CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 octobre 2012

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font-size:14pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }     FOURTH SECTION             CASE OF P. AND S. v. POLAND   (Application no. 57375/08)               JUDGMENT   STRASBOURG   30 October 2012     FINAL   30/01/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of P. and S. v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   David Thór Björgvinsson, President,   Lech Garlicki,   Päivi Hirvelä,   George Nicolaou,   Zdravka Kalaydjieva,   Nebojša Vučinić,   Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 9 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   57375/08) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Polish nationals, Ms P. (“the first applicant”) and Ms   S. (“the second applicant”), on 18   November 2008. The Vice ‑ President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court). 2.     The applicants were represented by Ms   M.   Gąsiorowska and Ms   I.   Kotiuk, lawyers practising in Warszawa. They were assisted by Ms   Christina Zampas who was later replaced by Ms   J. Westeson, both of the Center for Reproductive Rights. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by   Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicants alleged, in particular, that the circumstances of their case had given rise to violations of Articles   8, 3 and 5 of the Convention. 4.     On 29 September 2011 the application was communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article   29 §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1993 and 1974 respectively and live in Lublin. 6.     On 9 April 2008 the first applicant went with a friend to the Public University Health Care Unit in Lublin. She said that she had been raped on 8 April 2008 by a boy of her own age. The medical staff told her that they could neither examine her nor provide medical assistance because she was a minor and the consent of her legal guardian was necessary. Dr E.D. reported the case to the police and notified the first applicant’s parents. 7.     Later that day, after reporting that an offence of rape had been committed, the applicants attended at Public University Hospital no.   4 in Lublin, accompanied by a female police officer. The second applicant gave her consent for an examination of her daughter to be carried out. The first applicant was in a state of emotional shock. At the hospital, psychological help was offered to her. Bruises on her body were confirmed by a family doctor several days after the alleged event took place, between 9 and 14   April 2008. 8.     The rape resulted in pregnancy. The applicants decided together that an abortion would be the best option, considering that the first applicant was a very young minor, that the pregnancy was the result of forced intercourse, and that she wanted to pursue her education. 9.     On 19 May 2008 the first applicant was questioned by the police. Her mother and the alleged perpetrator’s defence lawyer were present during the questioning. The first applicant stated that the perpetrator had used force to hold her down and to overcome her resistance. 10.     On 20 May 2008 the District Prosecutor, referring to section   4   (a) item 5 in fine of the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) (“the 1993 Act”) (see paragraph 54 below) issued a certificate stating that the first applicant’s pregnancy had resulted from unlawful sexual intercourse with a minor under 15   years of age. A.     Attempts to obtain an abortion in Lublin hospitals 11.     The second applicant went to the Ministry of Internal Affairs and Administration Hospital in Lublin to ask for a referral for an abortion. She was advised there to contact Dr O., the regional consultant for gynecology and obstetrics. Other doctors whom the second applicant contacted privately were also of the view that a referral from the regional consultant was necessary. 12.     The second applicant also went to another public hospital in Lublin (the Jan Boży hospital) and contacted a chief physician there, Dr W.S., who suggested that the applicants meet with a Catholic priest. The second applicant refused. 13.     The second applicant then contacted Dr O. He told her that he was not obliged to issue a referral and advised the second applicant to “get her daughter married”. She left his office, but returned shortly afterwards as she was afraid that without the doctor’s referral it would not be possible to obtain an abortion. He told her to report to the Jan Boży hospital. 14.     On 26 May 2008 the applicants reported to that hospital. They were received by the acting chief physician. They clearly stated their intention to have the pregnancy terminated. They were told that they would have to wait until the head of the gynecological ward, Dr W.S., returned from holiday. They were told that it would be best for the first applicant to be hospitalised, with a view to blood and urine tests and an ultrasound scan being carried out. On the same day the first applicant was admitted to that hospital. 15.     On 30 May 2008 Dr W.S. returned from holiday and told the applicants that she needed time to make a decision. She asked them to return on 2   June. She then called the second applicant separately to her office and asked her to sign the following statement: “ I am agreeing to the procedure of abortion and I understand that this procedure could lead to my daughter’s death .” On the same day the first applicant was discharged from the hospital for the weekend. 