Mechanisms for the promotion
and protection of human rights
Human Rights Protection Systems SSP II, winter semester 2018/2019
Right to have a case heard
within a reasonable time
Right to an effective remedy
Case study:
Kudła v. Poland
Right to court
Article 45 of the Polish Constitution
1. Everyone shall have the right to a fair and public
hearing of his case, without undue delay, before
a competent, impartial and independent court.
Means for the defence of freedoms and rights
Article 77 of the Polish Constitution
1. Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.
2. Statutes shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights.
Article 78 of the Polish Constitution
Constitutional complaint
Article 79 of the Polish Constitution
1. In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been
infringed, shall have the right to appeal to the Constitutional
Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.
The right to file a constitutional complaint is vested in everyone whose constitutional freedoms or rights have been violated.
Subject of the complaint: only a normative act (statute,
regulation, etc.). The Constitutional Tribunal refuses to examine constitutional complaints directed solely at a specific court or administrative authority decision. In the constitutional complaint, only the legal regulation that was the basis for such a ruling can be challenged.
Detailed regulations: Act of 30 November 2016 on organization
Formal requirements
exhaustion of the legal path: the complainant has already used
all available judicial and administrative proceedings or remedies
term: 3 months from the date of delivery to the complainant of
a final judgment, final decision or other final settlement (this does not include the procedure for appointing an advocate or a legal counsel ex officio to prepare a constitutional complaint)
obligatory assistance by an advocate or legal counsel:
a constitutional complaint can only be prepared by an advocate or a legal counsel (exceptions: judge, prosecutor, notary, professor or habilitated doctor in law on his/her own); the complainant has the right to ask the court to appoint an advocate or legal advisor for him/her ex officio
Right to apply to
the Commissioner for Citizens' Rights
(the Ombudsman)
Article 80 of the Polish Constitution
Article 208 of the Polish Constitution
1. The Commissioner for Citizens' Rights shall safeguard
the freedoms and rights of persons and citizens
specified in the Constitution and other normative acts.
2. The scope and mode of work of the Commissioner for
Citizens' Rights shall be specified by statute.
Article 209 of the Polish Constitution
1. The Commissioner for Citizens' Rights shall be
appointed by the Sejm, with the consent of the
Senate, for a period of 5 years.
2. The Commissioner for Citizens' Rights shall not hold
any other post, except for a professorship in an institute
of higher education, nor perform any other professional
activities.
Activities of the Commissioner for Citizens' Rights
examines whether, as a result of action or omission of public authorities, organizations or institutions obliged to observe and implement human and civil freedoms and rights, there has been violation of the law, as well as the principles of social coexistence and social justice
works on the basis of applications (the application is free of charge and does not require a special form) or ex officio
requests to the Constitutional Tribunal to declare the non-compliance of normative acts with higher-level regulations or the Constitution; may take part in proceedings before the Court initiated as a result of a constitutional complaint
cassation appeals against final judgments of lower courts to the Supreme Court; may join the proceedings before common courts
cassation appeals to the Supreme Administrative Court, complaints to provincial administrative courts; may join the proceedings before administrative courts
Right to submit petitions, proposals and complaints
Article 63 of the Polish Constitution
Individual application to the European Court
of Human Rights (hereinafter: „ECtHR” or „Court”)
The Court may examine applications from individuals, groups
of persons and international organizations (so-called individual
applications) and States Parties to the Convention (so-called
inter-states applications) regarding allegations of violation of
ARTICLE 34 of the ECHR
Individual applications
ARTICLE 35 of the ECHR Admissibility criteria
1. The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the
generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2. The Court shall not deal with any application submitted under Article 34 that:
a) is anonymous; or
b) is substantially the same as a matter that has already been
examined by the Court or has already been submitted to
3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or
b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
Enforcement of ECtHR judgments by a State Party
individual measures – payment to the applicant of appropriate
amounts to be awarded for pecuniary and/or non-pecuniary damage, as well as removal of the violation
general measures – permanent removal of the causes of
LITERATURE Essentials:
- Moeckli D., Shah S., Sivakumaran S., Harris D., International Human Rights Law, Oxford 2014
Extra:
- Bhuiyan J.H., Chowdhury A.R, An introduction to international human rights law, Leiden, Boston, 2010 - Conde V. H., A Handbook of International Human Rights Terminology, Second Edition (Human Rights
in International Perspective), 2010
- Hannum H., Guide To International Human Rights Practice, 2004
- Jabłoński M., Jarosz-Żukowska S., Prawa człowieka i systemy ich ochrony. Zarys wykładu, Wrocław 2010 - Joseph S., Mcbeth A., Research Handbook on International Human Rights Law (Research Handbooks
on International Law), 2010
- Lewis James R., The Human Rights Encyclopedia, 1999
- Lyons G. M., International Human Rights in the 21st Century: Protecting the Rights of Groups, 2004
- Martin F.F., . Schnably S. J., Simon J., Stephen J., Tushnet M., Wilson R., International Human Rights and
Humanitarian Law: Treaties, Cases, and Analysis, 2006
- Merris A., Human rights law, 2006
- Provost R., International Human Rights and Humanitarian Law, 2002
