This post contains an excerpt from the report “A year of devastation of the rule of law”, published by the Ordo Iuris Institute on December 13, 2024. The full report can be found at https://en.ordoiuris.pl/civil-liberties/year-of-devastation-of-rule-of-law-in-poland
Main theses:
Government members recognize or do not recognize the rulings of the Constitutional Tribunal and the Supreme Court, as the case may be.
Such practices violate the principles of the rule of law and the division and equality of legislative, executive and judicial powers expressed in the Polish Constitution.
The actions of individual members of the government can be interpreted as an attempt to subordinate the judiciary to political interests.
1. Introduction
The recent cases of selective respect for the judgments of the Supreme Court and the Constitutional Tribunal by representatives of the authorities in Poland pose a serious threat to the foundations of the rule of law. A situation in which state bodies respect only those rulings that are in line with their political interests undermines citizens’ trust in the independence of the courts and the effectiveness of the legal system. In particular, the Minister of Justice, Prosecutor General Adam Bodnar, who in the past respected the verdicts of the Constitutional Tribunal and the Supreme Court, now disregards those which are unfavorable to the political interests of the party he represents. Similarly, Speaker of the Sejm Szymon Hołownia questions the rulings of the Supreme Court’s Chamber of Extraordinary Control and Public Affairs, considering it an unauthorized body[1], while at the same time accepting other resolutions of the same chamber – for example, the resolution which confirmed the validity of the 2023 parliamentary elections, which led to his camp taking power power. It is worth reminding that no-one in the current governing coalition has ever challenged this chamber’s resolution confirming the elections’ validity[2].
2. Hypocrisy in the face of the law – the case of Adam Bodnar
The attitude of government officials toward court rulings raises serious doubts about their commitment to the rule of law. The most glaring example of this attitude is the behavior of the Minister of Justice, Prosecutor General Adam Bodnar. On the one hand, this minister has repeatedly publicly criticized court rulings that he believes were incorrect or unfavorable to his political allies. On the other hand, when he himself was the beneficiary of favorable rulings, he accepted and fully respected them without hesitation.
2.1. Judgment of the Constitutional Tribunal, ref. K 20/20
A particularly telling example of this attitude is the case involving the Constitutional Tribunal’s ruling of April 15, 2021 (ref. K 20/20[3]). At the time, the Tribunal ruled that a provision allowing the Commissioner for Human Rights to serve out his term of office until a successor is elected is unconstitutional, but postponed the expiration date of the provision under review by 3 months (this refers to Article 3(6) of the Act on the Commissioner for Human Rights, which is inconsistent with Article 209(1) in conjunction with Articles 2 and 7 of the Constitution). Adam Bodnar, acting Commissioner for Human Rights at the time, unreservedly accepted the ruling and informed the public. In a communiqué from his office, he thanked all those who supported him, and assured that the institution he headed “will continue to work to protect the rights of citizens[4]“. This shows that Adam Bodnar, as Commissioner for Human Rights, did not challenge the legality of the Constitutional Tribunal’s 2021 verdicts, despite the fact that the verdict was given by judges Julia Przyłębska, Stanisław Piotrowicz, Justyn Piskorski (described by the current government as a “double” – illegitimate – appointee), Bartłomiej Sochański and Wojciech Sych. Meanwhile, already as Minister of Justice-Prosecutor General, he did not hesitate to question the legitimacy of the Constitutional Tribunal’s activities with the following words: “(…) For the time being, every ruling of the Constitutional Tribunal is published in the OJ with a note that the verdicts were issued in violation of the basic principle concerning the election of judges, because the current Constitutional Tribunal is composed of an unauthorized person, so it is a body devoid of constitutional features.[5]“
2.2. Protective orders of the Constitutional Tribunal concerning the dismissal of court presidents
An example of the undermining of Constitutional Tribunal rulings is the refusal of the Minister of Justice to recognize the Constitutional Tribunal’s protective order[6] of February 1, 2024 (ref. Ts 19/24) concerning the dismissal of court presidents[7]. According to the protective order, the Minister of Justice cannot dismiss court presidents and deputy presidents without the approval of the National Council of the Judiciary until the Constitutional Tribunal has issued a judgment on the legislation intended to regulate these issues. In response to the Tribunal’s ruling, Adam Bodnar said: “The Constitutional Tribunal can issue all sorts of rulings, but the question arises about their weight (…),” and when asked if he would recognize the Constitutional Tribunal’s protective orders, which ruled that it could not dismiss court presidents, he replied: “I will not recognize that[8]“.
Minister of Education Barbara Nowacka behaved in a similar manner after the Constitutional Tribunal issued a ruling suspending the application of her decree[9] amending the rules on the organization of religious instruction in schools. A communiqué published on the Ministry of Education’s website said at the time that the CT’s decision “has no legal effect”[10].
