scholarly journals O konstytucyjnym pojęciu godności osobowej

2019 ◽  
Vol 16 (2) ◽  
pp. 43-62
Author(s):  
Anna Frankiewicz-Bodynek
Keyword(s):  
Human Dignity ◽  
General Rule ◽  
Legal Rights ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Western Civilisation ◽  
Concrete Control ◽  
Independent Model

The content of this publication is a presentation of the meaning of the formula which refers to human dignity. The understanding of this idea should always remain in accordance with the legislative and judicial acquis of countries of western civilisation sphere. Based on judicature and source literature, respective attributes of human dignity, which Article 30 of the Constitution of the Republic of Poland refers to, have been explained. A change of the attitudes of constitutional lawyers’ community and the Constitutional Tribunal has been highlighted, with the possibility of referring to the content of this article as an independent model of constitutionality of law under an abstract and concrete control. Initially, human dignity was considered as a general rule and not legal rights.

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.

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.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

Glosa do Wyroku Trybunału Konstytucyjnego z dnia 16 maja 2018 r., sygn. akt SK 18/17

2021 ◽  
Vol 4(165) ◽  
pp. 147-158
Author(s):  
Agnieszka Kawałko
Keyword(s):  
Family Relationship ◽  
Time Limit ◽  
Biological Origin ◽  
The Right To Know ◽  
Civil Status ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Moment ◽  
The Right ◽  
Age Of Majority

The commented ruling of the Constitutional Tribunal concerns the constitutionality of the provision of Article 70(1) of the Family and Guardianship Code, which provided that the time limit for a child to bring an action to deny the paternity of his or her mother’s husband is three years and runs from the moment the child reaches the age of majority, regardless of the child’s know-ledge of his or her biological origin, i.e. regardless of whether the child within that time limit acquired knowledge that he or she did not come from his or her mother’s husband and whether the child could decide to bring an action. The expiry of the three-year period resulted in the expiry of the child’s right to claim the denial of paternity of the mother’s husband and, consequently, precluded the possibility of a positive determination of the paternity of a man other than the mother’s husband. The Constitutional Tribunal found this provision to be inconsistent with Article 30 in conjunction with Article 47 in conjunction with Article 31(3) of the Constitution of the Republic of Poland. The author agrees with the position expressed by the Constitutional Tribunal in the judgment in question, which in this case provides a basis for consideration of the relationship between the right to know one’s biological origin and the value of stabilising the civil status of a child and persons remaining in an established family relationship with him or her.

Public debt limit of the EU Member States and its impact on polish legal system – considerations in the context of public finance stability

2020 ◽  
Vol 18 (1) ◽  
pp. 239-255
Author(s):  
Wojciech Bożek
Keyword(s):  
Public Debt ◽  
Comparative Method ◽  
Reference Value ◽  
Case Law ◽  
Point Of View ◽  
Fiscal Rules ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

The author’s goal is to determine the consequences of implementing treaty solutions concerning public debt to the Polish Constitution and to define the differences between the methodology of counting public debt in the European Community and Polish legal order. The raised issues concern important problems from the substantive and practical point of view, therefore the study’s content is important for science and practice. The research methodology was based on the analysis of the EU and Poland’s normative solutions, opinions expressed in the international and national literature on the subject, and the case law of the Polish Constitutional Tribunal. The paper applies mostly the dogmatic-analytic and legal-comparative method with reference to available statistical data on Poland’s public debt. The study allowed the author to gain an understanding of the significance of fiscal rules implemented at the EU level to ensure stability. Article 216(5) of the Constitution of the Republic of Poland indicates that the treaty solutions regarding the reference value (public debt-to-GDP ratio) were reenacted. However, until this day, the EU and Poland’s debt measurement methods do not fully correspond. In order to counteract excessive debt incursion, a state is required to take not only efficient actions but also ones that are adequate and, to some extent, flexible. This is an expression of acceptance of the EU’s preventive assumptions. However, there is still no full correlation in the methodology of calculating public debt in the EU and the Republic of Poland.

Dismantling Checks and Balances (II): Judges and Prosecutors

2019 ◽  
pp. 96-131
Author(s):  
Wojciech Sadurski
Keyword(s):  
Judicial System ◽  
National Council ◽  
Public Prosecution ◽  
Checks And Balances ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Common ◽  
Law And Justice ◽  
The Republic ◽  
The Government

After transforming the Constitutional Tribunal (CT) into an active ally of the government, the Law and Justice (Prawo i Sprawiedliwość (PiS)) party in Poland embarked upon the comprehensive subjection of the entire judicial system to the executive, and in particular to the president of the Republic and the minister of justice/prosecutor general (MJ/PG). This chapter discusses how, for this purpose, the National Council of Judiciary (Krajowa Rada Sądownictwa (KRS)) was packed with the party faithful thanks to a changed system for selecting members of the KRS (they are now directly elected by Parliament, rather than by judges). It also deals with how the effect of the new law on the Supreme Court was a brand new court composition with a pro-PiS majority: this was created by combining early retirement for incumbent judges and increasing the number of seats on the Court. The chief justice’s constitutionally guaranteed term of office has been extinguished. It also looks at another statute, on the common courts, that has strengthened the power of the MJ to control court presidents, and hold judges accountable for their verdicts through a new disciplinary procedure. Finally, the chapter looks at how the prosecutorial system (prokuratura) was merged with that of the MJ, with the MJ becoming the ex officio PG, producing a deeply politicized system of public prosecution.

