Almanac

Prof. Marek Safjan
President of the Constitutional Tribunal
Poland

Constitutional Complaint - a Tentative Summary of the Early Experience

Introduction
The introduction of the constitutional complaint by virtue of the Constitution of April 2nd 1997 marked the opening of a new stage in the activity of the Polish Constitutional Court, and was a harbinger of a breakthrough in the enforcement of the Court's core competence, the execution of control over the constitutionality of legal regulations. In this lecture - rather brief by its very nature - one can only make an attempt at a few general reflections, primarily concerning the question whether the constitutional complaint has fulfilled the expectations and hopes associated with its introduction by the authors of the new Constitution.
The existence of the complaint offered an enormous opportunity for the realization of the crucial value embodied by any democratic state ruled by law, namely, for bringing the constitutional perspective closer into the relations between the state and the individual. Indeed, the complaint was to enable the fullest implementation of the constitutional values and principles into the legal relations and make the constitutional norms the ultimate point of reference for the state authorities' decisions touching upon the constitutionally guaranteed rights and freedoms. Thus, the complaint was to become a transmission gear of sorts between the abstract and generally formulated norms of the Constitution and the legal situation of an individual. These expectations have been fulfilled only to a limited extent.
With regard to its fundamental elements, the Polish model of constitutional complaint adopted in Article 79 of the Constitution refers to the solutions known in other European legal systems, while retaining a number of unique features which justify the thesis that this is, indeed, an absolutely original model. The similarities are related mainly to the function of this instrument (protection of rights and freedoms guaranteed by the Constitution), to the tie-in of the complaint with a violation of interests of an entity taking this course of action (as in other systems, the appellant is obliged to prove the existence of such direct interest; he or she cannot limit his or her action to proving only the potential for such violation - thus, this is not an actio popularis model), to the principle of subsidiarity (the appellant cannot use the constitutional complaint as a path alternative to other legal measures or instruments available to protect his or her own interests); and to its extraordinary character (a complaint can be filed only following the exhaustion of the so-called legal path).
Certain unique aspects of the Polish model deserve to be noted, above all - the objective scope of the complaint, which includes only normative acts (legal regulations), and not acts of legal application as such. Hence, while the appellant must prove that his or her interests had been violated in the act of application of law (the path to the complaint is open only after the so-called final verdict is passed), the subject of the action is, however, not the erroneous application of law by an organ of state authority, but the unconstitutionality of the law itself - the causative factor behind the violation of the appellant's rights and freedoms, and therefore of his or her specific interest. In precisely this point lies the fundamental difference between, i.a. the German model of the constitutional complaint and the Polish one, and - at the same time - the significant similarity to the Hungarian solution (although we can hardly speak about identity, as the Hungarian model, on the other hand, does not require that a violation committed in the act of application of law be proven).
Constitutional complaint models can be classified according to a wide variety of criteria, e.g. the scope of rights and freedoms subject to protection, the scope of right of action - the group of entities entitled to institute proceedings, the relation to other proceedings (scope of subsidiarity), legal consequences, etc. However, for the purpose of classification, the most important seem to be the differences in the approach to the objective scope of the constitutional complaint. The exclusion of all acts of legal application from the scope of constitutional complaint places the complaint proceedings (despite all existent differences) within the realm of abstract control over law, and thus alongside all other proceedings concerning control over the constitutionality of law taking place before a constitutional court.
This structure of the complaint implies a number of further consequences. First, the Constitutional Court does not at all examine the facts or circumstances which support the soundness of the decision in a given case, but merely reviews the substance of a legal regulation. Secondly, a ruling in favour of the appellant is not tantamount to a direct removal of the violation of such appellant's interest, since at this stage, i.e. that of proceedings before the Constitutional Tribunal, not an amendment to a specific decision is made, but a review of unconstitutionality of its basis. Hence, it is still necessary for the appellant to effect an amendment (annulment) to the relevant decision in further administrative or court proceedings, usually in the course of retrial. Thus, it will be a yet another, third round of the appellant's battle with the state authorities to achieve their conformance to the constitutional norms. Thirdly, the finding of an evident error in the application of law upon recognition of a constitutional complaint cannot lead - even indirectly - to a correction of the content of the relevant decision, should it have been passed within a constitutionally compliant regulation. Fourthly, a decision passed in the course of a constitutional complaint and declaring the unconstitutionality of a regulation will affect other entities as well (see further comments concerning this matter).
The Objective Scope of the Constitutional Complaint
