Polish Constitutional Tribunal Research Articles

IMPORTANCE OF THE PRINCIPLE OF DECENT LEGISLATION FOR POLISH ADMINISTRATIVE LAW

The paper analyses the principle of decent legislation and its significance for Polish administrative law. The principle in question derives from the concept of a democratic state under the rule of law. The significant role of administrative law in shaping the status of individuals (citizens) in the state as well as the influence of this branch of law on particular areas of social life are indicated. Due to the special characteristics of this branch of law, the principle of correct legislation should be absolutely taken into account in the legislative process that involves drafting of administrative legal acts. The case law of the Polish Constitutional Tribunal has distinguished certain elements or aspects of the principle of good legislation, including the following: non-retroactivity, protection of acquired rights, pacta sunt servanda, respect for pending interests or appropriate vacatio legis. The vast majority of them should be taken into account when working on administrative regulations. The paper also refers to the current crisis of administrative law discussed in the domestic literature from a practical point of view, by presenting two errors made by the legislator when amending administrative procedural laws. The conclusion of the study includes i.a. a proposal for a fuller involvement of experts, legal scholars and commentators, professional attorneys or administrative court judges in the process of drafting administrative laws.

The Image of the Right to Privacy in Selected Polish Constitutional Court Cases

This research article aims to present an image of the right to privacy in selected Polish constitutional court cases. The paper starts with a concise introduction indicating the scope of the study, the justification for undertaking the analysis, and the methodology used. As part of the introduction, the current structure of the judiciary in Poland will also be presented. The court cases related to the right to privacy heard by the Polish Constitutional Tribunal will then be presented with a focus on considerations related to the understanding of the concept of the right to privacy, its content, scope, and elements, and the legally justified premises limiting this human right. Such judgments are based on the Constitution of the Republic of Poland. This will be done on the basis of three judgments of the Polish Constitutional Tribunal of significant importance to the title issue. As part of these considerations, reference will also be made to numerous other judgments of the Polish Constitutional Tribunal, so that the presented discourse has the broadest possible context. The paper ends with a concise summary containing original observations related to the matter being discussed.

The Impact of Abstract Control by the Constitutional Court on the Recovery of Property Tax Overpayments: Procedural Issues

Abstract One of the powers of the Polish Constitutional Tribunal is the so-called abstract control related to the examination of the compliance of statutes (laws) with the Polish Constitution. The subject of these statutes may be tax matters. In recent years, the tribunal has repeatedly ruled on the consistency of such legal acts with the Constitution, including the reference to the provisions of the Law on local taxes and fees, which regulates a real-estate tax. Some of the rulings thereon were interpretive in nature, i.e. they indicated inconsistency with the Constitution within a specific understanding of the provision under verification. Their direct consequences were claims for excess tax made by real-estate taxpayers, which were envisaged by the procedures prescribed by the provisions of the law – the Tax Ordinance. In this regard, significant shortcomings of the above-mentioned act have been revealed. We may put forward a thesis according to which the procedure provided for in the Tax Ordinance for the recovery of excess tax in connection with the Constitutional Tribunal’s rulings is defective as, in particular, it does not take into account the rulings which are interpretative in nature. Verification of this research assumption requires the analysis of both the statutory provisions on the recovery of excess tax and the rulings of administrative courts that have been made thereon. The rationale for discussing this issue is its great practical importance, in particular, as indicated above, the fact that in recent years the judgments issued by the Constitutional Tribunal with regard to the Law on local taxes and fees regulating a realestate tax have precisely been of an interpretative nature.

Ascription of Content to Provisions of the Law by Judicial Practice. Theoretical Analysis of the Polish Constitutional Tribunal’s Judgments

The article examines the way in which the Polish Constitutional Tribunal operates, which involves replacing its own process of interpreting the provisions under review by accepting the interpretation of another court. The objective of the article is to provide a theoretical account of the Polish Constitutional Tribunal’s conduct to the readers. Therefore, the concepts developed at the Poznan School of Theory of Law are used, namely the distinction between a provision of the law and a legal norm, as well as a distinction between pragmatic and nonpragmatic interpretation. The role of the metatheory used to analyse the Tribunal’s conduct is also played by Robert B. Brandom’s analytic pragmatism. Analytic pragmatism allows the conclusion to be drawn that, through its activity, the Tribunal indicates 1) what an agent must do (within the legal practice) for the vocabulary of normative acts to mean something (PV-sufficiency), and 2) what vocabulary is sufficient to define those practices (VP-sufficiency). The practice of applying the law can be described with the use of the TOTE concept (Test-Operation-Test-Exit). In this case TOTE cycles are open-ended. Therefore, in its further practice, the Tribunal might indicate further practices-or-abilities which are sufficient for the vocabulary of normative acts to mean something.

