The European Convention on Human Rights – vivid and powerful legal instrument?

December 10, 2020

Marzena Świstak

The Convention for the Protection of Human Rights and Fundamental Freedoms, customarily referred to as the European Convention on Human Rights, was opened for signature on 4 November 1950. Therefore, this year there is a special moment to underline the significant role of that international regulation. In adopting the text of the Convention, the Member States of the Council of Europe expressed a common heritage of political ideals and traditions, respect for freedom and the rule of law, but also the respect for the rights expressed in the Convention. The proper understanding and application of the Convention by States Parties was to be ensured by the European Court of Human Rights (established in 1959). The Republic of Poland signed the Convention on 26 November 1993 and ratified it on 19 January 1993. From 1 may 1993, it also recognized the jurisdiction of the European Court of Human Rights.

By acceding to the Convention, each country confirms the will to ensure, in real terms, the fundamental rights and freedoms expressed in it. The aforementioned are considered as the foundation of justice and peace in Europe. The European Convention on Human Rights has become the most important Treaty in the Council of Europe acquis (now there are 47 States as parties to that regulation). The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe.

The European Convention on Human Rights is a unique human rights protection system at European and global level based on an individual complaint mechanism to the European Court of Human Rights And to supervise the implementation of its decisions by the Committee of Ministers of the Council of Europe. It is often the last or even the only instance of appeal for people whose rights have been restricted or even breached. The governments of individual States Parties to the Convention have the duty (and even the right) to appoint candidates for the judiciary among the highest moral level and recognized uncontested legal qualifications. They shall also ensure that the national legal system is functioning in a manner that respects the values and principles of the Convention. An individual complaint to the Court should be considered as a last resort. What is more, if it has been already submitted and, as a consequence, resulted in a judgment, the State is obliged to implement it immediately and fully.

From the perspective of almost thirty years, there is no doubt that participation in the European Convention on Human Rights has affected (and still affects) a fundamental change also in the Polish legal order. This led e.g. to eliminate institutions and practices that are incompatible with the values of the Convention. It was also an impetus for national legislators to introduce solutions resulting from the authoritative interpretation of the Convention (e.g. the provisions on zabazan claims) and fundamentally influenced the Polish courts and tribunals’ judicial trend. Between 1993 and 2015, the European Convention was a crucial, international signpost of the right direction for the evolution of the regime of the Republic of Poland toward a model of the rule of law.

Under the Article 9 of the Polish Constitution, Polish public authorities are bound by judgments of courts or decisions of other international or supranational bodies. In practice, this problem is primarily a matter for the rulings of the European Court of Human Rights. Although such judgments do not directly bind the authorities and they do not directly shape the legal situation of persons, for example, they do not cause the repeal of acts of national law which have infringed human rights. However, the statements in the European Court of Human Rights rulings indicating violations of the Convention mean that the national authorities acted unlawfully. These authorities may not contest the decision of the European Court of Human Rights that the infringement existed.  The judgment requires the State to take action to restore legal compliance. However, in situations where international law standards are directly applied, this application should take into account the importance (interpretation) of the international bodies legal analysis. The consequences of the statement of an infringement of personal rights create certain obligations between the victim and the country which committed the infringement. It is understood that the issuing of a judgment declaring an infringement of the Convention constitutes a „right of redress”. Furthermore, the State should take all necessary steps to eliminate the effects of the infringement has been found and restore the situation. Nevertheless it should be posed that the mere fact of finding an infringement of the Convention does not create an obligation to take precise action. Member States have the freedom to choose the way to redress the judgment, which cannot be taken over by the European Court of Human Rights. It is not possible to order any State to amend its internal legislation. The Convention does not, however, impose any obligation to resume legal proceedings which have become final. Otherwise, it would entail a significant reduction of a feeling of legal certainty. The need to prevent further infringements, must not involve modification of a specific resolution already issued, but may consist the impetus to undertake specific steps to avoid similar, wrong actions in the future. The inability to resume legal proceedings should not be understood as the ignorance by a State Party to the Convention.

The significance of the Convention is not to be underestimated. It is not only the voice of history. The most influential framework of rights that should be protected is under the regulation of the Convention. Just name the Article 6 that provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the „reasonable time” requirement, in civil and criminal proceedings before national courts. Another significant set of violations concerns the „confrontation clause” of Article 6 (e.g. the right to examine witnesses or have them examined).

Nevertheless, there are many protection areas, that may be mentioned also as crucial and actual at the moment. It is enough to mention academic freedom requirement that should be guaranteed in the democratic society. Though academic freedom is not explicitly provided for in the European Convention on Human Rights, the European Court of Human Rights has brought issues regarding academic freedom within the ambit of the Convention. It tends to do so under Article 10, which guarantees freedom of expression. What is more, even in the Polish legal system recently there have been undertaken legislative measured within the area mentioned. The statutory draft of “package of academic freedom” should be mentioned. The aforementioned shows that the Convention’s regulations are constantly vivid in the legal area. It is not a “distant regulation”, but a fundamental framework that may be used as a flexible instrument of human rights’ protection.