Types of review:

Ex post facto review: 5 Preliminary review: -

Abstract review (Art. 22 of the Constitutional Tribunal Act): 5

Courts' referrals ("legal questions", Art. 25 of the Constitutional Tribunal Act): -

Cases concerning the constitutionality of statutes: 4 Cases on the legality of other normative acts under the Constitution and statutes: 1

Cases decided on their merits: 5 Cases discontinued pursuant to art.4 of the Constitutional Tribunal Act on the ground that the legal provisions in question were no longer in force: 1

The statutes in question to be wholly or partly unconstitutional (or the acts of lower rank to violate the provisions of superior laws and the Constitution): 1 Upholding the constitutionality of the provisions in question : 3

Resolutions containing universally binding interpretations of laws (Art. 13 of the Constitutional Tribunal Ad) :

Binding interpretations of laws issued: 5

Motions requesting such interpretations rejected: -

Audiovisual media

Local self-government

Environmental protection

Freedom of conscience / Freedom of opinion

State secrets./ Secret services

Taxation - governing principles

Within the reference period the Sejm upheld some of the recent Tribunal's rulings on the unconstitutionality of statutes :

On its 21st sitting (May 26-28,1994) the Sejm elected the former Supreme Court judge Krzysztof Kolasinski the Judge of the Tribunal (his term will expire in 1997).

a) Poland / b) Constitutional Tribunal / с) / d) Resolution of 10 May 1994 / e) Case No. W 7/94 / f) / g).

Constitutional justice-Types of litigation - Litigation in respect of the distribution of powers between state authorities.

Constitutional justice - Types of litigation - Other litigation.

Constitutional justice - The subject of review - Laws and other rules having the force of law.

Constitutional justice - Constitutional proceedings -Types of claim - Claim by a public body - Other.

Constitutional justice - Constitutional proceedings -Types of claim - Type of review - £x post facto review.

Institutions - Principles of State organisation - Rule of law.

Institutions - Principles of State organisation - Other.

Fundamental rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.

Fundamental rights - Civil and political rights - Right to information.

Audiovisual media / Legality of the activities of the State bodies.

According to Art.36 "b" of the Constitutional Provisions Continued in Force and pursuant to the relevant provisions of the 1992 Law on Radio and Television Broadcasting, the National Council of Radio and Television is an independent State agency, the task of which is to safeguard the pluralism of audiovisual media and freedom of speech in radio and television in order to ensure the citizens' right to information. The members of the Council (nine in number) are appointed by the Sejm, the Senate and the President of the Republic of Poland. They may be removed only under circumstances strictly listed in the 1992 Law (e.g. a flagrant violation of the Law on Radio and Television Broadcasting or a conviction for an intentional crime. The President of the Council is appointed from among its members by the President of the Republic. The 1992 Law is silent on the question as to whether the removal of the President of the Council from his post is possible without removing him at the same time from the Council.

The Tribunal holds that pursuant to the principles deriving from a State governed by the rule of law (Art. 1 of the Constitutional Provisions Continued in Force) and to the principle of legality (Art. 3 sec. 2 of the Constitutional Provisions Continued in Force), if a provision of a statute does not expressly grant certain competences to a State body, such competences cannot be presumed. In this case it means that the President of the Council may be removed only if at the same time he steps down as a member of the Council. As already mentioned, it is possible only under the circumstances as specified in the 1992 Law.

a) Poland / b) Constitutional Tribunal / c) / d) Decision of 24 May 1994 / e) Case No. К 1/94 / f) / g).

Constitutional justice - Types of litigation - Litigation in respect of fundamental rights and freedoms.

Constitutional justice - The subject of review - Laws and other rules having the force of law.

Constitutional justice - Constitutional proceedings -Types of claim - Claim by a public body - Other.

Constitutional justice - Constitutional proceedings -Types of claim - Types of review - Ex post facto review.

Institutions - Principles of State organisation - Rule of law.

Institutions - Principles of State organisation - Other.

Law-making / Personal income tax / Non-retrospective effect of laws / Inviolability of acquired rights / Rules of taxation.

The subject of the Tribunal's control was a March 1993 amendment to the Personal Income Tax Act, which repealed a prior tax exemption in respect of the income from certain companies, provided it was subsequently expended to purchase shares from the State Treasury or bonds issued by Polish entities. The Legislator decided to give the provision in doubt retroactive effect; it entered into force on the day of its publication on 16 April 1993, but had become effective on 1 January 1993.

The Tribunal declared the said provision unconstitutional as far as it covered the period before its publication in the Official Journal. The way it was enacted violates the constitutional law-making rules (first of all the constitutional prohibition against ex post facto laws - /ex retro поп agit principle). The Tribunal holds that the provision in question is not consistent with other constitutional principles e.g. the principle of the protection of rights justly acquired and the principle of citizens' confidence in the State and in the law enacted by State bodies.

The Tribunal confirms its earlier opinion that the Parliament - within constitutional limits - may regulate the system of taxation and formulate tax policy at its discretion.

See also similar cases: К 7/93, К 8/93, К 13/93.

a) Poland / b) Constitutional Tribunal / с) / d) Decision of 7 June 1994 / e) Case No. К 17/93 / f) I g).

Constitutional Justice - Types of litigation - Litigation in respect of fundamental rights and freedoms.

Constitutional justice - The subject of review - Laws and other rules having the force of law.

Constitutional Justice - Constitutional proceedings -Types of claim - Claim by a public body - Other.

Constitutional justice - Constitutional proceedings -Types of claim - Type of review - Ex post facto review.

Constitutional justice - Common principles or techniques of interpretation - Other.

Institutions - Principles of State organisation - Rule of law.

Fundamental rights - Civil and political rights - Equality.

