WRITTEN OBSERVATIONS
Submitted to the European Court of Human Rights
in the case
M.L. v. Poland

21 March 2022

[Footnotes omitted]

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ has held special Consultative Status before the United Nations/ECOSOC since 2007.

The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular for the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others.

The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).

The ECLJ declares that it is acting in this case on its own initiative, on a voluntary basis, and
that it has no conflict of interest.

Prior warnings
1. The ECLJ does not doubt the suffering caused by the news of the applicant’s child’s disability and her abortion, and sympathizes with her.

2. This case is not about Poland’s general restrictions on abortion, but about the consequences for the applicant of the abolition of eugenic abortion.

3. Abortion was first introduced in Poland with a decree by A. Hitler on March 9, 1943 as a “security measure for the German people” in order to limit the demography of the Polish people. Abortion was then promoted during the Soviet occupation with ideological and political intentions. Abortion is therefore not generally considered in Poland as a liberal practice, as it is in Western Europe, but on the contrary as an anti-Polish practice imposed from abroad, by the Nazi and then Soviet occupiers.

Plan
4. We shall see first of all that the application is inadmissible rationae materiae because Poland recognizes the unborn child as a subject of law, and consequently grants them the protection of their right to respect for life under the Convention (I).

5. We will then see, in the alternative, that Poland can legitimately abolish eugenic abortion under the European Convention, and that this abolition even constitutes an obligation under the Convention on the Rights of Persons with Disabilities (II).

6. Finally, we shall see, in a further alternative, that the applicant’s distress can’t be attributed to Poland, and if it were, it does not reach the threshold required for the application of Article 3. On the other hand, late-term abortion as performed in the Netherlands by dismemberment of the foetus constitutes torture (III).

7. The stakes in this case are high and deserve a referral to the Grand Chamber. The question is whether eugenic abortion of disabled children is a human right or whether, on the contrary, it can or must still be considered a violation of human rights and of the values of the Convention.

I. PRIMARILY: THE APPLICATION IS INADMISSIBLE RATIONAE MATERIAE
1. The Convention and the European Court do not explicitly exclude the unborn child from the scope of the Convention

8. The Court has never held that — in the order of the Convention — the unborn child be not a person. Cautiously, it has always refused, since Brüggemann and Scheuten v FRG and H. v. Norway to exclude the unborn from the field of application of the Convention and to declare that the latter is not a person within the meaning of Article 2 of the Convention, considering that “Article 2 of the Convention is silent as to the temporal limitations of the right to life.” In H. v. Norway, the former Commission EHR explained that it “will not exclude that in certain circumstances,” “the foetus may enjoy a certain protection under Article 2.” President Jean-Paul Costa explained “Had Article 2 been considered to be entirely inapplicable, there would have been no point – and this applies to the present case also – in examining the question of foetal protection and the possible violation of Article 2, or in using this reasoning to find that there had been no violation of that provision.” It must be noted that the Court examines the harm to the life of unborn children on the basis of Article 2.

9. On several occasions has the Court recognized that the embryo — and a fortiori the human foetus — is “another person” within the meaning of Article 8 § 2 of the Convention, since the protection of the potentiality which they carry can be linked to the aim of protecting the “rights and freedoms of others” (see Costa and Pavan v. Italy no. 54270/10, 28 August 2012, § 59 and Parrillo v. Italy, [GC], no. 46470/11, 25 August 2015, § 167). As a result, as Judge Pinto de Albuquerque points out, “that the embryo is an “other”, a subject with a legal status that could and should be weighed against the legal status of the progenitors” (concurring opinion in Parrillo, § 31).

10. The Court has also recognized the applicability to the child — before birth — of other treaty provisions, in particular Articles 3 and 8, in cases where the father complained about the torture suffered by the child during the abortion and the violation of the respect for their family life.

11. The Grand Chamber of the Court also ruled unanimously that “human embryos cannot be reduced to “possessions” within the meaning of that provision.”

12. Other international human rights instruments refer to the unborn child. The American Convention on Human Rights, adopted on November 22, 1969, states that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” (art. 4.1). Similarly, the Convention on the Rights of the Child was adopted on November 20, 1989 “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.” (preamble of the CRC).

13. At the same time, the World Medical Association took the initiative to update the Hippocratic Oath by adding a Geneva Oath in 1948 in the spirit of the San Francisco Charter. In this text, physicians promise to maintain “the utmost respect for human life from its start” and to refuse to allow “considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.”

14. Moreover, no state involved in the drafting of the European Convention on Human Rights allowed abortion at the time, which was, on the contrary, criminally condemned. In 1979, the Parliamentary Assembly of the Council of Europe (PACE) still recognised “The rights of every child to life from the moment of conception” and stressed, a few years later, “that, from the moment of fertilisation of the ovule, human life develops in a continuous pattern.”

2. States may recognize the unborn child as a “person” within the meaning of the Convention and protect them

15. Although the Court does not exclude, as a matter of principle, the unborn child from the scope of the Convention, it does allow States, within their margin of appreciation, to determine in their domestic legal order “when the right to life begins” and therefore of its protection. As a result, it is “legitimate for a State to choose to consider the unborn to be such a person and to aim to protect that life.” The Court thus refers the question of the starting point of life and its protection to domestic legal orders. The fact that most European States permit abortion is separate from, and has no effect on, the freedom of States to determine the starting point of the right to life and its protection.

16. Article 18 of the Oviedo Convention requires States to ensure “adequate protection of the embryo.” The Explanatory Report to the Oviedo Convention states that “The Convention does not define the term “everyone”… In the absence of a unanimous agreement on the definition of these terms among member States of the Council of Europe, it was decided to allow domestic law to define them for the purposes of the application of the present Convention.” (§ 18). The report adds that “The Convention also uses the expression “human being” to state the necessity to protect the dignity and identity of all human beings. It was acknowledged that it was a generally accepted principle that human dignity and the identity of the human being had to be respected as soon as life began.” (§ 19).

17. Poland has chosen to recognise the unborn children as subjects of law and grants them legal protection from the moment of conception. Article 1 of the Act of 7 January 1993 on family planning, the protection of the human foetus and the conditions for carrying out abortions provides that “The right to life shall be protected, including during the prenatal phase, within the limits set by law.” This recognition has constitutional value and is based on Articles 3016 and 3817 of the Constitution, which respectively guarantee the inalienable dignity of the human being and the right to life. The statement of this legal protection from the moment of conception does not date from the judgment of October 2020 (case K 1/20) but confirms the judgment of 28 May 1997 (case K 26/96), in which the Constitutional Court stated that “From its beginning, human life thus becomes a constitutionally protected value. This also applies to the prenatal phase” (3) and that “life, including prenatal life, is one of the fundamental constitutional values” (4.1).

18. The prenatal protection of human life thus predates the decision of the Constitutional Court of 22 October 2020. The latter applied the existing constitutional law to the issue of eugenic abortion, and consequently abolished this practice.

19. Thus, on 22 October 2020, the Constitutional Court “confirmed that human life is a value at every phase of development and, as a value deriving from the provisions of the Constitution, it must be protected by the legislator.” (§ 151), before concluding that “the unborn child, as a human being — a human — endowed with inherent and inalienable dignity, is a subject with a right to life, and therefore the legal system — in accordance with Article 38 of the Constitution — must guarantee him appropriate protection of this essential interest without which his nature as a subject of law would be denied” (§ 151). Since Poland recognises the child as a "subject of law" from before birth, it is legitimate to grant him or her the protection of his or her life and dignity, and even the protection of the European Convention, in accordance with the doctrine of the conditional applicability of the Convention.

20. This choice of the Polish legislator is not unique. It is also the case, notably, of Italy, which recognises the embryo as a “subject” (Act No. 40/2004) and of the CJEU, which, in the Brüstle/Greenpeace eV judgment, C-34/10, of 18 October 2011, recognised that from the moment of conception, the human embryo enjoys the protection accorded to a human being.

21. Poland’s choice is in line with Article 53 of the Convention recalling the principle that States are free to provide a higher degree of protection of human rights, as well as with Article 27 of the Oviedo Convention stating that none of the provisions of the Convention may be interpreted “as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.” Obviously, Poland can grant more extensive protection to the unborn child than the minimum required by the Court. A consensus in favour of less protection cannot force a State to reduce the protection it grants. The reference to consensus can only serve to raise the overall level of protection of rights, not to reduce it.

22. As a result, unborn children in Poland enjoy the right to respect for life guaranteed in Article 2 of the European Convention. The Court cannot condemn this choice of recognizing the unborn child as a subject with the right to life, and of protecting them.

3. The application constitutes an abuse of right

23. The application challenges the abolition of eugenic abortion, and thus aims at reducing the protection and rights of unborn children in Poland.

24. Considering that unborn children in Poland enjoy the protection of the Convention, the present application therefore constitutes an abuse of right prohibited by Article 17 of the Convention, as it seeks “the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

II. IN THE ALTERNATIVE: POLAND CAN ABOLISH EUGENIC ABORTION
1. The absence of a right to abortion under the Convention

25. As long as the embryo or foetus is recognised as a living being “belonging to the human species” abortion can neither be a freedom nor a right, but at most a derogation from the right to life. Indeed, it is impossible to have a freedom or a right on the existence of a being belonging to the human species, even less when this being benefits from the quality of “person” in the national legal order. As the Court has repeatedly emphasized, “pregnancy cannot be said to pertain uniquely to the sphere of private life” of the woman, and “Article 8 § 1 cannot be interpreted as meaning that pregnancy and its termination are, as a principle, solely a matter of the private life of the mother.” Abortion does not only concern the private life of the woman, but also and primarily the existence of the unborn child. In its jurisprudence, the European Court has stipulated that the Convention guarantees neither the right to have an abortion nor the right to practise one. It does not even grant the right to have an abortion in another country with impunity. The Court has also ruled that the prohibition of abortion does not violate the Convention. There is thus no right to abortion under the European Convention. Thus, there is no right to abortion under the European Convention. Historically, the question has never been whether the Convention requires states to legalize abortion, but whether it condones it. It is only because an increasing number of States have legalized abortion that the Commission, and then the Court, have considered that they must tolerate the practice under Article 2, as a matter of margin of appreciation.

26. Since the Convention does not contain a right to abortion, it does not, in itself, prevent the restriction of the conditions of access to abortion provided for in national law. The Court can only verify whether the modalities of this restriction do not unduly affect the rights and freedoms guaranteed by the Convention.

2. If a state decides to legalize abortion, it must do so within a legal framework that respects the rights and freedoms guaranteed by the Convention

27. While states may legalise abortion, the protection of life and the prevention of abortion are international obligations. Indeed, at the 1994 Cairo Conference, governments committed to “take appropriate steps to help women avoid abortion, which should in no case be promoted as a method of family planning” (7.24) and to “reduce the recourse to abortion” (8.25). This commitment was renewed the following year at the Fourth World Conference on Women, with states affirming that “every effort should be made to eliminate the need for abortion” (§ 160.k). PACE also called on European states “promote a more pro-family attitude in public information campaigns and provide counselling and practical support to help women where the reason for wanting an abortion is family or financial pressure.” (PACE, 2008).

28. While, according to the European Court, “a broad margin of appreciation is accorded to the State as to the decision about the circumstances in which an abortion will be permitted,” the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention”. Thus, if a State decides to allow abortion, then its legal framework must comply with the Convention. When dealing with a particular case, it is then for the Court to “supervise whether the interference constitutes a proportionate balancing of the competing interests involved.”

28. The Court has already identified several competing rights and interests in the case of abortion. First, there are the rights of the unborn child. As the Court has repeatedly emphasised, “The woman’s right to respect for her private life must be weighed against other competing rights and freedoms invoked including those of the unborn child” or against “the legitimate need to protect the foetus.” As mentioned above, the Court applies articles 2, 3, and 8 of the Convention to the unborn child. Numerous European and international texts recognize that the dignity of the embryo and fetus must be respected. For example, the Grand Chamber of the Court of Justice of the European Union (CJEU), in the Brüstle/Greenpeace eV judgment, C-34/10, of 18 October 2011, recognised that from the moment of conception, the human embryo enjoys the protection accorded to a human being.

29. Abortion is not simply a question of the rights of the mother versus the rights of the unborn child; it also involves the rights of third parties and the interests of society. The Court has been able to identify the legitimate interest of society in limiting the number of abortions or in protecting morals.

30. The Court also recognises that the right to respect for the family life of the “potential father” and the potential grandmother is affected by the abortion of their child or grandchild. It also recognised the State’s obligation to inform women of the risks associated with abortion. It also recognised that other rights may be affected in specific situations, such as the freedom of conscience of health professionals and the autonomy and ethics of medical institutions.

3. Abortion on the basis of disability violates the principle of non-discrimination and violates the dignity of persons with disabilities

31. The principle of non-discrimination applies almost autonomously, without the need to demonstrate a violation of the Convention, as long as the matter in question “falls” within the scope of the Convention. It is therefore not necessary to consider the foetus a person under the Convention in order to apply the principle of non-discrimination to the practice of abortion on grounds of disability. It is sufficient to consider that their life, and this practice, fall within the scope of the Convention, which is the case.

32. Therefore, the practice of abortion must not be discriminatory, in particular on the basis of the sex, “race” or health status of the unborn child. The Court has never had occasion to find such abortions discriminatory for the simple reason that the direct victims of this practice are dead, and their parents have no personal interest in obtaining a finding of this violation. This is not the case with the United Nations Committee on the Rights of Persons with Disabilities, whose mandate allows it to comment directly on national legislation and practices.

33. According to the UN Committee on the Rights of Persons with Disabilities (CRPD), “Laws that explicitly permit abortion on the basis of disability violate the Convention on the Rights of Persons with Disabilities,” in particular because such abortion “perpetuates notions of stereotyping disability as incompatible with a good life.” For the Committee, abortion on the grounds of disability is in itself discrimination that stigmatises people with disabilities.

34. Since 2011, this Committee has already ruled regarding Spain, Austria and Hungary that fetal impairment should not be the subject of a specific abortion regime, particularly with regard to the legal time limit which, in some countries, can be very late in case of disability. In 2019, the Committee reiterated its recommendation to Spain to “Abolish any distinction made in law to the period within which a pregnancy can be terminated based on a potential fetal impairment,... as such provisions contribute to the stigmatization of disability, which can lead to discrimination.” (CRPD/C/ESP/CO/2-3). The Committee also recommended that the United Kingdom “amend its abortion law accordingly,” finding that “Women’s rights to reproductive and sexual autonomy should be respected without legalizing selective abortion on the ground of foetal deficiency.”

35. Regarding other countries, the CRPD also denounced “Discriminatory attitudes against life with a disability and biased information to expectant parents by counselling services, leading to termination of pregnancy, particularly in cases of a diagnostic of Down syndrome and spina bifida” (Turkey 2019 CRPD/C/TUR/CO/1).

36. All member states of the Council of Europe have ratified the Convention on the Rights of Persons with Disabilities, of which the Committee is the authentic interpreter.

37. Very explicitly, the UN Special Rapporteur on the Rights of Persons with Disabilities, Ms. Catalina Devandas Aguilar, denounced in her 2020 report to the Human Rights Council the ideology that there are “Lives not worth living,” echoing the title of Binding and Hoche’s famous 1920 book that founded Nazi eugenics policy. Ms. Devandas Aguilar herself has spina bifida, a major cause for abortion. She was herself one of the main drafters of the Convention on the Rights of Persons with Disabilities.

38. The Convention on the Rights of Persons with Disabilities, for example, opposes disability or health status as a specific ground for abortion, as this constitutes discrimination on the basis of disability. Abortion legislation must apply equally to unborn children, regardless of their health status. There must be equal treatment, whether access to abortion is restricted, as in Poland, or very broad, notably regarding time limits. However, the CRPD notes that this prohibition is binding on the State, but does not prevent parents from aborting a child, considering the child’s disability, especially when the child’s disability endangers the life or health of the mother.

39. This position is in line with the intention of the drafters of the Convention on the Rights of Persons with Disabilities, but also of the Universal Declaration of Human Rights. Indeed, during the drafting of the Universal Declaration, the Danish diplomat Bodil Begtrup, recommended providing for exceptions to the respect for the right to life in order to allow “the prevention of the birth of mentally handicapped children” and of children “born of parents suffering from mental illness.” This proposal was rejected, notably because of its similarity to Nazi legislation. Indeed, in a secret circular of September 13, 1934, the Nazi regime authorized abortions on women who were likely to produce “hereditarily ill offspring.” This circular was part of the Nazi eugenics policy, along with sterilization and euthanasia of disabled people. It was abolished after the war, out of respect for human rights.

40. The position of the CRPD does not differ from that of the Polish Constitutional Court, which in its judgment of October 22, 2020, affirmed in substance that the mere fact of an incurable disability or illness of the child in the prenatal phase, linked to considerations of a eugenic nature or relating to the possible discomfort of the life of the sick child, cannot alone decide on the admissibility of the abortion.

41. It can be observed that the same approach is taken by the Committee on the Elimination of Discrimination against Women (CEDAW) against sex-selective abortion (gendercide), which is condemned as discrimination.

42. Similarly, the United Nations Population Fund (UNFPA) explicitly recognizes that abortion on the basis of sex is “a form of discrimination.” The same is true of the WHO, which states, jointly with other organizations, “Imbalanced sex ratios are an unacceptable manifestation of gender discrimination against girls and women and a violation of their human rights.” PACE has also condemned abortion on the basis of the sex of the child.

43. The United Nations Human Rights Committee has changed its position on eugenic abortion, gradually abandoning the reference to disability as a specific ground for exception to abortion, in favour of the reference to non-viability alone. Indeed, its previous position was that States are not under a treaty obligation to legalize abortion, but must make exceptions “in cases of rape, incest, danger to the life or health of the mother, or fetal unviability due to an abnormality.” In more recent Observations, the Human Rights Committee no longer refers to malformation, indicating that abortion should be possible when the child is “non-viable.”

44. The Human Rights Committee’s position falls short of the requirements of the Committee on the Rights of Persons with Disabilities, which opposes the view that lethal foetal impairment should be a specific ground for abortion, noting that “Even if the condition is considered fatal, there is still a decision made on the basis of impairment. Often it cannot be said if an impairment is fatal. Experience shows that assessments on impairment conditions are often false.”

45. The abolition of eugenic abortion is also in line with, and even imposed by, Article 3.2 of the EU Charter of Fundamental Rights, which states that “In the fields of medicine and biology, the following must be respected in particular: (...) - the prohibition of eugenic practices, in particular those aiming at the selection of persons.”

46. The abolition of eugenic abortion is also consistent with, and imposed by, the Universal Declaration on the Human Genome and Human Rights (1997), which prohibits discrimination based on genetic characteristics, stating that “No one shall be subjected to discrimination based on genetic characteristics that is intended to infringe or has the effect of infringing human rights, fundamental freedoms and human dignity.” (art. 6).

47. According to treaty law and ECHR practice, the European Convention must be interpreted and applied in the light of its object and purpose, taking into account “any relevant rules of international law applicable in the relations between the parties.” (Vienna Convention on the Law of Treaties, Art. 31(3)(c)). The CRPD, Article 3.2 of the Charter of Fundamental Rights and the Universal Declaration on the Human Genome are relevant rules that should be taken into account in order to clarify international obligations regarding eugenics and the protection of persons with disabilities.

48. It is also important to avoid imposing conflicting international obligations on a State, which would be the case if the ECHR ruled in favour of the applicant, as Poland could only implement this ruling by violating its other international obligations.

49. The position of the Polish Constitutional Court is not isolated. It is shared not only by the United Nations Committee on the Rights of Persons with Disabilities (CRPD), but also by a growing number of states, particularly in the United States of America, which prohibit abortion on the basis of gender, race or genetic characteristics.

50. Thus, in May 2021, 12 federal states will ban abortion on the basis of a diagnosis of Down syndrome: Arizona, Arkansas, North Dakota, South Dakota, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Tennessee and Utah.

51. As an illustration, the Ohio statute provides:

“[n]o person shall purposely perform or induce or attempt to perform or induce an abortion on a pregnant woman if the person has knowledge that the pregnant woman is seeking the abortion, in whole or in part, because of … [a] test result indicating Down syndrome, … [a] prenatal diagnosis of Down syndrome, … [or a]ny reason to believe the unborn child has Down syndrome.” Ohio Revised Code § 2919.10(B).

52. Very recently, this law was found to be consistent with the U.S. Constitution by the U.S. Court of Appeals (6th Circuit) in Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021). Tennessee’s nearly identical law is also under review by the same Court of Appeals, and the Court has already vacated the stay of enforcement pending its decision on the merits of the case.

53. More generally, six states have banned abortions based on any genetic or chromosomal defect in the unborn child and six states have banned abortions requested on the basis of the race of the unborn child. These are policy bans, based on the fight against racial discrimination and eugenics. They primarily concern medical personnel who must not perform abortions when they know that the mother is seeking an abortion for the prohibited discriminatory reason.

4. Abortion is still possible in Poland to save the life of the mother

54. The Family Planning Act of 7 January 1993 allows abortion, by exception, when the continuation of the pregnancy endangers the life or health of the mother, including her mental health.

55. This exception is compatible with the application of Article 2 to the unborn child, because in this case death is not inflicted “intentionally:” it is a secondary, unwanted effect of a medical act aimed at the primary, legitimate and proportionate aim of saving the mother. An abortion to save the life of the mother is compatible with Article 2.

56. However, this exception does not apply when the abortion is requested because of the particular characteristics of the child, such as their state of health, “race” or sex. Such an abortion with the primary purpose of eliminating the child would be a violation of the child’s right to life, coupled with discrimination on the basis of the child’s health status, “race” or sex.

57. For a better understanding, it should be remembered that an exception must always ultimately serve the purpose of the rule to which it is an exception. Thus, the exception of self-defence is aimed at respecting the prohibition against (being) killed. Similarly, the exception to the respect for the life of the child must aim at respect for the life of the mother, not at the destruction of the child for itself.

58. By abolishing abortion based on the child’s state of health, the Polish judge ensured the consistency and effectiveness of the protection of the child’s right to life, without, however, prohibiting the possibility of carrying out an abortion to save the mother.

59. As a result, the applicant could have had an abortion in Poland, had she requested and obtained a doctor’s opinion that the continuation of the pregnancy endangered her mental health. Experience shows that doctors do issue such medical certificates.

60. The applicant did not make use of this option; nor did she make use of domestic remedies. She cannot therefore reproach Poland a posteriori for not having taken her mental state into account to allow her to have an abortion in Poland.

III. FURTHER ALTERNATIVE: THE APPLICANT’S DISTRESS IS NOT ATTRIBUTABLE TO POLAND
1. The applicant’s distress is not attributable to Poland

61. The causes of the applicant’s distress are her fear and her rejection of her child’s disability. Perhaps she would have been less afraid if the population had been more aware of the acceptance of disabled people and informed about Down’s syndrome. Faced with the fear of disability, it is not the disabled people who should be eliminated, but the prejudices.

62. When on January 12, 2021, the applicant was informed about her child’s Down’s syndrome, she could not ignore the judgment of the Polish Constitutional Court of October 2020. She therefore decided to have an abortion, knowing that this practice was unconstitutional and that the ban on it would come into effect imminently with the publication of this judgment.

63. The applicant did not have a right to keep eugenic abortion legal in Poland. It was the circumvention of the Polish ban on eugenic abortion by going abroad to have an abortion that caused the applicant additional inconvenience and expense. However, this decision to circumvent the Polish ban was in no way attributable to Poland.

64. Abortion is not the only answer to the fear of disability. Like countless parents before her, the petitioner could have continued her pregnancy, she would then have benefited from assistance in raising her child or could have given them up for adoption or to an institution. She did not have to have an abortion; that was her decision. But the child’s interest was to live, and people with Down’s Syndrome testify widely to their joy of living.

65. In its decision of October 2020, the Constitutional Court asks the legislator to introduce measures to support families raising a disabled child, judging that “the legislator cannot place the burden of raising a child with a serious and irreversible disability or an incurable disease on the mother alone, because it is primarily the responsibility of the public authorities and society as a whole to care for people in the most difficult situations” (§ 184). In addition to financial aid for people with disabilities, particularly within the framework of the “Rodzina 500 +” program, awareness-raising campaigns are being developed, with the support of the Government, to promote the reception, training, employment and non-discrimination of people with disabilities. This is particularly the case with the campaigns “Stop Barierom,” “Niewidzialna Niepełnosprawność” (Invisible Disability), “Poczta Polska bez barrier.”

2. Assuming that the applicant’s anguish be attributable to the Polish authorities, it does not reach the threshold required for the application of Article 3

66. Assuming that the applicant’s distress be attributable to the Polish authorities, it should be noted, firstly, that it is relative and, secondly, that the measure at issue has only had a limited material impact on the applicant.

67. The applicant has not provided any objective evidence to assess her distress and to demonstrate that she reached the threshold required for the application of article 3.

68. Moreover, the fact that the applicant was able to have an abortion abroad the day after (January 29) the abortion was initially scheduled to take place in Poland (January 28), greatly relativizes the harm alleged by the applicant and proves that the entry into force of the judgment on January 27 only had a very limited impact on the applicant’s situation. The extreme speed with which the applicant obtained an abortion abroad clearly indicates that she was not distressed by the entry into force of the judgment, nor was she surprised by it, since the entry into force was imminent.

69. Finally, the Grand Chamber of the Court has accepted the fundamental ethical choice made by France to refuse any compensation for the alleged damage resulting from not having been able to abort a disabled child (Maurice v. France [GC], no. 11810/03, and Draon v. France [GC], no. 1513/03).

3. The suffering caused by late-term abortion may constitute torture

70. The prohibition of torture and inhuman treatment requires the prohibition of eugenic abortion, as it is most often performed late in life, after the diagnosis of disability.

a. Article 3 protection benefits the unborn child

71. In the case of H. v. Norway, the former European Commission, when seized by a father complaining of the suffering inflicted on his unborn child by the latter’s abortion, agreed to apply Article 3 to the child. It considered the application unfounded for lack of proof of suffering of the foetus: “the Commission has not been presented with any material which could substantiate the applicant’s allegations of pain inflicted upon the fetus (…) Having regard to the abortion procedure as described therein the Commission does not find that the case discloses any appearance of a violation of Article 3.”

72. This suffering of the foetus is nowadays scientifically proven, especially in the case of eugenic abortion, which is generally performed late in pregnancy, up to the time of delivery.

b. Late-term abortion is torture

73. In this case, the abortion was performed in the 17th week of pregnancy in the Netherlands. At this point, the child is 19 cm long and weighs about 200 g, and its organs are already well-formed. Scientific studies show that the foetus is sensitive to touch as early as 8 weeks and that it feels pain as early as the 14th week. A study published in 2020 in the Journal of Medical Ethics proves that the foetus can feel pain as early as the fourth month of pregnancy. Its lead author, Prof. Stuart Derbyshire, has worked as a consultant for Planned Parenthood and the Pro-choice forum in the United Kingdom. Another study, published in 2020 in Nature, confirms the ability of foetuses to feel pain, even in the absence of cerebral cortex, as long as the subcortical structures for pain perception are present.

74. In the Netherlands (as well as in the United Kingdom and Canada), the method used for abortion beyond 16 weeks is “dilation and evacuation.” This involves dilating the cervix and then removing the fetus’ limbs with pliers. If there was no prior injection to cause foeticide, or if the injection did not cause the death of the fetus, it means that the fetus was alive while it was being dismembered.

75. In other countries, delivery is initiated, and the contractions generally result in the death of the baby. However, some children do survive, and their number increases with gestational age. Being born alive after an abortion is not exceptional. This possibility is included in the list of diseases published by the WHO, in chapter XVI entitled Certain conditions originating in the perinatal period, item P96-4, Termination of pregnancy affecting fetus and newborn.

76. Foetal and even embryonic suffering in mammals is recognized in European law. Directive 2010/63/EU on the protection of animals used for scientific purposes66 recognizes that “scientific knowledge is available” that “foetal forms of mammals” have “the capacity … to sense and express pain, suffering, distress and lasting harm.” This justifies applying the protection of Directive 2010/63/EU to them from before birth. Thus, late-term abortion, performed on humans, would not be accepted if it were performed on animals.

INTRODUCTION

1.  The case concerns restrictions on abortion on the grounds of foetal abnormalities which were introduced by the Constitutional Court’s judgment of 22 October 2020. It raises issues under Articles 3 and 8 of the Convention.

THE FACTS

2.  The applicant was born in 1985 and lives in Warsaw. She was represented by Ms A. Bzdyń and Ms K. Ferenc, lawyers practising in Warsaw.

3.  The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.

4.  The facts of the case may be summarised as follows.

1. BACKGROUND TO THE CASE
   1. Election of judges in 2015

5.  The chronology of events relating to the election of the Constitutional Court judges in 2015 is set out in detail in the Court’s judgment in Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, §§ 4-63, 7 May 2021).

6.  On 1 December 2015 a group of members of parliament from the majority submitted a list of five candidates for judicial posts at the Constitutional Court. On 2 December 2015 the eighth-term Sejm adopted resolutions on the election of H. Cioch, L. Morawski, M. Muszyński, P. Pszczółkowski and J. Przyłębska as judges of the Constitutional Court. The resolutions on the appointment of those judges were published in the Official Gazette of the Republic of Poland on 2 December 2015.

7.  The President of the Republic received the oath from four of the judges on the night of 2-3 December, and from the fifth judge (J. Przyłębska) on 9 December 2015.

8.  Judge L. Morawski passed away in July 2017. On 15 September 2017 the Sejm elected J. Piskorski as a judge of Constitutional Court. Judge J. Piskorski was sworn in on 18 September 2017.

9.  Judge H. Cioch passed away in December 2017. On 26 January 2018 the Sejm adopted a resolution, electing J. Wyrembak as a judge of the Constitutional Court. Judge J. Wyrembak took an oath before the President of the Republic on 30 January 2018.

2. Constitutional Court case no. K 13/17

10.  On 22 June 2017 a group of 104 members of parliament lodged an application with the Constitutional Court to have the following provisions declared incompatible with the Constitution (case no. K 13/17) – sections 4a(1)(2) and 4a(2) of the Law on family planning, protection of the human foetus and conditions permitting the termination of pregnancy (Ustawa o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży – “the 1993 Act”; see also paragraph 26 below), which related to legal abortion on the grounds of foetal abnormalities.

