Federacja Na Rzecz Kobiet I Planowania Rodziny
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Helsinki Foundation for Federacja na Rzecz Kobiet i Human Rights Planowania Rodziny Helsińska Fundacja Praw Człowieka Federation for Women and Family Planning ul. Zgoda 11, 00-018 Warsaw, Poland ul. Nowolipie 13/15, 00-150 Warszawa tel. (48 22) 828 10 08, fax. (48 22) 556 44 50 tel/fax: (0 48 22) 635 93 95, 635 93 92 , e-mail: [email protected], website: www.hfhrpol.waw.pl e-mail: [email protected], website: www.federa.org.pl
IN THE EUROPEAN COURT OF HUMAN RIGHTS (Application No. 5410/03)
BETWEEN
ALICJA TYSIĄC V. POLAND
WRITTEN COMMENTS
BY
POLISH FEDERATION FOR WOMEN AND FAMILY PLANNING
and
HELSINKI FOUNDATION FOR HUMAN RIGHTS
28 September 2005
1. INTRODUCTION
1. These written comments are submitted by the Helsinki Foundation for Human Rights (hereinafter referred to as “HFHR”) with its seat in Warsaw, Poland at ul. Zgoda 11 and the Polish Federation for Woman and Family Planning (hereinafter referred to as “FWFP” or "Federation") with its seat in Warsaw, Poland at ul. Nowolipie 13/15 pursuant to a leave granted on 12 July 2005 to HFHR and on 12 July 2005 to FWFP by Mr. Nicolas Bratza, the President of the Chamber of the European Court of Human Rights (the “Court”) under Rule 44 § 2 of the Rules of the Court.
2. These comments are limited only to the points of law, and in particular to the interpretation of the Convention requirements, as well as the Polish practice and law regarding the termination of pregnancy in order to save the health and life of the woman. These submissions also include a short overview of similar cases to the case of Alicja Tysiąc that have occurred in the last years in Poland.
2. INTEREST OF HELSINKI FOUNDATION FOR HUMAN RIGHTS AND POLISH FEDERATION FOR WOMEN AND FAMILY PLANING
3. HFHR is a non-governmental organization established in 1989 by members of the Helsinki Committee in Poland in order to promote human rights and the rule of law as well
1 1 as to contribute to the development of an open society in Poland. One of the activities of the HFHR includes legal actions undertaken in the public interest, including the representation of parties and preparation of legal submissions to national and international courts and tribunals, particularly within the framework of the Strategic Litigation Program. The aim of such submissions is to influence the process of changing laws and practices that we find contrary to human rights. Since its establishment, the HFHR has been promoting the standards of the European Convention on Human Rights among the health administration. We have made several interventions with the Polish Ministry of Health. We prepared also monitoring reports concerning abuses of human rights in the medical sector.1 Within the Strategic Litigation Programme, we provide legal aid to Barbara Wojnarowska, whose rights were infringed as a result of a refusal of therapeutic abortion (see further details of the case below). The question of therapeutic abortion is thus of vital importance for us, taking into account the practice in Polish hospitals (discussed below) and lack of clear and unequivocal standards.
4. FWFP is a formal alliance of seven non-governmental organizations established in 1991 by five NGOs. The main mission of the FWFP is to promote sexual and reproductive health and rights as a gender equality issue and a human rights issue. The FWFP has a Special Consultative Status with UN ECOSOC. From the very beginning, the FWFP is monitoring the implementation of the Law on Family Planning and has made numerous reports which inform the general public and policy makers at the national level and international human rights bodies about gender discrimination in the area of reproductive health and rights. For example, the FWFP submitted several shadow reports to the UN Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. The information provided by the Federation was taken into account in the final Concluding Observations of these committees. Moreover, the Federation provides counselling and intervention services to women who are denied medical services related to their reproductive health.
5. As a matter of fact, the FWFP was involved in the case of Alicja Tysiąc from the very beginning when she was still pregnant. The FWFP unsuccessfully tried to guide her in her attempts to receive the services in question. Therefore, the Federation’s representatives could observe at first hand how the system works, or rather does not work, in practice, what are the barriers that women face. The Federation has been involved in another case of a woman who has been denied timely prenatal examinations that would have allowed her to terminate pregnancy which is presently pending in the European Court of Human Rights (application No. 27617/04). 6. We hope that our written comments may be of some assistance to the Court in establishing the standard within the Convention system on the question involved. Such a standard might have a significant effect on Polish law and practice. If this standard were established in accordance with this brief, the HFHR and FWFP would be able to undertake further actions aiming towards implementation of standards stemming from the judgment of the Honourable Court.
7. We would like to underline that the purpose of this third-party intervention is not to discuss issues relating to the abortion on grounds of social reasons. We are of the opinion that the prohibition of abortion on social grounds is a result of the political process and therefore we do not want to discuss the currently binding legal regime concerning abortion in Poland. It is not the objective of this brief to discuss this question in detail. Our purpose is to provide the Court with our assessment of practice regarding the access to abortion services, that are allowed under the Law on Family Planning, i.e. therapeutic abortion.
1 For example, following the public health reform in 2001, in 2002 we have made a monitoring of 127 health care units, in order to clarify whether the reform remedied access to public health.
2 2 3. GENERAL OVERVIEW OF ABORTION PROCEEDINGS IN POLAND
3.1 Legal basis
8. The terms and conditions of performing abortion legally, regulation of proceedings as well as criminal responsibility for performing abortion services are regulated in Poland by three legal acts:
- Act of 7 January 1993 Law on family planning, human embryo protection and conditions of pregnancy termination2 (hereinafter referred to as the “Law on Family Planning”);
- Act of 6 June 1997 - Polish Criminal Code3, (hereinafter referred to as the “Criminal Code”);
- Regulation of the Minister of Health and Social Care dated 22 January 1997, concerning the professional qualifications of physicians authorized to terminate a pregnancy and to deem pregnancy as threatening the life and health of the woman or denote an important probability of severe and irreversible foetus handicap or incurable disease that threaten the child’s life4, (hereinafter referred to as the “Regulation on Therapeutic Abortion”).
3.2 Purpose and general ideas of the Law on Family Planning
9. The main purpose of the Law on Family Planning is to protect the embryo as well as the pregnant woman. The law provides that the principal goal of the state is to protect the right to life and health of the woman. The local authorities are obliged to ensure that a pregnant woman receives proper medical, social and legal help. This includes providing a prenatal healthcare to the foetus, to the pregnant woman, as well as a financial help to the woman experiencing economic hardship during pregnancy and after childbirth.
