A United Nations Committee categorizes protection of human life as torture – Commentary by Ordo Iuris Institute

Ordo Iuris

Last month the United Nations Committee against Torture held a periodic review of implementation of the Convention against Torture by Poland.  In the beginning of August, the Committee, which is responsible for the monitoring of implementation of the Convention issued their Concluding Observations indicating areas of the implementation of the convention which in their opinion required improvement and formulating recommendations of future actions for Poland.

The Concluding Observations did not fail to reference access to killing of the unborn through abortion and questions of domestic violence.  These two topics are being raised by various Committees of the United Nations Organization independently of the scope of their mandates. In the opinion of the committee members’ violence against women and absence of effective access to the killing of an unborn baby through abortion, must be such an immense suffering and a cause of such psychological and physical pain that it requires analysis in light of the convention against torture and other inhuman, cruel and degrading treatment.  The same committee however, did not manage to develop the same perception regarding the killing of unborn babies, who at the age of 8 weeks react to touch and at 20 weeks have a developed nervous system.  This means that during the abortion which is killing them they are subjected to uncommonly cruel and painful treatment, connected on many occasions with dismembering their bodies and sucking them out of their mothers womb.

In the case of killing of unborn babies during abortion the committee members had 3 concerns: (1) absence of an effective procedure of access to the killing of an unborn baby through abortion if the doctor has a conscientious objection, (2) excessive length of the period (up to 30 days) that the Commission of Medical Doctors may take to issue an opinion after a protest against an opinion or medical diagnosis is filed based on Article 31 of the Law of 6 November 2008 on the Rights of the Patient and the Spokesperson for the Rights of Patients (Journal of Laws of 2019 position 1127), (3) difficulties in access to information on how to kill an unborn baby through an abortion.

However, the comparison of the reservations of the committee members with available information leads to different conclusions.  In accordance with the information delivered to the committee by the representative of the Health Ministry if a doctor expresses a conscientious objection there is currently a de facto solution in place, which puts an obligation on the health care provider to inform the mother where she should go to kill her baby through abortion.  Additionally, the mother can obtain such information through a nationwide telephone support line named Patient Phone Information, operated by the office of the Spokesperson for the Rights of Patients.  The above mentioned practice was not reflected in the recommendations of the Committee members.  Neither was the noteworthy fact that this practice is unconstitutional and it contradicts the verdict of the Constitutional Tribunal of October 7, 2015 [signature act K 12/14).  As already mentioned in previous analyses, the Tribunal stated in its justification of the verdict that the duty to identify a person or a place where objectionable practice is being offered should not rest on the healthcare provider who expressed conscientious objection but on the institutions of public authority, especially the National Healthcare Fund.  Moreover, the discharge of such an obligation by health care providers could lead to a violation of the freedom of conscience of their doctors, to a violation of medical secrecy and violation of personal data protection rules by gathering and storing by one healthcare provider of sensitive information about doctors employed by a different one.  The reference to the excessive length of time (up to 30 days) which Commission of Medical Doctors may take to review a protest against an opinion or a diagnosis refusing statutory grounds for the killing of an unborn baby was mentioned mainly in the context of the last statutory justification, i.e. the conception of a child as a result of a forbidden act.  According to the Committee members the maximum of 30 days to issue the statement by the Commission of Medical Doctors is making it difficult or even impossible to perform the killing of an unborn baby through abortion, as the period in which this can be done is limited by the age of the unborn baby and can be only done during the first 12 weeks of the life in prenatal stage.  As a side note the committee members have expressed an erroneous opinion that the limitation during the first 12 weeks of the baby’s life is valid for all three of the statutorily grounds for admissibility of abortion.  According to the Committee members a reasonable deadline to issue such a statement should be up to 10 days. However, when reviewing the reports of the Council of Ministers on the implementation of the so called Act on the Planning of the Family and its results in the period from 2014 to 2017 (which is a period subject to monitoring by the Committee) it should be noted that the Spokesperson for the Rights of the Patient received only 2 protests regarding the killing of an unborn baby through abortion in 2014.  The first was reviewed within 13, the second within 14 days.  In 2015 one protest was filed and it was reviewed in 23 days.  It’s worth mentioning here that the protest was filed on 23 December 2015 and the commission made a decision on 15 January 2016.  In 2016 and 2017 no protests were filed.  Addressing the last comment of the committee it is worthwhile to mention that there is a Patient Telephone Information, which is also providing information concerning access to killing of unborn babies through abortion.

