Institutional mechanism for the implementation of the human right to a fair trial in Poland: conclusions for Ukraine

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PhD student of ORIPA NAPA under the President of Ukraine

Annotation

The article proposes a classification of institutions providing the human right to a fair trial according to the stages of realization of this right. The author reviews the institutional mechanism of ensuring the human right to a fair trial in Poland and outlines its key institutions. In addition, the author presents the special characteristics of the Polish-European integration experience in the field of state building and analyzes the possibility of its application in the process of current state and administrative reforms in Ukraine, in particular, in reforming the sphere of ensuring the human right to a fair trial. The author determines the problems of application of the institutional mechanism in Poland and estimates the possibility of their occurrence in Ukraine.

Key words: human rights to a fair trial, institutional mechanism of public administration; institutional mechanism of implementation of the human right to a fair trial, European integration of Poland.

Анотація

У статті запропоновано класифікацію інституцій забезпечення права людини на справедливий суд відповідно до їх приналежності до етапу реалізації права. Розглянуто інституційний механізм забезпечення права людини на справедливий суд Польщі, виокремлено його ключові інституції. Автором наведено особливості Польського євроінтеграційного досвіду у сфері державотворення та проаналізовано можливість його врахування для сучасних державно-управлінських реформ в Україні, зокрема при реформуванні сфери забезпечення права людини на справедливий суд. Визначено проблеми застосування інституційного механізму у Польщі та оцінено можливість їх виникнення в Україні.

Ключові слова: право людини на справедливий суд, інституційний механізм державного управління, інституційний механізм забезпечення права людини на справедливий суд, євроінтеграція Польщі.

Аннотация

В статье предложена классификация институтов обеспечения права человека на справедливый суд в соответствии с их принадлежностью к этапу реализации права. Рассмотрены институциональный механизм обеспечения права человека на справедливый суд Польши, выделены его ключевые институты. Автором приведены особенности Польского евроинтеграционного опыта в сфере государственного строения и проанализирована возможность его учета для современных государственно-управленческих реформ в Украине, в частности при реформировании сферы обеспечения права человека на справедливый суд. Определены проблемы применения институционального механизма в Польше и оценены возможности их возникновения в Украине.

Ключевые слова: право человека на справедливый суд, институциональный механизм государственного управления, институциональный механизм обеспечения права человека на справедливый суд, евроинтеграция Польши.

Raising the problem. The ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) imposes on Ukraine the obligation to strictly observe the obligations under this international legal instrument. The document requires the state to organize its legal system in such a way as to ensure a real guarantee of the right to a fair trial, to create equal conditions of access to justice.

At the same time, the signing of the The Association Agreement between Ukraine, on one hand, and the European Union, the European Atomic Energy Community and their member states, on the other (“the Association Agreement”) also requires Ukraine to fulfill a number of requirements in the area of justice, freedom and security enshrined in Part III of the Association Agreement [14].

In this light, it is important to analyse foreign experience of organization of the institutional mechanism for the implementation of the human right to a fair trial, which can be used to improve the effectiveness of reforms and simultaneously to minimize possible negative influences.

Analysis of recent research and publications. Issues of ensuring the human right to a fair trial as a prerequisite for effective state-building are researched by both Ukrainian and foreign scholars, in particular: Dzh. Anderson, Y. Habermas, K. Patton, H. Arendt, R. Dal, M. Knodt, P. Princen, R. Grzeszczak, J. Jakubek-Lalik, A. Matczak, E. Tregubov, V.Uvarov, Y. Shemshuchenko, A. Novak, N. Kalashnik, A. Khalot. Many lawyers in Ukraine, including S. Koroyed, I. Kresina, S. Pryluckyi, D. Prytyka, L. Skomorokha, Y. Shemshuchenko and others, are investigating the problems of legal protection of human rights for a fair trial. Some aspects of this problem were considered by such scholars as V. Kravchuk, A. Martsinkevich, L. Letnyanchin, R.Kuibida and others.

The authors cited the mechanism of ensuring human rights only through the study of the organization of individual institutions, or the studies concerned the whole institution of human rights, which included, among other things, the human right to a fair trial, while losing the particularities of the realization of a particular right. At the same time, human rights scholars - lawyers - are investigating the human right to a fair trial mainly through its practical application in the administration of justice.

At the same time, the study of the institutional mechanism of ensuring the human right to justice by the science of public administration was carried out fragmentarily, in particular, through the study of the organization and activities of executive authorities. Thus, a number of institutions, which are the institutional mechanism for ensuring the human right to a fair trial, remain out of scope of the studies. In particular, the systematic analysis of the institutional mechanism for ensuring the human right to justice through the interaction of institutions of various branches of government is not given enough attention by the science of public administration. fair trial integration polish

Unresolved parts of the general problem. Unresolved parts of the general problem that the article deals with is the study of the system of institutions that belong to different branches of government, but participate in secured human rights in a fair trial, as well as an analysis of the European integration experience of Poland, the impact of integration on solving problems of ensuring the human right to a fair trial in Poland and its use for Ukraine.

