LECH GARLIZKY, WARSAW

1. The new Polish Constitution of 02.04.1997 has afforded the Constitutional Court (further: CC) a prerogative to solve the constitutional complaints. Those rulings of the Constitution have found a relevant expression in the new Law on CC of 01.08.1997, and after it enters into force (17.10.1997) there will be a possibility to file the constitutional complaint to CC. We still ignore the practical implementation of this procedure and its significance for the future judicial practice of CC and for the protection of the personal rights and freedoms. Therefore the notes to be cited below will be exclusively limited to the descriptions of the new Polish legal regulations and of the problems appearing against that background. As will be shown below, the Polish version of the constitutional complaint has a restricted nature, since a complaint can be filed only with regard to a legal decision.

 2. The institution of constitutional complaint is known to many constitutional courts of Western Europe (Germany, Austria, Spain, as well as Switzerland), it has also taken root in some «postcommunist» states (Czechia, Slovakia, Slovenia). It should not however be considered as an inalienable attribute of the contemporary constitutional court: It is sufficient to cite the examples of Italy or Portugal where this institution is non-existent.

 The concept of the «constitutional complaint» stands for a special legal instrument enabling an individual to apply to the constitutional court with a request to verify the final character of rulings and decisions endorsed by the bodies of public authorities, if those rulings and decisions, in plaintiff’s opinion, violate the rights guaranteed to him by the constitution. Three elements meanwhile are significant:

1. the one-time nature of a complaint as linked with a specific case and as being the right of each individual to enjoy the rights and freedoms guaranteed by the constitution.
2. restriction of the subject of complaint to the exclusive field of violated rights and freedoms having constitutional nature,
3. recognizing the constitutional court’s authority to solve complaints and attributing the mandatory character to this court’s decisions.

 The nature of a constitutional complaint as viewed from the position of legal society is directly associated with the specific character of the constitutional right proper. A complaint thus is not merely another instrument of cassation within everyone’s right to appeal a court decision. It should be defined as a «legal emergency operation» to be reverted to by an individual in case of his constitutional rights being violated. It follows that a constitutional complaint should be treated in the following ways:

1. a procedure of «superrevisions» of court decisions, inasmuch as the objective of procedural facts and of application of common law remains within the competence of general and administrative courts and cannot be subject to jurisdiction of constitutional court.
2. as a procedure of an abstract constitutional control, since a complaint can only be filed only by an individual whose legal situation has been directly concerned with a specific court decision or a ruling of an administrative authority. That means that a difference should not be disregarded between a constitutional complaint on the one hand, and a so-called actio popularis on the other hand. The latter enables each citizen to challenge the constitutionality of every regulation of the current law while requiring no reference to the relevant legal situation of the plaintiff.
3. In Poland the discussion on filing a constitutional complaint has been on since 1982, i.e., since introducing constitutional amendments conceiving the establishment of CC. However, a record on establishing this procedure in the Law on CC, 1985, failed to appear, which had resulted from the erstwhile trend to contain the role of CC. The contingency of a complaint being filed by a citizen directly by virtue of the institution of the Civil Rights Commissioner initiated in 1988, the nature of those complaints being restricted not only to the sphere of constitutional infractions. Within a very short time several score of thousand complaints were filed so that it took years to the Commissioner to sort them out. Currently, nearly a decade into the experience of the Commissioner’s office, it has become clear that it has gained weight in civil rights defense. It is also to be added that starting from 1980 Poland became a scene of operational administrative courts enabling judicial control to be made of each ruling issued by the administrative bodies.

 The enlisted procedures have however not been expanded after 1989, although the integrity of the doctrine did unambiguously require the establishment of the institution of the constitutional complaint. It has become possible only within the framework of developing the new constitution. What became obvious at once was a fundamental disagreement on the concept of constitutional complaint. There had been an initial intention to expand the functional range of a complaint, i.e. following the German practice, to admit complaints not only against legal regulations but also against their forms of application by the judiciary or administrative entities. A complaint against a legal regulation shows that the plaintiff does not dispute the relevancy of the court decision or administrative injunction, indicating that it had been carried out by virtue of the legal regulation contravening the constitution. The plaintiff thus demands to recognize this regulation to be unconstitutional, making it subject to cancellation with a subsequent emergence of the basis for revising the decision or judgment carried out in his case. As to the complaint against a decision, the plaintiff does not dispute the constitutional character of a legal regulation leading to the mentioned decision, he will rather impeach the court (administrative body) for using that legal regulation in a way contravening the constitution (i.e. using such an interpretation of the regulation that contradicted the constitution) or in violating the rights of the plaintiff (e.g. right of defense) in the course of the judiciary procedure. In this case, the effect of the complaint’s resolution is the invalidation of court decision or injunction and a sanction to the court or administrative body to retrial.

