Posterior review of norms
Norms under review
Article 188 of the Constitution submits three types of acts to the Constitutional Tribunal's review: statutes, international agreements and legal provisions issued by central State organs. Jointly, these are regarded as "normative acts" (Article 79 para. 1; Article 190 of the Constitution). Thus, the acts deprived of a normative nature as well as the acts issued by organs of local government are excluded from the Tribunal's scope of jurisdiction (local regulations are subject to review by the Supreme Administrative Court).
A "statute" refers to all bills adopted by the Parliament, therefore the following are subject to Constitutional Tribunal's review:
- budgetary statute - reviewed are not only the relevant provisions of a budgetary statute, but also its appendices specifying the limits of income and expenses in respective areas, as long as those provisions are of normative nature;
- statutes granting prior consent to ratify international agreements - reviewed are the relevant provisions of a statute; the review may also include a decision on the conformity of the international agreement to the Constitution.
All acts of statutory rank are subject to review. As such the current Constitution recognizes only the presidential regulations issued during a period of martial law (Article 234), however, numerous decrees and regulations having the force of a statute issued before 1989 are still included in the Polish legal system.
The constitutional review of statutes lies exclusively within the competence of the Constitutional Tribunal. Neither the Supreme Court, common courts of law, nor administrative courts may adjudicate in such matters; however, if they are convinced as to the unconstitutionality of a statute to be enforced in a case before them, they may initiate proceedings before the Constitutional Tribunal by submitting a question of law.
International agreements were subjected to constitutional review by the Constitution of 1997. Under Article 188 subsection 1 of the Constitution all types of international agreements are subject to review, including ratified international agreements whose ratification requires prior consent granted by statute, ratified international agreements and agreements which do not require ratification. The scope of Tribunal's jurisdiction differs depending on the type of the agreement as each type occupies a different position in the hierarchy of the sources of law.
"Legal provisions issued by central State organs" (Article 188 subpara. 3 of the Constitution) is the least precise notion, nevertheless it must be considered in the light of the hitherto developed jurisprudence. In order to define the notion of a normative act the Tribunal has employed a material criterion, thus every act containing legal norms, i.e. dispositions of abstract and general character, is considered a normative act. The specific name of such act is of no importance, as the jurisprudence regards the content as the basis for its qualification. Recognizing a specific act as containing legal norms is a prerequisite for the Tribunal's adjudication; the form of such act is of secondary importance.
The review performed by the Constitutional Tribunal includes the standing orders of the Sejm and the Senate, as it did under the previous regulations.
Under the new Constitution the same approach was adopted, although the system of the sources of law was substantially transformed. All the regulations of normative character issued at the state level as well as the so-called substatutory acts are still to be considered subjected to the Tribunal's review. Excluded from the Tribunal's review are all those acts of the constitutional State organs which are of no normative nature (acts which do not establish legal norms), which refers especially to individual acts (e.g. the resolution of the Sejm specifying deadlines and the method of considering a draft statute).
Only the binding acts (norms) are subjected to review. In case of acts which cease to have effect prior to delivery of the Tribunal's decision, the proceedings are discontinued (Article 77 para. 3 subpara. 5 of the Constitutional Tribunal Act). In practice numerous doubts were raised when the questioned act under review had been annulled before the Tribunal's decision was passed. The Tribunal first held that annulment is always tantamount to the loss of a binding force and must therefore lead to discontinuance of the proceedings. Such position was problematic insofar as the discontinuance of the proceedings did not allow adjudication on the unconstitutionality of the act being reviewed, and it precluded challenging decisions and rulings in individual cases passed on the basis of such act. Hence, a different approach was adopted at the beginning of the 1990s. It was argued that where an annulled normative act can be applied to situations from the past, it is considered to maintain its binding force and can therefore be subject to review. According to Article 77 para. 4 the provision of Article 77 para. 3 subpara. 5 is not applied if issuing a judgment on a normative act which had lost its validity is necessary for protecting constitutional rights and freedoms.
