TOKARCZYK v. POLAND
Inadmissible
Christos Rozakis
The applicant, Jerzy Tokarczyk, is a Polish national, who was born in 1955 and lives in Lublin. In 1995 the Lublin District Prosecutor instituted investigations in respect of a person or persons unknown on suspicion of aiding and abetting abortion. On 11 April 1995 the District Prosecutor ordered the interception of the applicant’s telephone calls as he suspected him of having committed a criminal offence of aiding and abetting abortion. On 12 May 1995 the applicant was remanded in custody. He was released on an unspecified date after approximately four months of detention. On an unspecified date the applicant appealed against the decision of 11 April 1995, submitting that the interception of his phone calls had exposed his family to harassment by the employees of the State telecommunications service. On 7 June 1995 the Lublin Regional Prosecutor upheld the contested decision, considering that it had been justified by the need to gather evidence in the proceedings. The recorded conversations had served as evidence, which enabled charges to be brought against the applicant. After the applicant was arrested, the interception of his phone calls was terminated on the same day. By virtue of a judgment of the Lublin District Court of 27 October 1997 the applicant was found guilty on fourteen counts of aiding and abetting abortion in return for payment. He was also convicted of inciting one of the women who had had an abortion, M.Z., to give false evidence. The applicant was sentenced to one and a half years’ imprisonment and a fine of 3,000 Polish zlotys (PLN) was imposed on him. The court established that from March 1993 the applicant had been regularly placing advertisements in the local newspaper: “Gynaecologist - inducing periods; call after 6 p.m. ”, and giving a phone number of a flat owned by him. Numerous women had telephoned him. He offered a service of taking them by his car to a hospital in Lviv in Ukraine, where abortion remained legal, for a fee of between PLN 700 and PLN 2,000. He had travelled to Lviv ten times, on various dates from 21 January 1995 until 27 April 1995, with fourteen women who had had abortions in the local hospital. The court relied on the testimony of thirty witnesses, including the fourteen women concerned, the staff of the newspaper in which the applicant had placed his advertisements, the persons living in his flat where he had been taking the phone calls, and other persons living in the neighbourhood. The court also relied on numerous documents in the case-file. As regards the charge of inciting M.Z. to give false evidence, the court relied on the transcripts of the applicant’s conversation with her, in which he had suggested that she tell the court that she travelled to Lviv to visit her family. The court further considered that the transcript of the two conversations was consistent with the evidence that this witness had given in the court. The applicant appealed against that judgment. He submitted, inter alia, that the court had committed an error of fact in that it had failed to order expert medical opinions to establish whether the health of the women concerned had been such as to justify abortion under the law as it had stood at the material time. It was further argued that the court had failed to establish whether the women concerned were in a “difficult personal situation” within the meaning of the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act. The court had limited its considerations in this respect to the women’s financial situation, entirely overlooking all other aspects of what could legitimately be understood as their “personal situation”. The term “personal situation” should have been interpreted as referring to a woman’s situation as a whole, including her subjective feelings. Regard should have been had to the particularly delicate situation of a woman in an unwanted pregnancy, often confronted with the hostility of her environment and having to cope with prejudices and negative opinions in respect of unmarried mothers. Only through a full assessment of all such circumstances could it be established whether the women in the instant case were in a difficult personal situation such as to render voluntary termination of pregnancy lawful under the provisions of the Act. Lastly, the applicant argued that the lower court did not have any credible evidence on which to convict him of inciting M.Z. to give false evidence. On 10 March 1998 the Lublin Regional Court upheld the contested judgment. The court considered that there was in fact evidence concerning the charge of inciting M.Z. to give false testimony, namely the transcript of the telephone conversations between her and the applicant on 5 May 1995 and 9 May 1995, numbered 10 and 15. As to the health of the women who had had abortions, the court observed that there were no indications that the applicant had been interested in their health when he had offered his services. Therefore it could not be accepted that their health could have been such as to amount to a fact justifying the abortion within the meaning of the Act then in force, or that the applicant had himself had any regard to this factor. Insofar as the applicant argued that the lower court had failed to establish whether the women were in a “difficult personal situation”, the court considered that the assessment made by the lower court was not arbitrary and that it was compatible with ordinary life experience. The applicant lodged a cassation appeal with the Supreme Court. submitting complaints similar to