Judicial Review of Public Power in Poland

Abstract

There are two categories of administrative legal actions undertaken by public administration authorities that are controlled by the courts: normative and administrative acts . The Constitutional Tribunal controls the legislative acts, but with some exceptions in which ordinary and administrative courts are authorized to control the conformity of normative acts other than statutes with an affect inter partes. Administrative courts and, in some specific situations, ordinary courts control the acts of application of the law by public administration. However, there are exceptions that place some individual situations outside the system of judicial control of public power. The constitutional right to a fair trial comprises the right to examination of “a case”, i.e. the legal evaluation of the rights of the party in question. Cases of dispute that are not concerned with the law as such but rather with the evaluation of a certain factual interest are outside the scope of the right. General administrative acts and petitions are also excluded from judicial control. Finally, there is no effective judicial control over State acts done via private law institutions. According to Article 184 of the Polish Constitution, administrative courts exercise the control over the performance of public administration. By 2015 courts were only permitted to repeal a decision, act or transaction that broke the law. Since 2015 an administrative court may also oblige the administrative authority to issue a decision within a specified time, indicating the manner of resolving the case. If the authority fails to issue a decision within the prescribed time, the court may rule on the existence or non-existence of a right or obligation. Some authors claim that subject-matter ruling on an administrative case by courts strongly exceeds the boundaries of the concept of “control” as expressed in Article 184 of the Constitutional.