Statistical data: 1 January 1996 - 30 April 1996

Constitutional review
Decisions:
• Cases decided on their merits: 4
• Cases discontinued: 0
Types of review:
• Ex post facto review: 4
• Preliminary review: 0
• Abstract review (Article 22 of the Constitutional Tribunal Act): 4
• Courts' referrals ("legal questions", Article 25 of the Constitutional Tribunal Act): 0
Challenged normative acts:
• Cases concerning the constitutionality of statutes: 4
• Cases on the legality of other normative acts under the Constitution and statutes: 0
Holdings:
• 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): 3
• Upholding the constitutionality of the provisions in question: 1
Universally binding interpretation of laws
Resolutions issued under Article 13 of the Constitutional
Tribunal Act: 8
Motions requesting such interpretations rejected: 1

Important decisions

Identification: POL-96-1-001
a) Poland / b) Constitutional Tribunal / с) / d) 09.01.1996 / e) К 18/95 / f) / g) to be published in Orzecznictwo Trybunalu Konstytucyjnego Zbior Urzedowy (Official Collection of the decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
General principles - Legality.
General principles - Proportionality.
Institutions - Legislative bodies - Powers.
Institutions - Legislative bodies - Law-making procedure.
Institutions - Legislative bodies - Relations with the executive bodies.

Keywords of the alphabetical index: Municipal property / Social justice, principle.

Headnotes:
The "urgent legislative procedure" provided by Article 16 of the Small Constitution does not allow members of Parliament to introduce amendments which would significantly change the scope of the proposed law.

Summary:
The Constitutional Act of 17 October 1992 (the Small Constitution) introduced the abbreviated ("urgent") procedure for enacting statutes. The only body which may initiate the urgent procedure in certain, listed cases is the Council of Ministers. If the government would like this procedure to be used, it must provide the Parliament with a reasonable justification.
In the Tribunal's opinion the urgent procedure must be exercised strictly in accordance with the Constitution. In particular, deputies cannot introduce at their discretion amendments which could significantly change the scope of the draft presented by the government. During the urgent legislative procedure the deputies may introduce amendments the only purpose of which is to make the new regulation more efficient and which strictly relate to the governmental's proposals.
Therefore, the Tribunal found new provisions amending the Law on Land Administration and Expropriation to be contrary to the Constitution. In particular, the Tribunal pointed to the violation of the rule of law and the principle according to which all State authorities are obliged to obey law. In addition, the Tribunal decided that the provisions in doubt limited the competences of commune councils as real estate owners. The Tribunal declared this to be contrary to the principle of social justice and to the principle of proportionality.

Cross-references:
Decision of 26 April 1995 (К 11/94), decision of 17 October 1995 (К 10/95), decision of 31 January 1996 (К 9/95), [POL-96-1-002].

Languages: Polish.

Identification: POL-96-1-002
a) Poland / b) Constitutional Tribunal / c) / d) 31.01.1996 / e) К 9/95 / f) / g) to be published in Orzecznictwo Trybunalu Konstytucyjnego Zbior Urzedowy (Official Collection of the decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
General principles - Rule of law - Maintaining confidence.
General principles - Proportionality.
Fundamental rights - Civil and political rights - Non-retrospective effect of law.

Keywords of the alphabetical index: Construction law / Social justice, principle.

Headnotes:
In order that laws can achieve their intended goals, the legislative authorities should use the means which closely correspond to the intended goals and at the same time impose only minimum new obligations upon citizens.

