Author: Cristina Hermida del Llano
E-mail: cristina.hermida@urjc.es
Institution: Rey Juan Carlos University, Spain
Source: Show
Pages: 11-38
DOI Address: 10.15804/ppk.2015.06.01
PDF: ppk/28/ppk2801.pdf

Streszczenie:

While the Court has, to some degree, started to protect against discrimination based on birth or nationality, the protection against discrimination on the basis of race until 2005 has been very poor and dubious. Upon reviewing the case law of the ECHR, we find that since the case “Relating to certain aspects of the laws on the use of language in education in Belgium” v. Belgium in 1968, the Court has decided to opt in favor of the original English version of art. 14, which underscores that the enjoyment of the rights and freedoms must be assured “without discrimination” and defends the concept that equality should be interpreted as non-discrimination, while clarifying that this disposition does not prohibit preferential treatment, such that, in the eyes of the Court, this principle is only violated when preferential treatment implies “a discriminatory treatment”, so the task for us is to determine in detail when the two are correlated. The cited decision is an essential reference as it provides the pointers needed to discern whether or not a violation of art. 14 exists, as in a “test” of equality that entails: (1) whether the distinction in treatment lacks objective justification; (2) whether the difference in treatment results in conformity with the objective of the effects of the measure examined attendant to the principles that generally prevail in democratic societies; (3) whether there exists a reasonable relationship between the means used and the end sought. Despite this interpretational recognition of art. 14, if we analyze in detail the Court’s jurisprudence, how the Court has approached the topic of discrimination on the basis of racial or ethnic origin is somewhat disappointing. The fact that during decades plaintiffs were required to provide proof beyond the shadow of a doubt has restricted the Court’s influence on discriminatory actions based on race or ethnicity; for this reason, it is not unexpected that in time critical dissidence arose, even within the Court itself. A good example of this is given by Judge Bonello in the decision Anguelova vs Bulgaria (2002). Here we analyze how the jurisprudence of the Court of Strasbourg has evolved in the context of discrimination against Roma, so as to ascertain the challenges that remain in this area.

human rights Discrimination Roma People Jurisprudence European Court of Human Rights

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Author: Krzysztof Eckhardt
E-mail: eckhardt@wp.pl
Institution: School of Law and Administration in Rzeszów
Source: Show
Pages: 39-51
DOI Address: 10.15804/ppk.2015.06.02
PDF: ppk/28/ppk2802.pdf

Streszczenie:

The Constitution of the Republic of Poland of 2 April 1997, similarly as constitutions of some other contemporary states, expresses a postulate of “good administration”. It can be perceived both in the preamble as in many detailed provisions of the fundamental act, regulating particular institutions related to the legal system. The article describes frames of organisation and functioning of good administration determined by the Constitution and adduces opinions of the doctrine on the subject of the notion and features of good administration. A carried out analysis leads to a conclusion that the Legislator expressed the postulate of good administration in a sufficiently unambiguous way, however an unambiguous constitutionalisation of the right to good administration is required.

good administration the right to good administration

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Author: Gábor Schweitzer
E-mail: schweitzer. gabor@tk.mta.hu
Institution: Hungarian Academy of Sciences Centre for Social Studies Institute for Legal Studies and National University for Public Service, Faculty of Public Administration, Budapest, Hungary
Source: Show
Pages: 53-63
DOI Address: 10.15804/ppk.2015.06.03
PDF: ppk/28/ppk2803.pdf

Streszczenie:

In this paper, I’d like to provide an overview of the presidents of the Hungarian Royal Administrative Court (Magyar Királyi Közigazgatási Bíróság) which operated in Budapest between 1897 and 1949. I wish to present the legal status, the political and social prestige and the scholarly background of the presidents of that court. In the opening, however, I will outline the organisation, the scope of authority and the operation of the Administrative Court.

international legal status presidents of the Hungarian Royal Administrative Court legal status the organisation

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Author: Sabina Grabowska
E-mail: chatazawsia@wp.pl
Institution: University of Rzeszow
Source: Show
Pages: 65-80
DOI Address: 10.15804/ppk.2015.06.04
PDF: ppk/28/ppk2804.pdf

Streszczenie:

Poland is a country of the so-called “young democracy” type. As provided for in art. 2 of The Constitution of the Republic of Poland dated 2 April 1997, “The Republic of Poland is a democratic state of law, fulfilling the principles of social justice”. Art. 4 of The Constitution of the Republic of Poland gives superior authority to the Nation. This authority can be exercised “through representatives or directly”. But Poland does not have much experience with the institution of a people’s initiative, nor with other forms of direct democracy. The Polish national law provides for two types of people’s initiative. One type is a people’s initiative of putting a bill before the parliament as provided for in art. 118 subpar. 2 of the Constitution of the Republic of Poland and the Act dated 24 June 1999 on the use of a legislative initiative by citizens. The second type is a people’s initiative of putting forward a motion to hold a legislative referendum regulated by the Act dated 14 March 2003 on holding a national referendum. The legislature did not provide for, however, a people’s initiative for the purpose of amending the constitution or its abrogation. The subject of this paper is the institution of a people’s initiative of putting forward a motion to hold a legislative referendum.

