There is no doubt in contemporary jurisprudence that constitutional norms, including those that enshrine rights and freedoms, not only determine the shape of the relations between an individual and the state (so-called vertical relations), but also influence relations between private entities (so-called horizontal relations). This is so, because private law may not be formed independently of the constitution, which has the supreme legal force, while relations between private entities may not be entirely detached from the rights guaranteed by the state to the parties to these relations. In view of the foregoing, for several decades now, in the legal literature of a number of countries references have been made to the horizontal application of constitutional rights, their horizontal dimension or their horizontal effect.

The need to take constitutional rights into account when shaping horizontal relations is justified in a number of ways. First, it is said that, at present, private entities breach the constitutional rights of an individual more oft en than they are breached by states, particularly those with a democratic system. The assumption that private entities are not bound by constitutional rights would mean that the need to protect these rights in democratic states – given that such rights are respected by public authorities as a matter of policy – might prove superfluous. Secondly, it is pointed out that, because dignity is the source of constitutional rights, the latter – like dignity – must be protected in a universal and uniform, rather than partial and selective, manner. Thus, the application of constitutional rights cannot be restrained only to the sphere of relations between an individual and the state, while considering that the same rights might be violated in relations between individuals. Thirdly, constitutional rights are at present an indispensable element of a democratic constitution, and the latter is no longer merely a normative act that governs the organization of the state and the principles of functioning of public authorities. The constitution enters into new areas of social life, interfering with the shape of relations between employers and employees, parents and children, and consumers and entrepreneurs. Accordingly, given that the extent of constitutional regulation is expanding, the scope of constitutional rights should not be limited solely to relations between an individual and the state.

Regulation of Rights and Freedoms in the Polish Constitution

The Constitution of the Republic of Poland enshrines a sizeable list of the rights and freedoms of an individual, which is itemized in Chapter II, immediately following the general principles. The emphasis on these questions in the Constitution's systematics proves the great importance attached to them by the constitutional legislator. Chapter II of the Constitution starts with the three guiding principles, i.e. the principles of dignity, equality and freedom. An inherent and inalienable human dignity is identified as the source of the individual's rights and freedoms. It does not, however, make these freedoms absolute, because almost all constitutional rights and freedoms may be restricted by the public authorities, subject to the conditions identified in Art. 31 para. 3 of the Constitution. The restrictions can be introduced only in statutes and only to the extent to which they are necessary in a democratic state for the protection of security and the public order, the natural environment, health, public morals, and the rights and freedoms of other persons. However, these restrictions cannot violate the essence of such rights and freedoms. The rights and freedoms of an individual are worded in the Constitution in various ways. Some provisions state that a given person ‘shall have the right,’ and in others legal protection is accorded to specific interests of an individual, such as his work or property. Other provisions protect a certain freedom without naming the person who enjoys it, using the following expressions ‘freedom (…) shall be ensured’ (e.g. Art. 49, Art. 50, Art. 61 para. 1, Art. 62 para. 1) or ‘the Republic of Poland shall ensure protection’ (Art. 38, Art. 72 para. 1). Yet another group of constitutional provisions place emphasis on the universality of certain freedoms, with the expression ‘freedom shall be ensured to everyone’ (e.g. Art. 52 para. 1, Art. 53 para. 1, Art. 54 para. 1, Art. 57). However, none of these kinds of provisions have given rise to any major problems in decoding constitutional rights and freedoms.

But such problems have arisen with respect to some of the provisions in the subchapter on ‘Economic, Social and Cultural Freedoms and Rights,’ which generally do not expressly mention any rights or freedoms of the individual, but rather, address the state's obligations.

