Democracy and its Deficit in the European Union

Searching for a way to eliminate a „deficit in democracy” in the European Union is at the same time searching for the final political shape of the EU (finalité politique) and also for a way to legitimize the EU itself and its institutions as well. However, all action must be taken after some consideration and its is worth to follow the „Monnet method”, which advocates evolutionary change, rather than a revolutionary one. Democracy in the EU must be multilevel and must mirror the EU itself in that respect; it and needs to incorporate both direct participation of the EU citizens, as well as an active role of the bodies formed in general elections: the European Parliament and the national parliaments of the Member States. There is a vital need for a compromise that shall allocate the appropriate places for all of the participants in the „European game”.

Monarchy by the Will of Nation: the Legitimacy, Abolishment,  Restoration and Adjustment of  the Monarchical System by means  of a Referendum in the Contemporary Political Practice (1944–2011)

Subject matter of this article draws our attention to cases of using the democratic institutions in a monarchical system, especially – referendum. It is worth a closer look at the role played by referendum in the history of monarchical system of government. The article presents a broad research material. The study material covers the period from the end of World War II because of the enormous importance of this global conflict for the history of constitutionalism. An exception was made for events in Iceland. A referendum was held there in 1944. Although the war lasted, the result had a decisive influence on the form of the state in the postwar period. All other referendums described in the article took place after the war. During this period, 22 referendums related to the monarchy were held. In some countries for two (Maldives, Sikkim), and even three times (Greece). The presented research material has prompted the author to ask several questions: „what were the main factors that determined the success or failure of referendums on the removal or restoration of the monarchy”, „Has a referendum in the monarchy completely different or the same function as in the republics: „If traditional classification of referendums include those held in monarchies or they require a broadending of separate categories”. The author gives answers to these questions.

The Principle of the Republican Form of Government and the Principle  of the Common Good in the Basic Law of the Federal Republic of Germany and in German Legal Science – Selected Issues

The author describes two constitutional principles – a principle of republic form of government and a principle of common good according to Basic Law of the Federal Republic of Germany (FRG) and German constitutionalists. In the general and common meaning, republican state is an opposite of a monarchy order, which also excludes any forms of autocracy and all the more totalitarianism. In fact, many German scholars underline the ancient roots of republicanism as described by Aristotle or Cicero and its material and not only formal sense. According to them – a state as res publica is a commonwealth in which all citizens have its part, every authority has an obligation to serve citizens but also every citizen is obliged to act for the common good of others. Unfortunately, the Basic Law of FRG does not contain many provisions on these issues. The republic form of the government in Germany results from article 20 par. 1, article 28 par. 1 in conjunction with article 79 par. 3 of Basic Law (eternity clause). It is very often underlined that the essence of republicanism is fundamental rights – in other words – a true republic is a system of freedom. Also other, similar terms as common welfare, common good and good of the people mentioned only in four provisions of the Basic Law – article 14 par. 2, ar- ticle 56 in conjunction with art. 64 par. 2 and article 87e par. 4 are simply not defined. Some scholars are of an opinion, that that was intentional. Common welfare is an idea, which has meta-legal, and non-state character and which is even beyond the constitution. On the other hand it just cannot be described precisely, because in every concrete case some other definition has to be elaborated by the legislators, executive and the judiciary.

The British Monarch and the Safeguards of the Constitution

Under unwritten constitution, part of which are constitutional conventions courts are unable to guarantee obedience to constitutional rules and values. In United Kingdom it is therefore the monarch who stands as a custodian of the constitution. Royal prerogatives that are normally exercised only on advice of responsible ministers can be used to protect constitution. The most important are so-called reserve powers to dismiss prime minister and other ministers, to dissolve parliament and to give royal assent. The Monarch is able to successfully perform this function despite the want of democratic legitimacy but he should always be cautious and act only if he is perfectly positive that his intervention is absolutely necessary. He would therefore be entitled to intervene only in a dire emergency if political actors stood against the fundamental rules of parliamentary democracy, responsible government and sovereignty of the people.

Individual Parliamentary Responsibility of the Members  of Government in the Constitution of the Republic of Poland

In the article there is presented the issue of the individual parliamentary responsibility of members of the government in Polish Constitution from 2nd April 1997. After a few historical remarks there was established the circle of entities which the title issues concerned. Next there was analyzed the mode of passing a motion of censure against the members of the government, highlighting its differences from the procedure motion of censure against Council of Ministers. As a side issue of discussion there was explained the resignation of member of the government, place at the disposal of the Prime Minister and the appeal on his initiative. In the course of the argument there was explained that the president has the absolute obligation to satisfy the request of Prime Minister concerning the dismissal of a member of government. To sum up the considerations there was established that the institution of the individual parliamentary responsibility of members of the government is well-form blended in the polish model of parliamentary government.

