structures for domestic implementation - - example … · structures for domestic implementation -...

STRUCTURES FOR DOMESTIC IMPLEMENTATION -- EXAMPLE OF POLAND AND HUNGARY

Dr Adam BodnarHelsinki Foundation for Human Rights

London, Interights / OSJI Conference27 June 2011

poniedziałek, 27 czerwca 2011

Report on domestic enforcement

Ernst & Young - Program „Good Governance”

Joint report with Prof. Renata Uitz (CEU - Budapest)

Efficient enforcement of the ECtHR judgments largely depends on the effective domestic structure for implementation

principle of subsidiarity („soft law” documents, Interlaken and Izmir declarations)

How state organs really work in terms of the ECtHR enforcement?

Which state organs should be responsible for the ECtHR enforcement?

How to coordinate efforts?


Coordination of the ECtHR enforcement

Government Agent - low position in the structure of the government, subordination to the MoFA, weak political power, regulated only by the ordinance of the Ministry of Foreign Affairs

ECtHR enforcement - almost not discussed at the Council of Ministers’ level (reports are not subject of discussion and are only circulated)

No practice of parliamentary supervision over the ECtHR enforcement

Good cooperation with certain ministers (e.g. Ministry of Justice, Ministry of Infrastructure). Lack of proper support for implementation by other ministers (e.g. Ministry of Interior, Ministry of National Education, Ministry of Health)

Government Agent vs. self-governmental units and independent government agencies (e.g. Institution of National Remembrance)


Implementation of individual measures

regular payment of compensations under the ECtHR judgments and settlements

specific individual measures (e.g. transfer from a prison to hospital) - implemented in individual cases without significant problems

lack of possibility to re-open civil proceedings (legislative change needed)

no case-law on compensation of the State Treasury for damages (relevant in case of lack of re-opening of civil proceedings after finding violation of right to court)

problems with re-examination of the case by prosecution service - in case of procedural violation of Articles 2 or 3 of the Convention (e.g. Wasilewska and Kałucka v. Poland)


Legislative enforcement - general measures

In Poland and Hungary - majority of judgments were implemented (incl. pilot and quasi-pilot judgments - e.g. Broniowski v. Poland, Hutten-Czapska v. Poland)

Sometimes implementation is of poor quality (access to therapeutic abortion) or is unduly prolonged

Res interpretata effect - almost no discussion how to implement judgments concerning third states (exception - Salduz v. Turkey)

Legislative works and the communication of a case - earlier start of implementation?

Human rights’ scrutiny in legislative process - lack of specialized units in government or in parliament responsible for scrutinizing human rights compliance of proposed legislation


Executive enforcement - problems

Fragmentation and decentralization of administration vs. ECtHR judgments concerning different areas of life

Unequal standards re: dissemination of judgments, methods, preparation of digests, information on leading judgments concerning other states

MoJ - good example of proper structure for dissemination; but such practices are missinig in other governmental units

Inclusion of the ECtHR judgments into professional trainings - not corresponding with real needs

Disciplinary responsibility - short periods of statute of limitations (e.g. policemen responsible for brutality are unpunished)


Judicial enforcement

reference to the ECtHR case-law - no special problems at the level of highest courts, including constitutional courts (only problems with misinterpretation)

insufficient knowledge of the ECtHR case-law at the level of common courts (e.g. pre-trial detention cases); Hungary - until 2007 strong reluctance whether the ECtHR may be referred at the domestic level at all

lack of skills to make axiologocial interpretation of domestic laws (with the use of the ECtHR standards and case-law) - e.g. principle of proportionality

training for judges and candidate for judges on the ECtHR - only specific issues

role of the National Council of Judiciary - discussion on recommendations for courts (should MoJ be responsible for dissemination of specific ECtHR judgments to individual courts found responsible for violation of the Convention?)


General awareness

no governmental programs supporting promotion of the ECtHR standards

ombudsman institutions - missed chance for raising awareness (only dealing with specific issues)

lack of specific support to NGOs dealing with the ECtHR promotion

activities of human rights NGOs do not correspond with needs

closing Warsaw and Budapest information offices of the Council of Europe

ECtHR standards are taught at law faculties only as specialization courses

growing literature on the Convention (e.g. commentary to the ECHR edited by Lech Garlicki, published by CH Beck)


THANK YOU FOR YOUR ATTENTION


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