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 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.

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 Kriteria Calon Pemimpin Negara dan Mekanisme Pencalonannya di Negara Republik Indonesia dalam Pandangan Fiqih Siyasah

2021 ◽  
Vol 8 (2) ◽  
Author(s):  
Tofa Fidyansyah ◽  
Siti Ngainnur Rohmah
Keyword(s):  
Presidential Election ◽  
Qualitative Method ◽  
Legal Theory ◽  
Major Influence ◽  
The Political ◽  
Court Decisions ◽  
Direct Elections ◽  
The Republic ◽  
The Right ◽  
Laws And Regulations

Leadership has a major influence on the political and state life of a nation. A leader will also determine the progress and retreat of a country. This paper provides an understanding of the criteria for candidate state leaders whose mechanisms have been determined in the laws and regulations of the Republic of Indonesia and the criteria for candidate state leaders in the view of fiqh siyasah. This study uses a qualitative method with a literature approach. The data in this study were obtained from binding legal materials consisting of legislation, court decisions, legal theory, books, scientific writings and legal journals. The results of this study state that the criteria for candidates for state leaders in the Republic of Indonesia as stated in the laws and regulations have several similarities with the criteria for candidate leaders according to Fiqih Siyasah, the presidential election of the Republic of Indonesia in the period before 2009 was carried out with the concept of Bay'at Ahl al-Hall wa al-'Aqd, the presidential election is carried out in the deliberations of the people's representatives who are in the People's Consultative Assembly (MPR), appointed by the assembly, and when the term of office ends, an accountability report will be asked to the assembly that appointed it. The presidential election of the Republic of Indonesia, in the period after 2009 was carried out by way of direct elections through elections, all levels of society who have the right to vote can make their choice directly, no longer through representatives by people's representatives. But the weakness is that the elected president is not asked to report an accountability report at the end of his term of office.Keywords: Criteria for prospective leaders, mechanisms, fiqh siyasah. AbstrakKepemimpinan berpangaruh besar terhadap kehidupan berpolitik dan bernegara suatu bangsa. Seorang pemimpin juga akan menentukan maju mundurnya sebuah negara. Tulisan ini memberikan pemahaman bagaimana kriteria calon pemimpin negara yang sudah ditetapkan mekanismenya dalam peraturan perundang-undangan Republik Indonesia dan kriteria calon pemimpin negara dalam pandangan fikih siyasah. Penelitian ini menggunakan metode kualitatif dengan pendekatan literatur. Data dalam penelitian ini diperoleh dari bahan-bahan hukum yang mengikat yang terdiri dari perundang-undangan, keputusan pengadilan, teori hukum, buku-buku, tulisan-tulisan ilmiah dan jurnal hukum. Hasil penelitian ini menyatakan bahwa kriteria calon pemimpin negara di Republik Indonesia yang tertuang dalam peraturan perundang-undangan memiliki beberapa persamaan dengan kriteria calon pemimpin menurut Fiqih Siyasah, Pemilihan presiden Republik Indonesia dalam kurun waktu sebelum tahun 2009 dilaksanakan dengan konsep Bay’at Ahl al-Hall wa al-‘Aqd, pemilihan presiden dilakukan di dalam musyawarah para wakil rakyat yang berada di dalam Majelis Permusyawaratan Rakyat (MPR), diangkat oleh majelis, dan ketika berakhir masa jabatan akan dimintai laporan pertanggung jawaban kepada majelis yang mengangkatnya. Pemilihan presiden Republik Indonesia, dalam kurun waktu sesudah tahun 2009 dilakukan dengan cara pemilihan langsung melalui pemilu, semua lapisan masyarakat yang mempunyai hak pilih bisa menentukan pilihannya secara langsung, tidak lagi melalui perwakilan oleh wakil rakyat. Tetapi kelemahannya  presiden terpilih tidak dimintai laporan pertanggung jawaban di akhir masa jabatan. Kata kunci : Kriteria calon pemimpin, mekanisme, fiqih siyasah. 