16.     On the morning of 2 June 2008 the first applicant returned to the hospital alone as her mother was working. 17.     The applicants submitted that Dr W.S. took the first applicant for a talk with a Catholic priest, K.P. The first applicant was not asked what her faith was or whether she wished to see a priest. During the conversation it transpired that the priest had already been informed about the pregnancy and about the circumstances surrounding it. 18.     The Government disagreed with the above account by the applicants. They stated that the girl had wished to see the priest. 19.     During the conversation the priest tried to convince the first applicant that she should carry the pregnancy to term. The first applicant told him that she could not make the decision herself and that she relied on her parents in the matter. The priest asked her to give him her mobile phone number, which she did. She was given a statement written by Dr W.S. to the effect that she wanted to continue with the pregnancy and she signed it. The applicants submitted that she had signed it as she had not wanted to be impolite to the doctor and priest. 20.     When the second applicant arrived later, the priest spoke to her. She told him that it was the family’s decision to terminate the pregnancy. Dr   W.S. told the second applicant that she was a bad mother. She presented her with the document signed by the first applicant and told her that the first applicant had decided to continue with the pregnancy. An argument took place between the doctor and the second applicant. The first applicant, who was present in the room, started to cry. The doctor said that she would adopt both the first applicant and the baby. 21.     Subsequently, Dr W.S. told the applicants that she would not perform the abortion, that under communism when abortion had been freely available no one had made her perform abortions, and that no doctor would have given permission for an abortion to be performed. According to the applicants, she also implied that none of the other doctors in the hospital would perform an abortion. 22.     The applicants left the hospital. The second applicant contacted the Federation for Women and Family Planning ( Federacja na rzecz Kobiet i   Planowania Rodziny - hereinafter, “the Federation”) in Warsaw for help, as after their experience in Lublin she was afraid that no one in that town would perform an abortion. 23.     On an unspecified date the Jan Boży hospital issued a press release to the effect that it would not perform an abortion in the applicants’ case. Journalists who contacted the hospital were informed of the circumstances of the case. 24.     The case became national news. A number of articles were published by various local and national newspapers. It was also the subject of various publications and discussions on the internet. B.     Attempts to obtain an abortion in Warsaw 25 .     On 3 June 2008 the applicants went to Warsaw and contacted a doctor recommended by the Federation. They were informed about the procedure and about the available options. In the afternoon the first applicant was admitted to a hospital in Warsaw. She submitted to the hospital the certificate issued by the prosecutor (see paragraph   10 above), and a medical certificate issued by the national consultant in gynecology to the effect that she had a   right to a lawful abortion. She signed a consent form to undergo an abortion and her parents also gave their written consent. Shortly afterwards the deputy head of the gynecological ward informed the applicants that he had received information from the Lublin hospital that the first applicant did not wish to have an abortion. 26.     On 4 June 2004 the applicants were told that the first applicant was obliged by law to wait another three days before having an abortion. On the same day the first applicant received a text message from Catholic priest K.P. that he was working on her case and that people from all over the country were praying for her. She also received numerous text messages along the same lines from a number of unknown third parties. The priest came to the Warsaw hospital later in the day together with Ms   H.W., an   anti ‑ abortion activist. They were allowed to see the first applicant. They talked to her in her mother’s absence and tried to persuade her to change her mind. In the evening an unidentified woman came to her room and tried to convince her to continue with the pregnancy. The first applicant was upset about this and about the fact that the hospital apparently had no control over who could approach her. 27.     On the same day the first applicant’s father came to the hospital, apparently as he had been informed that his consent to the abortion was also necessary. A psychologist spoke with the first applicant’s parents and then with the applicant. She apparently prepared an opinion on the case. The first applicant’s parents were not given access to it. The doctor who had admitted the first applicant to the hospital told her that a lot of pressure had been put on the hospital with a view to discouraging it from performing the abortion, and that the hospital was receiving numerous e-mails from persons criticising the applicants for having decided to allow the first applicant to have an abortion. 28.     On 5 June 2008, feeling manipulated and helpless, the applicants decided to leave the hospital. As they were leaving, they were harassed by Ms   H.W. and Mr M.N.