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2009 | 1(90) | 31-53

Article title

THE CONSTITUTIONAL RIGHTS OF THE PERSON AND THE CITIZEN AND THE FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION: A COMPARATIVE ANALYSIS (Prawa konstytucyjne czlowieka... w Rzeczypospolitej Polskiej a prawa podstawowe Unii Europejskiej. Analiza porownawcza)

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Typical of the human rights law doctrine is considerable definitional confusion and terminological diversity, fully confirmed by the Charter of Fundamental Rights of the EU and Poland's Consititution. Despite some difference, the two documents are the normative sources of human rights. If, however, a creative function in the sphere of constitutional freemdoms, rights and obligations may be attributed to Poland's Constitution, no such functions may be attributed to the Charter. This results from the limitations on the application of the Charter as well as the reference to external sources of fundamental rights. Those sources include: common constitutional traditions of Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms and Additional Protocols along with the jurisprudence of the European Court of Human Rights and the Treaties establishing the European Community. Human rights may be divided into three categories: Treaty rights, conventional rights and constitutional rights. This division is founded on the jurisprudence of the European Court of Justice. One may also indicate divisions common to the two documents. Both the Charter and the constitution, apart from specifying the rights of subjective nature also proclaim policies (programme norms), which indicate only 'aim and direction of conduct' to the obliged parties. However, in addition to absolute rights and freedoms. there are also relatively protected rights and freedoms. The two catalogues of rights and freedoms are also extensively diversified in relation to their subjects, but they are deeply rooted in the right of each human being to be treated as subject rather object. This attribute should be associated with human dignity which both the Charter and Poland's Constitution invoke. Nevertheless, the Constitution of the Republic of Poland gives it expressly the status of a source of human rights, while the Charter considers it as one of universal and inalienable values and treats it as as a foundation of human rights. The above-mentioned values constitute the criteria of functional division of fundamental rights. The Charter, therefore, does not refer to objective classification of rights and freedoms whic are appealed to in Poland's Consitution. The catalogue of rights and freedons is complemented by measures for their defence, which actually determine the position and function of a document proclaiming human rights and the real scope of their protection. These measures, including the right to court, are plainly specified in Poland's Constitution where they form a particular list, but there is no such a list in the Charter, which fact may indicate a limitation on its creative function in the field of fundamental rights.





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  • Elzbieta Hanna Morawska, Uniwersytet Kardynala Stefana Wyszynskiego w Warszawie, Wydzial Prawa i Administracji, ul. Wojcickiego 1/3, 01-938 Warszawa, Poland,


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