Summary:
The 1994 Construction Law introduced severe sanctions for so called "free building" i.e. erecting buildings and other constructions without a permit. From 1 January 1995, an administrative body was authorised to order that any construction built without a permit be pulled down. This rule applied not only to buildings which were completed after 1 January 1995: all remaining constructions performed without a permit, despite the fact that they may have been built in accordance with all applicable technical norms and on an area designated for building purposes, could be pulled down. In the opinion of the applicants - the President of the Supreme Administrative Court and the Ombudsman - such a regulation violated the basic rules of the State governed by the rule of law: lex retro поп agit, the principle of social justice and the principle of citizens' confidence in State authorities.
The Constitutional Tribunal did not find a violation of the non-retroactivity rule. In its opinion the new law did not provide for a new definition of uncontrolled construction works, but only stipulated more severe sanctions for acts which also under the old regulation were understood to be forbidden. In the light of previous decisions of the Tribunal, in such cases, the rule lex retro поп agit remained untouched. However, the Tribunal found a collision between the new provisions and other principles encompassed by the rule of law (Article 1 of the constitutional provisions continued in force), i.e. the principle of maintaining citizens' confidence in the State and its laws, and the principle of proportionality. The Tribunal explained that the new provisions seriously affected those investors which had already undertaken actions to legalise their construction works. Such strict regulation did not correspond to the purpose of the new law, as any construction could be pulled down due to only minor procedural infringements.
The Tribunal also took this opportunity to comment on its previous decisions regarding the proportionality principle. In the Tribunal's opinion this principle relates to the principle of justice and triggers the following standards:
- legal provisions may be adopted only when it is necessary to protect public interests;
- provisions of a law should be structured in such a way as to achieve its intended purposes;
- a balance should be kept between the purpose of such legal provisions and additional obligations for citizens resulting from them.

Cross-references:
Decision of 26 April 1995 (К 11/94), decision of 17 October 1995 (К 10/95), decision of 9 January 1996 (К 18/95), [POL-96-1-001].

Languages: Polish.

Identification: POL-96-1-003
a) Poland / b) Constitutional Tribunal / с) / d) 06.02.1996 / e) W 11/95 / f) / g) Dziennik Ustaw (Journal of Laws), no. 24, item 112; to be published in Orzecznictwo Trybunalu Konstytucyjnego Zbior Urzedowy (Official Collection of decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
Institutions - Legislative bodies - Status of members of legislative bodies.

Keywords of the alphabetical index: Incompatibilities / State control.

Headnotes:
The President and Vice-Presidents of the State Chamber of Control may not at the same time serve as deputies or senators.

Summary:
According to Article 8 of the Small Constitution, a deputy may not sit in Parliament and at the same time serve as the President of the Supreme Chamber of State Control. In addition, the 1994 Law on the Supreme Chamber of State Control prohibits the Chamber's Vice-Presidents and its Director General from being members of any political party and from performing any other work or public function. In the Tribunal's opinion, this prohibition extends also to the prohibition on the Chamber's Vice-Presidents and its Director General from serving simultaneously as a member of Parliament.
As explained by the Tribunal, Articles 8 and 31 of the Small Constitution give only an example of which posts and functions may not be performed while serving as a deputy or senator. This rule is a specific application of a more general rule in Article 2.1 of the Small Constitution, whereby persons who hold offices or perform public functions on behalf of the State are forbidden to engage in any activity that may put their public reliability in question or affect their proper behavior as public servants. Therefore, it is justified and desirable that other, ordinary laws should specify further posts and offices which may not be combined with service as a deputy or senator.

Supplementary information: A dissenting opinion was delivered by judge Z. Czeszejko-Sochacki.

Cross-references:
Resolution of 13 April 1994 (W 2/94), Bulletin 1/94, 45, [POL-94-1-006]; Resolution of 11 January 1995 (W 17/94), Bulletin 1/95, 65, [POL-95-1-002].

Languages: Polish.

Identification: POL-96-1-004
a) Poland / b) Constitutional Tribunal / с) / d) 13.02.1996 / e) W 1/96 / f) / g) Dziennik Ustaw (Journal of Laws), no. 16, item 84; to be published in Orzecznictwo Trybunalu Konstytucyjnego Zbior Urzedowy (Official Collection of the decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
Constitutional justice - Types of litigation - Electoral disputes - Referendums and other consultations.

Keywords of the alphabetical index: Referendum.

Headnotes:
Should a referendum have been attended by more than half of the legitimate voters but there was not an absolute majority of votes cast in favor of one of the proposed solutions, the results of such a referendum are not binding for the relevant legislative or executive authorities.

Summary:
This decision was taken in connection with doubts regarding the wording of some provisions of the 1995 Act on Referendums.

Languages: Polish.

Identification: POL-96-1-005
a) Poland / b) Constitutional Tribunal / c) / d) 13.03.1996 / e) К 11/95 / f) / g) to be published in Orzecznictwo Trybunafu Konstytucyjnego Zbior Urzedowy (Official Collection of the decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
General principles - Rule of law.
Fundamental rights - General questions - Limits and restrictions.
Fundamental rights - Civil and political rights - Procedural safeguards - Access to courts.

