USTAVNOSUDSKA KONTROLA U ODLUKAMA USTAVNOG SUDA FEDERACIJE I VRŠENJE ZAKONODAVNE VLASTI

Author(s): Kata Senjak / Language(s): Bosnian Issue: 14/2016

When it comes to the constitutional legal control and execution of legislative powers, constitutional courts have an enormous importance in the creation of a modern state. The principle of equality, non-discrimination and legal security set up in the Constitution and other international documents, upon which constitutional courts base their decisions, becomes indispensable principal and value one must bear in mind when creating and applying law. That is why the constitutional courts as guardians and defenders of the Constitution, must display responsibility and dedication in performing their function of constitutional supervision through uniform control, clear standards and procedures and transparency in their work.

Immunitet posłów i senatorów w radach pozaparlamentarnych

Author(s): Paweł Sarnecki / Language(s): Polish Issue: 6/2015

The article deals with immunity of Members of Parliament in collegial extra-parliamentary bodies in which their participation is required by the provisions of the Constitution or statutes. The author poses the question of whether such activities may be considered as “parliamentary activities” i.e. those falling within the scope of the exercise of their mandate (and therefore subject, in particular, to protection by parliamentary non-liability or material immunity) or rather the performance “other public function” (which results only in their protection by inviolability or formal immunity)? The Act on the Exercise of the Mandate of a Deputy or Senator does not give a defi nitive answer to this question. The author points to the relevant jurisprudence of the Supreme Court and the Constitutional Tribunal. The main criterion for distinguishing between “acting as Member of Parliament” and performance of “other public function” is the existence of a connection between the functions of a given body and the functions of parliament. In the author’s opinion, there are four of such bodies in Poland, of which only participation in the Council of Labour Protection is considered as parliamentary activity, whereas participation in the National Council of the Judiciary, the National Prosecution Council and Civil Service Council is considered as performance of “other public function”

Kontrasygnata decyzji prezydenta w Republice Czeskiej

Author(s): Krzysztof Skotnicki / Language(s): Polish Issue: 6/2015

The article presents an institution of countersignature in the Czech Republic. In view of the clear linkto the structures existing in the past, its evolution is also shown, starting with the Constitution of1920. Initially, countersignature by the chief of government or minister authorized by him/her wasrequired in relation to all the activities of the President. Today, there exist prerogatives and countersignatureis obligatory only for the exercise of the powers of head of state which have the nature ofdecision, i.e. those by which the legal status is changed or confi rmed. Only written decisions canbe countersigned. Countersignature is to be made by chairman of the government or member of thegovern ment authorized by him/her, who does not have to be a minister competent for a given matter.Such authorizations in practice are rare and always individual and specifi c in nature. Countersignaturemay be made either before or after the decision is given by the President. This depends onhow both parties signing a document agree. However, the date of its adoption by the President is alwaysconsidered the date of the decision. Before making countersignature, chairman of the governmentmay apply to the government with the question whether or not to countersign the President’sdecision. This approach has been established in practice, but there are no rules determining when thePrime Minister must use it. When the functions of the President in constitutionally defi ned situationsand extent are exercised by the chairman of the government, countersignature is not made. Countersigningof the President’s decision does not absolve the head of state from responsibility for treason.Decisions of the President, for which countersignature by chairman of the government or an authorizedmember of the government are required are null and void without it.

Glosa do wyroku Trybunału Konstytucyjnego z dnia 25 lutego 2014 r. (sygn. akt SK 65/12)

Author(s): Marta Kolendowska-Matejczuk / Language(s): Polish Issue: 6/2015

Monika Florczak-Wątor, Horyzontalny wymiar praw konstytucyjnych

Author(s): Jerzy Ciapała / Language(s): Polish Issue: 6/2015

Krzysztof Grajewski, Jakub Stelina, Piotr Uziębło, Komentarz do ustawy o wykonywaniu mandatu posła i senatora

Author(s): Jarosław Szymanek / Language(s): Polish Issue: 6/2015

Orzecznictwo dotyczące konstytucyjności regulacji umożliwiających głosowanie elektroniczne (Niemcy, Austria, Estonia, Indie)

