AS TO THE ADMISSIBILITY OF
Application no. 5410/03
by Alicja TYSIĄC
The European Court of Human Rights (Fourth Section), sitting on 7 February 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Ms L. Mijović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 15 January 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Center for Reproductive Rights, based in New York, by the Polish Federation for Women and Family Planning together with the Helsinki Foundation for Human Rights, Warsaw; by the Forum of Polish Women, Gdańsk, and by the Association of Catholic Families, Kraków, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the European Convention on Human Rights and Rule 44 § 2 of the Rules of Court) and which are henceforth referred to as “third parties”,
Having regard to the parties' oral submissions at the hearing on the admissibility and merits of the case held, pursuant to Rule 59 § 3, on 7 February 2006,
Having deliberated, decides as follows:
The applicant, Ms Alicja Tysiąc, is a Polish national who was born in 1971 and lives in Warsaw. She is represented before the Court by Ms Monika Gąsiorowska and Ms Anna Wilkowska-Landowska, lawyers practising in Warszawa and Sopot respectively, assisted by Ms Andrea Coomber and Ms Vesselina Vandova of Interights, London. At the hearing held on 7 February 2006 the respondent Government were represented by their Agent, Mr Jakub Wołąsiewicz, assisted by Ms Anna Gręziak, Under-secretary of State, and by Professor Bogdan Chazan, Professor Jerzy Szaflik, Ms Katarzyna Bralczyk of the Agent's Office and Mr Krzysztof Wiak, Advisers.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 1977 the applicant has suffered from severe myopia, the degree of which was established at - 0.2 in the left eye and - 0.8 in the right eye. Before her pregnancy, she was assessed by a state medical panel, for the purposes of social insurance, as suffering from a disability of medium severity.
The applicant became pregnant in February 2000. She had previously had two children, both born by caesarean section. As the applicant was worried about the possible impact of the delivery on her health, she decided to consult her doctors. She was examined by three ophthalmologists (Dr M.S., Dr N. S.-B., Dr K.W.). It transpires from the documents submitted by the applicant that Dr M.S. recommended that the applicant have frequent health checks and avoid physical exertion. Dr N. S.-B. stated that the applicant should consider sterilisation after the birth. All of them concluded that, due to pathological changes in the applicant's retina, the pregnancy and delivery constituted a risk to her eyesight. However, they refused to issue a certificate for the pregnancy to be terminated, despite the applicant's requests, on the ground that the retina might detach itself as a result of pregnancy, but that it was not certain.
Subsequently, the applicant sought further medical advice. On 20 April 2000 Dr O. R. G., General Practitioner (GP), issued a certificate stating that the third pregnancy constituted a threat to the applicant's health as there was a risk of rupture of the uterus, given her two previous deliveries by caesarean section. She further referred to the applicant's short-sightedness and to significant pathological changes in her retina. These considerations, according to the GP, also required that the applicant should avoid physical strain which in any case would hardly be possible as at that time the applicant was raising two small children on her own. The applicant understood that on the basis of this certificate she would be able to terminate her pregnancy lawfully.
On 14 April 2000, in the second month of the pregnancy, the applicant's eyesight was examined. It was established that she needed glasses correcting her vision in both eyes by 24 dioptres.
Subsequently, the applicant contacted a state hospital, the Clinic of Gynaecology and Obstetrics in Warsaw, in the area to which she was assigned on the basis of her residence, with a view to obtaining the termination of her pregnancy. On 26 April 2000 she had an appointment with Dr R.D., head of the Gynaecology and Obstetrics Department of the Clinic.
Dr R.D. examined the applicant visually and for a period of less than five minutes, but did not examine her ophthalmological records. Afterwards, he made a note on the back of the certificate issued by Dr O.R.G. that neither her short-sightedness nor her two previous deliveries by caesarean section constituted grounds for therapeutic termination of the pregnancy. He was of the view that, in these circumstances, the applicant should give birth by caesarean section. During the applicant's visit Dr R.D. consulted with an endocrinologist, Dr B., whispering to her in the presence of the applicant. The endocrinologist co-signed the note written by Dr R.D., but did not talk to the applicant.
