Andrzej Zoll Komentarz Pdf To Word
Mr Andrzej Zoll, Mr Janusz Kochanowski and Ms Irena Lipowicz. They also underline that the institution of the Polish Ombudsman is highly respected among its peers in Europe and beyond. It is considered today by many actors as a model national human rights institution, especially in terms of its independence and professionalism. PDF Editing is HERE! PDF Complete Office Edition 4.2 advanced features include: text editing, exporting to Microsoft Word, inserting digital signatures, OCR smart scanning, page manipulation capabilities, adding comments, annotations, and text redacting.See the full list of features. PDF Complete Products.
Discover all that is hidden in the words on. Polish words that begin with ry. Polish words that begin with r.Meaning of “rybi” in the Polish dictionary. Examples of use in the Polish literature, quotes and news about weredyk.
11 Andrzej Zoll, Prawo do dobrej administracji / Right to Good Administration, introduction to the European. Komentarz /Code of Administrative Proceedings.
Andrzej wojtas droga wojownika pdfUnited Nations Publications, Purchase includes a free trial membership in the publisher’s book club where you can select from more than a million books without charge. Educalingo cookies are used to personalize ads wojowinka get web traffic statistics.Load a random word. Synonyms and antonyms of weredyk in the Wljownika dictionary of synonyms. Mysle ze sklep warzywny, rybny lub cukiernia mialaby wiekszy sens. Proponuje ten zwyczaj rozszerzyc Discover all that is hidden in the words on.
Andrzej wojtas droga wojownika pdfPolish words that begin with we. Przejechalem w sobote km.We also share information about the use of the site with our social media, advertising and analytics partners. Synonyms and antonyms of rybi in the Polish dictionary of synonyms. They got booms in place, they’re taking out the asphalt and by the end of the day it should be all cleaned up, receded,” said Weredyk. Weredyk to sztuka nie tylko przykra, ale pesymistyczna i ponura. Volunteers had to break holes through the ice just to drop Do wytwarzania piwa firma wykorzystuje teraz klej rybi.Only about half of the stops were accessible. Powodem jest N-tlenek trimetyloaminy ang.
Examples of use in the Polish literature, quotes and news about rybi. Grom – CanadaAnxrzej jedyni ludzie wraz z Polish words that begin with wer. In the proceedings of the Hungarian Government against the Sroga of Galicia, Nikorowicz stated, in his rebuttal of 13 September”hodie linea granicialis inter Scepusium et Galiciam penes montem Rybi Staw cum fluvio Bialka Polish words that begin with ryb. Officer Eric Weredyk emphasized, “There’s a process Nie powiem “a dobrze mu tak” ale to pewnikiem za ten lancuch.Krzysztof Rybi “ski ekonomista i publicysta, w latach wiceprezesNBP.
.AbstractThe report outlines the Polish constitutional culture and explores the interaction with EU and international law before the 2015–2018 illiberal turn in the country. The report recalls that the Communist Constitution had been political and its observance was fictional. After the transition in 1989 and in the new 1997 Constitution, emphasis was on the direct application of constitutional provisions, the rule of law principle, the democratic and social state, a broad catalogue of rights and freedoms with the precise permissible grounds for their limitation, as well as institutional guarantees and judicial procedures against violations of those rights and freedoms. The Constitutional Tribunal carried out stringent review of legal provisions. The main grounds for declaration of unconstitutionality were violation of the rule of law, the right to a fair trial, the principle of proportionality and exceeding powers delegated to the executive. The Constitutional Tribunal also exercised review over EU and international treaties and measures implementing EU law.
Although the Constitutional Tribunal stated that the Constitution was the supreme law of Poland, it respected the autonomy of EU law and the competences of the ECJ, adopting the approach of a consistent interpretation of Polish law with EU law. Some key examples of the case law include constitutional challenges regarding the Accession Treaty, the Brussels I Regulation, the European Arrest Warrant (EAW) and the ESM Treaty.
The EAW judgment led to a constitutional amendment allowing the surrender of Polish citizens under certain circumstances. The conditions and grounds for limitation of rights are more restrictive than in EU law.
