Bialystok Legal Studies vol. 27 nr 2
Bart van Klink, Marta Soniewicka, Leon van den Broeke
The Utopia of Legality: A Comparison of the Dutch and Polish Approaches to the Regulation of the COVID-19 Pandemic
Abstract: This paper provides a comparison of the regulation of the pandemic in the Netherlands and Poland in order to determine whether a country with a high level of adherence to the rule of law in normal circumstances would also maintain this adherence in exceptional circumstances to a greater degree than a country with an initially lower level of adherence. The central questions posed in the paper are the following: what is the role of the rule of law in regulating the pandemic in the Netherlands and Poland? Is it true that the Dutch government was more successful in preserving legality than its Polish counterpart. By comparing the regulations in the two countries, the paper explores what role the rule of law – in particular, the principle of legality – may play in a crisis situation like this. According to Carl Schmitt, in a state of emergency, order has to be restored first before a return to the ‘normal’ legal order is possible. Does the regulation of the COVID-19 pandemic in the two countries confirm Schmitt’s claim or not?
Keywords: legality, pandemic regulations, restrictions on fundamental rights and freedoms, the rule of law, utopia
Page range: 9-30
István Hoffman, Jarosław Kostrubiec
Political Freedoms and Rights in Relation to the COVID-19 Pandemic in Poland and Hungary in a Comparative Legal Perspective
Abstract: The subject of the article are selected political rights and freedoms guaranteed by the Polish and Hungarian constitutions, which are analysed in the context of possible limitations due to the COVID-19 pandemic. The analysis covers the right to vote in elections and referendums, the freedom of expression and opinion, and the freedom of assembly. The main aim of the article is to identify similarities and differences in the legal solutions adopted in Poland and Hungary in the context of restrictions or threats to political freedoms and rights. As a result of the research carried out, the authors positively verified the hypothesis that Poland and Hungary, although they chose different methodologies to implement the specific legal order applicable due to the coronavirus pandemic, namely Hungary has introduced one of the constitutional states of exception, i.e. the state of danger, while Poland did not introduce a state of natural disaster, the formula for sanctioning restrictions on political freedoms and rights with secondary legislation was similar in both countries. The authors express the view that continuous efforts should be made to develop legal institutions that would allow for a balance between the need to preserve political rights and freedoms and the need to make quick decisions in relation to the pandemic and citizens’ right to health. A pandemic should never be an excuse for those in power to restrict political freedoms and rights for longer periods of time, so as not to make these freedoms and rights the next victims of the SARS-CoV–2 virus.
Keywords: COVID-19 pandemic, Hungary, Poland, political freedoms and rights
Page range: 31-53
Aleksandra Syryt, Bogusław Przywora, Karol Dobrzeniecki
Freedom of Assembly in the COVID-19 Pandemic and the Limits of its Restraints in the Context of the Experiences of the Republic of Poland and the United States of America
Abstract: The aim of the study is to illustrate the problem of freedom of assembly during the COVID-19 pandemic against the background of the experiences of the Republic of Poland and the United States of America. This freedom is provided for in the constitutions of both states, which implies that public authorities are obliged to implement it also in COVID-19 conditions. Hence, the question arises as to whether, and if so to what extent, public authorities in Poland and the United States (countries belonging to the United Nations and obliged to consider the standards of human rights protection resulting from international law) applied solutions realising freedom of assembly in the conditions of COVID-19. The authors try to determine the extent of the impact of legal measures applied by public authorities in both countries on the realisation of freedom of assembly and the public reaction produced by these measures. The choice of such a context for assessment was justified by differences in the legal culture of the countries being compared, the structure of the state, and the approach of both the public authorities and the society to freedom of assembly.
Keywords: constitution, COVID-19 pandemic, freedom of assembly, human rights, human rights restrictions, proportionality
Page range: 55-73
Things Will Never be the Same Again: How the Coronavirus Pandemic is Changing the Understanding of Fundamental Rights in Germany
Abstract: In the coronavirus pandemic, the challenges for the doctrine of fundamental rights are significantly different from comparable issues in all previous crises in terms of their intensity, dynamics and the uncertainty of the risk. Scrutiny of the proportionality of the measures against the COVID-19 virus caused serious difficulties, and these difficulties could barely be overcome in the most critical phases during the first and second wave of infections. Furthermore, the combination of intensity, dynamics and uncertainties has forced federal and state legislators to make seemingly arbitrary differences in many cases. Therefore, in the jurisprudence of the administrative courts on the restrictions of fundamental rights during the coronavirus pandemic, there has been a shift in the standard of justification from aspects of freedom to aspects of equality. The pandemic has also led to the questioning of central categories of state liability law that are closely related to fundamental rights. Last but not least, the pandemic raised the question of the essence of fundamental rights. On the whole, the pandemic has made the limits of the efficiency of fundamental rights visible. The higher the expectations of optimization requirements and new dimensions of fundamental rights protection under normal conditions, the greater the disappointments will be about the effectiveness of fundamental rights in the case of an emergency such as the coronavirus pandemic. The luxury of fundamental rights afforded under normal conditions becomes a problem in an emergency situation. This carries the risk of obscuring the essence of fundamental rights protection.
