scholarly journals State security and individual security as exemplified by operational surveillance used by the Polish counter-intelligence service

2021 ◽  
pp. 5-23
Author(s):  
Remigiusz Rosicki
Keyword(s):  
Personal Information ◽  
Research Problem ◽  
Individual Rights ◽  
Constitutional Interpretation ◽  
Functional Interpretation ◽  
Internal Security ◽  
Legal Norms ◽  
Democratic State ◽  
The Right ◽  
Intelligence Service

The material scope of the research problem presented in the text encompasses the issues concerned with operational surveillance that the Polish civilian counter-intelligence service, i.e. the Internal Security Agency (in Polish abbreviated as ABW – Agencja Bezpieczeństwa Wewnętrznego), is authorised to. The main purpose of the analysis is to assess the changes introduced as a result of the passing of the so-called Surveillance Act in 2016. The Act was supposed to introduce new regulations with regard to the powers concerning operational surveillance and obtaining of ICT data, granted to particular secret and police services. The said changes were enforced by the judgment of the Constitutional Tribunal, which in 2014 found numerous violations of the provisions of the Constitutions of the Republic of Poland caused by the existing regulations authorising the services to engage in particular operational and investigative actions. In order to elaborate the material scope of the research problem, and to present the conclusions, the following research questions have been presented in the text: Do the legal regulations concerning the powers vested in the Polish civilian counter-intelligence service within operational surveillance infringe individual rights and freedoms (e.g. the right to privacy, protection of personal information, privacy of correspondence), and if so, then to what extent? Functional and pro-constitutional interpretations have been applied to assess the provisions regulating the powers of the Internal Security Agency with regard to operational surveillance and obtaining of ICT data. The functional interpretation focuses on the function of selected legal solutions, whereas the pro-constitutional interpretation focuses on the assessment of legal solutions in the context of the principles of a democratic state ruled by law, as well as human rights and freedoms. As regards the pro-constitutional interpretation, the tool used for assessment is the test of proportionality, i.e. the rule used for interpreting legal norms according to the degree and legitimacy of the interference in individual rights and freedoms.

scholarly journals Social and Legal Issues of Corporal Punishment of Children

2018 ◽  
pp. 93-104
Author(s):  
Kristina Grinevičiūtė ◽  
Iveta Vitkutė - Zvezdinienė
Keyword(s):  
Human Rights ◽  
Corporal Punishment ◽  
Research Problem ◽  
European Convention ◽  
Training Methods ◽  
Child Rights ◽  
Democratic State ◽  
Charter Member ◽  
The Family ◽  
The Right

Research problem. A democratic state is guided by the rule of law and the principles of the human rights and freedoms. Ratifying the European Convention on Human Rights and The European Social Charter or Revised European Social Charter, Member States undertake to respect all people of their jurisdiction rights, including all children. The child is not the family or the state property. Child is a citizen from birth, so it is necessary to look seriously into each such member public offense. When we talk about the criminal cruelty, especially in serious case of child rights violation (murder, sexual assault, and so on), everyone unanimity agree, that no one member of the society cannot tolerate such child abuse. But society begins to split into different camps – from the positive approach into the sentence, to the punishment classification into violence-category - when the discussion is tilting about the child's upbringing without violence. This tendency is due to several reasons. First is that a deliberate arm lift against a child is the belief that slapping "educated" child will become better. Second, parenting is the natural values, or in other words, the right of parents to educate their children in their own training methods. The aim of this article is to provide legal assessment of corporal punishment of children for educational purposes. In order to achieve this aim will be analyse the position of legislator of corporal punishment of children for educational purposes; by analyse proposals and ideas regarding delimitation of corporal punishment, to single out the theories of corporal punishment of children for educational purposes in criminal law jurisprudence.

scholarly journals Mental Health and Legal Review of Several Related Issues

Law and World ◽  
2021 ◽  
Vol 7 (4) ◽  
pp. 166-183
Keyword(s):  
Mental Health ◽  
Health Services ◽  
Research Problem ◽  
Legal Framework ◽  
Legal Norms ◽  
The Public ◽  
Legal Context ◽  
Additional Funding ◽  
Psychosocial Need ◽  
The Right

The research problem of this article will address the specific issues related to mental health in a legal context. The aim of the research is to outline established practices and show us the situation in this regard. To achieve this goal, legal norms are reviewed, both internationally and domestically. Also, cases from court and reports of the Public Defender of Georgia. Research has shown that protecting the right to health is problematic. In particular, mental health services are less accessible and comprehensive. Although the legal framework imposes certain requirements, in practice there are breaches that lead to human rights violations. In particular, the current research revealed violations of the right to life and health. As well as facts of torture and inhuman treatment, both nationally and internationally. This article concludes by suggesting ways to address the problem, such as accessing additional funding for health services, with more controlled monitoring that will tightly control the enforcement of legal requirements. Based on the principle of the welfare state, the state should provide services that do not put people in a psychosocial need in a worse position. Finally, it should be noted that as a result of the research, specific issues related to mental health were identified, which were reviewed in a legal context. The practices that exist in the international and national levels were highlighted.

