Your body is not only your business: commentary on Poland’s Constitutional Tribunal Judgment of 22 October 2020 no.K1/20

2021 ◽  
Vol 30 (3) ◽  
pp. 141-157
Author(s):  
Anastasia Shatilina
Keyword(s):  
Legal Aspects ◽  
Criminal Prosecution ◽  
Fetal Malformation ◽  
Reproductive Choice ◽  
Legal Norms ◽  
Polish Society ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Woman's Rights ◽  
The Right

For about 30 years, the topic of abortion has remained a “bone of contention” between conservative and liberal members of Polish society. In October 2020, these discussions moved from the political and religious planes to the legal field: the Constitutional Tribunal of the Republic of Poland considered the issue of women’s right to “eugenic abortion”. The Constitutional Tribunal scrutinized the provisions of a specialized law, allowing the termination of pregnancy in case of a high probability of a severe and irreversible fetal malformation or an incurable disease threatening its life. As a result, in the Judgment of 22 October 2020 no. K1/20 the Constitutional Tribunal upheld the position of the applicants, a group of deputies of the Sejm, and declared the contested legal norms unconstitutional. This process was the center of attention of mass media and the reason of mass protests throughout Poland. This article is the commentary on the decision, that attempts to comprehend the premises of the decision, its substantive and procedural aspects, as well as the consequences. The author concludes that the main purpose of the decision is to constitutionalize the traditionalist state policy in the field of reproductive rights. This decision is difficult to analyze in isolation from political and religious factors. The article notes that the value of the “eugenic abortion” case is not limited to legal aspects. The Constitutional Tribunal tried not only to change approaches to the correlation of competing rights (the right of an unborn child to life and woman’s rights in the context of freedom of reproductive choice), but also to increase “chilling effect”. It is expressed in the phasing out of abortion on pain of criminal prosecution.

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 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.

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 The Position of Women's Heritage Rights in the Context of Islamic Heritage in Indigenous Mandailing in Sipirok District, Tapanuli Selatan Regency

2020 ◽  
Vol 3 (1) ◽  
pp. 531-539
Author(s):  
Muhammad Yusuf Siregar ◽  
Risdalina Risdalina ◽  
Sriono Sriono
Keyword(s):  
Islamic Law ◽  
Legal Aspects ◽  
Customary Law ◽  
Legal Basis ◽  
Inheritance Law ◽  
The Republic ◽  
The Right ◽  
To Receive ◽  
Inheritance Laws

This study aims to analyze the legal aspects of the Position of Inheritance Rights of Girls in the Context of Islamic Inheritance in Indigenous Mandailing in Sipirok District, South Tapanuli Regency. This research is empirical normative namely research by looking at existing conditions in the field by linking the source of Islamic Law and the legal source of Regulations in force in the Republic of Indonesia. The benefits to be received from the results of this study are to determine the Position of Inheritance of Girls in the Context of Islamic Law and Regulations in Indonesia and the Position of Inheritance of Girls in the Context of Islamic Inheritance in Mandailing Customs in Sipirok District, South Tapanuli Regency, the results of the study stated that In Islamic Inheritance Law strongly recognizes the position of the daughter in receiving inheritance with a strong legal basis in accordance with the al-Qur’an. In Islamic Inheritance Laws, a daughter has a position as Nasabiyah's heir so that she has the right to receive inheritance. In the Mandailing customary inheritance law in Sipirok Mandailing Natal, the position of a daughter is considered as an heir when a male heir is found, but if the girl is a mere woman, the woman is not entitled to inheritance from her parents. The distribution of inheritance in the Mandailing Inheritance law in Sipirok Mandailing Natal uses local customary law, as a basis for the distribution of inheritance which is still being realized in the Community.

