy and diagnostic scope of manifest
disease in later life. Such information may lead to termination of pregnancy,
genetic engineering or to adjustments in future life-style. There is also
the potential danger of stigmatization or discrimination against the parent or
the child identified as affected by some disorder or potential disorder. ...
A potential benefit of prenatal diagnosis is
the rejection of the diseased conceptus when requested by the woman and
permitted by the law. The legal position and the likely attitude of the woman
to termination of pregnancy should be ascertained in advance.
Prior to undertaking diagnostic procedures,
women should be counseled about the risks and benefits of the technique to be
used. Such counseling should be factual, respectful of the woman’s view, and
non-coercive. Consent should be obtained for the use of the procedure.
Women should not be denied the availability of
prenatal diagnosis because they will not agree in advance to pregnancy
termination as an option. Nor should the techniques be withheld on social or
financial grounds.
Knowledge of prenatally diagnosed disease
should not be used as justification for withholding normal medical support or
services during pregnancy, at birth, or thereafter, which are desired by the
parents.
Equity requires that these important
diagnostic services are made as widely available as possible. ...”
. The
FIGO Ethics Committee’s 1991 statement on Ethical Aspects of Termination of
Pregnancy Following Prenatal diagnosis states, inter alia, that:
“3. Knowledge acquired by prenatal
diagnosis allows for the possibility of termination of pregnancy in those
countries where this is legal. This raises serious ethical questions with
regard to the degree of abnormality and the reduction in quality of life which
may justify this course of action. The attitude of the parents, particularly
the woman, after counseling, is of major importance in reaching a decision. It
is unethical for anyone to bring pressure to bear on the couple with a view to
their accepting a particular option.
4. Doctors should be aware of the desire of parents for a
“perfect baby”. However, this wish is unrealistic and parents should be
counselled accordingly.
5. Termination should be discouraged when the
disorder is treatable and will not necessarily affect the future quality of
life.
6. In enabling parents to reach an appropriate
decision the primary concern should be the quality of life and the longevity of
the individual. A second consideration must be the effect that the birth and
life of such a child might have on the woman herself and on her family. In this
regard consideration must also be given to the effect of the termination of the
pregnancy on the physical and/or psychological health of the woman and her
family. A third concern is the availability of resources and support for
long-term care.”
. The Committee’s 1994 statement on the Ethical Framework for Gynecologic
and Obstetric Care requires that:
“3. when decisions regarding medical care are required, women
be provided with full information on available medical alternatives including
risks and benefits. Informing women and obtaining their input and consent, or
dissent, should be a continuing process.
4. If a physician is either unable or
unwilling to provide a desired medical service for non-medical reasons, he or
she should make every effort to achieve appropriate referral.”
THE LAW
The applicant complained that the facts of the
case had given rise to a breach of Article 3 of the Convention which,
insofar as relevant, reads as follows:
“No one shall be subjected to ... inhuman or degrading
treatment... ”
The applicant further complained that the facts
of the case had given rise to a breach of Article 8 of the Convention. Her
right to respect for her private life and her psychological and moral integrity
had been violated by the authorities’ failure to provide her with access to
genetic tests in the context of her uncertainty as to whether the foetus was
affected with a genetic disorder and also by the absence of a comprehensive
legal framework to guarantee her rights.
Article 8 of the
Convention, insofar as relevant, reads as follows:
“1. Everyone has the
right to respect for his private ... life ...
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. The applicant’s status as a victim
1. The parties’ submissions
The Government first submitted that the
applicant had rejected their friendly settlement proposal. In their view, she
had therefore lost her status as a victim of a breach of her rights guaranteed
by the Convention.
They further submitted that she had lost that status also
because the Kraków Court of Appeal, in its judgment of 30 October 2008, awarded
her PLN 65,000 and that judgment subsequently became final.
The Government argued that the Supreme Court, in
its judgment of 11 July 2008, had held that the right to family planning
and the related right to legally terminate the applicant’s pregnancy on
conditions provided for by Polish law had to be regarded as a personal right
within the meaning of the Civil Code. These rights were therefore to be seen as
falling within the ambit of Articles 3 and 8 of the Convention. The Supreme
Court and the Court of Appeal had thereby acknowledged that the applicant’s
rights had been breached and afforded redress to her.
The applicant argued that the violations of the
Convention in her case had resulted from the lack of review procedures
available in connection with the doctors’ refusal to provide her with prenatal diagnosis
and care and from the unregulated and chaotic practice of conscientious
objection under Polish law, which formed the basis of her complaints under the
Convention. She further emphasised that she had received insufficient
compensation for the breaches of her rights.
In addition, the domestic courts had failed to address the
systemic shortcomings of Poland’s health care and legal system disclosed by her
case. She referred to the case of M.A v. the United Kingdom (no. 35242/04,
ECHR 2005 - VIII) where a family judge had apologised for the failures in the
child care system which had come to light against the background of an
individual case, had carried out an explicit and detailed analysis of the
system’s shortcomings and had made a list of recommendations to avoid
repetition of similar violations. She argued that this should have served as a
model approach for dealing with her case.
The applicant concluded that, in any event, the
damages awarded to her on the domestic level should not be used as a means of
avoiding the State’s compliance with its obligations under the Convention.
2. The Court’s assessment
In so far as the
Government referred to the friendly settlement negotiations between the
parties, the Court first reiterates that in accordance with Article 38 § 2
of the Convention, friendly settlement negotiations are confidential and
without prejudice to the parties’ arguments in the contentious proceedings.
Pursuant to Rule 62 of the Rules of Court, no written or oral
communication and no offer or concession made in the framework of the attempt
to secure a friendly settlement may be referred to or relied on in the
contentious proceedings. In any event, in the present case the applicant
refused the terms of the proposed settlement. Her refusal to settle the case
has therefore no incidence on her victim status (see, Chebotarev v. Russia,
no. 23795/02, § 20, 22 June 2006, mutatis mutandis; Nina
Kazmina and Others v. Russia, nos. 746/05, 13570/06, 13574/06, 13576/06 and
13579/06 (Sect. 1) (Eng), § 25, 13 January 2009; Tahsin Acar v. Turkey (preliminary
issue) [GC], no. 26307/95, § 74, ECHR 2003-VI).
. The
Court reiterates that it falls, firstly, to the national authorities to
redress any violation of the Convention. In this regard, the question whether
an applicant can claim to be a victim of the violation alleged is relevant at
all stages of the proceedings under the Convention (see, inter alia, Siliadin
v. France, no. 73316/01, § 61, ECHR 2005-VII, and Scordino
v. Italy (no. 1) [GC], no. 36813/97,
§ 179, ECHR 2006-V). An applicant’s status as a victim of a breach
of the Convention may depend on compensation being awarded at domestic level on
the basis of the facts about which he or she complains before the Court (see Normann v. Denmark (dec.), no. 44704/98,
14 June 2001; and Jensen and
Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003). The
adequacy of that redress falls to be assessed in the light of all the
circumstances of the case seen as a whole (see, mutatis
mutandis, Dubjaková v. Slovakia (dec.), no.
67299/01, 19 October 2004). The applicant’s victim status also depends on
whether the domestic authorities have acknowledged, either expressly or in
substance, the breach of the Convention. Only when those two conditions are
satisfied does the subsidiary nature of the protective mechanism of the
Convention preclude examination of an application (see Eckle v. Germany, judgment of 15
July 1982, Series A no. 51, p. 32, §§ 69 et seq., and Jensen v. Denmark (dec.),
no. 48470/99, ECHR 2001-X).
The Court has therefore to examine whether the
national authorities have acknowledged, either expressly or in substance, the
breach of the rights protected by the Convention.
It notes in this connection that the applicant,
in her civil case brought before the domestic courts, complained about the
doctors’ failure to refer her for the purposes of genetic testing and about the
resultant breach of her right to make an informed decision as to the
continuation of pregnancy (see paragraph 43 above).
Furthermore, she complained that her personal
rights, including her right to respect for personal dignity, had been breached
as a result of the manner in which the issue of her access to genetic tests had
been determined (see paragraph 43 above).
The Court observes that the Supreme Court, in
its judgment of 11 July 2008, held that the right of a pregnant woman to
be informed about the foetus’ health in a timely manner and to take informed
decisions in the light of that information as to whether to continue the
pregnancy or not was a personal right within the meaning of the Civil Code. The
Supreme Court found that the legal assessment of the doctors’ conduct in
connection with the applicant’s access to genetic testing made by the lower courts
was untenable. It accordingly quashed, in its entirety, the judgment of the
Kraków Court of Appeal, given on 28 July 2008. As a result, in its subsequent -
and final - judgment of 30 October 2008 the Kraków Court of Appeal reversed its
previous position and acknowledged that the applicant’s patient’s and personal
rights had been breached.
The Court notes that in its judgment the
Supreme Court had shown a thorough understanding of the legal issues arising in
the case and interpreted them in a manner showing regard for the applicant’s dignity
and personal autonomy, values protected by the provisions of the Polish Civil
Code. It carefully weighed them against other interests involved in the case. In
particular, the Supreme Court emphasised a patient’s right of access to
information relevant to her or his health, including about the foetus’
condition. It also held that the applicant had suffered distress, anxiety and
humiliation as a result of the manner in which her case had been handled (see paragraph
54 above).
As to the first set of issues raised by the
applicant’s case (see paragraph 99 above) the Court notes that the
applicant submitted them to the Court, alleging that they had given rise to a
breach of Article 8 of the Convention (see paragraph 91 above). The Court
considers that this part of the Government’s objection is closely linked to the
substance of the applicant’s complaint under this provision and that its
examination should therefore be joined to the merits of that complaint.
In so far as the Government’s objection as to
the applicant’s victim status also concerns the applicant’s complaint under Article
3 of the Convention (see paragraph 90 above), the Court is of the view that
the amounts awarded at the domestic level must be viewed against the background
of the case seen as a whole. The civil case concerned the protection of the
applicant’s dignity. The issues involved in the case were therefore of the
utmost importance for her.
It is in this context that the adequacy of the
award made in the civil proceedings must be assessed. The courts awarded the
applicant PLN 65,000 for all three kinds of complaints which she had made
in respect of the way in which she had been treated by the health
professionals.
However, the Court observes that that amount
covered also her claim for defamation against S.B., one of the doctors who had
made disparaging statements about her in a press interview. He was ordered to
pay PLN 50,000, of which PLN 30,000 concerned the claims arising in
connection with the interview. Only the amount of PLN 20,000 concerned the same
issues as those examined by the Court in the present case and arising in
connection with the circumstances surrounding Dr S.B.’s failure to issue to the
applicant a prompt referral for genetic testing.
The Court further notes that the applicant was
also awarded PLN 5,000 against the hospital in T. and PLN 10,000 against the
Kraków University Hospital in respect of the breach of her rights as a
patient. These amounts have to be added to the sum of PLN 20,000 referred to in
the above paragraph. In sum, the amount of the domestic award relevant for the
case before the Court in its entirety was therefore PLN 35,000.
