Judicial Change to the Law-in-Action of Constitutional Review of Statutes in Poland

One of the unexpected effects of the constitutional crisis in Poland that began at the turn of 2015 is the expansion of diffuse constitutional review of statutes. The Polish Constitution adopts a centralised model of constitutional review, but in the cases they hear common courts still independently disapply statutes that violate constitutional norms. Their stated grounds for doing so focus on the need to act in the place of the Constitutional Tribunal, which has lost its independence from the political power, as well as the necessity of continued effective preservation of the Constitution’s primacy and of the fundamental rights and freedoms of individuals. This article takes a more detailed look at this new judicial practice, describes the rationale for its adoption and analyses its consequences from the legal perspective. The trend is capable of being described in theoretical terms, which is the reason for this article’s research hypothesis that the courts’ activities are changing the law-in-action of constitutional review in Poland, as a consequence of the formulation and activation of a defensive mechanism for constitutional democracy.