December 23, 2025
by Donatas Murauskas
On 13 November 2025, the European Court of Human Rights delivered its judgment in A.R. v. Poland. The case concerned the Polish legal framework governing the prohibition of abortion on the ground of foetal abnormality, as well as the 2020 ruling of the Polish Constitutional Court, which effectively restricted access to abortion. As a consequence of this ruling, the applicant was compelled to seek abortion services abroad. In this blog post, I focus on the part of the Court’s reasoning that sheds light on a particular issue emphasised by the Court: the modulation of the temporal effects of constitutional court decisions. Specifically, the applicant’s three-month uncertainty between the adoption of the operative part of the Constitutional Court’s decision and the publication of its reasoning.
This is not the first case from Poland, which relates to the Polish Constitutional Court of 22 October 2020. In this judgment, the Court refers to M.L. v. Poland of 14 December 2023 as setting out “the relevant domestic law and practice as well as the relevant international documents”. Noa Vreven wrote a great blog post on Strasbourg Observers about M.L. v. Poland, which touches upon the most important substantive features of the judgment. However, the Court distinguishes M.L. v. Poland from the present case regarding certain factual circumstances that are relevant for this blog post.
A.R. forms part of the group of cases communicated to the Polish Government in July 2021 under the title K.C. v. Poland, nos. 3639/21, 4188/21, 5876/21 et al. A.R. concerns an applicant who alleged a violation of Article 8 of the Convention, arguing that domestic law required her to alter her conduct, specifically, that if pregnant, she was compelled to carry the foetus to term even when medical examinations indicated a genetic disorder (trisomy 18) (§ 15). In the light of the Polish Constitutional Court’s ruling and the approach taken by medical personnel in her treatment, the applicant travelled to the Netherlands, where her pregnancy was terminated in a private clinic on 12 November 2020.
The applicant contended that the restriction was not “prescribed by law” under Article 8 of the Convention as the Constitutional Court was irregularly composed: three of its members had been elected in breach of the Constitution, and the appointment of the Court’s President, who presided over the case, was open to challenge. She argued that one of the sitting judges lacked impartiality, having been involved in related proceedings while serving as a member of parliament. The applicant also underlined that the publication of the Constitutional Court ruling created uncertainty, undermining her rights under Article 8 of the Convention (§ 79).
The applicant additionally complained of a violation of Article 3. The Court rejected this complaint as manifestly ill-founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention.
The Court unanimously found a violation of Article 8 of the Convention. The Court awarded 1,495 EUR in respect of pecuniary damage and 15,000 EUR in respect of non-pecuniary damage. However, the request for legal costs had been dismissed, considering that the applicant’s lawyers had provided their services pro bono. Judge Serghides expressed his disagreement with the conclusion to reject the request for legal costs in partly dissenting opinion. He underlined the applicant should be renumerated for the legal costs in line with Pakelli v. Germany doctrine, because the legal costs claimed are real, quantified and would become payable to counsel if the Court exercises its discretion to award them.
Considering the merits (violation of Article 8 of the Convention) two lines of reasoning in the judgment are particularly significant. The first line of reasoning resembles M.L. v. Poland and concerns the conclusion that the interference with the applicant’s rights was not “in accordance with the law” within the meaning of Article 8 because it had not been adopted by “a tribunal established by law.” (§§ 75–77) The Article 8 violation linked to the “tribunal” requirement derives from Xero Flor w Polsce sp. z o.o. v. Poland, which in turn applied the three-step threshold test developed by the Grand Chamber in Guðmundur Andri Ástráðsson v. Iceland. The Court relied on the specific factual circumstances involving judges appointed to the Constitutional Court in breach of procedural requirements stemming from the Convention.