The Results of the Constitutional Tribunal Judicature with  the Deferred Clause in the Administrative Judicial Procedure

Under the Art. 190 para. 3 of the Constitution of the Republic of Poland of 1997 a judgment of the Constitutional Tribunal come into force from the day of its publication. However, the Constitutional Tribunal is able to specify another date for the loss of validity of a normative act. Such a period cannot exceed 18 months in relation to a statute or 12 months in relation to other normative act. According to the Art. 272 para. 1 of the act Proceeding before the administrative courts in connection with the Art. 190 para. 4 of the Constitution a party can demand reopening proceedings, or quashing the decision when the Constitutional Tribunal judged about the non-conformity of the act to the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued. Above mentioned legal regulations put the courts into hard situation, because the judgment of the court, which has been pronounced according to the legal act, which has been declared by the Constitutional Tribunal as unconstitutional, could, after the end of the validity, be resumed by reopen proceeding. There are contrary opinions how to solve the presented problem. Both the judicial decisions and the legal doctrine present two different positions: • the court must apply the legal provisions, which have been declared by the Constitutional Tribunal as unconstitutional, because they remain a part of the legal system, till the moment they are removed from the legal order after the period of postponement, • the court is able to refuse to apply the unconstitutional legal provisions. The text discusses different points of view on that topic as well as legal consequences of deferment of the date by the Constitutional Court on which a normative act loses its validity.

The Position of the President of the Republic of Azerbaijan  in the Country’s Political System

The article presents the constitutional position of the President of the Republic of Azerbaijan. In the article the author describes the issues: election, term, legal status, relations with parliament (Milli Majlis), government (the Cabinet of ministers), courts and prosecution, and the powers in the next cases: international, security, legislation and traditional.

The Prohibition of the Violation of the Content of Fundamental Rights  in the Basic Law of the Federal Republic of Germany of 1949

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 analysis 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 respect 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 prohibition depends on how is understood the concept of „the essence of content” of a fundamental right, which unfortunately is not uniform among the representatives of the German doctrine of constitutional law, nor the case law of the Federal Constitutional Court of the FRG and hence a crucial part of the article is the characteristic of various theories regarding this „substance” of fundamental rights.

The Constitutional Principle of Subsidiarity and the Scope of the Autonomy of Higher Education Institutions in the Modern Polish Legal Order

The subject of this article is the discussion of the basic issues concerning the principle of subsidiarity (helpfulness) and the concept of the autonomy of higher education institutions in the modern Polish legal order. While analyzing the scope of the autonomy of universities the fundamental question of the limits of such an autonomy arises. The main problem is finding the adequate proportion between the freedom of decision taking by higher education institutions and the interference of the government in the university’s activities. The object of the article is not the presentation of the detailed theory concerning the influence of the principle of helpfulness on the scope of the autonomy of higher education institutions nor the thorough analysis of the broad meaning of the concept of the principle of helpfulness and the autonomy of higher education institutions. The main aim of the author is the indication of the possibility of connection of the principle of helpfulness with the autonomy of higher education institutions. The combination of the principle of helpfulness and the regulation concerning the autonomy of higher education institutions may prove useful in the process of constituting and applying the provisions concerning higher education. What does the principle of helpfulness have in common with the autonomy of higher education institutions? The basis of the principle of helpfulness as well as the autonomy of higher education institutions is the affirmation of freedom, human subjectivity and subjectivity of human communities.

Convicts’ Right to Exercise the Freedom of Religion

Religious freedom constitutes the fundamental right of every human being. A right to freely practice a chosen religion and use religious services is also vest- ed to imprisoned people. The article undertakes discussion on a right to religious freedom and its execution in the state of imprisonment. It needs to be stressed that religious freedom of imprisoned individuals is subject to limitations due to a location in which a convict is placed. Discussions on the extent of limitations concerning the right to freedom of religion, have been conducted for a long time. Attempts to find the most effective solutions in order to solve the problem have been long undertaken in penitentiary systems practiced all over the world. This article aims to present legal regulations concerning a right to freedom of religion vested to persons placed in penitentiary institutions, as well as problems arising therefrom. The Constitution of the Republic of Poland, which vests freedom of conscience and religion to all individuals, constitutes a starting point for the dis- cussion. This article undertakes to present regulations found in other legal acts, which are related to the above mentioned concept of religious freedom.

4th Seminar of Young Researchers of Constitutional Law: Deficyt demokracji  czy legitymacji – monarchie i republiki w Europie, Kazimierz Dolny, 13–15 September 2011, report, (Joanna Uliasz)

Seminar: Modele sądowej kontroli konstytucyjności prawa, Olsztyn,  14 October 2011, report, (Joanna Juchniewicz)

The codification of the electoral law in Poland – the scope and meaning

The article describes the most important changes in electoral law brought in by The electoral code, passed in January, 5 th 2011. There are (among others): exceptions of personal polling rule, postal ballot, new rules of creating of constituencies, new regulations regarding electoral organs, election campaign and – new in Poland – single member plurality system in elections to the Senat and also – regulations regarding parity in electoral lists.

