scholarly journals Zasada jawności w postępowaniu sądowoadministracyjnym

Radca Prawny ◽  
2021 ◽  
pp. 71-97
Author(s):  
Weronika Szafrańska
Keyword(s):  
Infectious Diseases ◽  
Legal Order ◽  
Democratic State ◽  
Administrative Courts ◽  
Court Proceedings ◽  
Closed Door ◽  
The Right ◽  
The Way

The principle of openness in administrative court proceedings On the basis of Article 15zzs4 of the Act of March 2, 2020 on special measures to prevent, counteract and combat COVID-19, other infectious diseases and emergencies caused by them, and in connection with the recurrence of successive “pandemic waves” in the fall of 2020, administrative courts began to cancel open hearings and ordered the proceedings to be held during closed door hearings. The aim of this article is to evaluate the aforementioned “COVID regulations” introduced into the Polish legal order which restrict the right of the parties to an open hearing of a case that is pending before administrative courts as well as an attempt to answer the question whether the way judges of administrative courts apply the aforementioned regulations in the era of the widespread epidemic conforms to the principles of a democratic state of law.

scholarly journals Z problematyki zakazu reformationis in peius w postępowaniu sądowoadministracyjnym

2019 ◽  
pp. 123-157
Author(s):  
Agnieszka Ciesielska
Keyword(s):  
Legal Regulation ◽  
Administrative Authority ◽  
The Public ◽  
Diffi Cult ◽  
Legal Situation ◽  
The Law ◽  
Administrative Courts ◽  
Court Proceedings ◽  
The Way

The principle of prohibition of reformatio in peius is established in Article 134 § 2 of the Law on Proceedings Before Administrative Courts. According to this provision the administrative court is not allowed to issue a decision to the detriment of the complainant. A judgment adverse to the complainant can be exceptionally issued but only if the court fi nds a violation of the law resulting in the annulment of the challenged act or action. This principle is a procedural institution which ensures that the complainant’s situation will not deteriorate due to the decision of the administrative court. There are many interpretative doubts concerning the prohibition of reformatio in peius in the doctrine and the jurisdiction of the administrative courts. This is because administrative courts very rarely issue a decision on the merits. Decisions of administrative courts are basically of cassation nature. When the administrative court allows a complaint, the contested act is generally eliminated from the system of law and the case is returned for re-examination by the public administrative authority. It is therefore very diffi cult to determine the content of the prohibition of reformatio in peius in administrative court proceedings and in practice the prohibition of a change for the worse is not a real guarantee of the protection of the interests of the complainant. In the author’s opinion, the way of approaching the mechanism of application of the prohibition of reformatio in peius by the administrative courts needs to be changed. And yet, a signifi cant improvement in the eff ectiveness of the protection against the worsening of the complainant’s legal situation will only be possible through the introduction of a new legal regulation restricting the jurisdiction of public administrative authority, which will reconsider the case after the cassation judgment issued by the administrative court.

scholarly journals Access to the Highest Administrative Courts: between the Right of an Individual to Have a Case Heard and the Right of a Court to Hear Selected Cases

2020 ◽  
Vol 18 (1) ◽  
pp. 1-23
Author(s):  
Wojciech Piątek
Keyword(s):  
High Standard ◽  
Case Law ◽  
Reasonable Time ◽  
Constitutional Principle ◽  
Lower Courts ◽  
Administrative Courts ◽  
Court Proceedings ◽  
The One ◽  
The Right

Hearing a dispute by a court in a reasonable time is one of the crucial conditions for the existence of an effective judicial system as imposed by the European law and national legal orders. That requirement is contrary to the expectations of individuals to question the judgments of lower courts before the courts of the highest instance. The purpose of this article is to explore the question of values that should be taken into consideration by legislatures in a process of determining the access of administrative cases to the highest courts. The analysis is based on the example of Austrian and Polish legal systems. In both countries, there is a separate two-instance administrative judiciary. However, the conditions of the access to the Supreme Administrative Courts differ. In Poland, that access is unlimited, considering the constitutional principle of two-instance court proceedings. In Austria, the right in question is limited to cases deemed significant for broader interest, i.e. not only the one of the parties to the proceeding. An analysis of the normative consequences of each solution leads to the conclusion that procedural limitations concerning the access to the highest courts foster their role in preserving the uniformity of the case law and ensuring a high standard of its interpretation. A system with no limitations does not guarantee the determination of a concrete dispute in a reasonable time and thus cannot be considered effective.

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.

Inadmisibilitatea anumitor inițiative legislative

2021 ◽  
Vol 2021 (2021) ◽  
pp. 244-258
Author(s):  
Vasile ŢIPLE ◽  
Keyword(s):  
International Law ◽  
Legal Order ◽  
Final Part ◽  
Constitutional Court ◽  
National Minorities ◽  
The Subject ◽  
The Difference ◽  
The Right ◽  
The Way

This paper will analyze the right to association and the limits of the exercise of the legislative function in the Romanian Parliament, including the difference in legal treatment applied to the legislative initiatives of the citizens versus those of parliamentarians. Also, the subject of the inadmissibility of the legislative initiatives in the fields regulated by art. 152 of the Constitution, the need to extend the category of persons who can exercise the right to refer a matter to the Constitutional Court, as well as the obligation of the Constitutional Court to carry out ex officio constitutionality checks for initiatives aimed at de facto and de jure revision of the Constitution. The final part is dedicated to the principle of subsidiarity, as well as to the way in which certain provisions of international law frequently invoked in the field of protection of national minorities and justification of territorial autonomy, have already been transposed into the Romanian legal order.

