The opinion comments on the draft position of Poland concerning a proposal for a regulation of the European Parliament and of the Council establishing for the period 2014 to 2020 the Rights and Citizenship Programme (COM (2011) 758 final). It also clarifies the legal relationship between a regulation (Article 288 (2) Treaty on functioning of the European Union) and the Charter as explained in the latest case-law of the European Court of Justice.
The publication introduces the profile of Solon who was a famous character of the ancient Greek law culture. In the first place there is a presentation of Solon’s origin as a man and the citizen of one of the Greek polis – Athens. Next he is showed as a person who has a significant contribution to the development of the Greek law culture, which is expressed in his activity as a designer of the important legal solutions that enabled the permanent reduction of social tensions and conflicts. At the end there is a presentation of the influence of the values propagated by Solon upon the progress of the fundamental rights in Europe. The Solon’s work deserves a particular protection as a type of a sign-post for the activity of the contemporary legislator.
This gloss discusses the position of the Court of Justice of the European Union taken in the judgment passed on 20 March 2018 in the case of Luca Menci (C-524/15) in reference to the restrictions of ne bis in idem principle. The main thesis of the Court concerned the admissibility of restrictions of ne bis in idem based on the principle of proportionality as a limitation clause and its accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms. The analysis of the right not to be tried or punished twice in Article 4 Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms allows us to formulate opposite conclusions. The application of the balancing test as a limitation clause for ne bis in idem, finds no support in the case-law of the ECtHR too. According to the Author, the position taken in Menci infringes Article 52(3) of the Charter of Fundamental Rights, according to which the meaning and scope of the rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms shall be at least be the same.
Implementation of the internal market is one of the basic aims of cooperation between Member States within the EU, being at the same time an integration area that is perceived positively by both their supporters and opponents. Issues related to the implementation of the internal market freedoms are even more interesting in its confrontation with the protection of fundamental rights. This is undoubtedly a significant issue when we think about the degree of identification of the Union citizens with the Union itself. The reviewed monograph takes all the above-mentioned elements, focusing in particular on examining how and to what extent the protection of these rights is implemented in the EU legislation on the internal market. The scientific analysis carried out within its scope covered such important and basic rights as personal data protection, freedom of expression, basic rights related to the performance of work and the right to health protection.
Following the Lisbon Treaty, the Charter of Fundamental Rights of the European Union (“the Charter”) became a part of the primary law of the EU. Although one may expect intensified protection of fundamental rights on the European continent, many scholars suggested otherwise, pointing to considerable limitations posed on the Charter’s application. This is especially the case of the so-called third generation rights, which have been left under the exclusive disposition of the Member States. The essay begins with drawing attention to the Charter’s inherent limitations as interpreted by the CJEU. The author then focuses on the general use of the Charter in the case law of Czech courts, and proceeds to the assessment of its (in)application in particular cases concerning social and economic rights in order to examine the potential shift in the intensity of their protection. It is concluded that the evidence does not suggest any change in the analysed area after the Charter’s incorporation into the primary law.
In the article the problem of domestic violence in the context of legal regulations relating to the protection of human rights is discussed. Reference was made to the historical origins of activities related to the legal protection of fundamental rights and freedoms. A distinction of women’s rights, children and domestic violence in relation to the practice of the United Nations, the Council of Europe and the European Union is considered as a tool to present arguments. The article describes the most important documents regarding the rights of women and children and domestic violence; the rights and duties imposed on signatories in the context of protection of rights and the development of regulations and methods of their implementation referring also to Polish law. The discussion that took place in the public debate prior to ratification of the Convention of the Council of Europe is also touched. The article is an attempt to indicate a significant space they occupy on the issues of domestic violence and their protection in the listed international regulations.
There is no doubt that the European Union is to be considered a community based on values — especially since the significant reforms introduced by the Lisbon Treaty in Art. 2 TEU, which not only includes their wide list, but first of all names them in this exact way. They are treated as developed from the cultural, religious and humanist inheritance of Europe, but are rather typical for modern western societies with the emphasis put on human dignity, equality, pluralism and tolerance. What is important, their meaning is not limited only to the EU’s territory or Member States themselves. According to the Treaties, in its relations with the wider world, the EU shall uphold and promote its values and in case of neighboring countries to develop a special relationship, aiming to establish an area of prosperity and good neighborliness, founded on them. Such an idea seems to be essential for future candidates states to since the leading Treaty condition of the application to become an EU Member State is respect for values.
