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LEGAL CONDITIONS NEEDED FOR ENGAGING THE DISCIPLINARY RESPONSIBILITY OF THE TEACHING STAFF

Author(s): Adrian Nicolescu / Language(s): English Issue: 2/2019

In the international context, the Romanian society evolves at an energetic rate determined by the amplification and diversification of social, economic and, finally, political relations. At the same time, it can be easily observed that the constantly changing and evolving legislation is being improved by new regulations and, to the same extent, by the transposition of European norms into the national legal system. The teaching staff, the auxiliary teaching staff, as well as the management, guidance and control staff in the preuniversity education are disciplinary responsible for violating the obligations arising from the individual employment contract and by disregarding the behavioural rules that affect the interest of the education and the prestige of the institution according to laws. The disciplinary liability, as well as the criminal responsibility, fulfils the functions of sanctioning, prevention and education, but it is especially different from the patrimonial responsibility, which mainly fulfils a reparative function. Once a disciplinary offense has been committed, the teaching staff is likely to be applied a special disciplinary sanction regulated by the National Education Law no. 1/2011. The disciplinary sanction is carried out with the strict observance of the legal provisions, respectively of the principle of the legality of the sanction, and the application of the disciplinary sanctions is made gradually, from the mildest to the most severe. In conclusion, the disciplinary offence from the individual employment contract, from the internal regulations, from the decisions of the employer is the engine of engaging the disciplinary responsibility, in compliance with the legal conditions.

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Stosunek kościelnej ochrony danych osobowych do RODO – uwagi na marginesie postanowienia Krajowego Sądu Pracy w Norymberdze z dnia 29 maja 2020 roku, 8 Ta 36/20

Author(s): Bernard Łukańko / Language(s): Polish Issue: 23/2020

The aim of the study is to discuss the judgment of the National Employment Tribunal in Nuremberg dated 29 May 2020, 8 Ta 36/20, and to consider the effects of the ruling on the protection of the rights of individuals. The examined adjudication is one of the first court rulings referring to Article 91 para. 1 of GDPR and a church law (of the Catholic Church in Germany) governing the protection of personal data. The study not only aims to assess whether the Act on Church Protection of Personal Data of the Catholic Church in Germany (kirchliches Datenschutzgesetz – KDG) complies with the requirements of GDPR, but it primarily focuses on the question of the jurisdiction of the national court (employment tribunal) or the church tribunal (Interdiocesan Tribunal for Protection of Personal Data seated in Cologne acting pursuant to the Regulations of the Church Judiciary for Personal Data Protection – in German: Kirchliche Datenschutzgerichtsordnung – KDSGO) to hear a claim for damages of an employee of the Catholic Church who invoked sharing his personal data with unauthorized persons as the basis for the claim. The findings are then discussed in a broader comparative context of the Polish constitutional model of the relations between the state and churches and other religious organizations.

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Problem rewindykacji kościelnej nieruchomości Polskiego Kościoła Ewangelicznych Chrześcijan Baptystów we Wrocławiu

Author(s): Michał Zawiślak / Language(s): Polish Issue: 23/2020

The main aim of the paper is to present the course of the restitution proceedings concerning the church property of the parish of the Polish Evangelical Christian Baptist Church in Wrocław, as well as to analyse the administrative decisions issued during the proceedings. Special attention is given to the legal issues related to applying art. 2 para. 4 of the decree of 8 March 1946 on abandoned and post-German properties and to the consequences of the resolution of the Supreme Court of 19 December 1959 for the legal effects in the interpretation of art. 2 para. 4 of the decree. A definitive decision on this issue that refused to grant the right of ownership to the Church was issued only 13 years after the restitution application had been submitted. The excessive duration of the proceedings was confirmed by the judgment of the European Court of Human Rights (Application no. 32045/10). The Second Congregation in Wrocław (the legal successor of the above-mentioned parish) did not recover the property lost after World War II under the provisions of the act regulating the legal situation of the Church of Christian Baptists in the Republic of Poland. A close examination of the circumstances of the lengthy restitution litigation indicates that in order to resolve the question of the right of ownership of this property, it is necessary to pursue another route than the administrative one.

