- In late September, the Polish Minister of Justice Waldemar Żurek sent letters to the Supreme Court and the Supreme Administrative Court, in which he called on judges appointed since 2018 to cease adjudicating, threatening that otherwise they would face financial and even criminal consequences.
- The conduct of Minister Żurek is not only devoid of any factual or legal basis, but moreover constitutes an almost textbook example of an unlawful threat within the meaning of the provisions of the Criminal Code.
- This action prompted a broad response from the relevant authorities: the College of the Supreme Administrative Court (NSA) and the Presidium of the National Council of the Judiciary (KRS) adopted relevant resolutions, the President of the Republic of Poland addressed it in a letter, while the First President of the Supreme Court (SN) filed a notification of a possible criminal offense.
Pressure from Minister Żurek on the judges of the Supreme Court and the Supreme Administrative Court
The distinctive attitude of the current Polish Minister of Justice, Waldemar Żurek, toward the principles of the independence of the courts and judicial independence is certainly well known to the regular readers of our Rule of Law Observer. It stems in part from the conflict over the reform of the Polish judiciary, undertaken by the previous United Right coalition government led by Law and Justice (PS). In this conflict, the EU institutions, overstepping their authority, clearly sided with the then left-liberal opposition, which today governs under the leadership of former European Council President Donald Tusk.
At the end of last month, however, the current ruling coalition crossed yet another line. Poland’s Minister of Justice sent letters to the Supreme Court (SN) and to the Supreme Administrative Court (NSA), in which he called on judges who have sat on both courts of last resort since 2018 to cease violating the law, that is, in practice, to resign from the positions they hold. If they failed to heed this appeal, Minister Żurek threatened them with the possibility of being held civilly or even criminally liable.
The Minister’s actions are bound to raise objections on many grounds. First, the concept of financial liability for judges appointed since 2018 presented therein rests on very weak foundations, as almost half a year ago experts reported.
Above all, however, the Minister’s action may be deemed an attempt to circumvent Article 180 of the Constitution of Poland, pursuant to which:
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.
Among others, the Venice Commission pointed to the impossibility of removing a judge from office through the actions of the executive branch or even the legislative branch, which, incidentally, probably became the main reason for the withdrawal by Minister Żurek, immediately upon taking office, of the request for the Commission’s opinion on the draft concerning ‘restoring the rule of law’ in the judiciary, providing for the removal of judges by operation of law.
Also, the exertion of pressure, threat of legal consequences – which both had the purpose of coercing judges into a formally voluntary resignation -should be considered a violation of the principle of judicial irremovability. A violation in this case particularly egregious, because it involves not the adoption of a legal act by the legislative branch, but actions, essentially informal, of the executive branch, which should be especially mindful that it may act only on the basis of and within the limits of the law (Article 7 of the Constitution).
Moreover – such conduct plainly satisfies the elements of the offense defined in Article 128 § 3 of the Criminal Code:
3. Whoever by violence or unlawful threat influences the official acts of a constitutional authority of the Republic of Poland is subject to imprisonment for a term of one to ten years.
Pursuant to Article 115 § 12. Under the Code, an unlawful threat is also
threat of instituting criminal proceedings or other proceedings in which an administrative fine may be imposed […]
– and it is precisely such a threat that the Minister directed at the judges of the Supreme Court (SN) and the Supreme Administrative Court (NSA).
Widespread reaction to the Minister’s actions
It should therefore come as no surprise that the Minister’s action prompted reactions from a broad spectrum of the legal community. The first to speak out, as early as September 26, were representatives of the “Lawyers for Poland” Association, the nationwide association of judges “Sędziowie RP,” the Independent Association of Prosecutors “Ad Vocem,” the Ordo Iuris Institute for Legal Culture Foundation, and the “Warsaw Seminar on the Axiology of Administration” Foundation, who jointly appealed to President Karol Nawrocki to defend the independence of the courts in response to the actions of Minister Żurek.
It was indicated in this position that:
This demand [for the cessation of adjudication by judges of the Supreme Court (SN) and the Supreme Administrative Court (NSA) appointed since 2018] constitutes reasonable suspicion of the commission of a crime, because the person currently holding the office of the Prosecutor General is attempting to use an unlawful threat to cause the Supreme Court to cease its activities. […] Without any legal basis for doing so the Prosecutor General is attempting to prohibit judges from adjudicating, moreover threatening them with sanctions for performing their duties in accordance with the law.
