In her complaint, a resident of the capital indicated that in January 2021 she was denied the right to an abortion at the Bielański Hospital. She qualified for the procedure because the fetus was diagnosed with a genetic defect in the form of trisomy 21, which leads to Down syndrome. The day before the abortion was scheduled, the complainant learned that there would be no procedure. Why? Because on the same day, the judgment of the Constitutional Tribunal by Julia Przyłębska from October 2020 was published, which outlawed abortion in Poland due to severe, irreversible fetal defects – thus contributing to the death of many women in our country.
The woman known as ML accused Poland of violating Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment. In Thursday’s judgment, the ECtHR found that there had been no violation of the above-mentioned article. However, the ECtHR found that Poland violated Art. 8 of the Convention, regarding unlawful interference by authorities in a woman’s private life. This article guarantees that “everyone has the right to respect for his private and family life.”
Abortion in Poland. There is a landmark judgment of the Court of Human Rights in Strasbourg
According to the decision, Poland must pay the complainant jointly 16 thousand euros in compensation. The ECtHR orders the payment of the above-mentioned amount within three months of the announcement of this judgment.
The change in law in Poland, which forced the applicant to emigrate, caused suffering and had a significant psychological impact on her (…) Undoubtedly, having an abortion abroad, away from family support, rather than undergoing the procedure in her home country, was a significant source of anxiety
– we read in a fragment of Thursday’s ruling of the Strasbourg tribunal.
It is worth emphasizing that Thursday’s decision of the ECtHR is a breakthrough. For the first time, the Tribunal ruled on a violation of the European Convention on Human Rights, caused by the Constitutional Tribunal’s judgment of 2020. The injured party was represented in court by lawyer Agata Bzdyń from Feminoteka and lawyer Kamila Ferenc from FEDERA.
The government should guarantee that the Constitutional Tribunal’s judgment will not be applied
What does Thursday’s decision of the ECtHR mean for Polish women? – First of all, the government should confirm that this pseudo-judgment (of the Constitutional Tribunal of 2020 – ed.), issued in a faulty composition, will not be applied directly by doctors. Because doctors refuse abortion to people whose pregnancy is at risk of severe, irreversible fetal defects. The Supreme Medical Chamber should issue the same message – Agata Bzdyń tells us.
For Polish women, this means that – if the government agrees to implement the ECtHR judgment – those in power should simply remove the possibility of relying on the Constitutional Tribunal’s judgment from 2020.
– he adds.
“This situation caused her suffering”
In her complaint to the tribunal in Strasbourg, ML indicated that the Constitutional Tribunal’s judgment deprived her of the possibility of terminating her pregnancy, and therefore she was faced with a choice: give birth to a sick child or perform the procedure abroad. An abortion in the Netherlands was not only a financial but also a mental burden for her. “This situation caused her suffering, stress, humiliation, a sense of helplessness and other, difficult to predict consequences for her mental and physical health,” an excerpt from the complaint read.
A 38-year-old woman from Warsaw indicated in her complaint that the Constitutional Tribunal’s judgment – which deprived her of the ability to undergo a legal abortion in her own country – was issued with the participation of the so-called understudies elected by PiS MPs to replace Constitutional Tribunal judges. The mentioned understudies are not judges, but they rule in the Constitutional Tribunal of Julia Przyłębska. Already in 2021, the ECtHR found that the panels of judges adjudicating with their participation were unlawful.
Thursday’s ECtHR judgment is not final. Theoretically, the Polish authorities can appeal against it.
Source: Gazeta
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