Michał Ziółkowski | Kozminski University (original) (raw)

Papers by Michał Ziółkowski

MUTUAL TRUST, MUTUAL RECOGNITION AND THE RULE OF LAW, ed. Alexander Kornezov, 2023

POLISH REPORT FOR THE XXX FIDE CONGRESS IN SOFIA (2023 CONGRESS PUBLICATIONS, VOL. 1) CONCERING M... more POLISH REPORT FOR THE XXX FIDE CONGRESS IN SOFIA (2023 CONGRESS PUBLICATIONS, VOL. 1) CONCERING MUTUAL TRUST, MUTUAL RECOGNITION AND THE RULE OF LAW

Routledge Handbook of Illiberalism, 2021

The chapter offers a birds-eye view on the aims, strategies, and effects of the illiberals’ actio... more The chapter offers a birds-eye view on the aims, strategies, and effects of the illiberals’ actions against the independence of the judiciary. The first part of the chapter focuses on illiberal strategies and disciplinary practices against judges. The reforms have not followed any particular higher set of coherent constitutional values. The reforms aimed mainly at keeping the illiberals in power; they were not guided by institutional concerns and were about the judicial personnel (newly appointed judges, recently nominated clerks, and courts’ personnel) and about disciplining them. The second part of the chapter is a case study on Poland, describing how the illiberal courts follow the political rhetoric and support the illiberals and their reforms.

Przegląd Konstytucyjny, Jun 1, 2022

Glosa dotyczy przebiegu postępowania 2 oraz treści wyroku w sprawie K 20/20, w którym Trybunał Ko... more Glosa dotyczy przebiegu postępowania 2 oraz treści wyroku w sprawie K 20/20, w którym Trybunał Konstytucyjny orzekł o niekonstytucyjności art. 3 ust. 6 ustawy z dn. 15 lipca 1987 r. o Rzeczniku Praw Obywatelskich 3 (dalej: ustawa o RPO). Trybunał ponadto postanowił o wyznaczeniu innego (niż dzień publikacji wyroku) terminu utraty mocy obowiązującej przez niekonstytucyjną normę. Zakwestionowany w sprawie przepis stanowił, że dotychczasowy Rzecznik Praw Obywatelskich (dalej: RPO) po zakończeniu kadencji pełni swoje obowiązki do czasu objęcia stanowiska przez 1

National Constitutions and EU Integration, 2022

Interdyscyplinarny wymiar tożsamości konstytucyjnej

CONSTITUTIONAL IDENTITY AS A STANDARD AND CRITERION OF CONSTITUTIONAL REVIEW FOR THE CONSTITUTION... more CONSTITUTIONAL IDENTITY AS A STANDARD AND CRITERION OF CONSTITUTIONAL REVIEW FOR THE CONSTITUTIONAL TRIBUNAL IN POLAND (A STUDY OF CASES NOS. K 32/09 AND P 7/20) The Polish Constitutional Tribunal used constitutional identity in the Lisbon case for the first time. Since then, identity has become an unexplored concept by the Tribunal. However, it became extensively abused by the captured and curbed Tribunal in 2021, when the Tribunal justified the unconstitutionality of the provisions of the Treaty on European Union. The nature and scale of this abuse provoke a more general question of whether the Tribunal in Poland may use constitutional identity as a point of reference in constitutional review. If the answer is affirmative, another question arises, namely which of the possible and well-known conceptions of constitutional identity could be ready to use by the Tribunal in Poland. To answer the questions, the chapter takes several issues into consideration. The first is possible and c...

Przegląd Konstytucyjny

Comparative Interpretation or Non-comparative Reference to Foreign Law? (A case Study of the Poli... more Comparative Interpretation or Non-comparative Reference to Foreign Law? (A case Study of the Polish Constitutional Tribunal) The aim of the article is a reconstruction of the Constitutional Tribunal’s understanding of references to foreign law and jurisprudence. The research sample consists of judgments concerning: (i) the Lisbon Treaty; (ii) shooting down a civil aircraft; (iii) control of the objectives of a political party; (iv) data retention. Other judgements are referred supplementary. The article focuses on the internal point of view of the Constitutional Tribunal. It analyses how the Tribunal describes and understands the references to foreign law and foreign case law. It also discusses how the Tribunal uses that references. The main argument is that the Tribunal does not perceive its practice (i.e. references to foreign law) as comparative constitutionalism or comparative thinking. Consequentially, maybe it is not justified for scholars to criticize this practice as compara...