At the end of their statement, the signatories called on the President, pursuant to Article 144(3)(13), to submit to the Sejm a motion to bring Minister Żurek before the State Tribunal.
Resolution of the College of the Supreme Administrative Court
Next to react was the College of the Supreme Administrative Court, issuing a resolution in this matter on September 29.
In that resolution it was emphasized, first, that in light of the case law of the Court of Justice of the European Union, the mere fact that the President of the Republic of Poland appointed a judge upon a motion of the National Council of the Judiciary operating under the rules in force since 2018 cannot be regarded as the sole and exclusive basis for finding that the judge’s participation in the adjudicating panel violates a party’s right to an independent and impartial tribunal established by law within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union. Moreover, it was emphasized that:
The European Court of Human Rights also has never found a violation of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR) in connection with the participation in adjudication by judges of the Supreme Administrative Court appointed after 2018
While the Supreme Administrative Court agreed on the necessity of enforcing the judgments of European tribunals, it stipulated that this must be done in a manner consistent with the Constitution of the Republic of Poland. Finally, the Supreme Administrative Court underscored how catastrophic the consequences would be of complying with the Minister’s demand having regard to the citizen’s right of access to a court, enshrined in Article 45 of the Constitution:
The cessation of adjudication by thirty-eight judges of the Supreme Administrative Court as a result of letters from the Prosecutor General would lead to serious disruptions to the operations of the Supreme Administrative Court, which would result in a violation of the citizen’s right, guaranteed under Article 45(1) of the Constitution of the Republic of Poland, Article 6(1) of the ECHR, and Article 47 of the Charter of Fundamental Rights of the European Union, to have a case heard by a court without undue delay.
Letter from the President of the Republic of Poland, Karol Nawrocki
The President of the Republic of Poland, Karol Nawrocki, also referred to Minister Żurek’s actions in his October 2 letter, addressed to the organizers and participants of the conference “75 Years of the European Convention on Human Rights – Experiences of Administrative Court Judges”.
The President emphasized that:
Challenging the status of judges appointed by the President of the Republic of Poland under this [in effect since 2018] procedure is a brutal attack on the fundamental constitutional principle of irremovability, and, consequently, a deliberate undermining of the independence of judges and the independence of courts, which guarantee respect for human rights and safeguard fundamental freedoms. This is also an attempt to challenge the sovereign role of the People, which entrusts each successive President with the exclusive prerogative of appointing judges.
The President also referred to the proposal to divide judges into three groups, previously presented by Minister Bodnar, for the purpose of collectively removing them from office, contrary to the requirements of the Constitution:
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.
The President also referred directly to the above-mentioned resolution of the College of the Supreme Administrative Court.
The constitutional foundations of the status of judges were confirmed — for which I am grateful — in the recent resolution of the College of the Supreme Administrative Court, issued in response to the unlawful summons by the Prosecutor General, who unlawfully sought to bring about the cessation of adjudication by as many as 38 judges appointed in accordance with the Constitution of the Republic of Poland and the statutes. In this resolution, the Supreme Administrative Court clearly held that the manner of appointment cannot be the basis for automatically questioning a judge’s impartiality and independence, and that the proper ground for disqualification from adjudicating remains an individual assessment of the judge in the specific case. The resolution of the College of the Supreme Administrative Court (NSA) is a very important affirmation of the constitutional principle of the incontestability of the status of judges appointed by the President.
On that occasion, the President also pointed out the problem of European courts (the Court of Justice of the European Union and the European Court of Human Rights), which had been issuing rulings in violation of the limits of the powers granted to them by Poland in the relevant treaties:
While respecting international courts and international tribunals, we must remember that this respect should be mutual. Its true manifestation is respect for the competence of each body and not going beyond the treaty framework or that defined by conventions. This means that the system of the judiciary in our country, in Poland – in accordance with the Constitution of the Republic of Poland – falls within the exclusive competence of the authorities of the Republic of Poland.
He also emphasized the double standards that these European tribunals apply to Poland as opposed to other countries:
It is worth noting that the participation of various branches of government in the process of appointing judges is nothing unusual in Europe. In Germany, the judges of the Federal Constitutional Court are elected by the Bundestag and the Bundesrat by a qualified majority. In France, the Constitutional Council consists of members appointed by the President of the Republic and the presidents of both houses of parliament. In Spain, parliament elects some of the members of the country’s Council of the Judiciary, and in Italy judges of the Constitutional Court are appointed both by the President, parliament and by the judiciary.
