SOURCES OF LAW

LAW-MAKING PROCESS
– the process of enacting, creating law ; the process of establishing legally binding norms of conduct
( norms of law ).

LAW-MAKING is an unilateral, authoritative act of public authorities
(state and self-government authorities) which are competent to establish the law
– to introduce a new binding rule of law (a new norm of law) into a legal system in force in a given country.

LAW-MAKING PROCEDURES regulate the process of:
drafting
discussing
passing
signing
amending
derogating
promulgating the law.

LEGAL TEXT – contains norms of law manifested in writing with the use of legal provisions (sentences constituting the smallest editorial/technical units of legal texts).

SOURCE OF LAW (LAW-
MAKING INSTRUMENT)
– thing which gives origin to law ; a text issued in a prescribed form and under a specific name
(e.g. act, regulation) by a competent public authority , containing new norms of law.

1. sources of universally binding law
– containing norms which must be obeyed by all persons and entities which are in the territory of a given state
2. sources of internally binding law
– containing norms which must be obeyed only by persons and entities within a given administrative structure, by the subordinates located in the given administrative structure.

1. sources of state law - binding in the whole territory of the state; established by central authorities
2. sources of local law - binding only in a part of the state’s territory; established by local self-government or territorial organs of governmental administration .

LEGAL FORCE
OF LAW-MAKING
INSTRUMENTS

Universally binding sources of law:
1.
constitution, a statute amending the Constitution
2.
international agreements ratified with prior statutory consent (also European law)
3.
laws (statutes, acts), regulations with the force of a statute
4.
ratified international agreements not requiring prior statutory authorization
5.
regulations
6.
acts of local law (binding only within the jurisdiction of issuing organ).

1. Resolutions
2. Orders.

STRUCTURE OF LEGAL TEXTS
1. Title (type, date of normative act, subject matter, issuing organ)
2. Statement of legal grounds
3. Provisions concerning the essence of the act: general, specific (substantive, organizational, procedural), penal
4. Provisions amending heretofore provisions
5. Interim/transitional provisions
6. Final provisions: derogating, provisions on entry into force.

Technical units of legal texts :
1. Article (art.)
2. Paragraph (§)
3. Point/item (e.g. „1”)
4. Letter (e.g. „a”).

The sources of universally binding law are: the Constitution, statutes, ratified international agreements and regulations art. 87 (1) of the Constitution of the
Republic of Poland of 2 April 1997
(Official Journal Dziennik Ustaw
1997, No. 78, item 483, amended).

Enactments of local law are a source of universally binding law in the territory of the issuing organ - art. 87 (2) of the
Constitution.

THE CONSTITUTION – source of law containing norms according to which a country
(state) is ruled; the source of law which has the highest importance (highest rank) and greatest legal force .

Enacted by: the Parliament or a by a specially selected representative body ( constituent assembly ); with special procedures for enacting and amending.

Constitution regulates:
• the foundations, construction of the state
• the sovereign authority
• the most important organs of the state , their competences and mutual relations (like separation of power between legislative, executive and judicial authorities)
• fundamental freedoms, rights and duties of individuals and citizens

The Constitution is the supreme law of the Republic of Poland art. 8 (1) of the Constitution of the Republic of Poland.

INTERNATIONAL AGREEMENT
– a source of law being a result of joint will of at least two states (or other subjects of international law), containing general and abstractive legal norms set by the agreeing parties, regulating their rights and obligations .

Under Polish law, ratified international agreements are sources of universally binding law – art. 87 (1) of the Constitution.

TO RATIFY
– to approve officially something which has already been agreed
(in Poland the President ratifies international agreements).

1. agreements ratified following prior statutory consent
2. agreements the ratification of which does not require prior statutory consent .

Prior consent granted by statute is required if an agreement concerns :
1.
peace, alliances, political or military treaties
2.
freedoms, rights or obligations of citizens, as specified in the Constitution
3.
the Republic of Poland's membership in an international organization
4.
considerable financial obligations imposed on the State
5.
matters regulated by statute or those in respect of which the Constitution requires the form of a statute.

After promulgation in the Official
Journal of the Republic of Poland
( Dziennik Ustaw ), a ratified international agreement constitutes a part of the domestic legal system and is applied directly , unless its application depends on the enactment of a statute – art. 91 (1) of the Constitution.

An international agreement ratified upon prior consent granted by statute has precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes – art. 91(2) of the Constitution.

International agreements ratified following prior statutory consent have precedence over statutes.
Other ratified international agreements
(not requiring prior statutory consent) have legal force generally weaker than statutes (this is majority opinion) or equal to statutes.

EUROPEAN LAW
According to art. 91 (3) of the
Constitution, if an agreement , ratified by the
Republic of Poland, establishing an international organization so provides, the laws established by it are applied directly and have precedence in the event of a conflict of laws.

European law may find direct application and have precedence over Polish domestic statutes, regulations.