Grounds for review
The review of norms may proceed on several levels, according to the position that the reviewed act occupies in the system of sources of law.
The Constitution occupies the superior position in that system: it is the supreme law of the State (Article 8 para. 1 of the Constitution). Next position is held by international agreements ratified upon prior consent granted by statute - Article 91 para. 2 of the Constitution grants them precedence over statutes. These are followed by ordinary statutes which constitute a homogenous category as the institution of organic statutes is unknown to the Polish Constitution. The next level comprises aforementioned substatutory acts, which include executive regulations (constituting a source of universally binding law), orders and resolutions, which may be addressed exclusively to the organizational units subordinate to the organ which issued such acts (Article 93 of the Constitution).
Accordingly, international agreements ratified upon a prior consent granted by statute must conform to the Constitution, the statutes must conform to the Constitution and the international agreements ratified upon a prior consent granted by statute, substatutory acts must conform to the Constitution, international agreements and statutes. An allegation of the absence of such conformity may be raised before the Constitutional Tribunal.
The Constitution is the fundamental basis for the review and the superior norm. No references are made in Polish legal system to supraconstitutional norms, just as they are not directly referred to in the jurisprudence.
The Constitution is not, however, strictly a collection of norms. The Constitutional Tribunal's jurisprudence has been long referring to "constitutional norms, principles and values". The written text is therefore treated as a certain point of reference enabling the extraction of further rules, which are not explicitly embodied in the Constitution, but can be deduced from the overall shape of its provisions and from the axiological system instituted by the Constitution. Such a "creative" approach was especially apparent with reference to the "democratic state ruled by law" clause, introduced into Article 1 in 1989. This clause has been treated by jurisprudence as a general expression of a number of detailed principles and rules. Thus, new contents of the Constitution have been "discovered", including the prohibition of the retroactivity of law, the principle of proportionality, the right to life and the right to protection of privacy.
Adoption of such approach by the Constitutional Tribunal was caused i.a by the gaps in the original constitutional regulation, for many years based on the text of 1952, especially in the area of fundamental rights. It was crucial to adapt this text to the new reality. The Constitutional Tribunal undertook this task, facilitated by the fact that the former legislators' intention was no longer considered binding. Such decision-making freedom was substantially limited by the Constitution of 1997; on the one hand, it is a much broader document comprising many rules previously formulated by the constitutional jurisprudence, on the other hand, it is a topical document, entirely expressing the intentions and the will of the democratic legislator. Nevertheless, the Tribunal's first judgments, accepting full validity of hitherto developed jurisprudence relating to the clause of the democratic state ruled by law and the principle of equality, indicated the continuation of the Tribunal's traditional approach to the interpretation of the Constitution. Presently, however, the Tribunal prefers to base its decisions on the detailed constitutional provisions relating to rights and freedoms rather than on the principle of the democratic state ruled by law.
Statutes constitute the basis for review of substatutory acts. There are no obstacles to question the conformity of these acts directly to the Constitution or to international agreements. According to the hitherto developed jurisprudence, non-conformity of substatutory acts to the statute is tantamount to an infringement of the Constitution. It must be remembered that the Constitutional Tribunal's jurisdiction is not exclusive in this area, as common and administrative courts may also examine substatutory acts and refuse to apply them, if they deem them to be in non-conformity to the statute, international agreement or the Constitution.
The Constitutional Tribunal is not entitled to examine the "horizontal" conformity of normative acts, nor the mutual relations between substatutory acts.
Iinitiative of constitutional review
While the President of the Republic is the sole party entitled to initiate the preventive review, the range of subjects entitled to initiate a posteriori review is relatively broad. There are two fundamental forms of constitutional review: abstract and concrete. Review initiated as a result of a constitutional complaint is a specific kind of control, closer to abstract rather than concrete review. The Constitutional Tribunal may not adjudicate at its own initiative (ex officio).
The right to initiate the proceedings under the abstract review procedure is vested in a fairly wide range of subjects but is regulated differently for each of them. The Constitutional Tribunal Act of 2015 distinguishes - similarly to the Act of 1985 and Act of 1997 - between universal and particular initiative.
