The Jurisprudence of the Constitutional Tribunal and the Human Rights Protection

Abstract

The paper does not present an official standpoint of the Constitutional Tribunal, but that of the authors. Writing about human rights they have in mind also the so-called basic freedoms. They point at the general difficulties in applying the jurisprudence of the Constitutional Tribunal the international human rights. These are the following: lack of a uniform understanding of human rights (ideological aspect); difficulties in working out a clear and exhaustive rule of interpreting human rights, which makes it difficult to apply the Pact of the Citizen and Political Human Rights at the international level and the more so at the national level; the Constitution of the Polish Republic says no word about the place of the treaties within the legal order of the State; the Constitution bears a positivistic character, whereas the Pacts of Human Rights take the inborn dignity of the human person as the foundation of rights; lack of a uniform understanding of human dignity.

To the particular difficulties belong the following: application of pacts is limited by the art. 33a of the Constitution; the law concerning the Constitutional Tribunal does not provide that the Tribunal should arbitrate in the international contracts which Poland ratified. However, the jurisprudence of the Constitutional Tribunal apparently pertains to the International Pacts of Human Rights. This is performed in two ways: as an aid at the interpretation of the norms of the national law, or - which occurs more rarely - in reference to art. 1 of the Constitution, the article which established the democratic rules of the legal State, imposes at the same time on Poland a daty to respect the Pacts of Human Rights.