-K., anti-choice activists waiting at the hospital entrance. The mother stopped a taxi but the activists told the driver that her parental rights had been taken away and that she was trying to kidnap the first applicant. The driver refused to take them. Ms H.W. called the police. The police arrived promptly and took both applicants to the police station. C.     The first applicant’s placement in a juvenile shelter 29.     At the police station the applicants were questioned on the same day, from approximately 4   p.m. until 10 p.m. No food was offered to them. The officers showed the applicants the family court decision which the police had received by fax at about 7 p.m. from the Warsaw hospital. That decision, given by the Lublin Family Court, restricted the second applicant’s parental rights and ordered the first applicant to be placed in a juvenile shelter immediately (see paragraph 34 below). 30.     Subsequently the police took the first applicant to a car. She was driven around Warsaw in search of a juvenile shelter that would accept her. The second applicant was not permitted to accompany her daughter. As no place was found in Warsaw, the police drove the girl to Lublin, where she was placed in a shelter at approximately 4 a.m. on 6 June 2008. She was put in a locked room and her mobile phone was taken from her. On 6   June 2008 priest K.P. visited her there and told her that he would lodge an application with the court requesting it to transfer her to a single mother’s home run by the Catholic church. 31.     A psychologist and an education specialist talked to her. She summarised the conversation thus: “They wanted to know the entire story and the Assistant Principal was present. I told them again about the entire affair with the hospitals and the abortion. They said that it would be better for me to give birth. They did not ask me about my view. I stayed locked in the room all day. I felt as though I was in a correctional facility, I had bars on the window and a locked door, it was not very pleasant.” 32.     Later in the morning of that day the first applicant felt pain and experienced bleeding. In the late afternoon she was taken to the Jan Boży hospital in Lublin. She was admitted to the maternity ward. A number of journalists came to see her and tried to talk to her. D.     Proceedings before the Family and Custody Court 33.     On 3 June 2008, acting upon a letter from the Lublin III Police Station and two letters from the headmaster of the school attended by the first applicant dated 26 and 27 May, and a note drawn up by a non ‑ identified authority, apparently a court supervisor ( kurator ), also on 3   June 2008, the Lublin Family and Custody Court instituted proceedings to divest the second applicant of her parental rights. In these letters the headmaster referred to a text message sent to a friend of the first applicant in which the first applicant had expressed serious distress and said that she could not count on her mother’s assistance as she saw abortion as the only solution, and to a conversation between the first applicant and one of her teachers in which she had said that she wished to carry the pregnancy to term. She had also been concerned about the consequences, including psychological ones, that an abortion might have. The headmaster was of the view, relying on a conversation he had had with the class teacher and with the school social pedagogue, that the first applicant might be under pressure from her family. He was concerned that the second applicant had not sought psychological assistance for her daughter, who, it had been suggested by the school, might have suicidal tendencies. The second applicant had been requested to attend at the school; she had been shown the text message and told to make an appointment with a psychologist immediately and given all the necessary information for contacting a therapist. Enclosed with the letter was a print-out of a chat between the first applicant and her friend dated 7 May 2008. It transpired therefrom that in reaction to the news about the minor’s pregnancy her father had become violent and had told her that if she wanted to keep her baby she would have to move out of the house; she also said that she did not know what to do and wanted her friend to help and the school to intervene. 34.     On the same date that court, sitting in camera, ordered the first applicant’s placement in a juvenile shelter as an interim measure. In its decision the court stated that the documents referred to above demonstrated that the first applicant’s parents did not take appropriate care of their daughter. She was pregnant; she had been admitted to the Lublin Jan Boży hospital, which had refused to carry out an abortion having regard to the first applicant’s statement that she did not wish to have recourse to it. The court had regard to text messages she had sent to her friend. Doctor W.S. had informed her about the consequences of an abortion. It was reported that the first applicant had travelled to Warsaw with her mother in order to have an abortion performed there. The first applicant was under pressure from her mother and was unable to take a decision independently. Her hospital stays and the atmosphere in the family were harmful to her. She had to be separated from her family in her own interest. The court relied on Article   109 para   1 (5) of the Family Code. 35.     On 6 June 2008 the second applicant appealed against that decision. On 9   June 2008 she filed with the court a written consent to her daughter’s abortion, which she also submitted to the Lublin hospital. On 10   June 2008 she submitted a declaration by the first applicant stating that she wanted to have an abortion and that she was not being coerced into it. 36.     