Review of European and Comparative Law, 2022, Vol. 49, No 2
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- ItemLegal status of youth councils in Poland and France in the light of new legal regulations(Wydawnictwo KUL, 2022) Augustyniak, MonikaThe subject of the paper is the legal status of consultative bodies dedicated to young people, which are established both in the Polish local government and in the French local government community. In both legal orders, these bodies have a consultative and advisory character. However, there are some differences in their structure and forms of action, which may constitute a field of reflection on their legal status. In Poland and in France, there is a noticeable trend towards expanding the importance and tasks of these bodies in self-governing communities, which indicates a good direction of change. Due to an increase in civic awareness, youth structures in Polish and French local government are becoming an essential element in the creation of democratic administrative structures.
- ItemReferences to jurisprudence of foreign constitutional courts in judgments and decisions of the Constitutional Tribunal of the Republic of Poland(Wydawnictwo KUL, 2022) Maroń, GrzegorzIn its jurisprudence, the Constitutional Tribunal of the Republic of Poland often uses the comparative law method. For it, comparative material is not only the normative acts in force in other countries, but also foreign jurisprudence. This article presents the results of a quantitative and qualitative study of the judgments of the Polish Constitutional Tribunal in terms of the presence of references to the judgments of other constitutional courts. Reference by the Tribunal to foreign constitutional jurisprudence is a relatively rare practice, but not an occasional one. It was intensified after Poland’s accession to the European Union. Although the main point of reference for the Tribunal in its comparative analysis is still the jurisprudence of the German Federal Constitutional Court and constitutional courts of other Western countries, it also increasingly frequently reaches to the judgments of the constitutional courts of Central European and Baltic countries. The subject issue is part of the progressive process of the so-called transnational judicial discourse or judicial globalization. The reluctance of the Tribunal to reach in its rulings to judgments of foreign constitutional courts, which has been observed since 2017, may be the beginning of its assumption of an exceptionalistic attitude similar to the U.S. Supreme Court.
- ItemLegal solutions of lake monitoring systems in Poland in compliance with the Water Framework Directive(Wydawnictwo KUL, 2022) Zębek, Elżbieta MałgorzataThe Water Framework Directive 2000/60/EC is considered a very modern strategy of water management in the EU. The purpose is to establish a framework for the protection of inland surface waters by preventing further deterioration and protecting the condition of aquatic ecosystems, as well as increasing the protection and improvement of the condition of the aquatic environment by limiting emissions and losses of priority substances. It was considered that changes in the water law in Poland during the process of implementing the guidelines of the Water Framework Directive may have contributed to widening and strengthening the monitoring system of lakes and changes in their quality, especially their ecological state. This article aims to determine the changes in legal regulations in the field of water quality/ecologically state of lakes in Poland as a result of the implementation of the WFD. The EC reports indicate that some requirements are too rigorous and complicated for Member States to implement. Water monitoring was significantly expanded and modernised which lead to improvement of lake water quality in Poland. The five-grade ecological status of lake waters and standardised biological indicators were introduced. It was highlighted that the improvement of the WFD implementation process allowed for more effective water management and the development of effective strategies for the protection of lakes in Poland and other EU countries.
- ItemThe intersection of transnational and international criminal law – example of trafficking in persons(Wydawnictwo KUL, 2022) Głogowska-Balcerzak, AnnaThe paper addresses the possible intersection of transnational and international criminal law, using the example of the crime of trafficking in persons. In recent years trafficking in persons has gathered a great deal of attention from scholars, practitioners and politicians, nevertheless theoretical aspects concerning that notion and its relation with other concepts present in international law – such as slavery, practices similar to slavery, enslavements etc. – have still been neglected. As this notion appears at the intersection of different areas of law, including transnational and international criminal law, its closer analysis can contribute to determination of theoretical boundaries of both areas of international law.