The opening thesis for this monograph was the assertion that horizontal relations may not disregard those rights and freedoms which the Constitution guarantees to their parties. The constitutional provisions in this field have a restrictive impact both upon norms of private law, which must have regard for constitutional norms relating to rights and freedoms of an individual, as well as decisions by private entities that should shape their mutual relations with due regard for those rights. Thus, constitutional rights set the limits for the freedom of contract, or, more generally speaking, the autonomy of will of private entities. Endowing constitutional rights with a horizontal, and thereby also a universal, dimension is a necessary condition for ensuring their real protection. In a contemporary democratic country, it is usually not the functioning of state authorities, but that of private entities that poses the greatest threat to constitutional rights and freedoms. Some of these entities exercise powers comparable to state powers, and thus have a state-like capacity to subjugate individuals. Doubts as to whether these entities and their functioning fall under the private law or the public law trigger further doubts as to the nature of legal relations they engage in. It is so, since these relations are less and less traditional horizontal relations between equal entities, and more and more vertical relations resembling those existing between an individualand the state.

The main purpose of my research was to answer the question of how and to what extent constitutional rights can apply in horizontal relations under the Polish Constitution. Determining the effect of these rights was preceded by analyzing constitutional provisions, judicature and jurisprudence in selected countries, where this problem has enjoyed enduring popularity for decades now. This analysis allowed distinguishing three models of the horizontal effect of constitutional rights. These models are neither mutually exclusive nor do they compete with one another, hence their concordant application is possible and even desirable. Each of these models views the effect of constitutional rights in horizontal relations from a different perspective, and all of them pursue the same goal, namely guaranteeing an effective protection to an individual at all possible planes of his activity.

In case law there are a few models of the horizontal effect of constitutional rights of an individual, which models are not mutually exclusive, but rather complementary, because to a certain extent they can be applied at the same time. These models can be condensed down to four major ones, i.e. the model of the direct effect of constitutional rights, the model of their indirect effect, the model of the state's protection obligations in horizontal relations and the model of constitutional rights’ effect in horizontal relations under the banner of state action. All these models emerged and evolved through judicature, while the role of jurisprudence was mainly to describe them, systematize, justify and provide theoretical support for them. In effect, as a product of courts’ activity, these models have not been fossilized and cemented, but can be said to be constantly evolving and developing, taking into account all new changes which occur in the contemporary world.

In my further reflections I attempt to determine the extent to which these models can be implemented in the Polish constitutional reality. However, in these reflections I omit the last of the aforementioned models, i.e. the state action model applied in the US. This model assumes that the Constitution applies in vertical relations only and if it formulates any prohibitions, they are targeted at the state and not an individual. In this model, the notion of ‘state action’ is understood broadly and covers, subject to certain conditions, also the cases when constitutional rights are actually infringed by a private entity. The US Supreme Court assumes that state actions which violate constitutional rights may include both actions of a private entity discharging, for instance, a public function transferred to it by the state and actions of a private entity supported by the state to such an extent that it is reasonable to attribute the infringements of constitutional rights perpetrated by that entity directly to the state. But the basic assumption of the model, namely that the Constitution applies in vertical relations only, is not approved in the Polish jurisprudence and judicature, and even though some of its solutions can apply to the Polish constitutional reality, I decided to leave it out of the further reflections due to its particularities.

Preliminary Remarks

Acceptance of the approach according to which constitutional rights may have a horizontal dimension raises a question of the extent of their influence upon relations between private entities. The essence of this type of relations lies in both the parties being the beneficiaries of constitutional rights; hence, both the parties may invoke these rights demanding respect and protection for them. In the event of a collision of constitutional rights, it is necessary to delineate the scope of the horizontal effect of each of those rights, so that they can be exercised by both the right holders to the greatest extent possible. The idea of the scope of the horizontal effect of constitutional rights under the Polish law is most generally expressed in Art. 31 para. 2 of the Constitution, which imposes upon everyone an obligation to respect the freedoms and rights of others. At the same time, the successive paragraph of this Article grants to the legislator the right to interfere into horizontal relations in order to restrain constitutional rights of one entity in order to protect constitutional rights of another entity. Eventually, it is therefore the legislator, and then the court, that determines the scope of the horizontal effect of constitutional rights. The former will do so in an abstract manner and the latter in a tangible manner, taking into account the merits of the examined case. The purpose of this chapter is to describe the most optimum mechanism that would allow distinguishing, on an abstract and concrete planes, the constitutional rights that remain in a collision in horizontal relations.