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Dokonywanie czynności procesowych przed sądem kościelnym jako okoliczność wyłączająca odpowiedzialność za naruszenie dóbr osobistych. Glosa do wyroku Sądu Apelacyjnego w Białymstoku z dnia 12 stycznia 2017 r., I ACa 676/16

Author(s): Joanna Misztal-Konecka / Language(s): Polish Issue: 23/2020

This commentary discusses the judgment entered by the Court of Appeals in Białystok, Poland, wherein the court held that the circumstance of acting in litigation before an ecclesiastical court excluded the parties’ liability for the infringement of personality rights. In the author’s opinion, the decision merits approval both as to the view concerning the admissibility of the judicial path before a state court in matters of the protection of personality rights violated before an ecclesiastical court and as to the claim that the protection of personality rights is not available in circumstances excluding the unlawfulness of such a violation. Acting before an ecclesiastical court, which operates with the approval of state legislation, fits within the group of cases in which one is acting within the boundaries of the legal order. The legal qualification of activities arising from a party’s procedural rights, whether acting before a state court or an ecclesiastical court, requires verifying whether such activities are based on the existing legal right of a subject to act, which means acting within the competence set out by the legal order, citing true facts (or justifiably regarded as true) in a moderate manner and to the extent necessary for the enforcement of the party’s right.

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Analiza konstytucyjności ograniczeń w korzystaniu z wolności religii podczas pandemii koronawirusa w Polsce

Author(s): Konrad Dyda,Marcin Olszówka / Language(s): Polish Issue: 23/2020

The need to prevent the development of the SARS-CoV-2 coronavirus pandemic makes it necessary to maintain physical distance to comply with various types of sanitary standards. However, when restrictions imposed by public authorities lead to limiting the exercise of human rights and freedoms, they must be laid down in normative acts of appropriate form and content. Meanwhile, many of the restrictions introduced by the Polish authorities with a view to combatting the pandemic, which restricted the exercise of freedom of religion, did not meet the standards defined by the Polish Constitution.

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THE LEGAL POLITICS OF THE DISSOLUTION OF MASS ORGANIZATIONS: AN ANALYSIS OF GOVERNMENT REGULATION IN LIEU OF LAW NO. 2 OF 2017 (PERPU ORMAS)

Author(s): . Al Araf,Mochamad Ali Safaat,Moh Fadli,Tunggul Anshari Setia Negara / Language(s): English Issue: 17/2020

Government Regulation in Lieu of Law No. 2 of 2017 (Perpu Ormas) is contrary to the rule of law, especially in relation to the principle of due process of law. Under this Perpu, the dissolution mechanism of mass organizations carried out directly by the government without going through the judicial process potentially leads to abuse of power and is contradictory with the basic principles of the rule of law. In a country with the rule of law, which respects human rights, the dissolution of any organization should be in accordance with the due process of law. Government restrictions on freedom of association and assembly should be measured by considering the legitimacy and social needs of the level of restrictions on the rights, which is the duty of the court and not the government. In addition, the grounds for dissolving mass organizations as regulated in Law No. 16 of 2017 are dangerously multi-interpretative. These multi-interpretative grounds make the government able to easily dissolve any existing mass organization under the pretext of conflicting with Pancasila, and so on. The legal politics behind the issuance of Perpu Ormas cannot be separated from government’s political interest to exercise control over its political opponents and to maintain the regime from pressures coming from its political opponents, particularly Islamic groups that are in opposition to the government. It appears that the democratic process in Indonesia does not necessarily have a positive impact on the protection of human rights in the country.

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INTELLECTUAL AWARENESS IN JUDEX JURIS CONTRADICTION AGAINST THE IRREGULARITY OF IUS CONSTITUTUM AND IUS CONSTITUENDUM

Author(s): Ahmad Heru Romadhon,Wredha Danang Widoyoko / Language(s): English Issue: 17/2020