11.  Among the signatories of the application was Ms K. Pawłowicz, a member of parliament at that time, who was subsequently elected to the office of judge of the Constitutional Court on 5 December 2019.

12.  In October 2019 parliamentary elections were held.

13.  On 21 July 2020 the Constitutional Court discontinued the proceedings on the grounds that the application had been lodged during the previous term of the Sejm.

3. Constitutional Court case no. K 1/20

14.  On 19 November 2019 a group of 118 members of parliament lodged a new application with the Constitutional Court to have sections 4a(1)(2) and 4a(2) (the first sentence of that provision) of the 1993 Act declared incompatible with the Constitution (case no. K 1/20).

15.  On 22 October 2020 the Constitutional Court, sitting in a plenary formation (thirteen judges), held by a majority of eleven votes to two that sections 4a(1)(2) and 4a(2) (the first sentence of that provision) of the 1993 Act were incompatible with the Constitution. The bench included Judge K. Pawłowicz (see paragraph 11 above) and Judges M. Muszyński, J. Wyrembak and J. Piskorski, and was presided over by Judge J. Przyłębska, the President of the Constitutional Court. Publication of the judgment in the Journal of Laws was postponed (see also paragraphs 30 and 39 below).

16.  On 27 January 2021 the Constitutional Court published the reasoning of its judgment of 22 October 2020. On the same date, the judgment was published in the Journal of Laws. The judgment took effect on the date of its publication.

4.  Street protests

17.  The Constitutional Court’s ruling prompted large mass street protests and demonstrations involving thousands of participants. The protests were organised by All‑Poland Women’s Strike, a women’s social rights movement in Poland.

2. THE CIRCUMSTANCES OF THE PRESENT CASE

18.  The applicant became pregnant in 2020. On 12 January and 20 January 2021, when she was fourteen and fifteen weeks pregnant respectively, the applicant underwent medical tests which determined that the child she was carrying had a genetic disorder, trisomy 21.

19.  On 25 January 2021 Dr L.K., a professor in medical genetics, gave an opinion and confirmed that the foetus had trisomy 21.

20.  On 26 January 2021 the applicant was examined by three medical practitioners from Bielański Hospital in Warsaw who stated that the foetus’s condition meant that the applicant qualified for an abortion under section 4a(1)(2) of the 1993 Act. The procedure was to be carried out in the same hospital, and the applicant obtained a referral for an appointment on 28 January 2021.

21.  However, on 27 January 2021 the Constitutional Court’s judgment of 22 October 2020 took effect (see paragraph 39 below), finding section 4a(1)(2) of the 1993 Act unconstitutional and repealing it.

22.  According to the applicant, on 28 January 2021, shortly after midnight, she sent a text message to her doctor, A.P., asking whether she should still come for her appointment on that day. The doctor replied that the applicant should wait until she had consulted the hospital management. Subsequently, the doctor informed the applicant that, given the amendments to the domestic law, she could not have an abortion in Bielański Hospital or in any other medical institution in Poland. In support of her submissions, the applicant provided copies of her telephone records, screen shots of text messages and a written statement from Dr A.P.

23.  Immediately afterwards, the applicant travelled to the Netherlands, where the pregnancy was terminated in a private clinic on 29 January 2021. The applicant was seventeen weeks pregnant on that date.

24.  The applicant submitted that her travel costs and medical fees relating to the treatment in the private clinic had amounted to 1,220 euros (EUR).

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. DOMESTIC LAW AND PRACTICE 
   1. Constitutional provisions

25.  The relevant provisions of the Constitution read as follows:

Chapter II

THE FREEDOMS, RIGHTS AND OBLIGATIONS OF PERSONS AND CITIZENS GENERAL PRINCIPLES

Article 30

“The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.”

Article 31

“...

3.  Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Chapter VIII. Courts and tribunals

Article 173

“The courts and tribunals shall constitute a separate power and shall be independent of other branches of power.”

Article 175 § 1

“The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.”

Article 188

“The Constitutional Court shall adjudicate on the following matters:

(1)  the conformity of statutes and international agreements with the Constitution;

(2)  the conformity of a statute with ratified international agreements whose ratification required prior consent granted by statute;

(3)  the conformity of legal provisions issued by central State organs with the Constitution, ratified international agreements and statutes;

(4)  the conformity of the purposes or activities of political parties with the Constitution;

(5) a constitutional complaint, as specified in Article 79 § 1.”

Article 190

“1.  Judgments of the Constitutional Court shall be universally binding and final.

2.  Judgments of the Constitutional Court regarding matters specified in Article 188 shall immediately be published in the official publication in which the original normative act was promulgated. ...

3.  A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for when the binding force of a normative act will end. Such a time-limit may not exceed eighteen months in relation to a statute, or twelve months in relation to any other normative act. ...

4.  A judgment of the Constitutional Court on a normative act’s non-conformity with the Constitution, an international agreement or a statute [a normative act], on the basis of which a final and enforceable judicial decision or a final administrative decision ... [has been] given, shall be a basis for reopening the proceedings or for quashing the decision ... in a manner specified in provisions applicable to the given proceedings, and on the basis of principles [specified in such provisions].

5.  ...”

Article 191

“1.  The following may make an application to the Constitutional Court regarding matters specified in Article 188:

(1)  the President of the Republic, the Speaker of the Sejm, the Speaker of the Senate, the Prime Minister, fifty members of parliament, thirty senators, the First President of the Supreme Court, the President of the Supreme Administrative Court, the Prosecutor General, the President of the Supreme Audit Office and the Commissioner for Human Rights,

(2)  the National Council of the Judiciary, to the extent specified in Article 186 § 2;

(3)  the constitutive organs of units of local government;

(4)  the national organs of trade unions, as well as the national authorities of employers’ organisations and occupational organisations;

(5)  churches and religious organisations;

(6)  the entities referred to in Article 79, to the extent specified therein.

2.  The [entities] referred to in points 3-5 of paragraph 1 above may make such an application if the normative act relates to matters relevant to the scope of their activity.”

Article 193

“Any court may refer to the Constitutional Court a question of law as to whether a normative act is in conformity with the Constitution, ratified international agreements or statutes, if the answer to such a question of law will determine an issue [pending] before such a court.”

Article 194

“1.  The Constitutional Court shall be composed of fifteen judges chosen individually by the Sejm for a term of office of nine years from amongst persons distinguished by their knowledge of the law. ...”

Article 195 § 1

“1.  Judges of the Constitutional Court, in the exercise of their office, shall be independent and subject only to the Constitution.”

2. Access to legal abortion
   1. The 1993 Act

26.  The Law of 7 January 1993 on family planning, protection of the human foetus and conditions permitting the termination of pregnancy (Ustawa o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży – “the 1993 Act”), sets out the conditions for access to legal abortion.

27.  Initially, the 1993 Act provided that legal abortion was possible until the twelfth week of pregnancy where the pregnancy endangered the mother’s life or health; prenatal tests or other medical findings indicated a high risk that the foetus would be severely and irreversibly damaged or suffering from an incurable life-threatening disease; or there were strong grounds for believing that the pregnancy was a result of rape or incest.

28.  On 4 January 1997 the 1993 Act was amended – in particular, section 4a was added, which provided, in so far as relevant, as follows:

“(1)  Abortion may be carried out only by a physician where

1.  pregnancy endangers the mother’s life or health;

2.  prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable life‑threatening disease;

3.  there are strong grounds for believing that the pregnancy is a result of a criminal act; [or]

4.  the pregnant woman is suffering material hardship or is in a difficult personal situation.”

29.  However, in December 1997 further amendments were made to the text of the 1993 Act, following a judgment of the Constitutional Court given on 28 May 1997 (case no. K 26/96). In that judgment, the Constitutional Court held that section 4a(1)(4) of the 1993 Act, legalising abortion on the grounds of material or personal hardship, was incompatible with the Constitution as it stood at that time. The court held, in particular, that this provision legalised termination of pregnancy without providing sufficient justification for the need to protect another value, right or constitutional freedom and used unspecified criteria, thus violating the constitutional guarantees for [the protection of] human life.

30.  On 22 October 2020 the Constitutional Court declared that section 4a(1)(2), allowing for legal abortion in the event of foetal abnormalities, was also incompatible with the Constitution (case no. K1/20). The judgment took effect on 27 January 2021 (see paragraph 39 below).

31.  Section 4a of the 1993 Act, as it stands at present, reads as follows, in so far as relevant:

“(1) Abortion may be carried out only by a physician where

1.  pregnancy endangers the mother’s life or health;

2. (ceased to have effect);

3.  there are strong grounds for believing that the pregnancy is a result of a criminal act;

4. (ceased to have effect).

(2)  In situations listed above under point 2 of subsection 1, abortion may be performed until such time as the foetus is capable of surviving outside the mother’s body; in situations listed under points 3 or 4 above, [abortion may be performed] until the end of the twelfth week of pregnancy.

(3)  In situations listed under points 1 and 2 of subsection 1 above, abortion shall be carried out by a physician working in a hospital.

...”

2. Legislative initiatives in 2015‑2022

32.  On 11 September 2015 a draft bill proposing to introduce a complete ban on abortion was rejected by the Sejm.

33.  On 3 October 2016 another bill proposing a ban on abortion in all situations except for when the mother’s life was threatened was rejected by the Sejm. The proposed law included prison terms for women who underwent an abortion and doctors who carried out the procedure.

34.  In 2017 a draft bill proposing amendments to the 1993 Act, signed by more than 100,000 people and prepared by a legislative committee called Stop Abortion (Zatrzymaj aborcje), was introduced in the Sejm. The amendment was to remove section 4a(1)(2) from the 1993 Act and effectively ban legal abortion in the event of foetal abnormalities. On 16 April 2020 the bill was referred to the Parliamentary Commission for Health and the Commission for Justice and Human Rights.

35.  On 23 October 2017 a draft bill signed by more than 100,000 people and prepared by a legislative committee called Save Women 2017 (Ratujmy kobiety 2017) was introduced in the Sejm. The bill, which proposed the liberalisation of abortion law, was rejected by the Sejm on 10 January 2018.

36.  On 30 October 2020 the President submitted to the Sejm a bill amending the 1993 Act. The amendment reintroduced the option to terminate a pregnancy owing to foetal abnormalities, although only in the case of “lethal” defects. On 3 November 2020 the bill was referred to the Parliamentary Commission for Health and the Commission for Justice and Human Rights.

37.  On 2 May 2022 a draft bill on the safe termination of pregnancy and other reproductive rights, signed by more than 100,000 people, was introduced in the Sejm. The bill, which proposed termination at a person’s request up to twelve weeks of pregnancy, was rejected by the Sejm on 23 June 2022.

3. Criminal offence of abortion performed in contravention of the 1993 Act

38.  The termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 of the Criminal Code. Anyone who terminates a pregnancy in violation of the 1993 Act or assists in such a termination may be sentenced to up to three years’ imprisonment. However, the pregnant woman herself does not incur any criminal liability for an abortion performed in contravention of the 1993 Act.

4. The Constitutional Court

Judgment of the Constitutional Court of 22 October 2020 in case no. K 1/20

39.  In a judgment of 22 October 2020 (case no. K 1/20), the Constitutional Court, sitting as a full bench composed of thirteen judges, held by a majority that section 4a(1)(2) of the 1993 Act was incompatible with Article 38 of the Constitution (the right to life) in conjunction with Article 30 (the right to dignity) and Article 31 § 3 (limitations on constitutional rights) (see paragraph 25 above). Two judges appended their dissenting opinions to the judgment, and three judges appended concurring opinions as to the reasoning of the judgment. The judgment took effect on the day of its publication, 27 January 2021.

40.  In its judgment, the Constitutional Court held in particular that human life had value at every stage of development, and as that value derived from provisions of the Constitution, it should be protected by legislation. The Court also stated that an unborn child, as a human being – a person with inherent and inalienable dignity – was a legal subject with a right to life, and the legal system had to guarantee this central interest (the right to life) proper protection, without which this legal personality would be erased. However, the constitutional and legal personality of the child in the period before birth did not mean that the child was fully entitled to the protection of all rights and freedoms guaranteed by the Constitution, since they were contingent on a specific level of psychophysical and social maturity.

41.  The Constitutional Court further noted that in a case where prenatal tests or other medical indications pointed to a high likelihood of severe and irreversible foetal impairment or an incurable life-threatening illness, and thus of the child’s interests possibly being sacrificed, the assessment of whether it was permissible to terminate a pregnancy required an indication of a corresponding interest on the part of other persons.

42.  The Constitutional Court concluded that section 4a(1)(2) of the 1993 Act did not support the assumption that a high probability of severe and irreversible foetal impairment or an incurable life-threatening disease constituted a basis for automatically presuming that a pregnant woman’s interests would be infringed, while solely indicating that a potential risk of such defects in a child was eugenic in nature. There was no reference in the provision to any measurable conditions relating to damage to the mother’s interests justifying termination of the pregnancy.

43.  Two of the dissenting judges, Judge L. Kieres and Judge P. Pszczółkowski, noted in particular that the Constitutional Court had taken over the role of a legislator. Judge L. Kieres argued that the proceedings before the Constitutional Court should have been discontinued owing to ongoing discussions in Parliament on the proposal by citizens to change abortion laws (see also paragraph 34 above). He also raised the question of the impartiality of two members of the bench (Judge K. Pawłowicz and Judge S. Piotrowicz, as regards their previous involvement as members of parliament). In his dissenting opinion, Judge P. Pszczółkowski pointed out in particular that the Constitutional Court had acknowledged only one side of the conflict, accepting only “the prospect of preserving life in the prenatal phase. At the same time, it [had] ignored the perspective of women whose dignity, life and health [were] undoubtedly values under constitutional protection. In the name of protecting life in the prenatal phase ..., the Constitutional Court [had] imposed on them an obligation [to adopt] a heroic attitude, that is, an obligation to assume responsibility in all circumstances for ... sacrifices and hardships far exceeding the usual measure of limitations related to pregnancy, childbirth and raising a child”.

5. The Law on patients’ rights

44.  Section 31 of the Law of 6 November 2008 on patients’ rights and the Patients’ Rights Ombudsman (ustawa o prawach pacjenta i Rzeczniku Praw Pacjenta – “the 2008 Act”) provides, in so far as relevant, as follows:

“1.  The patient or his or her statutory representative may raise an objection to an opinion or decision (orzeczenie) referred to in section 2(1) of the Law of 5 December 1996 on physicians and dentists, if the opinion or decision affects the patient’s rights or obligations under the law.

2.  The objection shall be submitted to the Medical Commission attached to the Patients’ Rights Ombudsman, through the Patients’ Rights Ombudsman, within thirty days from the date of issuance of the opinion or decision by the doctor who [has] evaluate[d] the patient’s condition.

3.  The objection shall require a justification, including an indication of the provision of law from which the rights or obligations referred to in subsection 1 derive.

4.  If the requirements set out in subsection 3 are not met, the objection shall be returned to the person who submitted it.

5.  The Medical Commission shall, on the basis of medical records and, where necessary, after examining the patient, issue a ruling without delay, but no later than within thirty days from the date on which the objection was lodged.

6.  The Medical Commission shall issue a ruling by an absolute majority of votes, in the presence of all its members.

7.  There shall be no appeal against the decision of the Medical Commission.

8.  The provisions of the Code of Administrative Procedure shall not apply to proceedings before the Medical Commission.

...”

6. The Civil Code

45.  Article 23 of the Civil Code contains a non-exhaustive list of so‑called “personal rights” (dobra osobiste) and states:

“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected under civil law, regardless of the protection laid down in other legal provisions.”

46.  Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. In accordance with that provision, a person whose rights are at risk of infringement by a third party may seek an injunction, unless the activity complained of is not unlawful. In the event of an infringement, the person concerned may, inter alia, require the party responsible for the infringement to take the necessary steps to eliminate the consequences of the infringement, for example, by making a relevant statement in an appropriate form, or ask the court to award an appropriate sum for the benefit of a specific public interest. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

2. RELEVANT INTERNATIONAL DOCUMENTS
   1. The United Nations
      1. The Human Rights Committee

(a)  Periodic report of Poland

47.  In its concluding observations on the seventh periodic report of Poland, adopted on 31 October 2016, the Human Rights Committee (“the Committee”) stated as follows:

“Constitutional and legal framework within which the Covenant is implemented.

7.  The Committee is concerned about the negative impact of legislative reforms, including the amendments of November and December 2015 and July 2016 to the law on the Constitutional Tribunal, and the fact that some judgments of the Constitutional Tribunal have been disregarded, on the functioning and independence of the Tribunal and on the implementation of the Covenant. The Committee is also concerned about the Prime Minister’s refusal to publish the Tribunal’s judgments of March and August 2016 in the Journal of Laws, about the efforts of the Government to change the composition of the Tribunal in ways that the Tribunal regards as unconstitutional, ...

8.  The State party should ensure respect for and protection of the integrity and independence of the Constitutional Tribunal and its judges, and ensure the implementation of all its judgments. The Committee urges the State party to officially publish all the judgments of the Tribunal immediately, to refrain from introducing measures that obstruct its effective functioning, and to ensure a transparent and impartial process for the appointment of its members and security of tenure that meets all the requirements of legality under domestic and international law.”

(b)  General Comment No. 36

48.  In its General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, 30 October 2018 (UN Doc. CCPR/C/GC/36), the Committee noted the following:

“8.  ... [R]estrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering which violates article 7 of the Covenant, discriminate against them or arbitrarily interfere with their privacy. States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or is not viable. In addition, States parties may not regulate pregnancy or abortion in all other cases in a manner that runs contrary to their duty to ensure that women and girls do not have to undertake unsafe abortions, and they should revise their abortion laws accordingly ...”

(c)  Mellet v. Ireland and Whelan v. Ireland

49.  In two cases examined by the Committee (Mellet v. Ireland, Communication no. CCPR/C/116/D/2324/2013, and Whelan v. Ireland, Communication no. CCPR/C/119/D/2425/2014), the Committee found that denying access to abortion care could constitute cruel, inhuman or degrading treatment.

50.  In its decision in Mellet v. Ireland, which concerned a woman who received a diagnosis that her foetus had congenital defects and would die in utero or shortly after birth, the Committee stated as follows (footnotes omitted):

“7.4.  The Committee considers that the fact that a particular conduct or action is legal under domestic law does not mean that it cannot infringe article 7 of the Covenant. By virtue of the existing legislative framework, the State party subjected the author to conditions of intense physical and mental suffering. The author, as a pregnant woman in a highly vulnerable position after learning that her much-wanted pregnancy was not viable, and as documented, inter alia, in the psychological reports submitted to the Committee, had her physical and mental anguish exacerbated by not being able to continue receiving medical care and health insurance coverage for her treatment from the Irish health-care system; the need to choose between continuing her non‑viable pregnancy or travelling to another country while carrying a dying foetus, at her personal expense and separated from the support of her family, and returning while not fully recovered; the shame and stigma associated with the criminalization of abortion of a fatally ill foetus; the fact of having to leave the baby’s remains behind and later having them unexpectedly delivered to her by courier; and the State party’s refusal to provide her with the necessary and appropriate post-abortion and bereavement care. Many of the negative experiences described that she went through could have been avoided if the author had not been prohibited from terminating her pregnancy in the familiar environment of her own country and under the care of the health professionals whom she knew and trusted, and if she had been afforded the health benefits she needed that were available in Ireland, were enjoyed by others, and could have been enjoyed by her, had she continued her non-viable pregnancy to deliver a stillborn child in Ireland.

...

7.7.  The author claims that by denying her the only option that would have respected her physical and psychological integrity and reproductive autonomy under the circumstances of the case (allowing her to terminate her pregnancy in Ireland), the State interfered arbitrarily in her right to privacy under article 17 of the Covenant. The Committee recalls its jurisprudence to the effect that a woman’s decision to request termination of pregnancy is an issue which falls under the scope of this provision. In the present case, the State party interfered with the author’s decision not to continue her non-viable pregnancy. The interference in this case was provided for under article 40.3.3 of the Constitution and therefore was not unlawful under the State party’s domestic law. However, the question before the Committee is whether such interference was unlawful or arbitrary under the Covenant. The State party argues that there was no arbitrariness, since the interference was proportionate to the legitimate aims of the Covenant, taking into account a carefully considered balance between protection of the foetus and the rights of the woman.

7.8.  The Committee considers that the balance that the State party has chosen to strike between protection of the foetus and the rights of the woman in the present case cannot be justified... The Committee notes that the author’s much-wanted pregnancy was not viable, that the options open to her were inevitably a source of intense suffering and that her travel abroad to terminate her pregnancy had significant negative consequences for her, as described above, that could have been avoided if she had been allowed to terminate her pregnancy in Ireland, resulting in harm contrary to article 7. On that basis, the Committee considers that the interference in the author’s decision as to how best cope with her non-viable pregnancy was unreasonable and arbitrary in violation of article 17 of the Covenant.”

51.  In its subsequent decision in Whelan v. Ireland, which concerned a woman who received a diagnosis that her foetus had a fatal condition and would in all likelihood die in utero or shortly after birth, the Committee stated as follows (footnotes omitted):

“7.3  The author claims that the legal prohibition of abortion caused her to suffer cruel, inhuman and degrading treatment, in that she was denied the health care and bereavement support she needed in Ireland; felt pressurized to carry to term a dying foetus; had to terminate her pregnancy abroad without emotional support from her family; and was subjected to intense stigma and loss of dignity. The State party contests the author’s claims by arguing, inter alia, that the prohibition on abortion seeks to balance the competing rights between the fetus and the woman; and that there were no arbitrary decision-making processes or acts of ‘infliction’ by any person or State agent that caused or contributed to cruel, inhuman or degrading treatment. The State party also maintains that its laws guarantee access to information about abortion services provided abroad and constitute part of the balance it struck between the competing rights.

7.4  The Committee recalls that the legality of a particular conduct or action under domestic law does not mean that it cannot infringe article 7 of the Covenant. The Committee notes that in the present case, the author’s claims appertain to her treatment in State health facilities, which was the direct result of the legislation in place in Ireland. The existence of such legislation engages the responsibility of the State party for the treatment of the author, and cannot be invoked to justify a failure to meet the requirements of article 7.

7.5  The Committee considers it well-established that the author was in a highly vulnerable position after learning that her much-wanted pregnancy was not viable. As documented in the psychological reports submitted to the Committee, her physical and mental situation was exacerbated by the following circumstances arising from the prevailing legislative framework in Ireland and by the author’s treatment by some of her health care providers in Ireland: being unable to continue receiving medical care and health insurance coverage for her treatment from the Irish health care system; feeling abandoned by the Irish health care system and having to gather information on her medical options alone; being forced to choose between continuing her non-viable pregnancy or traveling to another country while carrying a dying fetus, at personal expense and separated from the support of her family; suffering the shame and stigma associated with the criminalization of abortion of a fatally-ill fetus; having to leave the baby’s remains in a foreign country; and failing to receive necessary and appropriate bereavement counselling in Ireland. Much of the suffering the author endured could have been mitigated if she had been allowed to terminate her pregnancy in the familiar environment of her own country and under the care of health professionals whom she knew and trusted; and if she had received necessary health benefits that were available in Ireland, which she would have enjoyed had she continued her nonviable pregnancy to deliver a stillborn child in Ireland.”

2. The Committee on Economic, Social and Cultural Rights

52.  In its General Comment No. 22 (2016) on the right to sexual and reproductive health (Article 12 of the International Covenant on Economic, Social and Cultural Rights) (E/C.12/GC/22 (2 May 2016), the Committee on Economic, Social and Cultural Rights noted the following:

“5.  The right to sexual and reproductive health entails a set of freedoms and entitlements. The freedoms include the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive health. The entitlements include unhindered access to a whole range of health facilities, goods, services and information, which ensure all people full enjoyment of the right to sexual and reproductive health under article 12 of the Covenant.

...

10.  The right to sexual and reproductive health is also indivisible from and interdependent with other human rights. It is intimately linked to civil and political rights underpinning the physical and mental integrity of individuals and their autonomy, such as the rights to life; liberty and security of person; freedom from torture and other cruel, inhuman or degrading treatment; privacy and respect for family life; and non-discrimination and equality. For example, lack of emergency obstetric care services or denial of abortion often leads to maternal mortality and morbidity, which in turn constitutes a violation of the right to life or security, and in certain circumstances can amount to torture or cruel, inhuman or degrading treatment.

...

34.  States parties are under immediate obligation to eliminate discrimination against individuals and groups and to guarantee their equal right to sexual and reproductive health. This requires States to repeal or reform laws and policies that nullify or impair the ability of certain individuals and groups to realize their right to sexual and reproductive health. There exists a wide range of laws, policies and practices that undermine autonomy and right to equality and non-discrimination in the full enjoyment of the right to sexual and reproductive health, for example criminalization of abortion or restrictive abortion laws ...

...

38.  Retrogressive measures should be avoided and, if such measures are applied, the State party has the burden of proving their necessity. This applies equally in the context of sexual and reproductive health. Examples of retrogressive measures include the removal of sexual and reproductive health medications from national drug registries; laws or policies revoking public health funding for sexual and reproductive health services; imposition of barriers to information, goods and services relating to sexual and reproductive health; enacting laws criminalizing certain sexual and reproductive health conduct and decisions ...”

2. The Council of Europe
   1. The Committee of Ministers

53.  The Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) entitled “Judges: independence, efficiency and responsibilities” provides, in so far as relevant:

“Chapter I – General aspects

Scope of the recommendation

1.  This recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional matters.

...

Judicial independence and the level at which it should be safeguarded

3.  The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence.

4.  The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.

...

Chapter VI - Status of the judge

Selection and career

44.  Decisions concerning the selection and career of judges should be based on objective criteria pre‑established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.

...

46.  The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.

47.  However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.”

2.  The Venice Commission

54.  The relevant documents issued by the Venice Commission relating to the election of the Constitutional Court judges are described in detail in the Court’s judgment in Xero Flor w Polsce sp. z o.o. (cited above §§ 123‑24).

55.  The relevant extracts from the Rule of Law Checklist (CDL‑AD(2016)007), adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016)[1], read as follows:

“44.  State action must be in accordance with and authorised by law. ... [footnote omitted].

45.  A basic requirement of the Rule of Law is that the powers of the public authorities are defined by law. In so far as legality addresses the actions of public officials, it also requires that they have authorisation to act and that they subsequently act within the limits of the powers that have been conferred upon them, and consequently respect both procedural and substantive law [footnote omitted].

...

74.  The judiciary should be independent. Independence means that the judiciary is free from external pressure, and is not subject to political influence or manipulation, in particular by the executive branch. This requirement is an integral part of the fundamental democratic principle of the separation of powers. Judges should not be subject to political influence or manipulation.

...

107.  Judicial decisions are essential to the implementation of the Constitution and of legislation. The right to a fair trial and the Rule of Law in general would be devoid of any substance if judicial decisions were not executed.

...

110.  The right to a fair trial imposes the implementation of all courts’ decisions, including those of the constitutional jurisdiction. The mere cancellation of legislation violating the Constitution is not sufficient to eliminate every effect of a violation, and would at any rate be impossible in cases of unconstitutional legislative omission.

111.  This is why this document underlines the importance of Parliament adopting legislation in line with the decision of the Constitutional Court or equivalent body [footnote omitted] ...”

3. The Council of Europe Commissioner for Human Rights

56.  The Council of Europe Commissioner for Human Rights, Mr Nils Muižnieks, carried out a visit to Poland from 9 to 12 February 2016. The report from his visit, published on 15 June 2016, reads as follows, in so far as relevant:

“43.  The Commissioner is seriously concerned at the current paralysis of the Constitutional Tribunal which bears heavy consequences for the human rights of all Polish citizens. He calls on the Polish authorities to urgently find a way out of the current deadlock following the Opinion of the Venice Commission. As already stated by the latter institution, the rule of law requires that any such solution be based on respect and full implementation of the judgments of the Tribunal. As the Commissioner stated at the end of his visit, there can be no real human rights protection without mechanisms guaranteeing the rule of law, in particular by ensuring checks and balances among the different state powers. The Commissioner is particularly concerned that proceedings regarding the compliance of statutes and decisions with human rights obligations and standards in Poland might be left in limbo for an undetermined period.”

57.  The Council of Europe Commissioner for Human Rights, Ms Dunja Mijatović, carried out a subsequent visit to Poland from 11 to 15 March 2019. In her report following the visit, published on 28 June 2019, as regards the Constitutional Court, she stated as follows:

“10.  The Constitutional Tribunal has a fundamental role as the main control mechanism allowing for a review of the compliance of legislation with the Polish Constitution and Poland’s international human rights obligations. The Commissioner deeply regrets that despite the recommendations by her predecessor, the Venice Commission, and other international and domestic actors mandated to foster the observance of international standards in the area of judicial independence, the Polish authorities have not yet found a solution to the prolonged deadlock affecting the functioning of this essential institution. In the Commissioner’s view, the independence and credibility of the Constitutional Tribunal have been seriously compromised. In particular, the Commissioner regrets the persisting controversy surrounding the election and the status of the Tribunal’s new President and several of its new judges. She urges the Polish authorities to take urgent steps to resolve the deadlock regarding the composition and functioning of the Constitutional Tribunal, in line with the recommendations of the Venice Commission’s opinions adopted in March and October 2016. This should include recognition of the legitimacy of the election of the three judges in October 2015 by the previous Sejm and their swearing into office, and re-establishing dialogue and cooperation between the Constitutional Tribunal and other constitutional bodies, including the Supreme Court and the Ombudsman.”

58.  The report includes also the following observations relating to women’s sexual and reproductive rights and access to abortion:

“84.  Inaction or delay in accessing abortion care may in some cases create a very real and grave risk to women’s life and health. The Commissioner was concerned to learn that so many Polish women, whose number may reach tens of thousands per year according to some estimates, resort to clandestine abortions or travel abroad to obtain assistance in pregnancy termination and related care, or to access modern contraceptives. She was also concerned that there are areas in Poland where abortion care is either completely unavailable or very seriously limited due to refusals of care by health care professionals on the grounds of conscience. The Commissioner considers that women and girls who have the legal right to abortion should not be hindered in any way in obtaining such services and care in their own country.

