State as Common Good and Local Government Community – Identity or Collision of Values?

 The constitution regulates many different goods and values that relate to individual and collective life. In the constitution of the republic, two types of civic communities are most important: the state as a common good and local government units. Author of the article analyzes these two values in the light of the Polish Constitution of April 2, 1997, historical and philosophical foundations, and especially the science of law and case law of the Polish Constitutional Tribunal. According to the author, the self-government community is an integral element of constitutional axiology, i.e. the idea of the common good that belongs to the essence of polish state. The principle of decentralization of public authority is an important technical and legal consequence of the concept of the republican state and the principle of subsidiarity, and not an independent axiological justification of the relationship between the state and local government. These relationships and their social acceptance depends not only on legal regulations, but also on the attitudes and responsibilities of politicians and ordinary citizens. The actual relationship between the republican state and the local government community and their social acceptance depends, however, on legal regulations, but also on the attitudes and responsibilities of politicians and citizens.

The Marshal of the Sejm as an Organ Watching Over Peace and Order Within the Sejm – Dilemmas of Theory and Parliamentary Practice

 The article refers to the status of the Marshal of the Sejm, especially with regard to his position as a „guard of the Sejm”. The Author characterizes Marshal competences connected with watching over peace and order within the Sejm, both in terms of legal status and parliamentary practice. In the context of the practice of the previous term of office of the Sejm, he draws attention to the numerous cases of the Marshal using his procedural powers in a way that favours deputies of the fraction represented by the Marshal and their abuse against opposition deputies.

Performance of the Parliamentary Mandate by Attorneysat-Law in Poland. Selected Constitutional Issues

 Performance of parliamentary mandate by professional lawyers is one of the elements that can contribute to improving the quality of law, which is created in a democratic state ruled by law. In Polish reality, this applies, among others, to the possibility of performance of the functions of a MP and senator by attorneys-at-law. However, this issue is also associated with certain constitutional problems resulting mainly from the separate status of parliamentarians and lawyers providing legal assistance, including the potential conflict between the naturally political nature of deputies and the parliament and the independence of lawyers and bar associations. The purpose of this study is to briefly discuss selected specific issues related to these problems.

The Evolution of the Basic Principles of Electoral Law in Elections to Constitutive Organs of the Units of Local Government and Parliamentary Elections in Poland Since 1989

 The scope of this article is to show the evolution of the basic principles of electoral law in elections to constitutive organs of the units of local government and parliamentary elections in Poland since 1989. In the article it is shown the constitutional and statutory regulations concerning basic principles of electoral law and the methods of determining the elections results applicable in Poland in past thirty years, from the Sejm and the Senat Electoral Acts of 1989, to the Electoral Code of 2011 (amended in 2018). According to the author of this article, this evolution of rules results in establish two models of regulations of the principles of electoral law and electoral system. The first model is applicable in elections to Sejm, to voivodeships councils, to county councils and to municipal councils in “big” municipalities (more than 20.000 citizens), the second model is applicable in elections to Senat and to municipal councils in “small” municipalities (less than 20.000 citizens).

Local Enactments Passed by the Bodies Which Constitute the Units of the Territorial Local Government – Selected Practical Issues

The article discusses the issues of the passing of local enactments by the bodies which constitute the units of the territorial local government. Considerations include both the analysis of the legal status and practice. The main problem which arises against that background is connected with the fact that the legislator applies a patchy legislative technique when authorising the territorial local government to independently regulate certain issues. Once, he definitely prejudges that the body of the territorial local government passes the regulation which is the act of local law; however, at other times he allows the addressees to settle that issue by themselves. In the latter case it causes serious problems in practice as the bodies of the territorial local government make diverging assessments in this matter. It leads to the inconsistent system of sources of the binding local law.

The Work of the Commission on Local Self-Government and Regional Policy in Polish Parliament (2015–2019)

Parliament and self-government have become a foundation of the modern democratic state. In order to achieve to proper significance of the self-government in the works of the Parliament it is crucial to establish institutional guarantees in its organisation. Commission on Local Self-government and Regional Policy is one of the most fundamental instutional guarantees of representing the intrests of local self-government in Polish Parliament which is confirmed by its practice. That is why it is necessary to study its activity. An analysis of the Commission’s tasks performed in accordance with its statute provides the basis for assessing the activities of the Commission during the eighth term of office of the Parliament (2015–2019).

Professional Self-Government and the Sejm in the Republic of Lithuania

The basics of professional self-regulation are not enshrined in the Constitution of the Republic of Lithuania, in ordinary law and legal doctrine, this professional self-regulation institution was determined thanks to the jurisprudence of the Constitutional Court of the Republic of Lithuania. One foprofessional self-regulation is the Lithuanian Bar Association, which is discussed in more detail in this paper. The subject of the analysis are the features of the legal status of the Bar Association in Lithuanian law and legal doctrine and its practical impact on legislative processes.

The Key Principles of Decentralization of State Power and Peculiarities of Its Realization in Conditions of Democratic Transformation: Experience of Ukraine

 In this article, we write about the key principles of decentralization of state power and peculiarities of its realization in conditions of democratic transformation (experience of Ukraine). Decentralization became a real megatrend of the XX and probably XXI centuries (at least in Ukraine). First of all because of the ever-increasing interest of people in the role of civil society and the private sector as the primary partners of the state and local self-government bodies to search for new methods, instruments and approaches to solve local issues at the level of their emergence. Decentralization as a process involves, first of all, restructuring, review of procedures and redistribution of powers to increase the competitiveness of territorial communities, to strengthen democracy and effectively address local issues at the level of their emergence. At the time of globalization, decentralization has become its foundation, as it increases the weight of local rule-making and the importance of relationships at the international, national, regional and local levels through the practical application of the principle of subsidiarity.

Non-Obvious Immunities – Comments on Polish Legal and Financial Regulations

Immunity (parliamentary, judicial or vested in other persons performing important public functions) seems to be an indispensable institution in legal systems of democratic countries. However, notwithstanding the legal regulations on immunity(s) in given conditions (regulations on immunity expressis verbis), there are also legal provisions which indirectly exempt people who perform certain public functions from liability or create a situation where they cannot be held liable. This study is devoted to such unobvious immunities in Polish law. The analysis is limited to the sphere of financial law due to the functions, role and significance of public financial decisions and their effects. Recognizing that finances are „nerves of the state”, tolerance (non-sanctioning) in this sphere of undesirable behavior requires analysis, especially in the context of the principles of proper management of public funds.

The Attempts to Limit the Parliamentary Immunity in Draft Amendments to the Polish Constitution

Parliamentary immunity is intended to protect the unrestricted exercise of the representative mandate by permanently excluding the responsibility for the actions of deputies falling under the exercise of the mandate and by introducing a negative procedural prerequisite for acts falling outside this category. Cyclical discussions regarding the legitimacy of maintaining the aforementioned institution and its framework, provoke approximation of the subject scope of the draft constitutional amendments submitted so far, referring to transformations within the institution of parliamentary immunity, as opposed to relevant regulations contained in previously binding constitutions. The main research hypothesis of the article was that the substantive scope of the already considered draft changes of Article 105 of the Constitution does not match the practice of using immunity during the last 4 parliamentary terms. The adopted auxiliary hypotheses say that the analyzed drafts do not meet the current needs in guaranteeing the autonomy of parlimentary chambers with respect to the protection of their members, were faulty in terms of legislation, submitted in excessive haste and motivated mainly by reasons of political rivalry between the main parliamentary forces, and not by the need for optimal shaping discussed institution.The subject of the analysis are five draft legal acts amending the Constitution of the Republic of Poland, submitted during the third, fifth and sixth terms of office of the Sejm, extending these considerations by presenting informal suggestions of modification within parliamentary immunity.