Constitutional basis for the electoral law in light of the Constitutional Polls

This article concentrates on estimates and propositions in the area of electoral law which were presented in „The Constitutional Poll”, arranged by „The Institute Of Public Affairs” in 2010 and 2011. Those propositions, reported by the Polish constitutionalists, concern the scope and detail of regulation, its form, the various principles of electoral law, especially new regulatory issues in the context of the needs of their constitutionalization. Author focuses on electoral law to the both diet of Polish parliament, the President office and the organs of self-government, incidentally analyzing the process of The Constitutional Court members’ election.

The rationality of a voter according  to Anthony Downs’s economic theory of democracy

The analyses presented are meaningful only if it is accepted that such beneficial income disparities can be achieved exclusively as a result of a limited redistribution conducted by the government. In other words, this is possible only if the values G to Y on the left-right scale of political preferences are relatively mediocre. As result, it can be stated that, from the perspective of the welfare state philosophy, a given government’s continuous attempts at balancing the income disparities are not an optimal mode of operation, and thus cannot be justified. The reason for this is the fact that there is no rational left-wing oriented spread (with the values G to Y being high) of political preferences, which would result in a dominant aversion to disparities, and which would justify such actions by the government from the economic perspective.
In addition, the concluding remarks also need to include the statement that, even though Down defines in his model the maximisation of the votes received by each party as a primary goal, while neglecting in his studies the various dimensions of the welfare policy of a democratic state under the rule of law, it can still be stated that the policy of focusing on income redistribution, aimed at aiding the less wealthy voters, is suboptimal from the analysed perspective. Therefore, a political party which includes a high level of income redistribution as a goal in its political manifesto is bound to fail during the elections. The reason for this is the concentration of the highest number of voters in the centre. For such citizens an overly high level of income redistribution would entail, as a result of the aversion to equality, a great decrease in the utility function. To be more direct, an overly high income redistribution (with the G to Y value being high) leads to a loss of votes from the centre that is far greater than the amount of votes gained from the left side of the voting stage.

The Effect of Electoral Systems on Party Systems (selected issues)

In this article author concentrates on analysis of the effect of the electoral system and its individual elements on the functioning of the political party system in several states. Obviously the electoral system could not be treated as sole determinant of the creation of the political scene, but it has the huge influence for the shape of that scene. However the choice of majority or proportional system is not only one determinant. In that last case it is impossible to omit the size of constituencies or the level of electoral threshold. Also the supplementary seats have the important role for creation of multiparty system. As the effect it is possible to say that majority systems and proportional systems with small electoral constituencies (excluding the usage of single transferable vote system) lead to the formation of bipolar political scene (two-party system or two-coalition system), while the proportional systems with large constituencies contribute to the emergence of multiparty systems.

The evolution of the criminalisation of actions aimed against elections

The elections, and their course in particular, are an immensely significant element of the society’s participation in the public life and, as such, they should be placed under the special protection of the state. This can be justified by the peculiar role of elections – that of the core of democracy. The means of protection include the penal regulations which sanction breaches of the voting rules. As a result of the analysis of the current trend in the evolution of the criminalisation of various acts aimed against voting, one may notice that those regulations are introduced in a dual manner. Initially, the actions which violate the voting rules were specified as a part of the penal legislation, however, after 1989, they are also included in the election acts.

Constitutional aspects of a hung parliament in the United Kingdom

The article points out that a hung parliament, one in which no party commands a majority in the House of Commons, raises not only political but also important constitutional questions. The latter are concerned with the proper role of the monarch in constitutional democracy as well as with ministerial responsibility which in a hung parliament needs to be accommodated both to minority and coalition governments. In a hung parliament the government formation is not straightforward and the Queen may be compelled to engage more actively in the process and even to use its reserve powers in case the prime minister defeated at the elections would not resign and ask her for a dissolution of parliament instead. In a hung parliament either minority or coalition government can be formed, though the latter has never been created until 2010. When there is no one-party majority in parliament collective ministerial responsibility has to be accommodated to the circumstances, the confidence rule when minority government was formed and unanimity as well as confidentiality rules if coalition was created.

