Janusz Roszkiewicz

Justification of Public Authorities Decisions as a Constitutional Value

The subject of this article is the question whether the Constitution of the Republic of Poland of 1997 provides a norm that requires bodies of public authority to justify their decisions, and therefore whether the authority should prepare such justification only when required by an express provision of the statute. The first part of the article presents the arguments on the constitutional, not statutory, nature of the justification requirement. The second part of the article discusses the standard of justifications, based on the examples of resolutions of the National Council of the Judiciary, decisions of the President of the Republic of Poland, and decisions of state commissions in electoral matters.

„Hidden powers” of the President of the Republic of Poland in Light of the Polish Constitution 

The article shows how to use imprecise provisions of the Constitution of the Republic of Poland to strengthen the powers of the President. ?Hidden? competences are powers explicitly granted to the President in the Constitution but used in an unorthodox way, unforeseen by the creators of the Constitution. The article discusses five cases: 1) possibility to ?push the Prime Minister out? of the international event ?hidden? in the power to convene the first parliamentary meeting after the election; 2) a ?small pocket veto? ?hidden? in the power to announce the bill in Journal of Laws within 21 days; 3) possibility of delaying of the signing of a bill ?hidden? in the mechanism of veto-withdrawal of veto challenge to the Constitutional Tribunal; 4) appointment of the presidential Prime Minister against the will of the parliament ?hidden? in the power to designate a temporary head of government; 5) possibility of evading the obligation to dissolve the parliament in the event of an inability to elect a government ?hidden? in the power to notify the Marshal of the Sejm of the temporary inability to hold office (the Constitution forbids Marshal of the Sejm, who acts
as the President, to dissolve the parliament).

The commented judgment of the Constitutional Tribunal recognises that the complete and lifelong exclusion of expungement of a criminal convicted for so-called paedophilia crimes is consistent with the principle of humanitarianism, the right to privacy, the right to personal freedom and the freedom to choose an occupation. In the author’s opinion, the judgment of the Constitutional Tribunal deserves criticism. The Tribunal refers only to the superficial degree to the constitutional problem presented to it, which in fact has been reduced to a simple conflict between “the rights of a criminal” and the abstractly understood “best interest of a child”. The reasonings lack any considerations as to whether the examined solution is effective in practice, i.e. whether it actually contributes to the protection of children against sexual offenders. The judgment of the Constitutional Tribunal illustrates the loosening of the standard for assessing the admissibility of restrictions on civil rights and freedoms, in which the overriding goal (in this case, “the child’s best interest”) plays a central role, while the fact whether a given solution is at least useful or necessary or proportionate is less significant.

Openness of court proceedings in compliance with the European Convention on Human Rights

The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.

Legal profession self-governments in the rulings of the Polish Supreme Court in disciplinary cases

The issue of the status of legal professional self-governments is not only of theoretical nature, but also is of significance for the practice of lawmaking in the area of regulations of the professions of public trust and disciplinary cases. This article examines three aspects. Firstly, it examines the possibility of deriving an obligation to establish self-governing bodies for certain legal professions directly from the Constitution. Secondly, it identifies the immanent competences of the professional self-government that the legislature cannot deprive it of. Thirdly, the article discusses the connections between the principle of autonomy of professional corporations and the restraint of the Polish Supreme Court in disciplinary proceedings.