ARTYKUŁ 77 UST. 1 KONSTYTUCJI W ORZECZNICTWIE TRYBUNAŁU KONSTYTUCYJNEGO. WYBRANE ZAGADNIENIA
ARTICLE 77 PARAGRAPH 1 OF THE CONSTITUTION IN THE CONSTITUTIONAL TRIBUNAL’S JURISPRUDENCE. SELECTED ASPECTS

Summary/Abstract: Article 77 paragraph 2 of the Constitution providing the right to compensation for any harm done by any action of an organ of public authority contrary to law, has been explained within a Constitutional Tribunal’s jurisprudence in a number of cases. However, there are still some serious doubts concerning the interpretation of particular terms used in this provision. Basic elements of article 77 paragraph 2, such as: an organ of public authority, illegality or definition of „action” should be determined autonomously with no reference to the statutory interpretation and the views of civil law doctrine. It also applies to the compensation of harm mentioned in art. 77 § 2 of the Constitution. This term should be interpreted on the constitutional grounds as an important element creating a model of public authority liability guaranteed in the Constitution. The detailed content of this model may be regulated on the statutory level. The legislator should create a mechanism of compensation which will fit in the constitutional framework and it may decide whether this compensation should be limited or not. The Constitution, using a broad definition of the term „compensation of harm”, does not determine this matter. The basic function of art. 77 § 1 of the Constitution is to protect individuals against the infringement of their constitutional rights by organs of public authority. However, it does not express an independent legal right. It seems that making reference to the construction of individual rights is not of support in establishing the proper interpretation of art. 77 § 1 of the Constitution.

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