On the peculiarity of the interpretation of the constitution. Additional notes

The article puts forward a thesis that the peculiarity of the interpretation of the constitution is determined by two different factors: the properties of the constitutional text and expectations towards the constitution. The most difficult task of the interpreter is to recreate the norm of legislative competence from the constitutional text. This task consists in reconstructing all the instruments necessary to make a specific legislative decision and to perform an act of its control. These decisions, on the other hand, are acts of applying the law made with the use of mentioned instruments, and are not interpretive acts.

Constitution-hostile interpretation

The author tries to describe very strange phenomenon which one can observe in actual Polish constitutional practice. He calls it “interpretatio constitutionis hostilis” (constitution-hostile interpretation). The considerations are based on some legislative examples, and the author comes to the conclusion that this unconstitutional strategy is: firstly, hidden, although applied with full conscious and intention; secondly, based on acting in bad faith; thirdly, very dangerous for the legal order.

Assumptions and reality of judicial power – remarks on the 20th anniversary of the entry into force of the Constitution of the Third Polish Republic

The article is devoted to the constitutional regulation of the judiciary in Poland. The author discusses the basic normative solutions and analyzes the practice. The author notices a constant tendency of the executive branch to influence the activities of the courts. The actions taken by current state authorities (legislative and executive branches) against judicial power should be considered as unprecedented. Unconstitutional legislation and decisions taken by the legislative and executive authorities enabled, among others, dismissal of the presidents of common courts, partial exchange of judges of the Constitutional Tribunal and dismissal of 15 judges – members of the National Council of the Judiciary. It is also planned to release from the office of a significant part of Supreme Court judges. There is no doubt that all these activities lead to a violation of the independence of the courts and judges in Poland.

The problem of guarantee of the constitutionality of legislation in the light of Hans Kelsen’s pure theory of law

Overall, from the perspective of H. Kelsen’s pure theory of law the constitutional guarantee means “ensuring the conformity of the state’s actions with the law.” A particularly important issue is the compliance of legislature with the constitution, as in view of the classic form of the doctrine of division of powers, it is the legislative power that occupies a distinctive position in that system. The issue of constitutional guarantee arises from the assertion that if the norms of the constitution outrank the norms of the “common law” they cannot be altered by them (“expressly or tacitly”). Pure theory of law demonstrates that the very structure of modern rationalised and specialised law causes that this problem is, in a sense, rooted directly in the meaning of the constitution in modern legal systems. According to H. Kelsen it is possible to distinguish three models of guarantee of compliance of law with the constitution (constitutional guarantees): model 1: the constitution does not contain any definition as to who should control the constitutionality of law, whilst in practice there are bodies that the constitution authorises to enforce the law; model 2: the constitution does not define an entity authorised to control the constitutionality of law and,moreover, it excludes such a possibility in the case of bodies applying the law, thus the legislative body itself is entitled to decide whether the law passed by it is constitutional; model 3: the constitution may appoint an organ other than the lawmaker and empower it to review the constitutionality of law, i.e. authorise to control the adoption of acts that are incompatible with the constitution. None of the above models fully secures the provisions of the constitution, however, model 3 reduces the shortcomings of models 1 and 2, namely it diminishes the uncertainty or illusory nature of constitutional guarantee of legislative acts. Model 3, which provides for a different organ examining the constitutionality of law than the lawmaker, “gives priority” to the legislative procedure governed by the Constitution. It is to prevent the emergence of “alternative legislation” (the consequence of model 2), i.e. the primacy of political power over the constitution, imposing its “alternative legal order” that is not based on “supreme law” but on pure political will. The guarantee of constitutionality of acts expressed by means of model 3 refers mainly to the legislative procedure specified in the constitution. Hans Kelsen postulates the restraint of the control body in matters of interpretation of fundamental constitutional principles such as justice, freedom or equality. Model 3 postulates a balance between the legislature and the control body: the basic criterion for the legislator may rest in political validity or effectiveness, while for the controlling body such a criterion consists in compliance with higher law, as far as it can be accurately interpreted. This excludes the dominance of any of the said bodies.

Commentary on the Judgement of October 19th 2017 issued by the European Court of Human Rights in the case of Nawrot v. Poland, application no. 77850/12

The discussed judgment concerned involuntary psychiatric hospitalization of a man accused of robbery. In the course of criminal proceedings the medical experts stated that the applicant suffered from psychotic disorders and organic damages in the central nervous system. After 4 years of stay in the psychiatric hospital, the new experts held that the applicant did not suffer from any psychotic disorders and diagnosed him only with personality disorders. At the same time, the applicant admitted that he had only simulated a mental illness in order to avoid criminal responsibility, and requested the court to release him. However, the courts refused to order a release for the next 2 years. The ECtHR ruled that the continuation of deprivation of liberty after submission of the medical opinion which confirmed that the applicant had not been mentally ill, violated Article 5 § 1 of the Convention. The article analyses two aspects of the case: the potential impact of simulation of mental illness on the admissibility of the application and the definition of the term “unsoundness of mind” in the case law of the ECtHR.