Restriction of the Right of Ownership of Real Property due to Environment Protection in Light of the Constitution of the Republic of Poland

Nowadays, there is a noticeable trend aimed at ensuring broad protection of the natural environment – both for the sake of preserving biodiversity and the quality of life of the future generations. However, the related activities of public authorities and private entities often involve limiting the rights of property owners. The Polish Constitutional Tribunal has ruled on the conflict between property rights and conservation of nature. The Tribunal has pointed out that the principles of sustainable development require an appropriate balance between environment protection on one hand and social and civilizational development on the other. In accordance with the previous jurisprudence of the Tribunal, the article will present the limits set for the state's environment policy in certain specific areas by the Constitution. It is acceptable to establish mechanisms to control the exploitation of plantings belonging to real property. Property owners may be required to obtain permits for their removal, and in the absence of such permits, they may be punished with forfeiture of timber or a fine. However, it is incompatible with the principle of proportionality and infringes the right of owners by arbitrary restrictions or imposed automatically sanctions, without the possibility of taking into account the circumstances. Moreover, the Tribunal has pointed out that the Constitution does not allow disproportionate narrowing down of the possibility to seek compensation for restrictions in the use of real property for the sake of environment protection. Only the two-year deadline for submitting claims in this respect has been considered too painful – too short and impossible to be reinstated for justified reasons.

Consequences of the Constitutional Tribunal’s Ruling of October 22, 2020. On the Citizens’ Bill on Safe Termination of Pregnancy and Other Reproductive Rights

Abstract The ruling of the Polish Constitutional Tribunal of October 22, 2020 introduced a near-complete ban on abortion in Poland, as it removed from the law the embryopathological condition that allowed abortion when the fetus had an incurable, severe disease. The ruling raises a number of questions regarding the recognition of international protection of human rights, the equal protection status of human rights, and the principle of trust in the state. The Tribunal’s ruling resulted in massive public protests in Poland, the adoption of condemnatory resolutions by the European Parliament, and the submission of a new bill by members of the parliament from the opposition groups. The purpose of the paper is to show the questionable ruling issued by the Constitutional Tribunal from the perspective of protection of human rights and the attempts of opposition MPs to change the legal order. The Tribunal’s ruling violates women’s human rights and is therefore a form of discrimination against women. Attempts by opposition MPs to “civilize” the right to abortion have proved unsuccessful. The jurisprudence of the European Court of Human Rights may establish a breakthrough, as the Tribunal has received a complaint concerning the prevention of abortion on embryopathological grounds in connection with the ruling of the Constitutional Court of October 22, 2020.

Judgement of the Polish Constitutional Tribunal of 22 October 2020 (K 1/20) on Eugenic Abortion

The paper discusses the judgement of the Constitutional Tribunal of the Republic of Poland, given on 22 October 2020 (K 1/20) concerning eugenic abortion. The Constitutional Tribunal adjudicated that legal provisions permitting termination of pregnancy on the basis of “a high probability of the foetus’s severe and irreversible impairment” or of “the foetus’s lifethreatening incurable illness” are inconsistent with the Constitution of the Republic of Poland. The result of the ruling is a ban on eugenic abortion and, consequently, a wider scope of protection of human life in the prenatal period.

O dyskontynuacji prac parlamentu raz jeszcze

Once again about the discontinuation of the work of the parliament The author analyses the historical foundations of the concept of discontinuity in the work of the parliament. It presents the development of this principle in the European legal culture and activities in the initial period of forming the parliament in Poland. He indicates various ways of justifying the existence of the present-day principle of discontinuation in a democratic state ruled by law. In particular, it refers to the concept of general principles of law. It also analyses the jurisprudence of the Polish Constitutional Tribunal. Recognizes the principle of discontinuation of the work of the parliament as a permanent element of the state system. However, he points to the problems of integrating it into the system of norms of the Constitution of 1997.