Fundamental rights - Civil and political rights - Freedom of conscience.

Fundamental rights - Civil and political rights - Freedom of opinion.

Fundamental rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.

Audiovisual media.

The subject of the Tribunal's control are two provisions of the 1992 Law on Radio and Television Broadcasting: (i) forbidding radio and television broadcasters from infringing the religious feelings of receivers; (ii) obliging public broadcasting organisations to respect the Christian values which correspond with universal ethical rules. In the applicants' opinion, attributing a normative character to "Christian values" results in giving a privileged position to one system of values. That appears to be contrary to the constitutional principle of equality and infringes the constitutional freedom of expressing and spreading opinions. That would mean that the provisions in question were enacted in contradiction to the basic principle of a State ruled by law.

In March 1994 the provisions in doubt had been the subject of a universally binding interpretation set up by the Tribunal (case no. W 3/93). The Tribunal decided that the said provisions cannot become the basis for the implementation of any kind of preventive censorship for radio and television programming. In the Tribunal's opinion, freedom of expression, regardless of its constitutional character, cannot be perceived as absolute. It may be subject to necessary limitations, provided that those limitations do not infringe the essence of this freedom, that they enter into force pursuant to the Constitution (or in compliance with the Constitution), and that they are established as an exception.

Currently, the Tribunal is supporting this view. The provision (i) does not discriminate against any religion since it secures protection of religious feelings regardless of differences of creed. Such protection constitutes one of the basic guarantees of freedom of conscience and creed. The provision (ii) when construed in compliance with the principles of the Constitution leads to the conclusion that the obligation to respect Christian values does not constitute an obligation to promote them. Any other interpretation would be in contradiction to the principle of equality and moral neutrality of the State. Besides, the provision in question represents only one of many other programming directives regarding public radio and television and refers only to those Christian values that concur with universal ethical principles.

See also the resolution of March 2,1994 (case No. W 3/93).

a) Poland / b) Constitutional Tribunal / c) / d) Resolution of 13 June 1994 / e) Case No. W 3/94 / f) I g).

Constitutional justice - Types of litigation - Other litigation.

Constitutional justice - The subject of review - Laws and other rules having the force of law.

Constitutional justice - Constitutional proceedings -Types of claim - Claim by a public body – Other

Constitutional justice - Constitutional proceedings -Types of claim - Type of review - Ex post facto review.

Institutions - Principles of State organisation - Rule of law.

Fundamental rights - Civil and political rights - Right of access to courts.

State secret / Secret services / Right of access to court / Null и т crimen sine lege.

The 1982 State Secrets Protection Act provides that data which may allow identification of police officers and persons cooperating with them constitute a State secret, provided that the persons involved perform "intelligence or counter-espionage duties".

The Tribunal clarified the contents and the scope of the provision in question, rejecting an overly wide interpretation. In particular, data on former police officers should be considered a State secret only if its disclosure might expose to danger the external and internal security of the State or other important State interests.

In the interpretation of the provision in doubt, the Tribunal pointed out a number of legislative infringements resulting from the incoherence of the State Secrets Protection Act with the Polish legal system. As stressed by the Tribunal, the balance between the duty to protect State secrets and the principles of the administration of justice had not been property struck. E.g. the Act was silent as to the procedure on the basis of which persons testifying before courts could be exempted from the duty to protect a State secret.

Under the Polish Criminal Code the disclosure of a State secret constitutes a crime. One of the provisions of the State Secrets Protection Act provides that information concerning external or internal State security and the armed forces which are considered State secrets are not subject to publication. It means that a person who discloses such information may be criminally liable even if he/she could not recognize the consequences of his/ her act. According to the Tribunal this provision does not comply with the principle nullum crimen sine lege. Thus it is inconsistent with the constitutional principle of the rule of law.

The Tribunal submitted the above mentioned infringements to the Sejm (decision of June 13,1994 - case No. S1/94).

a) Poland / b) Constitutional Tribunal / с) / d) Decision of 28 June 1994 / e) Case No. W 14/93 / f) / g).

Constitutional justice-Types of litigation - Litigation in respect of the distribution of powers between central government and its subdivisions.

Constitutional justice - The subject of review - Laws and other rules having the force of law.

Constitutional justice - Constitutional proceedings -Types of claim - Claim by a public body - Organs of decentralised authorities.

Constitutional justice - Constitutional proceedings -Types of claim - Types of review - Ex post facto review.

Fundamental rights - Collective rights - Right to the environment.

Forests / Environment / Local authorities / Budget.

Forest-administration in Poland is subject to restrictive regulation and therefore the rights of forest owners (including owners other than the State Treasury) are limited. The 1991 Forest Act set forth a separate category of forests eligible for special protection (so called "protected forests"). The decision to assign a certain forest to this category is reserved for the Minister of Environmental Protection, Natural Sources and Forestry. The decision is made after consultation with the executive board of the relevant local authority. However, such an opinion is not binding. A forest classified as "protected" is i.a. exempted from forest tax. The Assembly of the Communes of Zielona Gora Province argued that this silence results in a reduction in income of local authorities where the protected forests are located. The fact that local authorities have no influence on decisions classifying forests as protected is-in the applicant's opinion - contrary to the constitutional principle of communes' participation in the exercise of the executive power.

The Tribunal held that the principle of communes' participation in the exercise of the executive power was not of an absolute character. Pursuant to the 1992 Constitutional Act ("Small Constitution") local self-governments perform a substantial part of public tasks, except those which are reserved exclusively to the competence of governmental administration. The provision in question reserves the competence on forest administration to the government administration because questions connected to this special aspect of environmental protection require national solutions. Therefore, the said provision was not inconsistent with the Constitution. Moreover, according to the Tribunal, it was intended to implement the constitutional right to benefit from the natural environment.