Law as the center of life. Historical and philosophical remarks against the background of changes in constitutionalism

The main purpose of the article is to analyze the conception of constitution emerging from the ancient, early modern and modern political philosophy. On the ground of the so called constitutionalism, polis can be seen as the first holistic vision of the public sphere. It can be said that the idea of polis constitutes ethical relationship be tween the citizen and the state. The paper attempts to examine constitutional thought in a historical perspective and to penetrate the structure of the fundamental premises and theses of the modern concepts of constitution and constitutionalism, in the con text of the idea and the ethical philosophy of polis. The main thesis is that the idea of constitution (in broad sense) is derived from natural law categories, and there is an essential connection between the idea of constitution and the autonomy of citizens and their rights. In the post-enlightenment era we attach too much hope to the writ ten constitution, whereas the most important are public virtues and common values. The deliberative model of the state and the soul of politea – polis is much more import ant than written law and written constitution. It can be assumed that the authority of modern constitution (and the role of modern constitutionalism) depends on our abil ity to re-discover the values (the soul) of polis.

Judicial Activity of the Constitutional Tribunal and the Secondary Unconstitutionality of Law

In this article, on the one hand the subject of consideration will be the reasons of coming into being the secondary unconstitutionality as a consequence of entry into force a judgment of the Constitutional Tribunal. In the abovementioned context, we should first take into account the principle of accusatorial procedure, which may lead to merely piecemeal elimination of unconstitutionality. In turn, it may effect coming into being more negative consequences than being into force unconstitutional provision. Secondly, it seems that the type of judgment of the Constitutional Tribunal, which is the basis for classifying the norm as secondary unconstitutional, is of considerable importance. On the other hand, possibilities of prevention the secondary unconstitutionality by the Tribunal will be analysed. The question is, whether the Tribunal is able to mitigate the consequences of the principle of accusatorial procedure, particularly whether it is able to modify the scope of the challenged provisions. Regardless of this, judiciary instruments, which enable to form the consequences of the judgment of the Constitutional Tribunal flexibly, seem to be more effective as measures to prevent secondary unconstitutionality. It is worth noting that some of this measures taken by the Tribunal are questioned in the literature.

The Institutional Sources of Cabinet Duration in Central and Eastern Europe

The article is devoted to the analysis of sources of durability of cabinet in selected countries of Central and Eastern Europe. The author focused on those factors that in the transforming states of the region cause the cabinet to remain in office and stable governance. A few interesting aspects were chosen to illustrate the problem of minority government in these countries. The main thesis is that governments in the transforming Central and Eastern Europe with the support of a parliamentary majority last longer than minority cabinets, and this is mainly influenced by the concentration of political power rather than by dispersion.

Unpublished study by Georges Langrod: Comments on the problem of government administration and self-government administration in Poland

Constitutional issues constituted an important sector conducted by the Polish Socialist Party election campaign for Parliament in 1947. Socialists turned to specialists to analyze specific topics. Professor G. Langrod sent a study entitled: Remarks on the problem of government and self-government administration in Poland, in which he answers the following questions: what is the role of self-government in administration, what is the position of national councils in local government and government administration according to the legislation in force, what is the role of the administrative judiciary for the self-government, what are the conclusions for the reform? This study was over 70 years of ad acta. Its edition is needed. It is not known to the literature or judicature, although it contains many general thoughts, having a historical and comparative foundation; timeless thoughts, retaining current. Everyone who deals with constitutional law and administrative law should read it.

Criticism of the structure and application of the constitutional principle of proportionality

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.

Polityczna odpowiedzialność ministrów w Grecji i we Włoszech

The paper briefly reviews what is encompassed in the term ministerial responsibility in Italian and Hellenic constitutional system. In this respect, the paper seeks to define the key concept of political ministerial responsibility, and also the distinction between collective and individual ministerial responsibility in the frame of the Hellenic and Italian parliamentary system. It then presents an overview of the substantive and procedural rules on such responsibility found in the Constitution of Greece, Constitution of Italy, Hellenic Parliament’s Standing Orders, Italian Parliament’s Order. This is followed by an assessment of basic concerns related to the actual application of the institution of ministerial responsibility. In conclusion, the paper presents some normative reflections on the issue.

Legalism or opportunism? – the analysis of constitutional responsibility proceedings

The following article discusses the constitutional responsibility proceedings, mainly concentrating on its legalistic or opportunistic character. The author thinks that signalled problem has got fundamental meaning, because its solution may have impact on the interpretations of the other rules. Because of that the author stars his deliberations on the theoretical analysis of the structures of legalism and opportunism. Bearing in mind the aforementioned observations, author of the article prospect for those elements in the Constitution and Tribunal of State’s main bill.

Constitutionality of Ten Commandments displays in the public space in the light of the U.S. case law

The article presents – based on the study of the U.S. case law – the issue of the legality of Ten Commandments displays on government property. Federal and state courts do not agree on the constitutionality of Decalogue displays in a public space. The given case law is characterized by incoherence, casuistry and nuance. The issuing of divergent decisions by the courts in analogous cases is primarily a consequence of the lack of consensus in the judicature regarding the understanding of the constitutional principle of the separation of church and state. The author shares the stand of these American courts, which, while assessing the consistency of Ten Commandments displays on public property with the requirement of religious neutrality of public authorities, take into account the fact that the Decalogue has not only a religious dimension but also a historical and cultural ones. Since the Ten Commandments played an important role in shaping the American legal and social order, its contemporary presentation in public space does not necessarily serve confessional or proselytic purposes, but constitutionally accepted educational goals. It is crucial in the judicial operationalization of the Establishment Clause to make a distinction between the permissible “recognition” of the religion’s significance in the lives of Americans and in the history of the Nation and the State on the one hand and the unconstitutional “advancement” of religion by the pubic authorities on the other hand.

Freedom of conscience and religion as “constitutional essentials” in the rulings of the Polish Constitutional Tribunal

In the paper I put forward a thesis that it is possible to distinguish two different ways of understanding Rawls’ constitutional essentials – universal and particularistic. The aim of the article is to provide an answer to the question whether there exists such a form of particularistic interpretation that does not compromise its coexistence with the universal interpretation. The answer is based on an analysis of the understanding of freedom of conscience and religion contained in the judgments of the Polish Constitutional Tribunal. Two forms of particularistic interpretation may be identified. The first strengthens the position of minorities, while the second of the majority. The first form may coexist with the universalist constitutional essentials, provided that it eliminates the actual existing inequalities, whereas particularistic interpretation of constitutional essentials is acceptable when it allows for a better implementation of the idea of autonomy.

Safety as a human right – collective aspect  in statement with individual aspect

Safety is widely understood as a natural human right and has numerous guarantees in international legal acts and in the Constitution of the Republic of Poland. As a concept, it has a wide range and many aspects, which makes it difficult to clearly define. Its range includes diverse spheres of individual and social life. In the era of intense interpenetration of private and public life, safety in the individual dimension clashes with its collective aspect. Both public safety and private security are not absolute goods, and the Constitution provides possibility of limiting them. The purpose of the article is whether and to what extent the entity’s ability to use the right to security is affected by restrictions on the use of freedom and constitutional rights, including private security, as provided in art. 31 para. 3 of the Constitution of the Republic of Poland for protection, among others public safety and public order.

