- The Polish Constitutional Tribunal held that the regulation of the Minister of Justice, Waldemar Żurek, which partially abolishes the principle of random assignment of court cases, is contrary to the law and the Constitution.
- By issuing this regulation, the justice minister exceeded the scope of statutory authorization, violating the statutory principles of the immutability of a designated panel of judges and the random assignment of cases, and furthermore failed to fulfill the obligation to obtain the opinion of the National Council of the Judiciary (KRS).
- This is yet another case of serious violations of the principles of the rule of law and the independence of the judiciary by Donald Tusk’s government, under the slogan of allegedly restoring the rule of law. The situation is all the more alarming because the same government has refused for the past year and a half to [publish the Constitutional Tribunal’s judgments] [link – https://obserwator-praworzadnosci.pl/en/the-ombudsman-has-once-again-spoken-out-in-defence-of-the-constitutional-tribunal-and-the-extraordinary-review-and-public-affairs-chamber-of-the-supreme-court/] and does not recognize them.
- At the same time as submitting the case to the Constitutional Tribunal, the President of Poland also filed a report claiming that Minister Żurek may have abused his authority. Given the Tribunal’s ruling, it appears that the Minister’s actions do, in fact, fit the legal definition of this offense.
Not long ago, Justice Minister Waldemar Żurek issued a Regulation amending the Rules of Procedure for Ordinary Courts, which openly undermined the statutory principle of the random assignment of cases to judicial panels in the case of multi-judge panels.
The Minister’s action met with a decisive response from the President of the Republic of Poland, Karol Nawrocki, who, just a few days after the regulation was issued, stated that it is
a blatant act of lawlessness.
It certainly did not end with mere declarations—the Polish President, exercising the power granted by Article 199(1)(1) of the Constitution, petitioned the Constitutional Tribunal on October 24, 2025 to examine the conformity of the said regulation with the Constitution and the statute under which it was issued.
Earlier (on October 8, 2025), a motion to the Constitutional Tribunal in the same matter was submitted by the National Council of the Judiciary (KRS). In addition to issues related to the violation of the statutory principle of random assignment of cases to judges, the KRS in its motion also emphasized that the regulation was issued in breach of the provisions authorizing its issuance—specifically, it concerned a breach of the obligation to seek the opinion of the National Council of the Judiciary, as referred to in Article 41 § 1 of the Law on the System of Common Courts. Although the original draft of the regulation was submitted for opinion, among others, to the KRS, its final version included provisions that were substantially changed compared to the original version, the final wording of which was thus not reviewed by the KRS.
Poland’s Constitutional Tribunal considered both applications at a hearing held on November 12.
Minister Żurek did not take part in this hearing, even though, pursuant to Article 42 of the Act on the Organization and Mode of Proceedings before the Constitutional Tribunal, he had the status of a participant in the proceedings both as the authority that issued the normative act covered by the application (point 3 of that provision) and as the Prosecutor General (point 7). On the same day, TK issued a judgment (case no. U 4/25), in which it declared most of the provisions of the regulation unconstitutional.
Violation of the statutory principles of random assignment of cases and of the immutability of the adjudicating panel in light of Article 92(1) of the Constitution
First and foremost, the Constitutional Tribunal held that:
§ 1 points 2 and 3 of the regulation referred to in point 1 are inconsistent with Article 47a of the Act referred to in point 1 in conjunction with Article 92(1) of the Constitution.
It was precisely these provisions that allowed court presidents to set the rules on the basis of which division chairs could then assign judges (other than the reporting judge) to a multi-judge adjudicating panel in a specific case.
Such a decision by the Constitutional Tribunal, as well as its reasoning, should not come as a surprise to anyone. In the statement following the judgment it was explicitly indicated:
The rules for assigning cases are regulated in Article 47a of the Act – Law on the System of Common Courts, introduced on 12 July 2017, which establishes a system of random case assignment. Therefore, cases are assigned to judges, judicial assessors, and court referendaries at random within the individual categories of cases. […] In contrast, § 1 points 2 and 3 of the amending regulation under review granted the head of division the authority to assign judges to the adjudicating panel as an alternative to the random case allocation system. It was therefore necessary to find that these provisions are inconsistent with Article 47a of the Law on the System of Common Courts in conjunction with Article 92(1) of the Constitution.
Note that Article 47a § 1 of the Act on the System of Common Courts establishes the general principle of random assignment of cases, regardless of the number of members of the adjudicating panel, allowing only one exception:
unless the case is to be assigned to the judge on duty.
