The impact of the decisions of the Court of Human Rights on legislation and the judicial decisions of the Supreme court in civil cases
Prof. Tadeusz Ereciński, PhD
President of the Supreme Courtof the Republic of Poland
In my speech, I have the honour to present a few remarks on the impact of the decisions of the Strasbourg Court on legislation and on the judicial decisions of the Supreme Court in civil cases. It is a fundamental issue, andit is difficult to overestimate its importance in the reality of the contemporary world. The empowerment of an individual from the international point of view, equipping him with a powerful weapon – the catalogue of inherent rights that are vested in everybody to the same degree and can be invoked by everybody [in their actions] against the state – all this completely changes the status of people subordinate to the authority of the state and the picture of the legal systems of European states.
Referring to the views of one of the leading representatives of the Polish science of law, Ewa Łętowska, I would like to point out that the Polish legal system has become multicentric. There are multiple centres of creating and applying law, whereas the normative orders, i.e. the domestic order and the convention-based order, have a certain “co-management area”. However, the system of the protection of human rights by the ECHR does not determine the domestic legal solutions explicitly. Remedies applied as a result of the Court’s judgement remain under state administration and require prudent co-operation between the following authorities: the legislative, the executive and the judiciary (E.Łętowska, Multicentryczność współczesnego systemu prawa i jej konsekwencje, Państwo iPrawo 2005/4, p. 6-7). In its judicial decisions, the Supreme Court has been stressing the judiciary’s obligation to adhere to the Convention for a long time (decision of the Supreme Court of 24 October 2007, I PZ 21/07, OSNP 2008/23-24, item 351). Therefore, the courts are primarily obliged to: 1) take the standard of the protection of fundamental rights shaped by the ECHR and invoked by the parties into consideration; 2) take the Court’s judicial decisions into account in the process of interpreting and applying the provisions of law with an aim to implement the judgements of that authority, and 3) ensure that the judgements of the ECHR are effective within the framework determined by the applicable rules of procedure.
From the general point of view, one can talk about a peculiar constitutionalisation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, in comparison with the requirement of Article 13 of the ECHR that the rights set forth by the Convention should be “real and effective”, it is still difficult to reach the required result.
1. An example of a major impact of the Strasbourg judicial decisions on the judicature and legislation is undoubtedly the settlement of the question of ensuring an effective remedy by the state at the national levelunder Article 13 of the Convention in respect of the violation of the right to a hearing by a tribunal, which is guaranteed by Article 6 Section 1 sentence 1 of the Convention. Here I would like to remind you that only two years ago, in terms of the number of violations of the latter right, Poland was among the dishonourable leaders being the contracting parties to the Convention. Allegations of the violation of Article 6 Section 1 provided grounds for 60 per cent of complaints lodged with the Court against Poland.
It was stressed many times in the Strasbourg judicial decisions that the mere existence of a particular remedy to protect the rights of individuals such as a complaint to the ECHR does not provide sufficient guarantee of the observance of the provisions of the Convention. This point was best presented and justified in Case No. 30210/96 Kudła v. Poland determined by the judgement of 26 October 2000. It concerned detention on remand of the applicant, which was maintained due to lengthy judicial proceedings. While accepting the complaint, the Court pointed out to the fact that the Polish legal system lacked the relevant legal institution to ascertain the violation of the right to obtain the decision within a reasonable time. It was also stressed that the states being the contracting parties to the Convention were obliged to secure remedies thanks to which individuals would be able to obtain aid at the national level without the necessity of appealing to the Court. The individual’s right to have the case adjudicated within a reasonable time will be less effective if it is not possible to lodge claims under the Convention at first with national authorities. The norm of Article 13 should be perceived rather as one that supports the norm of Article 6 of the Convention. The remedy, as the Court says, must be: “effective in practice as well as in law”. It is aimed at ensuring that there will be a mechanism of control and prevention of lengthy trials conducted by national authorities.