those advanced in the appeal against the first-instance judgment. On 8 April 1999 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. Subsequently, the applicant applied to the Penitentiary Division of the Lublin District Court to grant him a stay of execution of the sentence as his health necessitated continuous medical care. On 31 August 1998 the court granted him a stay of execution. On an unspecified date the applicant applied again for a stay of execution of the sentence and on 29 June 1999 the Lublin District Court refused, holding that there were no indications that the serving of a prison sentence would entail any deterioration of his health. Subsequently, the applicant applied to the Supreme Court to reopen the criminal proceedings in his case, submitting that the Zamość District Prosecutor had, at his request, instituted criminal proceedings against witnesses who had testified in his case as their testimony had allegedly been false. Simultaneously, he applied for a stay of execution of the sentence. On 5 August 1999 the Supreme Court refused to grant him a stay of execution. On an unspecified later date the applicant appealed against the Lublin District Court decision of 29 June 1999 and on 16 August 1999 the Lublin Regional Court granted him a stay of execution of the sentence until 30 October 1999. Apparently, the applicant submitted further applications for a stay of execution and they all were refused. On an unspecified date the applicant requested the Supreme Court to set a date for the in respect of his application to reopen the proceedings in his case. On 11 July 2000 he was informed in reply that the hearing could not be held until the final decision was given in the criminal proceedings against witnesses, as the decision was of significant importance for the decision on the reopening of the proceedings. On an unspecified date the Zamość District Prosecutor discontinued the proceedings against the witnesses, finding that they had no case to answer. The applicant appealed against that decision and the Zamość District Prosecutor ordered his appeal to be considered by the Lublin District Court. Article 198 of the 1969 Code of Criminal Procedure, applicable at the material time, provided that the prosecutor or the court was empowered to order that telephone communications, which could be of potential relevance to criminal investigations, be intercepted. The service of such a decision on the accused could be postponed for a specific period, considered necessary in the interest of the investigations. Under the Minister of Justice’s Order of 10 May 1983 on the interception of phone calls, recordings of telephone conversations were to be made on the basis of the prosecutor’s or court’s order, within the time-frame and scope specified in that order. A woman’s right to seek an abortion was introduced in Poland in 1956. From 1956 until 1993 voluntary termination of pregnancy on social grounds was in practice allowed. The Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act was subsequently adopted by Parliament on 7 January 1993. It seriously limited the grounds on which abortion could be sought. On 4 January 1997 an amended text of the Act entered into force. The law as amended provided that pregnancy could be terminated only in the following cases: where pregnancy endangered the mother’s life or health; whre pre-natal tests or other medical findings indicated a high risk that the foetus could be severely and irreversibly damaged, or be suffering from an incurable life-threatening disease; where there were strong grounds for arguing that the pregnancy was a result of criminal activity (rape or incest); or where the mother was in a difficult personal situation. On 27 May 1997 the Constitutional Court ruled that Article 1 § 2 of the Act, making human life in its pre-natal stage dependent on the decision of the legislative, did not comply with Article 1 of the 1952 Constitution. That provision stated that Poland was a democratic state ruled by law and implementing the principles of social justice. The Constitutional Court held that Article 2 of the Act was incompatible with Article 79 of the Constitution, which proclaimed the principle that marriage, motherhood and the family were to be placed under the protection and care of the Republic. The Court held that the provision in issue infringed the constitutional guarantees for the protection of human life at each stage of its development. As a result, further amendments were made in December 1997 to the text of the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act of 1993. In particular, the right to terminate pregnancy where the pregnant woman was in a difficult was abolished. A pregnancy that risks a woman’s life or health, or where the child suffers from a genetic malformation, may only be terminated by a physician in a public health-service institution. A physician other than the one who is to perform the operation must issue the certificate confirming the risk to a woman’s health. If the pregnancy resulted from criminal activity, it may only be terminated by the end of its twelfth week and the prosecutor is required to issue a certificate stating that it is probable that the pregnancy is the result of a crime. Termination of pregnancy in situations other than those stipulated in the Family Planning, Protection of the Human Foetus, and Conditions Permitting Pregnancy Termination Act is now a criminal offence punishable by imprisonment for up to two years. The person performing the abortion is held criminally responsible, whereas the woman herself is not.