The universal (general) initiative permits questioning constitutionality of every normative act, regardless of whether the content of this act is related to the scope of activity of the author of the application. This right belongs to nearly all constitutional State organs: the President, the Marshals of the Sejm and the Senate, the Prime Minister, the First President of the Supreme Court, the President of the Supreme Administrative Court, the Public Prosecutor General, the President of the Supreme Chamber of Control and the Commissioner for Citizens' Rights. The right to universal initiative is also vested in a group of 50 Deputies or 30 Senators (Article 191 para. 1 subpara. 1 of the Constitution), which provides parliamentary opposition with the access to the Tribunal.
The particular initiative permits questioning such acts or norms which relate to the matters within the scope of activity of the applicant. The right to particular initiative belongs to: the National Council of the Judiciary to the extent to which the questioned acts relate to independence of courts and judges; the constitutive organs of units of local government (under the present regulations those are the commune and district councils, and the legislative assemblies of voivodships); the national organs of trade unions, as well as the national authorities of employers' organizations and occupational organizations; churches and religious organizations. The application submitted by one of the aforementioned subjects is directed for preliminary consideration performed bya bench of three judges of the Tribunal (Article 44 para. 1 of the Constitutional Tribunal Act).
The applicant is entitled to withdraw the submitted application. Where the application is withdrawn prior to commencing the hearing, the proceedings are discontinued (Article 49 para. 2 and 3 of the Constitutional Tribunal Act). However, the withdrawal of the application after the commencement of a hearing is not binding for the Tribunal, which may decide to continue the proceedings. The Tribunal is bound by the limits of the application (Article 66 of the Constitutional Tribunal Act).The concrete review refers to the so-called questions of law. Such questions may be referred to the Constitutional Tribunal by any court, if the answer to the question on conformity to the Constitution ratified international agreements or statutes of a certain provision will determine an issue currently before such court (Article 193 of the Constitution). Questions of law must therefore fulfil the requirement of relevance.
The right to refer a question of law to the Constitutional Tribunal is vested in all courts: courts of first instance, courts of appeal and courts of cassation; common courts of law and military courts, as well as the Supreme Court. Only the adjudicating benches may refer the question of law to the Tribunal; no intermediacy of higher courts or presidents of courts is needed. In order to submit the question, the court must be doubtful as to the conformity to the Constitution, ratified international agreement or a statute of a legal norm on which its decision is to be based; it is not required for the court to be strongly convinced of its non-conformity. Where the court's decision is to be based on a provision of a substatutory act, a court may either refer a question of law to the Constitutional Tribunal or examine its conformity independently and case of its inconsistence with higher norms, refuse to apply it. Where the court's decision is to be based on a statute or an international agreement ratified upon a prior consent granted by statute, the court is not entitled, according to the jurisprudence of the Constitutional Tribunal, to decide on its non-conformity, and must therefore submit a question of law to the Constitutional Tribunal. The court referring such question to the Tribunal shall suspend the proceedings in the case to which the question relates, so that the decision can be based on the judgement of the Tribunal.
Constitutional complaint is another form of initiating the review before the Tribunal, since the allegation can only be based on unconstitutionality of a normative act upon which basis a final decision infringing constitutional freedoms or rights of a complainant was passed.
Procedure of adjudication
The Tribunal does not pronounce all its judgments sitting in the full bench of 15 judges. Judgments concerning the review of norms - the conformity of international agreements to the Constitution, the conformity of statutes to the Constitution or to the international agreements ratified upon a prior consent granted by statute - are generally pronounced by a bench of five judges. In case the norm under review is of substatutory rank, the judgment is pronounced by a bench of three judges. The benches are composed ad hoc for each case, and the chairman of the bench, the reporting judge and the remaining judges are selected in an alphabetical order. The Tribunal pronounces judgments sitting in full bench (requiring the presence of at least nine judges) in: cases of disputes between the constitutional organs of State and cases aimed at determining whether or not there exists an impediment to the exercise of the office by the President of the Republic and requiring the Marshal of the Sejm to temporarily perform the duties of the President; also while adjudicating on the conformity to the Constitution of the purposes or activities of political parties, and performing the preventive review upon an application submitted by the President. A posteriorireview can also be performed by the Tribunal sitting in full bench, particularly in the cases of notably complicated nature (upon an initiative of the adjudicating bench or the President of the Tribunal), cases in which the particularly complicated aspect is related to financial outlays not provided for in the budgetary act; and the cases in which the adjudicating bench intends to depart from the legal opinion expressed in the Tribunal's decision given previously in full bench (Article 44 of the Constitutional Tribunal Act).
