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REBUTTAL OF PRESUMPTION OF CONSTITUTIONALITY OF A NORMATIVE ACT BY THE CONSTITUTIONAL TRIBUNALS

100%
Radziewicz P.
Przegląd Sejmowy
|
2008
|
issue 5(88)
55-87
EN
The article is devoted to 'presumption of constitutionality' of laws, and particularly the application of this notion to the review of constitutionality of normative acts by the Constitutional Tribunal. The principle of presumption of constitutionality is important for both the participants to proceedings before the Tribunal, for whom it distributes the burden of proof, and the constitutional court itself, by establishing interpretative rules which shape the line of its decisions. For some time, a view has been established in the jurisprudence of the Constitutional Tribunal that rebuttal of 'presumption of constitutionality' of laws has a universal value (erga omnes applicability). From this point of view, 'presumption of constitutionality' should also be treated as a legal effect of a judgment finding hierarchical inconsistency of a legal provision, which may have potential impact on the sphere of rights and freedoms of the person and the practice of functioning of some organs of the State (including the common courts and administrative courts). Some exemplary questions which are connected with the above-mentioned issue may relate to: the meaning of the act of pronunciation of the judgment of the Constitutional Tribunal; the legal nature of 'presumption of constitutionality'; relations between rebuttal of 'presumption of constitutionality' of a law and the repeal of a legal provision; the effects of rebuttal of 'presumption of constitutionality' for the sphere of application of law. Moreover, the article deals with the following issues: the moment in which the effects of the judgment of the Constitutional Tribunal come into existence; direct application of the Constitution by common courts and administrative courts; justification of 'adjournment' (postponement) by the Tribunal of the date on which unconstitutional provisions lose their binding force as well as the departure by the constitutional court from the paradigm of a 'negative lawgiver'.
2
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THE SO-CALLED PARTIAL JUDGMENTS OF THE CONSTITUTIONAL TRIBUNAL (Wyroki zakresowe Trybunalu Konstytucyjnego)

100%
Kustra A.
Przegląd Sejmowy
|
2011
|
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.
3
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CHANGES OF THE LEGAL ORDER AND THE PROTECTION OF CONSTITUTIONAL RIGHTS AND FREEDOMS (IMPACT OF TIME FACTOR ON THE PRINCIPLE OF LEGALITY)

100%
Zdziennicki B.
Przegląd Sejmowy
|
2008
|
issue 3(86)
41-53
EN
This article deals with the issue of protection of acquired rights in the jurisprudence of the Constitutional Tribunal. Determining the scope of protection of rightly acquired rights, the Tribunal indicated that it applies, above all, to natural persons and other subjects of private law. However, it does not cover the State Treasury, as, for notional reasons, it is not possible for the State Treasury to raise claims against the State for the purposes of protection of acquired rights or other constitutional rights. The Constitutional Tribunal remarked that absolute protection of acquired rights would result in petrification of the legal system, thereby making the implementation of necessary changes in it impossible. The Constitution allows adoption of the provisions to limit or waive these rights provided that such action is justified by a constitutionally legitimate aim. The author points out the question of derogation of legal provisions as a consequence of finding them unconstitutional as well as the problem of execution of judgments of the Constitutional Tribunal. He stresses that the fundamental task of the Tribunal is to adjudicate whether norms of lower status are in conformity with norms of higher rank, particularly the Constitution. The declaration of unconstitutionality of a given regulation in a judgment of the Tribunal results in the loss of binding force of that regulation. Implementation by the lawgiver of decisions of the Constitutional Tribunal has two aspects: a positive one which includes enactment of necessary changes in the legal system, aimed at ensuring its cohesion and completeness, and a negative one (consisting in the prohibition against adoption of legal regulations having defects which caused the decision finding unconstitutionality). The number of decisions of the Constitutional Tribunal that have not been implemented increases. Serious deficiencies and loopholes in the legal system have been maintained for years and may plunge it into anarchy. Therefore, legal solutions should be found to secure full execution of the decisions of the Constitutional Tribunal.
4

‘THE COURT OF THE LAST WORD.’ COMPETENCES OF THE POLISH CONSTITUTIONAL TRIBUNAL IN THE REVIEW OF EUROPEAN UNION LAW

80%
Dudzik S., Półtorak N.
Yearbook of Polish European Studies
|
2012
|
vol. 15
225-258
EN
In its judgment of 16 November 2011 in case SK 45/09, the Polish Constitutional Tribunal (CT) called itself ‘the court of the last word.’ This self-determination aptly characterises the entire hitherto delivered line of jurisprudence of the Tribunal in European matters. In spite of the persevering doubts as to the scope of its jurisdiction at the juncture of EU and Polish law, eventually the CT has always come to confirm its competence to review the conformity of challenged EU law provisions with the Polish Constitution. The approach of the CT reflects the way the Court understands the constitutional principle of the primacy of the Constitution as the supreme law of the land in Poland. The aim of this article is to present and analyse the legal views of the Constitutional Tribunal regarding the review in Polish courts of European Union law. Firstly the article concentrates on the review of primary EU law as to its compatibility with the Polish Constitution, and then on the review of secondary EU law. The article also tries to answer the question whether the position taken by the Constitutional Tribunal and its argumentation is consistent with both EU law and Polish constitutional law, and what the consequences are for the jurisdiction of the CT and constitutional claims.
5
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QUESTIONS FOR PRELIMINARY RULING IN THE JURISPRUDENCE OF CONSTITUTIONAL COURTS IN THE EUROPEAN UNION MEMBER STATES

