Constitutional systems 2013

Constitutional systems of central and eastern

European states

2012/2013

dr hab. Piotr Mikuli

Lecture 1 – Concepts of notions of the principle of law………………………………………………………………..……2
Lecture 2 – Constitutional principles in polish constitution…………………………………………………………………3
Lecture 3 – Preambles………………………………………………………………………………………………………..7
Lecture 4 – Electoral law……………………………………………………………………………………………….……9
Lecture 5 – Status of a deputy, immunities…………………………………………………………….………………..….12
Lecture 6 – Immunities. The structure of parliamentary chambers. The legislative procedure…………………………….14
Lecture 7 – The legislative function of parliament…………………………………………………………………………18
Lecture 8 – Legislative procedure……………………………………………………………………………………….….21
Lecture 9 – Revision of parliaments. Executive power…………………………………………………………….………24
Lecture 10 – Political responsibility of government………………..…………………………………………………..…..27
Lecture 11 – Political responsibility of government (II). President……………………………………………….………..30
Lecture 12 – President……………………………………………………………………………………………………....33
Lecture 13 – Judiciary…………………………………………………………………………..……………..……………39

Notes author

Mateusz Popiel

Constitutional systems 1 (27.02.13.)

Concepts of notions of the principle of law

 Examination 4 open questions – request to write two essays. Four topic and choose two out of them. One hour-

long exam. Exam is coded.

 Prerequisite of level of English is B2+ . English matters – you have to be able write two essays in English.

Sometimes professor gives better grades for language – proficiency level. Perfect English will be treated as
something important. Professor will give better grades for language.

 Literature (reading list). First of all the knowledge of the lecture is the most important. Standpoints presented in

the scholarship. Two basic handbooks for students:

B. Banaszak “Governmental systems of central and eastern European states”. It is available - there are

copies in law library for using in library.

“Constitutional states in EU member states (2004 enlargement)”. Not encompass Bulgaria and Romania.

Professor will be speaking about polish system. Book based on governmental grant – basic problem of

applying …final research report” – written in English and in Polish (exact translation). “Podstawowe
problemy stosowania Konstytucji Rzeczypospolitej Polskiej”.

“Constitutional evolution of central and eastern Europe” – monography not a handbook. Professor chapter

concerns the problem of applying European law, statutes and constitution in Poland. Published by
Ashgate.

“Public law 20 years after 1989 from the polish perspective” – by Krzysztof Wojtyczek. Professor wrote

with colleague one chapter entitled “continental public law between Americanization and germanisation”.

 Handbooks are not written comparatively and our lecture will be different – it will be thought by comparative

method. Professor will not speak separately about some states but comparatively.

Notion of the principle of law of polish scholarship

 What is a constitutional principle? What is a principle of law? Notion of constitutional principle – many cases

with polish notion of constitutional principle of law – sometimes a little bit different than external concept. We
can divide notion of principle of law – two main categories:

Foreign notion / foreign concepts of principles of law. The most known in terms of constitutional law

is the concept presented in the scholarship by two excellent scholars. Ronald Dworkin (was an American
philosopher) and Robert Alexy.

Domestic concepts (polish ones). Most famous concepts concerning principles of law are connected with

so called “Poznan school of theory of law” (Zygmunt Ziembiński, Maciej Zieliński).

 External concepts (R. Dworkin and R. Alexy) – system of law consists of principles (standards) and rules. What

is a difference between principles and rules?

Principles (standards) are an optimizing character, they may be in conflict, and they may intersect one

another / each other. In order to resolve such a conflict one may find relative way of one of them – one
must balance them in a concrete case - one standard takes a priority over other. A standard or a principle
may be realized in practice more or less.

Rules (second category) – must be obliged in a concrete case. When they are in conflict – one is

derogated at the expense of the other. We can say that they are obliged in “all or nothing” motion. They
may be in practice in all aspects or in none. Must apply only two rules that are in conflict. A second rule
is not applied – it is derogated.

 The concept of Dworkin and Alexy is very useful in application of the constitutions. Many rules have

optimizing character - they may interact. Constitutional judge must balance constitutional principles. It does not
mean that one rule is derogated. The theory of Alexy is a little bit different than Dworkin one. The most important
thing is that principles may be applied partially and they must be balanced in application and rules acts in all or
nothing fashion – they cannot be balanced.

 The domestic concepts. In many cases a polish notion/domestic notion may consigned with the external one.

According to polish notion there are principles and other norms. In turn, there are two kinds of principles of law.
Principles of law can be divided into two categories:

Principles in a descript sense. What this principles means? It is an abstract concept. Concept used in a

scholarship of law. Very often, there are not worded in a legal text but there are derived from a legal text
as an abstract idea. The aim is to characterize certain legal institution. To indicate basic features of basic
institutions. One may identify concept of bicameralism: Sejm, Senat and those chambers has some
competences. After reading all those provision one may derive a concept that we have principle of
bicameralism – this is principle of law in descriptive sense. The aim of them is to characterize or to
indicate features of legal institution.

Principles in a normative sense (in a directive sense). What does it mean? A principle in a normative

sense in a norm of the system is extremely important. Those are norms of the system of the law, which are
extremely important. They are important for some reasons. E.g. because they were mentioned in a
Constitution. One argues that provision included in the constitution we can treat as a principle, because
Constitution is the most important source of law. There is further division of these principles.

 Main division of principles of law according to Poznan school of legal theory.

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Constitutional systems 2 (6.03.13.)

Constitutional principles in polish Constitution

[Exam: s. Sztuka @ Bracka (4.09) - 14.00; 11.09 - 10.00].

 Some basic Constitutional principles. Notion of the Constitutional principle and what a principle of law is. We

can say that there are two understandings of the principle of law. The first is called “external” and second
“internal”.

 External. Two important names: R. Dworkin and R. Alexy. Generally speaking, both of them argued that system

of law consist two categories: principles/standards and rules. Principles should be balanced in a concrete case.
Rules act in all or nothing fashion. It means that one rule is applied and the second, which is in conflict, must be
derogated. It is not possible to apply two rules, which are in conflict. One may refer to relative way of both.

What are the examples of Dworkinian principle and Dworkinian rule? (“Taking rights seriously”). Rule in

Dworkin is “Will must be witness at least by three persons”. You cannot discuss. If someone could not
find other rules that are in conflict and the conflict must be resolve. The conflict must be resolve so one
rule must win.

The principle must be balance. May be apply more or less. Dworkin thinks that hard cases always have

one answer. It is possible to create a judge who is very cleaver and he knows everything about the law. In
addition, he is able to apply both standards. Principles are internal.

 No one could be awarded by his role.

Polish Constitution

 I chapter of polish Constitution – rights in a descriptive sense.
 II chapter – principles in a normative sense. Normative sense can be divided into two categories.

Constitutional principle

 In a descriptive sense. Many formulas used in the first chapter can be treated as a principle in descriptive sense

but it is controversial. Some lawyer’s think that principle in descriptive sense does not have a normative sense but
it is wrong. However, it is hard to derive this normative sense. Example: art. 2 of the Polish Constitution. Art. 2 –
the principle of state of law. Republic of Poland is a democratic state ruled by law. The principle is the democratic
state ruled by law. It is hard to say what does it mean but is has normative value. However, we have to derive
from this many further principles. Principles in a directive sense. For example, it consists of many further

principles: separation of powers (this is a separate principle, but this is element of this principle), Independence of
justice, the principle of decent legislation (what does it mean?).

 Democratic state ruled by law – 1

degree; independence of justice – 2

degree. The Tribunal derived this

principle. 3

degree:

Definiteness of the law (the law must be clear as much as possible).

The lawmaker should avoid conflicts of norms.

Lex retro non agit.

Statutes should be published so this subjects would be known.

Every legal act should have vacation legis.

The principle of acquire rights – the protection of rights which we posses, sometimes it may lead to

absurd: Polish officers may retired after 15 years of work, the government wanted to extend this years of
work, some rights might be modified, must be justified by other principles – constitutional principle of
balanced budget. The Dworkinian and Alexy model is so popular in applying Constitution.

 In a direct sense

With an optimizing character

Principles – norms

These two above categories principles are similar to external division. In Dworkinian sense has an

optimizing character. Both categories in terms of polish Constitution one can find in second chapter of
polish Constitution (status of an individual).

 Lex retro non agit – it is principles, sometimes might be justified.

 Slovakia, Hungary – Preamble. What does preamble mean? This is text usually which is composed with two or

three sentences in which one may identify some reasons for making a new constitutions, some explanations why
now. Sometimes a preamble may show a constitutional moment – moments in history that people decide to make
a new constitution. To what extend do they have a normative meaning? It is not so simple to decide. Some
lawyers argue that they have normative meaning. Some other says that they do not. The text of preamble may be
helpful in construing the constitution. They contain many hints in terms of interpretation. The preamble stresses
the need to cooperate with all countries for the good of the human family.

 Expression, which includes the definition of polish nation – “the polish nation is sovereign”. In addition,

according to the will of nation the constitution was made. The polish nation is here in political sense. “The polish
nation” - “all citizens of the republic”.

 Few words about further basic principles of the polish constitutional system. Basic principles as a system as such.

The most important one or at least one of them – the principle of sovereignty of the nation, of the people. It is
included in the article 4

– the principle of the representation.

 The separation of powers and balance of powers. This principle can be derived from the principle of the

democratic state. Also in art. 10

of the polish constitution. In this art., there is a second sentence, which defines

these powers. The legislative power shall be vested in Sejm and Senate. Here exactly powers in terms of
functional meaning are subordinated to particular organs or the group of organs.

 Art. 10. Important piece of information. In terms of executive power – this definition here is not exact. When you

look at all provision of the constitution you may easily find that there are more than two executive organs. It is not
true that we have only two organs of executive powers. Here the constitutions mention only the main organs of
the executive powers and not all of them. In terms of executive powers this definition is not precise, because with
any doubts a Minister as such apart from being a member of collective organ as a Council of Minister is also

Article 4.

Supreme power in the Republic of Poland shall be vested in the Nation.

The Nation shall exercise such power directly or through their representatives.

Article 10

The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.

Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of
Ministers, and the judicial power shall be vested in courts and tribunals.

responsible for a branch of administration. A Minister is executive organ. Local organs are organs of executive
powers (Wojewodowie). This definition is only general. The constitutions here refer only to the main. Why?
Because according to the so called principle – it is the principle of dualistic executive. However, it is a principle
good for teaching. Good for generalizing something but it does not have much in common in practice. The
Government, the Council of Ministers that took almost all the powers of the King. In the parliamentary executive
is “dualistic” we refer to the British parliamentary system of government. President can be treated not only as an
executive organ. However, in Poland it is executive. Many other administrative organs are subordinated by the
government. They are not judicial. When we speak in a scholarship about executive we speak about polycentric
executive. It is the principle, which one might identify in both parliamentary system of a government and
presidential system. They act in the name of the president but they are organs as well. Now the executive is
polycentric not dualistic.

 Homework – read extracts from all constitutions, which refer to constitutional principles. First chapters or other

chapters. Read the Hungarian preamble. Compare all the preambles.

Poland

Having regard for the existence and future of our Homeland,

Which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate,

We, the Polish Nation - all citizens of the Republic,

Both those who believe in God as the source of truth, justice, good and beauty,

As well as those not sharing such faith but respecting those universal values as arising from other sources,

Equal in rights and obligations towards the common good - Poland,

Beholden to our ancestors for their labours, their struggle for independence achieved at great sacrifice, for our culture rooted in the Christian heritage of the Nation and

in universal human values,

Recalling the best traditions of the First and the Second Republic,

Obliged to bequeath to future generations all that is valuable from our over one thousand years' heritage,

Bound in community with our compatriots dispersed throughout the world,

Aware of the need for cooperation with all countries for the good of the Human Family,

Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland,

Desiring to guarantee the rights of the citizens for all time, and to ensure diligence and efficiency in the work of public bodies,

Recognizing our responsibility before God or our own consciences,

Hereby establish this Constitution of the Republic of Poland as the basic law for the State, based on respect for freedom and justice, cooperation between the public

powers, social dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens and their communities.

We call upon all those who will apply this Constitution for the good of the Third Republic to do so paying respect to the inherent dignity of the person, his or her right

to freedom, the obligation of solidarity with others, and respect for these principles as the unshakeable foundation of the Republic of Poland.

Czech Republic

We, the citizens of the Czech Republic in Bohemia, in Moravia, and in Silesia, At the time of

the restoration of an independent Czech state,

Faithful to all good traditions of the long-existing statehood of the lands of the Czech Crown,

as well as of Czechoslovak statehood, Resolved to build, safeguard, and develop the Czech

Republic in the spirit of the sanctity of human dignity and liberty,

As the homeland of free citizens enjoying equal rights, conscious of their duties towards

others and their responsibility towards the community,

As a free and democratic state founded on respect for human rights and on the principles of

civic society,

As a part of the family of democracies in Europe and around the world,

Resolved to guard and develop together the natural and cultural, material and spiritual

wealth handed down to us,

Resolved to abide by all proven principles of a state governed by the rule of law,

Through our freely-elected representatives, do adopt this Constitution of the Czech Republic.

Slovakia

We, the Slovak Nation,

Bearing in mind the political and cultural heritage of our predecessors and

the experience gained through centuries of struggle for our national existence

and statehood,

Mindful of the spiritual bequest of Cyril and Methodius and

the historical legacy of Great Moravia,

Recognizing the natural right of nations to self-determination,

Together with members of national minorities and ethnic groups living on the

territory

of the Slovak Republic,

In the interest of continuous peaceful cooperation with other democratic countries,

Endeavouring to implement democratic form of government, to guarantee a life of

freedom, and to promote spiritual culture and economic prosperity,

Thus we, the citizens of the Slovak Republic, have,

herewith and through our representatives, adopted

this Constitution:

Lithuania

THE LITHUANIAN NATION – having created the State of Lithuania many centuries ago, – having based its legal foundations on the Lithuanian Statutes and the

Constitutions of the Republic of Lithuania, – having for centuries staunchly defended its freedom and independence, – having preserved its spirit, native language,

writing, and customs, – embodying the innate right of the human being and the Nation to live and create freely in the land of their fathers and forefathers—in the

independent State of Lithuania, – fostering national concord in the land of Lithuania, – striving for an open, just, and harmonious civil society and State under the rule

of law, by the will of the citizens of the reborn State of Lithuania, adopts and proclaims this CONSTITUTION

Hungary

God bless the Hungarians
NATIONAL AVOWAL

WE, THE MEMBERS OF THE HUNGARIAN NATION, at the beginning of the new millennium, with a sense of responsibility for every Hungarian, hereby proclaim

the following:

We are proud that our king Saint Stephen built the Hungarian State on solid ground and made our country a part of Christian Europe one thousand years ago.

We are proud of our forebears who fought for the survival, freedom and independence of our country.

We are proud of the outstanding intellectual achievements of the Hungarian people.

We are proud that our people has over the centuries defended Europe in a series of struggles and enriched Europe’s common values with its talent and diligence.

We recognise the role of Christianity in preserving nationhood. We value the various religious traditions of our country.

We promise to preserve the intellectual and spiritual unity of our nation torn apart in the storms of the last century. The nationalities living with us form part of the

Hungarian political community and are constituent parts of the State.

We commit to promoting and safeguarding our heritage, our unique language, Hungarian culture, the languages and cultures of nationalities living in Hungary, along

with all man-made and natural assets of the Carpathian Basin. We bear responsibility for our descendants; therefore we shall protect the living conditions of future

generations by making prudent use of our material, intellectual and natural resources.

We believe that our national culture is a rich contribution to the diversity of European unity.

We respect the freedom and culture of other nations, and shall strive to cooperate with every nation of the world.

We hold that human existence is based on human dignity.

We hold that individual freedom can only be complete in cooperation with others.

We hold that the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are fidelity, faith and love.

We hold that the strength of community and the honour of each person are based on labour, an achievement of the human mind.

We hold that we have a general duty to help the vulnerable and the poor.

We hold that the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty.

We hold that democracy is only possible where the State serves its citizens and administers their affairs in an equitable manner, without prejudice or abuse.

We honour the achievements of our historical constitution and we honour the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the

unity of the nation.

We do not recognise the suspension of our historical constitution due to foreign occupations. We deny any statute of limitations for the inhuman crimes committed

against the Hungarian nation and its citizens under the national socialist and communist dictatorships.

We do not recognise the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid.