The present article is part of a dense literature – result of a perennial debate – that has polarized societies for a long time and has evident reverberations in the present. It deals with “the right to death”, trying to offer some answers referring to its existence in fact and the way in which it is perceived by different states and diverse entities with juridical nature. In the first part of the paper, it is insisted upon the right to life, so that subsequently, to speak in detail about a “right to death” and the moral and juridical implications of using such phrases. There are analyzed different states of the world found on one part or the other of the barricade in what concerns the legality of euthanasia and assisted suicide – considered the two hypostasis of the right in question. It is offered, as well, an analysis of the Convention for the Protection of Human Rights and Fundamental Freedoms, mentioning that, paradoxically, while it cannot be modified so that it allows the appearance of some new rights, it can tacitly accept the creation by some states that have adhered to it of some rights antagonistic with those presented in its text. The conclusion, is that not any liberalization movement of a social action – quantified through the request of a right – has as a direct result a progress of the respective society, especially when the action creates something diametrically opposed to some fundamental functioning norms, such as, by excellence, the granting of the protection of life of all individuals.
The use of AI in public administration is becoming a reality, although it is still a long way from large-scale undertakings . The right to good administration, well-established in EU legal order, is equally real, however, it must be borne in mind that this right has so far been defined only in relation to traditional administration . Therefore, the purpose of the paper is to examine whether the use of AI in public administration would allow individuals to fully exercise their right to good administration. To achieve this purpose, it is reconstructed, on the basis of EU law provisions in force and the case-law of the CJEU, the meaning and scope of the right to good administration, and analysed, taking into account a definition of AI systems and planned legislative changes, whether and to what extent the reconstructed understanding of this right enables the use of AI systems in public administration. In the course of research the hypothesis that the right to good administration does not preclude the use of AI systems in public administration is verified . As the conducted analysis shows, the right to good administration as interpreted in traditional administration enables the use of AI systems in public administration, provided that the appropriate quality of these systems and the level of knowledge and skills of the parties and authorities are ensured .
The aim of this paper is to present the legal nature of the Convention for the Protection of Human Rights and Fundamental Freedoms as a special treaty under international human rights law. The article focuses on the twofold nature of the Convention. First, it presents the Convention as an international treaty, and thus as a source of specific obligations of states-parties. Second, it presents the Convention as the source of fundamental individual human rights. The article also discusses the role of ECtHR case law in the context of fundamental individual human rights.
The purpose of the article is to determine the importance of the Lisbon reform in the field of sport with regard to the fundamental rights of the individual, in particular the right to sport. The hypothesis that the European Union’s competence in sport, whether professional or amateur, has only a marginal effect or has no effect in strengthening or extending the rights of the individual practising or wanting to practise a sport in one or more EU Member States is examined. In the context of the legal system of the Union, the problem that needs to be examined is the existence (recognition) of fundamental rights in the field of sport itself, and in the second place the scope of these rights and their possible evolution. In view of the characteristics of the Union’s legal system, which is based on the transfer of competences by its Member States, the starting point of the analysis is the primary law of the Union regarding its competence in the field of sport, and then the provisions of that law that apply strictly to fundamental rights. Dogmatic analysis also includes the jurisprudence of the Court of Justice of the European Union. The conclusion that follows from the research is that the significance of the EU competence reform in the field of sport with reference to the individual’s fundamental rights is marginal.
In the Republic of Austria, until the end of 2021, supporting an individual in his or her suicide was punishable by the law which reads as follows: „Whoever incites or assists another person to commit suicide shall be liable to imprisonment for a term of between six months and five years”. The Constitutional Tribunal (Verfassungsgerichtshof - VfGH), in a court ruling of 11 December 2020, lifted the prohibition of assisting in suicide, with effect from 1 January 2022. At the same time, VfGH called on the legislator to adopt abuse prevention measures. The executive and legislative bodies responded to the VfGH’s call and as a result changed the law in Austria with regard to assisted suicide in early 2022 in a way that corresponds to the interpretation of constitutional regulations by the VfGH. The aim of the paper is to analyse and assess the scope and significance of the normative change in the Austrian legal system initiated by the VfGH ruling. In the course of the undertaken research, the hypothesis was verified that on January 1, 2022, there was a change in the Austrian legal system of fundamental significance in terms of the most important fundamental rights of an individual, in particular his/her right to self-determination. The research was conducted primarily with the use of the dogmatic-legal method.
