- Author:
Magdalena Skibińska
- E-mail:
m.skibinska@uz.zgora.pl
- Institution:
University of Zielona Góra
- ORCID:
https://orcid.org/0000-0003-1676-1157
- Year of publication:
2020
- Source:
Show
- Pages:
139-151
- DOI Address:
https://doi.org/10.15804/ppk.2020.05.10
- PDF:
ppk/57/ppk5710.pdf
The main purpose of the article is to determine the mutual relations between mediation and court proceedings, as well as to answer the question whether mediation services provided by out-of-court entities should be considered as a part of the justice system and fulfill the constitutional right to court. The conducted research leads to the conclusion that both the judiciary and mediation should be considered as complementary methods of dispute resolution, although the first of them is granted primacy under the Polish Constitution i.a. due to the fact that mediation settlements are subject to court approval and not all types of disputes can be resolved bindingly in mediation. Mediation does not belong sensu sticto to the definition of the judiciary and does not fulfill the right to justice but may be included in a broad understanding of the judiciary and therefore its existence according to current regulations does not violate the position and rules of functioning of the judicial system. However, this situation can easily change, if the mandatory mediation planned by the legislator in divorce and legal separation cases comes into force.
- Author:
Anna Krawczyk-Sawicka
- E-mail:
anna.krawczyk@kul.pl
- Institution:
John Paul II Catholic University in Lublin
- ORCID:
https://orcid.org/0000-0002-1294-4872
- Year of publication:
2020
- Source:
Show
- Pages:
653-659
- DOI Address:
https://doi.org/10.15804/ppk.2020.06.54
- PDF:
ppk/58/ppk5854.pdf
The right to a fair trial is at the forefront of the key individual rights in a broad catalogue of all rights and freedoms, for at least several reasons. Firstly, because it provides for one of the most important procedural mechanisms for the enforcement of all the other rights and freedoms. Secondly, because it protects the individual against potential violation of their rights and freedoms. Thirdly, because it is a reflection of the relation between the individual and the state, indicating all those elements that are today commonly considered as specific measures in the democracy index. As a consequence, the manner in which the right to a fair trial is established and its specific structure determines all other rights and freedoms, and especially their practical application, which determines whether the rights and freedoms are concrete or only appearances.
- Author:
Monika Klejnowska
- E-mail:
mklejn@univ.rzeszow.pl
- Institution:
Uniwersytet Rzeszowski
- ORCID:
https://orcid.org/0000-0002-0025-0371
- Year of publication:
2021
- Source:
Show
- Pages:
297-312
- DOI Address:
https://doi.org/10.15804/ppk.2021.02.18
- PDF:
ppk/60/ppk6018.pdf
Constitutional aspects of cassation judgment in the Polish criminal trial
The article shows how the cassation appeal model determines the exercise of the right to a fair trial. The aim was to examine the constitutionality of solutions concerning retrial not considered to a greater extent in the science of the criminal process. The formal and dogmatic method was used in the research. The Constitution of the Republic of Poland does not indicate what the model of the criminal trial is. It does not explicitly contain an order or a prohibition to repeal judgments and refer the case for reconsideration. The legislator, while shaping the right to revoke judgments, including legally binding ones, and to refer the case for reconsideration, must, however, particularly carefully balance all the conflicting values. It must particularly take into account the importance of hearing a case without undue delay and the stability of final court decisions as constitutional values.
- Author:
Piotr Krzysztof Sowiński
- E-mail:
psowinski@prac.ur.edu.pl
- Institution:
Uniwersytet Rzeszowski
- ORCID:
https://orcid.org/0000-0003-2210-5877
- Year of publication:
2021
- Source:
Show
- Pages:
189-200
- DOI Address:
https://doi.org/10.15804/ppk.2021.03.12
- PDF:
ppk/61/ppk6112.pdf
Constitutive and Conventional Provenance of Law to Fair Consideration of Case (Right to a Fair Trial)
The text is devoted to the problem of the right to a fair trial, which the Polish legislator recognizes as the one of the most important civil rights and liberties. The constitutive and conventional lineage of this right was indicated. It is noted in the text that this right can only be excercised in a state that recognizes the tripartite division of power as well as in situation in which common judiciary is based on four fundamental foundations such as jurisdiction to hear a case of a given type, impartiality, independent in legal, organisational and decision-making terms.
- Author:
Anna Surówka-Pasek
- E-mail:
surowkaa@uek.krakow.pl
- Institution:
Uniwersytet Ekonomiczny w Krakowie
- ORCID:
https://orcid.org/0000-0002-7396-0884
- Year of publication:
2021
- Source:
Show
- Pages:
431-440
- DOI Address:
https://doi.org/10.15804/ppk.2021.05.34
- PDF:
ppk/63/ppk6334.pdf
Admissibility to establish the institution of justices of the peace under the Constitution of the Republic of Poland
The study is a brief presentation of the issue of the possibility of introducing the institution of justices of the peace in the Republic of Poland and the guarantees ensuring the independence for justices of the peace.