The second line of reasoning underlying the Article 8 violation in this case is what makes the judgment particularly noteworthy, i.e. the limited foreseeability caused by the delayed publication of the Constitutional Court’s ruling of 22 October 2020. The Court held that the interference with the applicant’s rights resulted from a period of considerable uncertainty between the delivery of the Constitutional Court’s judgment on 22 October 2020 and its publication on 27 January 2021. During this time, the domestic legislation formally remained unchanged, yet the judgment could have been published, and thus could have entered into force at any moment. This situation was deemed to interfere with the applicant’s private life.
Moreover, in its substantive assessment, the Court emphasized that the three-month period of uncertainty between 22 October 2020 and 27 January 2021 contributed to the unforeseeability of the applicable legal framework for the applicant in relation to the “in accordance with the law” requirement under Article 8(2) of the Convention. The Court held that the uncertainty created by the delayed publication and, consequently, the delayed entry into force of the Constitutional Court’s judgment undermined legal certainty. This lack of foreseeability, as required under Article 8, stemmed from the broader uncertainty concerning the applicable legal framework.
The ECtHR was confronted with an important argument advanced by the applicant concerning the temporality of constitutional court rulings. The uncertainty created by the entry into force of the Constitutional Court’s ruling is the circumstance, which distinguishes A.R. v. Poland case from M.L. v. Poland case (§ 115). The issue of adoption of operative part at one point in time and the legal arguments 3 months later had been immediately emphasised by scholars, including by A. Rakowska-Trela and A. Juškevičiūtė-Vilienė. Although the case concerns a rather exceptional situation, it nonetheless invites broader reflection on the practice of constitutional courts in postponing the operative effects of their decisions.
The Court’s case-law on the modulation of the temporal effects of national court decisions is more developed in relation to the retroactive application of domestic decisions and retroactive effect of changes in national case-law. In Legrand v. France, for example, the Court found no violation of the Convention following the French Court of Cassation’s reversal of its earlier case-law, which resulted in the applicant’s civil claim being declared inadmissible.
A core element in cases involving temporal modulation is the foreseeability of the legal effects for the parties concerned, which forms part of the qualitative “law” requirement governing any lawful interference with Convention rights. As Popelier et al. note in “The Effects of Judicial Decisions in Time”, national courts generally ‘do not give many guidelines that make it possible to predict in which circumstances a deviation from the general temporal effect will be sustained.’ The scholarship regarding the temporality modulation resembles the general approach of the Court regarding the qualitative “law” requirements, namely, the foreseeability of the national law. It is established in the Court’s case-law that a rule is “foreseeable” if applicants are able to foresee to a degree that is reasonable, considering the circumstances (e.g. Dubská and Krejzová v. the Czech Republic [GC]).
The question that relates the Court’s case law on “foreseeability of the law” to A.R. case subject matter is whether the decision of the Constitutional Court to derogate from the default temporal regime may be viewed as a situation that raises doubts about the foreseeability of a constitutional court ruling, considering that the “law” in this regard is a ruling of constitutional tribunal. In A.R. v. Poland, the Court examined various factors relevant to the foreseeability of the law within the meaning of the “in accordance with the law” requirement under Article 8(2) of the Convention. The Court’s reasoning, however, is equally pertinent to analogous legality requirements found in other Convention provisions. The Court analysed the specific complaint raised by the applicant, namely the uncertainty created by the publication of the operative part of the Constitutional Court’s ruling before the applicant’s scheduled abortion appointment, which made it impossible for her to obtain an abortion on the grounds of foetal abnormalities (§ 115). The applicant’s submissions were supported by a survey conducted by the Helsinki Foundation for Human Rights, which confirmed that the Constitutional Court’s judgment of 22 October 2020 had already affected the availability of legal abortion in Poland prior to its publication in the Journal of Laws (§ 101). These specific circumstances provided the Court with an opportunity to examine how the postponed publication of a constitutional court ruling may affect the rights of individuals under the Convention. Although this was a particular factual situation, it may be argued that the Court’s reasoning is also applicable to more institutionally formalised scenarios in which constitutional courts postpone the publication of their judgments or decide that such rulings will take effect at a later date.