German Model of Communal Constitutional Complaint

The communal constitutional complaint was provided for in the Constitution of the Federal Republic of Germany. It is a special kind of complaint functioning alongside and notwithstanding the constitutional complaint in general understanding. In Germany the basis of lodging it with the Constitutional Tribunal is the infringement of ”the right to self-governance”. In the Constitution of the Republic of Poland, however, this kind of special complaint which local self-government units are entitled to in case of the infringement of their independence (self-governance) is not provided for. At present, neither a communal motion for the examination of the constitutionality of a legislative act nor a general constitutional complaint constitute effective and sufficient measures of the protection of this independence. This being the case, it would be advisable that self-government units in Poland are given the right to lodge ”a communal constitutional complaint” about legislative acts that infringe the right to self-government with the Constitutional Tribunal, based on the solutions found in other legal systems in this area.

District Electoral Commissions in Municipal Elections. Selected Issues in the Light of Practice of Local Election From 2018

The subject of the article is the analysis of the shape of district electoral commissions in municipal elections. The considerations contained in the paper were based on the binding legal regulations and the conclusions from the electoral practice of the municipal elections from 2018. The first part of the article discusses the significance of the electoral commissions for the electoral process. The second part of the study is devoted to the procedure for nominating candidates of the commissions. Subsequently, the entities responsible for appointment of the electoral commissions and the current rules for their functioning are discussed. Finally the article contains the conclusions with critical remarks about the current institutional shape and the mode of appointing the electoral commissions.

Vice-Presidency in the Structure of the Presidential System of Government. The Overview of Legal Regulations in Selected Countries

Vice presidents inscribed into the institutional frameworks of the most typical systems of government (presidentialism, semi-presidentialism, parliamentarianism) exist in more than a quarter of the modern world. The vast majority of them operate – as in the United States – under presidential systems. The aim of the article is to indicate common features of vice presidents existing in the institutional context of presidentialism as well as to identify the most significant differences between the constitutional regulations that relate to them. The author concludes that in some cases the impact on the regulations regarding vice presidents is exerted to a lesser extent by the very architecture of the presidential system of government, and to a greater extent by non-legal factors such as the socio-ethnic structure of a given country and even current political needs of governing elites.

Polish United Workers’ Party (PZPR) and Working People of Cities and Villages, in the View of Constitution of the Polish People’s Republic (PRL) and Electoral Law (1952–1989)

From the very beginning, the PZPR was the main structure for organizing working people of cities and villages as a sovereign in the PRL, but this matter was only implicitly regulated by constitutional law. Expressis verbis, it happened in 1976 on the basis of joint ordinance of Polish People’s Republic Seym and national councils dated January 17th and the provision of Article 3 of Polish Constitution after the amendment dated 10th February. It can be concluded that the regulation of the PZPR legal and constitutional position after more than a quarter of a century, since the Constitution of the Polish People’s Republic was adopted, has finally found its full expression. With the legal solution contained in those two legal acts, the PZPR, while controlling the electoral process, at the same time it determined the content of the law constituted in Seym, which would be done in accordance with the principle of the sovereignty of the working people of towns and villages. That is exactly what the process of expressing the will of a sovereign in a socialist state like the Polish People’s Republic was, and raising that will to the dignity of a statute. But due to the systemic and political anachronism, the existence of too much dissonance with the realities of the Polish People’s Republic in the late 70s of the last century, a retreat from this legal regulation will begin soon afterwards. On the basis of legal solutions of 6th May, 1987, establishing the institutions of a nationwide referendum, we were dealing in the legal and constitutional sense with the beginning of the establishment of a new sovereign in place of working people class. As a result, the structures of organizing the working people along with the PZPR instances had to lose their significance. This process deepened greatly after the adoption of the electoral regulations for the PRL Sejm and the PRL Senate on 7th April 1989.

The Democratic State Ruled by Law Clause as a Fundamental Rule of Limiting Restrictions on Constitutional Rights and Freedoms

Despite the introduction to the Constitution of the Republic of Poland of 1997 of a number of detailed regulations (principles) previously derived from the democratic state ruled by law clause, its importance for the discourse around the limits of legislative interference in the sphere of individual rights and freedoms remains relevant. The author of this text focuses on the analysis of the multifaceted nature of the impact of this fundamental principle on the process of interpretation and application of legal provisions. The text outlines the issues related not only to the scope of direct application of Article 2 of the Constitution of the Republic of Poland, but also its importance for reasoning about the constitutional axiology which significance for the assessment of the legality (proportionality) of interference by the legislative authority with the domain of constitutional rights and freedoms is becoming ever clearer.

UN High Representative Within the Bosnia and Herzegovina State’s Authorities – Quantification

The aim of this article is to analyze the position of the UN High Representative within the state structures of Bosnia and Herzegovina in terms of quantity. This institution is so unique that its character and functioning have been the subject of many discussions. The article analyzes activities of the High Representative since establishment and on this basis conclusions were drawn regarding the present and future of this institution. Main trends in the evaluation of the High Representative’s activities altogether were also mentioned with proposed ways of modification of this institution in directions that eliminate allegations about the lack of democracy or constitutionality of this body. This article not only fills the niche in the subject matter, but updates the research conducted so far regarding to the field of the High Representative’s activity.

Openness of Public Life as the Constitutional Rule of Access to Public Information and the Re-Use of Public Sector Information

The economic right to reuse public sector information derives from the entity’s fundamental right to acquire and disseminate information. It should be assumed that the Act on the re-use of public sector information is such a regulation that allows not only access to information but also the use of the public good for commercial and non-commercial purposes, which is the public information resource. However, the issue of the reuse of public sector information is also related to the principle of openness of public life expressed in constitutional provisions. The rights associated with this principle should be analyzed in the context of public subjective rights. This is also how the right applies to access to public information, but also the right to re-use public sector information, especially where public sector information meets the conditions of public information. The article undertakes an analysis of similarities and differences in the terms public information and public sector information.

The reform of higher education in the Republic of Poland, which was introduced by the Act of 20 July 2018 Law on higher education and science (Dz.U. 2018, item 1668, as amended; hereinafter: Law on higher education and science), revitalized interests in the freedom of scientific research, optimal ways of its implementation and the role of the state in the support of scientific and research activities. For this reason providing an answer to questions concerning the genesis of regulation of the freedom of scientific research in the Constitution of the Republic of Poland of 2nd April, 1997 (Dz.U. 1997, No. 78, item 483, as amended; hereinafter: the Constitution of the Republic of Poland), specifically in relation to its recognition and position in the Polish constitution, the normative content of the freedom, the beneficiaries and entities obliged to comply with it, appears appropriate. These issues seem to be of particular importance. First of all, the freedom of scientific research shall be one of the crucial elements of a knowledge-based economy, with a significant role of higher educational institutions. Secondly, the proper functioning of universities indicates a broader establishment of human rights. What is more, the hitherto undertaken attempts to define the freedom of scientific research seem not to be incisive enough. The aim of this article, therefore, is to draw attention to the issues and difficulties associated with the freedom of scientific research. The answers given to the aforementioned questions, however, having regard to the limited scope of the publication, cannot be deemed definitive.

The scope of the constitutional freedom of scientific research and dissemination of the fruits thereof covers not only the right to undertake scientific activity undisturbed by state intervention but also the guarantee of ownership rights to the results of such creative human activity, as „intangible goods” of human creators. The researcher should be protected regardless of whether the form of research outcomes’ formulation demonstrate abilities to be express as independent work or a contribution to independent work. The legal basis for the freedom of scientific research understood in this way may be found in Art. 73 in conjunction with Art. 64(1) and (2) and Art. 21(1) as well as Art. 32 of the Constitution of the Republic of Poland. The systematic interpretation of these provisions makes it possible to formulate a constitutionally binding standard for the protection of the rights of the creator and gives the basis for formulating public legal right with relevant content like above it is drawn. The implementation of understood in this way public legal right may be asserted claims directly before a court.