Przegląd Konstytucyjny, 2023

The aim of the article is a reconstruction of the Constitutional Tribunal’s understanding of references to foreign law and jurisprudence. The research sample consists of judgments concerning: (i) the Lisbon Treaty; (ii) shooting down a civil aircraft; (iii) control of the objectives of a political party; (iv) data retention. Other judgements are referred supplementary. The article focuses on the internal point of view of the Constitutional Tribunal. It analyses how the Tribunal describes and understands the
references to foreign law and foreign case law. It also discusses how the Tribunal uses that references. The main argument is that the Tribunal does not perceive its practice (i.e. references to foreign law) as comparative constitutionalism or comparative thinking. Consequentially, maybe it is not justified for scholars to criticize this practice as comparatively flawed. The article ends with a call to view the Tribunal’s references differently since the references to foreign law are an element of the non-linguistic context of the interpretation of constitutional provisions. It is also closer to an argument from authority than a comparative one.

Praca zbiorowa Interdyscyplinarny wymiar tożsamości konstytucyjnej powstała jako efekt projektu b... more Praca zbiorowa Interdyscyplinarny wymiar tożsamości konstytucyjnej powstała jako efekt projektu badawczo- dydaktycznego o takim samym tytule, zrealizowanego ze środków Priorytetowego Obszaru Badawczego Heritage w ramach Programu Strategicznego Inicjatywa Doskonałości w Uniwersytecie Jagiellońskim. Celem tego projektu w jego warstwie naukowej było zainicjowanie interdyscyplinarnych badań nad problemem tożsamości konstytucyjnej, a w warstwie dydaktycznej – zaangażowanie w te badania, obok konstytucjonalistów, również studentów różnych kierunków (prawa, socjologii, psychologii i filozofii). „Zwrócenie uwagi na interdyscyplinarny wymiar tożsamości konstytucyjnej wydaje się jak najbardziej zasadne, ponieważ nie jest ona prostym, łatwym do zdefiniowania pojęciem, lecz właśnie «kategorią» lub «strukturą». Dlatego też spojrzenie na tożsamość konstytucyjną z perspektywy kliku dyscyplin (filozofii, psychologii, politologii, socjologii czy prawa) zasługuje na docenienie”. z recenzji wydawnicze...

Przegląd Konstytucyjny, 2021

The commentary presented in the paper is doctrinal and has descriptive and interpretive aims. It ... more The commentary presented in the paper is doctrinal and has descriptive and interpretive aims. It discusses the Tribunal’s judgement concerning the unconstitutionality of one of the provisions of the Act on the Ombudsman. According to the provision, the Ombudsman shall continue to perform duties after the end of term and until the election of the new Ombudsman. In the Tribunal’s view, the provision provided an unconstitutional extension of the Ombudsman’s term. Since the judgement was passed by the unconstitutionally elected members of the Tribunal and it was to remove Adam Bodnar (the former Ombudsman) from the office, it has to be interpreted in the context of the current constitutional crisis in Poland. The article argues that the Tribunal’s reasoning was constitutionally wrong, logically incoherent, and far from clear if considering the well-established case-law. Moreover, the paper explains how the Tribunal and the President of the Tribunal violated the law on the assignment of judges to the Tribunal’s panels and the constitutional principle of judicial independence. The concluding remarks focus on the possible legal consequences of unlawfulness in the Polish constitutional order, which does not directly provide any review of the Tribunal’s judgements or its President’s actions.

Interdyscyplinarny wymiar tożsamości konstytucyjnej, 2021

The Polish Constitutional Tribunal used constitutional identity in the Lisbon case for the first ... more The Polish Constitutional Tribunal used constitutional identity in the Lisbon case for the first time. Since then, identity has become an unexplored concept by the Tribunal. However, it became extensively abused by the captured and curbed Tribunal in 2021, when the Tribunal justified the unconstitutionality of the provisions of the Treaty on European Union. The nature and scale of this abuse provoke a more general question of whether the Tribunal in Poland may use constitutional identity as a point of reference in constitutional review. If the answer is affirmative, another question arises, namely which of the possible and well-known conceptions of constitutional identity could be ready to use by the Tribunal in Poland. To answer the questions, the chapter takes several issues into consideration. The first is possible and contemporary interpretations of constitutional identity. The second is an interpretation that may be doctrinally relevant for the Tribunal in view of the scope of constitutional provisions. The third is the difference with regard to references to identity in case law in 2010 and 2021. The fourth issue is the application of the concept of constitutional standard and concept criterion in constitutional review to the Tribunal’s case law concerning constitutional identity. The chapter has doctrinal and interpretive nature and discusses details of Polish constitutional law.

