Nowa ustawa o Trybunale Konstytucyjnym

Author(s): Maria Kruk / Language(s): Polish Issue: 5/2015

In June of 2015, the Sejm passed a new Constitutional Tribunal Act which sums up 18 years of experience of the Tribunal that have elapsed since the modification of the model for that body (established in 1982, still under the “old regime”) implemented in the Constitution and the Constitutional Tribunal Act of 1997. The new Act does not change radically the institutional concept of the Tribunal which is based on unchanged provisions of the Constitution. As it has indeed been criticized, especially on judges’ selection by only one chamber, namely the Sejm, by an absolute, rather than a qualified (two-thirds) majority. And what, in practice, gives rise to allegations of politicization of such choice. The primary objective of the lawgiver was to modernize and streamline the proceedings, to clarify the powers of the Tribunal and the rights and obligations of parties to the proceedings, and also to implement many other rules worked out in practice. The new Act is much more extensive than its predecessor, and its scheme has been changed to be more transparent. Almost all the provisions of the old Act are modified. Some amendments introduce a new approach to procedures. An example would be the provision — aimed at increasing the efficiency of adjudication — which guarantees equal treatment of public hearings (with the participation of the parties) and in camera or closed hearings, which is subject to some criticism from the author of the article. The provisions concerning the status of judges, the adjudication procedures, the powers and obligations of the parties, and many others, have significantly been enhanced. The weakness of the Act — in the author’s view — is the absence of socialization of the process of appointing judges (by way of “primary elections” available for different lawyers organizations) which was proposed in the bill, as well as the abandonment of attempts to define the Tribunal as a specific segment of the judiciary, which could have positive impact on the specificity of its actions as a “court of law” and not a “court of facts”.

Funkcjonowanie mechanizmu władzy państwowej w okresie wykonywania zastępstwa Prezydenta RP (uwagi na tle naczelnych zasad ustrojowych)

Author(s): Grzegorz Pastuszko / Language(s): Polish Issue: 5/2015

The article shows the negative effects for the mechanism of state power (specified in the current constitution) resulting from the application of the procedure for a substitution in the office of President. In his central thesis, the author argues that entrusting the function of President’s substitute to the Marshal of the Sejm or the Marshal of the Senate leads to a limitation of the scope of operation of the three constitutionally enshrined main principles of the system of government: (1) the separation of powers (the Marshal — structurally connected with the legislature — when deputizing for the President acts simultaneously as part of the executive); (2) incompatibilities (in the period of substitution the Marshal at the same time holds a parliamentary seat and performs the duties of President of the Republic) and (3) the principle of a parliamentary-cabinet system (parliament can may dismiss the Speaker, while the President cannot be held politically accountable).

Zwierzchnictwo, kierowanie i dowodzenie w Siłach Zbrojnych RP na tle regulacji konstytucyjnej

Author(s): Agnieszka Bień-Kacała,Tomasz Kacała / Language(s): Polish Issue: 5/2015

The current political-military situation enforces verification of existing structural and procedural arrangements relating to the functioning of Polish defence system. According to a number of conceptual documents (including National Security Strategy of 2014) the system consists of two kinds of subsystems: the controlling and the executive. The latter kind of subsystems includes operational and supporting sorts. The Polish Armed Forces (PAF) are the key element of the national defence system and are subject to civilian supervision of the democratic authorities. With regard to this kind of supervision there are two primary (fundamental) notions that deserve particular attention: headship and control. Both forms of supervision are reserved for civilian authorities during peacetime, respectively for the President of Poland and the Minister of National Defence. During the war time, the Council of Ministers gains greater importance in controlling the state defence. In this context, the category that invariably remains in the PAF domain is command understood as a specific form of control. Noteworthy, however, is the fact that the war-time PAF command structure, considering existing legal regulations, does not seem fully optimized. Therefore the reform of PAF control and command system, initiated in 2014, requires continuation and completion.

