- Poland’s National Council of the Judiciary (NCJ) has put forward for consultation a draft points-based system for assessing candidates for higher judicial positions. The scoring discriminates against members of other legal professions and against those who have taken part in judicial nomination procedures since 2018.
- As early as its judgment of November 29, 2007 (ref. SK 43/06), Poland’s Constitutional Tribunal held that the setting of candidate assessment criteria by the NCJ violates Article 60 of the Polish Constitution, because such matters must be regulated by statute. The current Act on the NCJ does not grant the Council any such power at all – the statute itself sets out the criteria in Article 35(2).
- The proposal coincides with the disclosure of a plan to “coordinate” applications for vacancies at the Regional Court in Warsaw. This gives rise to a justified fear that access to the judiciary will once again be closed off – contrary to Article 60 of the Constitution.
Context: who can become a judge in Poland
Polish law does not reserve the bench for career judges. Under the Law on the System of Common Courts, a judge of a regional court – the second tier of Poland’s ordinary courts – may also be appointed from among prosecutors with at least four years of service and persons who have practiced as attorneys, legal advisers or notaries for at least six years, who have held the post of president, vice-president or counsel of the General Counsel to the Republic of Poland for the same period, or who are legal scholars holding a professorship or a habilitation degree; similar rules apply to the courts of appeal.
In practice, however, this path long remained theoretical. A study by the independent Court Watch Poland Foundation of the NCJ’s resolutions from 2014–2017 found that, among the resolutions examined, not a single person from outside the district courts was recommended for a regional court and that the backing of the local judicial community “strongly determined” success. The authors concluded that:
The idea of the judiciary as the “crown of the legal professions” was “a fiction” in Poland.
At the time, the judge-members of the NCJ were elected by judges themselves, under rules that Poland’s Constitutional Tribunal found unconstitutional in 2017 (ref. K 5/17).
Since the 2017 reform, under which the judge-members of the NCJ are elected by the Sejm, Poland’s lower house of parliament, more than two thousand judges have been appointed – among them several hundred who came to the bench from other legal professions. It is precisely these people whom Donald Tusk’s Justice Ministers, Adam Bodnar and Waldemar Żurek, have sought to remove without any legal basis. Bodnar’s 2025 draft placed them in a so-called “red group,” to be removed from the bench by operation of law, and Żurek’s draft repeated this solution – even though Article 180 of the Constitution states that:
- Judges shall not be removable.
- Recall of a judge from office, suspension from office, removal to another bench or position against his will, may only occur by virtue of a court judgment and only in those instances prescribed in statute.
The NCJ’s new proposal therefore raises a serious concern: that the doors of the judiciary, opened in 2018 to lawyers from outside the judicial corporation, will be shut once again.
The draft scoring system
On October 4, 2026, Supreme Court Judge Kamil Zaradkiewicz, Ph.D., published a post on X revealing a proposal by the NCJ for new criteria to assess candidates for judicial office. The document, titled “Survey on the Scoring of Criteria Taken into Account in Promotion Procedures,” was circulated for consultation, with comments to be sent to the Council’s e-mail address. Its introduction reads:
We present to you the assumptions of a project aimed at creating a transparent system for evaluating candidacies for higher judicial positions in those nomination procedures in which more than one candidate applies for a single post. The proposed scoring is to be indicative, assisting the NCJ teams that assess candidates; however, any departure from its application or from its results will require justification.
The draft contains a table assigning between 1 and 4 points to a candidate’s individual achievements (plus a range of 0 to 2 points for additional criteria), as well as an extensive catalog of negative points. The Council makes no secret that, if the project meets with a positive response, work on its implementation will continue. This was announced as early as June by the NCJ’s chairman, Judge Dariusz Zawistowski, who said that the Council wanted to include “objective criteria for assessing candidates” in its Rules of Procedure.
Behind the lofty slogan of objectivity, however, lie solutions that not only lack any statutory basis but directly undermine the constitutional principle of equal access to public service.
The Constitutional Tribunal has already once found NCJ-made assessment criteria unconstitutional
The idea that the NCJ itself should set the rules for selecting candidates is not new – and the Constitutional Tribunal has already ruled on it unequivocally. In its judgment of November 29, 2007 (ref. SK 43/06), the Tribunal held that the provision of the then-applicable 2001 Act on the NCJ granting the Council the power to set criteria for assessing candidates for judicial office was incompatible with Article 60 of the Constitution, which guarantees citizens access to public service on equal terms. The Tribunal’s reasoning states:
[…] the criteria set by the National Council of the Judiciary constitute the sole basis for the selection of candidates. Such a regulation violates the constitutional requirement that matters of essential significance for the exercise of constitutional freedoms and rights be regulated only by statute.
The Act on the National Council of the Judiciary in force today does not grant the Council the power to set criteria for assessing candidates. Its list of competences is limited to “considering and assessing” candidacies, while the criteria themselves are laid down directly in the statute. Pursuant to Article 35(2):
When determining the order of candidates on the list, the team is guided primarily by its assessment of the candidates’ qualifications and, in addition, takes into account: 1) professional experience, including experience in applying the law, academic achievements, opinions of superiors […]; 2) the opinion of the board of the competent court and the assessment of the competent general assembly of judges.