We agree with the members of the first free Parliament, which proclaimed as its first decision that our current liberty was born of our 1956 Revolution.

We date the restoration of our country’s self-determination, lost on the nineteenth day of March 1944, from the second day of May 1990, when the first freely elected

body of popular representation was formed. We shall consider this date to be the beginning of our country’s new democracy and constitutional order.

We hold that after the decades of the twentieth century which led to a state of moral decay, we have an abiding need for spiritual and intellectual renewal.

We trust in a jointly-shaped future and the commitment of younger generations. We believe that our children and grandchildren will make Hungary great again with

their talent, persistence and moral strength.

Our Fundamental Law shall be the basis of our legal order: it shall be a covenant among Hungarians past, present and future; a living framework which expresses the

nation’s will and the form in which we want to live.

We, the citizens of Hungary, are ready to found the order of our country upon the common endeavours of the nation.

Slovakia

Proceeding from the Basic Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia, and from fundamental human rights and freedoms,
and the fundamental and permanent right of the Slovene nation to self-determination; and from the historical fact that in a centuries-long struggle for national liberation

we Slovenes have established our national identity and asserted our statehood, the Assembly of the Republic of Slovenia hereby adopts

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Constitutional systems 3 (13.03.13.)

Preambles

 About role of preambles – constitutional contents, main ideas. Historically many times invocation dei.
 Hungarian “God bless the Hungarians”, the longest preamble. “National avowal” – religious name of preamble.
 In Poland – role of people is emphasizes as well non-believers.
 Sovereignty – “we, the nation” – all citizens of Republic.
 Czech Republic: Czech, Bohemians.
 Slovakia – We the Slovak Nation. Ethnic sense of a nation is as well mentioned (e.g. Polish too, because “fight

for independence”). Nevertheless, integration of that citizenship is not literally the earth of notion.

 Political pluralism – art. 11

of polish constitution. Parties as an important element of democracy. Art. 13

–

forbidden organization (cannot be registered, name does not matter) – Constitutional Tribunal.

Article 11

 Social Market Economy (art. 20

) – “cooperation and dialogue” – negotiations of … the light of common good

(art. 1

Czech Republic

 Sovereignty + division of powers.
 Art. 10a

referendum only when international, ratification of certain agreements. No more direct democracy.

 Minorities – art. 6

– protection of minorities is an important element of democracy.

 Separation of powers.

Two chambered Parliament,

President and the Cabinet,

Judiciary.

 State ruled by law (similar to Poland) – many further privileges by Czech’s Republic (more than Polish Tribunal)

Connected with principle of the secular state. Be bound by exclusive ideology or the religion.

Czech – Constitution of at least two elements:



Constitution as such;



Charter of fundamental rights (not in Poland).

 Political pluralism – art. 5

Individual Rights (fundamental)

 Poland (art. 30

), Czech Republic (art. 1

) – the concept of human dignity is a hay issue. Dignity – source of all

human rights in Poland, they are inherent, derived from dignity, not given by State, State just gives guarantees.

 Czech chapter - free and equal in dignity and rights (after adjectives, but similar concept).
 Similar in other texts.

Slovak constitution

 State ruled by law. Second sentence – secularism.
 Art. 2

– is derived from citizens (two ways of exactly those powers) – not the same as in Czech Republic.

 Art. 55

– ideologically accented economy.

The Republic of Poland shall ensure freedom for the creation and functioning of political parties. Political parties shall be founded on the principle of
voluntariness and upon the equality of Polish citizens, and their purpose shall be to influence the formulation of the policy of the State by democratic means.

The financing of political parties shall be open to public inspection.

Article 13. Political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of nazism, fascism and

communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to
influence the State policy, or provide for the secrecy of their own structure or membership, shall be prohibited.

Article 20. A social market economy, based on the freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners,

shall be the basis of the economic system of the Republic of Poland.

Article 1. The Republic of Poland shall be the common good of all its citizens.

ARTICLE 10a

(1) Certain powers of Czech Republic authorities may be transferred by treaty to an international organization or institution.
(2) The ratification of a treaty under paragraph 1 requires the consent of Parliament, unless a constitutional act provides that such ratification requires the approval
obtained in a referendum.

ARTICLE 6. Political decisions emerge from the will of the majority manifested in free voting. The decision-making of the majority shall take into consideration the

interests of minorities.

ARTICLE 9

(1) This Constitution may be supplemented or amended only by constitutional acts.
(2) Any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.
(3) Legal norms may not be interpreted so as to authorize anyone to do away with or jeopardize the democratic foundations of the state.

Article 30

The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and
protection thereof shall be the obligation of public authorities.

ARTICLE 1

(1) The Czech Republic is a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and of citizens.
(2) The Czech Republic shall observe its obligations resulting from international law.

Article 2

(1) The state power derives from the citizens, who shall exercise it through their elected representatives or directly.
(2) State bodies may act solely on the basis of the Constitution, within its scope and their actions shall be governed by procedures laid down by a law.
(3) Everyone may do what is not forbidden by a law and no one may be forced to do what the law does not enjoin.

Article 55

(1) The economy in the Slovak Republic shall be based on the principles of a socially and ecologically orientated market economy.

 Separation of powers is not worded very directly, but this principle may be identified from the whole text.

Slovenia

 Art. 1 – Democracy - art. 1, 2, 3

 Art. 2
 Art. 3 – separation of government (3)
 In Slovenian one can identify with separation of government – unassembled government

Lithuania

 Art. 1, 2, 4, 5

 Art. 46

– economy

 Art. 49

– catalogue of social security

Hungary

 Same international organization, some exceptions.
 The most important rules are the republican values, second important – liberal rule.
 Nations’ role is emphasized – liberal values are not so important.
 Three parts:

A, B, C, D

Roman Numerals – I, II, III

Arabic numerals – state organs (1, 2, 3,)

 B. 1. Democratic
 B. 2. Republican (Separations of powers)
 B. 3. Sovereignty of the people
 B. 4. “Exception cases”

 What is controversial? Embrions from the moment of conception, fetal life.

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Constitutional systems 4 (17.03.13.)

Electoral law

 Electoral law. This term refers to a concept of substantive law.

(2) The Slovak Republic shall protect and encourage economic competition. A law shall lay down the details.

Article 1. Slovenia is a democratic republic.

Article 2. Slovenia is a state governed by the rule of law and a social state.
Article 3. Slovenia is a state of all its citizens and is founded on the permanent and inalienable right of the Slovene nation to self-determination. In Slovenia power is
vested in the people. Citizens exercise this power directly and through elections, consistent with the principle of the separation of legislative, executive and judicial
powers.

Article 1. The State of Lithuania shall be an independent democratic republic.

Article 2. The State of Lithuania shall be created by the Nation. Sovereignty shall belong to the Nation.
Article 3. No one may restrict or limit the sovereignty of the Nation or make claims to the sovereign powers belonging to the entire Nation. The Nation and each citizen
shall have the right to resist anyone who encroaches on the independence, territorial integrity, and constitutional order of the State of Lithuania by force.
Article 4. The Nation shall execute its supreme sovereign power either directly or through its democratically elected representatives.
Article 5. In Lithuania, State power shall be executed by the Seimas, the President of the Republic and the Government, and the Judiciary. The scope of power shall be
limited by the Constitution. State institutions shall serve the people.

Article 46. Lithuania’s economy shall be based on the right of private ownership, freedom of individual economic activity and initiative. The State shall support

economic efforts and initiative that are useful to society. The State shall regulate economic activity so that it serves the general welfare of the Nation. The law shall
prohibit monopolisation of production and the market and shall protect freedom of fair competition. The State shall defend the interests of the consumer.

Article 49. Each working human being shall have the right to rest and leisure as well as to an annual paid leave. The length of working time shall be established by

law.

Article B. (1) Hungary shall be an independent, democratic state governed by the rule of law.

(2) Hungary’s form of government shall be that of a republic.
(3) The source of public power shall be the people.
(4) The people shall exercise its power through its elected representatives or, in exceptional cases, in a direct manner.

In English, we have another word, which refers to a concept of “law” in subjective sense – “right”. In

Polish, there is no difference between “right” and “law” (“prawo”). Election law overall has substantive
sense. It means that election law encompasses all the provisions, which refers to organizing elections
(popular elections).

In terms of election law in subjunctive sense (separate word – “right”) in English it is called “electoral

right”. Two types of rights: active electoral right and passive electoral right. Active electoral right – right
to take part in elections and cast a vote. Passive – right to be elected. [Prawo w znaczeniu
przedmiotowym i podmiotowym]. Election law – all the provision that refer to the elections.

Two main methods, which allow us to obtain the results of elections

 The first method is method in which the absolute majority is necessary - the candidate wins if he/she receives

an absolute majority of valid votes in a constituency.

What does a constituency mean? Other word – electoral district. This is a part of country/state. That

candidate wins who received the highest number of the votes.

 If this majority has not been obtain. What can be done? Usually it is obligation to organize additional voting. Two

candidates who obtain the highest number are entitled to take part in second round and then it is possible to obtain
absolute majority of vote by one of them.

 Sometimes it is not essential to obtain an absolute majority of votes and a simple majority is sufficient. It is also

a majority method, method based on majority system, but simple majority is necessary here. In these
circumstances a candidate wins when receives the highest number of votes. If we have a single member
constituency – who will be elected? A candidate with the highest number of votes. In this method based on simple
majority there are no needs to organize second round.

 Those two types of majority methods are quite simple. Majority method may be used in many different ways.

Before the reform – whole Cracow as a one constituency for Senat and first four with the highest number of votes
became senators. Now we have single member constituency.

 Second method, very often used. There are many methods of proportional representation. The second method

is proportional one but there are many submethods. Sometimes scholars argue than currently there are more than
one hundred methods of proportional representation systems all over the world. We will speak about only three of
them. These ones are used. Two main methods: absolute majority, simple majority and proportional
representation.

Allocation of seats in proportional electoral systems

The d’Hondt method

Last/
divisor

Number
of votes

Number
of seats

100,000

100,000 50,000

33,333

25,000

20,000

16,666

14,286

12,500

80,000

80,000

40,000

26,666

20,000

16,000

13,333

11,428

10,000

30,000

30,000

15,000

10,000

7,500

6,000

5,000

4,286

3,750

20,000

10,000

6,666

5,000

4,000

3,333

2,857

2,500

 First method is the d’Hondt method. The names of this method are very characteristic - those names arrive from

the names of inventors (Victor d’Hondt). Currently used in the elections to the Sejm.

 This is an example. Let us assume that we have constituency from which eight deputies are elected. Candidates

are registered by political parties or by other reorganizations in a form of a lists of several candidates. Each
political party is entitled to register one list of candidates. In our constituency we have eight lists registered (like
the table above). The second column we have a number of votes cast in an election. What can we do to allocate

these eight seats? Number of valid votes cast for political parties, we divide by natural numbers. How do we know
when to finish this division? We are looking for eight highest quotients.

 Second method. French Andre Saint-Legue. We divided number of valid votes by odd numbers (1, 3, 5, 7, 9 etc.;

same number of valid votes would give us different results – it prefer smaller parties). It is not method, which is
equal to all parties and organizations that decided to take part in the elections. The aim of d’Hondt method is
promote the largest parties. That way it is easier to create government. It prevents fragmentalisation of the
parliament. In the d’Hondt method we use a natural numbers as dividers.

 We know that list A receives 4 seats, but which candidates will receive the seats? In Poland there is an open

system – each voter is entitled to indicate a candidate who takes priority in terms of receiving a seat in a chamber.
Each voter in Poland has one vote, but this vote has two meanings – he indicates political party and within
political party he indicates a person, which is entitled to take a priority in terms of receiving a seat. When we
know that list A is entitled to receive 4 seats. We can distribute seats taking into account a particular number
within this list. The voter has an influence. The number of votes cast for particular candidate. This is so called
“open system”. Also more classic close system – a voter cast a vote only for a political party – only for a list. So
how do we know who will go to Sejm. Open list system (Poland) – a voter indicates candidate.

The Hagenbach-Bischoff formula

step: votes/ seats +1

Votes = total valid pole, i.e. the total number of valid votes cast in the elections in a constituency.
Seats = total number of seats to be filled in a constituency.

step: Q = V1/ D

 The Hagenbach – Bischoff. D – electoral divisor. Equation that constitutes a special electoral quarter. A second

step we are looking for Q – number of seats received by a list.

The Hare-Niemeyer method

Q = V1 x S / Vt = X,

D – electoral divisor determined in the first step
Q – number of seats received by a list
V1 – number of valid votes cast for a given list in a constituency
S – number of seats to be filled in a constituency
Vt – Total number of votes cast in a constituency
X, … - quotient, for instance 1.345 (integer + fractional remainder)

The number before the point = integer = number of seats received by a list.
In the Hagenbach-Bischoff and Hare-Niemeyer methods if all the seats have not been allocated then the remaining
seats are given to those lists of which successive quotients have the largest remainders.

 The Hare-Niemeyer method. Method of highest remainder – metoda największych reszt.
 In both German names methods – remaining seats are given to those lists that have the highest remainders. There

are taken into account if not all of the seats are allocated.

 Particular solutions. Sejm – multimember constituency in which d’Hondt method is used. In Kraków we have

constituency in which 14 deputies are elected. Why 14? Because a power of each vote should be more or less the
same throughout the whole state. In elections to the Senat before reform we have multimember constituency. In
each district except for two cases – two senators were elected. However, principle of substantive sense was
obeyed.

 Senate – single member constituency. Whole country is divided to 100 constituencies. There are no party lists in

case of Senate. One party is entitled to register one candidate. Each voter is entitled to cast one vote for one
candidate. Votes are counted and this candidate became senator who receives the higher number of votes.

 Active electoral right in Poland is connected with citizenship and the age of 18. In terms of national organs – only

citizens are entitled to vote. The full legal capacity is essential. A person who has been subjected to legal
decapacitation or deprived from capacitation is not entitled. The age border is higher than in terms active electoral
rights and amounts 21. In terms of senate this border is even higher. Every citizen can be elected if he or she
receives age of 30.

 The simple majority system is called in the scholarship – first past the post system (simple majority). It is used

in UK.

Czech Republic

 There are two chambers of parliament (principle of bicameralism). The Chamber of Deputies is composed of

200 deputies. The second chamber is called Senate and it has 81 senators.

 Senate. In Senate of Czech Republic the absolute majority system is used. In the Senate if this absolute is not

obtain in the elections the second round is mandatory.

 In terms of the elections to the Poslanecka snemovna (Chamber of Deputies) – proportional system, d’Hondt

method. In Poland each constituency - the number of seats to be located is determined by law (Cracow – 14). In
Czech Republic all depend on the turnout (frekwencja). The number of seats is not determined. The higher
turnout in the constituency is the more seats will be allocated. It promotes taking part in the elections. “Go to the
elections and in your districts will be more representatives”. The higher turnouts the more seats will be in you
district. This system is used in our elections to the European Parliament. The constituencies to the European
Parliament are determined after elections. It may be perceived also as unjust.

 How it is obtained? How to determine this number of seats in a particular constituency before using d’Hondt

method? The number of deputies elected in constituencies is determined by the means of the so-called “electoral
quarter”. The number of seats elected in the constituency is determined by electoral quarter. What do they do?
The total number of valid votes in the country is divided by the number of deputies (200). Than the total number
of valid votes casted in each constituency is divided by this quarter.

 First steps – the total number of valid votes is divided by 200. Than a total number of valid votes is divided by

this quarter. The results show how many seats should be allocated in a particular constituency and afterwards they
use d’Hondt system. The numbers of seats are not determined by the law.

Slovakia

 In Slovakia there is only one chamber of parliament. The name is Narodna Rada (National Council). This organ

is composed of 150 deputies.

 In case of Slovakia the whole country constitutes one big constituency. The country is not divided to many

constituencies. The Hagenbach – Bischoff method is used.

Hungary

 The new electoral law was passed and entered into force in January 2012. In older handbook the old methods are

digraph. According to new law, the Parliament is composed of 199 deputies. It is only theory because now the
Parliament was elected under previous system, and it is composed of 386 members.

 In Hungary electoral system is mixed. 106 deputies are elected in single member constituencies. In addition, the

first pas the post method is used. In case of multimember constituencies the d’Hondt system is used.

 There is mixed system in Hungary. There are single member constituencies - 106 are elected in single member

constituencies. The rest 93 are elected under proportional system, but there are national lists – whole country
consists of one constituency.