Law-making process of British Private Members’ Bills

The article deals with the law making process of Private Members’ Bills, which are Public Bills introduced by MPs and Lords who aren’t government ministers. A minority of Private Members’ Bills become law but, by creating publicity around an issue, they may affect legislation indirectly. Private Members’ Bills can be introduced in either House and must go through the same set of stages. There are three ways of introducing Private Members’ Bills in the House of Commons: the Ballot, the Ten Minute Rule and the Presentation. Ballot Bills have the best chance of becoming law, as they get priority for the limited amount of debating time available. The names of Members applying for a Bill are drawn in a ballot held at the beginning of the parliamentary year. Ten Minute Rule Bills are often an opportunity for Members to voice an opinion on a subject or aspect of existing legislation, rather than a serious attempt to get a Bill passed. Members make speeches of no more than ten minutes outlining their position, which another Member may oppose in a similar short statement. It is a good opportunity to raise the profile of an issue and to see whether it has support among other Members. Additionally any Member may introduce a Bill by presentation. Private Members’ Bills introduced in the Lords go through the same stages as any other Public Bill. Once completed, and if an MP supports the Bill, it continues in the Commons. The discussed procedure in its current form does not ensure the effectiveness of this way of making law. Nevertheless it provides an excellent opportunity for backbenchers to gain experience and present issues that attract public attention in the forum of Parliament.

The Urgent Procedure in Theory and Practice of the Legislative Process under the Rules of the Constitution of 2nd April 1997

Legislative procedure for urgent bills constitutes a crucial prescriptive instrument that is useful to a government in parliamentary system to influence the course of legislative process. In Poland the urgent procedure was introduced by virtue of provisions of the Small Constitution 1992, as a factor that serves to prevent the lengthiness of parliamentary procedures and obstructive actions of parliamentary opposition towards government legislation program. On the basis of decisions taken by the Constitution adopted on 2nd April 1997 and as in the previous legal situation, The Council of Ministers has the exclusive right to initiate legislative proceeding as a matter of urgency. In accordance with the 123rd article, para 1 of the Constitution, urgency clause cannot be applied against tax bills, bills governing elections, draft laws regulating systems and competence of public authorities and drafts of law codes. What is more, on the basis of separate articles, budget bills are excluded from using the urgency process. The basic drawback of the urgency process in Polish political solutions is the lack of constitutional deadlines that would indicate the pace of Sejm activities concerning the urgency clause. In such a situation, the actual pace of investigation of urgent bills in the Sejm depends on the lower house’s will and its bodies. As a result, in practice of Polish parliamentary law, the urgency process is rarely applied by the Council of Ministers, particulary when the government has stable support of Sejm’s majority at its disposal. In such a case, the government may stimulate the pace of parliamentary activities concerning its bills with the use of political pressures nad with no need of using the urgency process.

Speaker of the Sejm as a person temporarily performing  the duties of the President – the constitutional dilemmas

The article concentrates on issue of legal status of Marshall of Sejm as a person executing presidential duties by the time when the president for some reasons can not hold his office. The author analyses in details binding legal rules, indicating whether they are useful or whether they are just wrong. The first part of article shows us polish constitutional tradition in presented area. It includes both pre- and post war period. In the second part we can find an analysis of constitutional rules referring to the issue of presidential substitution. The remarks in the article are based on political praxis in Poland. In many cases the author criticizes introduced legal rules. He also formulates many practical conclusions for the future.

Institution of the Cabinet Advice in the polish political system

In the article there is presented the issue of the Cabinet Advice, understood as one of forms of cooperation between the executive authorities. In the beginning there was showed the evolution of the Cabinet Advice in the Polish constitution regulations having begun since the charter of the Constitution from 1947. There was explained that even before this Constitution, in Polish political practice, meetings of the President and the government also happened, because of the need of cooperation between them. The Cabinet Advice was subjected to a detailed analysis in the contemporary Polish political regulation. On the basis of made arrangements there was taken an attempt of evaluation the functioning of the Cabinet Advice from a perspective of less than fourteen years of the validity of Polish Constitution from 2nd April 1997.

The problem of legal responsibility for electoral promises 

The responsibility for electoral promises is the fragment, segment, wider problems of responsibility for word in the public life. In democratic legal state, the state should assure citizens certainty to the statement of representatives of state organs ( the public power). The problem with “ electoral actions” is also that take part in them persons are not such representatives. Here also appears the question of the legal responsibility for words, the promises advoctae in course of electoral campaign. The subject of present study is current. The public debate focuses round meaning (and the sharpness) the words expressed by representatives of political scene. Recent tragical events in Poland (murder on political background) are proof on this, that statements policy has the larger power of dazzling than “usual” men. What is the possibility of accounts folding the electoral promises with lack their realization? The consequences are not only in civil law. This article is the attempt of multiplane analysis of problem.

