The Opole Studies in Administration and Law

The substantive right to environment and the procedural environmental rights under the Aarhus Convention – Part II

Jerzy Jendrośka — 2024-11-07

The current article provides Part II of the study presenting the mutual relations between substantive and procedural environmental rights against the background of the typology of the substantive rights to the environment and challenges encountered when designing the right to a healthy environment. While Part I was devoted to presenting the development of the respective legal provisions regarding substantive rights, including both
human rights and rights of nature, the current Part II follows it by presenting the genesis and conceptual roots for the UneCe aarhus Convention as an attempt to codify environmental procedural rights and foster participatory democracy in environmental matters. In this context a more detailed account is provided regarding the process of including a reference to a substantive right to environment in the aarhus Convention and the final design of article 1 addressing this issue. This is complemented with a brief overview of the scope and structure of the Convention and its links with Principle 10 of the rio declaration as well as with some comments regarding the design of the Convention which is commonly considered to employ a “rights based approach”. The above analysis provides the basis for the remarks regarding the respective roles of the three types of legal schemes of access to justice as regulated by paragraphs 1, 2 and 3 of article 9 of the aarhus Convention in protecting environmental rights covered by the Convention and – more generally – in participatory democracy. In this respect the conclusions of the study runs counter many of the conventional views.
First of all it shows that access to justice provisions under article 9.1 cover only access to information rights under article 4, while possibility to enforce provisions of article 5
(commonly considered as also providing rights to the public) is not very clear under the Convention. Secondly, access to justice provisions under article 9.2 only in case of environmental organizations can be treated as a remedy regarding participation rights, while in case of natural persons it may be treated only as a remedy regarding their subjective rights to a “private” environment while their possibility to enforce provisions of article 6 (providing procedural participation rights to the public) is not very clear under the Convention. Thirdly, article 9.3 cannot be treated as a remedy in relation to a substantive right to
a healthy environment referred to in article 1 of the Convention, and its role as a remedy regarding other procedural rights granted by the Convention is far from being clear as the Convention provides in this case quite a wide discretion to the Parties in establishing the
criteria for standing. Finally, the results of the study underlines the need for interpreting article 9.3 in light of the various conceptual roots of the Convention i.e. not only in relation to environmental rights but also in relation to its role in assuring the effectiveness of environmental protection and fostering participatory democracy and the rule of law.

Constitutional conditions for combating epidemic diseases in Poland. Selected issues in the light of the experience of counteracting COVID-19

Łukasz Bernaciński — 2024-11-05

To counteract the spread of the COVID-19 pandemic, tools interfering with human freedoms and rights were largely used. The new situation related to the epidemic of a previously unknown virus required immediate action, but even in such circumstances public authorities must comply with constitutional provisions. Therefore, the article examines the conditions that the Constitution imposes on the authorities in the field of combating epidemic diseases. The limited framework of the study required the selection of only some issues, and the selection criterion was the controversy related to combating the COVID-19 epidemic in Poland. The final part of the article lists examples of interference with freedoms and human rights that occur during the COVID-19 epidemic, and which have a legal basis in sub-statutory rank laws. Mainly a formal-dogmatic research method was used. The conclusions took the form a kind of recommendation for the actions of public authorities in the period free from the plague.

Doctoral dissertation as a habilitation achievement

Łukasz Kierznowski — 2024-11-05

Changes in the legal regulations on academic degrees of 2018 allowed for inclusion of scientific achievements prior to earning the doctoral degree among those leading towards obtaining the postdoctoral degree of habilitation. Against this background, an interpretative problem arose related to the admissibility of recognizing a candidate’s doctoral dissertation as an achievement that counts in the procedure of granting the degree. The aim of the article
is to determine whether a doctoral dissertation may constitute a habilitation achievement indicated in the application for the habilitation degree. The work uses the dogmatic and legal method and analyzes the scientific literature regarding the prerequisites and procedures for
awarding scientific degrees. As a result of the analyses, it was determined that the doctoral dissertation may constitute a habilitation achievement.

“Disgust at work” – the evolution of the criminal law response to antisocial behawior

Olga Sitarz — 2024-10-29

The subject of the publication is to show the evolution of criminal law measures to respond to the antisocial attitude of not taking up employment. The Penal Code of 1932 used the concept of "disgust with work", for which a special protective measure was provided. Later, the term "social parasitism" appeared in the debate and an act on proceedings against people avoiding work and specific response measures was passed. Nowadays, this aspect of human behavior is taken into account when imposing a sentence under the circumstances "way of life before committing a crime". Therefore, the question arises not only about the course of evolution of criminal law in this scope, but also about the validity of de lege lata solutions.

Functioning of the Polish Company Register in the light of personal data protection

Ariel Mucha — 2024-11-05

This paper contains an analysis of the Polish rules and practice regarding the operation of the register of entrepreneurs of the National court register in the light of
the eu legislation on protection of personal data. The main purpose of business registers is to collect and process data, including information on natural persons. The Polish model
of the functioning of the commercial register is characterized by a wide access to personal
data of legal entities and sometimes other individuals. This situation, which has existed for many years, may raise significant doubts in connection with the increasing standards of personal data protection in the eu. Therefore, the basic research problem of the study is to what extent the Polish model of the business register complies with the eu standards of personal data protection. The answer to this question is based on the analysis of the eu legal framework for the operation of business registers and the identification of the basic functions that the registers perform in commerce. The eu rules on protection of personal data are then examined and compared with the characteristics of public registers – an issue of particular interest to the court of Justice in recent years. This leads to an assessment of the functioning of the Polish Business register, which confirms that the legal framework
and practice of the Polish Business register are to some extent at odds with the eu rules on protection of personal data.