Search results - CEJSH

1

A Comparative Analysis of Institutions Responsible for the Election of Judges in France, Germany and Poland

100%

Pasierbek K.

Krytyka Prawa. Niezależne studia nad prawem

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2019

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vol. 11

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issue 3

152-170

EN

The paper presents a comparative analysis of the institutions responsible for the election, promotions and nominations of judges in France, Germany and Poland. At the very eginning – in the introduction – the genesis of institutions which are equivalents of the National Council of the Judiciary was presented, starting from the philosophical basis for the idea of the independence of courts and judges, through international regulations to the constitutions of individual states. The main part was divided into 3 sections: a brief description of the judiciary, the composition of the institution responsible for the election of judges and the manner of appointing its members, and the competence of the council and the manner of appointing judges. Each of these issues was divided by the selected countries, thanks to which it will be possible to get a clear picture of how these institutions work in individual countries. As a summary, conclusions about how the principle of judiciary independence is met in selected countries, and whether meeting this principle depends exclusively on legal framework.

2

Sądownictwo w czasie pandemii koronawirusa

100%

Rennert K.

Ruch Prawniczy, Ekonomiczny i Socjologiczny

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2021

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vol. 83

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issue 3

7-19

EN

The judiciary during the COVID-19 pandemic

PL

Sądownictwo w czasie pandemii koronawirusa

3

Projekt stanowiska Sejmu w sprawie o sygn. akt SK 30/14

100%

Lis-Staranowicz D.

Zeszyty Prawnicze BAS

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2015

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issue 3(47)

274-302

EN

In the proposed draft position the author points to the incompatibility with Article 45 para. 1 of the Constitution of Article 75 § 4 of the Act – Law on Common Courts System, in so far as it denies the right of appeal to the court against the decision of the Minister of Justice rejecting the request from a judge to be moved to a different place of office. The decision of the Minister, based on his/her own discretion, should be subject to judicial review, as it is taken neither within the scope of administrative supervision over the courts, nor even by means of official superiority, but rather relates to the systemic position of a judge determined by his/her rights and obligations. In the opinion of the author, Article 75 § 1 of the above Act, in so far as it does not specify the conditions for move to another post, is in conformity with Article 47, Article 52 para. 1, Article 65 para. 1 in conjunction with Article 31 para. 3 of the Constitution. This provision contains a mechanism that properly balances the public interest and private interest. On the one hand, it allows the change of place of adjudication established in the appointment document, providing an exception to the principle of stabilization of the office of judge. On the other hand, it guarantees an efficient and fair administration of justice.

4

Opinia prawna na temat projektu ustawy o zmianie ustawy – Prawo o postępowaniu przed sądami administracyjnymi

100%

Szydło M.

Zeszyty Prawnicze BAS

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2013

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issue 4(40)

190-210

EN

According to the author, the proposed amendment requires further legislative changes. Introduction of an extended possibility for administrative courts to adjudicate on merits of the case does not violate Article 184 first sentence of the Constitution and is an evidence of a more comprehensive implementation of the constitutional right to a trial (Article 45 (1) of the Constitution). In the authors view, the technical and legal premises of adjudicating by administrative court (provided for in the new Article 145a and in currently existing Article. 154 §2 of the Act should be made uniform in a reforming way. He expresses concern that an assessment requirement (referring to the “nature of the case”) contained in would not encourage administrative courts to issue decisions on merits of the case. Moreover, the author points out that the phrase “circumstances of the case” should be clarified.

5

Siedlecka Temida i jej „klienci” w relacjach międzywojennej prasy

100%

Sowińska D.

