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2009 | 4(93) | 25-58

Article title

THE COMPETENCIES OF A CONSTITUTIONAL COURT AND THE LIMITS OF JUDICAL DISCRETION OF THE JUDGES OF THE CONSTITUTIONAL TRIBUNAL (Kompetencje sadu konstytucyjnego a granice swobody orzekania przez sedziów Trybunalu Konstytucyjnego)

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The starting point for this analysis is an assumption that the principle of legalism (specified in Article 7 of Constitution) applies to the Constitutional Tribunal. This means that its ruling actions should be initiated on the basis of a distinct competence norm. The competencies of the Constitutional Court in the area of assessment of constitutionality of statutes are specified exclusively by the Constitution, therefore eliminating the possibility of extension of its competencies by way of a statute. The authors show that the Constitution of 1997 eliminates previous limitations of the activity of the Tribunal and specifies a new different instruments by which the Tribunal can exert influence on the Polish legal order. They point out the consequences of the recognition by Poland of the jurisdiction of European Court of Human Rights and Poland's accession to the European Union. They also focus their attention on the process of interpretation of the legal regulation that serves as a standard of review of the challenged law. In their opinion, the context in which the Constitution operates is required for examination of that process. This concerns, inter alia, identification of a 'historical moment' in which the Republic of Poland finds itself now. The article also deals with the so-called self-restraint of constitutional court judges which requires them to exercise their powers in a way so that interference of the Tribunal within the sphere of competence of organs of other authorities does not exceed that which is necessary. Stability of the judgment line of the Constitutional Tribunal is also discussed. The authors stressed that divergence of jurisprudence is acceptable, but it should not exceed a level which would endanger the legal security of the individual. They also raise the issues concerning the effects of the decisions of the Tribunal. They indicate that the effects of a judgment of the Tribunal finding unconstitutionality are specified in the Constitution, i.e. the loss of the binding force of the unconstitutional provision together with the possibility of undermining decisions taken on its basis. Moreover, the Constitutional Tribunal may specify another date for the end of the binding force of the unconstitutional act. In the authors' view, the basic law does not contain other provisions concerning competence, which would authorize the Tribunal to shape the effects of its decisions in a specific manner. For these reasons the authors express doubts about admissibility of decisions in which the Constitutional Tribunal would specify, in the operative part, the effects of the entry into force of its judgment. This covers the instances in which the Constitutional Tribunal, firstly, excluded the possibility of quashing the decision based on the unconstitutional norm by the addressees of the unconstitutional norms and, secondly, made settlements relating to individual matters providing background for the review of constitutionality. To sum up, the authors state that the Constitutional Tribunal enjoys considerable public confidence.





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  • Marek Zubik, Uniwersytet Warszawski, Wydzial Prawa i Administracji, ul. Krakowskie Przedmiescie 26/28, 00-927 Warszawa, Poland


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