Keywords The Constitution of Poland Constitutional provisions regarding EU and international co-operation The Polish Constitutional Tribunal Constitutional review The rule of law, fundamental rights and their limitation Constitutional safeguards and judicial review The principles of proportionality, legal certainty and legitimate expectations Defence rights, presumption of innocence Constitutional review of EU law Accession Treaty European Arrest Warrant ESM Treaty International extradition treaties Referendum. 1.1.2Compared to other European constitutions, the Polish Constitution is quite long.
It is composed of a preamble and 13 chapters, including 243 articles. The legal commentary explains this unique feature as a consequence of seeking the widest possible democratic compromise during the creation of the basic law.The Polish Constitution contains provisions proclaiming the sovereignty of the Nation and the organisation of the State, as well as provisions limiting the power of public authorities by protecting the constitutional rights and freedoms, the rule of law and the separation of powers with due checks and balances. Chapter I entitled ‘The Republic’ contains provisions regarding the principle of a democratic state ruled by law (Art. 2), the principle of sovereignty of the Nation (Art. 4), the independence and territorial integrity of the state (Art. 5), the principle of legality (Art. 7), the principle of separation and balance between the legislative, executive and judicial powers (Art.
10), political pluralism (Art. 11) and the decentralisation of public power (Art. 15).Having in mind the negative experience regarding the Constitution of 1952, the founders of the current Constitution gave priority to the provisions concerning human and citizens’ rights and freedoms as well as the ways to protect them, placing them before the provisions on the functioning of the state and its organs. On the one hand, such solution proves that the state authorities have a subsidiary role in relation to the individual, and on the other hand it creates the highest guarantee and respect for individual rights and freedoms.
Chapter II contains provisions devoted to general principles (Arts. 30–37), personal freedoms and rights (Arts. 38–56), political freedoms and rights (Arts. 57–63), economic, social and cultural freedoms and rights (Arts. 64–76), means for the defence of freedoms and rights (Arts. 77–81) and obligations (Arts. 82–86). Provisions concerning rights and freedoms of the individual are also found in the Preamble, and in Chapters I, IV and XI. It must be concluded that such provisions account for more than 25% of the Constitution.Further chapters of the Constitution concern sources of law (Chapter III), the Parliament ( Sejm) and the Senate (Chapter IV), the President of the Republic (Chapter V), the Council of Ministers and government administration (Chapter VI), local government (Chapter VII), courts and tribunals (Chapter VIII), organs of state control and for defence of rights (Chapter IX), public finances (Chapter X), extraordinary measures (Chapter XI) and amendment of the Constitution (Chapter XII). 1.2 The Amendment of the Constitution in Relation to the European Union. 1.2.1The Agreement establishing an association between the European Communities, its Member States and Poland (Europe Agreement) was signed in December 1991.
Among various issues discussed in the course of preparatory work on the new Constitution was the so-called ‘integration clause’ or ‘European clause’ concerning the transfer of competences to international organisations and forming a legal basis for future accession to the European Union. The integration clause was included as Art.
90(1) in the Constitution of 1997. Article 90 is contained in Chapter III of the Constitution entitled ‘Sources of Law’. The discussion on the drafting of the provision concerned phrases such as ‘supranational organisation’, ‘transfer of the exercise of the competences’ and ‘public organs’. Finally the expressions ‘international organization or international organ’, ‘transfer of competences’ and ‘organs of State authority’ were used.
It must be emphasised that the Polish word ‘ przekazanie’, used in Art. 90(1) of the Constitution may be translated alternatively as ‘transfer’, ‘delegation’ or ‘conferral’ of competences.According to Art. 90(1) of the Constitution, ‘the Republic of Poland may, by virtue of international agreements, transfer to an international organization or international institution the competence of organs of State authority in relation to certain matters’. The procedure concerning ratification of such an agreement is specified in Arts. 90(2)–(4) of the Constitution.
