P and S v. Poland
European Court of Human Rights
Application no. 57375/08
30 October 2012
European Convention on Human Rights, Article 3 (Prohibition of torture, inhuman or degrading treatment), Article 5 (right to liberty and security) and Article 8 (right to private and family life)
P was raped at the age of 14 and became pregnant. She and her mother, S, decided to terminate the pregnancy. P was refused an abortion even though it would have been lawful as the pregnancy resulted from a crime. P faced multiple obstacles and pressures to carry the pregnancy to term. A family court restricted S’s parental rights and P was placed in a juvenile shelter. P eventually was allowed by the Ministry of Health to have an abortion. The alleged rapist was never prosecuted, and cases against the hospital, priests, protestors and police officers who facilitated hostilities towards and disclosed confidential medical information about P and S were dismissed.
P and S complained to the European Court on Human Rights of a violation of their rights to respect for their private and family life and of P’s physical and moral integrity by the absence of a timely access to abortion.
Issue and resolution:
Reproductive rights. The Court held that there had been a violation of the rights to family life of both P and S and futher violation of P’s right to freedom from inhuman or degrading treatment and right to liberty.
Any interference with the right to private and family life must be “in accordance with the law” and “necessary in a democratic society”. According to the Court’s settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to one of the legitimate aims pursued by the authorities.
While the Court has held that Article 8 cannot be interpreted as conferring a right to abortion, the prohibition of abortion when sought for reasons of health and/or well-being falls within the scope of the right to respect for one’s private life under Article 8. The Court has already found in the context of similar cases against Poland that once the State adopts laws allowing abortion, it must not structure its procedures in a way which would limit access to abortion. P’s abortion was lawful and there should not have been any delay, obstacles and harassment process. She had encountered procrastination and confusion and were given misleading and contradictory information by the authorities without appropriate and objective counselling and advice.
The respect for a person’s sensitive and confidential medical data is also fundamental to the right private life. The disclosure of the P’s information to the public was neither legal nor served a legitimate purpose, so the Court found another violation of Article 8 in this regard.
There was also a breach of Article 5 as the purpose of P’s detention and separation from her mother was to prevent the abortion rather than for any legitimate purpose. Finally, there was a breach of Article 3 as P was treated by the authorities in a deplorable manner and her suffering was inhuman, degrading and humiliating, with no proper regard for her vulnerability and young age and her views and feelings as a rape victim.
Link to Full Judgment:
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