Zagadnienia parlamentarne w orzecznictwie innych państw Niemcy: Wyrok Federalnego Trybunału Konstytucyjnego z dnia 17 grudnia 2013 r. (sygn. akt 1 BvR 3139/08, 1 BvR 3386/08) dotyczący bezpieczeństwa energetycznego jako przesłanki dopuszczającej(...)

Author(s): Robert Rybski / Language(s): Polish Issue: 5/2015

Priorytetowe pytania prawne francuskich sądów o zgodność z konstytucją

Author(s): Katarzyna Kubuj / Language(s): Polish Issue: 1/2014

One of the fundamental changes in the French Constitution of 1958, adopted in 2008, was to extendthe powers of the Constitutional Council to include the examination of the conformity of laws withthe Constitution — under the procedure of ex post review — on the initiative of citizens (questionprejudicielle de constitutionnalité, QPC). Although the possibility of submitting to a constitutionalcourt an allegation of unconstitutionality of a statutory provision during the pending litigation facessignifi cant constraints, in the light of the current model of the constitutionality review of statutes inFrance this change is a breakthrough, and the road to it was not so easy. The review of constitutionalityof statutory provisions pursuant to Article 61-1 of the Constitution of 1958 has been widelyused. There is an increase of importance of administrative and common courts as well as the supremecourt authorities (Conseil d’Etat and Court of Cassation), which are responsible for an initial assessmentof the application on the constitutionality of the legal provision and, then, the issuance of thedecision — from which there are no appeal — to proceed further with QPC.

Wniosek organu stanowiącego jednostki samorządu terytorialnego do Trybunału Konstytucyjnego

Author(s): Marcin Stębelski / Language(s): Polish Issue: 2/2014

The right to initiate a review of norms conferred on organs of local government units is limited atconstitutional level primarily in relation to the scope of matters subject to such review. The properdelimitation of this power requires a reference to a wider normative context within which one cananalyze the entitlement to act of those entities mentioned in Article 191 para. 1 subpara. 3 of theConstitution. This context is partly due to the constitutionally determined position of local governmentin the system of governance. This is connected to the fact of constitutionalization of the rightsconferred on decision-making organs of local government units and the limited entitlement to actof those entities authorized to initiate a constitutional review. The third reference point is defi nedby the very purpose of review of the norms, which is pending before the Constitutional Tribunaland the specifi c interpretation of Article 191 para. 2 of the Constitution, containing a reference to„… matters relevant to the scope of activity” of the applicant.

Przesłanka szczególnej doniosłości konstytucyjnej jako warunek dopuszczalności skargi o ochronę praw — rozważania na temat reformy Trybunału Konstytucyjnego Hiszpanii

Author(s): Jarosław Sułkowski / Language(s): Polish Issue: 2/2014

Since 2007 there has been a new legal condition for admissibility of a constitutional complaint — the special constitutional signifi cance (la especial trascendencia constitucional) of which determines the right to protect rights in the amparo procedure. It was introduced as a remedy for the institutional crisis of the Constitutional Court. In this article the author presents the causes of the crisis of the amparo in Spain and also the reasons for which the legislature passed a bill reforming the proceedings before the Constitutional Court of Spain. In the following part the article focuses on the basic directions of changes of the Law on the Constitutional Court. In particular, it discusses the new condition of the special constitutional signifi cance of the constitutional complaint, which is assessed from the point of view of the signifi cance of the Constitutional Court’s judgment for the entire legal system. In the article the author presents the case-law of the Constitutional Court on this matter. Assessing the reform introduced, the author indicates its negative consequences and argues that the new legal regulation has led to restrictions on the right to submit a constitutional complaint.

