The applicants, P. and S., were daughter and mother. P., a fourteen-year-old girl, was raped and impregnated by a classmate. Abortion in Poland is available in the case of rape so in May 2008 P. received a certificate from the public prosecutor to allow her to get a legal abortion in Poland. She went to three hospitals who refused to perform the operation: one brought her to a Catholic priest—who urged her not to get an abortion—without her permission. Hospital officials issued a press release after which anti-abortion campaigners harassed P. A criminal proceeding against P. on suspicion of sexual intercourse with a minor was initiated in July 2008 but later terminated, the court finding that P. could only be considered a victim, not a perpetrator. The police then alleged that S. was trying to coerce P. into having an abortion, leading to the authorities removing P. from her mother’s custody and placing her in a juvenile shelter. The Minister of Health intervened and P. got an abortion without being an officially registered patient or receiving any post-abortion care. The European Court of Human Rights held that there was a violation of Article 8: right to respect for private and family life. The Court found that the state should ensure people’s legal rights are facilitated by procedures to fulfill those rights. The Court also found that the hospital press release of information led to interference with the applicants’ lives. The Court held that there was a violation of Article 5(1) because the separation of P. from her parents was taken to prevent abortion rather than within in the purpose of the Article, which is for educational supervision. Finally, there was a violation of Article 3: the difficulties P. met in seeking abortion and subsequent trial for intercourse with a minor constituted ill treatment.
Women and Justice: Keywords
International Case Law
Jabari v. Turkey European Court of Human Rights (2000)
The applicant fled to Turkey from Iran fearing that she would be convicted of having committed adultery, an offence under Islamic law, and sentenced to be stoned to death or flogged. She was arrested at Istanbul airport on the ground that she had entered Turkey using a forged passport. No charges were brought against her on account of the forged passport but she was ordered to be deported. The applicant subsequently lodged an asylum request, which was rejected by the authorities on the ground that the request had not been submitted within five days of her arrival in her Turkey. Later the applicant was granted refugee status by the UNHCR. The Ankara Administrative Court dismissed the applicant's petition against the implementation of her deportation on the grounds that there was no need to suspend it since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant. The applicant complained that her right not to be subjected to ill-treatment guaranteed under Article 3 ECHR would be breached if she were to be deported to Iran. She further complained that she had no effective remedy in the domestic law of the respondent state to challenge her deportation, in breach of Article 13. The ECtHR was not persuaded that the authorities of the respondent state conducted any meaningful assessment of the applicant's claim, including its arguability. It would appear that her failure to comply with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran. The automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Administrative Court on her application for judicial review limited itself to the issue of the formal legality of the applicant's deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin. It further observed that the government have not sought to dispute the applicant's reliance on the findings of Amnesty International concerning the punishment meted out to women who are found guilty of adultery. Having regard to the fact that the material point in time for the assessment of the risk faced by the applicant was the time of its own consideration of the case, the Court was not persuaded that the situation in the applicant's country of origin has evolved to the extent that adulterous behavior was no longer considered a reprehensible affront to Islamic law. It had taken judicial notice of recent surveys of the current situation in Iran and noted that punishment of adultery by stoning still remained on the statute book and may be resorted to by the authorities. Having regard to the above considerations, the Court found it substantiated that there was a real risk of the applicant being subjected to treatment contrary to Article 3 if she was returned to Iran. Accordingly, the order for her deportation to Iran would, if executed, give rise to a violation of Article 3. The Court held that there had been a breach of Article 13. The notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. Since the Administrative Court failed in the circumstances to provide any of these safeguards, the Court was led to conclude that the judicial review proceedings did not satisfy the requirements of Article 13.