Rule of law, access to justice, meaning of the “court” and “case” 

National Court

Trybunał Konstytucyjny  

Constitutional Court  

P 9/18

November 26th, 2019; 

Not available 

Not applicable 

Only the national legal sources

Acces to justice – Right to an effective remedy before a tribunal – privacy 

Rule of law – fair trial – capacity to lodge a complaint – court referendary as a court – delivery of decision. 

NO 

1. Indicate if the national court/applicant asked the CJEU/ECtHR for interim relief and a short summary of the reasons put forward
2. Indicate if the CJEU/ECtHR granted the interim relief

Constitution;

Act on National Court Register; 

Act on Consumer Protection;

The Constitutional Tribunal, in its judgment of 26 November 2019, in the case ref. no.: P 9/18, declared unconstitutional the exclusion of the obligation of the court to deliver to a participant of registration proceedings a decision on the entry of insolvent debtors into the register. Moreover, he also considered it unconstitutional to deprive the participant in these proceedings of the right to lodge a complaint against the decision of the court referendary ordering entry in such register.

The decision of the Constitutional Tribunal was issued as a result of legal questions of the District Court in Białystok, XII Commercial Division of the National Court Register. The questions concerned the issue of the lack of possibility to appeal against the decision of the court referendary concerning the entry in the Insolvent Debtors Register.

The Register of Insolvent Debtors includes, among others, persons against whom the bankruptcy court has declared a ban on conducting business activity and who are over six months in arrears with payment of alimony.

In the present proceedings the Court decided that the court's decision on disclosing the data of the so-called insolvent debtor in the register referred to in Article 55 of the Act on the National Court Register - which is open and uses the presumption of the authenticity of the data contained therein - constitutes a "case" within the meaning of Article 45 paragraph 1 of the Constitution. Although it is not a matter of 'administration of justice', it is nevertheless a matter of 'legal protection'. The latter category of court cases also falls within the framework of the normalisation of this control pattern (see, for example, among the last ones, judgment P 19/17, in which the Court considered a 'case'. - within the meaning of Article 45(1) of the Constitution - examination by the court of competition and consumer protection of the motion of the President of the Office of Competition and Consumer Protection to conduct a search of the premises of the entrepreneur). According to the Court's jurisprudence, the constitutionally guaranteed right to court includes not only the right to the judicial administration of justice, i.e. the substantive settlement in cases concerning the rights of individuals, but also the right to judicial review of acts which are contrary to the constitutional rights and freedoms of individuals. In the latter case, the court carries out activities in the field of legal protection (see, inter alia, judgments of the Court of Justice in the case of the rights of the individual, and also the right to judicial review of acts which undermine the constitutional rights and freedoms of the individual: 12 May 2003, ref. SK 38/02, OTK ZU No. 5/A/2003, item 38; 12 May 2011, ref. P 38/08, OTK ZU No. 4/A/2011, item 33; 13 January 2015, ref. SK 34/12, OTK ZU No. 1/A/2015, item 1, together with judicates cited therein).

A participant in registration proceedings conducted by a court registrar (the latter being authorised by the legislator under Article 5091 § 2 of Code of Civil Procedure) has been deprived of the right to file a 'case' (in the constitutional sense) to a judicial authority, despite the fact that the legislator has theoretically retained the model of handling cases of entries referred to in Article 55(4) and (5) of the Act on the National Court Register by registry courts until the register of insolvent debtors is finally abolished. In such circumstances, the "raising" of the standard of proceedings in such legal protection cases has in fact become apparent.

[If the EU Charter was invoked, please indicate why the Charter was referred to, according to the national judge; specify whether the EU Charter was used as a legally binding parameter or it was used to support the reasoning only]

[please explain what were the reasons behind citing the ECHR, ornamental or whether the protection granted through the EU Charter is more extensive than that stemming from ECHR in the particular case]

Only internal dialogue, the court quotes his jurisprudence only, without broader view. 

As above. 

Not applicable 

The main idea was to show national “juridical tools” to solve the problem, which could be also solved (or at least examined) using EU Charter art. 47

There was an amendment in Civil Porcedure Code made. 

Template #4 – the way Constitutional Court reasoning is done. 

https://ipo.trybunal.gov.pl/ipo/Sprawa?cid=2&dokument=18660&sprawa=20872  

Jarosław Gwizdak INPRIS

1. Legal question of Białystok District Court;
2. Judgment of Constitutional Court.