Legislative omission in judicial process of Application of Law : commentary on the judgment of the Polish Constitutional Tribunal of 26 June 2019, case no. K 8/17

This article presents a critical commentary on the judgment of the Polish Constitutional Tribunal concerning the constitutionality of Articles 523 Section 3, 521 Section 1, and 529 of the Polish Code of Criminal Procedure. In the discussed ruling, the Constitutional Tribunal stated that challenged provisions have enabled courts to control the President’s prerogative. Therefore, the Constitutional Tribunal judged that the aforementioned provisions are partially inconsistent with the Constitution of the Republic of Poland. In this gloss, three issues are discussed. First, a question concerning the admissibility of issuing the judgment in the commented case. According to the author, a lack of a proper subject of the review is the reason the Constitutional Tribunal should have discontinued the proceeding in the present case. Second, a question regarding the effects of the application of the commented judgment, declaring unconstitutionality due to legislative omission, on the judicial process of application of the law. In the author’s opinion, a court (or another authority applying the law) may not supplement the legal system with the omitted content while implementing such judgments. Third, a problem of commented judgment’s influence on the legal system. The author points out that the discussed ruling does not produce any changes in the Polish legal system