Many Polish lawyers – both academics and practitioners – argue that we have been observing a so-called delegitimization of the Constitutional judiciary in Poland as a result of the changes introduced to law after 2015, which changes led to the actual paralysis of the Constitutional Tribunal ("CT") and serious doubts as regards its composition1. The lack of trust in the CT, which is a consequence of this paralysis, results in greater discussion over other legally admissible solutions, which could effectively guaranty the formal coherency of the legal system (the compliance of acts and secondary legislation with the Constitution) on the one hand, and protection of constitutional laws and civic freedoms on the other2.
Centralized model of Constitutional Review
Until 2016, it seemed without discussion that, the Polish legislator based the mechanism of review of constitutionality of law on a so-called « centralized » model. This system, formulated at the beginning of the 20th century by the Austrian theoretician of law Hans Kelsen3 assumes that one body of court or quasi-court nature appointed for this purpose is competent to settle all constitutional affairs. Not every court that would be competent to settle the case has the competency to assess the compliance of normative acts with the Constitution. This assessment right is based on a special procedure that is usually detached from a specific state of facts (abstract control). In this model the constitutional court is a court of law, which takes care of the consistency and certainty of the law in force, rather than a court of fact which would merely assess the constitutionality based on a specific case4. In the event of a centralized review, the constitutional courts constitute the last "appellate" instance – the constitutional complaint might be filed only if all other legal measures with which a citizen is vested have already been exhausted. Decisions of the constitutional court in the centralized model are final. This means that they are effective erga omnes (to all). Thus, they cannot be appealed against. A legal act that does not comply with the Constitution loses force and is, so to say, "removed" from the legal system. Derogation of defective provisions from the legal system binds the legislator by the view that is expressed in the decision of the constitutional court, which, by quashing the effective force of a given act, modifies the system of the applicable law, and hence steps into the role of the legislator. In this sense, Kelsen calls the constitutional court a negative legislator.
Constitutional review in Poland before 2016
Since 1982 until 2016, the CT regime played the role of such a centralized constitutional court5, which in particular in the period of political transformation and the first 10+ years of its operation successfully managed to earn a rather strong social legitimization and authority in the political and legal environment.
In the first years after the Constitution of the Republic of Poland of 1997 was adopted, there was a lively discussion between the CT, the Supreme Court and the Supreme Administrative Court on the admissibility of courts performing control over the constitutionality of acts. Both the Supreme Court and the Supreme Administrative Court initially adopted that, irrespective of the review of constitutionality of law carried out by the CT, control in individual matters pending in front of a common court of law or an administrative court would be admissible too6. This view had undergone changes predominantly as a result of the polemic decisions of the CT7 and the prevailing votes of the scholars8. Consequently, until 2016 both in the decisions of the court and in jurisprudence, the dominating view was that the CT had exclusive competence to review the constitutionality of law, while the courts that were in doubt as to the compliance of the act with the Constitution should formulate a legal question and file it with the CT. Nevertheless, one should take into consideration that, also before 2016, different opinions were expressed that implied that a so-called hybrid model would not have been out the question9.
Delegitimization of the Constitutional Tribunal after 2016
There are numerous opinions in Constitutional law jurisprudence pursuant to which November 2015 marks the beginning of the constitutional crises in Poland, which is demonstrated by the undertaking by the legislative and executive bodies of systematic actions, which undermine fundamental values expressed in the Constitution10. The source, the course and the consequences of this crisis have already been discussed in detail11, though it is worth to mention the most important signs of it. The beginning of the crisis was strictly associated with the operations of the lower chamber of Polish Parliament, the Sejm, and adoption of Article 137 of the Act on Constitutional Tribunal of 25 June 201512, which aimed to modify the rules of appointment of judges13. The dispute concerning the appointment of the judges was then used as an excuse to negate the constitutional competencies of the CT by the legislative and executive bodies. This was demonstrated, among other things, by adoption of resolutions which meant to lead to the expiry of the term of office of the chairperson and deputy chairperson of the CT14, paralysis of the operations of the CT through introduction of a qualified majority of votes to adopt resolutions and expansion of the full composition of the CT from 9 to 13 judges15, liquidation of procedural autonomy of the CT and legalization of the breach of the mandatory publication of the judgments without any delay16. This process was also manifested by a number of actual and legal actions, starting from the taking of oaths from the judges at night, which was inconsistent with the existing practice and customs, through the refusal to publish the decisions of the CT, and finally by introduction of illegal changes in the composition of panels of judges deciding on a case17.
Even though all these changes led to the adoption at the end of 2016 of an act18 that practically repeated all the solutions proposed in the act on CT of 1 August 1997, the practice of operation of the CT has been subject to radical changes. The most spectacular examples of this change have become the designation of panels of deciding judges in the way that raises concerns as to their external impartiality19 and permanent confirmation of the compliance with the Constitution of legal acts adopted by the parliamentary majority. As it was noted by M. Pyziak-Szafnicka (judge of the CT since 2020), "The function of the CT is now perceived à rebours, which means that its decisions are used to confirm the compliance of legal acts adopted by the parliamentary majority with the Constitution, and so to say additionally legitimize them – since the minority protests against them and European institutions criticize them. Nevertheless, such a role of the constitutional court is far from its model perception".20.
