The Opole Studies in Administration and Law

Fundamentals of the civil service - quality of staff

Wojciech Federczyk — 2024-07-17

The year 2022 will mark the 100th anniversary of the first Polish Civil Service Act. An uneasy history meant that for half of that period the concept did not function in practice. It was only after 1989 that the building of a modern public administration, also based on the idea of a civil service, began. The article points out that, both in the beginnings of the Polish civil service and nowadays, an important issue is the proper preparation of civil servants, especially at the higher level. In the period up to the outbreak of the Second World War, adequate solutions had not been developed. In the current period, since the beginning of the transformation, KSAP – the government School of Administration – has been operating in Poland. The main task of the School is to educate and prepare candidates for high-ranking posts in public administration, and to develop the competences of those who perform these important functions for the state as a whole.

Introducing an Analytical Lens to Investigate the Normative Dynamics Between International Law and the 2030 Sustainable Development Goals

Niamh Guiry — 2024-07-17

The conceptualisation of sustainable development has evolved from a seemingly ambiguous term to a focused suite of non-binding global objectives known as the Sustainable Development Goals (SDGs). The relationship between the SDGs and related subfields of international law could be taken as an example of a novel regime interaction, but how can one theorise and decipher the normative interactivity that may be taking place? Building upon the work of Oran R. Young concerning institutional linkages in international society, this article introduces an analytical lens through which the SDG-international law interconnections can be analysed. The following six types of ‘institutional linkages’ are used to explore and elucidate the potential normative effect of the SDGs on the elaboration, implementation, and interpretation of international law: 1) Embedded, 2) Nested, 3) Clustered, 4) Overlapping, 5) Negating, and 6) Sectional.

Amendment of the general directives of judicial sentencing (Article 53(1) of the Penal Code) as a determinant of a change in the punishment philosophy?

Agnieszka Kania-Chramęga — 2024-07-17

The paper aims to determine whether the amendment (editorial and allocative) to the general directives of judicial sentencing (Article 53(1) of the Penal Code) can be a fac-
tor directing towards a pro-repressive modelling of the penal policy. A comparative analysis of the previous and the new (i.e. in force since 1 October 2023) redaction of the general directives of judicial sentencing will serve as a starting point for answering the question whether the courts will be “obliged” to take into account the analyzed regulations “in the spirit” of repressiveness. Giving a negative answer in this respect, the paper will present an
attempt to provide the general directives of judicial sentencing with a correct interpretation that de facto abstracts from the distorted intentions of the originators. Further in the paper, attention will also be paid to whether the new wording of Article 53(1) of the Penal Code will be of significance to increasing the practical usefulness of the discussed determinants in the process of judicial sentencing.

The principle of effectiveness against the background of the principle of the right to a fair trial in the judgements of the European Court of Human Rights

Katarzyna Kułak-Krzysiak — 2024-07-17

The European Court of Human Rights (Hereinafter referred to as ECtHR) has jurisdiction over 47 countries and it is considered to be one of the most effective mechanisms
for the protection of human rights in the world. In Recommendation Rec(2004)20 of the Committee of Ministers of the Council of Europe of 15 December 2004 on judicial review of administrative acts – with reference to the right to an effective remedy provided for in Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) – the principle of effectiveness is primarily identified. The guarantees provided by the norms of national law and confirmed in the norms of international law allow citizens to appeal to international tribunals in pursuit of claims alleging violation of rights. Violation of the principle of effectiveness results in the infringement of one or more rights guaranteed by national and also international law. This paper aims to
determine what the effectiveness of proceedings is according to the norms of international law and how it is interpreted in relation to the principle of the right to a fair trial. This article aims to define what the effectiveness of proceedings is according to the norms of international law and how it is interpreted in relation to the principle of the right to a fair trial. The research goal of this article is to analyze the legal provisions regarding the effectiveness of court proceedings. The article will ask whether the judicial process can be effective? What is the efficiency of judicial proceedings? What features must the judicial proceedings meet to have the characteristics of efficiency? What activities are being undertaken by international authorities to increase the efficiency of the judicial process, and do
these activities have an impact on solving the problem? The issue of efficiency of judicial proceedings is very important. Hence the attempt to answer the questions above.
The article presents the genesis of the institution of efficiency and its evolution in recent years as well as attempts to compare it over the years.

The constitutional principles of the state’s political system as determining the foundations of electoral law

Beata Stępień-Załucka — 2024-07-17

The political systems of democratic states are based on specific assumptions contained in the highest legal acts. In Poland, the role of the highest legal act is fulfilled by the Constitution of the Republic of Poland, and these assumptions are constitutional principles. Their uniform definition has been worked out neither by the legal system nor by the doctrine (Masternak-Kubiak 2003:142 and n.)

Hence, they are sometimes defined differently in science. While for some they are "statements of the legislator of fundamental importance for the functioning of the constitutional system of the state" (Prokop 2014: 73), for others they are instruments of law from which certain norms are derived and thus influence the shaping of the principles of the political system or the administration of justice regardless of whether they are of a primary or secondary nature (Jarosz and Zawadzki 1980: 104-105). B. Banaszak emphasises that within individual constitutional norms it is possible to indicate principles of particular importance both for the state (Banaszak and Artur Preisner 1993). And what is more, the indication of a particular principle at the beginning of the constitution or in a part of it has consequences on its further provisions (Banaszak 1999: 18). W. J. Wołpiuk, in turn, writes that in a descriptive sense, principles are a certain pattern for research purposes (Wołpiuk. and Kuciński 2012: 94). A. Kallas, on the other hand, defines constitutional principles as principles fundamental to the nature of the state (Kallas 2007:121).

