Abortion a right and 'hate speech' a crime - vote on the motion for a European Parliament resolution

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- The European Parliament will vote on a draft resolution on fundamental rights in the European Union.

- The motion, among other things, condemns the impossibility of performing legal abortion, supports the extension of the list of EU crimes to include 'hate speech' and states that 'housing is not a commodity but a necessity'.

- Among the amendments tabled is a request to add wording on the need to protect the constitutional identity of EU Member States in the context of Court of Justice case law.

- The document is due to be voted on later this month.

Ideological report by the LIBE Committee

At the end of June, a draft report on respect for fundamental rights in the European Union in 2022 and 2023 was released. The report itself was drafted on behalf of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) by Katerina Barley, representing the German Social Democrats (SPD).

The draft resolution prepared for the European Parliament focused on a number of issues, divided according to five main categories of fundamental rights, such as the rule of law and access to justice, freedoms equality and dignity, social, economic and environmental rights or institutional safeguards of fundamental rights.

The preamble of the document refers, inter alia, to two European Parliament resolutions condemning, in turn, the 2020 judgment of the Polish Constitutional Court, which increased the scope of protection for unborn children, and the 2021 judgment of the US Supreme Court in Dobbs v. Jackson Women's Health Organization, which held that the US Constitution does not guarantee the so-called right to abortion. It goes on to point out that there has been a regression in women's rights in some Member States in recent years, which is specifically to do with the denial of access to 'legal and safe abortion'. The importance of an independent judiciary was also highlighted, pointing out that it is under threat in some EU countries. Reference was also made to the migration crisis, stating arbitrarily that there have been a number of migrant deaths and human rights violations at European borders, which, according to the document's authors, are said to be due to ineffective management and disproportionate use of force by EU Member State authorities. In addition, it states that anti-Semitism, Islamophobia and racism are persistent forms of hatred and discrimination, and that "far-right extremism" poses a particular threat to those affected as well as to society. The same is supposed to apply to gender-based violence, which, according to the report's authors, is supposed to be a highly prevalent phenomenon in the Member States of the European Union.

Attempts to defend the sovereign policies of states

In July, in turn, a comprehensive document was published containing the amendments tabled by MEPs to the report in question. Most of them are maintained in an ideological tone, similar to that of the report.

Amendment 2, tabled by Romanian Conservative representative Cristian Terheş, according to which decisions of the Court of Justice of the European Union are binding on Member States as long as they do not contradict their national constitutions, deserves a positive assessment. The above proposal addresses one of the most important legal problems in the European Union, namely the question of reconciling the constitutional identity of individual EU states with Community law and the case law of the CJEU. The same MEP also proposed, inter alia, the deletion of the reference to the Gender Strategy (Amendment 6), the LGBTIQ Strategy (Amendment 7), the Istanbul Convention (Amendment 22) and the previously mentioned reference to the European Parliament's resolution condemning the judgements of the constitutional courts of Poland and the US (Amendments 48 and 49).

Amendment 161, tabled by Alessandra Mussolini, representing the Italian centre-right, also deserves a positive assessment, pointing out that there have been many cases where those involved in the smuggling of illegal immigrants are responsible for their deaths and at the same time subject them (migrants) to inhuman and degrading treatment.

Decreased level of rule of law in Poland?

In contrast to the Italian MEP's proposal is an amendment by Daniel Freud, representing the German Greens, who proposes to add the wording that 'the criminalisation of solidarity continues to be used as a tool to disrupt the work of NGOs trying to save lives in the Mediterranean' (Amendment 76). The NGOs in question are those that transport illegal migrants to Europe. The Italian MEP in question noted that some of these organisations were responsible for the deaths of migrants who drowned trying to reach Europe.

Amendment 79, proposed by Katerina Barley, Pietro Bartolo, Sylvie Guillaume, and Thijs Reuten, states that some Member States have withdrawn from 'reproductive and sexual health and rights', which has led to the deaths of many women in recent years. MEP Daniel Freud also proposed an amendment stating that 'gender-based violence' is rooted in gender stereotypes, 'heteropatriarchal structures', 'power asymmetries', and 'structural and institutional inequalities' (Amendment 81). The same politician also added an amendment stating that standards of respect for the rule of law have deteriorated in recent years in several Member States, including Poland and Hungary (Amendment 101). The latter allegation, broadened to include concerns about the independence of the judiciary, appears again in Amendment 116, also tabled by Daniel Freund.

By contrast, in Amendment 166, the group of four MEPs mentioned earlier 'urgently call for permanent coordinated search and rescue operations and for Member States to take all possible measures to save the lives of persons in danger at sea'. In Amendment 180, they in turn call for, among other things, the inclusion of the so-called right to abortion in the Charter of Fundamental Rights.

In Amendment 20, a group of MEPs calls for the addition of a passage stating that housing is not a commodity, but a necessity and a prerequisite for full participation in society. At the same time, they call on Member States to increase investment in affordable social housing.

Many of the MEPs' amendments to the report are ideological in nature and raise far-reaching legal concerns. The most controversial one is the proposal to include the so-called right to abortion in the Charter of Fundamental Rights, which would inevitably lead to a collision with the provisions of the Constitution of the Republic of Poland. For it should be remembered that the Constitution of the Republic of Poland, as confirmed by the well-established line of rulings of the Constitutional Tribunal, beginning with the famous 1997 judgment, protects human life from the moment of conception. In this context, one should positively assess Amendment No. 2, according to which the rulings of the Court of Justice of the European Union are binding on Member States, as long as they do not contradict their national constitutions. Such an approach to the problem of the relationship of national law, in particular the fundamental laws of the Member States, to Community law will make it possible to avoid unnecessary problems and the generation of artificial legal conflicts.

Patryk Ignaszczak - analyst at the Ordo Iuris International Law Centre.