A statute granting consent for ratification of the agreement may be adopted by a two-thirds majority vote of the Sejm (lower chamber of the Polish Parliament) and the Senate or approved in a nationwide referendum. The resolution in respect of the choice of procedure for granting consent to ratification (by Parliament or national referendum) shall be taken by the Sejm by an absolute majority vote taken in the presence of at least one-half of the statutory number of Deputies. Accordingly, the ratification of international agreements concerning transfer of competences requires greater democratic legitimacy granted by the Parliament, or by the Nation, than other international agreements specified in Art.
89 of the Constitution (see Sect. To date, the procedure specified in Art. 90 of the Constitution has been used twice, in both instances in relation to the European Union. Consent for ratification of the Accession Treaty signed in Athens on 16 April 2003 was given in a national referendum held on 7 and 8 June 2003 by 77.45% of voters. In accordance with the result of the referendum, the President ratified the Accession Treaty on 23 July 2003. Consent for ratification of the Lisbon Treaty was given by the Sejm and the Senate with a two-thirds majority vote and ratified by the President on 10 October 2008.During preparatory work for the new Constitution, the provisions concerning the position of primary and secondary EU law within the system of sources of law applicable in the territory of Poland were also discussed.
The drafters of the Constitution decided that the main sources of primary law – the EU Treaties – shall not be distinguished from other ratified international agreements in the Polish legal system (Arts. 91(1) and (2) of the Constitution). After promulgation, an international agreement constitutes part of the domestic legal order and applies directly, unless its application depends on the enactment of a statute. If such an agreement is ratified upon prior consent granted by a statute, in the case of a conflict of norms, the agreement has precedence over statutes (see Sect. As for secondary EU law, Art. 91(3) of the Constitution states that ‘if an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws’. In the course of parliamentary drafting work, Deputies and Senators opted not to establish the precedence of EU secondary law over ‘norms of national law’ (including the Constitution), in favour of ‘statutes’.Since its adoption, the Constitution of 1997 has been amended only twice. The amendment of 8 September 2006 was directly related to membership in the European Union and concerned the prohibition of the extradition of Polish citizens provided in Art. 55(1) of the Constitution.
The Constitution was amended in order to give effect to Council Framework Decision 2002/584 on the European Arrest Warrant (see Sect. 1.2.2Poland’s Constitution is considered to be a ‘rigid constitution’ because the process of amendment prescribed in its Art. 235 is detailed and requires political consent. A bill to amend the Constitution may be submitted by at least one-fifth of the statutory number of Deputies, the Senate or the President.
A bill to amend the Constitution shall be adopted by the Sejm by a majority of at least two-thirds of votes in the presence of at least one-half of the statutory number of Deputies, and by the Senate by an absolute majority of votes in the presence of at least one-half of the statutory number of Senators. If a bill to amend the Constitution relates to the provisions contained in Chapters I, II or XII, all subjects authorised to submit the bill may require, within 45 days of the adoption of the bill by the Senate, that a confirmatory referendum be held. Such amendment of the Constitution shall be deemed to be approved if the majority of persons voting in the referendum express support for the amendment. The President shall sign the statute within 21 days of its submission and order its promulgation in the Journal of Laws of the Republic of Poland.The amendment concerning Art. 55(1) of the Constitution related to Chapter II of the Constitution.
It was adopted by a two-thirds majority of the Deputies and by an absolute majority of the Senators. A confirmatory referendum was not required. 1.2.3The direct reason for the amendment of Art. 55(1) of the Constitution was the judgment of the Constitutional Tribunal relating to the European Arrest Warrant (EAW). The aforementioned provision originally stated that ‘the extradition of a Polish citizen shall be forbidden’. The Constitutional Tribunal decided that Art. 607t§1 of the Code of Criminal Procedure, to the extent that it permitted surrender of a Polish national to a Member State of the European Union, was inconsistent with Art.
55(1) of the Constitution. The Tribunal analysed whether there was any difference between ‘extradition’ ( ekstradycja), within the meaning of Art. 55(1) of the Constitution, and ‘surrender’ ( wydanie, przekazanie) used in the EAW Framework Decision.
