Openness of court proceedings in compliance with the European Convention on Human Rights

The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.

Closed capitals of the empire of law. The importance of openness of judicial proceedings for social legitimacy of judicial authority

The article focuses on the openness of judicial proceedings, in particular the openness of the trial, considered as an important element of the constitutional right to a trial, the requirement of procedural fairness and the condition for maintaining the social legitimacy of the judiciary. The immediate context for the considerations is determined by the changes introduced by the Act of May 28, 2021 amending the Act – the Polish Code of Civil Procedure and certain other acts, making it possible to limit the openness of court proceedings in relation to the occurrence of an epidemiological emergency. The author draws the attention to transformations in the constitutional position and ways of perceiving the legitimacy of courts in modern constitutional democracies. The increasing role of courts in settling major political disputes, resolving social conflicts, controlling governmental authorities and enabling citizens to hold representatives of the authorities accountable for their decisions renders participation in judicial proceedings one of the fundamental democratic activities nowadays. The author also indicates that the trial (as a fundamental form of communication between judges and citizens and a special phase of proceedings allowing the court to deeply examine the facts of the case and to learn the prevailing understanding among citizens of the values and principles on which the legal order is based) is a key measure to achieve the principles of procedural justice during the course of specific proceedings and to establish trust in the third power before the public. Openness of judicial proceedings, especially the trial, is a condition for the courts to maintain a reflexive attitude in the process of ruling and thus to deepen the social legitimacy of the judiciary based on trust. 

Criminal liability of an administrative official for damages caused by a tree or a bush as a result of professional negligence

The article focuses on the analysis of the dogmatic grounds of criminal liability of administrative officials that manage urban green areas for damages caused by the fall of a tree or a bush. The main focus of the discussion revolves around criminal liability for the failure to remove a plant as a result of the unintentional professional negligence by public officials (Article 231 § 3 of the Polish Penal Code). Particular attention is directed toward the issue of compliance of the crime of professional negligence with the constitutional standard of definiteness (nullum crimen sine lege certa). The text also discusses the possibility of incurring criminal liability for the aforementioned actions on the basis of certain types of common crimes and considers cases of potential concurrence of regulations and crimes.

Liability for damages caused by trees and bushes

The following article outlines the administrative-legal aspects of the proceedings for the logging of trees or cutting down bushes. This presentation is a starting point for further civil law considerations on the liability for damages caused by trees and bushes. The analysis examines instances of omissions or abuses by the entity authorized to log trees, examples of such activities and their potential consequences. The issue of the liability of administrative officials for erroneous administrative decisions regarding logging is also addressed. The concluding part of the article focuses on civil law claims (non-tort ones or not necessarily tort ones) related to the presence of trees and bushes – and involves the analysis of examples of factual status which were the subjects of common courts’ decisions.

Public administration tasks in the scope of green areas protection and the forms of their implementation – selected remarks

The article presents forms of administration activities which may influence the condition of green areas. It is pointed out that the analysis of public administration tasks in the scope of green areas protection cannot be limited only to the solutions presented in the Act of April 16, 2004 on the protection of the environment. It is stressed that actions taken on the basis of other legal acts, not necessarily directly related to the protection of the environment, may also have an influence on the condition of green areas. Both planning acts and decisions issued in specific cases may have this kind of character. The legal effects resulting from them may indirectly affect the green areas. Therefore, the necessity of taking complementary actions by all authorities is indicated, the application of which may ensure effective protection of green areas. Solutions that may enable it are already existing and operational, but they should be properly used.
 

Formal and substantive requirements for the participation of a court-appointed expert in criminal and civil proceedings

The purpose of this article is to present the institution of a court-appointed expert in criminal and in civil proceedings in terms of their similarities and differences. Often the same people, institutes or institutions are involved in both types of proceedings. However, criminal and civil proceedings impose various formal and substantive requirements in relation to these entities. Obtaining the status of a court-appointed expert and performing this role in the proceedings may differ significantly depending on the type of proceedings. This fact produces two conclusions. First: the parties to the proceedings (and especially their professional legal representatives) should be aware of when and in what circumstances they can use an opinion of a court-appointed expert. Second: court-appointed experts themselves (or persons and entities who aspire to such a role) should have a clear understanding of their role in the proceedings.