85.  The Commissioner therefore encourages the authorities to urgently adopt the necessary legislation to ensure the accessibility and availability of legal abortion services in practice. The exercise of freedom of conscience by health professionals must not jeopardise women’s timely access to sexual and reproductive health care to which they are entitled, as required by the case-law of the European Court of Human Rights ...

86.  The Commissioner was concerned by the repeated and ongoing attempts to further restrict Poland’s already very restrictive legislation governing access to abortion. ...

87.  The Commissioner takes note of the shifting general attitudes to the question of abortion and the increasing public support for a woman’s right to terminate pregnancy for up to 12 weeks, as evidenced be recent opinion polls. Drawing on the recommendations of the 2017 ‘Issue Paper on women’s sexual and reproductive health and rights in Europe’, she invites Poland to consider guaranteeing access to safe and legal abortion care by ensuring that abortion is legal on a woman’s request in early pregnancy, and thereafter throughout pregnancy to protect women’s health and lives and ensure freedom from ill‑treatment.”

4. The Parliamentary Assembly of the Council of Europe

59.  The Parliamentary Assembly, in its resolution of 11 October 2017 on new threats to the rule of law in Council of Europe member States (Resolution 2188 (2017)), expressed concerns about developments in Poland which put respect for the rule of law at risk, and in particular the independence of the judiciary and the principle of the separation of powers. It called on the Polish authorities to, inter alia, fully cooperate with the Venice Commission and implement its recommendations, especially those with respect to the composition and functioning of the Constitutional Court.

60.  On 28 January 2020 the Parliamentary Assembly decided to open its monitoring procedure in respect of Poland. Out of those States belonging to the European Union, Poland is the only member State of the Council of Europe which is currently undergoing that procedure. In its resolution of the same date entitled “The functioning of democratic institutions in Poland”, the Assembly stated:

“6.  The constitutional crisis that ensued over the composition of the Constitutional Court remains of concern and should be resolved. No democratic government that respects the rule of law can selectively ignore court decisions it does not like, especially those of the Constitutional Court. The full and unconditional implementation of all Constitutional Court decisions by the authorities, including with regard to the composition of the Constitutional Court itself, should be the cornerstone of the resolution of the crisis. The restoration of the legality of the composition of the Constitutional Court, in line with European standards, is essential and should be a priority. The Assembly is especially concerned about the potential impact of the Constitutional Court’s apparently illegal composition on Poland’s obligations under the European Convention on Human Rights.”

61.  On 26 January 2021 the Parliamentary Assembly adopted a resolution entitled “Judges in Poland and in the Republic of Moldova must remain independent” (2359 (2021)). The Assembly, referring to the concerns expressed in Resolution 2316 (2020), noted “the ‘constitutional crisis’ has not been resolved and the Constitutional Tribunal seems to be firmly under the control of the ruling authorities, preventing it from being an impartial and independent arbiter of constitutionality and the rule of law”. The Assembly further called on the Polish authorities to, inter alia, “review the changes made to the functioning of the Constitutional Tribunal and the ordinary justice system in the light of Council of Europe standards relating to the rule of law, democracy and human rights”.

3. European Union law
   1. Treaty on European Union

62.  Article 2 of the Treaty on European Union (TEU) provides:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are ordinary to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

63.  Article 19 § 1 of the TEU reads as follows:

“1.  The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

2. The European Commission

(a)  Initiation of the rule of law framework

64.  On 13 January 2016 the European Commission (“the Commission”) decided to examine the situation in Poland under the rule of law framework. The exchanges between the Commission and the Polish Government were unable to resolve the concerns of the Commission. The rule of law framework provided guidance for a dialogue between the Commission and the member State concerned to prevent the escalation of systemic threats to the rule of law.

65.  On 27 July and 21 December 2016 the Commission adopted two recommendations regarding the rule of law in Poland, concentrating on issues pertaining to the Constitutional Court. In particular, the Commission found that there was a systemic threat to the rule of law in Poland, and recommended that the Polish authorities take appropriate action to address this threat as a matter of urgency. The Commission recommended, inter alia, that the Polish authorities: (a) implement fully the judgments of the Constitutional Court of 3 and 9 December 2015 which required that the three judges who had been lawfully nominated in October 2015 by the previous legislature be permitted to take up their judicial duties as judges of the Constitutional Court, and that the three judges nominated by the new legislature in the absence of a valid legal basis not be permitted to take up their judicial duties without being validly elected; and (b) publish and implement fully the judgments of the Constitutional Court of 9 March 2016, and ensure that the publication of future judgments was automatic and did not depend on any decision of the executive or legislative powers.

(b)  Rule of Law Recommendation (EU) 2017/1520 (third recommendation)

66.  On 26 July 2017 the Commission adopted a third Recommendation regarding the Rule of Law in Poland, which complemented two earlier recommendations it had made. The concerns of the Commission related to the lack of an independent and legitimate constitutional review, and the new legislation relating to the Polish judiciary, which would structurally undermine the independence of the judiciary in Poland and have an immediate and concrete impact on the independent functioning of the judiciary as a whole. In its third recommendation, the Commission considered that the situation whereby there was a systemic threat to the rule of law in Poland, as presented in its two earlier recommendations, had seriously deteriorated. The Commission reiterated that, notwithstanding the fact that there was a diversity of justice systems in Europe, ordinary European standards had been established on safeguarding judicial independence. The Commission observed – with great concern – that following the entry into force of the new laws referred to above, the Polish judicial system would no longer be compatible with European standards in this regard.

(c)  Rule of Law Recommendation (EU) 2018/103 (fourth recommendation)

67.  On 20 December 2017 the Commission adopted a fourth Recommendation regarding the Rule of Law in Poland, finding that the concerns raised in earlier recommendations had not been addressed and the situation of systemic threat to the rule of law had seriously deteriorated further. In particular, it stated that “the new laws raised serious concerns as regards their compatibility with the Polish Constitution as underlined by a number of opinions, in particular from the Supreme Court, the National Council of the Judiciary and the Polish Commissioner for Human Rights”. However, as explained in the third recommendation adopted on 26 July 2017, an effective constitutional review of these laws was no longer possible.

(d)  European Commission v. Republic of Poland (Case C-448/23)

68.  On 17 July 2023 the Commission brought proceedings before the Court of Justice of the European Union (CJEU) against Poland for failing to fulfil its obligations under the second subparagraph of Article 19(1) TEU on account of the Constitutional Court’s interpretation in its judgments of 14 July 2021 (case P 7/20) and of 7 October 2021 (case K 3/21), seeking a declaration that Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) and the general principles of autonomy, primacy, effectiveness and uniform application of EU law and the principle of the binding effect of judgments of the CJEU. Its action was formulated as follows:

“Form of order sought

The applicant claims that the Court should:

declare that, in the light of the interpretation of the Constitution of the Republic of Poland made by the Trybunał Konstytucyjny (Constitutional Court, Poland) in its judgments of 14 July (Case P 7/20) and of 7 October 2021 (Case K 3/21), the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) of the Treaty on European Union;

declare that, in the light of the interpretation of the Constitution of the Republic of Poland made by the Trybunał Konstytucyjny (Constitutional Court) in its judgments of 14 July (Case P 7/20) and of 7 October 2021 (Case K 3/21), the Republic of Poland has failed to fulfil its obligations under the general principles of autonomy, primacy, effectiveness and uniform application of EU law and the principle of the binding effect of judgments of the Court of Justice;

declare that, since the Trybunał Konstytucyjny (Constitutional Court) does not satisfy the requirements of an independent and impartial tribunal previously established by law as a result of irregularities in the procedures for the appointment of three judges to that court in December 2015 and in the procedure for the appointment of its President in December 2016, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

By the first and second pleas in law, the Commission challenges two judgments of the Trybunał Konstytucyjny (Constitutional Court) of the Republic of Poland (‘the Constitutional Court’) of 7 October 2021 (Case K 3/21) and of 14 July 2021 (Case P 7/20). Those judicial decisions result in an infringement of different, but not unrelated obligations imposed on Poland by the EU treaties. The first plea concerns the infringement by the aforementioned judgments of the Constitutional Court of the second subparagraph of Article 19(1) TEU, as interpreted by the Court of Justice of the European Union, in particular in the judgments of 2 March 2021, A.B. and Others (Appointment of Judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C-487/19, EU:C:2021:798, because the Constitutional Court interpreted the Constitution of the Republic of Poland in relation to the EU law requirements of effective judicial protection by an independent and impartial tribunal previously established by law too narrowly, incorrectly, and in a manner that manifestly disregards the case-law of the Court of Justice of the European Union. The second plea concerns the infringement by those judgments of the Constitutional Court of the principles of primacy, autonomy, effectiveness and uniform application of EU law and the binding effect of judicial decisions of the Court of Justice of the European Union, as the Constitutional Court, in those judgments, unilaterally disregarded the principles of primacy and effectiveness of Articles 2, 4(3) and 19(1) TEU and Article 279 TFEU, as consistently interpreted and applied by the Court of Justice of the European Union, and ordered all Polish authorities to disapply those Treaty provisions.

By the third plea, the Commission argues that the Constitutional Court no longer offers the guarantees of an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, (i) as a result of manifest irregularities in the appointments to judicial positions at the Constitutional Court in December 2015 in flagrant breach of Polish constitutional law and (ii) as a result of irregularities in the procedure for the election of the President of the Constitutional Court in December 2016. Each of those irregularities gives rise, in the light of the activities of the Constitutional Court composed of persons appointed in this way, to reasonable doubts in the minds of individuals as to the impartiality of the Constitutional Court and its imperviousness to external factors.”

3. The European Parliament

(a)  The 2017 Resolution

69.  On 15 November 2017 the European Parliament adopted a resolution on the situation of the rule of law and democracy in Poland (2017/2931(RSP)). The resolution reiterated that the independence of the judiciary was enshrined in Article 47 of the Charter and Article 6 of the Convention, and was an essential requirement of the democratic principle of the separation of powers, which was also reflected in Article 10 of the Polish Constitution. It expressed deep concern at the redrafted legislation relating to the Polish judiciary, in particular its potential to structurally undermine judicial independence and weaken the rule of law in Poland. The Polish Parliament and the Government were urged to implement fully all recommendations of the Commission and the Venice Commission, and to refrain from conducting any reform which would put at risk respect for the rule of law, and in particular the independence of the judiciary. In this regard, the European Parliament called for the enactment of any laws to be postponed until a proper assessment had been made by the Commission and the Venice Commission.

(b)  The 2020 Resolution

70.  On 26 November 2020, the European Parliament adopted a resolution on the de facto ban on the right to abortion in Poland (2020/2876(RSP)). In particular, the resolution condemned the Constitutional Court’s ruling and the setback to women’s sexual and reproductive rights in Poland, and affirmed that the ruling put women’s health and lives at risk. It noted that restricting or banning the right to abortion by no means eliminated abortion, but merely pushed it underground. It further strongly urged the Polish Parliament and authorities to refrain from any further attempts to restrict women’s sexual and reproductive rights, and affirmed that the denial of such rights was a form of gender‑based violence. Lastly, it was deeply concerned that thousands of women had to travel to access a health service as essential as abortion, and emphasised that cross-border abortion services were not a viable option for the most vulnerable and marginalised people.

(c)  The 2021 Resolution

71.  On 11 November 2021 the European Parliament adopted a resolution on the first anniversary of the de facto abortion ban in Poland (2021/2925(RSP)). In particular, it reiterated its strong condemnation of the Constitutional Court’s ruling of 22 October 2020 and called on the Polish Government to swiftly and fully guarantee access to and the provision of abortion services. It further reiterated that women’s rights were fundamental human rights, and that the EU institutions and the member States were legally obliged to uphold and protect them in accordance with the EU treaties and the Charter of Fundamental Rights of the European Union, as well as international law. Lastly, it called on the Council to address this matter and other allegations of violations of fundamental rights in Poland by expanding the scope of its hearings on the situation in Poland, in accordance with Article 7(1) of the TEU.

4. Case-law of the Court of Justice of the European Union

72.  The High Court of Cassation and Justice in Romania made five requests for a preliminary ruling under Article 267 of the TEU. On 21 December 2021 the CJEU gave the following ruling (in Joined Cases C-357/19, C379/19, C-547/19, C-811/19 and C-840/19 NC), the relevant parts of which read:

“229.  Although neither Article 2 TEU nor the second subparagraph of Article 19(1) TEU, nor any other provision of EU law, requires Member States to adopt a particular constitutional model governing the relationship and interaction between the various branches of the State, in particular as regards the definition and delimitation of their competences, Member States must nonetheless comply, inter alia, with the requirements of judicial independence stemming from those provisions of EU law (see, by reference to the case-law of the European Court of Human Rights on Article 6 ECHR, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 130).

230.  In those circumstances, Article 2 TEU, the second subparagraph of Article 19(1) TEU and Decision 2006/928 do not preclude national rules or a national practice under which the decisions of the constitutional court are binding on the ordinary courts, provided that the national law guarantees the independence of that constitutional court in relation, in particular, to the legislature and the executive, as required by those provisions. However, if the national law does not guarantee such independence, those provisions of EU law preclude such national rules or such a national practice since such a constitutional court is not in a position to ensure the effective judicial protection required by the second subparagraph of Article 19(1) TEU.”

THE LAW

1. SCOPE OF THE CASE AND COMPLAINTS

73.  The Court finds it necessary to clarify the scope of the case, together with the provisions under which the complaints are to be examined. The applicant firstly claimed that she had been a victim of a breach of Article 3 of the Convention, as the Constitutional Court’s judgment had deprived her of the opportunity to terminate her pregnancy on the grounds of foetal defects. Secondly, she alleged that there had been a breach of Article 8 of the Convention. She submitted that as a direct consequence of the Constitutional Court’s judgment, she had been under an obligation to maintain her pregnancy and give birth to a seriously ill child. She had not been able to have an abortion on the grounds of foetal defects, and had had to travel abroad to have a termination. Thirdly, invoking Articles 6 and 8 of the Convention, the applicant specifically alleged that the restriction had not been “prescribed by law”: (i) the composition of the Constitutional Court had been incorrect and in breach of the Constitution, since Judges J. Piskorski, M. Muszyński and J. Wyrembak, assigned to the bench, had been elected by the Sejm to judicial posts which had already been filled; (ii) the appointment of Judge J. Przyłębska, the President of Constitutional Court, who had presided over the present case, was also open to challenge; and (iii) Judge K. Pawłowicz, who had sat in the case, had not been impartial, since she had previously been a member of parliament in favour of restricting abortion laws in Poland.

74.  In the Court’s view, the applicant’s complaints must be examined solely under Articles 3 and 8 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018).

2. ADMISSIBILITY

75.  The Government made several preliminary objections as to the admissibility of the application. They argued that it was incompatible ratione materiae and ratione personae with the provisions of the Convention. They further submitted that the applicant had not complied with the rule of exhaustion of domestic remedies. Lastly, they stressed that the applicant had abused the right of petition.

1. Applicability of Articles 3 and 8

76.  The Court finds that the Government’s objection relating to incompatibility ratione materiae should be examined separately as regards the complaints under Articles 3 and 8.

1. Article 3

(a)  The parties

(i)     The Government

77.  The Government maintained that the facts of the present case did not disclose a level of severity sufficient to fall within the scope of Article 3 of the Convention. In their view, the case should be distinguished from R.R. v. Poland (no. 27617/04, §§ 159-160, ECHR 2011 (extracts)), in which the Court found that the applicant’s suffering, caused by the doctors’ intentional failure to provide timely prenatal examination that would have allowed her to take a decision as to whether to continue or terminate her pregnancy, had reached the minimum threshold of severity under Article 3 of the Convention. They noted that in the present case there had been no procrastination, undue delay or confusion in the applicant’s diagnosis and treatment, and she had not been treated in a humiliating manner.

78.  The Government admitted that a situation where a woman discovered that her unborn child had severe defects was extremely difficult. A diagnosis confirming foetal abnormalities must have a significant emotional effect on any woman and her family. However, while such a critical diagnosis caused distress, subsequent events, including a woman’s inability to terminate the pregnancy, should not be analysed in isolation. It was thus impossible to separate different facts which affected a woman’s emotional state in such a complex and distressing situation.

79.  For the above reasons, the Government submitted that the applicant had not been subjected to inhuman and degrading treatment in breach of Article 3 of the Convention.

(ii)   The applicant

80.  The applicant argued that the restrictions introduced by the Constitutional Court had caused her direct harm. She referred to the fact that her hospital appointment had been cancelled at the last minute and that she had been forced to travel abroad for an abortion. This had caused her serious and real emotional suffering. She stressed that the fear and anguish she had felt at that time had been unimaginable.

81.  The applicant referred to the Human Rights Committee’s decisions in Mellet v. Ireland and Whelan v. Ireland (see paragraphs 49-51 above), in which the Committee had stated that by prohibiting and criminalising abortion, the State in question had subjected the applicants to severe emotional and mental pain and suffering. She submitted that her situation was similar to that of the applicants in those cases, and that there had been a breach of Article 3 of the Convention.

(b)  The Court’s assessment

82.  The Court reiterates its case-law to the effect that ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015).

83.  The Court takes note of the views expressed by the Human Rights Committee in two decisions concerning fatal foetal abnormalities (see paragraphs 49-51 above), in which the Committee found that criminalising access to abortion in situations of fatal foetal abnormality constituted a breach of Article 7 of the International Covenant on Civil and Political Rights (the right to be free from torture and cruel, inhuman or degrading treatment or punishment). It further notes that the Committee recognised the financial, social and health-related burdens and hardships that were placed on women when laws forced them to choose between continuing a non‑viable pregnancy and travelling to another country to access abortion care.

84.  The Court accepts that in the present case, travelling abroad for an abortion was psychologically arduous. However, notwithstanding the fact that the applicant suffered emotional and mental pain, in the particular circumstances of the case, the Court considers that the facts alleged do not disclose a level of severity falling within the scope of Article 3 of the Convention (compare Tysiąc v. Poland, no. 5410/03, § 66, ECHR 2007 I, and A, B and C v. Ireland [GC], no. 25579/05, § 164, ECHR 2010).

85.  The Court therefore has no sufficient basis to conclude that the applicant’s treatment was such as to reach the threshold of Article 3 of the Convention, and accordingly it upholds the Government’s objection.

2. Article 8

(a)  The parties

(i)     The Government

86.  The Government submitted that the applicant’s complaint under Article 8 was incompatible ratione materiae with the provisions of the Convention. In that regard, they referred to the Court’s case‑law on the question of the beginning of life and protection of a foetus (see X. v. the United Kingdom, no. 8416/79, Commission decision of 13 May 1980, DR 19, p. 244; H. v. Norway no. 17004/90, Commission decision of 19 May 1992, DR 73, p. 155; Boso v. Italy, no. 50490/99, ECHR 2002-VII; Vo v. France [GC], no. 53924/00, ECHR 2004‑VIII; and A, B and C v. Ireland, cited above, § 222).

87.  They stated that the Court had already made it clear that Article 8 could not be interpreted as conferring a right to abortion, and the Convention did not guarantee a right to specific medical services as such. In their view, the gist of the present case was not a breach of existing provisions of the Convention, but the applicant’s request to be granted a right to terminate a pregnancy. They also noted that no instrument of international law to which Poland was party explicitly provided for a right to abortion. Furthermore, States might limit the right to terminate a pregnancy to exceptional cases, in view of the profound moral views of a given society and its wish to accord protection to the right to life of an unborn child. For all the above reasons, the decision to protect the right to life of unborn children under Polish law and the decision to determine the scope of exceptions to this principle were sovereign decisions within the remit of the Polish lawmaker.

88.  Since the Convention did not grant a right to terminate a pregnancy or a right to specific medical services, and since none of its provisions could be interpreted as conferring such rights, a State could not be precluded from shaping its domestic regulations on reproductive healthcare services and access to abortion in line with its moral view enshrining the need to protect the life of an unborn child, also taking into account the broad margin of appreciation which States had in this area. Consequently, the Government were of the view that Article 8 of the Convention was not applicable.

(ii)   The applicant

89.  The applicant argued that the crux of the case was not the right to terminate a pregnancy as such, since under the 1993 Act, this right existed in Poland, but the fact that as a direct consequence of the Constitutional Court’s judgment, she could not access an abortion on the grounds of foetal abnormalities.

90.  She further stated, referring to the Court’s case-law, that the prohibition of abortion, when abortion was sought for reasons of health and/or well‑being, fell within the scope of the right to respect for one’s private life under Article 8 of the Convention. She argued that she had initially been allowed to terminate the pregnancy, in accordance with the exception provided by section 4a(1)(2) of the 1993 Act. However, after the Constitutional Court’s judgment had taken effect, that exception had been removed from the 1993 Act, and no doctor could perform an abortion without risking criminal charges. In her view, as the panel of the Constitutional Court had been composed in breach of the Constitution, its decision could not legally change the 1993 Act. Nevertheless, she had been deprived of her right to respect for her private life and the right to decide about her pregnancy.

(b)  The Court’s assessment

91.  The Court notes that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to personal autonomy and personal development (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). It concerns subjects such as gender identification, sexual orientation and sexual life (see, for example, Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports 1997-I), a person’s physical and psychological integrity (see Tysiąc, cited above, § 107), as well as decisions to have or not have a child or to become genetic parents (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-I).

92.  The Court observes that the applicant was informed that the child she was carrying had a genetic disorder - trisomy 21. Up until 27 January 2021 she could have had a legal abortion on those grounds. However, after the Constitutional Court’s judgment took effect, this was no longer possible. Since the applicant did not wish to give birth to a child with genetic disorder, she was forced to travel abroad to terminate the pregnancy.

93.  The Court notes that it has previously found that legislation regulating the termination of pregnancy touches upon the sphere of a woman’s private life, since whenever a woman is pregnant, her private life becomes closely connected with the developing foetus. A woman’s right to respect for her private life should be weighed against other competing rights and freedoms invoked, including those of the unborn child (see Tysiąc, § 106; Vo, §§ 76, 80 and 82; and A, B and C v. Ireland, § 213, all cited above).

94.  In view of the above, while Article 8 cannot be interpreted as conferring a right to abortion, the Court finds that the prohibition of abortion in Poland on the grounds of foetal malformation, where abortion is sought for reasons of health and well-being (the prohibition about which the applicant complained, see paragraphs 90 above and 100 below), comes within the scope of the applicant’s right to respect for her private life, and accordingly Article 8 applies in the present case (see A, B and C v. Ireland, cited above, § 214).

95.  Accordingly, the Government’s objection, in so far as it concerns the applicability of Article 8, must be dismissed.

2. Alleged lack of victim status
   1.  The parties

(a)  The Government

96.  The Government argued that the applicant could not be considered a “victim” for the purposes of Article 34 of the Convention. They stated that she had failed to provide evidence that she had been refused medical care in relation to her pregnancy in Poland. Instead, the applicant’s complaints should be seen as a request for permission to undergo a specific medical procedure and have it financed from public funds. Moreover, in her application, the applicant had focused on the composition of the Constitutional Court rather than the description of her medical case. In the Government’s view, the applicant had aimed to ask the Court to review, in abstracto, the relevant law and practice concerning the termination of pregnancy, and to contribute to the political debate relating to reproductive rights and access to abortion.

(b)  The applicant

97.  The applicant submitted that there was no doubt that her situation, namely the fact that she had had to travel to the Netherlands to have an abortion on the grounds of foetal malformation, had been caused by the delivery of the Constitutional Court’s judgment and its taking effect. She referred to her pain and suffering, and relied on the diagnosis of foetal malformation, the doctors’ decision that she qualified for a legal abortion, and documents confirming that she had travelled abroad in order to legally have an abortion as she could not do this in Poland. She further stressed that she had had to modify her conduct, change her plans and travel outside of Poland in order to avoid any medical practitioners, who might have decided to terminate the pregnancy in Poland, possibly being prosecuted. She submitted that she had been directly affected by the restrictions in question.

2. The Court’s assessment

98.  The Court reiterates that Article 34 of the Convention does not allow complaints in abstracto alleging a violation of the Convention. The Convention does not provide for the institution of an actio popularis (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014), meaning that applicants may not complain about a provision of domestic law, a domestic practice or public acts simply because they appear to contravene the Convention. However, an individual may nevertheless argue that a law breaches his or her rights in the absence of a specific instance of enforcement, and thus claim to be a “victim”, within the meaning of Article 34, if he or she is required either to modify his or her conduct or risk being prosecuted, or if he or she is a member of a category of persons who risk being directly affected by the legislation (see, in particular, S.A.S. v. France [GC], no. 43835/11, §§ 57 and 110, ECHR 2014 (extracts), and the references cited therein, and A.M. and Others v. Poland (dec.), no. 4188/21, § 72, 16 May 2023).

99.  The Court observes that the applicant in the instant case, like the applicants in A.M. and Others (cited above), complained about the interference with her private life caused by the Constitutional Court’s judgment of 22 October 2020. However, the applicants in A.M. and Others complained of a risk of a future violation, and the Court concluded that they had failed to put forward any convincing evidence that they were at real risk of being directly affected by the amendments introduced by the Constitutional Court’s judgment (ibid., § 86). Conversely, in the present case, the applicant maintained that she had been directly affected by the changes to the legislative framework, since she had had to modify her conduct in the most intimate sphere of her personal life (see paragraph 97 above).

100.  Despite arguing that the applicant could not be considered a “victim” for the purposes of Article 34, the Government did not dispute the core factual submission that she had travelled abroad for an abortion. Regarding her reasons for doing so, the Court observes that the applicant underwent the relevant clinical tests which determined that the foetus she was carrying had trisomy 21. She qualified for a legal abortion and a hospital appointment was scheduled. However, just before her appointment, the Constitutional Court’s judgment took effect, making it impossible to have an abortion on the grounds of foetal abnormalities (see paragraphs 20 and 21 above). It can be thus concluded that the applicant travelled abroad for an abortion for reasons of health and well‑being (compare A, B and C v. Ireland, cited above § 125).

101.  The Court accepts the applicant’s argument that this caused her pain and suffering and had a significant psychological impact on her. Undoubtedly, obtaining an abortion abroad, away from the support of her family, rather than undergoing the procedure in the security of her home country, constituted a significant source of added anxiety (compare A, B and C v. Ireland, cited above § 126).

102.  As regards the financial burden of travelling abroad, the applicant, who travelled at her own expense, submitted that her transport costs and medical fees had amounted to EUR 1,220 (see paragraph 24 above). The Court observes that these costs could have constituted a considerable expense for the applicant.

103.  On the whole, the Court is of the view that many of the negative experiences described by the applicant could have been avoided if she had been allowed to terminate her pregnancy in the security of her home country.

104.  Given the above considerations, the Court finds that the applicant was not a potential victim but was “directly affected” by the legislative change in question (see A, B and C v. Ireland, cited above, §§123‑24).

105.  The Government’s objection must therefore be dismissed.

3. Non-exhaustion of domestic remedies
   1. The parties

(a)  The Government

106.  The Government argued that the applicant had failed to exhaust domestic remedies. In particular, they pointed out that a complaint under section 31 of the 2008 Act (see paragraph 44 above) might be used by women who had been refused lawful terminations of pregnancy and those who had been refused prenatal examinations.

107.  They further noted, in general terms, that the domestic law provided for various types of civil, criminal and disciplinary proceedings against medical practitioners. Moreover, the right to family planning and the right to lawful termination of pregnancy were considered personal rights within the meaning of Articles 23 and 24 of the Civil Code (see paragraphs 45, 46 above). Consequently, the applicant could have had recourse to civil compensatory remedies under Articles 23 and 24, in connection with Article 448 of the Civil Code.

(b)  The applicant

108.  The applicant disagreed with the Government’s submissions. She submitted firstly that proceedings under the 2008 Act were not effective in the case of women seeking a legal abortion. In that regard, she referred to the findings made by the Committee of Ministers in the process of executing the judgment in Tysiąc. In particular, it was noted during that process that the appeal mechanism created by the 2008 Act had a number of apparent deficiencies, such as excessive formal requirements and delays. It was further stressed that a guarantee that such appeals would be examined urgently was of essence for effective access to lawful abortion. The applicant argued that the Government had failed to indicate any example of an effective use of the appeal mechanism under the 2008 Act.

109.  Secondly, with respect to civil remedies, the applicant submitted that they were solely of a retroactive and compensatory character, and therefore would not have been effective in her case, where speediness had been an important factor.

110.  Thirdly, as regards the possibility of instituting disciplinary and criminal proceedings against medical practitioners who refused to perform an abortion, that remedy could not have provided any redress in her case, and did not offer any prospects of success.

111.  In the applicant’s view, none of the remedies advanced by the Government would have guaranteed her right to legal and timely access to an abortion.

2. The Court’s assessment

112.  The Court reiterates that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies that are available and sufficient in respect of his or her Convention grievances (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70‑71, 25 March 2014).

113.  The Government pleaded, in general terms, that a complaint under section 31 of the 2008 Act was an effective remedy that could have put right the alleged violation. However, they failed to explain how it could have specifically remedied the applicant’s grievances under Article 8 of the Convention, in the sense of remedying the impugned state of affairs directly and providing her with the requisite redress for the purposes of Article 35 § 1 of the Convention (see Vučković and Others, cited above, §77, and Juszczyszyn v. Poland, no. 35599/20, §241, 6 October 2022).

114.  As regards civil remedies, the Court has already held that the very nature of the issues involved in decisions to terminate a pregnancy is such that time factors are of critical importance (see Tysiąc, cited above, §118). The procedures in place should therefore ensure that such decisions are timely, and procedures in which decisions concerning the availability of lawful abortion are reviewed post factum cannot fulfil such a function. In that connection, the Court has also found that civil law remedies do not afford a procedural instrument by which the right to respect for private life can be vindicated. They are solely of a retroactive and compensatory character, and can only result in the courts granting damages (ibid., §125). Having regard to its findings in Tysiąc, the Court fails to see how the civil remedies mentioned by the Government could have proved effective in the present case.

115.  As regards the other remedies suggested by the Government, criminal and disciplinary proceedings against the medical practitioners in question, the Court finds that they also could not have proved effective with regard to the applicant’s complaints. Such retrospective measures are not sufficient to provide appropriate protection for a person whose situation calls for legal means to address the immediacy of an issue, where time is of critical importance, like the applicant in the present case.