scholarly journals Calon Perseorangan dalam Pemilihan Umum Kepala Daerah

2014 ◽  
Vol 4 (01) ◽  
pp. 112-135
Author(s):  
Sri Warjiyati
Keyword(s):  
Political Institutions ◽  
Political Party ◽  
General Election ◽  
Local Election ◽  
Individual Candidate ◽  
The Republic ◽  
The Government ◽  
The Individual ◽  
The Right ◽  
Independent Candidates

Abstract: This article discusses the individual candidate in the general election of regional head in political jurisprudence perspective. Before the Mahkamah Konstitusi’s decision No. 5/PUU-V/2007 pointed out, the individual candidate could have enter the two political institutions; first, in the 2004 general election, the individual candidate competed to get into the institution of the Regional Representative Council of the Republic of Indonesia; second, Undang-Undang No. 11 tahun 2006 regarding with the Government of Aceh where the individual candidate could compete with the candidates promoted by the national political party in electing the regional head in all over Aceh. The decision of Mahkamah Konstitusi No. 5/PUU-V/ means that the local head election held in various regions can include the individual independent candidate. In political jurisprudence perspective, mechanism of the individual candidacy in the election has already in accordance with the concept of maslahah al-‘ammah ie. hifdz al-ummah.  In this case, any of the individual independent candidates who nominate themselves as the regional head cannot be discriminated and they deserve the right to nominate to be in line with the Mahkamah Konstitusi’s decision.Keywords: Candidate, individual, local election, jurisprudence, siyasah

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 Freedom of expression and protection of personal data on the Internet: The perspective of Internet users in Serbia

2020 ◽  
Vol 15 (47) ◽  
pp. 5-34
Author(s):  
Marta Mitrović
Keyword(s):  
Freedom Of Expression ◽  
Personal Data ◽  
Individual Responsibility ◽  
The Internet ◽  
Snowball Sampling ◽  
Internet Users ◽  
The Republic ◽  
The Government ◽  
The Individual ◽  
The Right

The paper examines the views of Internet users concerning the protection of their rights on the Internet. The Web survey, conducted by the snowball sampling, included 783 Internet users who expressed their views regarding the ways the state (Serbia) and private agents (Facebook and Google) relate to the right of freedom of expression and privacy on the Internet. Also, the survey was used to examine the individual responsibility of users when it comes to the use of Internet services. Several hypotheses suggested that Internet users in Serbia do not have confidence in the country and private actors on the issue of protecting their rights. However, users also do not demonstrate a satisfactory level of individual responsibility. The most important findings indicate that: 1) only one-sixth of the respondents consider that the Government of the Republic of Serbia does not violate the privacy of Internet users; 2) almost half of the respondents do not feel free to express their views criticizing the government; 3) almost 90% of users are not satisfied how Facebook protects their privacy, while it is 1% lower in the case of Google; 4) a third of respondents answered positively to the question whether they had read terms of use of the analyzed companies, but half of them did not give a correct answer to the main questions; 5) only 8.9% of respondents who claimed to have read terms of use are aware of the fact that Facebook shares their data with third parties.

scholarly journals La protección de la esfera individual del derecho de libertad religiosa: desafíos actuales en el derecho chileno y comparado

2018 ◽  
Vol 19 (1) ◽  
pp. 167-180
Author(s):  
Miguel Sánchez-Lasheras
Keyword(s):  
Religious Freedom ◽  
Comparative Law ◽  
Individual Rights ◽  
The Republic ◽  
The Individual ◽  
The Right ◽  
Individual Dimension

