Article 9 of the Polish Constitution establishes the obligation of respect by the Republic of Poland of international law binding upon it. This provision belongs to the fundamental principles of the Polish legal system. However, it cannot be excluded that the interpretation or application of an international agreement, to which Poland is a party, will be changed by other parties or organs of an international organisation without consent of Poland. It could cause the conflict with principles or paticular provisions of the constitution. The case law of the European Court of Human Rights and the Court of Justice of the EU, leads to the conclusion that for a certain period of time, state authorities of Poland, by legislation or interpretation, attributed to provisions of the Polish constitution the meaning incompatible with their understaning at the moment of the accession of Poland to an international agreement. The protection of the supremacy of the constitution “modified” this way is equivalent to the use of an unconstitutional interpretation in order to free government from obligation to respect international law binding upon Poland.

The article presents arguments in favor of defining the European Court of Human Rights as a “European constitutional court,” and from that angle analyzes its approach to the rule of law crisis in Poland. Although the ECtHR does not rule based on constitution nor has the competence for abstract control of the “conventionality” of normative acts, voices in the literature have long argued that calling it a “European constitutional court” is not unfounded. There are several arguments supporting this view. The Court often indirectly or directly analyzes the “conventionality” of national legislation when addressing specific cases. Moreover, even though the ECtHR does not have the power to annul laws, its rulings frequently lead to legislative changes in European countries. The Court’s function cannot be narrowed down to resolving individual cases before it; through its jurisprudence, it develops new standards and significantly affects national legal systems. However, the ECtHR’s role as a “European constitutional court” is limited by factors such as the substantive scope of the convention itself, the principle of subsidiarity, and the related doctrine of the margin of appreciation. In recent years, a significant challenge for the ECtHR as a “European constitutional court” has been the rule of law crisis in Poland. Given the actual paralysis of the Polish Constitutional Tribunal, the ECtHR had to resolve a number of important issues, especially attacks on judicial independence. Often, violations of the Convention concerning threats to judicial independence resulted from the Polish authorities violating norms derived from the Polish Constitution and undertaking actions in bad faith, which the Court itself recognized in its rulings. In this way, it contributed not only to the protection of freedoms and rights guaranteed in the Convention but also to the defense of the Polish Constitution.

This paper examines recent case law from the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) concerning the right to a fair trial, with a particular focus on cases arising from the Polish rule of law crisis that began in 2015. It begins by outlining the constitutional standard for the right to a fair trial as established by the Constitutional Tribunal of Poland, highlighting the key elements defined in the Constitution of the Republic of Poland. The paper then explores whether recent rulings from the CJEU and ECtHR modify or clarify this constitutional standard. Subsequent sections analyze the latest case law from both European courts in the context of the Polish crisis. These sections also include an examination of significant precedent decisions from the CJEU and ECHR regarding the right to a fair trial, which have influenced the judgments related to the rule of law crisis in Poland. Notable cases discussed include the CJEU ruling in the Associação Sindical dos Juízes Portugueses case, as well as the ECHR judgments in the Ástráðsson and Eskelinen cases. The conclusion addresses how these judgments have impacted the constitutional standard for the right to a court, the differing approaches taken by the two tribunals regarding violations of the right to a fair trial in Poland, and the potential of their case law to help restore the rule of law in the country.

The translated judgment of the European Court of Human Rights (ECtHR) was issued in a case in which the applicants alleged a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms due to the lack of independence and impartiality of the Court of Arbitration for Sport (CAS). CAS is the most important body resolving disputes in the world of sports. It proves the ECtHR’s favourable attitude towards the institution of arbitration. The Strasbourg Court recognized CAS as an independent and impartial court established by law within the meaning of Article 6 section 1 of the Convention and emphasized the benefits for the parties and the entire justice system resulting from the existence of the arbitration dispute resolution procedure. It had a huge impact on the way in which fundamental issues of sports law were adjudicated, such as sanctions against athletes using doping or the admissibility of imposing sanctions on athletes for the actions of state authorities. The attitude of the ECtHR contrasts with the case law of the Court of Justice of the European Union, which established a number of conditions that must be satisfied by the judicial authority. They are difficult to be satisfied by most of arbitration bodies, which significantly hinders the development of arbitration in the European Union.

The author has analysed and translated the judgment of the European Court of Human Rights of 11 July 2022 in the case of Kavala v. Turkey, application no. 28749/18, made on under the infringement procedure. In this judgment, the Court pointed out a number of previously unarticulated theses on: the enforcement of its judgments, the infringement procedure, the relationship between the Committee of Ministers and the Court, as well as the role of conducting the infringement procedure itself when the Committee of Ministers considers that a State Party to the Convention is refusing to comply with its obligation to respect an issued judgment. The ruling may therefore have significance for a number of cases, including Polish ones, in which states do not comply with the execution of ECHR verdicts.

In the discussion on the procedure for determining the risk of violating the rule of law under Article 7 (1) in connection with Article 2 TEU, it is sometimes alleged that it is difficult clearly to determine the content of the term “rule of law”. Thus, according to some, the whole procedure suffers from the flaw of arbitrary assessment, since allegedly there is no precisely defined standard of assessment.

The main purpose of this article is to show that despite everything we are able to reconstruct the hard core of the rule of law, because its concept is deeply rooted in the long history of European legal culture. The author shows it on the example of Cicero’s political philosophy, especially on one sentence from his famous Oratio pro Cluentio: “The law has its ministers in our magistrates, its interpreters in our jurors; it makes servants of us all only to set us free”.

The publication is devoted to several examples of the practice of criticism of the Head of State and executive power in Polish history. The authors have chosen three moments of interest: the first one is the first decade of the “Congress” Polish Kingdom established in 1815, and the second refers to the Second Polish Republic in the period after the coup d’État by Józef Piłsudski in 1926. Finally, the authors refer to some practical aspects of criticism of the authority in the public space in recent times, also recalling the high-profile criminal trial that reached the highest instance – the Supreme Court in 2023. In these examples, the authors focus on aspects of the permissibility of criticism, its specific forms and the reaction of the executive in the early history of the constitutional state and camouflaged criticism of power respectively, through the interwar liberal model of protection of freedom of speech and of the press, which failed in the face of authoritarian changes and the political will to protect the good name of one particular individual; after the death of Piłsudski, the lack of adequate legal protection post mortem was finally “remedied” by a particular repressive law. The last section of the discussion refers to the contemporary Polish state of law, and here the focus is on the faces of criticism and the forms of its suppression. In particular, attention was paid to the problem of the extensive use of means used by the police against criticism particularly unpleasant to the power camp (up to the bizarre action with the hiring of a jib) and the question of maintaining specific protection of the Head of State against defamation in the Criminal Code.

Brexit as a hybrid phenomenon, that is, both legal and political, is the next stage in the debate on the place and role of the European Union (EU). The analysis of the impact of EU legislation on the shape of British constitutional law requires establishing the admissibility of reversing existing constitutional modifications. The author will argue that the age of globalisation and establishing legal network links, the participation of states in supernational organisations can result in irreversible modifications of the scope and meaning of constitutional law. In a simplified way, individual legal systems in a legal pluralism are “open”. The changes taking place are irreversible because they concern the foundation of competences as well as the system position of individual national authorities.

The concept of sustainable development is multidimensional. It can be thought of as actions taken at the social, environmental, and economic levels to ensure that the needs of future generations are met like those of current generations. Sustainable development appears in numerous acts at national and international levels. The most comprehensive approach to this issue was presented by UNESCO, which presented a list of seventeen sustainable development goals. The implementation of the Sustainable Development Goals is also an objective of the Council of Europe. The body of particular importance for their implementation is the ECtHR. This article addresses only a selected issue relating to one of the tasks of sustainable development, i.e., environmental rotection. The Convention does not contain provisions relating to environmental protection. Nevertheless, the ECtHR directly refers to environmental issues in its case law. The text considers how the Court tries to protect the environment. At least two such situations can be distinguished. Firstly, the Court refers to the possibility of limiting conventional freedoms and rights for the protection of the public interest, which is environmental protection. Secondly, the ECtHR forces states to need to protect the environment due to the inability to exercise the freedoms and rights conventional (in particular those expressed in Articles 2 and 8 ECHR). The text also analyzes the potential effects of complaints brought from 2020 on stopping climate change.

Two years after the abortion decision of the Polish Constitutional Tribunal and just after the mid-term election in the USA, there was a calculation that the abortion issue might play a pivotal role in the parliamentary election in Poland in the Fall of 2023. Analysis of the USA election showed that the Dobbs v Jackson Women’s Health Organization decision of the Supreme Court of June 2022 and discontent among voters on its result violating women’s rights significantly contributed to the electoral achievement of Democrats. On the eve of the electoral campaign in Poland, there was a hope that a similar trend might occur in the next election and might contribute to the loss of the majority of illiberal rulers. The paper focuses on using abortion arguments within the electoral campaign by competing political parties. The main question is, to what extent did the abortion issue influence the result of a general election in Poland in 2023 and the change of the ruling majority?

The “Law and Justice” government in Poland in 2016–2020 conducted a controversial “judicial reform”. As a result, access to the profession of judge and prosecutor for people with dual citizenship was initially denied and eventually significantly restricted. In this piece, we analyze these legislative changes through the lens of their conformity with the Polish Constitution, in particular with the constitutional right of access to public service, as well as with Poland’s binding international law. We are also critically examining the arguments raised to justify these regulations and identifying the effects of their implementation. We argue that depriving people of multiple citizenship of access to the judge or prosecutor profession violates the Polish Constitution, as well as international law.

The chilling effect is a real threat to freedom of expression and unfettered public debate. It occurs when, as a result of the conduct of public authorities, an individual decides to refrain from freely exercising his or her rights, even though they have not been formally restricted or taken away. This self-restraint is caused by fear of the negative consequences of freely exercising one’s rights, which leads the individual to calculate whether the action in question, although formally lawful, is cost-effective. Such a fear should be real and therefore at least substantiated by objective factors. The account is less obvious if the renunciation of the exercise of rights is based on a threat that is unreal or vague.
In legal discourse, the chilling effect is also identified, not necessarily correctly, in different contexts. First, it is sometimes recognised in cases of pressure by political authorities on independent judges. Second, it is claimed in relations between non-state actors, especially between government-sponsored private agencies that launch smear campaigns against political opponents, or between internet platforms and their users. Such use of the chilling effect doctrine may be intellectually appealing, but ultimately dilutes its meaning.
It is much easier to identify a chilling effect when it is assumed to be the consequence of a flaw in the design of a legal provision than when it is alleged to result from acts of application of the law. In the latter case, the concept of chilling effect seems to serve two main purposes: the criticism of bad practices on the part of public actors, and the strengthening of the persuasiveness of judicial decisions that employ the concept. Its usefulness for legal analysis is therefore limited.

In its judgment of 22.10.2020 (K 1/20), the Constitutional Court ruled out the possibility of aborting a pregnancy due to the occurrence of a so-called embryopathological premise. It deprived women of the possibility to make an autonomous decision in the case of severe and irreversible disability or incurable disease of the fetus. The paper analyses the Court’s errors in, inter alia, establishing the constitutional status of the nasciturus, conducting the dignity argument or the proportionality test. The authoress shows that the judgment is political and ideological in nature and that the Court refers to the judgment in Case K 26/96 in a selective and manipulative manner. The text to some extent polemics with the theses of P. Łącki and B. Wróblewski presented in the paper on Niekonstytucyjność tzw. aborcji eugenicznej (embriopatologicznej). Schemat argumentacji Trybunału Konstytucyjnego w sprawie K 1/20 (Unconstitutionality of the so-called eugenic (embryopathological) abortion. The pattern of argumentation of the Constitutional Tribunal in Case K 1/20), which came out in the previous issue of the “Przegląd Konstytucyjny” quarterly.

The subject of this article is the legal status of an election commissioner as an authority of election administration. The starting point for further analyses is the reconstruction of the basic aspects of an electoral commissioner’s status. In this respect, it is pointed out, among other things, the consequences of defining him as a “plenipotentiary of the State Electoral Commission” and the necessity to understand this phrase in a non-civilist way. The following part discusses the issue of tasks and competences of election commissioners. The author notes the unconstitutionality of entrusting election commissioners with the creation of polling districts and electoral districts in local government elections. A further subject of analysis is the procedure for appointing election commissioners. The participation of the minister responsible for internal affairs in it is criticised. The author also reflects on issues related to the conditions of performing the function of commissioner, such as remuneration or temporary inability to perform the function. In this respect, among other things, it is pointed out that the election commissioner does not perform his/her function within the framework of an employment relationship, but within the framework of a non-employee employment relationship of a constitutional nature. A separate issue discussed in the article is the question of premature termination of the function of the election commissioner. The author draws attention, inter alia, to the problems related to the legislator’s provision that the function expires by operation of law in the event of the fulfilment of an unspecified condition of carrying out unacceptable activities. It is also emphasised that an electoral commissioner who has been removed from office before the expiry of his or her term of office has the right to lodge a complaint on this matter with the administrative court. The article ends with the most important final conclusions concerning the analysed issues.

If we understand constitutionalism as the recognition that power worthy of the name must be limited by supra-cultural values independent of it, the existence of which is confirmed more by faith than by experience, then constitutionalism is coessential with democracy – assuming that the concept means a system where authority is limited by human rights, as defined in a dialogue between majorities and minorities. Constitutionalism, in the sense postulated here, determines the democratic state’s identity, which consists not only in separating the majority from the subordinate minority, but also in respect for the values that give meaning to humanity.

The article’s research aims to answer whether constitutional identity (as well as numerous doctrinal studies concerning constitutional identity) may substantially help solve problems regarding the relationship between European law and national law. The article discusses the hypothesis that the identity and the studies multiply doubts and uncertainty rather than answer the pragmatic questions in constitutional law. The author deals with identity as a social construct and convention created by academics and constitutional courts. Identity belongs primarily to the dictionary of academic language. It is rarely used in normative acts, in particular in constitutional provisions. The constitutional identity seems to be also vague and controversial for the author. Nevertheless, studies on identity may – as the article suggests – realise at least one (constitutionally important) aim. It is a better self-consciousness of constitutional law scholars, which may help them – at the end of the day – to discuss the relationship between European law and national law in more and more precise terms.

The article discusses the statutory procedure for adopting resolutions of the Sejm on declaring a given year a year of a person or event (the so-called anniversary resolutions) and the practice of working on them in the Committee on Culture and Media of the Sejm of the Republic of Poland. Frequent changes in regulations and the increasing number of patrons are criticized, and above all, the inappropriate role of the Committee’s presidium, which often does not submit all drafts of resolutions which are addressed for its consideration. Weaknesses during the work on the so-called anniversary resolutions in 2023 resulted in another amendment to the Rules of Procedure of the Sejm relating to it.

This paper will analyze the scope of what the United States legal system as well as their international counterparts recognize and therefore, define as religion (part 2), to develop an argument supporting the potential need for limitations on unorthodox religions in the modern era (part 3) as exemplified in the instances of the following: the practice of LaVeyan Satanism, Scientology, and Pastafarianism (part 4). For the purposes of specificity, the following analysis will focus on the United States government and federal courts’ opinions regarding the topic at hand.

The text aims at reconstructing the structure of the arguments of the Polish Constitutional Tribunal in the judgment of 22 October 2020, in which the so-called eugenic grounds for termination of pregnancy were held unconstitutional. The assumption of the presented considerations is the recognition that this judgment amounts to be a possible and natural development of jurisprudence regarding the disputed constitutional issue. The authors argue that the essential structural elements of the Tribunal’s reasoning (i.e. its two-stage nature consisting in examining the constitutional subjectivity of the nasciturus and carrying out the proportionality test) do not raise objections in the light of the method of resolving the constitutional problem adopted by the Constitutional Tribunal. In turn, the partial conclusions of these argumentation stages (i.e. recognition of the subjectivity of the nasciturus on the basis of Article 38 of the Constitution regulating the legal protection of life, as well as the recognition that the challenged regulation does not meet the proportionality test) are based on the existing doctrinal stipulations, and even more so on the existing jurisprudence of the Tribunal. The judgment is largely of an application nature in relation to the fundamental findings of the Constitutional Tribunal’s ruling of 28 May 1997, but these findings are embedded in other constitutional categories: the life of a nasciturus is not only recognized as a “constitutional value” detached from the subject, but as a good an entity who entitled to the constitutional right to legal protection of life. In turn, the decisions of the ordinary legislator as to the intensity and type of this protection must meet the requirements of proportionality test, taking into account the constitutional importance of the right to legal protection of life and its close connection with the protection of human dignity.

