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Excessive legal formalism stifles fundamental rights

Commentary on the decision of the European Court of Human Rights, A.M. v. Poland – 8 June 2023

The European Court of Human Rights (ECtHR) rejects the application by eight Polish women against the ultra-restrictive abortion law, but does not rule on the merits.

  1. Abortion in international law

In this decision, adopted unanimously, the 1st section of the ECtHR rejected the applications of eight Polish women challenging the new version of the law on abortion. Since October 2020, abortion is no longer been permitted in cases where the foetus is suffering from serious and irreversible damage or an incurable and fatal disease, following a highly disputed ruling by the Constitutional Court.

Some of the applicants were pregnant, while others were not. They all claimed that the deletion of the clause violated their rights, in particular the prohibition of torture and inhuman or degrading treatment or punishment, and their right to privacy.

Many third-party interventions presented their views. Anti-choice activists were represented by several organisations. The pro-choice speakers were far more numerous.

 A group of NGOs stated that “women of reproductive age belonged to a class of people who were at risk of being directly and seriously prejudiced by legal prohibitions on abortion, whether or not they were currently pregnant or seeking an abortion. Abortion care was an essential element of healthcare which only women of reproductive age might require.”

The UN experts stated that “clear international consensus that States must provide for abortion on broad grounds, including in cases of severe foetal impairment, and must decriminalise abortion in all circumstances, as otherwise they breached not only the right to privacy but also the right to be free from inhuman and degrading treatment as well as the right to equality and non-discrimination”.

2. Excessive formalism on the part of the Court of Human Rights

However, the ECtHR declared the application inadmissible, refusing to recognise the applicants’ status as victims.

Adopting a rigid and formalistic interpretation of this condition, the Court held that the applicants “the applicants failed to advance any convincing evidence that they were at real risk of being directly affected by the amendments introduced by the Constitutional Court’s judgment”, and that these restrictions “could only have hypothetical consequences for the applicants’ personal situations, and such consequences seem too remote and abstract for the applicants to arguably claim to be “victims” within the meaning of Article 34 of the Convention”.

In so doing, the Court ruled in the abstract, without taking into account the reality of abortion law in Poland or the manner in which the restrictions were adopted.

The exception of malformation or incurable disease of the foetus was abolished by a ruling of the Constitutional Court, which has been seriously dysfunctional since the government and the majority took control of it and ended its independence. The ECtHR itself ruled that the Polish Constitutional Court could no longer be considered a “court established by law” within the meaning of Article 6 ECHR (right to a fair trial)[1] . The fact that such a serious reduction in the right to abortion was decided in an authoritarian manner, bypassing the legislature, should have influenced the judges’ assessment.

Above all, by refusing to recognise the applicants as victims, the ECtHR opted for a conservative interpretation of its own case law. In addition to direct victims, “an individual may nevertheless argue that a law breaches his or her rights in the absence of a specific instance of enforcement, and thus claim to be a “victim”, within the meaning of Article 34, if he or she is required either to modify his or her conduct or risk being prosecuted, or if he or she is a member of a category of persons who risk being directly affected by the legislation”.[2]

In a 1992 judgment against Ireland, two Irish women of child-bearing age were recognised as victims when they challenged a ban on radio broadcasts providing information on the possibilities of obtaining an abortion in Great Britain. The Court ruled that “it is not disputed that they belong to a class of women of child-bearing age which may be adversely affected by the restrictions imposed by the injunction. They are not seeking to challenge in abstracto the compatibility of Irish law with the Convention since they run a risk of being directly prejudiced by the measure complained of. They can thus claim to be victims” within the meaning of the Convention.[3]

In this case, the eight applicants claimed to be “potential victims”, like “all women of child-bearing age”, all of whom are subject to universally applicable national regulations concerning the availability of abortion. Consequently, “they had to adjust their conduct to the conditions created by law and to take them into account when making choices in reproductive matters. The need to adjust one’s conduct in the most intimate sphere of personal life clearly made women potential victims in situations where the law had set strict conditions on access to lawful abortion or when it was de facto impossible in practice to convince the medical world that these conditions had been met”.

               In fact, the ECtHR ignored the reality of the situation in Poland. In response to several applicants’ argument that they feared pregnancy because of the lack of access to care if their health or life were in danger, the Court replied that medical abortion was always legal in such cases. However, current events show that although it is legal, it is in fact very difficult to access. Several women have died in public hospitals since October 2022 as a result of easily avoidable complications. For fear of legal action, doctors wait as long as possible before performing an abortion to save the life of the pregnant woman. There is in fact a virtually complete ban on abortion in Poland. The Court has missed an opportunity to live up to its role as guardian of fundamental rights in Europe.

note by François Finck, Centre d’Action Laïque

[1] Xero Flor w Polsce sp. z o.o. v. Poland, 7 May 2021

[2] A. M. para. 72

[3] Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, §44