Author(s): Marcin Rulka / Language(s): Polish Issue: 6/2015

Zagadnienia parlamentarne w orzecznictwie innych państw Francja: decyzja Rady Konstytucyjnej z dnia 23 stycznia 2015 r. w odpowiedzi na priorytetowe pytanie prawne o zgodność z konstytucją, nr 2014-439 QPC

Author(s): / Language(s): Polish Issue: 6/2015

Kontrola konstytucyjności klauzul generalnych

Author(s): Monika Florczak-Wątor / Language(s): Polish Issue: 4/2013

In the judicial practice of the Constitutional Tribunal, the review of constitutionality of general clausesinvolves several problems caused both by an insufficiently-defined character of those phrases andby an-extra-legal reference contained therein. The extent of review covers the entire provision of law including a general clause, which makes it possible to assess the clause in the legal environment in which it is situated. Indirectly, the review embraces the standards and values to which the clause refers. The Tribunal reviews not only the quality of general clauses, expressed by indefiniteness of terms used by the lawmaker, but also the predictability of the line of assessment taken in the course of their application. Another important factors in an assessment of their constitutionality are: the status (within the system of government) of an entity authorized to assign a specific content to thegeneral clause and the contestability of decisions of that entity in the course of proceedings.

Pojęcie tzw. przepisów o charakterze represyjnym — uwagi na tle dotychczasowego orzecznictwa Trybunału Konstytucyjnego

Author(s): Marek Sławiński / Language(s): Polish Issue: 5/2013

The article deals with the notion of the so-called provisions of repressive nature, addressed from theperspective of the jurisprudence of the Constitutional Tribunal. In one of its early judgments in thisarea, the Tribunal defi nes them as provisions whose aim is to subject a citizen to a form of punishmentor sanction. Indeed, in the system of law one can fi nd a group of legal regulations whose applicationis connected with imposition of something that is intended to be undesirable or painful, reachingsometimes such intensity that could be compared with application of sanctions prescribed bycriminal law. Nevertheless, those regulations have not been formally defined by the legislator as aspectsof criminal responsibility. This includes, above all, disciplinary responsibility, responsibility ofcollective entities, responsibility exercised under the Lustration Act or responsibility for administrativepenalties. This situation raises questions on how the constitution specifies the minimum standardof guarantees for the individual subjected to these regulations and whether they are covered bythe constitutional notion of criminal responsibility. The article provides an analysis of almost twenty-yearlong judicial practice of the Constitutional Tribunal in relation to establishing the meaningof the said notion and determining its scope and content. The conclusions arising from these remarksindicate that no satisfactory or uniform concept has been so far developed in this respect. As a result,doubts have arisen as to the application of appropriate constitutional patterns, including those connectedwith criminal responsibility.

Autonomia samorządu terytorialnego w Stanach Zjednoczonych Ameryki — zagadnienia konstytucyjne

Author(s): Agnieszka Pawłowska / Language(s): Polish Issue: 5/2013

The level of autonomy of local government in the United States is governed by state constitutions. However, the way in which it is regulated is inconsistent and raises interpretative doubts. Theanalysis includes two dimensions of local autonomy, i.e. the formal dimension (the procedure for itsenactment into state law) and material dimension (subjective scope of its operation). It is preceded byan indication of constitutional foundations (the principle of federalism) and of doctrinal backgrounds (formulated in judicial decisions made in the 19th century) of the current position of local governmentsin their relations with state authorities. This position has evolved towards greater autonomy of local authorities, reflected in the widespread acceptance of home rule doctrine. However, the implementation of the doctrine in the provisions of state law takes the form which can hardly be considered to bereal strengthening of the position of local government in its relations with the state.

Glosa do wyroku WSA w Warszawie z dnia 23 października 2015 r., sygn. akt VII SA/Wa 22/15

Author(s): Dorota Całkiewicz / Language(s): Polish Issue: 35/2017

Glosa do wyroku Wojewódzkiego Sądu Administracyjnego w Łodzi z dnia 26 kwietnia 2016 r., sygn. akt I SA/Łd 31/16

Author(s): Agnieszka Rotkiewicz / Language(s): Polish Issue: 35/2017

Glosa do decyzji Izby Konstytucyjnej Sądu Najwyższego Republiki Kirgiskiej z dnia 24 września 2014 r.