2.3. Supreme Court ruling on the inadmissibility of withdrawal of a request to decide a legal question on the determination of sex
The current incumbent Minister of Justice is also challenging some Supreme Court rulings. An example is the “non-recognition” of a ruling of the Supreme Court on the inadmissibility of the withdrawal of a request to decide a legal question on the determination of sex[11]. The case already has a long and convoluted history, dating back to September 2022, when Prosecutor General Zbigniew Ziobro filed a motion (ref. III CZP 143/22[12]) for the Supreme Court to decide the legal question of determining the circle of persons with passive standing to participate in a lawsuit for gender reassignment or gender determination, in particular to determine whether the plaintiff’s undivorced spouse or children must appear on the side of the defendant in such a lawsuit, in addition to the surviving parents. Subsequently, in a decision[13] dated January 19, 2024, a panel of seven judges submitted a request for a resolution on the issue to a panel of the entire Civil Chamber, recognizing that this is supported by, among other things, the growing number of related proceedings in judicial practice. On January 29, 2024, Adam Bodnar, acting in his capacity as Prosecutor General, withdrew his motion to decide the legal question presented, and then – on June 7 – a panel of the entire Civil Chamber of the Supreme Court declared the withdrawal of the motion to be inadmissible (…)”[14].
The Supreme Court’s decision can be interpreted as a firm statement that, once raised, a legal question concerning the constitutionality of a given provision or its interpretation cannot be arbitrarily removed from the agenda by the Prosecutor General. This, in turn, is an important part of the guarantee of the rule of law.
The National Prosecutor’s Office, disagreeing with the Supreme Court’s ruling, issued a communiqué[15], in which it stated that: “the Supreme Court’s failure to consider the Prosecutor General’s withdrawal of the initiating motion should be considered an action without legal basis. The Supreme Court’s continuation of the proceedings and eventual issuance of a decision, will be legally flawed.”[16] Subsequently, the Minister of Justice, Prosecutor General Adam Bodnar, in a letter dated August 9, 2024, requested “the exclusion from the bench of the judges of the Supreme Court appointed at the request of the National Council of the Judiciary formed according to the procedure set forth in the provisions of the Act of December 8, 2017, amending the Act on the National Council of the Judiciary and Certain Other Acts (OJ 2018, item 3)”[17]. The application was proceeded by referring it to the Supreme Court’s Chamber of Extraordinary Control and Public Affairs. However, despite the lack of recognition of this request, Prosecutor General Adam Bodnar stated that he “fully maintains his position as to the lack of factual and legal grounds for the Supreme Court to issue a ruling in this case[18]“.
2.4. Validation of the elections to the European Parliament (I NSW 44/24)
Prosecutor General Adam Bodnar’s attitude toward the rulings, from the beginning of his political camp’s assumption of power, raised doubts about his commitment to the rule of law. Recent events related to his boycott of a session of the Supreme Court’s Chamber of Extraordinary Control and Public Affairs and his refusal to take a position on the validity of the 2024 elections to the European Parliament[19] reveal even deeper problems arising in the current Prosecutor General-Minister of Justice’s relations with the CT and the Supreme Court. In a resolution dated September 3, 2024, adopted by the Chamber of Extraordinary Control and Public Affairs in plenary session, the Supreme Court declared the elections to the European Parliament to be valid[20]. Adam Bodnar, citing the judgments of European courts[21], [22], questioning the independence of the Supreme Court’s Chamber of Extraordinary Control and Public Affairs, refused to attend the meeting and present the position of the Prosecutor General. It should be mentioned that in the past, as Commissioner for Human Rights, Bodnar accepted the rulings of this chamber of the Supreme Court without hesitation. This includes, for example, the aforementioned resolution declaring the validity of the parliamentary elections after which the former left-liberal opposition took power after eight years of conservative rule. On January 11, 2024, the Supreme Court, acting in a plenary and open session of the Chamber of Extraordinary Control and Public Affairs, issued a resolution declaring the validity of the elections to the Sejm of the Republic of Poland and the Senate of the Republic of Poland held on October 15, 2023.[23] None of those currently in power challenged the resolution, despite the fact that, according to some, it was issued by a “non-court[24]“.
3. Summary
Representatives of the current government not only question the rulings of the Constitutional Tribunal, the Supreme Court or take actions contrary to them, but in fact recognize them or not depending on the situation. The consequences of such behavior are extremely serious. When constitutional ministers publicly declare that they will not respect the rulings of the Constitutional Tribunal or certain benches of the Supreme Court, they not only undermine the authority of these bodies, but question the principles of the rule of law and the division and equality of legislative, executive and judicial powers expressed in the Polish Constitution.