“Chilling Effect” in the Judicial Decisions of the Polish Constitutional Tribunal as an Example of a Legal Transplant

The paper is dedicated to describing the way of reception by the Polish Constitutional Tribunal of the “chilling effect”, i.e. an institution related to such activities of public authorities that form an indirect act of deterrence regarding the execution of constitutionally guaranteed rights and freedoms, esp. the freedom of expression. The discussed concept has originated in judicial decisions of the US Supreme Court and has spread into many contemporary legal systems, including jurisprudence of the European Court of Human Rights. Although it is evident that the Tribunal “took over” that concept from the ECHR, it in fact developed its own, unfortunately internally inconsistent, understanding of the chilling effect. Four different ways of application of chilling effect may be noticed in judicial decisions of the Polish CT, while only two of them reflect the perception of this institution by the US Supreme Court and the ECHR.

Eugenic Abortion as Discrimination against Persons with Disabilities: Another Perspective on Current Constitutional Case in Poland

On 22 October 2020, the Polish Constitutional Tribunal has declared provisions admitting eugenic abortion unconstitutional (case sign. K 1/20, not officially published yet). Tribunal stated that the said provisions sanction eugenic practices in relation to the unborn child deny respect and protection of human dignity (Art. 30) and the principle of legal protection of the life of every human being (Art. 38). Tribunal has not referred to another objection indicated in the MP?s motion that making the protection of unborn child?s right to life dependent on its health status was tantamount to illegal direct discrimination (Art 32). Nevertheless, it seems noteworthy to underline that a negative assessment of a disease, handicap, or disability is not legally tantamount to a negative assessment of the affected human being, their dignity and the value of their life. Human life valued so highly on normative grounds, regardless of the person?s health condition, means that the life of a conceived child with malformations should be protected under penal law to the same extent as the life of a conceived and properly developing child. The admissibility of selective abortion based on the health status of the foetus must be recognized as unacceptable, just as abortion based on gender, race or social origin of the foetus.

Concerns Regarding the Rule of Law as a Ground for Non-execution of the European Arrest Warrant: Suggestions for a Reform

The judicial reforms in Poland, which are harshly and continuously criticised as undermining the independence of Polish courts, have brought the principle of mutual recognition and the European arrest warrant (EAW) to its limits. These unprecedented challenges to the rule of law have made it necessary to create an extraordinary ground for non-execution of EAWs issued by Polish authorities. However, the pertinent jurisprudence of the Court of Justice in Luxemburg (case C-216/18 PPU and follow-up decisions) is not fully convincing, particularly in the light of two recent judgments by the Polish Constitutional Tribunal. For that reason, a more far-reaching legislative reform of the EAW is urgently needed.

Trybunał Konstytucyjny wobec kwestii światopoglądowych (uwagi na marginesie sprawy U 10/07)

The article presents the position of the Polish Constitutional Tribunal with regard to denominational matters. An example is the judgment relating to the problem of counting the assessment of the religion of the students’ grade point average. This case is a good illustration of a peculiar spirit of the polish constitutional court or his philosophy on the religious and ideological matters. This spirit, in many cases is penetrated by the position of preferring a specific religion and specific religious association. As a result, it is difficult to talk about the neutral position of the Constitutional Tribunal. For the described case, the Court clearly took a position in support for specific legal solutions, while – it seems – there was no pattern of constitutional assessment of the whole matter. The Constitution of 1997 is not of a standard to evaluate whether the assessment of the religion taught in public school should be or should not be included in the students’ grade point average. Therefore, the Constitutional Tribunal should consider that any legislative solution is in line with the Constitution. If only given to other constitutional principles, such as a secular state and its neutrality, the court’s line of argument should go the other way. Meanwhile, the Constitutional Tribunal found that not only the solution adopted is consistent with the Constitution, but virtually every other solution would be unconstitutional. The Tribunal holds that, if consistent with the Constitution are the lessons of religion and if consistent with the Constitution is to include evaluation of religion on school certificates, then the counting of this assessment to the average grade is in accordance with the Constitution. It seems that the present case shows a well-partisan position of the polish Constitutional Tribunal. In this case, the Tribunal as a starting point for the case considered the constitutionality of teaching religion in school. Meanwhile, the case is undeniable and inevitable. The Constitution expressly provides, after all, that religion can be taught in public school. The court therefore made the subject of their deliberations something that is obvious. For the Court, it was necessary, however, because it relied on a simple logic, such as teaching religion in schools is in line with the constitution and the general effects of this result is also consistent with the Constitution. Another line of reasoning of the Constitutional Tribunal in this case must be considered as lack of impartiality of the court. That is not its only case when the court takes the position of one-sided, which conflicts with the constitutional principle of state neutrality and independence of church and state.

