Ius Novum https://iusnovum.lazarski.pl/iusnovum <p>Ius Novum (ISSN 1897-5577, online ISSN 2545-0271) is a peer-reviewed scientfic quarterly of the Faculty of Law and Administration of Lazarski University in Warsaw. It has been published since 2007.</p> Oficyna Wydawnicza Uczelni Łazarskiego en-US Ius Novum 1897-5577 Judicial management of evidence hearing before a court of first instance: Polish system vs Belgian system https://iusnovum.lazarski.pl/iusnovum/article/view/1179 <p>The article presents a comparison of selected aspects of the judicial management of evidence hearing before a court of first instance in the Polish and Belgian systems of procedural law. It discusses the issue of ensuring the efficient management of evidence hearing, which is one of the major principles of civil proceedings in both discussed legal systems. The main role of the court in evidence hearing consists in supervising whether evidence reported by the parties is appropriate, verifying its admissibility and usefulness, interpreting and evaluating this evidence, and finally, in the possibility of taking steps <em>ex officio</em> in this respect. In both the Polish and Belgian civil procedure, the burden of proof is on the parties; however, it is the court that, being the manager of evidence hearing, also safeguards adherence to the principles of free exercise of rights, adversariness, and evidence concentration in a lawsuit. The possibility of admitting evidence <em>ex officio</em>, which is laid down in both legal systems, is to some extent limited in the Belgian one, which is directly expressed in the provisions. On the other hand, parties’ activity in the field of evidence presentation is more formalised in the Polish system. There are also major differences with respect to the misuse of procedural law. Although it has been statutorily defined in both countries, carries the penalty of a fine and imposes similar obligations on the court towards the parties to a lawsuit, in Poland, unlike in the Belgian system, there is no possibility of claiming compensation for the procedural law misuse by an opponent within the same proceedings.</p> Małgorzata Manowska Copyright (c) 2020 Ius Novum 2020-12-30 2020-12-30 14 4 17–46 17–46 10.26399/iusnovum.v14.4.2020.35/m.manowska Prohibition of excessive formalism and judicial practice: comments based on civil case law of Polish courts in the context of Article 6 ECHR https://iusnovum.lazarski.pl/iusnovum/article/view/1180 <p>The guarantee of the right to a fair trial (Article 6 ECHR) in the light of the Strasbourg case law implies the need for the court to fulfil all disclosure obligations that have a guarantee significance in terms of the right to a court and the prohibition of excessive formalism. The Strasbourg Court in the ECtHR judgments of 11 October 2018 in the case of <em>Parol v. Poland</em>, and of 28 March 2019 in the case of <em>Adamkowski v. Poland</em>, on the background of concurrent facts, stated that the rejection by civil courts of appeals of the applicants, persons deprived of liberty, was a manifestation of excessive formalism inadmissible under Article 6 ECHR. This decision was influenced by the fact that the applicants were not duly instructed by the court about the formal requirements related to lodging an appeal. These judgments are a clear signal to the courts that, when applying procedural law, one must make its interpretation friendly in terms of substance and in line with Convention on Human Rights so as not to violate the fair trial guarantee. Perhaps these judgments will become an important contribution to a wider discussion on the interpretation of procedural law and effective judicial protection. The problem lies not only in the law itself, but also in the lack of sufficient guarantees of its pro-Convention interpretation by the courts. Despite the upgrading of court buildings and their adaptation to the needs of clients, a meticulous attachment to the mechanical and routine application of procedural rules often prevails in courts.</p> Aneta Łazarska Copyright (c) 2020 2020-12-30 2020-12-30 14 4 47–65 47–65 10.26399/iusnovum.v14.4.2020.36/a.lazarska Proportionality of interests and the principle of commensurability of self-defence in Polish criminal law https://iusnovum.lazarski.pl/iusnovum/article/view/1181 <p class="streszczenietekstang"><span lang="EN-GB">This paper presents the issue of the proportionality of interests in the context of the condition of commensurability of self-defence with the danger arising from an unlawful and direct attack on a specific interest protected by law. The aim of the study is to analyse this condition of commensurability by construing the notion of the necessary defence and by determining whether this condition implies an obligation to retain the proportion of the value of interests in conflict the case of specific defences to criminal liability. In order to achieve this goal, the author primarily employs the formal and dogmatic method as well as the method of analysing judicial decisions. While the condition of proportionality of interests is not expressly contained in the regulations governing the institution of self-defence in Polish criminal law, such an analysis seems justified, in particular, because of the view commonly held in the doctrine and case law whereby a glaring disproportion of interests is inadmissible in self-defence. In his analysis, the author presents a critical assessment of the aforementioned view.