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2011 | 1(102) | 27-42

Article title

THE LEGISLATOR'S RESPONSE TO THE JUDGMENTS WITH DELAYING CLAUSE, ISSUED BY THE CONSTITUTIONAL COURT'S IN 2008-2009 (Reakcja prawodawcy na wyroki Trybunalu Konstytucyjnego z klauzula odraczajaca wydane w latach 2008-2009)


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Where the Tribunal decides that the normative act ceases to have effect after the day of the publication of the judicial decision confirming its non-conformity to the Constitution, ratified international agreement or statutes, it shall, in the judicial decision, determine the date the act shall cease to have effect (the so-called judgment with a delaying clause). The Constitutional Tribunal's judgments with a delaying clause impose on the legislator an obligation to immediately take appropriate steps to adjust the existing legal system to the constitutional standards determined by those judgments. The required modifications should be entered into force within the time limit specified in the operative part of the judgment. The author of the article provides a review of the legislative work in relation to the judgments with a delaying clause issued by the Constitutional Tribunal in the years 2008-2009. Apart from the detailed description of the results of the research, the article contains remarks and suggestions which - in the author's view - would improve the process of implementation of the judicial decisions. Legislative work concerning judicial decisions with a delaying clause is being undertaken immediately and there was no failure to respond as required by law. However, some irregularities have been noticed. Most of all, every second judgment with a delaying clause is executed after the date specified in the Tribunal's judgment. In extreme cases, the delay may exceed ten months. Despite the requirement for immediate restoration of constitutionality, in fact statutes executing judgments come into force close to the date of the specified delay. From time to time, sham actions take place resulting in the adoption of provisions similar to those already declared (in the judgment) to be unconstitutional. The system of monitoring of the progress of work on bills related to judgments with delaying clause requires improvement, and this task should be given priority at all stages of legislative process. One should also consider advisability of the adoption of legal provisions empowering the Tribunal to resolve doubts whether or not a given statute fully executes the judgment. The response of the lawmaking bodies to judgments with delaying clause sometimes does not correspond to expectations. Nevertheless, we should believe that it would have no considerable influence on the Tribunal concerning its future position about the rightness of the use of this instrument in relation to a particular case.





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  • Tomasz Esmund, Biuro Trybunalu Konstytucyjnego, Al. J.Ch.Szucha 12a, 00-918 Warszawa, Poland


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Publication order reference


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