A journalist friend of mine told me about a phone call she made in 2000 in order to ask the deputy minister of justice to make a comment on the judgement of the European Court of Human Rights in Strasbourg in the case “Kudła v. Poland“. His first reaction was doubting whether the judgement is binding for Poland. He did not want to make a statement for the press right away, answer was given only after “internal consultations”. The deputy minister declared that action will be taken to create an institution of complaint against lengthiness of proceedings.
10 years have passed and such a situation would not occur again now. It is clear for the Ministry that the judgements by the European Court of Human Rights in Strasbourg have to be executed. The Ministry of Justice also fulfilled the promise concerning the complaint against lengthiness of proceedings, which has been functioning for 6 years now and since last year it also covers prosecutor’s proceedings. The mentioned judgement shows the effectiveness of Strasbourg system. In serious cases, when comprehensive solutions need to be applied, e.g. concerning the system of compensations for lost property, left on the other side of the Bug river („Broniowski v. Poland”), Poland is doing remarkably well. However, if we consider particular cases of less significance or lower social effect, it does not look so good.
Strasbourg issues over a hundred judgements in Polish cases each year. Only a few of them receive adequate recognition in press. Many judgements are not mentioned even in press released by the European Court of Human Rights. Usually, everything comes down to a simple phrase, such as „Length of pre-trial detention. Violation of Article 5 para. 3” Yet other judgements “live” in the media for just one day, only on the fifth page of the legal supplement to “Rzeczpospolita” (large Polish nationwide daily newspaper). They are likely to be overlooked (or forgotten) by politicians. Some of them are so complicated when it comes to the actual state or legal status that journalists only mention Poland’s defeat. On top of that are judgements which concern ideologically sensitive issues. Theoretically, we do execute them, the Committee of Ministers of the Council of Europe takes note of that, but the real situation in Poland does not change.
The European Court of Human Rights in Strasbourg has become trivialised. Polish authorities got used to the fact that from time to time they need to pay € 5.000 compensation and later justify the state of the execution of the judgement in the international arena. If the large cases are solved well, these less significant cases will somehow be swallowed or overlooked by the Committee of Ministers of the Council of Europe, especially in view of all the other cases from many countries. For the media, another defeat is not an interesting news. The cases are repetitive, they concern similar problems. Who would like to dedicate precious pages of journals to write about prisoner’s problems with the censorship of his correspondence?
The trivialisation of the European Court of Human Rights has its negative effects. Authorities solve only serious system problems. And we should praise them for it. But when it comes to less significant ones, they usually don’t have sufficient patience or determination. Therefore, regardless of the judgement in the case “Czarnowski v. Poland“, the system of passes from prisons has not changed yet. Therefore, no lesson was learned from the case “Rachwalski and Ferenc v. Poland” and the process guarantees of the institution of search was not improved. Therefore, we constantly hear about poor functioning of the system of exemptions from legal expenses.
Trivialisation means lack of interest in individual history, clearly summarised in the judgement. Yet, behind every groundbreaking, as well as every regular case, there is an individual. It is the execution of a judgement that gives a citizen a chance to regain confidence in the state. Unfortunately, many of its bodies, especially judiciary, waste this chance.
Judgements of the European Court of Human Rights concerning violation of the right to fair trial or the right to liberty of a personal have not been so far the subject of profound deliberations of the Ministry of Justice, National Council of the Judiciary of Poland, president of the court or the “authors” of the violation themselves. A typical judgement concerning pre-trial detention consists of a number of pages which oblige the Ministry of Foreign Affairs to pay compensation from a special fund. The Ministry of Justice is not interested in their translation, because it translates only selected judgements and does not find it necessary to translate similar cases. The National Council of the Judiciary of Poland does not ponder the reasons why the courts were at fault in a particular case. The presidents of courts may not be aware of a violation of the Convention, because they do not receive a translated judgement. The judge is kept in blissful ignorance of the fact that someone in the European Court of Human Rights gave a negative opinion about their work. Judgements by the European Court of Human Rights do not affect the assessment of a candidate for a higher judicial post. Explanatory or disciplinary proceedings are not undertaken against judges when evident violations of convention are found. Finally, the National School of the Judiciary and Prosecution Service does not monitor the judicature paying special attention to the violations found and does not properly shape the training needs.
Authorities, courts and other bodies that have influence on judicature should treat every judgement as a lesson on an exemplary subject: “how to teach judges the standards of pre-trial detention or exemption from legal expenses” or “how the court should approach the examination of charges of abuse of power by policemen”. If Poland pays a few thousand Euro for every violation, it should at least treat this money as an investment.
*Adam Bodnar – Secretary of the Board of Helsinki Foundation for Human Rights, adjunct in the Department of Human Rights at the Faculty of Law and Administration of the University of Warsaw