The Council thus lacks even the basis it had in 2007 – let alone a power to add criteria, weights, negative points and disqualifying conditions to the statutory list. Calling the scoring “indicative” changes nothing: since any departure from it must be justified, the Council’s teams will in practice be bound by it. Nor would the announced inclusion of the criteria in the Council’s Rules of Procedure cure the unconstitutionality: such rules are an internal act and cannot shape the rights or obligations of candidates.
The scoring favors career judges only, although the law opens the way to members of other legal professions
The draft concerns “higher judicial positions,” that is, primarily seats in regional courts and courts of appeal – posts which, as explained above, are open by law also to prosecutors, attorneys, legal advisers, notaries and legal scholars. Yet a glance at the NCJ’s table shows that there is practically no place in it for them. Points are awarded for the longest judicial service (3 points), a positive opinion of the court inspector (up to 3 points), stability of case law, above-average statistical results and full-time adjudication (2 points each), and finally for timely written reasons for judgments, adjudicating in several divisions, positive opinions of the court president and the court board, and even a secondment to a higher court (1 point each). The highest-scoring criterion – worth as many as four points – is the “opinion of the judicial self-government,” that is, the best result in a vote at the assembly of judges, the very judges from whose ranks most of an outside candidate’s competitors come.
An attorney with twenty years of practice, a prosecutor who has conducted the most serious investigations or a notary has nothing to show in any of these categories. Points for academic degrees, publications or conferences make up only a small fraction of the available pool. The statutory “professional experience, including experience in applying the law” is thus quietly narrowed down to judicial experience.
Meanwhile, in case SK 43/06 the Constitutional Tribunal clearly emphasized that the right of access to public service protects candidates from outside the judiciary to the same degree:
[…] applying for transfer to a higher position as a rule coincides with candidacies for that position not only of persons already admitted to public service, but also of persons who apply for the given position while not yet belonging to public service. […] These guarantees ensure equal protection to candidates already employed in public service and to candidates from outside that service.
Moreover, the Tribunal held at the time that the challenged provision did not violate the principle of equality only because it had to be read as authorizing uniform rules of assessment for all candidates.
The NCJ’s draft therefore does exactly what – in the Tribunal’s view – not even the Council’s former, unconstitutional power permitted: it differentiates candidates according to the profession they have practiced so far.
Points for “social activity related to the rule of law” – a bonus for taking part in a political dispute?
Among the criteria scored from 0 to 2 points, alongside awards and publications, the draft lists:
social (including educational) activity related to the judiciary and the rule of law.
It does not explain what this concept covers, who would assess such activity and on what grounds, or why it should demonstrate any qualification to adjudicate.
The point is that in recent years the slogan of “the rule of law” has become the banner of one side of Poland’s political dispute. Under this slogan, the marches of the Committee for the Defense of Democracy (KOD) were organized, as was the judges’ “March of a Thousand Robes.” It is therefore difficult to avoid the fear that points for “activity related to the rule of law” will in practice be points for taking part in demonstrations and campaigns of a clearly political nature – siding with only one specific camp in Poland’s political dispute. Would educational activity in associations that defend the judgments of the Constitutional Tribunal and the status of judges appointed since 2018 be rated equally highly? The question seems rhetorical.
The Constitution demands exactly the opposite of judges. Under Article 178(3):
A judge shall not belong to a political party, a trade union or perform public activities incompatible with the principles of independence of the courts and judges.
A criterion rewarding involvement in political disputes not only falls outside the statutory list in Article 35(2) of the Act on the NCJ but actually encourages judges to adopt attitudes that the Constitution itself forbids.
Negative points for appointments involving the NCJ elected since 2018 – contrary to the Tribunal’s rulings and to the way the current Council itself was chosen
The most far-reaching solutions are found in the “negative scoring” section. Alongside – in principle understandable – deductions for culpable delays in proceedings or for a disciplinary reprimand, the draft provides for the following item:
an appointment obtained in a process whose defectiveness in the specific circumstances led to a breach of the standard of independence and impartiality within the meaning of Article 45(1) of the Constitution […], Article 47 of the Charter of Fundamental Rights of the European Union […] (under the conditions described in point 52 of the resolution of […] the Supreme Court of January 23, 2020 […]) – 4 points
The reference to the Supreme Court resolution of January 23, 2020, leaves no doubt as to whom this targets: judges in whose appointment procedures the NCJ as reformed in 2017 took part, that is, judges appointed since 2018. The penalty for taking part in a lawful competition would equal the value of the highest-scoring positive criterion.
Such a criterion cannot serve as the basis for any assessment. First, in its judgment of March 25, 2019 (ref. K 12/18), the Constitutional Tribunal found the provisions under which the Sejm elects the judge-members of the NCJ to be consistent with the Constitution, and in its judgment of April 20, 2020 (ref. U 2/20) it held the resolution of January 23, 2020, itself to be unconstitutional.
