- The Polish Ministry of Justice has presented a draft bill that replicates the unconstitutional provisions unveiled six months ago, namely a mechanism for removing judges from office by operation of law.
- The draft also provides for other questionable measures, such as limiting the President’s constitutional prerogative to appoint judges.
- The essence of the provisions contained in the draft has just been described by the President of the Republic of Poland, Karol Nawrocki, as: the terror of lawlessness introduced under the slogan of restoring the rule of law.
On October 9, the Polish Ministry of Justice published a draft bill “to restore the right to an independent and impartial court established by law by addressing the effects of resolutions adopted by Poland’s National Council of the Judiciary (KRS) between 2018 and 2025.” At the outset, it should be noted that, as regards the fundamental substance of the measures, the draft replicates the unconstitutional proposals contained in an analogous draft announced almost half a year ago – in April – by Minister Bodnar and Deputy Minister Mazur.
Violation of the constitutional principle of judicial irremovability
The new project once again relies on dividing judges appointed since 2018 into three groups. The first of these—Individuals straight out of the National School of Judiciary and Public Prosecution (KSSiP), former court referendaries and judicial assistants—i are to keep their positions in the judiciary, even though the Ministry believes that the procedure for their appointment was also flawed. Members of the second group—judges who entered the profession before 2018 but were later promoted—is to are stripped of the positions they currently hold by operation of law — Minister Żurek’s draft law provides that the competitions on the basis of which they were appointed are to be repeated. Before that happens, however, the planned law graciously allows them to continue adjudicating in the courts where they currently serve, but on a delegated basis — from which, moreover, the National Council of the Judiciary (KRS) may recall them at any time based on very vague criteria:
If considerations relating to the perception of the court as an impartial or independent body so require (Article 27 of the draft).
Yet even this, already questionable, entitlement will not be available to the third group—individuals who entered the judiciary from other legal professions. They will have a choice—either they can become court referendaries, or they can return to their previous profession.
The solution concerning both the second and third groups is obviously unconstitutional. Pursuant to Article 180 of the Constitution of Poland:
1. Judges are irremovable.
2. Removal of a judge from office, suspension from office, transfer to another seat or to another position against their will may occur only by virtue of a court judgment and only in cases specified by statute.
The Ministry is trying to circumvent this requirement, claiming in the justification that:
The current [Judicial] Council’s loss of constitutional identity means that the President of the Republic of Poland’s nominations of persons whose appointment to judicial office the Council has petitioned for are not grounded in the constitutional basis specified in Article 179 of the Constitution of the Republic of Poland, but are made solely on the basis of statutory provisions. The unconstitutional nature of such appointments means that judges who received them do not enjoy the guarantees afforded to judges appointed under the Constitution of the Republic of Poland, as referred to in Article 180 of the Constitution of the Republic of Poland […].
However, this is a completely baseless claim. Compliance with the Polish Constitution of the current provisions concerning the appointment of members of the National Council of the Judiciary was unequivocally confirmed by Poland’s Constitutional Tribunal in its judgment of March 25, 2019 (K 12/18), as we have repeatedly pointed out on this website.
The case law of the Court of Justice of the European Union also cannot be the basis for the claim of the unconstitutionality of judicial appointments made since 2018. These tribunals are, quite obviously, not authorized at all to interpret the Polish Constitution, and in particular are not authorized to adjudicate on the structure of the Polish judicial system. What may be particularly worth emphasizing, however, is that even the case law of these tribunals states that the mere fact of appointment under a procedure initiated by an application from the National Council of the Judiciary (KRS), operating under the rules in force since 2018, is not sufficient grounds to challenge a judge’s status.