One of the most important and most difficult problems concerns the question of the objective scope of the complaint. The formula adopted by the Constitution is extremely broad - every legal regulation is subject to control in the course of a constitutional complaint. Thus, the scope of objectivity - when so broadly described - is fundamentally different from the solution adopted in Article 188 clause 3 of the Constitution, which provides exclusively for legislation passed by the central state authorities. Serious controversies arise from the question of admissiblity of constitutional complaint proceedings for the purpose of challenging the regulations of local law, which, while forming a part of legislation of common applicability, reach no further than a definite territorial unit (see Article 87 of the Constitution, laying down a so-called closed source system for commonly applicable law). Moreover, it may be of certain importance that the control over local legislation with regard to its compatibility of with Acts of Law has been expressly made part of the jurisdiction of administrative courts (see Article 184 of the Constitution). In the legal doctrine , however, there seems to prevail a conviction that the admissibility of constitutional complaint should apply to all legal regulations, and the most serious argument supporting such thesis is the purpose and function of the constitutional complaint, which targets the protection of basic constitutional rights and freedoms, and thus the values which demand particularly intense and effective instruments of legal protection. This approach is also supported by the separateness of the constitutional complaint as a measure with an autonomous scope of application, and thus not subject to the restrictions of control over the constitutionality of legal regulations provided for in Article 188 clause 3 of the Constitution. From the practical point of view, the issues of potential violation of rights or freedoms are far from being ruled out, considering the significant impact which certain regulations of local law, such as local taxes and other charges, urban development plans and regulations on general order, may have upon the sphere of individual interests of the citizens. Undoubtedly, this issue requires further debates and judicial decisions.
Another important and interesting question is that of control exercised - via the constitutional complaint - over regulations contained in the acts of international law. It seems indisputable that ratified international conventions (by consent given in a statute), having higher legal standing than statutes (this seemingly confirmed by the reading of Article 91 clause 2 of the Constitution) are also subject to control via constitutional complaint . Besides, it should be noted that with regard to certain areas of basic constitutional rights and freedoms (e.g. the right to court trial, the right to information, the right to protection of privacy), the scope of constitutional guarantees is much broader than that provided for by the conventions regulating the protection of rights and freedoms, including, e.g., the European Convention of Human Rights. In consequence, the recognition that constitutional norms always serve as a model in the review of international regulations is frequently of great advantage to the citizens.
A much more difficult problem presents itself in the question, of only potential nature at present but likely to demand urgent response in the not-too-distant future, of the constitutional complaint's admissibility in legal action against regulations of the Community law. The issue is already the subject of numerous statements, and at times - controversies, among the representatives of the doctrine. Generally speaking, the Constitution establishes very favourable legal conditions for European integration, directly defining the nature of the accession treaty and the course of its ratification (Article 90 of the Constitution), as well as the prevalence of the Community law over internal legal regulations (Article 91 clause 3 of the Constitution) . One should assume, however, that even upon the accession of the Republic of Poland to the European Union, the constitutional norms will retain their highest legal standing, and thus prevail over Community regulations. In consequence, this creates - at least potentially - an area of conflicts difficult to resolve. It appears prima facie that a constitutional complaint can be effectively used to control the Community law since, as indicated earlier, according to the general formula laid down in Article 79 of the Constitution, the constitutional complaint may be applied to any legal regulation. The dispute concerning this issue is not over; it seems, however, that those who relate the constitutional complaint exclusively to internal legal regulations (i.e. passed by the Polish state authorities) are right. I also subscribe to the opinion that although the Community law constitutes part of the domestic legal order (or, to be more precise, of the prevalent legal system), it is not recognised as internal law - and not necessarily from the point of view of its sources but, above all, of its close ties to other Community regulations, of the autonomous and coherent entirety of this segment of law, and of the exclusivity of control exercised by the European Court of Justice in Luxembourg. I will not pursue this issue any further, as it touches upon a much more general question of the scope of competencies in control of constitutionality of laws exercised by the Constitutional Tribunal. The matter may be summed up with a general statement that the scope of such competencies should be limited only to the accession treaty and ratification act, and it should not include the Community's secondary law. One cannot rule out however, that such position will become truly possible only after relevant amendments to the constitutional regulations have been implemented.
An entirely separate problem related to the objective scope of the constitutional complaint is the question whether annulled and no longer valid regulations should be subject to this type of control. From the practical point of view, this is obviously a problem of tremendous importance, since legal consequences of decisions founded on unconstitutional laws may prevail over long periods. The dominant rule - and not only in the Polish legal system, it seems - is that constitutional control does not extend to regulations no longer legally binding. Such rule has also been expressed in the new Constitutional Court Act of August 1st 1997 (Article 39 clause 1 item 3), which in this area is a continuation of previous regulations. This provision had been interpreted rather liberally, since the Constitutional Tribunal's jurisprudence formulated the position that a formal annulment of a regulation is not tantamount to such regulation losing its binding force, as such force has to be assigned to every legal regulation that may serve as a basis for action at present or in the future, e.g. in conformance with the provisions of intertemporal legislation .
