issued by the Registrar of the Court

ECHR 398 (2012)

30.10.2012

Teenage girl who was raped should have been given

unhindered access to abortion

In today’s Chamber judgment in the case of P. and S. v. Poland (application

no. 57375/08), which is not final¹, the European Court of Human Rights held that there

had been:

Two violations of Article 8 (right to respect for private and family life) of the

European Convention on Human Rights, as regards the determination of access to lawful

abortion in respect of both applicants (by six votes to one) and as regards the disclosure

of the applicants’ personal data (unanimously).

It further held, unanimously, that there had been:

A violation of Article 5 § 1 (right to liberty and security) in respect of P., and

a violation of Article 3 (prohibition of inhuman or degrading treatment) in

respect of P.

The case concerned the difficulties encountered by a teenage girl, who had become

pregnant as a result of rape, in obtaining access to an abortion, in particular due to the

lack of a clear legal framework, procrastination of medical staff and also as a result of

harassment.

The Court held in particular that: the applicants had been given misleading and

contradictory information and had not received objective medical counselling; and, the

fact that access to abortion was a subject of heated debate in Poland did not absolve the

medical staff from their professional obligations regarding medical secrecy.

Principal facts

The applicants, P. and S., daughter and mother, are Polish nationals who were born in

1993 and 1974 respectively and live in Lublin (Poland). In 2008, at the age of fourteen,

P. became pregnant as a result of rape. In order to have an abortion, in accordance with

the 1993 Law on Family Planning, she obtained a certificate from the public prosecutor

on 20 May 2008 to the effect that her pregnancy had resulted from unlawful sexual

intercourse.

The applicants submit that they subsequently encountered considerable difficulties in

obtaining access to an abortion. They received contradictory information from two public

hospitals in Lublin as to whether they needed a referral from the regional consultant for

gynaecology and obstetrics in addition to the certificate from the prosecutor, as to who

could perform the abortion, who could make a decision, whether there was any waiting

time prescribed by law, and what other conditions, if any, had to be complied with. The

head of the gynaecological ward of one of the hospitals took P. to see a Catholic priest,

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

without asking whether she wished to see him. During the conversation, it became clear

that the priest had already been informed about the pregnancy and its circumstances.

He tried to convince P. to carry the pregnancy to term and asked her to give him her

mobile phone number, which she did. S. was requested by the head gynaecologist to

sign a consent form to the abortion which warned that the abortion could lead to her

daughter’s death. Ultimately, after an argument with S., the head gynaecologist refused

to allow the abortion to be performed in her ward, relying on her religious views.

The Lublin hospital issued a press release to the effect that it would not perform an

abortion in P.’s case. Journalists who contacted the hospital were informed of the

circumstances of the case. A number of articles were published by various local and

national newspapers and the case was the subject of discussions on the internet.

The applicants subsequently travelled to Warsaw, where P. was admitted to a hospital on

3 June 2008. She was informed there that she could have an abortion on the basis of the

certificate issued by the prosecutor and a medical certificate issued by the national

consultant in gynaecology, but that she would have to wait three days before it could be

performed. In the meantime, a doctor told her that the hospital was facing pressure by

various people not to perform the abortion and that it had received numerous e-mails

criticising the applicants for their decision. P. also received text messages from the priest

and from people unknown to her trying to convince her to change her mind about the

abortion.

Feeling manipulated and helpless, the applicants left the hospital on 5 June 2008. They

were harassed by anti-abortion activists and were eventually taken to a police station,

where they were questioned for several hours. On the same day, the police was

informed of a decision by the Lublin Family Court. That court had ordered P.’s placement

in a juvenile shelter as an interim measure in proceedings to divest S. of her parental

rights, stating in particular that P. was under pressure from her mother to have an

abortion, which she did not wish to have herself. Subsequently, the police drove P. to

Lublin, where she was placed in a juvenile shelter the same night. Suffering from pain,

she was taken to hospital the following day, where she stayed for a week.

Having complained to the Ministry of Health, S. was eventually informed that P. could

undergo an abortion in Gdańsk, approximately 500 kilometres from their home in Lublin.

According to the applicants, they were driven there in a clandestine manner and the

abortion was carried out on 17 June 2008.

The proceedings before the Family Court were discontinued in February 2009, P. having

testified that she had not been forced by her mother to have an abortion and the court

holding that there were no grounds for divesting her parents of their parental rights.

Criminal proceedings against P. on suspicion of sexual intercourse with a minor,

instituted in July 2008, were discontinued in November 2008. A criminal investigation

against the alleged perpetrator of the rape was equally discontinued.

Complaints, procedure and composition of the Court

The applicants complained that their rights under Article 8 (right to respect for private

and family life and the home) had been violated both by the absence of a comprehensive

legal framework guaranteeing P.’s timely and unhindered access to abortion under the

conditions set out by the applicable laws, and as a result of the disclosure of information

about the case to the public. Relying on Article 5 § 1 (right to liberty and security), they

complained that P.’s removal from the custody of her mother and placement in a juvenile

shelter and later in a hospital was unlawful. They further submitted that the

circumstances of the case had given rise to a violation of Article 3 (prohibition of

inhuman or degrading treatment).

The application was lodged with the European Court of Human Rights on 18 November

2008. The following organisations were granted leave to make written submissions as

third parties: The Polish Helsinki Foundation for Human Rights; the Rule of Law Institute,

Lublin, Poland; the Coram Children’s Legal Centre, London; European Centre for Law and

Justice, Strasbourg; Amnesty International.

Judgment was given by a Chamber of seven judges, composed as follows:

David Thór Björgvinsson (Iceland), President,

Lech Garlicki (Poland),

Päivi Hirvelä (Finland),

George Nicolaou (Cyprus),

Zdravka Kalaydjieva (Bulgaria),

Nebojša Vučinić (Montenegro),

Vincent A. de Gaetano (Malta),

and also Lawrence Early, Section Registrar.

