Law In Poland Research Articles

Connecting Reproductive Rights, Democracy, and the Rule of Law: Lessons from Poland in Times of COVID-19

AbstractThis article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

The rule of law in Poland – crisis or a new reality?

The rule of law in Poland – crisis or a new reality?

Policy on Public Assemblies in Times of Crisis: Recommendations Concerning the Strategy of Militant Democracy

The main purpose of the article is to present the activities undertaken by decision-making centres and public administration entities in Poland in relation to protests against the restriction of abortion law. These protests took place during the second wave of the pandemic and continue. It all started with the judgment of the Constitutional Court, which decided to restrict abortion law in Poland, so far there was a so-called abortion compromise, which allowed abortions to be carried out in three specific cases. The verdict met with resistance from a large part of society and triggered protests that turned into large-scale public gatherings, despite the coronavirus pandemic. During this period assemblies were reduced or banned completely, which may be one symptom of using by the government the strategy of militant democracy. The study’s focus is primarily on the activities taken by decision-making centers with regard to protesters. The analysis makes it possible to explain the ways and causes of protests and public gatherings held despite the restrictions introduced to prevent the spread of the virus. On this basis, it introduces recommendations to the government to restore stability in the state and end the protests.

Economic sanctions and new strategies in East-West economic relations in 1981–1982

The article focuses on the economic sanctions deployed by the United States after the declaration of martial law in Poland in 1981. These measures represented the ‘tip of the iceberg’ of a broader discussion on how to address the increasing East-West economic interdependence. Through sanctions, the United States faced this issue and tried to change the rules of economic competition among Western countries.

Przyszła reforma procedury karnej. A może by tak sięgnąć po no case to answer?

The article criticizes the changes to the criminal procedural law in Poland in the years 2016–2020 and proposes to start work on the draft of a completely new Code. It focuses on the possibility of introducing the common law legal institute of no case to answer institution into the Polish procedure, which, on the one hand, would strengthen the procedural guarantees of the accused person, and on the other, could contribute to increasing the effectiveness of the proceedings. The author formulates the boundary conditions that must be met in order for the introduction of the said institution to be possible. The most important of these is the return to the concept of full adversarial evidence proceedings at the trial before the court of first instance.

Whistleblower Rights and Protection in The Workplace: the Role of Trade Unions in Poland Selected Issues

The article discusses selected problems related to trade unions’ functions and their future role in the protection of whistleblowers. The author analyzes the current provisions of the Act on Trade Unions concerning the functioning of trade unions in protecting whistleblowers in the workplace, reporting irregularities (illegal, unethical or otherwise inappropriate activities) and the use of collective bargaining power of trade unions. Workers’ representatives have an express right to assist whistleblowers as defined by national law. The author states that the functions of trade unions under trade union law in Poland in reporting irregularities are often perceived as signaling and, consequently, limited.

Recent Polish Case Law on the Application of the Ordre Public Exception in Case of Transcription (Registration) of Foreign Birth Certificates into the Domestic Register of Civil Status

This article is an overview of the recent Polish case law on the application of the ordre public exeption in case of transcription of foreign birth certificates in Poland. In recent times, the ordre public exception was applied to prevent the transcription of birth certificates that indicate same-sex couples as parents of a child and birth certificates of children born by surrogacy. Simultaneously, it was commonly assumed that the transcription is obligatory in order to obtain Polish identity documents. For that reason, the refusal of transcription meant in fact i.a. the inability to obtain Polish identity documents. It caused not only practical complications in everyday life but it was also a serious breach of rights.This article outlines the evolution of the transcription case law in Poland. Initially, the administrative authorities and the courts had been refusing the transcription due to its inconsistency with fundamental principles of the legal order. Subsequently, however, transcription was found admissible on the basis of the principle of the best interests of the child. Due to the divergence in the case law, the issue of transcription was the subject of the resolution of seven judges of the Supreme Administrative Court of 2 December 2019 (ref. no. II OPS 1/19). The resolution states that the transcription is contrary to the fundamental principles of the legal order. However, the resolution also underlines that the fact that a child is a Polish citizen may be confirmed solely by a foreign birth certificate so there is no need for transcription in order to obtain Polish identity documents.

Public Enforcement of Consumer Law in Poland: Mission Impossible?

Public Enforcement of Consumer Law in Poland: Mission Impossible?