The Court notes that in the case of Tysiąc
v. Poland it examined whether the Polish State had complied with its
positive obligation under Article 8 of the Convention to safeguard the
applicant’s right to respect for her private life in the context of a
controversy as to whether she was entitled to a legal abortion. It awarded the
applicant EUR 25,000
in respect of a breach of this provision. This amount was almost three times
higher than that awarded by the domestic courts in the present case in respect
of the applicant’s complaints made both under Article 3 and Article 8 of the
Convention. The Court is therefore of the view that, having regard to the
circumstances of the case, the amount of PLN 35,000 cannot be regarded as financial
redress commensurate with the nature of the damage alleged by the applicant (compare
and contrast Caraher v. the United Kingdom (dec.), no. 24520/94,
ECHR 2000-I).
The Court finds that the applicant has not
ceased to be a victim of a breach of Article 3 of the
Convention within the meaning of Article 34 of the Convention. The
Government’s objection in this respect is accordingly dismissed.
3. Exhaustion of domestic remedies
The Government submitted that the applicant had
failed to exhaust relevant domestic remedies. The Polish legal system
provided for legal avenues which made it possible, either by means of criminal
proceedings or civil compensation claims, to establish liability on the part of
doctors for any damage caused by medical malpractice.
They argued that Article 8 of the Convention
did not entail a duty for the State either to establish a general preventive
mechanism for review of medical decisions, or to create an appeal procedure regarding
access to medical services, even where access to another medical service hinged
on a prior diagnostic service. This was also the case for medical services
where the time factor was crucial, such as chemotherapy, for instance, as well
as services which were essential in order to prevent serious health damage or
even death. There were no reasons for departing from this general rule where
medical decisions could help to determine whether a foetus was suffering from
possible genetic malformation.
Furthermore, the State’s choice between
creating preventive measures or retroactive ones, such as civil or criminal
liability, depended on assumptions made by public powers with respect to a
conflict between the rights of a pregnant woman and those of an unborn child.
The obligations imposed by Article 8 did not exclude perceiving the life of an
unborn child as of such crucial value as to render acceptable a risk of
wrongful medical diagnosis concerning the existence - or otherwise - of
conditions which would make an abortion lawful. Likewise, such a perception of
the interests involved could also justify limiting the legal avenues for
challenging such a diagnosis to retroactive ones. Obviously, only a woman who
wished to terminate her pregnancy would resort to a potential review mechanism
in relation to a medical diagnosis impinging on the foetus’ rights. As a
result, only an unborn child would bear the risk of such a diagnosis being
incorrect.
The Government further submitted that the
applicant should have resorted to a constitutional complaint to challenge the
provisions of the 1993 Act. The Court had already held a constitutional
complaint to be an effective and sufficient domestic remedy.
The applicant submitted that the civil proceedings
did not provide sufficient and effective remedies with respect to the breaches
alleged. Procedures in which decisions concerning the availability of lawful
abortion were reviewed post factum could not fulfil such a function (Tysiąc,
cited above, § 118). Retrospective measures alone were not sufficient to
provide appropriate protection for the physical and psychological integrity of
individuals in such a vulnerable position as the applicant (Tysiąc,
§ 124). The available legal framework as applicable at the material time did
not contain any effective mechanisms capable of determining whether the
conditions for obtaining a lawful abortion had been met (Tysiąc, § 127).
She further argued that she had sought
information on the health of the foetus, through prenatal genetic examination,
which would have enabled her to make an informed decision, based on medical
evidence, as to whether to continue her pregnancy or not. Instead, due to
systemic problems in the health care system and, in particular, the State’s
failure to implement existing laws on conscientious objection and on access to
prenatal health care services and to lawful abortion, the doctors had intentionally
denied her timely information and health services that should have been
considered normal and accessible, lawful and appropriate in the circumstances
of her case. Delaying prenatal diagnostic testing also delayed the taking of potential
informed decision as to whether to request a termination of pregnancy, to which
the applicant was entitled, ultimately making abortion impossible.
In so far as the Government refer to a
constitutional complaint as a remedy relevant in the applicant’s circumstances,
the Court is of the view that such a complaint would not have been an effective
means of protecting the applicant’s right to respect for her private life for
the following reasons.
The Court notes, firstly, that it has already
dealt with the question of the effectiveness of the Polish
constitutional complaint (Szott-Medyńska
v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.),
no 8812/02, 8 November 2005; Wypych v. Poland
(dec.), no. 2428/05,
25 October 2005). It examined its characteristics and, in particular,
found that the constitutional complaint was an effective remedy for the
purposes of Article 35 § 1 of the Convention only in situations where the
alleged violation resulted from the direct application of a legal provision
considered by the complainant to be unconstitutional. In the present case, the
complaints raised by the applicant cannot be said to
have originated from any single legal provision or even from a well-defined set
of provisions. They rather resulted from the way in which the laws were applied
in practice to her case. However, it follows from the case-law of the Polish Constitutional Court that it lacks jurisdiction to examine the way in which the
provisions of domestic law were applied in an individual case.
117. Furthermore, the
Court has already held that the constitutional courts were not
the appropriate fora for the primary determination as to whether a woman
qualifies for an abortion which is lawfully available in a State. In particular, this process would amount to requiring the constitutional courts to resolve through evidence, largely of a medical nature, whether a woman had established the existence of circumstances in
which legal abortion could be sought under the 1993 Act (see, mutatis
mutandis, A, B and C v. Ireland [GC], no. 25579/05, § 258, 16 December 2010).
The Court therefore dismisses the Government’s
preliminary objection as regards the applicant’s failure to
exhaust domestic remedies by not lodging a constitutional complaint.
Furthermore, the Court considers that the
Government’s objection concerning the alleged failure to exhaust domestic
remedies by way of pursuing a compensation claim before the civil courts is
closely linked to the substance of the applicant’s complaints under Article 8 §
1 read together with Article 13 of the Convention, and should be joined to the
merits of the case.
The Court further notes that the application is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. THE MERITS
The Court will first set out the submissions
received from third parties who were granted leave to intervene in the
case (A.). It will then examine the merits of the applicant’s complaints under
Articles 3, 8 and 13 of the Convention (B., C. and D.).
A. Third parties’ submissions
1. Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, the
office of the United Nations High Commissioner for Human Rights
. Because
the decision to continue or terminate a pregnancy had a profound effect on a
woman’s private life, including her physical and moral integrity, any
interference with this decision must be analysed in light of the woman’s right
to privacy. This was true regardless of whether the interference directly
affected the woman’s access to legal abortion or affected it indirectly, by
denying her the prerequisite healthcare she needed in order to make a decision
regarding continuation or termination of the pregnancy. Numerous international
conventions broadly recognised a woman’s right to the highest attainable
standard of health, including access to appropriate reproductive care. Privacy was
particularly important in the case of sexual and reproductive healthcare, which
must be provided in a manner consistent with women’s rights to personal
autonomy.
. Access
to prenatal genetic examinations touched upon reproductive health-related
aspects of the right to privacy. Access to information was particularly
important in the context of health, as individuals cannot make meaningful
healthcare decisions without access to health-related information.
Accurate knowledge of an individual’s health status was necessary to enable that
individual to understand her health care options and protect her bodily
integrity by deciding which health care treatment she would avail herself of.
. This
right to information applied with regard to a woman’s own reproductive status,
knowledge of which was particularly important if women were to be empowered to
preserve their bodily integrity by making reproductive health care decisions.
Pregnant women might need access to prenatal examinations in order to obtain
accurate information about their own health and the health of their foetus,
particularly where there were other indications of genetic malformation.
Genetic examinations were often the most reliable method for detecting foetal
genetic defects.
. States
must allow individuals to make health care decisions in an active and informed
manner. Genetic examinations were one important source of information on foetal
health. Obstructing access to examinations necessary to make reproductive
decisions interfered with women’s reproductive health care decision-making. Without
information about whether a foetus was healthy or severely malformed, a woman could
not make crucial decisions regarding prenatal treatment or whether to carry the
foetus to term. When a country permitted abortion in cases of foetal genetic
defect, women must have access to prenatal genetic examinations in order to
exercise their right to a legal abortion.
. One
way in which States interfered with a woman’s right to decide on a legal
abortion was to make such abortions unavailable in practice. The Human Rights
Committee had expressed concern regarding States that professed to grant women
access to legal abortion but allowed practices to continue that interfered with
actual access to abortion services.
. Where
a State allowed providers to conscientiously object to providing health
services, it must ensure that it had other adequate procedures in place to
safeguard women’s ability to effectively exercise their rights under Article 8
of the Convention, including the right to an abortion where legal and the right
to information regarding their health status.
. The
consensus among UN Treaty Monitoring Bodies and international health organisations
was that the right of a health care provider to conscientiously object to the
provision of certain health care services must be carefully regulated so that
it did not effectively deny a woman the right to obtain such services which were
guaranteed by the law, in this case pursuant to Article 8 of the European
Convention.
2. International Reproductive and
Sexual Health Law Programme of the Law Faculty, University of Toronto
. The
protection of prenatal life was an important social and moral value in all
Contracting Parties. However, it must be asked whether protecting this value was
a legitimate reason to deny women access to prenatal tests that will assist
them, rather than their doctors, to make informed decisions as to whether to
pursue consequent treatment.
. There was
widespread regional and international recognition of the importance of ensuring
women’s right to equal access to health care systems generally, and access to
timely diagnostic treatment and lawful abortion.
. Where
uniform European standards existed regarding women’s timely access to
medically-indicated diagnostic tests and consequent lawful treatment,
Contracting Parties’ margin of appreciation was greatly diminished.
. The
stereotype that motherhood was women’s natural role and destiny was discriminatory
when it implied that all women should be treated only as mothers or potential
mothers, and not according to their individual needs not to become mothers at
certain points in their lives. When Contracting Parties incorporated such a
stereotype into the delivery of health care services, it disadvantaged women.
Discriminatory stereotypes limited the ability of individual women to make
autonomous decisions about their health and their private and family life that could
conflict with their role as mothers or future mothers.
. Women
should not be conditioned by State agents’ withholding of available medical
services that could diagnose severe foetal abnormalities when the law allowed
them the private choice to terminate such pregnancies.
. Accordingly,
unjust denial or obstruction of diagnostic services on the basis of a woman’s
express intention to terminate a pregnancy was an interference with private
life. A pregnant woman’s suffering was too intimate and personal for the State
to insist, without more, upon its own vision of the woman’s role, however
dominant that vision had been in the course of our history and culture. The
destiny of the woman must be shaped to a large extent by her own conception of
her spiritual imperatives and her place in society.
. Women’s
private choices of the design and composition of their families should not be
at the disposal of health care professionals or institutions that determine the
allocation of available health care resources, or that seek to advance
sex-specific norms based on religious or cultural ideologies through the denial
of available diagnostic services in order to prevent outcomes of which they
disapprove.
. Women’s
human right to control their own bodies affected their capacity to serve their
families, including dependent children and often dependent elderly family
members. The design and composition of women’s family life, including how they
proportioned resources of time and energy among healthy and disabled children,
and among children and elderly family members, was a matter of deep personal
and emotional significance.
