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.
Резюме
Рассмотрение конституционных
жалоб, предусмотренное Конституцией 1997г., открыло новую стадию в деятельности
Польского Конституционного Трибунала.
В своем докладе автор
выделил важные и актуальные проблемы, связанные с конституционной жалобой.
Одной из важных и трудных проблем является то, что в Конституции дается
очень широкая формулировка: каждый правовой акт может быть предметом конституционного
контроля на основе индивидуальной конституционной жалобы. Это формулировка
в принципе отличается от п. 3 ст. 188 Конституции, которая предусматривает
в качестве предмета конституционного контроля на основе конституционной
жалобы исключительно законодательство, принятое центральными государственными
органами. Это приводит к возникновению серьезных разногласий в вопросах
о допустимости конституционных жалоб, в которых оспариваются акты местных
органов.
Другой важный и интересный
вопрос, выделенный автором, - это осуществление на основании индивидуальной
жалобы контроля и по отношению к международным договорам.
Более сложную проблему
представляет из себя вопрос, который будет актуален в скором будущем,
- это вопрос о допустимости конституционных жалоб, оспаривающих право
сообществ. По этому вопросу еще ведутся споры, и, по мнению автора, те,
которые утверждают, что по конституционным жалобам можно оспаривать только
внутригосударственные акты, правы.
Другая проблема связана
с возможностью оспаривания конституционности акта, который больше не действует.
Согласно закону от 1 августа 1997 года “О Конституционном Трибунале”,
конституционный контроль не осуществляется по отношению к актам, потерявшим
свою силу. В следствие недавней поправки к этому закону, разрешается осуществление
конституционного контроля по отношению к актам, которые потеряли свою
силу до вынесения соответствующего решения.
В польской модели
конституционной жалобы неоспоримо то, что конституционная жалоба относится
только к тем нарушенным конституционным нормам, которые предусматривают
гарантии защиты фундаментальных прав и свобод. Фундаментальные права и
свободы перечислены в главе 2 Конституции.
Еще одна интересная
проблема - это, так называемая, небрежность законодателя как предмет индивидуальной
конституционной жалобы. Эта проблема нашла свое решение в конституционной
доктрине Германии, чего нельзя сказать о польской доктрине.
Важно отметить тот
факт, что Конституционный Трибунал ограничен рамками конституционной жалобы.
Автор уверен, что польская конституционная практика очень строга в этом
вопросе.
Самая характерная
черта польской модели конституционной жалобы, которая отличается от моделей
других стран, - это неприемлемость любой жалобы против неправильного или
неконстиуционного применения закона.
Польская модель имеет
два характерных преимущества.
Во-первых, польская
модель очень последовательна в том, что наделяет Конституционный Трибунал
полномочиями суда, который не рассматривает фактические обстоятельства
дела.
Во-вторых, проводится
четкое разграничение компетенций Конституционного Трибунала и обычных
судов.
Выше приведенные
практические проблемы, споры и сомнения относительно польской модели конституционной
жалобы подтверждают, что существуют большие препятствия для потенциальных
заявителей, которые хотят защитить свои права и свободы.
Согласно статистике
первых лет существования института конституционной жалобы в судебной практике
Конституционного Трибунала Польши, из 526 конституционных жалоб только
26 содержат положения о неконституционности законов, и только 9 из них
содержат благоприятные для заявителей решения.
Говоря о польской
модели конституционной жалобы, нельзя игнорировать проблему, которая состоит
в том, что заявители должны пройти через множество процедурных стадий
до окончательного достижения намеченной цели, то есть восстановления нарушенных
прав и свобод.
В некотором смысле
путь обращения в Конституционный Трибунал труднее, чем обращение в Европейский
суд по правам человека. И с другой стороны, преимущество подачи заявления
в Суд по правам человека состоит в том, что это в тоже время является
способом обвинения местных уполномоченных органов в незаконности их действии
и в ненадлежащем применении права как такового, а не только закона.
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