 In proportional representation system – not only vote’s casts for national lists but also the so-called unused votes

from single member constituencies. At the level of national lists – system of proportional representation – not
only votes for political parties but also those votes that were not necessary in single member constituencies –
those are also taken into account.

Constitutional systems. Lecture 5 (27.03.13.)

Status of a deputy, immunities

 Elections. The principle of proportional representation. Methods – names from the names of mathematicians,

lawyers, who created those formulas. Active and passive electoral rights.

 Poland – active electoral right to Sejm 18, same for Senate.

 Czech Republic. Electoral Rights to Poslamendzkas Nemovna – 21, and the same the right to be elected. Senate -

passive 40.

Slovenia

 Two chambers of parliament. First chamber (the main) Drżawni zbor (The National Assembly). The second

chamber is National Council (Drżawni svet). The National Assembly is composed of 90
deputies/representatives. National Council consists of 40 members. 1

chamber is elected every 4 years and the

is elected every 5 years. In 1

chamber conditions are equal: 18 years of age and full public rights. The whole

country to Drżawni zbor is divided into 11 constituencies. Constituencies are multi – member. There are two
special additional constituencies made for national minorities (Italian and Hungarian). The Constitution provides
for that one deputy from Italian minority and one from Hungarian must be elected to Drżawni zbor. Proportional
system is used in 11 constituencies, d’Hondt method and Drupp method of dividing votes.

 The second chamber. Its composition and electoral method are very interesting. Drżavni svet is not directly

elected (those are indirect). The members of this chamber are elected by electoral collegiums. Those collegiums
are formed by representatives of various groups of interests. These interests groups have a duty to compose
special collegiums in which the representatives to National Council are elected. The National Council is
composed of 40 members. 22 members are elected by local self-government and 4 members by organizations of
employers. Next 4 members are elected by farmers and independent professions (crafts, tradesman and other). 6
members are elected by non-commercial fields.

Lithuania

 Only one chamber of parliament called Seimas. 18 years of age. Electoral system – mixed electoral system: 71

deputies are elected by majority system. Single member constituencies. 70 are elected in proportional elections.
Single member constituencies – elections will be varlid only if turnout amounts 40%. Turnout in proportional
system amounts 25%.

Electoral threshold

(pl. próg wyborczy)

 In our sketch (above) list B or C could be omitted. Why? Because electoral thresholds involves before allocating

mandates certain result within whole country - all will be counted only if all receive 5%.

 Why (especially in sea states) electoral thresholds were introduced? In 1991 system of proportional representation

was based on Saint-Legue. Sejm elected in 1991 was fragmented and vote of no confidence for Hanna Suchocka’s
government was passed.

 5% in case of single parties and 8% in case of coalitions of parties in Poland.
 In Czech Republic electoral threshold it fluctuate from 5% - 20%. 5% in case of 1 party. 10% - 2 parties, 15% -

coalition of 3 parties. Threshold depends on number of parties, which create a coalition.

In party-list proportional representation systems, an election threshold is a clause that stipulates that a party must receive a minimum percentage

of votes, either nationally or within a particular district, to obtain any seats in the parliament. The effect of the threshold is to deny small parties the
right of representation or force them into coalitions, with the presumption of rendering the election system more stable by keeping out radical
factions. It is also argued that in the absence of a ranked ballot system supporters of minor parties are effectively disenfranchised and denied the right
of representation by someone of their choosing.

 Slovakia. Threshold requires – 5%, 2-3 – 7%; more than 4 - 10%.
 Electoral Thresholds may be used only in proportional elections.
 Hungary in case of proportional election the threshold is 5%.
 Lithuania – 5% and 7% for coalitions.

The status of deputies

 All duties and rights can be find either in constitutions or in standing orders of chambers of parliaments or in rules

of chambers of parliaments, or sometimes in specials statutes. The main right, main duty is to participate in
sittings of respective chamber. In Poland many scholars argue that every deputy, senator is not only entitle to be a
member of various commission but also has a right to be elected in at least one parliament commission. The
presence is usually a duty. In Poland it is very interesting – voting’s are cumulated at the end of sittings.

Immunities

 There are two or three forms of immunities: substantive one and formal one.
 Substantive immunity (immunitet materialny) – exclusion of criminality. This mean that some fact are normally

treated as a fact but it is not perceive as an offence. It never ends. Acts done in the scope of the mandate.

 Formal immunity means exclusion of responsibility. Act is an offence but he or she is not responsible because

he/she has immunity.

 Third institution: Personal inviolability – the deputy or other person cannot be arrested or detained without the

permission of certain organ. Is police entitled to arrest a deputy? No because he is protected by personal
inviolability.

 Driving under influence of alcohol is an offence protected by a formal immunity. Deputy killing someone is also

protected by formal immunity. Investigation possible if immunity would be removed. Launching investigation
against deputy who killed someone is connected with formal immunity – chamber would have to agree with this.
Arresting – personal inviolability. Deputy cannot be arrested or detained. There are exceptions, special
permissions that can be given.

 Art. 105 of Polish constitution.

Article 105
1. A Deputy shall not be held accountable for his activity performed within the scope of a Deputy's mandate during the
term thereof nor after its completion. Regarding such activities, a Deputy can only be held accountable before the Sejm
and, in a case where he has infringed the rights of third parties, he may only be proceeded against before a court with the
consent of the Sejm.
2. From the day of announcement of the results of the elections until the day of the expiry of his mandate, a Deputy shall
not be subjected to criminal accountability without the consent of the Sejm.
3. Criminal proceedings instituted against a person before the day of his election as Deputy, shall be suspended at the
request of the Sejm until the time of expiry of the mandate. In such instance, the statute of limitation with respect to
criminal proceedings shall be extended for the equivalent time.
4. A Deputy may consent to be brought to criminal accountability. In such instance, the provisions of paras. 2 and 3 shall
not apply.
5. A Deputy shall be neither detained nor arrested without the consent of the Sejm, except for cases when he has been
apprehended in the commission of an offence and in which his detention is necessary for securing the proper course of
proceedings. Any such detention shall be immediately communicated to the Marshal of the Sejm, who may order an
immediate release of the Deputy.
6. Detailed principles of and procedures for bringing Deputies to criminal accountability shall be specified by statute.

 Paragraph 1 – substantive immunity. It refers only to the activities connected with the respective chamber of

which a deputy is a member. What kind of activities? Speaking at plenary sittings, commission sittings. All things
connected with mandate. Substantive immunity lasts forever. Exception – infringement of a rights of third person

 Paragraph 2 – formal immunity. Refers to criminal accountability. Murderer can be responsible if a Sejm gives

his permission and if not - launching investigation will be not possible. It is not given forever – only for the time
the mandate lasts.

 Paragraph 5 – personal inviolability. Exception – deputy was caught red-handed. It is not absolute.

__________________________________________________________________________________________________

Constitutional systems 6 (3.04.13.)

Immunities. The structure of parliamentary chambers. The legislative procedure.

Poland

 Polish constitutionals provisions. There are all institutions: substantive, formal, personal inviolability.
 Substantive immunity occurs in art. 105 of polish constitution. The period of time in which this immunity is

valid? Art. 105 do not say expressly when the deputies’ mandate begins. Probably it starts after taking the oath. A
substantive immunity is absolute – a deputy is bound by this immunity to some extent. The chamber cannot
suspend it/ abolish it. A deputy is protected by this immunity even if he or she does not want so. This kind of
immunity cannot be abolished – it is absolute. It begins after the moment of taking the oath and never ends. It
protects only for those activities performed within the scope of this mandate. One exception – when a deputy has
infringed the rights of third parties – he may be preceded before the court within the consent of Sejm/Senate.

 Formal immunity. It begins exactly as it is said in article – from the date of announcement of result of the

elections (difference from substantive), and lasts until the day of expiring mandate. The formal immunity is not
absolute. It may be suspended when the Sejm gives its consent and the deputy may be subject to criminal
responsibility. A deputy may renounce this deputy. The formal immunity is not absolute – may be suspended by
respective chamber and the deputy himself may renounce this kind of immunity.

 Personal inviolability refers to detention, arrest of a deputy and it is not possible without consent of respective

chamber. This fact must be immediately communicated to the marshal of Sejm, or Senate. This protection
encompasses both Deputies and Senators; there are no differences between a status of a deputy and the status of
the senator. Today starts a sitting of the Sejm and lasts until the end of week. A special bill will be considered
dealing with a current statute of deputies.

 Art. 105 – “Criminal accountability”. Same term repeated in special Statute for Deputies. What does it mean

“criminal responsibility”? It is not defined in constitution. How to interpret it? Many people argue that
constitution does not define it so we have to refer it to criminal court. In constitution terms should be interpreted
as it is in constitution. In statute of the Deputies “Statute of executing the mandate of deputies” (“Ustawa o
wykonywaniu mandate posła i senator”). They add that formal immunity encompasses not only offences but also
misdemeanors (small offences). What if deputies are speeding? Now they want to make exception that traffic
offences are not cover by this immunity.

Czech Republic

ARTICLE 27
(1) There shall be no legal recourse against Deputies or Senators for their votes in the Assembly of Deputies or Senate
respectively, or in the bodies thereof.
(2) Deputies and Senators may not be criminally prosecuted for speeches in the Assembly of Deputies or the Senate
respectively, or in the bodies thereof. Deputies and Senators are subject only to the disciplinary authority of the chamber
of which they are a member.
(3) In respect of administrative offenses, Deputies and Senators are subject only to the disciplinary authority of the
chamber of which they are a member, unless a statute provides otherwise.
(4) Deputies and Senators may not be criminally prosecuted except with the consent of the chamber of which they are a
member. If that chamber withholds its consent, such criminal prosecution shall be forever foreclosed.
(5) Deputies and Senators may be arrested only if they are apprehended while committing a criminal act or immediately
thereafter. The arresting authority must immediately announce such an arrest to the chairperson of the chamber of which
the detainee is a member; if, within twenty-four hours of the arrest, the chairperson of the chamber does not give her

consent to hand the detainee over to a court, the arresting authority is obliged to release him. At the very next meeting of
that chamber, it shall make the definitive decision as to whether he may be prosecuted.

 Very interesting solutions. In the Czech Republic and Slovakia, the scope of the immunity is the largest among

the other states that we are speaking about. Art. 27 of Czech Constitution. Par. 1 i 2, 3 (disciplinary authority).
He/she may be responsible before special Deputy Council/Senate commission within the disciplinary proceeding.
Even the act is treated as a something covered by substantive immunity but he/she may be subject to disciplinary
proceeding.

 Paragraph 4 – formal immunity. In Poland it lasts until the expiring of the mandate. In Poland expiring of mandate

means expiring the formal immunity. If Kowalski is not a deputy anymore he may be prosecuted.

 Paragraph 5 – personal inviolability.

Slovakia

Article 78
(1) No Member of Parliament shall be prosecuted for his voting in the National Council of the Slovak Republic or in its
committees, not even after expiration of his or her mandate.
(2) No Member of Parliament shall be prosecuted for statements presented in duration of the post in the National Council
of the Slovak Republic or in its body, not even after expiration of his or her mandate. The Member of Parliament is
subject to disciplinary powers of the National Council of the Slovak Republic. Civil responsibility of a Member of
Parliament shall remain unaffected.
(3) No Member of Parliament shall be prosecuted, sanctioned by any disciplinary measure or held in pre-trial detention
without approval of the National Council of the Slovak Republic. If the National Council of the Slovak Republic denies
granting of such approval, the prosecution or pre-trial detention of a Member of Parliament shall be precluded during the
term of his mandate. In such case, the period of limitation does not lapse in duration of the mandate.
(4) If a Member of Parliament has been detained while committing a criminal offence, the competent body shall be
obliged to notify the President of the National Council of the Slovak Republic immediately. If the Mandate and Immunity
Committee of the National Council of the Slovak Republic does not approve the arrest consequently, the Member of
Parliament must be released immediately.
(5) In duration of the arrest, the mandate of a Member of Parliament is not terminated but shall not be exercised.

 Paragraph 1 – substantive immunity. Same situation.
 Paragraph 2 – formal immunity. The scope of the immunity is very broad (the immunity is large).
 Personal inviolability.
 A body, which is responsible for giving the consent, is not whole chamber – but a community of National

Council. Here it is not whole chamber, but a committee of the National Council.

Hungary

 Constitution does not refer to the scope of immunity, but a protection of immunity is regulated by the statute.

According to the special statute, it has two forms: substantive and formal. Substantive is constructed as usual –
during the whole cadency – the mandate and afterwards the deputy is protected. Formal immunity also defined
very similarly. It encompasses criminal offences and misdemeanors. A deputy can be subject to criminal
responsibility after the prior consent of the Parliament (consent of the Parliament is essential).

 In Poland formal immunity may be suspended by chamber but also a deputy may suspend its immunity. It is not

possible in Czech Republic, Slovakia, and Hungary (except misdemeanors – he is protected but he may disclaim
his rights). In Poland, a deputy can accept a fine, it is not included in this statute of executing of the mandate, but
there are some disputes in scholarship. What if deputy already has paid a fine? He removed his immunity, but it
does not have a legal basis for doing so.

Slovenia

Article 83 (Immunity of Deputies)
No deputy of the National Assembly shall be criminally liable for any opinion expressed or vote cast at sessions of the
National Assembly or its working bodies. No deputy may be detained nor, where such deputy claims immunity, may
criminal proceedings be initiated against him without the permission of the National Assembly, except where such deputy
has been apprehended committing a criminal offence for which a prison sentence of over five years is prescribed. The
National Assembly may also grant immunity to a deputy who has not claimed such immunity or who has been
apprehended committing such criminal offence as referred to in the preceding paragraph.

 Art. 83 refer to immunities. Paragraph 2 – formal immunity and personal inviolability.
 Some differences. A deputy is protected only or he/she claims the immunity (formal one).
 In terms of personal inviolability – there is exception. Only if he was caught red-handed but an offence which

he/she has committed was an offence for which he is prison sentence for five years is prescribed.

 The principle is that formal immunity protects immunity as long as it claims it. The rule is that he must claim.
 In which country is the highest protection and in which is relatively weak protection? In Czech republic and

Slovakia is the highest and the weakest is in Slovenia.

Lithuania

Article 62
The person of a Member of the Seimas shall be inviolable. A Member of the Seimas may not be held criminally liable,
arrested, nor may his freedom be otherwise restricted without the consent of the Seimas. A Member of the Seimas may not
be persecuted for his voting or his speeches at the Seimas. However, he may be held liable according to the general
procedure for personal insult or slander.

 It resembles the Polish provisions about infringement of the rights if third parties.
 Compare lithuanian case to the polish one. In terms of the exceptions to the rights of the third parties. There is one

exception. Is it the same, or only similar? Similarity: this is exception of substantive. What is the difference in
terms of procedure? General procedure. The consent of Sejm and Senate is necessary.

Election law

 Electoral threshold in Hungary. Are those unused votes counted? The threshold in Hungary amounts 5%, but it is

only for one political party. Nevertheless, for two political parties it is 10%, and for parties that are more political
it is 15%. In Poland, we have 5% and 8%.

The structure of the parliamentary chambers

 Typical structure. It refers to the all 6 states. Usually there is a head of the chamber. In Poland, we have

Marszałek (Marshall). In England, Marshall refers to the Army. There is Marshall, Speaker, and President of the
chamber. Always there is a head of the chamber.

 In all the 6 states, there are deputy speakers. Usually we have some body that connects all political circles in the

parliament. In Poland this body is called The Council of Seniors, In Czech Republic it is called a Steering
Committee. Other important organ of the chambers are the committees. There are various kinds of committees.
There are also special committees.

 What the President, the Marshal does? He represents the chamber. He/she summons the sittings, meetings of a

chamber. He or she undertakes other activities resulted from statutes, standing order of the chamber.

 The organization of Polish Sejm. The Marshal, the Presidium of the Sejm. It consists of Marshall and Deputy

Marshall. The Council of Seniors consists of the presidium and the president of the Sejm’s clubs and groups. A
club is a political caucus created by at least 15 deputies. A group consists of 3 deputies. Committees. Structure of
the senate is very similar. Presidium, the council of seniors, committees and Parliamentary clubs and groups.

 In terms of Poslanecka snemovna (Czech Republic). The name of the head is translated as a president of the

chamber of deputies. It is very confusing name to a head of the chamber. It is better to remember that the head of

Poslanecka snemovna is president or speaker. Vice presidents, deputy presidents, Steering Committee,
committees, clubs and groups. Clubs and groups have a political character. The Senate in Czech Republic: the
head – President, Vice-president, Committees and Commissions.

