Monika Florczak-Wątor

The presumption of constitutionality is a common point of reference in the case law of the Polish Constitutional Tribunal. Although this concept is not directly expressed in the text of the Polish Constitution of 1997, the Tribunal emphasizes its constitutional anchoring. The analysis of the Tribunal’s case law enables us to identify the subject of the presumption of constitutionality, as well as the moment of its acquisition and invalidation. In its decisions the Tribunal presents the opinion on the gradation of the presumption of constitutionality, as well as the close relations between the presumption of constitutionality and the interpretation of law in accordance with the constitution. Treating the presumption of constitutionality as a starting point in exercising the judicial review raises a question to what extent the Tribunal itself is bound by this presumption. The analysis of the Tribunal’s case law leads to the conclusion that this concept has the key role in the argumentation applied in the process of judicial review.

This paper is devoted to the problem of developing constitutional standards for the protection of individual freedoms and rights in the case-law of the Polish Constitutional Tribunal. It analyzes the problem of the minimum standard of protection of individual rights set in the Constitution of the Republic of Poland of 1997 and the possibility of its development in the form of an ordinary statute, as well as the problem of a collision between constitutional and EU standards. The author comes to the conclusion that after 2015 in the jurisprudence of the Constitutional Tribunal we observe a consistent lowering of constitutional standards of protection of individual rights and freedoms.

This text is an extended and modified version of the paper presented by the author during a scientific conference held on 16 June 2018 at the Jagiellonian University in Krakow. It presents the merits of the current Constitutional regulations as pointed out by respondents to the Constitutional Survey conducted in 2017 amongst representatives of the science of constitutional law in Poland. The analysis of the results of this Constitutional Survey leads to the conclusion that the Constitution is generally positively evaluated by those who have been researching it for a number of years. It was pointed out that its merits outweigh flaws and that it is not so much the content or axiology of the Constitution, but rather the practice of its application, that can be assessed in a negative way. The Constitution is being used instrumentally at the moment and amended through ordinary laws. An analysis of the answers to the questions in the open part of the Constitutional Survey shows that constitutional law experts see a need to strengthen the guarantees of rigidity and stability of the Constitution and to increase the effectiveness of measures for protection of constitutional rights and freedoms. Representatives of the Polish science of constitutional law came to an almost unanimous conclusion that at present we are not having the so-called constitutional moment and inasmuch it is necessary to discuss the need to amend the Constitution and to propose different alternative solutions, yet there are no conditions for its amendment.

In December 2016, the President of the Republic of Poland applied to the Constitutional Tribunal for the constitutional review of the Act of 13th December 2016 on Amendments to the Act – Law on Assemblies. The Amending Act introduced the concept of “cyclical assemblies,” defined as assemblies organized on an annual basis within last three years or at least four times a year. When this Act entered into force, there was only one kind of assembly that met the requirements pertaining to cyclical assemblies: the monthly assemblies held to commemorate the victims of the Smolensk plane crash (the so-called Smolensk monthlies). In respect of the Amending Act, the President formulated three objections, two of which have finally been examined by the CT on their merits, while proceedings concerning the third one were discontinued. The CT has ruled that the Amending Act granting privileges to cyclical assemblies are in conformity with the Constitution. The author of the commentary expressed critical assessment, both in terms of how the CT resolved each of the three objections and in terms of the reasons for these decisions. Determination of the legal consequences of the commented judgment is difficult as the panel that issued the judgment consisted of unauthorised persons, appointed to fill positions of judges of the CT that had been filled by the Sejm in the previous term.

The paper discloses the reasons why the principles of remunerating attorneys-at-law who provide legal aid ex officio do not meet constitutional standards as well as indicates the resulting legal consequences. The author concludes that differentiating the remuneration of attorneys-at-law appointed by a party to the proceedings and attorneys-at-law appointed by the court for the same activities undertaken as part of the legal aid provided is unconstitutional, especially in the light of the conclusions resulting from the analysis of the judgement of the Constitutional Tribunal of 23 April 2020, file ref. SK 66/19. The paper also interprets the possible ways of removing the aforementioned unconstitutionality in the process of judicial application of the law, which may be significant before the compliance with the Constitution of the principles for remuneration of attorneys-at-law providing ex officio legal aid will be ensured by the legislator. 

The paper discloses the reasons why the principles of remunerating attorneys-at-law who provide legal aid ex officio do not meet constitutional standards as well as indicates the resulting legal consequences. The author concludes that differentiating the remuneration of attorneys-at-law appointed by a party to the proceedings and attorneys-at-law appointed by the court for the same activities undertaken as part of the legal aid provided is unconstitutional, especially in the light of the conclusions resulting from the analysis of the judgement of the Constitutional Tribunal of 23 April 2020, file ref. SK 66/19. The paper also interprets the possible ways of removing the aforementioned unconstitutionality in the process of judicial application of the law, which may be significant before the compliance with the Constitution of the principles for remuneration of attorneys-at-law providing ex officio legal aid will be ensured by the legislator.