scholarly journals Truth Revelation Procedures as a Rights-based Alternative to the Politics of (Non-)Memory

2020 ◽  
pp. 51-66
Author(s):  
Emilia Kowalewska
Keyword(s):  
Transitional Justice ◽  
Research Problem ◽  
Fundamental Rights ◽  
Justice Theory ◽  
Politics Of Memory ◽  
Authoritative Knowledge ◽  
Legal Norms ◽  
The Past ◽  
The Social ◽  
The Right

This article offers a socio-legal reflection on the relation between law, state obligation, and attempts to institutionalize collective memory. As the question of memory institutionalization becomes most pertinent in the context of regime change that imposes on an incumbent government certain expectations for addressing the past, the article considers this research problem from the perspective of transitional justice theory. The transitional justice paradigm allows for an interdisciplinary consideration of the topic. Special attention is paid to legal norms and mechanisms directed towards establishing authoritative knowledge about the past. The emerging principle of the right to truth is presented as an integrating and rights-based perspective from which to approach societal demands for acknowledging injustices of the past. Measured against the fundamental rights that lie at the heart of transitional justice theory, three types of truth revelation procedures are presented. The article shows that the relationship between law and memory – which is often reduced to one of political instrumentalization – should, in accordance with the values of a liberal democracy, be reframed from the perspective of individual and collective rights. The article seeks to contribute to the field of memory studies in the social sciences by exposing functions of legal norms and mechanisms that are often overlooked when discussed from the perspective of the politics of memory.

THE RIGHT TO TERMINATE NON-COMPETITION AGREEMENTS DURING THE STATE OF EPIDEMIC EMERGENCY OR STATE OF EPIDEMIC, ANNOUNCED ON GROUNDS OF COVID-19. COMMENTS DE LEGE LATA AND DE LEGE FERENDA

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 465-477
Author(s):  
Iwona Gredka-Ligarska
Keyword(s):  
Infectious Diseases ◽  
Research Problem ◽  
The State ◽  
Negative Consequences ◽  
Democratic State ◽  
Special Solutions ◽  
The Law ◽  
Principle Of Proportionality ◽  
The Right ◽  
Proportionality Principle

In Art. 15 gf of the Act of 2 March 2020 on special solutions relating to the prevention, counteraction and combatting COVID-19, other infectious diseases and the resulting crisis situations, the legislator introduced a right to terminate non-competition agreements. The purpose of this article is to examine if that right does not interfere excessively with the interests of employees, mandatories and contractors, and if it does not disturb the balance between the parties to non-competition agreements. The research problem is analysed on several levels. The constitutional approach is adopted (in terms of compatibility with: the principle of a democratic state ruled by law; principle of proportionality; principle of equality before the law). Also, interpretation of the examined provisions is presented and complexities it may trigger in practice. Conclusions of the performed analysis are a basis for the presented amendment proposals intended to mitigate the negative consequences of the examined provisions.

PRIVACY PROBLEM IN A DIGITAL EPOCH

2020 ◽  
pp. 36-50
Author(s):  
Irina Aseeva
Keyword(s):  
Information And Communication Technologies ◽  
Consumer Choice ◽  
Personal Information ◽  
Personal Data ◽  
Modern Society ◽  
Private Life ◽  
The Right To Privacy ◽  
Democratic State ◽  
Privacy Problem ◽  
The Right

Being an inalienable right of a citizen of a democratic state, the right to privacy of life in the digital age is exposed to constant intrusions and encroachments. Private life is becoming an object of interest for the public, state intelligence agencies, commercial organizations, and crime, who have received the opportunity through information and communication technologies not only to look after a person through correspondence and analysis of personal data, but also to manipulate consumer choice, generate demand, track movements and contacts. At the same time, as the results of sociological studies show, modern society itself is becoming more open, and users of Internet resources give the important personal information, often voluntarily post terabytes of photos and videos, losing the border between privacy and publicity, morally acceptable and legally prohibited.

scholarly journals Społeczne niebezpieczeństwo czynu jako warunek kryminalizacji

2017 ◽  
Vol 43 ◽  
pp. 327-347 ◽  
Author(s):  
Jan Kulesza
Keyword(s):  
Human Action ◽  
Social Threat ◽  
Individual Rights ◽  
Social Harm ◽  
Democratic State ◽  
The Social ◽  
Principle Of Proportionality ◽  
Shared Social Values ◽  
The Right ◽  
State Interference