This research will unmask the essence of a more comprehensive legal context by reviewing a Supreme Court (MA) ruling, Cassation Decision Number 1555 K/PID.SUS / 2019. The verdict is contradicted by ius contitutum and ius constituendum. The case that appealed against the alleged corruption with the issuance of the issuance of the BLBI Declaration Letter to the Indonesian National Trade Bank conducted by Syafruddin Arsyad Temenggung was acquitted by the judges of the Supreme Court, who had previously been sentenced to a high court criminal sentence of 13 years in prison and a fine of Rp. 700 million and 3- month confinement, which later sentenced Syafruddin to be increased to 15 years in prison and a fine of Rp.1 billion with 3 months subsidiary confinement on appeal. This research is classified as normative legal research, by inventorying primary and secondary legal materials as well as approaching legal concepts which are then drawn conclusions and presented theoretically. In this study it is more interesting that the Supreme Court judges are more likely to protect public officials from the bondage of the law.

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Claims secured by a registered pledge in sanation proceedings

Author(s): Rafał Adamus / Language(s): English Issue: 28 (4)/2019

This study concerns the legal situation of a receivable secured by a registered pledge in a debtor’s sanation (restructuring) proceedings. The registered pledgee has a special position in the course of such proceedings. The study discusses the rules of subjecting the receivable secured by the arrangement, the rules of preparing and contesting the list of receivables, and finally the rules of satisfying the pledgee.

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Judgment of the Court of Justice of the European Union of 19 November 2019 – selected comments

Author(s): Bogna Baczyńska / Language(s): English Issue: 28 (4)/2019

The changes introduced into the judiciary system within the last few years have actually led to the infringement of the principle of a tripartite division of power – Poland is inclining towards authoritarianism. The Constitutional Tribunal affected by formal changes and (partially) filled with persons who cannot guarantee independence – has ceased to perform their constitutional functions and ensure the constitutionality of laws long time ago. The “reforms” have already had impact on the judiciary authority, i.e. the courts. The above-described situation alerted the international opinion, thus, apart from the individual countries, many international organisations have also voiced their concerns. From among of the aforesaid organisations, the European Union (EU) is responsible for the key task. The changes in the structure of the Supreme Court and National Council of the Judiciary have become the subject of the preliminary procedure addressed to the Court of Justice of the European Union. In response thereto, the European Court of Justice located in Luxembourg stated that the cases concerning judges may not be tried by the court which is not independent or unbiased. The preliminary procedure is based on conciliation, which guarantees uniform application of Community law in all Member States. Therefore, it is always the national court that is responsible for the final resolution of the case. In the analysed case, it is the Supreme Court.

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ADAPTATION OF THE ADMINISTRATIVE SERVICES PROVISION IN UKRAINE TO THE EUROPEAN STANDARDS

Author(s): Nataliia Rozmaritsyna / Language(s): English Issue: 16/2019

The aspects of adaptation of Ukrainian legislation in the field of provision of administrative services to the requirements and standards of the European Community are considered. The article analyzes the concept of “administrative service”, describes the standardization in the system of providing administrative services, administrative and legal regulation in this area, outlines the main directions of improvement of legislation aimed at improving the quality. It is emphasized that the adaptation of the Ukrainian legislation to the EU legislation is to bring national legislation closer to the modern European system of law. Adaptation is an integral part of integration processes, a prerequisite for the harmonization of national legislation with the legislation of international organizations.

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Произведения, създадени в рамките на трудови правоотношения

Author(s): Veselina Maneva / Language(s): Bulgarian Issue: 9/2019

The research and analysis of the creative achievements created in the context of employment, have always asked a number of questions related to the nature of these works, with the rights that arise for the employer and author, with the manner of their enforcement and payment of fair remuneration. The institute of the offi cial work is established both in the system of copyright and in industrial legislation. It is a means of regulating the relationship between employer and creator. Theory and practice increasingly determine the need for deeper and more comprehensive regulation of these relations and overcoming the existing gaps.

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За заплатите на народните представители и извънредното положение

Author(s): Ekaterina Mihaylova / Language(s): Bulgarian Issue: 9/2019

In the paper under consideration is the issue of the salary of the members of the Bulgarian National Assembly as a part of the development of parliamentarism. The topic is firstly considered in a historical perspective, including the legal regulation in the various Bulgarian constitutions. The current legal regulation is analysed as well as the decision of the National Assembly taken during the state of emergency, according to which decision it is accepted not to pay salaries to the members of the National Assembly as well as to persons in the executive power in the context of whether this decision is in consistency with the norms of the Constitution or not.