Poland referendum people’s initiative direct democracies

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Author: Fruzsina Gárdos-Orosz
E-mail: Orosz.Fruzsina@tk.mta.hu
Institution: the Institute for Legal Studies, Center for Social Sciences of the Hungarian Academy of Sciences and the National University of Public Service
Source: Show
Pages: 81-103
DOI Address: 10.15804/ppk.2015.06.05
PDF: ppk/28/ppk2805.pdf

Streszczenie:

This paper aims to contribute to a better understanding of the rules of appointment and removal of Hungarian judges with special focus on constitutional controversies that got a wide national and international publicity. Besides providing an overview of the relevant legal provisions, I shed light on the constitutional difficulties the 2011 judicial reform faced. The independence of the judicial branch and the individual judge as basic constitutional principles require that judges are selected under high professional standards following the most transparent and adequate procedural rules. The 2011 judicial reform in Hungary with the implementation of two cardinal acts on the judiciary certainly aimed to guarantee more professionalism. The question rather was if it could observe the existing independence at the same time? Some elements of the reform provoked reaction from both national and international fora arguing the violation of basic rule of law standards. The national and international, scholarly, political and also judicial pressure was followed by the partial consolidation of the original text of the cardinal acts.

judges in Hungary constitutional controversies judicial reform

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Author: Jacek Zaleśny
E-mail: jacekzalesny@o2.pl
Institution: University of Warsaw
Source: Show
Pages: 105-124
DOI Address: 10.15804/ppk.2015.06.06
PDF: ppk/28/ppk2806.pdf

Streszczenie:

The present analysis is devoted to the financial autonomy of communes and the ways of understanding it. The author analyzes the legal, jurisdictional and actual determinants of the commune’s financial independence and points to the consequences following from them. The author poses a hypothesis that the constitutional value in the form of the financial autonomy of communes is not full realized by the parliament in contemporary Poland, with the Constitutional Tribunal underestimating it. The increase in the revenues of communes is not adequate to the duties assigned to them by the parliament. The consequences of the ongoing process include an increased debt of the communes and their problems with realization of the needs of local communities, the latter being the goal whose realization was the reason to have established the local self-government.

commune autonomy decentralization of public administration financial autonomy revenues and expenditures budget balance debt burden

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Author: Gábor Hollósi
E-mail: gabor.hollosi@veritas.gov.hu
Institution: Institute for History in Hungary
Source: Show
Pages: 125-139
DOI Address: 10.15804/ppk.2015.06.07
PDF: ppk/28/ppk2807.pdf

Streszczenie:

Based on Hungarian period literature, the study presents the main features of 1920s Polish electoral law, while comparing it to the Hungarian electoral law of the same period. Those elements of Polish electoral law are highlighted that the interwar Hungarian literature covers. Likewise, the study outlines the two differing directions which – already apparent in the first decades following the world war – the development of Polish and Hungarian electoral law had taken, despite starting out on a similar footing in the wake of independent statehood. Before drawing conclusions – with a consideration of their impact on political life – the study touches upon, in both states, the structure of the legislature, the electoral system and the distribution of seats, the conditions of active and passive suffrage law and the questions surrounding the nomination process. While in Poland “politics was shaped by electoral law’s chronic state of crisis”, in Hungary the admittedly manipulated electoral law ensured governability.

Polish electoral law Hungarian electoral law Hungarian electoral law period literature 1920s

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Author: Agnieszka Bień-Kacała
E-mail: abien@law. umk.pl
Institution: Nicolaus Copernicus University in Toruń
Author: Tomasz Kacała
E-mail: tomasz1975@ yahoo.com
Institution: Allied Joint Force Command Brunssum
Source: Show
Pages: 141-161
DOI Address: 10.15804/ppk.2015.06.08
PDF: ppk/28/ppk2808.pdf

Streszczenie:

The current political-military situation enforces verification of existing structural and procedural arrangements relating to the functioning of Polish defense system. According to a number of conceptual documents (including National Security Strategy of 2014) the system consists of two kinds of subsystems: the controlling and the executive. The latter kind of subsystems includes operational and supporting sorts. The Polish Armed Forces (PAF) are the key element of the national defence system and are subject to civilian supervision of the democratic authorities. With regard to this kind of supervision there are two primary (fundamental) notions that deserve particular attention: headship and control. Both forms of supervision are reserved for civilian authorities during peacetime, respectively for the President of Poland and the Minister of National Defence. During the war time, the Council of Ministers gains greater importance in controlling the state defence. In this context, the category that invariably remains in the PAF domain is command understood as a specific form of control. Noteworthy, however, is the fact that the war-time PAF command structure, considering existing legal regulations, does not seem fully optimized. Therefore the reform of PAF control and command system, initiated in 2014, requires continuation and completion.

headship control command Polish Armed Forces (PAF) president Minister of National Defence (MoND)

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