Part III The Right to Justice, C Restrictions on Rules of Law Justified By Action to Combat Impunity, Principle 23 Restrictions on Prescription

2018 ◽  
Author(s):  
Pinzauti Giulia
Keyword(s):  
United Nations ◽  
Criminal Law ◽  
Case Law ◽  
Theoretical Framework ◽  
Historical Background ◽  
Criminal Prosecution ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Domestic Legislation ◽  
The Right

Principle 23 deals with statutory limitations (prescription, in French) aimed at protecting defendants from stale claims that might be difficult to counter. Statutory limitations refer to legal norms that regulate the effects of the passage of time in domestic systems. In criminal law, they provide for a maximum timeframe, or prescription period, within which criminal proceedings can be instituted or sentences enforced. The passage of time makes the gathering of evidence more difficult and may also reduce the effectiveness of criminal prosecution. Significant delays in criminal action may thus impair the accused’s right to a fair trial. Furthermore, criminal proceedings tend to lose legitimacy as time passes. After providing a contextual and historical background on Principle 23, this chapter discusses its theoretical framework and how the statutory limitations have been applied in practice under multilateral treaties, domestic legislation and case-law. It also examines the practice of United Nations organs.

Holding Peaceful Assemblies in the Republic of Kazakhstan: Rights of Citizens and Administrative Liability

2018 ◽  
Vol 9 (3(33)) ◽  
pp. 870
Author(s):  
Timur K. AVENOV
Keyword(s):  
Constitutional Law ◽  
General Characteristic ◽  
Legal Regulation ◽  
International Standards ◽  
Legal Norms ◽  
Foreign Countries ◽  
Legal Model ◽  
The Republic ◽  
The Right ◽  
Mass Events

The article considers the matters of constitutional and administrative-legal regulation of the right to peaceful assembly in the Republic of Kazakhstan (RoK) and a number of foreign countries. Since there is a lot of publications dedicated to the study of compliance of this legislation to international standards, the analysis has been conducted by the following criteria: the general characteristic of the right to freedom of assembly from the viewpoint of international and constitutional law standards, the principles of organization and holding of public assemblies, the procedure of organization of a public assembly and its holding, and the liability for breaching this procedure. The author shows that the current incoherence of legal norms in this area prevents from developing a unified legal model for administrative liability for breaching public order and safety when holding mass events. Based on the study of normative and research materials in administrative and constitutional law, legal principles and approaches to freedom of assembly in international law and the law of a number of foreign countries, the author proposes options to improve the conceptual framework of legislation concerning assembly and mass events, to formulate proposals that will allow efficiently and legally applying administrative liability for breaching the RoK law concerning the procedure of organization and holding of peaceful assemblies, rallies, marches, pickets and demonstrations. Primary provisions and conclusions of the article can be used in scientific and practical activity when considering issues of holding liable for offences infringing constitutional rights of citizens and the established procedure for organizing and holding peaceful assemblies, rallies, marches, pickets and demonstrations, and to reform the norms of legislation on administrative offences.

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.

scholarly journals Digital Sovereignty in the Context of Globalization: Philosophical and Legal Aspects

2020 ◽  
Vol 2020 (2) ◽  
pp. 146-152
Author(s):  
Evgeniy Gavrilov
Keyword(s):  
Social Development ◽  
Social Order ◽  
Legal Aspects ◽  
Theory And Practice ◽  
Digital Data ◽  
Global Order ◽  
Legal Norms ◽  
Actual Meaning ◽  
The Individual ◽  
The Right

The article features the problem of consolidating and understanding the digital sovereignty of the State and the individual. The author addresses the challenge of establishing a correlation between the idea of digital sovereignty and the global socio-political change. The paper focuses on the effect of modern trends of social development, i.e. accelerated social informatization and globalization, on the development of doctrine of digital sovereignty and its legal design. The author believes that the idea of digital sovereignty is a reaction to the transformation of the global social order, which resulted in new doctrinal provisions and legal norms. They give citizens the right to determine the process of formation, storage, and management of digital data, as well as to ensure their inviolability. The legal formalization of digital sovereignty can indicate either the protection of statehood and personality or, on the contrary, their absorption by structures of the global order. As a result, such categories as "sovereignty, "statehood, or "personality" may eventually lose their actual meaning and real content. The conceptualization of the phenomenon of neurosovereignty and its implementation programs might be the future of the theory and practice of sovereignty.

