It results from the interpretation of two rights guaranteed by the European Convention on Human Rights – the right for parents to have their children educated in accordance with their religious and other views (Protocol 1, Article 2 of the Convention) and the right to freedom of thought, conscience and religion (Article 9 of the Convention).
Jerzy Stępień claims that the "verdicts of the European Court of Human Rights in Strasbourg are always valid in a particular case and have no universal significance". This thesis is true only up to a point. According to Article 46 of the Convention, the verdicts of the European Court of Human Rights in Strasbourg are valid for the country they concern. The State has to execute such a verdict, which determines the obligation to pay compensation, but also to any possible actions – legislative, executive, changing the judicial and administrative practice – in order to prevent the violations of human rights in the future. A classic example is the execution of the verdict in Kudła v. Poland case through passing an Act introducing a complaint on prolonged court proceedings.
The verdicts of the European Court of Human Rights in Strasbourg do not have the same force as the verdicts of a typical constitutional court – they do not result in immediate abrogation of the state laws. However, they have an indirect legal effect. Every state aware of its international duties has to respect the verdicts of the European Court of Human Rights in Strasbourg.
Executing the verdict in the case Lautsi v. Italy may force the Italian government to make proper changes in the law, but also in the functioning of schools by, for example, assigning classrooms in which religion classes would be held and where a cross could hang.
It is worth reminding that the verdict of the European Court of Human Rights was unanimous, and the judicial composition consisted of the judges who are the intellectual leaders in its current composition (among others, professor Andreas Sajo, who is well known in Poland).
States have a certain degree of freedom when it comes to the choice of means serving the execution of a verdict. The Italian government will not be able to acknowledge the fact that everything falls under the competence of the schools and the changes depend on their autonomous decision. The state bears the international responsibility regardless of the organ which is obliged to introduce changes.
In practice, states always pay the compensations adjudged by the European Court of Human Rights in Strasbourg. It is different when it comes to general execution – regardless of the supervision of the Committee of Ministers of the Council of Europe, there are instances of ignoring the verdicts. For the state it usually means successively losing numerous cases concerning the question adjudicated in the disputed verdict, but also diplomatic responsibility and tarnishing the international image.
The Convention does not provide for the fact that the verdicts of the tribunal are binding for the third countries. Nevertheless, the verdict in a case concerning another country is an important signal as to the way in which the European Court of Human Rights interprets the European Convention on Human Rights. It therefore has a particular significance for the countries which permit similar practices or have similar laws. Thus, if in Poland it is common practice to hang crosses in classrooms, Poland cannot ignore the verdict in the Lautsi v. Italy case. What is more, Poland should adjust its actions to the standards defined by Strasbourg. In other case, there is a risk that Polish citizens will bring similar cases before the European Court of Human Rights in Strasbourg. It is noted by Jerzy Stępień, who claims that "if the European Court of Human Rights returned an analogical verdict against Poland, the effect would be that the state would pay a (considerably small) fine." However, the compensation would not be the only result. The effect would be the same as in the Italian case. Poland would have to eliminate the reasons of human rights’ violation.
Jerzy Stępień suggests, that when it comes to the verdict in the Lautsi v. Italy case "we are dealing with a verdict of the court of first instance", it is not a final decree and the case will be investigated by the Grand Chamber. However, it is an oversimplification. The parties cannot appeal in every case. Important Polish cases (Tysiąc v. Poland, Bączkowski and others v. Poland), regardless of the attempts by the Polish government, have not been brought before the Grand Chamber. In my opinion, the Grand Chamber will not deal with the Lautsi v. Italy case, especially that it is difficult to imagine a different resolution, considering the Convention.
Jerzy Stępień also doubts as to "how seriously the verdicts of the European Court of Human Rights will be treated by nation states. All the countries adopted the European Convention on Human Rights, are supposed to respect it, but will the citizens respect verdicts that are not congruent with their intuitions?". This statement shows a degree of relativism, when it comes to the role of the Convention and the European Court of Human Rights’ legitimization. However, it is a quite dangerous view, especially when declared by the former President of the Constitutional Tribunal. It means that the states may approach their international obligations differently. It is not the case that the verdict of the European Court of Human Rights in Strasbourg should find its way to "the minds of the people, affecting their views and be accepted by them". Who should decide about that? Mass observation? The role of the European Court of Human Rights in Strasbourg (but also the role of the Constitutional Tribunal) is to protect – against the views of the majority – the rights of the minorities, people discriminated against and having no access to the debate and no sufficient influence on the decision process. Through the ratification of the European Convention on Human Rights, states accept this role of the European Court of Human Rights.
*Adam Bodnar, Ph. D., adjunct in the Department of Human Rights at the Faculty of Law and Administration of the University of Warsaw, Secretary of the Board of Helsinki Foundation for Human Rights
