Osiem dekad prawa konstytucyjnego porównawczego na Uniwersytecie Jagiellońskim

Author(s): Marian Grzybowski,Piotr Mikuli / Language(s): Polish Issue: 3/2022

The authors describe the history of comparative constitutional law research conducted at the Jagiellonian University after the Second World War. The authors’ comments also serve as a pretext to describe the research activities of the Chair in Comparative Constitutional Law on its 20th anniversary. In 2021 the chair staff celebrated this anniversary by organising a nationwide seminar, which inspired this special issue of the Przegląd Konstytucyjny.

Pytania o przyszłość konstytucjonalizmu. Siła i słabość komparatystyki prawniczej

Author(s): Mirosław Granat / Language(s): Polish Issue: 3/2022

The future of constitutionalism revolves around two critical issues which we see against the backdrop of the crisis of liberal democracy. The first issue concerns the conflict between the “judicial” constitutionalism and “political” constitutionalism. The “judicial” constitutionalism assumes a strong role of courts in a democratic system. Only courts can decide on compatibility of law with the constitution. In turn, the “political” constitutionalism assumes that the parliament decides on constitutional law. The rivalry between these two constitutionalisms seems to be the matrix of contemporary political dilemmas. The result of this rivalry is important for the efforts to end Polish constitutional crisis, as we will have to decide on the constitutional benchmarks applicable after the crisis. The second issue concerns the limits of constitutionalism. The author argues that the current digital era created a new phenomenon of digital constitutionalism. It operates in the sphere of private law relationships, dominated by private entities (big corporations). The relevant provisions for the digital world are the private law provisions. Comparative law and comparativists are crucial for answering the questions on the future of constitutionalism. The conflict of the two visions of constitutionalism and the extension of its limits are a great “training ground” for the comparativists.

Empatyczne słuchanie konstytucyjne. W poszukiwaniu nowych perspektyw metodologicznych

Author(s): Mateusz Stępień / Language(s): Polish Issue: 3/2022

The article argues for reopening a serious discussion on the methodology of comparative studies on constitutional orders. Following this lead, it aims to reconstruct and critically discuss Michael W. Dowdle’s concept of constitutional listening. This concept contains a broad vision of conducting comparative studies of constitutional matters. Particular attention will be devoted to the empathic-based approach to other constitutional orders, which employs the Davinsonian principle of charity. This thread is one of the most interesting but controversial of Dowdle’s proposals. The article contains a general assessment of the concept of empathy-based constitutional listening.

Integralna legitymizacja konstytucji

Author(s): Michał Bożek / Language(s): Polish Issue: 4/2022

The aim of the article is an attempt to formulate main assumptions of the concept of integral legitimacy of the constitution. The first one is an opinion that the integral legitimacy is included in the nature of the constitution and is a necessary element of the core of constitution. The second one is an opinion that there is an unbreakable bond between the form and the content of the constitution, which decides about legitimacy of the constitution. The third one is an opinion that the integral legitimacy of the constitution is two-stage legitimacy. The first degree is a necessary element of each constitution. It provides the overall framework of the constitutional order. The second degree is an extension of the first degree of legitimacy and results from the decision of the society concerning the form and the content of the constitution. The last one is an opinion of multidimensional character of the legitimacy of the constitution. The legitimacy is based on belief in social acceptance for the principles of the idea of constitutionalism, which are reflected in rules and values creating the core of the constitution.

