Constitutional Jurisdiction in Poland and Germany: A Note

Abstract

[In this article, the author compares constitutional jurisdiction in Poland and Germany. He starts by pointing out the common philosophical background for determining the form of the constitutional courts in both countries. Afterwards, a description of the historical background which has led to the creation of this institution is offered to the reader. The similarities regarding the organization of both courts, which have been noted by the author, will then be examined. It is, however, the case law of the German and Polish courts which forms the main focus of the author's investigation. He seeks to illustrate that the lines of reasoning of both these courts are quite close; in doing so, the author will refer in particular to cases concerning European law and its relationship to national law., In this article, the author analyzes the relevant case law in Bosnia and Herzegovina and in Strasbourg with regard to the right to liberty and security of the person (Art.5 of the European Convention for Human Rights and Fundamental Freedoms (ECHR)), presenting the specific human rights issues and situations in that country after the Dayton Peace Agreement. After a short historical and comparative overview of the right to liberty and security of the person, the author introduces the complex substantive, procedural and institutional framework for the protection of that liberty. The author continues by systematically presenting the main human rights issues within Article 5 of the ECHR, discussing, on the one hand, the grave violations of that liberty in Bosnia and Herzegovina during or after the war (such as kidnapping or deprivation of liberty based on discrimination on national or religious grounds) and, on the other hand, the determined efforts of the country's highest legal institution to protect the individuals concerned and the constitutional principle of the 'rule of law'. The author also presents the main procedural problems that arise in the course of the protection of Article 5 of the ECHR, focusing on the ECHR's standards and its introduction into the legal system of Bosnia and Herzegovina. Finally, the author concludes that all state authorities (not only the highest judiciary) have to follow the relevant jurisprudence and standards of the ECHR in order to build a state that operates under the rule of law and, also, to fulfill its international obligations in respect of the Council of Europe and the European Union., ]