Can Europe Make It?

Polish parliament - guarding human rights?

The decision by the Polish parliament to set up a subcommittee for the implementation of European Court of Human Rights judgments is a positive step for both the country and for Europe.

Adam Bodnar Dominika Bychawska-Siniarska
3 March 2014
sejm.jpg

The Polish parliament, also know as the Sejm. Wikipedia/Piotr VaGla Waglowski. Public domain.

In February 2014, the joint Commission of Justice and Human Rights together with the Foreign Affairs Commission of the lower chamber of the Polish Parliament (Sejm,) decided to create a permanent sub-commission for the execution of judgments of the European Court of Human Rights (ECHR). This decision was a response to numerous appeals from the Parliamentary Assembly of the Council of Europe and non-governmental organizations.

The European system for the protection of human rights can only function properly if the member states of the Council of Europe effectively execute the decisions of the Strasbourg Court. It is the consequence of the subsidiarity principle, which defines relations between the European Court of Human Rights and member states. According to the recommendations given by the Parliamentary Assembly of the Council of Europe in November 2011, one of the guarantees for the execution of the ECHR judgments is parliamentary supervision of the government’s activities in this regard. Such a system exists in other countries, such as the United Kingdom, the Netherlands or Romania.

During the past two years, the Sejm Commission of Justice and Human Rights and the Senate’s Commission of Human Rights, Rule of Law and Petitions convened four times to discuss issues surrounding the execution of ECHR’s judgments. As a result of these meetings, MPs started to reflect on the way the system should be structured in the long run. The appointment of the permanent sub-commission is a step towards making the process stable and regular. The sub-commission, composed of 11 MPs, will meet regularly to control the government’s actions towards the execution of judgments, such as proposals to amend laws, change governmental practices and oversee the dissemination of judgments. They will also analyse the government’s annual report on the matter.

There are several arguments in favour of such a sub-commission. Firstly, it should be natural to discuss human rights and their limitations imposed by the public interest in the parliament. The parliament constitutes, in a democratic state, the best forum for such discussions.

Secondly, the permanent sub-commission can effectively monitor legal and practical problems emerging from the ECHR’s decisions. Sometimes these issues can result from the nature of the system, such as long trials and problems with mass surveillance practiced by secret services. Sometimes they can be less deeply rooted and result from practices – such as the practice of conducting searches and the abuse of force by the police. The nature of the problems depends on the specific character of the particular ECHR judgment and the issues that it sought to address.

Thirdly, parliamentary control increases the transparency of the government’s proposals for the execution of judgments. The MPs thus appear in a double role, since some of them are also dealing with this issue at the European level as the members of Polish delegation to the Parliamentary Assembly of the Council of Europe. The sub-commissions' meetings can serve to analyse the specific problems resulting from the ECHR’s decisions and to thus increase the sensitivity to these issues. Finally, the parliamentary involvement increases the legitimacy of the Strasbourg Court itself, which is crucial since the ECHR has vital influence on the shape of legal standards in each of the Council of Europe’s member states. 

Needless to say, the mere appointment of the sub-commission is not sufficient. It has to work and meet regularly and its members have to show initiative and involvement. There is a chance that the operation of the permanent subcommission may change the perception of human rights by MPs. Looking at the example of the Joint Committee on Human Rights in the British Parliament, one may notice that it deals not only with execution of specific ECHR judgments, but also with the review of governmental practices and the drafting of laws in compliance with ECHR rulings, such as the Human Rights Act 1998. Such work is not yet performed systematically by existing parliamentary committees dealing with human rights in the Polish Parliament. Maybe the specialization of a permanent subcommission in the ECHR’s jurisprudence will pave the way for a broader approach to the implementation of the ECHR’s rulings. 

In recent years the Polish Parliament has largely succeeded in implementing the decisions of the Constitutional Court. For years, numerous Constitutional Court judgments were not executed and there were significant loopholes in the legal system. But coordinated efforts resulted in positive developments. The higher chamber of Parliament – the Senate - started to prepare draft laws aiming to implement judgments of the Constitutional Court.

With respect to the execution of the ECHR judgments, the situation is much more difficult, since they usually require more complex solutions than just a change in legal regulations. Therefore, the permanent subcommission could be one of the most important instruments in supervising the government's activities.  In the long term, and given the political appreciation of the importance of human rights protection, it can lead to a decrease in violations of ECHR rulings.

The example of Poland may be a strategic suggestion for NGOs operating in other member states of the Council of Europe. It seems that the problem of non-execution of the ECHR judgments is experienced by many states. At the same time, members of national parliaments show limited interest in this issue, despite political calls by the Parliamentary Assembly.

In our opinion, domestic NGOs should not only concentrate on calling for execution of specific ECtHR judgments by the government, but also on pushing for a long-term institutional reforms, such as establishment of effective parliamentary supervision. We are certain that in a few member states of the Council of Europe - showing adherence to the cause of human rights, but still suffering due to violations – the creation of similar parliamentary structures might be achievable.

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