Due to the increasing loss of trust in the institution of the CT and the practical disappearance of its decision-making activity, a view, whereby the CT has been delegitimized, has been reinforced in jurisprudence21.
Decentralized judicial review of constitutionality as a remedy for the CT crises
Due to this constitutional crisis, a question that has come back to legal debate is whether, irrespective of the competencies of the CT, the courts could review the constitutionality of the provisions of the act once they use them on the basis of the applicable constitutional laws. A change in this respect has become visible both in the jurisprudence and in the judicature. Most of the representatives of the jurisprudence justify the admissibility of the dispersed control of constitutionality of law by the fact that the CT is unable to perform its basic function, treating it as something extraordinary, incidental, determined by the doctrine of necessity22.
There are more and more decisions of common courts of law, in which the courts make independent review of constitutionality of acts23. Furthermore, judgements that would have never been rendered in the past are passed. In these judgement the courts assess the constitutionality of the acts contrary to the way the present CT does. In the judgement of April 23, 202124 the District Court in Gorzow Wielkopolski dismissed the statement of claim in a case concerning compensation for wildlife related damage to crops and in the justification stated that "When issuing the judgement, the court could not have taken into consideration the 'decision of the CT' having a « double » in its composition since such a composition was defective, incorrect and one must not treat it as a court appointed in compliance with the act [...]. The court was obliged to make an independent assessment of the provisions of the hunting law act and the constitutional guarantee of ownership. The basis for the competency of the court constituted Art. 8 sec. 2 and Art. 178 of the Constitution".
This judgement might seem controversial also as regards the theoretical legal correctness of the conclusions made by the District Court25. In my opinion, the motives on which the District Court relied in the assessment of the compliance of the act with the Constitution are much more interesting. The District Court seems to be suggesting that the decentralized review in this case was necessary since the CT that is suffering from crisis did not give a guarantee to impartially render decisions and undermined the trust in the state and law26. To protect the constitutional laws of an individual, the District Court so to say took over its obligations and independently spoke on the constitutionality of the act.
I agree with the assessment made by the District Court, which opinion is more and more shared by the representatives of jurisprudence, whereby due to the delegitimization of the existing CT, its function should be upheld with the use of other procedures and legal measures, which still enjoy social trust. From the point of view of the citizens' trust in the state and law, a situation in which the constitutional human rights would be left without (at least an attempted) institutional protection is inadmissible. On the other hand, one must not forget that, to rely on the value of the state of law, you should have so-called « clean hands ». This requires application of only such mechanisms and legal instruments that may be justified by the wording and values of the Constitution in force. So far the process of reviewing constitutionality undoubtedly constitutes a great challenge for the judges in the common courts of law since they may face a number of problems. For instance, the following issues should be considered: 1) how can you issue a judgement in a case if, as a result of eliminating a provision that is inconsistent with the constitution, a legal loophole occurs?; 2) What should be done if the CT and a common court of law have a different approach to the problem of constitutionality of the questioned provision of law ? 3) How should a judge behave if the statutory provisions have been eliminated from the law by the CT, and the court continues to question the legitimization of the CT to act ?27
It is not easy to answer these questions. Worse, the judicature practice so far shows that, as a result of the peculiar «juridical egocentrism » of the CT before 2016, the common courts of law and the administrative courts often do not have experience and tools necessary to assess the compliance of law with the Constitution. It is hard to foresee how practice in the decentralized control of constitutionality will develop in the future. However, even today one may agree that it has become an element of collective awareness of judges, according to whom their fundamental obligation constitutes the protection of superiority of the Constitution, civic rights and the rule of law.
If the judicature and the constitutionalists are to meet the expectations, they must be open to changes and look for new solutions and institutions28. Otherwise they will turn to a cabinet of mirrors that will do nothing more but reflect the picture of the world that no longer exists29.
2 A. Rytel-Warzocha, Jak nie Trybunał Konstytucyjny to co? O rozproszonej kontroli konstytucyjności prawa w Polsce, Przegląd Prawa Konstytucyjnego", No. 3/2022, p. 25-37.
3 H. Kelsen, Istota i rozwój sądownictwa konstytucyjnego, Warsaw 2009, p. 32 et seq.
4 E. Zwierzchowski, Sądownictwo Konstytucyjne, Białystok 1994
5 In fact it started its judicial operation in 1986, but the full competencies were vested in it after the effective entry into force of the Polish Constitution of 1997.
6 Vide judgment of the Supreme Court of April 7, 1998, case file number I PKN 90/98; and resolution of the Supreme Administrative Court of October 12, 1998, case file number OPS 5/98 and judgement of the Supreme Administrative Judgement of October 9, 1998, case file number SA 1246/98.