- Author:
Łukasz Mroczyński-Szmaj
- E-mail:
lmroczynski@ur.edu.pl
- Institution:
University of Rzeszów
- ORCID:
https://orcid.org/0000-0002-4256-5136
- Year of publication:
2021
- Source:
Show
- Pages:
63-77
- DOI Address:
https://doi.org/10.15804/ppk.2021.06.05
- PDF:
ppk/64/ppk6405.pdf
The study discusses amicable dispute resolution in the light of the constitutional principle of the right to a trial and the constitutional concept of the “administration of justice”. In the paper, the author outlines the definitions and doctrinal approaches present in the ongoing debate in the Polish literature on the status of forms of amicable dispute resolution in the Constitution of the Republic of Poland of 1997. De lege ferenda, the author considers it practical and socially justified to amend the Constitution of the Republic of Poland by explicitly specifying the place of arbitration dispute resolution in the hierarchical system of the Basic Law, hence, as the principle of the right to a trial in its broad meaning, i.e., as the right to an effective means of dispute resolution, as well as by defining relevant relations with the conceptual scope of the “administration of justice”.
- Author:
Anna Kościółek
- E-mail:
koscioleka@gmail.com
- Institution:
Uniwersytet Rzeszowski
- ORCID:
https://orcid.org/0000-0003-2656-3453
- Year of publication:
2022
- Source:
Show
- Pages:
253-264
- DOI Address:
https://doi.org/10.15804/ppk.2022.04.20
- PDF:
ppk/68/ppk6820.pdf
The Constitutionality of Hearing Civil Cases by a Single Judge in the Time of the Covid-19 Pandemic
The subject of this article is the analysis of the constitutionality of the principle of hearing cases by a single judge in civil proceedings. Considerations presented in this study first of all address the issue of whether the principle of hearing cases by a single judge is consistent with minimum requirements set by the legislator of the constitutional system towards the ordinary legislator as regards shaping of the institution of the participation of the social factor in the administration of justice. The second aspect of considerations presented in this article is whether the introduction of the principle of hearing cases by a single judge in civil proceedings may be considered a violation of the right to a fair trial. The analysis of the issue in question is undoubtedly of practical importance due to significant consequences of the potential examination of a civil case in a non-constitutional composition.
- Author:
Anna Kościółek
- E-mail:
koscioleka@gmail.com
- Institution:
Uniwersytet Rzeszowski
- ORCID:
https://orcid.org/0000-0003-2656-3453
- Year of publication:
2023
- Source:
Show
- Pages:
207-217
- DOI Address:
https://doi.org/10.15804/ppk.2023.02.15
- PDF:
ppk/72/ppk7215.pdf
The Constitutionality of Excluding the Openness of Court Sessions in Civil Proceedings – a Contribution to the Discussion
This article is a contribution to the discussion on the constitutionality of examining civil cases in camera. The remarks presented in the article are based on the assumption that the essence of in camera sessions is not compliant with the constitutional right to an open examination of the case, which – being a component of the right to a properly shaped court procedure, co-creates the content of the right to a court. These sessions are the most far-reaching form of limiting, or rather excluding, openness of court sessions – both in its external and internal aspect. Therefore, the article attempts to assess the use of in camera sessions considering acceptable exceptions to the public nature of court sessions. Finally, reference was made to a party’s right to consideration of a case without undue delay, which also co-creates the right to a court.
- Author:
Agnieszka Gajda
- E-mail:
gajda_a@wp.pl
- Institution:
Uniwersytet Gdański
- ORCID:
https://orcid.org/0000-0003-1348-174X
- Year of publication:
2023
- Source:
Show
- Pages:
151-161
- DOI Address:
https://doi.org/10.15804/ppk.2023.04.11
- PDF:
ppk/74/ppk7411.pdf
Reliable Justification of the Court Judgment in the Context of the Judgment of the European Court of Human Rights of March 9, 2023 in the Case of Cupial v. Poland
One of the elements of the right to a fair trial is the right of the individual to a reliable justification of the decision in the case, derived from the right to the appropriate shap- ing of the court procedure. The aim of the article is to show that this is a key element in cases where the court adjudicates the rights and freedoms of an individual, setting their limits. In the judgment of March 9, 2023, in the case of Cupial against Poland, the Euro- pean Court of Human Rights emphasized the special role of a reliable justification of the judgment. The author considers this requirement as one of the fundamental guarantees of respecting the rights and freedoms of the individual, which in the context of the dis- cussed case is the freedom of conscience and religion, and the right to ensure children a religious upbringing in accordance with parents convictions. The analysis of the indi- cated issue was made on the basis of the dogmatic-legal method.
