LEGAL DISPUTE OVER THE JUDICIARY IN POLAND

ISBN: 978-83-66344-51-8

206 stron
format: B5
oprawa: twarda
Rok wydania: 2020

In addition to changes in both the Constitutional Tribunal and the National Council of the Judiciary, new legal solutions were adopted in Poland after 2016 also in relation to the Supreme Court and common courts. As a result of these changes new tools were established for asserting one‘s rights and freedoms (extraordinary appeal), addressing the demands that had long been made in doctrine to incorporate the so-called social factor in the judiciary.

We can hardly agree with the view that the totality of political changes that have taken place in Poland after 2015 has led to an infringement of the standard of a state ruled by law (rule of law). Likewise, we cannot accept the claim that the reforms have undermined the principle of divided powers. It should be stressed that, so far, this principle has been implemented in Poland very rigorously, in reality disregarding other complementary principles, i.e., the principle of cooperation of authorities and the principle of equilibrium. This is best seen in the Constitutional Tribunal‘s case law to date, which has actually ignored the principle of balanced powers. As believed by many representatives of the doctrine, this state of affairs, by maintaining the division, has in fact promoted imbalance. This was best illustrated by the case of the Constitutional Tribunal, which slowly but consistently has come to be the superior power. That led to a state-to paraphrase Mark Tuschnet‘s well-known statement-where the courts were strong but the laws were weak. The reforms undertaken, we should note, were also aimed at democratising (legitimising) the judiciary. Solutions were introduced to guarantee free legal aid to the least privileged, the principle whereby the social factor became part of administration of justice was made real. Also, a system of transparent allocation of cases to judges and disciplinary responsibility was introduced (however, in regard to the attribute of judicial independence and autonomy of courts, it is restricted to the judiciary). Further, we should note that respect for the rules of the state governed by law (rule of law) also guarantees the functioning of the Polish judicial system in the European legal space as well as the possibility to assert one‘s rights before European courts (within the EU and the Council of Europe).
from the Introduction

SPIS TREŚCI

Introduction
(Bogumił Szmulik, Jarosław Szymanek)

BOGUMIŁ SZMULIK, JAROSŁAW SZYMANEK
On the third power in the maze of theories of divided powers

BOGUMIŁ SZMULIK, JAROSŁAW SZYMANEK
The constitutional regulation of the judiciary in Poland

BOGUMIŁ SZMULIK, JAROSŁAW SZYMANEK
The constitutional principles of organisation of the judiciary in Poland

JAROSŁAW SZYMANEK
On the essence of political impartiality of courts and judges

JAROSŁAW SZYMANEK
On the elements building the political impartiality of judges

JAROSŁAW SZYMANEK
On the essence of disciplinary liability (the case of Belgian doctrine)

BOGUMIŁ SZMULIK, JAROSŁAW SZYMANEK
On the disciplinary liability of judges in Poland (before the reforms)

BOGUMIŁ SZMULIK
Amendments to acts on the National Council of the Judiciary and the Supreme Court as an attempt to meet demands for democratisation of the autonomous and independent judiciary in Poland

BOGUMIŁ SZMULIK
On the compliance of a draft law amending the Act on the National Council of the Judiciary and certain other acts with the Constitution of the Republicof Poland (Sejm Paper No. 1423)

BOGUMIŁ SZMULIK
On constitutionality of the reform of the National Council of the Judiciary

JAROSŁAW SZYMANEK
On the manner of appointing the National Council of the Judiciary in the context of its constitutional tasks

BOGUMIŁ SZMULIK
On the compliance of the Sejm deputies‘ draft law amending the Law on the Supreme Court (Sejm Paper No. 1727) with the Polish Constitution

BOGUMIŁ SZMULIK
On compliance of the draft Act of 20 July 2018 amending the Law on the system of common courts and certain other acts with the Constitution of the Republic of Poland

BOGUMIŁ SZMULIK
On the proposed new regulation of Article 107 of the Law on the System of Common Courts (disciplinary amendment)

BOGUMIŁ SZMULIK
On the consequences of the order of the Vice-President of the Court of Justice of the European Union of 19 October 2018 in the case C-619/18R