116.  The Government’s objection must therefore be dismissed.

4. Abuse of the right of petition
   1. The parties

(a)  The Government

117.  The Government submitted that the application should be declared inadmissible as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention. They stressed that the application had been lodged in the context of a political debate concerning reproductive health. In that regard, they referred to the Court’s press release of 8 July 2021 giving notice of twelve applications concerning restrictions on abortion rights in Poland, in which the Court had stated that over 1,000 similar applications had been lodged with it.

118.  They maintained that the applicant’s arguments in relation to the Constitutional Court were of a political nature and aimed to discredit that court. The applicant had exercised her right of application to describe the functioning of the Constitutional Court in a negative manner, rather than to protect her rights under the Convention. Furthermore, the perception of the applicant that she could not have legally terminated her pregnancy in Poland was unsubstantiated and unverified, as she had not had any recourse to domestic remedies.

(b)  The applicant

119.  The applicant referred to the Court’s case-law concerning abuse of the right of petition and maintained that the Government had interpreted Article 35 § 3 (a) of the Convention incorrectly. She submitted that they had failed to prove that she had knowingly intended to conceal any information or had changed the facts of the case in order to mislead the Court.

2. The Court’s assessment

120.  The Court reiterates that the concept of “abuse” within the meaning of Article 35 § 3 (a) of the Convention must be understood in its ordinary sense according to general legal theory – namely, the harmful exercise of a right for purposes other than those for which it is designed (see Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, § 79, 16 July 2019).

121.  The Court further reiterates that it has applied that provision, inter alia, in two types of situations. Firstly, an application may be rejected as an abuse of the right of petition within the meaning of Article 35 § 3 (a) if it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). Secondly, it may also be rejected in cases where an applicant used particularly vexatious, contemptuous, threatening or provocative language in his communication with the Court (see, for example, Rehak v. the Czech Republic (dec.), no. 67208/01, 18 May 2004).

122.  In the present case, the gist of the Government’s arguments does not concern “untrue facts” allegedly adduced by the applicant before the Court. Nor did the Government submit that she had used vexatious, contemptuous, threatening or provocative language in her communications. Rather, their objection is based on their own perception of the applicant’s possible intentions behind her decision to lodge an application with the Court. Consequently, having regard to its case-law on the issue, the Court finds that the arguments raised by the Government with regard to the applicant’s conduct and the context of the application cannot be regarded as an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. It accordingly dismisses the Government’s preliminary objection.

5. Overall conclusion on admissibility

123.  The Court finds that the applicant’s complaint under Article 8 of the Convention is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible, and the remainder of the application inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

3. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

124.  The applicant complained under Article 8 of the Convention that as a direct consequence of the restrictions introduced by the Constitutional Court, she could not have an abortion in Poland on the grounds of foetal defects, and had had to travel abroad to terminate her pregnancy. She complained that the restriction had not been “prescribed by law”, given the composition of the Constitutional Court, which included judges appointed by means of a procedure which the Court had found to be in breach of Article 6 of the Convention. Article 8 of the Convention reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. The parties
   1. The applicant

125.  The applicant submitted that there had been an interference with her right to respect for her private life under Article 8 of the Convention on account of the restrictions imposed by the Constitutional Court’s judgment of 22 October 2020. She had been informed by her doctor that the appointment for an abortion scheduled to take place at Bielański Hospital had been cancelled, and there had been nothing that the doctors could do to help her.

126.  The applicant noted that following the delivery of the Constitutional Court’s judgment, all hospitals in Poland refused to perform abortions in the event of foetal defects. She referred to the statistical data provided by the non-governmental organisation FEDERA, according to which the FEDERA’s helpline, in the period between 22 October 2020 and September 2021, had received 8,142 calls and over 5,000 emails on how to legally obtain an abortion. She also stated that in some cases, women who received a diagnosis of lethal foetal abnormalities obtained certificates from psychiatrists confirming that abortion should be allowed under section 4a(1)(1) of the 1993 Act (that is, when a pregnancy endangered the mother’s life or health – see paragraph 31 above). However, not all hospitals respected such certificates. The applicant submitted that in her situation, she could not wait to obtain such a certificate and then attempt to convince a hospital in Poland that she qualified for a legal abortion. In any event, just after the Constitutional Court’s judgment had taken effect, it had not been clear that psychiatrists could issue such certificates.

127.  The applicant stressed that the Constitutional Court’s judgment of 22 October 2020 had reopened the political debate on legal abortion in Poland. In that context she referred to the dissenting opinion of judge L. Garlicki concerning the previous ruling of the Constitutional Court (see paragraph 29 above), in which it was stated: “it is not the role or task of [the] Constitutional Court to resolve general issues of a philosophical, religious or medical nature, as these are issues beyond the knowledge of the judges and the competence of the courts. Regardless of the moral assessment of abortion, the Constitutional Court can only rule on the legal aspects of this issue ... The Constitutional Court is only called upon to assess the constitutionality of the laws it examines, [and] it cannot replace Parliament in making assessments, establishing the hierarchy of objectives and selecting the means to achieve them. The principle of separation of powers prohibits the [Constitutional Court] from entering into the role of legislator.”

128.  The applicant maintained that the interference with her rights under Article 8 had not been in accordance with the law, as the composition of the bench of the Constitutional Court had included judges appointed in an unlawful manner. She referred to the fact that Judges J. Piskorski, M. Muszyński and J. Wyrembak, who had been assigned to the bench, had been elected by the Sejm to judicial posts which had already been filled. She also questioned the appointment of Judge J. Przyłębska to the post of President of the Constitutional Court, and the impartiality of Judge K. Pawłowicz.

129.  With respect to Judge M. Muszyński, she pointed out that the circumstances of his election had already been examined by the Court (see Xero Flor w Polsce sp. z o.o., cited above). As regards Judge J. Wyrembak and Judge J. Piskorski, they had replaced two other deceased judges who had been elected by the eighth-term Sejm to judicial posts which had already been filled and, consequently, their election was adversely affected by the same fundamental defects as the election of Judge M. Muszyński. The applicant submitted that the Constitutional Court’s judgment of 22 October 2020 had been delivered by a panel which had included three judges who had been improperly appointed and thus had not been authorised to sit in the Constitutional Court.

130.  As regards Judge J. Przyłębska, who had presided over the panel, the applicant submitted that her election to the post of President of the Constitutional Court had been tainted with numerous irregularities: the General Assembly of Judges of the Constitutional Court, which normally elected two candidates for the post of President of the Constitutional Court, had not been properly convened; the three judges elected to judicial posts which had already been filled had participated in the assembly; not all judges could participate in the meeting; and lastly, there had been a number of irregularities as regards the voting process.

131.  In addition, the applicant noted that Judge K. Pawłowicz, who had previously been a member of parliament, had signed the 2017 application to have certain provisions of the 1993 Act declared incompatible with the Constitution (see paragraphs 101 and 11 above). The judge had also participated in many public debates relating to abortion and expressed her views on this issue.

132.  In view of all these procedural shortcomings, the judgment of 22 October 2020 could not be regarded as having been delivered by a lawful body, and thus the interference with the applicant’s rights under Article 8 had not been in accordance with the law.

133.  Furthermore, the applicant submitted that the restrictions imposed by the Constitutional Court’s judgment were not justified as being “necessary in a democratic society”. She maintained that no such value existed in society which needed protection by way of a ban on abortion. A decision on abortion was of a very sensitive, intimate and private nature, and each time such a decision was made it was made for different, complicated, personal and particular reasons, and could not be subject to a uniform official judgment delivered by the courts.

134.  Additionally, the European consensus on reproductive health services allowed individuals to make their own decisions and guaranteed them effective, liberal access to such services in the public healthcare system, abortion included. The applicant stated that interference with private matters such as decisions to continue with a pregnancy should never exist in plural and democratic societies. A State ban on abortions in the public healthcare system meant that women tended to seek abortion services outside the system. They travelled abroad or used abortion pills. According to data provided by NGOs, 1,080 women based in Poland had gone to foreign abortion clinics between 22 October 2020 and the end of September 2021. At the same time, according to official data, about 1,000 legal abortions per year were carried out in Polish hospitals.

135.  In conclusion, the applicant maintained that there had been a breach of her rights under Article 8 of the Convention.

2. The Government

136.  The Government submitted that there had been no interference with the applicant’s rights under Article 8 on account of the restrictions imposed by the Constitutional Court’s judgment. They noted, referring to the Court’s case‑law (see Vo, § 76, and A, B and C v. Ireland, § 216, both cited above), that not every regulation of the termination of pregnancy constituted an interference with the right to respect for private life of the mother.

137.  The applicant had not been refused any treatment relating to her pregnancy and financed by public funds. She had undergone standard medical examinations in public and private medical facilities. On 26 January 2021 she had qualified for admission to hospital for an abortion on the grounds of foetal abnormalities (trisomy 21). She had not attempted to obtain a legal abortion on the basis of any other exceptions provided for by the 1993 Act, and had instead decided to travel to the Netherlands to undergo a termination.

138.  The Government submitted that the amendments to the 1993 Act introduced by the Constitutional Court’s judgment could not be regarded as an interference with the applicant’s rights. The Constitutional Court’s judgment was in compliance with the relevant provisions of the Polish Constitution and international law. Since there was no right to abortion under the Convention, it could not be said that the introduction of more restrictive domestic regulations had breached its provisions.

139.  The Government also argued that the applicant had not submitted any evidence to the Court relating to her text message exchange with the doctor on 27 January 2021, and therefore it had not been proved that she had been refused a legal abortion.

140.  The Government further stated that even if the Court found that the restrictions imposed by the Constitutional Court’s judgment had amounted to an interference with the applicant’s rights, that interference had been in accordance with the law and had pursued legitimate aims within the meaning of Article 8 § 2 of the Convention.

141.  As regards the lawfulness of the interference, the Government objected against automatic implementation of the Court’s findings made in Xero Flor (see Xero Flor w Polsce sp. z o.o., cited above) due to significant difference between the facts of these cases and the scope of complaints. They stated that, given the role played by the Constitutional Court, the present case differed significantly from Xero Flor. In the present case, the Constitutional Court had acted in its role as a “negative legislator”, not a court within the meaning of Article 6 of the Convention. In contrast with the applicant company in Xero Flor, the applicant in the present case had not applied for any remedy or recourse available under the domestic law. The Government stressed that the determination of circumstances in which the termination of pregnancy was possible was within the sovereign competence of the national legislature.

142.  Furthermore, the 1993 Act had previously been amended by the Constitutional Court. In its judgment of 28 May 1997, the Constitutional Court had declared that section 4a (1) (4), which had allowed abortion for so‑called “social reasons” (material or personal hardship), was incompatible with the Constitution (see paragraph 29 above).

143.  The Government noted that the State authorities which could create the legal order of Poland were the Sejm and the Senate. The Constitutional Court could not interfere with the assessments, forecasts and choices made by the legislature unless there was a breach of constitutional norms, principles or values, or the relevant level of protection was set below the constitutionally required minimum.

2. The third-party interveners
   1. European Centre for Law and Justice (ECLJ)

144.  The ECLJ submitted that the Convention did not include a right to abortion. It also noted that when States decided to legalise abortion, this should be done with respect to the rights and freedoms guaranteed by the Convention, including protection against discrimination. Moreover, abortion on the basis of disability breached the principle of non-discrimination and violated the dignity of people with disabilities. In Poland, legal abortion was still allowed if the continuation of pregnancy would endanger the mother’s life or health, including her mental health. Lastly, the intervener noted that the suffering inflicted on a foetus by a late-term abortion might constitute torture.

2. Ordo Iuris – Institute for Legal Culture

145.  The Ordo Iuris Institute made detailed submissions with regard to the beginning of human life and the legal status of nasciturus as defined in international documents, the Court’s case-law and the travaux préparatoires of the Convention. The organisation further stated that, given the wide margin of appreciation afforded to member States in relation to sensitive moral and ethical issues, they were allowed to decide whether or not to make abortion legal. When a State decided to legalise abortion, this resulted in a right to abortion at national level. In such situations, a positive obligation arose at Convention level to establish a procedure ensuring that the right would not be theoretical or illusory. Lastly, the intervener submitted that under Polish law, abortion constituted an act punishable by law, and there was provision for certain justifications (kontratypy) only when the unlawfulness of that act was excluded. Consequently, Polish law did not grant the right to abortion, but only chose not to prosecute abortion in exceptional, dramatic situations.

3. The Polish Ombudsman for Children

146.  The Polish Ombudsman for Children stated that legislation in Poland permitting the termination of pregnancy in cases of foetal abnormality was incompatible with the constitutional principle of the protection of life as the highest value. Referring to the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities, the intervener argued that it was the duty of States to protect the life of a child both during the prenatal period and after birth. Trisomy 21 was not a disease, but a syndrome involving congenital anomalies.

4. Helsinki Foundation for Human Rights (HFHR)

147.  The HFHR submitted that the issuing of the Constitutional Court’s judgment of 22 October 2020 had involved a serious breach of the law. It referred to the irregular composition of the court’s panel and noted that according to many lawyers, such a ruling could be considered a “non‑existent judgment” which was devoid of any legal effect.

148.  The intervener also presented the results of a survey concerning access to abortion in Poland which had been conducted between November 2020 and January 2021. In particular, it submitted that the Constitutional Court’s judgment of 22 October 2020 had affected the availability of legal abortion in Poland even before its publication in the Journal of Laws. It also pointed to a number of practical and procedural obstacles to accessing legal abortion in Poland. In particular, the procedure provided for under the 2008 Act (see paragraph 44 above), whereby a patient could lodge an objection against a doctor’s medical opinion or certificate with the Medical Commission within thirty days from the date if its issuance, was excessively formalistic and did not guarantee that a pregnancy could be terminated within the legal time‑limit.

5. European Network of National Human Rights Institutions (ENNHRI)

149.  The ENNHRI submitted that the assessment of whether the interference in the present case had been justified required consideration of whether the imposed restrictions had been introduced in compliance with the rule of law principles and, as a result, by a tribunal “established by law”. In the light of the case-law of the Court and the CJEU, objectively justified, legitimate reasons to fear that a particular court lacked independence or impartiality precluded such an authority being considered to meet the Convention standards. The interveners referred to the CJEU’s judgment of 21 December 2021 (see paragraph 72 above), in which that court had held that although Article 19 of the TEU might not fully apply to organs of constitutional review, as there was a large disparity between models of constitutional review in member States and such organs were not always to be considered “tribunals” in the strict sense of this term, if the national law provided for the universal application of their decisions and the legal force of those decisions was binding upon judges in national cases, such organs had to meet minimum standards linked to the right to a fair trial, in particular the principle of independence.

150.  As regards the issues under Articles 3 and 8 of the Convention, in the context of limiting access to abortion, the ENNHRI maintained that a pregnant woman’s decision as to whether or not to continue with a pregnancy belonged to the sphere of private life and autonomy. While member States were allowed a wide margin of appreciation with regard to abortion law, that margin was not unlimited and did not allow for the introduction of arbitrary and disproportionate measures.

151.  Lastly, the ENNHRI provided the results of a survey conducted in 2022, regarding access to abortion in twenty-six member institutions (Albania, Belgium, Bosnia and Hercegovina, Croatia, Cyprus, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Netherlands, Northern Ireland, Norway, Portugal, Romania, Scotland, Serbia, Slovakia, Slovenia and Spain) which indicated that the majority of European countries guaranteed relatively broad access to abortion.

3. The Court’s assessment.
   1. Whether the case concerns positive or negative obligations

152.  The Court observes that the applicant’s grievances essentially concerned the argument that the prohibition in Poland of abortion on the grounds of foetal defects, where an abortion was sought for health and/or well‑being reasons, had disproportionately restricted her right to respect for her private life. Thus, the Court considers it appropriate to analyse this complaint as one concerning negative obligations (see A, B and C v. Ireland, cited above, § 216).

2. Whether there was an interference

153.  The Court has previously held that not every regulation of the termination of pregnancy constitutes an interference with the right to respect for the private life of the mother (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission decision of 19 May 1976, Decisions and Reports 5, p. 103; Vo, cited above, § 76; and A, B and C v. Ireland, cited above, § 216).

154.  In the present case, the Government argued that as there was no right to abortion under the Convention, the introduction of more restrictive domestic regulations could not be regarded as an interference with the applicant’s rights (see paragraph 138 above). The Court is unable to accept this view. Having regard to the broad concept of private life within the meaning of Article 8, including the right to personal autonomy and to physical and psychological integrity (see paragraph 91 above), the Court finds that the applicant’s being prohibited from terminating her pregnancy on the grounds of foetal abnormality, where the termination was sought for reasons of health and well-being (see paragraphs 100 above), amounted to an interference with her right to respect for her private life.

155.  To determine whether this interference entailed a violation of Article 8, the Court must examine whether or not it was justified under the second paragraph of that Article, namely, whether the interference was “in accordance with the law” and “necessary in a democratic society” for one of the “legitimate aims” specified in Article 8 of the Convention (see A, B and C v. Ireland, cited above, § 218).

3. Whether the interference was “in accordance with the law”

(a)  General principles

156.  The expression “in accordance with the law” requires, firstly, that the impugned measure must have a basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in the subject matter and aim of Article 8. It states the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82, and Juszczyszyn, cited above, § 261).

157.  Secondly, the expression refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and be compatible with the rule of law (see, among other authorities, Kopp v. Switzerland, 25 March 1998, § 55, Reports of Judgments and Decisions 1998 II). The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which, and the conditions on which, the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts), with further references, and De Tommaso v. Italy [GC], no. 43395/09, §§ 106-09, 23 February 2017). In particular, as regards the requirement of foreseeability, the Court held that a rule was “foreseeable” if it was formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his or her conduct (see, among many other authorities, Malone, cited above § 67 and Rotaru v. Romania [GC], no. 28341/95, § 55., ECHR 2000-V).

158.  The interference with the right to respect for one’s private and family life must therefore be based on a “law” that guarantees proper safeguards against arbitrariness. There must be safeguards to ensure that the discretion left to the executive is exercised in accordance with the law and without abuse of powers. The requirements of Article 8 with regard to safeguards will depend, to some degree at least, on the nature and extent of the interference in question (see Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, § 113, 20 September 2018, with further references).

159.  The Court reiterates that it is primarily for the national authorities, in particular the courts, to resolve problems of interpretation of domestic legislation. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see, among many other authorities, Molla Sali v. Greece [GC], no. 20452/14, § 149, 19 December 2018).

(b)  Application of the general principles to the present case

160.  The Court notes at the outset that the conditions for legal abortion in Poland are set out in the 1993 Act. The passing of the 1993 Act involved a lengthy political debate which reflected profoundly differing views and demonstrated the sensitivity and complexity of the issues at stake. Initially, the 1993 Act provided for three situations where legal abortion was possible: where the pregnancy endangered the mother’s life or health; where there was a high risk of foetal malformation; or where there were grounds to believe that the pregnancy was a result of rape or incest. In 1997 it was amended to allow abortion for reasons of difficult living conditions or difficult personal situations. However, shortly afterwards, the Constitutional Court gave a judgment finding that amendment incompatible with the Constitution (see paragraphs 26-29 above). Despite several legislative initiatives from those in favour of greater legal access to abortion on one hand, and those advocating for the restriction of existing grounds for lawful abortion on the other hand (see paragraphs 32-34 above), this so-called “abortion compromise” remained unchanged for the next twenty years, until the Constitutional Court’s judgment of 22 October 2020.

161.  Turning to the circumstances of the present case, the Court observes that the restriction was based on the Constitutional Court’s judgment of 22 October 2020 which declared section 4a(1)(2) of the 1993 Act incompatible with the Constitution (see paragraphs 39 above). However, the parties’ opinions diverge considerably on whether the interference was lawful for the purpose of the Convention, notably whether the relevant legal framework was compatible with the rule of law.

162.  The applicant contended that there had been a number of fundamental shortcomings in the adoption of the judgment forming the legal basis for the interference, and given those shortcomings, the judgment of 22 October 2020 could not be regarded as having been delivered in accordance with the law (see paragraphs 128-132 above). The Government retorted that the Constitutional Court had acted in its role as a “negative legislator”, and not as a court within the meaning of Article 6 of the Convention, and in any event the composition of the panel in case no. K1/20 had been lawful and regular.

163.  The Court has already held that it is fully aware of the special role and status of a constitutional court, whose task is to ensure that the legislative, executive and judicial authorities comply with the Constitution, and which, in those States that have made provision for a right of individual petition, affords additional legal protection to citizens at national level in respect of their fundamental rights guaranteed in the Constitution (see Süßmann v. Germany, 16 September 1996, § 37, Reports 1996‑IV, and Xero Flor w Polsce sp. z o.o., cited above, § 193). At the same time it has no doubt that the Constitutional Court should be regarded as a “tribunal” within the meaning of Article 6 § 1 (see Xero Flor w Polsce sp. z o.o., cited above, § 194).

164.  The Court further notes that the Constitutional Court’s judgment of 22 October 2020 was adopted in the process of a constitutional review of the domestic legislation. The procedure was initiated pursuant to Article 191 § 1 (1) of the Polish Constitution, by a group of members of parliament who contested the constitutionality of section 4a(1)(2) of the 1993 Act (see paragraph 14 above). While it is true that the applicant was not a party to those proceedings (compare Xero Flor w Polsce sp. z o.o., cited above), they were of key importance to her rights and to those of many other persons in similar situations. In that regard, the Court points out that however proceedings are initiated before the Constitutional Court, the effects of its judgments are the same and affect the rights of all persons in comparable situations (see paragraph 25 above). In the present case, as a direct consequence of the Constitutional Court’s ruling, which abrogated the provisions relating to abortion on the grounds of foetal defects, the applicant’s hospital appointment was cancelled and she was almost instantly left with no other option but to travel abroad to have a termination. Thus, in the Court’s view, the proceedings before the Constitutional Court were directly decisive for the applicant’s rights, in particular her right to respect for her private life.

165.  The Court would also note in passing that while the proceedings before the Constitutional Court were taking place, a draft bill proposing an amendment to the 1993 Act to remove the option to terminate a pregnancy on the grounds of foetal abnormalities was being discussed in the Sejm (see paragraphs 34 and 43 above).

166.  The Court has previously largely disregarded the kind of procedure leading to the enactment of a specific law relied on in support of an interference with a right secured under the Convention, the only limit being arbitrariness (see G. S. B. v. Switzerland, no. 28601/11, § 72, 22 December 2015). Nevertheless, in the specific circumstances of the present case, the Court finds it necessary to reiterate that, as the Convention is a constitutional instrument of European public order, the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle (see Al‑Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 145, ECHR 2016). This is all the more so since the Statute of the Council of Europe refers to the rule of law in two places: firstly in the Preamble, where the signatory Governments affirm their devotion to this principle, and secondly in Article 3, which provides that “every Member of the Council of Europe must accept the principle of the rule of law ...” (see Golder v. the United Kingdom, 21 February 1975, § 34, Series A no. 18, and Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 225, 20 September 2018).

167.  The Court reiterates in that regard that the rule of law is inherent in all the Articles of the Convention (see Golder, cited above, § 34) and the whole Convention draws its inspiration from that principle (see Engel and Others v. the Netherlands, 8 June 1976, § 69, Series A no. 22). Accordingly, the guarantees of the right to respect for private life under Article 8 must also be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. In the context of Article 6 § 1, the Court has already held that the right to a “tribunal established by law” is a reflection of the principle of the rule of law. It has further discerned a common thread running through the institutional requirements of this provision, that is, “independence”, “impartiality” and “tribunal established by law”, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 233 and 237, 1 December 2020, and Reczkowicz v. Poland, no. 43447/19, § 260, 22 July 2021). It is thus implied, in the light of the rule of law principle, that any interference with Article 8 rights must emanate from a body which is itself “lawful”, without that it will lack the legitimacy required in the democratic society.

168.  It is true that the judgment of the Constitutional Court was adopted in the process of constitutional review of the domestic legislation and, in contrast to Xero Flor w Polsce sp. z o.o., did not concern an individual decision issued in breach of the right to a “tribunal established by law” under Article 6 § 1 of the Convention (compare Juszczyszyn, cited above, §§ 216 and 265, and Tuleya v. Poland, nos. 21181/19 and 51751/20, §§ 348 and 439, 6 July 2023). However, where, as in the present case, an interference with the right to respect for private life arises from the ruling of a national judicial body directly decisive for the applicant’s rights, an assessment of its compliance with the rule of law test in Article 8 may also require an examination of that judicial body’s attributes as a “tribunal” which is “lawful” for the purposes of the Convention, including in respect of its composition and the appointment procedure of its members (see, mutatis mutandis, Juszczyszyn, §§ 265‑270, and Tuleya §§ 439‑443, both cited above).

169.  Turning to the examination of the specific shortcomings of the proceedings before the Constitutional Court when – as emphasised by the Government (see paragraph 141 above) – it was acting in its role as a “negative legislator”, proceedings which allegedly rendered the interference “not in accordance with the law”, the Court notes that the judgment in question was delivered by a bench composed of thirteen judges, including Judge M. Muszyński, Judge J. Piskorski, Judge J. Wyrembak, Judge K. Pawłowicz and the President of the Constitutional Court, Judge J. Przyłębska (see paragraph 39 above). The applicant questioned the appointment and/or impartiality of all those judges (see paragraphs 128‑131 above).

170.  In this context, the Court observes that Judge M. Muszyński was elected on 2 December 2015 together with four other judges: Judge H. Cioch, Judge L. Morawski, Judge P. Pszczółkowski and Judge J. Przyłębska (see Xero Flor w Polsce sp. z o.o., cited above, §§ 19-20). In 2017 Judge L. Morawski passed away and was replaced by Judge J. Piskorski later that year. Subsequently, following the death of Judge H. Cioch, Judge J. Wyrembak was elected and took the oath of office in 2018 (see paragraphs 8, 9 above).

171.  In that regard, the Court notes that in Xero Flor (see Xero Flor w Polsce sp. z o.o., cited above, §§ 289-90), in the context of a complaint under Article 6 § 1 of the Convention, it found that the fundamental rule applicable to the election of Constitutional Court judges had been breached by the eighth-term Sejm and the President of the Republic. The eighth‑term Sejm had elected three Constitutional Court judges on 2 December 2015 (M. Muszyński, H. Cioch and L. Morawski), even though the respective seats had already been filled by three judges elected by the previous Sejm. The President of the Republic had refused to swear in the three judges elected by the previous Sejm, and had received the oath of office from the three judges elected on 2 December 2015 (ibid., § 289). The Court further held that the breaches in the procedure for electing those three judges had been of such gravity as to impair the legitimacy of the election process and undermine the very essence of the right to a “tribunal established by law”. Having regard to the three-step test set out in Guðmundur Andri Ástráðsson (cited above, § 243), the Court concluded that the applicant company in that case had been denied its right to a “tribunal established by law” on account of Judge M. Muszyński’s participation in the proceedings before the Constitutional Court; that judge’s election had been vitiated by grave irregularities that had impaired the very essence of the right at issue (see Xero Flor w Polsce sp. z o.o., cited above, § 290).

172.  In the present case, the fact that the bench of the Constitutional Court which issued the ruling of 22 October 2020 included Judge M. Muszyński, when seen in the light of the Court’s judgment in Xero Flor w Polsce sp. z o.o and its conclusion under Article 6 § 1, is by itself capable of vitiating the legal force to be attached to that judgment (ibid., § 290, and Dolińska‑Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, § 319, 8 November 2021).

173.  Moreover, the Court points out that Judges J. Piskorski and J. Wyrembak, who likewise sat on the bench, were elected in 2017 and 2018 respectively in order to replace two other judges who had been elected together with Judge M. Muszyński by the eighth-term Sejm in a procedure which the Court has already found to be in breach of Article 6 (see Xero Flor w Polsce sp. z o.o , cited above, and paragraphs 8 and 9 above).

174.  Consequently, given that the irregularities in the election procedure of the above-mentioned judges compromised the legitimacy of the Constitutional Court’s bench which introduced the impugned restriction as a “tribunal established by law”, its ruling fell short of what the rule of law required (see Guðmundur Andri Ástráðsson, cited above, § 226; in that context see also the European Commission’s action seeking a declaration by the CJEU that the Constitutional Court does not satisfy the requirements of an independent and impartial tribunal previously established by law as a result of irregularities in the procedures for the appointment of three judges to that court in December 2015, cited in paragraph 68 above). In view of this conclusion, the Court does not see a need to examine in detail the remaining shortcomings alleged by the applicant, in particular the allegations that the appointment of Judge J. Przyłębska, the President of Constitutional Court, was open to challenge, and the issue of the impartiality of Judge K. Pawłowicz, who had previously been a member of parliament in favour of restricting abortion laws in Poland.

175.  In view of the foregoing, the Court finds that the interference with the applicant’s rights cannot be regarded as lawful in terms of Article 8 of the Convention because it was not issued by a body compatible with the rule of law requirements (see paragraph 156 above). Furthermore, the circumstances of the present case disclose the lack of foreseeability required under Article 8 of the Convention, given that the Constitutional Court’s ruling interfered with the medical procedure for which the applicant had qualified and which had already been put in motion, thus creating a situation where she was deprived of the proper safeguards against arbitrariness (see the relevant general principles cited in paragraph 158 above and Juszczyszyn, cited above, § 265). In view of the foregoing, the Court finds that the interference with the applicant’s rights “was not in accordance with the law” within the meaning of Article 8 of the Convention.

176.  There has accordingly been a violation of Article 8 of the Convention.

4.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

177.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1. Damage

178.  The applicant claimed 1,220 euros (EUR) in respect of pecuniary damage. This amount corresponded to the costs associated with her abortion in the Netherlands: the cost of the medical treatment in a private clinic, and the transport and accommodation costs incurred by her and the person who supported her abroad. In that connection, she submitted an invoice from the clinic for 830 EUR and a receipt for EUR 174 for a stay in a hotel. She further claimed EUR 50,000 in respect of non-pecuniary damage, in relation to the damage that she had suffered on account of being pregnant at the time the Constitutional Court had delivered its judgment and discovering that the foetus had trisomy 21.