Historia i Świat

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2013

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issue 2

141-159

EN

Among the many publications on the judiciary and the law may indicate little, in which it was subject matter of the social dimension of law. It leaves out the question of the role of sociological and psychological factors that affect the atmosphere of the courtroom, and the perception of the court – sovereign power by coming to him for justice. Pay attention to the topic of creating these factors by the media, whose voice grew in the interwar period louder and louder. Press releases from the courtroom appear quite often in the pages of the local press in Siedlce, aroused particular interest to readers. They were in fact a direct message from the “theater of life”, showed the true story of a man whose guilt had settled usually triple the jury. The accused was against the prosecutor, and sometimes also in the audience, who entered the trial as a real theater, with a ticket in hand. In the lobby we could hear comments on the matter, judge, prosecutor, defender, and above all, the accused and his family. A deep interest in Siedlce court case list is the fact that people often gathered here waiting for the outcome of late. Press information function in addition to meet the educational role. Journalists quickly noticed widely read topics on the right. For this reason, they uploaded more and more articles that explain the essence of the laws and regulations, knowledge of which they considered necessary in everyday life. Press releases related to the crimes committed. Vivid description of the event were acting on the imagination, which had warned the victim and deter potential criminals by showing them the consequences of breaking the law. Please ensure you fully appreciate the role of the press in shaping public opinion on the law, the drafting and enforcement.

6

W sprawie poselskiego projektu ustawy o uznaniu za nieważne orzeczeń wydanych wobec byłych posłów na Sejm Rzeczypospolitej Polskiej skazanych w procesie brzeskim za działalność na rzecz demokratycznego Państwa Polskiego

100%

Jastrzębski R.

Przegląd Sejmowy

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2020

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issue 2(157)

165–172

EN

The opinion concerns convicting deputies in the so-called Brest trials. This was an event of great political signi cance in the Second Republic of Poland. After the September defeat * Opinia została napisana 10 lutego 2020 r. (przyp. red.). 166 Przegląd Sejmowy 2(157)/2020 Opinie in 1939, on 31 October 1939 President of the Republic of Poland issued a decree granting amnesty to the former deputies and reinstating their civil and honorary rights in their entirety. Since 2005 interpellations and bills have been submitted — mostly by deputies of the Polish People’s Party — concerning considering judgments passed in the Brest trials null and void. The bills were negatively evaluated by the government, the Supreme Court, the National Council of the Judiciary, they were also analysed by the Sejm Analyses Of ce. The discussed bill — third one submitted, not differing substantially from the previous one submitted in 2016 — refers to speci c court judgments in criminal cases passed with relation to speci c individuals. It is worth noting that an act shall contain legal norms of general and abstract nature. Hence, the proposed legal solutions transgress the attribution of the Sejm and consequently may violate the principle of separation of powers.

7

Auto-da-fe in Lwów in 1728: The Jan Filipowicz Trial and Jewish Re-Conversion to Judaism in the Early Modern Poland

100%

Kaźmierczyk A.

Acta Poloniae Historica

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2017

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vol. 116

PL

This article discusses the question of neophytes’ return to Judaism, especially the case of Jan Filipowicz, who was condemned to death for this crime in 1728 in Lwów. The return of Jewish converts to their religion of origin was a relatively frequent occurrence in the Polish-Lithuanian Commonwealth, but those charged with this crime, especially Jews from Lwów accused of persuading the neophytes to return, were not usually treated as harshly as Filipowicz. The exceptionally harsh sentence given to the rabbis responsible for the return of Filipowicz to Judaism resulted from the judges’ belief in the existence of a ritual of dechristianization, a special blasphemy against Christianity. The relationship of the courts and the Church in the Polish-Lithuanian Commonwealth to the problem of apostasy among converts from Judaism is addressed. The penitential practices described in the court documents are similar to those described by the inquisitor Bernard Gui in the fourteenth century and to the ritual of dechristianization described by Jan Serafinowicz, the most famous eighteenth century convert.

8

Kryteria awansu w sądownictwie

88%

Drożdżejko Z.

Przegląd Prawa Publicznego

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2012

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issue 5

30-44

EN

The article concerns the issue of judges promotion. The basic rules on this matter elaborated by the Constitutional Tribunal are presented and discussed here. The author analyses the different criteria which can and should be taken into account while evaluating candidates for senior positions in the judiciary.

9

Convicted Nazi lawyer. The case of Gerhard Pchalek in the Gera District Court in 1960

88%

Graczyk K.

