PROTECTION OF THE RIGHT TO LIFE MADE RELATIVE

The Family Planning Act in the Constitutional Tribunal

The act modifying the hitherto scope of the protection of the right to life has been challenged before the Constitutional Tribunal on the basis of the infringement of the constitutional guarantees of human rights protection.

The senators are of the opinion that the following constitutional norms have been infringed:

1. "The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice? (Art. 1 of the constitutional act remaining in force)

2. "The Republic of Poland shall strengthen and expand the rights and liberties of the citizens? and ?The Citizens of the Republic of Poland shall have equal rights regardless of their gender, birth, education, profession, nationality, race, confession, social origin and position? (Art. 67(1) and (2)).

3. "The Republic of Poland shall guard and protect marriage, motherhood and the family. The state shall take special care of families with numerous offspring? (Art. 79(1)).

Concentrating on Art. 1 of the Constitution containing a fundamental norm of interpretation, it was assumed that it provides a guarantee and certitude of the observance of subjective rights following from the very fact of being a human being as well as rights obtained in accordance with statutory provisions and principles of equity, and that those rights shall not be abolished or limited by the legislator.

This provision provides certitute as to the independence of the enjoyment of actually possessed and acquired rights from the changing political and legislative will of the state, placing fundamental human rights above the fluctuating legislative activity of the state.

The fundamental constitutional guarantees are concerned equally with the activity of the executive, judiciary and legislative branches of government.

Global Standards

The Polish legal system is inseparably connected to global human rights standards. This fact follows from the supremacy of universal human rights and the principles of their implementation into the internal Polish legal system on the basis of the international obligations binding upon the Polish state.

A resolution of the Supreme Court of 12 June 1992 states that: ?the relationship between treaty norms and national law is to be clearly decided upon in the future Constitution of the Republic of Poland and in the draft act on the conclusion, binding force and loss of binding force of an international treaty. The solution proposed in this respect clearly indicates the supremacy of the law of treaties over national law. However, as long as this does not take place, it is possible to assume, just as the case-law from the period between World War I and World War II, that the enactment of a statute consenting to the ratification of an international treaty has the effect of transforming a treaty into national law of a statutory level?.

In the grounds of the resolution, the Supreme Court assumes that a norm of international law, transposed into the domestic legal order by a statute and correctly published in the Dziennik Ustaw [Journal of Laws] has the same legal force as a statute and may be applied by courts as a statute on the basis of which the courts are obliged to adjudicate.

This resolution and the practice of adjudication refer to the tradition of judicial practice of the Second Republic of transposing international law into statutory law.

The fact that Parliament adopted an act consenting to the ratification of the Convention on the Rights of the Child and it has been published in the Dziennik Ustaw [Journal of Laws] means that this Convention has the same legal force as statute and may be applied by courts as statute with all the consequences which follow from this fact; this has been stated by the Supreme Court (resolution of seven judges of 12 June 1992, II CZP 48/92, OSNCP no. 10/1992, p. 62).

In the Municipal Legal Order

Therefore, international treaty rules on human rights are binding as a statute in the Polish legal system after their publication in such a character in the Dziennik Ustaw [Journal of Laws]. Are rules of international customary law also binding in the municipal legal system in the same manner? The Universal Declaration of Human Rights, which is not a treaty within the meaning of international law, is regarded as international customary law.

The International Covenant on Civil and Political Rights and the European Convention on Human Rights and Fundamental Freedoms invoke the Universal Declaration of Human Rights and develop the rules contained therein. A reference to the Universal Declaration of Human Rights in the European Convention and in the UN standards creates a close, universally binding link between the regional European Convention and the norms of the United Nations. Those norms have the rank of general clauses binding with regard to the interpretation of the entire legal system. This signifies a sui generis transformation of the international principles of the Declaration into national law. The international protection of universal human rights, independent of any political system, has precedence over their protection by individual states, which makes them the substance of inviolable rights (absolute rights).

Rules having the character of general clauses determine the scope within which a state may limit the application of provisions on human rights, the scope of norms allowing reservations as to their application, as well as the conditions and principles of admissible limitations.