. There was
a wide consensus that in the administration of health-care systems,
Contracting Parties were obligated positively to ensure reasonable availability
of diagnostic services to enable patients to have the information necessary to
make medical decisions significant for their health and family well-being.
. This
principle of free and informed decision-making was found in codes of medical
ethics and was reflected in national laws, court decisions of Contracting
Parties, international legal norms and their application, and international
guidelines on medical practice.
. Doctors
can exploit their professional authority to treat female patients according to
their own beliefs and sex-based stereotypes, rather than according to the
actual needs of such patients. When patients were treated in ways unrelated to
their own medical needs, and to their own priorities and aspirations, but
rather as a means to advance doctors’ own ends, there was a form of degrading
treatment. Denying women the exercise of reproductive autonomy through
obstructing timely access to prenatal diagnostic tests might likewise violate
Article 3. Any resulting involuntary continuation of a legally terminable
pregnancy, and the birth of a child with severe abnormalities, would constitute
a form of inhuman and degrading treatment.
. Contracting
Parties must account for the particular sex-specific vulnerabilities of
women seeking prenatal genetic diagnosis. Such women often had existing
dependent children for whom they had to care. They faced a very stressful
decision, perhaps one of the most difficult decisions in their lives. As a
result, they required non-judgmental counseling that enabled them to think through
their particular life circumstances, personal values and priorities, usually
under severe time constraints.
. When
Contracting Parties, in regulating health care systems, subjected pregnant
women, faced with the possibility of births of children with severe
abnormalities, to circuitous or obstructive means to obtain information or
treatment, with the effect that they were denied opportunities to make timely
decisions about legal abortion services, there was a violation of Article 14 of
the Convention in relation to its Article 3.
. Contracting
Parties should be required to observe guidelines on the provision of prenatal
genetic diagnosis. Such guidelines should include the ethical principle to
consider first the well-being of the patient, and to ensure that this principle
was implemented, irrespective of the sex of the patient.
3. The International Federation of
Gynaecology and Obstetrics
. The
International Federation of Gynaecology and Obstetrics (FIGO) submitted that it
could be useful for the Court to be aware of the Federation’s and its Ethics
Committee’s findings and recommendations on women’s access to medically
indicated prenatal tests and exercise of reproductive choice, and on
practitioners’ exercise of rights of conscientious objection in a manner
consistent with equal respect for the conscientious convictions of their colleagues
and patients. The FIGO Ethics Committee recognised that some physicians might present
false diagnostic or clinical reasons to decline to afford patients indicated
care to which the physicians object, rather than “provide public notice of
professional services they decline to undertake”.
B. Alleged violation of Article 3 of the Convention
1. The parties’ submissions
The Government submitted that on no occasion
had the applicant been subjected to treatment which would result in a breach of
Article 3 of the Convention. The applicant might have felt some stress or
discomfort, but the treatment complained of had not approached the threshold of
severity sufficient for it to fall within the ambit of this provision. Even
assuming that the applicant’s conversations with some doctors could have been
stressful or unpleasant, or that the doctors had expressed their views in a
rude or impolite manner, as the applicant seemed to consider, this did not raise
any issue under Article 3.
In so far as the applicant was of the view that the doctors had
treated her in a dismissive and contemptuous manner, repeatedly criticising her
for her efforts to obtain access to prenatal testing and for the fact that she had
envisaged a termination, the Government argued that nothing in the facts of the
case suggested behaviour contrary to Article 3 of the Convention. The applicant’s
allegations of an intentional failure to provide necessary medical treatment
had no basis in the facts of the case.
The Government rejected the supposition that inhuman or degrading
treatment could result from the State’s failure to enact what the applicant
perceived as adequate legislation.
The applicant complained under
Article 3 of the Convention that she had been subjected to inhuman and
degrading treatment as a result of the doctors’ intentional failure to provide
necessary medical treatment in the form of timely prenatal examinations that
would have allowed her to take a decision as to whether to continue or
terminate her pregnancy within the time-limit laid down by the 1993 Act. She
also complained that the doctors had treated her in a dismissive and
contemptuous manner, repeatedly criticising her for her efforts to have
prenatal tests carried out and for the fact that she had envisaged an abortion
as a possible solution to her predicament.
The applicant submitted that the repeated and intentional denial of timely medical
care had been aimed at preventing her from having recourse to a legal abortion.
The way in which she had been treated by the medical staff, including but not
limited to degrading remarks related to her seeking medical information and
tests which she had been legally entitled to receive, her unnecessary
confinement for days in the Kraków hospital without explanation, only to
conduct simple tests unrelated to genetic testing, and the unavailability of
genetic testing within large areas of the country, as admitted by the State, had
been humiliating and degrading and had had a continuing impact on the applicant’s
life.
. The applicant further argued that she
had been under additional duress because she had been aware that if the malformation had been severe enough she would seek a legal abortion,
but could only do so within the time-limits allowed by law. Her husband had also
wished for a legal abortion in the event of malformation of the foetus. She had
known that had she been unable to obtain an abortion, she would be faced with having
to raise a child affected with a lifelong ailment. This set of circumstances
had caused her much distress and anxiety. The doctors had known about the time
restrictions and about her position on terminating her pregnancy, but they had manipulated
her and procrastinated, despite the obvious fact that termination of pregnancy was
more dangerous later than earlier. Furthermore, Dr S.B.’s contemptuous attitude
towards the applicant had been clearly shown in his interview.
2. The Court’s assessment
(a) General principles
. According
to the Court’s well-established case-law, ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and state of health of the
victim (see, among many other authorities, Price v. the United Kingdom,
no. 33394/96, § 24, ECHR 2001-VII; Kupczak v. Poland,
no. 2627/09, § 58, 25
January 2011; Jalloh v. Germany [GC], no. 54810/00, § ...,
ECHR 2006-IX).
Treatment has been held by the Court to be
“inhuman” because, inter alia, it was premeditated, was applied for hours
at a stretch and caused either actual bodily injury or intense physical and
mental suffering (see Labita, Labita v. Italy [GC],
no. 26772/95, § 120, ECHR 2000-IV).
Treatment has been considered “degrading” when it
was such as to arouse in its victims feelings of fear, anguish and inferiority
capable of humiliating and debasing them (see, among many other authorities, Iwańczuk
v. Poland, no. 25196/94, § 51, 15 November 2001; Wiktorko
v. Poland, no. 14612/02, § 45, 31 March 2009).
Although the purpose
of such treatment is a factor to be taken into account, in particular
whether it was intended to humiliate or debase the victim, the absence
of any such purpose does not inevitably lead to a finding that
there has been no violation of Article 3. For example, the Court has found
violations of that provision in many cases where the authorities dealt with
requests to provide information of crucial importance for the applicants, for
example about the whereabouts and fate of their missing relatives, disclosing a
callous disregard for their vulnerability and distress (see, among many other
authorities, Kukayev v. Russia, no. 29361/02, §§ 102-106;
15 November 2007; Takhayeva and Others v. Russia, no. 23286/04,
§§ 102-104, 18 September 2008).
Moreover, it cannot be excluded that the acts
and omissions of the authorities in the field of health care policy may in
certain circumstances engage their responsibility under Article 3 by
reason of their failure to provide appropriate medical treatment (see, for example,
Powell v. the United Kingdom
(dec.), no. 45305/99, ECHR 2000-V).
(b) Application of the principles to
the circumstances of the case
Turning to the circumstances of the present
case, the Court observes that the results of the ultrasound scan carried out in
the 18th week of the applicant’s pregnancy confirmed the likelihood that the
foetus was affected with an unidentified malformation (see paragraph 9 above). Following
that scan the applicant feared that the foetus was affected with a genetic
disorder and that, in the light of the results of subsequent scans her fears
cannot be said to have been without foundation. She tried, repeatedly and with perseverance, through
numerous visits to doctors and through her written requests and complaints, to
obtain access to genetic tests which would have provided her with information
confirming or dispelling her fears; to no avail. For weeks she was made to
believe that she would undergo the necessary tests. She was repeatedly sent to various
doctors, clinics and hospitals far from her home and even hospitalised for
several days for no clear clinical purpose (see paragraph 20 above). The
Court finds that the determination of whether the applicant should have access
to genetic testing, recommended by doctors in light of the findings of the second
ultrasound scan, was marred by procrastination, confusion and lack of proper
counselling and information given to the applicant.
Ultimately, it was only by following the advice given by Professor
K.Sz., the only doctor who was sympathetic to her plight, that the applicant
obtained admission to a hospital in Łódź by means of subterfuge. She
reported to that hospital as an emergency patient and finally had the tests
conducted in the 23rd week of her pregnancy, on 26 March 2002. The
applicant obtained the results on 9 April 2002, two weeks later.
The Court notes that it was not in dispute that
it was possible only by means of genetic tests to establish, objectively and in
the manner dictated by modern medical science and technology, whether the
initial diagnosis was correct. Indeed, this was never challenged either by the
Government in the proceedings before the Court or by the defendants in the
domestic civil proceedings.
The Court further notes that it has not been
argued, let alone shown, that at the material time genetic testing as such was
unavailable for lack of equipment, medical expertise or funding. On no occasion
was the applicant told that it was impossible to carry out the tests for any
kind of technical or material reasons.
In this connection, the Court cannot but note that
the 1993 Act determining the conditions permitting termination of
pregnancy expressly and unequivocally provides, and provided at the relevant
time, for the State’s obligation to ensure unimpeded access to prenatal
information and testing. Section 2 (a) of this Act imposed such an
obligation on the State and local administration in particular in cases of
suspicion of genetic disorder or development problems. This obligation covered
all cases in which such suspicion arose in respect of a pregnancy, with no
distinction whatsoever being drawn in the Act based on the severity of the
suspected ailment (see paragraph 66 above).
The Court further observes that the Medical
Profession Act clearly provides and provided at the material time for a general
obligation for doctors to give patients comprehensible information about their
condition, the diagnosis, the proposed and possible diagnostic and therapeutic
methods, the foreseeable consequences of a decision to have recourse to them or
not, the possible results of the therapy and about the prognosis (see paragraph 74
above). Likewise, the Medical Institutions Act, applicable at the material
time, provided for patients’ right to obtain comprehensive information on their
health (see paragraph 72 above). Hence, there was an array of unequivocal
legal provisions in force at the relevant time specifying the State’s positive
obligations towards pregnant women regarding their access to information about their
health and that of the foetus.
However, there is no indication that the legal
obligations of the State and of the medical staff regarding the applicant’s
patient’s rights were taken into consideration by the persons and institutions
dealing with the applicant’s requests to have access to genetic testing.
. The Court notes that the
applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply
distressed by information that the foetus could be affected with some
malformation. It was therefore natural that she wanted to obtain as much
information as possible so as to find out whether the initial diagnosis was
correct, and if so, what was the exact nature of the ailment. She also wanted to
find out about the options available to her. As a result of the
procrastination of the health professionals as described above, she had to
endure weeks of painful uncertainty
concerning the health of the foetus, her own and her family’s future and the prospect
of raising a child suffering from an incurable ailment. She suffered acute anguish
through having to think about how she and her family would be able to
ensure the child’s welfare, happiness and appropriate long-term medical care.