Features of Modern Lithuanian Society’s Legal Identity Development: from Closed to Holed Society

2018 ◽  
Vol 26 (26) ◽  
pp. 62-99
Author(s):  
Vytautas Šlapkauskas
Keyword(s):  
Identity Development ◽  
Rule Of Law ◽  
Free Market ◽  
Soviet Society ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Short Period ◽  
Legal Identity ◽  
The Republic ◽  
Western Civilisation

During the last three decades, few essential transformations of Lithuanian society took place – from a closed (according to the terminology of H. Bergman and K. Popper) soviet society during a short period of open society functioning it evolved into a holed (according to P. Aleksandravičius) society. The Republic of Lithuania becoming the rule of law and creation of liberal democracy was a favourable context of the transformations mentioned. These transformations were ensured not only by establishment of free market economy but also by corresponding legislation and implementation of legal norms. The article analyses inter-directional methodological possibilities to reveal a legal identity of Lithuanian society. Creation of such possibilities is based on three ideas of Western civilisation: 1. The idea of compliance with the rules of common or social (now – public) behaviour. 2. The idea of legitimate powers of sovereign to create common (social or public) behaviour rules and to organize and control their implementation. It evolved into the idea of the rule of law. 3. The idea of natural rights and freedom. It evolved into the protection of human rights and freedom. Based on these ideas and analysis of peculiarities of the process of the Republic of Lithuania becoming the rule of law, there are justified five stages of Lithuanian society’s legal identity development.

Praeceptor Germaniae

2019 ◽  
Keyword(s):  
Thomas Mann ◽  
German Culture ◽  
Form Of Government ◽  
The Republic ◽  
Western Civilisation ◽  
Post War ◽  
Political Thinker ◽  
Divided Germany

Understanding acumen and politics plus German culture and Western civilisation as diametrically opposed is a German disease which Thomas Mann also succumbed to. Initially, Mann did not regard democracy as an appropriate form of government for Germans as they were not able to love politics: he was therefore just one apolitical individual among many. Eventually, Thomas Mann liberated himself from this prejudiced approach to politics and the apolitical, and came to terms with democracy. From then on, he countered radicalism’s propensity to use violence with republican reason, which led to him being treated with hostility, persecuted and forced into exile. Politics, which was originally alien to him, swept its way into his life and forced him to adopt a standpoint on it, without him ever having become a political person or even a political thinker at heart. His comments on politics did not leave West and East Germans unaffected, especially as the idea of a cultural nation, through which acumen suddenly legitimised politics, was one of the few things which held the seemingly irreconcilably divided nations together. In post-war Germany, Thomas Mann increasingly became a ‘Praeceptor Germaniae’ (one of the country’s most eminent teachers). In this book, prominent experts clearly depict his gravitation towards the republic, his road into exile, his fight against Hitler and his influence on a divided Germany. With contributions by Manfred Görtemaker, Philipp Gut, Helmut Koopmann, Horst Möller, Heinrich Oberreuter, Julia Schöll, Hans-Rudolf Vaget, Georg Wenzel, Ruprecht Wimmer and Hans Wisskirchen.

scholarly journals The Dialogue between the Supreme Administrative Court and the Constitutional Tribunal in the Preliminary Reference Procedure

Teisė ◽  
2020 ◽  
Vol 117 ◽  
pp. 126-137
Author(s):  
Anna Chmielarz-Grochal
Keyword(s):  
Reference Procedure ◽  
Constitutional Tribunal ◽  
Administrative Courts ◽  
The Republic ◽  
Prior Application ◽  
The Right

The purpose of the article is to analyze how the Supreme Administrative Court implements the right of this court to apply to the Constitutional Tribunal, enshrined in the Constitution of the Republic of Poland, with a request to examine the constitutionality of the legal act applicable in a particular case. The emergence of this investigation is marked by a noticeable decrease in the number of requests submitted by administrative courts to investigate the constitutionality of a legal act, which encourages the investigation of the causes of this phenomenon. The prior application of the court for the constitutionality of a legal act encourages the analysis of a specific cooperation dialogue between the requesting court and the Constitutional Tribunal.

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