Rozproszona kontrola konstytucyjności prawa w orzecznictwie Izby Karnej Sądu Najwyższego oraz sądów powszechnych jako wyraz sędziowskiego konstytucyjnego posłuszeństwa
Dispersed Constitutional Review in Case Law of the Supreme Court’s Criminal Chamber and Common Courts as a Form of Judicial Constitutional Obedience

Summary/Abstract: The paper sets out to present the contemporary state of debate regarding the question of the Supreme Court’s, as well as common courts’, constitutional review (constitutional control of the law). It also lays special emphasis on the systemic and social context of the deployment of the said method in the process of legal interpretation and application of the law. Furthermore, it strives to characterize the nature of such constitutional review (constitutional control) as based on the concept of the constitutionalization of law. The article presents various methods of direct use of the Constitution by courts as a way of pursuing claims based on the equitability and justness of the law and fairness of judgment. It gives justification to the mixed (two-tier) model of constitutional review (constitutional control) as a basis for realizing claims for constitutionalization of legal norms establishing grounds for individual court decisions. A concept is presented according to which determining the constitutionality of statutes by the court is an expression of judicial adherence to the Constitution. Nevertheless, the paper clarifies the relationship between the co-application of the Constitution and statutes on the one hand and courts’ dispersed constitutional review (constitutional control) on the other. One can find an analysis of the methods of the use of the Constitution in the Supreme Court’s and common courts’ case law. A theoretical explanation of the adopted forms of direct applicability of the Constitution is presented. Finally, the paper contains an explanation and justification of the courts’ competence to refuse to apply a statutory provision in a given individual case when it obviously and undoubtedly contravenes the Constitution and the use of which would ultimately lead to an unjust judgment.

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