As a result of recent amendment to the Constitutional Court Act , a crucial - if not revolutionary - change was adopted, allowing for a considerable exception to the ban on examination of legal regulations no longer valid. The new Article 39 clause 3 provides that it is allowable to institute proceedings to examine the constitutionality of a regulation, the binding force of which had been annulled prior to the passing of the relevant decision, should this prove necessary to protect constitutional freedoms and rights. Originally, this change was to serve as an extension of the objective scope of the constitutional complaint; at the final stage of legislative work, however, the explicit reference to the constitutional complaint was removed. In consequence, the area of control over the constitutional compatibility of law has been greatly extended; it should not be forgotten, however, that this new regulation's greatest importance will demonstrate itself in the area of constitutional complaint. There had been only minimal opportunities for jurisprudence to play a role in this matter, while attempting to offer precise definitions of premises behind the control over the constitutionality of legal regulations reaching so far into the retrospect. A noteworthy example is the judgement in case SK 15/2000, where the following statement was made, among others, with regard to Article 39 clause 3: "The premise justifying control over the constitutionality of a legal regulation lies in the proof of links between the given regulation and the protection of constitutional rights and freedoms. Such links exist if three conditions are met. Firstly, if the regulation under examination contains normative provisions relating to the area of constitutionally protected rights and freedoms. Secondly, if there is no alternative legal instrument (other than pronouncing the regulation unconstitutional) able to effect change in the legal situation which had been definitely prevalent prior to such regulation losing its binding power. Thirdly, if the potential elimination of such regulation from the legal system constitutes an effective measure to restore the protection of rights violated as a result of the prevalence of the questioned regulation» .
The new formula of Article 39 clause 3 opens yet another field for conflict between constitutional principles and values. According to contemporary constitutional standards, the option of exercising constitutional compatibility control with its retroactive force affecting legal regulations no longer valid carries a threat of jeopardising legislative security and stability of long-established legal relations. I am convinced that it will be indispensable to approach the new instrument of protection with cautioun and prudence, since its excessive use will unavoidably lead to collisions with the crucial values encoded in the concept of a democratic state of law. An example relating to the resolution of such conflict has been provided in a recent judgement by the Constitutional Tribunal, whereby the Tribunal supported the recognition of unconstitutionality of regulations making the process of inheriting farms effective no sooner than the date of pronouncement of a judgement in such case, precisely in order to avoid the violation of a long standing rule of the European legal tradition that inheritance proceeds in conformance with regulations prevalent at the moment of opening of the will, i.e. of the testator's death .
The importance of decisions concerning the application of Article 39 clause 3 of the Constitutional Court Act will be tremendous. This conviction is well proven by the constitutional complaint, recently filed with the Constitutional Tribunal (Ref. No. SK 5/2001) and already in trial, to recognise unconstitutional the regulations on nationalisation passed during the early years of the post-World War Two period.
Finally, there is also an interesting problem of the so-called legislative negligence as a subject matter of a constitutional complaint. The problem is well known to the German constitutional doctrine, and the jurisprudence of the German Constitutional Court allows for complaints with regard to such negligence to be instituted . It would be difficult, however, to find signs of a clear-cut and unambiguous position on this issue in the Polish doctrine .
Constitutional Models Concerning the Constitutional Complaint
Interesting, yet difficult dilemmas arose with the question of admissible constitutional models. As is commonly known, there is a variety of model solutions in this field, e.g. those referring to strictly defined categories of rights, or those recognising broader areas, e.g. including rights guaranteed in international conventions, or rights only indirectly protected by constitutional provisions .
In light of the Polish model, it is indisputable that a constitutional complaint can refer only to those constitutional norms which institute guarantees for the protection of rights and freedoms. The catalogue of fundamental rights and freedoms has been laid down in Chapter Two of the Constitution; yet these regulations do not exhaust all constitutional guarantees, since certain fundamental rights and freedoms elevated to the position of principles of the state's system have been clearly defined in Chapter One of the Constitution, e.g. the freedom to form political parties (Article 11), the freedom of formation and activity of trade unions (Article 12), the freedom of press and other public mass media (Article 14), protection of marriage and the family (Article 18), the freedom of engaging in business operations (Article 20), or the protection of ownership and inheritance rights (Article 21). It is a separate question, to what extent other constitutional values translated from general constitutional norms which are assuming the character of general clauses can form an independent basis for a constitutional complaint. This concept, seeking support for constitutional guarantees in the area of more broadly perceived constitutional axiology, in the spirit of constitution or in its general clauses, is well known in the constitutional doctrine, and has been most clearly articulated by the famous Swiss constitutionalist, Zaccario Giacometti . Here I refer mainly to Article 2 of the Constitution, expressing the principle of a democratic state ruled by law, realizing the principles of social justice. It is a typical feature of the Polish constitutional jurisprudence that the