Abstract

AbstractThe report outlines the Polish constitutional culture and explores the interaction with EU and international law before the 2015–2018 illiberal turn in the country. The report recalls that the Communist Constitution had been political and its observance was fictional. After the transition in 1989 and in the new 1997 Constitution, emphasis was on the direct application of constitutional provisions, the rule of law principle, the democratic and social state, a broad catalogue of rights and freedoms with the precise permissible grounds for their limitation, as well as institutional guarantees and judicial procedures against violations of those rights and freedoms. The Constitutional Tribunal carried out stringent review of legal provisions. The main grounds for declaration of unconstitutionality were violation of the rule of law, the right to a fair trial, the principle of proportionality and exceeding powers delegated to the executive. The Constitutional Tribunal also exercised review over EU and international treaties and measures implementing EU law. Although the Constitutional Tribunal stated that the Constitution was the supreme law of Poland, it respected the autonomy of EU law and the competences of the ECJ, adopting the approach of a consistent interpretation of Polish law with EU law. Some key examples of the case law include constitutional challenges regarding the Accession Treaty, the Brussels I Regulation, the European Arrest Warrant (EAW) and the ESM Treaty. The EAW judgment led to a constitutional amendment allowing the surrender of Polish citizens under certain circumstances. The conditions and grounds for limitation of rights are more restrictive than in EU law.

Highlights

  • The report is an analysis of the Polish Constitution and of the jurisprudence of the Polish Constitutional Tribunal before a serious systemic crisis, which formally began at the end of 2015

  • The Constitutional Tribunal stated that the Constitution was the supreme law of Poland, it respected the autonomy of EU law and the competences of the European Court of Justice (ECJ), adopting the approach of a consistent interpretation of Polish law with EU law

  • The Constitutional Tribunal stated that, on the basis of Art. 607p(1)(5) of the Code of Criminal Procedure, it should be possible to refuse to execute an European Arrest Warrant (EAW) in cases where it is obvious for the court adjudicating on the execution of the warrant that the person who is the subject of the warrant has not committed the act on which the warrant is based

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Summary

The history of

Polish constitutionalism dates back to the 16th century. The crowning achievement was the Constitution of 3 May (Konstytucja 3 Maja), adopted by the Parliament (Sejm Wielki) in 1791. The Constitution, formally enacted as Governmental Act (Ustawa Rządowa), introduced the principle of sovereignty of the people, the separation of powers into legislative, executive and judiciary and guaranteed a number of important individual liberties. It was influenced by viÔews of the French philosophers J.J. Rousseau and C.L. Montesquieu. The main approach to constitutional regulation relevant to the founders of the Polish Constitution, as in other countries of Eastern and Central Europe, was an emphasis on the legal nature of the norms contained in the basic law of the state..

Compared to other European constitutions, the Polish Constitution is quite long
The Agreement establishing an association between the European Communities, its
Poland’s
Conceptualising Sovereignty and the Limits to the Transfer of Powers
In its judgment on the constitutionality of the Treaty of Accession,27 the
Democratic Control
The Reasons for, and the Role of, EU Amendments
Chapter I of the
Article 31(3) of the
The Balancing of Fundamental Rights and Economic Freedoms in EU Law
The Presumption of Innocence
Nullum crimen, nulla poena sine lege
Article 45(1) of the
The Right to a Fair Trial – Practical Challenges Regarding a Trial Abroad
The Right to Effective Judicial Protection
The experts share the view that the national courts maintain both roles
Article 47 of the
Unpublished or Secret Legislation
Rights and General Principles of Law in the Context of
In the ESM case, the Constitutional
In March 2013, a group of Deputies and
Judicial Review of EU Measures
The Polish Constitutional
The Constitutional
Similar issues concerning the implementation of EU law as reported in the
2.10 Common Constitutional Traditions
2.10.2 Recognising the general principles of
2.11.1 The Constitutional
2.12.1 At the time of the adoption of the European Arrest Warrant Framework
2.13.2 Not applicable
2.13.4 In the view of the Experts, it would be desirable if Poland were to withdraw from
Constitutional Rules on International Organisations and the Ratification of Treaties
Before the
The Constitution of 1997 is the first basic law in
The foreign policy of Poland is conducted by the Council of
Judicial Review
The Social Welfare Dimension of the Constitution
Findings
In its judgment of 21 September 2011, the Constitutional
Full Text
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