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Cofnięcie wniosku i jego skutki prawne w postępowaniu przed Trybunałem Konstytucyjnym

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Królikowski J.

Przegląd Sejmowy

2012

issue 4(111)

101-118

Granting the applicant the possibility to apply for a withdrawal of the application must be assessed positively. Some doubts are, however, raised by the lack of grounds upon which the Constitutional Tribunal could assess whether it is legitimate to discontinue proceedings due to the withdrawal of the application in a particular case. Tribunal’s case law unaniously holds that withdrawal of the application before the hearing is binding on the Tribunal. There is, however, a discrepancy regarding the effects of withdrawal of the application made after the start of the hearing. Adoption by the Tribunal of the principle of the binding nature of the application after the start of the hearing could be justified if supported by the aim of the proceedings before the Tribunal. One cannot assume that the aim of the procedings is to implement the principle of disposition (allowing the Tribunal to discontinue the proceedings). This principle governing the proceedings before the Court, must be interpreted considering the main aim of the proceedings before the Tribunal, i.e. to ensure hierarchical compliance of the legal system. There is no doubt that the proceedings before the Court is directed first to the attainment of this public-interest objective. Given the current judicial practice based on the background of existing legislation, it is appropriate to amend legislation concerning the withdrawal of the application before the Tribunal following the example of the provisions regulating other proceedings under Polish law, consisting primarily in providing the Tribunal with a mechanism for an assessment of legitimacy of the withdrawal of the application. The introduction of such provisions would help better realize the basic function of the Tribunal, which is the review of constitutionality, and thus would contribute to achieve, to a greater extent, hierarchical compatibility within the legal system. It would also effectively prevent any attempts at instrumental treatment of the Constitutional Tribunal by certain entities having the right to make applications.

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1 Przegląd Sejmowy

1 Królikowski J.

1 2012

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Cofnięcie wniosku i jego skutki prawne w postępowaniu przed Trybunałem Konstytucyjnym