Her concerns were not properly acknowledged and addressed by the health
professionals dealing with her case. The Court emphasises that six weeks
elapsed between 20 February 2002 when the first ultrasound scan gave rise,
for the first time, to a suspicion regarding the foetus’ condition and 9 April
2002 when the applicant finally obtained the information she was seeking,
confirmed by way of genetic testing. No regard was had to the temporal aspect
of the applicant’s predicament. She obtained the results of the tests when it
was already too late for her to make an informed decision on whether to
continue the pregnancy or to have recourse to legal abortion as the time limit
provided for by section 4 (a) paragraph 2 had already expired.
. The
Court is further of the view that the applicant’s suffering, both before the
results of the tests became known and after that date, could be said to have
been aggravated by the fact that the diagnostic services which she had
requested early on were at all times available and that she was entitled as a
matter of domestic law to avail herself of them.
It is a matter of great regret that the applicant was so
shabbily treated by the doctors dealing with her case. The Court can only agree
with the Polish Supreme Court’s view that the applicant had been humiliated
(see paragraph 54 above).
The Court is of the view that the applicant’s
suffering reached the minimum threshold of severity under Article 3 of the
Convention.
The Court concludes that there has therefore
been a breach of that provision.
C. Alleged violation of Article 8 of the Convention
1. The parties’ submissions
(a) The Government
The Government submitted that pregnancy and its
interruption did not, as a matter of principle, pertain uniquely to the sphere
of the mother’s private life. Whenever a woman was pregnant, her private life
became closely connected with the developing foetus. There could be no doubt
that certain interests relating to pregnancy were legally protected (Eur. Comm.
HR, Brüggemann and Scheuten v. Germany, Report of 12 July
1977, DR 10, p. 100). Polish law protected the human foetus in the
same manner as the mother’s life and it therefore allowed for termination of
pregnancy only in the circumstances prescribed in the 1993 Act. The Government
were of the view that in the applicant’s case the conditions for lawful
termination had not been met.
The Government argued that in the applicant’s
case the Court should not focus solely on the question of whether the applicant
had been deprived of her right to receive genetic counselling. They stressed
that ultimately the applicant had obtained access to a prenatal genetic
examination, as requested.
If the applicant was of the view that as a
result of the delay in having access to genetic tests she had been deprived of
the possibility of terminating her pregnancy, then the question arose whether in
her case such a possibility genuinely existed on the basis of the Act. However,
this could not be determined with the requisite clarity, as at the material
time there had been no consensus in Poland as to whether Turner syndrome could be
said to be a serious enough malformation within the meaning of the 1993 Act to
justify a legal abortion.
Moreover, the medical expert opinion prepared for the purposes
of the criminal investigation indicated that Turner syndrome did not qualify as
either a severe or a life-threatening condition. Hence, the doctors involved in
the applicant’s case could not have issued a certificate authorising
termination.
Insofar as the applicant seemed to imply that another foetal malformation
- Edwards syndrome - had been suspected, her medical records did not show this to
have been the case. In any event, if the applicant relied primarily on what she
perceived as her right to have an abortion on the grounds of foetal
malformation, the Government were of the view that such a right could not be
derived from the State’s positive obligation to guarantee adequate health care.
Furthermore, according to the Government’s submission, any genetic examination
of the foetus had at that time to be performed prior to the 22nd week of
pregnancy.
The Government further submitted that they
strongly disagreed with the reasoning adopted by the Court in its judgment in
the case of Tysiąc v. Poland, concerning the potential threat to
the pregnant woman’s health caused by pregnancy and by the refusal of
termination. However, even if the present case were to be assessed from the
point of view of the principles developed in that judgment, no support could be
found therein for the applicant’s position. The question of voluntary
termination of pregnancy for eugenic reasons, concerned in the present case, could
not be derived from the State’s positive obligations to provide adequate
medical care.
If, on the other hand, the applicant held the
State responsible for the delay in her access to genetic testing, the
Government argued that she herself had contributed to that delay as she had
insisted on having genetic testing carried out in a particular hospital, in
Łódź, outside her region. This had inevitably led to the prolongation
of the relevant procedures.
The Government further referred to the provisions
of the Minister of Health’s Ordinance of 22 January 1997 (see paragraph68 above),
arguing that it provided for a procedure governing decisions on access to
abortion. They further stated that section 37 of the Medical Professions
Act 1996 made it possible for a patient to have a decision taken by a
doctor as to the advisability of an abortion reviewed by his or her colleagues.
In the present case, Dr S.B. had offered the applicant the possibility of convening
a panel of doctors to examine her case, but the applicant had refused.
Lastly, the Government argued that the applicant
should have availed herself of the procedural possibilities provided for by
administrative law. The public health institutions should be considered as
administrative agencies, subject to the provisions of the Code of
Administrative Procedure. Consequently, the refusal of admission to a hospital
for the purposes of a voluntary termination constituted an administrative
decision of the hospital’s management and, as such, was subject to
administrative supervision procedures provided for by that Code.
(b) The applicant
. The applicant submitted that the public powers’ failure to implement laws and
regulations governing access to prenatal examinations and termination of
pregnancy in the context of sections 2 (2) (a) and 4(a) of the 1993 Act,
including the lack of procedures to ensure whether the conditions for a lawful abortion
under section 4 (a) had been met, and the failure to implement and oversee
the laws governing the practice of conscientious objection, resulted in insufficient
protection of her rights guaranteed by the Convention.
. The
1993 Act itself did not contain any procedural provisions. The 1997 Ordinance,
referred to by the Government, did not provide for any particular
procedural framework to address and resolve controversies arising in connection
with the availability of lawful abortion. Section 37 of the Physicians’ Act did
not provide for review of medical decisions, but simply granted doctors
discretion to seek a second opinion from a colleague. It did not provide for a mechanism
which could be invoked by a patient. Insofar as the Government relied on the
administrative procedure, diagnostic or therapeutic decisions were not
decisions in the administrative sense and could not be challenged under the
provisions of the Code of Administrative Procedure.
The applicant further referred to the Council
of Europe’s Committee of Ministers’ Recommendation No. R (90)13 to Member
States on Prenatal Genetic Screening, Prenatal Genetic Diagnosis, and
Associated Genetic Counselling (see paragraph 81 above). It stated that
where there was an increased risk of passing on a serious genetic disorder,
access to preconception counselling and diagnostic services should be readily
available. Moreover, the applicant argued that many Council of Europe member States
included prenatal examinations as part of routine obstetric services. When an
ultrasound scan indicated a possibility of the foetus having a genetic
disorder, genetic counselling and examination were made available according to
detailed guidelines adopted through State regulations. In the present case,
however, the applicant had been unable to obtain timely access to genetic
testing, which clearly contravened the applicable principles.
The applicant submitted that the violation of
her rights had originated also in the unregulated practice of conscientious
objection. The refusal of the Kraków University Hospital to provide certain services
on grounds of conscientious objection constituted a failure to ensure the
availability and accessibility of reproductive health services. The public
health care institutions, being public entities, had a duty to provide legal
health services to the public.The
State had a duty to ensure that the laws governing conscientious objection were
complemented by implementing regulations or guidelines balancing the medical
staff’s right to object against the patient’s rights to obtain access to lawful
medical services.
Furthermore, the applicant emphasised that in
any event health care providers should not be allowed to rely on conscientious
objection in respect of diagnostic services. In the present case Doctors K.R.
and S.B. had effectively refused to provide diagnostic care out of concern that
the applicant, having obtained the diagnostic results, might seek the termination
of her pregnancy. The applicant submitted that under the established medical
doctrine of informed consent, patients should be informed of all risks,
benefits and alternatives to treatment in order to make a free and informed decision
in their best interest. Refusing to diagnose a potentially serious illness on
the basis that the diagnosis might subsequently lead to a therapeutic act
to which the doctor concerned objected on grounds of conscience was incompatible
with the very concept of conscientious objection.
. The
applicant argued that this confusion was clearly demonstrated also by the
Government’s argument that the decision whether to give the applicant access to
genetic testing hinged on whether the termination of pregnancy was considered safe
in her circumstances and, also, on whether the time-limits for termination of pregnancy
provided for by the 1993 Act were respected. The Government had further
stated that any genetic examination of a foetus should be performed prior to
the 22nd week of pregnancy (see paragraph 164 above). These statements clearly
implied the existence in medical practice in Poland at the material time of a misconception
that all women, including the applicant, seeking to undergo prenatal genetic
examination did so solely for the purpose of terminating their pregnancies. As
a result, because of the politically charged climate surrounding abortion,
women were often unable to obtain access to prenatal genetic testing.
The applicant had also been denied
adequate and timely medical care in the form of prenatal genetic examinations.
Such testing would have made it possible to establish whether in her case the
conditions existed for a lawful termination of pregnancy within the meaning of
the 1993 Act. This breach of the Convention had occurred because the State
had failed to provide a legal framework regulating disagreements between a
pregnant woman and doctors as to the need to have prenatal genetic tests
carried out or to terminate pregnancy (see, in the latter respect, the case of Tysiąc
v. Poland, cited above, § 121). Nor was a procedure available for
having decisions taken by doctors in respect of a woman’s request for
termination of pregnancy reviewed or supervised, even on grounds of foetal
abnormalities. The State was under a positive obligation to create a legal
mechanism for handling such cases, including the provision of a precise
time-frame within which a decision should be taken. However, the Polish State had failed in its duty.
The applicant referred in this connection also to the lack of
adequate regulations and oversight in cases such as hers, where doctors or
public medical institutions refused to provide medical services and invoked the
conscience clause.
Under the applicable law, in order to be
lawful, an abortion on grounds of foetal abnormality had to be carried out
before the foetus became viable, which was normally thought to be in the 24th week
of pregnancy. In the applicant’s case, the absence of a proper procedural
framework had resulted in procrastination, with the result that during her
pregnancy she had suffered growing fear, anguish and uncertainty. She had also
been denied a right to a legal abortion which she had under domestic law.
She finally submitted that she
had given birth to child suffering from a severe ailment who required life-long
medical care. As a result, her life and that of her family had been
irremediably and negatively affected, not only by her suffering over the fate
of her ill daughter, but also by the necessity of providing her with special
day-to-day care and organising regular specialised medical care, which was costly
and relatively difficult to obtain in Poland. She submitted that bringing up
and educating a severely ill child had taken a toll on her mental health and
well-being, as well as that of her other two children. Her husband had left her
after the baby had been born.
3. The Court’s assessment
(a) Applicability of Article 8 of the Convention
The Court first observes that it is not
disputed between the parties that Article 8 is applicable to the circumstances
of the case in so far as it relates to the applicant’s right to respect for her
private life.