Kompetencyjny charakter art. 126 Konstytucji RP

Author(s): Joanna Juchniewicz,Marcin Dąbrowski / Language(s): Polish Issue: 4/2014

Article 126 of the Polish Constitution depicts the position of the President of the Republic. It isclaimed that this provision does not provide for any competences of the Head of State. It only showshis or her functions and political role. The President exercises his or her powers by the competencesspecifi ed in other constitutional provisions and statutes. The authors of the article do not share thatview. They contend that, in some circumstances, Article 126 of the Constitution can be a mere basisfor President’s competences for which there are no other legal grounds. According to this, the Headof State is entitled to act authoritatively, especially to compel other authorities to do something or torefrain from doing something. The President has the right to take actions based on Article 126 of theConstitution in two situations: when this is legitimated by constitutional tradition; when thisis legitimated by political necessity. Some duties and functions of the President have been formedoutside the legal system. In a political system some actions of authorities are legitimated by practice,customs, habits, conventions and precedents. The state of political necessity is a situation of a veryserious political or structural crisis of the State when there is no possibility to dissolve the problemby ordinary constitutional instruments. Constitutional provisions do not include any regulations whichallow to obviate the threat. In such situation, the President as a guardian of sovereignty and securityof the State is legitimated by Article 126 of the Constitution to take actions to defuse the crisis.

Konstytucyjne prawo do zaskarżania orzeczeń a problem kwestionowania rozstrzygnięć prezydium Polskiej Komisji Akredytacyjnej

Author(s): Bogusław Przywora / Language(s): Polish Issue: 4/2014

The article deals with the conformity to the Polish constitution of legal regulations concerning appealsagainst decisions (resolutions) of the presidium of Polish Accreditation Committee. This measureplays a special role in the process of improving the quality of education in Polish universities andachieving educational standards applicable both in the European and global scientifi c community.The main objective of its functioning is to carry out mandatory assessments of the quality of educationand to provide opinion on applications to establish new fi elds of study. There is no doubt thatthe Committee, through these activities, signifi cantly infl uences the form of higher education in Poland.Its decisions determine the legal situation of both the university, lecturers and students, and undoubtedlyimpinge on their constitutional rights and freedoms. Under the constitution, settlementsof the Committee should be subject to direct judicial review. The question arises of whether the adoptedmechanisms of review of the resolutions of the presidium of the Committee meet the constitutionalstandards. Answering this question required deliberations in the context of the Constitution, ordinarylegislation, as well as the jurisprudence of administrative courts, including case law of theSupreme Administrative Court and the Constitutional Tribunal. The fi nal section presents conclusionsand de lege ferenda postulates.

Sankcje konstytucyjne. Istota, funkcje oraz rodzaje

Author(s): Marcin Dąbrowski / Language(s): Polish Issue: 5/2014

The author presents basic explanation of a sanction and its basic types that are mentioned in the theory of law. According to the article, a constitutional tort is a breach of a constitutional norm, which is done by an authority in the course of fulfi lling their constitutional obligations. The provisions of statutes associate a constitutional tort with several types of sanctions. The punishment for breaching the Constitution may be imposed on several types of subjects like an authority (either a single person or a body of persons, e.g. the Council of Ministers, the Sejm or the President of the Republic) as well as those persons who exercise constitutional powers (e.g. Members of Parliament, or Ministers). In some situations, the Public Treasury which has not committed the tort, is responsible for violating the Constitution. In the fi nal part of the article the author examines the infl uence of time on the possibility of applying the sanctions. With few exceptions, the Constitution does not specify time limits for the application of negative consequences to stop the violations of constitutional norms. However, these time limits may be determined by statute. In such situations, after the expiry of a period of time indicated in the statute, the sanction cannot be applied. The essential role of constitutional sanctions is to force the authorities to obey constitutional rules. They also perform four additional functions: the function of repression, the function of restitution, the function of redistribution and the function of prevention.

