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Zarejestrowany związek partnerski a przysposobienie. O wyroku Sądu Konstytucyjnego Republiki Czeskiej z 14 czerwca 2016 r., Pl. ÚS 7/15

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Banaszkiewicz B.

Kwartalnik Prawa Prywatnego

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2016

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tom 25

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nr 3

691–707

EN

In countries where the institution of registered partnership has been introduced for persons of the same sex, disputes concerning the statutory regulation of this institution have been the subject of constitutional case law. The objections by applicants for constitutional review may take either of two opposite directions. The first is the conservative tendency, querying the admissibility of the institution of registered partnership as such, especially with regard to the constitutional status of marriage and the family. The second direction, which may be called innovative, seeks for removing the restrictions on rights and possibilities of the registered partners, usually with reference to the general principle of equal rights and the prohibition of discrimination. If the democratic legislator hedged his acceptance of the new institution with conditions preventing or restricting child adoption by registered partners, out of concern for the child’s well-being or on other grounds, sooner or later such restrictions will come up against criticism questioning their validity from the point of view of the national constitution or the Convention for the Protection of Human Rights and Fundamental Freedoms. In some situations, constitutional courts have acted substitutively for the positive legislator in removing such restrictions. There have been no applications to the Czech and Austrian constitutional courts against the introduction of the institution of registered partnership, presumably because the national constitutional orders of these countries – unlike the situation in Germany or Hungary – have no provisions for the special protection of marriage. The Czech judgment discussed in this article belongs to the innovative trend and is, in comparison with its counterparts in the constitutional judicature of Germany and Austria, a rather modest step on the road to making 2 child adoption easier for homosexuals: it sets aside the provision of the Registered Partnership Act of 2005 which has excluded individual adoption of a child by a person living in a registered partnership. The essence of the grounds for this decision boils down to the following: since the legislator admits, in exceptional cases, individual child adoption by an unmarried person regardless – according to the interpretation of the Constitutional Court – of his/her sexual orientation, even though the joint adoption of a child by a (heterosexual) married couple should be taken into consideration as a rule, then the legislator should not prohibit an individual child adoption only because the prospective adopter has entered into a registered partnership. “This statutory restriction will not stand in the light of human dignity as a fundamental objective value of humanity and the focal point of other fundamental rights. Actually, if it is based on the fact that a certain group of persons is excluded from a certain right solely owing to the fact that they have decided to enter into a registered partnership, it thus turns them into de facto ‘second-rank’ individuals and stigmatises them groundlessly in a certain manner, which evokes the idea of their inferiority…“ The author of this article observes that although the authors of the grounds for the judgment refer to adoptio naturam imitatur and child’s well-being as the two fundamental principles governing the law on adoption, yet they have failed to notice the provision of the Registered Partnership Act under review as a specific case of relevance of both principles. According to the prevalent opinion in the Polish doctrine on family law, a person’s manifest homosexuality has to be treated as an obstacle debarring him/her from the adoption of a child. In his dissenting opinion, Judge Vladimír Sládeček has contested the decision of the Constitutional Court as an instance of judicial activism: “What matters is not the essence of the case but rather the approach taken by the Constitutional Court […] it is primarily up to the democratically elected legislature whether and how it will regulate the issues of adoption by registered partners or adoptions by same-sex couples.“ As to the point of view of human dignity, he observes that “… the protection of human dignity focuses on protecting the differences arising from natural characteristics of the human being or created by their will or the social environment. The essence of the protection of human dignity results precisely in respecting these differences. In other words, the protection of human dignity consists not in protecting the rights or possibilities which some human beings do not have owing to their nature or due to a social situation, but rather in respecting the fact that they cannot have them. [...]. It is very difficult to accept the conclusion that the person who ‘formally’ does not take care of a child, which may be substantiated by objective reasons, lacks dignity.“

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Z dziejów prawa prywatnego i cywilistyki w Czechach i na Morawach

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Banaszkiewicz B.

Kwartalnik Prawa Prywatnego

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2022

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tom 31

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nr 2

191-226

EN

The article provides an overview of the Czech book Dějiny kodifikace soukromého práva v českých zemích (History of private law codification in the Czech lands; the second edition 2022 by the publishing house Leges, Prague). The authors of the book are Ondřej Horák and Jakub Razim from the Faculty of Law at the Palacký University in Olomouc, Moravia. In the six chapters of the book, the following topics are covered: law in historical perspective; premodern law in the Czech lands; premodern codifications in the Czech lands; modern codifications in the Czech lands (since the 18th century); relevance of the tradition for the codifications and inspirations influencing them; development of private law theory in the Czech lands. The author of the article, who assesses the book as valuable and inspiring to read related writings, discusses selected facts and opinions presented in the book, sometimes adding his comments or quoting other publications to which Horák and Razim refer.

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Uwagi o „Zasadach z Yogyakarty” (The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity)

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Banaszkiewicz B.

