Michał Szwast

Formation of the right to court in Polish law before the adoption of the Constitution of the Republic of Poland of 1997

The article presents the formation and evolution of the right to court (right to fair trial) in the Polish law from medieval times to the adoption of the Constitution of the Republic of Poland of 1997. The development of the right to court in Poland has evolved under the influence of solutions adopted in the European legal systems, to which also Polish regulations have made a significant contribution. Thus, the bilateral reception of the models of the right to a fair trial took place, whereas the directions of this reception were changing over time. The achievements of Polish legislation in the historical development of a right to fair trial are significant on a world scale. In particular, in the period between the end of the Middle Ages and the mature phase of the Enlightenment, the documents forming the foundations of the European right to court were adopted (respectively: Jedlnia-Kraków privilege of 1430–1433 and the Constitution of May 3, 1791). The Constitution of the People’s Republic of Poland of 1952 did not provide for a subjective right to court indicating only which courts exercise justice in the People’s Republic. However, it was not possible to derive the right to court from these provisions and, in fact, the possibility to protect infringed rights before courts were often excluded. Between 1989–1997, when the democratic state of law was shaped in Poland after the fall of the Polish People’s Republic, the right to court was derived by the Constitutional Tribunal from the principle of a democratic state ruled by law.

Gloss to the judgement of the Polish Supreme Administrative Court of February 17, 2016 (case file no. II GSK 151/16, concerning the inaction on taking the oath from an attorney-at-law)

The subject of the gloss is the decision of the Polish Supreme Administrative Court concerning the admissibility of judicial control over inaction in the matter of taking the oath from an attorney-at-law, which determines the effectiveness of the constitutional personal right to a court. The content and arguments of the judgement have an impact on other procedures in which taking an oath is a necessary element of obtaining the right to practice a specific profession or activity. The author of the gloss expands the argumentation of the Polish Supreme Administrative Court on the necessity of pro-constitutional interpretation of the provisions of acts which expressis verbis do not provide for the right to submit a complaint against inaction in taking the oath from an attorney-at-law.