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Историческата роля на Международната организация на труда за установяване на международни стандарти за трудовите и социалните права на човека

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian Issue: 9/2019

The subject of the research is the role of the International Labour Organization in establishing international standards for labour and social human rights. The analysis is dedicated to the 100th anniversary of the creation of this universal specialized international organization.

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Възникването на писаните закони в Древна Гърция

Author(s): Deyana Marcheva / Language(s): Bulgarian Issue: 9/2019

The article addresses the question how and why do written laws come into being in Ancient Greece in the archaic period from the mid seventh century BC. The research delves into different types of historical sources including stone inscriptions and literary works so that to illuminate fragments and details of how the people refl ect on the necessity and signifi cance of written laws. The assumption is that there is no one general explanation why people started to write down the laws. In Ancient Greece the general lasting rules that we call today laws were fi rst denoted with the term “thesmos”, and later with the term “nomos”. In any case, the fi rst written laws were publicly acknowledged and announced as a guarantee against the arbitrary power.

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Born to Polish same-sex parents – a case study. A human rights perspective on birth certificate transcriptions

Author(s): Karolina Mendecka / Language(s): English Issue: 32 (4)/2020

This article is a case study regarding a recent resolution of the Supreme Administrative Court in Poland (the SAC). The Court found that a transcription of a foreign birth certificate, in which two people of the same sex are registered as parents, is not allowed under the Polish law and is contrary to ordre public. This paper focuses primarily on two aspects regarding the resolution. First, it addresses whether the best interest of the child principle was given due consideration. Second, it analyses whether the possible discriminatory treatment on the grounds of sexual orientation of the parents was adequately examined, with particular reference to the jurisprudence of the European Court of Human Rights (the ECtHR). This paper is divided into four parts. The background information pertaining to the issues at stake as well as the case itself are addressed in Part 1. Part 2 briefly summarises the SAC resolution and the judgement. Part 3 concentrates on deconstructing the best interest principle as an international and national standard. In Part 4 the ECtHR case-law is examined in order to provide a human rights perspective on the matter. This article concentrates on providing the perspective of a child and on the jurisprudence of the European Court of Human Rights, as it is a well-recognised international law-applying body that raises the threshold and quality of respecting human rights in the European continent. The final part summarises the paper and presents the conclusions. It is going to be demonstrated that in light of the ECtHR jurisprudence, the SAC failed to adequately analyse that a difference in treatment of same-sex parents in comparison to other unmarried couples is reasonable, pursues a legitimate aim and that the treatment is proportional. Moreover, it will be argued that the SAC unsuccessfully demonstrated why primacy had been granted to the interest of the state and public order, instead of that of a child. The main goal of this paper is to highlight the importance of endorsing the child’s perspective and the compelling need to carefully consider the child’s best interest – in each and every case that involves their fate. In order to achieve the purpose of this study, the research is based on the evaluation of the universal human rights documents relevant to the topic, as well as the analysis of the ECtHR jurisprudence related to the subject.

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Protection of the rights of persons with disabilities under the European Social Charter

Author(s): Monika Smusz-Kulesza / Language(s): English Issue: 31 (3)/2020

The aim of the study is to discuss the protection of the rights of persons with disabilities under the system of law of the Council of Europe. In particular, the focus is on the rights of persons with disabilities to independence, social integration, and participation in the life of the community under the European Social Charter (ESC). This paper covers both an analysis of the Charter, with special attention paid to Article 15, and an examination of the decisions of the European Committee of Social Rights (ECSR) with respect to this provision. Besides the regulation of these rights at the European level, this paper also discusses different examples of state regulations’ conformity or non-conformity with Article 15 ESC.