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2010

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nr 1 (1)

24-29

EN

The author delivers a polemic with the paper published in 2007 by an unofﬁcial international group of experts. The group’s aim is to send a message to all countries indicating extensive consequences of general guarantees provided by international human rights law, especially for the purpose of individual’s protection against sexual and gender discrimination. The author does not deny an individual right to deﬁne his/her private life without interference from the state or private parties. However he criticizes the group for its demand – made in a spirit of a modern interpretation of traditional human rights – for afﬁrmation and the so called equality of individual’s decisions regarding sexuality in the areas where the state is obliged to guarantee „institutional space” or „institutional infrastructure” for privacy and the right to procreate. For instance, this relates to legal deﬁnition of a family. The author claims that deﬁnitions of „sexual orientation” and „gender identity” are not commonly recognized and understood in the same way. This thesis relates to the attributes of a private life which are impossible, or hardly possible, to be measured on the basis of external indications or declarations, the ones which individuals should be entitled not to disclose to the state or anyone else. Repeating the phrase „regardless of sexual orientation or gender identiﬁcation” in the text of the paper implies public and political importance of these attributes. Whereas the author wonders whether the Yogyakarta Principles amount to a form of discrimination and improper political campaign using the individual's private life details without their consent.

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Zjazd prawników państw słowiańskich w 1933 roku

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Banaszkiewicz B.

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2018

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tom 27

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nr 2

289-344

EN

The Congress of lawyers of the Slavic states took place in Bratislava, Czechoslovakia from 8 to 10 September 1933. It brought together 1567 people (participants and special guests), primarily representatives of jurisprudence and legal practitioners from Bulgaria, Czechoslovakia, Yugoslavia, and Poland, whereas there were no lawyers from the USSR. The main purpose of the Congress was to establish personal connections and to manifest the willingness to cooperate. Ten sections focused on substantial issues, investigating fifteen major questions. The discussion was held in the participants’ languages as well as in French. During the sessions in the sections the following questions were discussed and then summed up in final conclusions (resolutions): “Unification of the law of obligations in the Slavic states”; “Unification of marital law in the Slavic states”; “Steamboats as an object of mortgage”; “Unification of law on bills of exchange in the Slavic states”; „Unification of execution, bancruptcy and arrangement procedure provisions in the Slavic states”; “Responsibility for crimes committed pursuant to an order of a superior”; “Necessity and scope of criminal law unification in the Slavic states”, “Should the participation of citizens in criminal traials (as jurors or non-professional associate judges) be recommended?”; “The common principles of acquiring the citizenship and the municipality affiliation in the Slavic states”; “Administrative courts”; “The economic cooperation between the Slavic states”; „The common basis of the history of Slavic laws”; “Unification of international private law in the Slavic states”; “The relationship between church and government in the Slavic states”; “To what extent should the limitation of property right be recommended?”. The author discusses the ideological and political background of the 1933 Congress and makes comments as to why the idea to organize the next congress was not successful; introduces the figure of Cyril Bařinka, a Czech attorney working in Bratislava, who was the spiritus movens of the Congress and its General Secretary; depicts the preparation and the course of the Congress; provides a general overview of the topics disscussed at the Congress and its final conclusions.

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Demokracja pod specjalnym nadzorem. Uwagi o sędziowskim aktywizmie i granicach zmian konstytucji

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Banaszkiewicz B.

Forum Prawnicze

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2011

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nr 1 (3)

56-68

EN

Referring to the decision of the Constitutional Court of the Czech Republic described in the same issue by Zdeněk Koudelka the author considers the decision a model example of judicial activism (JA). Mainly in the context of Polish experiences, he analyses the speciﬁc syndrome of political JA. The area in which JA can manifest itself with all its might is the constitutional jurisdiction with its role of the controller of law constitutionality. However, it is also visible for instance in these decisions of the European Court of Human Rights from which parliaments and governments of the European democratic countries learned with disbelief that the negotiated, signed and ratiﬁed Convention results in a ban on practices which at the moment of concluding the Convention were in these countries regarded as normal and obvious. Political JA should not be regarded as an absolute evil. Exceptionally, it can be justiﬁed, e.g. if it is to save human beings (preventing from the abortion legalization) or to protect the democracy from its eliminating on a legal way or to protect from other form of an evident “tyranny of the majority“. However, the opportunities to act like this are extremely rare in the democratic system, and the cases of „an everyday” political JA are much less convincing although their ofﬁcial and unofﬁcial justiﬁcation tends to indicate the threats which the disputable decision would eliminate. Hans Kelsen, the author of a Central European model of the constitutional jurisdiction, has warned against certain forms of political JA. The author also wonders whether the Polish Constitution would allow for any arbitrary amendments to its wording, or whether the Constitutional Tribunal could invalidate some amendments although the required procedure of their introduction was kept if they infringe “the unchangeable material core of the constitution“. Regardless of lack of the explicit indications in the text of the Polish Constitution, the idea of a limited competence of the constitutional lawmaker has a reasonable justiﬁcation and deserves a comprehensive discussion.