The subject of the analysis carried out in the article is the content of the amendment of 2021 to the Code of Administrative Procedure, in particular its transitional provisions, according to which proceedings for annulment of administrative decisions older than 30 years are discontinued by operation of law. Arguments are presented indicating that the interpretation of this provisions, which means that it is impossible not only to annul the decision, but also to state that a defective decision is unlawful, leads to a violation of the Constitution. Such a solution makes it impossible to obtain a preliminary finding for the purposes of compensation proceedings and blocks an access to claim damages from the state – which leads to an infringement of the absolute prohibition under Article 77 (2) of the Constitution. This applies in particular to reprivatisation proceedings conducted in good faith for many years. However, in the article, the possibilities of maintaining the state of compliance with the Constitution through the appropriate interpretation of the transitional provisions of the amendment are indicated and discussed.

The commentary contains a criticism of the judgment of the Supreme Administrative Court, in which the problem of the constitutionality of limitations on the openness of administrative court proceedings in proceedings before the Provincial Administrative Court has been reduced to linking the statutory limitation with the constitutional value enabling such a limitation. The Supreme Administrative Court did not conduct a proportionality test. Carrying it out and taking into account the normative and factual context, would imply a statement that the restrictions at the time of issuing the challenged judgement of the Provincial Administrative Court were not even useful for a specific purpose. They also did not meet the criteria of necessity and proportionality in the strict sense.

In March 2023, the European Court of Human Rights issued a judgment concerning the former President of the Greek Statistical Office. The case was described as a test of the Greek justice system, and the issue at stake was the reliability of published statistics relating to the functioning of both the national and the Community economy. Andreas Georgiou was President of ELSTAT, the Greek equivalent of the Polish Central Statistical Office, from 2010 to 2015. In its first year of office, it provided the European Statistical Office with statistics relating to the budget deficit in Greece for 2009. According to Greek law, the competence to make statistics public rested with the Executive Board of ELSTAT, not with the President himself. The Greek authorities accused him of having committed the offence of abuse of power. Georgiou, on the other hand, claimed that he had acted in accordance with the principles of the European Statistical Code of Practice. It provides that the heads of statistical offices are solely responsible for decisions on the content and timing of the publication of statistical information. The defendant faced up to 10 years in prison. The Court of First Instance found Georgiou not guilty. However, the court of second instance sentenced him to two years imprisonment. The Court of Cassation rejected the appeal against the judgment of the Court of Appeal without, however, referring to the defendant’s objections relating to the need to refer a question to the Court of Justice of the EU for a preliminary ruling. Before the sentence came into force, Georgiou left for the United States. In the present judgment, the ECtHR found a violation of the Convention. The judgment is expected to restore confidence in Greek statistics and demonstrate the independence of the statistical office from pressure from the authorities.

The aim of the article is an analysis of the phenomenon of breaking the constitution. It comes from expierence of the german legal positivism from the second half of the nineteenth century and it is firmly rooted in the constitutional practice of the Second Reich. This practice was the passing of the laws in the mode required for the constitutional change. Their result was the modification of some of the constitutional norms without any change of their text. Such laws didn’t repeal the binding force of concrete norms directly, but they did it indirectly. Such laws didn’t become the part of the constitution in formal meaning, but they became the part of it in a material sense. This practice was accepted by the majority of the german constitutionalists and other representatives of legal science. Supporters of the practice were especially the authors of liberal­democratic views. While the authors of the conservative views rejected the provisions of the legal positivism and the practice of breaking the constitutional norms traeted as an extraordinary measure of the repealing of the binding force of them and it cannot violate the fundamental rules and values of the constitution. Nowadays the weimar authors discussion is the important source of inspiration for the participants of the global debate on the limits of the constitutional change and the need for separation and the protection of constitutional identity.

The article is devoted to the issue of the importance of the Constitutional Tribunal as a body that guarantees the supremacy of the Constitution in a political system based on the principle of a democratic state ruled by law. While reviewing the compliance of the law with the Constitution, the Tribunal is also a particularly important guarantor of the protection of freedoms and human rights, protecting citizens against arbitrary interference by ruling politicians in the sphere of individual freedom. The basic condition for the effective performance of the Tribunal’s functions is its independence from political authorities. Changes in the functioning of the Constitutional Tribunal, introduced after 2015, deprived the Tribunal of the ability to effectively perform the function of guardian of the Constitution and protector of freedoms and human rights. As a result, the current Tribunal is the anti­thesis of the constitutional court within the meaning of constitutional and international democratic standards. In the last part of the article, the authors present the basic assumptions of the bills prepared by legal experts of the Stefan Batory Foundation, aimed at restoring the proper functioning of the Constitutional Tribunal in Poland.

The article presents the idea of civic participation as a value, which, due to its positive aspects, is widely desired by society in a democratic state governed by the rule of law. Participation as a value collectively forms an axiological system. In a constitutional state, the axiological system is normatively expressed in the content of the constitution, within which it takes the form of constitutional norms and principles. Civic participation has been adopted into the Constitution of the Republic of Poland in an indirect manner. A holistic interpretation of the Constitution’s provisions allows it to be interpreted from the overarching systemic principles: the principle of the common good (Article 1) the principle of the democratic state of law (Article 2), the principle of the sovereignty of the Nation (Article 4) and the principle of social dialogue (Article 20). Consequently, civic participation as a constitutional value determines how laws are made. The State has an obligation to introduce and strengthen institutions of civic participation. Civic participation based on civil, political and social rights as well as institutions of social solidarity is an element of a democratic state of law and can be a solution to the problems of contemporary democracy.

The article presents arguments for the need to further improve of the Polish constitutional provisions establishing guarantees in the area of personal data protection. To this end, the development and current framework of EU data protection law and the national guarantees of the individual’s informational autonomy introduced in the Polish Constitution are presented. Against this background, the author argues that the Polish Constitution, although it provides certain guarantees related to the protection of information concerning an individual, is not in fact a source of a coherent, consistent and independent public subjective right to the protection of personal data. The author considers whether the examined set of constitutional norms can constitute a control model for assessing the permissibility of using many modern (and intrusive) forms of interference with fundamental rights, including those used by public entities – in this regard, he discusses in detail the case of the ClearView AI system. Particular attention is paid to the impact of the recent reform of the sub-constitutional provisions on the protection of personal data on the legibility and effectiveness of constitutional guarantees of the informational autonomy of the individual.

The aim of the article is to analyze the legitimacy and legal admissibility of the adoption of the Act of 29 September 2022 on the extension of the term of office of local government units. In the act, the legislator extended the term of office of local government bodies by half a year, in order to avoid the overlapping of two election processes in 2023 (local and parliamentary elections). The paper analyzes the arguments in favor of separating the two electoral processes and those which, from the constitutional and legal point of view, contradict the legislative actions taken. In particular, the aim will be to verify whether the measure adopted by the legislator was appropriate. In order to implement the above-mentioned assumptions, the work uses the formal and legal method and analyzes the achievements of jurisprudence and doctrine. To the extent necessary, the empirical method was also used (in particular in terms of identifying threats that could result from the overlapping of local government and parliamentary elections in 2023).

The commented judgment of the Constitutional Tribunal recognises that the complete and lifelong exclusion of expungement of a criminal convicted for so-called paedophilia crimes is consistent with the principle of humanitarianism, the right to privacy, the right to personal freedom and the freedom to choose an occupation. In the author’s opinion, the judgment of the Constitutional Tribunal deserves criticism. The Tribunal refers only to the superficial degree to the constitutional problem presented to it, which in fact has been reduced to a simple conflict between “the rights of a criminal” and the abstractly understood “best interest of a child”. The reasonings lack any considerations as to whether the examined solution is effective in practice, i.e. whether it actually contributes to the protection of children against sexual offenders. The judgment of the Constitutional Tribunal illustrates the loosening of the standard for assessing the admissibility of restrictions on civil rights and freedoms, in which the overriding goal (in this case, “the child’s best interest”) plays a central role, while the fact whether a given solution is at least useful or necessary or proportionate is less significant.

The main purpose of this paper is the presentation of Harvard Law School scholar James Bradley Thayer and his famous article The Origin and Scope of the American Doctrine of Constitutional Law, published in Harvard Law Review in 1893. Thayer formulated therein his theory of judicial restraint based on the formula unconstitutionality beyond reasonable doubt. This theory influenced such eminent judges and scholars like Oliver Wendell Holmes, Louis Brandeis, Learned Hand and, last but not least, Felix Franfurter, and is still broadly discussed in contemporary American constitutional jurisprudence. In conclusion the author proposes to make American experiences in this area useful for the current debate concerning Polish constitutional crisis.

The tension between democratic principles and religious doctrines has long been a subject of scholarly inquiry. In recent years, when “religion is back with a vengeance” and there are serious religious overtones of the current illiberal upsurge, the issue of exploitation of religious passions for political ends requires renewed and sustained scholarly attention. Therefore, political efforts and successes of Christian Right in the United States should be a major contemporary field of inquiry, especially if one considers the rivalry between the constitutional order and the religious one, and also the faith-based reality divide within the American society.

This article explores hidden sources of the exploitation of religious passions in the U.S. constitutional practice in four periods: 1) after the Civil War, when religiously reinforced social conservatism developed in the South; 2) in the 1950s and 1960s, when the business elite and conservative clergymen promoted the role of religion in public life in order to fight the New Deal political order; 3) in the 1970s and 1980s, when the Republican Party formed an alliance with conservative Christians; 4) in the Donald Trump’s era which culminated in the U.S. Capitol attack of 2021. I argue that these periods had two common features: the racist basis and the U.S. Supreme Court’s involvement in the power struggles. I suggest that a peculiar symbiotic relation has developed between the Supreme Court and the Christian Right and I also discuss three possible jurisprudential effects of this relation: the enhanced legitimacy of the Supreme Court in religious affairs; the Supreme Court as a channel of institutional access of churches and religious groups to policy making; and also some unintended consequences of infusing the law with ideas rooted in illiberal social order.

The text deals with the complementarity of information rights with respect to the active electoral right, using the example of the right of access to public information and the right to protection of personal data. These two information rights well reflect the most relevant aspects of an individual’s information status. At the same time, these rights interestingly interact with the exercise of the active electoral right. The article explains the concept of “information rights” and the concept of the sovereignty of the people, and identifies the obligations incumbent on public authorities to ensure the exercise of information rights and the active electoral right. From the analyses carried out, there are strong interactions between the right of access to public information and the active electoral right. The situation is different in the case of the right to protection of personal data. The analysis makes it possible to claim that the relationship between the right of access to public information and the active electoral right as political rights is more intense due to the goals set for them. The right to protection of personal data belongs to personal rights. Its exercise involves complying with a number of procedures for processing personal data and securing personal data in technical and organizational terms. Procedures defining the principles of personal data processing are currently described primarily in the General Data Protection Regulation (GDPR). The joint application of the Election Code and personal data protection procedures is not easy, and the Polish regulation in this regard is sometimes unclear and insufficient.

Art. 22a para. 1 and 2 of the Act of April 14, 2000 on International Agreements stipulates that supplying the President, by the minister responsible for foreign affairs, acting on the basis on the resolution of the Council of Ministers, with a draft decision on Poland’s withdrawal from the EU is possible only with prior consent granted in a statute enacted by the Sejm and the Senate with a simple majority of votes in the presence of at least half of the statutory members of each chamber. This provision, adopted in 2010, has been reminded with fear in last years, due to the consistent anti-constitutional and anti-European policy applied by the Sejm’s prevailing political parties, by the government and by the President alike, supported by the subordinate organs and institutions of the state, including the Constitutional Tribunal, which is sometimes aptly named as an actual and even legal gradual polexit. The first objective of the paper is to reconstruct the legislative history of the aforementioned regulation on the procedure of Poland’s withdrawal from the EU and the competing legislative proposals in that matter that were formulated parallelly. The second objective is to defend the thesis stating that for the decision on Poland’s withdrawal from the EU, Art. 90 of the Constitution, construed a contrario (and not Art. 89), should apply, where in order to pass the statute granting consent for renunciation of an international agreement referred to herein, it is necessary to have a two-thirds majority vote in both chambers, in the presence of at least half of their statutory numbers, and where granting of such a consent may also be passed by a nationwide referendum.

In the referenced case, the defendants were charged with insulting the monument of Cardinal Stefan Wyszyński, located in Kopernik Square in Włocławek, Poland, by gluing an offensive poster thereto. The poster resembled an obituary, and its content contained vulgar words. It also contained references to civil disobedience. The defendants' action resulted from the judgment of the Constitutional Tribunal which abolished one of the conditions for the legality of the abortion. The court, finding that the conditions for using this institution had been met, conditionally discontinued the criminal proceedings against the accused for a probationary period of one year. The court's balancing of the need to protect the freedom of expression of the accused and the worship of the person commemorated on the monument and the feelings of people for whom this figure has a symbolic meaning should be assessed as correct, based on the judgment of the ECtHR in the case of Handzhiyski v. Bulgaria of April 6, 2021.

In the book State Libility for Unlawful Action of Public Authority: Constitutional Law Study its autor Michał Ziółkowski presents an autonomus consitutional interpretation of art. 77 of the Polish Constitution. This is deep study of the constitutional subjective right, unlaful action of the public authority in consitutional meaning and context, constitutional damages, all constitutional requirements of the State liability, including responsibility for action of the Polish Constitutional Court. The review book is important within the framework of the consitutional doctrine and has a fundamental influence on the interpretation and the application of legal provisions concerning State liability.

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.

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.

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.

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.

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).

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.

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? 

The authors describe the history of comparative constitutional law research conducted at the Jagiellonian University after the Second World War. The authors’ comments also serve as a pretext to describe the research activities of the Chair in Comparative Constitutional Law on its 20th anniversary. In 2021 the chair staff celebrated this anniversary by organising a nationwide seminar, which inspired this special issue of the Przegląd Konstytucyjny.

The future of constitutionalism revolves around two critical issues which we see against the backdrop of the crisis of liberal democracy. The first issue concerns the conflict between the “judicial” constitutionalism and “political” constitutionalism. The “judicial” constitutionalism assumes a strong role of courts in a democratic system. Only courts can decide on compatibility of law with the constitution. In turn, the “political” constitutionalism assumes that the parliament decides on constitutional law. The rivalry between these two constitutionalisms seems to be the matrix of contemporary political dilemmas. The result of this rivalry is important for the efforts to end Polish constitutional crisis, as we will have to decide on the constitutional benchmarks applicable after the crisis. The second issue concerns the limits of constitutionalism. The author argues that the current digital era created a new phenomenon of digital constitutionalism. It operates in the sphere of private law relationships, dominated by private entities (big corporations). The relevant provisions for the digital world are the private law provisions. Comparative law and comparativists are crucial for answering the questions on the future of constitutionalism. The conflict of the two visions of constitutionalism and the extension of its limits are a great “training ground” for the comparativists.