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Limitation of constitutional guarantees of cultural rights at the time of pandemic

Author(s): Michał Beer / Language(s): English Issue: 30 (2)/2020

The presented paper of a contributory character is aimed at examining the extent to which the constitutional guarantees of cultural rights were limited in a time of pandemic. Furthermore, the paper aims to answer the question of whether the introduced limitations in cultural rights were compliant with the principle of proportionality, if they were adequate to the actual state of affairs and whether the implemented legal measures ensured the effectiveness of law implementation. The legal sources analysed herein provide an answer to the question of whether the state has ensured alternative forms of enjoyment of products of culture and if it was obliged to do so. The paper focuses on a detailed analysis of the scope of the constitutional guarantees of cultural rights and the legal acts regulating the current state of the COVID-19 pandemic. Methods typical for legal sciences have been used herein, primarily the methodology of examining applicable laws. The legal norms analysed in the paper are included in the Constitution of the Republic of Poland, specific statutes and implementing regulations.

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Refusal to adjourn a hearing due to the defender’s being ill vs. execution of the right of defence - comments on Article 378a § 1 of the Polish Code of Criminal Procedure

Author(s): Michał Ignasiak / Language(s): English Issue: 30 (2)/2020

The object of this paper constitutes the issue regarding the principle of the right of defence in Polish criminal proceedings in the context of the new regulation included in Article 378a par. 1 of the Code of Criminal Procedure, which came into effect on 5 October 2019 (as a result of the entry into force of the Act of 19 July 2019 amending the Act on the Code of Criminal Procedure and certain other acts, Dz.U. (Journal of Laws) of 2019 item 1694). To be precise, the court’s refusal to take into consideration the defender’s motion for adjournment of the term of a hearing due to his or her illness confirmed with a sick leave issued by a pathologist. The aim of this study was to draw attention to the questionable character of the aforementioned Article in terms of the procedural safeguards of the accused. The paper presents the circumstances, as well as the state of proceedings, indicating the evidence of violation of the principle of the right of defence in criminal proceedings by improper application of Article 378a par. 1 of the Code of Criminal Procedure. A formal-dogmatic method has been used. Furthermore, the author’s intention was to present the irrationality of the Polish legislator introducing solutions contrary to the model of criminal procedure, including, in particular, violation of the constitutionally guaranteed rights of the accused.

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SOME CONSIDERATIONS REGARDING THE REGULATION OF „FIDUCIA” IN THE CIVIL CODE OF THE REPUBLIC OF MOLDOVA AND IN THE CIVIL CODE OF ROMANIA

Author(s): Irina Digori / Language(s): English Issue: 1/2021

The „fiducia” represents a new institution in the legal system of the Republic of Moldova, being introduced by the Law on the modernization of the Civil Code and the amendment of some legislative acts, no. 133 of 15.11.2018, in force since 01.03.2019. In the process of elaborating the legal framework, the legislator took into account international legislative developments, including the provisions of the Civil Code of Romania. However, the basic source of regulation in the Republic of Moldova was the Book X –„Fiducia” of the Draft Common Frame of Reference of the European Union. Therefore, there is a considerable difference between the „fiducia” under the Civil Code of the Republic of Moldova and the „fiducia” under the Civil Code of Romania. This article aims to present in a comparative aspect the institution of „fiducia” in the light of the regulations of both states. Mainly, some terminological issues will be discussed and some conceptual similarities and differences will be revealed, which concern important aspects such as: sources of „fiducia”, fiduciary parties, conditions, grounds for termination of the „fiducia” etc.

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Latvia prepares for big step in LGBTQ+ rights

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Latvia prepares for big step in LGBTQ+ rights

Author(s): Ričards Umbraško / Language(s): English Issue: 03 (46)/2021

No one embodies the individual and collective fight for one’s liberties and freedom in modern-day Latvia as much as Evita Goša. When her fiancée found out she was not entitled to a ten-day paid leave usually granted to fathers of new-borns, she petitioned the Constitutional Court of Latvia which agreed to hear the case. Goša and her lawyers argued that Article 110 of the Latvian Constitution, which declares that the state protects families, should also be applied to families with same-sex parents, and thus her partner’s inability to receive the paid leave as per the national Civil Law should be declared unconstitutional. In mid-November 2020, the constitutional court ruled that Goša’s partner was indeed eligible for the ten-day paid leave after the birth of the couple’s child. But what is more, the court also decided, in a landmark case, that same-sex couples are entitled to the same legal protections as heterosexual couples, thus giving the national legislature, the Saeima, 18 months to establish a legal framework for the protection of same-sex families.

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