democratic state ruled by law clause had served as a basis for a number of fundamental trends in jurisprudence concerning the area of fundamental rights protection. This particular principle was the basis for the expansion of constitutional values to include, among others, the protection of acquired rights and of the so-called ongoing concerns, of confidence in the state and in any laws thereby enacted, the protection of presumptive good faith as a general rule in proceedings (praesumptio boni viri); an adequate vacatio legis prior to the coming into force of any normative act. Such basic rights as the right to a fair trial in court or to protection of privacy had been included in the catalogue of constitutionally guaranteed rights even prior to the enactment of the new Constitution, thanks, in part, to the creative development of the principle of a democratic state ruled by law. Not all rights formerly attributed to the clause of the democratic state ruled by law have been directly reflected in relevant constitutional norms. The Constitutional Tribunal detected a number of other - one might say technical - principles in the substance of Article 2 of the Constitution, related to the course of legislative process and creation of law, e.g. by expressing a conviction that in a democratic state ruled by law, legislation should be comprehensible to its addressees, and phrased sufficiently clearly to allow its application without major doubts concerning interpretation. The Tribunal also stated that upon entering into force, legal regulations should be realistically available through a proper form of publication and dissemination of official journals containing such regulations. Finally - as it has been said earlier - sufficient time must be allowed for legal regulations to enter into force following the date of their announcement; the ban on retroactivity of law comes in here as well. It seems rather obvious that these "semi-technical» rules also exert a relatively significant impact on the respect for the rights and interests of an individual. "Procedural justice», for the sake of this lecture understood rather broadly as the correctness and integrity of the actual process of drafting, amending, and implementing law, and also relating to the legislative quality of law (though not to its content) - and therefore the comprehensibility, coherence, unambiguousness of legislation etc. - plays, notwithstanding the banality of this statement, the role of an important guarantor from the perspective of fundamental rights protection. I am convinced that the matter should be approached with flexibility. In every case when a violation to procedural justice as described in Article 2 of the Constitution is being questioned, with regard to a legal regulation concerning the area of interests linked with a constitutionally protected right or freedom, also recognised as a fundamental right, the constitutional complaint should be admissible (e.g. the interference with the ownership rights based on an ambiguous regulation offering ample field for interpretative abuse is a violation of constitutional ownership rights for the specific reason that such regulation violated the standards of a state ruled by law stemming from Article 2 of the Constitution, and not because of some normative provisions or other encoded in a given legal norm). Wherever fundamental or indeed elementary requirements relating to the "quality» of law (e.g. the ban on retroactivity of law) are concerned, I would rather support the acceptability of the constitutional complaint on the autonomous basis offered by Article 2 of the Constitution. The debate on this matter is far from over, and one could well expect that a clear-cut position in this area is yet to be formed during the coming years.
Among the representatives of the doctrine, and also among the judges of the Constitutional Tribunal, one can observe rather significant discrepancies concerning the application of the rule of equality (Article 32) as an independent constitutional model justifying the complaint. Undoubtedly the matter is somehow related to the above mentioned issues of quality of law. Two contradicting positions are being presented . According to the former one, Article 32 should be used as justification for a complaint if the accusation of unequal treatment concerns a regulation relating to one of the fundamental rights guaranteed by the constitution (a variant of strict interpretation of complaint premises as laid down in Article 79 of the Constitution). In the latter one, unequal treatment is always a violation of a fundamental right per se, as such right provides for the just and equal treatment of all addressees of legal norms (such complaints arise e.g. with regard to regulations in the area of social security concerning disability pension and retirement benefits, where at times relatively significant differences between various social groups can still be observed). In this particular dispute I support the latter position, since I am deeply convinced that inequalities - i.e. discriminatory treatment of selected social groups - always translates into violation of a constitutional value of fundamental importance, namely the imperative of fair law, which is an inseparable component of a democratic state ruled by law (this is asserted in particular in Article 2 of the Constitution, which - alongside the clause on the democratic state ruled by law - also provides the imperative for the state to realise the postulate of social justice).
Most intense disputes and controversies, however, arise with regard to constitutional norms which regulate the protection of the so-called social and economic rights . In this field, we encounter a particularly high number of constitutional norms that may be perceived as blank and of very general nature, that actually transfer the burden of shaping the content of the various laws onto statutory norms. Article 81 indeed states that rights defined in Article 65 clauses 4 and 5 (protection of minimum wage and full-time employment), Article 66 (right to a safe and hygenic workplace, to holiday leave, and to days free from work), Article 69 (social support for the disabled), Article 71 (assistance for families in difficult financial conditions and maternity benefits), and in Articles 74-76 (concerning environmental protection, housing needs coverage, and consumer protection) can be asserted exclusively within boundaries specified by a statute. Concurrently, however, there exist other social rights, which have not been listed in this