All ratified international treaty norms which are binding upon Poland are part of the national legal system regardless of the time when they were concluded.

The Constitutional Tribunal, in its case-law, considered the criterion of human rights protection following from international treaties. It decided that ?a conflict or merely an incoherence between the provisions of an act and the provisions of an international treaty binding upon the state does not correspond to the principle of a democratic state ruled by law? (Information on the essential issues following from the activity and case-law of the Constitutional Tribunal in 1995, Warsaw, February 1996 ? Senate print no. 354).

Therefore, the jurisdiction of the Constitutional Tribunal extends to the evaluation of the conformity of municipal law which is created and is binding with the universal standards of absolute human rights included, on the basis of constitutional procedures, into the mandatory legal system (jus cogens), the so-called internationally protected substance of human rights (for more details see Professor Tadeusz Jasudowicz, ?O prawach człowieka w podwójną rocznicę paktów? [On Human Rights on the Occasion of a Double Anniversary of the Covenants] [in:] Księga Pamiątkowa w hołdzie prof. Annie Michalskiej [Liber Amicorum Offered to Prof. Anna Michalska] (Toruń: TNOiK, 1996)).

The Clause of Ordre Public

A fundamental human right enjoying such an international protection is the right to life. The object of protection of the right to life is human existence in any phase or form, which is indicated by the expression ?human being? ?Every human being has the inherent right to life.? This right is not alienable. (Art. 6(1) ICCPR).

This right is autonomous and independent from positive law and is supposed to be protected by the legislative activity. The state may concretise the protection of a human right by the law it enacts but it may not violate it. The Human Rights Committee of the UN declared that the right to life mentioned in Art. 6(1) of the International Covenant on Civil and Political Rights is a supreme right which may not be derogated even in conditions of extreme public danger (General remarks of the UN Human Rights Committee adopted on 27 July 1982).

This right is protected from infringements by positive law enacted by the states by the so-called ordre public clause in Art. 30 of the Declaration of Human Rights which has been received by the treaty norms (Art. 5(1) and (2) of the International Covenant on Civil and Political Rights ? Dziennik Ustaw [Journal of Laws] of 1977, no. 38 (annex); Art. 17 and 18 of the European Convention on Human Rights and Fundamental Freedoms ? Dziennik Ustaw [Journal of Laws] of 1993, no. 61, item 284). It is binding on all states-signatories of international treaties regarding the protection of human rights. The observance of the clause should be controlled by the Constitutional Tribunal from the point of view of the constitutional principle of a state ruled by law. The ordre public clause delimits the scope within which the state may limit the protection of the right to life. It eliminates the possibility of enacting provisions leading to the ruin or destruction of the protection of this right.

The ordre public clause as a general clause indicates, as a directive, the scope of the application of the constitutional guarantee stating that: ?The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice? in the context of the guarantee stating that: ?The Republic of Poland shall guard and protect marriage, motherhood and the family. The state shall take special care of families with numerous offspring? and that: ?The Republic of Poland shall strengthen and expand the rights and liberties of the citizens?.

Therefore, the legislator can not weaken or narrow the scope of the broadened and strengthened rights.

A treaty rule transposed into the internal legal order states that: "the child (...) needs (...) appropriate legal protection, before as well as after birth" (Convention on the Rights of the Child, Dziennik Ustaw [Journal of Laws] of 1991, no. 120, item 526).

The Commission and Court of Human Rights in Strasburg have issued few decisions regarding the scope of the protection of the right to life which are an indication as to interpretation of that scope.

With regard to an application lodged against Great Britain by a father of a conceived child deprived of its life by an arbitrary decision of the mother, where the British authorities were accused of not preventing an abortion performed by his wife, the Commission took a position (decision no. 8416/79; Marek Antoni Nowicki Wokół Konwencji Europejskiej [Around the European Convention] (Warszawa 1992)) which allows to draw the following conclusions:

1) the life of a human being in the pre-natal phase is the object of autonomous protection which can be opposed to the protection of the rights of a woman in whose organism that child is staying before it is born;

2) in an early phase of the development of a human being in the pre-natal stadium the protection of its right to life is limited by such reasons as the protection of the life and health of a woman-mother in that period;

3) the decision to deprive a human being of its life in the foetal phase lies not only in the competence of the woman in whose organism the human being is maturing but also to the man who is the father;

4) this decision is subject to control as to the objective criteria justifying the derogation from the protection of the right to life in a concrete case.