Postal ballot in unconsolidated democracy: Poland's case

PurposeAs the democratic world debates and in some cases replaces physical voting with postal ballots and on-line voting, it is important to refrain from advocating a generic approach to the issue and in particular to distinguish between consolidated and unconsolidated democracies.Design/methodology/approachThe paper argues that unconsolidated democracies are not fit for the introduction of non-physical (postal ballot and on-line) voting methods, which rather than broadening the scope of democracy may in actual fact be derailing it. The key reason for this distinction is the lack of political consensus for constitutional rules, the weakness of the rule of law and persistence of parochial and subject-based political cultures in many countries of the region, including Poland.FindingsReplacing physical voting with postal ballot, attempted during Presidential elections in the summer 2020 in Poland, eventually failed and was replaced with conventional physical vote. However, the Polish case demonstrates that in the system with weak checks and balances, postal ballot could be used to consolidate illiberalism not democracy.Research limitations/implicationsThe paper demonstrates that further research on defining consolidated and unconsolidated democracy is needed. In particular there is a need to factor in the research on political culture into the definitions of democratic consolidation.Practical implicationsEU membership for Poland and some other Central European states – such as Hungary – failed to prompt the process of democratic consolidation. In fact the opposite happened as the impact of EU conditionality lost relevance. It is important that any change of electoral law in Poland and other rule of law violators in the region is viewed with great care and scrutiny.Originality/valueThe paper’s conceptual approach rests on the definition of consolidated democracy as put forward by Przeworski (1991) and developed by Linz and Stepan (1996). According to these definitions, Poland is not yet a consolidated democracy and as argued in the paper, it has actually experienced an expansion of illiberalism in recent years. The paper also posits that the concept of “consolidated democracy” should be augmented to include the existence of civic political culture as a necessary condition for the maintenance of a healthy democracy.

Poland’s Rule of Law Breakdown: A Five-Year Assessment of EU’s (In)Action

To reinstate what amounts to a “Soviet-style justice system”, Polish authorities have repeatedly and deliberately violated the Polish Constitution and EU law. Rather than comprehensively detailing these repeated violations, this article focuses on the EU dimension of Poland’s rule of law breakdown. Using the activation of the Rule of Law Framework by the European Commission on 13 January 2016 as a starting point, this article offers a critical five-year assessment of EU’s (in)action starting with an overview of the extent to which virtually all of the multiple problematical issues identified early on by the Commission have yet to be addressed by Polish authorities by January 2021. Regarding the Commission and the Council’s (in)action, this article argues that the Commission has systematically acted in a too little too late fashion while the Council has systematically failed to meaningfully act, with the inaction of these two EU institutions amounting, at times, to dereliction of duties. By contrast, the Court of Justice has forcefully defended judicial independence whenever an infringement case was lodged with it by the Commission. The Court of Justice’s record in preliminary ruling cases is more mixed due, in part, to the Court’s apprehension to undermine the principle of mutual trust. The article ends with a list of key lessons and recommendations which reflect the EU’s few successes and many failures highlighted in this article. It is submitted inter alia that more statements, dialogue and reports are not going to help contain, let alone solve Poland’s rule of law crisis. It is indeed no longer a crisis the EU is facing but a total breakdown in the rule of law in Poland which, in turn, represents a threat to the interconnected legal order that underpins the EU.

Memory Laws and Memory Wars in Poland, Russia and Ukraine

While memory laws emerged in the Western European context almost three decades ago, there has been a recent proliferation of memory laws in Central and Eastern Europe in the 2010s. This emerging body of law, contrary to its origins, appears to fortify a state-sanctioned victimhood and seeks to establish a preferable narrative of history in public memory through legal means. The outlook on WWII history and the dominance of Soviet communism is a central point of contestation as CEE states construct opposing historical narratives that implicate one another in the ongoing war for remembrance. In our contribution, we focus on three CEE states as country studies, covering memory laws in Poland, Russia, and Ukraine, as well as analyzing their memory legislation in the context of memory wars. Our analysis subsequently highlights how ‘memory wars’ unfold as proxy wars for contemporary state identities. A quest for mnemonical security, states securitize the governance of memory which is hence excluded from public discourse and subjugated to restrictive permissible discourses and remembrance practices. These methods of mnemonic governance via militant memory laws thereby erode the foundational elements of liberal democracy, weaken constitutional orders as well as add fuel to nationalist tendencies, all of which have implications for democratic backsliding. Furthermore, our contribution demonstrates that memory laws in all three countries have been adopted as swords and shields amidst the mutual memory wars: (1) between Poland and Ukraine, on the one side, against Russia, on the other side, as well as (2) Poland and Ukraine between themselves, and (3) Russia and Ukraine between themselves. These diametrically opposed historical narratives, institutionalized through memory laws, thus have significant implications and can potentially deepen conflicts, historical feuds, and ethnic and national tensions.