Different views were presented in the legal literature. The Tribunal stated that the essence (core) of extradition lies in the transfer of a prosecuted or sentenced person for the purpose of conducting a criminal prosecution or executing a penalty imposed against them. The surrender of a prosecuted person on the basis of an EAW is in essence the same. Accordingly, it should be viewed as a particular form of extradition. The Tribunal pointed out that considering Poland’s obligations as implied by EU membership, it is essential that the applicable law be changed such as to enable full implementation of Framework Decision 2002/584. 1.3.2The most comprehensive interpretation of Art.
90(1) of the Constitution was presented by the Constitutional Tribunal in the European Stability Mechanism (ESM) case, where the Court stated that the essence of Art. 90 is to provide a guarantee for the sovereignty of the Nation and the state by providing formal restrictions to the transfer of competences vested in the organs of state authority. The transfer of competences is admissible under the following conditions: (1) the transfer is to an international organisation or organ; (2) the competences relate to certain matters and (3) consent is granted by the Parliament or alternatively by the sovereign acting by way of a nationwide referendum. This triad of constitutional restrictions must be preserved in order to maintain the conformity of the conferral with the Constitution. Taking into consideration its previous jurisprudence as well as views presented in legal commentaries, the Tribunal stated that Art. 1.3.4According to Art. 8(1) of the Constitution, ‘the Constitution shall be the supreme law of the Republic of Poland’.
This principle is also upheld by Art. 91 of the Constitution that determines the position of primary and secondary EU law within the system of sources of law applicable in the territory of Poland (see Sect. The most comprehensive interpretation of the supreme role of the Constitution over European Union law was presented in the judgment concerning the Treaty of Accession. The Constitutional Tribunal stated that given its supreme legal force, the Constitution enjoys primacy within the territory of the Republic of Poland. If an irreconcilable inconsistency were to appear between a constitutional norm and an EU norm, such a collision could in no event be resolved by assuming the supremacy of the EU norm over the constitutional norm. Furthermore, such collision could not lead to a situation where a constitutional norm loses its binding force and is substituted by an EU norm, nor could it lead to the application of the constitutional norm restricted to areas beyond the scope of EU law. This view was upheld by the Constitutional Tribunal in its judgments concerning the Lisbon Treaty and the Brussels I Regulation.The principle of interpreting domestic law in a ‘Europe-friendly’ manner is clearly phrased in the case law of the Polish Constitutional Tribunal. However, there are limits to such interpretation and they result from the supreme power of the Constitution.
In particular, the norms of the Constitution within the field of individual rights and freedoms indicate a minimum threshold which may not be lowered or questioned as a result of EU provisions. Undoubtedly, a ruling declaring the non-conformity of EU law with the Constitution should be an ultima ratio and ought to be delivered only when all other ways of resolving a conflict between Polish norms and the norms of the EU legal order have failed. In the event a ‘Europe-friendly’ interpretation is not possible, the Nation as the sovereign or an organ of state authority authorised by the Constitution to represent the Nation would need to decide to either amend the Constitution, seek modifications to the EU provisions or, ultimately, initiate Poland’s withdrawal from the European Union.The Brussels I judgment of the Polish Constitutional Tribunal was the first case in which the constitutional court of an EU Member State directly reviewed the constitutionality of secondary EU law and issued a ruling on the merits.
The Constitutional Tribunal adjudicated that Art. 41, second sentence, of the Brussels I Regulation (Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) was consistent with the right to a fair hearing and the equal rights of parties to court proceedings (Art. 45(1) in conjunction with Art. 32(2) of the Constitution). The admissibility of such control was closely related to the type of constitutional proceedings commenced by way of a constitutional complaint submitted by an individual (substantial review of norms). According to Art. 79(1) of the Constitution, an individual may in a constitutional complaint challenge the conformity of a statute or other normative act (forming a basis for the court’s judgment in his or her case) with the Constitution.
According to the Constitutional Tribunal, ‘normative act’, within the meaning of Art. 79(1) of the Constitution, includes not only normative acts issued by one of the organs of the Polish state, but also – after fulfilling further requirements – legal acts issued by an organ of an international organisation. In view of the Tribunal, the regulation specified in Art. 288 TFEU may be regarded as a normative act within the meaning of Art. 79(1) of the Constitution. Allowing for the possibility of examining the conformity of EU secondary legislation with the Constitution, the Tribunal emphasised the need to maintain due caution and restraint in that regard, because of the principle of sincere cooperation referred to in Art. 4(3) TEU (see Sect.
