Author – Mariusz Muszyński, prof. at the Faculty of Law and Administration of the University of Warsaw, justice of the Constitutional Court.
Thought Shortcut
The vacation is over and the parade of legal moronism continues at its best. In the State Election Commission, the dispute over the position of the home of Extraordinary Control and Public Affairs revived again. This is not a fresh dispute. The voices of various alleged "legal persons" have already appeared in the public space, which began to undermine the legality of this House, the position of judges appointed by the president of Poland after 2018 and the validity of their judgments. any erstwhile TK judges, present and erstwhile SN judges or general courts, and even advocates and any scientists, have launched the topic. And all these alleged authorities claim that the judges of this home are not judges, the home is not the ultimate Court, and the judgments of the judges sitting therein are not judgments. All of this is invalid and does not exist, as 2 global tribunals have ruled: the European Court of Human Rights and the EU Court of Justice.
Therefore, although the issue of the impact of global courts' judgments on the legal and systemic strategy of the state I comment rather often, again I see the request to rise it. But I'm going to do it from a broader position and a more clear way. Repetitio mater studiorum est. So there's hope that another comment can get our local geniuses into the head.
Firstly, I would point out that the judgments of global courts, despite the name suggesting judicial decision, are not the same as those of national courts. They do not enter national legal transactions. They do not make a national legal order, whose constitutional part is, after all, the authorities of the state (also courts in which judges appointed by the President) have no automatic legal effects. They are average acts of application of global law, which must simply be enforced. The work to implement them is simply a consequence of the agreement of the State expressed in the global treaty setting up specified a tribunal. The word ‘obligation’ means the request for the State (its authorities) to act, not the automatic effect of specified a grand jury judgment.
Implementation depends on the nature of the judgment. If it concerns a circumstantial and individual case, it is done by the government, possibly by a national court. In Poland, in the second case, the State has even created appropriate rules granting the courts a circumstantial procedural function in the proceedings before the courts. These are the provisions of certain procedures (punishment, misconduct, tax, administrative, judicial and administrative). But even there, the judgement of the tribunal does not bind the court as to the content due to the fact that it cannot. The court is independent and the justice is independent. Therefore, specified a judgement is simply an impulse (the box) beginning under certain conditions the anticipation (i.e. the possibility, alternatively than the obligation) of reopening the previously legally closed national proceedings. And it is not said at all that the resumed proceedings must end with a different decision than the first one. In turn, if the judgement of the court concerns a problem with the scope of the law in force, the act of the legislature (amendment of the law) and sometimes even the legislature (amendment of the Constitution).
In this regard, statements about the illegalisation of a ultimate Court Chamber, and so part of a constitutional body of the state, by virtue of any judgement of an global court, and thus claims about the direct legal consequences of specified a judgement in the state's constitutional area, are a misconception. And this is – for my usual expression of speech – a very courteous word for the logic of specified concepts.
After all, even after specified a judgment, the Constitution is inactive in force in Poland, whose laws are the legal foundation of the ultimate Court. The ultimate Court Act continues to apply, which clarifies the resolution of the Constitution. Yes, specified an global court may say to itself that a state body, in the light of its imagination and knowing of the Treaty provisions, does not meet certain contractual standards. But his conviction does not repeal the provisions of the Constitution or the Act relating to these matters. Nor is it any form of illegalisation of the state body (SN) or its parts (here: the Chamber of Extraordinary Control and Public Affairs of the SN), nor eliminates its judgments. Those released earlier and later. In the strategy of national law, everything further has the attribute of legality and validity. specified an authority continues to operate, even if this action deepens the contradiction with the global judgement and the Treaty. We simply have a divergent legal position in both systems: global law and national law. And in specified legal schizophrenia, the state can function for years. The only form of manifestation of the problem is the possible global work for the State for failing to comply with the judgment. You can live with that.
Weakness of global judgments
So why are the judgments of global tribunals so weak? Why does Poland, like another countries, not let the judgments of global courts straight into the national strategy of law and legal trade? After all, each country officially declares its commitment to global law? In Poland, this is emphasized by Article 9 of the Constitution.