Comparative research of the case-law of constitutional courts concerning the membership of a given state in the EU (referred to in the article as “European” case-law of constitutional courts) requires taking into account various contexts in which this case-law is involved. The aim of this article is to indicate and analyze the most important of them, namely: the systemic context, the temporal context, the political context (including related problem of the politicization of the constitutional court), and the theoretical context. Moreover, the article draws attention to the necessity to contextualize “constitutional borrowings”, which acquires special meaning in connection with the perceived phenomenon of abuse of the “comparative argument”. Sometimes the distinguished contexts overlap, for example in the case of the temporal context and political context, but their separation allows for a better understanding of the complexity of comparative research on the European acquis constitutionnel. The specificity of this subject of legal-comparative research proves the correctness of the thesis that the contemporary constitutional comparative law must face several challenges. The first is the integration of the classical “horizontal” comparative method with the “vertical” dimension related to the influence of international and supranational norms on national constitutional systems. The second challenge is related to supporting an interdisciplinary approach to comparative constitutional law, which will take into account the perspective of social sciences, such as political science, sociology or history. The third challenge, then, is related to establishing the right balance between focusing on specific (not only) legal issues related to the analyzed issue and taking into account a broader vision of the directions of changes in European constitutionalism. The fourth challenge, in turn, concerns the popularization of the results of scientific research related to comparative studies of the “European” acquis constitutionnel. The last (and perhaps the most difficult) challenge facing the comparative research of “European” case law of constitutional courts is an attempt to answer the question to what extent this diverse jurisprudence conglomerate is a manifestation of the stability of constitutional law and the constitution, and to what extent it is a driving force for dynamic changes in contemporary public law.

The article argues for reopening a serious discussion on the methodology of comparative studies on constitutional orders. Following this lead, it aims to reconstruct and critically discuss Michael W. Dowdle’s concept of constitutional listening. This concept contains a broad vision of conducting comparative studies of constitutional matters. Particular attention will be devoted to the empathic-based approach to other constitutional orders, which employs the Davinsonian principle of charity. This thread is one of the most interesting but controversial of Dowdle’s proposals. The article contains a general assessment of the concept of empathy-based constitutional listening.

The aim of the article is a reconstruction of the Constitutional Tribunal’s understanding of references to foreign law and jurisprudence. The research sample consists of judgments concerning: (i) the Lisbon Treaty; (ii) shooting down a civil aircraft; (iii) control of the objectives of a political party; (iv) data retention. Other judgements are referred supplementary. The article focuses on the internal point of view of the Constitutional Tribunal. It analyses how the Tribunal describes and understands the references to foreign law and foreign case law. It also discusses how the Tribunal uses that references. The main argument is that the Tribunal does not perceive its practice (i.e. references to foreign law) as comparative constitutionalism or comparative thinking. Consequentially, maybe it is not justified for scholars to criticize this practice as comparatively flawed. The article ends with a call to view the Tribunal’s references differently since the references to foreign law are an element of the non-linguistic context of the interpretation of constitutional provisions. It is also closer to an argument from authority than a comparative one.

In the book Abusive Constitutional Borrowing. Legal Globalization and the Subversion of Liberal Democracy its authors Rosalind Dixon and David Landau emphasize that legal globalization has its ‘dark side’ since the norms of liberal and democratic constitutionalism can easily be used for anti-democratic purposes. There appears disorientation in both the national and international political arena through the application of norms, which are peculiar to democracies, albeit they constitute potent tools for consolidating power and suppressing opposition. The present era is the time where democratic backsliding and covert autocratization have become the prevalent issues. Some regimes dress their activities under the guise of a liberal and democratic discourse. In lieu of committing military coups, modern policymakers tend to implement more legal forms of anti-democratic change to undermine democracy by using constitutional rights or the courts (judicial review). The characteristic feature of abusive constitutional borrowing is to maximize the achievement of antidemocratic goal. It is a deliberate attack on the democratic minimum core, which consequently leads to a gradual erosion of democracy. Modern democracies have a tendency to move back to autocratization by combining different forms of constitutional abuses, which can be classified as constitutional changes and sub-constitutional ones with a formal or informal character. Moreover, one can also discern various forms of borrowings i.e., superficial, selective, acontextual, and anti-purposive.

This study aims to identify various meanings of the expression (name) “dignity”, with particular emphasis on the meanings of the 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 concept of dignity encompasses 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, and this essay is devoted to this group of meanings. This group of meanings includes three concepts of dignity which encompass 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. Only the first of these three concepts of dignity is adequate to the interpretation of the preamble and Article 30 of the Polish Constitution. The second group of meanings, treating dignity as something with which the human being 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.

The other half of the meanings take dignity as something that belongs to something. These meanings will be considered in the forthcoming essay Godność jako cecha podmiotów zbiorowych lub cecha ugruntowana instytucjonalnie. Typy godności – Propozycja systematyzacji – Część 2 [Dignity as an attribute of collective entities or an institutionally grounded attribute: Types of dignity – A proposed systematisation – Part 2]. 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 “dignity” when designating something belonging to something can also designate (4) the dignity of social status based on belonging to a social group, (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.

This article analyzes the doctrine of the Spanish constitutional court on the rights of prisoners. In four decades, the constitutional court has issued a large number of judgments in this area, in matters related to the right to life, privacy, freedom of expression, education, judicial protection, secrecy of communications or the right to work of the prisoners. The impact of the COVID-19 pandemic in prisons during 2020 and 2021 is also addressed.

This article deals with a new development in the field of implementation and protection of human rights: the Human Rights Cities. The paper seeks to answer the research question, whether this development occurs also in Poland. To answer this question, an empirical study was conducted with the participation of 40 Polish cities with more than 100,000 inhabitants. This study enables to categorized Polish cities, that were subject of the study, according to their level of involvement in the implementation of human rights. The leading local Polish governments, which can be labeled as a human rights cities, were identified. These cities account for nearly a third of the cities surveyed.

The European Citizens’ Initiative is a means by which two goals could be achieved in the European Union. Firstly, thanks to it, the deficit existing in the EU could be eliminated, and secondly, the citizens of the Union would gain a tool to create an EU-wide public sphere, within which they would have a real possibility of influencing the legislative actions taken by the EU. It formally happened. The European Citizens’ Initiative, adopted over 10 years ago, potentially creates such an opportunity. However, looking at the effectiveness of its functioning, it cannot be concluded that the indicated goals have been achieved. The main problem is the too large role of the European Commission (slightly diminished by the recently introduced changes to the ECI regulation). The low efficiency of the ECI is not conducive to reducing the democratic deficit in the EU. However, the ECI creates an opportunity for discussion and public debate. It provides a basis for EU citizens to express their political positions, and the submitted initiative (albeit rarely successful) allow the conclusion that European public spheres do exist. The ECI creates a space for the citizens of different Member States to engage in a joint debate. However, this potential is not sufficiently exploited. It cannot be said that the EU’s democratic mandate has been strengthened by wider participation of citizens in the public debate. Too broad discretion by the Commission has the effect of reducing the effectiveness of the ECI. Indeed, if the application is not processed further despite the collection of a sufficient number of signatures due to the discretionary decision of the Commission, such a situation cannot be regarded as an effective implementation of the ECI. The application submitted by EU citizens as part of the ECI should not only be treated as a signal from them, and the Commission should treat it as a clear need to regulate a given area.

This article addresses the issue of legal barriers that prevent people with intellectual or mental disabilities from exercising their electoral rights, in particular their right to vote. The Constitution of the Republic of Poland of 1997 in Art. 62(2) specifies that persons who, by a final judgment of a court, have been subjected to legal incapacitation shall have no right to participate in a referendum nor a right to vote. However, the Convention on the Rights of Persons with Disabilities, ratified by Poland, guarantees that people with disabilities should be able to participate actively in decision-making processes concerning policies and programmes, including those that directly affect them. In particular, the Convention provides them with the right to vote and be elected, regardless of their disability.

The author analyses the historical foundations of the concept of discontinuity in the work of the parliament. It presents the development of this principle in the European legal culture and activities in the initial period of forming the parliament in Poland. He indicates various ways of justifying the existence of the present-day principle of discontinuation in a democratic state ruled by law. In particular, it refers to the concept of general principles of law. It also analyses the jurisprudence of the Polish Constitutional Tribunal. Recognizes the principle of discontinuation of the work of the parliament as a permanent element of the state system. However, he points to the problems of integrating it into the system of norms of the Constitution of 1997.

The subject of the analysis carried out in the article is the issue whether in the compensation proceeding based on the art. 4171 § 1 of the Civil Code, it is necessary to obtain a prejudicature of the Constitutional Tribunal, stating the inconsistency of the sublegislative act with a higher-order act. The motions filed by the Prime Minister and the Marshal of the lower house of the Polish parliament which concerns the examination of the compliance of art. 4171 § 1 of the Civil Code with the Constitution of the Republic of Poland constitute the grounds for these considerations. The arguments detailed in the motions mentioned above have been discussed in detail. These considerations have been supplemented by ananalysing the provisions included in the Constitution of the Republic of Poland concerning liability for damages of public authorities. On this basis, the issue of whether it is necessary to obtain a prejudicature of the Constitutional Tribunal, stating the inconsistency of a regulation with a higher-ranking act, for the purposes of compensation proceedings, was resolved. It was also discussed whether it is possible to interpret art. 4171 § 1 of the Civil Code in accordance with the approved constitutional model.

In the reviewed monograph, Bogusław Przywora constructs a normative model of unpaid pre-litigation legal aid in Poland. It is an important issue (both theoretically and practically) from the point of view of the realization of human rights and freedoms. It is also essential for the legal culture and legal awareness of participants in legal relations. The author poses an important research problem: how is the normative model of unpaid pre-litigation legal aid in the Constitution of the Republic of Poland, international and EU law? As part of the main research problem posed in this way, the author poses detailed research questions. Answering them required a number of considerations: theoretical-legal, comparative-law, legislative, and legal acts. The applied multifaceted approach to the issue allowed the Author to explain it and propose really important directions for the desired changes. They are intended to improve the legal solutions already used in Poland for unpaid pre-litigation legal aid. This monograph is not only interesting but also inspiring. The proposals contained in it are characterized by high application values.

This article presents a synthetic attempt to address the role that the March Constitution of 1921 has played in the development of the Polish constitutional thought. It discusses the achievements and the weaknesses of the March Constitution. On the one hand, its significant advantages included recognising a catalogue of fundamental rights, guaranteeing independence of the judiciary, introducing judicial control of administrative acts and state liability for breaches of law. On the other hand, its weaknesses lay in the lack of solutions to stabilise the position of the government, a broad and imprecisely defined status of decree laws, and the lack of constitutionality review of laws. The modern and democratic solutions of the March Constitution exceeded the level of advancement of the political and legal culture in the society, which led to abuse and distortion of its constitutional mechanisms, and to an inability to secure the rule of law.

After Poland regained its independence in November 1918, the parliament, acting as a constitutional body, enacted the Constitution of the Republic of Poland on 17 May 1921. It is worth setting this event against a broader background. After the First World War, new constitutions were created in Eastern Europe, in particular in those states that had to build their political system from scratch, for example because they appeared on the map of Europe for the first time in history or were reinstated after a long break.

These states, or more precisely their elites, had to draw on foreign ideas and achievements due to lack of their own experience. For the states that chose the republican system and disregarded the solutions contained in the constitutions of the United States and Switzerland, the Third Republic of France became a very important source of inspiration, thanks to the regulations contained in the three constitutional acts of 1875, as well as constitutional practice. Admittedly, from 1879 onwards, the constitutional practice increasingly diverged from the letter of the law set out in these three acts. Another source of inspiration for some of the new states in Eastern Europe was the constitution of the German Reich, adopted in 1919.

In our part of Europe, if we exclude Estonia, Finland, and Austria – which made an effort to develop their own, sometimes unique, political solutions – it can be noted that the achievements of the Third Republic, in terms of the letter of law and political practice, became a decisive source of inspiration for Poland and Czechoslovakia, while the German Basic Law served as a model for Latvia (to a greater extent) and Lithuania (to a lesser extent).

The choices made by the political elites of Poland and Czechoslovakia, however, differed in one fundamental aspect. Poland took as its point of departure the constitutional practice of the Third Republic, formed since 1879, while Czechoslovakia took the letter of the Constitutional Act of 1875. This substantially and differently moulded the form of the political system of each of these states, and subsequently its functioning in practice.

Already in the interwar period, it became clear that the decisions taken in Warsaw to make the Sejm the highest organ in the state, modelled after the Chamber of Deputies in France, were less “correct” than the solutions adopted in Prague.

In Czechoslovakia, the principle of the separation of powers was taken as the starting point. The principle of the balance of powers was then referred to and the roles of the legislative and executive branches were precisely defined so that this balance would really exist. In this way, the smooth operation of both powers was guaranteed, not only in their relations with each other, but also on a national scale.

In Czechoslovakia, the architects of the constitution took into account the principle of the separation of powers alongside the principle of their balance, while in Poland the latter principle was absent, at first in the text of the constitution, and then in practice in the years 1922–1926.

The issue of the relations between the European Court of Justice and the constitutional courts of the Member States is a topic of great importance. The latest proof of that is the PSPP judgement of the German Constitutional Court. It has also shown what might happen if judicial dialogue is abandoned. The aim of the paper is to consider the consequences of the PSPP judgement as well as to analyse the conditions for the restoration and development of trust between the courts. The author presents the concept of ultra vires which has been used by the German Constitutional Court. In subsequent parts of the paper, the discussion focuses on the PSPP judgement and the surrounding scholarly debate and points out the consequences for both sides of the dispute. In the author’s opinion, the PSPP saga may, under some conditions, have positive implications for judicial dialogue.

The author analyses a procedure in the Polish parliament applied when a vote raises justified doubts on a specific issue. The text begins with the discussion of events that took place in August 2021 during a session of the Sejm at which the bill of the Broadcasting Act was considered. The provisions of this draft bill would result in the largest private broadcaster independent of the government having difficulties in renewing its television broadcasting license. The clash of economic interests, the power of the media, and the political dispute had an impact on the temperature of the parliamentary debate. However, the author tries to show how it was possible to apply the binding provisions in the light of the previous parliamentary practice and customs. The position of legal science is presented, mainly legal opinions drawn up against the background of the disputed use of the voting repetition procedure. The article also indicates the constitutional boundaries within which the parliament must operate when it intends to correctly order a repeat vote.

The announcement of the state of epidemic threat in Poland on 13 March 2020 and the subsequent announcement of the state of epidemic was not accompanied by a formal introduction of any of the types of state of emergency defined in Chapter XI of the Constitution. Taking into account the ubiquity of regulations introduced in connection with the state of epidemic, as well as the enormous (and unprecedented) scope and intensity of interferences in constitutional freedoms and rights, this very article constitutes an attempt to verify whether the prerequisites to introduce the state of emergency in March 2020 were not fulfilled and therefore it was only (sic!) not promulgated in a manner prescribed by the Constitution. The novelty of this study consists in focusing the analysis solely on the initial four weeks since the introduction of the state of epidemic threat in the country. The first area of the analysis covers a verification of the way in which the state bodies operated within the analysed timeframe – especially whether their extraordinary operation did not occur (including that of constitutional state bodies). The second analysed area is the legal framework introduced under the state of epidemic threat and the state of epidemic. It is then compared against the characteristics of the state of emergency. The third area under analysis concerns establishing whether there exists an obligation to introduce the state of emergency. Only such a thorough analysis makes it possible to discuss the matter of potential consequences resulting from the materialisation of prerequisites necessary to introduce the state of emergency without a simultaneous promulgation of one of the constitutional types of state of emergency.

The commentary presented in the paper is doctrinal and has descriptive and interpretive aims. It discusses the Tribunal’s judgement concerning the unconstitutionality of one of the provisions of the Act on the Ombudsman. According to the provision, the Ombudsman shall continue to perform duties after the end of term and until the election of the new Ombudsman.

In the Tribunal’s view, the provision provided an unconstitutional extension of the Ombudsman’s term. Since the judgement was passed by the unconstitutionally elected members of the Tribunal and it was to remove Adam Bodnar (the former Ombudsman) from the office, it has to be interpreted in the context of the current constitutional crisis in Poland. The article argues that the Tribunal’s reasoning was constitutionally wrong, logically incoherent, and far from clear if considering the well-established case-law. Moreover, the paper explains how the Tribunal and the President of the Tribunal violated the law on the assignment of judges to the Tribunal’s panels and the constitutional principle of judicial independence. The concluding remarks focus on the possible legal consequences of unlawfulness in the Polish constitutional order, which does not directly provide any review of the Tribunal’s judgements or its President’s actions.