 National council in Slovakia. In the scholarship, they use an English name “speaker”. However, you may find

other names. Deputy speakers, Committees, Clubs and Groups. As you see, the structure is very similar. There are
no Steering Committees.

 Hungary, Lithuanian, Slovenian are very similar to those above.

The legislative procedure

 At the beginning, we will speak about normal. Because in each state we have some exceptions from the regular

procedure - normal, ordinary legislative procedure. There are so called “fast procedures”.

Poland

 Usually we have to begin from looking to subject responsible for legislative initiative. It is vested in the deputies

(from the standing order of the Sejm – minimum 15 members) or a committee of the Sejm, the President of the
Republic, the Council of Ministers, the Senate as the whole chamber, and a group of at least 100 000 citizens
having the right to vote in elections to the Sejm. Last institution is called popular initiative – certain group of
citizens.

 The procedure in the Sejm is composed of so called three readings (three stages), where Sejm considers a bill.

Committees are engage in this process, where there are responsible for working on the bill. When a Sejm passes a
statute, this statute is put forward to the Senate. A Senate in Poland is entitled to legislative veto. A senate has a
three options where it receives statute passed:

Is entitled to pass a bill. A bill, which has been pass by the Sejm, is called “statute” not a “bill”. It

becomes statute when all the stages are finished. However, it is not real statute because it requires other
stages.

The senate is entitled to introduce some amendments.

It may resolve to its complete rejections.

 The Sejm may overcome the Senate standpoint. The standpoint by the Senate may be rejected by the Sejm by

absolute majority of the votes.

__________________________________________________________________________________________________

Constitutional systems 7 (10.04.13.)

The legislative function of parliament

Poland

 Constitution and standing order of the Sejm and Senate regulate ordinary legislative procedure as well as other

special procedure. Ordinary legislative procedures and then few things about procedure to amend the Constitution
in Poland. The same things in terms of other states. At the end, a little bit about budgetary procedure - a way in
which a state budged is accepted.

 Subjects, which are entitled according to Polish constitution to put forward a bill. Among this subjects: a group of

deputy, parliamentary commission, the Council of Ministers, the Senate, the President of the Republic, popular
initiative.

 Bill - three readings. A reading is a stage in a procedure in passing a statute.
 The Senate stage. The Senate is a second chamber of polish parliament. It is entitled to accept a bill (a bill is

something that can become a statute but is not at the moment). The Senate has 30 days to decide upon a bill. If
Senate does not do anything – a bill is rendered as passed by the Senate. If a bill is rejected by the Senate, a bill
must be put forward to the Sejm again. Senate has a weaker position in terms of legislative procedure because
Sejm can overcome the Senate’s will. According to the polish constitution Sejm is entitle to reject Senate’s vote

by absolute majority. The quorum amounts at least half of statutory number (230). An absolute majority here is
taking into account.

 The last legislative stage is connected with the President of the Republic. He has three options, he must decide

what to do with the bill within 21 days. In so-called fast procedure President has 7 days only. The president has
three options:

He is entitled to sign a statute. Then a statute must be announced in an official journal of laws/statutes.

Everything now is in electronic form. The first option is connected with accepting a statute.

The second option – the President may refer the statute to the Constitutional Tribunal. This competence is

connected with so-called “preventive constitutional review”, constitutional review a priori.

To veto a bill/a statute. This options are alternative to one another. They must veto the bill or send statute

to the Constitutional Tribunal. When Constitutional Tribunal decides that statute is within conformity of
the constitution the President must sign the statute. He is not entitled to veto a bill when a Tribunal
decides that the bill is constitutional. If the Tribunal strikes down the statute than a president cannot sign a
bill.

 Presidential veto. Suspensory character – it may be overcome by the Sejm. In order to reject a presidential veto

a Sejm must pass a statute again but with a special majority of votes – 3/5 majority of votes in the presence of
half statutory number of deputies.

 The fast procedure. A days are shorter – a period of time in which a particular organ must do something. For

example in the fast procedure the President has 7 days for signing the statute and in normal one President has 21
days. In fast procedure Senate has 14 days. There are some further differences.

 The procedure to amend polish constitution. The procedure was included in chapter 12 of the polish

constitution. This chapter consists of only one article. Art 235

– this article refers to the procedure of amending

the constitution. What are the differences to the normal procedure?

The scope of subjects, which are entitled to put forward a bill, is different. A constitutional initiative

belongs to at least 1/5 of the statutory number of deputies, the Senate as a whole chamber and President of
the Republic.

The second difference is that in normal procedure Senate is entitle to veto a bill or to introduce some

amendments and in constitutional procedure senate is not entitled to do so. A Senate can only accept or
reject a constitutional bill. If the Senates rejects – the whole procedure is finished. A Senate cannot be
overruled by the Sejm. In case of constitutional procedure a legislative role of Senate is stronger. In order
to pass a constitutional bill the Sejm and the Senate must pass this bill, must support an amendment.

Third difference. The President of the republic cannot veto a constitutional bill. President must sign a

constitutional bill, which was passed by the Sejm and the Senate.

The most important difference. Majorities are different. In a normal procedure simple majority is

enough to pass a peace if legislation. In case of constitutional amendments the majorities in the Sejm and
the Senate are different. In the Sejm they must be support by at least 2/3 of deputies present in the

Article 235

1. A bill to amend the Constitution may be submitted by the following: at least one-fifth of the statutory number of Deputies; the Senate; or the President of the
Republic.
2. Amendments to the Constitution shall be made by means of a statute adopted by the Sejm and, thereafter, adopted in the same wording by the Senate within a period
of 60 days.
3. The first reading of a bill to amend the Constitution may take place no sooner than 30 days after the submission of the bill to the Sejm.
4. A bill to amend the Constitution shall be adopted by the Sejm by a majority of at least two-thirds of votes in the presence of at least half of the statutory number of
Deputies, and by the Senate by an absolute majority of votes in the presence of at least half of the statutory number of Senators.
5. The adoption by the Sejm of a bill amending the provisions of Chapters I, II or XII of the Constitution shall take place no sooner than 60 days after the first reading
of the bill.
6. If a bill to amend the Constitution relates to the provisions of Chapters I, II or XII, the subjects specified in para. 1 above may require, within 45 days of the adoption
of the bill by the Senate, the holding of a confirmatory referendum. Such subjects shall make application in the matter to the Marshal of the Sejm, who shall order the
holding of a referendum within 60 days of the day of receipt of the application. The amendment to the Constitution shall be deemed accepted if the majority of those
voting express support for such amendment.
7. After conclusion of the procedures specified in paras 4 and 6 above, the Marshal of the Sejm shall submit the adopted statute to the President of the Republic for
signature. The President of the Republic shall sign the statute within 21 days of its submission and order its promulgation in the Journal of Laws of the Republic of
Poland (Dziennik Ustaw).

presence of at least half statutory number of deputies. In the Senate the majority is not so high and it is
absolute majority vote in the presence of at least half.

Czech Republic

 Legislative initiative: a deputy [in Poland it is a group of 15 deputies and here it might be just one], the Senate,

the Government, a Representative organ of local highest government Unit (Region – higher self government unit).

 Poslanecka snemovna. Three stages and three reading.
 A Senate has 30 days to decide upon a bill. Senate receives a bill passed earlier by Poslanecka snemovna. The

Senate may:

Adopt a bill without any amendments;

Adopt some amendments;

Resolve upon its complete rejection.



This is very similar to the polish case.



In the legislative procedure of the Czech Republic Senate’s position is weaker that the legislative

role of the Poslanecka snemovna, because Senate’s standpoint may be overruled.

 If the Senate rejects a bill deputies in Poslanecka snemovna must take a second vote upon a bill, which was

rejected by the Senate, and if the bill is passed by absolute majority of all deputies it is considered to be passed.
The Senate’s standpoint is rejected. After Senate’s stage absolute majority is necessary. Poslanecka snemovna
overcome Senate’s standpoint and absolute majority is necessary here like in Poland.

 What happens if the Senate introduced some amendments? In such circumstances a bill returns to Poslanecka

snemovna and deputies there shall vote on a bill as amended by the Senate. If Senate introduce some amendments
a deputies must vote again but on a version of a bill as amended as a Senate.

 What happens if a bill is not passed because deputies do not do anything. They must vote again on the version,

which was put forward to the Senate. They are obliged to vote on a pure version without Senate’s amendments. A
bill is considered passed when it is supported by absolute majority of votes. Absolute majority of all deputies here
is essential to pass a bill without Senate’s amendments.

 If Poslanecka snemovna is not able to submit version of the Senate it must vote again on a previous version, and if

this pure version is passed by absolute majority of vote a bill is considered to be passed.

 Presidential stage in a Czech Republic of legislative procedure. A President of the republic has two options:

To sign a bill as accepted by the parliament, or

To veto a bill.

 The presidential veto can be overruled/ overturned/ rejected by absolute majority of all deputies. It is a difference

if you compare this stage with a polish counterparties, because in Poland it is rejected by 3/5 in the presence of at
least half and here absolute majority of all MP’s. In Poland when the presidential veto is rejected a President is
forced to sign a bill. In the Czech Republic if the President decides to veto bill and the veto was rejected the
president is not forced to sign but it becomes a statute without presidential signature. They assume that President
does not want to put his signature when he does not agree with the statute, but this becomes a statute anyway. It is
just a formal thing – only signature of the Speaker of Poslanecka snemovna.

 A statute can be promulgated. In the Czech Republic when Poslanecka snemovna has been dissolved the Senate

has a power to adopt special statutory measures. It is something, which is normative acts, which have same
forms as statutes, but they can only be passed when Poslanecka snemovna is dissolved and only in matters when it
cannot be delayed. When the Poslanecka snemovna is dissolved than the Senate is entitled to adopt a special
statutory measures. “In matters that cannot be delayed”. These measures must be approved by the Poslanecka
snemovna on its first sitting. If not - a measure losses its validity. The initiative here belongs only to the
government. Only government is authorized to submit a proposal for such measures to the Senate.

 There are some exceptions – situations when statutory measures cannot be issued. The substantive scope of such

measures is limited. Not everything can be regulated in such a form. Exceptions:

Matters related to state budget,

State financial account,

electoral law,

Accept of international treaties.

 It has extra ordinary character. In Poland we do not have such a thing.
 The procedure to amend Czech Constitution. In terms of constitutional initiative. It belongs to the same

subjects that posses legislative initiatives. Special majorities are used in order to passed a constitution amendment.

 In Poslanecka snemovna an approval of 3/5 majority of all deputies is required. In the Senate an approval of at

least 3/5 of Senators present is required.

Slovakia

 In Slovakia legislative initiative is vested in Committees, Deputies and the Government.
 Three reading in Narodna Rada (National Council). There is no second chamber, so we do not have second stage.

A statute passed by the National Council is put forward to the President of the Republic.

 In Slovakia like in Czech Republic a President has a right to veto a piece of legislation. This veto like in Poland

and Czech Republic does not possess absolute character but may be rejected by the National Council by
majority of all deputies. Like the Czech republic if presidential veto is rejected – statute will be promulgated and
President is not forced to sign something but the statute would be announced. We are speaking about ordinary
procedures only.

 Procedure to amend constitution. As far as initiative: belongs to the same subjects as to ordinary legislation (as

in Czech Republic). The majority, which is used, is qualified one and amounts at least 3/5 of all deputies. The
President is not entitled to veto a constitutional bill.

Slovenia

 The legislative initiative: the Government, deputies (any deputy) and 5000 voters (popular initiative – in Slovenia

we have 2 million inhabitants and 40 million in Poland with 100,000 popular initiative).

 There are two chambers of parliament. Drżavni zbor is the 1

chamber. There are some disputes whether National

council (Drżavni svet) might be consider as the 2

chamber. The President does not possess a right to veto, but

the veto belongs to National Council. The National Council is not entitled to make some amendments (like Senate
in Czech Republic), but may return a bill for reconsideration.

 [The Drżavni zbor (The National Assembly) > < Drżavni svet (National Council)]. In order to rejects National

Council’s veto National Assembly must decide on the bill and majority of all deputies is required.

 The procedure to amend slovenian constitution. Constitutional initiative - proposal may be prepared by at least

20 deputies (in normal situation – any deputy); the Government and 30,000 voters. Such proposal must be
supported by National Council in order to begin some further procedures. At this stage 2/3 of deputies present
must support this initiative. If this proposal is supported the next step can be launched. This is only the first step.
If a proposal is accepted than a second step can be launched. In the second step there are debates concerning the
proposal. Deputies may introduce some amendments, they are entitled to make a text smoother in terms of
legislative technique. The National Assembly adopts constitutional amendments by a 2/3 majority votes of all
deputies. There are three steps: initiative, the first vote where 2/3 majority is required, deliberating the proposal,
adoption/rejection of constitutional amendments.

 It may happened that at least 30 deputies ask for a referendum. Referendum is not mandatory if there is no

request.

In Poland there is similar situation. If subjects who are entitle to submit constitutional proposal asks and

the amendments refer to the first, second and third subject than the referendum is mandatory.

 In Slovenia is similar. A referendum is not obligation, but only if such motion is submitted. Here in Slovenia a

referendum can be organized if amendments concur all the provision of the constitution (in Poland chapter 1, 2
and 3).

Constitutional systems 8 (17.14.13.)

Legislative procedure

Lithuania

 Ordinary legislative procedure. Initiative: deputies, President of the Republic and the Government. We have

also popular legislative initiative (same in Poland and Slovenia). In Lithuania 50,000 voters/ citizens having
active electoral right are entitled to put forward a bill.

 How many voter/ citizens were entitled to put bill in Poland? 100,000; Lithuania 50,000; Slovenia – 5,000.

Comparable are Slovenia and Lithuania – because in both countries there are only about 2 mln inhabitants.

 In Lithuania there is no second chamber. The whole procedure takes place in one chamber – the Seimas.
 A bill, which has been enacted in Seimas, goes to the President of Lithuania. What he is entitled to do? He has a

right to veto a piece of legislation, which was sent to him. The President is entitled to return a bill to the Seimas
(but with some restrictions). As in case of other states Presidential veto is not absolute. The president is entitled to
suspend this process and the presidential veto may be overturn by at least half of the members of the Seimas in
ordinary procedure.

 Constitution procedure. In Lithuania the interviews are under Constitutional/ Cardinal acts. This category

must be distinguish from acts, which lead to direct amendments of the Constitution. There are two separate
categories. They are constitutional acts but not in a meaning of the Lithuanian constitution. In order to amend
constitution the Lithuanian Seimas must adopt special acts, which provide for special procedures. The different
situation is when the Seimas wants to accept so called constitutional act. Constitutional act must be envisage in
the constitution. If a provision of Lithuanian constitution allows so – a cardinal act can be passed. The problem is
that the constitution in one of its articles obliged the Sejmas a special piece of legislation in which a piece of
legislation would be provided. There should be a list of constitutional/ cardinal acts. However, Seimas has never
passed such a piece of legislation. That is why before passing a cardinal act an amendment of the constitution
must be prepared and passed. If the Seimas wants to pass a cardinal act before ruling so – the constitution must be
amend. Provision of the constitution must envisage passing those acts. Until now there were two attempts to pass
such a cardinal acts. One attempt failed and now the system of sources of law of Lithuania is in form of one
constitutional act. Two categories:

Cardinal acts

Acts, which lead to amendment of the constitution.

 Are there any differences between constitutional acts and regular? Different majority is needed. In normal

statutes – ordinary majority is efficient to pass such an act and in terms of cardinal acts absolute majority is
essential. According to the fathers of the lithuanian constitution – cardinal acts should have certain provision.
Cardinal acts should be passed by special majority of deputies.

Second difference in terms of legislative procedure – it is very difficult to amend cardinal act. In order to

amend such an act a special majority must be used. In this case the amendment of this act can be passed
by 3/5 majority votes of all deputies. It is easier to passed a new act than amend the old one. Absolute
majority is required in passing and in case of amending – a qualify majority is essential (3/5). Usually the
Sejm majority are used in terms of passing and amending.

 How to amend constitution? How to made amendments? We have to distinguish those provisions which can be

amend in normal/regular way and other that can be changed in other procedures.

 Most significant provision included in the 1

chapter and chapter no 14 may be changed only in the referendum.

They include most important provisions.