The judgment in case ref. SK 45/09 opened a wide debate as to the limits of control of EU secondary law by the Constitutional Tribunal.
In the opinion of one group of authors, the Tribunal has no competence to control EU secondary law and should discontinue any such pending proceedings. The courts of the European Union have exclusive jurisdiction in that respect.
By contrast, the authors belonging to another group share the view that the limits of control are determined by constitutional norms, as well as EU law. The Tribunal has competence to control EU secondary legislation (normative acts) only where the Constitution explicitly refers to the review of normative acts (i.e. Within the framework of a constitutional complaint or questions of law referred by national courts).
By virtue of the limitations imposed on the constitutional complaint procedure, the Tribunal would not be able to examine whether a given act was ultra vires, i.e. Whether it was within the scope of competence conferred by Poland on the EU. If, however, an ultra vires action resulted in an infringement of Polish constitutional rights and freedoms, the complaint would have to be considered admissible. The Tribunal has no jurisdiction to declare that the acts of EU institutions are invalid.
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However, as other national courts, the Tribunal may consider the validity of an EU act. In case of doubt, it should ascertain the content of the norms of EU secondary legislation which are subject to review. This may be achieved by referring questions to the ECJ for a preliminary ruling, pursuant to Art. 267 TFEU, as to the interpretation or validity of provisions that raise doubts. It is also worth mentioning that one of the proposals concerning amendment of the Constitution submitted by a group of Sejm Deputies in November 2009 postulated the competence of the Constitutional Tribunal to adjudicate the conformity of secondary EU law with the Constitution (new Art.
Legal experts unanimously held that such amendment would be incompatible with EU law (see Sect. 1.4 Democratic Control1.4.1 The participation of the national parliament in EU decision-making processes is regulated in the statute of 8 October 2010 on cooperation of the Council of Ministers with the Sejm and the Senate in matters related to the membership of the Republic of Poland in the European Union (hereinafter Cooperation Act). It takes into account the provisions of the Treaty of Lisbon that strengthened democratic legitimacy within the EU. Cooperation between the executive and legislative powers covers five main areas: adoption of EU law and revision of the Treaties, adoption of national acts implementing EU law, lodging of complaints with the ECJ concerning breaches of the principle of subsidiarity by an EU legislative act, expressing opinions on candidates for certain posts in the EU and the participation of the representatives of the Polish Council of Ministers in the Council. 1.5.1–1.5.2The EU amendment to the Polish Constitution of 1997 is limited in its scope (see Sect.
The reason behind such disposition is the dispute about the necessity and scope of such amendments and the difficulty of the amendment procedure (see Sect. ), especially in the Sejm where at least two-thirds of votes in the presence of at least one-half of the statutory number of Deputies is required. It is very difficult to obtain a political consensus between the governing coalition and the opposition (which mainly consists of Eurosceptics). The experts share the view that the Constitution in its present state allows Poland to fulfil its obligations arising from membership in the European Union. However, in view of the future accession of Poland to the eurozone, the Constitution requires amendments concerning the position of the National Bank of Poland and the Council for Monetary Policy (see Sect.
At present there is no political consensus for such an amendment. 1.5.3The role of national constitutions in a context where power is increasingly exercised at supranational and global level is still fundamental. The authors of the present contribution share the view expressed by the Constitutional Tribunal in the Lisbon Treaty case that ‘the EU Member States retain their sovereignty due to the fact that their constitutions, being manifestation of the state’s sovereignty, maintain their significance’. The need for amendments depends on the wording of the given constitution, the constitutional traditions of the particular state and its political situation. The Polish Constitution is characterised by openness towards the European Union. 2 Constitutional Rights, the Rule of Law and EU Law. 2.1.1Chapter I of the Constitution entitled ‘The Republic’ ( Rzeczpospolita) expounds the systemic principles that serve as the foundation of the Polish constitutional system (see Sect.