Legal Aspects of Fighting Political Corruption

For years, political funding has been the subject of heated disputes and debates. The discussion on “money in politics” involves the media, lawyers and ordinary citizens as well as those who are most interested, namely the politicians themselves. The issue of transparency in financing political parties and election campaigns is subject to continuous monitoring by international organizations (UN and Council of Europe) as well as NGOs which analyze the problem of corruption in public life (Transparency International). The role of both cannot be overestimated. The paper discusses all of the above mentioned topics. Particular attention is drawn to three themes. First, the problem of how law enforcement bodies define and classify the problem of political corruption is dealt with. Second, the impact of Council of Europe recommendations on the shape of Polish law concerning the openness of political funding is discussed. Thirdly, the article covers the legal solutions adopted in Poland which concern the sources of fundraising by political parties and electoral committees, their duty to keep financial reports as well as penalties for not conforming with financial discipline rules.

The definite character of legal regulations  in judicial decisions of the Constitutional Tribunal

The subject of this paper is the definite character of legal regulations. The author has undertaken to analyze one of the most significant legal problems – the problem of proper legislation. The definite character of the law – as principle of the proper legislation – binds the legislative body in creating the law. It forces the legislature to formulate legal rules in a correct, precise and a clear way. And it is a violation of the Constitution to establish legal rules that are vague and ambiguous and that do not allow citizens to predict the legal consequences of their behaviors.

Executing the penalty of deprivation of liberty using a system of electronic monitoring versus the constitutional principle of equality under the law 

The article discusses the Execution of the Penalty of Deprivation of Liberty within a System of Electronic Monitoring Act and its draft amendment. It demonstrates its drawbacks, in particular the contravention of the principle of equality under the law, expressed in art. 32, section 1 of the Constitution of the Republic of Poland. This contravention stems from the gradual implementation of the Act, which would not apply to every convicted person in Poland at the same time. The author also questions whether the Act and its amendment will, at least partially, help to solve the problem of overpopulated Polish prisons and long delays for convicts waiting to serve their sentence. Namely, the author considers whether the Act will beget social improvements.

Basis of equality in employments – constitutional presentation 

The present article is an attempt to describe understanding the concept of equality, both in doctrine, and in the chosen previous judgments of the Constitutional Tribunal formed over a distance area of entire period of stating. In the study a date and meaning of the basis of equality, its subjective scope, the issue of the relation between the basis of equality and other chosen constitutional principles, and criteria justifying the departure from the basis of equality were clarified. The author of the article is relating deliberations concerning the basis of equality to the issue of employments and the sphere of the employment. Issues of the basis of equality were presented in the field of the labor law through examples taken from the Constitutional Tribunal rulings and on this land they were considering whether a diversifying the situation of employees wasn’t based on any and groundless criteria, and hence whether it didn’t reach the breach of the principle of equality.

The inspection of regulations extraordinary states  in Constitution Republic of Poland rules

In legislation of each democratic country of law have to be regulations concerned extraordinary situations. Very important think is the regulations don`t violate rights and civic liberties more than absolutely necessary and state use this regulations only in really extraordinary situations. Constitution Republic of Poland provided in IX chapter named “Extraordinary situations” three kinds of such situations: Marshall law, state of emergency and state of disaster. Each of this situations is also regulate by separated act. Polish regulations in this scope are generally enough secure rights and civic liberties and secure the state by danger abuse of authority.

The effect of the Strasburg standards concerning subjective scope  of boundary of freedom of speech on the polish legal system 

We could hazard statement that in Poland we deal with gradual assimilation of Strasburg standards concerning subjective scope of boundary of freedom of speech. The Constitutional Tribunal noticed in decree of 12th March, 2008 that ‘On the strength of Strasburg judicatures, also polish literature have a stab to doing efforts of compare and digest rules which decided about protection intensity of these values (repute, veneration, privacy – AB’s gloss). […] Elide from differences between decrees concerning obtaining and meaning of particular terms of necessity allowable critique of persons who perform a public function, for years in civil and criminal cases the Supreme Administrative Court and the Supreme Court consistently adopt a position on issue about wider boundary of censure on this kind of persons.’ Purpose of this text is presenting on standards concerning subjective scope of boundary of freedom of speech, established in judicatures of European Court of Human Rights and giving a short sketch of process of assimilation in Poland.