Applications submitted by subjects vested with a right to limited initiative must undergo a preliminary consideration. All other applications and questions of law are immediately delivered to the remaining parties to the proceedings, i.e. the organ which issued the questioned legal act and the Public Prosecutor General. The Tribunal may include other participants in the proceedings, e.g. the Minister of Finance may participate in the proceedings, where the review refers to a budgetary or fiscal statute. If the Tribunal's judgment may bear consequences for financial outlays not provided for in the budgetary act, the Tribunal refers to the Council of Ministers for an opinion (Article 84 of the Constitutional Tribunal Act). The Tribunal may also appoint experts and refer to State organs for information and documents; in relation to cases not regulated in the Constitutional Tribunal Act, the provisions of Code of Civil Procedure are applied (Article 74 of the Constitutional Tribunal Act).
The Tribunal is not limited by fixed terms in which applications or questions of law are to be considered; it is only with respect to the preventive review of the budgetary act that it is obliged to pronounce its judgment within two months (Article 224 para. 2 of the Constitution).
The judgments are rendered by a majority of votes; the chairman of adjudicating bench is not vested with the deciding vote. The judgment consists of a conclusion indicating the provisions considered, the scope of their mutual conformity or a lack thereof, and a foundation of the decision in the form of an elaborate reasoning which had led to the adoption of a certain conclusion. The judgments are issued in writing. They are pronounced at a public sitting of the Tribunal and subsequently published in their entirety in the Official Digest of the Constitutional Tribunal's Jurisdiction. Dissenting opinions are admissible, both regarding the operative part of the judgement and the reasoning which had led to it; dissenting opinions are published with the decisions. Decisions referring to the review of norms are issued in the form of judgments and their operative part is required to be immediately published in the official journal in which the original normative act was promulgated (Article 190 para. 2 of the Constitution).
Effects of judgments
The Constitution of 1997 has strengthened the Constitutional Tribunal's independence from the legislative power. All judgments of the Tribunal "shall be of universally binding application and shall be final" (Article 190 para. 1 of the Constitution); thus, the Tribunal's judgments may not be appealed against and have an erga omnes effect, i.e. they are binding for all its addressees.
Judgments of the Constitutional Tribunal regarding review of norms are required to be immediately published in the official journal in which the original normative act was promulgated (Article 190 para. section 2 of the Constitution).
Under the Polish system of constitutional review the lack of conformity of an act (a norm) to the Constitution, international agreement or a statute does not result in ex tunc invalidity of such act, but in its defectiveness; therefore a date for the end of the binding force of such act must be specified. As a rule, the loss of a binding force of the reviewed unconstitutional act takes effect on the day of the publication of the Constitutional Tribunal's judgment. However, the Tribunal may specify another date for the end of the binding force of a normative act. Such period may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act (Article 190 para. 3 of the Constitution). Postponing the date of the execution of a judgment is an exclusive power of the Tribunal, according to the principle of its independence. The main purpose of such solution is to enable the adjustment of the public finances to the new situation resulting from the Tribunal's judgment. A relatively high percentage of applications refer to fiscal statutes, social benefits etc., and therefore the Tribunal is obliged to i.a. refer to the Council of Ministers for an opinion, where it specifies the date for a loss of a binding force of a normative act which may result in expenditures not provided for in the budgetary statute. The need for postponement may also result from adjudicating non-conformity of an international agreement, as the loss of the binding force of such an agreement should be preceded by relevant international legal actions.