Challenges for Intellectual Property Rights in the Age of Digitization

The 21st century undoubtedly belongs to intellectual property law. In principle, each area of social life, but also private individuals to some extent, depend on legal regulations in this field. On the one hand, amazing technological development has taken place, thanks to which unprecedented improvements have been made in areas such as health, economic well-being and overall quality of life, on the other, technologies have forever changed societies, not just Western ones. Therefore, intellectual property law has faced huge challenges since the beginning of our century. It can deepen the gap between the poor and the rich by hindering access to modern solutions, it can also help overcome barriers (access to medicines, knowledge, and material goods). Legal issues arise in every field that humanity develops through its creativity - soon, legislators will have to face questions regarding, among others effective protection of software, big data, personalized medicine, autonomous vehicles, video games and artificial intelligence, etc. However, the question arises whether the actions of legislators will meet the expectations of society and whether they are sensitive to the needs of a changing world.

Quotations in Academic Works

The permissibility of quotations in academic works may be discussed and examined from different perspectives: a copyright perspective (which focuses on the conflict between quotation and infringement of copyright) and an ethical perspective (focusing on the issue of academic reliability). This article contains analysis of the legal status of quotations in the light of Polish Copyright Act of 4th of February 1994, in particular, the prerequisites of the right to use quotations established in Art. 29 of the above act. In a nutshell, it may be concluded that copyright law permits one to quote from other works without the establishment of strict rules and restraints (especially quantitative) in this respect. A flexible approach has been adopted: the permissibility of a quotation is subject to its adequacy for its specific purpose of revealing an explanation, critical or scientific analysis. There are no specific requirements regarding quotations in academic works. These works are specific in that their character and function permit quotes to a greater extent than in other categories of works.

Scientific Plagiarism – Infringement of the Authorship Right

The authorship of work and the authorship of scientific findings do not always go together. Although the law on higher education and science introduces that popularly repeated Iine. According to that regulation, a misappropriation of the authorship of a substantial part of a copyrightable work or of the authorship of a substantial scientific finding provides grounds for the withdrawal of a scientific degree. Copyright law establishes rules under which a person who commits plagiarism can be held liable in civil and criminal court. Not only at the stage (ex post) of the withdrawal of a scientific degree and the redress of copyright infringement (e.g. retraction of an article, compensation), but even at the stage of the creation (ex ante) of scientific content one should achieve the conditions of research integrity regarding the use of one’s own and third party scientific works. Aside from the use of plagiarism checker software, we need to educate the next generations of scientists, disseminate appropriate rules of co-authorship (code of ethics for scientific research) and act against any attempts of falsifying research. In addition to plagiarism, this article also discusses the rules of citation and co-authorship.

This article presents an overview of ten specific problems and considerations that are typically involved in designs of bibliometric indicators for national performance-based research funding systems (PRFS). While any such system must be understood and respected on the background of different national contexts, mutual learning across countries can inspire improvements. The paper is partly based on experiences from a Mutual Learning Exercise (MLE) on Performance Based Funding Systems which was organized by the European Commission in 2016–17and involved fourteen European countries, partly on experiences from advising a few other countries in developing such systems. A framework for understanding country differences in the design of PRFS is presented first, followed by a presentation of the five specific problems and considerations that are typically involved in designs of bibliometric indicators for such system. The article concludes with an overview of how Norway’s PRFS has dealt with the same five problems.

About the Referendum in Poland Once Again – Selected Remarks

Referendums arose the permanent interest of both science and political practice. A lively debate is also ongoing in Poland. The article is devoted to the disputes related to the constitutional referendum, especially the concept of its non-binding character and its prior nature in relation to constitutional amendments, as well as changes in the sphere of local referendums. Particular attention has been also paid to issues concerning the freedom of speech during the referendum campaign and the implementation of referendum results.

Referendum and What’s Next? On the Result of the Nationwide Referendum and Its Effects

In this article, the Author focused on analyzing the consequences of referendum decisions on the basis of Polish constitutional law, including the manner of their implementation into the Polish legal order, if such actions are necessary. He indicates that a significant complication related to the implementation of the referendum result is the inability to directly adopt laws in a referendum in the Polish political system, as well as imprecise regulations contained in the Act on National Referendum. He also states that it is worth considering to define the threshold for the binding nature of the referendum on the basis of the level of support for the winning solution instead of the turnout in the popular vote. This would prevent the tactical absence, which under current conditions may lead to the lack of binding nature of such referendum. The danger is also caused by the lack of a grace period that would not allow for a specified period of time to implement legislative amendments violating the referendum result. This creates an essential fiction of the final result of such a referendum.

Once again on the Pre-Constitutional Referendum

The article discusses the issue of the pre-constitutional referendum in Polish law. In 1992 a referendum approving the new constitution was introduced to the constitutional provisions. The current constitutional regulations expressly allow only the possibility of holding a constitutional referendum approving constitutional amendments. However, the analysis of current regulations leads to the conclusion that it is possible to announce a referendum on constitutional matters in accordance with Article 125 of the Constitution, regulating the so-called nationwide referendum.

Local Referendum in Poland in the Light of Current Legal Regulations and Proposed Changes

The local referendum in Poland is the only instrument that allows residents to directly and ultimately decide on matters important for a given local community. On the one hand, this institution is strengthened by the right to referendum initiative of a binding nature that is granted to residents, but on the other, it is weakened by a number of barriers related to, among others, the requirement of high voter turnout determining the binding referendum result. For years changes in this area have been proposed by scientists, social organizations, as well as entities who have the right of legislative initiative. The last legislative proposal in this regard submitted to the Sejm in 2018 proposed, among others, granting the right of referendum initiative to the executive bodies of local government units, restoring the possibility of holding the local referendum on the same day as the nationwide referendum or the election of the President of the Republic, elections to the Sejm, the Senate or the European Parliament. The most important proposal, however, concerned the abolition of the requirement of minimum turnout conditioning the binding nature of the local referendum.

Is a Referendum a Threat to the Democratic Order? Reflections on Polish Legal Regulation and Referendum Practice Against the Background of the Latest Opinions of Foreign Doctrine of Constitutional Law and Political Sciences

In the latest literature on the subject, one can notice an increase in interest in direct democracy on the one hand, and on the other – a clear increase in the skepticism of researchers towards the idea of making binding and important decisions for the state by popular vote. The purpose of this article is to present and analyze the latest views of foreign doctrine of constitutional law (and, in addition: political science) about the institution of the referendum and to compare them with the (general) analysis of the legal regulation of this institution in Poland, as well as to present the real impact of referendums on the decision-making process and public policies in Poland. As a result, an attempt will be made to assess the Polish legal regulation of referendum institutions in terms of their effectiveness on the one hand, and potential threats (or resistance to threats) to the democratic order on the other. Although direct democracy, and especially a referendum, have a wide range of critics in the scientific community accusing it of even being anti-democratic, radical proposals calling for the complete abolition of referendums are rare. The postulates of appropriate changes in the legal regulation concerning the referendum prevail in order to make it resistant to dangerous modern phenomena: populism, political cynicism, manipulation and propaganda. The implementation of all postulates for changes reported by representatives of science will be very difficult. Noticing this fact may cause that the referendum will become a decision-making procedure very rarely launched. This seems to be the intention of researchers who submit their proposals and reservations – that direct democracy should be only an exception to representative democracy and that the former should not be used against the latter.

The Right to Participate in a Referendum in the Context of Freedom of Expression and the Right to Resume Legal Proceedings Initiated During the Referendum Campaign

In this paper, the author has focused on the freedom of speech during the referendum campaign, its limits and the consequences of crossing those limits. She emphasizes the importance of protecting individual rights against unreliable information during the campaign. She considers accelerated referendum proceedings as a mechanism to prevent the negative effects of the dissemination of false information that may affect the outcome of the referendum. She refers to the judgment of the Constitutional Tribunal that confirmed to the possibility of the resumption of referendum procedure and its consequences.

