The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases

Mikołaj Ryśkiewicz — Sat, 16 Jul 2022 08:19:54 +0000

Dr Jarosław Sułkowski

University of Lodz

English abstract: In April 2022 four years passed since the introduction into the Polish legal system of extraordinary appeal – a new instrument for the review of final court judgements. The experience of several years of the functioning of this means of challenge provides an opportunity to analyse it on the basis of the emerging case law of the Supreme Court in the context of not only the effectiveness of this kind of appeal, as seen through the prism of procedural justice in criminal matters, but also in the context of emergence of constitutional awareness. It should be assumed that the legislator wanted to introduce a measure that would strengthen the protection of freedoms and rights, also within the framework of criminal proceedings, and which so far did not exist in such a form – in terms of evaluation of the process of applying the law. A few years after its introduction, the fears that extraordinary appeal would become a politically exploited mechanism have not come true. However, after a few years the first cautious conclusions can be formulated regarding its significance for the reliability of the criminal process. Unfortunately, these conclusions are not optimistic. The extraordinary complaint does not play a significant role in the functioning of the criminal process in the shape outlined by the Polish Constitution.

Keywords: extraordinary appeal, Supreme Court, judicial review (of constitutionality of statutes), constitutional awareness

Language: Polish

Published: Number 2(31)/2022, pp. 84-96.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.84

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This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Types of Judicial Review Tests and the Principle of Proportionality

Mikołaj Ryśkiewicz — Sat, 16 Jul 2022 08:19:47 +0000

Prof. UMK dr hab. Milena Korycka-Zirk

Mikołaj Kopernik University in Toruń

English abstract: Judicial review in the jurisprudence of the US Supreme Court can take the form of one of three formulas for examining an act or action of an authority (strict scrutiny test, intermediate scrutiny test, or rational basis test). In the context of the constitutional review each of these tests requires an analysis, of three essential aspects: what kind of individual interest is limited, what form of public interest legitimation is required, and how the means and the purpose so indicated are related. A detailed analysis of these standards of proportion, jurisprudentially developed and evolutionarily tightened, in confrontation with the principle of proportionality used in European constitutions (and documents on international protection of human rights) allows to formulate theses about which standard is stronger, which one creates a barrier providing better protection of individual autonomy, and which is more resistant to ‘steps backwards’ in this respect.

Keywords: judicial review (of constitutionality of statutes), principle of proportionality, strict scrutiny test, intermediate scrutiny test, rational basis test

Language: Polish

Published: Number 2(31)/2022, pp. 54-69.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.54

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Number of downloads: 363