Keywords of the alphabetical index: Dispute settlement / Pre-trial procedure.

Headnotes:
Although the principle of the rule of law (Article 1 of the Constitution) includes the right of access to courts, it does not mean that all existing limitations on access to courts are contrary to the Constitution.

Summary:
The 1995 amendments to the Law on Land Administration and Expropriation introduced a pre-court procedure for settling disputes arising out of or in connection with the new charges for perpetual usufruct of State-owned or municipal real estate. Disputes on setting or changing the amount of such charges are submitted to an appeal committee of a relevant Provincial Assembly. A person not satisfied with the committee's decision may appeal against it to a court. The Tribunal declared that such procedure for settling disputes fully protects the rights of interested parties and gives them a right of access to a court. Therefore, neither the principle of the rule of law nor the principle that justice be administered exclusively by the courts were violated.

Supplementary information:
The provisions in question replaced the provision of the 1985 Law on Land Administration and Expropriation that had been found unconstitutional by the Tribunal in its decision of 8 December 1992 (case no. К 3/92).

Cross-references:
Decision of 8 December 1992 (К 3/92), Bulletin 1/93, 31, [POL-93-1-004].

Languages: Polish.

Identification: POL-96-1-006
a) Poland / b) Constitutional Tribunal / с) / d) 26.03.1996 / e) W 12/95 / f) / g) to be published in Orzecznictwo Trybunalu Konstytucyjnego Zbior Urzedowy (Official Collection of decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
Constitutional justice - Types of litigation – Universally binding interpretation of laws.
General principles - Separation of powers.

Headnotes:
The Constitutional Tribunal may refuse to provide a binding interpretation of any law if such an interpretation could result in the creation of new provisions of law.

Summary:
The reasoning of this decision concerns situations when the Tribunal is not authorised to issue a universally binding interpretation of law. In particular, the Tribunal may refuse to give an interpretation when:
- a motion does not aim at clarification of legal doubts but tries to make the Tribunal responsible for certain decisions to be taken by State authorities;
- the provisions which are at the motion's basis are clear (с/ага поп sunt interpretanda);
- an interpretation could result in limiting the scope of the principal provisions of a given law;
- a motion's purpose is to obtain a decision which would result in creating new provisions of law;
The Tribunal stressed that issuing universally binding interpretations of laws may not result in amending or supplementing existing regulations by new provisions. Such activities are reserved exclusively for the legislative authorities, and such a course is therefore forbidden under the principle of the separation of powers.

Supplementary information: A dissenting opinion was delivered by judge L. Garlicki.

Cross-references: Resolution of 7 March 1995 (W 9/94), Bulletin 1/95, 69, [POL-95-1-007].

Languages: Polish.

Identification: POL-96-1 -007
a) Poland / b) Constitutional Tribunal / c) / d) 23.04.1996 / e) К 29/95 / f) / g) to be published in Orzecznictwo Trybunalu Konstytucyjnego Zbior Urzedowy (Official Collection of the decisions of the Tribunal) / h).

Keywords of the systematic thesaurus:
Institutions - Executive bodies - Organisation.
Institutions - Executive bodies - Territorial administrative decentralisation - Municipalities.
Institutions - Executive bodies - The civil service.

Keywords of the alphabetical index: Local self-government.

Headnotes:
The prohibition on serving concurrently as a local councillor and in the local administration is fully justified since it prevents possible conflicts of interest, although such a prohibition may not be introduced during the term of office of local councils.

Summary:
Under a September 1995 law amending the Local Self-Govermnent Act of 1990, the members of the constitutive bodies of local self-government units were banned from being employed by the commune as councillors. According to the provisions in question, entering into an employment contract with the local administration is deemed to result in termination of the councillor's mandate. Any and all councillors who at the same time took up employment with the local administration were given six months to decide whether they would perform functions in local councils or continue their employment.
In the Tribunal's opinion such a limitation corresponded with social and public interests, and therefore could not be considered to be contrary to the Constitution.
However, the Tribunal decided that introducing the prohibition in doubt during the current term of local councils (1994-98) violated the principle of stability of the councils as well as the principle of the completion of the councillors' terms of office.

Languages: Polish.