P. is a Polish girl who was raped by a minor boy at the age of 14. As an effect of the crime she got pregnant. In order to have access to legal abortion allowed by the very strict Polish law, P. and her mother went to the district attorney to obtain "a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age" which enables her to have an abortion. They afterwards encountered considerable difficulties in relation with access to the operation. This included contradictory information received from staff members of 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.
Furthernore, S. was requested by the head gynaecologist of a hospital in Lublin tosign a consent form to the abortion which warned that the abortion could lead to her daughter’s death. On a later occasion this doctor took P. to see a Catholic priest,without the knowledge of her mother or even asking whether she wished to see him. During this meeting, it became clear that the priest had already been informed about the circumstances of the case. He also tried to convince the applicant to carry the pregnancy to term and asked her to give him her mobile phone number for keeping in touch with her. P. gave him the number. When this meeting became clear to the mother, she had an argument with the doctor, theen the head gynaecologist expressly refused to allow the abortion to be performed in her ward, relying on her religious views. Hence the applicants travelled to Warsaw.The hospital after their departure "issued a press release to the effect that it would not perform an abortion in P.’s case". Journalists were informed of the circumstances of the case and a number of articles were published by various local and national newspapers and the case was the subject of discussions on the internet.
S. was admitted to a hospital in
Warsaw on 3 June 2008. She was told 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 the intervention could be performed". During her
stay in the hospital, a doctor told her that the hospital was facing external
pressure: various people wrote e-mails to pursue the hospital not to perform
the abortion and criticised the applicants for their intention. P. also
received harrassing text messages from the priest and from unknown people
trying to convince her to change her mind. After these events P. and her mother decided to leave the hospital.
However, at the entrance of the institution, they were harassed by anti-abortion activists and were eventually taken to a police station, where they were questioned for several hours.
At the police station they were informed about the decision of the Lublin Family Court before which a procesure was issued after the applicants left the city to divest S. of her parental rights because it was suspected that P. was under pressure from her to have an abortion, which she did not wish to have herself. The court therefore ordered P.’s placement in a juvenile shelter as an interim measure. The police thereafter took the girl to Lublin and placed there in a shelter the following day. P. subsequently was taken to hospital since she felt pain and suffered bleeding. She stayed there for a week after which she was allowed to go home with her mother.
After these event S. went to the Ministry of Health. She was eventually informed that P. could undergo an abortion in Gdańsk, approximately 500 kilometres from their home in Lublin. The applicants were driven there "in a clandestine manner" and the abortion was carried out on P. successfully.
Various - civil and criminal - proceedings were issued in relation of the case. One of them was against P. on suspicion of sexual intercourse with a minor (!). The sace case was subsequently discontinued.
In their application, P. and her mother alleges the violation of their rights under Article 8, and the violation of P.'s rights under Article 5(1) and 3 of the Convention.
Violation of Article 8 of the ECHR in relation with the access to lawful abortion)
The Court firstly examined the circumstances of the case in relation with the procedural guarantees derived from Article 8 of the Convention. In this respext it reiterated that it had previously found States to be under a positive obligation to
secure to their citizens the right to effective respect for their
physical and psychological integrity. These may involve the adoption of measures including the
provision of an effective and accessible means of protecting the right
to respect for private life. Referring to Tysiąc v. Poland and A, B and C v. Ireland, it recalled that the right to respect of private and family life "cannot be interpreted as conferring a
right to abortion", however the prohibition of abortion when sought for reasons of health and/or well‑being falls within the scope of Article 8. Furthermore,
once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations, it must not structure its legal framework in a way which would limit real possibilities to obtain an abortion. In particular, the State is under a positive obligation to create a procedural framework enabling a pregnant woman to effectively exercise her right of access to lawful abortion (...). The legal framework devised for the purposes of the determination of the conditions for lawful abortion should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention” (...).
In the context of access to abortion
the relevant procedure should allow to a pregnant woman at least the
possibility to be heard in person and to have her views considered. The
competent body or person should also issue written grounds for its
decision.
