On the 26th of May 2011, the the European Court of Human Rights [ECHR] condemned Poland in the first degree with a six to one majority, because it stopped a pregnant woman from having a prompt amniocentesis after tests that showed malformations in her foetus: due to the obstacles posed by the doctors, the woman was unable to have an abortion (Application no. 27617/04).
The Polish resident, following prenatal tests showing foetal malformations, had approached several public hospitals for an amniocentesis, according to specific medical recommendations; however, every doctor in question refused to carry out the test, favouring alternatives that were inadequate for a proper diagnosis. Finally the woman obtained the amniocentesis after consulting with various hospitals, although she was only given the report after much prompting: through this she received confirmation that the foetus had indeed Turner Syndrome.

Due to difficulties in obtaining the required services, the claimant went over the twenty-four week period, which meant that her request for abortion was met with the following answer from the doctors, namely that “they had not practised abortions in 150 years and that by virtue of the national legislation on abortion (from 1993) she was not entitled to it because she had exceeded the legal period”; consequently, given that the claimant had been denied not only information on the health of her baby but also access to legal abortion, she had no option but to give birth to her daughter.

At this point, the woman and her partner approached the ECHR to submit a claim, which was only partially admitted until she subsequently added that her circumstances constituted a violation of Articles 3, 8, and 13 of the [European] Convention [on Human Rights]. The ECHR ruling confirms that what happened to this Polish citizen amounts to a violation of said Convention, in particular of Articles 3 (inhumane and degrading treatment) and 8 (lack of respect for private and family life); moreover, it states that ‘[member] states are obliged to guarantee unhindered access to antenatal information and tests, and that the doctors in question caused this vulnerable woman “prolonged and painful anxiety” with regard to her baby’s health, “humiliating [and] treating her unkindly”.

Finally, the Court denounced the Polish government in view of the fact that even though its laws allow the abortion of a malformed foetus, they do not guarantee that such a possibility can become reality through a readily accessible process; it must be stressed that all judges but one (from Malta) voted in favour of the claimant, including the one from Poland.

The ECHR ruling marks a step that is bound to have a significant effect much beyond the internal legislation to which it refers (that is, within Poland), making for a [legal] precedent or even a ‘principle of law’ not only for the individual legislation of each [member] state but also for the [entire] EC framework […]: this is due to both the nature of the stated violations and the acknowledged ‘communitisation’ of said Court in view of the Lisbon Treaty (1st December 2009).

References to an “ECHR System”, instead of the simple Charter, are necessary because the peculiarity of the ECHR, compared to other international treaties, is that it has provided itself with the authority as a judicial organ to interpret the Convention’s own principles.

Here we must draw attention to the fact that Article 32, paragraph 1, of the Convention states the following: “The competence of the Court extends to all those matters concerning the interpretation and enforcement of the Convention and its protocol, which come under its control in view of Articles 33, 34, and 47, and the conditions therein”. The Const. Court reminds us of the following: “Given that the judicial rules live within the interpretation that they are given by those who operate the law – first and foremost the judges – it is a natural consequence of Article 32, paragraph 1, of the Convention that all subscribing Member States, as part of those international obligations they signed up to when ratifying the European Convention on Human Rights, must adapt their legal framework according to this treaty, in the specific sense laid out by that Court, which was specifically charged with interpreting and enforcing its laws. We cannot, therefore, talk about a judicial competence that overrules that of the legislative organs of [for example] the Italian State, but rather recognise the overarching interpretative function that the subscribing States acknowledge to the European Court, while they [continue to] give their contribution to clarify this specific area”.

Within such point of view the ECHR ruling opens a [more] navigable route also for Italy with regard to asserting the right to abortion, sanctioned in the [Italian] Law 194, for all those women who, given a majority of conscientious objectors within hospitals, are unable to access such a service as should be guaranteed.

English translation by: Francesco Sani