The Relationship Between the European Convention on Human Rights and Domestic Law: a Case Study

Kamil A. Strzępek

doi:10.31078/consrev626

The Relationship Between the European Convention on Human Rights and Domestic Law: a Case Study

Kamil A. Strzępek

Abstract

The article is pertaining to the relationship between the European Convention on Human Rights and the Polish national law. Upon the introduction of the system of economic, social and cultural rights contained in the Constitution of the Republic of Poland of 1997, the article considers what rules determine the relationship between the application of the law by Polish courts and the European Court of Human Rights in Strasbourg. The paper concludes by showing how Polish courts and the European Court of Human Rights in Strasbourg refer to the right of property. It’s one of the fundamental human rights, when they examine a case. It occurs that clauses, which limit this right, are sometimes understood in a different way by Polish courts and the European Court of Human Rights. Regarding the above, the case of Waldemar Nowakowski v. Poland of the European Court of Human Rights in Strasbourg is discussed. Furthermore, the article presents how the Polish Government executes the judgment of the European Court of Human Rights in Strasbourg delivered in the above-mentioned case.

Keywords

Constitutional Court; Doctrine of the Margin of Appreciation; Human Rights; Principle of Subsidiarity; Right to Property

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References

Carozza, Paolo. “Subsidiarity as a Structural Principle of International Human Rights Law.” American Journal of International Law (2003).

Committee of Ministers of the Council of Europe. “Resolution of 14 September 2015.” 2015.

Follesdal, Andreas. “Appreciating the Margin of Appreciation.” In Human RIghts: Moral or Political? edited by Adam Etinson , 269-294. Oxford: Oxford University Press, 2018.

Follesdal, Andreas and Nino Tsereteli. “The Margin of Appreciation in Europe and Beyond.” The International Journal of Human Rights (December 2016).

Garlicki, Lech and Marek Zubik. Konstytucja Rzeczypospolitej Polskiej. Komentarz.

[Constitution of the Republic of Poland. A Commentary]. Warszawa: Wydawnictwo Sejmowe, 2016.

Graziadei, Stefan. “Democracy v Human Rights? The Strasbourg Court and the Challenge of Power Sharing.” European Constitutional Law Review (2016).

Vila, Marisa Iglesias. “Subsidiarity, Margin of Appreciation and International Adjudication within a Cooperative Conception of Human Rights.” International Journal of Constitutional Law 15 (June 2017).

Letsas, Georg. “The Margin of Appreciation Revisited A Response to Follesdal.” In Human Rights: Moral or Political, edited by Adam Etinson. Oxford: Oxford University Press, 2018.

Mjöll Arnardóttir, Oddný. “Rethinking the Two Magins of Appreciation.” European Constitutional Law Review (2016).

Müller, Amrei. “Domestic Authorities’ Obligations to Co-Develop the Rights of the European Convention on Human Rights.” The International Journal of Human Rights (October 2016).

Cassese, Sabino. “Ruling Indirectly. Judicial Subsidiarity in the ECtHR.” A seminar paper at European Court of Human Rights, 2015),10, https://www.echr.coe.int/Documents/Speech_20150130_Seminar_Cassese_ENG.pdf

The Decision No. SK 12/12 (the Constitutional Tribunal of Poland, 29 July 2013): 11.

Tsarapatsanis, Dimitrios. “The Margin of Appreciation as an Underenforcement Doctrine.” In Human Rights Between Law and Politics. The Margin of Appreciation in Post-National Contexts. Modern Studies in European Law, edited by Petr Agha, 71-88.

Von Staden, Andreas. “The Democratic Legitimacy of Judicial review beyond the state: Normative subsidiarity and judicial standards of review.” International Journal of Constitutional Law (2012).

DOI: https://doi.org/10.31078/consrev626