Browsing by Author "Jakubowski, Aleksander"

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    Akty indywidualne z zakresu gospodarowania zasobem mieszkaniowym gminy
    (Wydawnictwo Naukowe UAM, 2015) Jakubowski, Aleksander
    The management of the municipal housing stock is a way of implementing state housing policy as stipulated in the Constitution (Art. 75). It is handled by municipalities under administrative law and civil law. Individual legislative acts regulating management of hosing stock result in considerable diff erences in judicial decisions delivered in case law. In the resolution of 21st July 2008 (I OPS 4/08), the Supreme Administrative Court confi rmed the two-tier character of proceedings in matters regarding the municipal housing stock: that of administrative law and that of civil law. However, subsequent case law decisions determined that the civil law element prevails. As a consequence, administrative courts fi nd themselves incompetent to review individual acts governing the municipal housing supply. At the same time, courts-of-law do not seem to guarantee any eff ective protection of individuals in such matters. Research has confi rmed that the lettings procedure with regard to renting a fl at from the municipality housing stock consists of two elements. The administrative element covers the issue of the distribution of public property. It comes down to the resolution “whether” to let a particular fl at and the decision “to whom” it can be let . Administering scarce resources is always a public matter. A legislative act issued in such proceedings falls under the competence of the administrative courts and the procedure to be applied is determined by acts of local law and the principal guarantees of procedural fairness which are refl ected in relevant general principles of the Code of Administrative Procedure. The civil law element pertains to negotiations about the content of a lease/rental agreement and the procedure for entering into it, which as such should be reviewed by the courts-of-law. Nevertheless, the conclusion of a valid lease agreement is contingent upon a relevant decision issued by a municipal authority in favour of a given individual.
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    Patenty uprawniające do uprawiania turystyki wodnej na jachtach żaglowych – zagadnienia prawne
    (Wydawnictwo Naukowe UAM, 2017) Jakubowski, Aleksander
    The article considers the issue of sailing licences which include: a sailor licence, a steersman licence and a captain licence. The legal character of sailing licences and the procedure in which they are issued is analysed. The judicial control of sailing licences is also considered. The granting of a sailing licence is an act confi rming that a person indicated therein has certain qualifi cations required for sailing. The legal character of the licence is similar to an administrative certifi cate. Granting the sailing licence can be conditional upon passing a formal examination by a person requesting the licence to be issued. The examination itself is regarded as an administrative act in law. The study proves that the Polish Sailing Association performs a function of a public administration unit issuing sailing licences. This means that it acts as a an administrative body in a functional dimension. The sailing licence is granted in the form of a declarative decision issued by the Polish Sailing Association. The proceeding for issuing such a decision is an administrative proceedings governed by the Code of Administrative Proceedings. The actions of the Polish Sailing Association as well as its failure to act are controlled by administrative courts.
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    Prawo do nauki (art. 2 Protokołu nr 1 do Konwencji) a numerus clausus w szkolnictwie wyższym – uwagi na tle wyroku Europejskiego Trybunału Praw Człowieka z 2 kwietnia 2013 r. w sprawie Tarantino i inni przeciwko Włochom
    (Wydawnictwo Naukowe UAM, 2014) Jakubowski, Aleksander
    The right to education which is guaranteed in Article 2 of Protocol No. 1 to the European Convention of Human Rights and Fundamental Freedoms is deemed to be fundamental, and provides grounds for formulating the rights of an individual and, corresponding to them, duties of a public government. The right to education includes 3 elements: the right to access the existing institutions and learning programs, the right to receive real and effective education, and the right to have the education completed within the existing recognised educational systems. These three rights also refer to higher education, including the private one, at all levels: bachelor studies, master studies and doctoral studies. As can be noticed in the ECHR decisions, access to education can never be limited on the grounds that are illegal, arbitral, irrational or simply discriminatory. This access must be framed and realised in a manner respecting the principle of equality, which follows from the conviction that everyone is entitled to have not only access to education but also to have this access provided on the same terms as it is provided to all individuals in an analogical situation. The similarity in this context is measured i.a. by comparing the levels of candidates’ capabilities and qualifi cations, which constitute a justifi ed and objective set of criteria. These directives were taken into consideration in the judgment of the ECHR of 2 of April 2013 in the case of Tarantino and others v. Italy. The Tribunal has ruled that the Italian regulation introducing the limit of admissions (numerus clausus) in higher education is in accordance with the right to education stated in the Convention. It was recognised that making the admission to the higher education conditional on the intellectual capabilities of a candidate is justifi ed and consistent with the essence of the right to education. The Tribunal’s ruling has a substantial importance for Polish regulations which are similar to those in the analysed case under consideration. The remarks made by the ECHR exceed the issue of numerous clauses and address the whole substance of the right to education, including the right to gain benefi ts of education or the influence of the conditions of the access to education on the nature of the right stated in the Article 2.
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