Environmental Forensic Examinations in Poland: a Case Study

Abstract In environmental criminal cases, forensic examinations are of particular relevance and create the basis for judicial decisions. In the article, four criminal cases concerning different types of environmental crimes were described to show current challenges and shortcomings in the area of environmental protection through criminal law in Poland, and the role of the experts in the process of proof. Special attention was paid to the forensic examinations of the plant and animal world within Nature 2000 sites, which are appeared to be the most challenging. The authors also addressed the issue of the compliance of domestic criminal law and its enforcement with the provisions of the Directive 2008/99/ec of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law.

The functions of securities law: An expert survey of legislative intent in Poland.

Under the conventional view, securities law is intended to protect ordinary (retail) investors. However, some scholars from the school of Law & Economics (L&E), guided by considerations of economic efficiency, claim instead that the principal function of securities law is to reduce transaction costs and risk to professionals. This paper examines those claims empirically. Our research design blends content analysis methods with expert survey techniques to arrive at numerical assessments of determinants of Polish securities law. We find that the L&E view is supported by our data very weakly, only insofar as consumer protection is not the main driver of securities law. The veracity of this claim appears to be time-dependent. We do not find sufficient support for the main components of the L&E view, i.e., that securities law is meant to reduce transaction costs and risk to professionals. However, our data does not refute the L&E hypotheses, and, therefore, we consider them to be an open question. We phrase our conclusions cautiously because of the relatively small number of experts surveyed and of statutory sources of securities law in Poland.

The The Role of Public Order Regulations as Acts of Local Law in the Performance of Tasks in the Field of Public Security by Local Self-government in Poland

The subject of the article are the issues concerning the enactment by local self-government bodies in Poland of a special category of acts of local law, i.e. public order regulations. Public order regulations belong to the sources of universally binding law in Poland. Not only government administration bodies, but also local self-government may adopt them. By means of public order regulations, such values as: life, health, property of citizens, environment, public order, peace and public security are protected. The status of public order regulations in the Polish legal order, which are bodies of local self-government units to protect the life or health of citizens and to ensure public order, peace and security, is not the subject to clear legislation or consent among scholars in the field and in relevant case-law. Therefore, the aim of the article is to determine the legal status of local law acts in the form of public order regulations in Poland and to define their role in the performance of tasks in the field of public security by local self-government. The author refers also to relevant legal solutions applicable in other member states of the Visegrad Group. The main thesis of the article is a statement that acts of local law in the form of public order regulations are a desirable manifestation of the law-making decentralisation of the state, which is necessary for the effective performance of tasks in the field of public security by local self-government bodies.

The Assessment of Effects of Local Government Elections in Poland in 2018

The territorial government election held in 2018 had significant influence not only on the current situation in Poland but also on the functioning of the country on the international scene. This event was very important for building the future political situation in Poland and it was a kind of prediction before the European Parliament election, the Polish Parliament election and before the Presidential election which are coming in the following years. The results of this election showed not only what can happen but also how Poland may function in the international environment – the Polish cooperation with other countries in the region and Poland’s functioning in the European Union. The subject of this research is to analyse the territorial government election in Poland in 2018 and to show what kind of changes were done in the Polish electoral law. Also, there are some indications presented how the role of local government should be shaped in the near future. The paper is also discussing some issues related with the way how Poland will function in the future with the focus on international cooperation, especially the cooperation with neighbouring countries and the European Union. The method which was used in this study is the observation method and the analysis of the situation in Poland as well as the analysis of changes in the electoral law in Poland. The aim of this paper is to show what changes should take place in the near future in the role and shape of territorial governments in Poland on different levels seeking to improve the functioning of these very important bodies of the political system in Poland.

Criminal Law Aspects of Combating Fake News in Poland

This scientific paper analyzes legal criminal protection against fake news in Poland. First, it presents introductory comments on issues related to the main research area. The general characteristics of substantive criminal law in Poland are also presented. The presentation of the characteristics of formal criminal law is that procedural law or criminal procedures will also have a similar character. The next piece of the analytical puzzle is the characteristic of fake news. All these parts will give rise to the analysis of fake news and criminal law in Poland. This refers to the correlation between these designations. Following the above discussion, draft legislation on fake news in Poland is presented. The comments in this section will show how national law can regulate fake news and legal liability under this phenomenon. At the end of the paper, a short summary contains conclusions related to the analyzed matter.