An autonomous, special legal subjectivity of a conceived child, both as an object of protection and as a subject of rights, follows from the hitherto way of treating the right to life.

The Polish state may not, without negating the attribute and obligation of being a state ruled by law, limit or abrogate the protection of the right to life within the scope in which the standard rules of human rights which operate with supremacy within the legal system binding in Poland do not allow for that.

A Mandatory Rule

The Act challenged before the Constitutional Tribunal infringes the general clause in accordance to which limitations upon the right to life are admissible only within the scope indicated by the said clause and the clause itself constitutes a numerus clausus and may not be subject to an extensive interpretation.

The right to life, that is the right to existence, is a right connected to the whole process of existence determined by the genetic code. This right, due to its object, may not be subject to derogative measures i.e. it may not be subject to limitations and it is a mandatory rule.

Limitations of the right to life have been hitherto admissible only in exceptional cases, catalogued in a detailed manner, as a derogation from the penalisation of its violation on the basis of a so-called criminal defence.

What character and type of a criminal defence is meant here? It seems obvious that it cannot be any other criminal defence than the one requiring the sacrifice of an interest comparable on account of its character, type and significance. The protection of the right to life may not therefore be opposed to the priority of protecting one?s property or one?s financial situation. One cannot protect one?s financial situation, property or personal comfort at the price of depriving another human being of its life because the right to life is a fundamental and superior human right.

The legal status of a human being in the pre-natal phase is different from the status of a human being after birth but not with regard to the scope of protection of the right to life.

This protection regards first of all the object of protection and furthermore detailed subjective rights granted to the conceived child.

The historically shaped exclusion of the execution of a death penalty with regard to pregnant women (presently Art. 31 of the Penal Code) has had the aim of protecting not the woman?s right to life but the right to life of an autonomous human being conceived and developing in her body, whose right to life is the object of independent protection.

This independence clearly follows from the fact that the death penalty is not applied to a woman if she was pregnant at the time of the commission of the crime and if she is carrying someone else?s life at the time of the court?s decision or even at the time of the execution of the death penalty. Regardless of the time of conception, whether it be prior to the crime for which the death penalty has been inflicted or after the death penalty has been pronounced, the independent subjectivity of the conceived child and the protection of its life has priority over the enforcement of law with regard to the offender.

If it has been established prior to the execution of the death penalty that a woman who has been sentenced to this penalty is pregnant, the court shall transform the death penalty into the penalty of 25 years of imprisonment (Art. 111 of the Executive Penal Code).

The Polish legal system created rules directly concerned with the pre-natal phase of human life, crowned by the amended Act of 7 January 1993 on family planning, human foetus protection and the conditions of admissibility of the termination of pregnancy. This Act confirmed the absolute binding force of the principle of human life protection, encompassing the entire process of existential development of the human being from the moment of conception until natural death, determined by the individual and specific genetic code and confirmed the independent legal subjectivity of a human being in the pre-natal phase.

The hitherto Art. 8(2) of the Civil Code (abrogated by the challenged Act) summarised the historically shaped case-law and fixed the uniformity of rights enjoyed by a conceived child determined in other provisions (Art. 75 and Art. 182 of the Family and Guardianship Code as well as Art. 927 § 2 of the Civil Code and Art. 510 of the Civil Procedure Code).

Those provisions provided for a guardian for a person who is in a pre-natal phase at the time of death of the de cujus with the purpose of protection of the future rights of a conceived child with regard to the capacity to inherit. The guardian may, acting on behalf of the unborn child, apart from performing protective actions (Art. 633 et seq. of the Civil Code), also perform any actions leading to the protection of the child?s future rights. He may also take part in proceedings regarding the declaration of the acquisition of the estate after the death of the de cujus.

