Judges who do not hide their political sympathies for Donald Tusk’s government sit on the codification committee at the Ministry of Justice. It was this commission that prepared a draft law violating the constitutional guarantees of judicial irremovability. The Supreme Court Collegium issued a resolution unequivocally condemning the actions of this group of judges.
On 9 May 2025, Resolution No. 2/05/2025 of the Supreme Court’s Collegium of 7 May 2025 on ensuring the proper functioning of the Supreme Court, concerning the public activities of judges that are incompatible with the principle of their independence, was published on the website of the Supreme Court.
The resolution itself is very concise and consists of only two substantive paragraphs (the third paragraph concerns the immediate entry into force of the resolution). In the first paragraph, the Supreme Court College, referring to the principle of the separation of powers, reminds judges of their obligation to remain impartial and not to engage in political debates and disputes:
The Supreme Court, recognising that the principle of the separation of powers is based on the assumption of the separateness and independence of the judiciary from the other branches of government and that this principle guarantees the independence of judges and for the parties to proceedings – a guarantee of impartial consideration of the case, calls on the judges of the Supreme Court to exercise caution in undertaking additional activities on behalf of the legislative or executive authorities and in participating in political debates. Pursuant to Article 178(3) of the Constitution of the Republic of Poland, a judge may not belong to a political party or trade union, nor may he or she engage in public activities incompatible with the principles of the independence of the courts and the independence of judges.
In the second paragraph, the Supreme Court College already pointed to a specific example of such activity by judges, contrary to the requirements of impartiality and independence, namely participation in the work of legislative committees preparing plans for the ‘reform’ of the judiciary by the current government:
The Supreme Court, bearing in mind the wording of Article 45(1) of the Constitution of the Republic of Poland, which provides for the right to have a case heard by an independent, impartial and independent court, recognises that Supreme Court judges should not participate in the law-making process, either in committees established for this purpose or as authors of opinions, if this leads to involvement in political disputes and the public identification of judges with parties to conflicts between political parties. In the current situation, such involvement and identification are associated with legislative work on the reform of the judiciary carried out in cooperation with representatives of the executive branch. The above position of the Supreme Court does not apply to bodies representing the Supreme Court.
This is a clear reference to the recently presented draft law ‘on restoring constitutional order in the judiciary’, which, as we have also pointed out on our website, is clearly contrary to the constitutional guarantees of the independence of the judiciary, in particular Article 180 of the Constitution, according to which it is unacceptable to remove a judge by means of a statute.
This draft is based on earlier drafts prepared by the Commission for the Codification of the Judiciary and Public Prosecution, operating at the Ministry of Justice. It currently consists of five judges, including its chairman, Krystian Markiewicz, until recently president of the Polish Judges Association ‘IUSTITIA’. We recently reported on our website about the controversial demands and statements made by the entire association and, strictly speaking, by its former president, including his declared belief that there is no need to adhere to the ‘letter of the law’ .
Perhaps, therefore, this resolution can be read as a general criticism of the attitudes and activities of judges from the ‘IUSTITIA’ association, which the National Council of the Judiciary once described as follows:
The activities of some members of the ‘Iustitia’ association, who consider the destabilisation of the Polish state and call on EU institutions to implement infringement procedures against Poland and impose financial penalties not only pose a threat to citizens, but are also an example of political activity that is unacceptable and contrary to the association’s statutes, identical to the typical activities of political parties.
– as recently pointed out by the President of the Ordo Iuris Institute, Jerzy Kwaśniewski.
The resolution itself has no legal effect. Article 22 § 1 of the Supreme Court Act, cited as one of the legal bases for its adoption, merely states that: The Supreme Court (composed, in accordance with Article 21 of the Act, consists of the First President of the Supreme Court, the Presidents of the individual chambers of the Supreme Court and judges elected by the assemblies of judges of the chambers of the Supreme Court for a term of three years) prepares positions on matters related to the activities of the Supreme Court and cooperates with the First President of the Supreme Court to ensure the proper functioning of the Supreme Court.
More light is shed on the meaning of the resolution by the second of the legal bases referred to, i.e. § 34 of the Rules of Procedure of the Supreme Court, which, supplementing Article 22 of the Act, provides that:
The Supreme Court College may, on its own initiative, adopt a resolution on important matters of the Supreme Court, in particular concerning […] the conduct of Supreme Court judges deemed to be detrimental to the dignity of their office or undermining confidence in their impartiality or independence […].
In other words, this resolution may prove relevant for the purposes of interpreting the concept of ‘public activity incompatible with the principles of judicial independence and impartiality’, which, pursuant to Article 72 § 1(4) of the Supreme Court Act and Article 107 § 1(5) of the Law on the System of Courts of General Jurisdiction, may constitute grounds for disciplinary liability of a judge.
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