Agricultural law in Poland

This article explores characteristics of Polish agricultural law as a branch of legislation, a branch in the legal system, a detailed scientific discipline, and as a subject of teaching. The development of agricultural legislation has always been accompanied by the study of agricultural law and, as a rule, its teaching. Concerning its origins, agricultural law in Poland is more related to public law regulations. At the end of the 19th century and at the beginning of the 20th century, the instruments for influencing agriculture proper to this law were developed. In the interwar period, legislation on various aspects of agriculture developed, but fell primarily within the scope of public law. It was only in the 1950s, during the period of the People’s Republic of Poland, that civil law regulation on agriculture, in addition to public law regulation, developed. The change of regime after 1989 brought about a significant reduction in agricultural legislation due to economic liberalism. A significant development occurred only after Poland’s accession to the European Union. Many issues were regulated for the first time, and national law, in connection with EU membership, returned to a special regulation of agricultural property trade. The inclusion of Polish agriculture in the mechanisms of the CAP provided an impulse to intensify research and opened up a new stage in the development of the science of agricultural law, it has moved from the study of national law, to taking up topics of a regional and global nature under the conditions of EU membership. The research went beyond traditional land issues and the organization of agricultural production. The development of agricultural legislation and agricultural law science is linked to teaching. In the last few years or so, the position of agricultural law as a subject of teaching has been strengthened.

Property law in Poland

The article discusses the basic issues of Polish property law. In particular, it briefly addresses all types of rights in rem, i. e., ownership, perpetual usufruct, usufruct, easements (servitudes), pledge, co-operative ownership right of real estate, and mortgages. Emphasis is given to the pluralism of the sources of property law in Poland, on the one hand, and the presence of the numerus clausus principle in it, on the other hand. The difference between possession as a factual state and a real right is highlighted. The objective tendency to split the single concept of ownership into various forms of this right, which are meaningfully far apart from each other is described. It is noted that there is a clear differentiation in Polish law between binding contracts and causal dispositive transactions, as well as the assumption of transactions with a double effect (both binding and dispositive), which turns the system of transfer of real estate ownership into a consensual one. At the same time, attention is drawn to the fact that the ownership right passes to the acquirer as a result of the conclusion of the contract even before the corresponding registration of the transfer of title in the public register, which, thus, has a declarative character. Attention is also given to serious legal restrictions on the acquisition of real estate by foreigners. Furthermore, the article discusses the general trends in the development of Polish property law, inter alia digitization of land and mortgage registers, adjusting the system of mortgage lending to the needs of a developed market economy, regulation of the rapidly expanding housing market, as well as increasing restrictions on real estate trading and regulation of legal titles to real estate on which transmission facilities are located.

Consumer protection under Polish private law

This article discusses the provisions of Polish private law that grants protection to consumers. Particular attention is paid to contract law, but the impact of public law regulations for the provisions of civil law is also taken into consideration. The author presents a number of legal instruments used by Polish law in order to protect consumers in their dealings with merchants and analyzes the main features of consumer protection law in Poland. The influence of European legislation on Polish regulations is also discussed. It goes without saying that Polish consumer protection legislation has to be in line with EU directives. As is known, the protection of consumers plays an important role in EU legislation. The Polish lawmaker has the duty to implement European directives properly and timely into national law. Many Polish regulations regarding consumer protection seem to be a certain kind of translation of European directives. This is the simplest but probably the riskiest method of transposing EU law because it may lead to inconsistencies with national regulations. Although sometimes it seems to be forced by a tight timeline. At the same time, the general competence of the European Union for enacting consumer protection law as a part of civil law is lacking. This is due to the fact that the six founding Member States of the European Economic Union deemed law of contracts as part of the European Treaties to be redundant, since the legal systems of the states — founders of the Union, all based on Roman Law, should already provide a mutual understanding. It is obvious that the consumer needs protection in his/her dealings with merchants as he/she is a weaker party to the transaction. This weakness stems mainly from a lack of information and poor bargaining power. The consumer will never be a real partner in negotiations with a bank, a utility company or an airline.

Umweltschutzrecht in Polen

The analyzed thirty years of development of environmental law begin with the economic transformation of the country. This article treats this topic as a point of reference. In the first part of the article, the development of environmental law in Poland was presented by distinguishing time periods. The accession to the European Union has led to a rapprochement of Polish legislation with the EU, but the period that elapsed between the change of the political system and the accession to the EU was too short to catch up with the significant backlog in environmental protection. The second part of the article presents the development of the doctrine of environmental law. Among many considerations, one of the basic ones is to find the place of environmental law in the system of Polish law. The next part - the shortest one - presents the structure of the environmental protection public authorities. In its essential core, it was shaped in the 90 s. In this period, the division of tasks in environmental protection into governmental and self-governmental took place. In the subsequent years, authorities dealing with environmental impact assessment and nature protection were separated. The last change concerned the bodies of water protection. The last issue discussed in the paper concerns current problems in environmental protection. The main challenge is the quality of air - despite fairly extensive legal instruments, the improvement is insufficient. Polish policy on climate change is still burdened with historical negligence. Basing the energy sector on coal-fired installations, even if the share of RES in energy production increases, makes the transformation difficult. This part ends waste management issue. Here, too, the landfilling - a basic principle of waste management before the transition period, has changed significantly, but again the pace of change is too slow.