The Notion of Collision of Constitutional Rights

Collision of constitutional rights is a phenomenon which is inscribed in the very heart of their existence. Two constitutional rights vested in two different entities driven by the desire to pursue their own, oft en opposing, interests inevitably trigger a collision. The legislator is far from attempting to prevent a collision of constitutional rights; quite the contrary – it attempts to describe and regulate it as one of many circumstances that simply occur in social life.

Collision is defined as a concurrence of something that is incompatible or conflicting with something else, a clash of a moving object with another object, or simply a dispute, conflict or feud.

The Period Preceding the Drafting of the Constitution

Although after World War II, the issue of the horizontal effect of constitutional rights was widely discussed across many European countries, particularly in Germany and Switzerland, it was basically not taken up at all in the Polish legal literature. The reason for the lack of interest in this subject in Poland was above all the politicization of the then binding Constitution of 1952 as well as disrespect for the rights of the individual that was laid down in that Constitution and the marginalization of those rights by communist authorities. That Constitution was denied a normative quality through the recognition that it was not apt for direct application. Its norms were believed to be too general, and to always require concretization by statutes. The Constitution itself did not confer any specific protective tools to individuals in the event of the violation of the rights or freedoms enshrined in it. The approach of the jurisprudence during that period was shaped by a resolution of the Supreme Court of 12 February 1955, Ref. No. I CO 4/55, which stated: ‘Constitutional norms construe basic legal principles, constituting the axis of the supra structure of laws, which as a rule is unsuitable for direct practical application in everyday life of the society, unless expounded in statutes and other normative acts.’ Accordingly, since the applicability of the Constitution was challenged even in vertical relations (between the individual and the state), it was completely pointless to consider its application in horizontal relations (between individuals).

The absence of discussion regarding the horizontal effect of constitutional rights was also a consequence of the perception of the Constitution of 1952 by the then contemporary jurisprudence as a normative act belonging to ‘state law’ and regulating relations between the individual and the state. It should be noted that, in post-war socialist Poland, the distinction between the sphere of public law and private law was not as clearly drawn as in other 14 countries in Europe at that time. Moreover, the public law dominated and marginalized the private law.

Normative Content of the Principle of Direct Application of the Constitution

The principle of direct application of the Constitution is of fundamental importance for the horizontal effect of individual's rights. It is expressed in Art. 8 para. 2 of the Polish Constitution, according to which the provisions of the Constitution shall apply directly, unless the Constitution provides otherwise. The content of this provision first raises a question about the sense of its inclusion in the fundamental law. After all, with regard to other normative acts, the Constitution as a rule does not communicate the principle of their direct application. It is assumed that, because these acts are in force, they should be applied. Moreover, the requirement of applying the Constitution is derived not only from Art. 8 para. 2 of the Constitution, but also from many other provisions thereof. According to them, the Constitution is the supreme law (Art. 8 para. 1) and a universally binding law (Art. 87 para. 1 of the Constitution), while the organs of public authority must function on the basis of, and within the limits of, the law (Art. 7 of the Constitution). Last but not least, if citizens have the duty to respect the law of the Republic of Poland (Art. 83 of the Constitution), and the Constitution itself is an element of this law, then it is included in the body of laws to which they must adhere. All of these points lead to the conclusion that the purpose of Art. 8 para. 2 of the Constitution was therefore not to prescribe that the Constitution must be applied, but to highlight that it must be applied in a special way, that is directly, unless otherwise provided therein. In connection with the foregoing there arises the question of how one should understand the concept of ‘direct application of the Constitution.’

In search for the answer to this question, it is worth noting the call, in the Preamble to the Constitution, to ‘all those who will apply this Constitution for the good of the Third Republic.’ In this case there is no doubt that this 36 requires a very broad interpretation of the term ‘application of the Constitution,’ which goes beyond the application of the law by state authorities.