Regarding violence against women, the Committee members were concerned that domestic violence is not regulated by the statues as a single forbidden act, including criminalization of marital rape and were pointing out the relatively small number of convictions for domestic violence.  Although the members of the committee in their Concluding Observations did not justify the need to introduce one category of unlawful act including all domestic violence, it may be inferred from their arguments for the adoption of a single unlawful act of torture, that the concern here is to minimize the possibility of a situation when some such deeds are going to elude penalization.  The Committee members’ concerns may be considered as purely theoretical.  The Criminal Code provides for at least 18 unlawful acts encompassing domestic violence in their scope (including physical, psychological, sexual and economic violence).  To address this theoretical concern one can argue that it is specifically the detailed nature of regulation on domestic violence enabled by a greater number of unlawful acts than just one, which allows for a more exhaustive regulation of the undesirable phenomenon of violence.  The remark of the Committee members on the number of criminals convicted for resorting to domestic violence needs to be recognized as very superficial.  According to the data of the Ministry of Family, Labor and Social Policy contained in the Report on the Execution of Nationwide Program to Counteract Violence in the Family the majority of people accused of domestic violence in the period of 2014 to 2017 were convicted.  In 2014, 14,309 of the 17,030 accused were convicted.  In 2015, it was 13,755 of the 16,677, in 2016, 12,486 of 15,071 while in  2017, 12,630 of the 15,287 accused were convicted.  Moreover, as suggested by the research of the European Union Agency for Fundamental Rights conducted in 2014, Poland at the backdrop of the entire European Union has one of the lowest ratios of domestic violence suffered by women from their current or former partner and it reaches 19% percent (with the European Union average at the level of 33%).  It is worth additional underscoring that Poland is characterized by the highest ratio of reporting of domestic violence to the police in the entire European Union.  Poland also has a small number of cases of sexual molestation of women over 15 years of age and of such cases during the 12 months preceding the interview (half the European Union average and the third lowest result together with Slovenia).  Poland also compares very favorably in the statistics concerning violence against girls under the age of 15.  It could be stated that compared to other European union countries physical beating of a girl in Poland is very rare.  Only 14% of the research women admitted that they experienced physical violence during childhood.  Data regarding psychological violence indicate that the vast majority of Polish families do not witness this kind of acts.  Only 5% of researched women have encountered such behaviors among their family members.  Similarly only 37% of adult Polish women have declared that they experienced psychological violence from the side of their former or current partner.  The research conducted proves that Polish women feel safe.  Only 3% stated that they frequently felt fear of becoming a victim of physical or sexual violence and as many as 86% have never felt this way.  Most of them (over 60%) do not avoid certain places and situations because of fear of becoming a victim of such actions.

Due to the above Observations the members of the Committee adopted recommendations for Poland, one of which deserves special attention.  It is the recommendation for Poland to refrain from withdrawing from the Convention on Prevention and Counteraction of Violence against Women and Domestic Violence (the so-called Istanbul convention) and to consider decriminalizing abortion.   The first recommendation in practice leads to the weakening of counteraction of domestic violence.  The Ordo Iuris Institute have stated on multiple occasions that the Istanbul convention in its most fundamental assumptions undermines the institution of the family, shows it as a source of violence and undermines the rights of the parents to raise their children according to their beliefs and religion.  This way the convention is weakening the family which according to the research of the Department of Justice and the Health Department of the United States of America and the Organization for Safety and Cooperation in Europe (OSCE) assures the best support to all members and protection from all kinds of violence including domestic.  Implementing the second recommendation would lead in turn to a situation of violation of the international and domestic law, where certain groups of people would be discriminated against based on their age, stage in life and state of health in the area of one of the most fundamental human rights, which is the right to life.  Moreover their right to life would depend on the frivolous decision of another human being, who could dispose of their life at will, treating it as a common object of property.  Abolishing legal protection of the right to life of unborn children as a consequence would result in an ever widening discrimination and limitation of this right for other persons, already born, whose health condition would be equally fragile.

Finally, it is worth turning our attention to two important questions which can assist in appropriate analysis of the Concluding Observations discussed.  Firstly it needs to be remembered that the final comments are not legally binding to the states.  They are only a reflection of how a given group of experts which is currently included in the membership of the Committee interprets the effective realization of the convention provisions.  Secondly the Committee‘s recommendation on  domestic violence and access to killing of unborn babies through abortion are exceeding the Committee’s mandate.  The scope of their activity is determined by the provisions of the convention both in their material and procedural nature.  The convention against torture is clearly defining what constitutes torture.  Article 1 of the convention lists a few conditions which must be met jointly in order to constitute an act of torture.  First of all such action has to be based on causing severe pain and suffering and must be directed to obtaining information or confession, exerting punishment, intimidation or exerting pressure or any other goal which would result from any kind of discrimination.  Moreover such actions must be executed by functionaries of the state or other persons in the official capacity or from such persons order or in accordance with their explicit or implicit agreement.  The situation is similar regarding other acts of cruel, inhuman or degrading treatment determined in article 16 of the convention.  Such a clear determination what constitutes torture does not leave any doubts that domestic violence or lack of possibility to kill an unborn baby through abortion does not meet the above mentioned criteria to be considered an act of torture or other acts of cruel and human or degrading treatment.  The strength of the pain caused or the suffering and the pain felt cannot alone constitute an act of torture as understood according to the convention.

Author: Rozalia Kielmans-Ratyńska, Director, Center for International Law, Ordo Iuris Institute.