179.  The Government submitted that these claims were unfounded. They stressed that the sum requested by the applicant in respect of non‑pecuniary damage was exorbitant. They further noted that the applicant had submitted only two invoices in relation to her pecuniary claim. They argued that this claim had no connection with the alleged violation of the Convention. In addition, they maintained that the costs of any medical services abroad were generally not reimbursed by the National Health Fund, unless reimbursement was otherwise provided for by a specific legal provision

180.  The Court observes that in A, B and C v. Ireland (cited above, §§ 277‑278) it rejected the applicant’s claims in respect of pecuniary and non‑pecuniary damage which were linked to her travelling abroad for an abortion, as there was no established causal link between the violation found and the applicant’s claims. However, the applicant’s situation in the present case is significantly different. She initially qualified for an abortion on the grounds of foetal abnormality, in accordance with the relevant legal provisions. However, just before the procedure was carried out, the Constitutional Court repealed the relevant legal provisions and she could no longer have an abortion in Poland. As she did not wish to continue with the pregnancy, travelling abroad to access abortion services was her only option (compare and contrast A, B and C v. Ireland, cited above, § 277). Consequently, in the Court’s view, in the present case, there is a clear link between the violation found and the pecuniary damage alleged by the applicant.

181.  In relation to the applicant’s claim in respect of pecuniary damage, the Court observes that the applicant did provide some evidence in support of her claims, that is, two invoices for medical and accommodation costs amounting to EUR 1,004 in total. Having regard to the violation found (see paragraphs 174 and 175 above), it considers that this amount should be reimbursed by the respondent State. It therefore awards the applicant EUR 1,004 in respect of pecuniary damage and rejects the remainder of the claim as unsubstantiated.

182.  The Court further finds that the restriction imposed by the Constitutional Court’s judgment caused the applicant considerable anxiety and suffering, in circumstances where she was confronted with the fear that her foetus had been diagnosed with a genetic abnormality and faced uncertainty as regards the availability of a legal abortion in such a situation. Ruling on an equitable basis, it therefore awards the applicant EUR 15,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of the claim.

2. Costs and expenses

183.  The applicant also claimed EUR 5,025 for the legal costs incurred before the Court. She stated that her lawyers had provided their services pro bono, but nevertheless asked the Court to award that sum, as she believed that those costs should be covered by the State as part of the financial compensation due.

184.  The Government submitted that the applicant had not actually incurred any legal costs and had not submitted any bills in support of her claim, consequently her claim for costs and expenses was unjustified.

185.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant did not pay any fees to her representatives, who worked pro bono, nor is there any evidence that the applicant is under an obligation to pay any sum of money to the lawyers. In such circumstances, these costs cannot be claimed since they have not actually been incurred. The Court therefore rejects the claim for costs and expenses.

FOR THESE REASONS, THE COURT,

1. Declares, by a majority, the complaint concerning Article 3 inadmissible;
2. Declares, by a majority, the complaint concerning Article 8 admissible;
3. Holds, by five votes to two, that there has been a violation of Article 8 of the Convention;
4. Holds, by five votes to two,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,004 (one thousand four euros) plus any tax that may be chargeable, in respect of pecuniary damage;

that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Renata Degener Alena Poláčková
 Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  concurring opinion of Judges Jelić, Felici and Wennerström;

(b)  dissenting opinion of Judges Wojtyczek and Paczolay.

PRESS RELEASE:

In a Grand Chamber judgment in the case of Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20) the European Court of Human Rights held, by a majority of sixteen votes to one, that there had been:

a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;

and, unanimously, that there had been:

a violation of Article 6 § 1 (access to court).

The case concerned a complaint by four women and a Swiss association, Verein KlimaSeniorinnen Schweiz, whose members are all older women concerned about the consequences of global warming on their living conditions and health. They consider that the Swiss authorities are not taking sufficient action, despite their duties under the Convention, to mitigate the effects of climate change.

The Court found that Article 8 of the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.

However, it held that the four individual applicants did not fulfil the victim-status criteria under Article 34 of the Convention and declared their complaints inadmissible. The applicant association, in contrast, had the right (locus standi) to bring a complaint regarding the threats arising from climate change in the respondent State on behalf of those individuals who could arguably claim to be subject to specific threats or adverse effects of climate change on their life, health, well-being and quality of life as protected under the Convention.

The Court found that the Swiss Confederation had failed to comply with its duties (“positive obligations”) under the Convention concerning climate change. There had been critical gaps in the process of putting in place the relevant domestic regulatory framework, including a failure by the Swiss authorities to quantify, through a carbon budget or otherwise, national greenhouse gas (GHG) emissions limitations. Switzerland had also failed to meet its past GHG emission reduction targets. While recognising that national authorities enjoy wide discretion in relation to implementation of legislation and measures, the Court held, on the basis of the material before it, that the Swiss authorities had not acted in time and in an appropriate way to devise, develop and implement relevant legislation and measures in this case.

In addition, the Court found that Article 6 § 1 of the Convention applied to the applicant association’s complaint concerning effective implementation of the mitigation measures under existing domestic law. The Court held that the Swiss courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the applicant association’s complaints. They had failed to take into consideration the compelling scientific evidence concerning climate change and had not taken the complaints seriously.

LEGAL SUMMARY OF JUDGMENT

(2) Alleged violations of Articles 2 and 8 –

(a) Preliminary points – At the outset, the Court noted that climate change was one of the most pressing issues of our times. While the primary cause of climate change arose from the accumulation of GHG in the Earth’s atmosphere, the resulting consequences for the environment, and its adverse effects on the living conditions of various human communities and individuals, were complex and multiple. The Court, however, could deal with the issues arising from climate change only within the limits of the exercise of its competence under Article 19 of the Convention, which was to ensure the observance of the engagements undertaken by the High Contracting Parties to the Convention and its Protocols. In that regard, the Court had to remain mindful of the fact that to a large extent measures designed to combat climate change and its adverse effects required legislative action both in terms of the policy framework and in various sectoral fields. Judicial intervention, including by this Court, could not replace or provide any substitute for the action which had to be taken by the legislative and executive branches of government. The task of the domestic courts and the Court was to ensure the necessary judicial oversight of compliance with legal requirements.

At the same time, the inadequacy of past State action to combat climate change globally aggravated the risks of adverse consequences and the ensuing threats for the enjoyment of human rights – threats already recognised by governments worldwide. The current situation therefore involved compelling present‑day conditions, confirmed by scientific knowledge, which the Court could not ignore in its role as a judicial body tasked with the enforcement of human rights.

The present case, along with the cases of Duarte Agostinho and Others v. Portugal and others [GC] and Carême v. France [GC] that had been heard by the same composition of the Grand Chamber, raised unprecedented issues before the Court which entailed different legal questions to those addressed in its environmental case‑law to date. The existing case‑law concerned situations involving specific sources from which environmental harm emanated whereas in the climate-change context, the key characteristics and circumstances were significantly different. After enumerating the fundamental differences, the Court concluded that it would be neither adequate nor appropriate to directly transpose the existing environmental case‑law to the context of climate change. Accordingly, while drawing some inspiration from the principles set out in that case-law, the Court sought to develop a more appropriate and tailored approach as regards the various Convention issues which might arise in the context of climate change.

In that respect, account had to be taken of the existing and constantly developing scientific evidence on the necessity of combating climate change and the urgency of addressing its adverse effects, including the grave risk of their inevitability and their irreversibility, as well as the scientific, political and judicial recognition of a link between the adverse effects of climate change and the enjoyment of (various aspects of) human rights.

(b) General considerations relating to climate‑change cases –

(i) Questions of causation

 ...

(ii) Issues of proof 

 ...

(iii) Effects of climate change on the enjoyment of human rights – The Court proceeded with its assessment on the issues that arose in the present case by taking it as a matter of fact that there were sufficiently reliable indications that anthropogenic climate change existed, that it posed a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States were aware of it and capable of taking measures to effectively address it, that the relevant risks were projected to be lower if the rise in temperature was limited to 1.5°C above pre-industrial levels and if action was taken urgently, and that current global mitigation efforts were not sufficient to meet the latter target.

(iv) The question of causation and positive obligations in the climate-change context

 ...

(v) The issue of the proportion of State responsibility 

 ...

(d) Merits –

(i) The States’ positive obligations in the context of climate change –

(α) The States’ margin of appreciation – States enjoyed a certain margin of appreciation in this area. A distinction had to be drawn, however between the scope of the margin as regards, on the one hand, the State’s commitment to the necessity of combating climate change and its adverse effects, and the setting of the requisite aims and objectives in this respect, and, on the other hand, the choice of means designed to achieve those objectives. As regards the former aspect, the nature and gravity of the threat and the general consensus as to the stakes involved in ensuring the overarching goal of effective climate protection through overall GHG reduction targets in accordance with the Contracting Parties’ accepted commitments to achieve carbon neutrality, called for a reduced margin of appreciation for the States. As regards the latter aspect, namely their choice of means, including operational choices and policies adopted to meet internationally anchored targets and commitments in the light of priorities and resources, the States should be accorded a wide margin of appreciation.

(β) Content of the States’ positive obligation – A contracting State’s primary duty was to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. That obligation flowed from the causal relationship between climate change and the enjoyment of Convention rights, and the fact that the object and purpose of the Convention, as an instrument for the protection of human rights, required that its provisions must be interpreted and applied so as to guarantee rights that are practical and effective. The Court stressed that it was only competent to interpret the provisions of the Convention and its Protocols. However, it noted that in line with the international commitments undertaken by the member States, most notably under the UNFCCC the Paris climate agreement, and in the light of the compelling scientific advice provided, in particular, by the IPCC, States needed to put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights under Article 8. Effective respect for those rights required States to undertake measures to reduce their GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades.

 ...

(ii) Application of the above principles to the present case – The Court found that there had been some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework, including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations. Furthermore, as recognised by the relevant authorities, the State had previously failed to meet its past GHG emission reduction targets. The authorities had failed to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework. Accordingly, the respondent State had exceeded its margin of appreciation and had failed to comply with its positive obligations under Article 8 in the present context.

Conclusion: violation (sixteen votes to one).

"Article 8 protects the human right to private and family life, the privacy of the home
and personal correspondence. It was designed as a protection against the surveillance state
in totalitarian regimes. But the Strasbourg Court has developed it into what it calls a
principle of personal autonomy. Acting on this principle, it has extended Article 8 so that it
potentially covers anything that intrudes upon a person’s autonomy unless the Court
considers it to be justified.

Now, it will be obvious that most laws seek, to some degree, to intrude on personal
autonomy. They impose standards of behaviour which would not necessarily be accepted
voluntarily. This may be illustrated by the vast range of issues which the Strasbourg Court
has held to be covered by Article 8. They include the legal status of illegitimate children,
immigration and deportation, extradition, criminal sentencing, the recording of crime,
abortion, artificial insemination, homosexuality and same sex unions, child abduction, the
policing of public demonstrations, employment and social security rights, environmental
and planning law, noise abatement, eviction for non-payment of rent and a great deal else
besides. All of these things have been held to be encompassed in the protection of private
and family life.

None of them is to be found in the language of the convention. None of them is a
natural implication from its terms. None of them has been agreed by the signatory states.
They are all extensions of the text which rest on the sole authority of the Judges of the
Strasbourg Court. This is, in reality, a form of non-consensual legislation."

European Court of Human Rights, History of the Court’s Reforms (2015)

Since the Court opened in 1959, the member States of the Council of Europe have adopted a number of protocols to the European Convention on Human Rights with the aim of improving and strengthening its supervisory mechanism. In 1998 Protocol No. 11 thus replaced the original two-tier structure comprising the Court and the Commission on Human Rights, sitting a few days per month, by a single full-time Court. This change put an end to the Commission’s filtering function, enabling applicants to bring their cases directly before the Court.

A second major reform to address the considerable increase in the number of applications and the Court’s backlog was brought about by the entry into force of Protocol No. 14 in 2010. This Protocol introduced new judicial formations for the simplest cases and established a new admissibility criterion (existence of a “significant disadvantage” for the applicant); it also extended the judges’ term of office to 9 years (not renewable).

Since 2010, four high-level conferences on the future of the Court have been convened to identify the means to guarantee the long-term effectiveness of the Convention system. These conferences have, in particular, led to the adoption of Protocols 15 and 16 to the Convention.

Protocol No. 15, adopted in 2013, inserts a reference to the principle of subsidiarity and the doctrine of the margin of appreciation into the Convention’s preamble; it also reduces from 6 to 4 months the time within which an application must be lodged with the Court after a final national decision.

2013 has also seen the adoption of Protocol No. 16, which will allow the highest domestic courts and tribunals to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. Protocol No. 16 is optional.

The following is adapted from recent supplementation to Henkin et al., Human Rights (2009)

In November 2011, the United Kingdom assumed the Chairmanship of the Committee of Ministers of the Council of Europe and announced that it would make reforming the ECHR a priority.  The UK government’s relationship with the court had become contentious following the judgment in Hirst v. United Kingdom (No. 2), App. No. 74025/01, 2005–IX Eur. Ct. H.R. (Grand Chamber), in which a majority of the ECHR held that a British law denying convicted prisoners the right to vote contravened Article 3 of Protocol No. 1. The Hirst judgment was highly unpopular in the UK.  British Prime Minister David Cameron publicly stated that giving prisoners the right to vote “makes me feel sick.”  Alison Little, PM: Giving Prisoners Vote Makes Me Feel Sick, Daily Express (Nov. 4, 2010). Some British politicians and news media outlets heavily criticized other ECHR judgments as unduly interfering with domestic laws and practices.  By 2011, polls indicated that a majority of British voters favored the country’s withdrawal from the European Convention.  Sunday Times Survey Results, Feb. 10-11, 2011.

The public backlash against the Strasbourg Court in the United Kingdom colored the third high-level conference on the future of the ECHR convened in Brighton, England in March 2012.  A draft of the Brighton Declaration was leaked on the eve of the conference.  The draft included statements that many NGOs and academics—as well as some government officials and members of the court—viewed as weakening the ECHR’s review powers and calling into question its independence.  For example, one proposal would have deemed inadmissible any application which alleged violations of the European Convention that were substantially identical to those that a domestic court had previously considered.  Joshua Rozenberg, Leaked proposals set out Britain’s tough line towards Strasbourg, The Guardian, Feb. 28, 2012.

The final text adopts a somewhat more moderate approach.  High Level Conference on the Future of the European Court of Human Rights: Brighton Declaration (Apr. 19-20, 2012).  The Declaration reaffirms the member states’ “deep and abiding commitment” to the Convention, its institutions, and the right of individual petition, id. ¶¶ 1-2, and it recognizes their responsibility to ensure the effective domestic implementation of the Convention and to abide by ECHR judgments against them.  Id. ¶¶ 3-4.  The Declaration also reiterates recommendations adopted at the Interlaken and Izmir conferences to reduce the court’s workload and backlog of pending cases.  Other sections of the Brighton Declaration, however, propose to amend the Convention in ways that will arguably limit the ECHR’s authority.  These provisions include:

• adding to the Convention’s preamble express references to the principle of subsidiarity and to the doctrine of the margin of appreciation—references that many observers view as a signal to the ECHR to give greater deference to member states, id. ¶ 12.b;
• shortening the limitations period for individuals to file applications with the ECHR from six to four months, id. ¶ 15.a;
• eliminating, from the “significant disadvantage” ground for declaring an application inadmissible, the safeguard clause that permits the ECHR to review the application if it “has not been duly considered by a domestic tribunal,” id. ¶ 15.c;
• removing the parties’ ability to object to a Chamber’s decision to relinquish a case to the Grand Chamber, a venue considered more sympathetic to national governments, id. ¶ 25.d.

Supplementing these provisions are several statements that suggest, to greater or lesser degrees, that the ECHR should rein in its scrutiny of national governments:

• an assertion that “the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation,” id. ¶ 11;
• a recommendation that the ECHR “take a strict and consistent approach” to declaring inadmissible complaints that have “been duly considered by a domestic court applying the rights guaranteed by the Convention in light of well-established case law of the Court including on the margin of appreciation,” id. ¶ 15.d;
• an invitation to the Court “to have regard to the importance of consistency where judgments relate to aspects of the same issue, so as to ensure their cumulative effect continues to afford States Parties an appropriate margin of appreciation,” id. ¶ 25.c; and
• a timetable for the Committee of Ministers to determine whether existing reforms have “proven to be sufficient to assure sustainable functioning” of the ECHR, or whether “more profound changes are necessary,” id. ¶ 34.

On 24 June 2013, the Council of Europe opened for signature Protocol No. 15 to the European Convention, which implements the first four bullet points listed above.  In particular, once ratified by all Contracting States, Protocol No. 15 will add to the Preamble to the European Convention the following paragraph:

“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention;”

The Explanatory Report accompanying the Protocol No. 15 describes this amendment as follows:

7.  A new recital has been added at the end of the Preamble of the Convention containing a reference to the principle of subsidiarity and the doctrine of the margin of appreciation.  It is intended to enhance the transparency and accessibility of these characteristics of the Convention system and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law.  In making this proposal, the Brighton Declaration also recalled the High Contracting Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention.

8.  The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated.  The Court authoritatively interprets the Convention.  It also acts as a safeguard for individuals whose rights and freedoms are not secured at the national level.

9.  The jurisprudence of the Court makes clear that the State Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged.  This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions.  The margin of appreciation goes hand in hand with supervision under the Convention system.  In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation…

In 2009, the ECHR adopted a Priority Policy for processing applications.  “[T]he new policy establishes a clear order of adjudication at a time when the Court’s pending caseload exceeds 130,000 applications, a number which rose by 17 percent in 2010.”  Michael Becker, European Court Institutes Priority Policy For Hearing Claims, Hum. Rts. Br. (Mar. 2011).  The essence of the new policy is expressed in amended Rule 41 of the Rules of Court:  “In determining the order in which cases are to be dealt with, the Court shall have regard to the importance and urgency of the issues raised on the basis of criteria fixed by it.  The Chamber, or its President, may, however, derogate from these criteria so as to give priority to a particular application.”  To implement this policy, the Court will now place each pending claim into a category—number numbered I through VII—based on the level of importance set out in the following table: https://perma.cc/PBJ9-9Y78

European Court of Human Rights, Priority Policy.

In a 2012 report adopted by the Parliamentary Assembly characterizes the Priority Policy as a “bold step,” which, “if implemented rigorously, will ensure that the most serious cases and the cases which disclose the existence of widespread problems capable of generating large numbers of additional cases are dealt with more rapidly.”  The report further states that the policy will “re-focus discussion away from the obsessive concern with the rising backlog of applications before the Court and instead grapple with problems of ‘persistent defaulters’ in which serious human rights problems exist.”  Report of the Committee on Legal Affairs and Human Rights, Guaranteeing the authority and effectiveness of the European Convention on Human Rights, para. 60 (Jan. 3, 2012) (adopted by the Parliamentary Assembly on Jan. 24, 2012).

According to one commentator, however, the “subjective nature of labeling priorities raises concerns regarding the introduction of bias into the process, and could possibly encourage violators to commit low-priority offenses with no fear of punishment.”  For example, should an individual “who was deprived a fair and public hearing be any less aggrieved because his claim falls fourth on the spectrum?  What about those who have been denied their rights to free speech and religion, who now may wait years or decades behind those whose claims are deemed ‘more urgent?’”  Becker, supra.

Reaffirms the deep and abiding commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and their strong attachment to the right of individual application to the European Court of Human Rights (“the Court”) as a cornerstone of the system for protecting the rights and freedoms set forth in the Convention;

Acknowledges the extraordinary contribution of the Convention system to the protection and promotion of human rights in Europe since its establishment and reaffirms its central role in maintaining democratic stability across the Continent;

Recalls, in this respect, the interdependence between the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy, the objective being to develop the common democratic and legal space founded on respect for human rights and fundamental freedoms;

Reaffirms the principles of the Interlaken, Izmir and Brighton Declarations and welcomes the very encouraging results achieved to date by the Council of Europe in the framework of the reform of the Convention system, through the implementation of these declarations;

Welcomes, in particular, the efforts of the Court as regards the swift implementation of Protocol No. 14 to the Convention, which entered into force on 1 June 2010, and that the backlog of manifestly inadmissible cases is expected to be cleared in 2015;

Welcomes, in the light of the positive results obtained, the new working methods of the Committee of Ministers for the supervision of the execution of the Court’s judgments, which entered into force on 1 January 2011 and which inter alia strengthen the principle of subsidiarity;

Reiterates the subsidiary nature of the supervisory mechanism established by the Convention and in particular the primary role played by national authorities, namely governments, courts and parliaments, and their margin of appreciation in guaranteeing and protecting human rights at national level, while involving National Human Rights Institutions and civil society where appropriate;

Underlines the obligations of States Parties under Article 34 of the Convention not to hinder the exercise of the right to individual application, including by observing Rule 39 of the Rules of the Court regarding interim measures, and under Article 38 of the Convention to furnish all necessary facilities to the Court during the examination of the cases;

Underlines the importance of Article 46 of the Convention on the binding force of the Court’s judgments, which stipulates that the States Parties undertake to abide by the final judgments of the Court in any case to which they are parties;

Stresses the importance of further promoting knowledge of and compliance with the Convention within all the institutions of the States Parties, including the courts and parliaments, pursuant to the principle of subsidiarity; Recalls in this context that the execution of the Court’s judgments may require the involvement of the judiciary and parliaments;

Whilst noting the progress achieved by States Parties with regard to the execution of judgments, emphasises the importance of the full, effective and prompt execution of judgments and of a strong political commitment by the States Parties in this respect, thus strengthening the credibility of the Court and the Convention system in general;

Is convinced that further to the improvements already carried out, emphasis must now be placed on the current challenges, in particular the repetitive applications resulting from the non-execution of Court judgments, the time taken by the Court to consider and decide upon potentially well-founded cases, the growing number of judgments under supervision by the Committee of Ministers and the difficulties of States Parties in executing certain judgments due to the scale, nature or cost of the problems raised. To this end, additional measures are necessary in order to:

1. continue to enable the Court to reduce the backlog of well-founded and repetitive cases and to rule on potentially well-founded new cases, particularly those concerning serious violations of human rights, within a reasonable time;
2. ensure the full, effective and prompt execution of the judgments of the Court;
3. guarantee full and effective supervision of execution of all judgments by the Committee of Ministers and
   develop, in co-operation with States Parties, bilateral dialogue and assistance by the Council of Europe in the execution process.

The Conference therefore:

(1) Reaffirms the strong attachment of the States Parties to the Convention to the right of individual application;

(2) Reiterates the firm determination of the States Parties to fulfil their primary obligation to ensure that the rights and freedoms set forth in the Convention and its protocols are fully secured at national level, in accordance with the principle of subsidiarity;

(3) Invites each stakeholder to ensure that the necessary means are available to fulfil its role in the implementation of the Convention, in conformity with the Convention providing for shared responsibility between the States Parties, the Court and the Committee of Ministers;

(4) Welcomes the work carried out by the Court in particular regarding the dissemination of its judgments and decisions, through its information notes, its practical guide on admissibility, as well as its case-law guides and thematic factsheets;

(5) Reaffirms the need to maintain the independence of the judges and to preserve the impartiality, quality and authority of the Court;

...

(7) Invites the Court to remain vigilant in upholding the States Parties’ margin of appreciation;

(8) Stresses the need to find, both at the level of the Court and in the framework of the execution of judgments, effective solutions for dealing with repetitive cases;

(9) Encourages in this regard States Parties to give priority to alternative procedures to litigation such as friendly settlements and unilateral declarations;

(10) Recalling Article 46 of the Convention, stresses that full, effective and prompt execution by the States Parties of final judgments of the Court is essential;

(11) Reiterates the importance of the Committee of Ministers respecting the States Parties’ freedom to choose the means of full and effective execution of the Court’s judgments;

(12) Calls for enhancing, at the level of both the Committee of Ministers and the States Parties, in accordance with the principle of subsidiarity, the effectiveness of the system of supervision of the execution of the Court’s judgments;

...

Action Plan:

A. Interpretation and application of the Convention by the Court

1. Bearing in mind the jurisdiction of the Court to interpret and apply the Convention, the Conference underlines the importance of clear and consistent case-law as well as the Court’s interactions with the national authorities and the Committee of Ministers, and in this regard:

• a) encourages the Court to continue to develop its co-operation and exchange of information on a regular basis with the States Parties and the Committee of Ministers, especially as regards repetitive and pending applications;
• b) welcomes the Court’s dialogue with the highest national courts and the setting-up of a network facilitating information exchange on its judgments and decisions with national courts, and invites the Court to deepen this dialogue further;
• c) welcomes the intention expressed by the Court to provide brief reasons for the inadmissibility decisions of a single judge, and invites it to do so as from January 2016;
• d) invites the Court to consider providing brief reasons for its decisions indicating provisional measures and decisions by its panel of five judges on refusal of referral requests.

2. Recalling the remaining challenges, including the repetitive cases, the Conference underlines the importance of an efficient control of the observance of the engagements undertaken by States Parties under the Convention ....

B. Implementation of the Convention at national level

The Conference recalls the primary responsibility of the States Parties to ensure the application and effective implementation of the Convention and, in this regard, reaffirms that the national authorities and, in particular, the courts are the first guardians of human rights ensuring the full, effective and direct application of the Convention – in the light of the Court’s case law – in their national legal system, in accordance with the principle of subsidiarity.

The Conference calls upon the States Parties to:
1. Prior to and independently of the processing of cases by the Court:

• a)  ensure that potential applicants have access to information on the Convention and the Court, particularly about the scope and limits of the Convention’s protection, the jurisdiction of the Court and the admissibility criteria;
• b)  increase efforts at national level to raise awareness among members of parliament and improve the training of judges, prosecutors, lawyers and national officials on the Convention and its implementation, including as regards the execution of judgments...;
• ...
• d)  take appropriate action to improve the verification of the compatibility of draft laws, existing laws and internal administrative practice with the Convention, in the light of the Court’s case law;
• e)  ensure the effective implementation of the Convention at national level, take effective measures to prevent violations and to provide effective domestic remedies to address alleged violations of the Convention;
• ...
• g)  consider the establishment of an independent National Human Rights Institution.

2. After the Court’s judgments:

• ...
• b)  in compliance with the domestic legal order, put in place in a timely manner effective remedies at domestic level to address violations of the Convention found by the Court;
• c)  develop and deploy sufficient resources at national level with a view to the full and effective execution of all judgments, and afford appropriate means and authority to the government agents or other officials responsible for co-ordinating the execution of judgments;
• d)  attach particular importance to ensuring full, effective and prompt follow-up to those judgments raising structural problems, which may furthermore prove relevant for other States Parties;
• ...
• f)  promote accessibility to the Court’s judgments, action plans and reports as well as to the Committee of Ministers’ decisions and resolutions...;
  ...
• h)  in particular, encourage the involvement of national parliaments in the judgment execution process, where appropriate, for instance, by transmitting to them annual or thematic reports or by holding debates with the executive authorities on the implementation of certain judgments;
• j)  consider, in conformity with the principle of subsidiarity, the holding of regular debates at national level on the execution of judgments involving executive and judicial authorities as well as members of parliament and associating, where appropriate, representatives of National Human Rights Institutions and civil society.

C. Supervision of the execution of judgments

The Conference underlines the importance of the efficient supervision of the execution of judgments in order to ensure the long-term sustainability and credibility of the Convention system .... 

Cases and Materials on the Relation of the British and Convention Legal Systems (prepared by Adam Wagner, QC, and webmaster of http://rightsinfo.com)

Osborn v The Parole Board [2013] UKSC 61, paras. 54 to 63 (Lord Reed)

Domestic law and Convention rights

54. The submissions on behalf of the appellants focused on article 5(4), and paid comparatively little attention to domestic administrative law. As I shall explain, that approach does not properly reflect the relationship between domestic law (considered apart from the Human Rights Act) and Convention rights.

55. The guarantees set out in the substantive articles of the Convention, like other guarantees of human rights in international law, are mostly expressed at a very high level of generality. They have to be fulfilled at national level through a substantial body of much more specific domestic law. That is true in the United Kingdom as in other contracting states. For example, the guarantee of a fair trial, under article 6, is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The guarantee of a right to respect for private and family life, under article 8, is fulfilled primarily through rules and principles found in such areas of domestic law as the law of tort, family law and constitutional law. Many other examples could be given. Article 5, in particular, is implemented through several areas of the law, including criminal procedure, the law relating to sentencing, mental health law and administrative law: indeed, article 5(4) is said to have been inspired by the English law of habeas corpus (Sanchez-Reisse v Switzerland (1987) 9 EHRR 71, 88). As these examples indicate, the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system.

56. The values underlying both the Convention and our own constitution require that Convention rights should be protected primarily by a detailed body of domestic law. The Convention taken by itself is too inspecific to provide the guidance which is necessary in a state governed by the rule of law. As the European court has said, "a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct" (Sunday Times v United Kingdom (1979) 2 EHRR 245, 271). The Convention cannot therefore be treated as if it were Moses and the prophets. On the contrary, the European court has often referred to "the fundamentally subsidiary role of the Convention" (see eg Hatton v United Kingdom (2003) 37 EHRR 28, para 97). In relation to article 5(4) in particular, the court has made it clear that in order for there to be compliance with that guarantee, there must in the first place be compliance with the relevant substantive and procedural rules of domestic law (Koendjbiharie v The Netherlands (1991) 13 EHRR 820, para 27).

57. Domestic law may however fail to reflect fully the requirements of the Convention. In that situation, it has always been open to Parliament to legislate in order to fulfil the United Kingdom's international obligations; as it has done, for example, in response to judgments of the European court concerning the application of article 5(4). The courts have also been able to take account of those obligations in the development of the common law and in the interpretation of legislation. The Human Rights Act has however given domestic effect, for the purposes of the Act, to the guarantees described as Convention rights. It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so. The Act also provides a number of additional tools enabling the courts and government to develop the law when necessary to fulfil those guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not however supersede the protection of human rights under the common law or statute, or create a discrete body of law based upon the judgments of the European court. Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.

58. That approach is now well established. A few examples may be given. In R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 a policy that prisoners should be absent from their cells while they were being searched for contraband, as applied to a prisoner who had correspondence with his solicitor in his cell, was held to be unlawful on the ground that it infringed the prisoner's common law right that the confidentiality of privileged legal correspondence be maintained. Lord Bingham of Cornhill noted in the final paragraph of his speech that that result was compatible with article 8 of the Convention. In that regard he adopted the observations of Lord Cooke of Thorndon, who said (para 30):

"It is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them."

