Law and Legal Institutions: Sources, Branches, Courts and Human Rights
Domain 3 tests the hierarchy of legal sources, the division into branches, and how courts apply and review law.
Sources and hierarchy
In Poland: Constitution (2 April 1997), then ratified international treaties and statutes, then ordinances (rozporządzenia) and local acts. A regulation must be issued on the basis of and within the limits of a statutory delegation (art. 92) - no valid delegation, no valid regulation. In EU law, regulations are directly applicable in full; directives bind as to result and must be transposed by a deadline; primacy operates within conferred competences.
Branches of law
Civil (disputes between equals: contract, property, inheritance), criminal (offence, guilt, penalty; legality, presumption of innocence, nullum crimen sine lege), administrative (individual versus public authority; legality and proportionality), constitutional (norms and competence disputes), labour and commercial.
Courts
Generally two instances. Common courts lead to the Sąd Najwyższy (cassation, not a third instance). Administrative courts lead to the NSA. The Constitutional Tribunal (15 judges) reviews norms, not facts, and does not decide individual cases. The ECtHR in Strasbourg hears Convention complaints after domestic remedies; the CJEU in Luxembourg rules on EU law.
Worked example
A minister issues a regulation ordering all shops to close at 20:00, citing a statute that authorises him only to set Sunday trading rules. Reasoning: (1) the delegation does not cover weekday closing hours; (2) the regulation therefore breaches art. 92 and the statute; (3) a court hearing a fine case may refuse to apply it; (4) the TK may declare it unconstitutional, losing force prospectively unless it decides otherwise.
Traps
- The Sąd Najwyższy is not a third instance and does not freely re-examine facts.
- A directive does not by itself bind private parties.
- Lex retro non agit applies to substantive law, but procedural rules may catch pending cases.
- TK judgments on statutes act prospectively by default.