Vice-Presidency Within Constitutional Structures of Parliamentarianism and Semi-Presidentialism

Vice-Presidents exist mainly in the states adopting the presidential system o government. The overview of contemporary legal regulations proves, however, that the vice-presidency may also be found, though much less often, in the two remaining basic regimes, that is parliamentarianism and semi-presidentialism. The purpose of the article is to analyze constitutional provisions that relate to vice presidency in six countries in which one or the other of the two aforementioned systems was adopted. The author draws attention to the typical and specific features of this institution, arriving at the conclusion that its embedding in the systems of government other than the presidential one is not a factor that essentially distinguishes the construction of the vice-presidency from that occurring in a typical or modified (compared to the model known from the US) presidentialism.

Exceptions to the Principle of Discontinuation of Works of the Polish Parliament

The subject of the study is the exception to the principle of discontinuation of works of the Polish parliament issue. The initial point of reference for further discussion is the statement that the principle despite its benefits has also disadvantages which justify admissibility to formulate exceptions thereto. Then the author indicates its legal nature which has an effect on possible determination thereof. The exceptions to the discontinuation rule in legislation and parliamentary regulations were further analysed. Analyses carried out have led to the conclusion that the discontinuation of works of the Polish parliament has the nature of the constitutional principle and exceptions thereto may be established only by an express decision of the legislator.

The Amendment of 2018 (Art. 52 §2a of the Polish Electoral Code) Against the Background of Considerations on the Implementation of the Guarantees the Right to Vote for People with Disabilities. Practical Aspects

The subject of the considerations made in the article was a practical analysis of the amendment to the Polish electoral law relating to the issue of ensuring the participation of disabled people in the election procedure. Statistical data (National Population and Housing Census of 2002, 2011) have been analyzed, also – normative acts in the field of electoral law, insurance law and doctrine views. The considerations were supplemented with the presentation of examples from the practice of exercising the electoral tights of the disabled. The amendment to the Electoral Code made by the Act on 11 January 2018 by adding § 2 a to art. 52 – in my opinion – should be assessed positively. I think that Polish electoral law adopts the legal definition of disability. The article ends with the postulate de lege ferenda.

Voting by Correspondence and Voting by Proxy: World Experiences vs. Ukrainian Realities

Under modern conditions elections are an integral part of social life of every state. They determine the level of democratism of a state system and constitute the basic form of exercising the sovereign power of the nation. Elections are the foundations of a democratic political system and a guarantee that interests of various social groups are represented in state organs. Under Ukrainian legislation a special place is occupied by personal voting. Nevertheless, voting by correspondence and voting by proxy are not at all inconsistent with personal voting. The thorough analysis of the possibility to apply voting by correspondence and voting by proxy in all types of elections in Ukraine allows for the conclusion that providing for this option by the legislator would have a positive impact on democratisation in Ukraine. It would therefore be necessary to make an amendment to electoral law by establishing precise criteria of membership to the category of voters that would be entitled to cast their vote by correspondence and/or by proxy. It also would be recommendable to increase the legal responsibility of the participants in electoral processes for breaching electoral laws. Above all, it would be necessary to develop effective legal mechanisms that would enable to enforce legal responsibility, including the criminal liability. The indicated measures would result in eliminating the unlawful control over electoral processes, as well as in diminishing the electoral absenteeism, which in turn would enhance the legitimacy of power.

Basis of Constitutional Aspects of Deglomeration

The main goal of the author is to present the deglomeration, seen as a process of transferring seats of central state organs from the capital to other cities, as well as analysing constitutional possibilities of its implementing. As an introduction and explanation of the topic definition problems are presented, along with implementing the deglomeration’s ideas in modern states, including contemporary Republic of Poland, and the pros and cons of the process. Deglomeration still is not a well-known and well-described by the constitutional law doctrine institution. Thus, the article is to be an introduction to the constitutional aspects of deglomeration, especially its relation to such rules as the unitarity, decentralization of power and the norm recognizing Warsaw as the state capital. Finally, the author’s goal is to answer the question: is amending the constitution necessary to go a step further with deglomeration process, which means transferring the most important organs’ seats from the capital elsewhere. In conclusion, although the Constitution itself does not prevent from deglomeration’s progress, certain law changes have to be made in order to establish criteria for cities in which the beforementioned organs would be placed.

Legal Regulations of the Political Neutrality of the Civil Service in Poland

The principle of neutrality of the civil service is one of the pillars of the functioning of the civil service in Poland and should be strictly observed by its members. The problem is often the very understanding of the word “apoliticality” and the application of this principle in both official and private life by members of the civil service. The purpose of the article is to discuss legal, in particular, constitutional regulations of political neutrality of the civil service in Poland and to present the problem of the limits of the loyalty of the civil service to the state apparatus and the limits of state interference in the civil service. The verification of the research thesis will be supported by research based on non-reactive research methods. In addition to literature analysis, a dogmatic and legal method will be used to examine the legal acts regulating the political neutrality of the civil service in Poland.

Constitutional Duty to Obey the Law vs Civil Disobedience

Article 83 of the Constitution of the Republic of Poland states that “Everyone is obliged to obey the law of the Republic of Poland”. The obligation to obey the law cannot, however, imply absolute obedience to any law established by the state. That means that no state has the authority to violate human rights, because they are above the state law. Therefore, as the author stresses, in every modern constitution the right of sovereignty to defend values such as sovereignty, division of powers or human rights is guaranteed. The main thesis of the article indicates that a bad law may be the beginning of civil disobedience, understood as a symbolic, intentional manifestation of disobedience to the law carried out in the name of the conviction of its validity and superiority of other values and non-legal norms, including the possibility of incurring negative legal consequences – sanctions. Civil insubordination is therefore an instrument which, taking into account all its limitations, can be used in countries with democratic systems as a guarantee of protection of civil rights against the action of the authorities. Our constitution does not know the concept of civil disobedience or the older right of resistance. In Article 2 it is clearly emphasized that the Republic of Poland is a democratic legal state and the observance of the law should be understood as such conduct of citizens. and state bodies, which is in accordance with the binding regulations (Article 7 of the Constitution – the principle of legalism). Another issue raised in the article is the problem of justification of civil disobedience. The author does not share the view on the justification of civil disobedience. If the justification of civil insubordination entails the postulate of impunity, the concept of civil disobedience would become contradictory. At the same time he stresses that legalism cannot dictate absolute obedience to the existing law.

Political Elites and Their Role in Society in the Context of Constitutional Civic Values

In the general consciousness, political elites make a significant contribution to both shaping civic attitudes and consolidating democracy. Hence it is very important source of their recruitment, the authority enjoyed by (or not) in society, and finally determined the directions of its development, the principles of the political system and the measures taken to civic and political participation. The quality of the elite, their condition, on the one hand, is a reflection of the state of society, but on the other hand, it is a source of best practices for citizens. One can risk the thesis that political elites are a signpost of political behavior, whose source lies in civic values defined not only in the political culture of Poles, but also in the Constitution of the Republic of Poland of April 2, 1997.

Principle of Non-Discrimination in the European Law

The main aim of the article is to reconstruct the essence and distinctive features of the principle of non-discrimination in the European law, jurisprudence and legal doctrine. In turn, the main research problem lies in the fact that the scope and entities of legal protection of non-discrimination along with the principle of equal treatment differ depending on the interpretation of these legal principles within the legal framework of the European Union (EU) and the Council of Europe. Therefore, the question arises: in which legal order the principle of non-discrimination is more protected in practice, what kind of interaction exists between the European Union and the Council of Europe, and what mechanism of protection of human rights in this respect should be applied? On the basis of a comparative analysis, it should be concluded that the principle of non-discrimination is more broadly protected n in the law of the Council of Europe, in particular by the case-law of the ECtHR. On the other hand, recently it can be observed that the CJEU is increasingly referring to the principle of equality, in particular as regards extending its content and the scope of application. At the moment, as long as the European Union has not acceded to the European Convention on Human Rights (ECHR), natural persons (EU citizens) can not complain about violation of the ECHR by the EU directly before the ECtHR.

