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The effects of not publishing Constitutional Tribunal judgements, as demonstrated by the ECtHR judgement in the AR v Poland case


On November 13, 2025, the European Court of Human Rights (ECtHR) delivered its ruling on the case of A.R. v. Poland.[1] At first glance, the case concerned Poland's violation of the prohibition against inhuman treatment and torture by restricting a woman's right to have an abortion. This was the primary complaint raised by the applicant, who claimed that Poland had violated Article 3 of the European Convention on Human Rights (ECHR).[2]

However, this allegation was not upheld by the ECtHR. Instead, the ECtHR upheld the allegation of a violation of Article 8 of the ECHR, what directly concerned the failure or delayed publication of judgments of the Polish Constitutional Tribunal by the Polish authorities and the potential impact this may have on violations of fundamental human rights.[3]

The factual basis for the ruling was the circumstances raised in the application to the ECtHR. The applicant argued that, while in the 15th week of pregnancy, she learned on 5 November 2020 that the fetus had trisomy-18.

Trisomy 18 is a serious genetic defect which, according to the law in force in Poland at that time, allowed termination of pregnancy when prenatal tests or other medical conditions indicate a high probability of severe and irreversible impairment of the fetus or an incurable disease threatening its life.

It was the Constitional Tribunal's judgment of 22 October 2020[4] that changed this legal status. The Tribunal eliminated the so-called eugenic premise of abortion, finding that this regulation legalized eugenic practices in the scope of the right to life of an unborn child and made the protection of this right dependent on the health of the child. This constituted prohibited direct discrimination and a violation of constitutional guarantees for human life.[5]

However, the government delayed the publication of the Tribunal's judgement by over three months. Judgment was not published until 27 January 2021.

During this period, uncertain about her legal status in Poland, the applicant, A.R., travelled to the Netherlands and underwent an abortion at 17 weeks' gestation. She also incurred the costs of travel, accommodation and the procedure itself.

In its judgement, the ECtHR found a violation of Article 8 of the Convention, i.e., the right to private life.

The Court identified legal uncertainty — a period of three months of chaos between the judgement and its publication — and a lack of predictability, as the woman was unable to plan the proceedings.

The ECtHR noted that the Constitutional Court’s judgement could have been published at any time, and that a great sense of uncertainty had prevailed, exacerbated by the absence of transitional measures of any sort. The applicant herself also perceived that the Constitutional Court’s judgement could be published at any time, which made it impossible for her to obtain a legal abortion in Poland.

The ECtHR additionally emphasized that situation was further exacerbated by the ongoing Covid-19 pandemic, during which it was not unreasonable for the applicant to fear that border closures might imminently occur, thereby eliminating the possibility of travelling abroad to access abortion services.

The ECtHR found that such procedures must have a basis in domestic law and be compatible with the rule of law. The high quality of the law in question requires that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him or her, and that it should be compatible with the rule of law.

That implies that domestic law must be sufficiently foreseeable in its terms to provide individuals with adequate information about the circumstances in which, and the conditions on which, the authorities are entitled to resort to measures affecting their rights under the Convention. The ECtHR referred to a number of previously decided cases in this regard.[6]

In particular, as regards the requirement of foreseeability, the ECtHR has held that a rule was “foreseeable” if it was formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate his or her conduct.

The ECtHR noted that the ambiguity that followed the delivery of the Constitutional Court’s judgment had seriously undermined legal certainty. Therefore, the ECtHR examined whether, at the time of the events in the present case, domestic law was sufficiently clear and foreseeable to enable the applicant to regulate her conduct. The Court emphasised that the requirement of foreseeability is particularly important when a right that was previously available under domestic law is restricted.

The ECtHR noted that the Constitutional Court’s judgments took effect from the date on which they are published in the official publication in which the original normative act was promulgated, and that in general they are published immediately as provided in Article 190 of the Constitution.[7] That said, the Constitutional Court may specify a different date from which a normative act that it has found unconstitutional will cease to be binding. In the commneted case the Constitutional Court in its judgment of 22 October 2020, did not indicate a different date for the relevant provisions of the 1993 Act to lose their binding effect.

Having regard to the broad concept of private life within the meaning of Article 8, including the right to personal autonomy and to physical and psychological integrity, the ECtHR accepted that in the specific circumstances of the case this situation of prolonged uncertainty had been capable of constituting an “interference” with the applicant’s Article 8 rights.

It should be noted that the ECtHR judgment only concerned a three-month delay in the publication of the Constitutional Tribunal judgment in 2020–21. While this must be critically assessed, the current situation is incomparable: since 6 March 2024, the government has ceased publishing any rulings of the Constitutional Tribunal. Clearly, such behaviour constitutes an even deeper violation of the right to private life, as defined by the aforementioned judgment. Notably, on 23 September 2025, the Constitutional Tribunal ruled that the statutory provision granting the Prime Minister exclusive authority to publish Constitutional Tribunal judgments in official journals was unconstitutional. This is because the effects of a Constitutional Tribunal judgment, and the obligation for all public authorities to apply it, take effect upon announcement, not upon the completion of the technical process of publishing it in the Journal of Laws of the Republic of Poland.[8]


[2] Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms- Prohibition of torture: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.  (www.echr.coe.int/european-convention-on-human-rights)

[3] Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Right to respect for private and family life): 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (www.echr.coe.int/european-convention-on-human-rights)

[4] Judgment of the Constitutional Tribunal of 22 October 2020, K 1/20, OTK-A 2021, No. 1.;  trybunal.gov.pl/sprawy-w-trybunale/art/planowanie-rodziny-ochrona-plodu-ludzkiego-i-warunki-dopuszczalnosci-przerywania-ciazy.

[5] D. Dudek, Konstytucja i kompromis aborcyjny, Consilium Iuridicum No. 1–2 (13–14)/2025, p. 47, www.krs.pl/pl/kwartalnik-consilium-iuridicum/opublikowane-numery/2025/2809-consilium-iuridicum-nr-1-2-13-14-2025.html.

[6] Kopp v. Switzerland, 25 March 1998, § 55, Reports of Judgments and Decisions 1998 II; Fernández Martínez v. Spain [GC], no. 56030/07, ECHR 2014; e Tommaso v. Italy [GC], no. 43395/09; Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru v. Romania, no. 28341/95, § 55, ECHR 2000-V; Dubská and Krejzová v. the Czech Republic, nos. 28859/11.

[7] Article 190, paragraph 2 of the Constitution.

 

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