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2011 | 4(105) | 49-73

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Where the Tribunal decides that the unconstitutional provisions are not inseparably connected with the whole statute, the President may either sign the statute with the omission of the provisions considered inconsistent with the Constitution or he may return the statute to the Sejm for the purpose of removing the non-conformity pronounced by the Tribunal. Partial decisions refer to recognizing only a partial non-conformity of the reviewed provision, e.g. only to the extent to which the provision could have a retroactive application. The author of this article provides an analysis of the so-called partial judgments made by the Constitutional Tribunal which are classified among the so-called non-classical decisions of the Tribunal. She claims that partial judgments may be defined as judgments in which the Tribunal adjudicates that a particular provision (a norm reconstructed from that provision) is consistent or inconsistent with the pattern of review - not in the entirety of the provision, but only to an extent relating to specified factual basis, persons etc. This definition accentuates legal effects of partial judgment which provides a solution having a limited extent of normative content, expressed in a challenged legal provision. Such a solution may be an affirmative (declaring lack of adequacy) or negative character. Partial judgments of a negative nature are, obviously, of particular significance. They result in deletion of certain part of legal norm without interfering directly in the text of the normative act. Such a deletion leads to changes on the normative level, but does not mean a deletion of a whole norm contained in this provision from the legal system. Based on this definition, the author shows several categories of partial judgments and identifies differences between partial judgment stricto sensu and 'seeming' partial judgment, i.e. those judgment in which the Tribunal uses the phrases 'to the extent' or 'in part', but which have legal effects other the effects of partial judgment stricto sensu. Moreover, the author points out different reasons for using an instrument of partial judgment by the Constitutional Tribunal. Unlike other kinds of non-classical (i.e. interpretative, application or reanimative) decisions which are made by the Tribunal (taking into account arguments for using classical method of adjudication or for modifying the canon of the operative part of a judgment), in some procedural situations, partial judgments seem to be a direct consequence of the principle of accusatorial procedure before the Tribunal. This is also related to limitation of particular entities to submit applications, questions of law and constitutional complaints to the Tribunal as well as the principle of binding character of the extent of the application widely understood. In this context, it is possible to make a distinction between obligatory and facultative partial judgments. Due to the complex of nature of decisions in which the Constitutional Tribunal applies the 'partial' formula, as well as different reasons for, and effects of, their use, it is difficult to make its unequivocal assessment. On the one hand - in case of obligatory partial judgments - they manifest judicial self-restrain. On the other hand, facultative partial judgments provide an example of a widely understood activism of the judges of the Tribunal.





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  • Aleksandra Kustra, Uniwersytet Mikolaja Kopernika, Wydzial Prawa i Administracji, ul. Gagarina 15, 87-100 Torun, Poland


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