- Author:
Marcin Szwed
- E-mail:
m.szwed@uw.edu.pl
- Institution:
Uniwersytet Warszawski
- ORCID:
https://orcid.org/0000-0002-7692-7043
- Year of publication:
2023
- Source:
Show
- Pages:
97-107
- DOI Address:
https://doi.org/10.15804/ppk.2023.06.07
- PDF:
ppk/76/ppk7607.pdf
The Permissibility of Ex Lege Termination of the Term of Office of the Judicial Members of the National Council of the Judiciary in its Composition Resulting from the Act of 8 December 2017, in the Light of the Case Law of the European Court of Human Rights
The article analyzes the permissibility of terminating the terms of office of current members of the National Judiciary Council without providing them with access to court from the perspective of the case law of the European Court of Human Rights. The starting point is the judgment of the ECtHR in the case of Grzęda v. Poland, in which it was found that the ex lege termination of the terms of office of the NCJ members in 2018 violated Art. 6 of the European Convention on Human Rights. However, the interpretation of the ECHR cannot disregard the specific context related to the lack of independence of the current NCJ and its negative impact on the integrity of the judicial appointment process. These circumstances justify the conclusion that Art. 6 ECHR would not protect the current members of the NCJ from the termination of their terms of office.
- Author:
Hanna Paluszkiewicz
- E-mail:
hanna.paluszkiewicz@usz.edu.pl
- Institution:
Uniwersytet Szczeciński
- ORCID:
https://orcid.org/0000-0001-5198-8360
- Year of publication:
2023
- Source:
Show
- Pages:
153-164
- DOI Address:
https://doi.org/10.15804/ppk.2023.06.11
- PDF:
ppk/76/ppk7611.pdf
Some Remarks on the Model of Control Procedures in Disciplinary Proceedings of Academic Teachers in the Light of Constitutional Standards
The subject of the analysis is selected issues related to the model of the instance review procedure in the proceedings of disciplinary responsibility of academic staff conducted under the Law on Higher Education and Science (p.s.w.n.). The research perspective is formed by constitutional values in the form of the principle of appealability of judgments (Art. 78 of the Constitution) and the right to court (Art. 45 in conjunction with Art. 77 of the Constitution). Consideration of the system of legal remedies provided for in the law p.s.w.n. leads to the constatation about the non-uniform model of instance-based control of decisions issued during disciplinary proceedings in the largo sense conducted against an academic teacher. The analysis of the model is carried out taking into account the possibility of challenging decisions issued in the preliminary phase of the proceedings, in the investigation and disciplinary proceedings sensu stricto.
- Author:
Anna Kościółek
- E-mail:
koscioleka@gmail.com
- Institution:
Uniwersytet Rzeszowski
- ORCID:
https://orcid.org/0000-0003-2656-3453
- Year of publication:
2024
- Source:
Show
- Pages:
79-89
- DOI Address:
https://doi.org/10.15804/ppk.2024.02.06
- PDF:
ppk/78/ppk7806.pdf
Exclusion of Article 148 (1) § 3 of the Code of Civil Procedure in the Light of the Constitutional Right to an Open Hearing
The purpose of this study is to analyze the constitutionality of the provisions excluding the application of Art. 148 (1) § 3 of the Civil Procedure Code – i.e. Art. 505 (1a) and 205 (5) § 1 (1), added by the Act of 9 March 2023 amending the Civil Procedure Code and certain other acts. These provisions deprive a party of the right to submit a motion that allows preventing a case from being heard at a closed session pursuant to Art. 148 (1) § 1. This occurred in cases in which a preparatory hearing was scheduled but the dispute was not resolved, and in cases heard in simplified procedure, where the value of the subject matter of the dispute does not exceed PLN 4,000. These changes make it even more difficult to defend the thesis on the constitutionality of hearing the case in accordance with Art. 148 (1) § 1.
- Author:
Paweł Michalik
- E-mail:
pawel.michalik@usz.edu.pl
- Institution:
Uniwersytet Szczeciński
- ORCID:
https://orcid.org/0000-0002-2948-0138
- Year of publication:
2024
- Source:
Show
- Pages:
183-198
- DOI Address:
https://doi.org/10.15804/ppk.2024.03.14
- PDF:
ppk/79/ppk7914.pdf
Digital Exclusion and the Implementation of the Right to a Court on the Example of Electronic Writ Proceedings
In this study, the author, using the doctrinal legal method and, additionally, the historical method, conducts an analysis of the regulations and principles contained in the Constitution of the Republic of Poland and in the ratified international agreements, as well as in the civil procedural law. The paper highlights how digital exclusion can limit the realization of the right to a court, illustrating this with examples from civil cases resolved in electronic writ proceedings. Furthermore, the author, employing the analytical method, presents and explains the concepts of “digital competence” and “digital exclusion”, and describes the nature of this problem in Polish society. The considerations also include a discussion of the benefits derived from the use of electronic writ proceedings by entities seeking legal protection, benefits which cannot be accessed by digitally excluded individuals.