Constitutional right of a Polish citizen for diplomatic and consular protection – a few remarks in the light of art. 36 of the Polish Constitution

The Constitution of the Republic of Poland provides for Polish citizens the right to diplomatic and consular protection, which may be implemented during their stay abroad. The article draws attention to the need to interpret the provision of the Constitution of the Republic of Poland, taking into account the regulations of international law. It also formulates the thesis that the current international relations of a political or economic nature have a significant influence on the manner of applying the discussed law. The rest of the article discusses the subject matter of art. 36 of the Constitution of the Republic of Poland and associates the right to care abroad with the institution of citizenship. The issues of the so-called abandonment of the citizen and the possibility of taking care of people who do not have Polish citizenship. The last part of the study is devoted to the issue of the content of the right to care. Attention was drawn to the indefinability of the concepts of diplomatic care and consular protection. What is also important there is the practical aspect, consisting in the virtually unlimited right of the state to represent its citizen abroad.

The Kingdom of the Dragon. The political system of Bhutan after 2008 – an outline of the problem

Bhutan is very rarely the subject of research and in-depth analysis, which is caused by the small size of the state and the lack of a significant role in the international arena. Few bibliographic positions, in particular in the field of legal and political science, enforces basing primarily on sources such as legal acts and information from official websites. Therefore, the aim of the article is to outline the political system of Bhutan and individual constitutional solutions, as well as an attempt to compare the political system existing before the implementation of the Constitution of the Kingdom of Bhutan in 2008 with the current one. The method used is an independent analysis of the content of constitutional provisions and the comparative method. The article introduces the principles of the tri-division of power introduced in Bhutan, shows the specificity of the political system and the individual differences between the absolute monarchy and the constitutional monarchy.

Outline of international legal regulations concerning bar associations

In the modern democratic states the independent bar associations are an important guarantee of an effective right to legal aid, which is in turn an important element of the right to fair trial. In the multicentric legal system of modern democratic countries, not only constitutional norms, but also international regulations are the source of proper standards regarding the features of these self-governments. The aim of this study is to present these regulations synthetically in the universal system of the United Nations and in the European systems of the Council of Europe and the European Union.

Constitutional conditions of the agricultural system in Poland

The article analyzes concepts for shaping the agricultural system originating from the Constitution of the Republic of Poland. The concept of an agricultural holding and the agricultural system in the light of the jurisprudence of the Constitutional Tribunal and the doctrine of law were analyzed and systematized. The next part of the article discuss mechanisms for supporting by the government the basic unit of the agricultural system, which is a family farm. In the last part of the article the issues concerning the right of inheritance of farms were analyzed

Independence of territorial self-government units in a federal state  on the example of the Republic of Austria in the constitutional dimension

The assessment of the degree of independence of local self-government units is one of the basic parameters defining the state from the point of view of the territorial system. In federal states such as Austria, the ambitions of federal entities in the field of imperium may cause limitation of independence of local self-government units, which underlines the importance of constitutional guarantees. The constitution of the considered federation establishes the principle of independence, however, when establishing its limits, it clearly indicates that independence is determined not only by (fairly extensive and meticulous) federal regulations, but also, and perhaps even above all, by regulations of federal entities. Thus, the Austrian Federal Constitutional Law does not prejudge the subject matter of this principle and thus the final picture of the decentralization of this state, considered through the prism of local self-government.

Voting by a proxy in the municipal elections – the rules and manner of granting the proxy and the legal nature thereof

The aim of the article is to analyse and to evaluate the Election Code provisions in the aspect of implementing the recommendations of the Council of Europe formulated in the Code of good practices of electoral matters and to attempt to determine the legal nature of the power of attorney for voting institution. The possibility to vote in the elections by a proxy is an exception from the principle of voting in person. For a particular group of voters it is often the only possibility to participate in the elections. Proxy voting implements the principle of universal suffrage; simultaneously, however, it poses a threat to the correctness of the election process. For this reason, in accordance with the recommendations of the Council of Europe, the admissibility of a proxy voting must be subject to precise legal regulation. It is important that this institution should never become an instrument for influencing the election result easily. In the event of the local government elections, it is particularly important as single votes may decide on its result.

The criminal background of the candidates in the mayor’s elections

General local elections, including the elections of the mayors’, are very important for the local democracy. In Poland, Electoral Code regulates the requirements for the candidates for this office. One of them is not being convicted. This requirement has changed over the years and it causes legal and practical problems. The Author analyzes legal solutions in this aspect and tries to find the answer, if the applicable rules are optimal.

Local referendum as a form of consultation on changing the boundaries of municipalities (on the example of Suprasl Municipality)

The article is devoted to the presentation of remarks on the relationship between the obligation of prior consultations with residents of the issue of the act of the Council of Ministers regarding the creation, merger, division and abolition of the municipality and a possible local referendum in the case. The article focuses on selected aspects of this relationship, which will allow answering a few questions and research problems, such as: what conclusions can be drawn from the legislative path of this particular statutory regulation?; what is the difference in the territorial range of consultations with residents and the local referendum, and who actually gives opinion to the Council of Ministers before issuing the regulation?; whether statutory regulations on this subject are possible and whether the municipal council’s resolution has single or multiple applications?; finally, whether the expressed opinion is binding on the Council of Ministers?

Implementation of the European Charter of Local Self-government – a few Notes on the margins of the Constitutional case law

The European Territorial Self-Government Charter (Charter) was ratified by the President of the Republic of Poland on November 22, 1993 and entered into force on March 1, 1994, being one of the first sources of harmonization of EU Member States’ legislation in matters of local self-government and its units. The observance of the provisions of the Charter by its signatories is supervised by the Congress of Local and Regional Authorities, through systematic monitoring and regular dialogue with the governments of the member states of the Council of Europe. The delegation of the Congress conducted a monitoring visit in Poland on 5–7 June 2018. The draft report and recommendations in the form of a report are to be published in March 2019. The aim of the article is to analyze how the Polish authorities referred to the weaknesses identified during the previous monitoring visit, which took place in 2015. Importantly, these problems were also reflected in cases referred to the Polish Constitutional Court. It should also be noted, that although in most cases, the provisions of the Charter did not constitute a standard of control (they were not indicated by the initiator of the Tribunal’s proceedings or the proceedings in this scope were discontinued), the provisions of the constitution guarantee (if indicated in the petition of the complaint or motion) issuing a judgment consistent with the spirit of the Card.

On the need to reflect on the issue of electoral rights for incapacitated persons

The aim of the article is to analyze critically the institution of incapacitation under Polish law, in the light of its impact on the exclusion of electoral rights of people affected by intellectual disability and mental disorders, in relation to whom Art. 13 and 16 of the Civil Code have been applied. The automatic relationship between incapacitation of a person and the deprivation of his/her right to participate in the election, sanctioned in Art. 62 of the Constitution, shows the contradiction with the international standards to protect the rights of persons with disabilities, expressed in the agreements ratified by Poland and the case law of the ECHR, and it also stands in opposition to the demands expressed by international organizations that uphold individual rights.

Good administration as a „watch-glass” for Art. 12  of Universal Declaration of Human Rights

As the European Code of Good Administrative Behavior states, good administration creates one of the basic human rights and creates specific ethical standards that have been regulated in ECGA and come from, among others, the case law of the Court of Justice of the European Union. The right to good administration is a specific principle of European Union law, guaranteed by Article 41 of the Charter of Fundamental Rights, and the right to protection of personal data is one of its elements (along with, among others, the right to hear and the right to impartial and fair trial). The aim of the article is to discuss the issue of the right to privacy contained in Article 12 of the UDHR, also in the context of personal data protection, but narrowed to the perspective of the right of an individual to good administration. Since the protection of personal data is not an independent/ self-existing creation, it is strictly related to the human right to privacy, therefore the article touches these two spaces.