The applicant's examination was carried out in a room with the door open to the corridor, which, in the applicant's submission, did not provide a comfortable environment for a medical examination. At the end of the appointment Dr R.D. told the applicant that she could even have eight children if they were delivered by caesarean section.
As a result, the applicant's pregnancy was not terminated. The applicant delivered the child by caesarean section in November 2000.
After the delivery her eyesight deteriorated badly. On 2 January 2001, approximately six weeks after the delivery, she was taken to the Emergency Unit of the Ophthalmological Clinic in Warsaw. While doing a test of counting fingers, she was only able to see from a distance of three metres with her left eye and five metres with her right eye, whereas before the pregnancy she had been able to see objects from a distance of six metres. A reabsorbing vascular occlusion was found in her right eye and further degeneration of the retinal spot was established in the left eye.
According to a medical certificate issued on 14 March 2001 by an ophthalmologist, the deterioration of the applicant's eyesight had been caused by recent haemorrhages in the retina. As a result, the applicant is currently facing a risk of blindness. Dr M.S., the ophthalmologist who examined the applicant, suggested that she should be learning the Braille alphabet. She also informed the applicant that, as the changes to her retina were at a very advanced stage, there were no prospects of having them corrected by any surgical intervention.
On 13 September 2001 the disability panel declared the applicant to be significantly disabled, while previously she had been recognised as suffering from a disability of medium severity. It further held that she needed constant care and assistance in her everyday life.
On 29 March 2001 the applicant lodged a criminal complaint against Dr R.D., alleging that he had prevented her from having her pregnancy terminated on medical grounds as recommended by the GP and permissible as one of the exceptions to a general ban on abortion. She complained that, following the pregnancy and delivery, she had sustained severe bodily harm by way of almost complete loss of her eyesight. She relied on Article 156 § 1 of the Criminal Code, which lay down the penalty for the offence of causing grievous bodily harm, and also submitted that, under the applicable provisions of social-insurance law, she was not entitled to a disability pension as she had not been working the requisite number of years before the disability developed because she had been raising her children.
The investigation of the applicant's complaint was carried out by the Warsaw-Śródmieście District Prosecutor. The prosecutor heard evidence from the ophthalmologists who had examined the applicant during her pregnancy. They stated that she could have had a safe delivery by caesarean section.
The prosecutor further requested the preparation of an expert report by a panel of three medical experts (ophthalmologist, gynaecologist and specialist in forensic medicine) from the Białystok Medical Academy. According to the report, the applicant's pregnancies and deliveries had not affected the deterioration of her eyesight. Given the serious nature of the applicant's sight impairment, the risk of retinal detachment had always been present and continued to exist, and the pregnancy and delivery had not contributed to increasing that risk. Furthermore, the experts found that in the applicant's case there had been no factors militating against the applicant's carrying her baby to term and delivering it.
During the investigations neither Dr R.D. nor Dr B., who had co-signed the certificate of 26 April 2000, were interviewed.
On 31 December 2001 the district prosecutor discontinued the investigations, considering that Dr R.D. had no case to answer. Having regard to the expert report, the prosecutor found that there was no causal link between his actions and the deterioration of the applicant's vision. He observed that this deterioration “had not been caused by the gynaecologist's actions, or by any other human action.”
The applicant appealed against that decision to the Warsaw Regional Prosecutor. She challenged the report drawn up by the experts from the Białystok Medical Academy. In particular, she submitted that she had in fact been examined by only one of the experts, namely the ophthalmologist, whereas the report was signed by all of them. During that examination use had not been made of all the specialised ophthalmological equipment that would normally be used to test the applicant's sight. Moreover, the examination had lasted only ten minutes. The two other experts who had signed the report, including a gynaecologist, had not examined her at all.
She further emphasised inconsistencies in the report. She also submitted that, before the second and third deliveries, the doctors had recommended that she be sterilised during the caesarean to avoid any further pregnancies. She argued that, although the deterioration of her eyesight was related to her condition, she felt that the process of deterioration had accelerated during the third pregnancy. She submitted that there had been a causal link between the refusal to terminate her pregnancy and the deterioration of her vision. The applicant also complained that the prosecuting authorities had failed to give any consideration to the certificate issued by her GP.