59. When the House of Lords considered in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350 the circumstances in which determinate sentence prisoners recalled to prison were entitled to an oral hearing before the board, it took the common law as its starting point, and considered judgments of the European court, together with judgments from a number of common law jurisdictions, in deciding what the common law required. It went on to hold that the board's review of the prisoner's case would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the common law requirements of procedural fairness. That decision is of obvious relevance to the present appeals.

60. Similarly, when the House of Lords rejected the admission of evidence obtained by torture, it did so on the basis of the common law: A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221. Lord Bingham observed at para 51 that English common law had regarded torture and its fruits with abhorrence for over 500 years, and concluded at para 52 that the principles of the common law, standing alone, compelled the exclusion of third party torture evidence. He noted that that was consistent with the Convention.

61. More recently, the importance of the continuing development of the common law, in areas falling within the scope of the Convention guarantees, was emphasised by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618. The case concerned access by the Press to documents referred to in court, and was decided on the basis of the common law, including authorities from other jurisdictions, rather than on the basis of article 10 of the Convention. Toulson LJ, with whose reasoning the other members of the court agreed, stated at para 88:

"The development of the common law did not come to an end on the passing of the Human Rights Act 1998 . It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere."

62. Finally, in this connection, in R (Faulkner) v Secretary of State for Justice [2013] UKSC 23; [2013] 2 WLR 1157, para 29, the ordinary approach to the relationship between domestic law and the Convention was described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK's international obligations, the starting point being our own legal principles rather than the judgments of the international court.

63. Against the background of those authorities, the error in the approach adopted on behalf of the appellants in the present case is to suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with the Strasbourg case law. Properly understood, Convention rights do not form a discrete body of domestic law derived from the judgments of the European court. As Lord Justice-General Rodger once observed, "it would be wrong … to see the rights under the European Convention as somehow forming a wholly separate stream in our law; in truth they soak through and permeate the areas of our law in which they apply" (HM Advocate v Montgomery 2000 JC 111, 117).

Kennedy v The Charity Commission[2014] UKSC 20 (26 March 2014) - para. 46 (Lord Mance), para. 133 (Lord Toulson)

46. Since the passing of the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers made to the Convention's inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common or domestic statute law. Not surprisingly, therefore, Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 282-284 and the House in Derbyshire County Council v The Times Newspapers Ltd [1993] AC 534, 551E both expressed the view that in the field of freedom of speech there was no difference in principle between English law and article 10. In some areas, the common law may go further than the Convention, and in some contexts it may also be inspired by the Convention rights and jurisprudence (the protection of privacy being a notable example). And in time, of course, a synthesis may emerge. But the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene. As Toulson LJ also said in the Guardian News and Media case, para 88: "The development of the common law did not come to an end on the passing of the Human Rights Act 1998. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition". Greater focus in domestic litigation on the domestic legal position might also have the incidental benefit that less time was taken in domestic courts seeking to interpret and reconcile different judgments (often only given by individual sections of the European Court of Human Rights) in a way which that Court itself, not being bound by any doctrine of precedent, would not itself undertake.

133. The analysis set out above is based on common law principles and not on article 10, which in my view adds nothing to the common law in the present context. This is not surprising. What we now term human rights law and public law has developed through our common law over a long period of time. The process has quickened since the end of World War II in response to the growth of bureaucratic powers on the part of the state and the creation of multitudinous administrative agencies affecting many aspects of the citizen's daily life. The growth of the state has presented the courts with new challenges to which they have responded by a process of gradual adaption and development of the common law to meet current needs. This has always been the way of the common law and it has not ceased on the enactment of the Human Rights Act 1998, although since then there has sometimes been a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.

A v BBC [2014] UKSC 25, paras. 55 to 57 (Lord Reed)

The relationship between the Convention and domestic law

55. It was submitted on behalf of the BBC that the source of the court’s power to allow a party to legal proceedings not to disclose his identity publicly, in a situation where Convention rights are engaged, is to be found in the Convention rights themselves, rather than in the common law. Reference was made to In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 23 per Lord Steyn, and In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697, para 30 per Lord Rodger. These dicta were not however concerned with the conduct of court proceedings. They concerned a different issue, namely the jurisdiction of the English courts to make orders contra mundum restraining publicity relating to court proceedings, and in particular the publication of information identifying persons involved in those proceedings: a jurisdiction which might otherwise have been in doubt, as Lord Rodger noted.

56. It is apparent from recent authorities at the highest level, including Al Rawi and others v Security Service and others (JUSTICE and others intervening) [2011] UKSC 34; [2012] 1 AC 531, Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179 and Kennedy v The Charity Commission [2014] UKSC 20, that the common law principle of open justice remains in vigour, even when Convention rights are also applicable. In another recent decision, R (Osborn) v Parole Board [2013] UKSC 61; [2013] 3 WLR 1020, this court referred at para 61 to the importance of the continuing development of the common law in areas falling within the scope of the Convention guarantees, and cited as an illustration the case of R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 Intervening) [2012] EWCA Civ 420; [2013] QB 618, where an issue falling within the ambit of article 10 was decided by applying the common law principle of open justice. Similar observations were made in Kennedy v The Charity Commission at paras 46 and 133; and the majority judgments in that case provide a further illustration of the same approach.

57. That approach does not in any way diminish the importance of section 6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. As was made clear in Kennedy, however, the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and our domestic law in this area walk in step, and bearing in mind the capacity of the common law to develop as I have explained in para 40. As the case of V v United Kingdom demonstrates, it is however necessary to bear in mind that, although the Convention and our domestic law give expression to common values, the balance between those values, when they conflict, may not always be struck in the same place under the Convention as it might once have been under our domestic law. In that event, effect must be given to the Convention rights in accordance with the Human Rights Act.

Lady Brenda Hale, UK Constitutionalism on the March? (conclusion) 

What these cases show – both those focused on constitutional rights and those on the relationship between EU law and our constitutional order – is a growing awareness of the extent to which the UK’s constitutional principles should be at the forefront of the court’s analysis. The judgments in HS2 raise the issue that it does not follow from Factortame that the 1972 Act necessarily requires our courts to give primacy to EU law over all domestic law, regardless of its constitutional importance. And litigants (or more importantly litigators) have been reminded that they should look first to the common law to protect their fundamental rights: radical suggestions have been made about the power of judicial review to protect them. Whether this trend is developing as a response to the rising tide of anti-European sentiment among parliamentarians, the press and the public, whether it is putting down a marker for what might happen if the 1998 Act were repealed, whether it is a reflection of distinctive judicial philosophies of the judges who are at the forefront of this development, or whether it is simple irritation that our proud traditions of UK constitutionalism seemed to have been forgotten, I leave it to you and to the academics to decide.

Richard Clayton, “The Empire Strikes Back: common law rights and the Human Rights Act,” Public Law, January 2015, pp. 3-12 (footnotes omitted)

In A v Secretary of State for the Home Department the House of Lords’ rejection of the admission of evidence obtained by torture was, again, based on the common law. The right of access by the press to documents discussed in open court was decided on a common law basis in R. (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court. In Osborn v Parole Board the Supreme Court returned to the question of when fairness required an oral hearing. The reasoning in Guardian News was extended by the Supreme Court in Kennedy v Charity Commission, where it said obiter that the refusal of the Commission to disclose documents to a journalist concerning the Commission’s inquiries into George Galloway’s controversial Iraq charities could be challenged in ordinary judicial review proceedings: on the basis that the common law principle of open justice required disclosure by the Commission (unless there were strong countervailing considerations to the contrary).

The "common law’s emphatic reassertion in recent years of the importance of constitutional rights" has resulted in the new edition of De Smith cataloguing the following common law rights: access to a judicial remedy; the right to life; the liberty of the person; the doing of justice in public; the right to a fair hearing; the prohibition on the retrospective imposition of criminal penalty; freedom of expression; the rights of access to legal advice and to communicate confidentially with a legal adviser under the seal of legal professional privilege; limitations on searches of premises and seizure of documents; prohibition on the use of evidence obtained by torture; that a British citizen has a fundamental right to live in, or return to, that part of the Queen’s territory of which he is a citizen; the deprivation of property rights without compensation; the privilege against self-incrimination; a duty on the state to provide subsistence to asylum-seekers; and freedom of movement within the United Kingdom.

An expansive approach to common law rights has a number of benefits. It permits opportunities for cross fertilisation between Convention rights and common law rights, although this is unlikely to occur until the Supreme Court relaxes the principle that under the HRA the domestic courts should mirror the Strasbourg jurisprudence. It will enable the courts to develop autonomous principles from the HRA, which may be important if the right claimed cannot be grounded in Convention case law, if the claimant cannot prove he is a victim as defined by s.7 of the HRA or if the campaign to abolish the HRA gathers greater force.

But there are a number of practical difficulties which limit the impact of common law. First, the identification of common law rights is not straightforward, and may be ultimately, opened ended. Secondly and more importantly, the status of rights in English law is a powerful break on the reach of common law rights.

Identifying common law rights

Common law rights are often labelled as constitutional or fundamental rights. However, in R. v Lord Chancellor Ex p. Lightfoot Laws J emphasised that the law should be astute to confine the concept of constitutional right to that special class of rights which, in truth, everyone living in a democracy under the rule of law ought to enjoy. He equated these constitutional rights with those contained in the European Convention.
Nevertheless, it is difficult to define "constitutional rights", as Lord Rodger demonstrated in Watkins v Home Office, the case where the House of Lords reversed the Court of Appeal’s holding that damages for misfeasance in a public office could be awarded breaching constitutional rights. Lord Rodger said there was no magic to the term "constitutional right" and drew attention to the House of Lords decision in Nairn v University of St Andrews where female graduates of St Andrews and Edinburgh sought a declaration that they were entitled to vote as a "person" under the Representation of the People (Scotland) Act 1868. In Nairn the House of Lords decided that the legislation did not confer a right to vote on women graduates. According to Lord Loreburn LC "it would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process." Similarly, Lord Ashbourne said, "if it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement." Lord Rodger accepted that the phrase constitutional rights "work well enough" for statutory interpretation, but he pointed out that in using the language of "constitutional rights", the judges were, more or less explicitly, looking for a means of incorporation avant la lettre, of having the common law supply the benefits of incorporation without incorporation; and that now that the HRA is in place, such heroic efforts are unnecessary. However, he rejected the concept for the purposes of developing tort law.

It is therefore open to question whether the words "constitutional" or "fundamental" add anything to the search for common law rights. Sometimes it will be possible to search the international human jurisprudence to arrive at a consensus on broad human rights issues, such as the House of Lords achieved in Derbyshire CC v Times Newspapers when deciding whether the right to freedom of expression precluded a public body from brining proceedings for defamation. But this approach ignores the possibility of home grown common law rights, like the constitutional right to a jury trial, as Lord Diplock found in Attorney General v Gourier. I would argue that in the final analysis, the list of common law rights is inherently contestable, which explains why the textbooks give different lists of common law rights.

The status of common law rights

However, the most serious limitation on common law rights is that their precarious status in English law. Rights enacted by the HRA create positive obligations (whether absolute or qualified) with which a public authority must comply under s.6 of the HRA. By contrast, where statute interferes with common law rights, there is a statutory presumption which Lord Hoffmann described in R. v Secretary of State for the Home Department Ex p. Simms :

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

The principle of legality does not preclude the possibility that the presumption can be rebutted, as Lord Bingham found in Gillan v Metropolitan Police Commissioner. He decided that the principle of legality did not apply to stop and search powers which the Court of Appeal had described as "extraordinary" and as "sweeping and far beyond anything ever permitted by common law powers"—even if the Terrorism Act infringed a fundamental human right, itself (he said) a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. That approach was, however, rejected when the case came before the ECtHR which held that the powers of authorisation and confirmation as well as those of stop and search under the Terrorism Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse; and were therefore not "in accordance with law" under art.8. Proving the breach of a common law right can also be contentious. For example, in R. (on the application of Gujra) v Crown Prosecution Service the Supreme Court rejected a challenge to the lawfulness of the DPP’s policy when taking over a private prosecution; and disagreed whether the policy breached the principle of legality by interfering with the right of access to the Court.

Human rights are also of course protected under general administrative law principles. Thus, in R. v Ministry of Defence Ex p. Smith, the gays in the military case, the Court of Appeal said that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was Wednesbury reasonable. Nevertheless, the limits of Wednesbury were criticised by the ECtHR in Smith v United Kingdom; the ECtHR held that the threshold for finding the policy irrational was so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights was proportionate.

But there are other profound problems in asserting common law rights in administrative law cases. The application of administrative law principles is often fluid and uncertain, and different outcomes in a case may appear to be equally arguable. The paradigm case of R. v Cambridge Health Authority Ex p. B is illustrative. A 10 years old girl was diagnosed with non-Hodgkins lymphoma and underwent two courses of chemotherapy but relapsed. Her doctors believed that no further treatment could usefully be administered to her, estimating that she had six to eight weeks to live. Her father then obtained an opinion which estimated her chances of recovery at 10 to 20 per cent and sought funding for that treatment. Laws J held that the fundamental right to life was engaged, that it imposed a positive obligation on the health authority to provide treatment and that its reasons for refusing treatment were not justified, taking the view that the responsible authority must do more than toll the bell of tight resources and explain the priorities which lead them to refuse treatment.
Court of Appeal reversed Laws J’s holding. Sir Thomas Bingham MR acknowledged that the life of the young girl dominated consideration of all aspects of the case, but disagreed on the facts when analysing the justification put forward by the health authority. He said that judgments concerning the allocation of budgets were not a matter for the Courts, so it is not a fair criticism that the public body had failed to advance such evidence.

The upshot for the jobbing practitioner is that common law rights will ordinarily have less forensic impact than utilising positive Convention rights under the HRA. Ultimately, the doctrine of parliamentary sovereignty, the principle that rights are residual and the traditional status the common law accords to rights all combine to limit their impact.

The recent revival

It is therefore important to appreciate that some of the recent common law rights cases have unusual features which it is critical to identify.

The two cases on fairness and the obligation to give oral hearings in parole cases, West and Osborn, apply well established administrative law principles which are very different from invoking Convention rights. As Lord Reed emphasised, whether procedural fairness requires an oral hearing is a question the Court, itself, must determine. Fairness is a hard edged legal question and, in effect, public law fairness gives rise to a positive entitlement that the claimant must enjoy, as a specific obligation derived from longstanding and detailed domestic public law tenets.

There are elements of the Guardian News case which are, again, striking. Guardian News concerned the extradition of two British citizens on corruption cases to the United States. Journalists had attended hearings, where counsel referred to documents not read out in detail, including the skeleton arguments, affidavits and witness statements. The District Judge refused to order that the claimants be provided with copies or inspection which was upheld by the Divisional Court, but reversed by the Court of Appeal. The Court of Appeal decided that the requirements of the common law constitutional principle of open justice had to be determined by the Court in the exercise of its inherent jurisdiction, subject to any statutory provision to the contrary. These requirements applied to all tribunals exercising the judicial power of the state, irrespective of whether they were creatures of statute.

As in the fairness cases of West and Osborn, the Court of Appeal in Guardian News decided that application of the common law right in issue, open justice, was a hard edged issue of law—which was a matter for the Court to decide and apply. The Court was the master of its own procedure and therefore required to give effect to the constitutional right of open justice. As a result, the Court of Appeal avoided the need to resolve the question whether art.10 entails a right of access to information—an issue where Strasbourg courts in flux. The same concerns about the weakness of the Strasbourg jurisprudence led the Supreme Court in Kennedy to extend the common law principle of open justice to inquiries where a claim for disclosure was made concerning the Charity Commission’s investigations into George Galloway’s Iraq charities. In A the Supreme Court reiterated the principle that justice was to be administered by the courts in public so as to be open to public scrutiny was an aspect of the rule of law in a democracy, it was a constitutional principle to be found in the common law; and that the freedom of the media to report on court proceedings was inextricably linked to the principle of open justice

It is therefore submitted that West, Osborn, Guardian News, Kennedy and A are very unusual and unrepresentative common law rights cases; and do not reflect the more general principles which limit the effect of common law rights.

Modifying the principle of legality

However, the underlying position would alter if some fundamental underlying principles were modified. In the seven judge court which decided R. (on the application of Jackson) v Attorney General Lords Steyn, Hope and Hale suggested that, because the principle of parliamentary sovereignty is a common law construct, it would be open to the Supreme Court to decline to give effect to legislation abolishing judicial review. Whether the Courts would ever adopt such a radical proposition must be open to question.

An idea with more potential practical impact is the suggestion that the principle of legality could be modified, so that it is interpreted along the lines of s.3 of the HRA. In other words, could the courts adopt a rule of statutory construction that so far as possible, legislation must be interpreted to give effect to common law rights? Such a principle would result in common law rights prevailing- even if it meant that the Court gave a strained (but possible) meaning to the statutory provision in question, despite the fact that interpretation would depart from the unambiguous meaning of legislation, as conventionally construed.

There is no reason in theory, at any rate, which would prevent the courts developing such a principle. But there are formidable obstacles which need to be addressed. First, there may well be no obvious or compelling rationale for this development, beyond the fact that Parliament abolished the HRA. Secondly, the modified principle has no legal pedigree, unlike the long established principle of legality. Thirdly, it is difficult to reconcile the reasoning to justify the modified principle with Brind —where the House of Lords rejected the broad argument that legislation should be interpreted in conformity with the European Convention, but accepted that it might be used to resolve ambiguity or uncertainty in a statutory provision. There are other difficulties of principle to overcome; so that the modification of the principle of legality is not straightforward.

Conclusion

I would argue that weak status the common law accords to rights protection is a fundamental obstacle to their future development. Although some of the recent cases suggest that common law rights must not be overlooked, their general significance should not be overstated.

Helen Fenwick: An appeasement approach in the European Court of Human Rights? - UK Constitutional Law Association, 5 April 2012

This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the Court is taking an approach that looks like one of appeasement of certain signatory states.  Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconciliable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?

British proposals for reform of the Strasbourg Court

This is not the place to discuss the proposals for reform of the ECtHR in detail and most readers will be aware of their general drift in any event. The idea of ‘greater subsidiarity’ has been raised at various levels, and accorded various meanings in advance of the imminent High Level Conference at Brighton on the future of the Court. The reform process began in 2010 with the Interlaken and Izmir declarations. Members of the Bill of Rights Commission, which has a second brief regarding its advisory role on reform of the Strasbourg court, linked to British chairmanship of the Council of Europe, take the view that both declarations reflect a desire for greater subsidiarity. Anthony Speaight, Commission member, has indicated that it will look into the question of creating an enhanced margin of appreciation, allowing for greater subsidiarity, on the basis that that would be in accordance with the Interlaken and Izmir Declarations since “one finds in each of them a statement of wish and aspiration for greater subsidiarity”. When the Commission provided its interim advice to Ministers on Strasbourg reform in 2011, it accompanied it by a letter which raised the perception of some, either expressed to the Commission or of some Commission members, that the Court is at times “too interventionist in matters that are more appropriate for national legislatures or courts to decide”. Areas that the Commission has stated it is inquiring into are those of including a democratic override in the ECHR along the lines of s33 of the Canadian Charter and that of introducing ‘subsidiarity reviews’ by analogy with the EU treaty, on the basis of according a power to the Committee of Ministers to resolve that a judgment should not be enforced if it infringed the principle of subsidiarity. The Commission Chair said in the letter that that “would arguably reflect the Izmir Declaration”.

The government’s plans for reform of the Strasbourg Court have been extensively trailed in the run up to the Brighton Conference in April 2012. It was stated in 2011 (according to Parliamentary written answers and statements, 18th March 2011) that the government would use the Chairmanship to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court. Intervening in Scoppola v Italy No. 3, Grieve made a further statement indicative of this plan for reform of the Court. He said that a number of states have restrictions or complete prohibitions on prisoners voting, and “this is, and should be, a political question – by which I mean a question for democratically elected representatives to resolve, against the background of [their state’s] circumstances and political culture”. He considered that acknowledging the doctrine of the margin of appreciation in that way would result in the EtCHR intervening only when “the decision of the national authorities is manifestly without reasonable foundation”.

David Cameron’s speech  to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the 2012 Qatada case (above), as illustrating the need for reform, he said “we have gone through all reasonable national processes…including painstaking international agreements about how they should be treated …and scrutiny by our own courts…and yet we are still unable to deport [or detain] them”. The members of the assembly voted unanimously to agree that the court should be “subsidiary” to national authorities – governments, courts and parliaments – in guaranteeing human rights. Clearly, the effect of that decision will depend on the precise reforms agreed upon at Brighton. A draft declaration for that conference was ‘leaked’ on 23 Feb 2012, and published in various forums. It focuses on the grave problem of the back-log of cases facing the Court and makes proposals intended to create greater acceptance of the ECHR at national level, to allow the Court to focus on the more significant claims, and to avoid it being faced by persistent claims that should be dealt with at national level. But among laudable proposals for dealing with the back-log, it includes the following – at para 19(a): “The conference therefore welcomes the development of the Court within its case-law of principles such as subsidiarity and the margin of appreciation doctrine…and encourages the Court to give great prominence to these principles in its judgements; (b) Concludes that the transparency and accessibility of the principles of the margin of appreciation and subsidiarity should be enhanced by their express inclusion in the Convention, and invites the Committee of Ministers to adopt the necessary amending instrument within one year”. Para 23(b) on options for amending the admissibility criteria proposes that an application should be declared inadmissible if it is the same in substance as a matter that has already been determined by the national courts unless the Court considers that the national court “clearly erred in its application or interpretation of the Convention rights or the application clearly raises a serious question concerning the application and interpretation of the Convention”.

Austin v UK and Von Hannover v Germany (No 2)

It is in this context that the cases of Austin v UK and Von Hannover (No 2) are considered, in order to argue that certain of the proposals currently being put forward are echoed in dominant themes within the judgments.

The decision in the House of Lords in Austin v The Commissioner of the Police of the Metropolis, finding that ‘kettling’ peaceful protesters and bystanders for 7 hours did not create a deprivation of liberty, has been heavily criticised; it was expected that the ECtHR would take a different stance. In the House of Lords, the key question was whether such entrapment of persons via ‘kettling’ amounted to a deprivation of liberty under Article 5(1). Lord Hope considered that in making a determination as to the ambit of Article 5(1), the purpose of the interference with liberty could be viewed as relevant; if so, he found that it must be to enable a balance to be struck between what the restriction sought to achieve and the interests of the individual (at para. 27). Having found that purpose was relevant to the ambit given to Article 5(1), Lord Hope found that the purpose must take account of the rights of the individual as well as the interests of the community, and therefore any steps taken must be resorted to in good faith, and must be proportionate to the situation which made the measures necessary. If these requirements were met, however, he concluded that it would be proper to find that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them if the measures are proportionate to the aim pursued (at para. 34).

When this decision was challenged at Strasbourg (Austin v UK (2012)), the Grand Chamber took a stance towards the deprivation of liberty question which was very similar to that taken by the House of Lords, finding: “the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good….The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)” (at para. 59).

Applying these findings, and affirming that “subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19” (at para. 61), the Court went on to find that in accordance with the Engel (Engel v Netherlands (1976)) criteria (for determining when a deprivation of liberty occurs), the coercive nature of the containment within the cordon, its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty. However, the Court found that, relying on the context of imposition of the ‘kettle’, the purpose of its imposition must be taken into account – to “isolate and contain a large crowd, in volatile and dangerous conditions”. The Court found no reason to depart from the findings of fact of the first instance judge as to the dangerousness of the situation. Although the Court did not refer expressly to proportionality, it clearly adverted to that concept in finding that the measure taken appeared to be the “least intrusive and most effective means to be applied” (at para. 66).  On that basis no deprivation of liberty was found, meaning that it was not necessary to consider the exceptions to Article 5. Thus, in essentials, the Grand Chamber’s judgment did not differ from that of the House of Lords.

A strong joint dissenting opinion trenchantly criticised the findings of the majority on the basis that its position could be interpreted as “implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable…”. It was found to be objectionable since if in the public order context liberty-depriving measures were deemed to lie outside Article 5 if claimed to be necessary for any legitimate/public-interest purpose, “States would be able to “circumvent the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5(1) (a) to (f), as long as they could show that the measure was necessary”. They pointed out that in A and Others v the United Kingdom (2009), the Court refused to accept the Government’s argument that Article 5(1) allows a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat, finding: “If detention does not fit within the confines of the paragraphs [Art 5(1) (a)-(f)] as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (at para. 171).

The decision in Austin can indeed be critiqued, as in the joint dissenting opinion, on the basis that it in effect creates a new, very broad, exception to Article 5, while purporting to avoid doing so by relating the public interest argument to the issue of ambit. Given that the Court relied on “context” to determine the application of Article 5, and given the need to interpret the ECHR as a whole, the fact that the protesters were seeking to exercise Art 10 and 11 rights, could have been viewed as creating differentiation between the crowd control situations mentioned by the court and the context of protest: the Grand Chamber considered the public order context but not – as a determining factor – the public protest one. A new amendment to Article 5 may be needed to clarify this position, but in the meantime the creation in effect of an exception to Article 5 on broad public interest grounds, represents a worrying trend.

The Grand Chamber reiterated, on the basis of a principle of subsidiarity, that it should only interfere in a domestic decision as to facts on very cogent grounds. But it is suggested that impliedly it went further: it applied the principle of subsidiarity not to the findings of fact only, but to the interpretation of Art 5(1). The House of Lords had found that public interest considerations were relevant to ambit, subject to a test of proportionality. The Grand Chamber, as the joint dissenting opinion pointed out, accepted that analysis in effect – though without overtly referring to proportionality – despite the fact that it ran counter to the findings in A v UK on the interpretation of Art 5(1). The result was consistent with the proposition that the Grand Chamber came very close to accepting that it would require very compelling reasons to depart from the decision of a superior national court that had applied the Convention, taking a particular view of its interpretation, to a set of facts – even where that court could not point to ECHR jurisprudence bearing closely on the matter before it. That stance would be in accordance with both para 19(b) and 23(b) of the leaked Brighton declaration. Obviously 23(b) refers to admissibility, not substance, but para 23(b) in effect demands subsidiarity not merely in relation to fact-finding, but also in relation to interpretation of the Convention.

There is a wider message to be drawn from this narrow approach to the right to liberty which, it is argued, was lost in the pursuit of subsidiarity. In an age of Anti-Social Behaviour Orders,  Serious Crime Prevention Orders, and of a range of state powers that interfere with liberty in the contexts of both counterterrorism[1] and public protest, the question whether a “deprivation of liberty” refers to literal physical restraint as in prison, or to something much more amorphous, is of especial importance, and resonates far beyond the public protest context. The varied ways of interfering with liberty now available to the state, render the traditional idea of focusing on physical restraint outdated (this point is touched on in H Fenwick and G Phillipson McGill Law Journal 56(4): 864-918 at 889-890). Had the police arrested the 4 applicants in Austin and detained them for 7 hours, rather than kettling them, there would have been no question as to whether Article 5 applied – the only issue would have been as to the applicability of the exception under Art 5(1)(c). Thus the Court has impliedly accepted that if a non-paradigm case of interference with liberty arises, but there appears to be a pressing need to employ the measure in question on public interest grounds, the “deprivation of liberty” concept should receive a narrow interpretation, placing the measure outside it, even if the Engels criteria appear to apply.

If Austin v UK appeared to rely on an enhanced principle of subsidiarity, Von Hannover v. Germany (no. 2) (2012), also in the Grand Chamber relied, it appeared, on an enhanced application of the margin of appreciation principle (arguably reflecting para 19(a) of the draft Brighton declaration), this time in the context of a clash between protection for private life and for freedom of expression. Relying on the Court’s 2004 Von Hannover judgment, in the first applicant’s case, the applicants had subsequently brought several sets of proceedings in the civil courts in Germany seeking an injunction against any further publication of photos that had appeared in German magazines. They did not obtain relief, however, in relation to an article, partly about the Prince’s illness, accompanying photos of the applicants’ skiing holiday, nor in relation to the photos themselves.

The Grand Chamber noted that after the 2004 Von Hannover decision, the German courts had altered their approach and had sought to balance Articles 10 and 8 against each other in accordance with the Strasbourg stance. The Court accepted that the photos and article fell within the concept of private life under Article 8(1). Thus Articles 8 and 10 had to be balanced against each other. However, the Court found that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (relying on MGN Limited v. the United Kingdom, no. 39401/04, at [150] and [155]). Although the photos were of the applicants on a skiing holiday, the national courts found that they could be linked to and supportive of the article, which did concern a matter of public interest – the Prince’s illness. The Grand Chamber accepted this finding, even though the pictures made little or no contribution to the matter of the illness.

This decision re-confirmed that Articles 8 and 10 are of equal value. But, under the margin of appreciation doctrine, it made it clear that the Court will require “strong reasons” to substitute its view for that of the domestic courts where a balancing exercise between Article 10 and 8 has been undertaken at the domestic level. The Court appears to be contemplating an expanded version of that doctrine, one under which the role of its own assessment of the extent to which paparazzi photos are deemed of value in Article 10 terms is marginalised. The acceptance that the photos in question added something to the article was clearly open to question. The photos were of the same nature as those at stake in the 2004 Von Hannover case which were found to contribute virtually nothing to any significant debate as to public affairs.

The danger may arise that a balancing exercise between Arts 8 and 10 may be apparently carried out domestically, but in a tokenistic manner, allowing flimsy public interest arguments to prevail. In other words, the arguments may be rehearsed by courts without any real attempt to probe the values at stake on either side. The argument accepted by the Court in Axel Springer v. Germany (2012) that since the actor applicant had been arrested and had also played a police officer, the public’s interest in knowing of his arrest was increased, could be applied in broad brush manner domestically, as could the argument that his expectation that his private life would be protected had been reduced since he had placed details of his private life in the public domain.

