Dominika Bychawska-Siniarska, Board Member of the Helsinki Foundation for Human Rights and Member of the EIN Steering Committee
The European system for the protection of human rights can only function properly if the member states of the Council of Europe (CoE) effectively execute the decisions of the European Court of Human Rights (ECtHR). This is a consequence of the subsidiarity principle, which defines relations between the Strasbourg Court and member states. According to the recommendations issued by the CoE Parliamentary Assembly in November 2011, one of the guarantees for the execution of the ECtHR judgments is parliamentary supervision of the government’s activities in this regard. Such a system exists in other countries, including the United Kingdom, The Netherlands, and Romania.
For a brief while, Poland joined this group of states when, 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), created a permanent sub-commission for the execution of judgments of the ECtHR. The appointment of the permanent sub-commission was a step towards making the domestic implementation process more stable and regular, and was the outcome of multiple convenings between the Sejm’s Commission of Justice and Human Rights and the Senate’s Commission of Human Rights, Rule of Law and Petitions. The sub-commission, composed of 11 MPs, was established 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 were also analyzing the government’s annual report on the matter.
Unfortunately, this initiative now appears to have been a flash in the pan. Since its establishment, the sub-committee met a few times, concentrating on the election of its President, but without really starting substantive discussion about implementation problems. The lack of strong institutionalization of the sub-commission resulted in the refusal of the current Parliament (elected in October 2015) to restore it. The current Government and the Parliament ignore all international obligations and outside pressure. It disregards the opinions of the Venice Commission and the Rule of Law Procedure opened by the European Commission.
In January 2016 the Ministry of Foreign Affairs addressed the Sejm seeking to re-introduce the sub-commission, an appeal that was repeated by the Helsinki Foundation for Human Rights in February and by the Polish Ombudsman in March. None of these institutions received a reply; the sub-commission has not been established. As a result, Poland has lost the opportunity to be one of the European leaders in the execution of ECtHR judgments.
There are several arguments in favor of such a sub-commission. Firstly, it should be natural to discuss human rights 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 ECtHR judgments. Sometimes these issues result from the nature of the Polish judicial system, such as lengthy 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 illegal searches and the abuse of force by the police.
Thirdly, parliamentary control increases the transparency of the government’s proposals for the execution of judgments. The sub-commission's meetings could have served to analyze specific problems resulting from the ECtHR’s judgments and to thus increase public awareness on such issues. Finally, the parliamentary involvement increases the legitimacy of the Strasbourg Court itself, which is crucial since the ECtHR has vital influence on the shape of legal standards in each of the Council’s member states.
Needless to say, the mere appointment of the sub-commission was never going to be sufficient: it has to work and meet regularly, and its members have to show initiative and involvement. Taking 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 ECtHR judgments, but also with the review of governmental practices and the drafting of laws in compliance with ECtHR rulings, such as the Human Rights Act 1998. However, such work is not performed systematically by existing parliamentary committees dealing with human rights in the Polish Parliament.
In recent years the Polish Parliament has largely succeeded in implementing decisions of the Constitutional Court. For years, numerous Constitutional Court decisions remained unexecuted and there were significant loopholes in the legal system. Coordinated efforts however resulted in positive developments. The higher chamber of the Parliament – the Senate - started to prepare draft laws aiming to implement decisions of the Constitutional Court. With respect to the execution of the ECtHR judgments, the situation is more difficult, since they usually require complex measures. Therefore, the permanent sub-committee could be an important instrument to supervise the Government's activities.
Unfortunately, the failure of the Sejm Spokesman to respond to calls for reintroducing the sub-committee should be interpreted as lacking political will to take implementation seriously. Furthermore, the readiness of politicians to discuss the eventual establishment of a supervisory body in the Parliament is very weak. For now, the future of the parliamentary engagement in the implementation process in Poland remains uncertain, and all the achievements of the previous parliament have gone in vain.