A.M. AND OTHERS v. POLAND
| ECLI | ECLI:CE:ECHR:2023:0516DEC000418821 |
| Counsel | GĄSIOROWSKA M. ; BZDYŃ A. ; FERENC K. |
| Date | 16 May 2023 |
| Application Number | 4188/21;4957/21;5014/21;5523/21;5876/21;6114/21;6217/21;8857/21 |
| Court | First Section (European Court of Human Rights) |
| Respondent State | Polonia |
| Applied Rules | 34 |
FIRST SECTION
DECISION
Application no. 3639/21
A.M. against Poland
and 7 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 16 May 2023 as a Chamber composed of:
Marko Bošnjak, President,
Krzysztof Wojtyczek,
Alena Poláčková,
Ivana Jelić,
Gilberto Felici,
Erik Wennerström,
Raffaele Sabato, judges,
and Renata Degener, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the decision to give priority to the applications under Rule 41 of the Rules of Court,
Having regard to the decision to grant the applicants anonymity under Rule 47 § 4 and confidentiality of the case file under Rule 33,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Council of Europe Commissioner for Human Rights, who exercised her right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2 of the Rules of Court),
Having regard to the comments submitted by the third-party interveners, who were granted leave to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3),
Having deliberated on 15 November 2022 and 16 May 2023, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
- Background to the case
(a) Constitutional Court case no. K 13/17
4. On 22 June 2017 a group of 104 members of parliament lodged an application with the Constitutional Court to have sections 4a (1) 2 and 4a (2) of the Law on family planning, protection of the human foetus and conditions permitting pregnancy termination (Ustawa o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży – “the 1993 Act”), relating to legal abortion on the ground of foetal abnormalities, declared incompatible with the Constitution (case no. K 13/17).
5. Among the signatories of the application was K.P., a member of parliament who was subsequently elected to the office of judge of the Constitutional Court on 5 December 2019.
6. In October 2019 parliamentary elections were held.
7. On 21 July 2020 the Constitutional Court discontinued the proceedings on the ground that the application had been lodged during the previous term of the Sejm.
(b) Constitutional Court case no. K 1/20
8. On 19 November 2019 a group of 118 members of parliament lodged a new application with the Constitutional Court to have sections 4a (1) 2 and 4a (2) (first sentence) of the 1993 Act declared incompatible with the Constitution (case no. K 1/20).
9. On 22 October 2020 the Constitutional Court, sitting in plenary (thirteen judges), held by a majority of eleven votes to two that sections 4a (1) 2 and 4a (2) (1st sentence) of the 1993 Act were incompatible with the Constitution. The bench included Judge K.P. and Judges M.M., J.W. and J.A.P. and was presided over by Judge J.P., the President of the Constitutional Court. Publication of the judgment in the Journal of Laws was postponed (see also paragraph 31 below).
10. On 27 January 2021 the Constitutional Court published the reasoning of its judgment of 22 October 2020. On the same date, the judgment was published in the Journal of Laws. The judgment entered into force on the date of its publication.
(c) Street protests
11. The Constitutional Court’s ruling prompted large street protests and demonstrations involving thousands of participants. The protests were organised by, among others, All-Poland Women’s Strike, a women’s social rights movement in Poland.
(d) Federation for Women and Family Planning
12. In January 2021 the Federation for Women and Family Planning (“FEDERA”), a Polish non-governmental organisation (NGO) campaigning on sexual and reproductive rights, posted online a pre-filled form for applications to the Court, together with attachments. FEDERA further encouraged women of child-bearing age living in Poland to lodge applications with the Court.
13. Potential applicants were invited to print out the pre-filled application form, add information about their personal circumstances, sign it and send it to the Court.
- The present case
14. The applicants in the present case lodged their applications using the pre-filled application forms and attached copies of documents prepared by FEDERA (namely copies of the Constitutional Court’s judgment, legal opinions prepared by the Commissioner for Human Rights of the Republic of Poland, the Helsinki Foundation for Human Rights and the Polish Bar Council, and press articles). At the beginning of the application form each applicant also added a few phrases describing her personal circumstances. None of the applicants attached any documents or medical certificates relating to their individual circumstances.
(a) Application no. 4957/21
15. The applicant submitted that she was thirty-five years old and suffered from chronic leukopenia, a severe allergy and severe myopia. She had experienced several anaphylactic shocks over the previous few years. Because of her illnesses she had been taking contraceptives and was not planning a pregnancy. However, no contraceptive method was completely effective. The applicant submitted that she was very worried about the effect that the Constitutional Court’s judgment would have on her situation.
(b) Application no. 6217/21
16. The applicant submitted that she was forty years old and had been undergoing fertility treatment for the previous ten years. She had had three unsuccessful cycles of in vitro...
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