Judicial Councils in Andorra, Monaco and San Marino

The purpose of the thesis is to show constitutional position of judicial councils in Andorra, Monaco and San Marino. The thesis presents an analysis of history and constitutional evolution of these bodies and presents their constitutional status form the point of view of the composition and organization and granted competences. The analysis leads to the conclusion that each of three microstates adopts a different concept of the constitutional role of the judicial council.

Language Problems of the European Union. Between the Idealism of Assumptions, Utilitarian Solutions, and the Need for Communicative Law. Part 1

The presented text is the first part of a broader study dedicated to linguistic issues in the constitutional aspect with reference to the territory of the Republic of Poland and the European Union. Linguistic issues, issues of the official language disappear from the perspective of constitutionalists and researchers dealing with European Union law. However, this is an important problem, given that the interpretation of legal norms is primarily a linguistic interpretation. The text deals with the issue of the official language in Poland, considering it in the constitutional aspect and in specific laws, especially in the law on the Polish language. The concepts of the state language, preferred in the interwar period, were considered. It has been pointed out that language is an element of identity. It causes problems in the area of the European Union. an attempt to solve them was the European Charter of Regional or Minority Languages. The article discusses the regulations on official languages, addressing the issue of the status of official and working languages. Due to the nature of the considerations taken in the text, their meaning, the complexity of the problem, the content of the article is divided into two parts.

The Decline of the Postwar Constitutional Paradigm: Review Article of Constitutional Democracy in Crisis?, eds. M.A. Graber, S. Levinson, M. Tushnet, ISBN-13: 978-0190888985, ISBN-10: 0190888989, Oxford University Press, New York 2018, pp. 738

“Constitutional Democracy in Crisis?” published in 2018 by Oxford University Press significantly enriches contemporary debate on constitutional topics. This review article briefly outlines the volume edited by M.A. Graber, S. Levinson and M. Tushnet. What makes this book distinctive is its critical approach to the present status of constitutional democracy, which I associate with the influence of the editors whom I count among the most inspiring current constitutional thinkers. Moreover, this is a truly collaborative effort, not just a collection of papers. An impressive array of contributors produced a detailed study on the apparent weakening of many constitutional democracies around the world. Deeds and refusals to obey the law were written down which makes this volume a chronicle of the erosion of democracy during the first two decades of the 21 st century. I argue that the book also shows the decline of the postwar constitutional paradigm and the crisis of the academic reflection about the constitutional law. In this sense the book is like a snapshot of the transitional moment between the discredited past and an unknown future. I expand this theme in the second part of the review drawing on authors such as U. Mattei and L. Nader (the illegality of the rule of law), M.F. Massoud (the use of law to maintain power), F.J. Urbina (a critique of proportionality and balancing), A. Sulikowski (the tension between the constitutional thinking and the modernity), L.M. Seidman (the constitutional disobedience), M.P. Markowski (the damaging role of values in the political process), J. Dukaj (the politics in the era of post-literacy).

Literature:

• Aleksandrowicz T.R., Komentarz do ustawy o dostępie do informacji publicznej, Warszawa 2004.
• Fleszer D., Zasady dostępu do informacji publicznej przetworzonej, „Samorząd Terytorialny” 2011, nr 1–2.
• Goszczyński A., Rzepliński A., Dostęp bez dostępu. Nowa ustawa nie umożliwia obywa-
  telom uzyskiwania urzędowych informacji, „Rzeczpospolita”, 9.08.2001.
• Jaśkowska M., Dostęp do informacji przetworzonej, [w:] Sądownictwo administracyjne
  gwarantem wolności i praw obywatelskich 1980–2005, red. M. Sawicka-Jezierczuk,
  Warszawa 2005.
• Kamińska I., Rozbicka-Ostrowska M., Ustawa o dostępie do informacji publicznej. Komentarz praktyczny, Warszawa 2008.
• Kamińska I., Rozbicka-Ostrowska M., Ustawa o dostępie do informacji publicznej. Komentarz, Warszawa 2016.
• Kurek J., Definicja informacji przetworzonej. Postulaty de lege ferenda, „Przegląd Prawa
  Publicznego” 2016, nr 12.
• Pieńczykowski M., Interes publiczny jako przesłanka uzyskania przetworzonej informacji
  publicznej, „Zeszyty Naukowe Sądownictwa Administracyjnego” 2017, nr 6.
• Przywora B., Regulacje prawne w zakresie dostępu obywateli do informacji przetworzonej – stan obecny i postulaty zmian, „Przegląd Prawa Publicznego” 2013, nr 5.
• Szustakiewicz P., Problemy dostępu do informacji publicznej na tle orzecznictwa sądów
  administracyjnych, „Samorząd Terytorialny” 2015, nr 4.
• Tarnacka K., Prawo do informacji w polskim porządku konstytucyjnym, Warszawa 2009.

REFERENCES:

Literature:

• Banaszak B., Konstytucja Rzeczypospolitej Polskiej. Komentarz, Warszawa 2012.
• Bojarski T., [w:] Kodeks wykroczeń. Komentarz, red. T. Bojarski, Warszawa 2015.
• Bojarski T., Polskie prawo wykroczeń. Zarys wykładu, Warszawa 2012.
• Budyn-Kulik M., [w:] Kodeks wykroczeń. Komentarz, red. P. Daniluk, Warszawa 2019.
• Kijowski M., Polski hymn państwowy jako zagadnienie konstytucyjnoprawne, „Ius et administratio” 2004, nr 3.
• Sadomski J., [w:] Konstytucja RP. Tom 1. Komentarz do art. 1–86, red. M. Safjan, L. Bosek, Warszawa 2016.
• Wiszowaty M.M., Symbole państwowe III Rzeczypospolitej Polskiej, „Państwo i Prawo”
  2011, nr 7–8.

Literature:

• Chybalski P., Komentarz do art. 118, [w:] Konstytucja RP.t. 2, red. M. Safjan, L. Bosek,
  Warszawa 2016.
• Kodeks postępowania cywilnego. Komentarz. Art. 1–505. Tom I, red. T. Szanciło, Warszawa 2019.
• Szmyt A., W sprawie uprawnień przedstawiciela komitetu inicjatywy ustawodawczej obywateli, „Przegląd Sejmowy” 2010 r., nr 1.
• Wiliński P., Karlik P., Komentarz do art. 175, [w:], Konstytucja RP. Komentarz, t. 2, red.
  M. Safjan, L. Bosek, Warszawa 2016.

Authorship of a Scientific Work v. Authorship of an Invention and the Right for a Patent in Polish Universities

Scientists working at Polish universities and research institutes are subjected to the recently amended Polish Law on Higher Education, which imposes on this group the obligation of periodic evaluation of scientific achievements, including scientific works and industrial property matters. The obligation to prove one’s own scientific achievements relates directly to the problem of attribution of authorship. Academic practice shows that not only are perceptions of authorship problematic but also that there is little understanding of the differences between the authorship of a scientific work and the authorship of an invention. In this study we discuss in detail the latter case referring to Polish legal acts and we attempt to characterize the nature of innovative activity in relation to general scientific activity.

Science Policy v. Academic Culture. Towards a New Consensus

In this article the existence of a practical dichotomy of values within academia is proposed. On one side of this dichotomy the classical and idealistic type of university is found; while on the other side, the pragmatic university, focused on effectiveness or even economic goals, exists. Science policy and reforms naturally support the second model of university constitution. At the end of the article I enumerate certain essential attributes of academic culture that must be defended through all reforms for the good of academia and the society.