This article presents the normative status of the principle of human dignity in the law of the European Union. The issue is portrayed with reference to primary and secondary legislation of the EU. The first field of analysis was the Treaties and the Charter of Fundamental Rights as primary sources of EU law. The examination of secondary law in the form of regulations, directives as well as soft law used to implement the policies regarding the area of freedom, security and justice was the subsequent stage. Having explored this, it was possible to formulate the thesis of this paper. It is believed that human dignity – as a principle of EU law – is a legally binding rule not only for the Member States but also for the third countries applying for EU membership. Human dignity is also one of the indivisible and universal values on which the European Union is founded.
The aim of the article is to present the scope of the protection of human embryos in the Polish legal system, particularly against the Polish Constitution, which Europe considers one of the most conservative ones. The author also analyses other legal acts in force in Poland, including European and international documents, referring to abundant literature and court judgments. The discussion calls particular attention to the in vitro procedure, whose admissibility and implementation raise emotion in the Polish society as well as numerous legal and ethical doubts in the doctrine and caselaw. One of the conclusions which the author draws from the discussion is that the selection, freezing, destruction or other form of objectifying human embryos (cloning, patenting, trade) should be regarded as illegal in view of the Polish constitutional order.
The article discusses the decisions “Right to be forgotten I” and “Right to be forgotten II” of 6 November 2019 by the Federal Constitutional Court, which redefine the relationship of cooperation between the Federal Constitutional Court and the European Court of Justice in the area of fundamental rights. The Court has decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. In the first part, the article presents the previous system, including the precedence of application of EU law and its exceptions (ultra-vires review; identity review), as well as the controversial question of the interpretation of Article 51 (1) of the Charter of Fundamental Rights, which is decisive for the applicability of the fundamental rights under the Charter. The focus is on the constitutional background of the German Basic Law for the protection of fundamental rights in the European multi-level system. Against this background, the second part of the article presents the facts and reasons for the decisions “Right to be forgotten I” and “Right to be forgotten II”. This is followed by an analysis of the consequences of these decisions for the protection of fundamental rights and cooperation between the European Court of Justice and the Federal Constitutional Court. In particular, the way in which fundamental EU rights can now be enforced before the Federal Constitutional Court is described in greater detail. The concluding part provides an overview of the open questions, risks and opportunities of this approach. Here the article illustrates the significant impact of the two decisions on dogmatic and procedural matters.
The aim of this paper is to identify the trends and direction of Hungarian referenda-related legislation and their interpretation. The paper tries to determine the beneficiaries of the different models – for example the political elite (governmental or opposition parties), emerging political groups, or voters as non-professional (occasional) partakers of politics. The paper relies on the methodology of the science of constitutional law and it applies temporal comparison: it gives an overview of the changes in the regulation of national referenda in Hungary since the change of political regime. During three decades of the Third Hungarian Republic, the national referendum’s constitutional role and model changed several times owing to the amendment of the relevant legislation and the changes in the Constitutional Court’s and the Hungarian Supreme Court’s – called Curia – jurisprudence. A clear trend may be identified from the regulation of referenda: the clearly “referendum-friendly” 1989 rules were amended to become mainly “parliament-friendly”. It must be noted, that while the Hungarian constitutional system (unlike German or US system) still contains the institution of national referendum, the citizen-initiated “referendum threat” is decreasing tendentiously. Meanwhile, the political elite, especially the Government and the strongest parties have the greatest chance of organizing a successful referendum. The jurisprudence of the Constitutional Court and the Curia did not follow such a clear trend as the regulation. Both these bodies’ jurisprudence contains decisions in favour of referenda and against this form of direct democracy, so their jurisprudence is in a constant flux.
The European Union is founded on a set of common principles of democracy, the rule of law, and fundamental rights, as enshrined in Article 2 of the Treaty on the European Union. Whereas future Member States are vetted for their compliance with these values before they accede to the Union, no similar method exists to supervise respect of these foundational principles after accession. This gap needs to be filled, since history proved that EU Member State governments’ adherence to foundational EU values cannot be taken for granted. Against this background this article assesses the need and possibilities for the establishment of an EU Scoreboard on EU values; viable strategies and procedures to regularly monitor all Member States’ compliance with the rule of law on an equal and objective basis; and the nature of effective and dissuasive sanction mechanisms foreseen for rule of law violators.