In addition to judgments on the conformity to the Constitution, international agreement or a statute (or a lack thereof) of a normative act (provision), the Constitutional Tribunal has also developed so-called partial and interpretative decisions. Partial decisions refer to recognizing only a partial non-conformity of the reviewed provision, e.g. only to the extent to which the provision could have a retroactive application. Interpretative decisions refer to recognizing the non-conformity of the reviewed act and simultaneously indicating which of the possible interpretations of the given act must be employed upon its application.
Judgments on non-conformity to the Constitution, international agreement or a statute may also bear consequences for the past decisions. As Poland had not adopted the German notion of invalidity of a norm deemed to be in non-conformity, all the previous acts and decisions grounded on that norm are not automatically annulled. Every interested party - in some cases also the Public Prosecutor General - may demand reconsidering the case closed and legally valid. Article 190 para. 4 of the Constitution introduces the general principle that a judgment of the Tribunal on the non-conformity to the Constitution, an international agreement or a statute of a normative act (provision) "shall be a basis for reopening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings".
The postulates for providing individuals with immediate access to the Constitutional Tribunal were formulated in Poland as early as in 1980s. Their realization, however, was not possible until the Constitution of 1997 came into force. The constitutional complaint procedure thereunder introduced - undoubtedly under the influence of German, Austrian and Spanish norms - was formulated in a stringent manner. It can only be directed against a normative act (a provision of law); the procedure does not provide for the questioning of constitutionality of individual decisions.
According to Article 79 of the Constitution a constitutional complaint may be submitted by everyone whose constitutional freedoms or rights had been infringed, i.e. all persons who are vested with constitutional freedoms or rights. The right to submit a constitutional complaint is therefore vested in all natural persons, both citizens and aliens. The Constitutional Tribunal's jurisprudence had embraced the concept of legal persons being vested with this right, however, only to the extent to which the freedoms and rights concern them.
The constitutional complaint can be founded on a violation of constitutional rights or freedoms of a complainant. This formula encompasses all constitutionally protected rights and freedoms, regardless of their nature (a complaint may not be based on a violation of rights and freedoms protected by international agreements, e.g. by the Convention for the Protection of Human Rights and Fundamental Freedoms). The only exceptions are the right of asylum and the right to be granted the status of a refugee (Article 56 of the Constitution) which are explicitly excluded by Article 79 para. 2 of the Constitution.
There are further conditions which must be fulfilled in order to file a constitutional complaint:
1) the infringement of the rights of the complainant must result from a decision passed by a court or an organ of public administration in the individual case of the complainant;
2) the decision must be final, i.e. all the available legal means of appeal had been exhausted;
3) the subject matter of the complaint may only be the allegation of a non-conformity to the Constitution of a normative act, upon which a final decision infringing the rights or freedoms of a complainant was based;
4) the complaint must be submitted within three months from delivering to the complainant the legally valid decision, the final decision or other final judgment (Article 46 of the Constitutional Tribunal Act). This term is of fixed character and cannot be restituted. The complaint must also be drawn up by an advocate or a legal advisor.
As the adjudication on the basis of a constitutional complaint always takes the form of the norm review, the procedural principles for a posteriori review are applied. At the same time, however, the Constitutional Tribunal Act introduced a number of requirements with reference to the admissibility of constitutional complaints.
A constitutional complaint is subject to preliminary consideration by a single judge of the Tribunal. Where the complaint does not fulfil the formal requirements or is evidently groundless, the judge refuses to proceed with further action. A complainant is entitled to lodge a complaint which is subsequently considered by the Tribunal sitting in a bench of three judges. If the judge permits the complaint, further proceedings are conducted before a bench of three or five judges, depending on the rank of the questioned provision of law. In particularly complex cases the decision may be passed by the Tribunal sitting in the full bench.