She further pointed out that she had been unable to familiarise herself with the case file because the summaries of witnesses' testimonies and other documents were written in a highly illegible manner. The prosecutor, when asked for assistance in reading the file, had repeatedly refused to assist, even though he had been aware that the applicant was suffering from very severe myopia. The applicant had been unable to read the documents in the case file, which had affected her ability to exercise her procedural rights in the course of the investigation.
On 21 March 2002 the Warsaw Regional Prosecutor, in a decision of one paragraph, upheld the decision of the district prosecutor, considering that his conclusions had been based on the expert report. The Regional Prosecutor countered the applicant's argument that she had not been examined by all three experts, stating that the other two experts had relied on an examination of her medical records. The prosecutor did not address the procedural issue raised by the applicant in her appeal.
Subsequently, the decision not to prosecute was transmitted to the Warsaw-Śródmieście District Court for judicial review.
In a final decision of 2 August 2002, not subject to a further appeal and numbering twenty-three lines, the District Court upheld the decision to discontinue the case. Having regard to the medical expert report, the court considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant's vision. Furthermore, the court found that the haemorrhage in the applicant's eyes had in any event been likely, given the degree and nature of the applicant's condition. The court did not address the procedural complaint which the applicant had made in her appeal against the decision of the district prosecutor.
The applicant also attempted to bring disciplinary proceedings against Dr R.D. and Dr B. However, those proceedings were finally discontinued on 19 June 2002, the competent authorities of the Chamber of Physicians considering that there had been no professional negligence.
Currently, the applicant can see objects only from a distance of approximately 1.5 metres and is afraid of going blind. On 11 January 2001 the social welfare centre issued a certificate to the effect that the applicant was unable to take care of her children as she could not see from a distance of more than 1.5 metres. On 28 May 2001 a medical panel gave a decision certifying that she suffered from a significant disability. She is at present unemployed and in receipt of a monthly disability pension of PLN 560.1 She raises her three children alone.
B. Relevant law and practice
1. The Constitution
Article 38 of the Constitution reads as follows:
“The Republic of Poland shall ensure 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.”
2. 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”.
This Act provided that legal abortion was possible only until the twelfth week of pregnancy where the pregnancy endangered the mother's life or health; or prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest.
On 4 January 1997 an amended text of the 1993 Act, passed on 30 June 1996, entered into force. Section 1(2) provided that “the right to life, including the prenatal stage thereof, shall be protected to the extent laid down by law”. This amendment provided that pregnancy could also be terminated during the first twelve weeks where the mother either suffered from material hardship or was in a difficult personal situation.
In December 1997 further amendments were made to the text of the Act of 1993, following a judgment of the Constitutional Court given in May 1997. In that judgment the Court held that the provision legalising abortion on grounds of material or personal hardship was incompatible with the Constitution as it stood at that time. 2
Section 4(a) of the 1993 Act, as it stands at present, 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 disease;
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 stipulates the requisite qualifications of doctors who can perform legal abortions in the conditions specified in the 1993 Act. Article 2 § 1 of that 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.”
Section 37 of the 1990 Medical Professions Act provides that in the event of any diagnostic or therapeutic doubts, a doctor may, on his or her own initiative or upon a patient's request and if he or she finds it reasonable in the light of requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors.
3. Criminal offence of abortion performed in contravention of the 1993 Act
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.
4. Offence of causing grievous bodily harm
Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years' imprisonment.
1. The applicant complains that the facts of the case give rise to a breach of Article 8 of the Convention. Her right to due respect for her private life and her physical and moral integrity has been violated both substantively, by failing to provide her with a legal therapeutic abortion, and also in respect of the State's positive obligations, by the absence of a comprehensive legal framework to guarantee her rights. The applicant also invokes Article 3 in respect of the same facts.
As to the first limb of this complaint, the applicant contends that the facts underlying the application concern a matter of “private life”, a concept which covers the physical and moral integrity of the person. She sought to have an abortion when faced with a risk to her health. The refusal to terminate the pregnancy exposed her to a serious health risk and amounted to a violation of her right to respect for private life.