The objective of the article is to investigate the scientific substantiation of the improvement of activity of the institutions that participate in securing the human rights to a fair trial and their interaction, as well as the theoretical justification for improving the effectiveness of the institutional mechanism for ensuring human rights in Ukraine through the use of Polish experience in carrying out transformation reforms.

Presentation of the main material. Starting a review of the issues of ensuring the human right to a fair trial, we will traditionally define the basic concepts that will be used later in this article.

The first such concept is «human right to a fair trial». Its definition is enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. On July 17, 1997, the Convention was ratified by the Law of Ukraine «On Ratification of the 1950 Convention on the Protection of Human Rights and Fundamental Freedoms, the First Protocol and Protocols 2.4, 7, 11 to the Convention» [11].

Part one of this article states: «Everyone has the right to a fair and public hearing of his case within a reasonable time by an independent and impartial tribunal established by law, which resolves a dispute over his rights and duties of a civil nature, or establishes the validity of any criminal offense against him. A judgment shall be pronounced publicly, but the press and the public may be prevented from being admitted to the courtroom throughout the trial or in part thereof in the interests of morals, public order or national security in a democratic society, if the interests of minors or the protection of the private life of the parties so require, or - to the extent strictly necessary by the court - when, in special circumstances, publicity of the case may harm the interests of justice « (The Convention, art.6) [11].

At first glance, it appears that the above definition implies that the scope of the application of human rights to a fair trial is limited solely to the process of administering justice. However, in the process of application of the Convention, the European Court of Human Rights made a number of decisions regarding the violation of the provisions of the article, which in fact expanded the scope of the application of the article to the time since the appeal for legal aid, before the direct appeal to the court, and until the execution of the judgment [13]. Consequently, in using the notion of «human right to a fair trial» we will continue to adhere to such an expanded interpretation of Article 6 of the Convention.

Another concept that needs to be defined in order to properly understand this article is the «institutional mechanism of public administration». In analyzing existing definitions, it became clear that there was no unified understanding and approach to the definition and content of the concept «institutional mechanism» in the academic circles.

For the purposes of this article, we will use the definition of the «institutional mechanism» proposed by L. L. Pryhodchenko, which also partially reproduces the essence of the notion proposed by North Douglas. «Institutional mechanism» - a set of interrelationships between formal and informal institutions as well as organizations that promote the implementation of the principles of democratic (good, proper) governance, ensure coordination and adjustment of interests of various social groups, coordinate joint activities towards achieving the declared objectives of the regional and state development» [12].

For the purposes of this article, based on the above definition, the «institutional mechanism of ensuring the human right to a fair trial» should be understood as a set of interrelations between formal and informal institutions as well as organizations that promote the realization of the human right to a fair trial, ensure coordination and correction of interests various social groups, coordination of joint activities on the way to achieving the declared goal of ensuring the human right to a fair trial [12].

Also we use definition «European integration of Poland» to refer to the process of Poland's systemic transformation from 1990 to 2004 (membership of the EU), and from 2004 to the present.

Poland is a well-known example of successful system reforms in the ХХ century. Even with the rigorous internal critique of the fact that not all communist past has been overcome, Poland has still managed to make peaceful conversion through negotiation. Currently Poland belongs to a group of democratic states, and can share its experience with other post-Soviet countries currently in transition. Democratic change in Poland would have been impossible without the help of the European Union. During the 1980s and 1990s, a number of mechanisms were used to help democratic transformation in Poland.

Regardless of social and cultural differences, Poland and Ukraine are two nations that previously shared a common form of government. Their entry into the transitional period had the same problems with ensuring the human right to a fair trial. They carried out similar reforms, but the results of such reform in both countries are very different. This difference raises the question of whether it is possible, with the help of social factors, to transform the reform from one society to another.

Of particular importance in the process of reform belongs to the institutional mechanism of such transformations. Therefore, it is important to understand how it needs to be transformed for democratic change in the state.

By improving the mechanism for the implementation of the human right to a fair trial, public officials in Ukraine unjustly associate the solution of this issue only with the judicial power and procedural law, thus transferring the entire burden of responsibility for the exercise of this right on the shoulders of the courts. In order to understand the problem, it is necessary to distinguish between several stages in the realization of the human right to a fair trial, namely: obtaining professional assistance before appealing to the court, the procedure for the administration of justice and enforcement of judgments. It is clear that courts should be responsible only for one stage - the procedure for administering justice, while securing all other stages refers to other institutions, among which the main part is occupied by executive power institutions.

