Limits of the pro-constitutional interpretation : commentary on the judgment of the Supreme Court of 5th December 2012, case no. III KK 137/12

Streszcz. ang. s. 85-86. Bibliogr. s. 86

The article presents a partially critical commentary on the judgment of the Supreme Court concerning an interpretation of Article 226 § 1 of the Polish Criminal Code (k.k.). Supreme Court overruled the challenged judgment and referred the case for re-examination, deciding that the public nature of the perpetrator’s act is not a constituent element of the crime of insulting a public offic-er. As the justification for this decision, Supreme Court referred to the limits of the pro-constitutional interpretation. In this commentary, three issues are discussed. Firstly, a question concerning the limits of the pro-constitutional interpretation in the judicial process of application of the law. In the opinion of the author, such limits are set by the Constitution. Secondly, the importance of the pro-constitutional interpretation in the process of direct application of the Constitution. The author argues that this type of interpretation cannot be perceived only as the interpretive co-application of the Constitution and a statute. Courts should refer to the pro-constitutional interpretation before making a choice of the proper form of direct application of the Constitution. Thirdly, a subject of the pro-constitutional interpretation of Article 226 § 1 k.k. According to the author, the pro-constitutional interpretation of Article 226 § 1 k.k. includes an necessity of adopting the literal interpretation according to which the public nature of the perpetrator’s act is not an element of crime described in Article 226 § k.k.