Resolution of the State Council
According to art. 11 of the Act on Polish Citizenship of January 8, 1951, "a Polish citizen could acquire foreign citizenship only after obtaining the permission of the Polish authorities" (paragraph 1), and this involved the automatic loss of Polish citizenship (paragraph 5). The authority entitled to issue the said permit was the Council of State, which ruled on the loss of citizenship at the request of the Prime Minister (Article 13 of the Act of January 8, 1951 on Polish Citizenship). The Act does not specify a special form of issuing such a permit, although in art. 13 para. 3 indicates that the announcement in the Polish Monitor replaces the delivery, which may suggest that we are dealing with individual consent each time delivered to the addressee or, exceptionally, announced in the Monitor.
On January 23, 1958, the Council of State issued a resolution authorizing the change of Polish citizenship to persons leaving for permanent residence to the State of Israel. Earlier, a similar resolution was issued to German repatriates. None of the resolutions was published. Persons who met the conditions (German repatriates or persons returning to Israel for permanent residence) submitted applications to the Council of State, and then received travel documents, in which there was an entry stating that the holder of the document was not a Polish citizen. Such an entry obviously does not mean a real loss of Polish citizenship. Even assuming that the discussed resolutions are consenting to a change of citizenship within the meaning of the Act of 1951, a person wishing to lose Polish citizenship in this mode would first have to acquire foreign citizenship, which could have happened only after reaching the destination country, and thus the issuance of the document itself travel does not testify to the loss of Polish citizenship. In order to determine whether the loss actually occurred, it should be considered whether all the conditions expressed in art. 11 and 13 of the Act of January 8, 1951 on Polish citizenship were fulfilled, so whether the interested party submitted an appropriate application, which was then covered by the request of the Prime Minister to the Council of State; whether the Council of State issued a permit to change citizenship and whether the person obtained new citizenship. Such steps would have to be taken if we were to recognize that the resolution of the State Council No. 5/58 is indeed a legal effect giving consent to a change in citizenship. However, this issue raises many doubts, which seem to lead to the conclusion that the resolution in question can not be attributed to the legal force due to the non-compliance with the legal form required by law.
Starting the considerations, it is worth analyzing the legal nature of the acts of the Council of State. The Council of State was an independent supreme organ of state power and was subject in all its activities to the Sejm. She had masterful and law-making competences. At the same time, the view reflected in the doctrine and case law should be approved (judgment of the Supreme Administrative Court of 18 April 1985, file reference: III SA 404/85), namely that the Act of June 14, 1960. The Code of Administrative Procedure, and the previous Presidential Regulation The Republic of Poland of 22 March 1928 on administrative proceedings, did not apply to the proceedings before the Council of State (as it was not an administrative body in the understanding of the then administrative code). The interpretation adopted by the Supreme Court (judgment of the Supreme Court of September 17, 2001, file reference number III RN 56/01) and the Supreme Administrative Court (judgment of the Supreme Administrative Court of August 11, 2000, file reference No. V SA 117/00) are similarly accurate. ) according to which "until the Council of State issued its allegedly independent resolution No. 37/56, there were no legal grounds in the Act of 1962 on Polish citizenship and in the Constitution of the Polish People's Republic of 1952. Even if it were assumed that this resolution could be taken under the general constitutional competence of the Council of State, could not change - as a normative act of a lower order - the absolutely binding provisions of the Citizenship Act, precisely defining the procedure for changing Polish citizenship to foreign citizens, entailing the loss of Polish citizenship ". This means that the indicated resolutions (Resolution No. 5/58 but also Resolution No. 37/56) could be issued only on the basis of art. 25 section 1 point 11 of the Constitution of the Polish People's Republic of 23 July 1952 ("/ Council of State / performs other functions, provided for by the State Council in the Constitution or passed on to it by laws") in connection with art. 11 and art. 13 of the Act of January 8, 1951 on Polish citizenship, and thus had to meet the requirements imposed by the indicated provisions.
