Krzysztof Wojtyczek

The notion of non-pecuniary damage in Polish constitutional law

The explanation of the notion of non-pecuniary damage is relevant not only for determining the constitutional pre-conditions for liability of public authorities but also for the determination of the ways and the extent of compensation. The Constitutional Court, following legal doctrine, considers that damage in constitutional meaning is any injury to legally protected goods of any entity. This definition raises the following questions: 1) what is a legal good, 2) what is someone’s good, 3) how legal protection of a good should be understood and 4) what an injury to good means.

Generally, someone’s goods are individual goods, i.e. goods precious to someone, creating favorable conditions for his or her personal development, goods that cannot be disposed of by other legal subjects. The constitutional notion of damage means that an injury to good is enjoying protection reaching to a certain level of intensity. It encompasses also non-pecuniary goods. An injury to goods is the difference, assessed negatively, between the state of things resulting from the damaging event and the state of things which would have occurred if the damaging event would not have happened. The reparation of the damage should be adequate to its nature. The reparation of the non-pecuniary damage consists foremost in actions aiming at the restitution of the state of things which would have occurred had the damaging event not happened.

The right to an effective remedy in the Constitution of the Republic of Poland

The Polish Constitution does not encompass explicit guarantees of the right to an effective remedy for protecting rights. However, a deeper exegesis of its provisions shows that such a right is implicitly granted by the Constitution. If the Constitution grants the right to claim rights in judicial proceedings and the right to an appropriate compensation of damages caused by unlawful actions of public authorities, then it is possible to derive from the text of the Constitution the general right to effective judicial remedies which enable an adequate redress for violations of constitutional rights of interested persons. This right has three dimensions: a substantive (the obligation to provide redress), a procedural (the obligation to enact adequate procedural provisions) and institutional one (the necessity to create bodies empowered to entertain remedies). However, certain types of constitutional rights violations remain out of the scope of existing constitutional remedies.