Kontrola obowiązku notyfikowania ustawy w postępowaniu przed Trybunałem Konstytucyjnym

Author(s): Piotr Radziewicz / Language(s): Polish Issue: 5/2014

This article deals with the issue of admissibility of the review of constitutionality of a statute passedin violation of the EU’s notification procedures. The analysis covers three specific issues — the subject,the base (reference) and the procedure of review exercised by the constitutional court. The subjectof the review in a case in which the allegation against the statute is based a breach of EU notification procedures, is determined by the scope of the responsibilities of the Constitutional Tribunal, which means that these procedures can be examined only in a certain range and under reservations. The jurisdiction of Court is therefore limited to the review of fulfi llment of the obligation to notify, treated as part of the national legislative proceedings. The review of constitutionality of a statute, towhich the allegation of a breach of notification duty has been made, is possible under the so-calledprocedural review of the statute; in this case the review should be based on the general constitutionalnorms establishing the principle of the democratic state ruled by law (Article 2) and principle oflegalism (Article 7). Due to the need to avoid the confl ict between the powers (jurisdiction) of theConstitutional Tribunal and the Court of Justice of the EU, the functional condition of the questionof law courts from the courts (Article 193 of the Constitution should be redefi ned). Adjudication onthe so-called EU matters should remain the domain of the national courts, acting on the principleslaid down in EU law

Wyrok niemieckiego Federalnego Trybunału Konstytucyjnego z dnia 18 marca 2014 r. Koniec sporu o konstytucyjność reformy strefy euro

Author(s): Jan Barcz / Language(s): Polish Issue: 5/2014

In the recent years the Federal Constitutional Court has referred to the measures taken on the EU level in order to overcome the financial crisis in the Euro zone and its consequences. The judgmentof 18 March 2014 provides the summary of these case-law, confirming its compliance withthe German constitution: the Treaty establishing the European Stability Mechanism and the Treatyon Stability, Coordination and Governance in the Economic and Monetary Union. The reasoningof the German Court is consistent with the arguments resulting from the judgment of the Courtof Justice of the European Union in Case C-370/12, Pringle. In the German legal doctrine, thejudgment of the Federal Constitutional Court of 18 March 2014. is also coupled with the hope forreduction of the use of constitutional complaint for purposes of political struggle, which has becomewidespread particularly in the context of measures taken to reform the euro area. Nevertheless,in the context of mechanisms for interaction between parliament and government in relationto “EU issues”, an important question is the extension and precise establishing of the competencesof the Bundestag (and Bundesrat) concerning the creation of internal (national) position to the European Stability Mechanism and the related powers to obtain relevant information from thefederal government. It is also important that the mechanisms of cooperation between federal governmentand the Bundestag (Bundesrat) in the “EU issues” include matters connected with intergovernmental measures undertaken formally by the EU Member States — outside the EU institutionallegal framework, but closely related to EU law. This solution may be the of interest toother EU Member States

Powtórna niekonstytucyjność prawa w Polsce — uwagi na tle praktyki i doktryny niemieckiej

Author(s): Sylwia Jarosz-Żukowska / Language(s): Polish Issue: 1/2013

The obligation to enforce the Constitutional Tribunal’s judgments, derived from Article 190 para. 1 of the Constitution, explained in negative terms, means a prohibition on the legislature to make laws being identical in content with those already found unconstitutional. Infringement of this obligation is contrary to the principle of constitutionalism and means that the legislature has gone beyond the scope of regulatory discretion shaped by the Tribunal’s case law. Under current law, the Tribunal does not have, in fact, any instruments allowing them to assess how the enforcement of judgments. The only possible response by the legislature to the repetition of “constitutional mistake” would be carrying out a repeated review of regulations introduced to the legal system to enforce the judgment. The issue has long been debated in German legal literature and in the Federal Constitutional Court. The discourse is dominated by the view that any possible extension of the effect of the judgment (declaring the unconstitutionality) on a subsequent norm of the identical content, or imposing on the legislature an obligation to repeal it, would not be in conformity with the principle of separation of powers. This would require a departure from the principle of accusatorial procedure and principle of binding limits of application limits of the application or ongoing monitoring by the Tribunal of the condition of legislation which would make it more like to a supervisory authority than a constitutional court.