The Faculty of Law and Administration of the Nicolaus Copernicus University in Toruń organised the 8th Polish-Italian Judicial Colloquium from 8 to 11 September 2021. The conference was devoted to the issues of constitutional amendments in Italy and Poland from historical, theoretical and constitutional practice perspectives. The Colloquium’s partners were the Faculty of Law and Administration of the University of Warmia and Mazury in Olsztyn and the City of Mrągowo.

Vavrick’s judgment against the Czech Republic, issued by the Grand Chamber of the European Court of Human Rights, raises the issue of the obligation to vaccinate children imposed by the law of the Czech Republic. The Court simultaneously examined five complaints concerning the refusal to admit children to kindergarten due to their non-vaccinations and one concerning a father of two children who was fined an administrative penalty for failure to comply with a statutory obligation. The applicants alleged violation of the right to respect private and family life (Article 8 of the ECHR) and of the right to freedom of thought, conscience and religion (Article 9 of the ECHR). The Court therefore examined whether the interference in the form of an infringement of physical integrity was justified, examining whether it was lawful, justified by a legitimate aim and whether it was necessary in a democratic state ruled by law. Ultimately, the Tribunal supported the position that there had been no violation of the provisions of the Convention, explaining that it was a response to an urgent social need, and the choice of the measure chosen by the Czech legislator was supported by appropriate arguments. Moreover, the judges stated that despite the existence of a legal obligation, vaccination was not compulsory.

The citizens' constitutional initiative and the citizens'  legislative initiative exist in Romania since 1991. They were established by the Constitution of 21 November 1991. The right to initiate a constitutional amendment is vested in a group of at least 500,000 citizens who have the right to vote; they must be residents of at least half of the voivodships, and at least 20,000 citizens must sign the initiative in each voivodship and in Bucharest. The right of legislative initiative is vested in a group of at least 100,000 citizens with the right to vote; they must be residents of at least one-quarter of the voivodships and in each of them such an initiative must be supported by the signatures of at least 5,000 citizens. The Constitution provides exemptions to these initiatives. The collection of signatures and the

The judiciary undoubtedly requires reforms that will contribute to the improvement of its effectiveness.  Establishing the institution of justices of the peace, in accordance with the drafters' assumptions, is to contribute to the improvement of the operation of common courts. In the opinion of the drafters of the acts establishing this institution, the judiciary administered by justices of the peace may, in the public opinion, work better, and the judgments issued by them will be more socially accepted. The establishment of justices of the peace requires that their independence be guaranteed. The aim of the article is an attempt to answer the question whether the proposed judicial model of justices of the peace complies with the principle of judicial independence. Bearing in mind that one of the projects to restore the institution of justices of the peace includes the possibility of exercising this function by persons who may not have a legal education, or even having one, do not have a legal experience, it is highly doubtful that they can interpret the law properly on their own. Even if justices of the peace only judge in minor cases, judges without knowledge of the law and judicature will not be able to work effectively, which will directly affect the purposefulness of the proposed reform. The guarantee of judicial independence is also the irremovability of a judge from office. On the other hand, according to the presented proposals, justices of the peace are to be elected and perform their functions for terms of office, which undoubtedly does not contribute to the implementation of the indicated guarantee. Doubts are also raised because of the group of entities that can propose candidates for justices of the peace, and thus the very apolitical nature of justices of the peace. Correct construction of the institution of justices of the peace is not possible without taking into account the elements that make up the principle of judicial independence, otherwise it would be difficult to talk about their proper administration of justice.

Public governance could be seen within the triangle of interactions between public agencies, society, and technology. Members of society are more aware of their needs and expectations towards public institutions. It creates an augmented participatory pressure recognised by public organisations. Engaged civic participation is becoming a reality and the central concept in the debate around democratic dialogue and the involvement of citizens. New technologies play important role in enabling these processes. The perspective taken in this paper focuses on the ways in which digitalization and citizens' involvement contribute to complexity, what opportunities and downsides it may bring, and how the general scholarly debate on turbulence connects to the research on citizen participation. The civic engagement and participation are juxtaposed with existing turbulences, which may be rooted in internal organisational and structural challenges as well as in the external factors to large extent independent from the influence of the governance structures. The important dimension of turbulences impacting participation is also related to the multilevel complexity of current governing structures.

On 6 July 2020 the President of the Republic of Poland submitted a bill to amend the Constitution of the Republic of Poland. The draft amendment envisaged the introduction of a provision to the current fundamental law which would raise the following rules to the level of a systemic principle: a child may be adopted only for his benefit, and only spouses may adopt a child jointly. Moreover, it would  prevent same-sex cohabitants from adopting a child.
This paper focuses on the legal assessment of the proposed amendment to Article 72 of the Polish Constitution. Its purpose is to indicate whether the provisions of this amendment may become part of the Polish Constitution and whether they are consistent with international regulations binding on Poland.

Even though more than 25 years have passed since the 1989 Polish democratic transition, the Law and Justice party, which took power in autumn 2015, has introduced a new wave of transitional justice initiatives. I claim that since 2015 Poland has seen a gradual change of its lustration model from a mechanism of historical clarification, in which sanctions are imposed only for submitting a false lustration statement, to a retribution instrument, which includes retroactive sanctions for former ties with the communist secret service. However, banning former secret service officers, employees, and collaborators from holding public offices so late after transition raises doubts as to whether these regulations are consistent with the Polish Constitution and the European Convention on Human Rights.

The current Polish Code of Petty Offenses entered into force in a different political, legal, and socio-economic reality. Despite many amendments, it does not fully correspond to contemporary realities, therefore the interpretation of its provisions requires particular care, due to the necessity to consider, in particular, the current Constitution of the Republic of Poland. The guarantees of individual rights and freedoms it contains need to be included in the process of legal interpretation, even though they did not exist in the present form when the Code of Petty Offenses was introduced into the legal system. Article 63a of the Code of Petty Offenses protects against behavior that violates the aesthetics of public space by littering or defacing. It sanctions the placement of an advertisement, poster, leaflet, inscription, or drawing in a public place not intended for this purpose. However, such behavior may not be punished when, in a specific case, it does not violate public order, as it constitutes a form of exercising individual freedom of expression.

The review regards the monograph which is an effect of the 4th seminar of the "Round Table" organized by the Department of Constitutional Law at the Cardinal Stefan Wyszynski University in Warsaw under the supervision of Prof. Mirosław Granat. The seminar dealt with two issues: firstly, the crisis of Polish constitutionalism "in its basic dimensions," and secondly, the issue of states of emergency in a comparative legal perspective (particularly in the context of the reaction of state authorities to the Covid-19 pandemic). The monograph contains eleven studies, four of which are devoted to the first problem. They describe precisely expressed, excellently justified and, above all, accurate arguments supporting the thesis about the ongoing deep crisis in the application of the Polish Constitution. The part of the monograph that addresses the institution of a state of emergency is a comprehensive analysis of this institution, taking into account its adequacy to the situation caused by the Covid-19 pandemic. It includes considerations of solutions adopted in Poland, Italy, the Federal Republic of Germany, and France. It also raises the question concerning the interference of international law in regulating the institution of a state of emergency and whether there is a qualitative difference in the manner of permissible restriction of human rights in the regulations provided for the situation of the normal functioning of the state and in the regulations applicable to states of emergency. The reviewed book is not only interesting but also inspiring. It will certainly reach a wide group of readers, not only "in the scientific circuit," but also those interested in the practice of law application.

Report on the 2nd Open Scientific Seminar of the Department of Theory and Philosophy of Law of the John Paul II Catholic University of Lublin and the Department of Constitutional and Comparative Law of the Jan Długosz University in Częstochowa, entitled "Around the March Constitution on the 100th anniversary of its adoption". The seminar took place on 17 March 2021 online.

The subject of this article is the issue of personal data breach, primarily in the context of the provisions of the General Data Protection Regulation (2016/679). The aim of the publication is, in particular, to answer the following questions: do the regulations properly protect the rights of an individual in the event of a breach? do the sanctions and liability rules provided for by these regulations are adequate to the threats? do the sanctions and liability rules respect the requirements of the rule of law? The authors analyze the concept of a personal data breach in detail, including the magnitude of consequences necessary to determine occurrence of a security breach. The article also extensively analyzes the consequences of such breach for entities responsible for personal data processing (organizational effects, documentation and reporting obligations, liability for damages, administrative fines). Particular attention is paid to the decisions of the Polish President of the Personal Data Protection Office regarding violations and the jurisprudence of administrative courts in these types of cases. In conclusion, an assessment is made of the principles of personal data protection against breaches introduced in the General Data Protection Regulation. While approving the generally introduced legal solutions, doubts related to the excessively broad scope of discretion on the part of the authority as to the amount of fines in individual cases are indicated. 

The article seeks to define the role of the spouse of the President of the Republic of Poland in the systemic practice, as well as to answer the question of whether there is a need to regulate her legal status. It should be noted that although the President's spouse does not hold any office by law, she is active in the public sphere. Her activity does not consist in exercising public authority but is limited to the performance of representative and social functions. These considerations are additionally justified by the fact that in the past, Sejm of the Republic of Poland attempted to grant the President's spouse remuneration for customarily performed duties.

This paper attempts to demonstrate that, in the current state of the development of European Union law and against the background of the concept of global constitutionalism (including global environmental constitutionalism and challenges related to climate change), environmental protection, understood as protecting natural heritage, counteracting the irreversible effects of industrialization, and the condition of existence of present and future generations, may be understood as a component of the "constitutional core" of the European Union.

The subject of this article is the analysis of the prosecutor's liability from the point of view of accountability, based on the criteria of effectiveness and efficiency. There is no doubt that the individual accountability of the public prosecutor is strongly determined by the organizational framework of the prosecutor's office and the level of the granted independence of the prosecutor. In order to implement the postulated changes leading to an increase in the efficiency of the functioning of the prosecutor's office, it is necessary to develop indicators for periodic evaluation of the prosecutor's work. Only the adoption of individual evaluation criteria for each prosecutor will ensure the transparency of the institution's work, strengthen the independence of prosecutors (by introducing clear and precise criteria for professional promotion) and contribute to increasing public confidence in the public prosecutor's office.

Numerous constitutional references to "family" raise the question of how - at this level of sources of law - should we interpret this concept and what are the consequences of adopting a specific interpretation of the constitutional foundations of family law. It is explained that the constitutional model of the family is an expression of a specific axiological choice that prefers the model of social relations based on the marriage between woman and man,  and a stable and lasting community of parents and their children. The references to the jurisprudence of the Constitutional Tribunal show that the family is perceived as an important constitutional value. Its protection is meant to take measures to strengthen mutual relations between family members and to create conditions enabling them to exercise their mutual rights and obligations. It is therefore problematic for the legislator to use such definitions of the family which, in the process of their interpretation, identify it solely on the basis of the criterion of joint management or income community. The financial support of the family must take into account the principle of subsidiarity. Therefore, it cannot lead to the granting of public funds to communities in which the basic obligations of family members are not fulfilled.

The purpose of the article is to establish the standards developed in the case law of the European Court of Human Rights with regards to the principle of irremovability of judges. For this purpose, two categories of cases are analysed: those in which individual applications were lodged by participants of proceedings before courts composed of judges who were not sufficiently protected against arbitrary removal from office, and those where applications were lodged by the judges themselves. In the case of the former group, the problems related to the irremovability of judges are considered through the prism of Article 6(1) of the ECHR. The irremovability of judges is perceived by the ECtHR as a fundamental guarantee of the independence of a court - systemic deficiencies in this respect may therefore lead to a violation of Article 6. However, the ECtHR underlines the need to take into account not only regulations but also practice. Still, the protection against removal from office is not absolute and some exceptions in this regard are allowed. As far as cases initiated by judges' complaints are concerned, particularly important are Articles 6, 8, and 10. The first of them guarantees dismissed judges the right to a court - therefore, as a rule, it would be impermissible to remove judges without ensuring individual judicial review of the legality of removal. The ECtHR allows the exclusion of court proceedings in cases involving public officials, but only if such exclusion is provided expressly and is justified by the objective interest of the state. In the context of irremovability of judges, the latter criterion will be very difficult to meet. The two remaining provisions, Article 8 and 10, affect the substantive grounds for dismissing a judge from office. Therefore, it would be unacceptable to remove judges from their office as a repression for statements made by them falling within the limits of freedom of speech. The ECHR could also be violated if, in specific circumstances, due to the reasons or consequences of dismissal, it was considered a disproportionate interference with the privacy of a judge. 

The subject of this article is the question whether the Constitution of the Republic of Poland of 1997 provides a norm that requires bodies of public authority to justify their decisions, and therefore whether the authority should prepare such justification only when required by an express provision of the statute. The first part of the article presents the arguments on the constitutional, not statutory, nature of the justification requirement. The second part of the article discusses the standard of justifications, based on the examples of resolutions of the National Council of the Judiciary, decisions of the President of the Republic of Poland, and decisions of state commissions in electoral matters.

Entrepreneurial freedom is a fundamental "pillar" of the social market economy. Its presentation in chapter I of the Polish Constitution of April 2, 1997, proves its importance in the context of macroeconomic and macrosocial policy. Constitution allows for the limitations of this freedom only for an important public interest and only by law (acts of parliament).

The author tries to show that "important public interest" should be specified by precise references to the specific goods, constitutional values or those that are derived from European Union Law. Of particular importance is the standard of justification and the distinction between the restriction of economic freedom and the legal conditions for interference with this freedom, in order to enable this interference to be carried out in accordance with the law.

Polish constitutional system provides specific restrictions of freedom of entrepreneurship in three extraordinary measures: a state of natural disaster, a state of emergency, and martial law. Constitution does not provide such restrictions during the imposition of the so-called "intermediate" states: a state of an epidemic threat, and an epidemic state. Meanwhile, legislation adopted in connection with the pandemic led to the "circumvention of the Constitution" by 1) issuing laws introducing limitations allowed for during the extraordinary measures, especially during a state of natural disaster, 2) providing statutory authorization to issue regulations that limit economic freedom and harming its essence. Such a state of affairs is justified by the primacy of politics, the erosion of the democratic state ruled by law, which leads to a greater threat: it becomes a state of unconstitutional lawlessness.

The 100th anniversary of the adoption of the Constitution of 17 March 1921 calls for reflection on its content as well as its practical application. Being the first constitution after Poland's partitions, it was unanimously passed on March 17, 1921, as a result of a political compromise between the parties present in the Legislative Sejm. In the judicial field, it contained detailed guidelines for future courts, laying down the principles of the new organization of the judiciary system in Poland. The Law on the System of Common Courts, issued in 1928 by the ordinance of the President of the Republic of Poland, entered into force on January 1, 1929, thus in different conditions and political form, after the May coup and the amendment of the March Constitution in 1926, when many of its principles were criticized by the ruling government group. As a result, not all principles set out in Chapter IV The Court were implemented in practice (e.g. the introduction of courts of peace and jury was abandoned, the basic principles of independence and irremovability of judges were subject to limitations, e.g. by their suspension during the reorganization of the judiciary related to the implementation of the new The Law on the System of Common Courts. From the battle of the legislature (supporting in 1928 the expectations of the court circles) the latter emerged victorious, what was proved by the staff changes, motivated in the case of the Supreme Court by political reasons (including the retirement of the First President of the Supreme Court, W. Seyda) and the President of the Criminal Chamber of Supreme Court A. Mogilnicki), as well as subsequent amendments to the The Law on the System of Common Courts, departing more and more clearly from the principles expressed in the March Constitution.

The history of public and constitutional law in Poland has known multiple influences, which derive from the circulation of French, German, Austrian, Russian, and Hungarian legal models. This is also relevant for the specific sector of the administration of justice. In this context, the peculiarities of the judiciary as regulated in the Polish Constitution of 1921 marked an important step in affirming the principle of the separation of powers and the independence of the judiciary not only in Poland but throughout Europe.

The first full constitution of the reborn independent Polish state, adopted in March 1921, should be seen as, for many reasons, a liberal regulation. The latter two constitutions were shaped for the needs of states: authoritarian one (the April 1935 Constitution) and totalitarian, later dictatorial one (the July 1952 Constitution). It was only the Constitution of the Third Republic of 1997 that became a worthy successor to the March Constitution, both in terms of the governing system and the system of protection of the freedoms and rights of the individual. The basic law currently in force meets the highest standards of global constitutionalism.

