O FORMACH KONTROLI KONSTYTUCYJNOŚCI PRAWA PRZEZ SĄDY

Abstract

Decisions of the Constitutional Court (Trybunał Konstytucyjny), the Supreme Court and the Supreme Administrative Court have demarcated the admissible limits of control that courts may exercise over the constitutionality of law. Those limits are also guarantees of the integrity of competences of the Constitutional Court and a good example of different forms in which the Constitution may be directly applied. The most extreme views i.e. that under no circumstances is a court authorised to control (or supervise) the unconstitutionality of a given regulation/provision, or that it may do so in respect of each individual case, have been practically eliminated. Moreover, adoption of the latter view would have resulted in a refusal to implement and enforce e.g. a statutory provision, thus enabling direct application o f the Constitution. Taking as an example the jurisdiction of the Supreme Administrative Court, those admissible limits in which the constitutionality of laws may be controlled (and therefore the Constitution directly applied), being a peculiar compromise between the two extreme positions described above would be as follows: 1) regarding the constitutionality of a statute, the rule is that in case of doubt, a court is obliged to refer the matter to the Constitutional Court, unless: a) it is a case o f so-called secondary unconstitutionality of the provision b) the provision is clearly and explicitly unconstitutional; 2) regarding the constitutionality o f fundamental acts (ordinances), the long established opinion has been that courts may review their compliance with the Constitution in the course o f the matter under revision, with effect only for that particular matter. It is obvious that an alternative for each court shall always be a referral of the matter to the Constitutional Court rather than formulating an independent opinion on the unconstitutionality of an ordinance. This decision, however, shall always be made by the court in question.