Author(s): Andrzej Pogłódek,Bogusław Przywora / Language(s): Polish Issue: 3/2017

Dysfunkcjonalność stosowanej klasyfikacji konstytucji ze względu na tryb ich zmiany na przykładzie współczesnych państw europejskich

Author(s): Radosław Grabowski / Language(s): Polish Issue: XXXI/2014

The article is the result of research devoted to the diversity of procedures concerning the amendment of constitutions in contemporary European countries. One of the conclusions drawn from these studies is the low suitability of the division of constitutions into,,flexible” and ,,rigid”, which is commonly applied in legal literature. The dichotomous nature of the classification causes that a series of constitutions is not classified on its ground. In addition, the scale based on the analysis of the modes of constitutional amendments,which was used in the late nineteenth century, does not correspond to the degree of the differentiation of the contemporary constitutions. Instead of the two modes distinguished by J. B. Bryce, the Author proposes to distinguish: 1) constitutions amended in a legislation procedure, 2) constitutions amended in a qualified procedure, 3) constitutions amended in a modified legislative procedure, 4) constitutions that provide a special mode of amending selected provisions. In addition, the Author introduces a further diversification, often wide-ranging, which allows for the isolation of subgroups and even further groups. All the above mentioned point out to the need for a new progressive classification,which would indicate the nuances of the analyzed field of constitutional law.

Uwagi o zgodności z Konstytucją badania dopuszczalności inicjatywy ustawodawczej

Author(s): Ryszard Piotrowski / Language(s): Polish Issue: XXXI/2014

The provision of Art. 34 p. 8 of the Standing Order of the Sejm, which allows for testing the constitutionality of the bill before the first reading, grants the Marshall of the Sejm a non-constitutional basis to prevent entities authorized to introduce legislative initiatives from benefiting from this right. For this reason it is questionable from the point of view of the constitutional principles of legislative proceedings. In light of these principles the draft of a statutory act may he rejected by the parliament following the procedure of three readings, but not at the stage preceding this procedure. The above mentioned provision is inconsistent with the principle of the specificity of law, because it contains ambiguous wording concerning the conditions, criteria and impact of the assessments made in this mode. What is more, the analyzed provision introduces a procedural solution which poses the risk of precluding the drafts of minority without referring them to the first reading,which is a threat to the principle of pluralism and the freedom of political parties, especially the parliamentary opposition.

Akty wewnętrznie obowiązujące jako przedmiot abstrakcyjnej kontroli Trybunału Konstytucyjnego

Author(s): Grzegorz Wierczyński / Language(s): Polish Issue: XXXI/2014

The first part of the article includes the analysis of the way in which the conditions concerning the control of internally binding acts are interpreted in Polish legal science and the case Jaw of the Polish Constitutional Tribunal. These conditions are expressed in art.188 p. 3 of the Polish Constitution. The second part of the article concerns the question of the adequacy of Art. 93 of the Polish Constitution as the specific model for the control of internally binding acts as well as the provisions authorizing their release. Finally, the Author presents conclusions concerning changes in the currently applied way of the interpretation of Art. 93 of the Polish Constitution.

Glosa do wyroku Trybunału Konstytucyjnego z dnia 3 grudnia 2015 r. (sygn. akt K 34/15)

Author(s): Marcin Rulka / Language(s): Polish Issue: 1/2017

The ruling relates to the problem of selection judges of the Constitutional Courton the positions vacated between end of the current parliamentary term and startof new tenure. The author criticizes the judgment of the Constitutional Court.

Na temat zasady określania kadencji sędziego Trybunału Konstytucyjnego, w szczególności odpowiedzi na pytanie, jaki dzień należy przyjmować za początek tej kadencji

Author(s): Bogusław Banaszak / Language(s): Polish Issue: 4/2017

W sprawie zgodności z Konstytucją Rzeczypospolitej Polskiej ograniczenia liczby kadencji organów wykonawczych jednostek samorządu terytorialnego

Author(s): Bogumił Szmulik / Language(s): Polish Issue: 4/2017