Criminalization conditioned by a social threatA human action in order to be criminalized must be deemed socially harmful. In the social realm it is necessary to identify an action perceived as potentially harmful to legally protected values, that is one infringing upon them or threatening them to a degree exceeding socially accepted limits, one that is required or expected to be criminalized. The social threat as a particular characteristic of a human action serves as the broadest justification hence a verification and a rationalization of a criminal prohibition. The presumed abstract social harm a threat of an action which is to be criminalized serves as the lawmaker’s prerequisite for criminalization. Its constitutional foundations lie in the principles of a democratic state and the consecutive principle of proportionality is perceived broadly as a guarantee against the criminalization of actions that do not pose a social threat or ones that exercise individual rights and freedoms granted within the constitution. Penalizing actions that pose no social threat is a violation of the constitution. The notion of a social threat plays therefore a dual role. It obliges t he lawmaker to act in cases when the threat to individual rights and freedoms exceeds the socially acceptable level, including the obligation to introduce criminal measures against any particularly harmful infringement of those rights, but also the need to intervene in order to protect the values shared within a society. In the latter case the potential criminalization is originated within the principles and values expressed in Articles 2 and 5 of the Polish constitution. On the other hand, the potential social harm of an action serves as a safeguard against a too far reaching legal interference in individual rights and freedoms. This purpose is expressed in Article 31 para. 3 of the constitution. This limitative clause is to warrant the right balance between the protection of individual rights and freedoms or the protection of shared social values and state interference in those individual rights and freedoms necessary to ensure such protection.

scholarly journals Introduction to the German constitution protection law (VERFASSUNGSSCHUTZRECHT)

2017 ◽  
pp. 11-17
Author(s):  
CODRIN TIMU
Keyword(s):  
Second World War ◽  
Constitutional Court ◽  
World War ◽  
Legal Norms ◽  
Democratic State ◽  
German Constitution ◽  
Federal Constitutional ◽  
The Right ◽  
Democratic Procedure ◽  
Second World

The German constitution protection law represents the entirety of legal norms, which aim towards the protection of the free democratic fundamental order of Germany and towards the existence and security of the federation or of a land. The article represents a short introduction to this law domain and details its fundaments and its actual regulation. As early as 1952 the Federal Constitutional Court of Germany defined the expression “free democratic fundamental order of Germany” as being one of the main objects of protection and defense of the German offices for the protection of the constitution. Handling with this subject has a specific importance, because Germany (as well) is one democratic state that adopted in the constitution a “democratic anti-extremist ideology”. The principle of militant democracy (wehrhafte Demokratie) was adopted by the constitutional legislator as a solution to the “democratic dilemma” of the 1920s, when the constitutionalists of the time asked themselves, if a democracy should have the right to dissolve itself through a democratic procedure. In this way, Germany created after the Second World War the offices for the protection of the constitution.

When the State Speaks, What Should It Say?

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Freedom Of Expression ◽  
The State ◽  
Hate Groups ◽  
New Approach ◽  
State Action ◽  
Democratic State ◽  
Theory Of Value ◽  
The Right ◽  
Equal Citizenship ◽  
The Ideal

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, this book proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action—expressive and coercive—the book contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. The book extends this analysis from freedom of expression to the freedoms of religion and association, and shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

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.

Risk Assessment vs. Right to Privacy: The Access to Health Information on the Insurance Candidate through Questionnaires and the Right to Privacy

2013 ◽  
Vol 20 (1) ◽  
pp. 63-78
Author(s):  
Maria Inês de Oliveira Martins
Keyword(s):  
International Law ◽  
Health Information ◽  
Personal Information ◽  
Relevant Information ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Access To Health ◽  
Health Related ◽  
Principle Of Proportionality ◽  
The Right

Abstract The need of private insurers for information on the candidate’s health risks is recognized by the law, which places pre-contractual duties of disclosure upon the candidates. When the risks are influenced by health factors, e.g. in the case of life- and health insurances, it implies the provision of health information by the candidates, who thus voluntarily limit their right to privacy. This consent, however, often happens in a context of factual coercion to contract. Next to this, from a legal standpoint, the collection of personal information must respond to the principle of proportionality. Against this background, this article assesses the compatibility of questionnaire techniques that rely on open-ended health related questions with the right to privacy, as protected by Portuguese and international law. It then analyses the extent of pre-contractual duties of disclosure as defined by the Portuguese Insurance Act, which requires the candidate to volunteer all the relevant information independently of being asked for it. In doing so, the article also refers to some other European countries. It concludes that the relevant Portuguese legislation is incompatible both with Portuguese constitutional law and with international law.

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