catalogue, although the Constitution itself refers to ordinary Acts of Law for their more precise content (e.g. Article 65 - freedom of the choice of profession, Article 67 - right to social security, Article 68 - health care rights). It can be thus concluded that the Constitution itself differentiates between the various categories of social rights according to the degree of precision in the content of the law and the intensity of constitutional guarantees. In consequence, according to these criteria, three levels of regulations concerning these rights can be distinguished, namely: a) the level of full constitutional guarantee (e.g. freedom of artistic creativity and scientific research - Article 73, health care rights - Article 68 clause 1, and right to education - Article 70 clause 1: the existence of a universal system of protection of these latter rights stems directly from the Constitution, and does not depend on any statute, which - on the other hand - may define the form of providing health benefits or ensuring primary schooling); b) the level of protection based in part on constitutional guarantees (e.g. freedom in the choice of employment and occupation - an ordinary statute may define exceptions to the rule; tuition-free education in public schools - a statute may, nevertheless, define the scope of university-level educational services provided for tuition - Article 70 clause 2); c) the level of protection placed entirely within ordinary legislation (all the above mentioned rights specified in Article 81 can be asserted exclusively within the boundaries laid down in the statute).
Under these circumstances, it is necessary to pose an essential question whether one can indicate constitutional models when following a constitutional complaint, especially with regard to the second and third categories of social rights. To what extent and in what sense can one refer to the principle concerning freedom in the choice of occupation, for example, if a statute is to define exceptions; or to consumer rights and environmental protection, if the content of such rights is - in conformance with the Constitution itself - fully determined by the provisions of ordinary statutes? I wish to express a conviction - still open for dispute - that each and every social right included in the catalogue of constitutional rights, regardless of the adopted level of constitutional protection guarantee, can serve as a constitutional pattern in constitutional complaint proceedings. It is not whether such protection exists at all, but what level of this protection may be "constitutionally demanded» from the legislator, that is the very essence of the question. No constitutional norm can be regarded as deprived of its proprietary normative content and fulfilling the sole function of ideological proclamation. A different opinion in this matter would have to entail a return to purely ideological concepts, and to constitutions of the communist era, empty in their normative content. In consequence, seeking a rational approach in weighing constitutionally guaranteed rules and values, one should distinguish between the level of protection applied to the various categories of social rights. It is quite unique, for example, that the fact of fulfilling a constitutionally guaranteed right by an ordinary statute cannot be subjected in its entirety to the legislator's arbitrariness or discretion. In one of its decisions regarding a constitutional complaint, the Constitutional Tribunal actually emphasized that a reference to an ordinary statute is equal to the obligation on the part of the legislator to introduce such regulations that would best optimise - in given social and economic conditions and taking into consideration the principle of social justice - the content of specific social tools or mechanisms .
Adopting such a path in interpreting the Constitution, I would be consistent in not excluding the option of referring - in a constitutional complaint - to constitutional models representing the lowest level of social guarantees, including those described in Article 81 of the Constitution. At stake here is, above all, the guarantee of the existence of law itself, and not its specific substance or content, since the latter have been - by the will of the constitutional legislator - set at the level of ordinary statutes. An entity benefitting from the minimum wage guarantee cannot effectively question, through claims ditected against the state, the level of such remuneration defirned in relevant legal regulations, he or she could, however, effectively refer to constitutional protection - i.a. via constitutional complaint - in the absence of any regulation binding employers with regard to mandatory minimum wage.
Obviously, one should not overlook the fact that the choice of one interpretation format over the other is closely related to the axiological concept of a contemporary democratic state. The sphere of protection of the weakest social groups seems to be firmly rooted in the foundations of the modern state and this trend has a strong presence in the countries of the European Union (not by accident has the protection package social and economic rights found its way into the Basic Rights Charter of the European Union ). The interpretation of constitutional norms should always recognise the entirety of the axiological order stemming from constitutional standards and based upon a number of key principles relatively clear in indicating that Poland is displaying features of a social state to a considerable extent. This is indicated by the imperative of social solidarity, potentially arising from Article 1 of the Constitution ("The Republic of Poland shall be the common good»), from the principle of social justice (Article 2), or from the constitutional concept of social market economy (Article 20) . In no case, however, may the interpretation of the above mentioned principles mean a return to the concept of vulgar egalitarianism, or the formation of a fictitious enactment of the rule "to everyone according to their need». The actual purpose is that of restraining egoism, and of providing the public authorities with a general operational direction. It should also be noted that, particularly in reference to this category of rights, the postulate that the Constitutional Court show necessary moderation and refrain from forcing a specific vision of social justice upon the entire society - is particularly timely and relevant .