Many constitutional regulations in force in the world prove that the way in which they deal with legal and religious issues is usually a derivative of the political and axiological assumptions adopted in these acts. It is also visible in the twentieth-century Polish constitutions. The March Constitution created a wide-ranging space for religious freedom, the April and July constitutions were the grounds for restrictions in this respect, and finally, the binding Constitution of 1997 may be the basis for establishing liberal legal regulations and corresponding liberal governmental practices.

The liberal basic laws of 1921 and 1997 include provisions on the obligation for the Polish state to conclude legal agreements (concordats) with the supreme authority of the Catholic Church, i.e. with the Holy See. In each case, these agreements resulted in a distortion of the constitutional model of state-religion relations towards the preferences of Catholicism, and thus opened the way to the construction of a largely benign Catholic religious state in Poland in the 1930s and the second and third decades of the present century. Looking at the same phenomenon in a different way, one can say the following: the strong integrist Catholic circles in Poland in the process of establishing democratic constitutions were not able to introduce into them the concept of a tolerant Catholic republic. Their idea, however, was successful by using the concordat as an instrument to implement their hegemonic vision and by persistently ignoring the provisions of the fundamental laws.

The author presents reflections on the legislative work concerning the preparation and adoption of the Polish Constitution in 1921. The paper analyses the political situation and social conditions of Poland at that time. The author presents the norms of the March Constitution in comparison with the political solutions of other countries at that time. The Author refers to a publication from one hundred years ago and tries to point out that at that time the representatives of legal science were aware of the shortcomings of the system adopted in this constitution. The paper presents the main reasons that influenced the collapse of the state system adopted in the Constitution of 1921. It also tries to indicate the symbolic meaning of this constitution in present-day social life.

The March Constitution of 1921, although it ceased to be in force several decades ago, is still applied in the jurisprudence of courts and the Constitutional Tribunal. It is not only used for historical interpretation but is also applied in cases where - in accordance with the principle of non-retroaction of the Constitution of 1997 and the tempus regit actum principle - there is a need to resolve a constitutional problem whose genesis dates back to the interwar period or the period of the People's Republic of Poland (1944-1952) when certain provisions of the March Constitution were in force. The article presents the types of cases adjudicated in the twenty-first century in which the courts and the  Constitutional Tribunal referred to the March Constitution.

The adoption of the Constitution of 17 March 1921 marked the beginning of an important stage in the development of modern state control in Poland. The March Constitution contributed to the separation of state control as a new function of the state, entrusted to an independent body, organised in the form of an office with elements of collegiality, independent from the Council of Ministers, but closely linked to the Sejm and working mainly for its needs. The aim of this article is not only to analyse the provisions of the March Constitution relating directly to the legal and organisational status of the Supreme Chamber of Control but also to show the role it played in the process of shaping the model of contemporary state control under the Polish Constitution of 2 April 1997.

This article presents a critical commentary on the judgment of the Polish Constitutional Tribunal concerning the constitutionality of Articles 523 Section 3, 521 Section 1, and 529 of the Polish Code of Criminal Procedure. In the  discussed ruling, the Constitutional Tribunal stated that challenged provisions have enabled courts to control the President's prerogative. Therefore, the Constitutional Tribunal judged that the aforementioned provisions are partially inconsistent with the Constitution of the Republic of Poland. In this gloss, three issues are discussed. First, a question concerning the admissibility of issuing the judgment in the commented case. According to the author, a lack of a proper subject of the review is the reason the Constitutional Tribunal should have discontinued the proceeding in the present case. Second, a question regarding the effects of the application of the commented judgment, declaring unconstitutionality due to legislative omission, on the judicial process of application of the law. In the author's opinion, a court (or another authority applying the law) may not supplement the legal system with the omitted content while implementing such judgments. Third, a problem of commented judgment's influence on the legal system. The author points out that the discussed ruling does not produce any changes in the Polish legal system.

Threat and the State of the EpidemicThe introduction of the state of the epidemic threat in Poland, and then the state of the epidemic, revealed far-reaching violations of the Constitution of the Republic of Poland in the sphere of individual rights and freedoms, which are the result of regulations contained in in the Act on Combating Infectious Diseases of 2008, as well as in the acts that were adopted for its implementation. On the basis of this case, it is worth asking about the responsibility of persons participating in the process of adopting such defective normative acts. In this article, the author considers the potential options for enforcing such responsibil-ity. The conclusions that follow show little chance to draw legal consequences against persons participating in the procedure of adopting those normative acts. Similarly, political responsibility is illusory. Therefore, it becomes necessary to consider introducing amendments to the Polish legal system that will allow for effective attribution of the liability to persons who participated in the adoption of normative acts that grossly violated the provisions of the Constitution. Such actions, however, would require not only changes to the existing legislation, and sometimes even the Constitution, but also the political will to do so, which can be considered the main problem.

The paper deals with the so-called shared initiative referendum (le référendum d’initiative partagée) within the framework of the French constitutional system. This type of popular vote was established following the most extensive modifica-tion to the Constitution of the Fifth Republic which took place in 2008. Under the amended Article 11 of the 1958 Constitution, a fifth of members of parlia-ment, supported by a tenth of eligible voters, may submit a bill which, subject to further procedural requirements, may be passed in a nationwide referendum. The author presents the most important features of the referendum before the reform, as well as the constitutional and statutory provisions that may be applied after the reform was conducted. It can be argued that this amendment did not lead to a breakthrough in the role of the referendum in the constitutional system of the Fifth Republic. Although citizens can now participate in its initiation, it is still a tool over which the public authorities have full control. In the case of the shared initiative referendum, however, the emphasis was placed differently on the role of the legislative and executive. The former has been strengthened and the latter weakened. The draft constitutional changes presented in 2019 at the initiative of President Emmanuel Macron are to contribute to the ini-tiation of such referenda, but their purpose is not to introduce fundamental structural reforms.

In view of the constitutional crisis that has been going on since 2015, the issue of locating the Supreme Court and the Constitutional Court within the system of State organs seems to be particularly important. One of the questions that should be answered is to what extent the ideas adopted in the 1990s appear to be helpful for the proper positioning of the Supreme Court and the Constitutional Tribunal within the system. The issue of the origins of the aforementioned ideas should also be examined. Answering these questions enables the identification of essential problems related to the way in which the legislator shaped the rela-tionship between the Constitutional Tribunal and the Supreme Court.

The topic of this paper is to present the general assumptions the legislator relied on when setting the position of the Constitutional Tribunal, and the question of whether these assumptions remain fully valid – especially with regard to the possibility of reviewing the interpretation of the Supreme Court.

The article presents critical commentary to the decision of the Disciplinary Chamber of the Supreme Court concerning the possibility to treat an ECJ judgment in joined cases C-585/18, C-624/18, and C-625/18 as a prerequisite for reopening the proceedings based on Article 540 § 3 of the Polish Code of Criminal Procedure (k.p.k.). Disciplinary Chamber stipulates that the afore-mentioned ECJ judgment is not binding in Polish legal order. This follows, according to the commented decision, from two factors. First is the undue omission and, as a consequence, infringement of the Supreme Court Act in case of a prejudicial request to ECJ. The second is the lack of judicial independ-ence of judges in the above case. The author argues that the line of argument taken by the Disciplinary Chamber is against Polish and European Union law. He points out several shortcomings in this Chamber proceedings. Its uncon-stitutional nature, ECJ interim measures, and other issues which the author acknowledges, renders Disciplinary Chamber unable to adjudicate. Regard-ing the author’s sbeliefs, first and foremost, this decision is illegal. Secondly, it shows urgent necessity to suspend the Disciplinary Chamber and, last but not least, proves that the Polish Constitution and European Union Treaties can safeguard the rule of law

This article deals with the relationship between human dignity and human rights in constitutionalism that labels itself ?illiberal?. This relationship is assessed on the basis of the Hungarian Basic Law of 2011. It is argued that this type of constitutionalism creates logical correlations that affect the approach to human rights. As a consequence, it seems that one can apply human dignity against human rights. Illiberal constitutionalism introduces systemic changes that cannot lead to changes in freedoms and rights as such; for instance, limitation of the freedom of speech because of the dignity of the nation.
The notion of dignity in the Hungarian Constitution is ?overburdened? as it encompasses many notions that remain in certain ?tension?. For instance, linking the dignity of the nation with human dignity leads to the limitation of the freedom of speech. The paradox of illiberal constitutionalism is that the role of human dignity increases at the expense of human rights. The logic of this constitutionalism is thus not only an attack on institutions (e.g. courts), but also an inevitable change in the approach to human rights.
The illiberalism of the illiberal constitutionalism expresses itself, foremost, in its different approach to an individual and his or her position in the state. In a liberal order the individual is autonomous and, in a certain way, separated from the nation. In an illiberal order, the individual is connected to the nation: a human being is not only an individual but an individual immersed in the nation and the dignity of the nation.

The author shows the current problems relating to two main issues: human rights, and a democratic and open society and its governance. The articles indicate old phenomena, that have been taking place for a long time, , and new ones related to civilization changes. The author points to the indecent forms of exercising power in the state. He warns that people who value democracy should be aware of the destructive consequences of any forms that degrade human dignity by politicians. Democrats should not be involved in the decomposition of democratic processes in the state carried out by those in power, which draw their society into an undemocratic regime.

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.

The author analyzes three fundamental concepts relating to constitutional human rights and freedoms: horizontal application of the Constitution, horizontal observance of the constitutional provisions, and horizontal validity of the Constitution. The author claims that in Polish constitutionalism there are many discrepancies in understanding the mentioned terms which bring difficulties to conduct discourse and scientific research. The two models of application of constitutional law (narrow and wide) are described in the essay. The author recognizes that the wide model is introduced to the Polish Constitution. According to this, the Constitution may be applied by courts, administrative bodies, and other bodies of public authority, as well as by entities of private law. The author recognizes that the above-mentioned entities usually do not apply constitutional provisions but obey (respect) rules derived from the rights and freedoms. The author also describes the personal scope of obligations which are encoded in constitutional rights and freedoms. It is indicated that there are two types of addressees of the obligations: organs andauthorities, and other entities. Both are supposed to respect constitutional human rights and freedoms. In conclusion, the author presents the opinion that formulating specific definitions of the above-mentioned issues based on the principle of the autonomy of constitutional concepts should be avoided.

The subject of the article is an analysis of the functioning of the Act of 3 December 2010 on the Implementation of Certain Provisions of the European Union in the Field of Equal Treatment (the Equality Act). In the first part of the article, the most important provisions of this act are cited, with particular emphasis on those solutions which raise doubts in the legal community, not only as to their effectiveness and rationality, and thus practical relevance, but also to their compliance with the Polish Constitution of 1997. In the second part, the practice of applying the Equality Act is presented on the example of selected decisions of common courts. In the light of the scarcity of cases conducted on the basis of this Act, it was pointed out that without introducing a number of changes to its content, particularly in terms of expanding the catalogue of claims to which people affected by unequal treatment are entitled, and without a broad information campaign, the Act has no chance of becoming an effective tool for combating discrimination.

The issue of clean air is one of the most important problems of the modern world. Air pollution has no borders, therefore its protection is primarily the domain of international law, which is increasingly striving to strengthen this protection. The Constitution of the Republic of Poland of 1997 contains a number of provisions concerning the environment - for example, program norms that determine the tasks of public authorities such as preventing the negative health consequences of degradation of the environment, or the norms that contains the right to be informed about the quality of the environment and its protection). However, it is disputed whether the right to clean air can be considered as one of the fundamental rights that are subject to constitutional protection. The article shows the most important legal problems related to clean air protection: essential postulates of the legal doctrine, key legal regulations, and the most important court decisions that may affect the way this law is perceived in the near future.

The aim of the article is to identify and analyze the direction of changes to which the legal institution of the constitutional complaint has been subject since the entry into force of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal. In the years 2017-2020, the constitutional complaint underwent transformations, only some of which were justified by the content of the new
 

The election must be ?fair?, i.e. its legal framework and practical implementation must ensure the free expression of the opinion of the people in the choice of the legislature or other representative body. Fairness of elections constitutes a prerequisite for the proper implementation of the five fundamental rules of suffrage (universal, equal, free, secret, and direct) which, taken together, constitute the European electoral heritage. This article discusses the European standards of ?fair elections? in five specific fields: stability of electoral legislation, postal voting, misuse of public means in the electoral campaign, the role of the public media in the electoral campaign, and adjudication of electoral disputes. Particular attention is given to the caselaw of the European Court of Human Rights and the opinions of the Venice Commission. These standards are confronted with the Polish electoral laws and practice, in particular, the experience of the 2020 presidential elections.

The article aims to prove that the contemporary lawyers? perspective was shaped not only by the Roman jurisprudence but also by the political and legal thought of ancient Greece. According to the author, this applies, in particular, to such notions as democracy, rule of law, and the administration of justice. However, the presented considerations are not historical but paradigmatical in nature. They are related to the current Polish constitutional crisis because we are dealing with a violation of the basic paradigms arising from the centuries-old tradition of European legal culture.

The aim of the paper is to assess the e?ectiveness of the activities of the Republic of Poland and the Republic of Moldova in terms of the implementation of the European Convention on Human Rights standards in some specifc human rights areas. The findings make it possible to identify the positive steps and setbacks that the Committee of Ministers faced in the supervision of judgment implementation executed by the concerned countries. Te paper focuses on the measures taken to enforce ECtHR judgments and describes the main problems identified by the ECHR in relation to both countries. The paper undertakes to explore the extent to which the European Court of Human Rights has improved the situation of human rights protection within these countries. The overview of the case law concerning both countries shows some common features but also some di?erences. Both countries have a history of violations of the European Convention on Human Rights, which is broader in the case of Moldova. The paper argues that the lack of human rights protection stems from the judiciary and state administrative bodies? failures. Tis has given rise to mistrust in decisions provided at the domestic level and explains why many Polish and Moldovan people place their hope in Strasbourg.

The article concerns citizen power, which is one of the five elements of the horizontal model of separation of powers in the Bolivarian Republic of Venezuela. This unique and innovative construction has been functioning in Venezuela since the Bolivarian Revolution. The aim of this study is to examine the sources of the historical and ideological idea of citizen power, its position in relation to other authorities, and systemic practice in the scope of the model adopted in the constitution. The structure of citizen power is presented, and the basic goals and principles of its organs are discussed. The analysis is also an attempt to assess the proposed solution. The considerations concern the advantages and risks of the examined concept. The analysis is based on constitutional law, statute provisions, and literature on the history and law of Venezuela.

This paper presents an attempt to discuss the prosodic order of the Preamble to the Polish Constitution of 1997 by using the common notion of the verse derived from the definition of a verse/poem. The author tries to answer the question of the supposed verse or prosaic nature of the Preamble. On the foundations of the editions of the Preamble and S. Wilkanowicz?s drafts of its text, the author tries to reconstruct implicit writer?s intention or intuition which underlies the lineation of the Preamble in order to propose a proper form of the text based on a typographic routine used in the poems written in verse.

The commented judgment of the Supreme Court concerns the judicial independence and the rule of law in times of constitutional crisis. For the first time in the Polish history the Supreme Court ruled that one of the chambers of the Supreme Court, as well as the National Council of the Judiciary, did not give an appearance of judicial independence. The Supreme Court followed the test of the appearance of judicial independence that had been provided by the Court of Justice of the European Union. The Supreme Court also claimed that judicial independence is the essence of the right to a fair trial. In constitutional terms, it means that independence cannot be lawfully limited, even in a proportional way. The commentary discusses that claim under two di?erent theoretical concepts of the essence of a constitutional right (objective and abstract versus individual and relative).

