Granice wykładni prokonstytucyjnej. Glosa do wyroku Sądu Najwyższego z 5 grudnia 2012 r., III KK 137/12
Limits of the Pro-Constitutional Interpretation. Commentary on the Judgment of the Supreme Court of 5th December 2012, Case No. III KK 137/12

Summary/Abstract: 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 referredthe 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 officer. As the justification for this decision, Supreme Court referred to the limits of the pro-constitutional interpretation. In this commentary, three issuesare discussed. Firstly, a question concerning the limits of the pro-constitutionalinterpretation in the judicial process of application of the law. In the opinionof the author, such limits are set by the Constitution. Secondly, the importanceof the pro-constitutional interpretation in the process of direct applicationof the Constitution. The author argues that this type of interpretation cannot be perceived only as the interpretive co-application of the Constitutionand 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 accordingto which the public nature of the perpetrator’s act is not an element of crimedescribed in Article 226 § k.k.

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