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ON MARCH 20, 2007, THE Fourth Section of the European Court of Human Rights, made up of seven judges, gave judgment in Tysiac v Poland. It upheld the applicant's complaint. She suffers from severe myopia, but was unable to obtain a lawful abortion after she became pregnant for the third time. Alicja Tysiac had seen three ophthalmologists, who agreed that she might suffer retinal detachment as a result of pregnancy, but that this was not certain. Her family doctor was concerned about the impact of pregnancy on her sight, and certified that she met the criteria for an abortion. Hut when Tysiac saw a gynecologist, he disagreed.
Tysiac had her baby, and suffered retinal hemorrhages. Her sight deteriorated significantly. She complained to the criminal authorities. The prosecutor obtained a medical opinion that her eye problems were not caused by the gynecologist's refusal of an abortion. Tysiac challenged the refusal to prosecute in a judicial review, which failed. She reported the gynecologist to his professional body, which rejected her complaint.
The court said that her rights under Article 8 of the European Convention on Human Rights, which guarantees respect tor private life, were violated. It rejected her claim under Article 3, a prohibition on inhuman and degrading treatment. It awarded her euro25,000 in damages, plus legal costs.
This is the first case where the court has upheld a woman's complaint that her state denied her a lawful abortion. In D v Ireland, it decided that the applicant had failed to exhaust her domestic remedies. This ruling suggests that the court is more receptive to complaints about a malfunctioning abortion regime than to complaints touching on wider questions of when states should permit abortion.
POLISH LAW
Polish law permits abortion if pregnancy endangers a woman's life or health; if antenatal tests or other medical findings indicate a high risk that the fetus will be severely and irreversibly damaged, or is suffering from an incurable life-threatening disease; or if there are strong grounds for believing that the pregnancy is a result of a criminal act. Unless one of these conditions is met, abortion is a criminal offense punishable by up to three years' imprisonment.
In its fifth periodical report to the U.N. Committee...