This interference was not in accordance with applicable domestic law. The 1993 Act provides very narrow exceptions to a general prohibition on abortion in Polish law. Significantly, it allows a termination where the continuation of a pregnancy constitutes a threat to the mother's life or health. The applicant had a legal right under Polish law to have an abortion on health grounds. Accordingly, the refusal to allow her access to abortion services on health grounds was in contravention of domestic law and therefore in breach of Article 8.
As to the second limb of her complaint, the applicant considers that the facts of the case disclose a breach of the right to effective respect for her private life in the light of the positive obligations of the State. The Polish authorities failed to ensure such respect as the law did not provide for any possibility of reviewing decisions in respect of termination of pregnancy on health grounds. The applicant argues that the State was under a positive obligation to provide a comprehensive legal framework regulating disputes between pregnant women and doctors as to the need to terminate pregnancy in cases of a threat to a woman's health. While the 1993 Act allows abortion where the health of the mother is threatened, there is no mechanism by which such cases are to be adjudicated and resolved in practice.
The need for such a mechanism is acute. The 1993 Act relates to a very sensitive area of medical practice. Doctors in Poland are hesitant to perform abortions necessary to protect the mothers' health because of the highly charged nature of the abortion debate in Poland. They also fear damage to their reputation should they be found to have performed a termination in the circumstances provided for under section 4. They may also fear criminal prosecution.
Further, the very nature of abortion means that time is of the essence in these cases. In the applicant's case the State failed to ensure effective respect for her private life on account of substantial shortcomings in the 1993 Act and in its application in practice. The applicant emphasises that as a result of the refusal to allow her to terminate her pregnancy, her sight has severely deteriorated causing her immense personal hardship and psychological distress.
2. The applicant complains under Article 13 of the Convention that she did not have effective remedies with regard to the State's failure to secure respect for her private life. The criminal investigation carried out by the authorities in the present case was not effective within the meaning of this provision, essentially because of the cursory character and fundamental shortcomings of the criminal investigation carried out by the authorities.
3. The applicant further submits, invoking Article 14 of the Convention, that she was discriminated against in asserting her Article 8 rights both on the ground of her sex and her disability. Because of her sex she was particularly vulnerable to interference with her right to private life under Article 8. The State's failure to ensure effective respect for her private life was aggravated by the cursory character of the criminal investigation of her complaint to the district prosecutor. She was further discriminated against on the grounds of her disability because in the course of the criminal investigation the prosecuting authorities failed to take any steps to enable her to exercise her procedural rights effectively.
The applicant complains that the facts of the case gave rise to a breach of Article 8 of the Convention. The applicant also invokes Article 3 in that connection.
The applicant complains under Article 13 of the Convention that she did not have an effective remedy with regard to the State's failure to secure respect for her private life.
The applicant further submits, invoking Article 14 of the Convention, that was discriminated against in realising her Article 8 rights both on the grounds of her sex and her disability.
Article 3 of the Convention, insofar as relevant, reads:
“No one shall be subjected ... to inhuman or degrading treatment ...”
Article 8 of the Convention, in its relevant part, reads:
“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.”
Article 13 of the Convention provides:
“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.”
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The Government's preliminary objections
Pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
1. Alleged failure to comply with the six-month rule
In that connection the Government submit that the application was introduced outside the six-month period imposed by Article 35 § 1 of the Convention because it was lodged with the Court more than six months after the applicant had been refused an abortion.
The applicant argues that she requested that criminal proceedings be instituted, alleging that a criminal offence had been committed in connection with the refusal to terminate her pregnancy. The final decision to discontinue the investigations was eventually upheld by the Warsaw Śródmieście District Prosecutor on 2 August 2002. Hence, her case was brought to the Court within the six-month time-limit.
The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised.
Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. However, Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his or her complaint before his or her position in connection with the matter has been finally settled at the domestic level (see, for example, Paul and Audrey Edwards v. the United Kingdom, (dec.) no. 46477/99, 7 June 2001).
The Court first notes that in the present case it is unclear what domestic remedies were available to be used in connection with the applicant's Convention complaints arising from the refusal of an abortion and its consequences (see below). Indeed, she complains, inter alia, that the domestic law did not provide for any effective procedural mechanism to remedy her situation.