10. The interruption of pregnancy is codified as a criminal offence by the Criminal Code. According to art. 152 § 1 of the Criminal Code, the one who terminates a pregnancy in violation of the Law on Family Planning, and acts in concert with a woman, may be sentenced up to three years of imprisonment. The same penalty is envisaged for any assistance in the interruption of pregnancy. If the abortion results in the death of the pregnant woman, the penalty is higher and amounts up to ten years of imprisonment. The woman does not incur criminal consequences of the illegal abortion act.
3.3 Procedure of therapeutic abortion
11. The pregnant woman is obliged to consult an authorised physician in order to obtain a permit for therapeutic abortion. The decision is made after prenatal examination by a specialist physician or woman’s general health inquiry. In case of rape, the competent decision-making body is the local public prosecutor. The decision has to be confirmed by
2 Ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerwania ciąży (Dz.U. z 1993 r., nr 17, poz. 78, z późn. zm.). 3 Ustawa z dnia 6 czerwca 1997 - Kodeks karny (Dz.U. z 1997 r., nr 88, poz. 11071, z późn. zm.) 4 Rozporządzenie Ministra Zdrowia i Opieki Społecznej z dnia 22 stycznia 1997 r. w sprawie kwalifikacji zawodowych lekarzy, uprawniających do dokonania przerwania ciąży oraz stwierdzenia, że ciąża zagraża życiu lub zdrowiu kobiety lub wskazuje na duże prawdopodobieństwo ciężkiego i nieodwracalnego upośledzenia płodu albo nieuleczalnej choroby zagrażającej jego życiu (Dz.U. z 1997 r., nr 9, poz. 49).
3 3 the pregnant woman. If the woman is under eighteen or without full legal capacity, the confirmation has to be made by her legal representative.
12. Specifically, under the Regulation on Therapeutic Abortion, the termination of pregnancy may be done by a doctor possessing the first step specialisation in obstetrics and gynaecology or a title of obstetrician or gynaecology specialist. Furthermore, a physician making a specialist practice, in order to obtain the first grade of specialisation in the field of obstetrics or gynaecology, may also perform an abortion, but must be assisted by another physician competent to perform such services.
13. All circumstances of health or life endanger of the pregnant woman have to be confirmed by a physician possessing a title of specialist in the field of medicine relevant to the woman illness. All foetus abnormalities or incurable illnesses have to be confirmed by a physician possessing a title of specialist, who decides upon the genetic disease of the foetus on the basis of prenatal genetic examinations, or a physician possessing a title of specialist in the field of obstetrics or gynaecology, stating about irregularities in the foetus development, upon ultrasonographical examinations of the pregnant woman.
4. PRACTICE UNDER THE LAW ON FAMILY PLANNING
4.1 General overview
14. The twelve years of the Law on Family Planning in force allows for a number of observations on the real effects of the law on the women’s life and health in the context of the therapeutic abortion. The Law on Family Planning prohibited abortion on grounds of social reasons. However, as a side-effect of this prohibition, the Law on Family Planning resulted in a serious limitation of access to therapeutic abortion. Existing problem with access to the therapeutic abortion is well illustrated by the official numbers of abortions performed in public hospitals, when conditions stipulated in Article 4a of the Law on Family Planning are met. According to the data collected by the Government, annually, there is less than 200 such abortions performed.
15. The table below presents an overview of abortions allowed under the Law on Family Planning made in hospitals in the years 1994-2003:
Year Total number of on grounds of on grounds of on grounds of on grounds of abortions social reasons threat of mother’s deformity of the criminal life or health foetus provenance of the pregnancy 1994 782 - 689 74 19
1995 559 - 519 33 7
1996 505 - 457 40 8
1997 3047 2524* 409 107 7
1998 310 - 211 46 53
1999 151** - 94 50 1
2000 138 - 81 55 2
4 4 2001 124 - 63 56 5
2002 159 - 71 82 6
2003 174 - 59 112 3
Source: Government’s reports on the implementation of the Law on Family Planning * The provision allowing for the abortion on grounds of social reasons was only binding in 1997. ** The data given in the government's reports does not add to 151.
16. It should be noted that the rate of abortions allowed under Law on Family Planning (including therapeutic abortions) since the introduction of the Law on Family Planning continuously declines. In 1994, their official number was 782. In 1998, this number decreased to 310 abortions, while currently it is about 200 abortions per year. Such small number of therapeutic abortions in the country where there are over 10 million of women of reproductive age, with for example 2 to 6 abortions due to the crime5, shows clearly how unrealistic these numbers are. Analysis of this data confirms that there is a systemic problem with an access to therapeutic abortion.
17. In the last few years, these statistics started to be underlined by dramatic cases of women, whose rights were seriously violated, having health complications resulting from childbirth, or bearing genetically ill children due to refusal of abortion. Step by step, the problem started to be discussed in the Polish media. This has effected with an increase of abortions in 2004. In total, 193 therapeutic abortions were performed in 2004, out of which 62 abortions on the grounds of threat to women's life and health, 128 - as a result of prenatal examinations and 3 were performed on the grounds of criminal provenance of the pregnancy6. 4.2 Principal reasons of the denial of the therapeutic abortions
18. The long experience of FWFP, which has been providing counselling services to multiple women who experience difficulties in access to therapeutic abortion, leads to the conclusion that barriers encountered by women are certainly of systemic nature and are not just exceptions from the general rule. The foregoing discussion covers the most important causes of the refusal of therapeutic abortion.
4.2.1 Two-level decision-making
19. As it was noted above, in fact two decisions are required in order to perform a therapeutic abortion in Poland. Firstly, the physician must decide that the pregnancy constitutes a threat to woman's health or life, or that there is a severe and irreversible deformation of the foetus. Alternatively, if the pregnancy is a result of a crime, the public prosecutor has to make an appropriate decision. At the second stage, the decision is to be taken by the physician that actually performs an abortion.