ПРАКСА УСТАВНОГ СУДА БОСНЕ И ХЕРЦЕГОВИНЕ

Author(s): / Language(s): Serbian Issue: 55/2022

ПРАВО НА ЛИЧНУ СЛОБОДУ И БЕЗБЈЕДНОСТ И ПРАВО НА ПРАВИЧНО СУЂЕЊЕ Испуњење новчане обавезе ПРАВО НА СЛОБОДУ И СИГУРНОСТ ЛИЧНОСТИ Притвор ПРАВО ЛИЦА ДА НЕ БУДЕ ПОДВРГНУТО МУЧЕЊУ, НИТИ НЕЧОВЈЕЧНОМvИЛИ ПОНИЖАВАЈУЋЕМ ТРЕТМАНУ ИЛИ КАЗНИ Нехуман третман ПРАВО НА ПРАВИЧНО СУЂЕЊЕ Укњижба права својине ПРАВО НА ПРАВИЧНО СУЂЕЊЕ Грађевинско земљиште у у државној својини ПРАВО НА ПРАВИЧНО СУЂЕЊЕ Одлучиванје о имовинскоправном захтјеву ПРАВО НА ПРАВИЧНО СУЂЕЊЕ Суђење у разумном року ПРАВО НА ПРИВАТНИ И ПОРОДИЧНИ ЖИВОТ, ДОМ И ПРЕПИСКУ Заштита физичког и психичког интегритета малољетника ПРАВО НА СЛОБОДУ ИЗРАЖАВАЊА Накнада нематеријалне штете ПРАВО НА ДЈЕЛОТВОРАН ПРАВНИ ЛИЈЕК У ВЕЗИ СА ПРАВОМ НА ПРИСТУП СУДУ Рок за подношење тужбе у управном спору НЕДИСКРИМИНАЦИЈА У ВЕЗИ СА ПРАВОМ НА ИМОВИНУ Право на породичну пензију иза умрлог осигураника ПРАВО НА ИМОВИНУ НИШТАВОСТ УГОВОРА О ДОЖИВОТНОМ ИЗДРЖАВАЊУ ПРАВО НА СЛОБОДУ КРЕТАЊА Ограничење кретања и боравка странаца у Босни и Херцеговини

James Bradley Thayer i problem „niekonstytucyjności ponad wszelką wątpliwość”

Author(s): Jerzy Zajadło / Language(s): Polish Issue: 1/2023

The main purpose of this paper is the presentation of Harvard Law School scholar James Bradley Thayer and his famous article The Origin and Scope of the American Doctrine of Constitutional Law, published in Harvard Law Review in 1893. Thayer formulated therein his theory of judicial restraint based on the formula unconstitutionality beyond reasonable doubt. This theory influenced such eminent judges and scholars like Oliver Wendell Holmes, Louis Brandeis, Learned Hand and, last but not least, Felix Franfurter, and is still broadly discussed in contemporary American constitutional jurisprudence. In conclusion the author proposes to make American experiences in this area useful for the current debate concerning Polish constitutional crisis.

Amerykańska chrześcijańska prawica, sędziowska kontrola prawa i instrumentalizacja potrzeb religijnych − splot zależności

Author(s): Sebastian Kubas / Language(s): Polish Issue: 1/2023

The tension between democratic principles and religious doctrines has long been a subject of scholarly inquiry. In recent years, when “religion is back with a vengeance” and there are serious religious overtones of the current illiberal upsurge, the issue of exploitation of religious passions for political ends requires renewed and sustained scholarly attention. Therefore, political efforts and successes of Christian Right in the United States should be a major contemporary field of inquiry, especially if one considers the rivalry between the constitutional order and the religious one, and also the faith-based reality divide within the American society.This article explores hidden sources of the exploitation of religious passions in the U.S. constitutional practice in four periods: 1) after the Civil War, when religiously reinforced social conservatism developed in the South; 2) in the 1950s and 1960s, when the business elite and conservative clergymen promoted the role of religion in public life in order to fight the New Deal political order; 3) in the 1970s and 1980s, when the Republican Party formed an alliance with conservative Christians; 4) in the Donald Trump’s era which culminated in the U.S. Capitol attack of 2021. I argue that these periods had two common features: the racist basis and the U.S. Supreme Court’s involvement in the power struggles. I suggest that a peculiar symbiotic relation has developed between the Supreme Court and the Christian Right and I also discuss three possible jurisprudential effects of this relation: the enhanced legitimacy of the Supreme Court in religious affairs; the Supreme Court as a channel of institutional access of churches and religious groups to policy making; and also some unintended consequences of infusing the law with ideas rooted in illiberal social order.