1. Introduction

The body of contemporary criminal law falls into substantial and procedural criminal law. This division is relatively recent and not to be taken absolutely. Even in the German speaking tradition, where it is developed in a rather clear manner, there is a latent interplay between these branches, for the main procedural endeavour of gathering evidence is reflected in substantial law. If substantial law provides too many obstacles to gathering evidence, substantive norms are often eroded by interpretation or amended to ease evidence. In German law, where a substantive offence (“Tatbestand”) is in general designed to secure a specific legal interest (“Rechtsgut”), one finds exceptions of criminal offences that are designed to secure the interest of getting evidence (“Ermittlungstatbestände”), most prominent in the offence of money laundering (“Geldwäsche”, § 261 StGB).

Apart from the far-reaching division between substantive law and procedural law in the German speaking tradition, there are major legal systems where the division is not as strict. In a more procedural perspective, substantive matters are dealt with in a more pragmatic way. Thus, the separation of justification and excuse, a landmark in German criminal law, is less important in this perspective. This may be illustrated by the fact that the French and the Common Law doctrine has been so influential in International and European criminal law.

Legal practitioners almost naturally defend a pragmatic approach.

1. Introduction

The effective and rapid acquisition and assimilation of information from various sources nowadays constitutes the main factor in both personal and business development. Finding a way for the automatic processing, categorizing, recognition and preservation of useful information is often a determinant not only of undertaking success or project, but more often a requirement assigned for the coming generations.

The aim of this work is to show how the use of the semantic analysis of legal texts is able to improve the quality of information provided by lawyers. This is particularly important in the information society in which we live and, as mentioned above, it is vital for the processing of relevant information.

The legal sources of information in the legal domain and in particular the texts of legal documents are sources which have been checked and confirmed and this permits their rapid and more effective processing. The auto-processing of texts in the domain of Polish law constitutes a crucial role in the aspect of digitalization principles and sources of coherent law. The forma-Aization of legal language can constitute here the factor which minimizes the number of errors related to words relations like polysemy or homonymy in existing tools for disambiguation process of Polish texts – in general. We can also use these assumptions in the corpora of legal texts and try to categorize desirable information, to choose what we are directly interested in.

1. Introduction

The reality around us is characterized by the importance of information as well as its high value to the public. The information society needs fast and reliable communication. Due to the wide availability of computers, including mobile ones, information and communications technologies are exploited in everyday life (electronic shopping, banking, entertainment, source of knowledge). We are witnessing the digitalization of life.

Regardless of the area of application, the use of computers is based on the processing and storing of data (numbers, digits, characters of different format). Such processing is performed with algorithms and it is based on the transformation of input data into an output one. A data set internally linked may be viewed as information. The information (in fact, information is an indefinable term) is recognized as structured data, the message transmitted, having a simple or aggregated form (note that it is often mistakenly believed that information and data are synonymous). Due to the nature of information, the processing of information is based on the processing of information codes and depends on its simple (atomic) or complex (aggregated) form. Such codes, generated with dedicated algorithms, are processed on the lower level as data. The aim is to transform data into information codes and then information into knowledge.

Information processing problems are related to the (1) adequate representation in form of data (information codes; including storing issues) and (2) nontrivial algorithms used to process information (codes) into new information or new way of its information.

1. Introduction

Nowadays, many publications are being written about the information culture which is the system of attitudes to the information and communication technologies. It constitutes an aspect of the development of an information society, conditioned to a degree by the intellectual liberation from the forces and resources of the nature. It is a kind of culture, based on a state of knowledge and the forms of social coexistence, using the information technologies. Its specific area is a culture of the Internet. According to Castells, this culture of the Internet is composed of four freedom cultures: the techno-meritocratic (technical), the hacker (creative), the communitarian (communal) and the managerial (entrepreneurial) cultures.

The nature of the Internet is shaped not only by Internet surfers such as Internet technocrats, hackers, communitarians and managers, but also by the legislator. We can speak about its genetic and internal self-regulation and about the subsequent and external state regulation. The increasing importance of the Internet is at the same time the cause and the effect of the growing litigiousness of the relations established by it, and the positivisation of the rules worked out within it. We can observe a growing diversification of endogenic and exogenic regulations regarding the Internet, in the direction extending its autonomy, but also its dependence on the State. It is connected with the interpenetration of many spheres – natural and artificial, real and virtual, humanistic and technical.

