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This chapter analyses interrelations between the freedom of expression and the right to free election in the case law of the European Court of Human Rights.
In Central Europe, especially in Hungary and Poland, over the last years there are serious problems related to democracy, constitutional balance and the rule of law. In a short time, the illiberal political leaders put into practice an order that calls into question principles that form part of the axiological foundation of the European Union. This article explains why illiberalism has been so successful in this region and which techniques have been used to reinforce the political capture of various state institutions,especially the judiciary. The article also contains a critical analysis of the European Union’s attitude towards Hungarian and Polish illiberalism. The general hypothesis of this study is that Hungary and Poland have gone so far towards constitutional illiberalism, that it is extremely difficult to indicate the simple legal remedies for rapid return of these countries to liberal democracy.
The notion of civil service in Europe: establishing an analytical framework for comparative study
(2022)
The aim of this paper is to create an analytical framework for comparative study (FÖV project “The Transformation of the Civil Service in Europe”). It explores the scope and denotation of the terms “civil service” and “civil servant”. Its main argument is that a comparative legal ana-lysis should distinguish the notions of public service and civil service. Public service concerns a type of professional activity related to the exercise of all public power (legislative, executive and judicial). Civil servants are officials employed by the executive; they have special duties and responsibilities and are often subject to specific requirements. The employment regime is not decisive for the status of civil servant, due to the fact that government officials in Europe are employed both under public or private (labour) law. Nonetheless, they should enjoy stability of employment and exercise their competencies on a regular basis, not ad hoc.
Wolność wypowiedzi w Internecie: O roli mediów społecznościowych i pozytywnych obowiązkach państwa
(2022)
Modern online communication processes are characterized by the growing role of private entities (social media) and the emergence of numerous conflicts of a horizontal nature. This paper examines these issues from the standpoint of the ECtHR’s theory of positive obliga-tions. Consequently, it analyses the impact of new technologies on the freedom of expres-sion, the paradigm shift in communication, and the State’s positive obligations to prevent horizontal abuses. The article also analyses the existing and planned legal framework (national and EU). The main argument of this article is that public control over social media should be strengthened. Limiting their discretion to ensure adequate protection of rights and freedoms does not mean, however, the freedom of forum, understood as an unlimited right of access to the platform in order to express opinions.
The article presents the judgment of the Polish Constitutional Court of 10 March 2022
(K 7/21). In this judgment, the Court questioned the constitutionality of the art. 6 of the European Convention on Human Rights, one of the fundamental norms of the European system of human rights protection. The article criticises this decision and shows its negative consequences for the individual right to a fair trial.
This chapter analyses the impact of the Internet and the shift in communication processes on the States’ obligations emerging from the European Convention on Human Rights (ECHR). It claims that the environment created by the Internet is different from the traditional one; that is, it substantially empowers a range of private actors such as social media and other Internet platforms. That is why in the light of the actual development of the ECHR’s standards, both the strict distinction between positive and negative State’s obligations, and an overall prefe-rence for the latter are anachronistic. This chapter claims that it is crucial to keep developing European minimal safeguards in horizontal online relations when human rights violation is a result of a State’s non-compliance with the positive duty. Against this backdrop, this chapter centers around the influence of the Internet on the exercise and protection of selected human rights and the changing nature of communication processes, as well as the game-changing shift caused by the growing power of private actors. It also includes a detailed analysis of the scope and content of positive State’s obligations emerging from the use of the Internet, focusing on substantive obligations (i.e., the legal framework and the allocation of responsibilities), as well as on the issue of the public guarantees for online pluralism and procedural obligations (the duty to provide responses to allegations concerning online ill-treatment inflicted by private individuals).
The article shows the process of normativization of scientific knowledge in the European Convention on Human Rights system. It argues that scientific and technological knowledge substantially impact tools used by the European Court of Human Rights, such as the living instrument doctrine, positive obligations, and European consensus.