On 13 June 2008 the first applicant was questioned at the hospital by a criminal judge in the presence of a prosecutor and a psychologist, in the context of proceedings concerning allegations of coercion with a view to making her terminate her pregnancy. The first applicant testified that she had been forced into a sexual act which had resulted in pregnancy and that her mother had not forced her to make the decision to have a termination. The questioning started at 7.30 p.m. and lasted for three hours. The first applicant’s parents were not permitted to be present. The first applicant did not have legal assistance or any other adult present to represent her as a minor. Later the same day the court allowed the second applicant to take her home. On 14   June 2008 she was discharged from the hospital. 37.     On 18 June 2008 the Lublin Family Court quashed its decision concerning the first applicant’s placement in the shelter. 38.     On 18 February 2009 the Lublin Family and Custody Court, relying mainly on an expert opinion prepared by the Family Diagnostic and Consultation Centre, held that there were no grounds on which to divest the first applicant’s parents of their parental rights. It discontinued the proceedings. E.     The applicants’ contact with the Ministry of Health 39.     Between 9 and 13 June 2008 the second applicant filed a complaint with the Office for Patients’ Rights of the Ministry of Health asking them to help her daughter obtain a lawful abortion, and submitted relevant documents, in particular the prosecutor’s certificate. An official of the Ministry, K.U., informed the second applicant that her daughter’s statement consenting to an abortion would have to be witnessed by three persons. When the second applicant informed him that the statement had in fact been signed in the presence of three witnesses, he told her that the witnesses’ identification numbers were required and that the faxed copy had to be notarised. 40.     On 16 June 2008 the second applicant was informed by telephone by a Ministry official that the issue had been resolved and that her daughter could undergo an abortion. She was notified that she would have to go to Gdańsk, in northern Poland, approximately 500 kilometers from their home in Lublin. 41.     On 17 June 2008 the Ministry of Health sent a car for the applicants and they were driven to Gdańsk. The first applicant had an abortion in a public hospital there. The applicants submitted that the trip to Gdansk and the abortion were carried out in a clandestine manner, despite the termination being lawful. When the applicants came back home, they realised that information about their journey to Gdańsk had been put on the Internet by the Catholic Information Agency that day at 9 a.m. F.     Various sets of criminal proceedings 1.     Against the first applicant 42.     On 1 July 2008 the Lublin District Court instituted proceedings against the first applicant on suspicion that she had committed a criminal offence punishable under Article 200 § 1 of the Criminal Code (sexual intercourse with a minor under 15 years of age). The first applicant was summoned to appear in court for questioning on 25   September 2008. 43.     On 20 November 2008 the proceedings were discontinued. The court held that the first applicant could only be considered the victim of a criminal offence, not the perpetrator. 2.     Against the perpetrator of the alleged rape 44.     On 28 August 2008 the second applicant informed the prosecutor that her daughter had been raped. According to her submissions, she was not aware that reporting the rape to the prosecuting authorities in May was not sufficient for an investigation to be instituted. The investigation against the perpetrator of the alleged rape was ultimately discontinued on 10   June 2011. 3.     Against the second applicant, the first applicant’s father and two other persons 45.     On 14 July 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings against the second applicant, the first applicant’s father, Mrs   W.   N., and K.K., who worked for the Federation for Women and Family Planning, concerning a suspicion that the first applicant had been coerced into having an abortion against her will. The prosecutor found that they had no case to answer and observed that it was not open to doubt, in the light of the documents submitted by the applicants to the Warsaw hospital, that she had a right to a lawful abortion. 4.     Against other persons 46.     A second set of proceedings, discontinued on the same date, concerned a suspicion that unknown persons, including doctors from Lublin and Warsaw, Catholic priests and members of anti-abortion organisations, had exerted pressure on the first applicant to dissuade her from having an abortion. The prosecutor found that there was no case to answer, because the criminal law did not penalise attempts to persuade a pregnant woman to carry the pregnancy to term as long as no physical violence was used. 47.     The second applicant appealed against that decision. 5.     Against Ms H.W. and Mr M.N.-K. 48.     On 21 November 2008 the Warsaw-Śródmieście District Prosecutor discontinued proceedings that had been instituted against Ms H.W. and Mr   M.N.-K., finding that they had accosted the applicants when they were leaving the hospital in Warsaw on 4 June 2008, but that they had no case to answer because no physical violence had been involved. On 19   September 2009 the Warsaw ‑ Śródmieście District Court dismissed the applicants’ appeal. 