Glosa do wyroku Trybunału Konstytucyjnego z 22 listopada 2016 r., K 13/15
Commentary on the Judgment of the Constitutional Tribunal of 22 November 2016, K 13/15

Summary/Abstract: This article pertains to the judgment of the Constitutional Tribunal, in which the Tribunal – acting upon application of the Polish Ombudsman – adjudicated that Article 12(1)–(2) of the Family and Guardianship Code (FGC) is consistent with Article 2, Article 30, and Article 47 in conjunction with Article 31(3) of the Constitution. The author argues that the position taken by the Tribunal should be viewed critically. Although the Tribunal correctly contended that the challenged provision is consistent with the principle of specificity of law derived from Article 2 with Article 30 of the Constitution (on human dignity), it is not possible to share its view that the limitation on the right to enter into a marriage provided for under Article 12 of the FGC meets the requirement of proportionality stemming from Article 31(3) of the Constitution. According to the author, the provision challenged does not satisfy the requirements of utility, relevance, or proportionality sensu stricto in limiting the right to marry that emanates from the right to decide about one’s personal life set forth in Article 47 of the Constitution. Moreover, the Tribunal should approach with greater understanding the current standards concerning prerequisites for marriage arising under the Convention on the Rights of Persons with Disabilities. Finally, it also bears mentioning that the challenged provision of the FGC is inconsistent with Article 32(2) of the Constitution, which lays down the prohibition of discrimination. Even though this matter has not been the subject of the Tribunal’s review, it is of fundamental importance while assessing the constitutionality of Article 12 of the FGC. As a result, the provision should be declared unconstitutional, i.e. inconsistent with Article 32(2) and Article 47 in conjunction with Article 31(3) of the Constitution.

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