20. In practice, it happens that physicians refuse to issue a certification required for therapeutic abortion, even when there are genuine grounds for issuing such a permit. Furthermore, it happens that in case a woman gets a permit, the physicians to whom she goes
5 In 1999 media have informed about a prosecutor, who has denied to prepare a statement concerning the commencement of rape proceeding and motivated it by her conscience and the fact that such a statement could authorize the abortion. See Wanda Nowicka, Monika Tajak, Skutki ustawy antyaborcyjnej [w:] Wanda Nowicka (red.) Ustawa antyaborcyjna w Polsce: funkcjonowanie, skutki społeczne i zachowania, Federacja na Rzecz Kobiet i Planowania Rodziny, September 2000, p. 11-33, on p. 24. 6 “Polityka” No 30 of 3 September 2005, "Conscienciuos" - "Sumienni".
5 5 for a service questions its validity as well as the competences of physicians who issued the permit and eventually denies services.
21. There are also no guidelines as to what constitutes a threat to a woman’s health or life. It appears that some physicians do not take into account any threat to a woman’s health as long as she is likely to survive the delivery of a child. Also, there is a problem with assessment whether pregnancy constitutes a threat to woman's health or life in case she is suffering multiple and complex health problems, as there is no physician who would be recognized as competent to decide about her whole health status, not just about the specific organ or disease. General practitioners’ (or so-called “family physicians”) opinions are not respected in health providers hierarchy.
4.2.2 The conscience clause
22. One of the reasons of restricted access to the therapeutic abortion is inappropriate performance of the procedural safeguards contained in the "conscience clause". Those safeguards aim towards protecting the health of the patient, while on the other hand the "conscience clause" as such aims to protect the freedom of belief and conscience of the medical personnel. Under Article 39 of the Act of 5 December 1996 on the medical profession (hereinafter referred to as the "Medical Profession Law")7, “the doctor may abstain from accomplishing medical services discordant with his conscience, (…) nevertheless s/he is obliged to indicate real possibilities of obtaining the service from another doctor, or in another medical institution and justify his decision and mention about the refusal in the medical documentation”8. Furthermore, in refusing the therapeutic abortion physicians may refer to Article 4 of the Physicians' Ethical Code dated 19 September 2003’ it stipulates that “for a correct accomplishment of medical exercise, the doctor should maintain the liberty of professional activities, in conformity with his conscience and the current medical knowledge”9.
23. We do not want to question in this third-party intervention validity or necessity of the "conscience clause". We are of the opinion that nobody can be compelled to perform acts that are against its beliefs and conscience, but the public health system must guarantee the real access to services. However, we are afraid that with respect to the therapeutic abortion, the "conscience clause" may be abused. In particular some physicians relying on the "conscience clause" do not fulfill the procedural requirements stemming from it, which are in order to safeguard the patient's rights.
24. The “conscience clause” is not only relied upon by gynecologists, but also by physicians taking a decision concerning the therapeutic abortion, i.e. those assessing the state of woman's health or referring her for prenatal examination. The FWFP is aware of several cases in which women were misinformed by physicians about their health or about the incorrect development of the embryo.10
7 Ustawa z dnia 5 grudnia 1996 r. o zawodzie lekarza (Dz. U. z 1996 r., nr 28, poz. 152, z późn. zmianami). 8 Art. 39 ustawy o zawodzie lekarza: „Lekarz może powstrzymać się od wykonania świadczeń zdrowotnych niezgodnych z jego sumieniem, z zastrzeżeniem art. 30, z tym że ma obowiązek wskazać realne możliwości uzyskania tego świadczenia u innego lekarza lub w innym zakładzie opieki zdrowotnej oraz uzasadnić i odnotować ten fakt w dokumentacji medycznej. Lekarz wykonujący swój zawód na podstawie stosunku pracy lub w ramach służby ma ponadto obowiązek uprzedniego powiadomienia na piśmie przełożonego”. 9 Art. 4 Kodeksu Etyki Lekarskiej: "Dla wypełnienia swoich zadań lekarz powinien zachować swobodę działań zawodowych, zgodnie ze swoim sumieniem i współczesną wiedzą medyczną”. 10 It is possible that in certain cases, physicians may misinform women in order to make a termination of
6 6 25. We are of the opinion that every physician, irrespectively of his/her specialization may rely on the "conscience clause". Nevertheless, in such reliance he/she should take care of guaranteeing the patient's rights, i.e. "indicate real possibilities of obtaining the service from another doctor, or in another medical institution and justify his decision and mention about the refusal in the medical documentation". It seems that this is a major problem with the performance of Article 4a of the Law on Family Planning.
4.2.3 Threat of criminal responsibility
26. As mentioned above, according to art. 152 of the Criminal Code abortion is penalised up to three years of imprisonment11. The possibility of criminal responsibility for therapeutic abortion, when there are no, transparent and clearly defined procedures under which it should be established that therapeutic abortion can be performed, is one of the factors deterring physicians from performing therapeutic abortions.
27. Criminal responsibility is also an important cause of refusing prenatal examination. Under Law on Family Planning, authorities are responsible to provide information and free prenatal tests to all pregnant women, particularly if there is high risk of genetic defects or possibilities of incurable diseases. Prenatal examinations that do not significantly increase the risk of miscarriage are only permitted in specific circumstances. Nevertheless, prenatal screenings are rare, as most physicians do not refer women to those examinations. Apart from the "conscience clause", the main cause for this practice seems to lie in the risk of criminal responsibility. Since July 1999, under Article 157a of the Criminal Code, anyone (including physicians) who threatens or provokes a physical harm to a foetus is subject to up to 2 years of imprisonment.
