Some comments on constitutional audit’s subject  and its functions in Poland

The article brings up the theme of the Polish model of constitutional audit’s subject and its functions, in context of the Supreme Court Judgment – case III PZP 2/09 – related to the Constitutional Tribunal “negative and interpretational” rulings. The first part contains some theoretical (and polemical) comments on these kind of rulings in view of the meaning of terms like “law regulation”, “general legal norm” and “specific legal norm” and also relations between them. The remaining part takes into consideration legal functions of the Constitutional Tribunal rulings and also its general and specific consequences for the Polish legal system.

The Results of the Constitutional Tribunal Judicature with  the Deferred Clause in the Administrative Judicial Procedure

Under the Art. 190 para. 3 of the Constitution of the Republic of Poland of 1997 a judgment of the Constitutional Tribunal come into force from the day of its publication. However, the Constitutional Tribunal is able to specify another date for the loss of validity of a normative act. Such a period cannot exceed 18 months in relation to a statute or 12 months in relation to other normative act. According to the Art. 272 para. 1 of the act Proceeding before the administrative courts in connection with the Art. 190 para. 4 of the Constitution a party can demand reopening proceedings, or quashing the decision when the Constitutional Tribunal judged about the non-conformity of the act to the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued. Above mentioned legal regulations put the courts into hard situation, because the judgment of the court, which has been pronounced according to the legal act, which has been declared by the Constitutional Tribunal as unconstitutional, could, after the end of the validity, be resumed by reopen proceeding. There are contrary opinions how to solve the presented problem. Both the judicial decisions and the legal doctrine present two different positions: • the court must apply the legal provisions, which have been declared by the Constitutional Tribunal as unconstitutional, because they remain a part of the legal system, till the moment they are removed from the legal order after the period of postponement, • the court is able to refuse to apply the unconstitutional legal provisions. The text discusses different points of view on that topic as well as legal consequences of deferment of the date by the Constitutional Court on which a normative act loses its validity.

The definite character of legal regulations  in judicial decisions of the Constitutional Tribunal

The subject of this paper is the definite character of legal regulations. The author has undertaken to analyze one of the most significant legal problems – the problem of proper legislation. The definite character of the law – as principle of the proper legislation – binds the legislative body in creating the law. It forces the legislature to formulate legal rules in a correct, precise and a clear way. And it is a violation of the Constitution to establish legal rules that are vague and ambiguous and that do not allow citizens to predict the legal consequences of their behaviors.

Basis of equality in employments – constitutional presentation 

The present article is an attempt to describe understanding the concept of equality, both in doctrine, and in the chosen previous judgments of the Constitutional Tribunal formed over a distance area of entire period of stating. In the study a date and meaning of the basis of equality, its subjective scope, the issue of the relation between the basis of equality and other chosen constitutional principles, and criteria justifying the departure from the basis of equality were clarified. The author of the article is relating deliberations concerning the basis of equality to the issue of employments and the sphere of the employment. Issues of the basis of equality were presented in the field of the labor law through examples taken from the Constitutional Tribunal rulings and on this land they were considering whether a diversifying the situation of employees wasn’t based on any and groundless criteria, and hence whether it didn’t reach the breach of the principle of equality.

The contradictory rule of Tribunal Court proceedings

The article regards to the problem related to the rules that constitutional proceedings based on. Firstly the author describes elements of the contradictory rule in civil law proceedings. It is mentioned that the rule consists of four components: 1) litigious of a case; 2) a plaintiff is suppose to proof their demands; 3) the rule of procedural truth predominates upon the rule of objective truth; 4) protection of individual and private interests. In this part of the analysis the investigatory rule of courts proceedings is presented as the rule that is placed in the opposition to the contradictory rule. The author describes relationship between these two basic procedural rules. In the second part of the article the author focuses on elements of the contradictory rule in Tribunal Court proceedings. He points that this procedure doesn’t have litigious character, that the rule of objective truth is the most important, and the whole procedure is concerned on protection of public interests. These elements are characteristic to court procedures based on the investigative rule. In summary the author indicates that components that are characteristic to the contradictory rule generally do not occur in Tribunal Constitutional proceedings. He finds that the investigatory rule has got basic importance in this procedure.

Judicial Activity of the Constitutional Tribunal and the Secondary Unconstitutionality of Law

In this article, on the one hand the subject of consideration will be the reasons of coming into being the secondary unconstitutionality as a consequence of entry into force a judgment of the Constitutional Tribunal. In the abovementioned context, we should first take into account the principle of accusatorial procedure, which may lead to merely piecemeal elimination of unconstitutionality. In turn, it may effect coming into being more negative consequences than being into force unconstitutional provision. Secondly, it seems that the type of judgment of the Constitutional Tribunal, which is the basis for classifying the norm as secondary unconstitutional, is of considerable importance. On the other hand, possibilities of prevention the secondary unconstitutionality by the Tribunal will be analysed. The question is, whether the Tribunal is able to mitigate the consequences of the principle of accusatorial procedure, particularly whether it is able to modify the scope of the challenged provisions. Regardless of this, judiciary instruments, which enable to form the consequences of the judgment of the Constitutional Tribunal flexibly, seem to be more effective as measures to prevent secondary unconstitutionality. It is worth noting that some of this measures taken by the Tribunal are questioned in the literature.