The aim of the article is to analyse the application of fundamental rights in the complex political and legal system of the European Union, which can be described as a multilevel constitutionalism. Because the standards of individual protection are created both at the level of national constitutions as well as at the supranational, EU level, it is possible that individual fundamental rights will be understood differently in the Member States. The article tries to answer the question how to solve such an interpretation conflict. A way out is suggested in the form of the need to conduct a constitutional dialogue on the understanding of fundamental rights. The conditions necessary to conduct such a dialogue are also identified. It will lead to achieving the European constitutional consensus. The article puts forward a thesis that the development of a European consensus as to the understanding of fundamental rights leads irrevocably to the formation of a European constitutional identity. Celem artykułu jest analiza sposobu stosowania praw podstawowych w złożonym systemie polityczno-prawnym Unii Europejskiej, który można określić jako wielopoziomowy konstytucjonalizm. Standardy ochrony jednostki są kreowane zarówno na poziomie konstytucji narodowych, jak i na poziomie ponadnarodowym, unijnym, dlatego możliwa jest sytuacja, gdy poszczególne prawa podstawowe będą odmiennie rozumiane w państwach członkowskich. Możliwa jest także kolizja rozumienia narodowego prawa podstawowego z jego ujmowaniem na poziomie UE. Autor artykułu stara się odpowiedzieć na pytanie, jak rozwiązywać taki konflikt interpretacyjny. Zwraca uwagę na konieczność prowadzenia dialogu konstytucyjnego dotyczącego rozumienia praw podstawowych. Wskazuje także, jakie warunki są niezbędne do prowadzenia dialogu, który będzie sprzyjać osiąganiu europejskiego konsensusu konstytucyjnego. W artykule stawiana jest teza, że wypracowywanie konsensusu europejskiego co do rozumienia praw podstawowych prowadzi nieodwołalnie do kształtowania się europejskiej tożsamości konstytucyjnej, odmiennej od tożsamości konstytucyjnych państw członkowskich.
Celem artykułu jest analiza sposobu stosowania praw podstawowych w złożonym systemie polityczno-prawnym Unii Europejskiej, który można określić jako wielopoziomowy konstytucjonalizm. Ponieważ standardy ochrony jednostki kreowane są tak na poziomie konstytucji narodowych, jak i na poziomie ponadnarodowym, unijnym, możliwa jest sytuacja, gdy poszczególne prawa podstawowe będą odmiennie rozumiane w państwach członkowskich. Możliwa jest także kolizja rozumienia narodowego prawa podstawowego z jego ujmowaniem na poziomie UE. Artykuł stara się odpowiedzieć na pytanie, jak rozwiązywać taki konflikt interpretacyjny. Sugerowane jest wyjście w postaci konieczności prowadzenia dialogu konstytucyjnego co do rozumienia praw podstawowych. Identyfikowane są także warunki niezbędne do prowadzenia takiego dialogu. Prowadzić on będzie do osiągania europejskiego konsensusu konstytucyjnego. W artykule stawiana jest teza, że wypracowywanie konsensusu europejskiego co do rozumienia praw podstawowych prowadzi nieodwołalnie do kształtowania się europejskiej tożsamości konstytucyjnej, odmiennej od tożsamości konstytucyjnych państw członkowskich.
EN
The aim of the article is to analyse the application of fundamental rights in the complex political and legal system of the European Union, which can be described as a multilevel constitutionalism. Because the standards of individual protection are created both at the level of national constitutions as well as at the supranational, EU level, it is possible that individual fundamental rights will be understood differently in the Member States. The article tries to answer the question how to solve such an interpretation conflict. A way out is suggested in the form of the need to conduct a constitutional dialogue on the understanding of fundamental rights. The conditions necessary to conduct such a dialogue are also identified. It will lead to achieving the European constitutional consensus. The article puts forward a thesis that the development of a European consensus as to the understanding of fundamental rights leads irrevocably to the formation of a European constitutional identity.
The right to peaceful assembly is one of the fundamental rights guaranteed at the level of national law, international law and European Union law. The exercise of this right is one of the main forms of active participation of individuals in public life, providing them with an effective means of expressing their views on political and other social issues, and can also be seen as a collective exercise of freedom of expression. For these reasons, the question in place is not limited only to guaranteeing this right, but alsodefining the conditions for its restriction comes to the fore. Given the originally common legal regulation of this right in the conditions of the Czech and Slovak Federal Republic, as well as its successor states and current problems of exercising this right, the authors consider the legal regulation of this right, the possibilities of its restriction in terms of measures taken by public authorities.
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