The Court reiterates that “private life” is a
broad concept, encompassing, inter alia, the right to personal autonomy
and personal development (see, among many other authorities, Bensaid v.
the United Kingdom, no. 44599/98, § 47, ECHR 2001-I). The
Court has held that the notion of personal autonomy is an important principle
underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02,
§ 61, ECHR 2002-III). The notion of private life concerns subjects such as
gender identification, sexual orientation and sexual life (Dudgeon v.
the United Kingdom, judgment of 22 October 1981, Series A
no. 45, pp. 18-19, § 41, and Laskey,
Jaggard and Brown v. the United Kingdom, judgment
of 19 February 1997, Reports
of
Judgments and Decisions 1997-I, p. 131, § 36) a person’s
physical and psychological integrity (Tysiąc v. Poland, cited
above, § 107, ECHR 2007-IV). The Court has also held that the notion of
private live applies to decisions both to have or not to have a child or to
become parents (Evans v. the United Kingdom [GC], no. 6339/05,
§ 71, ECHR 2007-IV).
The Court has previously found, citing with
approval the case-law of the former Commission, that the decision of a pregnant
woman to continue her pregnancy or not belongs to the sphere of private life
and autonomy. Consequently, also legislation regulating the interruption
of pregnancy touches upon the sphere of private life, since whenever a
woman is pregnant her private life becomes closely connected with the
developing foetus ( Eur.Comm. HR, Bruggeman and Scheuten v. Germany,
cited above; Boso v. Italy (dec.), no. 50490/99, ECHR 2002-VII;
Vo v. France [GC], no. 53924/00, § 76, ECHR 2004-VIII;
Tysiąc, cited above, §§ 106-107; A, B and C v. Ireland [GC], no. 25579/05, § 212,
16 December 2010). It is also clear from an
examination of these cases that the issue has always been determined by
weighing up various, and sometimes conflicting, rights or freedoms claimed by a
mother or a father in relation to one another or vis-à-vis
the foetus (Vo v. France, cited above, § 82).
The Court concludes that Article 8 of the
Convention is applicable to the circumstances of the case.
(b) General principles
The essential object of Article 8 is to protect
the individual against arbitrary interference by public authorities. Any
interference under the first paragraph of Article 8 must be justified in terms
of the second paragraph, namely as being “in accordance with the law” and
“necessary in a democratic society” for one or more of the legitimate aims
listed therein. According to settled case-law, the notion of necessity implies
that the interference corresponds to a pressing social need and, in particular
that it is proportionate to one of the legitimate aims pursued by the
authorities (see, among other authorities,
Olsson v. Sweden (No. 1), judgment of 24 March 1988,
Series A no. 130, § 67).
In addition, there may also be positive obligations inherent in
effective “respect” for private life. These obligations may involve the
adoption of measures designed to secure respect for private life even in the
sphere of relations between individuals, including both the provision of a
regulatory framework of adjudicatory and enforcement machinery protecting
individuals’ rights and the implementation, where appropriate, of specific
measures (see, among other authorities, X and
Y v. the Netherlands, judgment of 26 March 1985,
Series A no. 91, p. 11, § 23).
The Court has previously found States to be
under a positive obligation to secure to its citizens their right to effective
respect for their physical and psychological integrity (Glass v. the
United Kingdom, no. 61827/00, §§ 74-83, ECHR 2004-II; Sentges v. the Netherlands (dec.)
no. 27677/02, 8 July 2003; Pentiacova and Others
v. Moldova (dec.), no. 14462/03, ECHR 2005-...; Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002; Odièvre v. France
[GC], cited above, § 42). In addition, these obligations may involve the
adoption of measures, including the provision of an effective and accessible
means of protecting the right to respect for private life (Airey v. Ireland,
9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the
United Kingdom, 9 June 1998, § 101, Reports of Judgments and
Decisions 1998-III; and Roche v. the
United Kingdom [GC], no. 32555/96, § 162, ECHR 2005-X)
including both the provision of a regulatory framework of adjudicatory and
enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific measures in the context of abortion (Tysiąc v. Poland
, cited above, § 110; A, B and C v. Ireland [GC], cited above,
§ 245).
The Court has already held that the issue of
when the right to life begins comes within the margin of appreciation which the
Court generally considers that States should enjoy in this sphere,
notwithstanding an evolutive interpretation of the Convention, a “living
instrument which must be interpreted in the light of present-day conditions”
(see, among many other authorities, E.B.
v. France [GC], no. 43546/02, § 92, ECHR 2008-...).
The reasons for that conclusion are that the issue of such protection has not
been resolved within the majority of the Contracting States themselves and that
there is no European consensus on the scientific and legal definition of the
beginning of life (Vo v. France, cited above, § 82). However,
the Court considers that there is indeed a consensus amongst a substantial
majority of the Contracting States of the Council of Europe towards allowing
abortion and that most Contracting Parties have in their legislation resolved
the conflicting rights of the foetus and the mother in favour of greater access
to abortion (see (A, B and C v. Ireland [GC], cited above, 16 December 2010, §§ 235 and 237).
Since the rights claimed on behalf of the foetus and those of
the mother are inextricably interconnected, the margin of appreciation accorded
to a State’s protection of the unborn necessarily translates into a margin of
appreciation for that State as to how it balances the conflicting rights of the
mother. In the absence of such common approach regarding the beginning of life,
the examination of national legal solutions as applied to the circumstances of
individual cases is of particular importance also for the assessment of whether
a fair balance between individual rights and the public interest has been
maintained (see also, for such an approach, A, B, and C cited above, § 214).
Moreover, as in the negative obligation context, the State enjoys a certain margin of appreciation (see, among other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, § 49). While a broad margin of appreciation
is accorded to the State as regards the circumstances in which an abortion will
be permitted in a State, once that decision is taken the legal framework
devised for this purpose should be “shaped in a coherent manner which allows
the different legitimate interests involved to be taken into account adequately
and in accordance with the obligations deriving from the Convention” (A, B
and C v. Ireland [GC], cited above, § 249).
The Court notes the applicant’s submission that
the failure to allow her timely access to prenatal genetic tests had amounted
to an interference with her rights guaranteed by Article 8. Furthermore, the
Court has found that prohibition of the termination of pregnancies sought for
reasons of health and /or well-being amounted to an interference with the
applicants’ right to respect for their private lives (see A., B., and C.
v. Ireland, cited above, § 216).
However, in the present case the Court is confronted with a
particular combination of a general right of access to information about one’s
health with the right to decide on the continuation of pregnancy. Compliance
with the State’s positive obligation to secure to their citizens their right to
effective respect for their physical and psychological integrity may
necessitate, in turn, the adoption of regulations concerning access to
information about an individual’s health (Guerra and Others v. Italy,
19 February 1998, § 60, Reports 1998-I; Roche v. the
United Kingdom [GC], no. 32555/96, § 155, ECHR 2005-X; K.H.
and Others v. Slovakia, no. 32881/04, §§ 50-56, ECHR 2009-...
(extracts)). Hence, and since the nature of the right to decide on the
continuation of pregnancy is not absolute, the Court is of the view that the
circumstances of the present case are more appropriately examined from the
standpoint of the respondent State’s positive obligations arising under this
provision of the Convention (see, mutatis mutandis, Tysiąc v. Poland,
cited above, § 108).
The boundaries between the State’s positive and
negative obligations under this provision do not lend themselves to precise
definition. The applicable principles are nonetheless similar. In both the
negative and positive contexts regard must be had to the fair balance that has
to be struck between the competing interests of the individual and of the
community as a whole; and in both contexts the State enjoys a certain margin of
appreciation (see, among other authorities, Keegan v. Ireland, judgment
of 26 May 1994, Series A no. 290, p. 19, § 49; and Różański
v. Poland, no. 55339/00, § 61, 18 May 2006). While the
State regulations on abortion relate to the traditional balancing of privacy
and the public interest, they must - in case of a therapeutic abortion - be
also assessed against the positive obligations of the State to secure the
physical integrity of mothers-to-be (see Tysiąc v. Poland,
cited above, § 107).
The notion of “respect” is not clear-cut,
especially as far as those positive obligations are concerned: having regard to
the diversity of the practices followed and the situations obtaining in the
Contracting States, the notion’s requirements will vary considerably from case to
case. Nonetheless, in assessing the positive obligations of the State it must
be borne in mind that the rule of law, one of the fundamental principles
of a democratic society, is inherent in all the Articles of the
Convention (see, e.g., Armonienė v. Lithuania, no. 36919/02,
§ 38, 25 November 2008; Zehnalová
and Zehnal v. the Czech Republic (dec.), no. 38621/97,
ECHR 2002-V). Compliance with requirements imposed by the rule of law
presupposes that the rules of domestic law must provide a measure of legal
protection against arbitrary interferences by public authorities with the
rights safeguarded by the Convention (see Malone v. the United Kingdom,
judgment of 2 August 1984, Series A no. 82, p. 32, § 67; Segerstedt-Wiberg
and Others v. Sweden, no. 62332/00, § 76, ECHR 2006-VII).
Finally, the Court reiterates that in the
assessment of the present case it should be borne in mind that the Convention
is intended to guarantee not rights that are theoretical or illusory but rights
that are practical and effective (see Airey
v. Ireland, judgment of 9 October 1979, Series A
no. 32, p. 12-13, § 24). Whilst Article 8 contains no
explicit procedural requirements, it is important for the effective enjoyment
of the rights guaranteed by this provision that the relevant decision-making
process is fair and such as to afford due respect for the interests safeguarded
by it. What has to be determined is whether, having regard to the particular
circumstances of the case and notably the nature of the decisions to be taken,
an individual has been involved in the decision-making process, seen as a
whole, to a degree sufficient to provide her or him with the requisite
protection of their interests (see, mutatis
mutandis, W.
v. the United Kingdom, judgment of 8 July 1987, Series A
no. 121, pp. 28-29, §§ 62 and 64). The Court has
already held that in the context of access to abortion a relevant procedure should
guarantee to a pregnant woman at least a possibility to be heard in person and
to have her views considered. The competent body or person should also issue
written grounds for its decision (see Tysiąc v. Poland, cited
above, § 117).
(c) Compliance with Article 8 of the Convention
When examining the circumstances of the
present case, the Court cannot overlook its general national context. It notes
that the 1993 Act specifies situations in which abortion is allowed. A
doctor who terminates a pregnancy in breach of the conditions specified in that
Act is guilty of a criminal offence punishable by up to three years’
imprisonment (see paragraph 70 above).
The Court has already found that the legal
restrictions on abortion in Poland, taken together with the risk of their
incurring criminal responsibility under Article 156 § 1 of the Criminal Code,
can well have a chilling effect on doctors when deciding whether the
requirements of legal abortion are met in an individual case (see Tysiąc
v. Poland, no. 5410/03, § 116, ECHR 2007-IV). It
further notes that in the circumstances of the present case this was borne out
also by the fact that the T. hospital’s lawyer was asked to give an opinion on
steps to be taken with a view to ensuring that the conditions of the 1993 Act
as to the availability of abortion were respected. The Court is of the view
that provisions regulating the availability of lawful abortion should be
formulated in such a way as to alleviate this chilling effect.
The Court further notes that in its fifth
periodical report to the ICCPR Committee, relevant for the assessment of the
circumstances obtaining at the relevant time, the Polish Government
acknowledged, inter alia, that there had been deficiencies in the manner
in which the 1993 Act had been applied in practice (see paragraph 84 above). It
further notes the concern expressed by the Committee on the Elimination of Discrimination
against Women as regards access by women in Poland to reproductive health
services and to lawful abortion (see paragraph 86 above).