scholarly journals Legal consequences and problems of the servitudes of right of way established by administrative acts in Latvia

2018 ◽  
Vol 40 ◽  
pp. 01011
Author(s):  
J. Dinsberga ◽  
K. Bite
Keyword(s):  
Land Reform ◽  
Private Property ◽  
Legal Norms ◽  
State Institutions ◽  
Existing Problems ◽  
Right Of Way ◽  
Public Road ◽  
The Republic ◽  
The Right ◽  
Ownership Rights

The right to own a property is guaranteed by the Article 105 of the Constitution of the Republic of Latvia that in the same time stipulates that the said rights may be restricted only in accordance with law. This legitimate property right restriction is determined in Article 928 of the Civil Law: the ownership may be restricted both by private intent and by law. One of the restrictions of ownership rights is the servitude of right of way which is established by law, a contract, a court judgement, or a will. During the land reform, the State Forest Service, land commissions, and municipalities had the legal basis to establish the servitude of right of way also by an administrative act, taking a corresponding decision. However, many decisions were insufficient and legally incorrect. As a result, today the servitudes of right of way established by the administrative acts during the period of the land reform do not fulfil their purpose and cause a number of legal and practical problems both to owners of immovable property and to state institutions. In order to explore these problems, referring to the Article 7 of the Paragraph 105 of the protocol resolution No.56 of the Cabinet of Ministers from 29 October 2013, the Ministry of Environmental Protection and Regional Development in cooperation with the Ministry of Transport, the Ministry of Justice, and the Ministry of Agriculture issued the Conceptual Report “On the Problems Occurring in Relation with the Servitudes of Right of Way Established during the Land Reform and Their Possible Solutions” (hereinafter – the Conceptual Report). In general there are 2 possible solutions, but for the second solution there are five courses of action, one of which – in cases when there is a road on private property that is needed for public use it is to be determined as an encumbrance of the immovable property “Public road”. The aim of the research is by analysis of the problems of the servitudes of right of way, established by the administrative acts during the period of the land reform, to evaluate whether the solutions offered in the Conceptual Report are practically applicable and will give the desired result, as well as to offer the author’s vision for solution of the existing problems. The author has used the scientific research approaches – descriptive, analytical, inductive and deductive, logical-constructive, formal-dogmatic, graphical and interpretation of legal norms – grammatical, systemic, and teleological.

scholarly journals The Constitutional Right to Health Protection in Belarus

2020 ◽  
Vol 13 (2) ◽  
pp. 217-236
Keyword(s):  
Right To Health ◽  
Health Protection ◽  
Legal Regulations ◽  
Legal Norms ◽  
Legal Principles ◽  
Fundamental Law ◽  
Constitutional Right ◽  
The Republic ◽  
The Right ◽  
Further Development

The article analyzes the constitutional right enshrined in the Fundamental law of the Belarusian state, its Constitution, - the right to health protection. The purpose of the research is to analyze the relevant legal regulations and the problems associated with implementing the right to health protection in the modern Belarus. The paper will examine the constitutional basis of the right to health protection in Belarus, its essence and nature, normative legal acts regulating the analyzed right, problems and prospects of its implementation in light of the current conditions of the Belarusian state. The author considers the constitutional legal principles and constitutional legal norms as the basis of the right to health protection and reveals the essence of the analyzed right. The conclusion substantiates the idea that detailed regulation of the right to health protection is carried out at the level of normative legal acts of the Republic of Belarus adopted by various state bodies. The state of realization of the right to health protection is determined by socio-economic, political and other factors. Identifying a number of problems related to ensuring the right to health protection, the researcher analyzes the prospects for its further development in the Republic of Belarus.

Sign in / Sign up

Export Citation Format

Share Document