The Integral Legitimacy of the Constitution

The aim of the article is an attempt to formulate main assumptions of the concept of integral legitimacy of the constitution. The first one is an opinion that the integral legitimacy is included in the nature of the constitution and is a necessary element of the core of constitution. The second one is an opinion that there is an unbreakable bond between the form and the content of the constitution, which decides about legitimacy of the constitution. The third one is an opinion that the integral legitimacy of the constitution is two-stage legitimacy. The first degree is a necessary element of each constitution. It provides the overall framework of the constitutional order. The second degree is an extension of the first degree of legitimacy and results from the decision of the society concerning the form and the content of the constitution. The last one is an opinion of multidimensional character of the legitimacy of the constitution. The legitimacy is based on belief in social acceptance for the principles of the idea of constitutionalism, which are reflected in rules and values creating the core of the constitution.

Progress in the Constitutional Theory. Evolution of Doctrine on (un)Constitutional Change of Constitution

This paper is an attempt to characterize the phenomenon of a scientific progress in jurisprudence on the example of the evolution of the ideas on the conditions and scope of the allowable constitutional amendments of the 1997 Constitution of Poland. Explaining the notions of formal and material limits of amending a constitution, we show that those limits are constituted not only by the explicit constitutional regulations but also by the practical context of constitution’s functioning and doctrinal assumptions being the fundaments of a political or social system that it realizes. In the final part of the paper the identified elements of the progress in constitutional law are seen in the light of the theories of scientific progress formulated in the literature, with the conclusion that the described change of the ideas on material amendments of the Polish Constitution bears the marks of a scientific progress.

Dignity as an Attribute of Collective Entities and Dignity as an Institutionally Grounded Attribute: Types of Dignity – a Proposed Systematisation (Part 2)

This study aims to identify various meanings of the expression (name) “dignity”, with particular emphasis on the meanings of this expression as it appears in the text of the Constitution of the Republic of Poland. The meaning of the name “dignity” is the concept of dignity; in turn, the different concepts of dignity encompass dignity of particular types. Twelve different meanings of the expression “dignity” are indicated – twelve different concepts of dignity, and thus twelve types of dignity. Half of them are meanings (concepts) that recognize dignity as something belonging to a human being as a subject of law. They were considered in the essay Godność jako właściwość osoby. Typy godności – propozycja systematyzacji [Dignity as a Quality of Person – a Proposed Systematisation]. This group of meanings includes three concepts of dignity which recognize dignity as something constitutive of being a person: (1) inherent dignity of the person, (2) dignity established by qualities specific to a thinking being, and (3) dignity as a historically emergent social status of all human beings. The second group of meanings, treating dignity as something with which the human being (the person) is endowed, includes concepts which encompass (4) personal dignity (honour and good reputation), (5) dignity as moral excellence, and (6) dignity as appropriateness of attitude or behaviour.

Dignity as an attribute of collective entities and dignity as an institutionally grounded attribute are a subject of this paper. The Constitution of the Republic of Poland speaks of (1) the dignity of the Nation, (2) the dignity of office or function, and (3) public dignity. The expression “the dignity of the Nation” can be understood in four different ways: (i) analogously to the understanding of dignity of the person, (ii) of personal dignity, (iii) of dignity as moral excellence, and (iv) of dignity as appropriateness of attitude or behaviour. The expression “dignity” when designating something institutionally grounded can designate (4) the dignity of social roles, (5) the dignity of a profession, and – specifically to the Polish language – (6) dignity meaning a surname.

The author argues that it is unacceptable to ascribe different concepts of dignity to the expression “dignity” appearing in a specific legal provision.

Right to a Tribunal Established by Law and the Adjudication by Judges of Common Courts Appointed at the Request of the National Judicial Council after 6 March 2018