Tryb wystąpienia Polski z Unii Europejskiej. Niekonstytucyjność art. 22a ust. 1–2 ustawy z 14 kwietnia 2000 r. o umowach międzynarodowych

Author(s): Rafał Smoleń / Language(s): Polish Issue: 1/2023

Art. 22a para. 1 and 2 of the Act of April 14, 2000 on International Agreements stipulates that supplying the President, by the minister responsible for foreign affairs, acting on the basis on the resolution of the Council of Ministers, with a draft decision on Poland’s withdrawal from the EU is possible only with prior consent granted in a statute enacted by the Sejm and the Senate with a simple majority of votes in the presence of at least half of the statutory members of each chamber. This provision, adopted in 2010, has been reminded with fear in last years, due to the consistent anti-constitutional and anti-European policy applied by the Sejm’s prevailing political parties, by the government and by the President alike, supported by the subordinate organs and institutions of the state, including the Constitutional Tribunal, which is sometimes aptly named as an actual and even legal gradual polexit. The first objective of the paper is to reconstruct the legislative history of the aforementioned regulation on the procedure of Poland’s withdrawal from the EU and the competing legislative proposals in that matter that were formulated parallelly. The second objective is to defend the thesis stating that for the decision on Poland’s withdrawal from the EU, Art. 90 of the Constitution, construed a contrario (and not Art. 89), should apply, where in order to pass the statute granting consent for renunciation of an international agreement referred to herein, it is necessary to have a two-thirds majority vote in both chambers, in the presence of at least half of their statutory numbers, and where granting of such a consent may also be passed by a nationwide referendum.

Wolność wypowiedzi a ochrona pomników i miejsc pamięci (art. 261 k.k.). Glosa do wyroku Sądu Rejonowego we Włocławku z 25 lutego 2021 r., II K 1789/20

Author(s): Jan Kulesza / Language(s): Polish Issue: 1/2023

In the referenced case, the defendants were charged with insulting the monument of Cardinal Stefan Wyszyński, located in Kopernik Square in Włocławek, Poland, by gluing an offensive poster thereto. The poster resembled an obituary, and its content contained vulgar words. It also contained references to civil disobedience. The defendants' action resulted from the judgment of the Constitutional Tribunal which abolished one of the conditions for the legality of the abortion. The court, finding that the conditions for using this institution had been met, conditionally discontinued the criminal proceedings against the accused for a probationary period of one year. The court's balancing of the need to protect the freedom of expression of the accused and the worship of the person commemorated on the monument and the feelings of people for whom this figure has a symbolic meaning should be assessed as correct, based on the judgment of the ECtHR in the case of Handzhiyski v. Bulgaria of April 6, 2021.

ПРАКСА УСТАВНОГ СУДА РЕПУБЛИКЕ СРПСКЕ НОРМА КАО ОДРАЗ ЗАКОНОДАВНЕ ПОЛИТИКЕ НИЈЕ ПРЕДМЕТ УСТАВНОСУДСКЕ КОНТРОЛЕ

Author(s): / Language(s): Serbian Issue: 52/2019

ПРАКСА УСТАВНОГ СУДА БОСНЕ И ХЕРЦЕГОВИНЕ ПРАВО НА ЛИЧНУ СЛОБОДУ И СИГУРНОСТ

Author(s): / Language(s): Serbian Issue: 52/2019

KONSTYTUCYJNE ORGANY NADZORU NAD DZIAŁALNOŚCIĄ JEDNOSTEK SAMORZĄDU TERYTORIALNEGO – WYBRANE ZAGADNIENIA

Author(s): Tomasz Ciechanowski / Language(s): Polish Issue: 34/2021

The publication presents the subject of constitutional regulations concerning local self- -government with particular emphasis on the institution of supervision over its activity. The study refers to the constitutional and statutory powers granted to the individual supervisory bodies. The author indicates the Prime Minister, voivode and the regional audit chamber as the supervisory organs and additionally enumerates other state bodies specifying their role within the institution of supervision over the local government.