In turn, Article 92(1) of the Constitution sets out the rules for issuing regulations:
Regulations shall be issued on the basis of specific authorization contained in, and for the purpose of implementation of, statutes by the organs specified in the Constitution. The authorization shall specify the competent authority to issue a regulation and the scope of matters to be regulated as well as guidelines concerning the provisions of such act.
The authorization to issue the regulation at issue (Article 41 of the Law on the System of Common Courts) did not in any way permit restricting the aforementioned rule of random assignment of cases, as referred to in Article 47a of the Law on the System of Common Courts.
The Law on the System of Common Courts provides in Article 47b that the composition of the court may be changed only in the event of an impossibility or a prolonged impediment to hearing the case with the existing panel of judges. The Polish Constitutional Tribunal therefore held that:
Article 47b of the Law on the System of Common Courts established the principle of immutability of the composition of the court and exceptions to that principle. A change in the composition of the court may occur only if the case cannot be heard by the current panel or if there is a prolonged impediment to the case being heard by the current panel. Introduced in the assessed § 1 point 6 letter b of the amending regulation the power of the president of the court to change the composition of the adjudicating panel went beyond the statutorily provided exceptions to the principle of immutability of the panel’s composition. It should therefore be held that § 1 point 6 letter b of the amending regulation is inconsistent with Article 47b of the Act – Law on the System of Common Courts in conjunction with Article 92(1) of the Constitution.
Let us recall that the introduction by the previous parliamentary majority of a system for the random assignment of judges to individual cases was intended to curb the practice of court presidents assigning specific judges “to order,” especially in “sensitive” cases, cases of a political nature, or where corrupt practices occurred. This aspect is particularly important after the current Minister of Justice, in office since July of this year, as well as his predecessor, replaced the presidents and vice-presidents of most courts in Poland, often in violation of the law, because they failed to take into account the negative opinion of those courts’ colleges of judges and did not consult the KRS, as required under Polish law in such cases.
Failure to fulfill the obligation to seek the opinion of the National Council of the Judiciary (KRS) and Article 7 of the Constitution
The Constitutional Tribunal also agreed with the KRS’s position, according to which the requirement to obtain the KRS’s opinion on the regulation was not met; as part of the alleged ‘restoration of the rule of law’ Donald Tusk’s government—just as it did with the Constitutional Tribunal—ceased to recognize the KRS. In this particular instance of the KRS being ignored by Donald Tusk’s Minister of Justice, the Polish Constitutional Tribunal’s objection concerned specifically the provisions setting out new rules for the assignment of cases to judges.
It is also noteworthy that the Constitutional Tribunal invoked Article 7 of the Polish Constitution, according to which:
Public authorities act on the basis of and within the limits of the law.
This means, no more and no less, that in light of the Court’s case law, if any Minister issues a regulation pursuant to statutory authorization that empowers them to do so, but fails to consult or to secure agreement from the other entity or entities with whom, under that legal basis, they were required to do so, then they are acting in excess of their authority. Accordingly, a legitimate question arises as to the possibility of incurring criminal liability in this respect under Article 231 § 1 of the Polish Criminal Code, which criminalizes acts committed by public officials who exceed their authority or fail to perform their duties, acting to the detriment of the public interest or of private interest. This reflection is particularly important in light of not only Minister Żurek’s actions, but also, for example, those of Minister of Education Barbara Nowacka, who on several occasions issued regulations concerning the organization of religion classes without, as required by law, an agreement with representatives of Churches and other religious associations.
Regulation and Article 45 of the Constitution (Right to a Court)
Returning to the Constitutional Tribunal’s judgment, the proceedings were discontinued in all other respects. For this reason, the allegation that the regulation was contrary to Article 45 of the Constitution was not considered. This articleprovides that:
Everyone shall have the right to a fair and public hearing of their case, without undue delay, before a competent, impartial and independent court.