The Court notes that in its judgment in the
case Tysiąc v. Poland, referred to above, it highlighted the
importance of procedural safeguards in the context of the implementation of the
1993 Act in situations where a pregnant woman had objective grounds for fearing
that pregnancy and delivery would have a serious negative impact on her health.
In that case the Court held that Polish law did not contain any effective
procedural mechanisms capable of determining whether the conditions existed for
obtaining a lawful abortion on the grounds of danger to the mother’s health
which the pregnancy might present, or of addressing the mother’s legitimate
fears (see Tysiąc v. Poland, cited above, §§ 119 - 124,
ECHR 2007-IV).
The Court discerns certain differences between
the issues concerned in the Tysiąc v. Poland case and those to
be examined in the context of the present case, where the applicant
persistently but unsuccessfully sought access to prenatal genetic testing. It
was not access to abortion as such which was primarily in issue, but
essentially timely access to a medical diagnostic service that would, in turn,
make it possible to determine whether the conditions for lawful abortion
obtained in the applicant’s situation or not. Hence, the starting point for the
Court’s analysis is the question of an individual’s access to information about
her or his health.
The right of access to such information falling
within the ambit of the notion of private life can be said to comprise, in the
Court’s view, on the one hand, a right to obtain available information on one’s
condition. The Court further considers that during pregnancy the foetus’
condition and health constitute an element of the pregnant woman’s health (see
Eur. Comm. HR, Bruggeman and Schouten v. Germany, cited above,
§ 59, mutatis mutandis). The effective exercise of this right is
often decisive for the possibility of exercising personal autonomy, also
covered by Article 8 of the Convention (Pretty v. the United Kingdom,
cited above, § 61, ECHR 2002-III) by deciding, on the basis of
such information, on the future course of events relevant for the individual’s
quality of life (e.g. by refusing consent to medical treatment or by requesting
a given form of treatment).
The significance of timely access to information concerning one’s
condition applies with particular force to situations where rapid developments
in the individual’s condition occur and his or her capacity to take relevant
decisions is thereby reduced. In the same vein, in the context of pregnancy,
the effective access to relevant information on the mother’s and foetus’
health, where legislation allows for abortion in certain situations, is
directly relevant for the exercise of personal autonomy.
In the present case the essential problem was
precisely that of access to medical procedures, enabling the applicant to
acquire full information about the foetus’ health.
While the Convention does not guarantee as such a right to free
medical care or to specific medical services, in a number of cases the Court
has held that Article 8 is relevant to complaints about insufficient
availability of health care services (Nitecki v. Poland (dec.),
cited above; Pentiacova and Others
v. Moldova (dec.), cited above). The present case differs from
cases where the applicants complained about denial of or difficulties in
obtaining access to certain health services for reasons of insufficient funding
or availability. The Court has already found that it has not been argued, let
alone shown, that there were any objective reasons why the genetic tests were
not carried out immediately after the suspicions as to
the foetus’ condition had arisen but only after a lengthy delay (see
paragraph 154 above). The difficulties the applicant experienced
seem to have been caused, in part, by reticence on the part of certain doctors
involved to issue a referral, and also by a certain organisational and
administrative confusion in the health system at the material time as to the
procedure applicable in cases of patients seeking services available outside
their particular region of the then Medical Insurance Fund and the modalities
of reimbursement between the regions of costs incurred in connection with such
services.
The Court emphasises the relevance of the
information which the applicant sought to obtain by way of genetic testing to
the decision concerning continuation of her pregnancy. The 1993 Act allows for
an abortion to be carried out before the foetus is capable of surviving outside
the mother’s body if prenatal tests or other medical findings indicate a high
risk that the foetus will be severely and irreversibly damaged or suffer from
an incurable life-threatening ailment. Hence, access to full and reliable
information on the foetus’ health is not only important for the comfort of the
pregnant woman but also a necessary prerequisite for a legally permitted
possibility to have an abortion to arise.
In this context, the Court reiterates its
finding made in the case of Tysiąc v. Poland that once the State,
acting within the limits of the margin of appreciation, referred to above,
adopts statutory regulations allowing abortion in some situations, it must not
structure its legal framework in a way which would limit real possibilities to
obtain it. In particular, the State is under a positive obligation to create a
procedural framework enabling a pregnant woman to exercise her right of access
to lawful abortion (Tysiąc v. Poland, no. 5410/03, §§ 116
- 124, ECHR 2007-IV). In other words, if the domestic law allows for
abortion in cases of foetal malformation, there must be an adequate legal and
procedural framework to guarantee that relevant, full and reliable information
on the foetus’ health is available to pregnant women.
In the present case, the Court reiterates that
six weeks elapsed from the date when the first concerns arose regarding the
foetus’ health until their confirmation by way of genetic tests (see also
paragraph 152 above).
The Court stresses that it is not its function
to question doctors’ clinical judgment (see Glass v. the United Kingdom,
cited above). It is therefore not for the Court to embark on any attempt to
determine the severity of the condition with which the doctors suspected that
the foetus was affected, or whether that suspected condition could have been
regarded as entitling the applicant to a legal abortion available under the
provisions of section 4 (a) of that Act. In the Court’s view this is wholly irrelevant
for the assessment of the case at hand, given that the legal obligation to
secure access to pre-natal genetic testing arose under the provisions of the
1993 Act regardless of the nature and severity of the suspected condition
(see paragraph 66 above).
The Court observes that the nature of the
issues involved in a woman’s decision to terminate a pregnancy is such that the
time factor is of critical importance. The procedures in place should therefore
ensure that such decisions are taken in good time. The Court is of the view
that there was ample time between week 18 of the
pregnancy, when the suspicions first arose, and week 22, the stage of pregnancy
at which it is generally accepted that the foetus is capable of surviving
outside the mother’s body and regarded as time-limit for legal abortion, to
carry out genetic testing. The Court notes that the Supreme Court
criticised the conduct of the medical professionals who had been involved in
the applicant’s case and the procrastination shown in deciding whether to give
the applicant a referral for genetic tests. Such a critical assessment on the
part of the highest domestic judicial authority is certainly, in the Court’s
view, of relevance for the overall assessment of the circumstances of the case.
As a result, the applicant was unable to obtain
a diagnosis of the foetus’ condition, established with the requisite certainty,
by genetic tests within the time-limit for abortion to remain a lawful option
for her.
In so far as the Government argued that in the
present case access to genetic testing was closely linked, to the point of being
identical, with access to abortion (see paragraph 112 above), the Court
observes that prenatal genetic tests serve various purposes and they should not
be identified with encouraging pregnant women to seek an abortion. Firstly, they
can simply dispel the suspicion that the foetus was affected with some malformation;
secondly, a woman carrying the foetus concerned can well choose to carry the
pregnancy to term and have the baby; thirdly, in some cases (although not in
the present one), prenatal diagnosis of an ailment makes it possible to embark
on prenatal treatment; fourthly, even in the event of a negative diagnosis, it
gives the woman and her family time to prepare for the birth of a baby affected
with an ailment, in terms of counselling and coping with the stress occasioned
by such a diagnosis. Furthermore, the Court emphasises that the 1993 Act
clearly provides for a possibility of abortion in cases of certain malformations.
It is not in dispute that some of these malformations could only be detected by
way of prenatal genetic tests. Therefore the Government’s argument has failed
to convince the Court.
In so far as the Government referred in their
submissions to the right of physicians to refuse certain services on grounds of
conscience and referred to Article 9 of the Convention, the Court reiterates
that the word “practice” used in Article 9 § 1 does not denote each and every
act or form of behaviour motivated or inspired by a religion or a belief (see Pichon
and Sajous v. France (dec.),
no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organise
the health services system in such a way as to ensure that an effective
exercise of the freedom of conscience of health professionals in the
professional context does not prevent patients from obtaining access to
services to which they are entitled under the applicable legislation.
The Court further observes that the Government
referred to the Ordinance of the Minister of Health of 22 January 1997
(see paragraph 68 above), arguing that it provided for a procedure
governing decisions on access to abortion. However, the Court has already held
that this Ordinance did not provide for any procedural framework to address and
resolve controversies between the pregnant woman and her doctors or between the
doctors themselves as to the availability of lawful abortion in an individual
case (see Tysiąc v. Poland, cited above, § 121).
The Court concludes that it has not been
demonstrated that Polish law as applied to the applicant’s case contained any
effective mechanisms which would have enabled the applicant to seek access to a
diagnostic service, decisive for the possibility of exercising her right to
take an informed decision as to whether to seek an abortion or not.
In so far as the Government relied on the
instruments of civil law as capable of addressing the applicant’s situation,
the Court has already held, in the context of the case of Tysiąc
v. Poland, cited above, that the provisions of the civil law as
applied by the Polish courts did not afford the applicant a procedural
instrument by which she could have fully vindicated her right to respect for
her private life. The civil law remedy was solely of a retroactive and
compensatory character. The Court was of the view that such retrospective
measures alone were not sufficient to provide appropriate protection of
personal rights of a pregnant woman in the context of a controversy concerning
the determination of access to lawful abortion and emphasised the vulnerability
of the woman’s position in such circumstances (see Tysiąc v. Poland,
no. 5410/03, § 125, ECHR 2007-IV). Given the retrospective
nature of compensatory civil law, the Court fails to see any grounds on which
to reach a different conclusion in the present case.
It therefore considers that it had not been demonstrated that
Polish law contained any effective mechanisms which would have enabled the
applicant to have access to the available diagnostic services and to take, in
the light of their results, an informed decision as to whether to seek an
abortion or not.
Consequently, the Court considers that neither
the medical consultation nor litigation options relied on by the Government
constituted effective and accessible procedures which would have allowed the
applicant to establish her right to a lawful abortion in Poland. The uncertainty generated by the lack of legislative implementation of Article 4 (a) 1.2
of the 1993 Family Planning Act, and more particularly by the lack of
effective and accessible procedures to establish a right to an abortion under
that provision, has resulted in a striking discordance between the theoretical
right to a lawful abortion in Poland on grounds referred to in this provision and
the reality of its practical implementation (Christine Goodwin v. the United
Kingdom [GC], cited above, at §§ 77-78; and S. H. and Others
v. Austria, cited above, at § 74, mutatis mutandis; A,
B and C v. Ireland [GC], no. 25579/05, §§ 263-264, 16 December
2010).
Having regard to the circumstances of the case
as a whole, it cannot therefore be said that, by putting in place legal procedures
which make it possible to vindicate her rights, the Polish State complied with its
positive obligations to safeguard the applicant’s right to respect for her
private life in the context of controversy over whether she should have had access
to, firstly, prenatal genetic tests and subsequently, an abortion, had the
applicant chosen this option for her.
The Court therefore dismisses the Government’s
preliminary objection concerning civil litigation as an effective remedy. Furthermore,
the Court, having regard to the circumstances of the case seen as a whole, has
already found insufficient the award made by the domestic courts in the civil
proceedings for the violations alleged by the applicant (see paragraphs 103-108
above). Accordingly, it dismisses also the Government’s preliminary objection
that the applicant had lost her status of a victim of a breach of Article 8
of the Convention.
