zasada proporcjonalności

  • Relacja zasad ograniczania wolności i praw człowieka i obywatela w stanach nadzwyczajnych i w stanie normalnego funkcjonowania państwa

    Author: Anna Surówka
    Institution: Uniwersytet Ekonomiczny w Krakowie
    Year of publication: 2014
    Source: Show
    Pages: 131-156
    DOI Address: https://doi.org/10.15804/ppk.2014.04.07
    PDF: ppk/20/ppk2007.pdf

    The issue of permissibility of limitation of the freedoms and rights of persons and citizens in extraordinary measures causes a lot of problems. They are consequence the imposition two different regulations relative the limitations: the general regulation appearing from article 31 paragraph 3 Constitution and the special regulation including in the Chapter XI Constitution concerning exclusively the extraordinary measures. The answer for the question, when and in which circumstances it shall adapt the special rules concerning the limitation of the freedoms and rights in extraordinary measures and when the general regulations appears from article 31 paragraph 3 Constitution, depends on a few matters. Firstly, it depends on the type of introducing extraordinary measure.Secondly, it depends on the type of the freedom or right, which it have to be limited. The next problem, it is the method of interpretation and applying the rules concerning the limitations. In this area, the rule of proportionality in interpretation of the Constitutional Tribunal is of great importance.

  • Human Dignity in the European Perspective and the Proportionality Principle

    Author: Monika Forejtová
    Institution: University of West Bohemia
    Year of publication: 2016
    Source: Show
    Pages: 192–208
    DOI Address: https://doi.org/10.15804/athena.2016.52.11
    PDF: apsp/52/apsp5211.pdf

    The fundamental human right to dignity is the cornerstone of European legal culture. The right has been provided for in international, European, and national legal instruments. Its role as a benchmark reference for all other human rights has developed into a self-standing and self-executing right, especially under the new EU Charter of Fundamental Rights. This evolution from the traditional role of the right to dignity is analysed in case study based on a real case before the Constitutional Court of the Czech Republic in 2015. The analysis brings forward a reflection about the need to respect the concept of dignity and how it actually is observed in the European context.

  • Krytyka struktury oraz zastosowania konstytucyjnej zasady proporcjonalności

    Author: Magdalena Latacz
    E-mail: magdalenalatacz@gmail.com
    Institution: Uniwersytet Jagielloński
    ORCID: https://orcid.org/0000-0003-3265-8387
    Year of publication: 2019
    Source: Show
    Pages: 91-111
    DOI Address: https://doi.org/10.15804/ppk.2019.01.05
    PDF: ppk/47/ppk4705.pdf

    The proportionality principle, both in the jurisprudential practice of constitutional courts and in the literature, is considered as the basic criterion for the assessment of the state’s activities in terms of its compliance with a constitution. However, this does not change the fact that part of the doctrine for various reasons considers the test of proportionality to be an imperfect tool, thus raising critical remarks both towards the (theoretical) construction of the principle of proportionality, as well as the practice of its application being flawed.

  • Human Freedom in the Constitution of the Republic of Poland

    Author: Marek Chmaj
    E-mail: marek@chmaj.pl
    Institution: Uniwersytet Humanistycznospołeczny
    ORCID: https://orcid.org/0000-0001-5779-1016
    Year of publication: 2019
    Source: Show
    Pages: 187-199
    DOI Address: https://doi.org/10.15804/ppk.2019.05.13
    PDF: ppk/51/ppk5113.pdf

    The term “freedom” comes from the Latin language and is derived from the words lib- er – free, independent and libertas – freedom. In general, freedom means no coercion and the ability to act according to your own will, which also means making choices under all available options. Freedom appears both in the preamble and in many pro- visions of the Polish Constitution. Of the greatest significance is Article 31, which in- dicates that “Human freedom is subject to legal protection” (paragraph 1) and that “Everyone is obliged to respect the freedoms and rights of others. No one shall be com- pelled to do what he is not required by law” (paragraph 2). After these guarantees, the principle of proportionality – is included in paragraph 3 – indicating on the basis of which premises and criteria restrictions of freedoms and rights may be introduced. This provision implies three specific, detailed rules regarding the restriction of liber- ty: a) the principle of the exclusivity of the law; b) the principle of proportionality and c) the principle of preserving the essence of freedom and rights. The constitutional leg- islator has formulated in Art. 31 par. 3 also a closed catalog of limitation clauses that allow the restriction of freedom and human rights. These are the following premises: a) the premise regarding state security and public order; b) the premise regarding en- vironmental protection; c) the premise regarding the protection of public health and morals and d) the premise regarding the freedoms and rights of others. The scope of freedom regulated by Art. 31 is universal because it applies to all freedoms and rights that are guaranteed in the Constitution.

  • Article 35 Section 2 of the Act on the Local Referendum in the Light of the Constitutional Principle of Proportionality

    Author: Łukasz Buczkowski
    E-mail: lbuczkowski@pwsip.edu.pl
    Institution: Łomża State University of Applied Sciences
    ORCID: https://orcid.org/0000-0002-0147-4721
    Year of publication: 2020
    Source: Show
    Pages: 61-74
    DOI Address: https://doi.org/10.15804/ppk.2020.05.04
    PDF: ppk/57/ppk5704.pdf

    The subject of the article is the analysis of the provisions of the Art. 35 (2) of the Act on Local Referendum against the background of the Art. 31 (3) of the Constitution of the Republic of Poland, creating the conditions for admissibility of formulating restrictions on the use of constitutionally specified provisions the rights and freedoms of the individual. The aim of the study is to determine whether the statutory regulation under review remains compliant with the constitutional principle of proportionality regarding the citizen’s right to a court. The main thesis is that the disposition of the Art. 35 (2) of the Local Referendum Act does not infringe the individual’s rights related to the pursuit of claims related to unreliable referendum campaigns.

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