6.     Against the police officers 49.     On 17 September 2009 the Warsaw-Śródmieście District Court dismissed the first applicant’s appeal against a decision given on 26   May 2009 by the Warsaw-Sródmieście District Prosecutor to discontinue criminal proceedings against the police officers who had detained her at the police station on the basis of the placement order. The prosecutor and the court found that the police officers had no case to answer. 7.   Against various persons on charges of disclosure of confidential information 50.   On 31 October 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of unlawful disclosure of the applicants’ personal data, finding that no criminal offence against the protection of personal data had been committed. No written grounds were prepared for these decisions as the law did not make it mandatory. The applicants appealed, submitting that when the first applicant had been in the Warsaw hospital, information about her real name, condition and predicament was available and discussed on many internet fora. This caused considerable stress to the applicants. The medical data were particularly sensitive and their disclosure to the general public was unlawful. It was therefore necessary to establish the identity of the persons who had leaked the information to the public. On 31   March 2009 the Lublin Regional Court dismissed the appeal, finding that the prosecutor’s decision was lawful and correct. 51.     On 12 November 2008 the Lublin ‑ Północ District Prosecutor upheld a decision given on an unspecified date by the police to discontinue an investigation into charges of disclosure of information protected by law, an punishable under Article 266 of the Criminal Code committed by Dr W.S., possibly also by other doctors working at that hospital, ²by the director of the hospital who had spoken to the press about the applicants’ case and by priest K.P. The applicants appealed submitting that information about the applicants’ situation had been disclosed to the general public. On 5 February 2009 the Lublin District Court dismissed the complaint, holding that the first applicant had not objected to the proposal to speak to the priest; that prior to her admission to the hospital information about her pregnancy was known in her school and to her friends and that the first applicant had not obliged the priest not to disclose information about her predicament to third parties. The court was of the view that it was well known that cases of teenage pregnancy gave rise to controversy and were normally widely discussed by third parties, social and church organisations engaged in the debate about such cases. II.     RELEVANT DOMESTIC LAW AND PRACTICE 52.     The applicable provisions of domestic law are extensively summarised in the judgments of Tysiąc v.   Poland , no.   5410/03, 20   March 2007, and R.R. v. Poland , no.   27617/04, 26 May 2011. 53.     In particular, the Law on Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination), which is still in force, was passed by Parliament in 1993. Section   1 provided at that time: “every human being shall have an inherent right to life from the moment of conception”. 54.     Section 4(a) of the 1993 Act reads, in its relevant part: “1.     An abortion can be carried out only by a physician and 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 suffer from an incurable life ‑ threatening ailment; 3)     there are strong grounds for believing that the pregnancy is the result of a criminal act. 2.     In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; and in cases listed under 3) above, until the end of the twelfth week of pregnancy. 3.     In the cases listed under 1) and 2) above, the abortion shall be carried out by a physician working in a hospital. ... 5.     The circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life. The circumstances specified in paragraph 1, subparagraph 3) above shall be certified by a prosecutor. . ” THE LAW I.     THIRD PARTIES’ SUBMISSIONS 55.     The Court will first set out the submissions received from the third parties who were granted leave to intervene in the case. It will then examine the admissibility and merits of the applicants’ complaints under Articles   3 and 8 of the Convention. A.     The Polish Helsinki Foundation for Human Rights 56.     In cases of sexual violence against women and girls, distress suffered by the victims is exacerbated by the risk of unwanted pregnancy or by actual pregnancy resulting from rape. A denial of timely access to necessary medical treatment for female victims of sexual assault, including legal abortion, exposes them to additional suffering and may constitute an act of inhuman or degrading treatment. The distress of a female victim of rape may also be amplified by the unauthorised release of confidential information concerning a rape-induced pregnancy. 57.     In the intervenor’s view, it is the State’s obligation, stemming from Article 3 of the Convention, to adopt detailed guidelines for the criminal justice system and health-care practitioners in order to prevent additional suffering for the victim. Therefore, developing a specialised procedure regulating conduct towards victims of sexual abuse would not only assist in collecting the necessary evidence but also, more importantly, validate and address sexual assault patients’ concerns, minimise the trauma they may experience and promote their healing. 