One of the most important principles is contained in Art. 2 of the Constitution, which states that ‘the Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice’ (see Sect. The Constitutional Tribunal has derived a number of general principles of law such as legal certainty, protection of acquired rights, protection of legitimate expectations, proportionality, non-retroactivity of law and sufficient vacatio legis from this clause. The Constitution also enshrines other general principles of law, such as subsidiarity (Preamble), legality (Art.
7), proportionality in limitation of rights and freedoms (Art. 31 (3)), nullum crimen sine lege, nulla poena sine lege and the non-retroactivity of criminal law (Art.
42(1)).Personal, political, economic, social and cultural freedoms and rights are contained within the comprehensive Chapter II entitled ‘The Freedoms, Rights and Obligations of Persons and Citizens’. The most fundamental principle is contained in Art.
30 of the Constitution, which states that ‘the inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities’. In drafting these provisions the founders of the Constitution were inspired by the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, the International Covenant on Economic, Social and Cultural Rights of 1966 and the European Convention on Human Rights of 1950 (ECHR) as well as the constitutions of other states.Rights and freedoms are enforceable in courts, unless the Constitution provides otherwise. According to Art. 77(2) of the Constitution, statutes shall not bar recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights. Institutional guarantees for the protection of rights and freedoms are specified in Chapter II of the Constitution. These include the right to a fair trial (Art.
45(1)), the right to compensation for any harm done by any action of an organ of public authority contrary to law (Art. 77(1)), the right to appeal against judgments and decisions made at first instance (Art. 78), the guarantee of at least two-stage court proceedings (Art. 176), the right to submit a constitutional complaint to the Constitutional Tribunal (Art. 79) and the right to apply to the Commissioner of Human Rights (Ombudsman) (Art.
Specific limitations are provided for in Art. 81 of the Constitution enumerating economic and social rights and freedoms that are enforceable only within the limits specified in a statute (minimum level of remuneration for work, full and productive employment, aid to disabled persons, consumer protection, ecological security and environmental protection). 2.1.2Article 31(3) of the Constitution provides the conditions under which limitations can be imposed upon the exercise of constitutional freedoms and rights.Commentators point out that the general limitation clause provided in the Polish Constitution is stricter than the limitation clause provided in Art. 52(1) of the EU Charter of Fundamental Rights (the Charter). Limitations to constitutional rights and freedoms must meet the following cumulative conditions: may be specified only by statute, must be necessary and must have one of only six particular aims enumerated in Art.
31(3) of the Constitution:Article 31(3). 2.1.3According to Art. 2 of the Constitution, the Republic of Poland shall be a democratic state ruled by law.
This provision enacts a constitutional principle equivalent to the rule of law or Rechtsstaat. It was introduced in December 1989 as an amendment to the Constitution of 1952. The Constitutional Tribunal has derived a number of principles of law from this clause, which also remained valid under the Constitution of 1997 (see Sect. Article 2 of the Constitution and specific principles derived from the rule of law are frequently used by the Constitutional Tribunal, common and administrative courts in exercising judicial review. The constitutional provision in question is treated as lex generalis.
In most cases the courts invoke more specific provisions aimed at the protection of rights and freedoms. According to the jurisprudence of the Constitutional Tribunal, Art. 2 of the Constitution may not form the sole legal foundation for a constitutional complaint submitted by an individual contesting the validity of a legal norm, if the Constitution provides for more specific provisions guaranteeing the protection of rights and freedoms.The Constitution of 1952 did not contain guarantees for the protection of rights and freedoms such as the right to a fair trial.
After the amendment of 1989, the Constitutional Tribunal inferred the right to access to a court from the principle of the rule of law. The Constitution of 1997 contains a special provision in Art. 45(1) which stipulates that ‘everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court’. 2.3.1.1According to Art. 42(3) of the Constitution ‘everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court’. A restatement of this principle is found in Art. 5 of the Code of the Criminal Procedure, which additionally stipulates that ‘unresolvable doubts shall be resolved in favour of the accused’.As mentioned in Sect., the Constitutional Tribunal in the EAW case decided that Art. 607t§1 of the Code of Criminal Procedure that allowed the surrender of a Polish national under the EAW was inconsistent with Art. 55(1) of the Constitution.
