Reception of chilling effect by the Polish Constitutional Tribunal

2021 ◽  
Author(s):  
Piotr Chybalski
Keyword(s):  
Chilling Effect ◽  
Constitutional Tribunal

scholarly journals Evolution or Entropy of the Concept of Chilling Effect? – Polish Perspective

Teisė ◽  
2019 ◽  
Vol 110 ◽  
pp. 168-177
Author(s):  
Katarzyna Kos
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Constitutional Review ◽  
Law System ◽  
Chilling Effect ◽  
European Court ◽  
Constitutional Tribunal ◽  
Constitutional System ◽  
In The Beginning

[full article, abstract in English; abstract in Lithuanian] The concept of chilling effect, formulated in the beginning of the second half of the 20th century by the Supreme Court of the United States of America, has been applicated both in common law and in continental law system. Lately, also the Polish Constitutional Tribunal more often has used it. Despite the U.S. Supreme Court bound the chilling effect with infringement of the freedom of speech, nowadays it seems to be useful to describe also interferences to other human rights. The European Court of Human Rights has developed that kind of interpretation. It has occurred that the notion of chilling effect perfectly describes any interference into right or freedom consisting of deterring of a person from undertaking by he or she an action. The Polish Constitutional Tribunal has drawn the concept of the chilling effect directly from adjudication of the ECHR. But without broad justification it also applicates this notion to constitutional issues connected with provisions concerning the system of government. This process of adaptation of the chilling effect concept provokes questions whether this notion was properly rooted in the Polish constitutional system. The Polish Constitutional Tribunal has not deeply explained how to understand the concept of chilling effect and in what occurrences it may be applied. Without clear statement of the Polish Constitutional Tribunal we can say that the chilling effect concept may not be applied only in the cases concerning rights and freedoms which imply act of deterrence, like prohibition of compelling to participate or not participate in religious practices. Moreover, we can only assume that identifying the chilling effect does not overjudge the result of constitutional review, it is just an argument for unconstitutionality.  

Chilling - effect of humidity on reduction of Campylobacter on pork

2005 ◽  
Author(s):  
Lise Nersting ◽  
Hardy Christensen ◽  
Uffe Borup ◽  
Eli V. Olsen
Keyword(s):  
Chilling Effect

Konstytucyjne zasady postępowania karnego na tle orzecznictwa Polskiego Trybunału Konstytucyjnego

2017 ◽  
pp. 67-86
Author(s):  
Arkadiusz Krajewski
Keyword(s):  
Civil Rights ◽  
Social Factor ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Humanitarian Principle ◽  
The Right ◽  
Social Importance

The Constitutional Tribunal is defined as the Polish constitutional court and at the same time the judicial authority. It was created at the turn of 1982. Not long after that it began its jurisprudence; more precisely it was in 1986. Describing its basic tasks, it is pointed out that judicial review of so-called constitutional law deserves a closer look. This is particularly true about controlling the compliance of lower legal norms with higher legal norms. Here attention is drawn towards the connection of the Constitution with some international agreements, ie. the court of law. The purpose of the paper below was to analyze the constitutional principles of criminal proceedings in the context of the case law of the Polish Constitutional Court. At the beginning the concept, the division and the role of the constitutional rules of criminal procedure were presented. In this section, it was emphasized that all the rules of the criminal process are considered superior norms of a very significant social importance. Then the principle of objectivity, which is reflected in the Constitution of the Republic, was described. A following aspect was the discussion of the principle of the presumption of innocence and the principle of in dubio pro reo. It has been emphasized that the essence of the principle is that the person who was brought before the court is treated as innocent until a lawful judgment is pronounced against the defendant. The author also pointed out the principle of the right to defense. According to this rule, the defendant has the right to defend themselves in the process and to use the help of a defender. Another described principle is so-called rule of publicity. It concerns the fact that information about criminal proceedings should be accessible to the public. Then it was pointed to the principle of the right to the trial and the independence of the judiciary. The first one is reflected in national law and acts of international rank. The second shows that the independence of the judiciary is determined by the proper exercise of the profession of judge and becomes a guarantee of freedom and civil rights. The humanitarian principle and the principle of participation of the social factor in the penal process are shown in the final section. At the end of the paper a summary and conclusions were presented.

scholarly journals The (Very) Political Dissent: Dissenting Opinions and the Polish Constitutional Crisis

2020 ◽  
Vol 21 (8) ◽  
pp. 1586-1605
Author(s):  
Benjamin Bricker
Keyword(s):  
Political Change ◽  
Political Dissent ◽  
Political Messages ◽  
Political Narratives ◽  
Differences Of Opinion ◽  
Constitutional Tribunal ◽  
New Form

AbstractThis Article examines changes in dissent patterns that occurred on the Polish Constitutional Tribunal during a period of intense constitutional and political change in Poland. An analysis of these dissents shows judges only rarely used this opportunity to express the traditional differences of opinion on law or policy. Instead, judges on the Tribunal increasingly used dissents in an altogether new form – as a way to broadcast allegations of legal and procedural violations that occurred within the court’s operation itself. More troublingly, some judges also used their dissents to advance distinctly political narratives and overtly attempt to de-legitimize the court’s announced decisions. Ultimately, these dissents show that constitutional judges may not be immune to participating in the larger social and constitutional battles within society. In fact, these dissent patterns suggest that, in a more fragmented and polarized era of politics, judges can and have made use of the dissent as a way to broadcast distinctly political messages.