Common Market Law Review

The judgment in A.K. and others v. Sad Najwyższy was eagerly awaited as another red line for the ... more The judgment in A.K. and others v. Sad Najwyższy was eagerly awaited as another red line for the EU rule of law. It provided a test for assessing the independence of national courts in their capacity as EU courts. In contrast to a bold stance by the Advocate General, the ECJ demonstrated sensible self-restraint. It did not prescribe ready-made institutional solutions aimed at securing judicial independence. It thus avoided the risk of a judge-made harmonization of domestic judicial organization based on scant and indeterminate Treaty provisions on the matter. Under the ECJ’s test, the referring court was to weigh and compare the relevance of legal and factual circumstances that enhance or impair the public appearance of independence of the brand new Supreme Court Disciplinary Chamber. At the same time, the ECJ shouldered the referring court with a difficult task to make a discretionary assessment of the anti-constitutional legislation altering the judicial organization in Poland – the task that the Supreme Court’s extended formation subsequently delegated to the rank-and-file judges of lower courts.

Washington International Law Journal, 2019

The article aims at demonstrating that unconstitutional results, marking an illiberal transformat... more The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as "statutory anti-constitutionalism." The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of public institutions and creation of "mirror competences" or "mirror bodies" via statute in order to circumvent the activity of the constitutional bodies. The article is based on the 2015-2018 Polish experience.

The report discusses how to lawfully dismiss the unlawfully elected President of the Polish Const... more The report discusses how to lawfully dismiss the unlawfully elected President of the Polish Constitutional Court.

While the attention of many constitutional law scholars has been on the UK Government's decision ... more While the attention of many constitutional law scholars has been on the UK Government's decision to prorogue Parliament and first judicial responses, the Polish Sejm's plenary sitting has been unexpectedly suspended and postponed until after the general elections of 13 October 2019. The decision has a precedential nature. For the first time since the Polish Constitution entered into force, the 'old' Sejm is sitting while the 'new' Sejm will be waiting for an opening. Although this decision is formally compliant with the Polish Constitution, it is nonetheless undemocratic and raises some serious questions about the motivation behind this move.

The article aims at demonstrating that unconstitutional results, marking an illiberal transformat... more The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of public institutions and creation of “mirror competences” or “mirror bodies” via statute in order to circumvent the activity of the constitutional bodies. The article is based on the 2015-2018 Polish experience.

Despite the significant improvements in speaker recognition enabled by deep neural networks, unsa... more Despite the significant improvements in speaker recognition enabled by deep neural networks, unsatisfactory performance persists under noisy environments. In this paper, we train the speaker embedding network to learn the "clean" embedding of the noisy utterance. Specifically, the network is trained with the original speaker identification loss with an auxiliary within-sample variability-invariant loss. This auxiliary variability-invariant loss is used to learn the same embedding among the clean utterance and its noisy copies and prevents the network from encoding the undesired noises or variabilities into the speaker representation. Furthermore, we investigate the data preparation strategy for generating clean and noisy utterance pairs on-the-fly. The strategy generates different noisy copies for the same clean utterance at each training step, helping the speaker embedding network generalize better under noisy environments. Experiments on VoxCeleb1 indicate that the proposed training framework improves the performance of the speaker verification system in both clean and noisy conditions.

MUTUAL TRUST, MUTUAL RECOGNITION AND THE RULE OF LAW, ed. Alexander Kornezov, 2023

Routledge Handbook of Illiberalism, 2021

Przegląd Konstytucyjny, Jun 1, 2022

National Constitutions and EU Integration, 2022

Interdyscyplinarny wymiar tożsamości konstytucyjnej

Przegląd Konstytucyjny

Przegląd Konstytucyjny, 2023

Przegląd Konstytucyjny, 2021

Interdyscyplinarny wymiar tożsamości konstytucyjnej, 2021

Common Market Law Review

Washington International Law Journal, 2019

The article aims at demonstrating that unconstitutional results, marking an illiberal transformat... more The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of public institutions and creation of “mirror competences” or “mirror bodies” via statute in order to circumvent the activity of the constitutional bodies. The article is based on the 2015-2018 Polish experience.

28 Washington International Law Journal 485-525, 2019

The Jurisprudence of Particularism National Identity Claims in Central Europe, 2023

The chapter is underpinned by the supposition that constitutional case law creates a space in whi... more The chapter is underpinned by the supposition that constitutional case law creates a space in which constitutional identity may be reflected. Instead of theorising about the experience of Polish constitutional identity on a high and abstract level, the chapter takes a bottom-up perspective. It aims to show how the concept of constitutional identity appeared and where it resulted in the Tribunal’s case law. It also discusses an attempt by the captured Tribunal to build a new constitutional identity in Poland. Thus, it is predominantly descriptive and interpretive, but it also offers normative suggestions. Section I briefly recalls the Tribunal’s statements in the Lisbon case. Section II discusses the constitutional background of the case and explains why the Tribunal did the transplant. Section III discusses the transplant’s scope and weakness. Section IV discusses how identity was abused by the captured Tribunal. It refers to the recent case law of the Tribunal concerning freedom of assembly, abortion and the independence of Polish courts. As I am going to argue, the cases represent an exclusionary vision of constitutional identity and follow the pattern of the jurisprudence of particularism.