prawa podstawowe

  • Freedom of Speech in the Federal Constitution of Brazil and the Problem of its Collision with other Fundamental Rights, particularly personality rights

    Author: Ilton Robl Filho
    Institution: Federal University of Paraná
    Author: Ingo Wolfgang Sarlet
    Institution: Federal University of Paraná
    Year of publication: 2016
    Source: Show
    Pages: 133-163
    DOI Address: https://doi.org/10.15804/ppk.2016.06.07
    PDF: ppk/34/ppk3407.pdf

    The fundamental right to freedom of speech is a central element of the rule of law in a democratic state that constantly collides with other fundamental rights. Both in court decisions and in legal literature there is a significant discussion on the limits of the freedom of speech, mainly concerning its collision with other fundamental rights, particularly personality rights. This debate has become very strong in Brazilian constitutional case law, mainly in the Federal Supreme Court (Supremo Tribunal Federal), but also in other constitutional systems and even in the domain of international law. Based on the decisions of the Brazilian Supreme Court and those of the US Supreme Court and the Federal Constitutional Court of Germany, this paper aims to discuss some criteria that may guide Courts when balancing freedom of speech and other fundamental rights.

  • Zakaz naruszania istoty treści praw podstawowych w Ustawie Zasadniczej Republiki Federalnej Niemiec z 1949 r

    Author: Agata Niżnik-Mucha
    Institution: Uniwersytet Jagielloński
    Year of publication: 2011
    Source: Show
    Pages: 153-182
    DOI Address: https://doi.org/10.15804/ppk.2011.04.08
    PDF: ppk/08/ppk808.pdf

    The article is an attempt to a comprehensive characteristic of prohibition of violations concerning a substance of fundamental rights. The prohibition is one of the conditions limiting the admissibility of such rights, as formulated in Article 19 paragraph 2 FRG Basic Law of 1949. The starting point for this analy- sis is to present the genesis of the wording of this prohibition in the constitution and to set out its functions. Another important issue taken into account in the article is to discuss the relation which exists between the prohibition of violations concerning the substance of fundamental rights and the principle of re- spect and protection of human dignity as enshrined in Article 1 paragraph 1 BL and also a relation between the prohibition of violations of fundamental rights and the provision of Article 79 paragraph 3 BL introducing „provisions relatively unchanged”. The concept of the inviolability of fundamental rights being based on the assumption that within each fundamental right it is possible to extract certain basic elements – the essence (core – the essence of the content), with- out which it could not exist and a number of additional elements – „a milieu”. While „the milieu” of a fundamental right may be a subject of interference by the legislature so far never – under any circumstances it cannot be the content of the essence of a fundamental right. The actual normative content of the prohi- bition depends on how is understood the concept of „the essence of content” of a fundamental right, which unfortunately is not uniform among the represent- atives of the German doctrine of constitutional law, nor the case law of the Fed- eral Constitutional Court of the FRG and hence a crucial part of the article is the characteristic of various theories regarding this „substance” of fundamen- tal rights.

  • The Proposal to Create the European Union Mechanism to Monitor Democracy, the Rule of Law and Fundamental Rights, and the Council of Europe Reaction

    Author: Kamil Spryszak
    E-mail: k.spryszak@onet.pl
    Institution: Jan Kochanowski University in Kielce
    ORCID: https://orcid.org/0000-0002-3318-3742
    Year of publication: 2020
    Source: Show
    Pages: 475-486
    DOI Address: https://doi.org/10.15804/ppk.2020.06.38
    PDF: ppk/58/ppk5838.pdf

    The rule of law is one of the founding values of the EU, as indicated in Art. 2 TEU. This provision recognizes that the rule of law is a core value, inherent to liberal democracy, and one which characterized the Union and its Member States. Taking into account this context, as well as the deficiencies of the EU mechanism to enforce the rule of law within the Member States, European Parliament called on the Commission to establish a new tool to address rule of law backsliding in Member States. In October 2016, Parliament addressed recommendations to the Commission on the establishment of EU mechanism on democracy, the rule of law, and fundamental rights (EU pact for DRF) in the form of an international agreement. The new mechanism should integrate and complement the existing mechanism, should be evidence-based, objective, addressing the Member States and EU. The author analyzes this initiative and tries to answer why it was not fully realized. Additionally, he presents a reaction to that initiative of the Council of Europe. There is no doubt, that realization of the EU Pact for DRF would inf luence the Council of Europe and weaken its role as a main European mechanism in the area of protection of democracy, rule of law, and human rights.

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