P., a 14-years-old adolescent, was raped by a classmate. P. and her mother S. reported the rape to the police the next day. Even though P. was referred to a health clinic for examination, she was not offered emergency contraception. Several weeks later, she found out she was pregnant and decided to end the pregnancy. Although P. was legally entitled to an abortion under Polish law, which allows abortion in cases of rape, she was repeatedly and continuously denied timely and professional medical attention. P. obtained a prosecutor’s certificate stating that her pregnancy was the result of a crime and attesting that she was entitled to an abortion. Supported by her mother, P. visited three different hospitals, receiving deliberately distorted information about the requirements for obtaining an abortion. One of the hospitals disclosed P’s personal and medical data to the press and the general public. She and her mother were manipulated and harassed by doctors, anti-abortion groups, and representatives of the Catholic Church. Doctors refused to provide her care with reference to personal conscience but failed to refer P to another doctor or hospital. Hospital staff, a priest and the police attempted to manipulate the relationship between P and her mother, asserting that the mother tried to coerce P into having an abortion. As a result, P. was subsequently removed from her mother’s custody. At the end, with the intervention of the Ministry of Health, P. was able to get an abortion just a few days before the 12th week of gestation, which is the relevant gestational limit. Although the abortion was legal, the hospital refused to register P. as a patient and it was done in a clandestine manner.
P. and S. brought a complaint before the Court, arguing that the treatment P. had endured violated her right to be free from torture and cruel, inhuman and degrading treatment (Article 3), right to respect for private life (Article 8), and right to protection against arbitrary deprivation of liberty (Article 5) of the European Convention on Human Rights.
The European Court of Human Rights determined that the rights to be free from ill-treatment, to privacy, and to liberty and security of the person had been violated.
In ruling that P.’s right to private life was violated, the Court reaffirmed that once a state has adopted statutory regulations that allow abortion in some situations, it must also make abortion accessible in practice. The Court reasoned 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.” Moreover, the decision emphasized that time is a critical factor in a woman’s decision to terminate a pregnancy. Finding a violation of P’s right to private life under Article 8, the Court noted that the uncertainty faced by P reflected the striking discrepancy between the right to lawful abortion and the reality of its implementation.
The Court recognized that during P’s entire ordeal, there was no proper regard for her “vulnerability and young age and her own views and feelings.” Even though there was no conflict between the adolescent and her mother in regard to the decision to terminate the pregnancy, the Court stated 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.”
The Court concluded that the pressure and harassment P had to endure from hospital staff, representatives of the Church, the police, and the judiciary, amounted to inhuman or degrading treatment in violation of Article 3. It determined that it was of “cardinal importance” that P at the time was only fourteen years old and yet despite her young age and special vulnerability due to the sexual abuse, she was subjected to pressure, coercion and manipulation when attempting to access a legal abortion. Notably, the Court found that the authorities had treated P in a “deplorable manner” and had shown a profound lack of understanding of P’s predicament. It stated that the authorities “not only failed to provide protection to her, having regard to her young age and vulnerability,” but further compounded the situation in various ways.
The Court noted that Polish law in principle provided for a mechanism “allowing the right to conscientious objection to be reconciled with the patient’s interests, by making it mandatory for such refusals to be made in writing and included in the patient’s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service.” However, the Court found that those requirements had not been complied with in the instant case. Rather, P and her mother had been given misleading and contradictory information and had not received objective medical counseling. No set procedure had been available to them under which they could have had their views heard.
The Court also found that the disclosure of P’s personal data to third parties constituted an interference with her right to respect for private life under Article 8.
The Court finally held that the essential purpose of P’s placement in a juvenile shelter had been to separate her from her parents and to prevent the abortion. In light of that, her placement could not be justified as detention of a minor for the purpose of educational supervision within the meaning of Article 5, section 1 (d). If the authorities had been concerned that an abortion would be carried out against P’s will, the Polish courts should have considered less drastic measures than detaining her. They had failed to do so which, the Court found, constituted a violation of Article 5.
The Court awarded pecuniary damages in the amount of 30,000 euros for P. and 15,000 euros for S., as well as 16,000 euros to the applicants for costs and expenses.