scholarly journals Czy Konstytucja Rzeczypospolitej Polskiej wymusza na ustawodawcy ustawową regulację struktury organizacyjnej i właściwości sądów powszechnych?

2020 ◽  
pp. 119-135
Author(s):  
Bogusław Banaszak
Keyword(s):  
Public Authorities ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Court Proceedings ◽  
The Republic ◽  
The Individual ◽  
The Right ◽  
And Function ◽  
Statutory Regulation

The Constitution of the Republic of Poland does not define in a comprehensive manner the matter to be standardized in laws and grants the legislator considerable freedom in determining their content. In view of the subject matter of this opinion, based on views founded on the doctrine of Polish constitutional law and on the jurisprudence of the Constitutional Tribunal and the Supreme Court, it can be concluded that the legislator should regulate by law, among other matters, the following matters reserved for statutory regulation (the principle of exclusivity of the act): regulations concerning citizenship and the rights, freedoms and duties of the individual, as well as the basic competences, principles of how public authorities are organised and function. On the basis of this assumption, it was examined whether there is any indication to the legislator from the constitutional norms relevant to the judicial authority. The following were taken into account: the right to a fair trial (Article 45), the principle of the separateness and independence of the judiciary (Article 173), the principle of bi-instantiality of court proceedings and the principle of statutory determination of the system and jurisdiction of courts (Article 176), the principle of the presumption of competence being assigned to common courts (Article 177), and the principle of the non-removability and non-transferability of judges (Article 180). On the basis of an analysis of these constitutional norms, it was concluded that the Constitution of the Republic of Poland enforces statutory regulation of the organisational structure and the material, local and appeal jurisdiction of common courts, and only allows for entrusting specific matters to be regulated by executive bodies by means of a regulation. In the event of any doubts as to whether a given case should be classified into the category of specific matters, the principle of exclusivity of the Act applies.

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.

scholarly journals Pierādījumu pārbaude kriminālprocesā

2021 ◽  
pp. 550-559
Author(s):  
Oskars Kulmanis ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Cases ◽  
National Courts ◽  
European Court ◽  
The Supreme Court ◽  
Court Proceedings ◽  
The Republic ◽  
The Right ◽  
Court Hearing

The article addresses specific aspects of the principle of equality of arms, which is one of the fundamental principles that secures the rights of an accused person in court proceedings in criminal cases. It outlines one particular aspect laid down in Article 6 § 3 (d) of the European Convention of Human Rights, that is, the right of an accused person to examine witnesses against him. Another important aspect which concerns the rights of an accused person to examine the witnesses against him is an obligation for the national courts to justify convictions with the evidence verified in a court hearing. The Supreme Court of the Republic of Latvia and the European Court of Human Rights have emphasized several important practices of principle of fair trial which determine the justification of convictions with the evidence that has not been verified in court proceedings in criminal cases.

scholarly journals Ograniczenia dopuszczalności złożenia wniosku o przyznanie prawa pomocy przed sądem administracyjnym

2020 ◽  
pp. 87-108
Author(s):  
Robert Talaga
Keyword(s):  
Fair Trial ◽  
Access To Justice ◽  
Judicial Control ◽  
Court Proceedings ◽  
The Republic ◽  
The Moment ◽  
Definition Of ◽  
The Individual ◽  
The Right ◽  
Formal Requirements

The right to a fair trial remains a common heritage of European legal culture. Such a standard has been guaranteed under the functioning system of human rights. Equally, the right to a fair trial was confirmed in the Constitution of the Republic of Poland. It does not mean unlimited access to justice without bearing the costs of the initiated proceedings. As a result, mechanisms were created to bear the costs of proceedings and to release certain categories of citizens from such an obligation. In proceedings before administrative courts, it is possible to apply for the right to assistance in order to maintain the right to judicial control of public administration activities. However, the relevant request from the person involved is subject to certain formal requirements. Among other things, it should be submitted using the appropriate official form, and the information contained therein may also indicate the manner in which the request was submitted. An application for granting the right to assistance may be submitted in the course of court proceedings or before their initiation. However, such a statutory definition of the moment for submitting an application for the right to assistance requires clarification. In fact, such a requestcannot be made before the individual has been entitled to submit the appropriate appeal to the administrative court. Failure to comply with such a requirement results in the fact that the application submitted for the right to assistance does not generate any legal effects. A person applying for aid from the state is not yet obliged to bear court costs. There is also no need to provide such persons with professional legal assistance in proceedings before administrative authorities. This situation makes it impossible to grant the right to assistance due to the systemic limitations. In effect, such a procedure under the application for granting the right to assistance is discontinued as being deemed redundant. Moreover, premature submission of an application for the right to assistance may also reveal additionally that the substantive examination of the complaint or objection is inadmissible.

scholarly journals Freedom of speech as a fundamental right within the situational context of the Republic of Moldova and Transnistria

2021 ◽  
pp. 29-36
Author(s):  
Marin Domente ◽  
◽  
◽  
Keyword(s):  
Human Rights ◽  
Public Discourse ◽  
Freedom Of Expression ◽  
European Convention ◽  
Human Right ◽  
Public Authorities ◽  
Individual Level ◽  
The Republic ◽  
The Individual ◽  
The Right