Acta Iuris Stetinensis

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2020

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vol. 29

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issue 1

17-31

EN

This study is devoted to a criminal case brought before a court in the German Democratic Republic against Gerhard Pchalek in connection with his service as a prosecutor in the Third Reich. Pchalek served in the Polish territories incorporated into the Reich, in Bielsko and Ka¬towice. He was a prosecutor in proceedings before special courts in Bielsko and Katowice, as well as before the Higher National Court in Katowice, in which he filed motions to sentence defendants to the death penalty. In 20 cases - as was determined by the District Court in Gera - Pchalek demanded the death penalty, which was then imposed and enforced. His act was classified as aiding in murder under the provisions of the German Criminal Code, and Pchalek was sentenced to 4 years in strict regime prison. The paper discusses the biography of Pchalek, the issue of post-war criminal liability of Nazi lawyers and the criminal trial before the District Court in Gera. The study uses a historical, formal and dogmatic method. The criminal trial in question is one of the few cases in which a Nazi lawyer was convicted.

10

Delikty proti životu v Provincii XIII spišských miest v druhej polovici 16. storočia a v prvej polovici 17. storočia

88%

Kurinovská M.

Historia Slavorum Occidentis

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2016

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issue 2(11)

181-198

EN

In the discussed period, delicts against human life recorded in protocols of the province could be divided into several groups – new-born child murder, abortion, manslaughter (not carefully planned homicide) – here injury with fatal outcome can be included, murder (premeditated homicide), killing in self-defence, accidental killing and robbery-homicide. The paper focuses only on cases, where culprit was sentenced for committing just one delict – delict against human life. Separate prosecution for abortion and robbery-homicide were not recorded in the protocols of the province in the analysed period. Among documented delicts against human life, premeditated homicides and new-born child murders, which were most strictly punished, were considered as the most serious ones. Manslaughters were punished somewhat less severely. When not planned, homicide was punished by death, then decollation was used. It was considered as the least cruel and the least degrading death penalty. Killings in self-defence, accidental killings and the cases of manslaughters, where the injured party was willing to make a deal with the part of culprit, were punished the least seriously.

11

Szkice do biografii prawników wojskowych Wojska Polskiego, byłych radzieckich wojenjuristów 1. rangi

88%

Wojtkowiak J.

Pamięć i Sprawiedliwość

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2019

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issue 33

356-369

PL

A rtykuł przedstawia losy sześciu prawników wojskowych, Polaków, którzy w latach trzydziestych XX w. służyli w Armii Czerwonej lub wojskach NKWD, w 1936 r. nadano im stopień wojenjurista 1. rangi (odpowiadający wówczas randze pułkownika), a następ- nie wstąpili do Wojska Polskiego. Na podstawie źródeł, pochodzących głównie z archi- wów rosyjskich, zrekonstruowano kariery tych oficerów w okresie ich służby w siłach zbrojnych ZSRR. Pozwoliło to na nakreślenie ich portretu zbiorowego. Wszyscy legi- tymowali się wątpliwym wykształceniem zawodowym, przez wiele lat służyli w orga- nach związanych z systemem represyjnym państwa radzieckiego oraz byli dyspozycyjni wobec organów NKWD w czasie wielkiej czystki (1937–1938). Mimo poddania więk- szości z nich w 1938 r. różnego rodzaju represjom otrzymali rękojmię realizacji w Polsce polityki zgodnej z interesem ZSRR.

EN

T he article presents the life history of six Polish military lawyers who served in the Red Army or in the NKVD forces in the 1930s, were promoted to top ranking war lawyers in 1936 (the equivalent to the former rank of colonel), and afterwards enlisted into the Polish Army. Based on evidence mainly from Russian archives, it was possible to reconstruct the careers of these officers while on service in the armed forces of the USRR. A collective picture was established thereon. There were doubts as to their pro - fessional education since they completed many years of service in bodies related to the repression system of the Soviet state and served the NKVD authorities during the great purge (1937–1938). Although they were subject to various forms of repressions in 1938, they received a guarantee for pursuing a policy in the interest of the USSR in Poland.

