Bezpośrednie stosowanie konstytucji przez sądy administracyjne

Abstract

The article deals with the issue of the direct application of the Constitution by administrative courts. It begins (part 1) with a general discussion on the forms of direct application of constitutional norms: autonomous application, co-application of constitutional and statutory norms and conflicting application (especially the constitutional review of statutes). Dispensing justice by controlling the activities of public administration, the administrative courts independently apply the Constitution when reviewing the constitutionality of basic acts and resolutions of local government bodies (part 2). The analysis of jurisprudence shows that administrative courts take into account the provisions of the Constitution when resolving the issue of their jurisdiction in cases concerning both the protection of individual rights and the objective legal order (part 3). An important source leading to the direct application of constitutional provisions is the jurisprudence of the Constitutional Tribunal (part 4). Administrative courts recognise the competence of the Constitutional Tribunal to adjudicate on whether a law complies with the Constitution, but they feel that they are legitimate addressees of Art. 8 sec. 2 and Art. 178 sec. 1 of the Constitution, which authorise the courts to apply the basic law in the administration of justice. Administrative courts are bound by the normative state resulting from the ruling of the Constitutional Tribunal, regardless of their own judicial practice reflected in their case-law on different levels of judiciary, in particular shaped by a legal view expressed in a binding resolution adopted by an extended panel of judges of the Supreme Administrative Court. This part of the article also draws attention to the importance of judgments of administrative courts in the event that the legislature fails to implement a judgment of the Constitutional Tribunal. It is assumed in the case-law that the legislature’s lack of action in implementing a ruling of the Constitutional Tribunal may not be an obstacle to the administrative authorities taking action, as they are obliged to independently determine the impact of the ruling on the resolution of a particular case. In part 5 of the study, it is argued that the need for direct application of constitutional norms, principles and values by administrative courts often results from the lack of internal coherence of legal provisions, a legal gap resulting from legislative omission, or the obvious unconstitutionality of the regulations being the basis for the decision. In the case-law of administrative courts, there are instances of refusal to apply the norm of the applicable act due to what is called secondary unconstitutionality, or the manifest non-conformity of this norm with the Constitution.