Implementation of the European Charter of Local Self-government – a few Notes on the margins of the Constitutional case law

The European Territorial Self-Government Charter (Charter) was ratified by the President of the Republic of Poland on November 22, 1993 and entered into force on March 1, 1994, being one of the first sources of harmonization of EU Member States’ legislation in matters of local self-government and its units. The observance of the provisions of the Charter by its signatories is supervised by the Congress of Local and Regional Authorities, through systematic monitoring and regular dialogue with the governments of the member states of the Council of Europe. The delegation of the Congress conducted a monitoring visit in Poland on 5–7 June 2018. The draft report and recommendations in the form of a report are to be published in March 2019. The aim of the article is to analyze how the Polish authorities referred to the weaknesses identified during the previous monitoring visit, which took place in 2015. Importantly, these problems were also reflected in cases referred to the Polish Constitutional Court. It should also be noted, that although in most cases, the provisions of the Charter did not constitute a standard of control (they were not indicated by the initiator of the Tribunal’s proceedings or the proceedings in this scope were discontinued), the provisions of the constitution guarantee (if indicated in the petition of the complaint or motion) issuing a judgment consistent with the spirit of the Card.

Disciplinary Liability of a Judge of the Polish Constitutional Tribunal

The essence of the article is to present the concept, function and principles of disciplinary liability and the mode of disciplinary proceedings against judges of the Constitutional Tribunal in the context of the ongoing dispute over the independence of each of these constitutional state organs. Disciplinary liability arose from sources of repressive liability and is a special type of criminal liability due to the functions it performs, but also a high degree of ailment. The author argues that despite numerous legal provisions, the model of conduct has not changed, as well as are based on misunderstood axiology, bypassing the principle of nemo iudex in causa sua. I propose, in accordance with the principle of objectivity (impartiality), to submit only disciplinary judges of the Constitutional Tribunal to the Supreme Court for consideration with the simultaneous adoption of an identical mutual principle with respect to judges of the Supreme Court.

The subject of the article is the analysis of the provisions of the Art. 35 (2) of the Act on Local Referendum against the background of the Art. 31 (3) of the Constitution of the Republic of Poland, creating the conditions for admissibility of formulating restrictions on the use of constitutionally specified provisions the rights and freedoms of the individual. The aim of the study is to determine whether the statutory regulation under review remains compliant with the constitutional principle of proportionality regarding the citizen’s right to a court. The main thesis is that the disposition of the Art. 35 (2) of the Local Referendum Act does not infringe the individual’s rights related to the pursuit of claims related to unreliable referendum campaigns.

The purpose of the article is to draw attention to the jurisprudence of the Constitutional Tribunal in the context of the issue related to the same principles of access to public service, which are guaranteed by the Art. 60 of the Polish Constitution.The analysis of the Court’s judgments makes it possible to relate the interpretation of this provision to the principle of proportionality and equality before the law. Both in the jurisprudence of the Tribunal and the Supreme Court, attention is paid to the transparency and openness of the rules used to determine the requirements related to taking up public office functions.

In 2015-2020, support for the Law and Justice party was to remain stable. In autumn 2020 political decisions were made on issues that polarized public opinion. At the same time, a decline in polling support for the government was observed. The aim of the article is to explain changes in support with the use of a circular matrix.

Compulsory legal representation in the proceedings before the Constitutional Tribunal

 The aim of the article was to analyze compulsory legal representation in the proceedings before the Constitutional Tribunal, mainly based on jurisprudence of the Constitutional Tribunal related to this institution. For this purpose, the essence and scope of this institution, as well as subjective and objective exclusions have been presented. Attention was also paid to the participation of foreign lawyers in the proceedings before the Constitutional Tribunal. Finally, the need to reform this institution was raised.

Role of the Peruvian Constitutional Tribunal in solving the constitutional crisis of 2017–2020

The Constitutional Tribunal in Peru is a special institution in the constitutional system that, after the resignation of President Pedro Pablo Kuczynski in 2018, has become the arena of the struggle for influence between the parliament and the president. What was the role of the Tribunal in solving the political crisis of 2017–2020 and what is the impact of these relations on shaping the rule of law standards? In conclusion, it should be noted that the organization and principles of functioning of the institution of the Constitutional Tribunal goes beyond the traditional division into executive, legislative and judicial power, granting it extensive powers, however, making it vulnerable to corruption generating mechanisms of power