Conclusions

The suggestion of this piece is that the cases considered may be indicative of a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist. The Court in highlighting the role of the margin of appreciation and the principle of subsidiarity in these cases may be seeking to demonstrate that it is receptive to ‘reform’, and softening towards it, rather than being coerced into it. Under the banners of “margin of appreciation” and “subsidiarity” – without creating clear differentiation between those terms – both cases rely on deferring to the nationally created balance between public interest and individual liberty on the one hand, and between two competing rights on the other. The current debate on reform of the Convention system must consider how far pursuit of enhanced subsidiarity can and should represent a welcome attempt to constitutionalise the Convention more fully at national level without relinquishing its role as a means of delivering individual justice, with consequent changes at that level. That debate might also usefully consider the reality behind the desire for reform of senior Conservatives. How far does that desire relate to seeking to create greater respect for the Convention across all member states at national constitutional level, and greater convergence in terms of respecting Convention standards, to reduce the pressure on the Court? In reality, is the key concern to return autonomy in human rights matters to the Westminster Parliament by reducing the likelihood of Strasbourg intervention?

RMT v United Kingdom: Sympathy Strikes and the European Court of Human Rights, John Hendy QC and Michael Ford QC 10th April 2014, Oxford Human Rights Hub

In RMT v United Kingdom the European Court of Human Rights held that the ban on secondary action in the United Kingdom was a justified interference with the right to freedom of association in Article 11 of the ECHR. The RMT contended that its members employed by Hydrex were unable to take effective strike action to maintain their terms of employment owing to the prohibition on secondary action now found in s.224 of TULRCA 1992.

The Court, first, rejected the argument of the government that Article 11 did not apply at all to secondary action, referring to ILO Convention No.87, Article 6 of the European Social Charter and its earlier decision in Demir. Taking secondary action, the Court held, was part of trade union activity covered by Article 11. After deciding, second, that the ban pursued the legitimate aim of seeking to protect the rights and freedoms of others not involved in the dispute, the Court turned to consider the critical issue of whether the ban was justified because necessary in a democratic society.

The Court emphasised that the margin of appreciation was wide in the context of industrial and economic policies of the state.  However, it noted factors counting in favour of the RMT. One was the practice across European States, illustrating that the UK was one of a small group of European countries which adopted an outright ban on secondary strikes, at the far end of the spectrum. Another was the repeated criticisms of the UK’s prohibition of sympathy action by the ILO Committee of Experts and by the decisions of the European Committee on Social Rights on the Social Charter. The Court also referred to how a ban on secondary action could in some contexts, such as an out-sourced workforce, severely hamper trade unions’ efforts to protect their members. But having decided that the interference with freedom of association in Hydrex was not especially far-reaching, and in light of the breadth of the margin of appreciation in this area, the Court decided that the cogent arguments adduced by the RMT on trade union solidarity and efficacy were not sufficient to persuade it that the ban was disproportionate.

The case is important for its clear recognition that restrictions on industrial action, including sympathy strikes, are protected by Article 11. It leaves open the possibility that in other circumstances restrictions (including the ban on secondary action) will not be justifiable under Article 11(2). But it also reflects a trend in recent judgments of the Court, exemplified by e.g. the judgment of the Grand Chamber in Sindicatul Pastorul cel Bun v Romania, of affording States a wide margin of appreciation in relation to what the Court views as sensitive matters of social policy.

It is likely that some commentators will conclude that the judgment represents nothing short of an appeasement by the ECtHR of the UK government’s threats to withdraw from European Convention and its repeated attacks on the ECtHR so evident in the UK stance at the 2013 Committee of Ministers’ meeting in Brighton which lead to the Brighton Declaration and the subsequent inclusion of the references to ‘margin of appreciation’ and ‘subsidiarity’ in the Preamble to the Convention. Certainly, parts of the judgment could be seen in that way and there is no doubt that the judges of the ECtHR have been eager to reassure the UK government, British judges and elements of the English media that little or no threat is posed to the autonomy of the British legal system by the ECtHR or the Convention. The official visit by the President and Vice-Presidents of the ECtHR to the British judges last month (with the President giving a lecture at UCL on ‘Wither the Margin of Appreciation?’) and the recent article by the former President (N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human rights”, (2014) EHRLR 116) might be thought to be illustrative of their concern to reassure. The cynical commentator might say that the judgment is a demonstration of that reassurance. Whether the trade union movement in the UK or in Europe will view the Court’s treatment of the right to strike as reassuring is doubtful.

Britain’s got it way its way on prisoners’ votes – so why withdraw from the ECHR? - Carl Gardner, Head of Legal Blog, 11.2.15

In yesterday’s judgment on 1,015 “legacy” applications, the European Court of Human Rights ruled once again that the legislative bar on prisoners’ voting breaches article 3 of the first protocol to the European Convention. That result was predictable given the Court’s case law on votes for prisoners.

But more importantly, the Court awarded none of these successful applicants a penny in damages; and not a penny in costs, either. The Court has drawn a line under its dispute with the UK, and will do nothing further to raise the stakes.

We’ve known for a long time that there were hundreds if not thousands of applications by prisoners, piggy-backing on John Hirst’s successful complaint over ten years ago now. These cases were stayed for a time, following the Greens & MT “pilot judgment” against the UK in 2010, in which the Court said explicitly that UK law must change. But they were later revived, Parliament still not having legislated.

The fact that so many claims have been outstanding led many in the media to speculate about the huge sums we might have to pay, £160 million being mentioned at one stage (and debunked by Adam Wagner at the UK Human Rights Blog). These sums were plucked out of the air, often combined with the factoid that the Court could fine the UK – which it can’t. What it can do is compensate applicants (a very different matter, since it allows for no punitive element) and award them legal costs. I think the figures bandied about may have originated from a fag-packet reckoning by John Hirst himself, though I don’t complain against him: he was campaigning, so it was fair enough to argue about how much this “could” cost.

But the total bill from these 1000+ cases amounts to £0.00. Fears of the fiscal impact of this dispute were exaggerated. George Osborne and the Office for Budget Responsibility need not revise their deficit forecasts.

Yes, some cases remain, including more that relate to European elections and some about the Scottish referendum. But it’s hard to see how prisoners can hope to be awarded damages or costs, even if they win. The same must go for any leftover claims about Westminster Parliament votes.

In truth, it’s hard to see how the European Court could ever have upped the ante with the UK. It’s doubtful that its powers are wide enough. So to call this a Strasbourg surrender would go too far. But choosing to award neither damages nor (and this is the telling point) any legal costs means the Court is washing its hands of this, and wants no more cases added to its backlog. The message to prisoners and their lawyers is clear: apply, and you’ll have a symbolic win. There’s no cash in it.

Abu Qatada is abroad; our courts can impose whole-life orders; and Britain’s continuing failure to give prisoners the vote is cost-free. It’s now simply a diplomatic issue for the Council of Europe’s committee of ministers, who must know this is not the worst case of non-implementation, and are unlikely to take drastic action.

The “dialogue” approach pursued by Dominic Grieve when he was Attorney General and supported by an increasing number of our own judges in recent years, has succeeded. British pushback and the 2012 Brighton reforms have changed the weather in Strasbourg, where the Court is showing a new restraint – arguably excessive restraint in some cases, leading to confused rulings like the one about the niqab ban in France. But it’s a restraint that will be welcome in Britain.

What should we make now, then, of Conservative plans to make Strasbourg judgments “merely advisory” or else pull out of the human rights convention entirely? Those plans are yesterday’s solution to yesterday’s problem, with nothing to support them save the odd grumble about deporting a foreign criminal – and the hot air generated by UKIP.

• Annen v. Germany I (2015) —> Annen v. Germany II (2018)
• HÄMÄLÄINEN (2014)  —> Fedotova (2023)
• Margin applied to one issue, but not the other issue
  
  
• Oliari and Others re: emerging consensus on same-sex relationships 
• ABC v. Ireland (2010) — no application of consensus.
• Dorota Rabczewska v. Poland (2022) — esp. Dissent of JUDGE WOJTYCZEK 
  
  
• Handyside v. UK (1976)
• Dudgeon v. UK (1981) 
  
  
• Protocol No. 15 
• Margin of Appreciation doctrine

The IACHR is a principal and autonomous organ of the Organization of American States (“OAS”) whose mission is to promote and protect human rights in the American hemisphere. It is composed of seven independent members who serve in a personal capacity. Created by the OAS in 1959, the Commission has its headquarters in Washington, D.C. Together with the Inter-American Court of Human Rights (“the Court” or “the I/A Court H.R.), installed in 1979, the Commission is one of the institutions within the inter-American system for the protection of human rights (“IAHRS”).

The formal beginning of the IAHRS was approval of the American Declaration of the Rights and Duties of Man at the Ninth International Conference of American States held in Bogota in 1948. There the OAS Charter (hereinafter “the Charter”) was adopted, which declares that one of the principles upon which the Organization is founded is the “fundamental rights of the individual.”

Full respect for human rights appears in several sections of the Charter, underscoring the importance that the Member States attach to it. In the words of the Charter, “the true significance of American solidarity and good neighborliness can only mean the consolidation on this continent, within the framework of democratic institutions, of a system of individual liberty and social justice based on respect for the essential rights of man.” The Charter establishes the Inter-American Commission on Human Rights (IACHR) as one of the principal organs of the OAS whose function is to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.

The work of the IACHR rests on three main pillars:

• the individual petition system;
• monitoring of the human rights situation in the Member States, and
• the attention devoted to priority thematic areas.

Operating within this framework, the Commission considers that inasmuch as the rights of all persons subject to the jurisdiction of the Member States are to be protected, special attention must be devoted to those populations, communities and groups that have historically been the targets of discrimination. However, the Commission’s work is also informed by other principles, among them the following: the pro homine principle, whereby a law must be interpreted in the manner most advantageous to the human being; the necessity of access to justice, and the inclusion of the gender perspective in all Commission activities.

The Inter-American Court is one of three regional human rights tribunals, together with the European Court of Human Rights and the African Court of Human and Peoples’ Rights. It is an autonomous legal institution whose objective is to interpret and apply the American Convention. The Inter-American Court exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures.

In accordance with the American Convention, the Court mainly exercises three functions: (I) contentious, (II) the power to issue provisional measures, and (III) the advisory function.

Twenty States have recognized the contentious jurisdiction of the Court, including as follows: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.

The contentious (adjudicatory) function requires the Court to rule on cases brought before it in which a state party to the Convention is accused of a human rights violation.

Under the Convention, cases can be referred to the Court by either the Commission or a state party. (Individual citizens of the OAS member states are not allowed to take cases directly to the Court.) Individuals who believe that their rights have been violated must first lodge a complaint with the Commission, which must rule on the admissibility of the claim. If the case is ruled admissible and the state is deemed at fault, the Commission will typically provide the state with a list of recommendations to make amends for the violation. Only if the state fails to abide by these recommendations, or if the Commission decides that the case is of particular importance or legal interest, will the case be referred to the Court. The presentation of a case before the Court can therefore be considered a measure of last resort, taken only after the Commission has failed to resolve the matter in a non-contentious fashion.

Velásquez Rodríguez v. Honduras, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)

…

3. According to the petition filed with the Commission, and the supplementary information received subsequently, Manfredo Velasquez, a student at the National Autonomous University of Honduras, " was violently detained without a warrant for his arrest by members of the National Office of Investigations ( DNI ) and G-2 of the Armed Forces of Honduras. " The detention took place in Tegucigalpa on the afternoon of September 12, 1981. According to the petitioners, several eyewitnesses reported that Manfredo Velasquez and others were detained and taken to the cells of Public Security Forces Station No. 2 located in the Barrio E1 Manchen of Tegucigalpa, where he was " accused of alleged political crimes and subjected to harsh interrogation and cruel torture. " The petition added that on September 17, 1981, Manfredo Velásquez was moved to the First Infantry Battalion, where the interrogation continued, but that the police and security forces denied that he had been detained. ...

56. The Court will first consider the legal arguments relevant to the question of exhaustion of domestic remedies and then apply them to the case.

57. Article 46( 1 )( a ) of the Convention provides that, in order for a petition or communication lodged with the Commission in accordance with Articles 44 or 45 to be admissible, it is necessary

"that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law."

58. The same article, in the second paragraph, provides that this requirement shall not be applicable when

"a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;

b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies." …

61. The rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law before being confronted with an international proceeding. This is particularly true in the international jurisdiction of human rights, because the latter reinforces or complements the domestic jurisdiction ( American Convention, Preamble ).

62. It is a legal duty of the States to provide such remedies, as this Court indicated in its Judgment of June 26, 1987, when it stated:

"The rule of prior exhaustion of domestic remedies under the international law of human rights has certain implications that are present in the Convention. Under the Convention, States Parties have an obligation to provide effective judicial remedies to victims of human rights violations ( Art. 25 ), remedies that must be substantiated in accordance with the rules of due process of law ( Art. 8( 1 ) ), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction ( Art. 1 ). ( Velásquez Rodríguez Case, Preliminary Objections, supra 23, para. 91 )."

63. Article 46( 1 )( a ) of the Convention speaks of "generally recognized principles of international law. " Those principles refer not only to the formal existence of such remedies, but also to their adequacy and effectiveness, as shown by the exceptions set out in Article 46( 2 ).

64. Adequate domestic remedies are those which are suitable to address an infringement of a legal right. … If a remedy is not adequate in a specific case, it obviously need not be exhausted. A norm is meant to have an effect and should not be interpreted in such a way as to negate its effect or lead to a result that is manifestly absurd or unreasonable…

65. Of the remedies cited by the Government, habeas corpus would be the normal means of finding a person presumably detained by the authorities, of ascertaining whether he is legally detained and, given the case, of obtaining his liberty. … If, however, as the Government has stated, the writ of habeas corpus requires the identification of the place of detention and the authority ordering the detention, it would not be adequate for finding a person clandestinely held by State officials, since in such cases there is only hearsay evidence of the detention, and the whereabouts of the victim is unknown.

66. A remedy must also be effective - that is, capable of producing the result for which it was designed. Procedural requirements can make the remedy of habeas corpus ineffective: if it is powerless to compel the authorities; if it presents a danger to those who invoke it; or if it is not impartially applied.

67. On the other hand, contrary to the Commission's argument, the mere fact that a domestic remedy does not produce a result favorable to the petitioner does not in and of itself demonstrate the inexistence or exhaustion of all effective domestic remedies. For example, the petitioner may not have invoked the appropriate remedy in a timely fashion.

68. It is a different matter, however, when it is shown that remedies are denied for trivial reasons or without an examination of the merits, or if there is proof of the existence of a practice or policy ordered or tolerated by the government, the effect of which is to impede certain persons from invoking internal remedies that would normally be available to others. In such cases, resort to those remedies becomes a senseless formality. The exceptions of Article 46( 2 ) would be fully applicable in those situations and would discharge the obligation to exhaust internal remedies since they cannot fulfill their objective in that case. …

74. The record before the Court shows that the following remedies were pursued on behalf of Manfredo Velásquez: [The opinion details multiple habeas corpus petitions and criminal complaints.]

76. The record … contains testimony of members of the Legislative Assembly of Honduras, Honduran lawyers, persons who were at one time disappeared, and relatives of disappeared persons, which purports to show that in the period in which the events took place, the legal remedies in Honduras were ineffective in obtaining the liberty of victims of a practice of enforced or involuntary disappearances ( hereinafter " disappearance " or " disappearances " ), ordered or tolerated by the Government. The record also contains dozens of newspaper clippings which allude to the same practice. According to that evidence, from 1981 to 1984 more than one hundred persons were illegally detained, many of whom never reappeared, and, in general, the legal remedies which the Government claimed were available to the victims were ineffective. …

78. The evidence offered shows that lawyers who filed writs of habeas corpus were intimidated, that those who were responsible for executing the writs were frequently prevented from entering or inspecting the places of detention, and that occasional criminal complaints against military or police officials were ineffective, either because certain procedural steps were not taken or because the complaints were dismissed without further proceedings. …

80. The testimony and other evidence received and not refuted leads to the conclusion that, during the period under consideration, although there may have been legal remedies in Honduras that theoretically allowed a person detained by the authorities to be found, those remedies were ineffective in cases of disappearances because the imprisonment was clandestine; formal requirements made them inapplicable in practice; the authorities against whom they were brought simply ignored them, or because attorneys and judges were threatened and intimidated by those authorities.

81. …The evidence offered by the Commission … is sufficient to reject the Government's preliminary objection that the case is inadmissible because domestic remedies were not exhausted.

82. The Commission presented testimony and documentary evidence to show that there were many kidnappings and disappearances in Honduras from 1981 to 1984 and that those acts were attributable to the Armed Forces of Honduras ( hereinafter " Armed Forces " ), which was able to rely at least on the tolerance of the Government. Three officers of the Armed Forces testified on this subject at the request of the Court. …

107. According to the testimony of his sister, eyewitnesses to the kidnapping of Manfredo Velásquez told her that he was detained on September 12, 1981, between 4:30 and 5:00 p.m., in a parking lot in downtown Tegucigalpa by seven heavily-armed men dressed in civilian clothes ( one of them being First Sgt. José Isaías Vilorio ), who used a white Ford without license plates ( testimony of Zenaida Velásquez. See also testimony of Ramón Custodio López ). …

113. The former member of the Armed Forces who claimed to have belonged to the group that carried out kidnappings told the Court that, although he did not take part in the kidnapping of Manfredo Velásquez, Lt. Flores Murillo had told him what had happened. According to this testimony, Manfredo Velásquez was kidnapped in downtown Tegucigalpa in an operation in which Sgt. José Isaías Vilorio, men using the pseudonyms Ezequiel and Titanio, and Lt. Flores Murillo himself, took part. The Lieutenant told him that during the struggle Ezequiel's gun went off and wounded Manfredo in the leg. They took the victim to INDUMIL ( Military Industries ) where they tortured him. They then turned him over to those in charge of carrying out executions who, at the orders of General Alvarez, Chief of the Armed Forces, took him out of Tegucigalpa and killed him with a knife and machete. They dismembered his body and buried the remains in different places ( testimony of Florencio Caballero ). …

115. One witness testified that he was taken prisoner on September 29, 1981 by five or six persons who identified themselves as members of the Armed Forces and took him to the offices of DNI. They blindfolded him and took him in a car to an unknown place, where they tortured him. On October 1, 1981, while he was being held, he heard a moaning and pained voice through a hole in the door to an adjoining room. The person identified himself as Manfredo Velásquez and asked for help. According to the testimony of the witness, at that moment Lt. Ramón Mejía came in and hit him because he found him standing up, although the witness told the Lieutenant that he had gotten up because he was tired. He added that, subsequently, Sgt. Carlos Alfredo Martínez, whom he had met at the bar where he worked, told him they had turned Manfredo Velásquez over to members of Battalion 316 ( testimony of Leopoldo Aguilar Villalobos )….

117. The Commission also presented evidence to show that from 1981 to 1984 domestic judicial remedies in Honduras were ineffective in protecting human rights, especially the rights of disappeared persons to life, liberty and personal integrity. …

122. Before weighing the evidence, the Court must address some questions regarding the burden of proof and the general criteria considered in its evaluation and finding of the facts in the instant proceeding.

123. Because the Commission is accusing the Government of the disappearance of Manfredo Velásquez, it, in principle, should bear the burden of proving the facts underlying its petition.

124. The Commission's argument relies upon the proposition that the policy of disappearances, supported or tolerated by the Government, is designed to conceal and destroy evidence of disappearances. When the existence of such a policy or practice has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference. Otherwise, it would be impossible to prove that an individual has been disappeared. …

126. … If it can be shown that there was an official practice of disappearances in Honduras, carried out by the Government or at least tolerated by it, and if the disappearance of Manfredo Velásquez can be linked to that practice, the Commission's allegations will have been proven to the Court's satisfaction, so long as the evidence presented on both points meets the standard of proof required in cases such as this.

127. The Court must determine what the standards of proof should be in the instant case. Neither the Convention, the Statute of the Court nor its Rules of Procedure speak to this matter. Nevertheless, international jurisprudence has recognized the power of the courts to weigh the evidence freely, although it has always avoided a rigid rule regarding the amount of proof necessary to support the judgment ( Cfr. Corfu Channel, Merits, Judgment, I.C.J. Reports 1949; Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Merits, Judgment, I.C.J. Reports 1986, paras. 29-30 and 59-60 ).

128. The standards of proof are less formal in an international legal proceeding than in a domestic one. The latter recognize different burdens of proof, depending upon the nature, character and seriousness of the case.

129. The Court cannot ignore the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory. This requires the Court to apply a standard of proof which considers the seriousness of the charge and which, notwithstanding what has already been said, is capable of establishing the truth of the allegations in a convincing manner.

130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts.

131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. …

134. The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.

135. In contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation.

136. The State controls the means to verify acts occurring within its territory. Although the Commission has investigatory powers, it cannot exercise them within a State's jurisdiction unless it has the cooperation of that State.

137. Since the Government only offered some documentary evidence in support of its preliminary objections, but none on the merits, the Court must reach its decision without the valuable assistance of a more active participation by Honduras, which might otherwise have resulted in a more adequate presentation of its case.

138. The manner in which the Government conducted its defense would have sufficed to prove many of the Commission's allegations by virtue of the principle that the silence of the accused or elusive or ambiguous answers on its part may be interpreted as an acknowledgment of the truth of the allegations, so long as the contrary is not indicated by the record or is not compelled as a matter of law. This result would not hold under criminal law, which does not apply in the instant case ( supra 134 and 135 ). The Court tried to compensate for this procedural principle by admitting all the evidence offered, even if it was untimely, and by ordering the presentation of additional evidence. This was done, of course, without prejudice to its discretion to consider the silence or inaction of Honduras or to its duty to evaluate the evidence as a whole. …

147. The Court now turns to the relevant facts that it finds to have been proven. They are as follows:

"a. During the period 1981 to 1984, 100 to 150 persons disappeared in the Republic of Honduras, and many were never heard from again ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings ).

b. Those disappearances followed a similar pattern, beginning with the kidnapping of the victims by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity and who used vehicles without any official identification, with tinted windows and with false license plates or no plates ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings ).

c. It was public and notorious knowledge in Honduras that the kidnappings were carried out by military personnel or the police, or persons acting under their orders ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and press clippings ).

d. The disappearances were carried out in a systematic manner, regarding which the Court considers the following circumstances particularly relevant:

i. The victims were usually persons whom Honduran officials considered dangerous to State security ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Inés Consuelo Murillo, José Gonzalo Flores Trejo, Zenaida Velásquez, Cesar Augusto Murillo and press clippings ). In addition, the victims had usually been under surveillance for long periods of time ( testimony of Ramón Custodio López and Florencio Caballero );

ii. The arms employed were reserved for the official use of the military and police, and the vehicles used had tinted glass, which requires special official authorization. In some cases, Government agents carried out the detentions openly and without any pretense or disguise; in others, government agents had cleared the areas where the kidnappings were to take place and, on at least one occasion, when government agents stopped the kidnappers they were allowed to continue freely on their way after showing their identification ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López and Florencio Caballero );

iii. The kidnappers blindfolded the victims, took them to secret, unofficial detention centers and moved them from one center to another. They interrogated the victims and subjected them to cruel and humiliating treatment and torture. Some were ultimately murdered and their bodies were buried in clandestine cemeteries ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Florencio Caballero, René Velásquez Díaz, Inés Consuelo Murillo and José Gonzalo Flores Trejo );

iv. When queried by relatives, lawyers and persons or entities interested in the protection of human rights, or by judges charged with executing writs of HABEAS corpus, the authorities systematically denied any knowledge of the detentions or the whereabouts or fate of the victims. That attitude was seen even in the cases of persons who later reappeared in the hands of the same authorities who had systematically denied holding them or knowing their fate ( testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Diaz, Zenaida Velásquez, Cesar Augusto Murillo and press clippings );

v. Military and police officials as well as those from the Executive and Judicial Branches either denied the disappearances or were incapable of preventing or investigating them, punishing those responsible, or helping those interested discover the whereabouts and fate of the victims or the location of their remains. The investigative committees created by the Government and the Armed Forces did not produce any results. The judicial proceedings brought were processed slowly with a clear lack of interest and some were ultimately dismissed ( testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías, Milton Jiménez Puerto, René Velásquez Díaz, Zenaida Velásquez, César Augusto Murillo and press clippings );

e. On September 12, 1981, between 4:30 and 5:00 p.m., several heavily-armed men in civilian clothes driving a white Ford without license plates kidnapped Manfredo Velásquez from a parking lot in downtown Tegucigalpa. Today, nearly seven years later, he remains disappeared, which creates a reasonable presumption that he is dead ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar Villalobos and press clippings ).

f. Persons connected with the Armed Forces or under its direction carried out that kidnapping ( testimony of Ramón Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar Villalobos and press clippings ).

g. The kidnapping and disappearance of Manfredo Velásquez falls within the systematic practice of disappearances referred to by the facts deemed proved in paragraphs a-d. To wit:

i. Manfredo Velásquez was a student who was involved in activities the authorities considered " dangerous " to national security ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López and Zenaida Velásquez ).

ii. The kidnapping of Manfredo Velásquez was carried out in broad daylight by men in civilian clothes who used a vehicle without license plates.

iii. In the case of Manfredo Velásquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of HABEAS corpus and two criminal complaints were brought ( testimony of Miguel Angel Pavón Salazar, Ramón Custodio López, Zenaida Velásquez, press clippings and documentary evidence).

h. There is no evidence in the record that Manfredo Velásquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time."

148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: ( 1 ) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; ( 2 ) Manfredo Velásquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and ( 3 ) the Government of Honduras failed to guarantee the human rights affected by that practice.

149. Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon. Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin America in the last few years.

150. The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion. …

154. Without question, the State has the right and duty to guarantee its security. It is also indisputable that all societies suffer some deficiencies in their legal orders. However, regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action.

155. The forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to personal liberty …

156. Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the Convention, which recognizes the right to the integrity of the person …

157. The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. This is a flagrant violation of the right to life, recognized in Article 4 of the Convention…

158. The practice of disappearances, in addition to directly violating many provisions of the Convention, such as those noted above, constitutes a radical breach of the treaty in that it shows a crass abandonment of the values which emanate from the concept of human dignity and of the most basic principles of the inter-American system and the Convention. The existence of this practice, more over, evinces a disregard of the duty to organize the State in such a manner as to guarantee the rights recognized in the Convention, as set out below. …

161. Article 1( 1 ) of the Convention provides:

"Article 1. Obligation to Respect Rights

1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition." …

164. Article 1( 1 ) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party. In effect, that article charges the States Parties with the fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumes responsibility in the terms provided by the Convention.

165. The first obligation assumed by the States Parties under Article 1( 1 ) is " to respect the rights and freedoms " recognized by the Convention. …

166. The second obligation of the States Parties is to " ensure " the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. …

169. According to Article 1( 1 ), any exercise of public power that violates the rights recognized by the Convention is illegal. Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention.

170. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his authority: under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law. …

172. Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State ( for example, because it is the act of a private person or because the person responsible has not been identified ) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.

173. … What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible….

174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.

175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages. …Of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures. On the other hand, subjecting a person to official, repressive bodies that practice torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life and physical integrity of the person, even if that particular person is not tortured or assassinated, or if those facts cannot be proven in a concrete case.

176. The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.

177. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.

178. In the instant case, the evidence shows a complete inability of the procedures of the State of Honduras, which were theoretically adequate, to carry out an investigation into the disappearance of Manfredo Velásquez, and of the fulfillment of its duties to pay compensation and punish those responsible, as set out in Article 1( 1 ) of the Convention.

179. As the Court has verified above, the failure of the judicial system to act upon the writs brought before various tribunals in the instant case has been proven. Not one writ of habeas corpus was processed. No judge had access to the places where Manfredo Velasquez might have been detained. The criminal complaint was dismissed.

180. Nor did the organs of the Executive Branch carry out a serious investigation to establish the fate of Manfredo Velasquez. There was no investigation of public allegations of a practice of disappearances nor a determination of whether Manfredo Velásquez had been a victim of that practice. The Commission's requests for information were ignored to the point that the Commission had to presume, under Article 42 of its Regulations, that the allegations were true. The offer of an investigation in accord with Resolution 30/83 of the Commission resulted in an investigation by the Armed Forces, the same body accused of direct responsibility for the disappearances. This raises grave questions regarding the seriousness of the investigation. The Government often resorted to asking relatives of the victims to present conclusive proof of their allegations even though those allegations, because they involved crimes against the person, should have been investigated on the Government's own initiative in fulfillment of the State's duty to ensure public order. This is especially true when the allegations refer to a practice carried out within the Armed Forces, which, because of its nature, is not subject to private investigations. No proceeding was initiated to establish responsibility for the disappearance of Manfredo Velásquez and apply punishment under internal law. All of the above leads to the conclusion that the Honduran authorities did not take effective action to ensure respect for human rights within the jurisdiction of that State as required by Article 1( 1 ) of the Convention.

181. The duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.

182. The Court is convinced, and has so found, that the disappearance of Manfredo Velásquez was carried out by agents who acted under cover of public authority. However, even had that fact not been proven, the failure of the State apparatus to act, which is clearly proven, is a failure on the part of Honduras to fulfill the duties it assumed under Article 1( 1 ) of the Convention, which obligated it to ensure Manfredo Velásquez the free and full exercise of his human rights. …

184. According to the principle of the continuity of the State in international law, responsibility exists both independently of changes of government over a period of time and continuously from the time of the act that creates responsibility to the time when the act is declared illegal. The foregoing is also valid in the area of human rights although, from an ethical or political point of view, the attitude of the new government may be much more respectful of those rights than that of the government in power when the violations occurred.

185. The Court, therefore, concludes that the facts found in this proceeding show that the State of Honduras is responsible for the involuntary disappearance of Angel Manfredo Velásquez Rodríguez. Thus, Honduras has violated Articles 7, 5 and 4 of the Convention.

186. As a result of the disappearance, Manfredo Velasquez was the victim of an arbitrary detention, which deprived him of his physical liberty without legal cause and without a determination of the lawfulness of his detention by a judge or competent tribunal. Those acts directly violate the right to personal liberty recognized by Article 7 of the Convention ( supra 155 ) and are a violation imputable to Honduras of the duties to respect and ensure that right under Article 1( 1 ).