Nowadays, Constitutional Courts carry out an essential function in every Democratic State because they safeguard the constitutional provisions and guarantee that the rest of the legal order complies with them. Te Spanish Constitutional Court is not an exception and, through its interpretative function, has been able to specify and develop the content of provisions both at constitutional and sub-constitutional levels, creating norms, rules, and principles that adhere to those of constitutional rank. Te present work aims to give the reader an overview of the organization and functioning of the Spanish system of constitutional justice, making a particular emphasis on the Constitutional Court?s interpretative function because this is the main and most important function of current Constitutional Courts.

Considerations on whether the Polish Constitution of 1997 could have been better were inspired by the constitutional practice of more than 20 years of its validity, and especially the last years, when a homogeneous and hegemonic parliamentary majority is increasingly making all state bodies and institutions dependent on a political party, leading slowly to the weakening of the rule of law, denying the division of power, and appropriating the judiciary in such a way that there is already more and more talk of a departure from the standards of a democratic system. But what?s worse ? to ridicule democracy by introducing the chaos that has recently taken place in connection with the election of the President of the Republic of Poland. The article analyses this practice, asking whether the principles of the Constitution could have been formulated in such a way as to prevent or at least hinder such undemocratic practice. But what is more, does it provide for sufficient control mechanisms and instruments capable of enforcing accountability? Although the article recognizes a number of weaknesses in the Constitution, when confronted with its application, the author leads to the conclusion that if it were not for the violation of the Constitution, its false interpretation and the ignoring of its principles, i.e. if it were observed, it could successfully serve as the foundation of a democratic state.

The article is concerned with the regulation of extraordinary measures in the Polish Constitution of April 2, 1997, in the context of the political practice that we are dealing with since March 2020 in Poland. The author indicates that the actual model of the epidemic state in Poland shows all features of a constitutional state of emergency. In particular, the epidemic state law limits various constitutional rights and introduces a number of di?erences in the functioning of public administration. The author argues that this state eludes constitutional provisions to the point of being in contradiction with them.

The remarks mainly focus on the evolution of the legal regulation contained in the analyzed legislation, its doctrinal and judicial assessments, as well as its relationship with other legal norms, especially with the provisions of the Constitution of the Republic of Poland of 1997. As a consequence of the partial assessments (given as a part of the separate stages of re?ections), the postulates of partial change of the current regulation are formulated which ? according to the author ? will allow reaching full compliance with the fundamental rights of the state. Te analyzed regulation is a?ected by the status of unconstitutionality which results in incompatibility with the provisions of Articles 2, 31 section 3, 32 section 1, and 190 section 4 of the Polish Constitution.

The present study comes as a result of a speech delivered at a conference organized at the Faculty of Law and Administration of the Jagiellonian University on May 20, 2019, that was devoted to the topic of the Social burden of private ownership: philosophy and law. At this conference, I had a great pleasure of giving insight into the history of employee stock ownership plan in Poland and its contemporary implications. Both when preparing and delivering my speech, I had a growing conviction that the following words of Pierre Legendre, a great French scholar, hold: the law is a discourse about life. Today I already know that the labour law is a unique discourse about life, and each and every one of institutions from the domain of this branch of law (understood correctly, i.e. with due consideration for its constitutional and axiological foundations) attests to it. So does the institution of an employee stock ownership plan. Why is it so? Because the labour law equals social and economic order, meaning the foundations for the functioning of the society and the state. There is no other branch of law that would pervade human life as deeply and for such a long time the labour law. Each successive labour law institution remains extremely closely linked with the remainder of social situations. We can say that it emanates on other society members

Tough a constitutionally recognized right to same-sex marriage remains the global minority view, in June 2019, Ecuador became the 27th country in the world to recognize this right. Following a binding advisory opinion issued by the Inter-American Court of Human Rights (IACHR), the Constitutional Court of Ecuador (CCE) reinterpreted the Constitution of Ecuador to ensure that same-sex couples be granted the same title, rights, and benefits as their married heterosexual counterparts. Te IACHR?s advisory opinion focused on three elements: the developed trend for the interpretation of global laws, the relevant provisions of the American Convention on Human Rights, and the positive obligation of member States derived from the interpretation of these Convention provisions. This article will analyze these elements and discuss the extent to which the CCE relied on the IACHR?s interpretations to arrive at its holding.

The study is devoted to the issue of the model of property protection in criminal law. Starting from the constitutional principles of property protection, the article presents the constitutional typology of forms of ownership depending on the entity that owns the property. This is followed by an analysis of the normative status, character, and functions of private, municipal, and state property. Grounded on the principle of a social market economy based on private property, the study provides an analysis of the social, economic, and constitutional function of this form of ownership. In the next step, the article presents the status of communal property, its constitutional functions, and relations to private and state property. Te study also contains the justification for the thesis on the functional approach to state property which, as a type of property, is not constitutional in its nature. In light of the analysis of the methods of infringement on the property and their social consequences, the author presents the justification of the thesis on the equal protection of all types of property in criminal law. He points out the arguments supporting the thesis that in the legal system based on the concept of social market economy there is no justification for differentiating the methods and forms of criminal law protection of property depending on the entity to which ownership is vested. From the perspective of the principle of legal protection, there are currently no grounds for differentiating criminal law protection of state or social property. The social functions of property are associated with every constitutional type of this right, which further justifies the thesis that property should be protected in an equal manner. Possible differentiation of the scope of responsibility for various attacks on property should be based on the assessment of the degree of social harmfulness of the act in relation to the circumstances of the evaluated case. The current criminal law protection of property guarantees adequate protection of this right in relation to all its varieties, as well as enables individualization and differentiation of the scope of criminal liability for attacks on the property depending on the features of a particular case.

The article shows how to use imprecise provisions of the Constitution of the Republic of Poland to strengthen the powers of the President. ?Hidden? competences are powers explicitly granted to the President in the Constitution but used in an unorthodox way, unforeseen by the creators of the Constitution. The article discusses five cases: 1) possibility to ?push the Prime Minister out? of the international event ?hidden? in the power to convene the first parliamentary meeting after the election; 2) a ?small pocket veto? ?hidden? in the power to announce the bill in Journal of Laws within 21 days; 3) possibility of delaying of the signing of a bill ?hidden? in the mechanism of veto-withdrawal of veto challenge to the Constitutional Tribunal; 4) appointment of the presidential Prime Minister against the will of the parliament ?hidden? in the power to designate a temporary head of government; 5) possibility of evading the obligation to dissolve the parliament in the event of an inability to elect a government ?hidden? in the power to notify the Marshal of the Sejm of the temporary inability to hold office (the Constitution forbids Marshal of the Sejm, who acts

The article presents a partially critical commentary on the judgment of the Supreme Court concerning an interpretation of Article 226 § 1 of the Polish Criminal Code (k.k.). Supreme Court overruled the challenged judgment and referred the case for re-examination, deciding that the public nature of the perpetrator?s act is not a constituent element of the crime of insulting a public officer. As the justification for this decision, the Supreme Court referred to the limits of the pro-constitutional interpretation. In this commentary, three issues are discussed. Firstly, a question concerning the limits of the pro-constitutional interpretation in the judicial process of application of the law. In the opinion of the author, such limits are set by the Constitution. Secondly, the importance of the pro-constitutional interpretation in the process of direct application of the Constitution. The author argues that this type of interpretation cannot be perceived only as of the interpretive co-application of the Constitution and a statute. Courts should refer to the pro-constitutional interpretation before making a choice of the proper form of direct application of the Constitution. Thirdly, a subject of the pro-constitutional interpretation of Article 226 § 1 k.k. According to the author, the pro-constitutional interpretation of Article 226 § 1 k.k. includes a necessity of adopting the literal interpretation according to which the public nature of the perpetrator?s act is not an element of the crime described in Article 226 § k.k.

For several years lively discussions have been taking place in Poland related to the rule of law. In the author’s point of view, this discussion is breaking out of the scope of proper methodology and cannot – in principle – bring expected results. In the course of a discussion between the reliable position, which is highly specialized and thus using arguments not understood by many, with a propaganda message , the latter usually wins, however, for the short term. As the author states, this discussion cannot be discontinued and must be conducted, especially when the practical aspects of the problem are considered, and should be aimed at dealing with strictly legal issues while presenting not only the opinion on facts but facts themselves. The author presents cases where the participants of the discussion depart from the truth and use simplified argumentation that lacks any sense. He underlines the problem of journalists’ reliability related to the way the discussion is conducted. He emphasizes that their duty is to be objective and professionally prepared, and to study the issue more deeply in order to separate truth from falsehood.

Member States (while transposing and implementing the EU law), as well as participants of the market (while concluding and performing contracts), take part in the race to the bottom. They choose the most comfortable solutions that offer them the highest profits, the greatest freedom, and the fewest limitations. EU law should prevent this unavoidable pathologization, the race to the bottom, imposed by the stronger or smarter participants of the market. 

Considering how common the race to the bottom is, the principle of effectiveness of EU law inspired an increased involvement of the Court of Justice of the European Union (CJEU) in the discussion on the independence of the national judiciary. It deals with the protection of judges’ independence against influence, pressure, as well as political decisionism, in order to prevent the existing standard of the rule of law from deteriorating. Recently, Polish courts formulated more than twenty preliminary referrals for the CJEU, and the EU Commission subsequently initiated two cases against Poland. All of these cases deal with situations in the Polish judiciary. The Polish cases became a catalyst of change, and, as a result, the case law of the CJEU is undergoing a „qualitative change”. The potential of Article 19 Section 1 of the Consolidated version of the Treaty on European Union has been noticed. On this basis and in cooperation with the national courts, a renewed standard of an independent European court is being constructed. This standard would further bind national courts with the EU system. The standard relates not only to the application of EU law by national courts, but it also deals with the institutional structure of the national courts.

The purpose of this article is to present the basic issues concerning gender quotas in the electoral system. Firstly, the concept of quotas and their functions are explained. Secondly, the origin of quotas is discussed. Last but not least, the author is presenting the classifications of quota systems. The detailed analysis is made mainly from the theoretical perspective.

The article addresses the question of amparo´s evolution in Mexico. It provides historical development and an actual perspective of understanding amparo as a form of jurisprudence. In Mexico, amparo is a judicial procedure established to protect constitutional rights and freedoms against violations by the state authorities. The amparo was first introduced in the text of the Constitution of the Mexican State of Yucatan, Mexico, in 1841. Today this procedure is the constitution’s most complex institution of protecting human rights. Alongside the amparo´s analysis, the author suggests developing and implementing the fourth procedure regarding jurisprudence in Poland

One should postulate far-reaching constitutional changes in terms of the political position and competences of the President of the Republic of Poland but without undermining the way he has been appointed so far. For now, all those rules must remain as they were decided on 27th September 1990. Only this way a non-conflict governance structure can be created in Poland. After some time, when this model of exercising public authority will became established, one can return to the question of how to elect the President of the Republic of Poland. In short, the efforts visible both in the Constitutional Act of 17th October 1992 and the Constitution of the Republic of Poland of 2nd April 1997, aimed at evolutionary limiting the scope of competences of the head of state, need to be continued.

Even if the mode of election of the President of the Republic of Poland cannot be changed at this time, at least a few de lege ferenda postulates can be formulated that would lessen the political effects of universal presidential elections, bringing us closer to the emergence of the Prime Minister’s government system. These postulates concerns, inter alia, lowering the majority needed to reject the presidential legislative veto, resigning from the legislative initiative on amending the Constitution, specifying the procedure for ratifying and terminating international agreements, limiting independence in conducting foreign policy, and some restrictions on the nomination of certain categories of public officials.

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.

The main topic of this work is the analysis of the freedom of artistic expression with the focus on the case-law of the European Court of Human Rights. The article discusses the basic components of freedom of expression such as the freedom to hold opinions and to receive and impart information and ideas. This work indicates the subjective criteria (features of the author’s speech and the specifics of hers/his statement ) and the subject (field, content, form, medium, and type of expression) which determine the scope of protection of freedom of expression. Article defines the criteria for restricting the freedom of expression and legitimate aims contained in the limitation clause in Article 10 section 2 of the European Convention on Human Rights. The considerations coveres the specificity of freedom of artistic expression. The analysis takes into account the position of artistic expression in the hierarchy of particular types of speech and the historical evolution of protection of these contents in international acts and ECHR jurisprudence. The key issues are the role of artistic expression in a democratic society, the limits of freedom of artistic expression stemming from the European Convention on Human Rights and the case-law of the ECHR, as well as current trends in the case-law of this Court.

Every political and legal system must have settled procedures for incurring international obligations, that is, besides indicating the authority responsible for signing international agreements, rules determining who and when (in what mode) agrees to ratification and who carries out the act of ratification. Parliament’s participation in ratifying or terminating international agreements, and in particular certain types of such agreements, falls within the standards of a democratic state organizing its system according to the principle of separation of powers. It takes, depending on the will of the particular constitution-maker and legislator, various forms, but as such it is a common phenomenon in the countries of Western democracy, and also embraced by post-socialist states, called the states of the new democracy.

The subject of the commentary is the recent judgment of the Constitutional Tribunal of Poland, in which the Tribunal opted for the admissibility of the election of judges to the National Council of the Judiciary (NCJ) by the parliament. The paper questions the validity of such a decision indicating that it does not correspond to the constitutional regulation of the composition of the NCJ and the standards worked out in the existing Tribunal jurisprudence and legal literature. The author makes a critical assessment of the changes adopted by the legislator as inconsistent with the constitutional principles of independence of courts and judges and the separation of powers.

Protection of persons of „different” sexual orientation constitutes today one of the prominent fields in the human rights jurisprudence on the supranational as well as on the national level in Europe. The initial stages of this process were focused on de-criminalization of sexual contacts and on the removal of classifications based on sexual orientation. Since the late 1990s, the problem of legal recognition of same-sex couples begun to play a central role. Today, the majority of the European countries (28) allow same-sex marriages or other forms of civil unions (registered partnerships). At the same time, however, Europe remains divided as several post-communist countries are opposing any form of regularization. This article offers a brief presentation of the most interesting judicial decisions on the matter and attempts to define some emerging European standards concerning the legal status of same-sex couples. The legal regularization of same-sex couples is mostly regarded as a legislative matter. Accordingly, the national courts remain deferential to the legislative choices and are not ready to develop the constitutional dimension of the problem. A similar approach is visible in the case-law of both European courts, whereas the Luxembourg Court (CJEU) seems nowadays to be more open to the full recognition of samesex couples than the Strasbourg Court (ECtHR). Nevertheless, there is a visible trend to recognize a positive obligation of all European countries to provide some form of legal recognition to same-sex couples, which may, but not has to, take the form of a regular marriage.

State regulation of independent faith-based schools necessarily involves the balancing of multiple human rights vested in parents and children who identify simultaneously as citizens of a liberal democratic state and practitioners of a religion that rejects straightforward secular education. Ethical pluralism demands that the liberal democratic state respect the diversity of its citizenry and the diversity of their ethical values, for its own survival as well as theirs; yet the survival of the liberal democratic state also depends upon its citizens’ receipt of an education that prepares them for informed participation in a democratic system. This essay examines the attempts of three liberal  democracies – United Kingdom, the United States and Israel – to regulate independent faith-based schools, and so provide a suitable education for religious minority students.

In this gloss, I comment on the pronouncement published as the decision of the Constitutional Tribunal. It concerns an uncontroversial issue of obligatory discontinuation of the proceedings due to the withdrawal of an application. However, this unanimous decision also includes an extensive section marked as a dissenting opinion in which criticism is presented of applicant’s conduct, that is, of the Commissioner for Citizens’ Rights (the Polish Ombudsman). It also contains an appraisal that the Commissioner betrayed his oath, which is a statutory condition for the dismissal of the Commissioner. I argue that such a dissenting opinion violates the law. I also provide arguments to show that the statutory condition of the Commissioner’s dismissal by way of betraying his or her oath is constitutionally inadmissible. The statutory oath formula contains idealizations that are impossible to fulfill. Using such a formula in the Sejm (a house of the parliament) as an assessment criterion of the Commissioner’s conduct would subject him or her to political responsibility. It has no basis in the Constitution’s text but also no basis in the constitutional pantext. An exemplary Commissioner should be a figure of eminent legal charisma. In the field of human rights, the Ombudsman serves as a loyal opposition to the political authorities helping to prevent the groupthink. The Ombudsman is also entangled in culture wars as far as human rights are concerned. The acceptance of Commissioner’s early dismissal on the basis of disapproval cloaked in the charge of betrayal of his or her oath would make it impossible for the Commissioner to perform his or her duties effectively and it would undermine the Commissioner’s mandate by motivating to avoid dealing with sensitive issues.

