Projekt ustawy o zmianie Konstytucji RP w zakresie ochrony lasów państwowych

Author(s): Andrzej Szmyt / Language(s): Polish Issue: 3/2015

This article deals with the proposal of constitutional amendment submitted in 2014 (A bill to amend the Constitution, Sejm Paper No. 2374), to rule out ownership transformation of state forests. The author examines the merits of the proposal, emphasizing their groundlessness. He also provides an analysis of the organizational and procedural aspects of the work, which appeared in the course of the proceedings in the Sejm.

Mankamenty demokracji przedstawicielskiej

Author(s): Bartłomiej Nowotarski / Language(s): Polish Issue: 3/2015

There is crisis of representative democracy today, as evidenced by permanently low public support for its institutions and the way in which they function. Whether, in the wake of this, the very democratic values are at risk in their social legitimacy? The author makes an attempt to identify the reasons for the weakness of representative democracy in the context of, firstly, its fundamental theoretical assumptions and, secondly, basic mechanisms of its functioning, i.e., the systems of delegation of power and accountability thereof. He provides a thorough analysis of an electoral preferences delegation mechanism. These considerations are supplemented by the experiences and the conclusions that can be derived, for modern democracies, from the democracy of ancient Athens.

Jeszcze o aktach prawa wewnętrznego. Z Adamem Krzywoniem nieco polemicznie

Author(s): Agnieszka Bień-Kacała / Language(s): Polish Issue: 3/2015

This article is a polemical response to the article by Adam Krzywoń, on the “Basis for the Issuance of Internal Legal Enactments (Based on Article 93 para. 2 of the Constitution)”, published in Przegląd Sejmowy No. 2/2015. Krzywoń narrowly delineates the scope of examination and focuses his analysis on the effectiveness of operation of public institutions. However, the system of sources of law and the respect for freedom provides the context of polemical remarks. The text, in its assumptions, is intended to serve as supplementing the analytical perspective applied by Krzywoń. Law-making(i.e. adoption of universally binding laws, but also internal legal enactments) is that kind of activity which considerably interfere with legal situation of an individual and, therefore, there is need fora strict rules of interpretation of the competences. The scope of their conferral is precisely defined by the lawgiver. The freedom of an individual and the protection of its status provide basic assumptions in this respect. This relates also to the entities connected — within the hierarchy of administrative bodies – by employment relationship. Beyond the scope of law-making activities, the authorities should be given greater discretion in the performance of governance, provided that proper selection of measures is ensured, except for the legal provisions.

Problematyka prekampanii w wyborach samorządowych na szczeblu gminy

Author(s): Paweł Bała / Language(s): Polish Issue: 3/2015

The article deals with the performance of canvassing in the course of the so-called information actions within pre-campaigning in elections of local self-governing bodies, which directly precedes an official electoral campaign. It seems that, under the existing state of law, there is a loophole relating to that type of activities which are beyond the scope of supervision which are beyond the scope of supervision covered by electoral bodies.

Ochrona dziennikarskich źródeł informacji w dobie cyfrowej w świetle Konwencji o ochronie praw człowieka i podstawowych wolności oraz Konstytucji RP

Author(s): Jan Podkowik / Language(s): Polish Issue: 3/2015

Secret surveillance measures based on new technologies, particularly interception of telecommunication, spy software or traffic and location data are among the most efficient methods of preventing and detecting various perils to the security of the state. However, they can become an exceptionally severe interference with the fundamental rights of individuals. Exceptional threat posed by the use of secret surveillance measures is the possibility of gathering information obtained “in confidence”, particularly when identifying informant’s identity. Even the mere admissibility of the secret surveillance of journalists can cause “the freezing effect”, preventing them from publishing information considering public authorities activities. The possibility of investigating the private lives of journalists can stop them criticizing the government, even if the criticism is justified. The consequence of it is the decline of the supervisory role of the press as a “guardian of democracy and pluralism”. The aim of this paper is to reflect on the limits of the surveillance, the object of which — whether direct or indirect — are journalists. An attempt of creating an operative test based on Strasbourg and Polish constitutional case law, especially latest judgment K 23/11, estimating the relevance of provisions on surveillance considering the protection of reporter’s privilege and the freedom of press are also undertaken.