STATUTES (ACTS, LAWS)

STATUTE – established written law, act of
Parliament (legislative body).

Statutes may regulate all matters (except for those requiring constitutional form) and no special legal grounds must be given for enacting them.

STATUTORY MATTERS - a category of matters the regulation of which requires the form of a statute , e.g. the imposition of duties on individuals and their organizations (including the imposition of taxes and other public imposts), the limitation of their freedoms and rights, the main principles of the state’s economic and financial system .

Statutes are enacted by the Parliament , the legislative power
– art. 95 (1) of the Constitution, within a prescribed procedure.

STAGES OF LEGISLATIVE PROCESS
1. Drafting of a BILL
2. Introduction of the bill to the Sejm (legislative initiative)
3. Consideration by the Sejm in the course of three readings
4. Passing by the Sejm by a simple majority vote
5. Introduction of the bill to the Senate
6. Passing by the Senate by a simple majority vote
7. Submission to the President for signature
8. Promulgation.

REGULATIONS WITH THE
FORCE OF A STATUTE
–
They may be issued by the
President only in exceptional situations (under martial law) , their subjec t is clearly limited , they require subsequent approval by the Parliament .

According to art. 234 (1) of the Polish
Constitution, whenever, during a period of martial law, the Sejm is unable to assemble for a sitting, the President of the Republic shall, on application of the
Council of Ministers, and within the scope and limits specified in Article 228, paragraphs 3-5, issue regulations having the force of statute .

REGULATIONS

REGULATION – a normative act issued for the purposes of implementation of a statute .

Regulations may be issued by organs of executive power specified in the Constitution only on the basis of a specific statutory authorization , and for the purpose of implementation of a statute
– art. 92 (1) of the Constitution.

Organs entitled to issue regulations:
• the President
• the Council of Ministers
• the Prime Minister
• ministers in charge of departments of governmental administration
• presidents of statutorily regulated committees, nominated as members of the
Council of Ministers
• the National Council for Radio
Broadcasting and Television .

The statutory authorization to issue a regulation must specify:
• the organ empowered to issue a regulation (which may not subdelegate this competence to another organ )
• the scope of matters to be regulated
• guidelines concerning the provisions of such an act.

LOCAL LEGAL
ENACTMENTS
(ACTS OF LOCAL LAW)

Local legal enactments may be issued by organs of local selfgovernment and territorial organs of governmental administration only on the basis of and within limits of a statutory authorization
– art. 94 of the Constitution.

Local enactments are applicable only in the territorially defined areas of operation of issuing organ.

INTERNALLY BINDING
SOURCES OF LAW :
RESOLUTIONS
ORDERS

Article 93.1 of the Constitution -
RESOLUTIONS of the Council of
Ministers and ORDERS of the Prime
Minister and ministers shall be of an internal character and shall bind only those organizational units subordinate to the organ which issues such act.

Resolutions, orders may not serve as the basis for decisions taken in respect of citizens, legal persons and other subjects.

PROMULGATION
( OFFICIAL PUBLICATION )
OF SOURCES OF LAW
The condition precedent for the coming into force of statutes, regulations and enactments of local law is the promulgation thereof
- art. 88 (1) of the Constitution.

Polish Official Journal
Dziennik Ustaw:
- Constitution,
- international agreements ratified following prior statutory consent
- statutes .

Official Journal Monitor Polski
Official Journals of particular ministers

AUTHENTIC TEXT
– a legal text contained in an official journal, considered original, reliable, final and binding.
A MENDMENT
– a partial change of provisions of a legal texts
CONSOLIDATED TEXT
– a version of a legal text taking into account the amendments of the original text.

VALIDITY AND
INTERPRETATION OF LAW
SUBJECTS AND OBJECTS OF
NORMS OF LAW
LEGAL REALITY
APPLICATION OF THE LAW

Formally valid norm:
1.
established by a competent authority in an appropriate form and following a correct procedure
2.
promulgated in appropriate official journal and has came into force
3.
it has not been formally derogated
4.
it is not contrary to any other formally valid norm of law or has not been derogated under collision rules.

Collision rules
1. lex posteriori derogat legi priori
– the newer norm derogates the older norm
2. lex specialis derogat legi generali
– the detailed/specific norm derogates the general norm
3. lex inferior non derogat legi superiori
– the norm lower in hierarchy does not derogate the norm higher in hierarchy.

Interpretation (construction) of law
– the process of finding the right meaning of legal text and the results of this process ; the process of building (reconstructing) understandable norms of law on the basis of legal texts (provisions contained in legal texts).

• abstract interpretation
– performed without reference to a specific, individual case,
• individual interpretation
– performed with reference to a specific, individual case

• authentic interpretation
– performed by the legislator
• legal (formal) interpretation
– performed by an organ authorized to interpret the law
• operational interpretation
– performed by the judicial or administrative organ applying the law
• doctrinal interpretation
– performed by the academics engaged in legal science
• unofficial interpretation
– performed by lawyers for the use of their clients.

