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The Repressive Nature of Selected COVID-19 Regulations in the Polish Legal System: The Question of Constitutionality
- Edited by Ewoud Hondius, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst, Fryderyk Zoll
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- Book:
- Coronavirus and the Law in Europe
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 August 2021, pp 93-114
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Summary
The subject of this contribution is the question of the constitutionality of the sanctions for violation of restrictions and prohibitions introduced during the outbreak of the SARS-CoV-2 coronavirus epidemic in Poland. The starting point for our considerations is the distinction made by the Polish Constitution between extraordinary and ordinary measures in dealing with dangers. Extraordinary measures (which include, inter alia, the state of natural disaster) allow for more severe limitations of constitutional rights and freedoms than is permitted by the ordinary ones. The state of epidemic introduced in Poland on 31 March 2020, is an ordinary measure. However, the comparison between sanctions used during this state, and sanctions that it is possible to impose during the extraordinary state of natural disaster shows that the former are more severe than the latter. This observation leads to the conclusion that the sanctions of the state of epidemic are in breach of one of the basic rules that govern the limitation of constitutional rights and freedoms in the Polish Constitution, i.e. the proportionality rule.
INTRODUCTION
Shortly after the first appearance of SARS-CoV-2 coronavirus in Europe, Polish authorities undertook measures aimed at preventing the spread of the epidemic and minimising its negative impact. Among other things, a set of new legal provisions were adopted that have since been regulating the functioning of State institutions and various areas of social life. In many cases these regulations have a serious impact on everyday life, limiting the way in which even basic affairs, such as working, shopping, or simply moving from one area to another, can be performed. There is no doubt that these restrictions were introduced with good intentions in mind. Their main goal is to protect the public against the risk of contracting a dangerous and deadly virus. The practical realisation of this goal, however, did not avoid shortcomings, including serious ones that raise the question of their constitutionality.
One of the issues concerns legal sanctions that can be imposed on those individuals who violate new epidemic restrictions. Parliament chose the financial administrative responsibility in the form of administrative fines issued by the health inspectors. In this contribution, we will take a closer look at these fines by situating them within a broader, constitutional framework. In our opinion, their introduction for violation of epidemic restrictions does not meet the constitutional requirements of proportional limitation of rights and freedoms.
14 - Guilt in Criminal Law: Guilt in Us or in the Stars?
- from III - Legal Doctrine and Cognitive Sciences
- Edited by Bartosz Brożek, Jagiellonian University, Krakow, Jaap Hage, Universiteit Maastricht, Netherlands, Nicole Vincent, Macquarie University, Sydney
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- Book:
- Law and Mind
- Published online:
- 21 April 2021
- Print publication:
- 29 April 2021, pp 289-316
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Summary
This article explores the notion of guilt understood as one of the conditions required to attribute criminal liability to a perpetrator of a prohibited act. We narrow our considerations only to the theories developed by continental law scholars. As a guiding schema for our presentation, we take the famous quote from Shakespeare, ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ Our point of departure are the psychological theories that locate guilt in us, therefore explaining it as a perpetrator’s state of mind. With the critiques of this approach, we move to the normative theories which search for guilt outside the agent. Guilt is understood here as a charge that a perpetrator did not act in accordance with their legal obligations. Next, we present the imputative theory, which tries to return from distant stars to a perpetrator in defining what guilt is. In our final remarks, we offer the assessment of guilt as a principle of criminal liability and of its importance to the standard of human rights. Along the way, we also point to various problems that arise on the basis of each one of the discussed theories and that are interesting from the perspective of cognitive science, such as the problems of naïve psychology or the assumption of free will.