RR v Poland: Judgment

On May 26, 2011, the European Court of Human Rights (the Court) handed down its landmark decision RR v. Poland.[1] The Court found Poland in violation of Article 3, the right to be free from inhuman and degrading treatment, and Article 8, the right to respect for private life, of the European Convention on Human Rights (ECHR).[2] This decision represents many “firsts” for the Court. It is the first decision of the Court to find an Article 3 violation in an abortion-related case. It is the first time that any international human rights body has directly addressed the right to access prenatal examinations in connection with abortion. In addition, this is the first time the Court has recognized that states have an obligation under the Convention to regulate the exercise of conscientious objection in order to guarantee patients access to lawful reproductive health care services.

VIOLATION OF THE RIGHT TO BE FREE FROM INHUMAN AND DEGRADING TREATMENT (ARTICLE 3)

In its discussion of Article 3, the Court focused on the humiliation and suffering RR endured during her pregnancy when she was repeatedly denied a genetic prenatal examination. In prior cases the Court has found that abortion-related violations infringe on the right to respect for private life.[3] This is the first time, however, that it has determined that the denial of services critical for making an informed decision as to whether to seek an abortion or not can also violate the right to be free from inhuman and degrading treatment under Article 3.

Under the Court’s long-standing case law, in order to find a violation under Article 3 the suffering must reach a minimum level of severity. The assessment of this minimum level is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects, and the sex, age and state of health of the victim.[4] In this case, the Court concluded that the threshold of severity was met. The Court referred to several aspects of RR’s suffering, including:

  • Denial of available services : The Court recognized that RR suffered both before she received the diagnostic services and after the results of the tests became known. Her suffering, the Court noted, could be said to have been aggravated “by the fact that the diagnostic services which she had requested early on were at all times available and that she was entitled as a matter of domestic law to avail herself of them.”[5] On no occasion was RR told that it was impossible to carry out the tests for any kind of technical or material reasons.[6] Doctors thus denied her timely information and health services that should have been considered a normal part of basic health services and that were clearly available, lawful and appropriate in the circumstances of her case. This denial of information and services was a source of great suffering for RR.
  • Vulnerability : The Court took into account the vulnerable position of RR and that of pregnant women in general, noting that “[l]ike any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation.”[7] RR had to endure weeks of painful uncertainty concerning the health of the fetus and her own and her family’s future because health professionals failed to properly acknowledge and address her concerns. Doctors repeatedly refused RR information and diagnostic tests until legal abortion was no longer an option, which left her in a situation of great vulnerability.[8]
  • Humiliation : The Court explicitly stated that it agreed with the Polish Supreme Court’s view “that the applicant had been humiliated”[9] and went on to condemn the conduct of the health professionals involved, noting that RR was “shabbily treated by the doctors dealing with her case.”[10] The Court specifically stated that her access to genetic testing “was marred by procrastination, confusion and lack of proper counselling and information,” and that ultimately she received this service by “means of subterfuge.”[11]

VIOLATION OF THE RIGHT TO RESPECT FOR PRIVATE LIFE (ARTICLE 8)

The Court also found that the State failed to comply with its positive obligations under Article 8 to secure effective respect for RR’s private life.[12] It reiterated its finding in Tysiąc v. Poland [13] that the state has a positive obligation to adopt a clear legal and procedural framework effectively implementing lawful access to abortion, in order to ensure that the right to lawful abortion is operational.[14] The Court reiterated that once the State decides to permit abortion, “it must not structure its legal framework in a way which would limit real possibilities to obtain it.”[15]

In this case, the breach of this positive obligation included the failure to:

  • Ensure timely access to services : The Court made clear that timely access to diagnostic services was particularly relevant for a decision concerning the continuation of RR’s pregnancy, since Polish law allows for termination of pregnancy up until fetal viability when there is a high risk for fetal impairment. Specifically, the Court acknowledged that “the nature of the issues involved in a woman’s decision to terminate a pregnancy is such that the time factor is of critical importance.”[16] In this case, the Court noted that six weeks had elapsed from the date when the first concerns arose regarding the fetus’ health until their confirmation by way of genetic tests, at which point abortion was no longer a lawful option. Thus, the State violated its obligation to ensure that procedures were in place to enable RR to make a decision in “good time” regarding her pregnancy and, consequently, to be able to access a legal abortion if she decided so.[17]