 14

chapter refers to the procedure of amendments. This procedure may be changed only in referendum. To make

a matter more complicated the provision of art. 1

may only be changed in referendum when no less than ¾ of

citizens vote in favor of this amendment.

Article 1. The State of Lithuania shall be an independent democratic republic.

 Art. 1 – this is very difficult to amend this article: first of all the referendum must take place and special majority

must be used.

 As far as other provisions of lithuanian constitution – they may be changed when these amendments are supported

by the Seimas in two votings (as you know there is no second chamber in Lithuania). In order to make this
procedure more difficult Seimas must vote upon amendments of the constitution twice. Two vottings must take
place – double vote and in order to pass an amendment at least 2/3 MP’s must support the amendment. Two
important things.

The Seimas must vote upon amendment twice, and

second majority each time must be 2/3 of MP’s.

 If the Seimas passes such amendment a constitutional statute with these amendments goes to the President of the

Republic and he must sign a statute. He is not entitled to veto constitutional amendments.

Hungary

 The Legislative initiative belongs to the President of the Republic, the Government and to the deputies. There are

no ordinary solutions in terms of the legislative initiative. We have only one chamber and the whole procedure
takes place in this chamber.

 The institution a priori control of constitutionality of statute initiated by parliament. Usually a priori control

(preventive one), control of whether a statute is in conformity with constitution – usually it might be initiated by
President of Republic (Poland). A priori constitutional review might be initiated by the parliament. Before a final
vote parliament may decide to send this bill to the Constitutional Tribunal. A motion upon which this decision is
being made may be put forward by the Government, the Speaker of the House and both subjects that introduces a
bill.

 If a Statute is not in conformity with constitution it cannot be presented to the President of the Republic. If the

Tribunal decides that a statute is coherent with Constitution – the Speaker of the Parliament must put forward this
statute to the President of the republic. What President of the republic can do? President can sign a statute or
might veto a statute. In Poland this options were alternative. Either motion to the tribunal or a veto. In Hungary a
priori review took place – president may return a statute to the parliament. Not for the constitutional reasons, but
President may refer to other arguments.

 It may happened that status is passed without initiative of a priori review of the Parliament. The President in these

circumstances has the same right as in Poland. At this level, if that control was not initiated by the Tribunal in
such circumstances President must sign a statute. We have to distinguish:

A priori initiated by Parliament

A priori initiated by President. If Parliament did not find any violations – a president must sign a bill. If a

statute is not constitutional – a statute should be corrected in the Parliament. President cannot sign such
statute.

 The procedure to amend Constitution. The subject is the same (President, government, deputies). 2/3 majority

vote of all members of parliament is required here to amend constitution (2/3 is usual requirement). Now the
ruling party has more than 2/3 (Fidesz). They could even pass a constitution without an opposition.

 The President of the Republic like in other states is not entitled to veto the amendments of the constitution. The

right to veto does not exist here.

 Budgetary procedure. It means that in this procedure a state budget is accepted. In all the states except for

Slovenia a state budget is submitted and passed as a bill. Budget is included in a bill and procedure to pass a
budget is similar to legislative procedure but there are some differences. Budget is passed in a form of statute.

 There are some exceptions in case of legislative procedure and other legislative procedure. In all the states

government is the only subject, which is entitled to submit a draft of the Budget. A budgetary initiative belongs to
government in all the states. A Senate does not take place in budgetary procedure. In Poland Senate participates
but its powers are limited. Senate is not reject a budgetary bill but is entitle to introduce some amendments.

 The Senate in Poland in normal legislative procedure has 30 days for adopting a statute. In budgetary procedure –

within 20 days. In Hungary they may not adopt a state budget which could lead to that national debt in total would
exceed more than half gross domestic product.

 The legislative function is the main function of all the Parliaments. The 6 states the parliament do posses some

further functions.

 Two further functions of the Parliament. The second important function in all the Parliaments is the control

function of Parliament. This function encompasses many instruments.

Control function

 What does it mean to control something in administrative law? A term “control” is usually used by scholarship of

administrative law. The control in administrative law refers to the process of checking whether a factual state of
affairs compare the current situation with a new one on the ground of the law. A similar notion to control process
is the notion of supervision. Let us consider the differences. Between supervision and control?

Control – doesn’t encompass a great influence in the subject which is under control.

Supervision – involves direct influence on the subject, which is under supervision. Organ, which is

supervising might made somebody liable for some acts. Supervisory organ may influence the organ,
which is under supervision.

 In constitutional law term “control” – also some elements of political control. One of the most important

instruments of parliamentary control is the issue of confidence. A chamber of parliament may accept so called “no
confidence motion”. Accepting no confidence motion leads to recalling the government. According to the notion
of administrative law we would not treat it as a control.

 In constitutional law control is a little bit different. The government is entitled to exist if it is supported by

Parliament, when it enjoys parliamentary confidence. If no confidence motion is passed than a government must
be recalled. In many cases this leads to the new popular elections. In this context political control is something
different. If we want to speak about control function in a strict sense there are many instruments:

 Questions formulated to the ministers. Question is not something that can be treated as supervision.

Parliamentary question may be treated as a control in a strict sense.

 In all states special comities can be appointed and these committees are competent to lead special investigations

concerning some political affairs/ scandals. Usually this bodies/special investigation committees in their
proceedings use procedures characteristic for penal procedure. In many ways they can act as courts but with some
restrictions. They are not entitle to sentence anybody.

 In Poland/Czech Republic it is limited to 1

chamber. Some scholars argue that one might identify some

instruments. According to the constitutions as such Senates are not the organs entitled to control the Government.
The Control function – Sejm and Poslanecka snemovna.

 In Slovenia as far as the national council is concern has limited control function. It is connected with art. 93 of

Slovenian constitution. Translations of these committees vary. According to British law this committees are called
select committees. However, it is better to use term “investigative committees” they are created ad hoc. If a
scandal occurs a committee can be appointed and is able to examine some matter of public importance. They are
not entitled to substitute Courts. Some argues that creating such committees is an infringement of legislative
power. Legislative power cannot lead the investigation.

Creative function

 What does it mean? It is the function, which consist appointing persons for particular state offices. The Sejm of

Poland appoints the polish ombudsman with the consent of Senate. The President of supreme office with the
consent of Senate. This competence falls into category of creative function. Many scholars argue about more than
3 functions. Some scholars now identify very important 4

function – European function. All activities

connected with parliamentary competence connected with European union. Other scholars argue that all this
functions should be called European function. Thanks to Lisbon treaty many competences of national parliaments

possess EU institutions. Such competences are not derived from national constitution but directly from Lisbon
treaty.

__________________________________________________________________________________________________

Constitutional systems 9 (24.04.13.)

Revision of parliaments. Executive power

Poland

Czech Republic Slovakia

Hungary

Slovenia

Lithuania

Name in the
original
language

Sejm, Senat

Poslanecka
snemovna, Senat

Narodna Rada

Orszaggyules

Drzavni zbor,
Drzavni svet

Seimas

Name

English

Seym + Senate

Deputy Council
+ Senate

National
Council

National
Assembly

National
Council

Seimas

Number

deputies

460/100

200/81

150

386 (199)

90/40

141

Term of office

4 / 4

4 DC / 6 Senate
(but every 2
years

1/3

senators

are

elected)

4 NA / 5 NC

Elections to the
first chamber

Proportional
representation
(the

d’Hondt

formula)

Under

the

principles of the
absolute
majority

Indirect,
members of the
National
Council

are

elected

electoral
colleges
composed

various groups
of interests

Legislative
initiative

15 deputies /
committee

Seym / Senate /
President

government

100,000 voters

A deputy / a
group

deputies / the
Senate

the

government / a
representative
organ of the self-
government

Parliamentary
committees /
any deputy /
the
government

Any deputy /
the President of
the Republic /
government

parliamentary
committees

Any deputy /
the government
/ at least 5,000
voters / the
National
Council

Any Deputy / the
government / the
President of the
Republic / 50,000
voters

Suspensory
Presidential
veto

+
(it

doesn’t

encompass

budgetary
statute

and

amendments of
the constitution)

+
(it

doesn’t

concern

constitutional
bill)

+ (it doesn’t
concern

constitutional
bill)

+ (it doesn’t
concern

constitutional
bill)

+ (also in case of a
cardinal act. See
art. 69, 72, 150;
however president
may

not

veto

amendments to the
constitution). The
President may not
veto those laws,
which

were

accepted

referendum.

Presidential
veto may be
overruled by …

3/5

majority

vote

the

presence of at
least half of the
statutory
number

deputies

absolute

majority of all
the deputies

absolute

majority of all
the deputies

Repassing a law -

absolute

majority of votes of
all the deputies
(ordinary statutes)
or by a 3/5 majority
of votes of all the
deputies (the so

called
constitutional law)

Supervisory
(control)
function

+ (Seym)

+ (The chamber
of Deputies)

Creative
function
(appointments
to

particular

state offices)

Poland

Czech Republic Slovakia

Hungary

Slovenia

Lithuania

 Important: numbers of deputies (Hungary – future number is 199); term of office; second chamber.
 Poland – majority system. Formula, which is used: past the post. Simple majority is used. A candidate wins within

highest number of votes.

 Legislative procedure. Poland: deputies (15, or commission in a sejm), Senate (as a whole chamber)
 Ordinary legislative procedure. Slovenia, Lithuania – popular initiative exists. Slovenia – 5k voters, in Lithuania

50k voters, 100k in Poland. Fast-track procedures – exceptions.

 Presidential veto.

Poland: President cannot veto budgetary statute and amendments to the constitution.

Lithuania – may be used in ordinary procedure and passing act (69

, 71

, 150

), but president may not

veto amendment to the constitution. Two kinds of bills: cardinal acts and other constitution acts. Before
passing cardinal act Seimas must pass an amendment of the Constitution, because Constitution envisaged
that a list of cardinal acts that must be prepared by Seimas.

Same majority as it was while passing – re-passing the law, no special majority to overcome presidential

veto in Hungary.

Lithuania – absolute majority in ordinary, and 3/5 in constitutional law/cardinal acts. Should be passed

with absolute majority but chanced with 3/5 majority

Control function

 Poland and Czech Republic – 1

chamber. Scholarship identifies some institutions as control institution.

European function

 Contemporary function. National parliaments have limited competents, because many issues must be regulated by

primary or secondary European law. Parliament is entitled in European lawmaking. This participation is not
decisive. Parliaments are entitle to give opinions concerning European acts. Sometimes they are entitled to
changed it.

Executive power

 Traditional feature of parliamentary system of government is dualism of executive. It means that in classical

parliamentary system. This system was created in UK. There is a head of a state with representative functions and

Article 69. Laws shall be adopted at the Seimas according to the procedure established by law. Laws shall be deemed adopted if the majority of the Members of the

Seimas participating in the sitting have voted in favour thereof. Constitutional laws of the Republic of Lithuania shall be adopted if more than half of all the Members of
the Seimas vote in favour thereof and they shall be altered by a not less than a 3/5 majority vote of all the Members of the Seimas. The Seimas shall establish the list of
constitutional laws by a 3/5 majority vote of the Members of the Seimas. Provisions of laws of the Republic of Lithuania may also be adopted by referendum.

Article 71. Within ten days of receiving a law adopted by the Seimas, the President of the Republic shall either sign and officially promulgate the law, or shall refer it

back to the Seimas together with relevant reasons for reconsideration. If the law adopted by the Seimas is not referred back and is not signed by the President of the
Republic within the specified period, the law shall come into force after it is signed and officially promulgated by the Speaker of the Seimas. A law or other act adopted
by referendum must, within 5 days, be signed and officially promulgated by the President of the Republic. If the President of the Republic does not sign and promulgate
such a law within the specified period, the law shall come into force after it is signed and officially promulgated by the Speaker of the Seimas.

Article 150. The constituent part of the Constitution of the Republic of Lithuania shall be: The Constitutional Law “On the State of Lithuania” of 11 February 1991;

The Constitutional Act “On the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions” of 8 June 1992; The Law “On the Procedure for Entry into
Force of the Constitution of the Republic of Lithuania” of 25 October 1992; The Constitutional Act “On Membership of the Republic of Lithuania in the European
Union” of 13 July 2004. Amendments to the Article: No. IX-2343, 13.07.2004, Valstybės žinios (Official Gazette), 2004, No. 111-4123 (17.07.2004)

with government, which is the main part of the executive. Constitutional position of presidency varies and
President has sometimes more competences and his constitutional role is sometimes stronger.

Poland

 There is dualism of executive. It is a kind of teaching method to described current state of affair. In practice it is

simplistic vision. Now executive is dualistic. When we are speaking about dualistic we are thinking about two
executive organs. When constitution says that the executive power is vested in Prime Council of Minister and
President it must be read with the chapter connected with Council of Ministers, which consist of Ministers and
Prime minister.

 Head of a state appoints government. It exists in United Kingdom, where the queen appoints Ministers. The queen

appoints Prime Minister. According to law, President may appoint whomever he wants, but he must take into
account the results of the elections. The Prime Minister proposes composition of the government. Than the
President appoints whole Council of Ministers.

 The government must prepare program and present it to the Sejm (expose). Than Sejm must decide whether to

give the vote of confidence by absolute majority of votes in the presence of half of the whole chamber. If it fails –
the second step is going to be introduced. If it fails than the third step – the initiative turns to Sejm itself.

 Later a candidate for Prime Minister and candidates for Ministers must be supported by Sejm. Than the president

is forced to appoint such government elected by the Sejm itself. The role of President, when it is quite difficult to
build a political coalition.

 What happens if third step fails? There are 30 days deadlines. The third step resembles the first – the initiative

comes back to President. Vote of confidence is passed with simple majority (first time happened with Marek
Belka being appointed this way). However, it may happen that the third step fails. In this circumstances President
is obliged to dissolve a Sejm and call for a new elections. Ratio decidendi was to avoid constitutional deadlock.

Czech Republic

 The Prime Minister is appointed by President and Ministers are appointed by President upon Prime Minister

motion.

 There are 30 days for composition of government. Than government is obliged to submit a program and asks for

vote of confidence.

 If 1

procedure fails than the same procedure is repeated.

 If the procedure is repeated and it does not bring results the President appoints Prime Minister upon the proposal

of the Speaker of the Chamber of Deputies (3

option).

 All this procedures – absolute majority is necessary.
 What happened if government is not elected? The President may dissolve the chamber. However, president is

not obliged to do so. He has a right to dissolve but it is not mandatory. Reasonably would be a call for new
elections.

__________________________________________________________________________________________________

Constitutional systems 10 (8.05.13.)

Political responsibility of the government

 Polish procedure. Composed of three steps. The aim of these procedures was to avoid the constitutional deadlock

where there would be some problems in terms of building coalition.

 Creating various procedure of creating government is very characteristic for new constitutions – in older ones

there is usually one procedure.

Slovakia

 One procedure described in the constitution. Solution, which is used in this constitution, is quite typical for a

parliamentary system of government. Prime Ministe3r is appointed by the President of the Republic on the motion
of prime minister.

 Government is obliged to present its program to the parliament (national council). The parliament is obliged to

vote on this issue

 The majority for passing this vote of confidence is absolute majority of all deputies – must support the program of

government and then the government may remain in power.

 The President of the Republic may dissolve national council when the program of the government was not

approved within 6 months. After 6 months a new elections may be called.

Slovenia

 Initiative of submitting Prime minister belongs to the President of the Republic. Government elected by Drżavni

zbor (National Assembly).

 A candidate must be chosen as a Prime minister. It is not a president who appoints – the Prime minister must be

elected, appointed by the parliament as such. President submits candidate. President candidate might fail. What
happens when Prime minister is not elected? The President must/is obliged to consult within other candidates and
he/she is obliged to submit a new candidate or a new candidate again, but this stage. When the 1

procedure fails

– the second stage is used.

 Parliamentary groups may proposed their own candidates apart from presidential candidate. At this stage each

candidate is voted separately beginning with candidate proposed by a candidate. If there is more than one
candidate – a presidential candidate is voted, if he is not elected – next further candidates are voted.

 What if the Prime Minister is not elected in second step? In this circumstances president dissolves National

Assembly and calls new elections unless the National Assembly within 48 hours decides to hold new elections for
a Prime Minister. Prime Minister is elected by absolute majority of votes of all deputies. This decision concerning
new elections is taken by absolute majority of those present. When a National Assembly decides that a new
elections should take place – than the president and parliamentary groups are entitled to submit candidates for
Prime Minister (situation in which National Assembly decides about new elections).