</span></p> Robert Sosik Copyright (c) 2020 2020-12-30 2020-12-30 14 4 66 79 10.26399/iusnovum.v14.4.2020.37/r.sosik Penal aspects of of regaining freedom by a person legally deprived of it in the United Kingdom and the Republic of Ireland https://iusnovum.lazarski.pl/iusnovum/article/view/1182 <p class="streszczenietekstang"><span lang="EN-GB">The article presents an analysis of legal solutions that are in force in England, Wales, Scotland, Northern Ireland and the Republic of Ireland concerning an offence of self-liberation (escape) from lawful custody, an offence of unlawfully being at large after the conditional release expired or was recalled and an offence of facilitating escape from lawful custody, liberating or allowing a person to escape. The article aims to present the regulations and compare them with each other and the solutions adopted in the Polish Criminal Code. The research conducted made it possible to establish many similarities between regulations that are in force in the British Isles and between them and Articles 242 and 243 of the Polish Criminal Code. </span></p> Piotr Poniatowski Copyright (c) 2020 2020-12-30 2020-12-30 14 4 80 99 10.26399/iusnovum.v14.4.2020.38/p.poniatowski Participation of the Police in investigation of fiscal crimes and petty offences https://iusnovum.lazarski.pl/iusnovum/article/view/1183 <p>This article attempts to acquaint the reader with the activities of the Police as a non-financial investigative organ in fiscal criminal cases falling within the Police’s area of competence determined by the subject matter. The composition of this contribution reflects two topics. The first concerns the tasks of the Police, its competence determined by the subject matter, and the scope and manner of exercising its powers in fiscal criminal cases, with special emphasis placed on operational-exploratory activities and operational control (surveillance). The other topic focuses on the powers of the Police in the investigation, with differences related to fiscal criminal offences and fiscal petty offences. The article is summarised with conclusions.</p> Marta Roma Tużnik Copyright (c) 2020 Ius Novum 2020-12-30 2020-12-30 14 4 100 118 10.26399/iusnovum.v14.4.2020.39/m.r.tuznik Review of resolutions of the Supreme Court Criminal Chamber concerning criminal procedure law for 2018 https://iusnovum.lazarski.pl/iusnovum/article/view/1184 <p>The article presents an analysis of the judgments of the Supreme Court Criminal Chamber passed in 2018 as a result of resolving legal issues that require fundamental interpretation of statute (Article 441 § 1 CPC), raising serious doubts concerning the interpretation of the provisions of law (Article 82 § 1 of the Act on the Supreme Court) or causing discrepancies in case law concerning the interpretation of the provisions of law that are grounds for adjudication (Article 83 § 1 of the Act on the Supreme Court) within criminal procedure law. Resolving the legal issues referred to it, the Supreme Court held that: the correction of an obvious editorial error consisting in the different transcription of a penalty amount in words and digits is admissible (Article 105 § 1 CPC); a prosecutor may take a decision to use evidence in criminal proceedings that was obtained as a result of surveillance ordered on an authorised body’s request in relation to another offence prosecuted <em>ex officio</em> or a fiscal offence other than the offence covered by the surveillance order, but only when ordering surveillance is admissible in relation to this offence (Article 168b CPC); a repeated decision on the refusal to instigate preparatory proceedings or on their termination was not subject to an appeal pursuant to the legal circumstances at that time (Article 330 § 2 CPC); the acquittal or discontinuation of criminal proceedings and referring a case for rehearing is possible based on the <em>ne peius</em> rule (Article 454 § 1 CPC); an adjudicating court that hears a complaint about quashing a judgment of the first-instance court and referring a case for rehearing is limited to examining whether the default recognised by an appellate court constitutes grounds for cassation (Article 539a § 1 and § 3 CPC); an appellate court may issue a cumulative sentence for the first time or rule it in an amount different from the one imposed by a court of first instance (Article 568a § 2 CPC); a fee is charged for a motion in penalty enforcement proceedings to append an enforcement clause filed by a person other than the one indicated in an enforcement title to whom the entitlement was transferred after the title occurred (Article 25 § 1 PEC); a complaint about a ruling on refusal to admit a motion to develop in writing and deliver an appellate court’s sentence justification issued in cases concerning petty offences is inadmissible (Article 109 § 1 POPC); proceedings before a given instance court’s same bench are continued in case the provisions on a court bench are amended (Article 30 of the Act of 27 September 2013); every partner of a general partnership is obliged to provide an authorised body with information who was entitled to drive or use their vehicle in a particular period (Article 78 para. 5 LRT). In addition, the Court explained the requirements that must be met in order to ask the Supreme Court legal questions on issues that need fundamental interpretation (Article 441 § 1 CPC) and cause discrepancies in case law concerning the interpretation of the provisions that are grounds for adjudication (Article 83 § 1 of the Act on the Supreme Court).