Glosa do wyroku Trybunału Konstytucyjnego z dnia 14 kwietnia 2014 r. (sygn. akt U 8/13)

Author(s): Piotr Wiatrowski / Language(s): Polish Issue: 3/2015

Glosa do decyzji Europejskiego Trybunału Praw Człowieka z dnia 11 czerwca 2013 r. w sprawie Fundacji Matki Srebrenicy i inni przeciwko Niderlandom (skarga nr 65542/12)

Author(s): Łukasz Kułaga / Language(s): Polish Issue: 3/2015

Zagadnienia parlamentarne w orzecznictwie innych państw - Niemcy: wyrok Federalnego Trybunału Konstytucyjnego z dnia 17 grudnia 2014 r. w sprawie zgodności z Ustawą Zasadniczą uprzywilejowania majątków przedsiębiorstw w podatku od spadków i darowizn

Author(s): / Language(s): Polish Issue: 3/2015

Cisza legislacyjna — zasada prawa wyborczego w Rzeczypospolitej Polskiej

Author(s): Paweł Jakubowski / Language(s): Polish Issue: 4/2015

According to the Code of Good Practice in Electoral Matters, adopted by the Venice Commission, the fundamental elements of electoral law should be closed to amendment less than one year before an election or be written in the constitution or at a level higher than ordinary law. Unfortunately the Constitution of the Republic of Poland and Electoral Code do not protect the stability of the law to a sufficient extent. Lack of restrictions caused in recent years the state of the affairs, where the electoral law have been frequently modified just before the elections, mainly because of the particular interests of ruling party. However, in 2006 the Constitutional Tribunal referred positively to the suggestions of the Venice Commission and introduce to the legal system the principle of stability of electoral law, related to democratic rule of law. From this moment the essential elements of the electoral law must be adopted at least six months before the next election, understood not only as the act of voting, but as a whole the activities covered by the electoral calendar. This article tries to answer the question: how we should understood the term “fundamental elements of the electoral law” and how to calculate the six months period, during which any change of electoral law are prohibit. It will be taken into consideration also critical comments and questions that have emerged during the adjudicate the conformity of statutes by the judges of the Constitutional Tribunal.

Przewodniczący określonego w ustawie komitetu jako członek Rady Ministrów

Author(s): Maciej Pach / Language(s): Polish Issue: 4/2015

The article provides an analysis of the constitutional position of presidents of committees specified in statutes. In accordance with Article 147, para. 4 of the Constitution such presidents may be appointed to membership in the Council of Ministers. But so far this regulation attracted little interest from scholars. The analysis covers both constitutional solutions and the practice of the period of Polish People’s Republic, when for the first time in the history of Polish constitutionalism presidents of committees were accepted as members of the government, as well as legal regulations and practice of the Third Republic of Poland. In the author’s view, in the application of the above-mentioned Article more negative than positive experiences occurred. Moreover, due to the complexity of normative regulation relating to the said office — combining the elements of a collective (committee)with a one-person management (president of a committee) — interpretative problems may arise. The author claims that the current trend to not apply Article. 147, para. 4 of the Constitution will be continued in the political practice.

Konstytucyjne aspekty instytucjonalizacji małżeństw osób tej samej płci w świetle najnowszego orzecznictwa francuskiej Rady Konstytucyjnej

Author(s): Wojciech Puchta / Language(s): Polish Issue: 4/2015

This article is an attempt at a synthetic presentation the most important aspects of the discussion that took place in France in connection with the adoption of the Act of 17 May 2013, the legislation opening marriage to couples of the same sex (the so-called Marriage for All). In this debate — as noted by the legal theorists — constitutional arguments were widely used. Disputes in this regard, moved to the constitutional court, gave the Constitutional Council an opportunity to expand and clarify the jurisprudence and provide a constitutional framework for the law on marriage or — more broadly —family law. The analysis of these issues seems worthy of attention.

W sprawie zgodności z Konstytucją RP Konwencji Rady Europy o zapobieganiu i zwalczaniu przemocy wobec kobiet i przemocy domowej, sporządzonej w Stambule dnia 11 maja 2011 r.