Prerogatywa Prezydenta RP do powoływania sędziów (uwagi o art. 144 ust. 3 pkt 17 i art. 179 Konstytucji)

Author(s): Michał Ziółkowski / Language(s): Polish Issue: 1/2013

The organisational and functional structure of EU institutions is based in the fundamental principleof institutional balance. As a result of the reforms made by the Treaty of Lisbon, it shows explicitreferences to the principle of separation of powers (in both subjective and objective aspects) which has a prominent place in the national constitutional orders of the Member States. The purpose of thi sarticle is to identify those provisions of primary law codifying the powers of the European Council, which — when incorporated into the constitutional orders of the Member States — could be attributed to one of the traditional functions of the legislative power, thus proving the inclusion of the youngest EU institution in the realm of the EU legislative authorities, against the explicit negation of its lawmaking function. The article deals with the prerogatives of the President of Republic to appoint judges on the motionof the National Council of the Judiciary. Its aim is to give arguments in favor of the thesis that neitherArticle 179 nor Article 144, para. 3, subpara. 17 of the Constitution cannot provide a basis forthe President’s decision refusing to appoint the judge. In a democratic state ruled by law and implementingthe principle of legality in the exercise of powers of public authorities, one cannot unquestioningly accept the thesis that the prerogative is a personal privilege of the President, which may beenjoyed irrespective of the constitutional regulation of rights and without a specific legal procedure. Article 179 in conjunction with Article 144 para. 3, subpara. 17 of the Constitution provides a basisfor the reconstruction of two norms: a competence norm and a norm requiring President to make useof the powers granted to the him. This provision cannot provide a basis for the president’s decisionrefusing to appoint the judge. The National Council of the Judiciary, due to its constitutional authorityto safeguard the independence of courts and judges, is competent to carry out a detailed and substantiveevaluation of the candidate for the position of judge. However, in view of the limitations ofArticle 10 in conjunction with Article 173 of the Constitution, the President may apply to the NationalCouncil of the Judiciary to reconsider the case.

Referat recenzyjny — 20 lat „Przeglądu Sejmowego”

Author(s): Maria Kruk / Language(s): Polish Issue: 2/2013

The article provides an evaluation of scientific studies and other papers contained in “Przegląd Sejmowy” during the two-decade period of its publishing. The review gives special attention to the last five years, as in the previous period the journal was regularly peer reviewed. Reference to previous reviews form the basis for evaluation of the development of content of “Przegląd Sejmowy” and its editorial policy. This allows us to notice a predominance of parliamentary and constitutional issues and a high level of interest in constitutional and political systems existing in other countries, especially Western democracies, from which good practices and policies can be used for the development of a democratic political system in Poland. Their experiences are valuable not only to scholars, but also to parliamentarians. The journal is highly recognised for its scientific level. Moreover, a wide range of documents (such as legal opinions) and source materials published in the journal also increases its usefulness for legal practitioners.

Problematyka projektu Konstytucji z 1997 r. na łamach „Przeglądu Sejmowego”

Author(s): Paweł Sarnecki / Language(s): Polish Issue: 2/2013

The purpose of the article is to present the publications relating to different draft constitutions, whichwere the subject of parliamentary work in 1993–1997. They could be useful to both parliament andall citizens, since the text of the Constitution had to be approved in a referendum. Particular signifi cance may be attributed to those articles which address the issues of civil liberties and the structure of parliament. Many of the presented articles have a general nature, discussing the constitutional principles applied in democratic constitutions (for example, the principle of separation of powers, ruleof law). The author shows that many of the issues raised in those articles are included in the finaltext of the Constitution.