7 Decision of the CT of March 22, 2000, case file number P 12/98, judgement of the CT of January 31, 2001, case file number P 4/99, judgement of the CT of October 4, 2000 , case file number P 8/00.
8 Vide A. Mączyński, Bezpośrednie stosowanie Konstytucji przez sądy, Państwo i Prawo" 2000, No. 5, p. 5; L. Garlicki, Polskie prawo konstytucyjne, Warsaw 1999; idem, Trybunał a wejście w życie nowej Konstytucji, Państwo i Prawo" 1997, Nos. 11-12.
9 R. Hauser, J. Trzciński, O formach kontroli konstytucyjności prawa przez sądy, Ruch Prawniczy, Ekonomiczny i Socjologiczny", z. 2/2008, s. 9-21; P. Mikuli, Zdekoncentrowana kontrola konstytucyjności prawa. Stany Zjednoczone i państwa europejskie, Kraków 2002;
10 P. Tuleja, Geneza, rozwój i upadek sądownictwa konstytucyjnego w Polsce, Państwo i Prawo" No. 10/2022, p. 268 et seq.; W. Sadurski, Polski kryzys konstytucyjny, Łódź 2020, p. 146 et seq, M. Wyrzykowski, wrogie przejęcie" porządku konstytucyjnego, https://konstytucyjny.pl/wrogie-przejecie-porzadku-konstytucyjnego-miroslaw-wyrzykowski/ (accessed on 02.14.2023).
11 P. Tuleja, Geneza, rozwój i upadek sądownictwa konstytucyjnego w Polsce, Państwo i Prawo" No. 10/2022, p. 268 et seq.
12 Journal of Laws of 2015, item 1064.
13 J. Sułkowski, Kryteria oraz procedura wyboru sędziego TK, [in:] Konstytucyjny spór o granice zmian organizacji i zasad działania TK. Czerwiec 2015 – marzec 2016, ed. P. Radziewicz, P. Tuleja, Warsaw 2017, p. 54.
14 Judgement of CT of 12.9.2015, K 35/15, OTK ZU 2015, No. 11, item 186.
15 Judgement of CT of 03.09.2016, K 47/15, OTK ZU 2018, item 31.
16 Judgement of CT of 08.11.2016, K 39/16, OTK ZU 2018, item 32.
17 M. Wolny, M. Szuleka, Narzędzie w rękach władzy. Funkcjonowanie Trybunału Konstytucyjnego w latach 2016–2021, Raport przygotowany dla Helsińskiej Fundacji Praw Człowieka, Warsaw 2021, p. 7 et seq.
18 Journal of laws of 2016, item 2074.
19 M. Ziółkowski, Przesłanki wyznaczania sędziów do składu orzekającego TK i konsekwencje ich naruszania, Ruch Prawniczy, Ekonomiczny i Socjologiczny 2020, No. 3, p. 35 et seq.
20 M. Pyziak-Szafnicka, Trybunał Konstytucyjny á rebours, PiP 2020, No. 5, p. 43
21 P. Mikuli, Doktryna konieczności jako uzasadnienie dla rozproszonej kontroli konstytucyjności ustaw w Polsce, Gdańskie Studia Prawnicze",, Volume XL, 2018 p. 635-648.
23 Vide judgement of the Administrative Court in Wrocław of April 27, 2017, case file number II AKa 213/16, Judgement of the District Court in Gorzow Wielkopolski of April 23, 2021, case file number I C 1326/19.
24 Judgement of the District Court in Gorzow Wielkopolski of April 23, 2021, case file number I C 1326/19, LEX No. 3184543.
25 See in particular comment by P. Radziewicz in the glos to the quoted decision - P. Radziewicz, Rozproszona kontrola konstytucyjności ustawy wobec kryzysu Trybunału Konstytucyjnego. Glosa do wyroku Sądu Rejonowego w Gorzowie Wielkopolskim z 23 kwietnia 2021 r., sygn. I C 1326/19, 2022, https://www.academia.edu/79953590.
26 More on the crisis of the Polish CT here : W. Sadurski, Poland's Constitutional Breakdown, Oxford 2019, p. 58 et seq.; Konstytucyjny spór o granice zmian organizacji i zasad działania Trybunału Konstytucyjnego (June 2015–March 2016), ed P. Radziewicz, P. Tuleja, Warsaw 2017.
27 These problems are currently seen in the constitutional law jurisprudence – vide P. Mikuli, Doktryna konieczności jako uzasadnienie dla rozproszonej kontroli konstytucyjności ustaw w Polsce, Gdańskie Studia Prawnicze",, Volume XL, 2018 p. 645.
28 A certain alternative constitutes also the transfer of fundamental political regime disputes at an international level and involvement of international courts in their resolution – Court of Justice of the European Union and the European Court of Human and the European Court of Human Rights, which however raises concerns both as regards the efficiency of the rule of law and the social legitimization of such decisions.
29 R. Rorty, Obiektywność, relatywizm, prawda. Eseje filozoficzne, Vol. I, transl. J. Margański, Warsaw: Aletheia 1999.
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