 Each candidate is voted separately. In first steps majority of those deputies present.
 In Slovenia Ministers are elected by the National Assembly. When a Prime Minister is appointed he composes his

cabinet and presents his candidates for ministers and request to elect those candidates. How it happens in practice?
They elect them on block – they do not vote separately on particular ministers but in terms of government on-
block.

Hungary

 Situation resembles Slovenian case. Prime minister is elected by parliament. President appoints candidate and

then a parliament must take a decision. The necessary majority amounts majority of all deputies.

 In terms of Ministers there are differences.
 President of a Republic is obliged to submit a new candidate for prime minister within 15 days.

Lithuania

 One procedure. The Prime Minister is appointed by the president of the Republic within approval of the Seimas.
 Candidate must discussed with parliamentary groups. Presidential proposal must take into account results of the

elections.

 Ministers appointed by the President upon the motion of Prime Minister.
 When the government is composed – a government is obliged to present its program and the Seimas is obliged to

vote on the issue of confidence. Vote of confidence in Lithuania is passed by majority of all deputies.

 The second step: appointment of ministers than voting upon the question of confidence in the Seimas. If Seimas

has not passed vote of confidence? Only one procedure is describe - President is entitled to dissolve Seimas if the
Seimas fails to adopt a decision of a new program of the government.

 When a political crisis occurs and when it is impossible to build a ruling coalition, the Seimas is entitled to take

some attempts to support a government but if is not possible – a new elections must take place.

 Difference when there is 30 days and when there is 6 days:

30 days when parliament does nothing and then a president must decide whether to dissolve parliament or

not

6 days when a Seimas did not appoint a government.

 The first situation is when the Sejmas did not decide anything within 30 days.

Political accountability of government

 In all 6 states the parliamentary cabinet system exists. Governments may function in so far. Political

accountability of government is connect with the issue of lacking confidence. Parliament begins not to accept
governmental policy. When a ruling coalition is stable, when a ruling party is very strong, it is very unusual to
pass a vote of no confidence. In many states parliamentary passing a vote of no confidence happens when a ruling
coalition is about to collapse. For example in Slovenia it happens – the vote of no confidence was passed in
march without new elections and they have new government.

 In some states it is not possible to submit a motion concerning a vote of no confidence without a constructive

proposal with a candidate of new Minister.

 In Poland vote of no confidence has a constructive character. A constructive no confidence motion – a group of

deputies are entitled to submit such a motion only if within this motion a candidate for Prime Minister is included
in it. Sometimes the opposition is very strong. All the opposition may be interested in changing the government
but very often political parties in opposition are not able to agreed for one candidate who would be able, who
would have a chance to win this vote.

 What is the purpose of this institution? It is difficult to overturn the government. Sometime opposition may

collect the majority but cannot submit candidate who would be supported by majority of the parliament (Polish
casus: SLD, RP + PiS). It is easier to pass a vote of no confidence when it is not a constructive.

 Constructive vote of no confidence – it is German institution. It was introduced for the first time in Weimar

constitution and now this institution exists in a constitution of 1949 (current German constitution). It is very
characteristic for chancellery system of parliament. In Germany a position of Prime Minister is very strong One
characteristic feature is inter alia – a constructive no confidence motion. Out of out 6 states chosen for purpose of
our course it exists in Poland, Slovenia and Hungary.

Poland

 Constructive no confidence may be supported by 46 deputies. This group of deputies must specify the name of a

Prime Minister.

 If vote of no confidence has been passed than the President must accept resignation and is obliged to appoint a

new Prime Minister. President must accept the choice of the Sejm. Such elected Prime Minister decides to appoint
Ministers and than Ministers are appointed by President upon his motion.

 In Poland this vote is passed by absolute majority of all deputies. Therefore, it is very difficult to pass such a

motion. In procedure to form a government. In terms of no confidence – absolute majority is necessary.

step – different majority – absolute majority of deputies in the presence of half number of deputies.

It is more difficult to pass a vote of no confidence that to pass a vote of confidence.

 Vote of confidence - procedure to form. Vote of no confidence – constructive one.
 Vote of no confidence may be passed against particular Minister. If parliament passes it than a President is

obliged to dismiss such a Minister. Prime Minister must submits a motion concerning a candidate with a name of
a candidate for a Minister and a President is obliged to appoint.

 In Poland the Sejm is entitled to pass a vote of no confidence and a President is obliged to dismiss such a minister.

In addition, Prime Minister is obliged to submit such a motion. President appoints but it is a formal act.

 Majority, which is necessary to pass a vote of no confidence. The majority is the same as in constructing no

confidence motion – absolute majority of all deputies.

 If a ruling coalition is stable and has a strong coalition – an opposition is not able to do anything. A vote of

confidence upon a Prime Ministers motion.

 Three issues:

A constructive no confidence motion – absolute majority. May be submitted by 46 deputies. Majority:

absolute majority.

A no confidence motion against an individual minister. Submitted by 69 deputies. Absolute majority.

A confidence motion presented by the Prime Minister. Within the term of office the Prime Minister for

some reasons wants to show a public opinion that he enjoys support of the Sejm. Simple majority of
deputies present.

 Steps:

absolute majority in presence of half number of all.

-//-

3 rd step – simple majority of deputies present.

__________________________________________________________________________________________________

Constitutional systems 11 (22.05.13.)

Political responsibility of government (II). President.

 In Poland we can distinguish several institutions. Vote of no confidence – in polish case this motion concerns that

it must be constructive one. It is important to connect such a motion with indicating. The opposition, which wants
to submit such a motion, must decide who would be able to form a new government.

 The second issue is that you have to distinguish two institutions: vote of confidence in the government that takes

place in the beginning of the term of office. You have to distinguish it from vote of confidence, which can be
submitted by a Prime Minister during the term of office. Prime Minister may decide to issue such a motion to
check whether deputies support him or not. D. Tusk makes such one with the “second expose”. It is up to Prime
Minister whether to issue such a motion or not.

 The last issue – vote of no confidence, which concerns the whole government, the whole Council of Minister

from vote of no confidence for individual Minister. Individual minister may be dismissed because Sejm decides
to pass Vote of no confidence. Prime Minister is obliged to present a new candidate for a Minister. There was a
dispute whether Prime Minister can proposed the same minister. Moreover, it happened with J. Kaczyński – he
proposed the same person.

Czech Republic

 Normal ordinary procedure of vote of no confidence taken from a classical solution. In Czech Republic such a

vote can be submitted by at least 15 deputies (in Poland 46 deputies, individual minister – 69). In Czech Republic
there is no individual vote of no confidence against single Minister. Majority of all deputies must support such
a motion.

 There is also institution of vote of confidence. Government may request Poslanecka snemovna the vote of

confidence. This may look the same as it is in Poland but there is one small difference. In Czech Republic this
vote of confidence, this motion for vote of confidence may be combine with a governmental view. The whole
government decides to treat this view.

 A confidence issue in a Czech Republic can be combined with a governmental bill, in Poland it is not possible. In

terms of majority to support such a motion it amount majority of all deputies.

Slovakia

 The solutions envisaged in the constitution are similar to Czech’s. There is no constructive vote of confidence.

The motion of no confidence must be submitted by 1/5 of all deputies. The government must be dismissed if this
motion is supported by a majority of all deputies.

 Vote of confidence submitted by governmental side is solved as it is in the Czech Republic. It is possible during

parliamentary term of office and this motion can be connected with the bill. It is possible to submit a motion about
single minister.

Slovenia

 Constructive vote of no confidence was introduced by the constitution – the second state with this institution. It is

very similar to German model. Slovenia is very interesting state because generally speaking the system is
parliamentary one but there are some elements, modifications and we can find some elements of chancellor
system.

 Constructive vote of no confidence. At least 10 deputies is entitle do submit such a motion. Majority of all

deputies must support this motion in order to dismiss a government.

 First possibility – constructive no confidence motion. Second possibility – “interpellation”. It is little question

concerning government policy in general, but in Slovenia this kind of interpellation may evoke discussion
concerning governmental policy. Following that interpellation majority of all deputies may passed a vote of no
confidence of government. Constitutional maker introduce constructive vote of no confidence. Apart from that
they create interpellation after which a normal vote of no confidence might be introduce. After this interpellation a
majority of all deputies might introduce vote of no confidence. It is not said whether it is constructive or not. The
requirements:

No confidence motion constructive – 10 deputies.

Interpellation – 10 deputies.

 Probably constitutional maker made a mistake, because it allows vote of no confidence, which is not constructive.

In order to avoid such a situation there are the rules of procedure of Drżavni zbor and in these rules of procedures
law makers introduced special procedure the aim of which was to precise constitution. This kind of motion must
be connected with a proposal of Prime Minister. Without reading procedures of Drżavni zbor students might get
confused. You will not find it in constitution.

 In both situation motions must be constructive, but constitutional requirement is only in the first procedure.

Moreover, in the second they forgot to add this procedure. This was done at the level of rules of procedure.

 It is no possible to pass a vote of no confidence without indicating who will be the new Prime Minister. Currently

we have new government in Slovenia.

 In Slovenia vote of confidence submitted by Prime Minister work as well. In such circumstances a government

must be dismissed and a new government must be elected and if not a President of the Republic must dismiss
Drżavni zbor.

 It is not possible to elect, or appoint a new government. Usually a President may or must dissolved government.
 Vote of confidence for a Prime Minister motion exists as well.
 As well as in Slovenia (except for Poland) this motion may be linked with governmental bill.

Lithuania

 A classical solutions. Normal vote of confidence, no constructive one.
 Majority of all deputies - quite ordinal situation in Lithuania that this vote is done by a secret ballot – it is not

possible to check how they vote.

 The vote of no confidence can take a form of parliament’s refusal to approve a state budget. If a budget is not

accepted it equals a vote of no confidence. In Lithuania voting on a budget is treated as a confidence issue.
Individual Ministers are responsible to the Sejmas.

 We may observe certain elements of semi-presidentialism. According to their constitution Ministers are

responsible to the parliament and to the president. In typical parliamentary system of government minister is
responsible to parliament only and president may dismiss minister only when vote of no confidence was passed or
there was a motion. Ministers are responsible both to the parliament and to the president of the republic - we may
called it semi-presidentialism.

 Question: in which circumstances a president might recall such a motion? Very apparent situation when there is

visible conflict of interest: private and public. The minister takes advantage of his private interest or private life.
President is entitled on his own to dismiss the Minister. This is constitutional principle: Ministers are responsible
to the parliament and the President.

Hungary

 New constitution continues tradition of constructive vote of no confidence. (Hungary, Slovenia and Poland – only

in those it is possible). It must be combine with indicating candidate for a new Prime Minister.

 1/5 of all deputies are entitled to put forward such a motion. Majority of all deputies is necessary to pass such a

motion.

 There is an institution of confidence vote of the initiative of Prime Minister. This kind of vote may be linked to

governmental bill or it is treated even wider, because Prime Minister may proposed that even governmental
proposal might be treated as legislative initiative and might be linked to the vote of confidence.

PRESIDENT

 In all six states of parliamentary system the constitutional position of the President is not as strong as in semi-

presidentialism. The constitutional position of the President in all six states it varies.

 In Czech – general elections. In Hungary – elected by the parliament. There are some differences in terms of

competences. Polish President is relatively strong. There is one book by Thomas Sedelius and he qualifies the
polish system as a semi-presidentialism because of relatively strong competences of president. However, usually
it is not treated like this.

 It is obvious that the main characteristic feature of position of president in parliamentary systems is representative

function. Some presidents may be perceived as executive power in a strict sense. On the other hand, in some
constitutions there are not treated explicitly like this.

 In Poland and Czech republic, Slovakia - as a part of executive. In Slovenia, Lithuania and Hungary – presidents

are not described as an executive power.

 There are a lot of disputes how the President should be treated. It is question whether President should be

perceived as a referee or as a mediator. The concept of referee is a concept connected usually with
presidentialism. President should in some extent look after, should bring political consensus. He should put
himself above current politics. Nevertheless, it is sometimes difficult to stay neutral. It is always a question. In all
6 states a president sometimes are perceived as organs that are not politically active. President usually decides to
leave his or her political party. President after elections are not very active and formally he resign. However, with
a general elections it is not possible not being connected with political party. It is difficult not to be loyal.

 In Germany concept is different – President is elected by parliament and often there are professors accepted,

people that might be accepted by wide variety of people. General elections now are in Poland, Slovenia,
Lithuania, Slovakia (since 1999, before that it was done by a National Council), and Czech Republic (since 2012).
In all of them terms of office is 5 years. There are important requirements: citizenship, passive electoral right, age
border.

35 – Poland, Hungary, Slovakia.

40 - Czech, Lithuania.

Slovenia – no special requirement – 18 years of age. Passive electoral right equals passive.

 One additional requirement in Lithuania. Candidates in Lithuania must live in Lithuania by not less than 3 years.

 Poland – we do not have such a requirement. Casus of Stanisław Tymiński – lex tymiński proposal: 5 years

domicile.

 Who may introduce candidates.

Poland - 100,000 citizens may submit and register candidate. Even those who come from political parties

must collect this number.

Czech Republic - 50,000, 20 deputies, or 10 senators.

Slovakia – 15 deputies (members of parliament), 15,000 citizens.

Slovenia – 10 deputies, political parties and 5,000 citizens.

Lithuania – 20,000 citizens.

Hungary – 15 deputies.

 Articles of constitutions that refer to general constitutional position of the presidents. It is problem whether it is

possible to derive exact consequences from these articles. Read articles about constitutional positions of
presidents. .

Poland 126

Czech Republic – 54

Slovakia – 101

Hungary – IX

Article 126

1. The President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority.
2. The President of the Republic shall ensure observance of the Constitution, safeguard the sovereignty and security of the State as well as the inviolability and integrity
of its territory.
3. The President shall exercise his duties within the scope of and in accordance with the principles specified in the Constitution and statutes.

ARTICLE 54

(1) The President of the Republic is the head of state.
(2) The President of the Republic is elected directly in a national popular vote.
(3) The President of the Republic shall not be responsible for the performance of his duties.

Article 101

(1) The Head of the Slovak Republic shall be the President. The President shall represent the Slovak Republic externally and internally, shall ensure the regular
operation of Constitutional bodies by his or her decisions. The President shall perform the office according to his or her conscience and convictions, and shall not be
bound by orders.
(2) Citizens of the Slovak Republic shall elect the President by secret ballot for a five-year term in direct elections. Citizens who have the right to vote for the National
Council of the Slovak Republic shall have the right to vote for a President.
(3) Candidates for President shall be proposed by at least 15 Members of Parliament or by citizens who have the right to vote for the National Council of the Slovak
Republic on the basis of a petition signed by at least 15,000 citizens. Proposals for elections shall be delivered to the President of the National Council of the Slovak
Republic at the latest within 21 days of the announcement of elections.
(4) A candidate shall be elected a President, if he or she receives an absolute majority of valid votes of legitimate voters. If none of the candidates receives the necessary
majority of votes, a second round shall be held within 14 days of the voting. The two candidates who gained the greatest number of valid votes shall proceed to the
second round. In the second round, the candidate who gained the greatest number of valid votes from participating voters shall be elected President.
(5) If one of the two candidates who gained the most of the valid votes in the first round ceases to be eligible for election as President before the second round of voting
or resigns his or her right as a candidate, the candidate who received the next greatest number of valid votes shall proceed to the second round of voting. If there are not
two candidates for the second round of voting, the second round shall not be held, and the President of the National Council of the Slovak Republic shall announce new
elections so that they take place within 60 days of their announcement.
(6) If only one candidate applies for the post of President, the elections shall be held; he or she shall be elected President if he or she gains an absolute majority of the
valid votes of participating voters.
(7) The elected candidate shall take up the post of President on taking an oath. The oath shall be taken before the National Council of the Slovak Republic to the
President of the Constitutional Court of the Slovak Republic at noon of the day on which the term of office of the previous President is to terminate.
(8) If the term in office of the President ends prematurely, the elected candidate shall take the oath and take up the post of President at noon of the day following the day
when the results of the election are announced.
(9) The Constitutional Court of the Slovak Republic shall decide whether Presidential elections have been held in conformity with the Constitution and the law.
(10) A law shall lay down further details on presidential elections.