28. It is important to note that authorised physicians in Poland have certain grounds to be afraid of criminal responsibility. The manner in which therapeutic abortion is regulated in Polish law is problematic. Therapeutic abortion is susceptible of a twofold interpretation under Polish law. From one legal standpoint it is said that the Criminal Code (Art. 152) criminalizes the crime of abortion performed upon the consent of woman when the conditions set forth in the Law on Family Planning are not fulfilled. This means that in the situations set in the Law on Family Planning, a woman has a positive right to procure an abortion as long as conditions set by the law are met. The Supreme Court12 considers that there exists a positive right to therapeutic abortion. A physician thus has no grounds to fear, for as long as the conditions are met the abortion is procured lawfully. Performing abortion upon the consent of the woman is thus criminalized with the exemption of situations regulated under the Law on Family Planning. Art. 152 of the Criminal Code penalizes performing abortion “in contravention with the law”, the scope of criminalisation of abortion is therefore spelled out in the Law on Family Planning.13
29. In the legal literature it has been submitted that therapeutic abortion is construed of and regulated as a matter of an exception of unlawfulness (pol. -- kontratyp).14 Such exemptions
pregnancy in the private cabinets, and earn money on it. 11 Art.152 “Kto za zgodą kobiety przerywa ciążę z naruszeniem przepisów ustawy, podlega karze pozbawienia wolności do lat 3”. 12 Judgment of 21 November 2003, No. V CK 16/03. The case concerned a woman, who could not terminate of a pregnancy due to the refusal of a prosecutor to issue a consent for it. See report on a case in “Rzeczpospolita“ of 23 April 2004. 13 L. Gardocki, Prawo Karne, Warszawa 2000, p. 223; 14 A. Marek, Komentarz do Kodeksu Karnego. Część ogólna, Wydawnictwa Prawnicze Sp. z o. o., Warszawa 2000, p. 63, comment to Art. 25 of the Criminal Code;
7 7 of unlawfulness are usually set forth in the Criminal Code itself. The therapeutic abortion is thus regulated with the same method as self-defence, which as a matter of factual situation can be qualified as perfect self-defense or imperfect self-defense. The consequences of method of regulation for a physician are obvious and render issuing a permit excessively difficult. One can imagine a motion of the public prosecution to the effect that a court will have to expect the physician to prove that the therapeutic abortion was procured within the exemption of unlawfulness set forth in the Law on Family Planning . Under such a method of regulation, physicians should not be expected to be quick to take decisions that bring trouble. M. Wild -- arguing against the case of there existing “a right to therapeutic abortion” in Polish law -- thus summarises the situation: “One can hardly say the decision is unrestricted by external considerations.”15
30. Even neglecting the discussion of the nature and structure of therapeutic abortion under Polish law, however, one can note that stakes are set high in favour of negative decisions in this respect of therapeutic abortion. The situation results directly from the way the therapeutic abortion is regulated in substantial as well as procedural provisions.
4.2.4 Refusal to perform therapeutic abortion in public-health providers
31. It is important to underline that not only physicians abuse the conscience clause, but the clause is invoked by healthcare institutions as a whole. Some public hospitals choose the hospital’s name after Pope John Paul II. In doing so, they officially declare they will not per- form abortions. Such declarations, without few exceptions16, are not being questioned or challenged by supervising health institutions.
32. The hierarchical relations in Polish hospitals lead very often to the situation where the decision concerning the possibility of abortion is made by the director on his own, without consulting other doctors, who sometimes do not even share his / her point of view. The re- view of opinions of physicians obtained by FWFP confirm this statement17. Please note also that one of the Warsaw hospitals, before any prenatal examinations gives to pregnant woman a special information to sign stating that even in case of foetal damage the hospital want ef- fectuate the pregnancy interruption18.
33. It is important to note further that public hospitals are funded by the National Health Fund for the whole package of ob/gyn. services without any exceptions. It means they are paid for potential abortions they refuse to provide. The problem of non-performance of thera- peutic abortions by hospitals was highlighted by Minister of Health Marek Balicki. During the press conference on 28 February 2004, he stressed that the "conscience clause does not concern the whole public healthcare institutions, but may only be invoked by individual physicians. The reliance on the conscience clause must, however, require from a physician undertaking all efforts required under the Medical Profession Act, including indicating to a patient a place where such services may be performed, and providing full information on it". At the same conference, Marek Balicki underlined that the women's rights under Article 4a
15 M. Wild, „Roszczenia wrongful birth w prawie polskim. Uwagi na tle wyroku SN z 21 XI 2003 r. V CK 16/03”, p. 4 of a printout on file with the author. Printed also in Przegląd Sądowy, 2005. 16 Recently, the State of Vatican refused one hospital to use the name of John Paul II. However, a few hospitals have these name and they comply with the declarations of non-performance of abortions. 17 Wanda Nowicka, Monika Tajak, Skutki ustawy antyaborcyjnej [w:] Wanda Nowicka (red.) Ustawa antyaborcyjna w Polsce: funkcjonowanie, skutki społeczne i zachowania, Federacja na Rzecz Kobiet i Planowania Rodziny, wrzesień 2000, p. 11-33, on p. 22. 18 Wanda Nowicka, Monika Tajak, Skutki ustawy antyaborcyjnej [w:] Wanda Nowicka (red.) Ustawa antyaborcyjna w Polsce: funkcjonowanie, skutki społeczne i zachowania, Federacja na Rzecz Kobiet i Planowania Rodziny, wrzesień 2000, p. 11-33, on p. 25.
8 8 of the Ant-Abortion Law are violated. This resulted in an official letter directed to voivods (wojewoda), in which he urged voivods to remind managers of the public healthcare institu- tions about the necessity to comply with the women's rights provided in Article 4a of the Law on Family Planning.19 In our opinion, as long as it was the official statement of the Min- ister of Health, it should be included in the observations of the Government of Poland in Alicja Tysiąc case. We do not understand the reason why the Government of Poland claims that application of Alicja Tysiąc v. Poland is manifestly ill-founded, when at the same time the member of the Government publicly admits there is a problem of women's access to therapeutic abortion.
4.2.5 Denial of abortion by medical personnel assisting at therapeutic abortion
34. It is not only directors of hospitals and gynaecologists who refuse to perform therapeutic abortions; it is also anaesthesiologists and auxiliary medical personnel (midwives, nurses). There were cases in which physicians were willing to perform the abortion but were unable to do this because they did not have a team to assist the surgery. It was also the case that gynaecologists or anaesthesiologists from one hospital had to be ‘imported’ to another hos- pital to perform an abortion.20
4.2.6 Knowledge about conditions of performing therapeutic abortion
35. One of the reasons of a refusal by specialist physicians to refer women for performing an abortion is lack of sufficient knowledge about the current Law on Family Planning, in partic- ular conditions of therapeutic abortion. It is often the case that physicians consider their knowledge as to when an abortion is allowed and when it is prohibited as insufficient; they thus chose to refuse the service in order to forestall all risks.
4.3 Other sample cases concerning the breach of Article 4a of the Law on Family Planning
36. In order to underline problems connected with the violation of the women’s right to therapeutic abortion under Article 4a of the Law on Family Planning, we would like to present a few sample cases of women whose rights were severely violated.