Closing the theme of constitutional model, it would be worthwhile to signalise issues related to the fact that the Constitutional Tribunal is bound by the scope of constitutional complaint, also in reference to constitutional models. I believe that the Polish constitutional practice is excessively rigorous in this area for no sound reason. Whenever arguments quoted to support the complaint are indicative of a possibility, or indeed justifiability, of founding constitutional accusations on constitutional models other than those clearly provided, it would seem highly justified for the Constitutional Tribunal to undertake an analysis of the controlled regulation from the perspective of unjustly neglected rights. Particularly in the area of fundamental rights and freedoms do we encounter rights supported concurrently by a variety of constitutional norms . Restricting control functions to the examination of a sole aspect of a guaranteed right limits opportunities for action recognising a broader context of constitutional axiology.
Effects of Judgement in the Objective Scope of the Constitutional Complaint
The originality of the Polish model of constitutional complaint is manifested i.a. in the nature of the effects of constitutional complaint judgements. Any case, albeit specifically rooted in a dispute taking place earlier before a common or administrative court, when examined before the Constitutional Tribunal, is converted into a dispute concerning the constitutionality of law, not the soundness of a specific decision. Thus, a judgement of the Constitutional Court does not in any way differ from decisions issued in other proceedings instituted in the course of so-called abstract control: it is but a verdict concerning the constitutionality or unconstitutionality of a controlled legal regulation, not a decision relating to facts or their proper subsumption. Thus, the factor that evidently distinguishes the Polish complaint model is related to the nature of abstract control applied in actual proceedings before the Constitutional Tribunal, and therefore in separation from the circumstances of a specific case. It is relatively obvious that a judgement in a constitutional complaint case carries universally binding power - thus, if it declares constitutional incompatibility of a regulation, it effects the elimination of such regulation from the legal order as of the date of the judgement's proclamation. Such effect, according to prevalent opinion, acts to the benefit of the future (pro futuro), and therefore does not signify invalidity of a given regulation since its coming into force (ex tunc), which would evoke tremendous legal chaos and undermine public confidence in the law. What are, therefore, the benefits enjoyed by a victorious appellant in a dispute before the Constitutional Tribunal concerning unconstitutionality of a law? The appellant's benefits are related to the limited retroactivity of the Tribunal's judgement, consisting in an option to annul by retrial a decision passed formerly (by a court or an administrative authority) on the basis of a constitutionally incompatible piece of legislation. But at the same time - and this is unique in the Polish solution - the opportunity of re-instituting proceedings and altering a former decision is made open not only to the appellant (a natural consequence, since the appellant's action caused the elimination of an unconstitutional norm), but to any other entity who had encountered a similar situation (i.e. a decision had been passed in such other entity's case by virtue of an unconstitutional regulation), which is by no means an obvious solution. This broadly defined (in subjective terms) result of a judgement to the effect of unconstitutionality of a legal regulation accentuates ever stronger the individual and the public or general purpose of the constitutional complaint. The scale of retroactivity of the judgement in the subject matter of the constitutional complaint may indeed give rise to certain doubts, already expressed in a variety of literature in the past . It has been very correctly pointed out that the benefits stemming from the limited retroactivity of a judgement should be enjoyed primarily by the entity who - in his or her individual action - ensured a decision to the effect of unconstitutionality of a regulation. In such cases, there exist particularly firm axiological premises for sacrificing the values of certainty of law and stability of legal relations for the sake of protecting the rights of the entity who had instituted proceedings. On the basis of legis latae fundamentalis it does not, however, seem possible to restrict the application of Article 190 clause 4 of the Constitution (describing the basis for retrial to the purpose of annulling a constitutionally incompatible decision) to entities filing constitutional complaints only.
As a side comment one could only add that such individual and yet public nature of interest protected via a complaint enables a continuation of proceedings even if the appellant had died before their conclusion. This is a logical consequence of the fact that the Constitutional Tribunal's judgement is separate in its legal effect from the specific case which had been the source of instituting the proceedings before the Tribunal.
Interpretation-Related Judgements vs. the Constitutional Complaint
As emphasised before, one of the most characteristic features of the Polish constitutional complaint model, actually differentiating it from the solutions adopted in the majority of other countries applying this instrument (Germany, Spain, and Slovenia, among others), is the elimination of any complaints against erroneous or unconstitutional application of law. Such solution may obviously be recognised as strongly disputable, since the very objective of the complaint is to protect constitutionally guaranteed rights and freedoms, and from the perspective of the protected entity it is of no consequence whether the guarantees due are violated as a result of erroneous application of law, or of the correct application of unconstitutional regulations. The Polish solution carries two crucial advantages, which must not be overlooked. Firstly, the Polish model is consistent, given the function of the Constitutional Tribunal as a court judging the law rather than facts. Secondly, it enables a more distinct separation of the scope of competencies between common courts and the Constitutional Tribunal; the former are responsible for the definition of the content and for enforcement of valid legal regulations in conformance with the adopted rules of interpretation, while the latter has the exclusive competency to pronounce the constitutional compatibility of a given legal regulation. Against the background of such model, the extraordinary and subsidiary nature of the complaint, which cannot under any circumstances be treated as a measure of appeal, i.e. a third or fourth instance, is much more pronounced. Moreover, it cannot be concealed that the faulty use of the complaint as an extraordinary cassation measure constitutes one of the most frequent reasons for refusal to proceed firther with a filed complaint.