Resumen: Con frecuencia se recalca la importancia de proteger el derecho de libertad religiosa, pero, sin embargo, se desconoce el contenido específico de este importante derecho fundamental. En el presente artículo se exponen, de manera sintética, los derechos y libertades que conforman la dimensión individual de la libertad religiosa. Los principales ejemplos de normas positivas se refieren a la República de Chile, si bien se traen a colación algunos temas de actualidad en el contexto internacional y comparado.Palabras clave: Libertad religiosa. Derechos individuales. Derecho chileno. Derecho comparado. Abstract: The importance of protecting the right to religious freedom is often stressed, but nonetheless, the content of this important fundamental right is sometimes unknown. This article tries to expose, in a synthetic way, the rights and freedoms that shape the individual dimension of religious freedom. The main examples of positive laws refer to the Republic of Chile, although some current issues in the international and comparative context are also mentioned.Keywords: Religious freedom. Individual rights. Chilean law. Comparative law.

scholarly journals Transposition of the Acquis communautaire on information and consultation of employees into the legislation of the Republic of Moldova

2021 ◽  
pp. 211-216
Author(s):  
Teodorina Goriuc ◽  
Keyword(s):  
General Situation ◽  
Work Unit ◽  
Acquis Communautaire ◽  
Association Agreement ◽  
Republic Of Moldova ◽  
Right To Work ◽  
The Republic ◽  
The Individual ◽  
The Right ◽  
Made In

Informing and consulting employees, either on the general situation of the community within the work unit, or on the particular requirements and circumstances of the execution of work by the individual is an indispensable guarantee of the proper realization of the right to work. The normative changes made in recent years, following the signing of the Association Agreement and the establishment of harmonization priorities in the acquis communautaire, serve indispensable to create a formal and procedural climate sufficient for the proper exercise of the fundamental right to work and association in labor interests. Considerably the normative gaps capable of limiting their exercise.

scholarly journals How to Detect Hidden Individual Potential (intellectual DNA) of an Entrepreneur

2020 ◽  
Author(s):  
Drago Orčić
Keyword(s):  
Business Strategy ◽  
Business Processes ◽  
Technological Development ◽  
Potential Entrepreneur ◽  
The Republic ◽  
The Individual ◽  
The Right ◽  
Intellectual Potential ◽  
Start Ups ◽  
Natural Way

Entrepreneurship is a powerful tool in the value creation function. Contemporary trends indicate that entrepreneurship is not so much a matter of choice but it is increasingly an issue of survival. In the age of knowledge, intellectual potential becomes a key segment of successful entrepreneurship. The discovery, development and management of intellectual potential gives entrepreneurs, in addition to a competitive edge in the modern market, a greater chance of success in developing an entrepreneurial idea. According to research, in the first three years of business, about 90% of start-ups fail. One possible reason is the mismatch of the business strategy, the business idea, with the personal preferences of the entrepreneurs. The theme of the paper is: how to detect an entrepreneur's individual hidden potential (intellectual DNA) ie his natural dominant traits. By "Intellectual DNA" we mean mental, emotional, character, educational, and other conscious and subconscious individual specificities of an individual. Considering that natural personality traits mean interconnected circuits of cognitive, affective, and behavioral functioning, by the term intellectual DNA, we encompass all these characteristics together. Detecting a unique Intellectual DNA gives us a thorough insight into the natural inclinations of a potential entrepreneur. The concept of understanding the unique intellectual DNA of a potential entrepreneur can be very helpful in developing a strategy to materialize a business idea through starting your own business in many ways. First, knowing the entrepreneur's natural preferences, the business strategy can be adapted in an acceptable, natural way. Second, business processes, procedures can be created, modified, aligned to the individual natural preferences of the entrepreneur and thus reduce the risk of potential failure. Third, associates can be selected and placed in the right places according to their personal preferences. In this way, adequate people would perform certain tasks in accordance with their intellectual DNA, in a natural way, which would result in a greater degree of innovation, creativity, productivity, while reducing the degree of risk. We tested this innovative approach on the participants of the training program "What Makes An Adventure Called Entrepreneurship" within the project "Innovation at Work", which was supported by the Cabinet of the Minister for Innovation and Technological Development of the Republic of Serbia, held from 13.11.2019 to 16.12.2019. The results will be presented in the paper.

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