12

Opinia prawna na temat dopuszczalności pełnienia przez posła lub senatora funkcji ławnika

88%

Czarny P.

Zeszyty Prawnicze BAS

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2015

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issue 4(48)

199-205

EN

In Polish legislation there is no express prohibition that prevent a Deputy to the Sejm or Senator from holding the position of lay judge in a common court. You cannot say that the constitutional ban on the simultaneous exercise of a parliamentary mandate and performance of judicial functions, as well as the principle of separation of the judicial power automatically mean a prohibition of performance of the function of lay judge by an MP. However, according to the author, it can hardly be accepted as fully compatible with the principle of separation of powers the situation in which an MP is also a lay judge, due to the principle of separation of the judiciary. In the author’s opinion, to gain complete clarity of the situation, explicit prohibition of holding the position of lay judge in a general court by a Deputy or Senator should be contained in the Act – Law on Common Courts.

13

Projekt stanowiska Sejmu w sprawie o sygn. akt SK 19/15

88%

Gromek Z.

Zeszyty Prawnicze BAS

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2016

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issue 2(50)

231-257

EN

In the proposed draft position the author claims that the contested article of the Act – Geological and Mining Law is compatible with Article 45 para. 1 of the Constitution. The decision approving the concession for the extraction of minerals from the deposit is related to environmental decision - the arrangements on the environment protection and environmental impact of the project, contained in the environmental decision are binding on the entity awarding concessions. Environmental decision are subject to oversight both the appellate and court proceedings. The author argues that the instruments provided for by the legislature ensure protection of the interests of owners of property adjacent to that on which projects negatively affecting the environment (including neighbourhood) are carried out.

14

Opinia w sprawie komunikatu Komisji do Parlamentu Europejskiego, Rady, Europejskiego Komitetu Ekonomiczno-Społecznego i Komitetu Regionów: „Sprawozdanie na temat praworządności z 2020 r. Sytuacja w zakresie praworządności w Unii Europejskiej” (COM(2020) 580 final), łącznie z dokumentem roboczym służb Komisji: „Sprawozdanie na temat praworządności z 2020 r. Rozdział dotyczący sytuacji w zakresie praworządności w Polsce” (SWD(2020) 320 final)

88%

Mik C.

Zeszyty Prawnicze BAS

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2021

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issue 1(69)

93-113

EN

The opinion discusses the European Commission’s communication on key aspects of the rule of law in the Member States, including clarifying the issue of the rule of law in the European Union, its relevance to the effective functioning of the Union, the importance of the rule of law mechanism, and the impact of the COVID-19 pandemic on the rule of law in the Member States. The author states that the competences of the Commission to independently formulate the general concept of the rule of law and to take actions assessing the Member States from its perspective should be critically assessed.

15

W sprawie dopuszczalności ewentualnie braku dopuszczalności wycofania poparcia dla sędziego — kandydata zgłoszonego do Krajowej Rady Sadownictwa przez grupę co najmniej 25 sędziów albo grupę co najmniej 2000 obywateli (art. 11 a ust. 2 ustawy o KRS)

88%

Dobrowolski M.

Przegląd Sejmowy

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2018

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issue 2(145)

136–139

EN

The Act on the National Council of the Judiciary establishes two collective subjects entitled to submit a candidature for its member, i.e. a group of at least (a) 2,000 Polish citizens, (b) 25 active judges. Those two subjects are equal. An effective withdrawal of support by a judge would result in equally treating the citizens’ support, which would cause considerable implementation difficulties. Admissibility of support withdrawal is inconsistent with the principle of fi nality of citizens’ support, dominating in the Polish legal system; moreover, it lacks substantive justifi cation — the supported candidate could not have changed radically in the period of a few days. The finality of support emphasizes the signifi cance of responsible decision-making in this scope, which ensures no interruption in the further stages of proceedings. Hence, it shall be concluded that the act on the National Council of the Judiciary contains a legal loophole — it may be filled by applying the systemic interpretation, which leads to the opinion on the finality of submitting the candidature of a judge for a member of the National Council of the Judiciary

16

W sprawie dopuszczalności odwołania poparcia dla sędziego kandydata do Krajowej Rady Sądownictwa

88%

Karczmarek A.