187. The disappearance of Manfredo Velásquez violates the right to personal integrity recognized by Article 5 of the Convention ( supra 156 ). First, the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person, and violates the right of every detainee under Article 5( 1 ) and 5( 2 ) to treatment respectful of his dignity. Second, although it has not been directly shown that Manfredo Velásquez was physically tortured, his kidnapping and imprisonment by governmental authorities, who have been shown to subject detainees to indignities, cruelty and torture, constitute a failure of Honduras to fulfill the duty imposed by Article 1( 1 ) to ensure the rights under Article 5( 1 ) and 5( 2 ) of the Convention. The guarantee of physical integrity and the right of detainees to treatment respectful of their human dignity require States Parties to take reasonable steps to prevent situations which are truly harmful to the rights protected.

188. The above reasoning is applicable to the right to life recognized by Article 4 of the Convention ( supra 157 ). The context in which the disappearance of Manfredo Velasquez occurred and the lack of knowledge seven years later about his fate create a reasonable presumption that he was killed. Even if there is a minimal margin of doubt in this respect, it must be presumed that his fate was decided by authorities who systematically executed detainees without trial and concealed their bodies in order to avoid punishment. This, together with the failure to investigate, is a violation by Honduras of a legal duty under Article 1( 1 ) of the Convention to ensure the rights recognized by Article 4( 1 ). That duty is to ensure to every person subject to its jurisdiction the inviolability of the right to life and the right not to have one's life taken arbitrarily. These rights imply an obligation on the part of States Parties to take reasonable steps to prevent situations that could result in the violation of that right.

[In the remedies phase, the Inter-American Court awarded money damages for lost income and reparations.]

[Compare Human Rights Committee General Comment 24: 8. The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities.]

African (Banjul) Charter for Human and People’s Rights (1981/6)

PART I: RIGHTS AND DUTIES

CHAPTER I: HUMAN AND PEOPLES’ RIGHTS

[The first portion of the document lists mostly familiar individual rights, though there is no right to privacy and some view rights to fair trial and political participation as insufficiently clear. Looking ahead, the individual economic and social rights that are listed are not made subjects to qualification as in other documents we will later read, for example conditioning their fulfillment on available resources.]

…ARTICLE 19

All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.

ARTICLE 20

1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

ARTICLE 21

1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it
2. In case of spoilation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
4. State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity.
5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

ARTICLE 22

1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development….

ARTICLE 24

All peoples shall have the right to a general satisfactory environment favourable to their development. …

CHAPTER II: DUTIES

ARTICLE 27

1. 1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community.
2. 2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

ARTICLE 28

Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

ARTICLE 29

The individual shall also have the duty:

1. To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need.
2. To serve his national community by placing his physical and intellectual abilities at its service;
3. Not to compromise the security of the State whose national or resident he is;
4. To preserve and strengthen social and national solidarity, particularly when the latter is strengthened;
5. To preserve and strengthen the national independence and the territorial integrity of his country and to contribute to his defence in accordance with the law;
6. To work to the best of his abilities and competence, and to pay taxes imposed by law in the interest of the society;
7. To preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well being of society;
8. To contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African unity.

Background on the African Court on Human and Peoples’ Rights

Source: International Justice Resource Center

Seat: Arusha, Tanzania  
Instrument: Protocol to ACHPR
Operating Since: 2006

The African Court on Human and Peoples Rights (AfCHPR) is a regional human rights tribunal with advisory and contentious jurisdiction concerning the interpretation and application of the African Charter on Human and Peoples’ Rights, which is also referred to as the Banjul Charter. Its jurisdiction extends to those States that have ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. The AfCHPR decided its first case in December of 2009 and has taken up over two dozen other cases since then.

Complaints against any State that has accepted the Court’s jurisdiction may be referred to the Court by: the African Commission on Human and Peoples’ Rights, States Parties (as respondent or petitioner in a case before the Commission, or on behalf of a individual citizen), and African intergovernmental organizations. As of July 2013, 27 States had accepted the Court’s jurisdiction. To see the most recent ratification information, visit the African Court’s Basic Documents webpage.

The Court also has jurisdiction to hear cases instituted by individuals and non-governmental organizations with observer status before the African Commission, provided that the relevant State has made the necessary declaration under Article 34 of the Protocol to allow these complaints, described in Article 5(3). To date, seven States have accepted the Court’s jurisdiction to receive complaints referred by individuals and NGOs; these are: Burkina Faso, Cote d’Ivoire, Ghana, Malawi, Mali, Rwanda, and Tanzania.

The eleven judges of the court are elected for renewable, six-year terms. The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, along with the AfCHPR’s Rules of Court, set out the Court’s functions and operating procedures.

Additionally, the States of the African Union have agreed to establish an African Court of Justice and Human Rights, intended to hear disputes arising under all African Union instruments, including the human rights agreements, and to prosecute individuals for serious international crimes. This new tribunal would replace the African Court on Human and Peoples’ Rights. However, the protocol must be ratified by 15 States before the African Court of Justice and Human Rights comes into being.

In a controversial decision, the African Union has decided to specifically exempt senior government officials from prosecution by a proposed regional human rights court, which will otherwise be authorized to try individuals accused of crimes against humanity and other serious international crimes. At its 23^rd Ordinary Session in Malabo, Equatorial Guinea last week, the Assembly of the African Union (AU) adopted an amendment to the Protocol on the Statute of the African Court of Justice and Human Rights to immunize African leaders accused of committing serious human rights violations from criminal prosecution before the proposed African Court of Justice and Human Rights. While it is hoped that the amendment will foster greater cooperation and compliance with the future Court, the limitation on its mandate has been the subject of intense criticism by civil society groups.

The African Court of Justice and Human Rights is intended to replace the African Court on Human and Peoples’ Rights (AfCHPR) and the African Court of Justice, to become the main judicial organ of the African Union and predominant human rights court for the African continent. The scope of the African Court of Justice and Human Rights’ mandate will be greater than that of its predecessors, as its jurisdiction will extend beyond inter-State disputes and State responsibility for human rights violations to deciding individuals’ responsibility for genocide, war crimes, and crimes against humanity.

Owing to the newly adopted immunity provision, however, its jurisdiction would not extend to sitting heads of state and senior government officials while they are in office. This limitation has raised serious doubts about the potential efficacy of the future court.

Immunity for Heads of State and Senior Officials from International Criminal Prosecution

Article 46A bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“the Protocol on Amendments”) provides: “No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.” (While the current text of the Protocol on Amendments is not available online, a 2012 draft version can be viewed here.)

This immunity provision differs from the mandates of other supranational criminal courts, including the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda. Article 27(1) of the Rome Statute of the ICC, for example, states that the Statute applies “equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”

The wording of Article 7(2) of the Statute of the ICTY and Article 6(2) of the Statute of the ICTR are identical; both state that the “official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”

In this way, all three courts – the ICC, the ICTY, and the ICTR – have the authority to prosecute sitting heads of state and senior officials. This is consistent with international law, which allows international courts to lift immunity from current heads of state and senior officials.

The African Court of Justice and Human Rights would be unique among regional human rights bodies, which typically do not have jurisdiction to prosecute individuals.

Heads of state and high officials do usually enjoy a degree of immunity by virtue of their positions, however. They have immunity from national courts when they are on the territory of a foreign State, and former heads of state and senior officials enjoy immunity for official duties carried out while they were in office.

Reactions from Civil Society

Over 40 civil society groups have expressed disapproval at the inclusion of immunity for heads of state and senior officials in the mandate of the African Court of Justice and Human Rights. [African Legal Aid] In an open letter to the African Union, many of these groups argued that the authority to prosecute government officials is critical to ensuring justice and accountability for the most serious crimes. [Amnesty International: Open Letter] There is concern that immunity will insulate those most responsible for international crimes, as well as those in the best position to prevent such crimes.

These groups also argued that the immunity provision goes against the founding principles of the AU. The Constitutive Act of the African Union enumerates principles by which the African Union must function; Article 4(o) provides that the African Union must respect the sanctity of human life and condemn and reject impunity. Civil society groups contend that granting immunity for heads of state and senior officials is a step backwards. “Africa should be moving forward in the fight against impunity, not regressing,” said Stephen Lamony of the Coalition for the International Criminal Court.

Furthermore, the immunity provision has led some to worry about the ability of the future African Court of Justice and Human Rights to achieve its objectives. Netsanet Belay, Amnesty International’s Africa Director for Research and Advocacy, has said that “it is impossible to justify this decision which undermines the integrity of the African Court of Justice and Human Rights, even before it becomes operational.”

Proponents of the immunity provision argue that “guaranteed immunity for presidents and senior officials might actually encourage African states to engage more enthusiastically with the proposed new court, and to abide by its rulings.” Simon Allison of the Institute for Security Studies reasoned that “[i]f Africa’s leaders aren’t worrying about their own fate, they won’t have anything to lose by cooperating.” This argument potentially overlooks the fact that former heads of state do not have immunity for non-official duties, which have been found to include torture. Civil society groups have thus warned that immunity for heads of state and high officials “would carve out a sphere of impunity for high-level perpetrators, and create an incentive for such perpetrators to hold on to power indefinitely.

Conflicts between African States and the ICC

The AU adopted this immunity provision in the context of ongoing tensions between African States and the International Criminal Court, which has been accused of singling out African leaders for prosecution. Currently, two sitting presidents face prosecution at the ICC for crimes against humanity and other crimes; they are Kenya’s President Uhuru Kenyatta and Sudan’s President Omar al-Bashir. Kenya’s Deputy President William Ruto has also been charged with indirectly committing crimes against humanity.

The perception that the ICC is disproportionately focusing on situations in Africa has prompted African States to threaten to withdraw from its jurisdiction. In October 2013, the AU held an Extraordinary Summit on the ICC to discuss the ICC’s treatment of African cases. The Assembly decided that no sitting head of state should ever appear before an international court.

Despite these calls to withdraw from the jurisdiction of the ICC, more African States are party to the Rome Statute than in any other region. Out of the 122 States Parties to the Rome Statute, 34 are African, 27 are Latin American and Caribbean, 25 are Western European and other States, 18 are Asia-Pacific States, and 18 are Eastern European.

…The last fifty years represent the entire period of the African postcolonial state, and give us a fantastic window through which to interrogate the performance of the human rights project in Africa. But first, I want to lay aside some misconceptions about the human rights corpus and the movement. At the outset, though, I want to level with you about the subject of intellectual bias or normative location. Even though objectivity is the name of our game, we are nevertheless products of the legacies and heritages that have forged our identity and philosophical outlooks. In that sense, true objectivity is an academic fiction, for no one could be truly objective. In any case, if we were truly objective, we would be truly boring. And so, I want to plead my biases at the outset. But I also want to warn you that with respect to the subject at hand—that of the utility of human rights and liberalism in Africa—I adopt the view of an insider-outsider, an engaged skeptic who completely believes in human dignity but is not sure about the typology of political society that ought to be constructed to get us there.

Third World scholars like myself come to the study of human rights with a considerable degree of discomfort and an in-built sense of alienation. Neither human rights, nor liberalism, has been germinated in the African garden. To be sure, my native ears are not deaf to many of the substantive issues addressed by both disciplines. I have a keen interest in the relationships between states and citizens. My alienation comes not from these facts, but from the particularized historical, cultural, and intellectual traditions and tongues in which both human rights and liberalism law are steeped. It is in that sense that I am an outsider. Though an outsider to human rights and liberalism, I am in a very real sense an insider to both. I am part of the international elite that benefits personally from the norms and structures of international liberalism. My reality is not that of marginal and downtrodden citizens in Latin America, Africa, Asia, or for that matter, North America. I do not strain under the daily avalanche of the cruelties of globalization, state repression, and abuse.

But I am also an outsider because of that other consciousness which I carry, the consciousness of the historical, political, and cultural realities of the Africa that I am a part of, indeed of the Third Word to which I belong, as distinct from the West. In human rights, I see a system of ordering the world, of understanding the world, a system and normative edifice that makes me accurately aware of my subordinate and marginal place in it, as the “other.” This is not to say that I completely reject the human rights project or dismiss its redemptive impulses and purposes. It is rather to say that human rights are not for me a final, inflexible truth, or a glimpse of eternity, so to speak. That is to say that I do not see the human rights project as some kind of a sacred gospel with armies of missionaries poised to save savage cultures from themselves so that they can stop churning out victims. Human rights do not have a holy writ, nor could they, because like all rights regimes, they are just a genre of socially constructed tenets that have come to define modern civilization. Nor should human rights be, as its most dominant proponents have constructed them, a part of the colonial project that forms the unbroken chain of the Christian missionary, the early merchant of capital, and the colonial administrator. I guess these observations mean that I am not a true liberal, a label that I do not want to wear anyway. …

It is very strange that the founding documents of the human rights movement studiously avoided—did not even mention once—the most important words and terms of the past several hundred years. They still don’t. Is it not very curious that neither the UDHR, the ICCPR (International Covenant on Civil and Political Rights), nor the ICESCR (International Covenant on Economic, Social and Cultural Rights) uses the terms “capital,” “market,” “colonize,” “imperial,” “political democracy,” “liberalism,” or any of their derivatives? The exceptions are the oblique and dubious references to “democracy” in the UDHR and the ICCPR. The UDHR appears to sanction political democracy as the presumptive choice of the human rights corpus, although it does not explicitly say so, or explain why. The reference to “democracy” in the ICCPR is similarly vague. There are possible explanations for these omissions, or the reluctance to identify the human rights movement with a particular normative tradition, philosophy, or ideology. Were any of these deficits deliberate or calculated? Whatever the case, the lack of extended theories and philosophical justifications for the human rights corpus has left the doctrine vulnerable to attack. Importantly, it has mystified and obfuscated the normative and cultural gaps in the corpus.

That is why I contend that the human rights corpus is a moral project of political democracy, and that the failure of the framers to openly base the doctrine on this irrefutable premise has done more damage than good. First, it leaves human rights discourse as a project that orbits in space, not anchored in historical, cultural, and ideological choices. This abstraction is either debilitating, if you are critic, or empowering, if you are a true believer. As a critic, one starts from the disadvantage of disproving a negative. But as a believer, all one has to do is deny the negative. Second, the distortion of the true identity of the corpus masks its deficits, and makes it difficult to debate them in the open. It is an exercise that is akin to shadow boxing. The target is elusive, and the energy expended is not productively applied. Third, because of historical delinking of political democracy from human rights, a critique of the former is not necessarily the unveiling of the latter. Soon the problem becomes obvious. The human rights corpus has a mercurylike quality: elusive and slippery. This is not a fingerprint that augurs well for a truth-searching inquiry. Nor does it render the corpus to a reformist impulse. My argument is that identifying—equating—political democracy with human rights would provide us with a solid foundation for debating, articulating, and formulating an ideology that can better respond to powerlessness, human indignity, and the challenges of markets and globalization.

The human rights movement is presented by its scholars and advocates as above politics. Even though its basic texts assume a genre of political and social organization, the literature and discourse of human rights are divorced from self-interest, ideology, materialism, and partisanship. Instead, movement scholars and activists paint it as a universal creed driven by nobility and higher human intelligence. The idiom of human rights is tinged with metaphors and language that suggest eternity or a final resting point in human history. The basic human rights documents are not presented as either instrumentalist, utilitarian, experimental, or convenient. Rather, the authors speak as though such documents are the final truth. This elusive, yet lofty, idealism is almost biblical in its forbidding language. It implies that questioning its doctrine is perverse and unwelcome. The reality, however, is that human rights norms address mundane human problems and are routine politics. That is why the veneration of human rights, together with the attempt to clean the movement of partisanship, requires close and critical scrutiny. …

how can human rights as conceived be of any help to the reconstruction and recovery of the African postcolonial state? Five decades after decolonization, the African state is still haunted by crises of geographic, political, and moral legitimacy. It is beset by the protracted reality of national incoherence and the ills of economic underdevelopment. At its dawn, the African postcolonial state was handed a virtually impossible task: Assimilate the norms of the liberal tradition overnight within the structures of the colonial state while at the same time building a nation from disparate groups in a hostile international political economy. Instead, the newly minted African postcolonial elites chose first to consolidate their own political power. We can blame them now, as I have, but we must also understand that the first instinct of the political class is to consolidate itself and concentrate power in its own hands.

In the Cold War context, this frequently meant stifling dissent, dismantling liberal constitutions, retreating to tribal loyalties or sycophantic cronies, and husbanding state resources for corruption or patronage purposes. In other words, any viable fabric of the postcolonial state started to crumble even before it was established. We know the rest—coups and countercoups, military regimes, and one-party dictatorships with the inevitable results of economic decay; collapse of infrastructure; the fragmentation of political society; bilious retribalization; religious, sectarian, and communal conflicts and civil wars; and state collapse in a number of cases. The achievement of political independence from colonial rule turned into a false renaissance as one African country after another experienced transitional difficulties. While the African state retained some form of international legitimacy, its domestic writ was wafer thin. It was a miracle that many African states did not implode altogether, given the challenges to internal legitimacy. Whatever the case, the liberal tradition failed to take hold as human rights were violated across the board.

However, the 1980s saw a resurgence of civil society and the reemergence of the political opposition. This started what has come to be loosely referred to as the Second Liberation. The entire continent was rocked by a wave of political liberalization not witnessed since the 1950s and 1960s. Virtually all states succumbed to some version of political reform. In all cases, the civil society and the political opposition sought a new social compact framed by the tenets of the liberal tradition. These were the rule of law, political democracy through multipartyism, checks on executive power, limitations on the arbitrary use of state power, judicial independence, directly elected and unencumbered legislatures, separation of powers, freedoms of the press, speech, assembly, and association—in a word, the whole gamut of civil and political rights or the full complement of so-called basic human rights.

It was as though Africans were asking to go back to the liberal constitutions imposed by the departing colonial powers. In some cases, new constitutional orders were established to respond to these demands. But a decade and a half after the frenzy to reintroduce the liberal tradition to the politics of Africa, we cannot count many blessings because the tumult of political liberalization has yielded very mixed results. Optimists see a steady progression, even though the reversals have been many and discouraging. Pessimists, or what one might even want to call realists, see an African state that is a stubborn predator, unable and unwilling to accept reform. For every one step forward, there seem to be several steps back. The near melt-down of Kenya in the aftermath of the December 2007 election is only one case in point.

Is the African state impervious to human rights and the liberal tradition, or is the problem much more serious? The fault is variously placed on a bankrupt elite or political class; structural impediments within the state (ethnicity, religious zealotry, underdevelopment, the failure to establish a legitimate political order, social cleavages); an unyielding international economic order. Whatever the case, the jury on the current process of political liberalization, which is taking place simultaneously with economic globalization, is still out. It is still too early to say for certain whether the African postcolonial state is out of the woods.

The Limitations of Human Rights

The human rights corpus is defined by a variety of pathologies—both of choice and substance—that are limited and limiting. Many of these pathologies arise not only from the internal logic of the corpus but also the tactical and strategic choices that its proponents have made over the past sixty years. One of these is the equation of the containment of state despotism with the attainment of human dignity. This “hands off” logic is an integral, if not the essential, signature of the corpus. Without going into a discussion about the critique of rights—indeterminacy, elasticity, and their double-edge signature—suffice it to note that the human rights project basically polices the space between the state and the individual, and not between individual citizens. As put by Karl Klare, the dominant understanding of “the human rights project is to erect barriers between the individual and the state, so as to protect human autonomy and self-determination from being violated or crushed by governmental power.” Yet there is nothing intrinsic about human beings that requires only their protection from the state and not the asymmetries of power among them.

This definition of the nature of human dignity, which draws heavily from liberalism and political democratic theory, has an atrophied understanding of the role of the state. Admittedly, the thick welfare state is an attempt to emphasize a more robust view of liberalism. In human rights doctrine, this fuller iteration of liberalism is ostensibly contained in the ICESCR. However, the flaccidity, impotency, and vagueness of the ICESCR are evidence of the bias of the corpus to the more limited vision. As is the case with political democracy, the human rights regime appears to be more concerned with certain forms of human powerlessness than with others. This has certainly been the practice of human rights by the most influential human rights NGOs and institutions. In fact, there does not exist a major human rights NGO in the West that focuses on economic, social, and cultural rights. The problem is not simply one of orientation, but a fundamental philosophical commitment by movement scholars and activists to vindicate “core” political and civil rights over a normative articulation that would disrupt vested class interests and require a different relationship between the state and citizens and among citizens. It seems to have been convenient for human rights NGOs to shy away from questions of economic powerlessness during the Cold War because charities and Western governments frowned upon them. If so, it was a bias that was more than strategic—it was ideological.

One of the more interesting pathologies of the human rights texts is their avoidance or reluctance to employ a certain vocabulary to describe powerlessness. What is striking about the key human rights documents is their failure to use some of the most important terms of the modern era to describe and formulate societal responses. In terms of power or lack of it, and the consequent violations, there are no more important words than “capitalism,” “imperialism,” “colonialism,” and “apartheid.” Yet the UDHR—the single most important human rights document—sanctions the right to private property (Article 147). How credible is a document that calls itself a “common standard of achievement for all peoples and nations” (Preamble) if it does not recognize that at its writing most of the global South was under European colonial rule and subject to the vilest economic exploitation by the merchants of capital? It is difficult to believe that such an omission was an oversight. At the time, there was an epochal contest between socialism and capitalism. This too appears to have been conveniently overlooked in the basic texts. Or was it? My submission is that there was a surreptitious recognition of secularism, capitalism, and political democracy through the guarantee of the rights that yield a society framed by those systems.

The failure to wrestle with the types of economic philosophies and systems that would best protect and nurture a fuller definition of human dignity has had a devastating effect on the human rights movement. From the start, the movement and its founders did not see themselves as charged with the responsibility to address economic powerlessness. Even though the UDHR addresses some economic, social, and cultural rights, it is clear that they are an afterthought and marginalized within the document. Only the last six articles are devoted to these rights. But even so, the rights are not scripted in a way that directly confronts powerlessness and exploitation. The rights relating to work and labor assume, for example, the fact and legitimacy of capitalism and free markets (see Articles 23–25). Working people are therefore expected to fight for their rights within those systems and structures. The same logic is the basis for the ICESCR, which presumably grants rights within a system of free enterprise that protects workers from the worst excesses of global capitalism. In this regard, the ICESCR should be understood as a normative project for a thick welfare state within a market economy. It is a document that seeks to mitigate the harshness of capitalism and give it a more human face.

This failure of imagination and acquiescence to a free market vision of political democracy has robbed the human rights corpus and the movement of the impetus to think beyond markets and systems of exploitation that produce ugly social structures. Fundamentally, the human rights corpus has no philosophy on money and whether, for example, the creation of a Bill Gates would itself be a violation of human rights norms. In political society, an absolute dictator would be impermissible under human rights norms and contemporary understandings of political democracy. Analogously, Bill Gates is the market equivalent of the political dictator, although that is not how he is understood in a political democracy or by the human rights corpus. In fact, Gates is a celebrated and venerated individual, the pinnacle of success in society. Yet the existence of his economic empire, which he holds personally, is a radical perversion of any egalitarian or equitable notions of human dignity. The multiplication of Gates by the number of other obscenely rich individuals and corporate interests yields a graphic over-concentration of power in the hands of a tiny majority. It is very difficult, if not impossible, to articulate a plausible argument of how a system that permits such vast differences among citizens does not violate basic notions of human dignity. In an era of globalization, in which capital knows no borders and is virtually unaccountable, questions of economic justice and fairness should obsess the human rights corpus and the movement. It is not enough to decry, as human rights NGOs do, the worst excesses of globalization, or the most shocking practices such as sweatshops and cruel labor and slavelike conditions of work. The corpus must develop a defensible normative project to address economic and social arrangements and systems. Rather than treat the government simply as the regulator of markets—as is the case in a political democracy—human rights norms must do more.

Perhaps one way of addressing this pathology is to reassess the place and role of the individual in society relative to the greater public good of the community and the environment. One of the problems here is the elevation of the individual and his placement above society. This runaway notion of individualism, which is a central tenet of liberalism, has retarded the capacity of human rights thinkers to moderate selfishness with community interests. In other words, the individual should be placed within the society and constructed in such a way that he does not overwhelm his fellow beings or the society itself. There is nothing natural, inevitable, or frozen in time about how the individual ought to be constructed. Nor should a reconstruction of the individual necessarily wreak havoc with more defensible notions of popular sovereignty, individual autonomy, and political freedom. But this is an exercise that will require thinkers to look beyond Eurocentric lenses to build a more universal vision of the individual. The individual need not necessarily be placed at the center of the moral universe. Otherwise, the vices and abominations of globalization are bound to overcome the human race.

Finally, the human rights corpus and movement focus too much on process and rights at the expense of politics and substance. This distinction is both a product of the rights idiom in which the corpus is expressed and tactical and strategic choices by movement activists. The movement sees itself as vindicating rights that are coded in positive law. In contrast, politics is partisan, sloppy, and lacking in neutrality. By casting themselves as doing the work of the law, movement activists perpetuate the myth of objectivity. In fact, during the Cold War the human rights community in the West deliberately distanced itself from the overt promoters of democracy in the global South and the Soviet bloc. Instead, human rights activists presented themselves as a community interested in process and the rule of law, not politics or the ideological project of democracy. …

This diffidence has been limiting to the human rights movement. Why hide the ball? Everything should be placed on the table so that we can openly debate questions of power and powerlessness and how to reformulate the human rights corpus to address pressing crises. Perhaps we will decide that human rights is not the right language for this struggle. Perhaps it is. In any case, we will never know until we take off the veil. What is clear today is that the movement will lose its relevance unless it can address—seriously and as a priority—human powerlessness in all its dimensions.

Can Human Rights Recover the African State?

The limitations that curtail the ability of the human rights corpus to respond to Africa’s crises are conceptual and normative. The first limitation is simply one of the idiom in which the rights discourse is formulated. The language of rights, which is central to liberalism, is fraught with limitations which could be detrimental to the project of transforming deeply distorted societies. Inherent in the language of rights are indeterminacy, elasticity, and the double-edged nature of the rights discourse. All these characteristics open the rights language to malleability and misuse by malignant social elements, and they turn it into a tool in the hands of those opposed to reform. A case in point is South Africa, where a rights-based revolution has been unable to fundamentally transform deeply embedded social dysfunction and the perverse legacy of apartheid. The choice of the rights idiom as the medium of choice to unravel the ravages of apartheid has been less than successful in spite of continued economic growth.

Another problem of the liberal tradition, which has been inherited by the human rights movement, is its unrelenting focus on individualism. This arises from liberalism’s focus on formal equality and abstract autonomy. The human rights corpus views the individual as the center of the moral universe, and therefore denigrates communities, collectives, and group rights. This is a particularly serious problem in Africa, where group and community rights are both deeply embedded in the cultures of the peoples and exacerbated by the multinational nature of the postcolonial state. The concept of self-determination in Africa cannot simply be understood as an external problem: it must, of necessity, be understood as encompassing the many nations within a given postcolonial state. In reality, this means that individual rights of citizens within the state must be addressed in the context of group rights. Thus group rights or the rights of peoples become important entitlements if the state is to gain the loyalties of its diverse citizens.

I do not deny that individualism is a necessity for any constitutional democracy, but I reject the idea that we can, or should, stop there in Africa. That would be a stunted understanding of rights from an African point of view. Indeed, for rights to make sense in the African context, one has to go beyond the individual and address group identities in the political and economic framework of the state. Even in South Africa, for example, one of the states with an avowedly liberal interpretation of the rights language, there was an accommodation of group rights to language, culture, and other forms of identity. One way political democracy deals with the question of multiple nations within one state is to grant autonomous regimes for groups or to devolve powers through forms of federalism. But the paradox for Africa is that autonomous regimes or federalist arrangements have not worked well wherever they have been tried. These schemes have been unable to stem the combustible problem of ethnicity and reduce the legitimacy of the state. Ethnic groups retain a consciousness that stubbornly refuses to transfer loyalty from the group to the whole nation.

Second, the human rights movement’s primary grounding and bias toward civil and political rights—and the impotence and vagueness of economic, social, and cultural rights—is one of its major weaknesses in the African postcolonial context. Political democracy alone—without at least a strong welfare state or a social democracy—appears to be insufficient to recover the African state. The bias toward civil and political rights favors vested, narrow class interests and kleptocracies which are entrenched in the bureaucratic, political, and business sectors of society and represent interests that are not inclined to challenge the economic powerlessness of the majority of postcolonial Africans. Yet the human rights movement assumes the naturalness of the market and the inevitability of employer–employee, capitalist–worker, and subordinated labor relations. It seeks the regulation of these relationships, but not their fundamental reformulation.

By failing to interrogate and wrestle with economic and political philosophies and systems, the human rights movement indirectly sanctions capitalism and free markets. Importantly, the human rights corpus wrongly equates the containment of state despotism with the achievement of human dignity, so that it seeks the construction of a political society in which political tyranny—not economic tyranny—is circumscribed. But in so doing, it sidesteps economic powerlessness—the very condition that must be addressed if the African state is to be recovered. Clearly, political freedoms are important, but as South Africa has demonstrated, these are of limited utility in the struggle to empower populations and reduce the illegitimacy of the state. It is an illusion to think of powerlessness and human indignity in the African context in purely political terms, as the human rights movement does, and to prescribe political democracy and the human rights doctrine as a panacea.

Real human powerlessness and indignity in Africa—the very causes of the illegitimacy of the African state—arise from social and economic conditions. That is why the human rights movement’s recognition of secularism, capitalism, and political democracy must be discussed openly to unveil its true identity so that we can recalculate its uses, and the limitations of those uses, to the reconstruction of the African state. To be useful to Africa’s reconstruction, human rights cannot simply be advocated as an unreformed Eurocentric doctrine that must be gifted to native peoples. Nor can it be imposed on Africa like an antibiotic, or be seen as a cure for the ills of a dark continent. I am afraid that this is how many in the West imagine what for them is a human rights crusade toward Africa. So far, this law-and-development model has not—and will not—work. Not only is it an imposition, but it would also deal mostly with symptoms, while leaving the underlying fundamentals untouched.

To be of utility to Africa, and fundamentally transform the continent’s dire fortunes, human rights must address economic powerlessness and the scandalous international order. Otherwise, it will promise too much while delivering too little, as it did in the case of Rwanda with the establishment of the International Criminal Tribunal for Rwanda and a false peace within the country. It will promise too much, while delivering too little, as it did in the wave of the so-called Second Liberation. The challenge for us is to figure out how we can retool and rethink the human rights project as one of the vehicles for the reconstruction of the African postcolonial state. I am afraid that this is a task for which we have been found wanting. …