The article analyzes key aspects of the judicial reform in Ukraine. Particular attention is paid to the formation of a new Supreme Court of Ukraine. Thus, numerous changes to the existing national legislation were made and new legal acts were adopted in order to establish new institutions, requirements, and specified regulations for conducting a transparent contest for judicial appointments, in accordance with international and the European legal standards.

It should be noted that the reform of the judiciary system of Ukraine is systemic and aims, inter alia, to ensure the effective functioning of independent and impartial court proceedings, and to guarantee a person the right to a fair trial, which is one of the main requirements for the rule of law and is an integral part of democratic law-governed state.

The article analyzes the procedure of formation and functioning of the High Council of Justice and the High Qualification Commission of Judges of Ukraine, which are directly involved in the „creation” of the judicial corps.

A comprehensive analysis of the contest for judicial appointments for the new Supreme Court, which began in 2016 and lasted 9 months, is carried out. As a result of the contest, 118 new judges were appointed. In addition, the role and functions of the newly created institution – Public Council of Integrity, which should support the High Qualification Commission of Judges in determining whether the judge (or candidate for a position of the judge) meets the criteria of professional ethics and integrity, are determined. The status of a judge, legislative guarantees of judicial activity and the obligation of a judge to complete and file three electronic declarations: the asset declaration, the statement of the integrity of the judge, and the declaration of family ties, are also examined.

The main thesis of this paper is as follows: the content of the law is influenced (albeit to a different degree) by the law-maker, the interpreter and the leading legal doctrine. Activities of each of these entities are directed at producing certain outcomes. Each of them may bring about politically instrumental outcomes in the realm of law. Such acts can be exemplified in recent years in Poland by re-interpreting the Constitution, instrumental approach to the rules of legislation and the views espoused by the servile doctrine of law.

In the Article 2 of the Treaty on European Union there is no definition of the rule of law, however, in the author’s opinion, every European lawyer knows the meaning of this phrase. It has a very, very long tradition in European legal culture and is rooted in Roman law and its jurisprudence. The author has used Cicero’s Oratio pro Cluentio to explain the core of the rule of law and its meaning.

Interpreting Nazism is a very delicate task. Herein, I argue that the work of Jens Meierhenrich, which is dedicated to the figure of Ernst Fraenkel and his scientific oeuvre (The Dual State) but is also a wider presentation of an ethnography of Nazi law, shows the significance of revealing the Nazi legal culture. This study not only increases our historical knowledge but also helps to better understand contemporary dual states. A down-to-earth approach to the way law works in authoritarian states is essential if one considers how important were the remnants of the Rechtsstaat in structuring authoritarian politics in Nazi Germany. Jens Meierhenrich excavated Fraenkel’s work and reintroduced it into scholarly circulation. However, it should be noted that Fraenkel’s The Dual State was continually used by Polish scholars, as I have shown, most notably by Franciszek Ryszka. Another value of Meierhenrich’s analysis lies in showing how ideological pressure influenced for many years the research trends in this area. What I find of particular value in The Remnants of the Rechtsstaat by Jens Meierhenrich is the theme which was also explored by Franciszek Ryszka: the embroilment of German lawyers and legal scholars with the Nazi regime. Before it was fully revealed that “der Tod ist ein Meister aus Deutschland”, quite a number of masters of jurisprudence paved the way.

The supreme audit institutions have now become an indispensable element of any democracy. By conducting independent audits on the management of public funds and the related activities of the government, government administration and other authorising officers for said funds these bodies provide the Parliament with information, formulate opinions on issues related to financial statements and implementation of programmes, projects and other government activities. The fact that authorities appointed to perform a similar systemic function are present in many countries has become an incentive to undertake the development of uniform standards regarding the organization and operation of supreme audit institutions in the conditions of functioning of a democratic state and free market economy, as well as establish their place in the system of state authorities. The aim of the article is to illustrate the place of the Supreme Audit Office of Poland on the background of international standards of organization of and activities performed by audit authorities.

The Fourth Amendment to the U.S. Constitution prohibits police from conducting unreasonable searches and seizures in order to protect the individual’s right to privacy. This article discusses U.S. Supreme Court cases interpreting that amendment.

On November 7, 2018, the President of the Capital City of W. banned the cyclical assembly organized by the Association. Among the reasons supporting this decision, a threat to life or health of people or property in significant sizes was indicated. It was decided that the police did not have enough officers to secure the march, and the media reported on the potential participation of extremely nationalistic and fascist groups. The Association appealed to the court. The court stated that, although the President of the Capital City of W. was the competent body to make such a decision, he did not substantiate the fact that the organization of the march threatened the life or health of people or property in large proportions. The court pointed to far-reaching arbitrariness of decision and noted that the assembly organized by the President of the Republic of Poland does not have priority over the Association’s meeting. The author of the commentary expresses his approval for the court’s decision, in particular, pointing to the need to limit the right to freedom of assembly only in extreme situations and in accordance with the Polish law. He points to the fact that even the most extremist groups have the right to manifest as long as they do not violate criminal law provisions. The author also agrees with the court’s opinion that state assemblies do not take precedence over private ones because the legislator did not introduce such provisions.

The article presents the working assumptions and methodology of carrying out a constitutional survey. The survey concerned legal assessment of the norms of the current Constitution and its practical application. Some questions also referred to the need to amend the Constitution and possible directions of the substantive adjustment of its provisions. The survey covered representatives of the science of constitutional law from all over Poland and had exclusively scientific objectives, in particular was not aimed at supporting any political legislative initiatives or pending legislative efforts. The article presents statistics of responses to individual questions of the survey commented briefly by the authors. It discusses inter alia the adequacy and effectiveness of the principle of separation and balancing of powers, regulations concerning constitutional responsibility, advantages and disadvantages of the current Constitution as well as the purposefulness of introducing unamendable provisions therein.

This paper is an extended version of my address at the conference held to summarise the Constitutional Survey on 16 June 2018 at the Jagiellonian University in Krakow. It is devoted to proposals for amendments to the Polish Constitution of 1997 contained in the answers to the open questions from the Constitutional Survey we conducted in 2017 among constitutionalists (full professors, doctors habilitated and doctors).

The broad and rich set of proposals for amendments put forward by constitutionalists may lead to the conclusion that such amendments are needed in the Polish Constitution of 1997. Many respondents held that the numerous deficiencies found in Poland’s recent constitutional practice did not result from the contents of the Constitution, but from a certain way in which it was applied, or rather not applied, or even violated. A constitutional amendment cannot remedy problems caused by insufficient legal or political culture. One of the most important conclusions from our survey, supported by the vast majority of respondents, is that whereas the Polish Constitution of 1997 does require amendments, they should, firstly, be only partial amendments, rather than a new constitution, and, secondly, that they should not be introduced in the current political and systemic situation.

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.

The Polish Constitution introduces the principle of division and balancing of the authorities. In Poland, we have a parlamentary system of government with a strengthened position of the president. The Constitution introduces tools for balancing of the authorities. They guarantee the deconcentration of power. We are currently dealing with abusive constitutionalism, which, contrary to the constitution, undermines the division of power.

In the middle of the Polish constitutional 2015–2018 crisis, references to a ‘constitutional moment’ concept had suddenly and unexpectedly appeared in the Polish public debate. This article aims to confront fundamental conditions and implications of constitutional moment theory with the Polish constitutional framework. Firstly, I will argue that it may be controversial to refer directly to the constitutional moment in an interpretive sense due to the scope of current Polish constitutional regulation and its historical development. Secondly, I will argue that according to the fundamental findings of Bruce Ackerman’s theory its application during the constitutional crisis in Poland is also impossible both in a descriptive as well as interpretive sense. Then, with references to Sujit Choudhry’s interpretation of Ackerman’s ‘higher lawmaking,’ the article will conclude that Poland may have a constitutional moment (in a descriptive sense only) at the end of constitutional crisis and the need to restore the rule of law.

The article attempts to answer the question of what the necessary qualities and the requirements are that a constitutional judge must fulfill to perform his judicial duties. The point of reference for these considerations is the figure of Professor Andrzej Mączyński, a retired judge and former vice-president of the Constitutional Tribunal. The author proceeds from the assumption that the methodology of constitutional interpretation has unique features that distinguish it from other forms of judiciary interpretation and application of law. The corner stone of that methodology concerns the concept of the so-called autonomous legal notions which are construed with respect to basic constitutional values and principles. Constitutional interpretation requires a comprehensive legal background covering all areas of law, a good understanding of the nature of a multi-faceted contemporary legal system, as well as a large historical knowledge on the evolution of law and the impact exerted by the legal tradition. A modern constitutional judge must not only have precise and wide knowledge, but also an imagination and an appropriate “constitutional sensitivity” especially in the field of the application of fundamental rights and constitutional values. His first imperative is to be obliged to look for what is called by the famous Polish lawyer Fryderyk Zell (junior) as the “righteous law”. In the second part of the article, the author analyzes the threats to the independence of the constitutional court, resulting from violations by the legislative and executive authorities, of the principles of a democratic state of law. The author refers to examples related to the activities of the legislative and executive powers undertaken against the Polish Constitutional Tribunal from autumn 2015.

As a starting point, the author takes considerations regarding the nature of privacy as a legal category. He acknowledges that it is a human freedom requiring effective legal mechanisms protected by public authorities. At the same time, he points out threats that civilization changes and technological development bring for human privacy. The author confronts these considerations with the problems of collecting and processing data in the health care system. The author, however, concentrates on solutions adopted by the current EU legislator in a new comprehensive set of normative acts on protecting privacy. In this context, the author presents new trends and specific legal solutions regarding health protection. He also indicates the danger of absolutizing the protection of privacy, especially where the need to protect the life and health of the patient demands a primacy over general legal solutions regarding the protection of personal data.

The explanation of the notion of non-pecuniary damage is relevant not only for determining the constitutional pre-conditions for liability of public authorities but also for the determination of the ways and the extent of compensation. The Constitutional Court, following legal doctrine, considers that damage in constitutional meaning is any injury to legally protected goods of any entity. This definition raises the following questions: 1) what is a legal good, 2) what is someone’s good, 3) how legal protection of a good should be understood and 4) what an injury to good means.

Generally, someone’s goods are individual goods, i.e. goods precious to someone, creating favorable conditions for his or her personal development, goods that cannot be disposed of by other legal subjects. The constitutional notion of damage means that an injury to good is enjoying protection reaching to a certain level of intensity. It encompasses also non-pecuniary goods. An injury to goods is the difference, assessed negatively, between the state of things resulting from the damaging event and the state of things which would have occurred if the damaging event would not have happened. The reparation of the damage should be adequate to its nature. The reparation of the non-pecuniary damage consists foremost in actions aiming at the restitution of the state of things which would have occurred had the damaging event not happened.

The article presents the concept of the secondary unconstitutionality of law from the perspective of a few issues in legal interpretation. The notion of the secondary unconstitutionality is commonly described as a situation when a legal norm is viewed as inconsistent with the Constitution in the light of the judgment of the Constitutional Tribunal which concerned similar legal problem. The aim of the article is to indicate the scope of the possible interpretation of the norm as secondarily unconstitutional. In the first place author considers the influence of the dominant in Poland linguistic conception of a legal norm to the possibility of application of the notion of the secondary unconstitutionality. Next, it is worth underlying that the analyzed concept is often used to justify the omission of the valid legal norm by the court. This issue needs to be studied from two perspectives. Firstly, it is necessary to describe the relationship between the principle of the presumption of constitutionality and the concept of the secondary unconstitutionality. It has to be explained that this presumption is assigned to every valid legal norm which hasn’t been adjudged as ‘unconstitutional’ by the Constitutional Tribunal. That is why the main aim is to answer whether the competence to omit the valid norm is consistent with the principle of the presumption of constitutionality. The second issue refers to the principle of the direct application of the Constitution. Although this principle usually justifies the interpretation of a provision in accordance with the Constitution, in this article it has to be considered whether the principle of the direct application of the Constitution also allows the court to omit the provision in this specific situation of the secondary unconstitutionality.

In this paper, we present how the local authority perceives the effects of a refusal to publish judgments of the Constitutional Tribunal. We claim the resolutions of the local government bodies created none new legal situation (they did not create any obligation) because this result directly from Article 190 Section 1 of the Constitution of the Republic of Poland. The obligation to apply the law resulting from the primacy of the Constitution in accordance with the basic law, connected with implementing the principle of direct application of constitutional provisions, also means the obligation of the authorities to comply with the judgments of the Constitutional Tribunal as the guardian of that supremacy.

In our opinion, the resolutions of the local government bodies were not of the nature of acts of power and therefore the considerations of administrative courts that questioned the legality of these acts due to the lack of legal grounds to take them were irrelevant. Therefore, there were no arguments to exclude these resolutions from the legal system based on the arguments presented by these courts.

On 2 August 2018, the Supreme Court has referred questions to the European Court of Justice about whether the forced retirement of most of its senior judges and other infringements of judicial independence are compatible with EU law. That decision is a landmark step in the serious constitutional crisis in Poland that has been going on for several years. The Supreme Court attempts to defend itself against its subordination to the legislative and executive authorities, requesting that the CJEU express its view on the EU standards of irremovability of judges as an element of the independence of the judiciary. The article analyses the reference for a preliminary ruling from the perspective of EU law, especially the latest judgments of the CJEU concerning the rule of law and effective legal protection. Among many problems arising in connection with the discussed matter is the admissibility of the preliminary reference and the application of the interim measures by the Supreme Court. The article also examines the motion of the Prosecutor General to the Constitutional Court concerning the validity of art. 267 TFEU and the right to apply the interim measures suspending the statute on the Supreme Court.

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

The paper asks when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level such critical juncture obtains when polity’s founding document (treaty, convention, constitution) protects against the dangers that no longer exist or does not protect against the dangers that were not contemplated by the Founders. The paper asks the question whether whether the capture of state institutions in Poland (and Hungary before it) is an outlying case, or if it portends the future of Europe more generally. Whatever the case, Poland matters, and more than for just the Poles. The case illuminates salient features and fissures in the bases for democratic government, the rule of law, and constitutionalism when confronted with the sweeping politics of resentment. Courts play a pivotal role in the process because of their supervisory functions and the embedded lowprofile and arcane language of the law. There is always a bona fide assumption that law will speak louder than any transient urges of the powers that be and that in the end the law will enforce its primacy. That assumption might be correct in the best of times when everything goes according to plan. When it does not, courts look fragile and vulnerable, as the only protective tool they wield – ‘the law’ – is taken away from them by the sheer power of political sleight of hand. The question then arises as to whether political exigencies could bring about self-re-imagination on the part of the courts so as to make them protectors of constitutional essentials in such emergency situations. In other words, could capture of the state and institutions be countered by judicial recapture? The Polish example is instructive here and shows how existing mechanisms open important legal avenues to strike back at capture. Yet embarking on any such recapture must be linked not only to the normative and technical (here the question would be: “Does the system contain enough to build a good legal case for exercising such powers?”), but also to the mental (here we would ask the uneasy question “Are judges willing and ready to use these mechanisms to protect democracy?”). The paper will argue that even a symbolic act of resistance in pursuit of a judicial promise is crucial. It builds institutional memory and a legacy that goes beyond disappointment and failure ‘here and now.’ For the system to regain its liberal credentials, the courts and the public must have something tangible to fall back on. Such act of resistance serves as an example of ‘symbolic jurisprudence’ because it reminds us that survival of the system must be anchored in a long-term fidelity, which goes beyond and transcends the events of here and now.

