15 Dec 2023

European Court of Human Rights issues landmark judgment on access to abortion and rule of law in Poland

In a landmark judgment in the case of M.L. v. Poland concerning restrictions on access to legal abortion in Poland, the European Court of Human Rights confirmed a violation of the right to private and family life (Article 8 of the European Convention on Human Rights). In its related third-party intervention, ENNHRI provided the Court with an objective overview of both the applicable international and regional standards and national practice regarding access to abortion and respect for private life, as well as on the rule of law.

What the case is about?

The case of M.L. v. Poland concerned a decision of the Polish Constitutional Court from October 2020 that resulted in the near-total ban on abortion in Poland. The case was brought by a Polish woman who was qualified for an abortion on the basis of foetal abnormalities. However, due to the Polish Constitutional Court’s judgment entering into force, the applicant was forced to maintain pregnancy and could no longer have an abortion based on foetal abnormalities in Poland. Ultimately, she travelled abroad to undergo the procedure in a private clinic.

The applicant alleged that Poland had therefore violated her right to private and family life (Article 8 of the Convention) and prohibition of torture and inhuman or degrading treatment (Article 3 of the Convention). This was because the situation caused her suffering, humiliation and other, difficult to predict, consequences to her mental and physical health. Furthermore, the applicant alleged violation of the right to a fair trial (Article 6 of the Convention) as the restriction was not “prescribed by law” due to lack of impartiality and incorrect composition of the Constitutional Court.

What did the Court rule?

On 14 December 2023, the European Court of Human Rights (the Court) ruled that the Polish Constitutional Court’s decision unlawfully interfered with the applicant’s right to private and family life. In the first place, the Court found this based on irregularities in the election procedure of judges of the Polish Constitutional Court’s bench, which compromised its legitimacy and rule of law compatibility. Furthermore, the Court found that the circumstances of the case caused a lack of foreseeability and a deprivation of proper safeguards against arbitrariness required under Article 8 of the Convention. This came after the applicant was declined the access to legal abortion that she was entitled to under medical procedure and which had already been put in motion.

Despite admitting that travelling abroad for an abortion was psychologically arduous, the Court held that the facts alleged did not disclose a level of severity that would constitute violation of Article 3 of the Convention (a prohibition of torture and inhuman or degrading treatment).

Relevance of ENNHRI’s third-party intervention for the case

In March 2022, ENNHRI submitted a third-party intervention to the Court, intervening as a neutral party in the case. The submission was a result of cooperation between National Human Rights Institutions (NHRIs) from ENNHRI’s Legal Working Group.

The Court’s judgment aligns with ENNHRI’s submission regarding the requirement that a court must be “established by law” under Article 6 of the Convention. ENNHRI’s submission also underlined – with regards to Article 8 of the Convention – that “while member States were allowed a wide margin of appreciation with regard to abortion law, that margin was not unlimited and did not allow for the introduction of arbitrary and disproportionate measures.”

Notably, information submitted by ENNHRI on the basis of survey results provided by 26 of its members was reiterated in the judgement. This “indicated that the majority of European countries guaranteed relatively broad access to abortion.”

In its judgment, the Court also refers to the international standards established by UN bodies (such as the UN Human Rights Committee) on human rights in respect to access to abortion. A comprehensive analysis of relevant UN standards on human rights applicable to the case were included in ENNHRI’s third-party intervention.

ENNHRI welcomes this judgment which is an important landmark for safeguarding access to abortion and the rule of law, both in Poland and across the wider Council of Europe.