Article 9

(1) The head of State of Hungary shall be the President of the Republic, who shall embody the nation’s unity and shall safeguard the democratic operation of state
organisation.
(2) The President of the Republic shall be the Commander in Chief of the Hungarian Defence Forces.
(3) The President of the Republic:
a) shall represent Hungary,
b) may attend and address any session of Parliament,
c) may propose bills,
d) may propose national referenda,
e) shall set a date for the general elections of Members of Parliament, local representatives and mayors, and of members of the European Parliament, and for national
referenda,
f) shall make decisions on any special legal order,
g) shall convene the inaugural session of Parliament,
h) may dissolve Parliament,
i) may send adopted Acts to the Constitutional Court to examine their conformity with the Fundamental Law, or may return them to Parliament for reconsideration,
j) shall propose persons for the positions of Prime Minister, the President of the Curia, the Supreme Prosecutor and the Commissioner for Fundamental Rights,

Slovenia – 102

Lithuania – 77

 These articles describe general role of the president – they define who the President is.

__________________________________________________________________________________________________

Constitutional systems 12 (29.05.13.)

President

Country/
competences

Poland

Czech

republic

Slovakia

Hungary

Slovenia

Lithuania

Elections

General elections

General

elections

General

elections

Parliamentary

elections

General

elections

General

elections

Term of office 5

Appointing the
prime minister

+ (1 and 3
variant)

Upon the assent

of the Seimas

Recalling
ministers

On the prime

minister’s motion

On the prime

minister’s

motion

On the prime

minister’s

motion

On the prime

minister’s motion

+ (sometimes

even without

the prime

minister’s

motion)

Dissolution of
parliament

+compulsorily,
see art. 155 (2)
Optionally, see
art. 225 –
optionally

+ optionally,

see art. 35

+ optionally,

see art. 102

para 1, (e)

Compulsorily:

when the

president is not

recalled in the
plebiscite, see

art. 106 sec. 3

+ optionally, see art.

3 (3)

Compulsorily,

see art. 111 para

4 and 5

Optionally, see

art. 58

Legislative
initiative

Veto

It doesn’t

encompass the

budgetary statute

and amendments

of the

constitution

+ (it doesn’t

concern

constitutional

bills

+ (it doesn’t

concern a

constitutional

bills)

+ (it doesn’t

concern

constitutional bills)

+ (also in case

constitutional

law); see art.

69, 72 and 150;

however

president may

not veto

amendments to

k) shall appoint professional judges and the President of the Budget Council,
l) shall confirm the appointment of the President of the Hungarian Academy of Sciences, and
m) shall form the organisation of his or her office.
(4) The President of the Republic shall:
a) recognise the binding nature of international agreements by authorisation of Parliament,
b) accredit and receive ambassadors and envoys,
c) appoint Ministers, the Governor and Deputy Governors of the National Bank of Hungary, the heads of autonomous regulatory bodies and university professors, 24
d) appoint university rectors,
e) appoint and promote generals,
f) award statutory decorations, prizes and titles, and authorise the use of foreign state decorations,
g) exercise the right to grant pardons to individuals,
h) decide on any matter of territorial administration within his or her responsibilities and competences, and
i) decide on any matter related to the acquisition and termination of citizenship,
j) decide on any matter assigned to his or her competence by law.
(5) Any measure and decision of the President of the Republic under Paragraph (4) shall be subject to the countersignature of a government member. An Act may
provide that a decision within the statutory competence of the President of the Republic shall not be subject to a countersignature.
(6) The President of the Republic shall refuse to perform any of his or her obligations in Paragraphs (4)b)-e) if the legal conditions are absent or if he or she has a well-
grounded reason to conclude that it would result in a serious malfunction of the State’s democratic operation.
(7) The President of the Republic shall refuse to perform his or her obligation set out in Paragraph (4)f), if it violates the values enshrined in the Fundamental Law.

Article 102 (Office of President of the Republic) The President of the Republic represents the Republic of Slovenia and is commander-in-chief of its defence forces.

Article 77

The President of the Republic shall be Head of State. He shall represent the State of Lithuania and shall perform everything with which he is charged by the
Constitution and laws.

the

constitution).

The president

may not veto

those laws

which were

accepted in a
referendum).

Regulations

with force of

statute

+ only during a

state of marital

law when the

Sejm cannot

assemble on a

sitting, they must

be presented to

the Sejm for

confirmation on a

nearest sitting.

The presidential

regulation must

be countersigned.

During a state of

emergency,

emergency

measures defined in

a cardinal act may

be introduced by a

presidential order

(the decision must

be countersigned).

Parliament on the

Parliament’s

Defense Committee

are entitled to

suspend the

application of

extraordinary

measure adopted by

the President. An

order is effective for

30 days unless its
effect is extended

by Parliament or

Parliaments’

Defense Committee.

+ during a state

of war or a state

of emergency

when the

National

Assembly is

unable to

convene; they

must be

presented to the

National

Assembly

immediately

upon it next

convening.

Right to

introduce

extraordinary

measures

(definition

exceptional

states of

emergency

vary)

+ state of a

maritial law and

state of

emergency upon

the government’s

motion, the

parliament may

overrule such

regulations (the

presidential

regulation must

be countersigned

as well)

Mobilization

and declaring a

state of war or
an exceptional

state and their

termination

upon a

proposition of

the

Government

A state of war, a

state of national

crisis, state of

emergency when

parliament is unable

to decide on these

issues (decision

must be

countersigned)

+ during a state

of war or a state

of emergency

when the

National

Assembly is

unable to

convene; they

must be

presented to the

National

Assembly

immediately

upon it next

convening.

Right to call a

referendum

+ with the

consent of the

Senate

The president

announces a

referendum

concerning the

accession of

the Czech

Republic to

the European

Union

Upon a petition

submitted by at

least 350,000

citizens, or

upon a

resolution of

the National

Council

May only submit a

referendum motion

to parliament

Political

responsability

By means of a

plebiscite

Legal
responsability

+ only before the

Tribunal of the

State

Full immunity

“the person of the

President of the

Republic shall be

inviolable”, before

Before ordinary

court for acts

performed

outside his

Immunity from

criminal

liability

the Constitutional

Court if the

President commits a

willful offence

office

The subject of
constitutional
responsibility

Violation of the

constitution or a

statute within his

office or within

its scope (even if

done

inadvertenly)

High treason

Deliberate

violation of the

constitution or

high treason

If she or he willfully

violates the

Fundamental Law

or any act while in

office

Violations of

the constitution

or serious

violation of the

law in the

discharge of his

function

For a gross

violation of the

Constitution,

breach of oath,

or when it

transpires that a

crime has been

committed

Control position of the president

 Selective article which refer to general position of the President. These provisions are very general and they

define a President as such. In order to speak about competences we have to refer to other provisions, which are in
the whole text of the constitution. Some are in the context of legislative or judicial power. President may have
competences in relationship with important state organs.

 Table with the most important competences of the presidents. In all states except for Hungary President is elected

in general elections (in Hungary by the Parliament). In all 6 states is the same term of office. In all 6 states
President may be elected only twice.

Appointing the Prime Minister

 In Poland, Czech Republic, Slovakia and Lithuania. In Hungary and Slovenia parliaments are organs that elect

Prime Minister. Other members of the government – appointing ministers – traditional role of Presidents – they
consists of appointing government on the Prime Ministers motion. There is one exception – Slovenia – all the
members of government (Vlada) are elected by National Assembly on-block (as a whole and not individually). It
is connected with special role of Parliament in Slovenia. In comparison in other states the positions of Slovenia’s
legislative is very strong. Some constitutional lawyers argue that in this country we have some elements of
assembly system of government (assembly system of government exist in Switzerland. It is a system based on
the union of powers not on the separation). [Next week. Judiciary. Judges in Slovenia are appointed by Dravni
zbor.]

Recalling ministers

 Possible only if prime minister if Prime minister makes such a motion. In Lithuania President is able to force

minister to dismiss. In Lithuania we can observe some elements of semi-presidentialism.

 Sometimes even without Prime Minister motion. It is not obvious whether president in Lithuania can dismiss

minister in a strict sense. In practice the President submit a motion of vote of no confidence and Sejmas is forced
to decide. However, in theory may dismiss minister as such, because according to the constitution, not only
submit a motion to dismiss, but also dismiss directly.

Dissolution of parliament

 If you would be asked (EXaM) to assess the role of president it is good to remember whether a head of state

has or does not has a power to dissolve parliament. Whether someone’s motion is necessary or not.

 In Poland two situation in which a President has a right to dissolve the Sejm. In art. 155 para 2

– situation is

mandatory. When the third procedure to form government fails than the President must dissolve. It is shortening

Article 155

1. In the event that a Council of Ministers has not been appointed pursuant to the provisions of Article 154, para. 3, the President of the Republic shall, within a period
of 14 days, appoint a Prime Minister and, on his application, other members of the Council of Ministers. The Sejm, within 14 days following the appointment of the
Council of Ministers by the President of the Republic, shall hold, in the presence of at least half of the statutory number of Deputies, a vote of confidence thereto.
2. In the event that a vote of confidence has not been granted to the Council of Ministers pursuant to para. 1, the President of the Republic shall shorten the term of
office of the Sejm and order elections to be held.

the term of Sejm and this is obligatory. Optional dissolution occurs in situation envisaged in art. 225

– the

procedure to pass a state budget. If a state budget is not passed within 4 months within beginning – the President
has a right to dissolve, but he is not obliged to do so.

 Czech Republic. All dissolutions are optional. There are 4 cases in which the President may dissolve the

Poslanecka snemovna. Art. 35

– 4 cases:

He may combine issue with passing parliamentary bill – president may dissolve parliament.

. the session lasts longer than 220 days.

. The chamber has not have a quorum longer than 3 months. It is not possible to reach a quorum (1/3)

 Slovakia. Has the right to dissolve national council optionally. 202 para 1 (E)

. four cases very similar to Czech

once:

One mandatory dissolution. Connected with “plebiscite”. Plebiscite is kind of referendum where people

vote whether to recall a president or not. President is politically responsible. If such a plebiscite is called
and the President is not recalled a President must resolve national council, because it is the organ who has
a right to call that plebiscite.

 Hungary. Art. 3 para 3

– dissolution is optional. “President may dissolve when the governments mandates…”.

Second situation: “Parliament faced to adopt state budget by the 31 of March”.

 Slovenia. Art. 111 para 4 and 5

. Those situations are mandatory. The President must dissolve if no candidate is

elected unless National Council decides to hold new elections. The President has a right if a Prime Minister is not
elected and the new elections for Prime Ministers have been called for National Assembly. If no candidate
received enough votes than the President dissolves National Assembly. If this elections do not bring any results –
he must dissolve Drżavni zbor. 2

– the Government did not receive enough votes and the parliament was not

able to elect a new one within 30 days. Constitutional deadlock appears and the only solution is to dissolve
parliament.

 Lithuania. The right to dissolve Sejmas was envisaged in article 58

of lithuanian constitution. Second - vote of

no confidence for the government. It is typical if government submits a motion concerning vote of no confidence

Article 225

If, after 4 months from the day of submission of a draft Budget to the Sejm, it has not been adopted or presented to the President of the Republic for signature, the
President of the Republic may, within the following of 14 days, order the shortening of the Sejm's term of office.

ARTICLE 35

(1) The President of the Republic may dissolve the Assembly of Deputies if:
a) the Assembly of Deputies does not adopt a resolution of confidence in a newly appointed government, the Prime Minister of which was appointed by the President of
the Republic on the basis of a proposal of the Chairperson of the Assembly of Deputies;
b) the Assembly of Deputies fails, within three months, to reach decision on a governmental bill with the consideration of which the government has joined the issue of
confidence.
c) a session of the Assembly of Deputies has been adjourned for a longer period than is permissible.
d) for a period of more than three months, the Assembly of Deputies has not formed a quorum, even though its session has not been adjourned and it has, during this
period, been repeatedly summoned to a meeting.
(2) The President of the Republic shall dissolve the Assembly of the Deputies if the Assembly of the Deputies proposes her so by resolution, which it has been approved
by the majority of three-fifths of all Deputies.
(3) The Assembly of Deputies may not be dissolved during the three-month period preceding the expiration of its electoral term.

Article 102

(1) The President:
e) may dissolve the National Council of the Slovak Republic if the National Council of the Slovak Republic, within a period of six months from the nomination of a
Government of the Slovak Republic, has not passed its Programme Proclamation, if the National Council of the Slovak Republic has not passed within three months of
the formation of a Government a draft law with which the Government has combined a vote of confidence, if the National Council of the Slovak Republic has not
managed to hold a session for longer than three months although its sitting has not been adjourned and it has during this time been repeatedly called for a meeting, or if
a session of the National Council of the Slovak Republic has been adjourned for a longer time than is allowed by the Constitution. This right may not be applied during
the last six months of his or her term of office. The President shall dissolve the National Council of the Slovak Republic in the case that after a plebiscite on the recall of
the President, the President has not been recalled, during war, a war state or exceptional state

Article 3

(3) The President of the Republic may dissolve Parliament and simultaneously announce elections if:
a) when the Government’s mandate ends, Parliament fails to elect the person proposed by the President of the Republic to serve as Prime Minister within forty days of
presentation of the first nomination, or
b) Parliament fails to adopt the State Budget for the current year by 31 March.

Article 111

If no candidate is elected, the President of the Republic dissolves the National Assembly and calls new elections, unless within forty-eight hours the National Assembly
decides by a majority of votes cast by those deputies present to hold new elections for President of the Government, whereby a majority of votes cast by those deputies
present is sufficient for the election of the candidate. In such new elections a vote is taken on candidates individually in order of the number of votes received in the
earlier voting and then on the new candidates proposed prior to the new vote, wherein any candidate proposed by the President of the Republic takes precedence. If in
such elections no candidate receives the necessary number of votes, the President of the Republic dissolves the National Assembly and calls new elections.

Article 58

and if the parliament is not able to pass such a vote of no confidence and is not able to choose new Prime Minister
– there is a obligation to dissolve parliament. Refer to this articles concerning the right and the duty to dissolve
parliaments.

The right to submit a bill

 Legislative initiative. Presidential legislative initiative exists in Poland, Hungary and Lithuania. In the rest of the

states this competence does not occur.

Veto

 The right to veto a piece of legislation.
 In Poland President has a right a veto, but there are two exceptions: budgetary statute and amendments to the

constitution.

 Czech Republic. Has a right to veto but it does not concern constitutional bills. Same in Slovakia and Hungary.
 In Lithuania there are two kind of constitutional bills. Cardinal acts and constitutional bill to amend the

constitution in a strict sense. The President may not veto amendments to the constitution. Is not able to veto a
constitutional act to amend a constitution but he may veto cardinal statute (constitutional statutes). Cardinal not
constitution. The President may not veto those laws that were accepted in a referendum.

Right to call a referendum

 In all 6 states this procedure varies. There are provisions in a constitution or in normal legislation that define who

is able to submit a referendum proposals. Sometimes it is a President.

 In Poland President is able to call a referendum but only with a consent of a Senate. Consent of a Senate is

necessary.

 In Czech Republic there is no referendum as a form of direct democracy as such, there is a referendum for

introducing constitution to express the consent of Czech Republic accession to UE. This kind of referendum was
announced by a President of a Republic.

 Slovakia. President is the organ who calls but only upon petition 350,00 or resolution by national council
 Hungary. He only make a motion in a parliament and a parliament decides.
 Slovenia and Lithuania. President does not have any rights connected with referendum issue.

Right to issue a regulations (acts) with a force of a statute

 In 3 of 6 states the President has a limited right to issue regulations with force of statute. This right is limited in all

3 states.

 In Poland this right occurs in so called state of martial law. Martial law is a kind of state of emergency. In Polish

constitution there are 4 extra ordinary state.



State of war exists when there is an aggression.



Martial law occurs when there is a danger of aggression.

 Both are very similar. The main difference. State of war evokes some effects in public

international law – Poland declares war in terms of regulation of public international law.
Martial law has internal effects. Only during a state of martial law president may issue
such a regulation. If such regulations are passed they must be confirm on nearest sitting.
Martial law is a little bit old fashion.



A state of emergency.

