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Blankietowość norm prawnokarnych jako problem konstytucyjny

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Kustra A.
Forum Prawnicze
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2012
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issue 1 (9)
20-32
EN
The article aims to answer the question whether and if yes, then under what conditions blanket criminal provisions meet constitutional requirement of definiteness of an offense. This question is one of the most important legal issues that arises at the level of relations between the criminal law and the constitutional law. The rulings of the Polish Constitutional Tribunal relating to this issue show a far-reaching evolution. This evolution has proceeded from the thesis on an absolute prohibition of referrals in the criminal law towards the thesis on conditional permission of using blanket provisions in the criminal law. In the currently established judgments the Tribunal has stated that, from perspective of the constitutional principle of definiteness of an offense, blanket provisions are admissible if they meet the so-called foreseeability test. This test is met if the addressee of a criminal provision is able to determine – merely from the wording of the provision – main elements of the offense. It is worth noting that the Tribunal accepts both the partially blanket provisions and in exceptional situations the fully blanket provisions. The direction of changes in the judgments indicates a definitely needed prag matism in balancing between the protective and the guarantee functions of the criminal law.
2
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The Polish Constitutional Tribunal and the Judicial Europeanization of the Constitution

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Kustra A.
Polish Yearbook of International Law
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2015
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vol. 35
193-216
EN
This article examines the process of the judicial Europeanization of the Polish Constitution. In Poland the judicial method of Europeanizing the Constitution is currently the primary way of adjusting constitutional norms to requirements resulting from EU law. The phenomenon of re-interpretation of constitutional provisions in light of the new and changing realities is a characteristic feature of contemporary constitutionalism. It has been a long time since most national constitutions have undergone significant textual changes. In Poland, the scope of judicial Europeanization of the Constitution is connected, to a great extent, with the inflexible procedure required for constitutional amendments. In this situation, these so-called “silent changes” of constitutional norms are the easiest and fastest way of reacting to requirements stemming from Poland’s EU membership. In the Polish case not only have the norms regarding the political system of the state changed, but also constitutional standards relating to the protection of fundamental rights and freedoms have undergone the process of the Europeanization. To some extent, these changes relate to procedural norms as well.
3
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THE SO-CALLED PARTIAL JUDGMENTS OF THE CONSTITUTIONAL TRIBUNAL (Wyroki zakresowe Trybunalu Konstytucyjnego)

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Kustra A.
Przegląd Sejmowy
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2011
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issue 4(105)
49-73
EN
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.
4
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THE PRICIPLE OF BINDING LIMITS OF APPLICATION IN THE JURISPRUDENCE OF THE CONSTITUTIONAL TRIBUNAL (Zasada zwiazania granicami wniosku w orzecznictwie Trybunalu Konstytucyjnego)

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Kustra A.
Przegląd Sejmowy
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2010
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issue 3(98)
41-59
EN
While adjudicating, the Constitutional Tribunal is bound by the limits of the application, question of law or complaint. This principle, together with the principle of accusatorial procedure, determines the extent of the cognizance of the Constitutional Tribunal. The jurisprudence of the Tribunal shows that it is relatively free in interpreting 'the limits of the application'. Sometimes the Tribunal goes beyond the claim of the applicant (ne ultra petitum), or discontinues the proceedings in relation to part of the claim specified in 'petitum', even if the conditions for this (the pronouncement of a judicial decision is inadmissible or the normative act has ceased to have effect) have not been met. The extension of the limits of application beyond that specified in 'petitum' is reflected by the recognition by the Tribunal of the 'falsa demonstratio non nocet principle' and by the ex officio review of the provision specified in the application from the formal-legal point of view. The review of legality of part of the claim specified in the application takes place when the Tribunal has discontinued the proceedings due to uselessness of the pronouncement of a judicial decision where it held that the subject of the claim does not conform with one of several indicated patterns of review. In such event, the Tribunal's proceedings relate to the conformity of the provision under review with the other patterns indicated in the application. This article presents most important decisions of the Constitutional Tribunal concerning the interpretation of the principle of that the Tribunal is bound by the limits of the application. The examples of the use of systematic and functional interpretation of the above-mentioned principle have no distinct normative basis in Poland's Constitution or the Constitutional Tribunal Act and result from the judicial practice of the Tribunal. As concerns each element of the principle of binding limits of adjudication as described in this article, a relatively established line of Tribunal's jurisprudence may be noticed. Moreover, in principal reasons for its rulings the Tribunal usually presents arguments for extension or limitation of the scope of adjudicated matter in relation to the claim specified in 'petitum' of the application. The to date interpretation of the above-mentioned principle does not threaten the principle of accusatorial procedure before the Constitutional Tribunal. Some doubts may, however, be raised about Tribunal's discretion in the application of the described rules enabling limitation or extension of the scope of review in particular cases.
5
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'EURO-AMENDMENT' PROPOSED IN BILLS AMENDING THE CONSTITUTION OF THE REPUBLIC OF POLAND: AN ASSESSMENT ATTEMPT ('Euronowelizacja' w projektach ustaw o zmianie Konstytucji RP. Proba oceny)

100%
Kustra A.
Przegląd Sejmowy
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2011
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issue 3(104)
31-54
EN
Following several years of Poland's membership of the EU and after the ratification and entry into force of the Lisbon Treaty, the idea of a large-scale 'Euro-Amendment' has reached its 'constitutional moment'. In this article the author makes an attempt to compare two proposals providing for a wide-ranging review of the constitution in connection with Poland's membership of the EU. These include a Presidential Bill which was mostly the result of work of the science team established in 2009 by Bronislaw Komorowski, the then Marshal of the Sejm (Sejm Paper No. 3598) and a Deputies' Bill submitted by members of the Law and Justice Party (Sejm Paper No. 3687). The bills amending the constitution discussed in this article reveal the existence of a political impetus for a far-reaching modification of the basic law in relation to matters connected with Poland's membership of the EU. A comparison of the two bills demonstrates that they differ remarkably not only in the content of the proposed constitutional solutions, but also in some of the bills' general underlying assumptions. The Presidential Bill contains (both in the title of a new Chapter Xa and in its provisions) a direct and explicit reference to the European Union.. On the other hand, the Deputies' Bill maintains the existing provisions guaranteeing unlimited scope of delegation of powers, repeating the current wording of Article 90 of the Constitution, which states that such a delegation is made to an international organization or an international institution Different approach has been applied in relation to amendment of Article 227 of the Constitution (proposed only in the Presidential Bill). Differences manifest themselves also in the concept of 'European policy' of the government and in the method of governing the relations between the executive and legislative branches of government in the exercise of competences relating to the EU membership. Therefore, the passing of the 'Euro-Amendment' of Polish basic law will, in fact, depend on the willingness of politicians to compromise to get a qualified majority of two-thirds of votes in the Sejm and absolute majority of votes in the Senate, as required by Article 235 of the Constitution.
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