4.3.1 Case of Barbara Wojnarowska
37. The first child of Barbara Wojnarowska, domiciled in Łomża, was born with a genetic disease. At the beginning of her second pregnancy in 1999, she wanted a genetic testing to be performed. However, the physician refused to refer her for such genetic examination. He claimed that there is no real risk of the second child having the same genetic disease. Furthermore, he insinuated that she only wanted this examination to eventually terminate her pregnancy. Due to her financial situation, she could not finance such examination in private clinics. She could not have an abortion and, as a result, her second child was born with the same genetic disease as the first one. Barbara Wojnarowska initiated the disciplinary proceedings against a doctor and she sued the hospital for damages on the grounds that her patient's rights were infringed as well as for damages on the grounds of the so-called "wrongful birth" of the child. The disciplinary proceedings were rejected due to the lapse of 5-years time. Ms. Wojnarowska won her civil law case partially. The Appeal Court in Bialystok granted her 60,000 PLN as a way of compensation for infringement of her patient's
19 See information on http://www.oil.org.pl/xml/oil/oil68/gazeta/numery/n2003/n200304/n20030422. 20 Wanda Nowicka, Report on Poland, [in:] Barbara Klugman, Debbie Budlender (red.), Advocating for Abortion Access. Eleven Countries Studies, The Women's Health Project, Johanessbourg 2000, p. 239.
9 9 rights. However, it refused to grant a compensation on the basis of "wrongful birth" claim. Currently, the case is pending before the Supreme Court and the hearing in the case will take place on 13 October 2005.
4.3.2 Case of Anna Z.21
38. Anna Z. was a 28-years-old mother of four children (one was given for adoption). She suffered from serious venous deficiency. A pregnancy and labour could have a negative impact on her vascular system. Every next pregnancy was a serious threat to her legs that could end even with her disability. When she got pregnant she was able to receive examination and information about her health problems. However, the physician refused to issue a note that the pregnancy posed a risk to her health, although orally he had admitted that therapeutic abortion was recommended. She tried to get a referral for therapeutic abortion from other physicians. However, this was time-consuming and furthermore other physicians also refused to give such referral. In effect, the abortion was no longer possible to be performed due to time-limits and she had to deliver a baby. The pregnancy resulted in the further deterioration of the state of her legs.
4.3.3 Case of Aurelia M.22
39. As a result of USG examination, during the 18 week of the pregnancy of Aurelia M., the deformations in the foetus were discovered. Deformations suggested the existence of the Turner disease. Aurelia M. was referred to a physician performing payable genetic examina- tions. Week later, she had a consultation with this physician, who advised her that due to the high cost of the genetic examination, she should obtain a promise from a medical insurance board (kasa chorych) to perform such examination in a specialist medical institution in Łódź. Following this advise, Aurelia M. returned to a physician who performed USG testing and requested a state-financed referral for genetic examination in Łódź. A physician requested to issue such a referral, claiming that deformations of a foetus do not qualify for a termination of pregnancy. In a course of further visits at different physicians, they also refused a referral for a genetic examination. Finally, after one and half month, she managed to get a referral and genetic examinations were made. Examinations indicated a Turner disease of the foetus. Despite this result, Aurelia M. was refused a termination of pregnancy. A gynaecologist questioned the findings of the examination and claimed that they were not sufficient grounds to perform an abortion. Currently, Aurelia M. sues three physicians and three hospitals that breached her patient's rights. She is represented on a pro bono basis by two attorneys.
5. ARTICLE 8 OF THE CONVENTION AND ABORTION PROCEEDINGS
5.1 Exhaustion of the domestic remedies
40. The Government of the Republic of Poland in its observations to the merits of the case of Alicja Tysiąc v. Poland claims that lodging a claim with a civil law court is an accessible and effective domestic remedy within the meaning of the Convention. In this respect, the Government refers to the case of Barbara Wojnarowska and the judgement of the Regional Court in Łomża dated 6 May 2004 (No. IC 84/02), as well as to the judgement of the Supreme Court dated 21 November 2003 (No. V CK 16/03).
41. In the opinion of the HFHR and the FWFP, the effective domestic remedy to redress the claim should not be only available in theory. In fact, the cases referred to by the Government 21 The name has been changed to protect the privacy of the person concerned. 22 The name has been changed to protect the privacy of the person concerned.
10 10 underline only the illusory character of this remedy.
42. First of all, it should be mentioned that Barbara Wojnarowska, despite the judgements of the Regional Court in Łomża of 6 May 2004 and the judgement of the Appeal Court in Białystok of 5 November 2004 (I A Ca 550/04 and I A Cz 781/04) in her favour, until today did not receive any amount of compensation for the breach of her patient's rights due to refusal of the prenatal examination. The amount of 60.000 PLN of compensation was awarded by the court, but the case is still pending before the Supreme Court. Therefore, the reliance by the Government of Poland on this case is entirely inadequate, as it is more of a negative example of violation of Article 8 of the Convention right than positive example of existence of domestic effective remedy.
43. We would like to underline, further, that Barbara Wojnarowska was able to win her case in the first and second instance due to the personal effort of lawyers who made her case on a pro bono basis, and at the stage of proceedings before the Supreme Court - by lawyers representing the HFHR. Furthermore, since the refusal of the prenatal examination to Ms. Wojnarowska in 1999, the case has lasted already 6 years and her final result is still unknown. Therefore, in our opinion, a formal possibility to file a civil law suit against a physician or hospital that committed a violation of Article 4a of the Law on Family Planning exists still more in theory than in practice.
44. Most probably, if Barbara Wojnarowska would not receive a pro bono help of lawyers, due to the precedent value of the case, she would not be able to pursue it on her own. First, she would be afraid of costs in case of a failure of the case. Second, she would not be able to hire a competent lawyer to prepare a legal brief and sue the hospital. Taking into account the complexity of the case, a legal aid provided by the state (attorney or legal advisor acting ex officio) would not be sufficient to win the case.45. Please note also that the judgement of the Supreme Court of 21 November 2003 (V CK 167/03) is not only applauded but also criticised by lawyers. According to Stanisław Rudnicki, non-performance of the termination of pregnancy, irrespectively of the reasons of such failure, is not a breach of the woman's personal goods within the meaning of Article 448 of the Civil Code and thus it does not justify granting her a compensation 23 This case shows – in our opinion – the division among lawyers towards a problem of compensation for a failure to perform a therapeutic abortion. This debate undermines the construction of the remedy and thus further undermines the claim by the Government.