Keywords: fundamental rights, pandemic, proportionality, state of emergency
Page range: 75-90
Alena Krunková, Gabriela Dobrovičová
Political Rights during the COVID-19 Pandemic in the Slovak Republic
Abstract: Political rights are an essential part of modern states’ constitutions as certain means through which power is exercised in the state. The article points to the existence and exercise of political rights in the Slovak Republic at the time of extraordinary circumstances related to the global COVID-19 pandemic. It analyses the options of their restriction within the sense of the Constitutional Law no. 227/2002 Statutes on State Security in Time of War, State of War, Extraordinary Circumstances and State of Emergency, and it also points to the decision-making activities of the Constitutional Court of the Slovak Republic related thereto.
Keywords: Constitutional Court of the Slovak Republic, COVID-19 pandemic, electoral law, political rights, state of emergency
Page range: 91-109
The Coronavirus Pandemic and the Right to Vote in Lithuania
Abstract: This article analyses the special legal regimes that were introduced in Lithuania which dealt with the COVID-19 pandemic during the spring of 2020 and which decided on extraordinary measures in order to contain the spread of this vicious transmissible disease, and how the right to vote was ensured during the 2020 Parliament (Seimas) elections. After examining these special legal regimes, the article concludes that according to the Constitution, the threat to public health, inter alia caused by the worldwide spread of a vicious contagious disease, is not a constitutional ground for introducing a state of emergency per se, unless this threat to public health menaces the constitutional order or social peace. Therefore, the establishment of other special legal regimes – a disaster management regime and quarantine – was chosen, and were introduced by the government in accordance with the law. The analysis in this article shows that the right to vote during the 2020 Seimas elections was proportionately restricted due to the pandemic, and the pandemic did not prevent the holding of general, secret and direct parliamentary elections. The pandemic forced the Seimas to adopt long-awaited amendments to the laws that legalized electronic voting in the country.
Keywords: special legal regime, quarantine, the electoral right
Page range: 111-123
Agnieszka Gloria Kamińska
Profiles of Potential Unconstitutionality of Legislation Restricting Personal Freedom for the Containment of COVID-19 on the Example of the Italian Republic
Abstract: The Sars-CoV–2 pandemic is changing the main issues of Italian constitutional law. The phases of the Italian normative management of the crisis focused on important and extraordinary measures and brought to light some structural problems of the Italian constitutional legal system. More generally the ongoing health crisis is revealing the lack of an articulated emergency framework in the Italian Constitution and questioning whether existing legislative tools are suitable to face contemporary threats. This article aims to analyse the main issues raised by the Italian government’s reaction to the coronavirus: the notion of emergency in Italian constitutional law, the legal forms chosen to fight the virus, the choice of the Italian Government to regulate the emergency by decrees of the President of the Council of Ministers, the role of decree law (‘decreto-legge’), from the emergency and the compression and restriction of fundamental rights to the balance of the fundamental freedoms with the protection of right to health.
Keywords: emergency, fundamental rights, Italian Constitution, Italian system, Pandemic crisis
Page range: 125-145
Constitutionality of Restrictions on Freedom of Assembly during the COVID-19 Pandemic in Poland
Abstract: Since the beginning of the pandemic, the Polish government has repeatedly imposed restrictions or a total ban on the freedom of assembly. A total of five different restrictions to this right were announced during this period, from a total ban on organizing and participating in assemblies to allowing assemblies in limited groups (150, 50, 5 and 2 persons). The restrictions were introduced each time by an ordinance, a legal act of a lower rank than the law. The government, wrongly, justified the authority to introduce such restrictions with the provisions of the act on preventing and combating infections and infectious diseases among people. In this paper, the author demonstrates that the ban on the organization of and participation in assemblies was introduced without a proper legal basis – by means of an ordinance instead of a statute – and contrary to the provisions of Article 57 and Article 31(3) of the Polish Constitution. The author also points out that as a result of the defective regulation, citizens have the right to refuse to accept criminal fines imposed by the police, pursuant to Article 54 of the Petty Offence Code, during assemblies. In the author’s opinion, no circumstances, not even extraordinary ones, can justify the failure of authorities to observe the provisions of the Polish Constitution. Such a failure leads to a violation of the principle of individual trust in the state, legal certainty and security, and consequently the clause of a democratic legal state.