The Ombudsman and the Organs of Judicial Power

The author shows that, in order to protect rights and freedoms, the Ombudsman, with the help of various instruments and depending on the infringements found, undertakes actions with organs of the judiciary, on which obligations concerning the protection of human rights and other subjects have been imposed. This article reviews the forms of the Ombudsman’s relations with the Supreme Court, the Supreme Administrative Court, the Constitutional Tribunal, and common courts. Their aim is to raise the level of respect for human and civil rights. In this context the thesis of the article is as follows: in view of structural, legal and organisational defects of the state, the Ombudsman notes that new threats to human and civil rights appear, freedoms or rights granted to them are often taken away in a manner inconsistent with constitutional standards, and public authorities exceed the sphere of their powers in an expcessive manner. Allegations made in complaints against public authorities are often verified by the Ombudsman in the course of inquiries with his participation. The Ombudsman keeps his distance from these bodies, which enables him to influence them in the field of human rights protection, and above all to influence the individuals subordinate to them.

Civil Service in the Jurisprudence of the Constitutional Tribunal

The civil service (c.s.) is a key element of any nation of law. As an institution responsible for exercising the public authority c.s. is not free from political pressure and takeover attempts for the purposes of the party. Polish experience in the creation of a politically neutral c.s. has not been impressive. The first regulation was created during the interwar period. After the World War II, the idea of an independent and professional c.s. was gradually dismantled to be completely abandoned in 1974. After the collapse of PRL, until 1996, there were several unsuccessful attempts to revive c.s. In that year the parliament adopted a basis for the c.s. system but even that attempt was subsequently revised in upcoming years by further changes (three new acts of law). Moreover, it has to be pointed out that during those years the actions of decision-makers concerning the c.s. have been the subject of jurisprudence by the Constitutional Tribunal. The rulings issued by the Tribunal have shaped the operational conditions which are important for c.s. and have developed an interpretation of the constitutional axioms of that institution. Analysis of key sentences of the Constitutional Court is the subject of this paper.

Exegesis of the substantive scope of a constitutional complaint – main problems

One of the conditions characterizing the institution of a constitutional complaint is its material scope. The provisions of the Constitution that define a constitutional complaint in the Polish legal order provide grounds for divergent interpretations, in particular the understanding of the phrase „other normative act”. In the article, the author refers to the most important problems arising from the interpretation of the term in question, which have appeared in the jurisprudence of the Constitutional Tribunal.

Constitutional complaint and allegations of breaches of the legislative procedure

I am in favour of the possibility of questioning the course of the legislative process in a constitutional complaint. The objection/the allegation could only concern the procedure of adopting a normative act containing a provision constituting the legal basis of an act of applying the law. The act of applying the law must concern the constitutional rights or freedoms of the complainant. With the current procedural regulation, I believe that there is an obligation to examine this issue ex officio by the Constitutional Tribunal. Practice shows that the Tribunal does not examine the correctness of the legislative process in the proceedings initiated by the complaint, neither on the allegation of the applicant nor ex officio.

The essence and status of the constitutional principle of sustainable development (according to the judgments of the Constitutional Tribunal)

The term „sustainable development” is a”constitutional” term in Poland – in the sense that the Constitution uses, but does not define it. In the Polish legal language, it is a relatively new concept, formed in the early 1990s. By not introducing a definition of „sustainable development” into the Constitution of the Republic of Poland, the lawmakers of the constitutional system left it, in practice, relatively open to interpretation. The current study aims to analyze the decisions of the Constitutional Tribunal in Poland, especially concerning the scope of art. 5 of the Constitution, on the basis of which, among others, the principle of sustainable development was put forward.

Legal Question to the Constitutional Tribunal. Expectations and Directions of Changes

This study is devoted to the analysis of the provision of Article 193 of the Constitution of the Republic of Poland, which authorizes each court to submit a legal question to the Polish constitutional court about the compliance of a normative act with the Constitution, ratified international treaties or the act, if the answer to a legal question depends on the resolution of a case pending before the court. It is worth considering the expectations and directions of changes of the analyzed institution against the background of the applicable legal provisions. The practice of applying a legal question to the Constitutional Tribunal needs to be examined. During these more than thirty-five years, the constitutional measure has undergone some transformations. The main goal of this work is to assess the title legal question through the prism of over three decades of its operation.

On the Need to Amend the Constitution of the Republic of Poland of April 2, 1997 with Regard to the Term and Functions of the Sejm and the Senate – Some Remarks on the Background of the Constitution of Czechia and Slovakia

The scope of this article is to show the proposed amendments to the Constitution of the Republic of Poland of 1997 with regard to the term and functions of the Sejm and the Senate in Poland. The analysis shows that the provisions of the constitutions of Czechia and Slovakia are more precise, among other things, they more clearly define the parliament’s creative function in relation to the organs of the judicial power. Moreover, the Czech regulation concerning the Senate allows it to strengthen its political significance and position in relation to the first chamber of parliament, i.a. because of its greater role in the legislative procedure. In turn, the provisions contained in the Slovak Constitution protect the parliament against omissions of the head of state. These regulations should serve as a model for amending the Polish basic law.