In other words, it should be stated that Minister Żurek’s claims are simply baseless, and therefore their unconstitutionality is indisputable. This view is shared, for example, by Bartosz Pilitowski, President of the Court Watch Poland Foundation, who in a media interview points to the unprecedented nature of the proposed solutions:
Under this proposal, the legislature would decide which judicial appointments are invalid, which judges may remain in their posts, and which must step down or reapply for them. Such a situation has never occurred in Poland’s history. […] Even in 1989, no decision was made to take such a step, although there were real grounds for it at the time. Judges appointed by the Sejm of the People’s Republic of Poland, at the request of the Council of State, swore upon assuming office to strengthen an order grounded in the political principles of the state system of the People’s Republic of Poland, ie. the communist regime. Many of them took it so seriously that they broke laws that were in force even during the People’s Republic of Poland. The legality of those 3,000 judges appointed under the Polish People’s Republic was not questioned, not only shortly after the democratic transition of 1989–1990, when they seemed indispensable. No serious consideration was given to their removal or to their reappointment, even after Poland’s ratification in 1994 of the European Convention on Human Rights and the adoption of the Constitution in 1997, which guarantees judicial standards that are allegedly threatened by judges appointed by the President of the Republic of Poland, elected in democratic elections, upon a motion of the National Council of the Judiciary composed of 25 members, as provided for by the Constitution, including 17 judges appointed to judicial office already in a free Poland.
Moreover, this solution is also inconsistent with the Venice Commission’s opinion on European standards governing the status of judges dated October 14, 2024, issued during work on the previous version of the draft (which, as noted at the outset, does not differ substantially from the current version, especially with regard to the idea of removing judges from office by statute). In this opinion, the Commission took the view that the assessment of judges’ performance must always be individual and their collective removal is not possible. The Venice Commission emphasized also that in light of the Polish Constitution it is not possible to remove a judge by statute alone, without a court judgment.
In this light, it is not surprising that Minister Żurek, in fact immediately after taking office, decided to withdraw the current draft from review by the Venice Commission.
During his press conference, the Justice Minister to some extent tried to explain why he did not opt for the solution (itself also constitutionally dubious) proposed by the Venice Commission—namely, the individual verification of each judge—but he did so in a manner that raises the question of whether this may even have amounted to the commission of a crime by him.
Indeed, the Polish Minister of Justice stated that if the President does not sign the bill, the judges may face a professional and personal hell and a witch hunt.
In the opinion of representatives of the Independent Association of Prosecutors “Ad vocem” the Minister’s statements fulfill the statutory elements of the offense under Article 224 § 1 of the Criminal Code:
Whoever, by violence or unlawful threat, exerts influence on official acts of a government administration authority, another state authority, or a local government, is subject to imprisonment for up to 3 years.
So this would be the second time in the last month that the Polish Minister of Justice has attempted, by an unlawful threat, to force changes in the judiciary.
Other changes: violation of the President’s prerogative, a legal gap regarding the National Council of the Judiciary (KRS), and the abolition of the extraordinary complaint
In addition to the idea of removing a large group of judges from office by statute, the draft also includes other constitutionally questionable measures. Specifically, Articles 41, 42, 43, and 45(9) envisage provisions to be added to the statutes regulating the system of the common, military, and administrative courts, and the Supreme Court, which in practice would oblige the President to appoint judges within a specified time limit from the moment the KRS submits to him a motion to appoint the judge concerned.
Such a solution violates Article 179 of the Constitution:
Judges are appointed by the President of the Republic of Poland, on the motion of the National Council of the Judiciary, for an indefinite term.
Under this article, the appointment of judges is regarded as the President’s prerogative, which he may exercise with a high degree of discretion. An attempt to introduce precisely analogous provisions was unequivocally held unconstitutional by the Constitutional Tribunal in its judgment of June 5, 2012, K 18/09. The Tribunal then held that:
In light of the prevailing views among legal scholars, there is no doubt that, although the President’s discretion is limited to taking a position on the candidate proposed by the KRS, the designation of the power to appoint judges as a prerogative underscores that the President has no legal obligation to grant the KRS’s request, while a refusal should occur only in extraordinary circumstances and would have to be preceded by the submission of objections to the KRS by the President’s representative serving on it […]. As regards constitutional practice, until 2007 there had been no instance of the President refusing to grant an application from the National Council of the Judiciary (KRS). This practice changed when the President, by decision of January 3, 2008 (M. P. No. 4, item 38), refused to appoint to judicial office nine persons indicated in the KRS’s motion. […] the President’s role in the nomination process is not limited to that of a “notary,” confirming decisions made elsewhere […], but he makes an independent assessment of the candidates presented to him and, as a consequence, may refuse to grant the KRS’s motion. He should be granted the right to refuse to comply with requests put forward, if in his view they would run counter to the values he has been appointed by the Constitution to safeguard […].