58.     In theory, the 1993 Act grants women a broad array of reproductive health services, for instance, medical, social and legal assistance, easy access to information and pre-natal testing, methods of family planning and oral contraceptives, and the possibility to terminate a pregnancy. However, despite the statutory wording, Polish women and girls face significant barriers when seeking these medical services in practice. Problems with effective access to legal abortion are reflected in governmental statistics on the execution of the Act: the official number of legal abortions carried out in Poland is very low. In 2009 there were only 538 procedures of legal abortion nationwide. In 510 of those cases the termination was caused by embryopathological factors; 27 procedures were conducted in order to protect the life and health of the pregnant woman, and only 1 abortion was carried out on grounds of the registered pregnancy having been caused by a criminal act. No comprehensive analysis has been presented to explain such a small number of abortions. The third party considers the data collected by the Government highly unreliable and doubts whether they reflect the real situation. The data should be seen against the background of police statistics to the effect that 1,816 cases of rape were reported in 2009. The low figures for lawful abortions in connection with the enforcement of the 1993 Act prove only that women find it less complicated to terminate pregnancies illegally than under the provisions of that statute. 59.     Furthermore, in practice the “conscience” clause is often misused. Apart from being used by individual doctors, who fail to refer the patient to another hospital, it is also invoked by entire healthcare facilities, including public ones. Although the problem of such abuse is widely recognised, no effective monitoring mechanism has been put in place to ensure that women’s right to abortion is respected. B.     The Rule of Law Institute, Lublin, Poland 60.     Issues involving the legal definition of and protection of human life, the determination of the conditions for its acceptable termination, and the understanding of privacy and freedom of conscience are issues of fundamental importance deeply rooted in the culture of each society. The definition of the temporal limits of human life falls within the margin of appreciation of the States Parties. It is not the Court’s task to question the doctors’ and State authorities’ decisions on the acceptability of abortion. It has been acknowledged in the Court’s case-law that the acceptance of termination of pregnancy should be left to decisions given by the democratically elected national authorities. This approach is based on the values underpinning the Convention, such as respect for individual freedom and dignity. Understanding of notions of life and parenthood is so strongly linked to personal freedom and dignity and also to the spiritual values common to the nation that their protection cannot be taken out of the national sphere. In the examination of any case the Court should also have regard to the social and cultural specificity of Poland. 61.     The notion of private life within the meaning of Article   8 of the Convention is not unlimited. Termination of pregnancy cannot be said to belong exclusively to the sphere of the mother’s private life. When a woman becomes pregnant her life becomes closely bound up with the developing child. It is not open to doubt that each decision on abortion is seriously harmful to the mother. It has long-lasting effects on her body and psyche. A   woman who has decided to have an abortion for whatever dramatic reason must be treated with the utmost care and protection so as to avoid her dignity being threatened any further. This obligation of assistance rests in particular on the State officials responsible for handling such cases. C.     The Coram Children’s Legal Centre, London 62.     The unique, special position of children has been expressly recognised in many international human rights instruments. The best interests of the child shall be a primary consideration in proceedings touching on its situation. The best interests of the child can only be assessed properly by reference to the views, wishes and feelings of the child. Failure to establish the child’s views may render any decision as to what those best interests are, and how they are best met, unsafe and unlawful. This principle applies irrespective of the type of decision or subject matter of the decision to be taken and is applicable to judicial decision-making and to administrative proceedings. The United Nations Committee on the Rights of the Child (CRC) has emphasised the need to provide appropriate child-sensitive procedural accommodation to enable children to take part in decision-making and legal proceedings. 63.     The rights protected by Article 8 of the Convention encompass protection of health and other personal information. Children are entitled to the same, if not higher, protection against non ‑ consensual disclosure of their health and other personal information to third parties, in view of their vulnerability. The CRC observed that confidential medical information concerning adolescents may only be disclosed with the consent of the person concerned or in the same situation applied to adults. Confidentiality is essential to promote the use of health services by adolescents. Other international bodies have consistently recognised the need to respect children’s privacy in matters of health as well as when they are victims of crime. 