Assistance in termination of pregnancy - Article 152 § 2 of the Penal Code. Case study based on the case of Justyna Wydrzyńska

Abstract

This text is devoted to the examination of Article 152 § 2 of the Penal Code. It criminalizes aiding or abetting an abortion, as referred to in Article 152 § 1 of the Penal Code. The consideration here is limited to the issue of aiding and abetting. The case of Justyna Wydrzyńska, convicted (inconclusively, at the time of this writing) in the first instance by the Warsaw-Praga District Court in Warsaw, (ref. no. V K 18/22) under Article 152 § 2 of the Criminal Code at an in camera hearing, is the basis for the reflections. The matter is noteworthy because of the existence of this provision in a legal reality in which there is a systemic violation of the authorities' obligations to respect reproductive rights. These arise from the 1993 law, on family planning, protection of the human fetus and the conditions for permissible termination of pregnancy. Hence, it is legitimate to analyze Article 152 § 2 of the Penal Code in the context of the provisions of that law and considering the evolving relationship between "aiding and abetting" as included in Article 152 § 2 of the Penal Code and the statutory definition of aiding and abetting contained in Article 18 § 3 of the Penal Code. For the question arises, if Article 152 § 2 of the Penal Code refers to the Family Planning Act, does this refer only to the grounds for abortion included therein, or does it also require, as we contend, consideration of the statutory conditions on reproductive rights that the Act sets? We base our view on respect for the purpose-driven legal interpretation and on preamble to the Planning Law. Preamble is not merely a solemn introduction. It's binding the authorities to act in way that secure reproductive rights provided in the 1993 Law.

We claim that in the case cited, the Warsaw-Praga Regional Court, in finding that the elements of Article 152 § 2 of the Criminal Code were fulfilled, did not consider the totality of the circumstances allowing for a different assessment. We point out the facts and cite arguments in favor of concluding that in the established state of facts no crime was committed. That it is reasonable in this case to assume a state of superior necessity or to consider that the circumstances included in Article 1 § 2 and § 3 of the Criminal Code are present. We rely on the case of Justyna Wydrzynska, but our reasoning goes further. Indeed, the case of the prosecution of Justyna Wydrzynska illustrates a situation in which a pattern of law applied in disregard of the conditions under which it operates leads to a flawed interpretation that expands criminalization. This is contrary to the principles of criminal law. The objection expressed in this text to the use of an extensive legal interpretation. It is in line with the current interpretation that eliminates from the  Article 152 § 2 of the Criminal Code the  aiding and abetting in the form of "transferring information. It is " even though this is one of the prerequisites for recognizing in Article 18 § 3 of the Criminal Code that aiding and abetting has occurred. "Transmission of information" thus falls within the statutory concept of aiding and abetting but does not apply to the elements of Article 152 § 2 of the Criminal Code. We prove that, similarly, despite the exhaustion of the statutory elements of the crime of Article 152 § 2 of the Penal Code, when the thing concerns an action aimed at protecting the endangered good, which is the health and life of a woman, despite the exhaustion of the statutory elements of Article 152 § 2 of the Penal Code, the circumstances included in Article 26 § 1 and § 2 of the Penal Code are present and the circumstances referred to in Article 1 § 2 and § 3 for stating absence of crime of the Penal Code are present.