1. Introduction

The digital revolution that has taken place over the past two decades with the gradual development of the Internet has profoundly altered the means of promoting and selling products and services offered by business entities. In these changed circumstances disputes concerning the situation relating to the use of the Internet by commercial companies are increasingly present. However, changes to the law cannot keep up with the pace of technological development. Consequently, the resolution of such disputes often requires the use of traditional legal concepts that were not originally designed for application to virtual reality. Such disputes may indeed raise questions about the meaning of such traditional legal concepts. One example which can illustrate this problem is related to consumer protection, well established in relation to contracts in the real world, but uncertain in virtual reality.

It is important to note that the consumer contract differs from other types of contracts. Usually consumer contracts are pre-drafted by one party (professional trader), without the possibility of an amendment or re-negotiation of its content. Consumer contracts are usually executed between parties with unequal market power and knowledge. This is particularly true for B2C (business-to-consumer) digital content contracts. In order to protect the consumer in B2C transactions, the separate body of law was created on the level of EU and subsequently in Member States legal systems.

1. Introduction

Communication shapes legal practices and therefore the implementation into them information and communication technologies (ICT) influences also the way in which law is drafted and promulgated. It leads not only to automation of search and analysis of legal documents, but it opens up as well new ways to manage, visualize and share legal information, and gives new possibilities of work flow control during the legislative process.

Although the implementation of ICT into the legislative process increases its effectiveness, it makes it also dependant on the technological standards used by legislators and their interoperability. Moreover, it entails adjustment of legislative practices to both the requirements and the potential of the new technologies. This is because the informatization of the legislative process involves the development of new tools, which are necessary for making and publishing legal documents in an electronic format, i.e. dedicated editors to tag the texts of legal acts in XML, converters enabling conversion of documents stored in one format to another format, XML Databases to store tagged documents, to manage and verify various versions of legal documents, work flow management platforms for legislative or parliamentary activities and URI/Link resolvers for connection to resources of various lawmaking authorizes.

One of the major changes resulting from the developments and implementation of ICT into legislative processes is the appearance of new ways in which legal documents can be promulgated and consolidated.

1. Introduction

The use of information technology within the law is typically seen as the process of capturing and digitalizing legal decisions for easy dissemination, for example through databases. However, information technology can also be seen as affecting the actual law-making process. This arguably is the case with the use by the labour unions in Sweden with respect to information technology and social media in the collective bargaining process. Due to the uniqueness of the Swedish labour law model, this use can be seen as directly affect the making of the law, here collective agreements. The use of information technology within this setting raises the question of whether democracy in the workplace is enhanced or restricted. This article first sets out the parameters of the Swedish labour law model, and then looks at the relationship of the social partners and their members. The third section takes up the use of social media and information technology by certain of the Swedish social partners. The article concludes with a discussion whether this use moves the law forward, or instead, leaves the law-making simply in the hands of those who are most technically savvy, in essence diminishing democracy in the work place as opposed to expanding it.

2. The Swedish labour law model

The Swedish labour law model (den svenska arbetsrättsmodellen), established already at the turn of the twentieth century, is characterized by a high degree of self-regulation between the social partners.

The computerization of legal turnover, legal drafting and the application of law is gradually making them dependent on information technology. This justifies the importance of a number of considerations concerning the technological dimension of legal practice. Given the potential benefits and risks associated with the progressive digitalization and computerization of legislation and the growing importance of the Internet, the issue of the role and uses of information systems in the legal domain requires careful, multi-dimensional analysis.

The impact of information technology on law is still an open question. However, there is no doubt that these technologies are changing the way in which law is created, communicated, applied and interpreted, since they provide new ways of sharing, searching, communicating and analyzing legal information. Communication imposes on human practices and, in particular on legal practices, many specific requirements and restrictions. Therefore, the implementation of new technologies into communication processes cannot only help to overcome some traditional problems, such as allowing, for instance, the improvement of existing practices, but it may also cause new problems or make old ones even graver. For example, the development of information technologies may result in the creation of new goods and services, or may change the scope or the field of application of traditional ones. It makes new risks appear, requiring the reinterpretation of existing rules or the introduction of new regulations.