This argumentation became a model for the next decisions of the ECHR in similar cases, among others those against Poland (see e.g. judgements of the Court in the following cases: 13557/02 D.M. v. Poland, 15479/02 Jarzyński v. Poland), which finally led to the adoption of the law on a complaint about the violation of the party’s right to have the case tried in judicial proceedings without unjustified delay, dated 17 June 2004 (Journal of Laws No. 179, item 1843, as amended). It introduced a special remedy into the Polish system, which in short is referred to as a “complaint aboutthe lengthiness [of proceedings]”. It is triedwithin the same judicial proceedings. As a rule, the competent court is the one superior to the court before which the proceedings are taking place (Article 4 Section 1 of the law), whereas as regards the lengthiness of the proceedings before the appeal court and the Supreme Court, the competent court is the Supreme Court. It was decided that the time limit for issuing a decision concerning the complaint would be two months from its submission (Article 11).
By recognising the complaint as justified, the court may hold that the party’s right guaranteed by Article 6 Section 1 of the Convention and Article 45 Section 1 of the Constitution of the Republic of Poland has been violated. Additionally, the relevant amount of money from the State Treasury is awarded (in the original wording of the law: could be awarded) on the applicant’s demand. The amount is currently limited to PLN 20,000,i.e. less than EUR 5,000. This raised doubts as to whether the award of the relevant amount of money within the proceedings concerning the complaintexhausts the claims for indemnity from the State Treasury that the applicant might be entitled to as compensation for property loss or personal injury. Despite the fact that said amount also plays the role of compensation (resolution of the Supreme Court of 6 January 2006, III SPP 154/05, OSNPUSiSP 2006 No. 21-22, item 342), in its decision of 27 June 2008, III CZP 25/08 (OSNC 2009 No. 9, item 127) the Supreme Court stipulated that the partythat incurs damage as a result of lengthy judicial proceedings may – irrespective of the institution of a complaint – claim compensation for any property loss and personal injury in civil proceedings. While adjudicating compensation for personal injury, the common court should ensure that the interpretation of the relevant provisions of domestic law, i.e. Article 445 and 448 of the Polish Civil Code, conforms to the judicial decisions of the ECHR concerning fair compensation. This worked as an encouragement to relax, to a certain extent, the restrictions imposed by the Polish Civil Code with regard to claims for indemnity so as tolimit the scope of cases in which, due to the lack of the appropriate possibility of obtaining pecuniary indemnity for the consequences of the duration of the proceedings, the persons concerned would be forced to lodge a claim with the Court.
2.The thread of compensation as the necessary consequence of violatingthe rights guaranteed by the Convention appeared also in recent resolutions concerning the state’s liability for damages in respect ofoverpopulated penal institutions. It resulted from the existence of a provision of the Executive Penal Code, which, until the moment of being questioned by the Constitutional Court, in special situations permitted the lowering of the standard concerning space per prisoner. The resolution adopted by a bench of 7 justices of the Supreme Court on 18 October 2011, III CZP 25/11 (not published so far) settled the judicial decisions’ contentious issue by stating that placing a person deprived of liberty in a cell in which the surface area per prisoner is less than 3 square metres may be a sufficient prerequisite for ascertaining the violation of his or her personal interests, whereas the liability of the State Treasury under Article 448 of the Civil Code for damage caused by such violation does not depend on the fault. In the justification of its reply to the juridical question, the Supreme Court invoked among others Article 3 of the European Convention and the established line of the [Strasbourg] Court’s judicial decisions concerning prerequisites for the assessment of the inhuman treatment of prisoners. Significant importance was assigned in particular to two cases against Poland, i.e. the judgement of the ECHR of 22 October 2009 concerning complaints No.: 17885/04, Orchowski v.PolandandNo. 17599/05, Sikorskiv.Poland. Following the [Strasbourg] Court, the Supreme Courtraised the issue that in examining whether treatment is “degrading” within the meaning of Article 3 of the Convention, one should take into account its consequences, i.e. whether it had a negative impact on the prisoner’s personalityin the manner that cannot be reconciled with the provision of the Convention. That decision of the Supreme Court to some extent makes it easier to claim compensation, which is obviously important from the point of view of ascertaining the existence of an effective remedy. However, it does not provide a systemic solution to the sources of such violation, which result from the lack of an appropriate standard and number of prisons in Poland and perhaps also from the excessive repressiveness of the Polish penal law and the penal policy of the state.