The Court reiterates that effective implementation
of Article 4 (a) 1.2 of the 1993 Family Planning Act would
necessitate ensuring to pregnant women access to diagnostic services which
would make it possible for them to establish or dispel a suspicion that the
foetus may be affected with ailments. The Court has already found that in the
present case it has not been established that such services were unavailable. Moreover,
an effective implementation of the provisions of the 1993 Act cannot, in
the Court’s view, be considered to impose a significant burden on the Polish
State since it would amount to rendering operational a right to abortion
already accorded in that Act in certain narrowly defined circumstances,
including in certain cases of foetal malformation (A, B and C v. Ireland
[GC], cited above, § 261, mutatis
mutandis). While it is not for this Court to indicate the most
appropriate means for the State to comply with its positive obligations (Airey
v. Ireland judgment, § 26; cited above), the Court notes that the legislation in many Contracting States has specified the conditions
governing effective access to a lawful abortion and put in place various
implementing procedural and institutional procedures (Tysiąc v. Poland
judgment, § 123).
The Court concludes that the authorities failed
to comply with their positive obligations to secure to the applicant effective
respect for her private life and that there has therefore been a breach of
Article 8 of the Convention.
D. Alleged violation of Article 13 of
the Convention
The applicant complained that the failure of
the Polish authorities to create a legal mechanism that would have allowed her
to challenge the doctors’ decisions concerning the advisability of and access
to prenatal examinations in a timely manner had amounted also to a breach of
Article 13 of the Convention. Had such a framework existed, it would have
made it possible for her to consider whether she wanted to have the pregnancy
terminated in the conditions provided for in the 1993 Act.
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government submitted that Polish law provided
for a procedure governing the taking of medical decisions concerning abortion
on medical grounds. They referred to the 1993 Act and to the Ordinance of the
Minister of Health of 22 January 1997. They further referred to section 37
of the Medical Profession Act 1996. They argued that it provided for the
possibility of reviewing a therapeutic decision taken by a specialist.
The applicant submitted that the Polish legal framework
governing the termination of pregnancy had proved to be inadequate. It had
failed to provide her with reasonable procedural protection to safeguard her
rights guaranteed by Article 8 of the Convention.
The Court observes that the applicant’s
complaint about the State’s failure to put in place an adequate legal framework
allowing for the determination of disputes arising in the context of a determination
of access to diagnostic services relevant for the application of the 1993 Act,
insofar as it allowed for legal abortion, essentially overlaps with the issues
which have been examined under Article 8 of the Convention. The Court has found
a violation of this provision on account of the State’s failure to meet its
positive obligations. It holds that no separate issue arises under Article 13
of the Convention (see Tysiąc v. Poland, cited above, § 135).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed compensation for pecuniary
damage in the amount of EUR 9,000. This sum consisted of the estimated
future medical expenses she would be obliged to bear in connection with her daughter’s
condition. She estimated her expenditure on adequate medical treatment which
her daughter would have to seek in the future until her adulthood on the basis
of information available on the website of the British Turner Association.
The applicant further requested the Court to
award her just satisfaction in respect of non-pecuniary damage. She referred to
the Court’s judgment in the case of Draon v. France [GC], no. 1513/03,
6 October 2005. She further submitted that the intentional failure to
provide the necessary medical services, the humiliating treatment of the
applicant by doctors and the lack of protection and effective redress from the State
should be considered as an aggravating factor and influence the amount of
non-pecuniary damages to be awarded in the case. She emphasised that she had
suffered and still experiences pain, distress and suffering which were and
remain causally connected to the events complained of before the Court. She
claimed EUR 65,000 in this respect.
The Government were of the view that the
applicant had not sustained pecuniary damage in the amount claimed, which was
purely speculative and exorbitant.
As to the applicant’s claim for non-pecuniary
damage, the Government submitted that it was excessive and should therefore be
rejected.
The Court observes that the applicant’s claim
for pecuniary damage was based on the medical condition of her daughter.
The Court reiterates that it has found violations of the
Convention on account of the manner in which the applicant’s requests were
handled by health professionals and because of the State’s failure to create an
effective procedural mechanism by which access to diagnostic services relevant
for establishing the conditions of availability of legal abortion under Polish
law could be secured. The Court does not discern any causal link between the violations found and the claim in respect of pecuniary damage.
Accordingly, no award can be made under this head.
On the other hand, the Court has found that the
applicant experienced considerable anguish and suffering, having regard to her
fears about the situation of her family and her apprehension as to how she
would be able to cope with the challenge of educating another child who was
likely to be affected with a lifelong medical condition and to ensure its
welfare and happiness. Moreover, the applicant had been humiliated by doctors’
lack of sensibility to her plight. The Court has found a breach of both
Articles 3 and 8 of the Convention. Having regard to the circumstances of
the case seen as a whole and deciding on equitable basis, the Court awards the
applicant EUR 45,000.
B. Costs and expenses
The applicant claimed reimbursement of the
costs and expenses incurred in the domestic proceedings and in the proceedings
before the Court. The applicant had instructed two Polish lawyers to represent
her before the Court.
The applicant claimed, with reference to
invoices they had submitted, EUR 11,529 (comprising EUR 9,450 in fees
plus VAT of 22 per cent) in respect of legal fees for work carried out by
Ms M. Gąsiorowska and Ms I. Kotiuk who represented the
applicant in the domestic proceedings and before the Court. Legal fees
corresponded to 189 hours spent in preparation of the applicant’s case before
the domestic courts and the case before the Court, at an hourly rate of
EUR 50.
The applicant further claimed reimbursement of travel costs
borne in connection with the civil case conducted before the courts in Cracow in the amount of PLN 1,400 and EUR 1,000 in respect of telephone bills for
conversations with the applicant in the years 2005-2008.
The applicant further argued that the case had
raised complicated issues of law which necessitated expert advice in
reproductive rights law. She claimed, with reference to invoices, EUR 8,223,75
in respect of legal fees for work carried out by an expert of the Center for
Reproductive Rights, based in New York. Legal fees corresponded to 85 hours
spent in preparation of the applicant’s case, at an hourly rate of USD 150,
equivalent to EUR 96,75. She argued that it had been well-established
in the Court’s case-law that costs could reasonably be incurred by more
than one lawyer and that an applicant’s lawyers could be situated in different
jurisdictions (Kurt v. Turkey, judgment of 25 May 1998, Reports
of Judgments and Decisions 1998-III). This was justified by the
novelty and complexity of the issues involved in the case which was comparable
to the case of Tysiąc v. Poland, concerning access to
legal abortion in Poland, but which related to different legal issues. She
submitted that certain consequences followed from the involvement of foreign
lawyers. In Tolstoy Miloslavsky v. the United Kingdom the Court
stated that “given the great differences at present in rates of fees from one
Contracting State to another, a uniform approach to the assessment of fees ...
does not seem appropriate” (Tolstoy Miloslavsky v. the United Kingdom,
judgment of 13 July 1995, § 77, Series A no. 316-B).
The Government requested the Court to decide on
the reimbursement of legal costs and expenses only in so far as these costs and
expenses were actually and necessarily incurred and were reasonable as to the
quantum. They referred to the Court’s judgment in the case of Eckle v. Germany
(Eckle v. Germany, 15 July 1982, § 25, Series A no. 51).
The Government further submitted, in respect of
the travel costs borne by the applicant’s lawyers in 2005 and the amount
claimed in respect of phone calls made from 2004 until 2008, that the applicant
had failed to substantiate these costs by submitting relevant bills or
documents.
They further submitted that the applicant had
failed to provide the Court with information on lowest legal rates applicable
in Poland. They were of the view that in cases of great importance to society,
such as the present one, the lawyers should have followed good professional
practices and, accordingly, either have acted pro bono or significantly
reduced their fees. Generally, the Government were of the view that the amounts
claimed by the applicant were exorbitant and could not be reimbursed.
The Government took the same position in
respect of the claim concerning costs incurred by the Centre for Reproductive
Rights.
The Court reiterates that only legal costs and
expenses found to have been actually and necessarily incurred and which are
reasonable as to quantum are recoverable under Article 41 of the Convention
(see, among other authorities, Nikolova
v. Bulgaria [GC], no. 31195/96, 25 March 1999,
§ 79, and Smith and Grady v. the United Kingdom
(just satisfaction), nos. 33985/96 and 33986/96, § 28,
ECHR 2000-IX). In the light of the documents submitted, the Court is
satisfied that the legal costs concerned in the present case have actually been
incurred.
As to the amounts concerned, the Court first
points out that it has already held that the use of more than one lawyer may
sometimes be justified by the importance of the issues raised in a case (see,
among many other authorities, Sunday Times v. the United Kingdom
(no. 1) (former Article 50), judgment of 6 November 1980,
Series A no. 38, § 30). The Court notes, in this connection,
that the issues involved in the present case have given rise to a heated and
ongoing legal debate in Poland. It is also relevant to note in this connection
the scarcity of relevant case-law of the Polish courts and lack of any
established consensus in legal circles as to the degree and scope of protection
which reproductive rights should enjoy under Polish law. The Court is further
of the view that the Convention issues involved in the case were also of
considerable complexity.
On the whole, having regard both to the
national and the Convention law aspects of the case, the Court is of the
opinion that they justified recourse to three lawyers, including an expert in
reproductive rights issues. As to the hourly rates claimed, the Court is of the
view that they are consistent with domestic practice in both jurisdictions
where the lawyers representing the applicant practise and cannot be considered
excessive.
On the other hand, as to the costs claimed by
the applicant, the Court notes that no documents have been submitted to show
that these costs have actually been incurred.
The Court, deciding on an equitable basis and
having regard to the details of the claims submitted, awards the applicant a
global sum of EUR 15,000 in respect of fees and expenses, plus any tax on
that amount that may be chargeable to the applicant.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Joins unanimously to the merits the
Government’s preliminary objections concerning exhaustion of domestic remedies and
lack of victim status as regards the Article 8 complaint and declares the
application admissible;
2. Holds by six votes to one that there has
been a violation of Article 3 of the Convention;
3. Holds by six votes to one that there has
been a violation of Article 8 of the Convention and dismisses
by six votes to one the Government’s above-mentioned preliminary objections;
4. Holds
unanimously that it is not necessary to examine separately whether there has
been a violation of Article 13 of the Convention;
5. Holds unanimously
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into Polish zloty at the rate applicable at the date
of settlement:
(i) EUR 45,000 (forty-five thousand euros) plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 15,000 (fifteen thousand euros), plus any
tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 May 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) partly dissenting opinion of Judge Bratza;
(b) partly dissenting opinion of Judge De Gaetano.
N.B.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE BRATZA
1. I am in full agreement with the conclusion of
the majority of the Chamber that the applicant’s rights under Article 8 of the
Convention were violated in the present case and can in general subscribe to
the reasoning in the judgment, drawing as its does on the Court’s judgment in
the case of Tysiąc v. Poland. In the Tysiąc case
the Court emphasised that where, as in Poland, abortion was permitted on the
grounds that the pregnancy endangered the mother’s life or health, Article 8
required that domestic law should provide effective procedural mechanisms
capable of determining whether the conditions existed for obtaining a lawful
abortion in situations where a pregnant woman had objective grounds for fearing
that the pregnancy or delivery would have a serious negative impact on her
health.