 This wide-range treatment of the constitutional complaint was primarily opposed by the Supreme Court indicating that it would make its judiciary practice dependent upon the control of Constitutional Court. That argumentation proved to be compelling to the politicians, so that recorded in the Constitution was a limited version of the constitutional complaint, since it can, as I have already noted, contain only a recrimination of a relevant legal regulation being unconstitutional.

 Another problem most vividly discussed while developing the constitutional draft, was establishment of the mechanisms restricting the overexcessive inflow of complaints into CC: there was an apprehension that its activities could be brought to a standstill. That gave rise to certain mechanisms enabling a preselection of complaints to be made and restricting their time range.

 4. According to Art. 79, Par. 1 of the Constitution, the subject of the right to file a constitutional complaint may be «anyone whose constitutional freedoms or rights have been violated». The operational range of the complaint is thus determined by the way certain rights and freedoms are interpreted in the Constitution.

 The right to file a complaint belongs primarily to the «citizens», since they are the exclusive subjects of all rights and freedoms defined by the Constitution. This right belongs to each citizen by virtue of the record in the Constitution, therefore a law written down below can not deny this right to any category of citizens (e.g. individuals staying in jails or those with their civil rights judicially withdrawn). The law printed below, however, can determine the way of effecting the right to complaint, e.g. on behalf of legally incompetent persons or minors.

 Enjoyment of a number of constitutional rights and freedoms is not exclusively restricted to the population group of citizens, therefore those rights are enjoyed by everyone located within the territory of the State of Poland. Within the limits indicated, the right to file a constitutional complaint is also enjoyed by citizens of foreign countries and stateless persons independent upon the status (legal or illegal) of their residence in the country.

 A question arises, whether the right to file a constitutional complaint also belongs to a legal person of private law. The answer is contingent upon whether the constitution yields any rights or freedoms whose subject may be a legal entity rather than only a physical person. The rights and freedoms of this kind can be indicated with regard to political parties, religious organizations or trade unions. One of the crucial issues is however a clarification: whether there exist the constitutional freedoms or rights which are attributed to economic activities. This will have to be clarified in the judiciary practice of CC. We do not however deem it possible to recognize the right of legal persons of public law to file constitutional complaints. This problem will most likely emerge with respect to the bodies of local self-government, however it should be borne in mind that the Polish entities of this type of self-government have under their disposal other procedures of direct access to CC.

 5. The basis for filing a constitutional complaint is: a) «violation» of b) «constitutional rights and freedoms» of the plaintiff, c) that took place in the final solution carried out by court or a public administration body, d) concerned with rights and freedoms or obligations of the plaintiff as defined in the Constitution (Art. 79, par. 1 of the Constitution).

 Taken as a reference point should be the category of «the final judgment» by a court or a body of state administration. The decision is «final» when, in order to be changed, the plaintiff is not entitled to use whatever legal means. The law on CC clarifies hereby that the filing of constitutional complaint can be done «after the institutional procedure has been exhausted» (Art. 46, Par. 1), therefore, if, e.g., the decision of the original trial becomes final resulting from non-filing a complaint, then the contingency of filing a constitutional complaint is lost. In the judicial process the requirement to the general courts of an exhaustive usage of the appellate procedure is to be understood as also embracing the appeal to the Supreme Court. However, it may seem that in the administrative process the preliminary filing of extraordinary revision is not mandatory, since it is not an element of «appeal procedure». A similar viewpoint suggests that the contingency of filing a constitutional complaint should not be made dependent on the preliminary use of complaint in the Strasbourg European Court of Human Rights.

 Secondly, a decision by court or a body of public administration should be concerned with constitutional rights and freedoms. Thus, not every violation of rights can be subject to complaint: it should invariably contain a violation of certain rights and freedoms dealt with in the Constitution. The inventory of those rights and freedoms is found primarily in Part II of the Constitution, there is no doubt that each of the rights and freedoms therein indicated is subject to protection within the procedure of constitutional complaint. The only exception, clearly shown in Art. 79 Par. 2 of the Constitution is the right for asylum (Art. 56). Hence, the substance of a constitutional complaint may be equally relevant both to the rights (freedoms) of personal or political, as well as economic or social nature. To be also reminded here is the difference of the constitutional injunctions on «social rights» from those defining the major trends of the activities of the State. Although the latter impose certain responsibilities upon the state entities, they lack reference to relevant directly specified rights on the part of an individual.

