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  1. 2 Przegląd Sejmowy

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  1. 2 Zubik M.

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  1. 1 2008

  2. 1 2007

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THE TRIBUNALS AFTER TEN YEARS UNDER THE RULE OF THE CONSTITUTION OF THE THIRD REPUBLIC OF POLAND

100%
Zubik M.
Przegląd Sejmowy
|
2007
|
issue 4(81)
151-173
EN
The article deals with selected issues concerning the organization and competence of the Tribunals and their role in the system of government in Poland, i.e. the Constitutional Tribunal and the Tribunal of State (Impeachment Court). The author presents basic foundations of the Constitution of 1997 as well as further legislative changes. The first part of the article discusses the matters concerning the Constitutional Tribunal, particularly the alarming phenomenon which is the undermining of the authority of the Tribunal, especially by politicians. The author reveals the proposals aimed at separation of the procedure for election of the judges of the Constitutional Tribunal from current political disputes, as well as the reforms of the functioning of the Tribunal. He points out the defects of existing regulations concerning constitutional complaints and the procedures for settling disputes of competence. He also examines the scope of jurisdiction of the Constitutional Tribunal, including the assessment of the procedure of taking effect by the normative act within the abstract review of norms. Moreover, he shows the complications resulting from constitutional limitation of the competence of the Tribunal and the effect of its judgments. The second part deals with the problems relating to an institutional shape of the Tribunal of State. He pointed out the inconsistence of Poland's regulations on adjudicating in matters of offences with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He also presents some proposals for changes in the procedures of the exercise of constitutional accountability in Poland.
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THE SYSTEMIC FOUNDATIONS OF INCOMAPATIBILITY OF A PARLIAMENTARY MANDATE

100%
Zubik M.
Przegląd Sejmowy
|
2008
|
issue 4(87)
103-118
EN
The article discusses selected questions relating to prohibition of holding of several offices at the same time ('incompatibilitas') and undertaking of particular activity by persons performing public functions. The Constitution of 1997 takes different approaches to this issue. The differences concern both subjective aspects (i.e. persons and positions subject to such prohibition) and objective ones (i.e. the content of such prohibitions). Sometimes, the Constitution itself imposes the limitations on incompatibility of positions and activities taken by persons performing public functions. (e.g. in Article 209 paragraph 2). It also allows the legislator to elaborate and extend that catalogue. Incompatibility rules play the role of guarantor and are designed to secure proper functioning of public institutions. Nevertheless, at the same time, they constitute limitation on the rights of the individual. Therefore, the principle of 'incompatibilitas' should be harmonised with the freedoms and rights of persons and citizens. The author examines legal solutions and problems which appeared in the practice of their application. He also discusses the jurisprudence of the Constitutional Tribunal concerning the issue, as well as the views of the study of law in this respect.
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