The state of the law realising the protection of the right to life in the Polish legal order corresponded to the international standards and constituted vested rights within a scope which may not be limited without an infringement of the constitutional principle of a state ruled by law. The narrowing of the scope of legal protection of human life in the state of the law prior to the amendment was limited to the following:

1) the non-penalisation of the mother of the conceived child causing the child?s death;

2) a justification of the infliction of death upon the conceived child by a doctor taking this action in a public establishment of health protection when:

a) the pregnancy constituted a risk to the life or a serious risk to the health of the mother, determined by a decision of two doctors other than the doctor performing the action; this decision is not necessary if there is an urgent need of protecting the life of the mother;

b) the death of the conceived child occurred as a result of actions taken with the aim of protecting the life of the mother or counteracting a serious threat to the health of the mother, where the said threat has been confirmed by a decision of two other doctors;

c) pre-natal examinations, confirmed by a decision of two doctors other than the doctor performing the action, indicate a severe and irreversible damage to the foetus;

d) there is a justified suspicion, confirmed by a certificate issued by a prosecutor, that the pregnancy is a result of prohibited act.

Incomparable Interests

The abrogation of the protection of human life due to the difficult life conditions, financial condition or personal situation of a pregnant woman is, in the light of the binding rules protecting the right to life, inadmissible as a general rule. Every such case having the character of an infringement of the legal protection of life may be a mitigating circumstance with regard to a derogation from the penalisation of an act prohibited by the law but may not infringe the principle itself of absolute protection of human life.

The Act of 30 August 1996, violating the principle of absolute protection of the right to life in the above-mentioned scope, infringes the regulatory principles following from the observance of the requirements of a state ruled by law. Instead of creating an additional criminal defence allowing, in individual cases, to derogate from the criminalisation of the infringement of an absolutely protected right to life, the said act introduces the priority of the protection of property, of the financial situation and the life situation of one human being at the cost of the right to life of another human being. The character of the object of protection of the two interests is incomparable.

One can deteriorate the financial situation in order to protect personality rights, among which the supreme ones are the right to dignity and the right to life but one cannot deprive one of his life in order to prevent the deterioration of the financial situation or personal comfort of someone else.

The right to life is indivisible and should be subject to legal protection in its entirety.

The hitherto formulation of the act had the character of an absolute rule, allowing for limitations following from the justification of its infringement on the basis of a criminal defence in conformity with the ordre public clause which was provided for in individual factual circumstances where criminal responsibility for the infringement of the right to life was eliminated.

In accordance with the new formulation of Art. 1 of the Act of 30 August 1996, ?the right to life is subject to protection? but exclusively ?within the limits provided for by statute?. The protection of the right to life has been made relative and connected to a statutory norm enacted in a fluctuating manner, dependent on the changing will of the legislator. Thus, the mandatory rule of life protection in every stadium and form has been annihilated. 

The new Act not only removes the legal subjectivity of a human being in the pre-natal phase but also any protection granted to such a human being outside the limits set out in the Act. Therefore it modifies the absolute character of the protection of the right to life.

The rights of every human being must be protected when a statute infringes them by ?unfair legislation, not respecting the standards of correctness? (for more details see: Professor Sławomira Wronkowska, ?Jednostka a władza prawodawcza? [The Individual and the Legislative Power] [in:]  Księga Pamiątkowa w hołdzie prof. Annie Michalskiej [Liber Amicorum Offered to Prof. Anna Michalska]).

The protection of the financial situation and living conditions of one human being through the deprivation of another human being of its right to life is an abuse or right. The acquisition of the right to such protection of one?s property and comfort of life at the price of life is an unjust acquisition of an unjust right. The ordre public clause does not allow for such a method of regulation.

The said Act limits the enforcement of human rights standards in an inadmissible way. It eliminates the principle of absolute protection of the right to life. The legislator, when declaring the conservation of the right to life also in its pre-natal phase, related its scope to statutory rules, and subsequently eliminated the civil and criminal protection of this right. Such conduct cannot be evaluated as being in conformity with the requirement of fair legislation, respecting the standards of correctness.. ----------------

Piotr Ł. J. Andrzejewski

16.01.1997