Stages of interpretation
1. identifying all elements of a given legal norm in legislative text or texts
2. reconstructing ( building ) a complete legal norm (consisting of a hypothesis, disposition and sanction where applicable) on the basis of provisions
3. finding the correct meaning of the norm with the use of rules of interpretation

• linguistic (grammatical) interpretation : legal definitions, binding formal interpretation, working out the meaning on the basis of linguistic, grammar and logic knowledge (also dictionaries)
• systematic interpretation
– checking the consistency of norm in a given meaning with other norms (of a given legislative text, the whole branch of law, the principles of law), the adoption of the meaning which best suits (complies) with other norms of law
• functional interpretation - which presupposes adoption of the meaning which best suits (fulfils) the objectives (goals, purposes) of the regulation.

Subject of law
– the addressee of a legal norm, a person or entity to which a legally binding directive (norm) of conduct is directed; carrier of legal rights and obligations.

Subjects of law
• natural persons
– human beings, generally since the moment of birth till death
• legal (juridical) persons (entities)
– organizational units granted the status of a legal person
• other organizational units , not granted the status of legal person, but empowered to carry some rights or obligations

Objects of norms of law

Legal duty
– a kind of behavior
(conduct) which is described in the disposition of the norm and is demanded by the legislator from the addressee of a legal norm in circumstances described in the hypothesis of the norm.

Legal right – legal entitlement
(possibility, freedom) to do something or to refrain from doing something (to obtain something from somebody, to behave in a certain way, to refrain from doing something).

Legal responsibility – negative legal consequences of conduct not complying with the norms of law: legal effects (e.g. obligation to compensate for a done damage) legal sanctions : penal/criminal, enforcement, invalidity

Legal reality

Legal facts – events or conduct regulated by the law, resulting in creation, change or expiry of legal relations (influencing specific legal rights or obligations of identified subjects of law).

Legal events
– events causing creation, change or expiry of specific legal rights or obligations irrespective of the will of subjects of law.

Conducts (acts) - actions and omissions taken by the subjects of law and resulting in creation, change or expiry of legal relations, causing legal consequences.

Legal relation
– a relation recognized by the law, existing between at least two parties, as a result of a legal fact, and consisting of mutual obligations or rights.

Application of the law
– an action of the public authority (court, organ of public administration) which involves considering specific, individual cases and deciding upon legal consequences of proven facts, on the basis of legal norms, on behalf of the state or unit of selfgovernment.

Stages of application of the law :
1.
determination of the factual state of the specific case ( collection and presentation of evidence ); material truth principle of evidence proceedings
2.
identification of the legal basis of the decision
3.
normative qualification of the determined factual state ( subsuming of factual state under a given legal norm )
4.
issuance of decision (an act of application of law) – legally binding determination of legal consequences of determined facts; formulating a specific and individual legal norm .

Evidence – information which gives a reason for believing something or proves something; source of information about the facts of a case , which is used to prove the facts of the case.

• personal evidence
– originating from people (e.g. a witness testimony, an expert opinion)
• material evidence
– originating from things (e.g. a document)

• direct evidence – first-hand evidence (e.g. an eyewitness, an original document)
• indirect evidence
– second-hand/ secondary evidence (e.g. a hearsay witness; a copy of a document).

Circumstantial evidence
– evidence which suggests that something must have happened, but does not give firm proof of it
(applied only if other evidence is unavailable).

principle of free evaluation of evidence
(interconnections between evidence, correct reasoning, personal knowledge and life experience)

Legal presumption – thing which is assumed to be correct on a basis of other facts in accordance with a specific legal norm, which expressly demands recognizing a given fact as proven on the basis of other facts.

Decision (an act of application of law) usually contains a written justification ( factual and legal grounds).

Implementation of a decision
– putting a decision into effect , carrying out of a decision
• voluntary
• compulsory

Differences in the application of law by courts and public administration organs
Court
• impartial organ deciding
• contradictory
• individual and collective interest
• independent
Administrative
• interested in outcome
• subordination relation
• policies of the state
• subordinated

CONSTITUTIONAL LAW

Constitutional law - part of law regulating the foundations of social political and economic structure (order) of state

• construction of state (placement of sovereignty, methods of execution of sovereignty/power, organs of the state and relations between them)
• catalogue of fundamental rights, freedoms of individuals and citizens, as well as basic obligations of individuals, citizens and the state
• basic rules on relations between the state and individuals or their organizations.

The Constitution of the
Republic of Poland of 2 April 1997
(Official Journal Dziennik Ustaw
1997, No. 78, item 483, amended).