Constitutional courts in post-Soviet states. A comparative analysis. Part I

Article discusses the problem of constitutional judiciary in post-Soviet states. The author formulates a thesis that constitutional courts in post-Soviet states were supposed to create proper conditions for the primacy of the constitution in the system of normative acts and its direct effect on legal relations taking place in the state. It was expected to guarantee the freedom and rights of an individual. The radiation of the constitution onto the whole of legal, political, economic or social relations occurring in the state promotes the stability of the state’s political system, the protection of values important for the citizens. The author formulates a thesis that to make it happen, proper political conditions are necessary and within them – the control of the new normative acts in the context of their compatibility with the laws of higher legal force, including above all the constitution. The text consists of two parts. The first part concerns reasons for introducing the control of legal norms and the position of constitutional courts in the political systems of post-Soviet states. In the part II of the text are analyzed functions of constitutional courts, political influence of constitutional courts. The second part of the text also include the conclusions.

The Curse, Death and the Maiden. On public financing of performative arts

This text concerns the reflection on the need to distinguish the function of determining the limits of artistic creativity and expression, and the patronage and organization of cultural life financed from public funds. He discusses Polish regulations concerning the influence of public authorities as organizers of cultural life on artistic creation in the field of performing arts and indicates the deficits and the need for clearer indication and application of substantive criteria in decisions about financing and managing artistic life, regarding limits of artistic expression.

The legal position of the Chief of the Chancellery of the President of Poland

The article presents the legal position of the Chief of the Chancellery of the President of Poland. The President has an influence on shaping the closest surroundings (selection of the Chief is the sovereign decision of the President). The Chief manages the work of the Presidential Chancellery, represents it and stands at its head. The strong position of the Chief should be emphasized. The purpose of this study was to investigate the legal position of Chief as defined by the Constitution and the Statute of the Presidential Chancellery.

Monitoring system vs the right to privacy

The author discusses the issue of finding a balance between monitoring that works both in public and private space as an element of ensuring the security of citizens, and violating their right to privacy guaranteed in the constitution. It is a matter of dispute enough that disputes persist in many environments, to the extent that the use of monitoring complies with legal and ethical standards and serves to ensure the security of citizens. The boundary between security protection and the right to privacy is also important. The author points out that there is still no law on video monitoring, despite work on its content for over 5 years. It shows how widely used monitoring is and how it affects the right to privacy. The main thesis was assumption that access to modern technologies and information techniques significantly changed the perception of human rights and the use of monitoring in the context of, in particular, the right to privacy – significantly limiting them. The author notices that privacy as a good of special significance for a man but also in a specific scope of a legal person takes the form of constitutional value resulting from several provisions of the binding constitution, including the most important article 47 and others, ie article 48–51, 53.

Institution of the Commissioner for Human Rights in Turkmenistan – normative dimension and practice

The article presents the institution of the Commissioner for Human Rights in Turkmenistan, also officially referred to as the Ombudsman of Turkmenistan. The institution of Ombudsman was established in the Constitution of Turkmenistan in a new editing of 14 September 2016, and detailed regulations were included in the Law of 23 November 2016 “On Ombudsman”. Statutory regulations concerning the Ombudsman generally meet the standards of similar acts being in force in democratic countries. However, in the reality of the authoritarian system of Turkmenistan, where fundamental human rights are violated, the new institution is not able to perform the functions for which it was established. The evidence is the Ombudsman’s first report for 2017, which clearly lacks cases relating to human rights of the first generation. As a matter of fact, until democratic changes take place in Turkmenistan, as well as change in the policy of the state authorities in their approach to the protection of individual rights and freedoms, the institution of the Ombudsman will remain a facade institution.

Constitutional courts in post-Soviet states. A comparative analysis. Part II

Article (whose first part was published in the previous volume of „Constitutional Law Review”) discusses the problem of constitutional judiciary in post-Soviet states. The author formulates a thesis that constitutional courts in post-Soviet states were supposed to create proper conditions for the primacy of the constitution in the system of normative acts and its direct effect on legal relations taking place in the state. It was expected to guarantee the freedom and rights of an individual. The radiation of the constitution onto the whole of legal, political, economic or social relations occurring in the state promotes the stability of the state’s political system, the protection of values important for the citizens. The author formulates a thesis that to make it happen, proper political conditions are necessary and within them – the control of the new normative acts in the context of their compatibility with the laws of higher legal force, including above all the constitution. This part of the text analyzes the functions of constitutional courts and their political roles in post-Soviet states. Conclusions regarding both parts of the text. First part of this paper was published in „Przegląd Prawa Konstytucyjnego” 2019, no. 2, pp. 137–164.

Scope of the constitutional powers of the President of the Russian Federation

The aim of the article is to determine the scope of constitutional rights of the President of the Russian Federation and to bring issues related to the competences held by the head of the state in relation to the legislative, executive, and judiciary authorities, including the nation and those that are considered by the Constitution as so-called “other”. Another goal is to investigate whether all competences granted to the President are used as intended and whether there is a need to change the scope of the rights granted, and if so, whether they should be extended or narrowed. The content of the article answers questions related to the above issues and allows to draw conclusions that the President’s wide range of powers undoubtedly determines his superior position in relation to other authorities, and the number and rank of powers held by the head of the state go beyond the classical model of the semipresidential system.

The specificity of a regional state on the example of devolved regions in the United Kingdom of Great Britain and Northern Ireland

The issue of autonomous countries, for example through Scotland, is an interesting topic in the field of political research. The United Kingdom of Great Britain and Northern Ireland is an absorbing field for the deeper research. The analysis of the institutional and legal solutions adopted in the United Kingdom allows for the formulation of a research hypothesis that classifies Scotland, Wales and Northern Ireland as autonomous countries, as a result of the competences obtained as part of the devolution process. In the article, the author also responds to the research questions posed which features may indicate the position of the devolved regions as autonomous countries, and which do not allow them to be included in this category?

The importance of the stare decisis doctrine for judicial control of the constitutionality of US law – between the stability of jurisprudence and instrumentalism

All American courts have a right to examine the conformity of legal acts with the Constitution as the basis for issuing a decision, creating a diffused system of judicial review. Court precedents and the stare decisis doctrine become the stabilizing factor of jurisprudence. However, it is not easy to make an unequivocal assessment of the role of the stare decisis doctrine for judicial review due to a number of factors that affect its significance. They include the formal lack of absolute nature of the court decisions, or the fact that the Federal US Supreme Court is not bound by its own rulings. The latter fact seems particularly important in the assessment of the subject matter in the context of considerable judicial activism and the way the judges are nominated and approved for, in principle, lifetime positions. In this publication, all the above-mentioned factors have been analyzed in order to assess the significance of the stare decisis doctrine for judicial review in the US as accurately as possible.