The Court further observes that in the present case the applicant does not challenge the law concerning the availability of abortion in Poland as such. Neither does she complain about the mere fact that she was refused an abortion on medical grounds.
The Court notes that her complaints are rather grounded on a chain of events which was initiated by her fears that in her condition the third pregnancy and birth could negatively affect her vision. She subsequently sought medical advice from four physicians. Later on, Doctor R.D. refused to perform an abortion. She delivered the child by caesarean section in November 2000. Afterwards, as her eyesight badly deteriorated, she was admitted to the Ophthalmological Clinic in Warsaw on 2 January 2001. A medical certificate of 14 March 2001 stated that this deterioration had been caused by recent haemorrhages in the retina. Having regard to this deterioration of her condition, which had come to light after the delivery, on 29 March 2001 the applicant requested the prosecuting authorities to investigate her complaint that a criminal offence of causing grievous bodily harm had been committed in connection with the refusal of an abortion. A final decision in these investigations was given by the Warsaw District Court on 2 August 2002.
Subsequently, the applicant lodged her application with the Court on 15 January 2003.
The Court considers that there was a close link between the issues examined in connection with the applicant's criminal complaint and the substance of her Convention complaints. The Court notes that in the domestic proceedings she tried to obtain redress for what she perceived as exposing her to a serious health risk and for breach of her physical and moral integrity contrary to Article 8 of the Convention.
It follows that the application cannot be declared inadmissible for failure to comply with the six-month requirement within the meaning of Article 35 § 1 of the Convention.
2. Exhaustion of domestic remedies
The Government further argues that the applicant failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention.
The Government refer to the Court's case-law to the effect that there are certain positive obligations under the Convention which require States to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V). That positive obligation does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation could for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages, to be obtained (Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I).
The Government further assert that the Polish legal system provides for legal avenues which make it possible to establish liability on the part of doctors for any damage caused by medical malpractice, either by way of criminal proceedings, or by civil compensation claims. In the applicant's case, a compensation claim would have offered good prospects of success.
The Government refer in that connection to the provisions of the Civil Code governing liability in tort. They further refer to two judgments given by the civil courts against the background of the 1993 Act. In the first of them, given by the Supreme Court on 21 November 2003, the court held that the unlawful refusal to terminate a pregnancy caused by rape gave rise to a compensation claim. In another one the Łomża Regional Court dismissed, on 6 May 2004, a claim for non-pecuniary damages by parents who had been refused access to prenatal tests and whose child was born with serious malformations.
The applicant submits that, under the Court's case-law, she should not be required to have recourse both to civil and criminal remedies in respect of the alleged violation of Article 8 of the Convention. If there is more than one remedy available, the applicant need not exhaust more than one (Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, §§ 42-44). She further refers to a judgment in which the Court found that the applicants, having exhausted all possible levels available to them in the criminal justice system, were not required, in the absence of a criminal prosecution in connection with their complaints, to embark on another attempt to obtain redress by bringing an action for damages (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 86).
The applicant argues that pursuing civil proceedings would not be effective in her case. To date, there has been no final judgment of a Polish court in a case in which damages have been awarded for damage to health caused in connection with a refusal of a therapeutic abortion allowed under the 1993 Act. She emphasises that the two cases referred to by the Government postdated her petition to the Court under Article 34 of the Convention. Importantly, they are immaterial to the present case as they concerned situations that were fundamentally different from the applicant's, both as to the facts and the law. One of them related to a claim for damages arising from the unlawful refusal of an abortion where the pregnancy had been caused by rape and the second one concerned a claim for damages arising from a the refusal of a pre-natal examination.
Finally, she points out that under the Court's case-law it is for an applicant to select the legal remedy that is most appropriate in the circumstances of the case (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 23). Effective deterrence against grave attacks on personal integrity (such as rape in the case of M.C.), where fundamental values and essential aspects of private life are at stake, require the effective application of criminal-law provisions (M.C. v. Bulgaria, no. 39272/98, §§124, 148-53, and X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, §§ 23 and 24). Under the circumstances, the criminal remedy chosen by the applicant was the most appropriate one.