The Tribunal's decision determines the conformity to the Constitution of the reviewed norm; thus its effects are equal to those of a decision passed under a posteriori review procedure. The decision refers directly only to the provision of law, which loses its binding force with an erga omnes effect, if it is deemed to be in non-conformity to the Constitution. The decision referred to in a constitutional complaint is not automatically annulled, but a demand for such annulment must be submitted by a complainant to the proper organ. Entitled to such demand are all the persons to whom the questioned provision had been applied. The complainant's sole privilege is the possibility to request the Tribunal to issue a preliminary decision to suspend or to stop the enforcement of the judgment in the case to which the complaint refers (Article 68 of the Constitutional Tribunal Act).
Such formulation of the effects of the Tribunal's judgment may substantially impair the complainant's situation, as "winning" the case before the Tribunal is to be followed by further proceedings before a common court of law or an administrative court.
Disputes over authority
A general indication embodied in Article 189 of the Constitution that "the Constitutional Tribunal shall settle disputes over authority between central constitutional organs of State" was explicated by Article 113 of the Constitutional Tribunal Act, which defines "dispute over authority" as a situation in which "two or more central constitutional State organs have considered themselves competent to decide in the same case or have made a ruling in it (positive powers dispute) or where the said organs have not considered themselves competent to decide in a particular case (negative powers dispute)". Such stringent model refers primarily to Austrian standards and it distant from the model adopted in Germany. According to the solution adopted in Poland the dispute may only refer to competences in undertaking a specific action or decision and not the general scope of competences and duties of individual constitutional organs of State.
A dispute over authority may only refer to the dissent over competences of the constitutional organs of State (Article 189 of the Constitution), thus the Tribunal does not settle disputes between central and local organs (so-called vertical disputes) nor the disputes between central organs which cannot be ascribed constitutional character in a sense that their establishment is not explicitly required by the constitutional provisions (Article 113 of the Constitutional Tribunal Act).
The right to initiate the proceedings with reference to disputes over authority was defined in a narrow manner and granted only to the President of the Republic, the Marshal of the Sejm, the Marshal of the Senate, the Prime Minister, the First President of the Supreme Court, the President of the Supreme Administrative Court and the President of the Supreme Chamber of Control. It may be assumed that they may also act of behalf of other constitutional organs of State. The group of subjects entitled to initiate such proceedings does not therefore encompass all the constitutional organs of State (excluded are i.a. the Commissioner for Citizens' Rights, National Council of Broadcasting and Television and the ministers).
Adjudicating on the conformity to the Constitution of the purposes or activities of political parties
Certain limitations upon the freedom for the creation and functioning of political parties were introduced in Polish Constitution as a result of the State's past experiences. The proceedings before the Tribunal are aimed at establishing whether the purposes or activities of political parties conform to the Constitution. Both purposes and activities must comply with all the constitutional provisions, especially Article 11 para. 1 which recognizes as a political party an organization "founded on the principle of voluntariness and upon the equality of Polish citizens" whose purpose is "to influence the formulation of the policy of the State by democratic means", and Article 13 prohibiting the functioning of parties "whose programmes are based upon totalitarian methods and the modes of activity of nazism, fascism and communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide for the secrecy of their own structure or membership".
Should the District Court be in doubt as to the conformity to the Constitution of purposes or principles of a certain party stated in its statute prior to enlisting it in the registry of political parties, it is obliged to refer to the Constitutional Tribunal for its adjudication. The Tribunal's decision on the non-conformity of purposes or activities of political parties to the Constitution results in a refusal to enlist the party in the registry (which also applies to a situation, where a party amends its statute, thus violating the principles of its internal democracy). According to Article 191 of the Constitution proceedings may be initiated by the subjects vested with the general right to initiate the abstract review of norms. The Tribunal's decision on the non-conformity of purposes or activities of an existing political party results in its removal from the registry of political parties and its liquidation. The Tribunal considers such cases sitting in a full bench. As far as the purposes of the political parties are concerned, the procedure for review of norms is applied, as the consideration involves examining a party's statute and its programme. Upon examination of a party's activities (i.e. examining facts) the provisions of Code of Criminal Procedure are applied; the Tribunal may instruct the Public Prosecutor General to collect and record the evidence.