Commercial information and direct marketing without prior and explicit consent – selected issues

The aim of the article is to examine legal regulations in the context of answering the question whether – and if so, then under which circumstances – marketing activities performed via means of electronic communication are legal when the party conducting these activities does not have the prior and explicit consent to perform them. In particular, the article will analyze the provisions of Article 10 of the Act on provision of services by electronic means and Article 172 of the Act – telecommunication law, which are the key legislative provisions to resolve this issue. To answer the question posed in the article, the subject and object scopes of both legal norms in particular will be compared. Such a comparison is necessary to determine whether – and if so, then what kind of – marketing communication can be made without prior and explicit consent. On the other hand, the author will not discuss more broadly the issues concerning the processing of personal data, although he will draw attention to the conditions that must occur in order for the personal data held by the controller to be used for the purposes identified above.
 

Problems related to selected issues of unitary patent protection

Unitary patent protection is one of the key challenges for the European Union. The current initiatives, which – despite being just a short step away from full implementation due to legal and formal issues, such as the complex legal structure or non-legal claims concerning their negative impact on the economy and competitiveness of enterprises – still raise doubts and uncertainties. The aim of this article is to illustrate the problem of unitary patent protection on selected issues concerning the European patent with unitary effect and the Unified Patent Court. The obstacles that prevent the implementation of the Unified Patent Court are presented. Critical voices assessing the proposed model of unitary patent protection are also presented and discussed.

Gloss to the Supreme Administrative Court of Poland judgment of February 14, 2019 – case file no. II OSK 626/17

The author analyzes crucial problems identified by the Supreme Administrative Court of Poland in the judgment of February 14, 2019 – case file no. II OSK 626/17 concerning the application in practice of the principle of good neighborhood, referred to in Article 61(1)(1) of the Act on Spatial Planning and Development. It should be noted that although the existing buildings determine the manner in which the conditions of a new investment are specified (due to the necessity of existence of “at least one neighboring plot”), various functions may co-exist within the framework of the existing and future developments, provided that they can be mutually reconciled. The purpose of the gloss is to demonstrate the appropriateness of the decision of the Court, which concluded that the existing housing development will have a negative impact on the residents of the new single-family housing estate due to the conflicting functions of the sites. In this respect, the reviewed judgment constitutes a certain attempt to prevent the so-called single-unit urbanism.

Overview of the decisions of the Polish Supreme Court

Pursuant to the resolution of the panel of seven judges of the Polish Supreme Court of May 7, 2021, case file no. III CZP 6/21, which became a legal principle, an illegal contract term (Article 385¹ § 1 of the Polish Civil Code) is from the beginning, by virtue of the law itself, ineffective for the benefit of the consumer who may give free and informed consent to this provision and thus restore its retroactive effect. If the loan agreement cannot be binding without an ineffective provision, the consumer and the lender are entitled to separate claims for the reimbursement of cash benefits provided in the performance of the agreement (Article 410 § 1 in conjunction with Article 405 of the Polish Civil Code). The lender may request the return of the benefit from the moment the loan agreement becomes permanently ineffective. The resolution of the Polish Supreme Court of May 28, 2021, case file no. III CZP 27/20, is of exceptional importance, as according to it the right to live in a clean environment is not a personal good. Protection of personal rights (Article 23 of the Polish Civil Code in conjunction with Article 24 of the Polish Civil Code and Article 448 of the Polish Civil Code) covers health, freedom, privacy, which may be breached (threatened) by an inadequate air quality, which does not meet the standards specified in legal provisions. However, according to the resolution of the Polish Supreme Court of March 31, 2021, case file no. I KZP 7/20 – a violent crime within the meaning of Art. 41a § 1 of the Polish Criminal Code is any crime that was actually committed with the use of violence, and the word “violence” used in this legal provision includes both physical and mental violence.