There are a fewer reasons. Let me zoom in on the basics. Firstly, the courts control the activity of state power and thus affect its freedom of action, namely, de facto the state sovereignty. If the judgments had the effect that a certain untrained part of our judges and professors wanted, then the state would be governed from outside by global officers. Any law adopted by a democratically elected national parliament could be straight denied by respective alleged "international sages". And they would yet and straight make the rules of the national order, not only by bringing the Sejm into the function of an apparent legislature, but could besides delete the state constitution. Therefore, any judgement of an global court, in peculiar 1 which refers to systemic and systemic issues, is of a declaratory and stating nature. This can be read in any book on global law on the Tribune theme. He says what needs to be changed in the country. But he doesn't change it himself. In order to accomplish this objective, the authorities of the State must act. According to their powers. By law. And in this situation concerning SN, judges and their judgments, it is simply essential to change the law formally, at the level of the Constitution.
Secondly, present democracy is the legitimacy of all power. And global tribunals are almost completely deprived of this democratic legitimacy. Unlike national judges. These are invoked by the Constitution and laws, i.e. acts created by the sovereign (nation), straight (reference) or indirectly (parliament). So they have indirect democratic legitimacy. global judges are besides elected by executive authority, but no longer on the basis of democratic laws. They are chosen on the basis of global treaties, i.e. on the basis of the law created by the executive authority. Let us remember that global treaties are the most undemocratic law in the world. They are accepted by governments. They are not part of the process of democratic legislation, but of average political negotiations. Neither the Nation nor the democratic parliament have any influence on their content. Even if the Nation or Parliament approves the ratification of specified a treaty by the President, it is only the appearance of democracy. Consent to ratification is only a procedural agreement. You can give it to the president or refuse it. But the consenting entity in no way affects the substantive content of the treaty itself. due to the fact that the content is accepted by executive power – the government, and this together with the governments of another countries. And after ratification, the influence of the Treaty-containing state, even the government which negotiated and accepted it, is almost brought to nothing. Not only the change in the content of the treaty already concluded, but even its termination, i.e. freedom from obligations which, even under the influence of the case law of the global court, have become a burden for the state, is in practice very frequently impossible. Because, in fact, it depends not on the individual concerned, but besides on the consent of another states parties to specified a treaty. And national laws can change any composition of the Sejm at any time.
Thirdly, this is due to the specificity of global law. If there is an work in the form of a judgment, only the effect is crucial for global law. It is so a substance of achieving the goal by the sentence. Any detail, choice of means and methods, is simply a substance of the state. Therefore, the judgments of global courts are in rule not straight part of national legal transactions and have no direct effect on the national legal system. Even if the State makes an exceptional rift in the strategy for certain judgments relating to individual, private and legal matters (see, for example, Article 280 in Article 299 TFEU), in the systemic sphere, it ensures its influence on the situation as independence. due to the fact that this is truly about independence. That is why it decides how and erstwhile to execute specified a sentence.
Fourthly, there are judgments ineligible for political reasons. And this group includes the last judgments of the EUSEU and ETPC towards Poland. They concern crucial constitutional matters from the Constitution level. And in this case, there must be circumstantial procedural conditions, an appropriate majority of votes indicating political, in order not to say national, consent to redefining the state model. If it is not there, it cannot be replaced by a grand jury judgment. That's why you're the 1 who's handing out cards. It must be able to influence the way it is implemented (see, for example, the celebrated question of the refusal to comply with the judgement of the ECHR in Hirst, complaint No 74025/01, by the United Kingdom).
This besides applies to the current case of Poland, where both tribunals want to redesign our constitutional system. And this issue, at least as regards the position of the judges and the validity of their judgments, must be a decision expressed by amending the Constitution, not by means of abroad will and its national acolytes.
And all those rules seemed clear. Until today, erstwhile a group of lawyers began to attribute to the judgments of global tribunals the effects that these tribunals could not even dream of. any do this only at media level, but any of them have decided to corrupt the state and the legal strategy as part of their authoritative activities.
However, contrary to their opinion, in the current legal state, the point is as follows. No judgments of global tribunals can straight affect the legal position of the Chamber of Extraordinary Control and Public Affairs of the SN, or judges appointed by the president of the Republic of Poland.
![Mural na 15-lecie Mariackiej świeci. Zrobiła go Ania "Grube Linie" z Katowic [Zdjęcia]](https://www.wkatowicach.eu/assets/pics/aktualnosci/2025-07/DJI_20250712213202_0641_D_Du%C5%BCy.jpeg)