Article 55 of the Constitution was amended in September 2006 in order to give effect to Framework Decision 2002/584. Three additional reasons for mandatory refusal of the execution of an EAW that are not provided for in Framework Decision 2002/584 but are aimed at the protection of Polish citizens were introduced in paras. 2 and 4 of Art. 55 Constitution. These are: the principle of territoriality, the requirement of double criminality and the principle of protection of rights and freedoms of persons and citizens.
Accordingly, the Polish Constitution and Art. 607p(1)–(5) of the Code of Criminal Procedure provide grounds for refusal to execute an EAW if this would ‘violate rights and freedoms of persons and citizens’. The dominant scholarly view is that the provision should be interpreted broadly and ought to comprise the rights which are guaranteed by the provisions of acts of international law that bind Poland, as well as the rights and freedoms protected by the Constitution.The issues of presumption of innocence, the right to defence and the right to a fair trial arose before the Constitutional Tribunal in a case concerning a Polish citizen accused of rape and assault in the city of Exeter in the UK in July 2006. The Polish court decided to surrender the accused on the basis of an EAW issued by the British court under the condition that he would be transferred to Poland to serve his sentence.
In June 2007, the accused filed a constitutional complaint, challenging the constitutionality of certain provisions of the Code of Criminal Procedure, insofar as they allow for the surrender of a person, even if it has not been determined that it is probable that the alleged offences have been committed by the person who is the subject of the EAW.The Constitutional Tribunal stated that, on the basis of Art. 607p(1)(5) of the Code of Criminal Procedure, it should be possible to refuse to execute an EAW in cases where it is obvious for the court adjudicating on the execution of the warrant that the person who is the subject of the warrant has not committed the act on which the warrant is based. Such a decision may arise from findings made on the initiative of the person who is the subject of the EAW, his defence counsel, the prosecutor as a party to the proceedings, as well as findings made on the initiative of the court adjudicating on the execution of the warrant, or from findings arising from the facts which are known the court. At the same time, the Constitutional Tribunal emphasised that this position should not be regarded as tantamount to allowing the court adjudicating on the execution of the EAW to carry out detailed proceedings to receive evidence with regard to the guilt of the person who is the subject of the warrant. In the case of surrender to another EU Member State on the basis of an EAW, the level of confidence in the legitimacy of the request for surrender should be higher than in the case of surrender on the basis of a ‘classic’ extradition request to another state which is not necessarily bound by at least the minimum level of guarantees provided by the ECHR.2.3.1.2 A court that receives an EAW-based request for surrender ‘shall decide on the surrender and provisional detention at a hearing in which both a public prosecutor and defence counsel may participate’ (Art.
607l§1 Code of Criminal Procedure). This provision does not mention the person indicated in the EAW. However, the dominant view in the legal literature is that exclusion of the person concerned from the hearing where the court decides on surrender or provisional detention would violate the right to a fair trial contained in Art. 45(1) of the Constitution and Art. 6 of the ECHR. In practice, the courts grant the person indicated in the EAW a right to be heard even if the warrant is not accompanied by a request to interrogate the prosecuted person.Polish courts present a somewhat restrained approach towards arrest warrants concerning Polish citizens. They consider the requirements specified in Art.
607p and Art. 607r of the Code of Criminal Procedure concerning grounds for mandatory or optional refusal to execute an EAW. According to the jurisprudence of the Supreme Court, they may also consider whether the warrant has been issued by a competent judicial authority and whether it contains the elements which are essential for declaring it to be in compliance with the formal requirements. A review may not, however, lead to substantive adjudication of whether there exist sufficient grounds for the execution of the warrant.
In some cases the courts decide to surrender the accused under the condition that he/she will be transferred to Poland to serve his/her sentence (see Sect. ).In 2014, the Ombudsman formulated an official request to the Supreme Court to adjudicate if the issuance of an EAW may in itself form a sufficient basis for a domestic court to decide on the provisional detention of an accused person without analysing any further evidence. The Ombudsman had received a significant number of complaints from citizens alleging that in such cases Polish courts apply provisional detention automatically without examining any evidence. One of the major arguments against this practice was the presumption of innocence of a person indicated in an EAW. In its order of 26 June 2014, the Supreme Court responded that domestic courts must not examine evidence forming the basis for the issuance of an EAW.