The Right to the Protection of the Unborn Child in the Context of the Judgment of the Polish Constitutional Tribunal of October 22, 2020 in the Case K 1/20

The countries of the European Union have decided to share a peaceful future based on common values. However, there are still disputes over the understanding of the most fundamental issues related to the protection of human rights, including protection of the right to life. The author shows that the source of European culture is Christian. However, it is not the only source of shaping the values of Europe. As an example, she cites the differentiation of constitutional legal regulations or controversies related to the jurisprudence of the ECHR. She analyzes the judgment of the Polish Constitutional Tribunal declaring the unconstitutionality of the provisions allowing abortion if prenatal tests or other medical conditions indicate a high probability of a severe and irreversible fetal impairment or an incurable life-threatening disease. This judgment caused enormous opposition from a part of the society. This problem proves that a compromise has not yet been made on the issue of abortion. It is, therefore, difficult to claim that human rights protected in the European Union are given universal meaning.

Open Coalition Law, Necessity or Threat?

From January 1, 2019. Amendments to the Act of July 5, 2018 amending the provisions on trade unions and some other acts apply (almost in full). Amendments to the Polish act are a consequence of the Committee for the Freedom of Association, Labor Law Organizations and the judgment of the Polish Constitutional Tribunal. The main and expected effect of the amendment is the extension of coalition freedom in trade unions. This issue is important not only for the consistency of the legal system with international law, but also for social reasons. Concluding civil law contracts in the place of employee forms of employment is a common practice in Polish conditions. The main problem is that the civil law contract has a purpose other than the employment contract. Contracts of mandate and provision of services are the basis for the implementation of actual and legal activities. Besides, the legislator does not have any real actions aimed at eliminating the defective practice. The text is an attempt to synthetically summarize the motives of the amendment, as well as its effects and tests.

Public debt limit of the EU Member States and its impact on polish legal system – considerations in the context of public finance stability

The author’s goal is to determine the consequences of implementing treaty solutions concerning public debt to the Polish Constitution and to define the differences between the methodology of counting public debt in the European Community and Polish legal order. The raised issues concern important problems from the substantive and practical point of view, therefore the study’s content is important for science and practice. The research methodology was based on the analysis of the EU and Poland’s normative solutions, opinions expressed in the international and national literature on the subject, and the case law of the Polish Constitutional Tribunal. The paper applies mostly the dogmatic-analytic and legal-comparative method with reference to available statistical data on Poland’s public debt. The study allowed the author to gain an understanding of the significance of fiscal rules implemented at the EU level to ensure stability. Article 216(5) of the Constitution of the Republic of Poland indicates that the treaty solutions regarding the reference value (public debt-to-GDP ratio) were reenacted. However, until this day, the EU and Poland’s debt measurement methods do not fully correspond. In order to counteract excessive debt incursion, a state is required to take not only efficient actions but also ones that are adequate and, to some extent, flexible. This is an expression of acceptance of the EU’s preventive assumptions. However, there is still no full correlation in the methodology of calculating public debt in the EU and the Republic of Poland.

