The direct application of the Constitution by the courts in disputes over the social rights of uniformed services officers

Abstract

This article discusses how Polish courts apply provisions of the 1997 Constitution in the adjudication of individual cases and controversies. The pension claims of the police officers area and other so-called “uniformed formations” serve as an example. There are several techniques in which the civil, penal, and administrative courts apply constitutional provisions. Most common, also for the area presented in this article, is the technique of co-application of constitutional provisions and statutory rules. In practice, it often means that the court reinterprets the statute with the aim to ensure its conformity with constitutional requirements. Such “harmonious interpretation” may save the constitutionality of the statute in question, but it also may result in a departure from its original text. Similar techniques apply to the interpretation of statutes in the light of the European Convention on Human Rights as well as in the light of the EU law. The recent case law on pension cases delivers a good illustration of the harmonious interpretation and its creativity. The positions elaborated by local courts were eventually confirmed by the Supreme Court of Poland. The independence of “regular courts” in constitutional interpretation has grown over the last seven years due to the ongoing crisis around the Polish Constitutional Court. This article is one example of this trend, which ultimately, may put in doubt the continuation of the Kelsenian model of constitutional review in Poland.