Termination of pregnancy and criminal liability of the doctor. Regulations are unclear

The scope of punishment for acts related to the termination of pregnancy is shaped in part not by law, but by a judgment of the Constitutional Court, issued in a composition challenged by the European Court of Human Rights.

The Ombudsman points out the following:

According to Article 4a (1) of the Law of January 7, 1993 on Family Planning, Protection of the Human Fetus and the Conditions for Permissibility of Termination of Pregnancy, termination of pregnancy may be performed only by a physician when the pregnancy poses a threat to the life or health of the pregnant woman or when there is a reasonable suspicion that the pregnancy has resulted from a criminal act.

In a judgment of the Constitutional Court on October 22, 2020. (Ref. K 1/20) questioned the possibility of abortion when prenatal testing or other medical indications point to a high probability of severe and irreversible fetal impairment or an incurable life-threatening disease.

This judgment was published in the Official Gazette, which resulted in the repeal of the provision indicated in its operative part. In the current state of the law, there is no procedure for challenging or contesting this judgment in a way that would lead to the "revival" of the norm declared unconstitutional in this judgment.

However, a circumstance that cannot be overlooked in assessing the impact of this judgment is the fact that it was issued with the participation of three persons not authorized to adjudicate. This was confirmed by the European Court of Human Rights in its December 14, 2023 judgment in the case of M.L. p. Poland (Application No. 40119/21).

The judgment gives rise to an obligation to implement it on the part of public authorities, including the potential impact on the jurisprudential practice of common courts. Indeed, it should be noted that "by virtue of Articles 19 and 32 of the Convention, ordinary courts and the Supreme Court are bound by the ECtHR's legal qualification of a particular state of facts as a violation of subjective rights, [...]. In turn, by virtue of Article 46(1) of the Convention, ordinary courts and the Supreme Court are obliged to aim, within their powers, to eliminate the state of affairs so qualified from legal circulation and to restore the state of affairs prior to the violation as far as possible" (M. Ziolkowski, Judgment of the ECtHR as a basis for resumption of civil proceedings, EPS 2011, no. 9, pp. 4-11).

The possibility of challenging the legal consequences of decisions of the Constitutional Tribunal issued in a composition that does not correspond to the requirements set by the ECHR was already pointed out by the Ombudsman in the context of the May 7, 2021 judgment in the case of Xero Flor p. Poland (Application No. 4907/18). The Ombudsman stressed that it is the duty of all organs of the Polish state, including the government, to eliminate the risk of such consequences.

As a result, the ruling in M.L. p. Poland should also be taken into account by ordinary courts, particularly in the context of criminal cases in which the accused is charged with one of the crimes stipulated in Article 152 § 1- 3 of the Criminal Code. This may be of importance, in particular, in the event that criminal liability is assigned on this basis to a physician who aborts a pregnancy when prenatal testing or other medical indications point to a high probability of severe and irreversible fetal disability or an incurable disease threatening the life of the fetus.

One of the guiding principles of criminal responsibility is the guarantee that a criminal act should be defined by law (the principle of nullum crimen sine lege). This principle means that the criminalization of a given behavior should be carried out in a procedure that does not raise any doubts about its legality.

In the case under review, the scope of criminalization of acts related to the termination of pregnancy is currently shaped not by the law, but by the judgment of the Constitutional Court, which was issued in the composition challenged by the ECHR ruling.

This circumstance is not insignificant from the point of view of the principle of nullum crimen sine lege, which should be taken into account and applied by courts, including criminal courts. 

- In a specific factual situation, the ECHR judgment could be applied by a criminal court in such a way that the court would find that performing an act punishable by this ECHR judgment does not result in criminal liability," Marcin Wiącek points out in a letter to the President of the NRL. 

The ECHR judgment should also be taken into account by civil courts considering cases of improper performance of healthcare contracts. This remark will also be valid after a possible amendment to the Regulation of the Minister of Health of September 8, 2015 on general terms and conditions of contracts for the provision of health care services, as proposed by the Minister of Health.

The legal state of affairs regarding the rules for performing legal abortions can, in practice, raise doubts and lead to the appearance in the public space of various, often contradictory interpretations regarding the prerequisites for legal abortions. This situation is unfavorable primarily from the perspective of patients, who are still in uncertainty about the conditions under which they can receive the procedure in Poland.

Also from the perspective of doctors, this is a highly undesirable state of affairs. Doctors performing abortions on the basis of the embryopathological premise - regardless of the indicated position on the implications of ECHR judgments for the jurisprudential practice of common courts - remain in a state of uncertainty as to the scope of criminal liability. In turn, in a situation of unjustified refusal to perform the procedure, they may be held liable for damages and disciplinary action. Financial consequences may also befall treatment providers.

This indicates the absolute necessity for legislative intervention, so that both patients and doctors have no doubt in which situations abortion is legal in Poland.

Source: RPO