The impacts of constitutional disputes  on the position of President in Mexico

The Constitution of 1917 expressis verbis expressed the constitutional principles of the division of powers in Mexico. In practice, the executive branch had a dominant role. In the eighties, there was a slow economic and political transformation that shaped the formation of the democratic system of the state. The independent judiciary, in particular the position of the Supreme Court of Mexico (SCJN), began to play a special role. An important systemic practice after the 1994 reform was the settlement of constitutional disputes (controversias constitucionales) of executive organs with legislative bodies at both federal and state levels. SCJN became an arbitrator deciding on collisions. A question arises about the scope of influence of constitutional disputes on the political position of the President from the mid-nineties? Based on the analysis of the content of normative acts and taking into account their historical background, one can conclude that – despite the transformation – presidential power still exerts a significant influence on the judiciary in Mexico.

Human dignity in the Israel’s legal order – an outline of the problem

The traumatic experiences of World War II have highlighted the serious deficit of national and international measures to protect human rights and their ideological support to place human dignity as the main and indisputable pillar of a democratic state and supranational communities. Human dignity is nowadays one of the factors determining the court’s jurisdictional proceedings. This also applies to states that formally did not include it in the catalog of constitutionally guaranteed rights and freedoms. Qualitative, quantitative and comparative analysis of the functioning of the concept of human dignity reveals its various meanings and functions. They are determinants in assessing the activities of state authorities from the point of view of implementing the principles of a democratic state of law and the need to respect the rights of individuals. In connection with the richness of interpreting the concept of human dignity within the framework of constitutional values, one can not ignore the rich history of the doctrine of human dignity. It allows us to understand and define the nature of general concepts and give different meanings. Human dignity in many legal systems, including Israel, is a constitutional value, as well as the law that the constitutional norms guarantee. The issue of its regulation and definition in the Israeli legal order due to the specificity of the problem is an interesting issue, both theoretical and legal as well as practical.

President and constitutional legislation in the Polish political tradition

The article discusses prerogatives and activity of the President of the Republic of Poland with respect to constitutional legislation. The first part of the paper deals with regulations which refer to the head of state’s participation in the constitutional legislation during the inter-war period. The second part of the article analyses legal provisions concerning that issue, which were enforced in 1947–1952 and 1989–1997. The third part contains a description of the President’s role in the procedure of amending the Constitution stipulated in art. 235, para. 1 of the Constitution of the Republic of Poland of 1997 and the application of that procedure in practice so far. The fourth part is the summary of this paper.

On the need to reflect on the issue of electoral rights for incapacitated persons. Part II

The problem of limiting the political rights of people with intellectual disabilities under Polish law has been a matter of interest for the Ombudsman for a long time, consistently postulating legislative work aimed at eliminating the institution of legal incapacitation from the Polish legal order, and it is reflected in the jurisdiction of the Constitutional Court and in the activity of the social organisations. The article indicates the need postulated in the doctrine of the constitutional law to replace the Polish model of substitute decision by instruments of supported decision-making by people affected by intellectual disability and the need to have the ability to use the political rights by an individual assessed thoroughly each time by an impartial body, including the fundamental right to elect his/her representatives, while applying some measures restricting the individual’s discretionary power under civil law.

Promulgation as a condition precedent  for the coming into force of normative acts

The art. 88.1 of the Constitution of the Republic of Poland states: “The condition precedent for the coming into force of statutes, regulations and enactments of local law shall be the promulgation thereof”. This rule have an important meaning to protection of citizens’ rights and is one of the fundamental idea of a democratic state of law. Promulgation is not only a technical duty, but has important element of the binding of normative acts. The author analyses different procedures dealing with promulgation of statutes, regulations and enactments of local law. He especially concentrates on promulgations of ratified international agreements and promulgation of the European Union’s normative acts.

The latest extraparliamentary proposal regarding the draft of the constitution of the Republic of Poland – „Projekt Konstytucji Rzeczpospolitej Polskiej” announced on 11th november 2018

To commemorate the 100 th anniversary of the restoration of Poland’s sovereignty regained in 1918, the Draft Constitution of the Republic of Poland (Projekt Konstytucji Rzeczpospolitej Polskiej original spelling) was announced on 11 th November 2018 as a draft of ZPP/WEI circles (Union of Entrepreneurs and Employers and Warsaw Enterprise Institute Foundation think tank) developed under the leadership of Professor Robert Gwiazdowski. It is a comprehensive Draft of a new constitution consisting of 184 articles comprised in seventeen chapters including thirteen pages of explanatory notes. A consistent support of its authors for solutions introducing presidential system of government is a characteristic feature of the Draft. In a number of proposals, the Draft differs from regulations in the prevailing Constitution of the Republic of Poland of 1997. It specifically concerns the catalogue of rules of the form of government, legal status of an individual within the country and a guarantee of such status, sources of law, legislative, executive and judiciary powers, bodies outside the system of the separation of powers, territorial self-government, and public finances. Some of the material proposals of solutions related to a political regime included in the Draft deserve positive assessment. However, the majority of the same are of a controversial nature or inspire critical remarks. Thus, this Draft vis-á-vis the established Constitution cannot be considered as the better one. Still, as some of the solutions included in the same could have positive influence on more efficient and effective performance of the state mechanism, they would deserve some consideration and submission to a political discussion and ultimately such elements would be required in the Constitution should the amendment take place.

The labeling of food products as a tool that guarantees the correct implementation of the consumer’s constitutional right to information

The aim of this study is to indicate selected legal aspects regarding the correct implementation of the consumer’s constitutional right to information in relation to the labeling of food products, with particular emphasis on the consumer’s rights in this area resulting directly from the Constitution. The conducted analysis is to show and emphasize the multi-aspect and complexity of the issue of marking, first of all in the context of the situation of the consumer defined by the provisions of constitutional law. Due to the specificity of the paper, the following methods will be used: dogmatic and content analysis and document analysis. They will allow for the analysis of research material, which is national legislation at the constitutional level, as well as other specific laws covering the subject matter. On the other hand, the views of representatives of legal science and, to the necessary extent, representatives of other sciences will be analyzed. Legal acts, legal monographs, commentaries and articles included periodicals and legal monographs and comments will be used.

Electronic voting in the Åland Islands –empty promise or real scenario?

New technologies are becoming more and more frequently used in public administration and in the electoral law. Further states consider introducing an electronic voting as an alternative method of casting votes. It seems to be an attractive solution as it is expected to increase the electorate mobilisation. The Åland Islands, which are autonomous territory of Finland, are planning to ensure the Internet voting starting from 2019. It is the first stage of introducing i-voting in the Åland Islands and at this point only expats are enable to exercise the right to use it. The method is accessory to the traditional way of voting in a polling station and it applies merely to the elections to the authorities of the autonomy.

Lex Perković. Croatian problems with the implementation of the European arrest warrant

The European arrest warrant established in 2002 is an important tool in prosecuting perpetrators of crimes committed within the European Union. It can, however, be considered as some interference in state sovereignty. Such a situation took place in 2013 when Croatia joined the EU. Just before the date of accession the parliament changed the law, significantly limiting the possibility of extraditing the citizens of that country to the other EU countries. The unofficial, but actual reason for this decision was the desire to protect the former high-rank representative of the Yugoslavian secret services, Josip Perkovic, accused of participating in the assassination of a Croatian dissident in Germany in 1983. This risky step by the Croatian authorities has led to a serious crisis in relations with the German government and the European Commission, including the threat of EU funds being withheld. He even got a separate treatment in the literature on the subject (lex Perković, Croat slučaj Perković). The main purpose of the article is to present and discuss political events that accompany this case, as well as to analyze legal steps taken by all interested parties.

