Success of the strategic litigation for the protection of reproductive rights, triumph of constitutionalism or 'escape into formalism'? Commentary on the judgment of the European Court of Human Rights of 14 December 2023, no. 27617/04 in M.L. v. Poland.

Abstract

In the judgment of 14th December 2023 the ECHR declared unlawful the interference in the applicant's private life due to the tightening of the abortion law as an outcome of the verdict of an improperly appointed constitutional court. It is the first result of the wave of complaints that the Court received after the so-called embryopathological premise for abortion was repealed by the TK. The powerful positive impact it could potentially have on the situation of Polish women should not be underestimated. On one hand, it opens the way for the direct victims of the 22 October 2020 ruling to pursue financial claims in Strasbourg. In addition, it obliges courts to refuse to take into account faulty judgments of the Constitutional Tribunal when adjudicating. Finally, the resulting obligation to implement the ECtHR judgment may provide an incentive for statutory liberalisation of the Polish abortion law. However, when justifying its decision on the violation of Article 8 ECHR, the panel focused on matters far from the essence of the question of reproductive rights. In this regard, it is natural to feel dissatisfied by the fact that after years of silence, the Court did not take the opportunity to update its position on the margin of appreciation of Member States regarding the way in which abortion is legally regulated. The strong focus on constitutional law issues, nevertheless, means that the M.L. judgment, rather than in the context of the ECtHR's decisions on abortion, should be seen as a continuation of a line of jurisprudence focused on the consequences of defects in the process of judicial appointments. Disappointing – albeit for other reasons – is also the Court's dismissal of a complaint by Ms. M.L. to the extent that she alleged a violation of the prohibition of torture and inhuman or degrading treatment by Poland. The ruling on this subject was, indeed, not preceded by a detailed analysis of the circumstances of the case, which would have made it possible to determine whether the "minimum level of severity" had been achieved, and therefore cannot be considered truly justified.