5.2 Violation of the right to private life and the right to health
46. Article 8 of the Convention protects private life from interference by public authorities. Private life is recognized as a broad concept, and includes not only the right to live in accordance with human desires and without the control of others, but also the right to physical and moral integrity of the human being (X and Y v. Netherlands, judgement of 26 March 1985, A.91, para. 22; Costello-Roberts v. Great Britain, judgement of 25 March 1993, A. 247-C, para. 22). Thus, all acts violating the physical integrity should be considered within the scope of the "private life" clause of the Article 8 of the Convention.
47. Every act or measure having a negative influence on a human have to be considered as an interference with private life (Costello-Roberts v. Great Britain, Report of the Eur. Com. H.R. of 10 October 1991, para. 49). According to the European Commission on Human Rights “pregnancy and the interruption of pregnancy are part of private life, and also in
23 Stanisław Rudnicki, Casenote to the judgement of the Supreme Court of 21 November 2003 (V CK 167/03), Monitor Prawniczy, No. 10/2004, p. 475.
11 11 certain circumstances of family life (…) and that therefore sexual life is also part of private life; and in particular that legal regulation of abortion is an intervention in private life” (Brüggemann and Scheuten v. Germany, Report of the Eur. Comm. of H.R.12 July 1997, DR 10, p. 103)24. In the same decision, Mr. Fawcett in his dissenting opinion held that "private life ... must in my view cover pregnancy, its commencement and termination: indeed it would be hard to envisage more essentially private elements".48. The Government of Poland in its observations refers to the abovementioned case of Brüggemann and Scheuten v. Germany as a ground that abortion is not contained within the scope of the right to private life. We would like to underline that in determining whether measures taken by the State are compatible with Article 8, the state is vested with certain discretion, known as a margin of appreciation. As established in the Handyside v. the United Kingdom, application no. 5493/72 judgment of 4 November 1976 “the margin of appreciation afforded to competent national authorities will vary according to the circumstances, the subject matter and its background”. Therefore, we do not want to argue that the abortion regulation comes under scrutiny of the Court under Article 8 Section 2 of the Convention and therefore needs to be justified by the High Contracting Party. Therefore, arguments of the Government are not relevant in this respect. It is not the purpose of the application lodged by Alicja Tysiąc to question the scope of the Polish Law on the Family Planning and the legal regime regarding possibility to perform abortion. We believe that the current legal regime in Poland concerning abortion is within the scope of "margin of appreciation" allowed under the Convention. Alicja Tysiąc case questions completely different issue, i.e. inappropriate access to therapeutic abortion, i.e. abortion performed when one of the grounds enumerated in Article 4a of the Law on the Family Planning are met. We believe that despite the margin of appreciation which the High Contracting Parties have as regards regulation of certain matters being within the scope of "private life", protection of the individual's right guaranteed in Article 8 of the Convention requires restrictions of this right to be provided “in accordance with law” and to fulfill certain procedural guarantees.
49. Under Article 8 of the Convention, there is a guarantee of the right to health25, which in our opinion includes the access to therapeutic abortion, in case when a continuation of pregnancy threatens the health or life of the woman. In our opinion, the case of Alicja Tysiąc v. Poland may be considered as an example of lack of adequate, necessary and appropriate medical treatment in a given State Party (Poland), which includes in this case - access to termination of pregnancy.
50. In our opinion, as long as the pregnancy comes within the scope of term "private life" and the termination of pregnancy on the therapeutic grounds is a part of the women's right to health, rights guaranteed under Article 4a of the Law on Family Planning should not be illusory or theoretical, but practical and effective.26 On the other hand, the state has a positive duty to guarantee the effectiveness of these rights.
5.3 Consequences of applicability of Article 8 of the Convention with a special reference to the situation in Poland
51. Due to their ethical responsibility, physicians are a specific professional group. In order to protect the physical integrity, health and life of their patients, physicians are obliged by the law and ethics to present to their patients all the possible treatments. A lack of proper
24 P. van Dijk, G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, Kluwer Law International, The Hague 1998. 25 See Lopez Ostra v. Spain, judgment of 9 December 1994, A-303C, as confirming that there is a right to health within a right to private life enshrined in Article 8 of the Convention. 26 Eur. Ct. H.R., Airey v. Ireland, judgment of 9 October 1979, Series A, No. 32, para. 24.
12 12 information is also considered as a violation of the right to private life and right to health. A refusal to perform a therapeutic abortion without an adequate explanation of the reasons behind such decision may bring damage to the pregnant woman and the future child. All unexplained and not clarified refusals of abortion have to be considered as an error in the medical art and a violation of the patient's fundamental rights.
52. Right to health of women demands the existence of procedures allowing the pregnant woman to execute her right to therapeutic abortion in cases when grounds provided in Article 4a Section 1 and 2 are met. In Poland, however, a pregnant woman is subject to an arbitrary physicians’ decision as regards the termination of pregnancy in such circumstances. Furthermore the existence of the “conscience clause” allows physicians to refuse an abortion without a proper medical justification. As was noted above, physicians in Poland, when they rely on the conscience clause, in fact only refer to its first part (allowing for refusal of abortion due to their conscience). They do not, however, fulfil the obligation of indicating "real possibilities of obtaining the medical services from another doctor, or in another healthcare institution".
53. In case of the refusal of therapeutic abortion, the only effective manner to terminate the pregnancy are “underground abortion services”. There are many and repeated announcements in newspapers about such services even if such services are illegal. "Underground abortion" services are however expensive and therefore unavailable to women in difficult economic situation that have to terminate a pregnancy on the therapeutic grounds.
54. In our opinion, the current practice of the Polish Government as regards guarantees of Article 4a of the Law on Family Planning runs counter the requirements of Article 8 of the Convention. A refusal of abortion in cases where there are grounds for performing it is a violation of Article 8 of the Convention. It is also a breach of the rule of law principle. In the democratic state ruled by law, there should not be legal guarantees being to great extent illusory and theoretical. Article 8 of the Convention should require from the Polish authorities to perform its positive duty to guarantee that every woman is able to effectively enforce the right to therapeutic abortion provided by Article 4a of the Law on Family Planning.
6. VIOLATION OF ARTICLE 13 OF THE CONVENTION
55. According to the Convention, everyone whose rights and freedoms were violated shall have an effective remedy before a national authority. In the Alicja Tysiąc v. Poland case, as well as other similar cases Polish law does not guarantee effective possibilities of the review of the physicians' decisions. It should be underlined that the speed of proceedings plays an important role in the therapeutic abortion process as the decision to perform an abortion has to be taken within a certain time-limit.