The issue raised many times was the subject of adjudication by both the Provincial Administrative Court in Warsaw and the Supreme Administrative Court. Also, the Supreme Court expressed its opinion on a similar issue (the resolution of the issue whether compliant with the change of citizenship could be expressed in a resolution of a general nature). The three main paths of reasoning represented in the case law are presented below. Earlier, it is worth mentioning that the judgments referred to below relate in truth both to the Act on Polish Citizenship of 1951 and the later Act of 15 February 1962 on Polish Citizenship. These acts, however, normalized the institution of losing Polish citizenship by acquiring foreign citizenship in an almost identical manner, as emphasized by Professor Walenty Ramus (W. Ramus, Institutions of Law on Polish Citizenship, Warsaw 1980, p. 249), hence the views formulated in the Act on 1962 can also be referred to earlier regulation. Similarly, the opinions of the courts (especially the Supreme Court and the Supreme Administrative Court) and the literature on the resolution of the Council of State No. 37/56 are adequate in this matter, because the resolution concerned similar issues (collective consent for changing citizenship to German repatriates without delivering to recipients or publication in Monitor) and was issued on the same legal basis. According to the predominating case law (judgments of the Supreme Administrative Court: dated October 14, 2005, file reference: II OSK 267/05, dated October 27, 2005, file reference: II OSK 1001/05, dated 27 October 2005, file reference number: II OSK 965/05, dated December 14, 2005 file reference number: II OSK 1085/05, dated August 29, 2007 file reference: II OSK1153 / 06; Provincial judgments Administrative Court in Warsaw: dated 15 April 2005, file reference number II SA / Wa 2149/04, dated 6 October 2004, file reference number: V SA 3946/03, dated 25 September 2008; Act: IV SA / Wa 1113/08, dated 21 May 2008, file reference: IV SA / Wa 549/08, judgment of the Supreme Court of 17 September 2001, file reference number: III RN 56 / 01) "permission to change Polish citizenship as a premise for the loss of citizenship under Articles 13 and 16 of the Act of 15 February 1962 [also Article 11 paragraph 1 in connection with Article 13 paragraph 1 and 2 of the Act of January 8, 1951] about Polish citizenship, had to have the nature of an individual and addressed act of the Council of State addressed to a specific addressee, which the general resolution of the State Council could not replace "(judgment of the Supreme Court of 17 September 2001, Ref. file: III RN 56/01). This interpretation results from a grammatical-linguistic interpretation, as indicated by the use of the phrases "ruling", "ruling" and that the decision takes place at the request of the Prime Minister, and the announcement in the Polish Monitor replaces delivery - consent to change of citizenship must be the first act of applying the law, and secondly, it must be individual and concern a specific subject. In one of the judgments (file reference: II SA / Wa 2149/04), the WSA in Warsaw stated: "this resolution / resolution of the Council of State No. 5/58 / can not be treated as a legal act that corrects the lack of individual authorization in relation to the applicant, which, when submitting an application for permission to change citizenship, launched proceedings provided for in Article 13 of the Act of January 8, 1951 on Polish citizenship, which, however, was not completed, because the Council of State did not issue an individual permit to change citizenship by the applicant. she did not lose Polish citizenship. " Polish citizenship can not be lost simply by starting the procedure under art. 11 of the Act of 1951, ie by submitting the application itself - individual consent to change the citizenship should be issued and then delivered to the addressee or announced in the Polish Monitor. Only this will have legal effects described in the referenced provisions.
However, the interpretation described above is not the only one. It should be pointed out that there is a different view in literature, mainly represented by professor Walenty Ramus, according to which "it may have been possible and purposeful to grant general permission to acquire citizenship of a given country by certain categories of persons, when the change of citizenship concerns more people ". However, this opinion is isolated in both doctrine and jurisprudence and does not deserve approval. The issue of general resolutions actually took place at that time and was generally considered to be correct. However, the fact that something was widely regarded as lawful and practiced does not make it such. Resolutions of the Council of State did not meet statutory requirements, so legal effects can not be attributed to them.
The third remarkable point of view was expressed, inter alia, in the judgment of the Supreme Administrative Court of 27 October 2005 (file reference: II OSK 965/05). In the justification of the judgment, we read that it can not be ruled out in advance that the resolution of the State Council No. 5/58 has the effect of losing Polish citizenship. The occurrence of this effect is in fact impossible in the case of entities that submitted applications after passing a resolution, because it can not be expressed in accordance with a request that has not been submitted yet. However, this is not obvious when the application was submitted before the resolution was issued. In such a situation, it can be argued that the resolution is individual and refers to entities identified by virtue of characteristics (entities on the list of persons for whom the Prime Minister submitted an application to the Council of State). The verdict does not resolve the issue, but it gives it to the Provincial Administrative Court.
The position described above, like Professor Ramus' view, is also not dominant and is not successful. It has been criticized, inter alia, by professor Jacek Jagielski, who in his speech states: "Resolution 5/58 of the Council of State, due to its legal structure and the reasons for its development, can not be identified with a legally effective permit to change nationality provided for in the Act of 1951 as one of the conditions for the loss of citizenship, both with regard to persons who filed an application for release from Polish citizenship after passing the resolution, and those who applied before the adoption of the resolution. "
It is difficult to disagree with the views of Professor Jacek Jagielski and the dominant part of the case law. Resolution No. 5/58 of January 23, 1958, did not give rise to legal consequences in the form of the loss of Polish citizenship by persons covered by it, as it was not a consent to change citizenship within the meaning of the Polish Citizenship Act of January 8, 1951.