Algorithms prioritizing in the light of the principle of free elections

The principle of free elections allows for broad protection of imponderables related to the electoral process. Its scope covers activities ranging from the possibility of reading electoral information, up to the voting process itself. Such a broad approach to this principle of electoral law, which in fact is currently not expressed expressis verbis in the Constitution of the Republic of Poland, allows protection of the entire voting process. This, in turn, seems crucial in the field of reference to modern technologies. These are undoubtedly easier for us to live, however, improperly used, they can interfere with democratic processes. This article is an attempt to answer a momentous practical question: how can the content optimization algorithms used in search engines and social networks influence freedom of choice, and whether inappropriate use of these algorithms may violate the law and to what extent can it influence democratic processes? In my opinion, taking up this research topic will help to secure the interests of democratic states, as well as looking at the principle of “free elections” in a slightly different context than before.

The government in the political solutions of Poland, the Czech Republic and Slovakia

The article deals with the issue of government in Central and Eastern Europe, understood as one of the executive branch entities, appointed by the representative body, on the example of three countries, the Poland, the Czech Republic and Slovakia. These countries are joined by a common, difficult history, a system of government adopted after 1989, mutual neighborhood, convergent interests. The executive model functioning in these countries sets Poland, the Czech Republic and Slovakia in the group of states with a parliamentary- cabinet system of government. In addition to the president elected in direct elections, there is a collegial body-government headed by the prime minister. The government with the prime minister is de facto the subject with the greatest resource of power and a fundamental influence on the country’s policy, both in the national and foreign dimensions.

Certificate of Polish citizenship and transcription of birth certificates of children whose parents are in same-sex relationships. The analysis of the Supreme Administrative Court case-law

In discussions about the need of transition from informal relationships (especially same-sex relationships) to structures regulated by normative standards, various arguments of axiological and sociological nature clash. The problems affecting children, which are a direct consequence of their parents’ decision to apply institutions not regulated by Polish law, play a significant role in this debate. The analysis of the case-law concerning the issue, indicated in the title of the article, leads to the conclusion that currently the Supreme Administrative Court tries to compensate for the lack of appropriate normative regulations by legal interpretation, which reflects the welfare of the child to the greatest extent, referring to the provisions of the Convention on the Rights of the Child and article 72 of the Constitution of the Republic of Poland. However, the adopted solution does not guarantee that there will be no future problems, which may have a significant negative impact on the legal situation of children whose parents decided to live in same-sex relationships.

Constitutional Basis for the Support of the Family by the Public Authorities in Poland

The article is devoted to the problem of the support for the family by public authorities in the light of the provisions of the Constitution of the Republic of Poland. The article discusses the essence of the family, the good of the family as a constitutional value, the right of a family in a difficult material and social situation to special help from public authorities and the issue of help given to the mother before and after childbirth (Article 71 of the Constitution). According to the author, the Constitution creates sufficient grounds for providing support by public authorities to families which require such support. In this respect, the key issue is the requirement to take into account the good of the family in the state’s social and economic policy. However, the final shape and scope of assistance is determined by law.

Commission phase of works on the motion for constitutional liability

The article is concerned with the commission phase of works on the motion for constitutional liability which is initiated by the Marshall of Sejm handing over the preliminary motion to the Constitutional Liability Commission, and finished with Sejm or the National Assembly debating its summary. The task of the Commission is to debate the preliminary motion, gather evidence, interrogate witnesses and submit the summary of its work. The Commission is obliged to recommend prosecutors that shall represent Sejm before the State Tribunal.

Position of data protection authority on the example of Poland

Independent data protection authorities are of critical importance to the effective protection of personal data. Even under the previous Directive EU Member States were obligated to provide a designated supervisory authority. The fundamental reform of EU data protection law and adoption of General Data Protection Regulation has introduced a number of changes in the data protection law area. It also affected the provisions on national data protection authorities. To adapt to the new regulatory regime Polish legislator has decided to establish a new supervisory authority. The President of Personal Data Protection Office has replaced the previous Inspector General for Personal Data Protection. However it needs to be noted that current provisions raised questions about the position of The President in the whole regulatory framework. Therefore the aim of this paper is to review current law and to define the legal position of Polish data protection authority.

Incoherence of the legal responsibility of the editor-in-chief

Editors of daily newspapers and magazines have responsibilities toward the authors who provide the content of the journals, the owners/publishers of the journals, and the public as a whole for what appears in his or her journal. To establish and maintain high-quality journal content, an editor should, prior to accepting a position, receive an explicit written statement from the journal’s owner that defines the editor’s responsibilities and autonomy. Editors should be given full responsibility for editorial decisions on individual manuscripts. The editor’s right to editorial freedom should be agreed on by both the editor and the journal owner/publisher.

The right to social security benefits in the light of the Constitution of the Republic of Poland

This article covers considerations related to the right to social security benefits under the Constitution of the Republic of Poland. Its purpose is to clarify the term social security and the indication of legal institutions that are part of social security, social security, social supply and social assistance. It is reasonable to assume that the content of the right to social security benefits is to guarantee every citizen benefits in the event of incapacity for work due to sickness, disability, reaching the retirement age, being out of work not of their own will and not having other means of subsistence. The essence of the right to social security benefits is to protect the citizen in the case of certain insurance risks resulting in the total or partial loss of self-subsistence. This article also analyses the scope and forms of implementation of the constitutional right to social security.

Initiating criminal fiscal proceeding as the tax authorities’ method of suspending tax liabilities prescription period. Anticipating the Constitutional Tribunal Judgment

The aim of the article was to elaborate on the tax authorities’ practice of initiating criminal fiscal proceedings only for the purposes of suspension of tax liabilities prescription period. Despite the fact that legal literature has noticed and commented on the issue for several years, the problem has not yet been dealt with. In 2014 the Polish Ombudsman initiated legal proceeding in front of the Polish Constitutional Tribunal concerning this matter, however since then no binding judgment has been issued. The administrative courts remain helpless while facing the problem, while at the same time, within the competences they had been given, they try to react to the inappropriate exercise of the mechanism of prescription of tax liabilities. The legal situation of the taxpayers would strongly benefit if the Constitutional Tribunal judgment stated unconstitutionality of the legal authorities’ current practice. It is only to be hoped that the Polish Constitutional Tribunal will soon take into account the reasons of the weakest party of this public-private conflict of interest.

The article is a review of a scientific publication, which is a monograph of Szymon Niedziela on the subject of Muslim fundamentalism in Algeria and its impact on the internal and external affairs of the state.

Evolution of the structure of the Chancellery of the President of the Republic of Poland in 1989–2017. Statutes of the Chancellery of the President

In this article, the author focuses on the constitutional prerogative of the President of the Republic of Poland, which is the granting of the statute of the President’s Chancellery. The aim of the article will be to analyze the individual statutes of the auxiliary body of the president, taking into account changes that have been made to the Law Office based on the documents issued. In the first part, the article refers to the legal basis for issuing statutes by the president, but the author in the subsequent parts focuses mainly on the analysis of documents issued by individual Presidents of the Republic of Poland.

The author describes mutual, constitutional relations between the Senate and the head of state, and asks questions about the perspectives of their modification. The political events of 1989 leading to the reinstatement of a single-member head of state and Senate in Poland made their restitution closely related. At present, the competence and functional dependence of these bodies is low. The President and the Senate share a common view on the constant presence in the doctrinal and political discussion of the problem of changing their political position.