2 April 1997 enacted by National Assembly,
25 May 1997 approved by means a nationwide constitutional referendum

Structure of the Constitution
:
• Introduction
• Chapter I – “The Republic”
• Chapter II - “Freedoms, rights and duties of individuals (human beings) and citizens
• Chapter III – “Sources of law”
• Chapter IV – “The Sejm and the Senate”
• Chapter V – “The President of the Republic”
• Chapter VI – “The Council of Ministers”
• Chapter VII – “Local self-government”
• Chapter VIII – “Courts and tribunals”
• Chapter IX – “Organs of the State control and protection of law”
• Chapter X – “Public finances”
• Chapter XI – “Extraordinary states”
• Chapter XII – “Amendment of the Constitution”
• Chapter XIII – “Transitional and concluding provisions”.

principles of Polish constitutional law principles of the whole Polish legal system

Catalogue of constitutional principles :
1.
principle of sovereignty of the Nation
2.
principle of direct democracy and representativeness
3.
principle of political pluralism
4.
principle of division of powers and their balance
(including independence of the judiciary)
5.
principle of decentralization of government and principle of local self-government
6.
principle of rule of law
7.
principle of protection of human and citizens’ freedoms and rights
8.
principle of social justice
9.
principle of social market economy.

Principles of regime / general constitutional principles

Art. 1
The Republic of Poland is the common good of all its citizens.
The State is a civic community (common thing), not a mechanism ruling the citizens.

Art. 5
The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development.

Principle of democratic state of law
Art. 2
The Republic of Poland is a democratic state ruled by law and implementing the principles of social justice.

A state of law is a state in which:
• the framework of activities of individuals and their organizations is prescribed by the law
• public authorities operate on the basis of law and within the limits of law
• the powers of the state are divided between the legislative, the executive and the judiciary power, which are in balance
• the law safeguards the exercise of human and civic freedoms and rights
• political pluralism applies.

The Constitutional Tribunal on democratic state of law:
1.
principle of civic trust in the state and principle of certainty
– enactment, application and enforcement of law ensuring that individuals will not be surprisingly exposed to legal consequences which were unpredictable on the moment of citizens’ decision making and action taking (publication of law, vacatio legis, lex retro non agit
– non-retroactivity of law, nullum crimen sine lege – no crime without a statute)
2.
principle of protection of acquired rights
– citizens cannot be deprived of already acquired rights
3.
principle of proportionality
– means applied by public authorities to attain a specific objective should be proportional to the objective; only necessary intervention into the rights of individuals is admissible.

Principle of: sovereignty of the Nation, direct and indirect
(representative) democracy

Art. 4
1. Supreme power in the
Republic of Poland is vested in the Nation.
2. The Nation shall exercise such power directly or through their representatives.

Principle of political pluralism

Art. 11
1. The Republic of Poland shall ensure freedom for the creation and functioning of political parties. Political parties shall be founded on the principle of voluntariness and upon the equality of
Polish citizens, and their purpose shall be to influence the formulation of the policy of the State by democratic means.
2. The financing of political parties shall be open to public inspection.

existence of multiple political parties , differing in their views and having influence on the decision-making process

Principle of separation of powers

Art. 10
1. The system of government of the
Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.

The legislative power - The Parliament
(elected for 4 years term):
1. The Sejm – the lower chamber, but dominant (final decision on adoption of a statute belongs to Sejm), 460 Deputies elected in general, equal, direct, secret and proportional elections
2. The Senate – the higher chamber; 100
Senators; elected in general, direct and secret elections.

The executive power:
The President
The Council of Ministers.

The President
- elected for 5 years term in general, direct, equal and secret elections
- performs the function of arbiter
- legislative initiative and veto (which may be overruled), submission of statutes to Constitutional
Tribunal for constitutional review
- representing the State (external relations, but foreign policy is government’s task), appointment and dismissal of representatives of Poland to other states, ratification of international agreements,
- highest superior of armed forces
- granting citizenship, the academic title of professor, appointing judges.

The Council of Ministers (Prime Minister + ministers):
- PM desiganted by the President builds the Council, which is then appoined by the President; the Council and its programme are approved by the Sejm,
- conducting internal and foreign policy, pressumption of the competence of the Council
- management of governmental administration, in particular: execution of statutes, issuance of regulations, co-ordination and control of activities of subordinated organs of governmental administration, protection of the interest of the State Treasury, securing the internal and external safety of the state.

parliamentary system of government presidential system of government

Principle of decentralization of government and principle of local selfgovernment

Art. 15 (1)
The territorial system of the
Republic of Poland shall ensure the decentralization of public power.

Art. 16
1. The inhabitants of the units of basic territorial division shall form a selfgoverning community in accordance with law.
2. Local government shall participate in the exercise of public power. The substantial part of public duties which local government is empowered to discharge by statute shall be done in its own name and under its own responsibility.

Principle of legalism

Art. 7
The organs of public authority shall function on the basis of, and within the limits of the law.

Public authorities – only what is expressly permitted
Individuals – everything what is not expressly prohibited

Principle of protection of human and citizens’ freedoms and rights

Art. 5
The Republic of Poland shall (...) ensure the freedoms and rights of persons and citizens, the security of the citizens (...).