Keywords: ban on assembly, freedom of assembly, ordinance, pandemic, violation of the Constitution
Page range: 147-161
Spontaneous Assemblies during the COVID-19 Pandemic in Poland – A Case Study Analysis
Abstract: COVID-19 turned into a global pandemic and affected public life in many states worldwide and in the Republic of Poland as well. The change of life under the pandemic regime meant a huge alteration in many aspects for most people. The unprecedented situation, for which the Polish authorities were unprepared, forced an immediate change in the law in Poland because of the introduction of the state of epidemic emergency. One of the instances of the changes of law was the limitation of freedom of assembly. The restriction of freedom of assembly was introduced by decrees, not by acts of parliament. The restrictions were described as illegal by the opposition and some parts of society. Many formal remarks were made by the Polish Ombudsman. The judgment of the Constitutional Tribunal in Poland of 22 October 2020 on abortion caused large-scale demonstrations throughout Poland as people wanted to express their views on the decision, which was perceived as the practical end of the compromise on abortion in the Republic of Poland. The research for this article was undertaken by means of system analysis and the analysis of the decision-making process.
Keywords: COVID-19 pandemic, freedom of assembly, spontaneous assemblies
Page range: 163-176
Joanna Kielin-Maziarz, Krzysztof Skotnicki
Restrictions on the Right to Vote in the Pandemic during the Election of the President of the Republic of Poland in 2020
Abstract: In 2020, presidential elections were due to be conducted in Poland. Despite the COVID-19 pandemic, it was decided not to introduce a state of natural disaster and, as a consequence, postpone the elections but to execute them on the grounds of episodicact. On the basis of the first episodic law, from 6 April 2020, the elections did not take place because they were completely unprepared. This law had many flaws. The elections were to be purely postal, so voters had no possibility of choosing which method to use to vote. The law’s entry into force on the eve of the election meant that voters were disoriented until the last minute and did not know how they could vote, whether they would receive election packages, where they would have to deliver return envelopes with a ballot paper and were not sure whether their vote would be counted. The second episodic law, of 2 June 2020, did not contain so many flaws, and voters in the country could decide for themselves which method to use. However, voting was very difficult abroad, and in 20 countries was not carried out at all. There were also only three days to submit election objections. However, above all, the lack of impartiality in the public media, especially public television, which supported the candidate promoted by the ruling majority, limited voters’ right to access truth-based information on public matters, candidates and their political programmes. These circumstances prompt us to consider whether the presidential elections in Poland in 2020 met the constitutional requirement of universality, equality and secrecy, and whether they were reliable and fair. Do they therefore serve to legitimize the office of the president of the Republic of Poland?
Keywords: active election rights, elections, election campaign, election objections, postal voting, presidential elections
Page range: 177-192
Radosław Grabowski, Sabina Grabowska
The Election for the Office of the President of the Republic of Poland on 10 May 2020 during the COVID-19 Pandemic – A Case Study
Abstract: Citizens’ election rights are among the most important political rights in a democratic state. The SARS-CoV–2 pandemic has brought chaos to countries and thus to their proper functioning. Therefore, the authors of the text, analysing the case of the presidential elections in 2020, put forward the thesis that the provisions regulating the rules of these elections contain significant gaps, which were revealed by the pandemic. The Constitution of the Republic of Poland of 1997 contains a catalogue of conditions that make it possible to elect a president under an extraordinary procedure. They all relate to a necessity to shorten the president’s term of office. However, no rules consider the likelihood of other obstacles to voting by the deadline, such as a pandemic.