Recent Developments in Polish Civil Procedure in the Field of Public Hearing

The present paper deals with the possibility of passing judgments on the merit and procedural decisions at a court session held in camera. In order to assess the admissibility of this practice and its congruence with constitutional standards, the article presents the relevant case law of the European Court of Human Rights and the Polish Constitutional Tribunal. The paper discusses the issue of the ‘right to a public hearing’ in connection with the recent amendment of the Polish Code of Civil Procedure, which widened the court’s possibility to pass judgments and decisions in chambers.

Zasada ochrony zaufania obywateli do państwa i do stanowionego przez nie prawa jako dyrektywa poprawnej legislacji

This article aims to demonstrate the superior position of the principle of protection of citizens’ trust in the state and the law it makes with respect to other principles of appropriate legislation stemming from Article 2 of the Constitution of Poland. This article presents the concept of principles of appropriate legislation as well as the genesis and legal basis of the titular principle. Importantly, this paper underscores the role of the principle of protection of citizens’ trust in the state and the law it makes in the case law of the Polish Constitutional Tribunal. The aim of this article was realized by using the formal and dogmatic method as well as axiological and historical methods of research (the latter as an auxiliary method).

Sąvokos chilling effect evoliucija ar entropija – perspektyva Lenkijoje

[full article, abstract in English; abstract in Lithuanian]
 The concept of chilling effect, formulated in the beginning of the second half of the 20th century by the Supreme Court of the United States of America, has been applicated both in common law and in continental law system. Lately, also the Polish Constitutional Tribunal more often has used it. Despite the U.S. Supreme Court bound the chilling effect with infringement of the freedom of speech, nowadays it seems to be useful to describe also interferences to other human rights. The European Court of Human Rights has developed that kind of interpretation. It has occurred that the notion of chilling effect perfectly describes any interference into right or freedom consisting of deterring of a person from undertaking by he or she an action. The Polish Constitutional Tribunal has drawn the concept of the chilling effect directly from adjudication of the ECHR. But without broad justification it also applicates this notion to constitutional issues connected with provisions concerning the system of government. This process of adaptation of the chilling effect concept provokes questions whether this notion was properly rooted in the Polish constitutional system. The Polish Constitutional Tribunal has not deeply explained how to understand the concept of chilling effect and in what occurrences it may be applied. Without clear statement of the Polish Constitutional Tribunal we can say that the chilling effect concept may not be applied only in the cases concerning rights and freedoms which imply act of deterrence, like prohibition of compelling to participate or not participate in religious practices. Moreover, we can only assume that identifying the chilling effect does not overjudge the result of constitutional review, it is just an argument for unconstitutionality.

Judicial Review of Decisions Relating to Inspections of the President of the Polish Office of Competition and Consumer Protection – Between the Judgment of the European Court of Human Rights in Case Delta Pekárny v. The Czech Republic and the Judgement of the Polish Constitutional Tribunal of 16 January 2019 in Case P 19/17

Judicial Review of Decisions Relating to Inspections of the President of the Polish Office of Competition and Consumer Protection – Between the Judgment of the European Court of Human Rights in Case Delta Pekárny v. The Czech Republic and the Judgement of the Polish Constitutional Tribunal of 16 January 2019 in Case P 19/17

Constitutional Identity of Poland: Is the Emperor Putting on the Old Clothes of Sovereignty?

This paper analyses the way the term “constitutional identity” is understood and applied in the case-law of the Polish Constitutional Tribunal. The Tribunal first used this term in the Treaty of Lisbon decision to demarcate limits of the state power to confer competences to the European Union. In this context, the Tribunal reaffirmed that membership in the EU is a form of self-limitation and the contemporary form of expressing national sovereignty. In the following discussion, the paper presents decisions in which the constitutional identity of Poland denotes the axiological equivalence or convergence with the EU legal order, or conversely, divergence from common constitutional standards. These standards, setting out the core of the EU constitutional identity, are based on the protection of fundamental rights, rule of law, and democracy. We examine the application of constitutional identity as convergence and divergence on the examples of the right to respect the private and the family life and the right to a fair trial. Yet, we argue, it is the recent constitutional crisis surrounding the Constitutional Tribunal which shows the Polish constitutional dispensation. Failing to cooperate with the European institutions with regard to legal reforms affecting the rule of law the Polish government is not merely insisting on its constitutional identity, but trying on the “old clothes” of national sovereignty.