64.     Separation by public authorities amounts to an interference with the family’s rights. While authorities enjoy a wide margin of appreciation in assessing the need to take a child into care, the court must still be satisfied that genuine emergency circumstances existed justifying a child’s abrupt removal from her parents’ care without consultation. The State has the burden of demonstrating that it has engaged in a careful assessment of the impact of the separation on the family and of the available alternatives. 65.     In the context of a child’s placement in a juvenile centre there must be a relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention. A care order resulting in placing a child in a locked room in a juvenile shelter can only be made when the child is in such danger that it is impossible for him or her to remain in the family environment. Care orders do not fall into the exhaustive list of permitted deprivations of liberty set out in Article 5 § 1 of the Convention. D.     European Centre for Law and Justice, Strasbourg 66.     The principle of the sanctity of life has been recognised by the Court. The right to life is an inalienable attribute of human beings and forms the supreme value in the hierarchy of human rights. Life is not merely a private good and right; it is also a public good, which explains why it should by protected by criminal law. Moreover, pregnancy does not concern merely the mother’s private life. 67.     The Convention does not formulate any limitations as to the temporal scope of the protection of the right to life; it protects “everyone”. Every human life forms a continuum which begins at conception and advances towards death. Developments in in vitro fertilisation, abortion and euthanasia give rise to situations where the legal protection of life does not coincide with the natural temporal limits of life. The Court has accepted, referring to their margin of appreciation, that States are entitled to determine the moment from which that protection is accorded to a foetus. The Court has also accepted that a foetus belongs to the human race and should be protected as such. 68.     Abortion amounts to an exception or derogation from the principle that human life should be protected. There is no right to abortion as such; it must be regarded only as an exception to the rule. The Convention itself does not guarantee a right to abortion. Its Article 8 does not confer such a right on women. The Convention and its Protocols must be interpreted in the light of present-day conditions; however, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate. 69.     Where a State allows for legal abortion, it remains under a positive obligation to protect life and to strike a balance between competing interests. Such legitimate interests must be taken into account adequately and in accordance with the obligations deriving from the Convention. Making abortion lawful does not exempt the State from its responsibility to limit recourse to it and to restrict its consequences for the exercise of fundamental rights. The fundamental rights to life and to health cannot be put on the same footing as the alleged right to abortion. These rights cannot be balanced against each other. The obligation of the State is even stronger where vulnerable persons are concerned who need to be protected against pressure exerted on them, including by their own family environment. The State should be obliged to help pregnant women respect and nurture life. When a pregnant woman envisages abortion, it is the responsibility of the State to ensure that such a decision has not been taken as a result of external pressure. 70.     Medical professionals are entitled to refuse to provide medical services. This entitlement originates in their moral obligation to refuse to carry out immoral orders. The Court in its case-law has confirmed the supremacy of moral sense over positive law. Respect for the life of a human being underpins the right to conscientious objection in the medical sphere. Medical practitioners should not be obliged to perform abortion, euthanasia or in vitro fertilisation against their will and against their principles. A possible solution for this dilemma would be to establish a register of physicians qualified and willing to perform lawful abortions. E.     Amnesty International 71.     The United Nations Committee on the Rights of the Child has emphasised most strongly that the term “violence” must not be interpreted in such a way as to minimise the impact of, and the need to address, non ‑ physical and/or non-intentional forms of harm, such as, inter alia , neglect and psychological maltreatment. That Committee defined inhuman or degrading treatment as “violence in all its forms against children in order to extract a confession, [or] to extrajudicially punish children for unlawful or unwanted behaviours”. Unwanted behaviour in this regard may be understood broadly to include a child’s desire to terminate an unwanted pregnancy and to exercise the right to freedom of conscience. 72.     The Inter-American Commission on Human Rights has remarked that victims of sexual violence cannot fully exercise their human rights unless they have access to comprehensive health-care services and information. Providing such care to victims of sexual violence should be treated as a policy priority. 73.     The United Nations Special Rapporteur on Violence against Women has noted that certain violations entail different harms for men and women and therefore