These principles take the form of separate (individual) provisions, included in the body of Chapter I of the constitution, but are often also constructed on the basis of a number of its provisions (e.g. the principle of parliamentary system of government). Already worth noting at this point, however, is a certain regularity that in the constitutions of the former communist states of Central and Eastern Europe, they are as a rule quite extensive (Masternak-Kubiak 2003: 142 and n.). and have a broad spectrum of impact on the entire legal system. This spectrum is particularly relevant in electoral law. This article will therefore examine this spectrum. This is because it will show the impact of constitutional principles such as the principle of a republican state, the principle of the sovereignty of the nation, the principle of representation, the principle of political pluralism and the openness of political party financing on the basic premises of electoral law in terms of its subject and subject matter. While the key thesis to be proven is that the consequence of the above-mentioned constitutional principles is, inter alia, the tenure of the supreme organs of the state (including the Sejm and the Senate as representative bodies), renewable of their tenure, the universality of elections, the equality of elections and the secrecy of voting. The basic research methods used in the study will be dogmatic-legal and theoretical-legal method.

Rights of nature as an alternative or a complement to existing environmental protection

Julián Suárez — 2024-07-17

One of the most refined expressions of rights-based approaches to environmental protection, rights of nature have come a long way since the early 2000s. They have developed into full-fledged governance structures that could either improve or potentially replace duty-based existing environmental protection within domestic jurisdictions. However, even though they advance sustainable development values, both eco-theological and local participative governance strands of rights of nature have encountered shortcomings; several of them particularly related with the scope of protection derived from their explicit content. From a legal analysis perspective, a predominantly doctrinal and comparative approach can contribute to shedding light on rights of nature legal potency. Preliminary conclusions would
show that from a legal analysis under this approach comprising four European domestic rights of nature legal frameworks, a bundle of indicators can be extracted to determine whether a certain rights of nature provision could be discarded as capable of enhancing or even substituting existing environmental protection

Investment and Environmental Impact Assestment: Impact of the Change in Environmental Approval Regulations towards Environmental Sustainability under the Job Creation Act

Rani Fadhila Syafrinaldi — 2024-07-17

The abolition of environmental permits for business activities in the Ciptaker Law has generated quite reasonable debate. Environmental permits are one method of preventing environmental damage and pollution. The abolition of this environmental permit aims to facilitate investment for investors, both domestic and foreign investors. This article will discuss the function of licensing and what are the impacts and threats to the environment of the abolition of environmental permits in the Ciptaker Law.

Legge sulla cittadinanza, la residenza e l’accesso N. CXXXI – legislative reorganisation of the sitizenship of Vatican City-State

Filip Witola — 2024-07-17

The citizenship of the Vatican City State is characterised by individual features relating above all to the manner in which it is conferred and its forfeiture. The introduction
of the legal category of Vatican nationality has its origins in the Lateran Treaty, but it was in 1929 when Pope Pius XI promulgated the law Legge sulla cittadinanza ed il soggiorno N. III concretising this institution which has lived to see its own reorganisation over time.
Based on an analysis of Vatican legislation, it is possible to conclude that the present Vatican legislation is largely updated to current needs without losing its unique characteristics. The main intention was to present whether and how Legge sulla cittadinanza, la residenza
e l’accesso N.CXXXI changes Vatican citizenship and what differences can be found in the newly created law. This process was based on a comparative method of legal acts, an analysis of the literature, as well as observation of interrelationships and dependencies. On the basis of this exercise, it was determined that the 2011 law remains within the original legal framework, but that its amendment is of a practical nature, intended to give individuals freedom of action and not to lead them to the appearance of possible negative consequences associated with the loss of citizenship.

Projekt ustawy o działalności franczyzowej

Rafał Adamus — 2024-07-17

This study is a revised draft of the Franchise Act together with the justification, previously prepared for the Institute of Justice in Warsaw, in connection with the initiated
work on regulating the issue of franchising in Poland. In 2023, a draft act on franchising activities, in some way referring to this study, was presented for legislative work. This project was published too late to be subjected to legislative procedures in the Sejm of the ninth term. Franchising, as a private law institution, has not yet been regulated in Polish law. The presented draft law may constitute a reference point for possible further
legislative work.

Kilka uwag o nauce prawa ochrony środowiska w ośrodku wrocławskim

Wojciech Radecki — 2024-07-17

The aim of this paper is to present the contribution of the Wrocław scientific
community to the development of the science of environmental law, with particular refer
ence to the academic chair led by Jan Bocia of the University of Wrocław, the Department
of Environmental Law of the Institute of Legal Sciences of the Polish Academy of Sciences
under the direction of Jerzy Sommer, and the Centre for Environmental Law under the
direction of Jerzy Jendrośka. The scientific achievements of the Wroclaw lawyers are based
on the development of Polish environmental law from its beginnings in 1971, through the
1976 amendment to the Constitution of the People’s Republic of Poland, the 1980 Act on
the protection and shaping of the environment, the 1991 Act on the protection of nature,
into the 2001 Act – Environmental Protection Law. The presentation takes into account the
laws of other European countries, emphasising the international cooperation of the Wroclaw
lawyers. The essay also pays tribute to four late representatives of the Wroclaw scientific
community: Jerzy Sommer, Jan Boć, Konrad Nowacki and Jan Jerzmański.

VIIIth International Conference of the Balkan Association of Roman Law and Roman Legal Tradition Societas pro Iure Romano Cres, 5-6 October 2023

Piotr Sadowski — 2024-07-17

Sprawozdanie