 The rights and freedoms may result from other constitutional injunctions: the constitutional complaint is not limited only to Part II of the Constitution, but they cover equally the whole text of the Constitution. In practice, a question may arise as to the way to define the standing of those rights and freedoms which despite having no verbal record in the constitutional text, still ensue from other injunctions of the Constitution. I can particularly point out Art. 2 of the Constitution («The Polish Republic is a legal democratic state implementing the principles of communal justice»). This statement (which in the past was in force as Art. 1 of the constitutional statements) yielded a number of regulations and principles to the judicial practice. Many of these rules and principles (e.g. the right to trial, to preservation of life) have presently found their distinct constitutional substantiation. Some, however, (e.g. a general interdiction of retroactivity) can even further be only evolved from the general clause on «a democratic legal state». CC will have to clarify, whether a violation of such rules and principles can be regarded as a basis for filing a constitutional complaint.

 Thirdly, constitutional rights and freedoms of the plaintiff must have been «violated». The legal regulations do not clarify the meanings of this concept, although there is no doubt that it requires an emergence of a special legal situation on the plaintiff’s side: so that a complaint could be filed only by individuals having in it their own substantiated legal interest. It is probably going to become an accepted judiciary practice of CC that a judiciary (administrative) decision should inadvertently affect the legal position of the plaintiff: to my mind, it will not be possible to file a complaint in a case when the decision, even based upon a non-constitutional regulation, is beneficial for the plaintiff. Further criteria will perhaps be defined to clarify the concept of «violation»; it is appropriate here to remind about the judiciary practice of the German CC requiring that the violation have the following nature: «personal» (the disputed decision must have a direct effect upon the plaintiff’s legal situation, action through third parties is not allowed), «actual» (the disputed decision must be relevant to the plaintiff’s legal situation existing at the moment of decision making, exposure to a situation of a potential nature is regarded as insufficient) and «direct» (the decision should produce a direct change of the plaintiff’s legal situation, rather than become a premise for adopting other acts and decisions which would produce such changes).

6. The subject of complaint can be not only a charge of «a law or another regulatory act» which has been used as a basis of decision in a given case. It should again be reminded that a complaint may refer only to a legal regulation per se, rather than to the method of its interpretation or application by a judiciary or administrative entity.

The benchmark requirement is that of relevancy: subject to complaint is only the regulation that had yielded the final decision in a given case. What we deal here with in principle is only the regulation which in the sentence of decision or injunction had been indicated as its basis. Revocation of other regulations does not seem possible except in the cases when the plaintiff proves that the substance of decision in his case would have been different had the said regulation been changed.

The revocation may be in relevance to every regulation of an arbitrary rank or type provided it is taken as a basis in the decision in this case. Obviously, more often than not we deal with the regulations contained in the laws, however, nothing can prevent a constitutional complaint being filed against an order, injunction, or even an international agreement.

The subject of denunciation can only be a disagreement with the Constitution. The statements of the law, however, do not provide a clear answer, whether a complaint can be based upon an allegation that the act under the law either contravenes the law or the law contravenes an international agreement, provided the effect of this contravention is the decision violating the constitutional rights of the plaintiff. Therefore, further on in the judicial practice of CC, there is going to be a problem demanding a resolution, if each case of violating the law in an act under the law is a violation of the constitution simultaneously (since the constitution prohibits publication of acts under the law that would contravene the law), and if each case of violating the international agreement is at the same time a violation of the constitution (since the constitution recognizes the ratified international agreements as more preferential than the laws).

Contravention to the Constitution may consist in contradiction of the content (substantive) between the injunctions of the law (another regulative act) and the injunctions of the Constitution, as well as in the violation of the procedure in adopting the law or another regulative act, or else in the disruption of the competent regulations (Art. 42 of Law on CC). Each of these charges can be entered into a constitutional complaint.

7. Since the subject under charge can be only the non-constitutionality of a regulative act, the process on a constitutional complaint is done with regard to the general principles on the procedure of regulatory control (Art. 46, par. 2 of the Law on CC). Meanwhile, however, there is an emerging need of a number of special regulative measures mostly aimed at counteracting an excessive inflow of complaints either obviously irrelevant or poorly prepared.

 In the first place, the Law on CC will determine the limit of time for filing the complaints (Art. 46, par. 1). This can take place only during two months since the day of delivery to the plaintiff of the legally valid verdict, final decision or another final resolution. This period has an interdictory nature, therefore, its renewal is possible only in exceptional cases, with regard to the relevant regulative statements of the civil procedural code (Art. 20 of the Law on CC). It should again be reminded that a condition for accepting a constitutional complaint is a preceding completion of the appeal procedure. Most essential for the abovementioned is the absence in the CC Law of any instructions relating to the period prior to coming into force of the procedure of constitutional complaint. Thus, the period of two months acquires a general character eliminating the contingency of filing complaints for the decisions that had come into force previously. This makes it impossible to file complaints for previous decisions, particularly those taken in the past with an unambiguous human rights violation. This is the way that will perhaps save the CC from being flooded with complaints about the events of the distant past, a situation, as I have already indicated, that the Civil Rights Commissioner’s office had to confront in the first years of its operation.