- ItemStare decisis and information abundance in a common law jurisdiction(Wydawnictwo KUL, 2022) Roscoe, Emily; Szypszak, CharlesIn a common law jurisdiction, according to the principle of stare decisis, judges are bound to interpret a constitutional or common law principle by applying authoritative cases already decided. Parties in disputes pending before the courts must find and assess the prior cases on which they can expect that judges will rely. Not very long ago, research for such precedent involved reviewing known cases and linking them to other cases using topical digests and citators. Success with this approach required a patient, persistent, thorough, and open-minded methodology. Modern information accessibility gives previously unimaginable quick access to cases, including with tools that promise to predict judicial tendencies. But this technological accessibility can have negative side effects, including a diminished research aptitude and a stilted capacity to synthesize information. It can also lead to an inadequate account of the human factors that often cause judges to depart from predictions based on logical inference from prior cases. This article considers the extent to which the identification of precedent is essential in legal analysis, yet is of limited value in predictability as a result of judges’ unavoidably human perspectives. With examples from landmark cases, the article illustrates that judges sometimes make decisions based on considerations that will not be revealed in a mechanistic application of precedent. The article considers how evolving legal research tools and methods give access to precedent that in some respects makes the process more scientific, but in other respects can obscure the realities of how cases are decided. The article also gives examples of this paradox as demonstrated by today’s students who are learning how to do research, drawn from years of the authors’ teaching experience.
- ItemGeneral Rules on Invalidity of Contracts in Serbia(Wydawnictwo KUL, 2022) Dudás, AttilaThe Serbian Law on Obligations in the most part retained the general rules on invalidity of contracts from the federal Law on Obligations from 1978. The Law explicitly differentiates two categories of invalid contracts: null and void contracts, on the one hand, and voidable contracts, on the other. Whereas the general legal consequences of both categories are principally the same, restitutio in integrum, null and void contracts have some other, more stringent legal consequences as well. The most important is the ban of restitution of performance of the party who acted in bad faith, which in cases when the contract grossly violates good morals may be supplemented by the forfeiture of the object of performance. The effective Serbian Law on Obligations, namely, still contains the rule retained from the federal Law from 1978, according to which the court may order the party who acted in bad faith to transfer the object of his/her performance to the municipality of his/her residence or domicile. Voidable are considered contracts with flawed contractual intention, such as contracts concluded in mistake, deceit or under threat. In addition, voidable are contracts of minors older than 14 years concluded without the consent of their natural or legal guardian, or contracts of adults whose capacity is not completely excluded, but only partially reduced, concluded outside their capacity or without the consent of their legal guardian. Furthermore, since leasio is considered a case of mistake making the contractual intention flawed, the remedy is also the voidability of the contract. In Serbian law, a contract is null and void, if it infringes public order, imperative rules or good morals, unless something else is prescribed by the law or the purpose of the infringed rule implies a different remedy. The illegality and immorality of a contract is scrutinised through its object (content) and cause. Aside from these general rules, the Law on Obligations specifically qualifies usurious contracts as null. Yet, there are several means of „saving” a contract from the consequences of invalidity, primarily by performance, convalidation and partial invalidity. Non-existent contracts are clearly distinguished in the doctrine, but it is questionable whether the Law on Obligations envisages a separate legal regime applicable to this category, distinct from the one applicable to null and void contracts. The law, namely, uses wording or implies in certain cases as if the contract had not been conlcuded at all. However, in the rules pertaining to legal consequences of invalidity refers only to null and void, and voidable contracts. The doctrinal standpoints differ whether a separate legal regime applicable only to non-existent contracts could be implied from the general rules, regardless that no specific set of rules on non-existent contracts exists in the Law on Obligations.
- ItemDisinformation regarding COVID-19 in light of the priorities of the European Commission and the legal regulations binding and currently drafted in Poland(Wydawnictwo KUL, 2022) Jaskuła, Lidia KatarzynaDisinformation regarding the COVID-19 pandemic is a global phenomenon. It constitutes a threat to the values protected under the law, health in particular. The primary issue tackled in “Disinformation regarding COVID-19 in the light of priorities of the European Commission and the legal regulations binding and currently drafted in Poland” paper is an attempt at answering the following question: Is eliminating COVID-19 disinformation from public space possible in light of the priorities of the European Commission and the legal regulations already effective and currently being drafted in Poland? The analyses conducted under the paper lead to the conclusions that the provisions currently regulating freedom of expression theoretically constitute a basis for eliminating disinformation from public space but are, in practice, not very effective. This leads to the need for searching for other, more effective legal instruments in this field, both on the level of European Union law making and domestic legislation. Although we may speak of a consensus concerning assessment of the very phenomenon of disinformation the legislative and practical actions taken, both on the domestic level and the European Union level, enable us to indicate substantial and frequently disturbing differences regarding shifting the aspects emphasized by legislation. As compared to the proposed solutions drafted by the European Commission and the drafts of domestic acts, the vastly different approach to the idea of controlling disinformation is clearly visible. Therefore, it must be stated that such circumstances will lead to development of varied legal effects of the drafted regulations that will decide, among other issues, the practical effectiveness or lack thereof in the case of the drafted solutions. In the course of the analysis of the issue constituting the subject of this paper, we should concurrently bear in mind that freedom of expression is one of the principles in a democratic state governed by the rule of law.