We understand the institutional mechanism of realizing a human right to a fair trial as a system of institutions that interact at different stages of the enforsment of the right.

The institutional mechanism for the implementation of human rights to a fair trial in Poland is presented by the system of the following interacting institutions.

The Constitutional Tribunal (1986) and and the Office of the Ombudsman (1988). They were established by the Soviet authorities to gain confidence in the eyes of external partners, but they did not contribute to the real security of rule of law [2, 35 - 39].

The courts. The judicial system includes: the Supreme Court, general courts, administrative courts, as well as military courts. “An exceptional court or an expedited procedure can only be set for a time of war” - Art. 175 (p.2) of the Constitution [5].

Polish Judicial Council, which deals with the appointment and dismissal of judges.

The Polish Council of Justice. The activity of the Council is regulated by Art. 186-187 of the Constitution [5]. The main function is to supervise the independence of the courts and judges. The Council may appeal to the Constitutional Tribunal on the question of the compliance of the Constitution or legal acts with the principle of the independence of the courts and judges.

State Tribunal. According to the law of March 26, 1982, the State Tribunal makes a decision on the responsibility of persons holding state posts for violating the Constitution and laws. Such posts are: President of the Republic, Chairman of the Council of Ministers, as well as members of the Council of Ministers, Chairman of the National Bank of Poland, Chairman of the Supreme Chamber of Control, members of the Polish Council for Radio and Television, persons whom the Chairman of the Council of Ministers authorized to manage the Ministry and the High Commander of the Armed Forces .[constitution of Poland - Art. 198 [5].

Institutions of Advocacy. In order to strengthen the role of advocacy in ensuring its independence in the performance of professional duties, in expanding and deepening professional self-government, limiting supervision by the state bodies, on May 26, 1982 the Saeima of the Republic adopted The Law on the Advocates' Profession [3]. The law established an independent system of advocacy institutes, which includes: the Polish Congress of Advocates (the highest institution of lawyer's self-government); General Advocate's Council; Highest Disciplinary Court (the highest institution of disciplinary jurisdiction of lawyers); Higher Audit Commission (Intitution, which controls financial and economic activity of General Advocate's Council).

Court Bailiff. A court bailiff is an official who deals with the enforcement of court decisions in civil cases, peace agreements, decisions of courts in criminal cases in the part of property fines. Court bailiff is the representative of the state institution, which guarantees the prosecution of court decisions issued on behalf of the Republic of Poland by public officials. In accordance with the The Court Bailiff and Enforcement Act of. 29 August 1997 the court bailiff is acting in district courts in Poland. Based on Art. 3 of the Bailiffs Act, in his activity, the court bailiff is subordinated to the court and the chairman of the District Court, where he is registered. The head of the district court oversees his activities [9].

A court bailiff in Poland is a free profession, which means that a person acts on his own behalf and under his own responsibility. The activity is carried out through the opening of the office, where the court bailiff works with the staff. The state does not pay wages to the court bailiff and is not responsible for its activities, as well as its working staff.

Institutions of the Prosecutor's Office. The Polish Prosecutor's Office is a law enforcement institution in Poland, which also performs the functions of state prosecution. Structure of the Prosecutor's Office: General Prosecutor; Regional Prosecutor and Deputy of General Prosecutor; other prosecutors; Prosecutors of the Institute of National Memory [6].

Since March 3, 2016, new amendments to the legislation on the prosecutor's office have entered into force. The prosecutor's office and the Ministry of Justice were united, regional prosecutor's offices were established in place of the General Prosecutor's Office, and regional prosecutors were created instead of appeals. The amendments also eliminated the remnants of the military prosecutor's offices [8].

Finding out the ways of transformation of these institutions of Poland is very important for Ukraine in the process of implementing legal reforms, and needs further research.

Professor Gzeszczak shares the process of Poland's transformation in the field of pivotal management in 2 stages: the stage before becoming a member of the EU and the stage after becoming a member. Each of the stages is characterized by its own conditions. The professor makes the thesis: «the more the structure of the political and legal system of a member state differs from that of the EU, the more visible is its transformative power. This explains why the transformative power of the EU varies from one member state to another» (Robert Grzeszczak) [7].

During the study of the European integration process in Poland, scholars point out to certain features that were specific to this country in the transformational process. Below there are statements that summarize the European integration experience of Poland, which we consider necessary for consideration during the implementation of European integration reforms in general, and in the process of improving the institutional mechanism for ensuring the human rights to a fair trial in particular.

- Due to historical preconditions, the Polish people (in fact, like other peoples of this region) are very sensitive to a number of issues, such as national security and sovereignty, relations with neighboring countries, especially in the East, the principle of solidarity, as well as the Charter on Fundamental Rights which is rigorously debated. Every time the issues were raised, the society reacted aggressively, there was an urgent discussion, and, accordingly, the decision-making process became somewhat complicated.

