The Misdemeanour of a Failure to Indicate the Person to whom a Vehicle from the Perspective of the Right to Defence of the Accused

The provision of the Article 96 paragraph 3 of the Polish Petty Offences Code, that penalizes a failure to indicate, upon a demand by a relevant authority, the person to whom a vehicle was entrusted, has been recently analysed by the Constitutional Court of Poland in terms of its compliance with the constitutional right of the accused to defence. Although the Court stated its constitutionality, several of the judges expressed dissenting opinions. The given duty especially seems to infringe the constitutional right to passive defence, that is – to remain silent and not to incriminate oneself, as the owner (holder) of the vehicle is obligated under penalty to reveal who was driving the vehicle in a particular moment. However, when we assume that the owner (holder) must provide information that could incriminate him in anticipated criminal proceedings (or proceedings in petty offence cases) he should be entitled to the right of defence and, in particular, the privilege against self-incrimination.

Attachments:

Hotel_Rychlewska.pdf

394 kB

Specification: Roman Law, Modern Codification and Economical Rationality

Original modes of acquisition, including specification, are nowadays far from being in the centre of lawyers’ attention. Even the regulations concerning specification in modern civil codes are rather laconic, although the problem they are supposed to deal with is of a rather complex nature. Yet some quite recent cases prove that the problem of creating a new thing is actual and may cause further confusion, especially due to the constant development and emergence of new processing technologies. After determining whether specification has taken place, we should answer the more obvious question if it has resulted in acquisition of ownership of the new thing by the processor. The variety of answers offered by Roman sources and present civil codes is surprisingly wide. Comparing to rather simple Roman propositions, modern regulations seem to be too complex and problematic to apply in practice. This observation leads to a conclusion that the simplicity of Roman solutions is their main advantage and makes them worth considering as the optimal option.

Attachments:

Rudnicki.pdf

374 kB

Ronald Dworkin on the Right to Abortion

The article deals with the problem of abortion from the perspective of the ideas developed by the American legal philosopher Ronald Dworkin. The main concern is to identify strengths and weaknesses of Dworkin’s position on this matter. In the first part the paper describes the main components of his theory, especially the distinction between derivative and detached opposition to abortion and the three kinds of values which are relevant to the discussion, namely subjective, instrumental and intrinsic values. Then the very important value for Dworkin’s proposal is described – the category of sacred values. The second part of article contains critical remarks on Dworkin’s theory, particularly its inadequate presentation of the stance of the conservative side to the dispute and embracing of an incomplete conception of rights. To that end, the author makes use of Rawls’s intellectual tools to debate and contest termination of pregnancy, tools termed “reflective equilibrium” and “veil of ignorance”. The paper ends with the author’s own outline of the resolution to the abortion controversy, named ethical contextualism.

Attachments:

Pelka.pdf

323 kB

Barring of Claims Pertaining to Selected Communist Crimes in the Light of the Prohibition on Torture

The question of communist crimes, especially the failure to police and investigate them, deserves constitutional scrutiny. A survey of arguments presented hitherto in academic literature on the subject appears to point towards finding those actions incompatible with the constitution, particularly through the prism of the principles of democratic state ruled by law and the right to a fair trial. This article, by casting light on another aspect of the crimes committed by public officials of the Polish People’s Republic, tender san additional catalyst to examine the problem in question. For it is unacceptable for a state, and contrary to the Polish Constitution and international law, not to provide a basic, justice-based claim to those who suffered harm during the previous regime. This is all the more convincing since investigating and policing those crimes in that time was practically impossible, and the acts committed often took the shape of torture or inhumane, cruel and degrading treatment.

Attachments:

Szczucki.pdf

309 kB

Are we Having Fun? On the Aim of Legal Scholarship at the Time of a Constitutional Crisis

This study concerns the theoretical issues surrounding the ongoing constitutional debate in Poland, given fuel by the new Act on the Constitutional Court of the Republic of Poland, introduced shortly before the election defeat of the previous government coalition. The author focuses on three main issues: the construction of the authority; similarities and differences between the Constitutional Court and other courts; legal structures in periods of transition – in particular interim provisions and their types. Against this background, the author makes use of deductive techniques to raise and solve a rudimentary practical problem – the constitutionality of the solutions adopted by the relevant act.

Attachments:

Mikolajewicz.pdf

418 kB