MOTION FOR A RESOLUTION on the rule of law in Poland in the context of the recent abortion ruling

B9‑0371/2020

European Parliament resolution on the rule of law in Poland in the context of the recent abortion ruling

(2020/2876(RSP))

The European Parliament,

– having regard to the Treaty on European Union, and in particular Articles 2 and 7(1) thereof,

–  having regard to the European Convention on Human Rights (ECHR) and the related case law of the European Court of Human Rights (ECtHR),

– having regard to the Charter of Fundamental Rights of the European Union (the Charter), and in particular Article 3 thereof on the right to the integrity of the person,

– having regard to the Universal Declaration of Human Rights of 10 December 1948,

– having regard to the International Conference on Population and Development (ICPD) held in Cairo in 1994 and its programme of action, and to the 2019 Nairobi Summit (ICPD25) marking the 25th anniversary of the ICPD,

– having regard to the Beijing Declaration and Platform for Action adopted by the Fourth World Conference on Women on 15 September 1995 and to the subsequent outcome documents adopted at the United Nations Beijing +5 (2000), Beijing+10 (2005), Beijing +15 (2010) and Beijing +20 (2015) special sessions,

– having regard to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention),

– having regard to the United Nations Sustainable Development Goals (SDGs), agreed in 2015,

– having regard to the mission report of 10 July 2017 by the Committee on Women’s Rights and Gender Equality following its mission to Poland of 22-24 May 2017,

– having regard to the mission report of 3 December 2018 by the Committee on Civil Liberties, Justice and Home Affairs following the visit of an ad hoc delegation to Poland of 19-21 September 2018 to assess the situation of the rule of law,

– having regard to its resolution of 13 February 2019 on experiencing a backlash in women’s rights and gender equality in the EU[1],

– having regard to its resolution of 14 November 2019 on the criminalisation of sexual education in Poland[2],

– having regard to its legislative resolution of 4 April 2019 on the proposal for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States[3], and to its legislative resolution of 17 April 2019 on the proposal for a regulation of the European Parliament and of the Council establishing the Rights and Values programme[4],

– having regard to its resolution of 17 April 2020 on EU coordinated action to combat the COVID-19 pandemic and its consequences[5],

– having regard to its previous resolutions on Poland, in particular that of 17 September 2020 on determination of a clear risk of a serious breach by Poland of the rule of law[6],

– having regard to the Commission’s reasoned proposal of 20 December 2017 in accordance with Article 7(1) of the TEU regarding the rule of law in Poland, entitled ‘proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law’ (COM(2017)0835),

– having regard to its resolution of 18 December 2019 on public discrimination and hate speech against LGBTI people, including LGBTI‑free zones[7],

– having regard to the case law of the Court of Justice of the European Union and the ECtHR,

– having regard to the four infringement procedures launched by the Commission against Poland in relation to the reform of the Polish judicial system,

– having regard to Rule 132(2) of its Rules of Procedure,

A. whereas under Article 2 of the TEU, the EU is founded on respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, values which are shared by all Member States and which must be upheld by the EU and by each individual Member State in all their policies;

B. whereas the rule of law is one of the common values on which the EU is founded; whereas the Commission, together with Parliament and the Council, is responsible under the Treaties for guaranteeing respect for the rule of law as a fundamental value of the Union and for making sure that EU law, values and principles are respected;

C. whereas an efficient, independent and impartial judicial system is essential to ensure the rule of law and the protection of the fundamental rights and civil liberties of citizens in the EU;

D. whereas, according to the Charter, the ECHR and the case law of the ECtHR, women’s sexual and reproductive health is related to multiple human rights, including the right to life and dignity, freedom from inhuman and degrading treatment, the right of access to healthcare, the right to privacy, the right to education and the prohibition of discrimination, as is also reflected in the Polish Constitution;

E. whereas women’s rights are human rights and are therefore universal and indivisible; whereas Poland has ratified the Istanbul Convention and adopted the Beijing Declaration and Platform for Action, which calls for action to ensure access to sexual and reproductive health and rights, and whereas any breach of the rule of law risks having a negative impact on women’s rights;

F. whereas the Constitutional Tribunal was established as one of the central elements to ensure the checks and balances of constitutional democracy and the rule of law in Poland;

G. whereas recent events in Poland, in particular the political and legal dispute concerning the composition of the Constitutional Tribunal and the new rules on its operation, have given rise to concerns regarding the ability of the Constitutional Tribunal to uphold the constitution and guarantee respect for the rule of law;

H. whereas any clear risk of a serious breach by a Member State of the values enshrined in Article 2 of the TEU does not concern solely the individual Member State where the risk is present, but also has an impact on the other Member States, on the mutual trust between them and on the very nature of the Union and its citizens’ fundamental rights under Union law;