Andrzej Bisztyga, The Influence of the European Convention on Human Rights  on the Inner Legal Order of the United Kingdom, Katowice School of Economics,  Katowice 2008, pp. 376, review, (Krzysztof Urbaniak)

Paweł Kuczma, Lobbing in Poland, Dom Organizatora, Toruń 2010, pp. 267,  review, (Justyna Wasil)

National Scietnific Conference: Bosna and Herzegovina 15 years after Dayton  – the past, the present and the future, Łódź 9–10 December 2010, report,  (Anna Frankiewicz, Krzysztof Krysieniel)

International Scientific Seminar: Development of Constitutionalism in Ukraine  and Poland: history and the present time, Kiev 10 March 201, report,  (Krzysztof Eckhardt)

Special meaning of ballot for the judiciary 

Lot and ballot are alternatives forms of the election. In the ancient democracy the first possibility was more popular as better because is independent from the people’s emotions. So Aristotle and Montesquieu represent the constant view that ballot is typical for aristocracy and lot for democracy. The both incarnations of election we can find in medieval Italian city-states as Venice or Firenze, but Great French Revolution changes the democratical paradigm in the direction of victory of balloting as practical almost unique variant of election in the modern both socialist and liberal democracies. In our times lot exists in electional procedures sporadically, for example in the situation of the equal quantity of voices given for two or more candidates. In such situation the creators of law, also in Poland, accept the possibility of using lot in the character of aiding, also evidently non substantial, procedure in the modern democracy

The constitutional review in the units of federal states (selected problems)

This article presents in summary form the constitutional courts in units of selected federal states. Four examples are discussed in more detail: the United States of America, the Federal Republic of Germany, the Russian Federation and the Swiss Confederation. This article draws attention to the origin and development of constitutional adjudication in the federal units, then briefly discusses the organization and powers of constitutional courts, as well as identifies key areas of activity and grounds of the decisions/trends in the decisions. The article ends with the conclusion that the existence of constitutional judiciary at the level of the federal units is an important confirmation of their independence and a substantial guarantee of the normative character of their constitutions. Subnational constitutional courts operate too in many others federal countries.

The contradictory rule of Tribunal Court proceedings

The article regards to the problem related to the rules that constitutional proceedings based on. Firstly the author describes elements of the contradictory rule in civil law proceedings. It is mentioned that the rule consists of four components: 1) litigious of a case; 2) a plaintiff is suppose to proof their demands; 3) the rule of procedural truth predominates upon the rule of objective truth; 4) protection of individual and private interests. In this part of the analysis the investigatory rule of courts proceedings is presented as the rule that is placed in the opposition to the contradictory rule. The author describes relationship between these two basic procedural rules. In the second part of the article the author focuses on elements of the contradictory rule in Tribunal Court proceedings. He points that this procedure doesn’t have litigious character, that the rule of objective truth is the most important, and the whole procedure is concerned on protection of public interests. These elements are characteristic to court procedures based on the investigative rule. In summary the author indicates that components that are characteristic to the contradictory rule generally do not occur in Tribunal Constitutional proceedings. He finds that the investigatory rule has got basic importance in this procedure.

The access of judicial assessors to classified information

The subject of this analysis is the access of judicial assessors to classified information. The problem is shown in the context of the participation of judicial assessors – on a par with judges – in solving legal conflicts. The author also describes the legal consequences resulting from it.

Judiciary and Political Parties in Poland – selected problems

The paper discusses the role of the judiciary in relation to political parties in Poland. Primarily, it deals with the statutory right of the judiciary, i.e. the right to exercise control over political parties. The Author’s major concern is to emphasize the particular role played by the Constitutional Court whose responsibility is to control whether the rule of political pluralism is complied with. Additionally, the paper discusses the responsibilities of the Supreme Court and the District Court in Warsaw (Sąd Okręgowy w Warszawie) which maintains the register of political parties. Those responsibilities are particularly important as far as the procedure to register a political party is concerned. The text also includes a large number of relevant court decisions.

State Tribunal of the Republic of Poland in Polish political system. Chosen aspects

The article concentrates on issues of the State Tribunal in contemporary political order of the Republic of Poland. In the beginning there was explained the place of the State Tribunal in the system of separated powers. Next, applying the legal-historical method there was reconstructed its model in Polish political regulations, starting from the Constitution on 17 March 1921. Hereinafter there was made analysis of the contemporary position and competence of that State Tribunal and who can be the subject to his cognition. There was distinguished a constitutional and disciplinary responsibility, clarifying the being and premises for each of them. On the basis of made arrangements there was taken an attempt of evaluation of the contemporary constitutional regulation, formulating appropriate conclusions de lege ferenda.

Prime Minister in contemporary political systems

Accepting the separation of powers as a basis for existence of contemporary countries caused the distinction of the executive power. This article, devoted to the executive, presents in detail the model solutions of that power (monocratic; dualistic together with its branches; departmental and directorial). Most of the article is devoted to the position of the Prime Minister in contemporary political model.

Formation of constitutional institution of the Prime Minister of Poland

The basis for National Assembly work and its Constitutional Commission over the Constitution of the Republic of Poland passed on 2 April, 1997, was 7 Constitution Projects. Legal regulations included in those projects concerning the Prime Minister were the foundation for the process of forming the final Constitution regulations placing the Prime Minister. The analysis of those regulations should not be conducted without taking into consideration the solution of projects concerning the government as well as the model of executive power. Remarks concerning the government and the executive power may become reduced to general conception because that issue has already been analyzed in detail.