56. The Government of the Republic of Poland in its observations of 29 June 2005 claims that there were effective domestic remedies at the disposal of Alicja Tysiąc. In particular, the Government refers to possibility of filing a civil law suit, to institute a criminal proceedings as well as right to appeal under administrative proceedings. In our opinion, however, neither of these remedies may be considered as effective within the meaning of Article 13 of the Convention. Below there is an overview of the potential means of redress and their applicability to cases of refusal of abortion.
57. Furthermore, please note that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically. In reviewing whether it has been
13 13 observed, it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see for e.g. Akdivar and Others v. Turkey, Eur. Ct. H. R., Reports 1996-IV).
6.1 Administrative proceedings
58. The Polish Government in its observations proposed the application of administrative procedure to the abortion case. The Government claims that public health institutions should be regarded as administrative agencies within the meaning of the Code of Administrative Procedure. In the opinion of the Government, the refusal to admit to hospital for the purpose of abortion constitutes an administrative decision of the hospital's director and as such is subject to an administrative supervision, as well as subject to judicial review before administrative courts. The Government claims that such supervision may include the examination of the medical opinion on the compliance of the legal requirements necessary to conduct the abortion. At final point, the Government suggests that Alicja Tysiąc should have availed herself of this right of appeal in administrative judicial proceeding.
59. Please note that according to Article 37 of the Medical Profession Law the only possibility to review the decision made by a physician is the consultation of another physician. The Government proposal to apply the Code of Administrative Procedure for the therapeutic abortion decisional process seems to us not carefully examined and proved.
60. After review of the jurisprudence of the Head Administrative Court we could not find any judgement that would confirm the applicability of the Code of Administrative Procedure, and the procedural safeguards stemming from it, to the women's rights under Article 4a of the Law on Family Planning.
61. The administrative proceedings anticipate three decisional terms: immediately (niezwłocznie), 1 or 2 months (Article 35 of the Code of Administrative Proceedings), depending upon the complexity of the case. In decisions on termination of pregnancy, every day of delay is of crucial importance, as it may cause a health complication or the legal impossibility to terminate the pregnancy. In refugee cases, it happens that both administrative organs as well as the administrative courts may issue final decision in a very quick and efficient manner. However, we are not aware whether the same approach of hospital's director and appeal bodies applies to cases of the termination of pregnancy, if we assume that the Code of Administrative Procedure applies to such procedures at all.
62. Furthermore, it is quite interesting to us that the Government, when referring to administrative procedure, does not indicate the following issues:
- what is the supervising body over the director of hospital to whom the pregnant woman should appeal,
- what is the manner of delivery of the administrative decision of the hospital's director,
- what is the status of criminal responsibility of physicians under the Law on Family Planning, if their decisions, in accordance with the Government's point of view, are administrative acts,
- are there any time-limits for considering the case of a pregnant woman by a physician, an
14 14 appeal body (whatever it is), and two administrative courts, in order to have a final decision before the date when the termination of pregnancy is still possible (approx. 20-22 weeks).
63. The above rhetoric questions are to indicate that the application of the administrative regulations to the therapeutic abortion proceedings is a completely artificial legal construct that cannot assure an effective and adequate manner of appeal. It appears to us that there is a legal lacuna in this area.
6.2 Criminal and disciplinary proceedings
64. The Polish legal system provides for a possibility of exacting the responsibility of physicians for any damages to patients caused by their negligence, in the course of disciplinary proceedings. The professional responsibility is regulated in the Chapter VI of the Law of 17 May 1989 on Medical Chambers.27 The procedural aspects of disciplinary responsibility have been stipulated in the Regulation of the Minister of Health and Medical Care of 26 September 1990.28
65. Taking into account the experience of HFHR in coordinating Barbara Wojnarowska case, the medical disciplinary proceedings in Poland are not effective. The disciplinary proceedings against a physician who refused to refer Ms. Wojnarowska for prenatal examination lasted 5 years, with long periods of inactivity on the part of the disciplinary bodies. After the lapse of 5 years, the commissioner for disciplinary proceedings issued a decision on redemption of further proceedings due to the expiration of period of the disciplinary act's penalisation. We would like to underline that in this case the Polish Minister of Health tried to discipline the disciplinary bodies of the Medical Chamber with no result whatsoever.
66. In our opinion, it is difficult to consider the criminal proceedings as an effective remedy in case of violation of Article 4a of the Law on Family Planning. Theoretically, when a woman is refused therapeutic abortion, it may result in endangering her health or life. However, every such case should be considered separately and there should not be a general rule in this respect. For example, as a general rule, refusal of termination of pregnancy having a criminal acts' provenance, will not be regarded as a criminal offence, but as a breach of the patient's rights. Furthermore, a physician may refuse to terminate the pregnancy on the grounds of the risk to health of the mother, but thereafter it may appear that the pregnancy caused no risk at all.
6.3 Civil proceedings
67. There is no doubt that civil law suit may be regarded as a remedy that can redress harms caused by the violation of the Law on Family Planning. It should be noted, however, that civil proceedings as well as disciplinary and criminal proceedings may only be applied post factum, i.e. after they were refused therapeutic abortion and had to deliver a baby. Please note that in the time of pregnancy it is difficult for women to seek any redress. At the same time, there are strict time limits when the eventual termination of pregnancy can be made. By all means, both the civil proceedings as well as disciplinary proceedings cannot remedy the situation, which is irreversible. Thus, they cannot be regarded as the effective remedy within the meaning of Article 13 of the Convention.
27 Ustawa z dnia 17 maja 1989 r. o izbach lekarskich (Dz.U. nr 30, poz. 158, z późn. zmianami). 28 Rozporządzenie Ministra Zdrowia i Opieki Społecznej z dnia 26 września 1990 r. w sprawie postępowania w przedmiocie odpowiedzialności zawodowej lekarzy (Dz.U. nr 69, poz. 406.)
15 15 68. It is important to underline that the civil procedure cannot be considered as an effective domestic remedy. Besides its subsidiary character, the length of the procedure seems to be the major obstacle. Civil compensation proceedings take years, the eventual compensation is awarded post factum, when the consequences of lack of pregnancy interruption have already occurred, e.g. the child suffers from mental or genetic illness, or the mother health has deteriorated. Moreover, claiming a civil compensation for "wrongful life" or "wrongful birth" is disputable in the legal doctrine and jurisprudence.
