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The legal action has been initiated by lawyers from the Federation for Women and Family Planning (Federa). Three women who have turned to the NGO for help after the Constitutional Court’s ruling in October already sent their complaints to the European Court of Human Rights.
Acting at the request of MPs from the ruling Law and Justice party, the Constitutional Court decided that the legal right to terminate a pregnancy due to fetal defects is unconstitutional. Given that 90% of legal abortions in Poland are the result of such pregnancy complications, the court’s judgment, once it’s been published, will practically strip Polish women of their right to abortion altogether.
"The women who reached out to us are still in their reproductive age and plan to have children, but are now afraid of pregnancy because of changes in the law. Lack of legal access to abortion due to fetal damage puts their life and health at risk and takes away their agency. While they have temporarily stopped thinking of having children, they don’t want to remain passive. Our lawyers helped them to prepare the complaints". – the NGO explains.
The complaints were sent to the European Court of Human Rights (ECtHR) in Strasbourg, which investigates human rights violations in the Council of Europe member states. The proceedings before the ECtHR are conducted by postal mail and the process of submitting an application essentially boils down to visiting a postal office. Federa made the complaint form publicly available online, making it easy for other women in a similar situation to submit their applications.
"Let’s all go to the postal office and send our complaint to the European Court of Human Rights, each one on her own behalf! It’s time we take our protest to court" - reads the initiative’s website called “Skarga Kobiet” (Women's Complaint).
The organizers hope that the initiative finds massive support and turns into a common movement in defense of Polish women’s rights. "The substantive part is there. All you have to do is fill out the form. You don't even have to go anywhere or report in person. No fees required”– say the activists.
No one should be subjected to such dehumanizing treatment
The women want to bring their complaint against the Polish government for its "potential" violation of two separate articles of the European Convention on Human Rights.
It is potential because the complainants were not denied their right to an abortion after the Constitutional Court’s judgment, but the ruling itself is supposed to affect their current situation. - The victim may not only be a person whose rights have been violated but also one whose rights are threatened – it follows from the ECtHR’s judgments.
The women deciding to make the complaints see themselves precisely as such "potential victims" who may be forced to carry a pregnancy to term even when the fetus has been diagnosed with severe defects. "Such complainants are currently accompanied by stress and fear of getting pregnant. Forcing women to give birth to a baby that is dead or sick puts them through unbearable suffering” - the complaint reads.
"No one shall be subjected to torture, dehumanizing or degrading treatment”- states Article 3 of the Convention, which the Polish government potentially violated.
Constitutional Court acted in violation of the law
Moreover, the women also accuse the Polish state of violating their right to respect for private and family life, in which the authorities may interfere only in exceptional situations. According to the complainants, it is a situation of interference that violates the convention.
"The actions of the Polish Constitutional Court in issuing its ruling were illegal"- reads the complaint.
Its authors note that the decision has been made by persons not even entitled to adjudicate - three of the so-called "judge-doubles" who were appointed by the ruling Law and Justice party to replace properly filled seats in the Constitutional Court. The adjudicating panel was chaired by Julia Przyłębska, whose appointment violated the law on the Constitutional Court. Krystyna Pawłowicz, a member of the Law and Justice party, also recognized the case. Earlier, she supported a similar motion on banning abortion filed with Tribunal. "Therefore, the ruling was not issued by an impartial body" - we read.
The uncertainty as to the legal status of the ruling after its publication has been suspended by the Prime Minister's office is another potential violation. Even though, according to the Polish Constitution, the Court’s judgments are supposed to be announced immediately, the Government Legislation Centre did not announce the official verdict after nation-wide protests broke out.
"It has created an unregulated state characterized by uncertainty as to the complainant’s exact legal situation. On the one hand, there is a judgment that has been made and publicly announced. On the other, the lack of its publication causes uncertainty as to its legal status" - wrote the authors of the complaint, noting that after the Constitutional Court's decision some hospitals started to suspend the performance of abortion due to fetal damage in order not to risk a situation in which doctors could be accused of breaking the law.
Are such complaints even admissible?
Its organizers called the initiative "unprecedented". "If successful, this mass legal action has a chance to influence the abortion law in our country and, as a result, protect many women from unnecessary suffering" - they argue.
Hypothetically, the ECtHR can order Poland to pay compensation. Polish authorities may be obliged to remove the legal causes of the violation. Until that can happen, however, there’s still a long way to go. It is yet to be seen whether the complaints will pass the Court’s first verification - whether the ECtHR will consider them admissible and accept them for further consideration.
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