The text presents the course and conclusions of the discussion on evaluation of research in social sciences and humanities. The results of social sciences and humanities research can, on the one hand, be of significant local importance, and, on the other, require an appropriate international context. These conflicting trends are difficult to balance. A further difficulty is the attempt to reduce the evaluation of research results in social sciences and humanities to the effects of publication in ranking journals. This trend gives rise to many pathological phenomena (related, for example, to the increase in the cost of publication in journals and other ranked publications). The dominance of the ranking system of journals within the framework of financing scientific disciplines has negative impacts on aspects of academic activity beyond the publication of research results. Teaching activities and university relations with the wider world may suffer. In the course of the discussion an attempt is made to respond to these threats.

The Faces and Paradoxes of Judicial Accountability

The article regards the problem how to separate judicial accountability from the other forms odf judges liability. It presents a proposal of judicial accountability concept in legal science, the basic assumptions for the settlement of judicial power towards forms of responsibility, proposing the separation of these categories. and the subject and object scope of judicial accountability. The result of the analysis are conclusions on the forms of accountability within judicial power, especially judges’ decisions - and outlining some threats that apply to them.

Responsibility of the Judicial Power and Disciplinary Responsibility of Judges

Two circumstances: ineffective legal protection system and controversial cases of abandonment of enforcement of judges’ disciplinary liability have become a basis for justifying amendments to regulations on judges’ disciplinary liability. New solutions are characterised by, among other features, the limiting of the independence of the judiciary and subjecting it to increased control exercised by the legislature and the executive. The rationale behind these changes is to be sought for in a claim that courts of law are not a representative of the people which can be considered qual to the other authorities and that, therefore, having been abused by judges, the rights they have enjoyed hitherto (other than the administration of justice) should be constrained. Some judges and representatives of the jurisprudence reject this argumentation pointing out that rather than being conducive to the declared goals of improving the functioning of courts and of judges’ observance of law, the amendments result in the limiting of the citizen’s right to an independent tribunal. In these circumstances, a dispute has arisen over how a judge should act if the law on disciplinary liability prohibits their right to criticise or legally verify regulations depriving them of the guarantee of independence and impartiality. Do the statutable principles of disciplinary liability also determine all the principles of the judiciary liability? What if there is a difference of opinions between the representatives of the legislature and the executive versus those of the judiciary concerning an interpretation of the citizen’s right to a tribunal and of the notion of “independence of a tribunal”? Analysing the legal and doctrinal argumentation offered by both parties may facilitate answering these questions. This approach may also prove useful in determining whether enforcing the new principles of disciplinary liability will resolve the current crisis in the relationship between courts and the other authorities or, on the contrary, initiate its further stage.

Civil Liability of a Disciplinary Spokesman for Breach of Judicial Independence

The article comprises an analysis of the civil law liability of a disciplinary spokesman for breach of judicial independence. The starting point of the analysis is general possibility of imposing civil liability on the judicial disciplinary spokesman, and that judges’ immunity protects from criminal offences only. The civil liability of the disciplinary spokesman is grounded on the requirement of due performance of the disciplinary spokesman’s function. The boarders between the power of the disciplinary spokesman and the civil liability must be assessed in light of the limbs of a disciplinary offense, which limit the disciplinary spokesman’s right to intervene in certain cases. The civil liability of the disciplinary spokesman is possible not only on the grounds of art. 23 and 24 of the Polish Civil Code, but also on the basis of tortious liability. The availability of these legal mechanisms is directly related to the nature of the disciplinary spokesman’s act, and boils down to the question whether the disciplinary spokesman is justified in a given instance to initiate disciplinary proceedings, i.e. whether the limbs of a disciplinary offence as required by art. 107 § 1 u.s.p. are present. The article discusses two crucial elements of the civil law liability of the disciplinary spokesman: unlawfulness and negligence. Further elements of the liability: loss and causation do not differ from the civil law standards. Therefore, in this respect, the article refers to the general rules.

Disciplinary Responsibility of a Disciplinary Spokesman for Breach of Judicial Independence

The following article comprises an analysis of the basis and scope of disciplinary liability of a disciplinary spokesman for breach of judicial independence. It indicates the inherent interdependence between judicial disciplinary liability and the constitutionally protected principle of independence. The author believes that a separate judicial disciplinary liability constitutes one of the guarantees of independence. The protection of independence is further enhanced by the autonomy of the disciplinary proceedings and the means of determining the basis for such liability, the limits of which are delineated by independence. Nevertheless, it serves to outline the spokesman’s competences and thus the scope of legal acts. Abuse of the aforementioned competences in this regard is equal to an abuse of independence. What is more, the commentary sets out to introduce a two-tier understanding of the notion of abuse of independence, that is internal and external breaches. Under the current law, it is impossible for a spokesman to be in breach of independence, for he does not boast one. However, a spokesman can undertake to externally abuse another party’s - i.a. a judge’s - independence. Such abuse can be caused by non-adherence to the established limits of judicial disciplinary liability. Under such circumstances, a spokesman is in breach of his competences, which is subsequently reflected in a material violation of judicial independence. The bases of disciplinary liability of a disciplinary spokesman are set forth in the provisions pertaining to the disciplinary liability of the judiciary and the prosecution. Hence, a disciplinary spokesman’s liability is a sub-type of the general disciplinary liability of the judge (or prosecutor) who serves as a spokesman.

Disciplinary Justice in the Context of Constitutional Restrictions

The purpose of this article is to analise the present formula of disciplinary responsibility of the judges in a context of the constitutional rules: independent of judges, independent of courts and right to a fair trial. The Author analises present legal status, as well practice and legal propositions of changes. By the way, he notices a dengerous tenden cy towards transgressing constitutional limits and infringement these regulations with the European Union’s law.

Disciplinary Liability of a Judge of the Polish Constitutional Tribunal

The essence of the article is to present the concept, function and principles of disciplinary liability and the mode of disciplinary proceedings against judges of the Constitutional Tribunal in the context of the ongoing dispute over the independence of each of these constitutional state organs. Disciplinary liability arose from sources of repressive liability and is a special type of criminal liability due to the functions it performs, but also a high degree of ailment. The author argues that despite numerous legal provisions, the model of conduct has not changed, as well as are based on misunderstood axiology, bypassing the principle of nemo iudex in causa sua. I propose, in accordance with the principle of objectivity (impartiality), to submit only disciplinary judges of the Constitutional Tribunal to the Supreme Court for consideration with the simultaneous adoption of an identical mutual principle with respect to judges of the Supreme Court.

Immunity of a Judge in Criminal Matters in the Context of the Process of the Delegitimization of the Disciplinary Chamber of the Supreme Court

The subject of the article is to show the issues related to the institution of judicial immunity and its importance in bringing judges to criminal liability on the basis of current constitutional and procedural provisions. The author made these considerations a starting point for an in-depth analysis of the issue of delegitimization of the judiciary on the basis of recent processes in Poland concerning the National Council of the Judiciary and the newly established Disciplinary Chamber of the Supreme Court. The whole is issue situated on the level of EU law, national regulations and rich jurisprudence of the judicial authorities.

Boundaries of a Judge’s Disciplinary Tort

The subject of the article is to show the key issues related to the disciplinary liability of judges, among which the author analyses the notion of disciplinary tort and the substantive criminal law institutions relating to it, including culpability, the degree of social harmfulness, and the stadial and phenomenal forms. The study attempts to answer the question about the legitimacy of separating the notion of corporate harmfulness in relation to the rules of functioning of the professional environment of judges. The article also contains considerations concerning the prerequisites of disciplinary liability of judges, taking into account the specificities provided by the legislator for each category of courts, as well as the directions of interpretation of the prerequisite of obvious and gross violation of the law and the prerequisite of a breach of dignity of the office in relation to the scope of the concept of judicial independence.

Polish System of Disciplinary Liability of Judges in the Light of Standards European Union Law

The study presents current issues of the disciplinary liability of judges, starting with an indication of historical attempts to introduce new, unified regulations intended to cover most of the legal professions, up to the enactment of the statutes of the Disciplinary Chamber of the Supreme Court and the so-called Disciplinary Law for judges. The author conducts an in-depth analysis of the disciplinary regulations in terms of testing compliance with EU law standards and the need to ensure the effectiveness of EU legal solutions.

