The Constitutional Tribunal as co-creator of legal culture in Poland

This article begins with some remarks on the present state of political and legal culture in Poland. The overall picture is of a clearly pessimistic connotation. The society is politically divided, there is almost no dialogue or common respect between two polarized camps, appeals to populistic sentiments and antagonisms became a widespread phenomenon in the political life. The general situation is not without influence on the legal culture. On the one hand, the Constitutional Tribunal, as well as other segments of the judiciary, has already developed a constitutional culture based on judicial interpretation of the Constitution of 1997. On the other hand, within last two years many politicians developed an overly nihilistic approach to law in general and to the Constitution. Constitutional provisions are often seen as obstacles in implementation of political programs, legislative regulations do not follow constitutional requirements, judicial review is regarded as dysfunctional. Consequently, the Constitutional Tribunal’s independence and operational capacity became victim of different political and regulatory measures. This development has a structural nature, and constitutional remedies may not be sufficient to stop the trend. Nevertheless, the judicial branch is not entirely powerless. Although the Constitutional Tribunal may not be able to implement its constitutional tasks in full, other segments of the judiciary may assume, at least in part, some powers of judicial review. The situation, however, remains very dynamic.

The Constitutional Tribunal after thirty years – experience and the future

This article tries to answer three different questions: Did we create a stable and strong constitutional culture in Poland after collapse of the communist system? Has the model of constitutional review enshrined in the Polish Constitution confirmed itself over the 30 years of its application by the Constitutional Tribunal, notably considering the alternative model to the Tribunal’s concentrated review, i.e. the so-called dispersed constitutional review exercised directly by the common courts? As a third topic, the article deals with the perspectives of the constitutional review and necessary changes in that regard. It could serve as an instrument for the future improvement of constitutional culture as well as ensure a more effective influence of the basic constitutional values and principles on the entire legal order in Poland, notably through a stronger presence of the constitutional axiology in the judicial practice.

The conclusion of the first part of the article is that Polish constitutional culture is not sufficiently enrooted in the tradition and awareness of the Polish society – this concerns average citizens, as well as members of the political elite. This is one of the essential reasons why the Polish constitutional system, founded on a good institutional framework for the state ruled by law, has become so fragile with regard to the recent political and legal changes, which have an extremely negative impact on the legal order and which undermine the basic democratic principles, starting with the independence of the judiciary. This conclusion draws upon the author’s postulate that the constitutional legal order of the democratic state ruled by law must necessarily be strengthened by a well-organized civil society and by a good constitutional practice shaped in compliance with fundamental rights, basic values and principles.

The second part of the article presents arguments in favor of the centralized (concentrated) constitutional review model, which could in principle be maintained in the future. This model is better adapted to the Polish legal traditions and to the structure of the Polish judiciary, whereas the opposite model of decentralized judicial review could seriously weaken the principle of legal certainty. However, it is argued that this approach should not be understood as a categorical refusal of a direct application of constitutional norms, principles and values by common judges. On the contrary – the modern concept of judicial interpretation and application of law requires an openness towards the larger context of the legal order, including the constitutional, supranational and international texts, and presupposes observance of the basic rights and values which are guaranteed by these texts and universally recognized. However, the definitive elimination of legal provisions from the legal order should in principle be a prerogative of the constitutional court in conformity with the logic of the model of centralized constitutional review. At the present time, which sees the model of constitutional review paralyzed by prolonged constitutional crisis, and a clear violation of the independence of the constitutional justice by the parliamentary and governmental majority, the necessity of striving for a specific instrument to effectively apply the constitutional guarantees in the legal order must not be ignored. The author argues that this exceptional situation justifies a temporary replacement of the concentrated model of constitutional review by concrete judicial review, which means that the ordinary judges can refuse the application of statutory legal rules in specific cases if they do not comply with the constitution.

In the final part of this publication, focusing on the future perspectives, the author discusses necessary improvements of the constitutional review, in line with a more flexible approach allowing common judges to refuse in some situations the application of non-constitutional rules without referring a question of law to the constitutional court. The author also posits the necessity of introducing some modifications to the model of constitutional complaint and argues for an enlargement of the competences of the constitutional court, covering not only the review of the constitutionality of norms, but also the review of conformity with fundamental rights in their application.

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.

The rule of people or the rule of law? Comments concerning the report of the team of experts on the issues of the Constitutional Tribunal

The article is an extensive commentary on the report presented by the team of experts appointed by the marshal of the Polish Sejm (the lower chamber of the Polish parliament) to work on the crucial issues concerning Polish constitutional crisis. The assessment of the report presented in the article is negative, as the report has not achieved its objectives and does not meet the standards of rigorous academic work.