Pre-term elections to the Seimas may be held on the decision of the Seimas adopted by not less than a 3/5 majority vote of the Members of the Seimas. Pre-term
elections to the Seimas may also be announced by the President of the Republic: 1) if the Seimas fails to adopt a decision on the new programme of the Government
within 30 days of its presentation, or if the Seimas two times in succession gives no assent to the programme of the Government within 60 days of its first presentation;
2) on the proposal of the Government, if the Seimas expresses direct no-confidence in the Government. The President of the Republic may not announce pre-term
elections to the Seimas if the term of office of the President of the Republic expires in less than 6 months, also if 6 months have not passed since the pre-term elections
to the Seimas. The day of elections to the new Seimas shall be specified in the resolution of the Seimas or in the act of the President of the Republic on the pre-term
elections to the Seimas. The elections to the new Seimas must be held within 3 months of the adoption of the decision on the pre-term elections.



A state of natural disaster.

 Hungary. President is entitled to submit such acts during a state of emergency. State of emergency in Poland and

Hungary is defined differently. Emergency measures is a counterpart of expression regulation with force of statute
in a emergency measures. Parliament defense committee is entitle to suspend this application. This measure is
effective for 30 days unless extended. It is not absolute power, but parliament committee may decides differently.

 Slovenia. State of war, state of emergency - the President is entitled to issue such acts only when national

assembly is enable to convene. Almost the same situation as it is in Poland.

 The legislative role of presidents grows in exceptional situations (martial law). Sometimes this states may be

introduced by a presidents or sometimes by government. It depends on circumstances and extraordinary state.

 In Poland martial law and state of emergency is introduce by a president by only upon motion of government.
 In Hungary the President is competent to declare state of war and state of national crisis (state of emergency in

Poland) but only when parliament is not able to decide on that issue.

 Slovakia. The President is competent to declare a state of war or mobilization or exceptional state, but only upon

a proposition submitted by the government.

 In Slovenia the use of defense force depends on President when Parliament is enable to convene. Such decision

must be submitted to a confirmation of National Assembly.

 In Lithuania as well. Such decisions must be presented to a next sitting of the Seimas. Parliaments may either

overrule or accept this measures. In Poland it may be overruled.

Responsibility

(political responsibility)

 Typical situation in a parliamentary system of government – the President is not politically responsible. It is not

possible to recall a President during his term of office. One exception: Slovakia (plebiscite).

 Art. 106

of constitution of Slovakia – plebiscite. Who is able to call such a plebiscite? Parliament. Special

resolution must be passed by a majority of 3/5 of all MP’s. If such a resolution is called and President is not
revoked he must dissolve National Council. Absolute majority of citizens having the rights – absolute majority of
all registered voters. The Parliament must calculate the risk.

Co-signature

 The signature put by a Prime Minister or Minister on a act of President by which they take responsibility of such

President act. For all presidential acts the government is responsible because almost all acts are countersignature.

 Not all President acts are countersigned. It is not very consequent. It is not very logically decided.
 In Poland all the acts are countersigned except for those in art. 144

. This acts are called prerogatives. In reality it

is not prerogative because some acts are taken upon motion of certain organ – like to appoint judges – he must act
upon motion of National Council of judiciary.

Article 106

(1) The President may be recalled from his post before the end of his term of office by a plebiscite. A plebiscite on the recall of a President shall be declared by the
President of the National Council of the Slovak Republic on the basis of a resolution of the National Council of the Slovak Republic adopted by at least a three-fifths
majority of all Members of Parliament within 30 days of the adoption of a resolution so that the plebiscite shall be held within 60 days of its declaration.
(2) The President shall be recalled if an absolute majority of all legitimate voters votes for his or her recall in a plebiscite.
(3) If the President was not recalled in a plebiscite, the President shall dissolve the National Council of the Slovak Republic within 30 days of the announcement of the
results of the plebiscite. In such a case, a new presidential electoral term shall begin. The President of the National Council of the Slovak Republic shall announce
elections to the National Council of the Slovak Republic within seven days of its dissolution.
(4) Further details on the recall of President shall be laid down by a law.

Article 144

1. The President of the Republic, exercising his constitutional and statutory authority, shall issue Official Acts.
2. Official Acts of the President shall require, for their validity, the signature of the Prime Minister who, by such signature, accepts responsibility therefor to the Sejm.
3. The provisions of para. 2 above shall not relate to:
1) proclaiming elections to the Sejm and to the Senate;
2) summoning the first sitting of a newly elected Sejm and Senate;
3) shortening of the term of office of the Sejm in the instances specified in the Constitution;
4) introducing legislation;
5) proclaiming the holding of a nationwide referendum;
6) signing or refusing to sign a bill;
7) ordering the promulgation of a statute or an international agreement in the Journal of Laws of the Republic of Poland (Dziennik Ustaw);

Constitutional systems 13 (5.06.13.)

Judiciary

 Exam: 4 topics and you are requested to choose 2 of them. Each topic will have a comparable character. Comment

some solution in more than one state. One topic consist of no more than 3 selected stated imposed in each
question.

 Judiciary: constitutional justices; generally about judiciary; whether on a particular case a constitutional tribunal

is treat as a judiciary or as a separate organ.

Legal responsibility and constitutional responsibility

 It varies. In Poland President is legally responsible but only under Tribunal of the State. If the President commits

an offence or a crime than he would be responsible, but only before the Tribunal of the State, because he has a
special immunity – privilegium fori. This special immunity consists in fact that he is not criminally responsible
under regular judiciary system. He is responsible only before the Tribunal of the State. Civil accountability - the
President can be a part of a contract and he may commit a tort (delikt). For torts and infringements of a contract
he is responsible before ordinary courts.

 Czech Republic. President enjoys full immunity. It is not possible to sue President. He is not responsible

criminally. The same in Slovakia.

 Hungary. Presidential immunity is limited. Constitution states “the person of the President shall be inviolable,

but he is responsible before Constitutional Court if he commits a willful offence”. The widest scope of
presidential immunity in Czech Republic and Slovakia.

 Slovenia. Special solution. President is responsible for all acts performed outside his office before ordinary

courts. If an act cannot be treated as a something connected with his duties than he may be responsible before
ordinary courts.

 Lithuania. In table it is not full immunity. If he commits a crime, he may be responsible before Constitutional

Tribunal. For crimes he is responsible before Constitutional Court and he has immune for ordinary courts.

Constitutional responsibility

 In all 6 states President is constitutionally responsible. What does it mean being constitutionally responsible?

Constitution is a special statute. It is possible to break a statute and a constitution in a way that it would not be
qualified as an offence. A constitutional tort (delikt konstytucyjny). Definition in case of polish solution is
included in a first column.

8) delivering a Message to the Sejm, to the Senate or to the National Assembly;
9) making a referral to the Constitutional Tribunal;
10) requesting the Supreme Chamber of Control to carry out an audit;
11) nominating and appointing the Prime Minister;
12) accepting resignation of the Council of Ministers and obliging it to temporarily continue with its duties;
13) applying to the Sejm to bring a member of the Council of Ministers to responsibility before the Tribunal of State;
14) dismissing a minister in whom the Sejm has passed a vote of no confidence;
15) convening the Cabinet Council;
16) conferring orders and decorations;
17) appointing judges;
18) exercising the power of pardon;
19) granting Polish citizenship and giving consent for renunciation of Polish citizenship;
20) appointing the First President of the Supreme Court;
21) appointing the President and Vice-President of the Constitutional Tribunal;
22) appointing the President of the Supreme Administrative Court;
23) appointing the presidents of the Supreme Court and vice-presidents of the Supreme Administrative Court;
24) requesting the Sejm to appoint the President of the National Bank of Poland;
25) appointing the members of the Council for Monetary Policy;
26) appointing and dismissing members of the National Security Council;
27) appointing members of the National Council of Radio Broadcasting and Television;
28) establishing the statute of the Presidential Chancellery and appointing or dismissing the Chief of the Presidential Chancellery.
29) issuing orders in accordance with the principles specified in Article 93;
30) resigning from the office of President of the Republic.

 Poland. “Violation of the constitution or a statute within his office or within its scope” (even if done

inadvertently). He is responsible for not signing some document (which he does not make a constitutional).
Offence is an act against provision of a penal statute, socially harmful. Amount of harmfulness is bigger than
small.

 Czech Republic. High treason is the only base of being responsible to the Constitutional Court. In all 6 states

except for Poland state officers are responsible to Constitutional Courts. In Poland it is a separate organ. If
somebody commits constitutional tort. Tribunal of a State (Trybunał Stanu). It is highly criticize. In 20 years
Tribunal of a State ruled only once. Similar in Slovakia. Violation of a constitution is also a subject and a high
treason.

 Hungary. President is responsible to the constitutional tribunal if he or she violates … - similar to polish.

However, in Poland a Constitutional Tribunal is also a tort is committed inadvertently (przesłanka winy).

 Slovenia. Violation of a constitution or serious violation in a discharge of his function.
 Lithuania. Gross violation of the constitution. It should be put into legal responsibility.

Judiciary

 In all 6 constitutions you find the declaration that independence of a judiciary is one of the most important

constitutional principle.

 Poland – art. 10

– principle of separation of powers and other provision referring to the independence of courts.

 In all the constitutions you can find provisions about independence of judges not only as a branch. How to qualify

Constitutional Tribunal (Constitutional Court)? In some constitutions constitutional courts are treated as a part of
judiciary and sometimes as a separate organ. Judiciary power: Poland (art. 10).

 Tribunal of a State – special organ that exist only in Poland if we speak about this 6 states. This organ is

appointed for deciding on constitutional responsibility. Nevertheless, President is responsible to this tribunal for
committing all offences. The members of this tribunal are elected by the Sejm. Only half of this members can be
qualified lawyers and others might be lay persons. Ex officio a President of a tribunal of a state is a President of a
Supreme Court.

 We were speaking that there are some states that constitutional tribunal is a part of judiciary power: Poland,

Slovakia, Czech Republic.

 Slovenia – separate chapter of Slovenian constitution, but a scholarship of slovenian constitutional law treats

Constitutional Court in Slovenia as a judicial organ. There is separate chapter about courts and separate chapter of
Slovenia.

 As a independent organ constitutional courts: Lithuania, Hungary.
 In all 6 states judges in principle are appointed for indefinite period of time. This is a rule in terms of judicial

posts. It does not concern judges for constitutional courts because those judges are appointed for specific term of
office. Typical term of office is 9 years. However, it varies.

 In all state except for Slovenia the Presidents of a states are those organs that officially appoint judges. Sometimes

the appointment decision depends on the posts. Sometimes the chief justice is appointed in a different way. In
Slovenia all the judges are appointed by a Drżavni zbor. One of a symptom of assembles system of government.
By a motions of a National Council in judiciary. The same in terms of presidential appointment – he appoints only
by a specific motion by a specific organ: Councils of Judiciary.

 Specific organs in terms of their character. In Poland – the National Council for Judiciary (KRS) is composed of

judges and representatives of other branches of government. Membership is very specific and it is difficult to
qualify this organ. There are deputies in this organ as members so that is why there is a dispute about its
qualification. It is an organ that should protect the independence of judiciary. It is not judiciary organ because it is

Article 10

1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers,
and the judicial power shall be vested in courts and tribunals.

composed by not only judges. This is the rule that there is a separate organ proposing candidates, which in further
step presidents appoints. However, in Czech Republic there is no such a organ and judges are appointed by
President by a motion of Minister of Justice (he proposes candidates for justices).

 Hungary. Now it is very complicated. Before new constitution National Judiciary Council existed and now its

competences has been divided into two separate organs. The Office for Judiciary and Judicial Council. It is not
envisaged in a constitution but in a cardinal act. The judges are appointed by a President of Hungary but details
shall be regulated in a cardinal act. There are many cases where the details of some institutions are supposed to be
regulated by a cardinal acts. Cardinal acts are passed with 2/3 majority vote of Parliament. It is very difficult to
pass such an act but now Fides has such a majority. Nevertheless, after next election if they lose then the new
parliament would not be able to make a change without such a majority.

Constitutional justices

 In all 6 states the so-called of European model of constitutional review exists. “European” – this term is

reserved for a model where the control is an abstract one. There are some forms for incidental control. This
model is centralized – not all the courts has a power to strike down the legislation but only one central
constitutional courts is competent to strike down the constitutional acts. “Abstract” – the issue whether something
is coherent is not evoke in a concrete case but by a special constitutional organ which is competent to submit such
a motion. Which organs? Heads of states, prime ministers, groups of deputies. This kind of subjects is entitled to
submit such a motion. This model exists in all 6 states.

 Only in 3 states a priori review exists. A priori review: Poland, Hungary (parliament in a special case and a

president), Slovakia (only limited to international agreements before ratifications

 Constitutional review:

Abstract;

Incidental;



Constitutional complain;



A question of law.

 In terms of constitutional complain a scope of this complaint is different and depends on a state. In Poland a

subject of constitutional complain in narrow. A definition – art. 79

of a polish constitution: “everyone whose

constitutional rights have been infringed….”. Why a model of constitutional is narrow? Because subject is limited
– “everyone” can launch a complaint but only as a conformity to the constitution of a “normative acts”. Only a
“normative acts” upon which basis a final administrative decision or ruling of a court were made. We can launch a
complaint only against provisions of the law.

 Czech Republic. Scope of constitutional complaint is much wider: “a natural or legal person submitting a

complain must claim ….of a measure of some other actions” – the subject of a control is wider – not only a
normative act can constitute, but also against a measure or other action taken by public authority.

 Polish model is narrower. One of the question might be on the EXAM because it is one of the favorites topic

of dr hab. P. Mikuli. Usually questions which concern constitutional justice in terms of comparison. Compare a
czech and polish! Comparison between a polish and czech might be on the EXAM.

 In terms of Slovak it resembles the Czech one but its scope is more narrower. Art. 127

of slovakian constitution:

“… constitutional courts decide on a decision…..violation basic rights of citizens”. The acts of applying the law

Article 79

1. In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the
Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public
administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.
2. The provisions of para. 1 above shall not relate to the rights specified in Article 56.

Article 127

(1) The Constitutional Court shall decide on complaints of natural persons or legal persons if they are pleading the infringement of their fundamental rights or freedoms,
or human rights and fundamental freedoms resulting from the international treaty which has been ratified by the Slovak Republic and promulgated in the manner laid
down by a law, save another court shall decide on protection of these rights and freedoms.
(2) If the Constitutional Court accepts a complaint, it shall hold in its decision that the rights or freedoms according to paragraph 1 were infringed by a valid decision,
measure or by other action and it shall cancel such a decision, measure or other action. If the infringement of rights or freedoms according to paragraph 1 emerges from
inactivity, the Constitutional Court may order the one who has infringed these rights or freedoms to act in the matter. The Constitutional Court may at the same time

can constitute subject of complaint but only acts by administrative bodies. In Czech it was a little bit wider. In
Czech “public authority” – it encompasses judicial decision, and in Slovakia only decisions make in
administrative procedure.

 Hungary. Until the new constitution it was a country in which it was similar to Poland and it was narrower.

However, it changed, but it now asses applying the law.

 In terms of constitutional complaint it occurs as well in Slovenia and in Lithuania, but in case of those it is not

directly envisaged in a constitution but it was derived by the Lithuanian constitutional court. There is no
provision, which would be referred. It is done by interpretation. Look at Slovenian provision of the constitution
concerning constitutional justice.

 Hungary. The new constitution is quite important and you may not find it in a handbooks. The new constitution

is also controversial. One of the most important changes introduced were changes concerning the scope of
competences of Constitutional Court. Scope was changed - it was narrow and now it is wider. They introduced
also some other changes. “2012 fundamental law”. Important restriction – the Constitutional Court has some
limited power in terms of some acts in a situation when state debt exceeds more than 50% of Gross Domestic
Product (GPD). If it exceeds than some acts can be assets only from a point of view of some selected provisions
of the constitution. It cannot asses’ budgetary law, tax statutes, but only for those of human rights. They
introduced it because of a crisis – some of Fides acts were controversial – liquidation of retirement funds.
Constitutional court may asses such statutes but only from a perspective of most important human rights.

__________________________________________________________________________________________________

remand the matter for further proceedings, prohibit continuing in the infringement of fundamental rights and freedoms or human rights and fundamental freedoms
resulting from the international treaty which has been ratified by the Slovak Republic and promulgated in the manner laid down by a law, or if possible, to order the one
who has infringed the rights or freedoms according to paragraph 1 to reinstate the status before the infringement.
(3) The Constitutional Court may, by the decision by which it allows a complaint, award the one whose rights according to paragraph were infringed an adequate
financial satisfaction.
(4) The responsibility of the one who has infringed the rights or freedoms according to paragraph 1, for the damage or other injury shall not be affected by the
judgement of the Court.

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