Dysfunctionalities in the System of Transfer and Delegation of Judges and Associate Judges of Common Courts

as a Sign of Supervision Exercised by the Minister of Justice over Common Courts and Established in Statute The purpose of the article is to examine the competences of the Minister of Justice in the sphere of transfer and delegation of judges and associate judges of common courts. To this aim the dogmatic method was applied. The article puts forward the thesis that the competence of the Minister of Justice in transfer and delegation of judges and judge assessors promotes not so much the nourishing of judges’ sense of prudence and careful administration of justice as strengthening the desire to promote and accelerate a rise in the social and material status, thus containing a high burden of dysfunctionality, which as such should be revoked.

Judicial Power in a Crisis of Constitutional Democracy

The article is devoted to the problems of changing the position of the judiciary in Poland in the conditions of crisis of constitutional democracy. Two basic research hypotheses are verified. First of all, after 2015, Poland was one of the countries revising its liberal-democratic political foundations. Such foundations undoubtedly include: the rule of law, the principle of constitutionalism and the principle of division and balance of power. Secondly, the political position of the judiciary has been defined in the liberal-democratic Constitution of the Republic of Poland in a way appropriate for the protection of the above mentioned values, but the political practice shows that the lack of proper will to implement the constitutional provisions (using the arithmetic advantage in parliament without the recognition of minority rights) may violate the „backbone” of constitutional democracy.

The Use of Censuses in Elections to Constitutive Bodies of Local Government Units

The basic issue when determining the principle of universal suffrage is to indicate the group of people who shall have the right to vote. However, it may be restricted by suffrage censuses. The 21st century brought the significant challenges in determining entities that can benefit from the electoral rights, also in the elections to constitutive entities of local government units. It should be remembered that the world is still subject to the numerous processes of change. Therefore, the electoral law cannot be indifferent to it but should be adjusted by the legislator to the changing conditions in which given individuals function. The author of this study has analyzed existing legal solutions and is trying to answer the question of whether current regulations can be considered optimal, or whether there is a need for a new definition of constraints on electoral law, in the context of globalization processes that result in much more frequent and easier movement of people, and associated with this mixing of citizens of individual countries, or residents of the local government units of territorial units.

Relation Between Concepts “Liberal Profession” and “Profession of Public Trust”, Referred to art. 17 par. 1 of the Polish Constitution. Part I

The terms ‘liberal profession’ and ‘profession of public trust’ used in law and literature have not been defined, and therefore are often used interchangeably. However, they define two different occupational groups, so they should not be used as synonyms. The lack of a definition of these concepts creates a lot of doubts, the explanation of which is very important because granting a given profession the status of “profession of public trust” is associated with granting it certain important privileges, obligations, but also restrictions. It regards, among others for the possibility of creating professional self-governments authorized to represent persons exercising these professions and overseeing their proper performance within the limits of the public interest and for its protection. The above, may entail the need to introduce many restrictions both in the scope of freedom to practice a profession and the freedom to start a business, if such activity would be related to such activity.

Chairman of the Government in the Czech Republic - Evolution of Political System and Constitutional Practice

The article discusses the evolution of the political position of heads of government in the Czech Republic. Time censures are between 1992 and 2019. The institution of the Prime Minister has become a real instrument of political power for the leaders of political groups in the country discussed. The parliamentary model of government in force in the Czech Republic assumes close cooperation between the legislative and executive authorities. The analysis includes both the constitutional regulations and political practice of the last nearly 30 years.

Lex retro non agit Aule in Tax Law - Comments Evoked by the Case K 4/19

The rule saying that the law has no retroactive force (lex retro non agit) is of particular importance in tax law. Generally, it is recognized as a measure protecting taxpayers’ rights. Local government units evoked this rule in the case K 4/19 examined by the Constitutional Tribunal. From this point of view, we deal with the situation that is both practically and theoretically significant. The legislator used retroactive force of law to amend provisions imposing a real estate tax on wind farms, which decreased taxpayers’ liabilities but, at the same time, municipal own income. A purpose of the study is to present the above-mentioned issue and answer the question whether the above quoted rule was actually violated. The analysis of its factual and legal aspects apparently entails that it did occur. To prove it, the author of the study has mainly used a formal-dogmatic research method based on the analysis of the Constitutional Tribunal case law and the subject literature.

Limitations of the Property Right in Polish Constitutional Law

The right to property as an implicit subjective right is not an absolute and unlimited. The constitutionally guaranteed right to property may, in certain cases and under appropriate conditions, be restricted. According to the Article 31(3) of the Constitution of the Republic of Poland, the necessity to introduce limitations in the exercise of constitutional freedoms and rights, including the right to property, is only possible if the criterion of a democratic state is taken into account. The possibility of statutory and non-violent interference in the right to property was also expressed in Article 64 of the Constitution, according to which everyone is entitled to the right to property. The assessment of the admissibility of interference in the right to property takes place in the light of undefined in a complete manner the principle of proportionality and the principle of the essence of the property right, which affects the manner of resolving the issue of the constitutionality of a given limitation of this right.

The Realization of the volonté générale in the Representative Democracy System from the Perspective of the

Deliberations of Raymond Carré de Malberg The article concerns the comparison of the idea volonté générale proposed by J.J. Rousseau with the political solutions put forward by R.C. Malberg. The constitutionalist from Strasburg noticed some flaws of the political system of the French Third Republic. The flaws were connected with the lack of the efficiency of the connected with the supremacy of the parliament executive power. In the opinion of the scientist, in the reality of representative democracy, voting is often dominated by the party discipline and some quantitative criteria. Such an approach may favor the misinterpretation of the volonté générale, which should be treated as a qualitative category focused on the realization of the common good. The solutions proposed by Malberg aimed at strengthening the institution of referendum. The institution fully expressed the sovereignty of the nation and created the basis for the legitimacy of the political and legal system.

Right to Asylum - Constitutional and International Legal Regulations

In the era of the ongoing migration crisis, when the regulations of international refugee law aimed at measure up to the long-term effects of this crisis proved to be insufficient, they are the national and constitutional norms that can be one of the best measures to protect people fleeing persecution. The purpose of the article will be to conduct a comparative law analysis of the right to asylum in the Constitution of the Republic of Poland and in the constitutions of selected Member States of the European Union, and on this basis to examine how constitutional right to asylum can help obtain real protection for persons forced to leave their own territory. International and national regulations regarding access to the right of asylum will be distinguished. The right to asylum has not been regulated in any universally accepted international agreement, which is a reason why there are significant differences in the regulation of this right in the basic laws. Although statistically asylum is not granted as often as other international protection measures, the inclusion of the right to asylum in constitutional regulations should be assessed positively.

Proceedings Regarding the Dismissal of the President of a Regional Audit Chamber

The purpose of this article is to analyze the appeal procedures of the president of the regional audit chamber (president of RIO) in the context of his organization position and functions. Due to the wording of the provisions of the act on regional audit chambers (act), two modes of dismissal of the president of RIO can be distinguished. The first of these can be described as an individual procedure, as the appeal concerns only and directly the person holding the position of president of RIO. The person concerned may appeal against the decision of the Prime Minister to appeal to the administrative court within 14 days of its delivery. The second mode can be described as group mode because it occurs as a result of the dissolution of the RIO college. The difference between the individual and group mode of dismissal of the president of RIO is the inability to appeal in any way the decision of the prime minister in the event of dissolution of the RIO college, which also implies the dismissal of the RIO president and his deputy. This means that the decision to dissolve the college of the regional accounting office de lege lata is not subject to any judicial review. Due to the important supervisory instruments at RIO’s disposal in relation to local government units (j.s.t.) de lege ferenda, it should be introduced into the law that the administrative court may review the legality of the dissolution of the RIO college. In addition, it should also be noted that the possibility for the president of RIO to appeal against the decision of the Prime Minister to court is another argument in favor of the necessity to operate in a democratic state fully independent courts and independent judges.