- Poland, unlike other EU member states, has undergone dramatic changes in the governance system, including the creation of the new government agencies. Since the time of joining the EU, such bodies are also guided by EU legislation, with the corresponding consequences.

- Due to the fact that some of the competences were transferred to the EU institutions, the powers of the Senate and the Sejm diminished, but this led to simultaneous increase in the importance of the executive branch, namely, the government.

- “Poland's accession to the EU has led to significant transformations in Polish law. At the same time, it should be emphasized that the right is subject to unprecedented variables, acquires new features and becomes more and more complex. Such a phenomenon is global in nature”. (Bruno de Witte, 2012, p. 19) [10].

- The more complex is the organization of a particular state and its society, the more difficult is the process of integration. This may lead to simple, partial or complete copying of legal and institutional decisions taken by the EU, or, quite often, may lead to encouraging discussions that stimulate their own original legal solutions.

- The EU contributed to stimulation of the legal consciousness in member states, which includes knowledge of law, its assessment, attitude to the law and proposals for its improvement. Since 2004, a new quality of jurisprudence has begun in the Polish legal discourse. It now covers somewhat unusual issues for the Ukrainian legal community, such as moral and legal views, legal culture, prestige rights, as well as thoughts on what the law should be. Also in Poland, against the backdrop of legal discourse of a new quality, there is a process of approximation of existing laws to EU standards and principles, as well as the adoption of new laws. The process is still ongoing. This concerns the creation, application, and interpretation of the law and aims primarily at harmonizing Polish legislation with the EU law.Poland tends to perceive European politics and the EU itself as a foreign affair, and not internal. The EU's activities are internal affairs of the Member States. That is why the candidate country needs to reorganize its ministries' activities in EU matters, which can lead to numerous legal problems. Actually, we are witnessing similar trends in Ukraine during the reform of the ministries, including the Ministry of Justice.

- Real transformation of the executive branch. The separation of powers into three branches in the EU system has a modified character. The EU has a hybrid management system and is based not on a tripartite system, but on the principle of institutional balance and equilibrium.

- “The European transformation of the legislative, executive and judicial power in Poland cannot be analysed solely in terms of their quantity as this would lead to overly simplified conclusions. Each member state should be addressed individually with regard to the specific circumstances of its EU membership. The process of unification does not keep pace with the advancing integration of various, frequently divergent, phenomena within the EU. From this follow the structural problems, differences in the pursuit of many policies as well as divergent perspectives and interests” (Knodt and Princen, 2005S 22) [4].

The reforming of the institutional mechanism for ensuring the human rights to a fair trial in Poland is still in process. The judicial power is quire resistant to internal transformations. The 2017 summer events clearly demonstrated this, when several judicial reforms had generated protests within the Poland. The reforms, if implemented, would give the minister of justice and MPs broad powers to select, appoint and dismiss Supreme Court judges as well as judges in lower courts.

It shows that people's trust in courts is still low in Poland. “The post- 1989 changes in the judicial system brought recognition of human rights, but also less punitive sentencing policies than under socialism. The exceptionally lengthy court proceedings may still derive from the sudden and significant increase in the volume of court cases post-1989. Some Polish scholars have pointed out that the low trust in courts/prosecution might indicate widespread expectations of harsh sentencing and, by extension, speak to the punitiveness of society at large. Others have argued that the difference between views on the police and criminal justice system lies in how these agencies have handled their public image”(Anna Matczak)[1].

Conclusions

The conclusions of this research might be useful in the process of reforming of the institutional mechanism for ensuring the human right to a fair trial. Among them there are the following:

- The emergence of problems in the process of implementation of European integration reforms in Ukraine is a normal phenomenon that was typical to all the countries that made this way. The greater the difference between the present and the desired reality while carrying out reforms - the greater the opposition of both society and institutions that are subject to change.

- Approaching the EU standards and principles in the process of European integration will lead to a significant change in legislation, it will acquire new features and become more complex.

- The process of European integration contributes to the promotion of legal consciousness in society, the formation of law as a value for society.

- National security and sovereignty issues, relations with neighboring countries, especially in the East, and the principle of solidarity are potentially debatable for Ukrainian society.

- Further integration with the EU will increase the role of the executive power.

- An active position in the representation and advocacy of Ukraine's own interests may lead to original legal decisions.

- Ukraine tends to perceive the process of European integration as a foreign matter, not internal.

The experience of the European integration reforms in Poland, in particular the improvement of the institutional mechanism for ensuring the human right to a fair trial, is of great importance at this time for Ukraine and requires the further investigation

References

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