</p> Ryszard A Stefański Copyright (c) 2020 2020-12-30 2020-12-30 14 4 119 154 10.26399/iusnovum.v14.4.2020.40/r.a.stefanski Protection of public decency in Polish criminal law of the pre-Partition period against conduct classified today under Article 140 of the Petty Offences Code https://iusnovum.lazarski.pl/iusnovum/article/view/1185 <p class="streszczenietekstang"><span lang="EN-GB">The article presents the issues related to the protection of public decency against conduct currently classified as indecent antics (Article 140 of the Petty Offences Code) in the period until Poland lost its independence in the 18th century. The regulations in force at that time have been analysed, along with the factual cases examined by the courts. </span></p> Krzysztof Wala Copyright (c) 2020 2020-12-30 2020-12-30 14 4 155 169 10.26399/iusnovum.v14.4.2020.41/k.wala Classification of activities subject to entry in the register of telecommunications entrepreneurs https://iusnovum.lazarski.pl/iusnovum/article/view/1187 <p class="streszczenietekstang"><span lang="EN-GB">The article aims to present the issue concerning the classification of entrepreneurs’ activities consisting in a telecommunications activity within the meaning of the provisions of the Act of 16 July 2004: Telecommunications Law. Despite the legal definitions of specific types of activities, determining the legal status of many services provided with the use of telecommunications networks poses significant practical problems and, consequently, increases risks for entrepreneurs as they lack the appropriate authorisation to conduct telecommunications activities required by regulations or obtain entry into the register of telecommunications entrepreneurs for an activity that is not telecommunications. The emergence of new activities and the development of new communication techniques only increase the above-mentioned problem. Partial explanation and additional guidance on the interpretation of legal definitions of specific types of telecommunications activities are provided by case law of the Court of Justice of the European Union. However, in many cases, it is an entrepreneur who eventually has to make the appropriate decision regarding notification of his activity to the registry of telecommunications entrepreneurs. New categories of electronic communications services introduced by the regulations on the European Electronic Communications Code do not solve the problem and even increase it due to definition-related ambiguities left unresolved. The article makes an attempt to clarify interpretative doubts in order to allow defining a demarcation line between regulated activities requiring entry into the register of telecommunications entrepreneurs and activities remaining outside the scope of the provisions of the Telecommunications Law.</span></p> Wojciech Krupa Copyright (c) 2020 2020-12-30 2020-12-30 14 4 170 192 10.26399/iusnovum.v14.4.2020.42/w.krupa Gloss on the Supreme Court judgment of 4 February 2020, III KK 113/19 https://iusnovum.lazarski.pl/iusnovum/article/view/1188 <p>The author of this gloss accepts the argument that the existence of ‘exceptionally justified circumstances’ within the meaning of Article 60 § 2 CC should be inferred from unusual circumstances of the incident or the features of the perpetrator which characterise them in an exceptionally positive way and warrant the imposition of a penalty lesser than the least severe penalty imposable for the offence in question. Based on a review of court decisions and scholarly works, the author identifies the key determinants guiding the assessment of whether exceptionally justified circumstances exist. Furthermore, the author endorses the call for maintaining an appropriate standard of appellate review in cases involving the extraordinary mitigation of a penalty. Such a standard implies the need for a substantive and not merely formal revision of the grounds for the appeal challenging the legitimacy of the application of the extraordinary mitigation of a penalty.</p> Julia Kosonoga-Zygmunt Copyright (c) 2020 2020-12-30 2020-12-30 14 4 193–204 193–204 10.26399/iusnovum.v14.4.2020.43/j.kosonoga-zygmunt Gloss on the Supreme Court ruling of 13 June 2019, III KK 280/18 https://iusnovum.lazarski.pl/iusnovum/article/view/1189 <p>The gloss refers to the problem of the correct and accurate description of the act fulfilling the elements of the criminal offence of traffic incident (Article 177 § 1 or § 2 of the Criminal Code) imputed to the defendant in the conviction (Article 413 § 2(1) of the Criminal Procedure Code). The author, elaborating on the arguments supplied by the Supreme Court, takes a position in support of the admissibility of an equivalent phrasing that defines the ‘violation of safety rules in land traffic’, provided that its semantic value corresponds to the statutory element. The author also notes that in specific cases the description of an act based solely on expressions taken from the statutory language could even make it more difficult to present an accurate picture of the perpetrator’s conduct.</p> Jacek A. Dąbrowski Copyright (c) 2020 2020-12-30 2020-12-30 14 4 205–215 205–215 10.26399/iusnovum.v14.4.2020.44/j.a.dabrowski Gloss on the judgment of the Court of Appeal in Gdańsk of 9 August 2019, II AKa 60/19 https://iusnovum.lazarski.pl/iusnovum/article/view/1190 <p class="streszczenietekstang"><span lang="EN-GB">The commentary concerns the interpretation of the statutory features of the offence under Article 258 of the Criminal Code. The author shares the view of the Court of Appeal in Gda</span><span lang="AR-SA">ń</span><span lang="EN-GB">sk that the period of imprisonment does not have to interrupt the offender’s membership in an organised criminal group. The author also points out that the formal nature of the offence of participation in an organised criminal group does not mean that such participation may also be a passive one. However, a detailed interpretation of the very concept of ‘participation’ speaks in favour of accepting such a broad interpretation of this statutory feature of this offence. There is also no doubt about the sustained nature of the offence under Article 258 § 1 CC. </span></p> Aneta Michalska-Warias Copyright (c) 2020 2020-12-30 2020-12-30 14 4 216–225 216–225