Keywords: elections, Marshal of the Sejm, President of the Republic of Poland, National Electoral Commission
Page range: 193-205
Mariusz Jabłoński, Dominika Kuźnicka-Błaszkowska
Limiting the Right of Access to Public Information in the Age of COVID-19 – Case Study of Poland
Abstract: The right of access to public information is one of the most fundamental political rights granted to citizens under Art. 61 of the Polish Constitution. In the Act of 6 September 2001, not only was the procedure for providing the public information specified, but also some detailed rules on obliged entities. In practice, the right to access public information not only enables citizens to take mature political decisions, but also prevents the abuse, corruption, nepotism or waste of public funds. The transparency of public administration actions forces its representatives to behave by the book and to respect the rules governing a democratic state of law as well as human rights. Undoubtedly, the full implementation of the right of access to public information may not be possible in urgent and unexpected scenarios such as a state of emergency or martial law, but any restrictions should always be introduced in a proportionate manner and only to the extent necessary to protect other (more important) goods and values. The epidemic threat facing Poland in March 2020, followed by the state of the epidemic and the accompanying activities of the broadly understood legislator, have significantly impacted the implementation of the openness principle and the right to access public information in the country. Simultaneously, doubts were raised not only due to the scope and nature of these changes, but also because of their constitutionality. In order to obtain a full picture of these threats to the implementation of the law in question, one must take into account possible decisions of the Constitutional Tribunal (with positive or negative effects) in cases that will be ruled on soon. The analysis that we present is aimed not only at determining whether the functioning of the state in the epidemic regime justified the need to limit the constitutional right of access to public information, but also – in a broader systemic context – at demonstrating that the transparency standards existing in our national model need to be strengthened, not weakened.
Keywords: democratic state of law, epidemic state, human rights, right to information
Page range: 207-221
Radosław Olszewski, Amadeusz Małolepszy
Exercise of the Right to Defence in Criminal Proceedings during the COVID-19 Pandemic with Particular Reference to the Relation Between the Accused and the Defence Counsel
Abstract: The aim of this article is to present the legal solutions adopted in criminal proceedings during the COVID-19 pandemic and their impact on the implementation of the right to defence, focusing, in particular, on the relation between the accused and the defence counsel. During the pandemic, online trials and hearings became widespread and communication with the courts via email developed. Issues of confidentiality between the accused and his/her defence counsel, as well as access of the defence counsel to files, were analysed, particularly in cases related to pretrial detention. The new solutions have been evaluated, possibilities of their use after the end of the pandemic have been indicated and postulates as to the desired directions of changes have been formulated. The issues addressed are relevant today and extremely important in the sphere of public law, as criminal liability is proved during criminal proceedings. In general, it should be assessed positively that the COVID-19 pandemic has become an opportunity to introduce new legal solutions for the modernisation of criminal proceedings. However, some of these regulations do not fully meet the objectives set for them, hindering, through the adoption of specific solutions and practices, the proper implementation of certain key procedural principles, primarily the right to defence.
Keywords: accused, criminal proceedings, defence counsel, defence secrecy, online hearing, online trial, right to defence
Page range: 223-236
Qualification of Freedom of Religious Assembly in the Period of Ordinary Functioning of the State and in the Legislation from the Time of COVID-19 Pandemic in Poland
Abstract: The subject of this article is to present the legal qualification of the freedom of religious assembly in the period of ordinary functioning of the state and in the content of regulations from the period of the COVID-19 pandemic in Poland. The analysis is concerned with determining how the legislator treats this freedom from the point of view of links between freedom of assembly and freedom of thought, conscience and religion. The function of freedom of religious assembly is presented, as well as the legal model of religious freedom assembly in the conditions of ordinary state action, as well as on the ground of legal regimes possible to introduce in connection with counteracting the occurrence and effects of an infectious disease. In the research the dogmatic method was applied. Amendments to the Law on Assemblies and special law regulations have been proposed to take into account constitutional principles and values, as well as ongoing social changes.
Keywords: conscience and religion, COVID-19, epidemic state, freedom of assembly, freedom of thought
Page range: 237-250
Elżbieta Kużelewska, Małgorzata Podolak
Restrictions of Freedom of Assembly and Association in Slovenia during COVID-19 Pandemic
Abstract: Slovenia is one of the European Union Member States which disproportionately restricted political rights during the COVID-19 pandemic. Since the new government of Prime Minister Janez Janša came to power in March 2020, the anti-government and anti-lockdown protests have been taking place across the country. The pandemic-related restrictions have been introduced by government’s ordinances. They have greatly limited political rights of citizens, in particular the right to public assembly and association. Citizens’ dissatisfaction with the government’s policies and inadequate handling of the epidemic, resulting in undue restrictions on liberty and other fundamental rights, led to the filing of petitions to the Constitutional Court. The Constitutional Court, resolving the dispute between citizens and the government, ruled that government regulations implementing restrictions on fundamental rights, particularly the rights to public assembly and association, were unconstitutional in several cases.
Keywords: Constitutional Court, civil rights, freedom of assembly, freedom of association, political rights, Slovenia
Page range: 251-263