Przegląd Sejmowy

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2018

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issue 2(145)

140–145

EN

The Act on the National Council of the Judiciary establishes two collective subjects entitled to submit a candidature for its member, i.e. a group of at least (a) 2,000 Polish citizens, (b) 25 active judges. Those two subjects are equal. An effective withdrawal of support by a judge would result in equally treating the citizens’ support, which would cause considerable implementation diffi culties. Admissibility of support withdrawal is inconsistent with the principle of fi nality of citizens’ support, dominating in the Polish legal system; moreover, it lacks substantive justifi cation — the supported candidate could not have changed radically in the period of a few days. The finality of support emphasizes the signifi cance of responsible decision-making in this scope, which ensures no interruption in the further stages of proceedings. Hence, it shall be concluded that the act on the National Council of the Judiciary contains a legal loophole — it may be filled by applying the systemic interpretation, which leads to the opinion on the finality of submitting the candidature of a judge for a member of the National Council of the Judiciary.

17

Rada Sędziowska oraz Komisja Nominacyjna dla Anglii i Walii

75%

Urbaniak K.

Przegląd Prawa i Administracji

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2019

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vol. 119

181-194

EN

The judiciary in the United Kingdom is a phenomenon in Europe. Despite the fact that the role of judges in the common law system was significantly greater than in continental law systems, the British system lacked formal, institutional safeguards of the independence of the courts and the independence of judges. This principle was seen as a constitutional convention. The Judges’ Council, being the representation of judges, had only the status of an internal judicial body and an advisory role to the Lord Chief Justice. The reforms of the justice system introduced at the beginning of the 20th century, including the establishment of the Judicial Appointments Commission, undoubtedly influenced the strengthening of the independence of the courts against the executive and increased the influence of the judicial community on the appointment system of judicial offices in England and Wales.

18

Państwowa Rada Sądownictwa w Republice Chorwacji

75%

Składowski K.

Przegląd Prawa i Administracji

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2019

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vol. 119

17-26

EN

The State Judicial Council is a constitutional body in Croatia. In accordance with the Constitution, the Council consists of eleven members elected for a four-year term of office: seven judges, two professors of legal sciences and two deputies to the Sabor, one of whom must be a member of the opposition. Members of the Council from among the judges are elected by the judges. The procedure of its selection and competences are regulated in detail by the Act on the State Judicial Council.

19

Odpowiedzialność sędziów w świetle zjawiska judykalizacji polityki

75%

Skrzypiński D.

Wrocławskie Studia Politologiczne

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2014

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vol. 17

53 - 64

EN

Analysis of dimensions of enforcing the responsibility of judges is a subject of the present article in the era of deepening of process judicialization of politics. In the author’s opinion judicialization of politics is indicating the process, in which meaning of courts is growing as organs settling political disputes. This phenomenon is changing the way of understanding the independence of judges and is shedding new light for enforcing their responsibility.

20

Rada Sądownictwa Irlandii Północnej

75%

Gajda A.

Przegląd Prawa i Administracji

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2019

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vol. 119

195-203

EN

The Judges’ Council for Northern Ireland was established in 2010. The only legal basis defining the principles of its operation and the procedure for appointing its members is the “constitution” adopted by the Council itself — the rules governing its action. The author analyses the competence and practice of this body and concludes that the Council has no imperative powers and that its role is limited to that of an advisory role. It has not been given the powers that are usually given to bodies of a similar nature. Despite this, the Lord Chief Justice of Northern Ireland, as head of the judiciary, before making specific decisions usually decides to consult them with representatives of various judicial circles represented in the Council, which increases public confidence in his decisions and confidence in the judiciary.

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