However, a refusal to decide on provisional detention may be based on the statutory grounds for refusal to execute the warrant, e.g. Violation of the rights and freedoms of persons specified in Art. 607p§1(5) of the Code of Criminal Procedure. The Supreme Court rejected the view of the Ombudsman that a decision on the provisional detention of a person indicated in an EAW violates the presumption of innocence guaranteed by Art. 42(3) of the Constitution. According to the Supreme Court, provisional detention is only a preventive measure, and the accused shall be presumed innocent until his guilt is determined by the final judgment of a court. 2.3.2 Nullum crimen, nulla poena sine lege.
As specified in Sect., the amendment to the Constitution of 2006 introduced an additional requirement of double criminality in Art. 55(2) that was not provided for in Framework Decision 2002/584. Consequently, the extradition of a Polish citizen may be granted provided thatthe act covered by a request for extradition constituted an offence under the law in force in the Republic of Poland or would have constituted an offence under the law in force in the Republic of Poland if it had been committed within the territory of the Republic of Poland, both at the time of its commitment and at the time of the making of the request.Article 607w of the Code of Criminal Procedure abolishes the rule of double criminality for 32 offences only in respect to non-Polish nationals. Therefore, if an arrest warrant concerns a foreigner, the fact that an act is not a criminal offence according to Polish law does not prevent the warrant from being executed, if it concerns an act punishable in the issuing state by a penalty of at least 3 years of imprisonment and constitutes one of the 32 types of offences. The requirement of the rule of double criminality for acts committed by Polish citizens constitutes an incorrect implementation of Framework Decision 2002/584. This issue has been pointed out by legal experts in the course of legislative work on the amendment of Art. 55 of the Constitution as well as in the legal commentary on the subject.
The European Commission has also indicated that this contradicts the Framework Decision.It has also been pointed out that Art. 607w of the Code of Criminal Procedure merely enumerates types of offences and contains imprecise and even ambiguous phrases. The crimes are not defined either in Art. 2(2) of Framework Decision 2002/584 or in the Code of Criminal Procedure, and thus the qualification of certain criminal acts may be seriously impeded. 2.3.3 Fair Trial and In Absentia Judgments2.3.3.1 Article 45(1) of the Constitution stipulates the right to a fair trial that covers the right to a proper court proceeding which complies with the requirements of a fair and public hearing. It must be emphasised that the right to a fair trial may be subject to the limitations provided by Art. 31(3) of the Constitution (see Sect.
).According to Art. 479§1 of the Code of Criminal Procedure, ‘if an accused person upon whom a summons has been served, fails to appear at the main trial, the court may conduct the proceedings in the absence of the accused and, if his defence counsel also fails to appear, the court may render a judgment by default’. A judgment by default shall be served upon the accused.
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Within seven days, the accused may file an objection to the judgment by default, in which he should provide a statement of the reason for his failure to appear at the trial (Art. With the transposition of Framework Decision 2009/299 into the Code of Criminal Procedure, the accused obtained two more procedural guarantees concerning judgments in absentia: a new basis for the re-opening of the proceedings (Art. 540b) and an additional ground for optional refusal to execute an EAW (Art. 607r§3).The Constitutional Tribunal has considered trials in absentia in criminal and civil proceedings (see Sect. ), as well as trials in absentia under the provisions of the Fiscal Penal Code. Such proceedings may be conducted against a person who has committed a fiscal offence and who permanently resides abroad or whose place of residence in Poland is unknown. The Constitutional Tribunal has stated that Arts.
173–177 of the Fiscal Penal Code provide for sufficient guarantees for persons accused of a fiscal offence in view of the right to a fair trial (Art. 45(1) of the Constitution) and the right of defence (Art. 42(2) of the Constitution). The Tribunal added that these rights may be limited under the conditions specified in Art.
31(3) Constitution. In this case, the constitutional value which was considered to legitimise the limitation was the principle of legality in criminal law, understood as the obligation to prosecute crimes.