- ItemThe ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?(Wydawnictwo KUL, 2022) Daminova, Nasiya IldarovnaAs stated in the European Convention on Human Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms. Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision. Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue between two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts. 2 (right to life ́) and 3 (prohibition of torture ́) ECHR within the European Arrest Warrant context (murder/trafficking in human beings charges). At the same time, this interpretation opens the floor for discussion on potential applicability of other Convention provisions (Arts. 4, 5, 8, 13) to other offences listed in Art . 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc.). Even though the Strasbourg Court has transposed the CJEU’s benchmarks of the EAW refusals legality assessment – i.e. a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăra ru), the EU Member States ́ courts are now forced – de facto – to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute the European Arrest Warrants. This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR, which aims at the most effective realisation of the ́subsidiarity ́ principle in the European Convention system.
- ItemArtificial intelligence systems and the right to good administration(Wydawnictwo KUL, 2022) Wróbel, Izabela MałgorzataThe 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.
- ItemSo-called “dangerous prisoners” – selected issues from the perspective of individual’s rights protection(Wydawnictwo KUL, 2022) Kotowska, Monika; Karaźniewicz, JustynaThe issue of “dangerous” prisoners is of utmost importance, mainly regarding the restrictions imposed on offenders of this category. The restrictions in question introduce significant limitations of the statutory rights of individuals and alter the purposes of the penalty of deprivation of liberty. For this reason, it is necessary to align the Polish law, and above all penitentiary practice, with the international standards of human rights protection. This paper analyses both the Polish legislation and practice in terms of the qualification and treatment of “dangerous” prisoners. The paper points to the obscurity of certain legal regulations and the broad limits of discretion in applying and extending “dangerous prisoner” status. Furthermore, the paper evaluates the concept of distinguishing the category of “dangerous prisoners” and the operation of “N” wards from the perspective of the impact that such heightened isolation exerts on the individual, but also on the society and the penal institution.
- ItemA Few Remarks About Challenges in Application of Restorative Justice: A Case Study of Bosnia and Herzegovina(Wydawnictwo KUL, 2022) Kazić-Çakar, Ena; Ćorović, RialdaRestorative justice is without any doubt one of the most important steps in the development of criminal law, which at the same time increased the level of humanity in the approach towards perpetrators and victims and managed to achieve the principle goals of criminal law. A few decades have passed since its idea and approach was borrowed from the traditional communities that among themselves applied it for centuries, and it was transformed into the new approach of justice offering many benefits to the community where it is established. Formally, it has been more than 20 years since Bosnia and Herzegovina embraced restorative justice within its criminal law. This paper aims to discuss how much de facto it has been applied in this country and to present results of interviews with representatives from legal theory and practice where they refer to restorative justice and its major challenges for application and propose mechanisms for overcoming existing difficulties. In this article, the authors use normative, descriptive scientific methods and statistics and interviews as tools for the collection of data.
- ItemThe British Nationality and Borders Bill and the international protection of refugees in the light of the concept of community interest in international law(Wydawnictwo KUL, 2022) Kuźniar, DagmaraThe crisis that Europe faced in 2015 has never been resolved, and countries have adopted different strategies to deal with the influx of migrants. Some of them raise serious legal doubts for good reason. One of the new national solutions currently in the process of passing is the new migration plan announced by the United Kingdom in the Nationality and Borders Bill last year. The aim of the reform is to improve the British asylum system and to fight effectively illegal immigration and people smuggling. The aim of the article is to present the most important assumptions of the British reform in the field of granting refugee status. The analysis would allow to assess the compliance of the designed solutions with international obligations, the fulfilment of which should form the basis of the asylum policy of each State being a party to the 1951 Convention relating to the Status of Refugees. The main aim of the article, however, is to draw attention to the fact that the international protection of refugees should be equated with community interests and referring to the individual interest of the State is an erroneous and dangerous assumption.