Author(s): Marek Chmaj,Mariusz Jabłoński / Language(s): Polish Issue: 4/2015

Glosa do wyroku Trybunału Konstytucyjnego z dnia 18 grudnia 2014 r. (sygn. akt K 33/13)

Author(s): Michał Jackowski / Language(s): Polish Issue: 4/2015

Regulacja prawa łaski w Bułgarii

Author(s): Katarzyna Kaczmarczyk-Kłak / Language(s): Polish Issue: 4/2015

System rządów w projektach i propozycjach zmiany Konstytucji RP

Author(s): Jarosław Szymanek / Language(s): Polish Issue: 5/2015

The article presents the drafts (actually before parliament) and proposals (i.e. loose policy statements and ideas which have not reached the form of constitutional initiative) for amendment of the existing Constitution of 1997. The system of government, understood as a tripartite system of relations between the Government, Parliament and President was one the most frequently discussed constitutional issue for which the need had been advocated not only for review but, sometimes, even fora radical change in the existing constitutional regulation. It should, however, be noted that in the constitutional dimension the system of government has not generated serious disruption or conflicts. Even if some dysfunctions have been revealed, they were the result of political and especially personality rather than formal factors. The need to change the system of government were proclaimed by political parties. Most of the proposals promoted the idea of eclectic parliamentary system with an enhanced role of President. Already this indicates that the possible success of these proposals could generate even more serious conflicts, especially in the executive branch than the ones involving the current practice. Other proposals went even further, trying to implement a presidential system, but in inconsistent (and, therefore, dangerous) form. It seems that the flaw of all these proposals was their heavily eclectic and reckless nature, and that their real intent was not to change the constitution, but rather to demonstrate a different program by various political parties. The best proof of this is the fact that most of them did not become the subject of formal work to change the constitution and are recognized as entirely political and partisan documents.

Koncepcja pojęć zastanych w orzecznictwie Trybunału Konstytucyjnego

Author(s): Krzysztof Riedl / Language(s): Polish Issue: 5/2015

The Constitutional Tribunal recognizes some terms in the Constitution as so called “pre-existing notions”. That means that in case of absence of a clear definition of the notion within the Constitution, it may be assumed that the constitutional legislator intended this term to have the same meaning assigned to it by previous constitution, doctrine or legislation in force at the time of the entry of the1997 Constitution. Such concept allows therefore to suppose that this notion has another (wider)meaning than a result of literal interpretation. The inspiration to write this article was judgment of 7th October 2013, K 31/12, wherein the issue of recognition the constitutional term “reading” of the bill as a pre-existing notion had decisive influence over the Tribunal’s decision. The article analyses the jurisprudence of the Constitutional Tribunal regarding the pre-existing notions. The main aim is to answer the question, whether such idea can be treated as a complete, useful and established concept of constitutional interpretation. The analysis gives a positive answer.

Funkcja sygnalizacyjna Trybunału Konstytucyjnego — stan obecny a projektowane zmiany

Author(s): Jan Uniejewski,Anna Pazura / Language(s): Polish Issue: 5/2015

The article provides an analysis of the signal function of the Constitutional Tribunal in the Republic of Poland. The issue is presented in the context of the discussion based on directions of changes provided in the Constitutional Tribunal Act of 25th June 2015. For a proper assessment of the desirable legislative solutions, it is necessary to consider the current state with reference to both historical and comparative aspects. In consequence of that methodology, it must be emphasized that identified gaps in the current regulations prevent reaching the aim of the function. Its main idea is to ensure coherency and completeness of the legal system. As it is maintained in the Act of 25th June 2015, such a situation would undoubtedly undermine the meaning of existence of this institution, as its practical importance would continue to be negligible

Uregulowanie instytucji petycji w ustawie z dnia 11 lipca 2014 r. o petycjach

Author(s): Michał Ożóg / Language(s): Polish Issue: 5/2015

The purpose the article is to characterize the Act of 11 July 2014 on Petitions. An analysis of the legislation has been combined with an assessment in accordance with an essential criterion of respect for the principles of correct legislation. The fundamental flaw of the Act is that the terms of reference of both a petition and a request, as regulated by the Code of Administrative Procedure, remain in a logical cross-relationship. The author proposes that making claims in letters be qualified as bringing a petition or an application in accordance with the criteria reconstructed from the provisions of the Act on Petitions and the Code of Administrative Procedure. The author also examines the relationship between the Act on Petitions and other legislation currently in force, by determining the scope of their operation. The article contains a proposal for interpretation of the provisions of the Act on Petitions along with de lege referenda proposals.

W sprawie powołania przez Sejm Rzecznika Praw Obywatelskich

Author(s): Piotr Czarny,Andrzej Szmyt,Ryszard Piotrowski / Language(s): Polish Issue: 5/2015

Glosa do wyroku Trybunału Konstytucyjnego z dnia 16 grudnia 2014 r. (sygn. akt U 2/14)

Author(s): Elżbieta Gudowska / Language(s): Polish Issue: 5/2015