The purpose of the article is to discuss the problem of common courts adjudicating in panels with judges appointed at the request of the National Council of the Judiciary after 6 March 2018 from the perspective of the right to a tribunal established by law guaranteed by Article 6(1) of the ECHR. In particular, the research problem of the article is to determine whether adjudication by a common court in panels involving such persons always leads to a violation of Article 6(1) ECHR. The article presents the view that the appointment of common court judges at the request of the reorganised NCJ, possibly with exception to assessors and former assessors appointed to their first judicial positions, constitutes manifest violation of fundamental rules of appointment of judges. This position is supported by the previous ECtHR case law, according to which adjudication by defectively appointed Supreme Court judges led to violation of the right to a tribunal established by law. However, the mere fact that a common court judge has been appointed in manifest violation of domestic law does not mean that the issuance of a ruling by such judge must always lead to a violation of Article 6(1) ECHR. In the process of assessment of whether there has been a violation of the Convention, the ECtHR also takes into account whether the national courts have adequately reviewed and remedied the violations of law that occurred at the stage of judicial appointments. The article presents the view that if a domestic court undertakes a comprehensive assessment of the judicial appointment process and then concludes, relying on the values expressed in the ECHR and in the case law of the ECtHR, that despite participation of unlawfully appointed person in adjudication panel an individual’s right to court was not put at risk, a violation of Article 6 ECHR can be avoided. If, however, the issue of the judge’s appointment is not examined at all or is done so only superficially, there will be a breach of the ECHR.

Bill of Attainder in the Light of the Constitution of the United States of America

Passing bills of attainder is explicitly prohibited by article I section 9 sentence 3 of the U.S. Constitution. In the article the author carries out analysis of U.S. case-law, as well as American doctrine of law, in order to decode the contemporary meaning of the notion “bill of attainder” in the U.S. Constitution. The article presents the development of the aforementioned concept chronologically, beginning with the Ancient Rome and Medieval England. The crux of the article is to embrace the evolution of the case-law of American courts: from the assessment of repression against defeated Confederates and legislative struggle against communism in 20th century, to the attempt to challenge contemporary economic legislation. Once the case-law has been analysed, the concise definition of bill of attainder is presented: it is a legislative act, which determines guilt and imposes a punishment on selected natural or legal persons, who are thereby deprived of judicial protection. The caselaw confirms as well that the assessment of punitive character of regulation should be made through the prism of three criteria (historical, functional and motivational).

Proportionality versus Restrictions on Freedom of Movement and Religion During a Coronavirus Pandemic: The Case of Greece

The text discusses selected legal solutions used to deal with the coronavirus pandemic and restrictions on freedom of movement and religion in the Hellenic Republic introduced on their basis. The restrictions introduced in the initial phase of the pandemic, in the period between March and July 2020, were analyzed in terms of compliance with the proportionality principle. The main legal instrument used to deal with the pandemic were the ordinances of the President of the Republic. These are normative acts issued by the President of the Republic at the request of the Council of Ministers. Based on these regulations, the Council of Ministers reacted relatively quickly to the changing conditions caused by the pandemic, in particular the increase in the number of infections. The greatest limitations of constitutional freedoms and rights concerned freedom of movement. Greek citizens had to obtain a pass in the form of an SMS message each time. The pass system was met with reluctance by the Greek public. In particular, the rules for the collection and processing of personal data were not defined as a legal act. The rulers issued only soft law document. There were also doubts about the unlimited storage time of data of patients suffering from coronavirus and the method of anonymizing data obtained from passes. Regarding freedom of religion, Greece has generally banned religious practice in temples by persons other than those directly celebrating.

The disease statistics show that the measures chosen by Greece during the period under review have been successful. The state handled the pandemic relatively well. Whereas, the courts recognized the compliance of the adopted restrictions with the Constitution.

On the Inappropriateness of the Ástráðsson Test against the Presidential Prerogative: A Gloss to the Judgment of the Supreme Administrative Court of November 4, 2021 (III FSK 3626/21)

The Supreme Administrative Court in the commented judgment unfortunately made an unsuccessful attempt to carry out the Ástráðsson test with regard to a person appointed by the President at the request of a politically subordinate (in violation of the Constitution) National Council of the Judiciary. Failure to do so is a kind of paradox of the commented judgment. A significant part of it relates to supranational and international law. „Europeanness” is ubiquitous in the judgment and was additionally included in its thesis. According to its content, assessors and judges are European judges. However, this otherwise catchy statement is not confirmed by the application of the judgment of the ECtHR to the assessment of an judge.

On the constitutional level, the judgment also deserves criticism. The court considered it justified to refer to the judicature of the Supreme Administrative Court, the Supreme Court and the Constitutional Tribunal, referring to some extent to the presidential prerogative of appointing judges at the request of the National Council of the Judiciary, in order to reach a conclusion about the almost „magically healing” effect of the presidential act of appointment to the office of judge. The NSA also did not comment on the total deprivation of any real influence of the judiciary on the nomination procedure. Therefore, one should ask what is the balancing of the legislative and executive powers with the judiciary power absent from the National Council of the Judiciary?