CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 décembre 2023

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page-break-after:avoid; font-size:14pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sB853CD26 { font-family:Arial; font-size:8pt } .sD0A217A5 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-indent:-18.45pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FIRST SECTION CASE OF M.L. v. POLAND (Application no. 40119/21)     JUDGMENT   Art 8 • Private life • Prohibition of abortion on grounds of foetal abnormality following amendments introduced by the Constitutional Court, resulting in the applicant travelling abroad for termination • Art 8 applicable • Impugned proceedings directly decisive for applicant’s Art 8 rights • Grave irregularities vitiating election of Constitutional Court judges sitting on the panel which issued relevant ruling and compromising its legitimacy as a “tribunal established by law” • Findings in Xero Flor w Polsce sp. z o.o. v. Poland regarding the election of Constitutional judges applicable • Impugned restriction not issued by a body compatible with the rule of law requirements • Lack of required foreseeability depriving applicant of the proper safeguards against arbitrariness • Interference not “ in accordance with the law”   Prepared by the Registry. Does not bind the Court.   STRASBOURG 14 December 2023   FINAL   14/03/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.L. v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Alena Poláčková , President ,   Krzysztof Wojtyczek,   Péter Paczolay,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato, judges , and Renata Degener, Section Registrar, Having regard to: the application (no.   40119/21) 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 a Polish national, Ms M.L. (“the applicant”), on 26 July 2021; the decision to give notice to the Polish Government (“the Government”) of the complaints under Articles 3 and 8 of the Convention; the decision not to have the applicant’s name disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the third-party interveners, who were granted leave to intervene by the President of the Section; Having deliberated in private on 21 November 2023, Delivers the following judgment, which was adopted on that date: 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. Background to the case 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. 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 . 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.   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. 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 Domestic law and practice   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.” Access to legal abortion 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. ...” 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. 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. 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”. 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. ...” 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. Relevant international documents The United Nations 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.” 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 ...” The Council of Europe The Committee of Ministers 53.