Art. 30
The inherent and inalienable
(indispensable) dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.

Art. 31
1. Freedom of the person shall receive legal protection.
2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.
3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

1. general: equality before the law and public authorities; no discrimination; rights of national and ethnic minorities
2. personal: to live; no scientific experiments without voluntary consent; no tortures, cruel, degrading, inhuman treatment or punishment; personal inviolability, security and freedom; nullum crimen sine lege ; right to defence; presumption of innocence; right to fair trial, public hearing; protection of privacy, family life, honour, good name; freedom of speech, conscience and religion

3. political: to assemble; to associate; to participate in referendum; to elect President, Deputies,
Senators, representatives in local selfgovernment; to information about activities of public administration; to file petitions and complaints
4. economic and social: to choose and perform chosen profession; to education; to ownerhip; to social insurance; to health protection.

Art. 32
All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. No one shall be discriminated against in political, social or economic life for any reason whatsoever.

Art. 33
Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland. Men and women shall have equal rights, in particular, regarding education, employment and promotion, and shall have the right to equal compensation for work of similar value, to social security, to hold offices, and to receive public honours and decorations.

Art. 42 (1)
Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible.

Art. 45 (1)
Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.

Art. 42 (3)
Everyone shall be presumed innocent of a charge until his guilt is determined by the final court judgment

Principle of social justice and principle of social market economy

Art. 2
The Republic of Poland is a democratic state ruled by law and implementing the principles of social justice.

Art. 20
A social market economy , based on the freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland.

3 pillars of social market economy
• Freedom of economic activity
• Private ownership
• Solidarity, dialogue and cooperation between social partners (public authorities, employers, employees)

Means of protection (defence) of constitutional freedoms and rights

1. compensation for damages caused by unlawful action of an organ of public administration – art. 77
2. right to challenge first instance decisions and judgments – art. 78
3. constitutional complaint – art. 79
4. petition to the Ombudsman – art.
80.

Art. 77
1. Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.
2. Statutes shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights.

Art. 78
Each party shall have the right to appeal against judgments and decisions made at first stage.
Exceptions to this principle and the procedure for such appeals shall be specified by statute .

Art. 80
In accordance with principles specified by statute, everyone shall have the right to apply to the Commissioner for Citizens'
Rights (Ombudsman) for assistance in protection of his freedoms or rights infringed by organs of public authority.

Art. 79 (1)
In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional
Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.

ADMINISTRATIVE LAW

Administrative law – part (branch) of law regulating the organization, competences and functioning of public administration and relations between public administration and individuals and their organizations; it also regulates the administrative legal status
(administrative rights and obligations) of individuals and their organizations.

Administrative matters e.g.
citizenship, registration obligations, issuance of identification documents, public gatherings, road rules.

The main purpose of administrative law is to protect the common good, but also to protect individuals from arbitrary actions of public authorities.

We distinguish between:
1. general administrative law
2. special administrative law
(building law, economic law, education law, health protection law, environmental law).

1. structural (political) administrative law – regulating the organization, structure, competence and operating rules of public administration
2. procedural administrative law – regulating the procedures for considering and deciding individual cases (proceedings before public administration authorities, which result in issuance of administrative decisions)
3. substantive administrative law – regulating the scope of public administration’s activities, rights and obligations of administrative organs and individuals.

Public administration – a set of organs permanently and systematically carrying out activities aimed at meeting collective and individual needs of society and individuals, aimed at ensuring common welfare, mainly by carrying out the law.

Characteristics of public administration
• acting on behalf of the state or another public authority
• possibility of using coercion
• acting firstly in public interest
• acting on the basis of and within the limits of the law
• operating on a continues and stable basis, despite personal changes
• employing mainly professional personnel
• undertaking non-commercial activities, not aimed at gaining profits
• acting on own initiative or on request
• political nature – realizing the political goals set by the executive power
• monopolistic character – the exclusive competence to act.

Central administration should perform only those tasks that cannot be done better at a lower level (subsidiarity principle).

Public administration:
1. central (state administration)
2. territorial (governmental and self-governmental administration).

Organ of public administration – a person or a group of persons situated in the organizational structure of the state or self-government, appointed to realize the norms of administrative law in the form of, with the consequences and within the competences regulated by this law.

Organs of government administration:
1. central
Council of Ministers
Prime Minister
Ministers
Other central organs
2. territorial
Voivod
Other territorial organs

Organs of territorial self-government:
1. at voivodship/region level
(województwo) regional assembly marshal
2. at district level (powiat) district council starost
3. at commune level (gmina) communal council mayor/president.

Basic principles of local self-government
• local self-government performs public tasks not assigned to other public authorities
• commune is the basic unit of local authority, which performs all tasks not assigned to other units of selfgovernment
• inhabitants of a given commune automatically and obligatorily are members of commune
• units of self-government have legal personality
• legality of acts of local government is reviewed by the
Prime Minister, voivod and regional audit chambers
• units of local self-government perform their duties by their constitutive organs (voivodship assembly, district and communal council) and executive organs (marshal, starost, mayor).