ROLA PODMIOTÓW LECZNICZYCH W PROCESIE ZMIAN LEGISLACYJNYCH NA PRZYKŁADZIE DZIAŁAŃ ZWIĄZANYCH Z EPIDEMIĄ WIRUSA SARS-COV-2

Author(s): Iwona Wrześniewska-Wal / Language(s): Polish Issue: 35/2021

The aim of the article is to show the role of medical entities at various stages of activities related to the SARS-CoV-2 virus epidemic in the context of legislative changes in health care that were intensive at that time. Showing the introduced changes and assessing their rationality from the point of view of constitutional guarantees of such values as life and health, and also through the prism of the precautionary principle. The formal and dogmatic method commonly used in law was used in the study. The first part examines the legislation introduced in spring 2020 to start fighting the SARS-CoV-2 virus outbreak. The second is a study of the legal provisions that, from the beginning of the pandemic, regulated in detail the tasks and scope of inpatient care (i.e. homonymous hospitals and infectious diseases wards) and the activities of laboratories, as well as changes that were introduced before the fall COVID-19 wave. The third part is the National Immunization Program currently underway.

KONSTYTUCYJNE ASPEKTY UDZIAŁU REFERENDARZA SĄDOWEGO W POSTĘPOWANIU KARNYM

Author(s): Beata Bachurska / Language(s): Polish Issue: 37/2022

The issue of the place occupied by a court referendary in the Polish judicial system takes on a special character in the light of the provisions of the Constitution of the Republic of Poland, as well as the Law on the System of Common Courts, which determine the scope of tasks that may be entrusted to a court referendary in criminal proceedings. However, as it stands, this institution is ineffective in criminal proceedings. Although it meets the requirement of constitutionality, and the legislator has legally delegated certain powers to court referendaries in criminal proceedings, the fear of violating the constitutional principle of administration of justice only by courts prevents the legislator from further development of this institution.

PROBLEMATYKA ODPOWIEDZIALNOŚCI WŁADZ PUBLICZNYCH ZA OCHRONĘ ŚRODOWISKA

Author(s): Julita Dąbrowska / Language(s): Polish Issue: 94/2022

Unimpeded functioning of the natural environment is the basis for the operation and effective development of society. However, the fundamental role that nature plays in the existence of society has not protected it from overexploitation. Human activity focused mainly on the progressive economic development has gradually led to a significant environmental degradation. Therefore the problem of environmental protection has rightly become the main topic of public discourse worldwide. In response, governments and international organizations have taken a series of coordinated actions to prevent further destruction. Law is one of the most effective instruments in environmental protection. The Polish Constitution provides that environmental protection is a duty of public authorities, which they are obligated to fulfil. The EU law also protects the environment by means of many legislative acts. Over the years, the European Union, as the economic and political union of states, has developed one of the most restrictive mechanisms of environmental protection. The EU legislation has always emphasized that sustainable development and green economy are the supreme values for the Union. The EU law is part of the Polish legal system, and thus also imposes the obligation on Polish public authorities to care for the environment.

PROBLEM STOSOWANIA NIELEGALNYCH AKTÓW WYKONAWCZYCH PRZEZ ORGANY ADMINISTRACJI PUBLICZNEJ (NA PRZYKŁADZIE ROZPORZĄDZEŃ EPIDEMICZNYCH)

Author(s): Aleksander Jakubowski,Janusz Roszkiewicz / Language(s): Polish Issue: 94/2022