3.Another example of a serious and discernible impact of the decisions of the Court of Human Rights on the Polish system of civil law normsis undoubtedly the issue of satisfying the claims of those Polish citizens who left their property within the former Soviet Union as a result of changing the Polish borders. By concluding a number of international agreements with Soviet republics (so-called republican agreements)at the end of WW2, the then Polish authorities undertook to assume an obligation to compensate such people for this. The relevant legal solutions after 1989 turned out to be defective. There was no provision for compensating the eligible for their loss in kind or in cash, but it was only admissible to reduce the price of purchase of the real property from the State Treasury by way of accounting the value of the lost property towards the purchase price. The compensation was limited to a certain amount, whereas the lack of the sufficient number of state-owned real properties and the deprivation of the eligible of any preferences in tenders as well as the lengthiness of administrative procedures resulted in only a small number of people obtaining any satisfaction. The Supreme Court heldon these grounds at least several times that the prerequisites for the State Treasury’s liability for damages had been met (among others, in the judgement of 21 November 2003, I CK 323/02, OSNC 2004 No. 6, item 90, as well as of 30 June 2004, IV CK 491/03, not published officially).
This state of affairs was changed not only thanks to the decisions of the Polish Constitutional Court, but also as a result of the pilot judgement of the ECHR of 22 June 2004, CaseNo. 31443/96 Broniowski v.Poland, where the system of compensation for property, which was regarded as a particular proprietary right, was criticised. An interesting thread of the decision is the determining of the ratione temporis competence of the Strasbourg Court, which is based on the assumption that the existing dysfunctional mechanisms of compensation for the loss of property by the residents of the former eastern territories of Poland are the source of the continuous violation of the rights guaranteed under Article 1 of Protocol No. 1 to the Convention. Poland was obliged to ensure the proper execution of the right to property for all the persons entitled to obtain the equivalent for the property left beyond the Bug River.
The Polish legislator fulfilled this obligation by adopting the law on the execution of the right to compensation for a real property left beyond the present borders of the Republic of Poland, dated 8 July 2005 (Journal of Laws No. 169, item 1418, as amended), which replaced the existing right of accounting the value of the lost property towards the purchase pricewith a new institution: compensation. The latter consists in the possibility of offsetting the loss of property in various forms including the payment in cash made from the special Compensation Fund. Performances are granted in an administrative procedure, which, according to the current position presented in the judicial decisions of the Supreme Court, has eliminated the possibility of claiming rights by eligible persons in civil proceedings (see especially the judgement of the Supreme Court of 12 March 2008, I CSK 430/07, OSNC 2009 No. 5, item 75). It seems that in this way the problem of claims by Polish citizens in respect of their property left within the former Soviet Union was finally solved in a satisfactory way.