3 levels (tiers) of local self-government:
1. commune,
2. district,
3. voivoship, which are separate and independent from each other, i.e. commune is not subordinate to district, their competences are separate.

Legal form of administration’s activities – legally determined type of action taken by public administration to settle a given matter; legally described measure taken by the public administration to implement / fulfill its tasks.

• normative act
• administrative act
• administrative settlement
• administrative promise
• material-technical act
• organizational activity.

Normative act – issuance of a source of law (a regulation, a resolution, an order), establishing new general, abstractive norm of law.

Administrative act (decision, ruling) – the main, most typical form of administration’s activities; any individual measure or decision made in the exercise of public authority (authoritative act), directly affecting the rights or obligations of its given/specific (not general) addresse, being in a specified factual situation, the execution of which may be by means of public coercion .

Administrative settlement – approving a settlement made between parties to administrative proceedings in individual cases; such a settlement replaces an administrative decision.

Administrative promise – a declaration of will of an organ of public administration, by which this organ obliges itself to behave in a particular way in the future, for example to decide an administrative case in a certain way (to issue a building permit).

Material-technical activities – factual activities of public administration, e.g. registration of vehicles, issuance of identity cards, running registries and administrative files.

Administrative proceedings – proceedings before organs of public administration aimed at considering and deciding individual administrative cases, resulting in issuance of administrative acts (like issuance of construction/building permit, granting citizenship, issuance of a visa, granting social welfare benefits, granting permit for sale of alcohol, change of name or family name).

General principles of administrative procedure
• legality (acting on the basis of and within the limits of the law)
• substantive/objective/material truth (organ of public administration is obliged to gather and examine all available evidence to discover the real state of matters)
• taking public interest and legitimate interests of individuals into account ex officio (within discretionary competence, when the law provides at least two possible solutions)
• reinforcing citizens’ confidence in public administration organs
(kindness, high-quality service, issuance of similar decisions in similar cases)
• providing factual and legal information to parties and other participants of proceedings (to protect them against damage resulting from ignorance of law)
• parties’ active participation in proceedings (right to participate in all phases of proceedings, e.g. in witness examination - with the right to ask questions, in inspections; the right to be informed about these activities; right to analyze and comment on all evidence; access to the files of proceedings, with the right to copy)

• convincing (explaining the justification of the decision, in order to convince the addressee to perform it voluntarily; giving correct and comprehensive reasons for the decicion)
• quickness and simplicity of proceedings (organ of public administration is obliged to act without unnecessary delay; generally time limit for settling a case is 1 month, for complicated cases 2 months; appeal procedures – 1 month)
• settlement of disputes by agreement (organ should aim at settling the dispute within mutual agreement of the parties and only when it doesn’t work issue an authoritative decision)
• written form of proceedings (final acts are issued and delivered in writing, all actions relevant to the decision making or course of proceedings are documented in writing – by minutes (basic form) or notes (subsidiary only)
• two instances
• stability of final administrative decision (decision as a rule may not be modified, repealed or annulled; modification, repeal or annulment are admissible only under circumstances and procedures prescribed by the law (extraordinary measures)
• judicial review of the legality of administrative decisions

Administrative proceedings are held at two instances. Decisions issued at first instance may be challenged by an appeal, which initiates proceedings of second instance, within which a case is considered and decided by the organ of second instance (higher in hierarchy). The merits of the case are considered and decided twice (by two different organs).

Final administrative decision may be challenged by a complaint filed at regional
(voivodship) administrative court, which reviews the legality of administrative decisions.
Judgment of the voivodship court may be challenged by a complaint to Supreme
Administrative Court.

CRIMINAL LAW

Criminal (penal) law – branch of law which defines acts considered crimes, specifies punishment and regulates the investigation of crimes and prosecution of criminals.

Substantive criminal law – defines and describes in detail acts which are considered crimes, punishment for committing crimes and principles of criminal liability.

Procedural criminal law – regulates measures taken to investigate, prosecute, convict and sentence individuals who violate substantive criminal law.

Executive criminal law – regulates the execution
(enforcement) procedures in criminal matters as well as the rights and duties of convicted persons.

Main principles of criminal law:
1. Nullum crimen, nulla poena sine lege
– No crime, no penalty (punishment) without a statute (substantive principle)
2. Nullum crimen sine culpa
– No crime without guilt (substantive principle)
3. Presumption of innocence (procedural principle)
4. Right to defense (procedural principle)
5. Right to fair trial, public hearing (procedural principle).

Nullum crimen, nulla poena sine lege
Art. 42 (1) of the Constitution- Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible.