This standard of review was indicated by both the KRS:
Pursuant to Article 45 of the Constitution of the Republic of Poland, everyone has the right to a fair and public hearing of their case without undue delay before a competent, impartial, and independent court. […] Judicial independence requires statutory guarantees establishing the rules governing the formation of the court’s composition. […] The National Council of the Judiciary shares the view expressed by the Constitutional Tribunal in the reasoning of the judgment of May 16, 2024, case no. U 1/24, that: “A court of competent jurisdiction is a court constituted (established) pursuant to statutory provisions. The term ‘court established by law’ shall also be understood to mean the determination by statute of the rules for the assignment of cases. The determination of a court’s composition by a provision of a normative act at the level of a regulation, in effect concealing the executive branch’s influence on the structure of the court in provisions ostensibly regulating technical matters ( … ), amounts to a court not of competent jurisdiction within the meaning of Article 45(1) of the Constitution.” The principles of the immutability of the composition of the adjudicating panel and the random assignment of cases constitute safeguard principles for the proper constitution of the court (adjudicating panel of judges) without interference from external factors, including, above all, the political authorities interested in the direction of the resolution of specific cases. From a citizen’s perspective, even a departure from these principles based on statutory provisions may jeopardize the exercise of the right of access to a court and prompt them to use the mechanism for recusing a judge provided for in criminal and civil procedure. A departure from these safeguard principles at the level of a regulation constitutes a gross violation of the right to a properly constituted court within the meaning of Article 45 of the Constitution.
The same problem was also highlighted by the President:
The introduction of the grounds that enable arbitrary designation of judicial panels, by the Minister of Justice in the contested amending regulation, violates the right to a court set out in Article 45(1) of the Constitution, in its aspect concerning the proper constitution of the court.
It is, however, evident that, in light of the manifest inconsistency of the regulation with the statute under which it was issued, and thus with Article 92(1) of the Constitution, there was no need to consider additional standards of review. At this point, it is worth recalling the position of the Constitutional Tribunal, cited in the National Council of the Judiciary’s motion, and expressed in the judgment of April 30, 2009 (case no.. U 2/08):
The function of a regulation is to implement the statute, not to supplement or modify it or to repeat its provisions.
This standard was obviously violated by Minister Żurek. If, however, the Constitutional Tribunal were also to examine the provision contained in Article 45 of the Constitution, it is highly likely that it would likewise find a violation of it in the regulation at issue.
Effects of the judgment
The judgment eliminates the above-described provisions from the Polish legal order. This means that if the adjudicating panel includes a judge appointed by the head of the division bypassing the random case-assignment system, then a decision issued by such a panel will be null and void within the meaning of Article 379 point 4 of the Code of Civil Procedure, or, in criminal procedure—in accordance with Article 439 § 1 point 1 of the Code of Criminal Procedure will be subject to absolute reversal by the appellate court.
Moreover, it seems that the president of the court who sets the rules for exceptions to the random assignment of cases, or the head of a division who assigns judges on the basis of those rules, will also risk criminal liability for exceeding their authority (Article 231 § 1 of the Criminal Code, as referenced above).
Such responsibility may also be borne by Minister Żurek himself. Indeed, in parallel with the motion to the Constitutional Tribunal, the President of the Republic of Poland also filed a notice with the prosecutor’s office regarding the possibility that the Minister committed a crime on the grounds of Article 231 § 1 of the Criminal Code, due to:
an unlawful interference by an organ of the executive branch with the independence of the judiciary and the independence of judges, and a violation of Article 45(1) of the Constitution of the Republic of Poland, which guarantees the right to an impartial court established by law, by creating the possibility of arbitrarily assigning adjudicating panels
– whereby the Minister:
issued an implementing regulation outside the statutory delegation and contrary to the law, thereby exceeding the powers vested in him as the Minister of Justice, acting to the detriment of the public interest, namely the rule of law and the independence of the judiciary, as well as citizens’ right to an impartial court established by law.
The President also emphasized that Donald Tusk’s Justice Minister should not be able to hide behind the claim that he did not act intentionally, because:
It should be noted that during the legislative process, the state authorities participating in that process drew attention to the inconsistency of the proposed provisions with the law. […] Despite these opinions, the Minister of Justice knowingly continued the legislative process, introducing an act manifestly contrary to statute and to the Constitution of the Republic of Poland. This conduct – intentional and undertaken in the performance of a public function – indicates the possibility of meeting the statutory elements of the offense under Article 231 § 1 of the Criminal Code, i.e., a public official’s exceeding of authority to the detriment of the public interest, namely the rule of law and the independence of the judiciary.
Of course, as long as the current government maintains control over the illegally taken-over prosecution service, the chances that proceedings in the above matter will be properly conducted are not very high. However, one can hope that it will take place as soon as possible, and that the abuses committed by Minister Żurek, who still does not recognize the judgments of the Polish Constitutional Tribunal and will probably not comply with that ruling regarding his regulation, will not go unpunished.
Image source: iStock.