The ECtHR noted that it had held on previous occasions that Polish law "did not contain any effective procedural
mechanisms capable of determining whether these conditions were
fulfilled in an individual case, either in the context of a dispute
between a pregnant woman and doctors as to whether the conditions for
lawful abortion on grounds of a threat to the woman’s health were met". It found theresfter that the events surrounding the determination of the P.’s
access to legal abortion were marred by procrastination and confusion.
The applicants were given misleading and contradictory information. They
did not receive appropriate and objective medical counselling which
would have due regard to their own views and wishes. No set procedure
was available to them under which they could have their views heard and
properly taken into consideration with a modicum of procedural fairness. 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, is directly relevant for the exercise of
personal autonomy". The nature of the issues involved in a woman’s
decision to terminate a pregnancy or not is such that the time factor
is of critical importance: the procedures in place should therefore
ensure that such decisions are taken in good time. The uncertainty which
arose in the present case resulted in a
striking discordance between the theoretical right to such an abortion
on the grounds referred to in that provision and the reality of its
practical implementation.
Two important argumant shall be noted besides the previous. One is the right of the doctors to refuse a treatment on religious grounds. In this respect the ECtHR noted that Article 9 (1) does not denote each and every act or
form of behaviour motivated or inspired by a religion or a belief. Hence States are obliged to organise their
health service system in such a way as to ensure that the effective
exercise of freedom of conscience by health professionals in a
professional context does not prevent patients from obtaining access to
services to which they are entitled under the applicable legislation. Polish law has acknowledged this right of the doctors since they are not obliged to carry out services to
which they object. It also put in place a mechanism that includes elements allowing the
right to conscientious objection to be reconciled with the patient’s interests. However,
it was not proved during the procedure that these requirements contained by the law had been complied
with or that the applicable laws were duly respected.
The second one is the about the position of the mother in respect of the decision considering the abortion and therefore the victim status of S. In this connection the Court recognised that the mother's case was different from that of the girl's since unwanted pregnancy affects the mother differently than the minor girl. The ECtHR was of the view that
legal guardianship cannot be considered to automatically confer on the parents of a minor the right to take decisions concerning the minor’s reproductive choices, because proper regard must be had to the minor’s personal autonomy in this sphere. (...) However, it cannot be overlooked that the interests and life prospects of the mother of a pregnant minor girl are also involved in the decision whether to carry the pregnancy to term or not. Likewise, it can be reasonably expected that the emotional family bond makes it natural for the mother to feel deeply concerned by issues arising out of reproductive dilemmas and choices to be made by the daughter.
There must be a procedure for the
determination of access to abortion whereby both parties, the minor and the parents, can be
heard and their views fully and objectively considered. In the present case, however, it there were no proof indicating that "the legal setting in Poland allowed for the second applicant’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 in the determination of
such access".
Bearing in mind the previous argument, the Court concluded that the
authorities failed to comply with their positive obligation to secure to
the applicants effective respect for their private life. There has
therefore been a breach of Article 8 of the Convention.
Violation of Article 8 of the ECHR (protection of personal data)
In this connection, the Court reiterated the importance of protection of personal data, not least medical data:
Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. The disclosure of such data may dramatically affect an individual’s private and family life, as well as his or her social and employment situation, by exposing that person to opprobrium and the risk of ostracism (...). Respecting the confidentiality of health data is crucial not only for the protection of a patient’s privacy but also for the maintenance of that person’s confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from seeking appropriate treatment, thereby endangering their own health (...).
The Court firstly concluded that the information made
available to the public by the hspital via the press release must have been detailed enough to make it
possible for third parties to establish the applicants’ whereabouts and to contact them, either by mobile phone or personally. Therefore there was an interference with the applicants’ right to respect for their private life. Such interference gives rise to a breach of Article 8
unless it can be shown that it was “in accordance with the law”,
pursued one or more legitimate aim or aims as defined in paragraph 2,
and was “necessary in a democratic society” to attain them.