4.In another pilot judgement of theECHR of 22 February 2005, Case No. 35014/97 Hutten-Czapska v.Poland, the Court held that the right to property guaranteed by Article 1 Section 1 of Protocol No. 1 to the Convention was violated by restricting the right to collect a rent from the tenants. In the Court’s opinion, the violation results from the legislative scheme: domestic law makes it impossible for the landlords to obtain the rent that is reasonably proportionate to the maintenance cost of their real properties. Poland was obligated to secure the reasonable level of rent paid to the applicant and other persons who were in the same situation or to provide a mechanism to mitigate the consequences of state control over rent increases. This decision was upheld by the Grand Chamber of the Court in its judgement of 19 June 2006. Since the matter was finally settled amicably, on 28 April 2008 the Court ordered that the case be removed from the docket, however it indicated that the situation still did not conform to the Convention. A question arises whether that remark is still up to date, since over the last five years the Polish provisions on shaping the rent in respect of the lease of residential units have not undergone any major changes. In the doctrine there is a disparity of opinions as regards the need for proceeding with the execution of this judgement (compare J. Jaskiernia, Wpływ orzecznictwa Europejskiego Trybunału Praw Człowieka na ustawodawstwo w państwach członkowskich Rady Europy ze szczególnym uwzględnieniem Polski, in: A. Wróbel (ed.), op. cit., p. 359; A. Bodnar, Skuteczność Europejskiej Konwencji Praw Człowieka w Polsce,in: T. Giaro (ed.), Skuteczność prawa. Materiały konferencyjne, Warsaw 2010, p. 207).
5.Even more serious doubts as regards the need for the legislator’s appropriate reaction are raised due to the fact that (except the penal procedure – Article 540 Section 3 of the Code of Penal Procedure) in Poland there is no general institution of reopening the proceedings as a result of the judgement of the [Strasbourg] Court ascertaining the violation of the Convention. A discussion on this issue was recently provoked by the resolution adopted by a bench of 7 judges on 30 November 2010, III CZP 16/10 (OSNC 2011 No. 4, item 38). The Supreme Court determined in it that the final judgement of the European Court of Human Rights ascertaining the violation of the right to a fair hearing of the case guaranteed by Article 6 Section 1 of the Convention did not provide grounds for reopening civil proceedings.
This pointcaused mainly criticism expressed in scholarly publications. The Supreme Court was primarily accused of negating the evolution of the Strasbourg judicial decisions and of assigning importance to the distinction between civil and penal nature of the case without being authorised to do so. It seems that this criticism is not fully justified. The meaning of the notion of “reopening the proceedings” in the judicial decisions of the [Strasbourg] Court isdefinitely broad, and it is understood as a certain general result that should be possible to achieve using any remedies. However, the decision of the Supreme Court concerned a strictly defined remedy that is known in the Polish civil procedure, namely a petition for the resumption of proceedings, and in principle only one ofthe enumerated grounds for it. The indicated impossibility of invoking the non-existent grounds for a petition (i.e. the ascertained violation of the right to a hearing before a court) does not mean that as a result of the ECHR’s judgement that is positive for the applicant the proceedings cannot be reopened on other grounds, in particular due to depriving the applicant of the possibility of defending his or her rights, if such circumstance is determined by the [Strasbourg] Court. If the applicable rules of procedure make it possible to ensure the effectiveness of the decisions of the ECHRthanks to proper interpretation, the Supreme Court prefers the interpretation that will enable Polish courts to perform their duties as the authorities of the state bound by the Convention. For example, in the decision of the Supreme Court of 24 October 2007, I PZ 21/07 (OSNP of 2008, No. 23-24, item 351), in the case resulting from the judgement of the ECHR of 27 June 2006 onTabor v. Polandit was determined that“the decision of the European Court of Human Rights ascertaining that the Polish judiciary violated the party’s right to a fair trial may provide grounds for the reinstatement of the time limit to lodge a cassation appeal”.
The criticism of the resolution also ignores the fact that the Supreme Court, just like other courts, is bound by law. The interpretation of that provision does not make it possible to add the grounds for reopening the proceedings, which, in some authors’ opinion, are missing, to the code’s content. This falls exclusively within the legislator’s competence. Recently the Senate of the Republic of Poland put forward a legislative initiative to add Article 4012to the Code of Civil Procedure that would permit the reopening of the proceedings, even if they are formally closed (with a decision), if such need arises from the resolutions of an international authority acting under an international agreement ratified by the Republic of Poland (draft in the parliamentary print of the Senate of the 8th term No. 62 of 17 February 2012).