The analysis focuses on the relations between the presidential and semi-presidential system of government and the model of control of legal norms. The authors formulate question, is there a correlation between these government systems and the model of constitutional review of the law? The authors argue that there is no such dependence. They justify that the system of government is created independently of the model of law constitutional review. They justify why it is and what are the consequences for the system of government.

This article analyzes tasks and competences of the President of the Republic of Poland as the guardian of sovereignty and security of the state. The author recognizes major importance of the head of state in that field. The President is the supreme commander of the Armed Forces and exercises powers connected with this function. The President also exercises a number of other powers, including those of an extraordinary nature (introduction of martial law and the state of emergency, declaring a time of war, declaring a general or partial mobilization). The author of the article underlines the necessity of cooperation of the President and the Council of Ministers in the field of the state security. It results from the fact that some powers are subject of countersignature of the Prime Minister or are exercised at the request of the Council of Ministers or its members (the Prime Minister, the Minister of National Defense).

The Constitution provides the possibility of appointing the ministers in two categories – ministers in charge of the government administration department and ministers performing tasks assigned by the President of the Council of Ministers. The conditions for holding the office define the rights and duties of a minister. While analyzing them, it is necessary to highlight those resulting from the fact that ministers are members of the collective executive body as well as those related to the exercise of office. The status of “departmental” ministers and that of ministers without portfolio are equivalent within the cabinet. The Act on the Council of Ministers does not define separate rights, does not impose separate obligations resulting from membership in the Council of Ministers, and the obligations toward the Sejm and its bodies remain the same.

According to the Standing Orders of the Sejm the Speaker of the Sejm, after seeking the opinion of the Presidium of the Sejm, may refer any bills which raise doubts as to their consistency with law, in particular with the Constitution, to the Legislative Committee for its opinion. If the Committee finds the bill unconstitutional and therefore inadmissible, the Speaker can refuse to initiate the legislative procedure. The above regulation has for many years raised doubts as to its consistency with the Constitution, in particular the constitutional right to legislative initiative (Article 118) or the rule of considering statutes in three readings by the Sejm (Article 119, Article 120). The article presents the genesis and the analysis of the current regulation of the parliamentary review of the constitutionality of bills in Poland at the very beginning of the legislative procedure, the controversies that arise on that background and the discussion on that issue among the representative of the doctrine as well as conclusions de lege lata and de lege ferenda.

This article provides an analysis of selected problems regarding the mechanism for convening sessions of the Sejm by its Marshal. The author criticizes the adopted legal solutions, first of all paying attention to the excessive strengthening of the role of the chairman of the first chamber of parliament in this respect. In his opinion, doubts must be raised by the fact that under the regulations, the right to convene meetings of the Sejm has got only the Marshal, whereas such entities such like parliamentary factions, as well as the President and the government, are formally deprived of it. In addition, he also shows the dilemmas that may arise in the course of applying those provisions in systemic practice. M. in here, he indicates the problem of setting dates of a sitting of the Sejm, inviting guests and the situation when a sitting cannot be convened for objective reasons.

The main goal of article is to evaluate the functioning of a redraft of a legislative proposal in the Polish legal order, particularly whether this mechanism may be considered as making the legislative procedure more flexible and improving the quality of the legislative works of the Polish Parliament, or whether the constitutional shape of a redraft and its use leads to conclusions that this solution is misguided and negatively affects parliamentary legislative proceedings. Both normative analysis and systemic practice lead to the conclusion that the regulation of a redraft by the Sejm’s Rules cannot be considered optimal. From my point of view, it is necessary to make such corrections to Art. 36 par. 1a- 1c that will prevent from abusing this instrument. However, the critical assessment of the redraft standardization does not change the generally positive assessment of the institution itself, because the specific self-correction of the proposal, often resulting from the reflection of the initiator of the legislative proceedings (resulting from both internal and external factors), is fully desirable, primarily from the perspective of implementing the postulate of the legal system coherence and its completeness.

The Polish electoral system to the European Parliament has been criticized for as long as it has been in operation; that is, uninterruptedly since 2004. The commonest objections and criticisms concern the lack of the fixed assignment of seats to territorial districts; significant and unjustified differences in population size among districts; risk of not winning a single seat by the smallest districts; unequal territorial representation; overcomplicated and unclear mechanism of translating votes into seats and in consequence creation of an illusion of a territorial representation. However, there are at least four alternative electoral systems which are able to eliminate all the drawbacks of the current model while warranting the proportional seat distribution both among electoral districts in accordance with the principle of material equality of each vote and among election committees pursuant to the requirements set for the electoral systems of the member countries by the European Union law. The aim of the paper is to compare these alternatives with the current model, pinpoint the drawbacks and advantages of each solution and indicate which criteria are optimized by the respective electoral systems.

The aim of the article is to present recent amendments to the Electoral Code respecting constitutional right to a court and to describe some selected proposals for changes within the Polish electoral law, which – despite the fact that they were formulated by the doctrine of constitutional law and were raised in the legislative process – in certain cases have not yet been reflected in subsequent amendments to the Electoral Code. The analysis included the admissibility of bringing an appeal to the court against the decisions of the National Electoral Commission and some cyclical demands to abolish the election silence. The assessment of the indicated issues was made in the light of the science of law, the decisions of the Constitutional Court and the proposed amendment bills to the electoral law.

The strength of the parliament in the political system is largely dependent on its professionalism defined by the activity of its deputies. Polish MPs’ level of education is high, often higher than the West European average. The aim of this paper is to find out whether candidates’ education is an electoral criterion, whether voters base their decisions on the prospective deputies’ qualifications and skills confirmed by university diplomas. The study the results of which I present below was carried out between December 2018 and February 2019 as part of the nationwide research project Political preferences. Attitudes – Identifications – Behaviors. It was conducted with the application of the survey questionnaire method.

The legal situation of the Catholic Church in the Third Republic of Poland allows the Church to operate in a public space on specific principles and within accepted boundaries, determined by developing a conciliatory position of all interested communities. It is important, however, to point out that, due to the continuous evolution of mutual relations between the secular and ecclesiastical authorities – caused by a number of social and political factors – doubts arise periodically about both the nature and the shape of mutual relations. One of the periods with the greatest significance for this type of reflection is the election campaign. The following article contains information on relations between the state and the Catholic Church in the aspect of the relations of communities, supplemented with an analysis of the provisions of secular and canon law regarding the possibilities of clerics’ activity in the sphere of broadly understood political activity on the territory of the Third Republic of Poland.

Since the concept of sovereignty was created till nowadays it has been undergoing permanent transformation. Presently, the consequences of this phenomenon follow from the intensive influence of the processes of regional integration and globalization on the way states function in the modern world and political reality. Therefore, contemporary states have to face and manage in practice not only the change of the notion of sovereignty itself and its scope, which is natural during its several centuries’ evolution, but they also have to cope with serious effects and far-reaching impact of these transformations on their political systems and legal orders, as well as all other areas of their functioning, including the contents of their national basic laws and fundamental constitutional principles. Non-depending on the degree and activeness with which the states involve themselves into the abovementioned processes, they have to naturally make themselves open to them anyway, which is frequently reflected first and foremost in the texts of the national basic laws and the way their main values and principles are interpreted. The analysis of the changing concept and scope of contemporary states’ sovereignty has become the main objective of the hereby paper. Its subject focuses on the analysis of the origin and development of the notion of sovereignty, as well as other related to it concepts, along with their impact on the way contemporary states function.