In model terms, the Polish solution is unambiguous and clear-cut. It turns out, however, that this model - while clear in the theoretical sense - does not seem equally transparent in practice, since there exists an area of collision between the spheres of constitutional compatibility examination and of correct application of law. This area is marked by the scope of application of the so-called interpretation-related decisions, the essence of which consists in the recognition of constitutionality of a given regulation, however, under the condition of its specific understanding. When passing such decision, the Constitutional Tribunal relies on two premises: firstly, on the assumption of constitutionality of the regulation; secondly, on the principle of interpreting law in conformity to the Constitution, which in turn translates into an ever-present imperative of seeking - given several possible interpretation scenarios - such comprehension of the norm that can be reconciled with constitutional principles and values. Undoubtedly, the Tribunal thus enters the area of application of law, but - as has been emphasised in Constitutional Tribunal's jurisprudence - this should be exceptional, and cannot relate to regulations with a clearly defined format of interpretation in court jurisprudence and in doctrine. Briefly speaking, interpretation-related jurisprudence should not serve as a basis for the rejecting of such meaning of a legal regulation that had been formerly adopted, i.e. for the rejection of any previously adopted trends in jurisprudence. Undoubtedly, though, the intention of an interpretation-related decision is to make the relevant interpretation binding to courts, and to eliminate those options in interpretation which could lead to a conflict between law and constitutional principles and values. However, how does this relate to the constitutional complaint? An interpretation-related judgement adopting a different meaning of a given regulation than that formerly serving as a basis for the final decision in the source case for proceedings before the Constitutional Tribunal indeed means that in the appellant's case, law had been applied erroneously in proceedings prior to the complaint being filed with the Constitutional Tribunal, and thus the proceedings before the Constitutional Tribunal are an attempt at correcting such error rather than at eliminating such regulation as constitutionally incompatible. Such cases may be exceptional in nature, but have already occurred in judicial practice , and may signal of a breakthrough in the perception of the constitutional complaint as a measure serving the sole purpose of eliminating norms incompatible with the Constitution.
The consequence of such judgements is not fully transparent either, particularly with regard to the question whether such decisions may - as per Article 190 clause 4 of the Constitution - serve as a basis for retrial and annulment of any former final judgement which, based on unconstitutional interpretation, violated the appellant's rights. I am deeply convinced that - given the particular function of the complaint - more openness to such interpretation of Article 190 clause 4 (on retrial) is fully justified and compatible with the constitutional complaint logic.
The Up- and Downsides of Polish Constitutional Complaint Model
The above presented crucial problems, controversies and doubts concerning the Polish model of constitutional complaint seem to be supporting a statement that the applied solutions are rather difficult, and perhaps present too high an obstacle to the potential addressees of this instrument, willing to use it to defend their own rights and freedoms.
Statistics for the first years of the constitutional complaint in the judicial practice of the Polish Constitutional Tribunal may indeed be a cause for concern: although the impressive number of 526 constitutional complaints have been examined since the introduction of this instrument, only 26 judgements containing a meritorious response to accusations of unconstitutionality of laws have been passed; and of these as few as 9 contained solutions favourable to the appellants.
Additionally, we should bring up the lack of any direct results of such judgements in the area of the appellant's rights, since in light of the adopted model it will be necessary to re-institute proceedings to annul a former decision or judgement detrimental to the appellant. This frequently translates into a further complex and certainly time-consuming path before the judgement of the Constitutional Tribunal can be finally "consummated» in accordance with the appellant's interest. Such a scenario can be discouraging even to the most avid supporters of the constitutional complaint, as the perspective of reaching the desired goal seems to be fairly obscure and uncertain. In some respects, the path itself seems to be even more complicated than the filing of a complaint before the Human Rights Tribunal in Strasbourg, and in any case very similar with regard to the degree of difficulties (the necessity of exhausting all other legal measures available ). The advantage of filing a complaint with the Human Rights Tribunal, on the other hand, is the option of accusing domestic authorities of malpractice in their performance and of improper application of law as such, and thus not only the law itself.
Are we then facing an instrument of pure mirage, a counterfeit legal protection measure - or perhaps the complaint plays (or can play) a crucial role in the protection of rights and freedoms? In consequence, is the typical constitutional complaint model as applied in the European countries not a better and more effective solution, providing an opportunity for filing a complaint against the actual judgement or other decision flawed by erroneous and unconstitutional application of law?