 The complaint has to be prepared by an attorney so as to secure a proper level of its presentation. If a plaintiff is in a constrained situation, he can apply for a lawyer or a jurisconsult (Art. 48, Law on CC). To file a complaint is chargeable, the amount of the charge is determined by the Council of Ministers (Art. 46, Par. 3, 4 of the CC Law). A constitutional law is subject to preliminary examination by the Constitutional Court made up of one judge (Art. 49 with reference to Art. 36 of the CC Law). This examination will first resolve the issue of a formal admission of the complaint. It should first be determined, whether the received application is a constitutional complaint: here the preliminary examination will be done by the Court staff who can, if needed, inform the plaintiff that the application shall not be further promoted. This will be done in a situation when the complaint is not dealing with the non-constitutionality of a regulative act, or when the subject of complaint is a violation of legal regulations other than the constitutional regulations determining the personal rights and freedoms. It is for the judge to establish if the complaint was filed in time and by an authorized person, as well as whether the complaint includes all necessary material elements (as required by Art. 47 of the CC Law). If the complaint has removable defects, the judge calls for the plaintiff to amend them within 7 days. If that is not done, the complaint is denied further promotion. It is also possible to deny promotion to a complaint which is «obviously unsubstantiated» (Art. 36, Par. 3 of CC Law), i.e., by estimating its substantial content. It can be assumed that the CC will use the mentioned procedure to gain an opportunity for careful examination of the remaining complaints.

 The plaintiff can file a protest against a CC decision to deny promotion to the complaint within 7 days including the day the CC decision was delivered to him. This protest has to be examined by a three-judge court (Art. 25, Par. 1 item 3b), and their decision about rejecting the protest is final (Art. 36, Par. 7 of CC Law).

 The recognition of complaint in the preliminary examination of the process means that the subsequent procedure will go according to the general procedural rules in the order of regulatory control. The participants of the process are (Art. 52 of CC Law): the plaintiff, the entity that carried out the decision under complaint, and the prosecutor general; also entitled to be a participant of the procedure is the Civil Rights Commissioner, since the CC’s responsibility is to inform the Commissioner on each lawsuit filed on a constitutional complaint (Art. 51, Par. 1 of CC Law). The authorization is carried by a court of five or three judges, depending on the ranking of the regulative act under consideration, and with issues of extraordinary complexity - by the Constitutional Court with a full panel of judges. The decision is issued following the termination of the court session, but, this contingency being reserved only to constitutional complaints, a complaint can be examined at a closed session, provided the written opinions of the participants unambiguously indicate that the regulative act contradicts the constitution (Art. 59, Par. 2 of CC Law).

 Filing a complaint does not entail a discontinuance of executing the decision under the complaint. The Constitutional Court can, however, issue a temporary ruling on deferral or discontinuance of execution of the said decision, provided such a decision could result in irrevocable consequences associated with a considerable damage to the plaintiff, or else if that is necessitated by a major public interest or another significant interest of the plaintiff (Art. 50, Par. 1 of CC Law).

8. The authorization of CC deals with the constitutionality of regulative act under the complaint (the regulation therein contained), therefore its aftereffect will go far beyond the constitutional complaint and the decision constituting the substance of this complaint. The CC authorization on a conflict with Constitution entails the forfeiture of the mandatory force by the regulative act (regulation) as of the publication date of this authorization, unless the CC will determine another term of forfeiture of the said mandatory force (Art. 190, Par. 3 of the Constitution). This authorization is a basis for the resumption of the process, cancellation of the ruling (or another authorization) by the principles and within the order conceptualized in the regulations of the relevant judicial procedure (Art. 190, Par. 4 of the Constitution and Art. 82 - 86 of the CC Law.

 By the same token, the authorization on non-constitutionality will deal not only with the plaintiff (who will be able to demand a resumption of the case or a cancellation of the ruling in his case) it will be extended to all other persons subject to a similar legal situation. All those persons, even those having not filed a constitutional complaints, will now be able to use the procedural contingencies mentioned in Art. 190, Par. 4 of the Constitution. As to the person of the plaintiff, the verdict recognizing the justice of the constitutional complaint, will rule in his favor to compensate the legal expenses in CC on account of the entity that issued a non-constitutional regulative act. In substantiated cases the CC can rule a compensation of procedural expenses even in a situation when the constitutional complaint has not been satisfied (Art. 24, Par. 2 of CC Law).