80%
Bogdanowicz P.
Przegląd Sejmowy
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2008
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issue 5(88)
89-107
EN
This study deals with relations between the courts of review of constitutionality of legal norms and the European Court of Justice in the field of preliminary rulings. This procedure, referred to inter alia in Article 234 of the Treaty establishing the European Community, empowers - and, in some circumstances, even obliges - national courts to apply to the ECJ for interpretation or assessment of validity of European law, if the answer is necessary to solve the matter in domestic proceedings. The discretion in determining whether a given body is a court in the sense of Article 234 of the Treaty belongs, according to the prevailing Community theory, to the ECJ. Nevertheless, in the opinion of some constitutional courts, such power should be vested in them. The Italian Constitutional Court explicitly held that it would not refer a matter for preliminary ruling. So far this been made only by two courts of review of constitutionality of legal norms: the Belgian Court of Arbitration and Austrian Constitutional Court. This does not however mean that asking such question does not constitute a point of interest of those courts. Due to their special status within national legal order, this problem deserves special attention.
6
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PRELIMINARY EXAMINATION OF CONSTITUTIONAL COMPLAINTS IN THE COURSE OF PROCEEDINGS BEFORE THE CONSTITUTIONAL TRIBUNAL (Wstepne rozpoznanie skarg konstytucyjnych w postepowaniu przed Trybunalem Konstytucyjnym)

80%
Jamroz L.
Przegląd Sejmowy
|
2010
|
issue 3(98)
61-84
EN
This article deals with preliminary examination of constitutional complaints by the Constitutional Tribunal. This procedure is governed by the Constitutional Tribunal Act and the Rules of Procedure of the Constitutional Tribunal. Additionally, pursuant to Article 20 of the Act, the provisions of the Code of Civil Procedure apply, as appropriate, in relation to cases not regulated in the Act concerning the proceedings before the Tribunal. Preliminary examination is the first and obligatory stage of the proceedings in the Constitutional Tribunal in relation to constitutional complaints. It formally begins at the moment of its submission and ends with either the issuance of an order to refer the complaint for consideration or a decision concerning the refusal to proceed with further action, or a decision concerning non-admittance of the complaint against the refusal - if such complaint has been submitted. The stage of preliminary examination of the complaint differs considerably from the successive stages of possible further consideration of the complaint. The difference results, above all, from the fact that preliminary examination has another goal, which is the selection of constitutional complaints aimed at eliminating of those submissions, marked by the applicant as complaints, which cannot be the subject of proceedings in the Tribunal because they do not meet the constitutional and/or statutory requirements (either substantive or formal. At the stage of preliminary examination the Tribunal assesses whether the requirements for consideration of the complaint are satisfied. The popularization of constitutional complaints in Poland is reflected in an increased number of complaints concerning constitutional infringements submitted to the Tribunal. Consequently, the importance of the stage of preliminary examination of complaints grows respectively, as it exerts considerable influence on the scope and way of the exercise of protection of fundamental rights and freedoms guaranteed by the Constitution... The stage of preliminary examination does not constitute part of jurisprudence of the Tribunal; however, it plays an important role in the proceedings concerning constitutional complaints.
7
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Trybunał Konstytucyjny wobec religii w szkole publicznej (kwestie wybrane)

36%
Szymanek J.
Studia z Prawa Wyznaniowego
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2012
|
vol. 15
53-84
EN
The paper looks into the case-law of the Constitutional Tribunal concerning the teaching of religion in Polish state schools. The teaching of religion in a state school has long been attracting attention as a major issue in the relations between the state, churches and other religious organizations. Most of these are resolved by the Constitutional Tribunal, which, however, in the author's view, often advances theses that are debatable, inadequately justified and at times controversial. To support his assertion, the author highlights a decision of 2 December 2009 (file ref. U 10/07) in which the tribunal examined the constitutionality of including the grade in religion in the calculation of the overall pupil's performance. In the author's opinion, in acknowledging the constitutionality of such action, the tribunal assumed a misguided identification of the examined problem.
PL
Opracowanie charakteryzuje orzecznictwo Trybunału Konstytucyjnego dotyczące problematyki obecności nauki religii w szkołach publicznych w Polsce. Zagadnienie obecności religii w szkole publicznej jest dzisiaj jednym z głównych problemów w stosunkach państwa z kościołami i innymi związkami wyznaniowymi. Większość z tych problemów jest rozstrzygana przez Trybunał Konstytucyjny, który jednak zdaniem autora często formułuje tezy wątpliwe, niedostatecznie uzasadnione, czasami kontrowersyjne. Na poparcie tego twierdzenia autor przedstawia orzeczenie z 2 grudnia 2009 r. (w sprawie o sygnaturze akt U 10/07), w którym Trybunał zajął się kwestią zbadania konstytucyjności wliczania oceny z religii do średniej ocen ucznia. W ocenie autora, Trybunał uznając konstytucyjność wliczania tej oceny do średniej, przyjął błędną identyfikację rozstrzyganego problemu
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