2. There are, as the judgment points out, significant
differences between the factual situation in the Tysiąc case and
those in the present case. In the first place, it was not, as in Tysiąc,
risks to the applicant’s own life or health resulting from the pregnancy which
were in issue in the present case but rather the fear that the foetus was
suffering from irreversible damage. The primary and immediate concern of the
applicant was to obtain an accurate medical diagnosis of the condition of the
foetus, which would in turn have made it possible to determine whether or not
the conditions for a lawful abortion applied in the applicant’s case. According
to the ultrasound scans performed in the 14th and 18th
week of the applicant’s pregnancy, the foetus appeared to be suffering from an
unidentified congenital defect. Genetic testing by way of amniocentesis was
recommended to confirm or dispel this suspicion and to identify the nature and
seriousness of any foetal defect. Despite her persistent efforts, the applicant
did not succeed in obtaining the required genetic tests until the 23rd
week of her pregnancy and, even then, had to wait for a further two weeks
before the results of the tests revealed the presence in the foetus of Turner
syndrome, by which time it was in any event too late for an abortion to be
carried out. It is the denial of prompt access to a medical diagnosis of vital
importance to the applicant and the lack of any procedural mechanism to ensure
that such a diagnosis was not so impeded or delayed as to deprive the applicant
of any possibility of a lawful termination of her pregnancy that is at the
heart of her complaint under Article 8 of the Convention.
3. It is not disputed that Article 8 is
applicable in the circumstances of the present case. The Government place
reliance, however, on the fact that the applicant ultimately obtained access to
a prenatal genetic examination as she had requested and that, as the
examination confirmed, the condition from which the foetus was found to be
suffering did not in any event qualify as a severe or life-threatening
condition which would have entitled her to a lawful termination. This to my
mind is to take too narrow a view of the applicant’s complaint under the
Article. Whether or not the prenatal test had shown that the foetus was
severely and irreversibly damaged or suffered from an incurable
life-threatening ailment for the purposes of the 1993 Act, the provision
of effective access to accurate information on the condition of a foetus is
unquestionably a vital element of the health and well-being of a woman during
pregnancy and forms an integral part of her private life protected by that
Article. The importance of prompt access to such information is further
reinforced in a case such as the present, where delays in the provision of
information seriously restrict the ability of the woman concerned to make an
informed decision as to whether or not to seek a termination of her pregnancy.
4. For the reasons given in the judgment, I
consider that the respondent State failed in its obligation to secure the
applicant’s rights under Article 8 in this regard. This failure was, in my
view, aggravated in the present case by her treatment by the doctors and health
professionals whom she had consulted, which was, as the judgment puts it,
“marred by procrastination, confusion and lack of proper counselling”. What
must have appeared to the applicant to be a deliberate attempt to place
obstacles in the way of discovering the precise condition of the foetus and
thereby to deprive her any possibility of a lawful termination, can only have
added to the sense of anxiety and frustration felt by a person in an already
vulnerable state.
5. It is on this issue that I part company from the
majority of the Chamber, who see the treatment of the applicant not merely as
an aggravating factor in a violation of Article 8 but as giving rise to a
separate violation of Article 3 of the Convention. This, in my view, is to
extend the scope of that Article too far. It is true that the applicant was, to
use the words of the judgment, “shabbily treated” by the doctors dealing with
her case. At every turn, her repeated efforts to obtain the genetic tests which
she was advised were necessary, and to which she was clearly entitled, were
frustrated. It is true, too, that the Supreme Court was strongly critical of
the manner in which the applicant’s case had been treated, awarding damages to
her for the distress, anxiety and humiliation she had been required to endure.
However, it is also true that the threshold of Article 3 is and must remain a
high one and that treatment must attain a minimum level of severity, if it is
to fall within the scope of the Article. The circumstances of the present case
are in my view far removed from those of physical or mental ill-treatment by
officials of the State or degrading conditions of detention which have
traditionally been the subject of findings of a violation of the Article. I can
readily accept that in the weeks in which she awaited an accurate diagnosis,
the applicant suffered intense anxiety and that this can only have been added
to by what must have appeared to be the callous and obstructive attitude of the
doctors. However, I do not consider that in all the circumstances of the case
the applicant was subjected to degrading treatment for the purposes of Article 3
of the Convention. The judgment seeks to draw an analogy in this regard with
cases of enforced disappearances, where the responsible authorities
systematically prevaricate or provide false information to applicants about the
whereabouts and fate of their missing relatives. I am not persuaded that any
true analogy can be drawn between such treatment, or the suffering and distress
thereby caused, and the actions of the health professionals in the present
case, prompted as they may have been to deter the applicant from pursuing the
possibility of a termination of her pregnancy.
6. My conclusion that Article 8 alone was
violated in the present case would have led me to award a lesser sum by way of
just satisfaction, particularly since the applicant had received compensation
at domestic level. However, in deference to the view of the majority that
Article 3 was also violated, I have voted in favour of the sum awarded to
the applicant.
PARTLY DISSENTING OPINION OF JUDGE DE GAETANO
1. I regret that I cannot share the Court’s
conclusions in their entirety in this case. I have voted for a finding of a
violation of Article 3, but cannot share the majority’s view in connection
with the finding of a violation of Article 8. In light of this, I consider
that the amount of non-pecuniary damages should have been less than actually
awarded. However, since the majority have found a violation under both
articles, then the amount of EUR 45,000 is substantially correct, and my
vote under that head of the operative part of the judgment is to be understood
subject to that caveat.
2. I also regret that the long-winded and at times
convoluted way in which the judgment has been presented - with an attempt to
pack into it every bit of information irrespective of the degree of relevance
of that information to the core issue (see, for example, paragraphs 81 to
89, and 122 to 143) - leads the reader to miss the wood for the trees. Indeed,
this case, like Tysiaç (Tysiac v. Poland, no. 5410/03,
20 March 2007), has in part been presented by the applicant, and the
judgment approved by the majority has similarly been put together, in such a
way as if this was an “abortion” case, or a case about the “right” to have an
abortion. This is not so. Polish law allows a woman to seek an abortion in the
narrowly defined circumstances envisaged in Section 4(a) of “the 1993 Act” (see
para. 67 of the judgment). One may agree or disagree with that provision
of law, but there is nothing this Court can do about it in the instant case;
and indeed this Court has not been called upon to do anything about it. What
this Court has been called upon to examine is whether, from the moment
that there was some indication that the child the applicant was carrying might
be suffering from some form of deformity or malformation, the treatment she
received at the hands of the health care professionals with whom she came into
contact was in breach of her fundamental human rights as protected by the
Convention.
3. In its judgment of 11 July 2008 the Polish
Supreme Court (see paragraphs 52 to 54) held, in substance, that the applicant,
as a patient, had the right to be referred in a proper and efficient manner for
the necessary genetic testing so that she could have the necessary information
as soon as possible about her unborn child’s health. That court likewise held
that there were no legal or medical grounds on which to automatically link
genetic testing with access to abortion under the 1993 Act. The facts, however,
show that the applicant, who as a woman with child must be regarded as a
vulnerable person in view of her condition (and irrespective of whether or not
the child she was carrying had any abnormality), was subjected to what can best
be described as a string of constructive prevarications by the health care
professionals in question, and was shoved from pillar to post for several
weeks, presumably because the doctors involved suspected that if the results
were to show that the unborn child was affected with some malformation, she
would request an abortion. Now, apart from the fact that it is very doubtful
whether a child suffering from Turner syndrome can be described as “severely
damaged” or as “suffering from an incurable life-threatening ailment” for the
purposes of the above-mentioned Section 4(a) of the 1993 Act,
the doctors concerned were perfectly entitled, on grounds of conscientious
objection, to refuse to terminate the life of the unborn child by performing an
abortion or, indeed, even to refuse to refer the applicant for an abortion.
What they were not entitled to do was to keep her in the dark and increase her
distress and anxiety to such an extent that she was prepared to ask for an
abortion - her appel de détresse - even without a proper diagnostic
finding (see paragraphs 17 and 30). Instead of providing the necessary care
and, above all, support to the parents who were facing the possible birth of a
handicapped child, the system worked to push the applicant to take an extreme
measure - the same measure that the doctors wanted to avoid. To that extent the
Court’s conclusions in paragraphs 159 to 161 are unimpeachable.
4. The matter could, and should, have stopped
there. The majority, however, chose to go down the Tysiaç path. In Tysiaç,
it will be recalled, the woman had requested an abortion because she claimed
that otherwise her health - her eyesight - would suffer. The Court found that,
once that a woman could in certain circumstances under Polish law ask for the
termination of her unborn child’s life to preserve her own health, when a
referral was refused by the medical profession there had to be a procedure
before an independent body competent to review that refusal to terminate the
pregnancy and to review the relevant evidence; a procedure in which the
pregnant woman could be heard in person, and where written grounds for the
decision would be given (Tysiaç §117). For reasons which are still not
entirely clear to me, the Court in that case chose to examine the issue under
Article 8 instead of under Article 6. The very limited issue involved in that
case was highlighted in the separate opinion of Judge Bonello: “The decision in
this case related to a country which had already made medical abortion legally
available in certain specific situations of fact. The Court was only called
upon to decide whether in cases of conflicting views ... as to whether the
conditions to obtain a legal abortion were satisfied or not, effective
mechanisms capable of determining the issue were in place. My vote for finding
a violation goes no further than that.” Even in the instant case the matter
should, if at all, have been further examined under Article 6 and not under
Article 8.
5. In the instant case there was no question of
weighing the unborn child’s life against the mother’s or her health. By
bringing Article 8 into the picture (as the Grand Chamber also did in A, B
and C v. Ireland, no. 25579/05, 16 December 2010), the
Court is simply making things more difficult for itself in regard to the issue
of the determination of the beginning of life and the unborn child’s protection
under a “more fundamental” provision of the Convention, namely Article 2.
Notwithstanding all the “evolutive interpretations” of the Convention adopted
by the Court, when it comes to the right to life of the unborn child the Court
has been exceptionally pusillanimous, with only cursory references hinting at
some form of protection (see, for instance, Odièvre v. France [GC],
no. 42326/98 13 February 2003, § 45), the Court in most
cases preferring to avoid the issue (Vo v. France [GC], no. 53924/00,
8 July 2004, § 85) or to invoke the “margin of appreciation” doctrine
(as in Boso v. Italy (dec.) no. 50490/99, 5 September
2002). The Court, moreover, seems not to be giving the proper weight and
importance to the clear proposition made by the Commission in its report of
12 July 1977 in the case Brüggemann and Scheuten v. Germany (Application no. 6959/75) to the effect that “...pregnancy cannot be said
to pertain uniquely to the sphere of private life. Whenever a woman is pregnant
her private life becomes closely connected with the developing foetus” (§ 59).
So we continue to drag Article 8 into the fray, making things “confused
worse confounded”. At one end of the spectrum the death penalty has been
abolished; at the other end the unborn child’s right to life remains in limbo.