The right to freedom of expression and information is guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in all member states of the Council of Europe. The case law of the European Court of Human Rights (ECHR) applying Article 10 must be considered an international standard of authority on the protection of this human right, including the right to express, transmit and receive opinions and information without the interference of public authorities. Freedom of expression is one of the most cherished constitutional rights in democracies. Freedom of expression affects every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. Moreover, it is frequently mentioned in public discourse and has inspired an impressive volume of legal and philosophical literature. Since its inclusion in Article 19 of the Universal Declaration of Human Rights, the right to freedom of opinion and expression has been protected in all relevant international human rights treaties. In international law, the freedom to express opinions and ideas is considered essential both at the individual level, insofar as it contributes to the full development of a person, and being a cornerstone of a democratic society.

scholarly journals Instrumentalne wykorzystywanie władzy sędziowskiej po wyroku TSUE – wieloaspektowa analiza legalnej korupcji

2020 ◽  
pp. 107-160
Author(s):  
Waldemar Walczak
Keyword(s):  
Supreme Court ◽  
Point Of View ◽  
Equal Treatment ◽  
Public Authorities ◽  
State Institutions ◽  
Personnel Decisions ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Right

The article presents considerations and multifaceted analyses of the conditions and motives of judicial decisions taken after the judgment of the TSUE 19 November 2019, in the context of how Poland’s judiciary system functions. It begins by explaining how to perceive and understand the essence of legal corruption in terms of the use of law, power and professional position. The possibilities of the intentional use of judicial power for specific needs and purposes is discussed in this context. The next part of the paper is devoted to a critical analysis of selectively interpreted right to a tribunal enshrined in art. 45 of the Polish Constitution in connection with other values enshrined therein. The right of every citizen to a fair and public hearing of their case, without undue delay by a competent, independent, impartial and independent court, is presented in terms of the constitutional perspective, the principle of equal treatment and non-discrimination. The problem outlined here is considered from the point of view of protection against the arbitrariness of authorities and the possibility of appealing against personnel decisions enabling employment to be taken up in selected positions in state institutions. Attention is paid to the privileged legal position of judges over other citizens. The issues described and the arguments presented in this article are entirely overlooked in the literature, as well as in public debate. What follows is an explanation of how TSUE rulings are interpreted differently by various public authorities. Reference is also made to the dictum of the Supreme Court judgment of 5 December 2019, which was issued in its Labour Law and Social Security Chamber. That process initiated specific actions and activities taken by individual groups of Supreme Court judges. Finally, the resolution of the combined three chambers of the Supreme Court on 23 January 2020, the judgment of the Constitutional Tribunal of 20 April 2020, and divergent decisions regarding the implementation of the TSUE’s position of 8 April 2020 are discussed.

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.

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.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

scholarly journals Determination of Mycoplasma bovis specific antibodies in blood sera of asymptomatic carriers-calves in three farms in the Republic of Serbia by using indirect ELISA assay

2017 ◽  
Vol 65 (2) ◽  
pp. 79
Author(s):  
D. VOJINOVIĆ ◽  
A. VASIĆ ◽  
J. ŽUTIĆ ◽  
B. DURIČIĆ ◽  
Z. ILIĆ ◽  
...  
Keyword(s):  
Indirect Elisa ◽  
Mycoplasma Bovis ◽  
Elisa Assay ◽  
Serum Samples ◽  
Asymptomatic Carriers ◽  
Elisa Kit ◽  
Cattle Blood ◽  
The Republic ◽  
The Individual

Blood serum samples of asymptomatic carriers-calves were collected from three farms in the territory of the Republic of Serbia during 2011 and 2012. Commercial Mycoplasma bovis ELISA kit (Bio-X Diagnostics, Belgique) for serological diagnosis from cattle blood sera and milk was used in this research. Calves’ blood sera were tested using immunoenzymatic indirect ELISA assay as described by manufacturer’s instructions. From 5603 blood sera of asymptomatic carriers-calves 144 (2,57%) samples were tested positive for the presence of specific Mycoplasma bovis antibodies. In three different farms proportions of seropositive samples varied from 0,32% to 10,6% in regard to total number of tested samples from the individual farms. In this paper we present the results of Mycoplasma bovis prevalence in asymptomatic carriers-calves.

Enforcement

2016 ◽  
Keyword(s):  
National Security ◽  
Good Practice ◽  
Right To Know ◽  
Public Authorities ◽  
Codes Of Practice ◽  
The Supreme Court ◽  
The Right To Know ◽  
Appeal Process ◽  
The Right ◽  
Court Of Appeal

Chapter 6 deals with the ways in which public authorities may be encouraged and compelled to implement the right to know. A distinction is drawn between the powers of the Information Commissioner to promote good practice in accordance with the codes of practice outside the context of a particular request for information and the enforcement of such a request. Chapter 6 outlines the procedure for appealing to the Commissioner and the First-tier Tribunal and states how an appeal can come before the Upper Tribunal, the Court of Appeal, and the Supreme Court. It identifies the ways in which confidentiality is preserved during the appeal process: the closed material procedure and the national security appeals tribunal. It discusses the limits which the Courts have placed on ministerial vetoes; enforcement by contempt proceedings; and the position of third parties. The First-tier Tribunal Rules provide for their joinder.

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