Discretionary power in administrative law as exemplified by general  clauses in the Historic Preservation Act

In this article entitled the author discusses the relation between the constitutional directive specified in Art. 7 of the Constitution of the Republic of Poland under which official authorities in Poland must act under and in compliance with law, on the one hand, and discretionary power in administrative law which frequently enables broad interpretation of legal regulations which are general in nature, on the other. The author presents his arguments on the basis of one act, the Historic Pres- ervation Act, and the analysis of its general clauses. In the first part of the article, the author addresses theoretical aspects of general clauses. In the second part, the author illustrates the theoretical concepts with specific examples of general clauses in the said Act and provides an exemplary interpretation of their meaning. The focus is placed on the extensive discretionary powers conferred by the legislator on the authorities applying the Act. Based on the provided examples of general clauses and possible extensive consequences of their application, the author concludes with description of methods and the mechanism of giving a more precise meaning to the general clauses by presenting their application in practice in judicial decisions.

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

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