At the end of his speech, the President announced that in the coming days he would establish the Council for the Reform of the State System, whose aim is to genuinely restore the rule of law.
Notification by the First President of the Supreme Court of suspected commission of a crime by the Minister
The First President of the Supreme Court, Professor Małgorzata Manowska, also responded to Minister of Justice Waldemar Żurek’s actions by filing a notification of suspected criminal offense by Minister of Justice Donald Tusk in the form of exerting, through an unlawful threat, influence on the official acts of the Supreme Court.
In this notice, the Minister’s conduct was deemed to satisfy the elements of the offense defined in Article 232 of the Constitution:
Whoever by violence or by unlawful threat exerts influence on the official acts of a court is subject to imprisonment for a term of between 3 months and 5 years.
It also emphasized that:
The judges of the Supreme Court, to whom the analyzed letter was addressed, do not commit any criminal offense in connection with the performance of their adjudicative duties. First, it is impossible to impute to them the offense under Article 231 § 2 of the Penal Code. (exceeding one’s authority). This provision applies to a public official who abuses the authority vested in them, thereby causing substantial damage. Meanwhile, a judge, sitting as a member of the court, acts within the scope of authority deriving directly from the Constitution of the Republic of Poland and statutes. Even if someone challenges the procedure of his appointment, the fact that the instrument of appointment was signed by the President of the Republic of Poland conclusively establishes that the person has assumed the office of judge within the meaning of the law. Since he administers justice within a state court, there is no question of exceeding his authority—he is performing his constitutional duties. Secondly, reliance on Article 227 of the Penal Code is also unfounded. (usurpation of a public function). This provision criminalizes impersonating a person performing a public function—that is, conduct that consists of creating the impression that one is exercising the powers of a public authority, when in fact one does not possess them. In the case of judges of the Supreme Court, the situation is fundamentally different – their appointment was made in the procedure prescribed by the Constitution and statutes, and the office was entrusted to them by the authority empowered to do so, namely the President of the Republic of Poland. When adjudicating, they do not “usurp” a public function, but exercise it in accordance with the mandate conferred on them. […] Adjudication—even if someone believes that the judicial panel was appointed improperly— does not constitute a prohibited act, but rather the exercise of the constitutional function of the administration of justice.
With regard to threats of financial liability against judges, the First President noted, however, that:
The law permits disciplinary or criminal liability of judges for specific, exceptional acts committed in the performance of their office, but does not provide a mechanism for holding them personally financially liable for the decisions themselves, even if those decisions are later challenged or criticized.
Finally, the actions of the Minister of Justice were summarized as follows:
Sending letters containing threats to the Judges of the Supreme Court, in connection with their participation in adjudicative functions, cannot be perceived otherwise than as an attempt to exert pressure on the judiciary, intended to achieve specific objectives. Actions of this kind undermine constitutionally guaranteed judicial independence, as well as the principles of the independence of the courts and the separation of powers, which constitute the foundation of a democratic state governed by the rule of law.
Position of the Presidium of the National Council of the Judiciary
Minister Żurek’s actions also became the subject of the Statement of the Presidium of the National Council of the Judiciary dated October 1, 2025.
The position stated that Minister Żurek’s request essentially constitutes a summons:
to a breach of the wording of the judicial oath, i.e., a refusal to administer justice, which may in the future result in disciplinary and criminal liability.
It was further found that the Minister’s actions:
In fact do constitute an unlawful attack on the state’s constitutional organs, unprecedented in the history of the Republic of Poland: Attacks on the Supreme Court, the Supreme Administrative Court and the National Council of the Judiciary, as well as on the independence of the courts and of judges, […] aim to destabilize the entire justice system and undermine the foundations of the security of the Polish State.
In the summary of its position, the Presidium of the National Council of the Judiciary called on the Minister to cease such actions, and the judges:
not to succumb to pressure from politicians, maintain courage, steadfastness, and impartiality in their service, and remain faithful to the wording of the judicial oath they have taken.
Summary
It is gratifying to see such a broad response from the legal community and the relevant authorities to the illegal actions of the Minister of Justice, including in particular the decisive reaction of the President of the Republic of Poland. All the more reason to hope that this violation, like the others being documented on this website on an ongoing basis, will be duly addressed in due course.
Image source: iStock.