The Court considers that the Government's objection concerning alleged failure to exhaust domestic remedies is closely linked to the substance of the applicant's complaints under Articles 3, 8 § 1 and 8 read together with Article 13 of the Convention, and should be joined to the merits of the case.
B. The substance of the application
1. The parties' submissions
a. The complaints under Articles 3 and 8 of the Convention
i. The Government
The Government first emphasise that pregnancy and its interruption do not, as a matter of principle, pertain uniquely to the sphere of the mother's private life. Whenever a woman is pregnant, her private life becomes closely connected with the developing foetus. There can be no doubt that certain interests relating to pregnancy are legally protected (Eur. Comm. HR, Brüggemann and Scheuten v. Germany, Report of 12 July 1977, DR 10, p. 100). Polish law also protects the foetus and therefore allows for termination of a pregnancy under the 1993 Act only in strictly defined circumstances. The Government are of the view that in the applicant's case the conditions for lawful termination on health grounds as defined by that Act were not satisfied.
The Government argue that insofar as the applicant submits that her pregnancy posed a threat to her eyesight because of her severe myopia, only a specialist in ophthalmology could decide whether abortion was medically advisable. The ophthalmologists who examined the applicant during her pregnancy did not consider that her pregnancy and delivery constituted any threat to her health or life. They concurred in their opinions that the applicant should deliver her child by caesarean section, which was what she ultimately did.
The Government stress that if there existed a possibility of delivery which did not pose any threat to the applicant's health, under the 1993 Act the doctors were not authorised to issue a medical certificate permitting abortion. Consequently, the applicant was unable to obtain an abortion in the conditions laid down by that Act.
ii. The applicant
The applicant first disagrees with the Government's argument that under the case-law of the Convention institutions the legal protection of life afforded by Article 2 extends to foetuses. Under that case-law “[t]he life of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman” (Eur. Comm. HR, X. v. the UK, dec. 13 May 1980, DR 19, p. 244). Recently the Court observed that legislative provisions as to when life commences fell within the State's margin of appreciation, but rejected suggestions that the Convention ensured such protection, having observed that the issue of such protection was not resolved within the majority of the Contracting States themselves and that there was no European consensus on the scientific and legal definition of the beginning of life (Vo v. France [GC], no. 53924/00, § 82, ECHR 2004-...).
The applicant further emphasise that all the physicians whom she consulted agreed that the delivery should be by caesarean section, regard being had to the potential implications for her condition. Hence, the medical evidence clearly indicated that there was a serious risk to her health.
The applicant counters the Government's suggestion that her condition was not such as to meet the requirements for a lawful abortion on medical grounds set forth in section 4(a) of the 1993 Act in that it was not established that the deterioration of her vision after the delivery had been a direct result of the pregnancy and birth. In that connection she stresses that this issue is not relevant for the assessment of the case because the 1993 Act provides that it was merely the threat to the pregnant woman's health which made abortion legal. The actual materialisation of such a threat was not necessary.
In any event, and regrettably, in the applicant's case this threat materialised and brought about a severe deterioration of her eyesight.
b. The complaint under Article 13 of the Convention
i. The Government
The Government submit that Polish law provides for a procedure governing medical decisions concerning abortion on medical grounds. They refer to the 1993 Act and to the Ordinance of the Minister of Health of 22 January 1997. They further refer to section 37 of the Medical Professions Act of 1990. They argue that it provides for the possibility of reviewing a therapeutic decision taken by a specialist.
ii. The applicant
The applicant submits that the legislative framework governing the termination of pregnancy in cases like the applicant's is inadequate. The provisions relied on by the Government do not provide clarity as to the applicable procedures because both the 1993 Act and the 1997 Ordinance are drafted in the broadest terms. They provide that doctors can make referrals for therapeutic abortion, but give no indication of the details as to how that process works or within what time-frame. Critically, there is no provision for any meaningful review or scope for challenge of a decision not to make such a referral.
The applicant is of the view that in circumstances where there is a fundamental disagreement between a pregnant woman fearful of losing her eyesight as a result of a third delivery and a doctor, it is inappropriate to leave the task of balancing fundamental rights exclusively to the doctor, with no procedure for review. The applicant, as she was concerned by medical decisions taken in her case, should have had a say in the decision-making process.