Awarding the Renumeration to a Professional Attorney for Preparing an Opinion on the Grounds of a Complaint to an Administrative Court

This article is focused on ethical and legal aspects of remuneration for work performed by the attorney established under the right to assistance in the court-administrative proceedings. The attorney established under the right to assistance is obliged to prepare a pleading enabling the party to initiate court proceedings. The legislator did not foresee the possibility for an attorney established under the right to assistance to draw up an opinion on the lack of grounds to lodge a complaint. In its teaching the Church emphasizes the ethical dimension of work. It concerns both the performance of work and the payment for its completion. Every job should be performed with due diligence and integrity. It is necessary that the payment for the work done should be fair and adequate. It is unacceptable that the performed job remains unpaid for. Similarly, the employee cannot demand remuneration if he either failed to do the job or did not meet the required standards. The ethical dimension comprises the responsibility for the jobs undertaken by employees. The aim of the article is to try to Combie two scientific Fields to show that both the legal and ethical Fields have the same rulet described in different scientific languages. The autors hope that the issues raised will significantly contribute to under standing what remuneration is for the work done, as well as the fact that in the ethical and legal field this type ob. Behavior is unacceptable. Both the law and social teaching of the Catholic Church consider such attitudes to be reprehensible.

The Constitutional Position of the Judiciary in France. Between Politicization and Corporatism

The French legal tradition shaped by the French Revolution has been critical of the ‘power of the judges” and has not considered the judiciary to be a separate authority of comparable importance to the executive and legislative powers. According to the post-revolutionary tradition, appointments to the positions of judges were made by the executive power. It can be assumed that the Constitution of the 5th French Republic at the time of its enactment identified with this approach, as it entrusted the President and the Minister of Justice with competence in fundamental matters of justice. The evolution of the 1958 Constitution and of the constitutional practice deserves attention and a detailed analysis. France abandoned the domination of the executive power in this sector for the benefit of the increasing influence of judges on the administration of justice and the empowerment of the Supreme Judicial Council itself. At the same time, the 5th Republic maintained the originality of the constitutional provisions in this area and the strong position of the executive power and the Minister for Justice. Last but not least, an important motive for a constitutional debate and constitutional amendments is the concern for a balanced constitutional model that would be immune both to the danger of politicization and corporatism of the judiciary. Therefore, the case of France is important when seeking solutions that would combine independence and accountability of the judiciary. The article analyses the evolution of the political position of the judiciary in France, as well as the basic ideas and arguments raised in the constitutional debate.

Constitutional Guarantees of Specific Health Services in the Context of Protecting Women in Pregnacy

Providing health services to pregnant women is a special situation, which is confirmed in constitutional provisions, and above all in art. 68 paragraph 3 of the Polish Constitution. This article imposes on public authorities the obligation to provide specific health care to certain entities, including women expecting a child. Regardless of the principles of financing health services, pregnant women are in a distinguished group for which the state guarantees special health care. The purpose of the article is to indicate that the normative scope of provision 68 para. 3 is an expression of the specific axiology adopted by the constitution-maker, in which the care of a pregnant woman also means caring for the development of the nation, human dignity and protection of life and health - i.e. fundamental values. Legislative regulations related to norms of protection for pregnant women should constitute a kind of control pattern regarding standards of providing services in healthcare, understanding the essence of this care and the ability to decode legal norms in terms of constitutionally protected values. The basic research method was dogmatic and legal (stylistic and linguistic) analysis, as well as humanistic axiological analysis.

Citizen Initiated Referendum and Polish Referendum Law

The main aim of this study is to respond to the call to give citizens the power to initiate a referendum in a binding way. The key question in this context is whether such a postulate should not be treated as just a typical manifestation of political populism and thus rejected, or whether it should be supported by recognizing the institution of a referendum initiated by the citizens as a factor conducive to a more complete implementation of the idea of democratic rule, without threatening the destabilization and dysfunctionality of the political system. The analysis carried out in the article proves that this institution cannot be discredited because it should be seen as a necessary element of the process of exercising power in a democratic state. The proposed legal regulation may be conducive to achieving such a role in Polish political practice.

Second Amendment to the American Constitution. Genesis, Targets and Objectives

The author will try to trace the genesis of the Second Amendment in the context of the American constitution process and the influence of other legal acts on the final content of the provision in question. What’s more the author will analyze the ideas that accompanied the Founding Fathers and which led to the creation of the United States Constitution. The author will analyze the objectives of the Second Amendment and the ideological assumptions that underpin it, including the issue of enabling citizens personal defense and the protection of private property, as well as the issue of guaranteeing citizens an effective tool to resist the state apparatus as a guarantee of citizens’ freedom as well as to prevent possible tyranny. Finally, the author will refer to the issue of culture of gun ownership in the USA and Poland.

Teza

Trybunał Konstytucyjny postanowił o utracie mocy przepisu art. 57 § 5 pkt 2 ustawy z 14 czerwca 1960 r. – Kodeks postępowania administracyjnego (Dz.U. 2018, poz. 2096 oraz 2019, poz. 60, 730 i 1133), w brzmieniu obowiązującym do 2 lipca 2019 r., w zakresie, w jakim różnicuje skutki nadania pisma procesowego w zależności od miejsca położenia operatora pocztowego na obszarze Unii Europejskiej, uzależniając skuteczność zachowania terminu wykonania czynności od nadania pisma wyłącznie w polskiej placówce pocztowej operatora wyznaczonego w rozumieniu ustawy z 23 listopada 2012 r. – Prawo pocztowe (Dz.U. 2018, poz. 2188 oraz 2019, poz. 1051), jest niezgodny z art. 32 i art. 78 Konstytucji Rzeczypospolitej Polskiej oraz z art. 21 ust. 1 Traktatu o funkcjonowaniu Unii Europejskiej (Dz.U. 2004, nr 90, poz. 864/2).

When in 2020 the World Health Organization announced a COVID-19 contagious disease pandemic, it was clear that governments must take actions to limit the consequences of pandemia. Poland was one of the first to introduce far-reaching measures, limiting freedom of movement and closing an increasing number of business and activities. The Polish Constitution contains potential extraordinary measures, including the provision for declaring a “state of natural disaster”, but the Polish government has refrained from enacting it. Instead, it is based on a “state of epidemic”, which is not provided for in the Constitution as the legal ground for limiting human rights. The purpose of this study is to answer the question whether human rights restrictions introduced during the epidemic have a sufficient legal basis from the point of view of the Polish Constitution and the resulting principles.

The author assesses constitutional practice after 2015 in Poland in the context of constitutional changes, and indicates that no formal change has occurred. Instead, she is considering qualifying the actions of the ruling majority as Verfassungsdurchbrechung, an institution known from the political practice of the Weimar Republic. However, she concludes that an informal constitutional change is a more appropriate institution to describe the political reality in Poland. The author shows practices that can be qualified in this way (reinterpretation and interpretation of the text of the constitution by the CT, creation of competences unknown to the constitution by the legislature and the executive power, emptying of the text of the constitution). Furthermore, these practices also step beyond a simple violation of the constitution, as they aim to build a new system (illiberal constitutionalism).

The purpose of the article is to conduct an axiological reflection using the notion of public interest, on preparation and the procedure for amending the constitution. The article provides a theoretical attempt to capture and place public interest in the broadly socially and publicly understood process of constitutional change. This attempt is not dictated solely by the desire to conduct theoretical – legal and intellectual speculation. This is supported by the increasing voices of the need to amend the existing constitution, which are often superficial, populist and de facto formulated from the position of the supremacy of the state over the individual. The time-varying connotations of the general public interest clause are related to the axiology of selected constitutional principles. The public interest, understood at a given moment in the development of social life, should be a determinant of the process broadly, i.e. both the social and the legislative sense of the constitutional amendment. Similarly, the very direction of constitutional changes should be an expression of social interest.

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