Decision of the Court

Article 8

As regards the complaint concerning the lack of unhindered access to abortion, the Court

observed that the Polish Government had referred to the right of physicians under Article

9 of the Convention (freedom of thought, conscience and religion) to refuse certain

services on grounds of conscience. However, States were obliged to organise their health

system in a way that the exercise of that right did not prevent patients from obtaining

access to services to which they were entitled by law.

Polish law in principle provided for mechanisms to reconcile doctors’ right to

conscientious objection with patients’ interests, in particular by obliging the doctor to

refer the patient to another physician carrying out the same service. However, it had not

been shown that those requirements had been complied with in P.’s case. The medical

staff had not considered themselves obliged to carry out the abortion expressly

requested by the applicants. The applicants had been given misleading and contradictory

information and had not received objective medical counselling. No set procedure had

been available to them under which they could have had their views heard.

Furthermore, it had not been shown that the legal setting in Poland allowed for S.’s

concerns to be properly addressed in a way that would respect her views and attitudes

and to balance them in a fair and respectful manner against the interests of her

pregnant daughter. While legal guardianship could not be considered to automatically

confer on the parents of a minor the right to take decisions concerning the minor’s

reproductive choices, it could not be overlooked that the interests and life prospects of

the mother of a pregnant minor girl were also involved in the decision whether to carry

the pregnancy to term or not.

The Court had already held in another case²that the provisions of civil law as applied by

the Polish courts did not make available a procedural instrument by which a pregnant

woman seeking an abortion could fully vindicate her right to respect for her private life.

There were no grounds on which to reach a different conclusion in P.’s case.

The Court was of the view that effective access to reliable information on the conditions

for the availability of lawful abortion, and the relevant procedures to be followed, was

directly relevant for the exercise of personal autonomy. The time factor was of critical

Tysiąc v. Poland (5410/03), Chamber judgment of 20 March 2007

importance in a woman’s decision to terminate a pregnancy or not. The uncertainty

faced by P. despite circumstances under which she had a right to lawful abortion under

the 1993 Family Planning Act, resulted in a striking discrepancy between the theoretical

right and the reality of its implementation. In view of those circumstances, the Court

concluded that there had been a violation of Article 8.

As regards the complaint concerning the disclosure of the applicants’ personal data, the

Court noted that it was undisputed that the Lublin hospital had issued a press release

concerning P.’s case and that the journalists who had contacted the hospital had been

given information about its circumstances. The Government had argued that the press

release had not contained the applicants’ names or other details making it possible to

establish their identity. However, the information made available to the public had to

have been detailed enough to make it possible for third parties to establish the

applicants’ whereabouts and to contact them, given that following publication of the

press release, P. had been contacted by various people urging her to abandon the

abortion. The fact that P. had disclosed her situation to a friend via text messages could

moreover not be equated with the intention to disclose that information to the public.

There had accordingly been an interference with her right to respect to private life under

Article 8.

The Court did not find that that interference had pursued a legitimate aim. The fact that

the issue of the availability of legal abortion in Poland was a subject of heated debate did

not absolve the medical staff from their professional obligations regarding medical

secrecy. It had not been argued or shown that there had been any exceptional

circumstances to justify public interest in P.’s health. Moreover, no legal provision had

been cited on the basis of which information about individual patients’ health issues

could be disclosed to the general public by way of a press release. There had accordingly

been a violation of Article 8 in that regard as well.

Article 5 § 1

The Court further found a violation of Article 5 § 1. It held in particular that the essential

purpose of P.’s placement in the juvenile shelter had been to separate her from her

parents and to prevent the abortion. In that light, her placement could not be justified as

detention of a minor for the purpose of educational supervision within the meaning of

Article 5 § 1 (d). Had the authorities been concerned that an abortion would be carried

out against P.’s will, less drastic measures than locking up a fourteen-year-old girl

should have - but had not - been considered by the courts.

Article 3

P. had only been fourteen years old at the relevant time and according to the medical

certificate issued after the rape, she had had bruises on her body, indicating that

physical force had been used to overcome her resistance. The Court concluded that she

had been in a situation of great vulnerability when admitted to the hospital. However,

pressure had been exerted on her by the chief doctor who had tried to impose her own

views on her and P. had been obliged to talk to a priest without being asked whether she

in fact wished to see one. Considerable pressure had been put on her and on her

mother. In particular, the latter had been requested to sign a consent form warning that

the abortion could lead to her daughter’s death, without any cogent reasons having been

advanced to show that an abortion in her case could entail such danger.

Furthermore, when P. had been harassed, instead of being protected by the police, she

had instead been placed in a juvenile shelter in execution of the family court’s judgment.

The Court was particularly struck by the fact that the authorities had instituted criminal

proceedings on charges of unlawful intercourse against her who, according to the

prosecutor’s certificate and the forensic findings, should have been considered to be a

victim of sexual abuse. That approach fell short of the State’s obligations to establish

and apply effectively a criminal-law system punishing all forms of sexual abuse.

Having regard to the cumulative effects of those circumstances, combined with the

procrastination and lack of objective counselling, and P.’s separation from her mother,

the Court concluded that she had been subjected to treatment in violation of Article 3.

Just satisfaction (Article 41)

The court held that Poland was to pay P. 30,000 euros (EUR) and S. EUR 15,000 in

respect of non-pecuniary damage and EUR 16,000 to both applicants in respect of costs

and expenses.

Separate opinion

Judge De Gaetano expressed a partly dissenting opinion, which is annexed to the

judgment.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of

Europe Member States in 1959 to deal with alleged violations of the 1950 European

Convention on Human Rights.