Second, the reference to the EU Charter changes nothing. As we reported, in its judgment of September 10, 2026 (ref. P 10/24), the Tribunal ruled that Article 19(1), second subparagraph, of the Treaty on European Union in conjunction with Article 47 of the Charter – insofar as they grant the Court of Justice of the European Union (CJEU) the power to review the procedure by which the President of the Republic of Poland appoints judges – are unconstitutional. The CJEU therefore has no say in who is a Polish judge.
Third, the current NCJ was elected in exactly the same way. As we pointed out, on May 15, 2026, the Sejm elected the judicial part of the Council on the basis of the same provisions of the Act on the NCJ as the compositions of 2018 and 2022. By the draft’s own logic, appointments made with the current Council’s participation would have to be penalized as well. Does the same provision create a defect in one case and not in another, depending on who benefits from it?
Disqualification for a “negative independence test” – a mechanism the Tribunal has just struck down
Finally, the draft provides that a “negative independence test established by a court decision” disqualifies a candidate. The so-called independence test, introduced by an amendment to the Act on the Supreme Court of 2022, allows a court, at a party’s request, to examine whether a judge meets the requirements of independence and impartiality in light of the circumstances of his or her appointment. Making it a ground for disqualification is scandalous for at least two reasons.
First, by its very nature the test concerns the circumstances of a given case. A negative result means at most that, in a particular proceeding and in the view of a particular panel, a given judge should not have adjudicated. It is neither an assessment of the judge’s qualifications nor a disciplinary ruling. Turning such a decision into a permanent obstacle to promotion amounts to imposing a sanction that no statute provides for.
Second, in its judgment of September 22, 2026 (ref. K 21/26), the Constitutional Tribunal unanimously held the provisions on the independence test to be incompatible with, among others, Article 60 of the Constitution. As we reported, the Tribunal found that the test examines not independence but the circumstances of appointment, thereby producing a conceptual inversion: a permissible review mechanism must be based on the judge’s relationship to the circumstances of a specific case, not to those of his or her appointment.
The NCJ is thus proposing that decisions issued under unconstitutional provisions should produce an effect that those provisions did not even provide for – barely two weeks after the judgment that eliminated them. It would be hard to find a more telling example of disregard for the Tribunal’s rulings, about which we have written many times.
A plan to “coordinate” applications in Warsaw raises the specter of a return to the worst pre-2018 practices
The NCJ’s proposal becomes particularly troubling when set against another fact. On September 30, 2026, the Polish news portal Niezalezna.pl revealed that a plan had been drawn up to coordinate applications for vacant posts in the criminal division of the Regional Court in Warsaw. Its author, Judge Paweł Dobosz, a delegate to the board of that court, wrote in a letter to district court judges that, in order to avoid an “unnecessary accumulation of applications,” the order of candidates had been set in advance:
[…] district court judges adjudicating in the criminal divisions of the Regional Court in Warsaw have agreed that, so as not to compete with one another, they will apply for successive published vacancy notices in the following order […]
A list of ten names followed. These are district court judges who already adjudicate in the regional court on secondment – for which the NCJ’s draft awards an additional point.
After publication, the court’s leadership distanced itself from the idea through its spokesperson, assuring that it did not wish to guarantee anyone “right of way”:
It is certainly not the intention of the authorities of the regional court to discourage any judge from applying for vacant positions in the regional court.
These assurances, however, ring hollow: the author of the letter stated that he had presented it to the court’s vice-president for criminal matters, who raised no objections. The sincerity of the declaration is all the more questionable as it was made only after the initiative had been exposed in the media; it is hard to believe that the court was unaware of it beforehand.
Summary
Taken together, these developments show where the filling of judicial posts in Poland may be heading: an informal “agreement” on the order of candidates within a closed circle, and a scoring system that gives the greatest weight to assessments and decisions coming from within the same community – the assembly of judges, the court president, the court board, the inspector and secondments. A candidate from outside that circle – an attorney, legal adviser, prosecutor or academic – has no real chance in such a system, while a candidate from among the “wrong” judges is burdened with negative points or disqualified.
This is a picture well known from before 2018, when the filling of judicial posts was in practice decided by a closed corporate circle, sometimes colloquially called the “cooperative.” A model in which the judiciary co-opts itself is in glaring tension with the principle of the sovereignty of the Nation enshrined in Article 4 of the Polish Constitution – judicial power, like any other, derives from the Nation, not from a judicial corporation. Closing off access to the judiciary and making promotion dependent on one’s standing in the community also undermine public oversight of the administration of justice and citizens’ trust in the state and its laws, thereby violating Articles 2 and 60 of the Constitution.
One can only hope that the NCJ will withdraw these proposals and that the exposure of Judge Dobosz’s plan will discourage judges in other courts from following in his footsteps. It may indeed be worth developing more detailed, yet objective, criteria for candidates for what is, after all, the extremely responsible office of judge – especially in the higher courts. Any such proposal, however, must meet the requirements of the Constitution, both formally and substantively.
Source of illustration: iStock.