Based on the Court’s analysis, several factors appear to be particularly important in assessing how the temporal aspects of a constitutional tribunal’s decisions may affect Convention rights:
1) The importance of national regulation and institutional practice. The Court acknowledged that the delayed publication of constitutional rulings formed part of established Polish practice – ‘it was expected that the judgment would be published at any time after its delivery’ (§ 118). The importance of the national legal framework should be taken into account, given the variety of possible legal regimes. These range from constitutional courts’ own practices of issuing ‘warning’ rulings without a formal legal basis, as in Italy, to the postponement of the publication of rulings expressly regulated by national law, as in Lithuania. Although in the A.R. case the Court acknowledged the practice of delaying publication, it also underlined how the “unpublished” ruling affected the applicant and other patients in similar situations in Poland by effectively restricting their ability to obtain an abortion (§ 119), thus disregarding the formal legal effect and emphasising the practical context.
2) Potential rights-restricting effects. The Court emphasised the nature of the Constitutional Court’s ruling, which restricted certain pre-existing rights under domestic law – the applicant ‘had been left in a state of ambiguity regarding her right to a legal abortion on the ground of foetal abnormalities’ (§ 119). This suggests that the Court may be more willing to address situations in which the delayed effect of a national court’s ruling concerns a rights-restricting legal framework. This view is indeed reasonable. However, given the nature of constitutional court rulings, which assess the constitutionality of legislation, foreseeability may also be relevant in the opposite scenario. For example, a judgment may broaden rights, but its postponement may prevent individuals from benefiting from that expansion until a future date. In such circumstances, the Court could take into account the unreasonable delay in giving effect to a ruling that removes an unconstitutional restriction, thereby allowing that restriction to remain in force for an unreasonable period of time.
3) Factual circumstances affecting potential interferences with rights. In A.R. v. Poland, the Court found that, following the delivery of the judgment but prior to its publication, some hospitals had already refused to perform abortions in cases of foetal impairment (§ 118). The factual context allows the Court to remain flexible in assessing the temporal modulation of constitutional court rulings in future cases. The fact that hospitals in A.R. circumstances reacted restrictively even before the formal publication of the ruling indicates its public perception and its tangible interference with individual rights. This approach may prove useful in future cases in which the Court is confronted with an unreasonable delay in the implementation of a constitutional court ruling that broadens rights. In such situations, the Court may infer the actual impact on individual rights from the conduct of public institutions and private actors following the ruling but prior to its “official” publication or the moment at which it formally takes effect.
4) Negative individual consequences. The Court established that the ambiguity created by the adoption of an unpublished ruling compelled the applicant to travel abroad to obtain an abortion, which “undoubtedly caused her significant additional stress.” (§ 119) This conclusion was reached in the context of heightened political tensions surrounding abortion restrictions in Poland and the impact of the COVID-19 pandemic. The Court emphasised several non-pecuniary aspects of the applicant’s situation that were relevant to assessing the overall significance of the uncertainty created by the Polish Constitutional Court for her personal life. This conclusion may be important in delineating situations that do not involve such a direct personal impact, thereby allowing the Court to distinguish more serious interferences under the Convention’s ‘core’ rights from comparatively less significant effects on other Convention rights resulting from unforeseeable constitutional court rulings.
The ECtHR had an opportunity to address the modulation of the temporal effects of the Constitutional Court ruling in A.R. v. Poland. Although the case is primarily significant for its assessment of the compatibility of the Polish Constitutional Court’s abortion-related standard-setting with the Convention, the issue of temporality in constitutional adjudication is a feature that warrants additional attention in contemporary constitutional jurisprudence. A.R. may serve as a future reference point for applicants confronted with situations in which constitutional courts issue decisions that directly affect their rights while simultaneously manipulating the temporal effects of those decisions in ways that restrict individuals in an unforeseeable or unreasonable manner.
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