7. VIOLATION OF ARTICLE 14 OF THE CONVENTION
69. We are of the opinion that a case of Alicja Tysiąc v. Poland constitutes an example of the violation of Article 14 of the Convention in connection with Article 8 of the Convention. As it was mentioned, abusing legal provisions relating to therapeutic abortion by physicians has major impact on women in difficult financial situation. In Poland, there is a pretty large market of the “underground” services. In effect, women, who are in a good financial situation choose almost always the “private” abortion, even if they would have a possibility to perform a therapeutic abortion under one of the conditions stipulated in Article 4a of the Law on Family Planning. Please note that all the cases enumerated above, concerned women having a very modest salaries, not allowing for “purchasing” of “underground abortion” services (or paying for prenatal testing).
70. In effect, the non-performance of its obligations by the Government stemming from Article 4a of the Law on Family Planning, results in a different treatment of women due to their financial situation. In our opinion, the Government is aware of both the existence of the “underground services” (or “abortion tourism”) as well as the practice of restricting access to therapeutic abortion, and thus agrees on the status quo. The acceptance of such status quo by the Government, having impact on the situation of women in difficult financial situation, constitutes in our opinion a discrimination within the meaning of Article 14 of the Convention.
8. POSSIBLE REMEDIES – EFFECTIVE DECISIONAL PROCEDURES
71. Even if under Article 4a of the Law on Family Planning there is a possibility to perform a therapeutic abortion in case of a threat to health, no effective procedural regulations exist. There are no legal manners to review a negative physician's decision or to consult an independent body. This constitutes a breach of Article 13 of the Convention per se.
72. The Polish law does not foresee effective measures to review physicians’ decisions. As a consequence, women to whom a therapeutic termination of pregnancy has been denied do not have any possibility to consult an independent body, and have the decision reviewed in a second instance. Article 37 of the Medical Profession Law29 provides (since 1996) the possibility to review a decision taken by a specialist and a possibility to consult a relevant specialist or arrange medical consultations with other physicians upon the doctor or patient initiative. Unfortunately, this procedural regulation is rather illusory in the Polish reality, especially in smaller cities. Furthermore, the possibility of consulting another medical body is neglected by physicians. The possibility of receiving a special medical referral for examination is rather impossible in the Polish reality. Such a situation is mainly caused by costs of such additional expertises. Most of examinations and medical consultations are 29 Art. 37 ustawy o zawodzie lekarza: “W razie wątpliwości diagnostycznych lub terapeutycznych lekarz z własnej inicjatywy bądź na wniosek pacjenta lub jego przedstawiciela ustawowego, jeżeli uzna to za uzasadnione w świetle wymagań wiedzy medycznej, powinien zasięgnąć opinii właściwego lekarza specjalisty lub zorganizować konsylium lekarskie”.
16 16 financed by the National Health Found (Narodowy Fundusz Zdrowia), where the resources are strictly limited. Consequently, the physicians policy is rather focused on economies. This was the case of Barbara Wojnarowska, who was not referred to prenatal examination even where a high probability of embryo abnormalities was apparent.
73. In our opinion, the Court -- similarly to the case Kudła v. Poland (judgement of 26 October 2000, application No. 30210/96) and taking into account the systemic nature of the problem -- should require Poland introduction of the special remedy against decisions of physicians refusing to perform such an abortion.
74. It is unacceptable that one and subjective medical opinion may have such a vital impact on the women's private life. It is also unacceptable that the Government tolerates this situation, when rights guaranteed by law are in fact illusory and ineffective. We are of the opinion that women should have a possibility of having such decisions reviewed by an independent and collegial body composed e.g. of specialized physicians, lawyers, representatives of NGOs. It is important to assure a total independence between the first decision maker and such collegial body. As time is a major factor in the abortion decisional process, short terms (e.g. three, four days) should be introduced. Legal constraint measures should force the collegial body to undertake immediate analysis and eliminate all eventual tardiness.
75. As regards refusals to perform the abortion by physicians relying on the "conscience clause", the Polish Government should undertake all necessary measures in order to guarantee effectiveness of Article 4a of the Law on Family Planning. One of the possible solutions can be a granting financial help allowing a pregnant woman to travel abroad in order to perform a therapeutic abortion, whenever she has received a decision of the specialist physician allowing for therapeutic abortion but still does not have an access to a physician who can terminate the pregnancy. Alternatively, Polish government should consider recruitment of physicians from other countries in order to perform therapeutic abortions. Finally, we propose therapeutic abortion to be performed in private hospitals, controlled by the state and upon fulfillment of all required procedural guarantees. In all these instances, the State should cover the cost of providing the effectiveness of Article 4a of the Law on Family Planning.
76. The Polish Government should by all means counteract practices, according to which whole medical institutions rely on the "conscience clause" and prohibit physicians to perform any abortions whatsoever. As long as the medical services are sponsored mainly by public funds (Narodowy Fundusz Zdrowia), no public institution may prohibit performance of services that are provided by law and guaranteed to every woman. In our opinion, such practice is contrary to the right of equal access to medical services financed out of public means provided in Art. 68 Section 2 of the Polish Constitution and the principle that Poland is a democratic state ruled by law.
9. CONCLUSIONS
77. We have raised the above developments to the awareness of the Honourable Court in order to underline the significance of the abortion denial proceedings in Poland. The Alicja Tysiąc v. Poland case will be one of the first cases dealing with this particular issue of woman legal guarantee to therapeutic termination of pregnancy.
78. The Helsinki Foundation for Human Rights and the Federation for Women and Family Planning are of the opinion that Article 8, Article 13 and Article 14 of the Convention are
17 17 applicable in the Alicja Tysiąc v. Poland case. In our opinion, this case is just a confirmation of the systemic problems stemming from the application of the Law on Family Planning.
In the name of In the name of Helsinki Foundation for Human Rights30 the Federation for Women and Family Planning31
Danuta Przywara Wanda Nowicka
30 On behalf of the Helsinki Foundation for Human Rights written comments were also prepared by Adam Bodnar and Dominika Bychawska and reviewed by Professor Andrzej Rzepliński. The Helsinki Foundation for Human Rights would also like to thank Piotr Korzec and Dorota Pudzianowska for editorial corrections and valuable remarks on earlier drafts. 31 On behalf of the Federation for Women and Family Planning, written comments were also prepared by Aleksandra Solik.
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