The Procedural Laboratory for Studying the Historical Types of Criminal Proceedings

2021 ◽  
Vol 8 (2) ◽  
pp. 71-78
Author(s):  
Anna V. Lamteva
Keyword(s):  
Vertical Direction ◽  
Criminal Procedure ◽  
Point Of View ◽  
Ancient Rome ◽  
Criminal Proceedings ◽  
Democratic State ◽  
Court Proceedings ◽  
The Times ◽  
The Right

The article is devoted to the study of historical types of criminal proceedings in a vertical direction. The foremost archetypes of criminal procedure, which laid the technological and methodological foundations for formation of the investigative, adversarial, and mixed types of criminal proceedings, were analyzed. Arguments are given in favor of the fact that the initial reference point for criminal proceedings is the accusatory-adversarial type. The appropriate legal examples from the legislation of Athens and Ancient Rome are referenced in the article. An attempt is made to prove three hypotheses about the modern types of criminal procedure, the sequential system about the models of criminal procedure. Consideration is given to the archetype. The debatable issue regarding the active and passive positions of judges in the resolution of criminal cases on their merits was considered. The author's position in favor of the role of a judge as a non-initiative arbitrator between the parties was appropriate and justified only in the times of the rise of Athens and Ancient Rome. The judicial compositions of each case consisted of several hundred judges, which made it possible to make the right decision. The judges themselves were from the people. In particular, this is why, before our era, there were no dubious statistics in court proceedings from the point of view of the adversarial principle. It further explains why there were both convictions and acquittals in sufficient numbers for a democratic state. The modern procedural role of a judge is often reduced to the personal neutral, but at the same time active investigation of the evidence is presented by the parties. Much attention is given to the modern type of criminal process, which is called mixed. This content is considered in two ways as a symbiosis of investigative and adversarial types and also as a procedural duet of accusatory-adversarial and techno-centric models.

scholarly journals Participants in Administrative Court Proceedings in Multi-Stakeholder Proceedings

2021 ◽  
Vol 3 ◽  
pp. 123-143
Author(s):  
Jakub Polanowski
Keyword(s):  
Administrative Procedure ◽  
Public Announcement ◽  
Procedure Code ◽  
The Law ◽  
Administrative Courts ◽  
Court Proceedings ◽  
Multi Stakeholder ◽  
Administrative Proceedings ◽  
The Right ◽  
Right Of Access

This article is conceptual in nature and addresses the application of the rules on the participation of participants in administrative court proceedings. The main thesis of the paper is based on the statement that a person who, as a party to administrative proceedings, was notified, pursuant to Art. 49a of the Administrative Procedure Code, of the activities of an authority by public announcement, may become a participant in administrative court proceedings after fulfilling the condition specified in Art. 33 § 1a of the Law on Administrative Courts Proceedings. The subsidiary thesis is that reasons of procedural efficiency require the adoption of such a limitation of the rights of the designated entities that will not infringe the essence of their right to a court and will not impede the exercise of that right by the parties and other participants to the proceedings. The purpose of this paper is to provide that Art. 49a of the Code of Administrative Procedure is one of the “special provisions” referred to in Art. 33 § 1a of the Law on Administrative Courts Proceedings. The reasoning adopted is based on the assumption that the interpretation of the above provisions should take into account both the requirements arising from the right of access to court and the right to be heard without unreasonable delay and the need to minimise the costs of proceedings. The described issue, based on national research, is of significant importance for practice and have not yet been discussed in more detail in the doctrine.

The adaptation of design thinking in auditing

2019 ◽  
Vol 2 (1) ◽  
Author(s):  
Linda MEIJER-WASSENAAR ◽  
Diny VAN EST
Keyword(s):  
The Netherlands ◽  
Design Thinking ◽  
Public Organizations ◽  
Design Framework ◽  
The Right ◽  
The Way

How can a supreme audit institution (SAI) use design thinking in auditing? SAIs audit the way taxpayers’ money is collected and spent. Adding design thinking to their activities is not to be taken lightly. SAIs independently check whether public organizations have done the right things in the right way, but the organizations might not be willing to act upon a SAI’s recommendations. Can you imagine the role of design in audits? In this paper we share our experiences of some design approaches in the work of one SAI: the Netherlands Court of Audit (NCA). Design thinking needs to be adapted (Dorst, 2015a) before it can be used by SAIs such as the NCA in order to reflect their independent, autonomous status. To dive deeper into design thinking, Buchanan’s design framework (2015) and different ways of reasoning (Dorst, 2015b) are used to explore how design thinking can be adapted for audits.

Memories for the Return? Remembering the Nakba by the First Generation of Palestinian Refugees in Syria

2017 ◽  
Vol 16 (2) ◽  
pp. 177-192 ◽  
Author(s):  
Anaheed Al-Hardan
Keyword(s):  
First Generation ◽  
Palestinian Refugees ◽  
Oslo Accords ◽  
Right Of Return ◽  
Palestinian Refugee ◽  
Temporal And Spatial ◽  
The Right ◽  
Political Realities ◽  
The Way

The 1948 Nakba has, in light of the 1993 Oslo Accords and Palestinian refugee activists' mobilisation around the right of return, taken on a new-found centrality and importance in Palestinian refugee communities. Closely-related to this, members of the ‘Generation of Palestine’, the only individuals who can recollect Nakba memories, have come to be seen as the guardians of memories that are eventually to reclaim the homeland. These historical, social and political realities are deeply rooted in the ways in which the few remaining members of the generation of Palestine recollect 1948. Moreover, as members of communities that were destroyed in Palestine, and whose common and temporal and spatial frameworks were non-linearly constituted anew in Syria, one of the multiples meanings of the Nakba today can be found in the way the refugee communities perceive and define this generation.

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.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

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