The article is a polemic with the main theses presented on the website of our host, the Constitutional Court of Moldova. These theses were officially presented, among others, by persons in power in Poland since November 2015, when political decisions were made regarding the Polish Constitutional Court. These actions actually led to undermining the authority of the Tribunal. This happened on the eve of the thirtieth anniversary of the establishment of this body in Poland. The article presents the legal circumstances that took place in 2015 and 2016. It presents the findings of the Constitutional Tribunal, which are most often different than the theses published on the website of the Moldovan Court. This is mainly about the Polish Tribunal clarifying the separation of competences of the Sejm and the President in the case of appointing judges of the Tribunal and the competence of the head of state to take the vow. Finally, the article presents the actions of state organs destroying the Constitutional position of the Tribunal. The text indicates the practice of not announcing the Tribunal’s judgments and adopting subsequent acts regarding the functioning of the Tribunal. Attention was also paid to the process of degrading the social authority of the Tribunal, in campaigns conducted in public media.

Afer the introduction of the principle of nation sovereignty in the Constitution of the Republic of Poland, it seemed that a nationwide referendum was bound to become an important instrument allowing the expression of opinions and formulation of decisions by the sovereign. The nation is a source of power and may assume the role of an arbitrator in conflict situations between constitutional state organs but also in disputes between the subjects of the political scene, which is reflected in aiming the activities of public authorities according to the will expressed via a referendum. The conclusions that can be drawn from the use of nationwide referendum in Poland are much less optimistic. From the very beginning of its implementation, it was accompanied by political horse-trading. A referendum has been and still is commonly treated by the Polish political classes as an element of political struggle between particular parliamentary and extra-parliamentary groups that take advantage of it for their current purposes. Referenda have become toys in the hands of politicians who use them as tools in electoral competition and an element of the ‘game of power.’

The aim of the article is to present the constitutional limits for the application of administrative sanctions in the Polish legal system. Although the issue of administrative liability has not been directly addressed in the Constitution, it does not mean that it is constitutionally indifferent. Polish Constitutional Tribunal has developed significant case law posing several conditions which are to be taken into account by the lawmakers and the administrative courts. In 2017 the lawmakers have made an effort to unify rules of the application of administrative sanctions by adopting a wide amendment to the Code of Administrative Procedure. This amendment provides for, i.e., the principle of non-responsibility for violations of law caused by force majeure, the power of an administrative body to determine the amount of the monetary penalty in according to conditions set forth by this Code, the principle of application of a law more lenient for the perpetrator of a violation of law and the ne bis in idem principle. Despite the development of the constitutional case law and the recent legislative intervention, several questions concerning administrative sanction remain, above all the permissible scope of transferring the power to impose penalties for violations of law to administrative bodies at the cost of exclusive power of courts to exercise justice and the adequacy of tools used by the administrative courts to exercise control over decisions of these bodies in this field.

The paper is meant to briefly present the sequence of events and the analysis of the constitutional crisis in Poland that is not be reduced to the personal matters and solely to the composition of the Constitutional Tribunal. Such crisis seems to result from the lack of recognition for current constitutional order and from the fact that major political forces seem not to value inviolability of constitutional status quo.

It shall be pointed out that in the lack of qualified constitutional majority (that have not been achieved in the last election) preventing from any legal changes to the Constitution, political majority keeps forcing such interpretation of the Constitution which is accordance with their political interests. This rises imbalance of the entire constitutional system in Poland.

The constitutional crisis has also resulted in lowering the position of the Constitutional Tribunal in the public eye, as well as in questioning the guarantees of impartiality and independence of constitutional judges. The dispute has turned into a serious crisis of this branch of judiciary that have been challenged as a necessary part of democratic state of law.

The paper ends with the conclusion of a strong need of the multilevel public debate – involving legal, political and social arguments – on the role of constitutional court in democracy, that may be – particularly in so-called ‘young democracies’ – exposed to extra-legal political pressure

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 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.

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.

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.

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.

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.

In this paper I present a republican interpretation of the Constitution of the Republic of Poland. I claim that in the past Polish Constitution has been commonly interpreted in libertarian terms. My research is focused mainly on meanings ascribed to main constitutional principles, such as freedom, equality and sovereignty of the Nation. The paper consists of five sections. In the first section, I discuss the idea of contemporary civic republicanism. In the next two parts, I introduce two alternative interpretations of Polish Constitution – the libertarian and the republican one. Then, I present two examples of application of the republican reading of Polish Constitution in practical context. In the last, concluding part, I raise a question about the status of the republican interpretation of the Constitution.

The purpose of this article is to present and analyze the position of the executive power in the contemporary Polish Constitution after 20 years of its entry into force. As its provisions proclaim, “the system of government of the Republic of Poland shall be based on the separation and balance between the legislative, executive and judicial powers”. Moreover, “executive power shall be vested in the President of the Republic of Poland and the Council of Ministers” (Art. 10 of Polish Constitution).

The scope of considerations made in this paper contains: 1) general remarks on the fundamental constitutional provisions before the enactment of 1997 Constitution; 2) the main conceptions and projects of the executive power – that is to say the position of the President of the Republic of Poland and the Council of Ministers – within the formal projects of the Constitution that were presented before 1997; 3) the consideration of the principle of separation of powers in comparison with the particular functions and competences of the both of above mentioned organs; 4) the position of the President of Republic of Poland as well as the position of the Council of Ministers; it is to be emphasized, that none of them is formally more powerful than another; in the contrast with, for example, French Constitution, Polish President does not stand above the government; 5) the fact that constitutional functions and competence of these organs seem to be different – but are faced with the situation and we shall remember that the Council of Ministers shall conduct the internal affairs and foreign policy of the Republic of Poland and shall manage the government administration. The most significant from legal and political point of view is the provision: “The Council of Ministers shall conduct the affairs of State not reserved to the other organs or local government” (Art. 146 sec. 2 of Polish Constitution).

However, the President reserves some important competence by which the governmental policy may be limited and obstructed. On the other hand, sense of mutual cooperation of those two organs is of great importance, and because of that it is deeply reflected from political, personal and the idealistic provision from the initial parts of the Polish Constitution. The President of the Republic of Poland is to the highest formal representative of the State and the guarantor of its continuity. Presidential duty is to observe the realization of the Polish Constitution and being the guardian of the sovereignty and the security of State as well the integrity of its territory. However, there exists a problem concerning the essential values and precise division of legal competences between the President and the Council of Ministers, as well as legal instruments which both of those organs can use within the above spheres of policy.

The important part of the article is presentation and criticism concerning the institutional/political practice. They concern the period after 1997, but it must be admitted that three years (2015, 2016, 2017) are especially critical, as we consider the principle of a democratic state ruled by law.

The right to prove the truth in the court is the implementation of the constitutional right to a fair trial. Polish Code of Civil Procedure does not contain a general regulation concerning the restrictions on admissibility of evidence in the context of the legality of its acquisition. Courts invented the method of assessing the admissibility of evidence, confronting the right to a fair trial with another constitutional value that has been violated by the producing of evidence. While exercising this method, courts use a weighing mechanism similar to the Alexy’s model of balancing of principles. On the ground of the Polish Constitution, within this mechanism, the proportionality test should be used, and the principle of legalism of the actions of the State should be taken into account. This means that the court should not allow for the inclusion of evidence collected with violation of the law by public authority, because the state authorities do not have the constitutional right to a fair trial to justify the violation. Furthermore, this method allows the courts to settle a collision of values based on the axiology contained in the norms of the Polish Constitution.

Territory and State territoriality appear to be evolving categories, subject to an ongoing blurring of their original and traditional meaning, if not in a downright crisis. Such crisis can be attributed to a multitude of causes. Among them: the dissociation between the political state and state of law; the tension between the principle of universality, as an integral part of the market structure, and the principle of territoriality, as an integral part of the State’s structure; the web’s global spatial revolution. All of these complex phenomena fuel two conflicting tendencies: the “miniaturization” of the State and the increasing of control over national territory through a re-articulation of powers. The tendency to despatialization of State territory isfurther enhanced in the specific European context, where the most refined attempt ever made at organizing the political space without recourse to the territorial paradigm is taking place.

The dispute over the scope of the power of pardon, caused by the decision of the President of the Republic of Poland Andrzej Duda to apply this power before issuance of a final judgment by the court, is undoubtedly one of the most interesting problems in the field of constitutional law under the Polish Constitution of 1997, with which the courts and the doctrine of law must currently deal with.

I believe that, in its argument concerning the scope of the presidential power of pardon, the Supreme Court did not take into account one important argument which is based on the norm expressed in Art. 99 § 3 of the Polish Constitution.

I believe that the scope of the presidential power of pardon specified in Art. 139 of the Polish Constitution is also determined by the norm expressed in Art. 99 § 3. The application of the power of pardon in the form of the so-called individual abolition against a deputy or senator accused of committing a crime prosecuted by indictment and penalized with deprivation of liberty, impedes the possible execution of the principle contained in Art. 99 § 3 of the Polish Constitution, and thus violates the norm expressed in Art. 7 and Art. 126 § 3 of this Constitution. The nature of presidential pardon, including the scope of its limits, should be determined by way of a joint interpretation of the provisions of the Polish Constitution, also taking into account its Art. 99 § 3.

This article deals with the judgments of the Constitutional Tribunal, issued during the financial crisis, concerning citizen’s social rights.

Without doubt, the Constitutional Tribunal’s judgments issued during the financial crisis took into account the importance of state’s balanced budget. The Constitutional Tribunal applied and promoted this principle in process of balancing of the constitutional principles. Despite being controversial, the judgments in question were issued in a particular situation and were a consequence of a rational discussion. Each case of balancing of principles of law by a constitutional court takes place in a concrete moment, and therefore is not abstract in its character.

The author explores the value that the Constitutional Tribunal ascribes to balanced budget and to the goods that were endangered during the crisis, such as valorisation of pensions. The article shows that the Constitutional Tribunal treated balanced budget as a principle of law and interpreted it narrowly. In this sense, budget balance signified a balance between the income and expenditure of the state. Such an interpretation of the balanced budget led to the understanding of the balanced budget as an economic indicator, that is to say as a type of financial bill of the state.

The author argues that this understanding of the balanced budget (as a balance between the income and expenditures of the state) – in contrast to Constitutional Tribunal’s understanding – does not have a rank of a constitutional principle. In such case, balanced budget is an instrument of state’s economic policy, or has a character of a rule of law. The author states that in constitutional law the principle of balanced budget should be understood as a responsible economic policy of the public authorities. In this sense, balanced budget is anchored in the principle of common good (Article 1 of the Polish Constitution). A (responsible) economic policy of the state is one of the dimensions of this common good.

The provisions contained in the constitution have different characteristics. Specific problems arise in connection with interpretation of those provisions which contain standards. Traditional canons of interpretation (linguistic, systematic and purposive interpretation) fail, since constitutional standards refer to essentially contested concepts. The understanding of such concepts as equality, human dignity or social market economy depends on the accepted political philosophy. A deficit of legitimacy of decisions arises, since decisions based on a particular political philosophy are challenged by adherents of competing political philosophies. Such a deficit may be reduced by reference to the conception of “incompletely theorized agreements”. It may be demonstrated that a dispute relating to an abstract principle or value does not preclude the possibility of reaching a consensus with respect to a particular decision. Such a decision may be differently justified on the basis of different political philosophies.

The article presents briefly the discussion about problem of the so-called creative (law-making) interpretation of the Constitution. Author indicates that previous concepts of the creative interpretation offered by the Polish legal doctrine did not deliver any noncontroversial criteria, which could mark difference between declaratory and creative constitutional argumentation. This problem is also connected with the political question about judicial activism and the limits (legitimacy) of the third power, ergo the questions that are currently arising during the ongoing constitutional crisis in Poland. For that reason the alternative solution is proposed, namely to perceive the stable interpretative practice (for instance a line of precedents, or settled case law, etc.) as the cutoff point for the declaratory/creative interpretation. From this point of view every unjustified (revolutionary instead of the evolutionary) change of settled interpretation of the Constitution should be evaluated as invalid. Nevertheless, presented conception is not fully elaborated and have some weak points, i.e. matters which need to be developed to make it applicable in the interpretation practice. Especially there is lack of the analogous (precedential) doctrine in the Polish legal culture, which excludes possibility to precisely indicate the state of stable interpretation practice from one side, and proper correction of the previous case law on the other.

The problem of the relation between constitution and slavery is still present in contemporary American constitutionalism. The scholars are divided into three main groups: prosecutors, vindicators and historicists. The author considers this complicated question on the example of Thomas Jefferson and his thought. As we know, he was one of the Founding Fathers and the slaves owner at the same time. The main purpose of this article is the explanation of this ambiguity, which seems to be not only personal but first of all constitutional. For starting point the author takes the famous William Lloyd Garrison’s formulation – constitution as “a covenant with death and an agreement with hell”.

In the discussed judgment, the Voivodeship Administrative Court in Warsaw erroneously dismissed an action brought against the Chancellery of the President of Poland for its failure to act. Requested by the applicant, the legal opinions concerning the election of the judges of the Constitutional Tribunal in 2015 – the drafting of which had been commissioned by the Chancellery – constituted public information. Contrary to the stance taken by the Court, the first and last names of the authors of the opinions were also subject to disclosure.

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.

Following the electorate’s will expressed in the June 23, 2016 referendum, the European Union (Notification of Withdrawal) Act of 2017 was passed, and authorized ministers to notify under Article 50 TEU. This notification was given on March 29, 2017. The withdrawal of the United Kingdom from the European Union will result in significant changes in the system of the sources of law applied in the domestic legal order. Simply repealing European Communities Act of 1972 would leave large holes in the legal system making it incomplete. In order to avoid it the European Union (Withdrawal) Bill, known as the Great Repeal Bill, is proposed. The main purpose of this framework legislation is to convert directly-applicable EU laws into UK laws and to provide a power to use delegated legislation, when necessary, to rectify problems occurring as a consequence of the withdrawal.

The aim of the article is to present the origins, basic assumptions, key legal institutions, and controversies around the concept of militant democracy developed in the Federal Republic of Germany, and to characterize the role of the constitutional court within it. Although the above mentioned concept has been strongly criticised by some scholars, the legal institutions which express it have already become firmly rooted in the Basic Law for the Federal Republic of Germany. Some of them have even found their counterparts in other countries. Moreover, the considerations on the possibilities of protecting democracy against its pathological transformations towards a more or less undemocratic direction are particularly current in the age of significant growth of the popularity of the Western political movements and leaders who contest the hitherto widespread perception of democracy. According to the author, the legal measures that express the concept of militant democracy can effectively protect the liberal democratic order. However, they should be practised – as it takes place in Germany – moderately.

The “really realist theory” (théorie réellement réaliste, TRR) is not conceived by the Author as a theory, which is limited to the recognition that judges create the law (as it is today commonly accepted), but as a theory, which follows Ronald Dworkin’s ideas by shifting the capital of “Law’s Empire” from the legislature to the judiciary. The truth is that nobody creates the law, since it is found by the judges when deciding individual cases, by the legislators in limiting the administrative discretion, by the constituent assembly in restricting the arbitrariness of legislature etc. In the first section of the paper the TRR is presented as a form of evolutionism. Firstly, because creationism – a naive idea that the law can be created ex nihilo – is strongly rejected by the TRR. Secondly, since the TRR adapts some ideas of Charles Darwin in relation to law. In the second section of the paper the evolution of law is outlined: from the state of the law called “judicial” to the states called “legislative”, and “constitutional”. Finally, in the last section the TRR is applied to a very important current problem: the finding of an equilibrium between freedom and security in the time of the global fight against terrorism.

The Election Code of Poland enables two electoral thresholds: 5% for the political parties’ election committees, and 8% for the coalition of election committees. The Supreme Court held that making an informal alliance of the political parties which decide to run a joint election list, allows to lower electoral threshold. This solution favors not following the statutory electoral thresholds agreed for in the process of forming the electoral coalition. Those election committees which have formed the actual coalition, without notifying the National Electoral Commission, are in more favorable position as they gain the seats above the threshold of 5%, whereas those committees which followed the statutory notification requirement are eligible to participate in the distribution of seats only if exceeding the higher, 8%, threshold. Therefore, the key question to ask is whether keeping the varied electoral thresholds makes sense.