As to the legitimate aim, the Court recalled that States enjoys a certain margin of appreciation in
deciding what “respect” for private life requires in particular
circumstances. The fact, however, that the availability of legal abortion
is a subject of social debate in Poland "does not confer on the State a margin of
appreciation so wide as to absolve the medical staff from their
uncontested professional obligations regarding medical secrecy". There were neither any other exceptional circumstanceswhich could justify
public interest in P.’s health. It was the ECtHR's view that the disclosure of information about P.'s pregnancy and the circumstances of the case cannot be regarded as compatible either with the ECHR standards or with the obligations of the medical staff to respect patients’ rights laid down by Polish law. The interference therefore did not pursue a legitimate aim.
The above was in itself sufficient to ground a breach of Article 8 of the Convention, the Court however addressed the
lawfulness requirement as well. It noted that under Polish law both applicants were entitled to the protection of information
concerning their private and family life. Yet the Lublin hospital made information concerning their case available to the press. Hence the Court concluded that "the disclosure of information about the applicants’ case was neither lawful nor served a legitimate interest". There has therefore been a violation of Article 8 of the Convention.
Violation of Article 5(1) of the ECHR
In this repsect the ECtHR reiterated that the detention of a person
must be lawful both in domestic and Convention terms: the Convention lays down an obligation to comply with the substantive and procedural rules of national law and requires that any deprivation of liberty should be in keeping with the purpose of Article 5, which is to protect an individual from arbitrariness (...).
The Court observed that P. was placed in the juvenile shelter due to the provisions of the relevant Polish law, based on the decision of a court. Therefore the detention can be lawful in terms of domestic law. As
to the lawfulness under the ECHR, the Government referred to “educational supervision” within the meaning of Article 5 (1d) of the Convention in connection with the detention. In this relation the the
Court accepted that the
words “educational supervision” must not be equated rigidly with
notions of classroom teaching. Furthermore, it observed it legitimate to try to establish with certainty whether P. had had an opportunity to reach a free and well‑informed decision about having recourse to abortion. However, the essential purpose of the decision on the interim measure was to separate the girl from her parents, in particular from S. The ECtHR therefore was
of the view that by no stretch of the imagination can the detention be considered to have been ordered for educational supervision within the meaning of Article 5 § 1 (d) of the Convention if its essential purpose was to prevent a minor from having recourse to abortion. Furthermore, the Court [was] of the opinion that if the authorities were concerned that an abortion would be carried out against the first applicant’s will, less drastic measures than locking up a 14‑year old girl in a situation of considerable vulnerability should have at least been considered by the courts. It has not been shown that this was indeed the case.
Accordingly, the Court concluded that there had been a violation of Article 5(1) of the Convention.
Violation of Article 3
The ECtHR firstly reiterated its well‑established case-law according to which "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.
The assessment of this minimum level of severity is relative; it
depends on all the circumstances of the case, such as the duration of
the treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim". For the Court, it was of cardinal importance that P. was at the material time only fourteen years old. The
certificate issued by the prosecutor confirmed that her pregnancy had
resulted from unlawful intercourse and a medical certificate issued immediately afterwards also confirmed
bruises on her body as a result of a crime. The girls therefore was in a situation of great vulnerability. The circumstances of the case however showed the lack of proper regard to tP.’s vulnerability and young age and her own views and feelings. The Court was
Assessing P.'s situation as a whole, having regard in particular to the cumulative effects of the circumstances, the ECtHR concluded that P. was treated by the authorities in a deplorable manner and that her suffering reached the minimum threshold of severity under Article 3 of the Convention. There has therefore been a breach of that provision.particularly struck by the fact that the authorities decided to institute criminal investigation on charges of unlawful intercourse against the first applicant who, according to the prosecutor’s certificate and the forensic findings referred to above should have been considered to be a victim of sexual abuse. The Court considers that this approach fell short of the requirements inherent in the States’ positive obligations to establish and apply effectively a criminal‑law system punishing all forms of sexual abuse
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Johanna Westeson, Regional Director for Europe of Center for Reproductive Rights posted the guest article P and Sv. Poland: adolescence, vulnerability, and reproductive autonomy on Strasbourg Observers. Besides summarizing the judgment of the ECtHR she also adds some very interesting comments on the claims that were rejected by the Court in its decision: failure to provide the first applicant with emergency contraception (Articles 3 and 8), éack of respect towards the applicants non-belief (Article 9) and discriminatory aspects of the applicants' treatment (Article 14). 
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