It was then clearly summarized:
In the Tribunal’s view, the time limit for exercising a given competence, in this case the competence to appoint judges, is an essential element of that competence. Its establishment in statutory provisions is not merely a permissible clarification of the constitutional norm, but rather its modification, encroaching upon the essence of the presidential prerogative.
Notwithstanding the foregoing, it should also be stated that the attempt to introduce these measures, which limit the President’s freedom of action in the exercise of the powers vested in him, should be assessed unequivocally negatively from the point of view of the principle of the separation and balance of powers, as referred to in Article 10 of the Constitution. The President’s strong position in the process of appointing judges constitutes a model example of a checks and balances mechanism, which balances the positions of the judicial and legislative branches (which together hold a decisive majority in the National Council of the Judiciary) in this process.
The proposal also introduces a specific legal loophole. Namely, in several places, including in particular in Articles 29–32, which establish a procedure for rerunning competitions for judicial positions currently held by judges from the second group, the Act provides that the National Council of the Judiciary shall be excluded from acts in the proceedings when acting in the composition formed under Article 9a of the Act of 12 May 2011 on the National Council of the Judiciary.
Meanwhile, this article is the only article that currently allows for the election of 15 members of the KRS from among judges of the Supreme Court, the common courts, the administrative courts, and the military courts, as referred to in Article 187(1)(2) of the Constitution. Although on July 12 the Sejm passed a law establishing a new method of electing judge-members of the National Council of the Judiciary (KRS), largely similar to the one in force before 2018, this law was referred to the Constitutional Tribunal by the President of the Republic of Poland for preventive review. Given the serious doubts as to the constitutionality of this law, everything indicates that the Tribunal will order the President to refuse to sign it. It seems that even the current government has accepted this conclusion, declaring through former Justice Minister Adam Bodnar, that it is ready to elect in 2026, once the term of the current judicial component of the KRS ends, new judicial members of the KRS, pursuant to Article 9a of the KRS Act.
In other words, if the “rule-of-law” bill introduced last week were to go into effect, the powers of the KRS set out therein would have to be exercised omitting its judicial component, and thus in a composition consisting of the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court, a person appointed by the President of the Republic of Poland, as well as four members elected by the Sejm from among deputies and two members elected by the Senate from among senators—that is, in a composition consisting almost entirely of representatives of the executive or legislative branch.
It’s hard to say whether that was the proponents’ intention; nevertheless, it follows from the provisions they proposed.
Finally, it should also be noted that the draft provides for the complete abolition of the extraordinary complaint. Meanwhile, this institution, as an additional means of asserting constitutional rights and freedoms, which helps eliminate the most egregious instances of judicial lawlessness, plays a very socially beneficial role, and as such it has been not only positively assessed, but also widely used in practice by the Commissioner for Human Rights.
Summary
After lengthy announcements, the government presented a supposedly new proposal that not only fails to remove the most important flaws of the earlier proposal, which was presented six months ago, but also adds even more to them. Underlying it is the unconstitutional idea of segregating judges, in order to subsequently remove them from office by operation of law, which has just been described by the President of the Republic of Poland in the following words:
Therefore, a kind of segregation of judges into different categories, including denying many of them any judicial status at all, brings to mind the worst associations and, as a result, such actions can be described as the terror of lawlessness introduced under the banner of restoring the rule of law. Terror that in reality leads to destruction and, in essence, to boundless injustice.
Justice Minister Żurek’s conduct is all the more reprehensible, considering that in the regulation he recently issued, notable mainly because it abolishes the principle of random assignment of cases to judges, he also slipped in a provision under which judges who are members of the codification commissions are to have their caseload reduced by from 85% to even 95%, while retaining full pay.
And it was precisely the representatives of such a commission who prepared this draft. Setting everything else aside, looking at the results of their work, we must conclude that we are dealing with a very wasteful use of public funds.
Illustration source: IStock.