The term “freedom” comes from the Latin language and is derived from the words liber – 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 indicates 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 compelled 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 liberty: 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 legislator 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 environmental 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.

The right to assembly is a manifestation of the social possibility of influencing state organs by loud and often expressive articulation of the position of a given social group on issues important to it. It should be clearly emphasized that the right to peaceful assembly is a manifestation of freedom and is one of the core guarantees of pluralism, freedom of speech and the nation’s right to decide about self, which one considers a sovereign. Detailed rules and procedures for organizing, conducting and dissolving assemblies have been regulated in the Act of July 24, 2015 of the Act of Assembly Law2. The basic concept – the concept of assembly – has been defined in the Art. 3 of Act of the Assembly Law. According to the adopted systematics, two types of assembly were distinguished: ordinary and spontaneous. The first of these means “a grouping of persons in an open space accessible to unspecified persons in a specific place organized in order to carry our joint deliberations or for joint expression of public opinion”. The organization of the meeting can be practically unlimited. The only requirement is having full legal capacity, which excludes persons partially deprived of legal capacity, regardless of the scope of such limitation and the relationship with the subject of the organized meeting. The process of organizing assemblies is not complicated, although one should be particularly careful about the deadlines and keep in mind the “privileged status” of some other forms of assemblies. The amendment to the Act of 2016 introduced new legal solutions, although definition issues were omitted, which in this case are of fundamental importance for the correct application of the Act and guaranteeing observance of constitutional norms by public administration bodies.

In Poland, freedom of press is a systemic principle that protects the rule of law. Relevant regulations regarding this matter are included in the constitution in force since 1997. However, other legal regulations contain solutions that raise objections of the journalistic environment and are described as repressive towards the media. The Article 212 of the Penal Code provides for example a criminal penalty of up to one-year imprisonment for the offense of defamation using mass media. According to journalistic circles, such a provision negatively affects journalistic practice causing the so-called “chilling effect”, i.e. unwillingness to undertake controversial subjects. The discussed issue is analyzed in the light of the provisions of the Constitution, jurisprudence of the Constitutional Tribunal, the Press Law Act, as well as selected articles of the Penal Code.

The article focuses on the constitutional aspects of defense and security of the Republic of Poland. It analyzes the provisions of the Constitution concerning defense and security, including the tasks and the competences of the state bodies in the area of defense and security, the principles of commanding over the Armed Forces in time of peace and wartime, their tasks in the field of defense and security. According to the author of article the constitutional regulation on security of the Republic of Poland leaves room for numerous doubts. They can be largely attributed to the lack of a distinct division of the state bodies’ competencies in the area of security and defense. The Constitution does not stipulate the rules on commanding over the country in wartime. Whereas solutions included in the statutes arouse doubts in terms of their accordance with the Constitution.

The concept of security, which has been popular in recent years, is an integral element of constitutional systems. Securing undisturbed human existence was one of the premises for creating legal acts limiting the arbitrary state – the first constitutions at the end of the 18th century. The tasks imposed on the constitution as a special type of legal act remained unchanged. This tendency was strengthened in the 20th century, hence the modern constitutions are characterized by strong saturation with concepts from the broadly understood field of security. The Polish Constitution of 1997 is no exception in this respect, as it lays down numerous provisions establishing far-reaching restrictions on the state and those in power. In order to guarantee security in some specific areas, the Polish constitution imposes organizational obligations on the rulers, which translates into securing the health, pension or procedural interests of the individual. The issue of respecting constitutional standards related to security is a separate issue, but this is a problem already known at the dawn of constitutionalism.

Quite a few studies, including the comparative-legal ones, have been devoted to the legal status of local self-government’s, but not many of them have regarded this institution’s status within the constitutional system from the viewpoint of the Polish state’s constitutional identity (its axiology). Moreover, the Polish literature so far has been lacking a complex study of this topic. Hence, the intention of this study is to attempt a systematic and comprehensive analysis of the political status of the local self-government in order to find and recreate the principle of the Polish political system which is adequate to that institution. The need to make such an analysis is obvious when we consider that the Polish Constitution of 2nd April 1997 does not name the principle of the system that would directly pertain to the constitutional position of this institution. To remove that lack of analysis, this article is devoted to constitute’s study of the institution of the local self-government discussed through the prism of the principle of protection of localself-government.

Democracy, rule of law and human rights are addressed by the Organization for Security and Cooperation in Europe, the Council of Europe and the European Union. Nonetheless, while the Council of Europe and the European Union develop their own legal regimes and ensue legal standards for democracy, the rule of law and human rights, the OSCE generally operates in politics and political standards pertinent to these values. However, by their very nature and definition, OSCE policy commitments are reflected in legal context, being transpired to legally binding European and international treaties. A situation hence unfolds in which a non-binding act contains content that binds beyond it. The nature of the activities of the OSCE institutions complements and corresponds to the ‘soft’ nature of the OSCE’s obligations, which is reflected in the non-authoritarian activities of these institutions: notably monitoring, formulating findings, follow-up, work of experts and reporting. This contributes to consistent relationship between the nature of OSCE commitments and the nature of the activities of its institutions.

To control and manage migration flows, the Council of Europe member states concentrate much of their efforts on guarding frontiers. In this context, refusals of entry and expulsions without any individual assessment of protection needs have become a documented phenomenon at European borders, as well as on the territories of member states further inland. As these practices are widespread, and in some countries systematic, those “pushbacks” can be considered as a part of national policies rather than incidental actions. The highest risk attached to pushbacks is the risk of refoulement, meaning that a person is sent back to a place where she might face persecution in the sense of the 1951 United Nations Convention relating to the Status of Refugees. The author analyzes PACE Resolution 2299 (2019) Pushback policies and practice in the Council of Europe member States and recommendation 2161 (2019) on this subject offered by this international organization. The author suggests that even if this document belongs to the so-called “soft law”, it has an important political meaning and PACE’s recommendations may positively affect the CoE’s member states policy toward the pushbacks.

In this article the author analyzes various legal aspects necessary for maintaining the rights of citizens to live in a free, safe and democratic state of contemporary digital era. She presents philosophical and legal origins of the rights to privacy and the development of the concept in different countries with a particular emphasis of its place in the digital world of modern democracies. She tries to show the importance of this concept as the premise for national security and compares legal solutions in different countries all over the world. It makes the article important because her interests go into comparing and finding not only the best examples and legal cases but practical knowledge which may be used in academic work and research.