Notwithstanding the above, it seems that the overall assessment of the Polish constitutional complaint model is not that negative, if all the actual functions of this legal instrument were to be recognised. In any legal system, the constitutional complaint has to remain a special and extraordinary measure. It goes without doubt that also in those legal systems where the constitutional complaint includes accusation of erroneous application of law, and therefore is potentially much broader, it has to be subjected to far-reaching selection during the introductory proceedings. It may be assumed that in the Polish system the selection criterion is applied by the legislator, whereas in other systems it depends more on the position of the constitutional court, on its greater or lesser openness, and on the overall focus on one or another scope of issues. In a certain sense, the Polish model thus restricts - potentially, at least - the field for arbitrariness in decision. In extreme contrast to this solution is the American model, by which the matter of case selection itself is always subject to a decision of the Supreme Court. Does this, however, ensure higher efficiency in the protection of constitutional rights? The tediousness of the Polish solution, stemming from the multiple levels of proceedings (the Constitutional Tribunal's judgement still needs to be followed by retrial) is - on the other hand - compensated by a more rapid examination of filed cases: the average time span of constitutional complaint proceedings ranges from 6 to 12 months, a relatively short period for a European constitutional court.
Selectivity and poor availability of constitutional complaint forms, in a sense, part of this legal instrument. In light of such features it will never become a commonly available and widely open measure of legal protection. The evaluation of this institution, however, should recongize the fact that the constitutional complaint has been introduced as an instrument for stimulating civic initiative in the forming of a proper legal system and of standards for a democratic state ruled by law, rather than as a measure of protecting a particular interest related to a specific violation of a right or freedom. This factor of general or public interest in the use of the constitutional complaint is of fundamental importance, and only considering this aspect can its sound assessment be performed. I am convinced that the Polish model, evaluated from this particular perspective, has been positively appraised. This institution is gradually making its way into the legal system, and one can be almost certain that in the not-too-distant future, proceedings instituted by the constitutional complaint will predominate in the judicial practice of the Constitutional Tribunal.
While commending the Polish model of constitutional complaint, one has to but notice its very serious flaw, namely the necessity for the appellant to pass numerous procedural stages before finally reaching the desired target, i.e. the elimination of the violation of a constitutionally guaranteed right or freedom. I believe that while retaining the fundamental elements of this model, it could be significantly simplified by enabling - at least in certain obvious situations - the Constitutional Tribunal to directly amend or annul the decision which had given grounds for filing the constitutional complaint. I am confident that a relevant legislative measure could be introduced with no need to amend the Constitution. The issue, however, is decidedly controversial.
And, finally, the last issue. There is a certain sensitive tension between the various courses which ultimately lead to the founding of a final judgement in a given case on a constitutional regulation. Undoubtedly one of such "methods» is the juridical question (Article 193 of the Constitution), which may be filed with the Constitutional Tribunal by the adjudicating bench deciding a specific matter, should they develop doubts as to the constitutionality of regulations recognised as the basis for such decision. Such method could, in a certain sense, act preventively towards the constitutional complaint, since the constitutional problem would thus be resolved at an earlier stage, that of court proceedings. To date, despite the broadly structured premises of juridical question and the admissibility of such question being filed by any adjudicating bench, this measure is applied only in an approximate dozen cases per annum. The direct application of the Constitution by the adjudicating court is an alternative to the juridical question. This measure cannot be excluded, under one condition, however, that the direct application of the Constitution (while provided expressis verbis in the Constitution itself, in Article 8 clause 2) will not lead to the refusal by the adjudicating court to apply the regulations of a valid statute. Such authority is reserved - according to the prevalent opinion - as an exclusive competence of the Constitutional Tribunal. The practice is at times somewhat different, and gives rise to serious concerns regarding the coherence and stability of the legal system. This has been confirmed in the famous judiciary dispute concerning remuneration, in which local courts applied a constitutional norm directly (Article 187 clause 2 on remuneration due to judges and reflective of the dignity of the office) in order to award judges higher remuneration than that provided for in statutory regulations .
A more general reflection lends itself in the summary. The permeation of the Constitution into the overall legal system, a certain "constitutionalisation» in the way of thinking about the law and its application, and the transfer of constitutional axiology onto the level of ordinary legislation - all constitute a true breakthrough in the functioning of law in Europe of the post-war period, and in our part of it - after 1989. However, this phenomenon carries certain negative implications which, in case of lack of judiciary self-restraint, lack of caution and prudence in the interpretation and application of law, and lack of self-control among judges, to say it directly - may open way for elements of anarchy in law, or jeopardise its solidity and stability at the very least.

��

�� , �� 1997�., �� .

� �� , �� . �� , �� : �� . �� . 3 ��. 188 ��, �� , �� . �� , � �� .

�� , �� , - �� .

�� , �� , - �� , �� . �� , �, �� , ��, �� , �� , ��.

�� , �� . �� 1 �� 1997 �� , �� , �� . � �� , �� , �� .

� �� , �� , �� . �� 2 ��.

�� - ��, �� , �� . �� , �� .

�� , �� . �� , �� .

�� , �� , - �� .

�� .

��-��, �� , �� , �� .

��-��, �� .

�� , �� , �� , �� .

�� , �� 526 �� 26 �� , � �� 9 �� .

�� , �� , �� , �� , �� .

� �� , �� . � � �� , �� , �� , � �� .