State of emergency in Poland: constitutional regulation and “hybrid” nature during the COVID-19 pandemic

2021 ◽  
Vol 30 (4) ◽  
pp. 41-67
Author(s):  
Valentina Chekharina
Keyword(s):  
The State ◽  
Legal Regime ◽  
State Of Emergency ◽  
Hybrid State ◽  
Political Interests ◽  
The World ◽  
Constitutional Tribunal ◽  
Law And Justice ◽  
The Republic ◽  
Emergency Measures

The COVID-19 pandemic became widespread across the world throughout 2020 and 2021 in an emergency that gravely impacted the health and lives of people around the world. States have taken exceptional measures to combat the pandemic, including controversial decisions to introduce emergency regimes, which have been questioned in regards to their compliance with constitutional regulations. The fight against the COVID-19 pandemic requires special measures, however they must remain within the constitutional framework. Consequently, the pandemic and its effect upon the legality of regimes in a state of emergency has captured the attention of legal scholars. The aim of this study is to analyse the constitutional regulation of the state of emergency in the Republic of Poland which was introduced in the country during the COVID-19 pandemic. In Poland, an emergency regime was introduced following an order by the Minister of Health. However the state of emergency (here, natural disaster) as stated by the Constitution was not introduced, although, according to analysts, some state bodies and officials had confirmed that all the necessary conditions for this were met. On 2 March 2020, the so-called Special Law on Coronavirus was adopted, followed by other regulations to fight the pandemic. These analysts stated that the measures introduced by the new acts corresponded to a legal regime containing the constitutional characteristics of a state of emergency, but lacked the appropriate constitutional procedure for their introduction. Presidential elections were held at this time, however legally they cannot be held during a state of emergency, as it indicates the presence of political interests in the choice of the regime. The unconstitutional procedure of the introduction of emergency measures alongside their characteristics of the state of emergency make it possible to consider the epidemic regime introduced in Poland a “hybrid” state of emergency, which is not detailed by the Constitution or legislation. On this basis, the study concludes that reasons behind the unconstitutional response to the COVID-19 pandemic in Poland can be found in both the Constitution, and in the manifestations of the crisis of the constitutional and legal system, which began with the reform of Poland’s Constitutional Tribunal by the ruling Law and Justice party in 2015.

Glosa do Wyroku Trybunału Konstytucyjnego z dnia 14 grudnia 2017 r., sygn. akt K 17/14

2021 ◽  
Vol 1(162) ◽  
pp. 179-191
Author(s):  
Justyna Karaźniewicz
Keyword(s):  
Narrow Scope ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Individual ◽  
The Right ◽  
Laws And Regulations

In the commented judgment, the Constitutional Tribunal stated that the provisions of laws and regulations providing for the right of officers of many services to search a person or carry out a personal inspection are inconsistent with the Constitution of the Republic of Poland. The inappropriate division of regulations between laws and sub-statutory acts, violating the constitutional requirement of specifying the principles and procedure of limiting the rights and freedoms of the individual at the level of a law, was rightly questioned. The Tribunal also referred to the obligation to ensure effective mechanisms of protection of individuals against unjustified interference with their rights through the introduction of effective measures of appeal against undertaken actions. Due to the narrow scope of the Ombudsman’s request initiating proceedings before the Tribunal, the consideration was limited only to certain aspects of searches and personal inspection. However, valuable, albeit fragmentary, references to the essence of these activities and their normative shape, desirable from the constitutional perspective, can be found in the judgement.

“To Maintain the Biological Substance of the Polish Nation” : Reproductive Rights as an Area of Conflict in Poland

2021 ◽  
Vol 10 (2) ◽  
pp. 357-381
Author(s):  
Michael Zok
Keyword(s):  
World War I ◽  
Reproductive Rights ◽  
World War ◽  
Discursive Strategies ◽  
Polish Society ◽  
Constitutional Tribunal ◽  
Biological Substance ◽  
The Law ◽  
Almost All

On October 22, 2020, the long-term dispute about reproductive rights in Polish society had a comeback. The Constitutional Tribunal declared the embryo-pathological indication of abortions guaranteed by the law of 1993 to be unconstitutional. The tribunal’s ruling was met with widespread protests, as it effectively forbade almost all reasons for terminations of pregnancies. While members of the Church’s hierarchy and pro-life activists celebrated, politicians began once again to discuss the law, and different suggestions were made (including a draft law similar to laws in effect in other European countries like Germany, and a law which would allow the termination of a pregnancy if the fetus were likely to die, or a law forbidding them in the case that the fetus had been diagnosed as having down’s syndrome). The debates are hardly new to Polish society and history. On the contrary, they date back to the recreation of the Polish state after World War I. This article concentrates on the developments in the Communist People’s Republic that led to the legislation of 1993, which is commonly referred to as a “compromise.” It focuses on the main actors in this dispute and the policymakers and their arguments. It also contextualizes these discursive strategies in a long-term perspective and highlights continuities and ruptures.

Sign in / Sign up

Export Citation Format

Share Document