Preservation as proprietorship restriction of historical things. Remarks on the European Court of Human Rights decision in case of Polomscy versus the Republic of Poland from 29 March 2011

The article describes the issue of acceptable limits of interference in exercising of ownership of monuments. It indicates – following the ECHR judgment from 29 March 2011 (complaint no 33949/05) – that Polish legal order in this matter is not sufficient, because it doesn’t include procedure of expropriation (by compensation) or obligatory redemption in such situation, and it causes that all burden of historical and national heritage protection is on the owner of monument. This situation isn’t – in Author’s opinion – acceptable as contradictory to Protocol 1 to ECHR and also as unconstitutional, because it is not compliant to constitutional guarantees of ownership protection and limitating clause prescribed by art. 31 p. 1 of Constitution.

Constitutional incompatibility rule of parliamentary mandate  and assumption civil service. Selected problems

The main goals in my research is to show relation between constitutional incompatibility rule of parliamentary mandate (art. 103) and constitutional assumption of impartiality and political neutrality of civil service (art. 153). An answer for this problem required, first, to show a general regulations in scope of incompatibility rule of parliamentary mandate. It makes a base to reference this rule to solutions in scope of civil service. Incompatibility rule of parliamentary mandate constitute one of the classic political solutions in contemporary parliamentary system. As a justify for introduction the ban of connection the parliamentary mandate with having a specific position in the state apparatus and with public functions was to create an appropriate guarantees of members of parliament independent in case of hold the mandate, and first to eliminate the appear unavoidably some interests conflicts and corruption visions.

Model of the Polish prosecutor’s office in the interwar period

The article is an attempt to show the fundamental assumptions the model of the Polish prosecutor’s office of the interwar period. On account of ongoing discussions above the need of more further transformations of the institution of the prosecutor’s office in Poland, perhaps it would be useful to reach to the institutions checked in practice. The author is discussing the issue of situating the interwar prosecutor’s office amongst state agencies, principles of its organization and action , scope of its tasks and competence , finishing on the on analysis of the prosecutor’s status. The author is reaching a conclusion that in the discussed model of the prosecutor’s office is occurring a divergence between its theoretical assumptions and functioning in practice. Moreover, main assumption this model, i.e. personal union between the Minister of Justice and the Chief Prosecutor, was rejected by the Polish legislator in the recent time.

Przemysław Osóbka, The Parliament of Bosnia and Herzegovina, The Sejm  Publishing House, Warsaw 2010, pp. 44, review, (Krzysztof Krysieniel)

Jerzy Kowalski, Enactment and development of constitutional state in Poland,  University in St. Petersburg Publishing House, Saint Petersburg 2010, pp. 326,  review, (Jerzy Rychlik)

Wojciech Sokolewicz, The Press and Constitution, Wolters Kluwer business,  Warsaw 2011, pp. 276, review, (Łukasz Kojara) 

International Scientific Conference: Effectiveness of the European System  of Protection of Human Rights, Warsaw, 18–19 April 2011, report,  (Kamil Spryszak)

Scientific Conference: Should the Constitution of the Republic of Poland  be changed?, Warsaw, 29 March 2011, report, (Izabela Joanna Biśta)

3rd  Seminary of Young Researchers of Constitutional Law: Judiciary in European Countries, Waplewo, 5–7 April 2011, report, (Anna Frankiewicz)

Debate organized within the series „Czwartki na Brukselskiej”: The meaning  of the representativeness for the functioning of Social Partners Dialogue,  Warsaw, 3 March 2011, report, (Karina Całka-Lajnert)

Information concerning the end of habilitation process

Information about the Conference and Seminar

Third Candidate in Presidential election in United States of America –  candidates Ross Perot and Ralph Nader

This Article is based on two, the most famous episodes from American Parliamentarian and Presidential Election History. For 200 years in USA we have a two-party system, which caused that two major parties had played a main role in political system. During the elections (Congressional or Presidential) only two main parties were taken into consideration by electors and society. When third parties have appeared at American political scene it was also a sign for politicians that American Society were demanded changes. Third parties and their candidates were encouraged to take a part in elections and fight for large amount of American voters. Profiles of presidential candidates, Ross Perot and Ralph Nader show what kind of changes American system need.

The issue of electoral system change in Westminster democracies:  New Zealand, Canada and United Kingdom. Comparative perspective

The article attempts to present the phased structure of electoral change in New Zealand, Canada and the United Kingdom. Together the comparison of the successful alteration of the first past the post formula in 1993 in New Zealand, the wave of electoral reforms in Canada that started in 2004 in British Columbia and the British referendum on 5th May 2011, allow to distinguish 8 phases of electoral system revision: injustice of the first part the post formula suffered by one of two main parties, leading to alteration initiatives; mobilisation of public opinion; withdrawal of the reform’s initiators from the process; loss of control by the initiators over the electoral change process; creation of the appropriate body responsible for the selection of the optimal voting formula; indication by the chosen body of the optimal alternative electoral formula to the first past the post for- mula; referendum; growth of support for the first past the post system.

