European Convention on Human Rights and its impact on the Polish legal system 2200-1CWPA86
European Convention on Human Rights – general introduction
- general introduction to the European Convention on Human Rights
- Convention and additional protocols
- entry into force of the Protocol No. 14 and its consequences
- Strasbourg machinery – litigation of cases and outcomes
Types of judgments of the ECtHR and their legal value
- chamber judgments and the Grand Chamber judgments
- significance of decisions on inadmissibility
- Article 46 of the Convention and its interpretation and application
- consequences of judgments in the domestic legal system
- malfunctioning of the Strasbourg system
Enforcement of judgments – supervisory role of the Committee of Ministers
- why enforcement is important?
- role of the Committee of Ministers in enforcement of judgments
- practical operation of the execution of judgments
- member state failing to implement a judgment – what happens next?
- methods implemented by the Committee of Ministers to supervise enforcement of judgments
- role of domestic institutions and NGOs in pushing on proper implementation
Position of international treaties in the Polish legal system
- position of international treaties under the Polish Constitution
- position of the European Convention on Human Rights and its judgments
- relationship between the Convention and other sources of law
- direct applicability of the Convention
- Convention and EU Treaties in a polycentric system of law
European Convention on Human Rights and the EU
- accession of the EU to the European Convention on Human Rights under the Lisbon Treaty and Protocol No. 14
- system operation under the accession
- reference by the ECJ to ECtHR standards
- control by the ECtHR of activities of EU institutions
Polish mechanisms of enforcement of judgments of the ECHR
- Polish institutions dealing with enforcement of judgments
- role of the Government Agent
- cooperation of the Government Agent with ministries
- role of the Ombudsman and NGOs
Direct consequences of the ECHR judgments for applicants
- payment of compensation for non-pecuniary and pecuniary damage
- methods of calculation of damages for the applicant
- application of individual measures towards the applicant
- restitutio in integrum
Re-opening of proceedings and re-examination of the case following ECHR judgments
- re-opening of criminal proceedings and quasi-criminal proceedings
- re-opening of administrative proceedings (new amendments)
- conflicting judgments of the Supreme Court concerning re-opening of civil proceedings
- refusal to re-open proceedings – liability of the State Treasury?
- comparative practice
The European Court of Human Rights and the impact on interpretation of the Polish Constitution
- dialogue between the Constitutional Court and the ECtHR
- reference by the Constitutional Court to Strasbourg standards
- constitutional complaint vs. application to the ECtHR (question of domestic remedies)
Pilot judgments and quasi-pilot judgments and their impact on Polish law
- pilot judgments and their importance
- quasi-pilot judgments
- Broniowski saga as a first example of applicability of pilot judgments
- future of pilot judgments
Repairing structural problems by the ECtHR. Improvement of domestic remedies
- structural problems in the Polish justice system (overcrowding in prisons, pre-trial detention, length of proceedings)
- impact of the ECtHR on resolution of systemic problems
- development of new domestic remedies (complaint on length of proceedings)
Enforcment of the ECtHR judgments in domestic legislation and by executive authorities
- implementation of judgments by way of amending (or passing) legislation
- implementation of judgments by changing administrative practice or way of legal interpretation
- enforcement of judgments in controversial cases (abortion, gay prides)
- enforcement of judgments by soft mechanisms (trainings, dissemination, raising awareness)
Impact of third-country ECtHR judgments on Polish law
- impact of judgments issued with respect to third countries on Poland
- legal value of third country judgments (in view of Article 46 of the Convention)
- is there a need to enforce third-country judgment?
- debate surrounding the case of Lautsi v. Italy (over-reaction, symbol of the ECtHR strength or pure instrumental use of the judgment by politicians?)
Type of course
Prerequisites (description)
Learning outcomes
After the course students will:
- understand how the international system of human rights' protection operates in the domestic context,
- understand the operation in practice of the European Convention on Human Rights and consequences of judgments of the European Court of Human Rights,
- know landmark ECHR judgments concerning Poland,
- understand operation of pilot and quasi pilot judgments,
- be better skilled to use professional legal language in speaking and writing,
- have a skill how to effectively read long ECHR judgments and prepare brief summaries of them.
Assessment criteria
There are three basic requirements with respect to the course:
1. Attendance. It is possible not to be present only twice. List will be checked.
2. Preparation of max. 2 pages long comment to the selected judgment of the ECHR (issued with respect to the state of origin of a given student) from the point of view of its enforcement by domestic authorities (and supervision by the Committee of Ministers).
3. Passing a final exam (20 questions - multiple-choice test).
Grade:
Grade will be calculated as follows:
− active participation in seminars - 30%
− comment to the case – 30%
− final exam - 40%
Materials:
It is mandatory to read all materials assigned for a given seminar.
Practical placement
None.
Bibliography
Vincenzo Storace, Modifications provided by the Protocol no. 14 concerning proceedings before the ECHR, [in] The Law and Practice of International Courts and Tribunals, vol. 5 (2006), 183–192
Mark Janis, Richard Kay, Anthony Bradley, European Human Rights Law. Text and Materials, Oxford University Press, 2008, pp. 829-853
Steven Greer, What’s Wrong with the European Convention on Human Rights?, Human Rights Quarterly, 30 (2008), pp. 680–702
Andrew Drzemczewski, Monitoring by the Committee of Ministers of the Council of Europe: A Useful 'Human Rights' Mechanism?, [in] I. Ziemiele (ed.) Baltic Yearbook of International Law, vol. 2 (2002), pp. 83-103
Adam Bodnar, The Right to an Effective Remedy in a Polycentric System of Law, German Law Journal, No. 11/2005, pp. 1617 - 1622
Zdzisław Kędzia, Relationship between the ECHR and the Charter of Fundamental Rights after the EU's Accession to the Convention, [in] Jan Barcz (ed.) Fundamental Rights Protection in the EU, C.H. Beck, Warsaw 2009, pp. 224-248
Loukis G. Loucaides, Reparation for Violations of Human Rights under the European Convention, European Human Rights Law Review, 2008, pp. 182-192
Christopher McCrudden, A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights, Oxford Journal of Legal Studies, vol. 20 (2000), pp. 499-532
Wojciech Sadurski, Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments, Human Rights Law Review 9 (2009), p. 397-453
Marinella Marmo, The Execution of Judgments of the European Court of Human Rights – A Political Battle, Maastricht Journal of European and International Law, vol. 15 (2008), pp. 235-258
Additional information
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