I. whereas as a result of the Constitutional Tribunal’s ruling of 22 October 2020, medically-assisted abortion in cases where prenatal tests or other medical considerations indicate a high probability of a severe and irreversible abnormality or an incurable disease in the foetus has become unconstitutional; whereas the subsequent bill can be seen as the latest in a series of attempts over recent years to limit sexual and reproductive health and rights in Poland;

1. Considers it essential to guarantee that the common European values listed in Article 2 of the TEU are upheld in full;

2. Believes that all Member States must fully comply with EU law in their legislative and administrative practices and that all legislation, including the primary law of all Member States and candidate countries, must reflect and adhere to basic European values, namely democratic principles, the rule of law and respect for fundamental rights;

3. Recalls that the acts concerning the Polish Constitutional Tribunal adopted on 22 December 2015 and 22 July 2016, as well as the package of three acts adopted at the end of 2016, seriously undermined the Constitutional Tribunal’s independence and legitimacy and that the acts of 22 December 2015 and 22 July 2016 were declared unconstitutional by the Constitutional Tribunal on 9 March 2016 and 11 August 2016, respectively; recalls that those judgments were not published at the time or implemented by the Polish authorities; deplores in the strongest terms the fact that the constitutionality of Polish laws can no longer be effectively guaranteed in Poland since the entry into force of the aforementioned legislative changes;

4. Recalls that several members of the current Constitutional Tribunal were appointed in violation of the Polish Constitution, thus raising questions about their impartiality and independence as well as their ability to uphold the principals of the Polish Constitution;

5. Points out that Poland’s politicised Constitutional Tribunal stated on 22 October that one of the three exceptions to the ban on abortion, namely cases of severe and irreversible foetal defects, should be made illegal; notes that this decision was pronounced by the judges elected by and fully dependent on politicians from the ruling coalition led by the Law and Justice Party (PiS), following a request from a group of parliamentarians from the ruling coalition and with the support of the pro-life movement, and that the judgment has not yet been published, leaving Polish women in limbo and creating a chilling effect;

6. Stresses that women in Poland have the right to legal certainty and protection of their choice in the case of severe and irreversible foetal impairment, as provided for in Polish law under the current legal framework, established in 1993; stresses that the constitutionality of the three existing exceptions had not been questioned by the Constitutional Tribunal until the PiS-led government took control of the tribunal and the justice system more broadly;

7. Expresses its regret at the proposed amendments to the act of 16 July 2020 on doctors’ and dentists’ professions, under which doctors and health service facilities such as hospitals would no longer be legally obliged to indicate an alternative facility or practitioner in the event that they deny sexual and reproductive health services on the grounds of personal beliefs;

8. Notes that it is currently common practice among medical practitioners in Poland to refuse to provide health services such as legal abortion or to prescribe contraceptives on the basis of the conscience clause, even in situations where delay could endanger the patient’s life or health; stresses that this conscience clause also hinders access to prenatal screening, which is not only a violation of women’s right to information on the condition of the foetus but also, in many cases, hinders the successful treatment of the child during or immediately after pregnancy;

9. Recalls that abortion should not be considered or used as an emergency contraceptive method; emphasises the need to provide comprehensive and age appropriate sexual and relationships education, as a lack of information and education about sex and sexuality may result in higher rates of unintended pregnancies;

10. Emphasises that access to healthcare, including sexual and reproductive healthcare and the associated rights, is a fundamental human right; regrets that access to healthcare services in certain areas of Poland is still constricted: according to the Supreme Audit Office, in 2018, only 2 % of pregnant women living in rural areas in Poland underwent all standard tests that are carried out during pregnancy, such as foetal ultrasound, KTG or maternal blood testing;

11. Notes that peaceful protests are taking place all over the country to oppose the above-mentioned ruling and to oppose the government, and that 73 % of Poles oppose the Tribunal’s decision[8];

12. Welcomes the provisional agreement of 5 November 2020 on legislation to establish a mechanism that would allow for the suspension of EU funding to a Member State when there is a risk of a breach of the rule of law;

13. Calls on the Commission to examine the latest developments in Poland and the recent ruling by the politicised tribunal as yet another example of political take-over of the judiciary and as part of a systemic collapse of the rule of law in Poland;

14. Invites the Commission to proceed to a thorough assessment of the composition of the Constitutional Tribunal and to consider launching an infringement procedure in relation to its rulings and its unlawful composition, which raise questions about its ability to uphold the Polish Constitution;

15. Urges the Polish Government to take full account of the recommendations of the Venice Commission on the organisation of the justice system, including when carrying out further reforms of the Supreme Court;

16. Calls on the Council to address this matter and other allegations of violations of fundamental rights in Poland;

17. Calls on the Polish Government to swiftly and fully implement the rulings of the Court of Justice of the European Union and to respect the primacy of Union law as well as the rulings of the ECtHR;

18. Instructs its President to forward this resolution to the Commission and the Council, the President, Government and Parliament of Poland and the governments and parliaments of the Member States.