European Convention on Human Rights and Charter of Fundamental  Rights of European Union – compatibility or confrontation

European Convention for the Protection of Human Rights and Fundamental Freedoms enjoys good opinion of the constitutional act orders European legal space of human rights. The pearl in the Convention crown is European Court of Human Rights, which case-law creates European standards of human rights in contemporary way. Being obligatory, Lisbon Treaty and Charter of Fundamental Rights of European Union change the previous situation. Instrumentarium of the human rights protection in Europe has been enriched. However a number of questions about the relation between Convention and Charter arise and the relation between European Court of Human Rights and Court of Justice of European Union as well as the case-law of both European courts. Are the relations going to be complementary or use confrontation?

The Constitutional Position of the Speaker of the Swedish Parliament

The position of the talman – the Speaker of the Swedish parliament is quite specific in comparison to his/her counterparts in other states, which have adapted parliamentary system. This is primarily because of a wide range of competencies assigned to talman. Apart from traditional functions of a Speaker concerning the organisation, operation, work and representation of the parliament, Swedish talman holds responsibilities which are traditionally performed by the head of state – a president or a monarch, like nominating the prime minister and the ministers. In the hierarchy of state bodies the Speaker of the Riksdag is now the highest position for which a Swedish citizen can be elected. This high position has been established by constitutional reforms from the 60s and 70s of the last century which introduced unicameral system and resulted in adopting the new constitution.

Constitutional right to environmental information  on the background of international standards

Information about the environment and activities affecting the state for many years were not made public. That situation has changed what was related to the implementation of the principle of openness. Currently, access to information on environmental protection and more often he is placed on an equal footing with other human rights. Permanent progress in this direction is visible both at national and international level. In this first crucial plays the Constitution, and strictly article 74 paragraph 3. In the latter, the obligations under international agreements (Aarhus Convention) and with EU law (Directive 2003/4/EC). The analysis shows that plane, that the commitments that occur on its background overlap (This is about the Aarhus Convention and Directive 2003/4/EC). There is no doubt raised as one of the primary purposes of the adoption by the Europe- an Parliament and Council Directive 2003/4/EC of the European Union was to adapt EU legislation to the Convention. Having regard to these acts can say that they are confirmation of the principle of openness, which is one of the instru- ments for environmental protection. The cause of their realization of the right to environmental information is becoming increasingly effective because their provisions provide for taking appropriate measures for implementing this law.

„Państwo Prawne”, No. 1 (1), czerwiec 2011 r., Law Journal of Chodkowska  University, pp. 254, review, (Andrzej Bisztyga)

„Reality of Politics. Estimates, comments, forecasts”, No. 1, 2010, Journal of  Institute for Political and European Studies of University of Szczecin, pp. 271, review,  (Sabina Grabowska, Katarzyna Zielińska)

O. W. Skripniuk, Konstytucijne prawo Ukrainy. Akademicznyj kurs. In Jure,  Kijów 2010, pp. 670, review, (Bogusław Banaszak)

Artur Ławniczak, Istota władzy państwowej i jej formy, Nortom, Wrocław 2010,  pp. 304, review, (Krystyna Michniewicz-Wanik)

Przemysław Osóbka, System konstytucyjny Bośni i Hercegowiny, Wydawnictwo  Sejmowe, Warszawa 2011, pp. 76, review, (Krzysztof Krysieniel)

The 53rd Convention of Constitutional Law Faculties on the subject: The Changes in the Current Parliamentary Systems, Józefów, 9–11 June 2011, report,  (Joanna Juchniewicz, Przemysław Mijal)

Scientific Conference: Codification of the Structure of the Judicial System, Warsaw,  17 June 2011, report, (Paweł Halabowski)

Legal status of a disabled voter

The Election Code passed on 5 January 2011 contains comprehensive regulation on the legal status of a disabled voter. For the first time the term of a disabled voter has been defined in Polish law. The Election Code provides for a variety of ways to cast a ballot by such voters. They can vote in person by ballot paper at a polling station on election day. They may, upon request, be assisted in voting by another person who is not a member of a ward electoral commission or a poll observer authorized by the candidates. The disabled and elderly (over 75 years) voters have the possibility to cast their ballots by proxy. A recent amendment of the Election Code provides for the disabled voters the right to cast a vote by postal ballot. The main goal of this article is the analysis of those new legal regulations and the assessment of the practice of their application during the 9 October 2011 parliamentary elections.