-crimes, punishments and principles of criminal liability must be defined by the law (statutes) in detail, precisely
- criminal liability only for committing acts which were prohibited by the law in force (valid and binding) at the moment of committing the act

Offence = crime ( przestępstwo
) – act which is against the law and which is punishable by law; an illegal act which may result in prosecution and punishment by the state if the accused is convicted; an act committed by a man, prohibited by the valid and binding law under a threat of penalty, realizing all statutory features of a given crime type, culpable and of social harm greater than negligible.

an act (a legal fact depending on human will; an externally manifested action or omission) committed by a man (by a natural person; to be held criminally liable the perpetrator must be at least 17 years old (sometimes 15) at the moment of the act) act prohibited by the valid and binding law under a threat of penalty – act prohibited by a statute which was in force at the moment of committing the act, and prescribed a certain punishment for committing the prohibited act culpable act – committed under guilt, committed in circumstances when the perpetrator could have behaved differently, could refrain from violating the law act of social harm greater than negligible – if the act’s social harm is negligible
(not significant) the act odes not constitute an offence

Petty offence ( wykroczenie ) – illegal act which is punishable by the law, but is of limited social harm (still of social harm greater than negligible); regulated in Poland separately – not by the Penal Code, but by the Petty
Offences Act; with separate procedural law – the Procedural
Code in Petty Offences.

Examples of crimes (offences)

crimes against the person
• homicide – killing of another person either intentionally or accidentally, includes murder and manslaughter ( zabójstwo
) murder – killing another person intentionally manslaughter – involuntary killing another person
• assault - threat of violence; acting in such a way that victim is afraid of being attacked and hurt ( napaść
)
• battery – using actual violence, force against a person, attacking and hurting a victim, beating ( pobicie )
• wounding – injuring or hurting someone in such a way that his skin is cut ( zranienie )
• grievous bodily harm – causing serious injury to someone ( ciężkie uszkodzenie ciała
)
• abduction – taking someone away by force ( porwanie )

crimes against property:
• theft – stealing, taking somebody’s property ( kradzież )
• robbery – stealing something from someone with using force or threatening to use force ( rabunek )
• burglary – entering a building (by force) and stealing things
( włamanie, kradzież z włamaniem )
• obtaining property or services or pecuniary advantage by deception – making a wrong statement to someone in order to trick him into paying money or in order to make him do something which will harm him ( oszustwo )
• blackmail – getting money from someone by threatening to make public facts about him which he does not want revealed or by threatening violence ( szantaż
)
• handling stolen goods – dealing with goods which you know to have been stolen; receiving or selling them ( paserstwo )
• forgery – making an illegal copy of a document, recording or banknote to use it as a real one ( fałszerstwo, podrabianie )

sexual offences:
• rape – forcing a person to have sexual intercourse without their consent ( gwałt
)
• bigamy – going through a ceremony of marriage to someone when you are still married to someone else; being married to two people at the same time ( bigamia )

political offences:
• treason – betraying one’s country, usually by helping the enemy in wartime ( zdrada )
• terrorism – violent action (assassination, bombing, hostage taking) committed for political reasons ( terroryzm )
• breach of the official secrecy ( złamanie tajemnicy państwowej
)

offences against justice:
• assisting an offender ( pomoc przestępcy )
• conspiracy – agreeing with another person or persons to commit a crime ( spiskowanie )
• perjury – telling lies when you have made an oath to say what is true ( krzywoprzysięstwo, fałszywe zenanie
)
• perverting the course of justice – trying to influence the outcome of the trial by tampering with the evidence, bribing the jurors ( bezprawne wpływanie na wymiar sprawiedliwości )
• contempt of court – showing lack of respect to a court, being rude to a court, as by bad behavior in the court, or by refusing to carry our a court order ( obraza sądu
)

offences against public order
• obstruction of the police – doing something which prevents a policeman carrying out his duty
( utrudnianie pracy policji )
• unlawful assembly – when a number of people come together to commit a breach of the peace or any other crime ( zbiegowisko przestępne
)
• obscenity – committing an act which is likely to deprave or corrupt someone who sees it or reads it or which offends public morals and decency
( nieprzyzwoitość, obsceniczne zachowanie
)
• possessing weapons ( posiadanie broni )
• misuse or possession of drugs ( używanie lub posiadanie narkotyków
)

road traffic offences
• drunken driving ( jazda w stanie nietrzeźwości
)
• careless or reckless driving causing accident or accident threat ( nieostrożna, brawurowa jazda grożąca, powodująca wypadek )

Circumstances excluding the illegality
(counter-types):
• self-defense to the necessary extent - acting to repel a direct, real and unlawful attack on a legally protected good, with using necessary measures adequate for repelling the attack
• state of (higher) necessity – sacrificing a legally protected good in order to advert an immediate danger threatening to another legally protected good, which is of higher rank than the sacrificed good; admissible if necessary, if the threatened good cannot be protected by other means
• sport risk
• consent of the injured party
• permissible (admissible) experimental risk

Punishments (and punitive measures)
• life imprisonment
• 25 years imprisonment
• imprisonment (from 1 month to 15 years)
• restriction of liberty
• fines
• deprivation of public rights
• prohibition of performing certain activities (running a business, performing a profession, taking up and holding public posts and other posts, e.g. management positions)
• driving prohibition
• forfeiture of property
• obligation to compensate the damage
• publication of the sentence.