The applicant submits that the onus is on the State to ensure that medical services required by pregnant women and available in law are available in practice. The legal system in Poland, viewed as a whole, operates with the opposite effect, offering a strong disincentive to the medical profession to provide abortion services that are available in law. The flexibility that the law appears to afford in determining what constitutes a “threat to a woman's health” within the meaning of section 4(a) of the 1993 Act and the lack of adequate procedures and scrutiny contrast with the strict approach under the criminal law penalising doctors for carrying out unlawful abortions. The law imposes stiff criminal sanctions on abortions carried out in contravention of the 1993 Act.
The applicant points out that these criminal sanctions discourage doctors from referring women for terminations, for fear of criminal proceedings. When requested to assess the threat to a woman's health within the meaning of that provision, the absence of any procedures or guidelines and the threat of criminal sanctions mean that doctors are inclined to give a very narrow interpretation of the term “threat to health” and are unwilling to recommend termination.
c. The complaint under Article 8 in conjunction with Article 14 of the Convention
i. The Government
The Government first argue that a violation of substantive rights and freedoms protected by the Convention would have first to be established before a complaint of a violation of Article 14 read together with a substantive provision of the Convention could be examined.
The Government are of the view that the investigations of the applicant's complaint that a criminal offence was committed in connection with the refusal to perform an abortion were conducted with diligence. The prosecutor questioned all witnesses who could submit evidence relevant to the case. The prosecutor did not interview Dr R.D. because he did not consider it necessary in view of the fact that three experts had stated in their opinion that there was no causal link between the refusal to terminate the pregnancy and the subsequent deterioration of the applicant's eyesight.
The Government argue that the decision to discontinue the investigations was justified since it was based on that expert opinion. The Government further submit that on 6 June 2001 the applicant was informed by the prosecutor of her rights and obligations as a party to criminal proceedings. Thus, she knew that if she had any problem examining the case file because of her bad eyesight, she could at any stage of the proceedings apply for a legal-aid lawyer to be assigned to the case.
ii. The applicant
The applicant points out that the Court has repeatedly held that the accessory nature of Article 14 of the Convention means that a complaint about discrimination has to fall within the scope of a Convention right.
The applicant further argues that she was not given a meaningful opportunity to participate in the investigations, despite the fact that the prosecuting authorities were fully aware of the problems with her eyesight. It was her near-blindness which formed the very basis of her complaint that a criminal offence had been committed. In such a situation, she argues, the failure to provide her with effective access to the documents of the criminal investigation or another form of assistance prevented her from participating effectively in the proceedings.
The applicant concludes that the failure of the authorities to reasonably accommodate her disability during the investigations amounted to discrimination on the ground of disability.
2. The third parties' submissions
a. The Center for Reproductive Rights, New York
The Center for Reproductive Rights submits, in its comments to the Court of 23 September 2005, that the central issue in the present case is whether a State Party which has by law afforded women a right to choose abortion in cases where pregnancy threatens their physical health but fails to take effective legal and policy steps to ensure that eligible women who make that choice can exercise their right, violates its obligations under Article 8 of the Convention. It is of the opinion that States undertaking to allow abortion in prescribed circumstances have a corresponding obligation to ensure that the textual guarantee of abortion in their national laws is an effective right in practice. To that end, States should – as many member States have – take effective steps to ensure women's effective access to services. These steps include the institution of procedures for appeal or review of medical decisions denying a woman's request for abortion.
Poland's lack of effective legal and administrative mechanisms providing for an appeal or review of medical professionals' decisions in cases where they determine that the conditions for termination of the pregnancy are not met is inconsistent with the practice of many other member States. The establishment of an appeals or review process in countries across Europe, such as Bulgaria, Croatia, the Czech Republic, Denmark, Finland, Norway, Slovakia, Slovenia or Sweden, reflect a common understanding of the need to protect women's right to legal abortion in situations where a health-care provider denies such a request, including in cases where a woman's health was at risk.