The paper shows the ECtHR’s practice of making references to judicial decisions made by the US Supreme Court. This issue is part of the problem of taking, by the courts in the decision-making process, foreign law into account as well as the wider phenomenon of the so-called judicial globalization. The quantitative study of the Strasbourg case law made it possible to draw a number of conclusions. First, although the ECtHR’s judgments which contain references to decisions of the highest court of the United States constitute a proportionally small fraction of all judgments, the absolute number of cases where the Strasbourg Court has made references to American case law is far from being small. Secondly, over the past decades, the process of making use of the US Supreme Court decisions by the Strasbourg Court has been noticeably intensified. Thirdly, statistically twice as often, the US Supreme Court decisions are referred to by individual ECtHR judges as authors of separate (dissenting or concurring) opinions than the Court itself. Fourth, the composition of the Court, i.e. whether it sits as a Chamber or as a Grand Chamber, does not have an impact on the operationalization of the issue in question. Fifthly, the readfilled by the American Civil Liberties Union (ACLU) on behalf of the Wikimedia Foundation and several other organizations against the National Security Agency (NSA), the US Department of Justice (DOJ) and others, alleging mass surveillance of Wikipedia users carried out by the NSA. The lawsuit states that the upstream surveillance system violates the first amendment to the United States Constitution, which protects freedom of speech, and the fourth amendment to the United States Constitution, which prohibits unjustified searches and seizures. The ACLU lawsuit was filled on behalf of almost a dozen educational, legal, human rights-related and media organizations which jointly engage in trillions of confidential online communications and have been harmed by upstream supervision. Pre-surveillance procedures hinder the plaintiffs’ ability to ensure basic confidentiality of their communications with key contacts abroad – including journalists, co-workers, clients, victims of human rights abuses, and tens of millions of people who read and edit Wikipedia pages. Pre-surveillance procedures, which, as the government claims, are authorized by the Section 702 of the FISA Amendment Act, aim to trap all the international communications of Americans, including emails, web browsing content and search engine queries. With the help of companies such as Verizon and AT&T, the NSA has installed monitoring devices on the Internet – a backbone network, a network of high-capacity cables, switches and routers allowing the flow of the Internet traffic. These goals, chosen by intelligence analysts, are never approved by any court, and the existing restrictions are weak and full of exceptions. According to Section 702, the NSA may attack any foreigner who is outside the United States and may provide “intelligence from abroad”. The number of people under surveillance is huge and includes journalists, academic researchers, corporations, social workers, entrepreneurs and other people who are not suspected of any misconduct. After the victory of Wikimedia in the fourth circuit in May 2017, the case returned to the district court where Wikimedia was looking for documents and testimonies submitted by the Supreme Administrative Court. The government refused to comply with many requests for a disclosure of Wikimedia, citing the “privilege of state secrecy” to hide the basic facts of both Wikimedia as well as the court. Wikimedia contested the government’s unjustified use of confidentiality in order to protect its supervision from surveillance, but in August 2018 the District Court upheld it. Their work is necessary for the functioning of democracy. When their sensitive and privileged communication is being monitored by the US government, they cannot work freely and their effectiveness is limited – to the detriment of Americans and others around the world. Therefore, mass surveillance leads to social self-control, but in the most undesirable form which means restriction in exercising one’s own rights, including freedom of expression, for fear of sanctions on the part of public authorities. In this way, the measures known from totalitarian regimes are introduced into a democratic state. At the same time, this process happens in a secret way, because formally, the individual still has the same rights and freedoms. In this way, mass surveillance causes damage not only to single individuals, but to the entire state as it undermines the foundations of its system. Not without reason, according to the well-established jurisprudence of the ECtHR, the primary purpose of the legal safeguards established for the secret surveillance programs conducted by states is to reduce the risk of abuse of power. However, is it possible to establish such safeguards in the case of mass surveillance programs? In accordance with the standards introduced by the ECtHR, statutory provisions should specify at least the category of offences that may involve authorization of the use of surveillance measures, as well as a limitation on the maximum duration of their application. In the case of mass surveillance, it is no longer possible to fulfil the first of the indicated safeguards, because the essence of the use of this type of measures is to intercept all communications, and not only communications concerning persons suspected of committing specific crimes. However, the reasons for the repeated belief that non-offenders should not be afraid of surveillance are also worth of detailed analysis. In fact, the supporters of this point of view believe that information which can be obtained about them does not reveal secrets they would not like to share with others. This belief completely overlooks one of the most important features of mass surveillance which is acquisition of data from various sources and their aggregation and correlation, and in the final stage – drawing new conclusions. As a rule, these conclusions go beyond the original scope of information, thus they create new knowledge about the persons subject to surveillance. It can be the knowledge about their preferences (not only shopping, but also e.g. political or sexual), expected behavior, profile of decision-making, but also the circle of friends or existing social relations. The process of acquiring new his/her nationality and the type of legal culture of his/her home country. On the other hand, the distinction between judges from the West and East of Europe is of some significance. Finally, the communication between the European Court of Human Rights and the US Supreme Court is characterized by a clear asymmetry, in the sense that the judgments of the Strasbourg Court were referred to in just a few decisions of the American court. In the author’s view, the American case law may only play a subsidiary role in the comparative analysis of the ECtHR. The primary reference point for the Strasbourg Court should be the European Convention on Human Rights, case-law developed by that Court and the law of the Member States of the Council of Europe.

A large number of authors, both academics and novelists, contend that there is an affinity between the Polish April Constitution of 1935 and that of the Fifth Republic of France. In their view, such an affinity results from the dominant political position of the president, his powers and general consolidation of the executive power2. Another reason for such an assertion is a similar model of leadership adopted by Piłsudski and de Gaulle. Some authors even assert that “Polish Constitution was an inspiration for the constitutional thought of general de Gaulle”3. Special attention should be paid to the different axiology of the two constitutions, including rigidity of the April Constitution provisions, designed exclusively for the presidential system, and distrust of the Polish constitutional thought in direct democracy. Different leadership models adopted by Piłsudski and de Gaulle also contributed to the general disparities between Polish and French fundamental statutes discussed in this paper.

In my paper I present the electoral transformation of the last three decades by considering the most important impulses and their effects. In doing so, I focus on a few essential elements that are considered to be decisive Hungarian and internationally in terms of both electoral science and election practice. Such are, among others, primarily the nomination system, internationalization of election, the electoral data protection or the evolution of electoral technology.

The article is an analysis of Albanian legal regulations concerning the constitutional responsibility of the president. President for committing a constitutional delict is responsible before the Constitutional Court. The proposal in this regard may submit a group of parliamentarians while parliament may put an indictment. If the Constitutional Court recognizes the merits of allegations made in the indictment, the president is deposited with the office.

Contemporary democratization process challenges the trends of regress or stagnation in the world. The Central European Countries face this problem as well, yet they differ in the depth of changes. The article addresses the problems of quality of democracy regarded as a political regime and the values of constitutional order of the Czech Republic and Hungary. As post-communist, the two countries have been regarded as democratic leaders for a long time. But the Czech Republic has the same Constitution from the beginning of democratization process, while Hungary passed the new Constitution in 2011. The Czech constitutional order reflects liberal democratic rules and values both in axiological and institutional dimension. The Hungarian one mirrors conservative and illiberal axiological values. In the institutional dimension both constitutions seem to maintain specific democratic regime, but in Hungary the executive power is dominant. The methods used in the research were: analysis, synthesis, institutional approach and comparative method.

One aspect of the right to court is the right to have a case resolved within a reasonable time in proceedings that do not involve lengthiness. The purpose of the article is to present the problem related to the implementation of the Art. 45 paragraph 1 of the Constitution in civil procedure. The order to examine the case without undue delay is one of the procedural components of the constitutional right to court. The inability of the court to hear the case within a reasonable period of time weakens the efficiency of the courts and undermines trust in the state and its organs that safeguard compliance with the law. Getting a court trial quickly is in the direct interest of not only the parties to the proceedings but also the public interest. It is up to the court to ensure that procedural guarantees of proceedings are effective as quickly as possible and at the same time responding. The judgment of the European Court of Human Rights of May 16, 2019, unequivocally pointed to the violation by Poland of the right to a fair trial related to the length of court proceedings. The amendment to the civil procedure of July 4, 2019 may also not accelerate civil proceedings.