  • Reform criminal liability for doctors performing abortions : The Court reiterated that the combination of legal restrictions on abortion in Poland and the risk of a doctor incurring criminal liability produce a “chilling effect” on doctors when they are deciding whether the requirements of legal abortion are met in a particular case. Thus, Poland must ensure that “provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this chilling effect.”[18]
  • Ensure effective access to relevant and full information on the fetus’ health : The Court noted that the right of a pregnant woman to obtain available information about her health falls within the notion of private life protected under Article 8. This right applies both in general during pregnancy and in the context of abortion. [19] At the same time, the Court reiterated that “during pregnancy the foetus’ condition and health constitute an element of the pregnant woman’s health.”[20] The Court went on to state that, “in the context of pregnancy, the effective access to relevant information on the mother’s and foetus’ health, where legislation allows for abortion in certain situations, is directly relevant for the exercise of personal autonomy.”[21] Thus, where domestic law allows for abortion for fetal malformation, the State has a positive obligation to set in place “an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women.”[22] By repeatedly denying RR a genetic prenatal examination, the State failed to ensure that she had access to full and reliable information about the fetus’ health, that was “a necessary prerequisite” [23] for the possibility of having a legal abortion. Consequently, the State failed to ensure that she could exercise her personal autonomy, which is protected under the right to respect for private life.
  • Adequately regulate conscientious objection : For the first time, the Court addressed States’ obligation to adequately regulate the practice of conscientious objection in the reproductive health sphere. Under the ECHR, States are obliged to “organise the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”[24] Thus, the possibility for individual doctors to refuse services on grounds of conscience did not absolve the Polish State from its positive obligation to provide RR with the services to which she was legally entitled.

REMEDIES

Individual measures: The Court awarded €45,000 in non-pecuniary damages to RR. She was awarded an additional €15,000 for legal fees.

General measures: The Court held that, in order to comply with its obligations under the Convention, Poland must ensure that pregnant women have access to diagnostic services relevant for establishing the conditions for a lawful abortion, as guaranteed in relevant Polish legislation. Specifically, Poland must:

(1) provide pregnant women the practical means to establish their right of access to a lawful abortion by putting in place effective and accessible procedures to implement the Polish 1993 Family Planning Act;

(2) ensure an adequate legal and procedural framework to guarantee pregnant women access to diagnostic services and relevant, full, and reliable information on their pregnancy;

(3) organize its health system in a way so that conscientious objection of health professionals does not impede access to legal health services; and

(4) formulate provisions regulating the availability of lawful abortion in a way as to alleviate the chilling effect on doctors that current legal restrictions may have.[25]

IMPACT

The decision in RR v. Poland is a critical victory for ensuring access to safe and timely lawful abortion. With this case, and by referring to the considerable European consensus towards allowing abortion,[26] the Court reinforces its stance that states have real and tangible obligations to ensure that lawful abortion is also accessible in practice. In particular, the Court sends a strong message to all Council of Europe member states that timely access to full and reliable information and prenatal diagnostic services is critical to ensuring a woman’s rights guaranteed under the Convention and central to her ability to obtain a lawful abortion. The decision also states that abuse and humiliation of women within the reproductive health sector can amount to inhuman and degrading treatment, in violation of the ECHR. The case further highlights the need to adequately regulate the exercise of conscientious objection in the reproductive health field to avoid its abuse—an issue which is of highest relevance in Poland and globally.

Footnotes: 


[1] RR v. Poland, No. 27617/04 Eur. Ct. H.R. (2011). The judgment became final on November 28, 2011.

[2] The petition also claimed a violation of Article 13 (right to effective remedy) and Article 14 (right to be free from discrimination) of the ECHR. With respect to Article 13 the Court concluded that the issue overlapped with Article 8 claim and therefore held that no separate issue arose under Article 13. With respect to Article 14 claim the Court did not raise the issue at any point.

[3] Tysiąc v. Poland, No. 5410/03 Eur. Ct. H.R. (2007); A, B and C v. Ireland , App. No. 25579/05 Eur. Ct. H.R. (2010).

[4] See , inter alia, Price v. United Kingdom, App. No. 33394/96 Eur. Ct. H.R. para. 24 (2001); Jalloh v. Germany, App. No. 54810/00, Eur. Ct. H.R. para. 67 (2006).

[5] RR v. Poland, supra note 1, para. 160. The Court’s finding that the willful denial of medical care aggravated the inhuman and degrading treatment the applicant suffered reinforces the standard developed in K.L. v. Peru, where such a denial is described at para. 6.3 as having the effect of “add(ing) further pain and distress.” K.L. v. Peru, Human Rights Committee, Communication No. 1153/2003, para. 6.3, U.N. Doc. CCPR/C/85/D/1153/2003 (2005).

[6] RR v. Poland, supra note 1, para. 155.

[7] Id. para. 159.

[8] Id .

[9] Id. paras. 102, 160.

[10] Id. paras. 54, 160.

[11] Id. para. 153.

[12] The Court has interpreted Article 8 as including a negative as well as a positive obligation. Under the negative obligation the state is required to refrain from an arbitrary interference into the person’s private life, whereas the positive obligation requires the state to adopt measures that ensure effective respect for the person’s private life.

[13] Tysiąc v. Poland, supra note 3.

[14] RR v. Poland, supra note 1, para. 200.

[15] Id .

[16] Id. para. 203.

[17] Id. paras. 203-204.

[18] Id. para. 193.

[19] Id. para. 197.

[20] Id .

[21] Id .

[22] Id. para. 200.

[23] Id. para. 199.

[24] Id. para. 206.

[25] Id. paras. 193, 200, 206, 210, 213.

[26] Id. para. 186.