Most laws and regulations on abortion appeals processes have strict time-limits within which such appeals and reviews have to be decided, recognising the inherent time-sensitive nature of abortion procedures and the inability of regular administrative review or other legal processes to respond in a timely manner. In Poland, the lack of a timely appeals process undermines women's right to have access to reproductive health care, with potentially grave consequences for their life and health. It also denies women the right to an effective remedy.
b. The Polish Federation for Women and Family Planning, Warsaw and the Polish Helsinki Foundation for Human Rights
The Polish Federation for Women and Family Planning and the Helsinki Foundation for Human Rights submit, in their pleadings of 6 October 2005, that the case essentially concerns the issue of inadequate access to therapeutic abortion permissible when one of the conditions enumerated in section 4 of the 1993 Act is met. They emphasise that it often happens in practice that physicians refuse to issue a certificate required for therapeutic abortion, even when there are genuine grounds for issuing one. It is also often the case that when a woman obtains a certificate, the physicians to whom she goes for the service questions its validity and the competence of the physicians who issued it and eventually refuse the service.
There are no guidelines as to what constitutes a threat to a woman's health or life. It appears that some physicians do not take account of any threat to a woman's health as long as she is likely to survive the delivery of a child.
The fact that abortion is essentially a criminal offence, in the absence of transparent and clearly defined procedures by which it has to be established that a therapeutic abortion may be performed, is one of the factors deterring physicians from having recourse to this medical procedure.
As long as the pregnancy comes within the scope of the term “private life" within the meaning of the Convention and the termination of the pregnancy on therapeutic grounds is part of women's right to health, the right to legal abortion on therapeutic grounds guaranteed by the 1993 Act should not be illusory or theoretical, but practical and effective (see Airey v. Ireland, cited above, § 24). To sum up, the current practice as regards the application of the guarantees provided for by section 4(a) of the 1993 Act runs counter to the requirements of Article 8 of the Convention.
c. The Forum of Polish Women, Gdańsk
The Forum of Polish Women argues, in its submissions of 3 November 2005, that the rights guaranteed by Article 8 of the Convention impose on the State an obligation to refrain from arbitrary interference, but not an obligation to act. This provision of the Convention aims essentially to protect an individual against arbitrary activities of public authorities (Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, § 31). For that reason alone, it is not possible to derive from this provision an obligation to have medical interventions performed, in particular when the medical intervention consists of abortion.
It further asserts that in the context of abortion it cannot be said that pregnancy belongs exclusively to the sphere of private life. Even assuming that the legal issues involved in pregnancy could be assessed under Article 8 of the Convention, the States can enact legal restrictions in the private sphere if such restrictions serve the aim of protecting morals or rights and freedoms of others.
In particular, the Court did not rule out the possibility that in certain circumstances safeguards could be extended to the unborn child (see Vo v. France cited above, § 85). The Polish legal system ensures constitutional protection of the life of the foetus, based on the concept that a human life has to be legally protected at all stages of development. The 1993 Act accepts exceptions to this principle of legal protection of human life from the moment of conception.
It argues that under the 1997 Ordinance the determination of conditions in which abortion on medical grounds could be performed was left to medical professionals. Circumstances indicating that pregnancy constitutes a threat to a woman's life or health have to be attested by a consultant specialising in the field of medicine relevant to the woman's condition in question. However, a gynaecologist can refuse to perform an abortion on grounds of conscience. Therefore, a patient cannot bring a doctor to justice for refusing to perform an abortion and hold him or her responsible for deterioration in health after the delivery.
d. The Association of Catholic Families, Cracow
The Association of Catholic Families argues, in its observations of 20 December 2005, that the applicant erred in law in her contention that the Convention guarantees a right to abortion. In fact, the Convention does not guarantee such a right. On the contrary, Article 2 guarantees the right to life, which was an inalienable attribute of human beings and formed the supreme value in the hierarchy of human rights. Further, the Court in its case-law opposes the right to life to any hypothetical right to terminate life (Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III).
3. The Court's assessment
The Court considers that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Decides to join the examination of exhaustion of domestic remedies to the merits of the case;
Declares the application admissible, without prejudging the merits of the case.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
2 Three separate opinions were appended to that judgment, which, importantly, did not examine any other grounds for legal abortion, including therapeutic abortion which is concerned in the present case.
TYSIĄC v. POLAND DECISION
TYSIĄC v. POLAND DECISION