Constitutional Review
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The article is an extensive commentary on the report presented by the team of experts appointed by the marshal of the Polish Sejm (the lower chamber of the Polish parliament) to work on the crucial issues concerning Polish constitutional crisis. The assessment of the report presented in the article is negative, as the report has not achieved its objectives and does not meet the standards of rigorous...
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The Polish Constitution does not encompass explicit guarantees of the right to an effective remedy for protecting rights. However, a deeper exegesis of its provisions shows that such a right is implicitly granted by the Constitution. If the Constitution grants the right to claim rights in judicial proceedings and the right to an appropriate compensation of damages caused by unlawful actions of public...
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This article tries to answer three different questions: Did we create a stable and strong constitutional culture in Poland after collapse of the communist system? Has the model of constitutional review enshrined in the Polish Constitution confirmed itself over the 30 years of its application by the Constitutional Tribunal, notably considering the alternative model to the Tribunal’s concentrated review,...
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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...
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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...
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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...
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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...
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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...
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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...