The paper concerns the application of illegal regulations by public administration authorities. This issue is presented in relation to regulations introduced to prevent the spread of COVID-19. The authors believe that the adoption of these regulations and their application prove that ‘the real constitution’ – as it was described by Ferdinand Lassalle – prevails over the written constitution, which in practice becomes only a ‘piece of paper’. The analysis leads to the conclusion that the epidemic regulations were enacted in clear violation of law as they: (i) crossed the limits of statutory delegation; (ii) violated the constitutional principle of the exclusivity of the statute on limiting civil rights and freedoms; and (iii) violated the constitutional prohibition against impairing the essence of rights and freedoms. Therefore, the public administration authorities should refuse their application. The authorities must observe the hierarchical rule regarding the sources of law. Consequently, they have to refuse the application of every regulation which manifestly violates a statute, a treaty or the Constitution. In cases other than a direct contradiction between the regulation and the higher-level source of law, in order to decide whether there is indeed a manifest violation, the authorities should refer to case law (consuetudo secundum legem principle) or the opinio communis of legal scholars. Moreover, applying a regulation despite the fact that it manifestly violates a statute, a treaty or the Constitution leads to the criminal liability of a public office-holder (e.g. an official, a police officer) under Article 231 of the Polish Criminal Code.

Wybrane aspekty komplementarności praw informacyjnych względem czynnego prawa wyborczego

Author(s): Marlena Sakowska-Baryła / Language(s): Polish Issue: 1/2023

The text deals with the complementarity of information rights with respect to the active electoral right, using the example of the right of access to public information and the right to protection of personal data. These two information rights well reflect the most relevant aspects of an individual’s information status. At the same time, these rights interestingly interact with the exercise of the active electoral right. The article explains the concept of “information rights” and the concept of the sovereignty of the people, and identifies the obligations incumbent on public authorities to ensure the exercise of information rights and the active electoral right. From the analyses carried out, there are strong interactions between the right of access to public information and the active electoral right. The situation is different in the case of the right to protection of personal data. The analysis makes it possible to claim that the relationship between the right of access to public information and the active electoral right as political rights is more intense due to the goals set for them. The right to protection of personal data belongs to personal rights. Its exercise involves complying with a number of procedures for processing personal data and securing personal data in technical and organizational terms. Procedures defining the principles of personal data processing are currently described primarily in the General Data Protection Regulation (GDPR). The joint application of the Election Code and personal data protection procedures is not easy, and the Polish regulation in this regard is sometimes unclear and insufficient.

ПРАКСА УСТАВНОГ СУДА БОСНЕ И ХЕРЦЕГОВИНЕ

Author(s): / Language(s): Serbian Issue: 50/2017

Nowa Zelandia: Wyrok Sądu Najwyższego z dnia 21 listopada 2022 r. w sprawie Make It 16 Incorporated vs. Attorney-General (dotyczący wieku uprawniającego do głosowania w wyborach), sygn. akt SC 14/2022

Author(s): Marcin Rulka / Language(s): English,Polish Issue: 3/2023

In Make It 16 Incorporated vs. the Attorney-General, 21 November 2022, the Supreme Court of New Zealand ruled that existing legislation that does not allow people to vote in elections before the age of 18 is discriminatory because it is inconsistent with the New Zealand Bill of Rights Act 1990, which guarantees citizens freedom from age discrimination after the age of 16. The New Zealand Supreme Court has issued a declaration of incompatibility in this regard. However, this does not oblige either the government or parliament to lower the voting age.

Какъв е конституционосъобразният срок, в който президентът следва да възложи проучвателен мандат на кандидат за министър-председател за съставяне на правителство

Author(s): Peter Slavov / Language(s): English,Bulgarian Issue: 1/2023

This article provides an analysis of case with the possible delay of the deadline within which the President of the Republic is obliged to appoint a mandate for formation of a Government as to art. 99. There is no explicit deadline in the Constitution, by which the latter must appoint the mandate, as e.g. he is obliged by art. 75 to convene the newly elected Parliament within 1-month-term. The case is especially important as there is no practice of the Constitutional Court on this matter, while there are quite a few rulings on the other aspects of art. 99 and the applicable terms after the first mandate has been appointed. While there are also some gaps in the constitutional framework, the Constitutional Court has adopted the term “reasonable term”, beyond which any delay shall be in contradiction with the Constitution. Precisely this “reasonability” in the context of appointing the first mandate will be analysed, in the context of the entire constitutional regulation of art. 99 for forming a regular Government but also in the spirit of a parliamentary Republic.