Security measures – applied to protect public order and security when guilt may not be assigned to a person who committed an unlawful act, due to the person’s insanity:
- placement in a closed psychiatric institution (mentally ill)
- placement in a closed detoxification institution (addicts).

Nullum crimen sine culpa art. 1 (3) of the Polish Penal
Code - The person committing a prohibited act does not commit a crime (offence) if no guilt at the moment of committing thereof can be assigned to him.

Only a culpable act, an act committed by a person to whom guilt may be assigned constitutes a crime subject to punishment.

Guilt
1.
intentional - when the perpetrator intended to commit the illegal act, i.e wanted to commit it (direct intention) or expected (foreseen) the possibility of committing the act and accepted this possibility (potential intention)
2.
unintentional – when the perpetrator had no intention of committing the illegal act, but commited it as a result of not observing caution required in given circumstances due to recklessness (conscious lack of caution; being aware of the possibility of committing an unlawful act and simultaneously groundlessly hoping for avoiding it) or negligence (lack of caution resulting from ignorance, from not foreseeing the possibility of unlawful act, when this possibility should or could be foreseen).

Exculpatory circumstances (excluding guilt)
• insanity – not understanding the meaning of own acts or not being able to control own actions due to the state of mind (mental deficiency, mental illness or other disorder of mental function); committing an unlawful act in the state of insobriety or intoxication does not exclude guilt
• mistake – inconsistency between the actual situation and the person’s opinion regarding the situation (mistake relating to circumstances constituting a definitional element of a prohibited act, mistake relating to a circumstance excluding illegality, mistake relating to the legal assessment of an act)
• military order.

Presumption of innocence
Art. 42 (3) of the Constitution -
Everyone shall be presumed innocent of a charge until his guilt is determined by the final court judgment.

The right to defense
Art. 42 (2) of the Constitution-
Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself - in accordance with principles specified by statute - of counsel appointed by the court.

The right to fair trial, public hearing
Art. 45 (1) of the Constitution -
Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.

Criminal proceedings – a set of legally regulated activities aimed at identifying the crime and its perpetrator, prosecuting him, convicting and imposing punishment.

Stages of criminal proceedings:
1.
preparatory proceedings – run by the Police or public prosecutor; involve gathering evidence, investigating the facts of the case, finding the perpetrator; end with an indictment filed at the criminal court of first instance or by a cancellation of proceedings
2.
court trial – hearing of the case by the court of first instance and in case of filing an appeal – also by the courts of second instance; initiated by an indictment; ends with the pronouncement of the judgment; in case of filing an appeal, the case is reconsidered and re-decided by the appellate court which may uphold, repeal or amend the first instance judgment
3.
enforcement proceedings – carrying out of the judgment.

Principles of criminal proceedings:
1.
substantive (objective) truth – the court’s duty is to seek and find the truth, the actual course of events
2.
free evaluation of evidence – court evaluates the evidence freely, taking into account the rules of logic, knowledge and life experience, giving grounds for the decision
3.
objectivism – no bias allowed, court should be free of any particular attitude towards the parties; impartiality; obligation to examine and take into account all circumstances, both in favor and to the disadvantage of the defendant
4.
directness – court should rely on evidence that is produced in the criminal trial, personally asses all evidence, rely on first hand evidence
5.
accusatorial process – court is not allowed to start a trial on its own, an indictment is necessary – a formal written accusation brought against a person by a prosecutor

6.
contradictoriness – parties of a criminal trial (the defendant and the prosecutor) are equal and court is impartial; each party produces evidence before the court in its own legal interest, questions the evidence of other party
7.
equality of parties
8.
legalism (mandatory prosecution) – where there is an offence, there must be a prosecution, the prosecutor must indict
9.
presumption of innocence
10. in dubio pro reo
– doubts which cannot be eliminated should not be resolved to the detriment of the defendant
11. onus probandi (burden of proof) – the prosecution is obliged to prove the defendants guilt; defendant may not be found guilty unless there is no reasonable doubt that he has committed the crime

12. right to defense – defendant is allowed to plead innocent and to use every legal measure to free himself from accustation; he may defend without the assistance of a professional lawyer (attorney-at-law) or with such an assistance
13. public trial (open for public and media) – every courtroom should be open for the parties and the audience to access (with some exceptions, e.g. sexual offences, protection of classified information)
14. oral form with some acts of the trail being in writing
(indictment, verdict have written form, but are read during the trial; trial records/minutes are in writing)
15. concentration of a criminal trial – trial should not last too long, preparatory proceeding should be completed as soon as possible.