Procedura wydawania i uchylania postanowień tymczasowych przez Trybunał Konstytucyjny

Author(s): Konrad Kozioł / Language(s): Polish Issue: 2/2013

Preliminary decision is a security measure intended to protect rights and freedoms. It may be issued only in the event that the enforcement of the judgment, decision or another ruling in the case to which the complaint refers might result in negative and irreversible consequences linked withgreat detriment to the person making the complaint or where a vital public interest or another vital interest of the person making the complaint speaks in favour thereof, and also in the eventthat the judgment, decision or another ruling in the case to which the complaint refers has not beenfully enforced. After satisfying all the conditions justifying the initiation of the procedure whichmay result in the repeal of unconstitutional law, it is possible – in particular circumstances — tosuspend or stop the enforcement of the judgment. However, when the reasons for which the preliminary decision was given have ceased to have effect, such decision should be reversed by the Constitutional Tribunal.

Modele przedstawicielstwa w izbie drugiej parlamentu

Author(s): Jarosław Szymanek / Language(s): Polish Issue: 3/2013

The question of existence or non-existence of a second chamber comes down to the problem of representativeness. The dispute about the sense of keeping the upper chamber is in fact a dispute about whom it has ultimately to represent. If we assume that the second chamber should be, to the extent as the first chamber, a nationwide representation forum, the question arises: what for we have to duplicate the mirror-image of representation, and create the same representation in the first and in the second chamber? However, an assumption of a different model of representation also undermines the sense of the existence of the second chamber, if it is to be different from the first chamber regarded as a model for parliamentary chambers. Nevertheless, it is recognized that the second chamber must provide a different profi le of representation, if it is to exist at all. But the question is: What should it be? Here, the doctrine and practice may offer some solutions. The first is the federal representation model in which the second chamber is a platform for the expression of the interests of the non-unitary state entities. The second is a model of regional chambers, i.e. those functioning on a unitary state, where individual territories are given a considerable degree of autonomy. The third model is the chamber or local self-government, designed as a representative of interests of municipalities and local communities. Another model is that of the chamber of corporations, based on the representation of socio-occupational interests. Regardless of which model is adopted, it should be noted that the sense of the existence of the second chamber is determined by a different form of representation. The second chamber must always be the second one, which also means that it must be different in terms of representation as compared to the first chamber.

Czynność materialno-techniczna (jako prawna forma działania administracji) a orzeczenie w rozumieniu art. 79 ust. 1 Konstytucji .

Author(s): Bartosz Majchrzak / Language(s): Polish Issue: 3/2013

The article is an attempt to examine what meaning is attributed by the Constitutional Tribunalto the concept of judgment on the basis of Article 79 (1) of the Constitution. The content of theso reconstructed defi nitions has been referred to those attributes which, in terms of the doctrineof administrative law, are typical of material and technical actions of public administration authorities. As a result of this comparison, it is concluded that the basic criteria for clarifi cationby the Court of the term “judgment” (induction of direct or indirect legal effects, the result ofapplication of a legal norm, the imperious character) are also applicable to the material and technicalactivities. Therefore, the arguments used by the Polish constitutional court, which are assumedto justify the exclusion of those actions from the scope of Article 79 (1) of the Constitution,are not suffi cient. Their validity may be undermined by the counterarguments raised bythe legal doctrine of administrative law. Accordingly, it is proposed to use such a criterion whichleaves no doubt that a material-technical action by an authority is not a judgment within themeaning of Article 79 (1) of the Constitution.

Jakie konstytucje dla państw w okresie przemian ustrojowych? (Tunezja i Egipt)

Author(s): Bartłomiej Nowotarski / Language(s): Polish Issue: 3/2013

In the recent 40 years, around 90 countries have tried — with more or less success — to moveaway from their autocratic past and to follow the path to democracy. In 2011, quite unexpectedly, such a chance arose for West African countries, including Egypt and Tunisia. The authorpresents the democratic constitutional drafting which is most desirable for those countries, Muslimand Arabic at the same time. For this purpose he also examines the structural factors, including the Sunni Islam, the level of respect for the rule of law, economic situation and the state of political elites. Nevertheless, the author focuses his attention on the model of democratic transition in both countries, including the starting point and the course of transition.