Failure to recognize the verdicts of constitutional judicial authorities is not only a legal problem, but also a political one. The cited actions of government representatives can be interpreted as an attempt to subordinate the judiciary to political interests. This is a clear signal that there are influential people in Polish political spheres who clearly want to limit the independence of the courts and subordinate them to their own interests.
Julia Książek, Marek Puzio
[1] Szymon Hołownia on the Supreme Court’s decision in the Wąsik case: I am waiting for a response from another chamber, https://www.rp.pl/polityka/art39656951-szymon-holownia-o-postanowieniu-sn-ws-wasika-nie-wiem-na-jakiej-podstawie-je-wydano, accessed: 5/12/2024
[2] Hołownia: I recognize the Supreme Court’s ruling on the validity of the elections, https://www.gazetaprawna.pl/wiadomosci/artykuly/1487588,holownia-ruch-
trzaskowskiego-waznosc-wyborow.html, accessed: 5/12/2024
[3] Judgment of the Constitutional Tribunal of April 15, 2021 ref. K 20/20, https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20210000696/O/D20210696.pdf, accessed: 12/11/2024
[4] Communiqué issued by the Office of the Commissioner for Human Rights, 15/04/2021, https://bip.brpo.gov.pl/pl/content/rozprawa-przed-tk-mandat-rpo-odroczenie-13-kwietnia, accessed: 12/11/2024
[5] Adam Bodnar on changes to the Constitutional Tribunal: I think the resolution is insufficient, https://www.pap.pl/aktualnosci/adam-bodnar-o-zmianach-w-trybunale-konstytucyjnym-uwazam-ze-uchwala-jest, accessed: 02/12/2024
[6] CT: Removal of court president without participation of the NCJ – unconstitutional, https://www.prawo.pl/prawnicy-sady/odwolywanie-prezesow-sadow-wyrok-trybunalu-konstytucyjnego,527560.html, 2/12/2024.
[7] Bodnar on the CT’s protective order on court presidents: I will not recognize that, https://www.wnp.pl/parlamentarny/wydarzenia/bodnar-o-zabezpieczeniu-tk-ws-prezesow-sadow-nie-bede-tego-uznawal,831320.html, 2/12/2024.
[8] Ibid.
[9] See the CT decision of August 29 (ref. U 10/24)
[10] Position of the Minister of Education on the CT’s protective order, 30/08/2024, https://www.gov.pl/web/edukacja/stanowisko-ministra-edukacji-ws-zabezpieczenia-tk, accessed: 05/12/2024
[11] Communication from the National Prosecutor’s Office on gender recognition proceedings dated October 29, 2024, https://www.gov.pl/web/prokuratura-krajowa/komunikat-ws-postepowania-dot-uzgodnienia-plci2, accessed: 12/11/2024
[12] Legal Issues, III CZP 143/22, https://www.sn.pl/sprawy/SitePages/Zagadnienia_prawne_SN.aspx?ItemSID=1760-301f4741-66aa-4980-b9fa-
873e90506a11&ListName=Zagadnienia_prawne&Rok=2022.
[13] III CZP 143/22, Decision of a panel of seven Supreme Court judges, January 19, 2024, https://www.sn.pl/sites/Serwis_WWW/SiteAssets/Lists/Zagadnienia_prawne/AllItems/iii czp 143-22.pdf.
[14] III CZP 6/24 SN, It is inadmissible to withdraw a motion to decide a legal issue, June 7, 2024 accessed: 6/11/2024, https://www.sn.pl/aktualnosci/SitePages/Komunikaty_o_sprawach.aspx?ItemSID=650-b6b3e804-2752-4c7d-bcb4-7586782a1315&ListName=Komunikaty_o_sprawach.
[15] Communiqué on gender recognition proceedings, dated October 29, 2024, https://www.gov.pl/web/prokuratura-krajowa/komunikat-ws-postepowania-
dot-uzgodnienia-plci2.
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Supreme Court has recognized the validity of the elections to the European Parliament. Bodnar boycotts meeting of Chamber of Extraordinary Control and Public Affairs and challenges its legality. Żaryn: Political nihilism, https://wpolityce.pl/polityka/704713-sn-uznal-waznosc-wyborow-do-pe-bodnar-bojkotuje-posiedzenie, 2/12/2024
[20] I NSW 44/24, Resolution of plenary session of the Chamber of Extraordinary Control and Public Affairs of September 3, 2024, https://www.sn.pl/sites/orzecznictwo/orzeczenia3/i nsw 44-24.pdf.
[21] Judgment (Grand Chamber) of the Court of Justice of the European Union of December 21, 2023, https://curia.europa.eu/juris/document/document.jsf?text=&docid=280769&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8220663.
[22] Judgment of the European Court of Human Rights of November 23, 2023, (Application No. 50849/21), Case of Wałęsa v. Poland, https://hudoc.echr.coe.int/eng?i=001-229366
[23] I NSW 1237/23, Resolution of plenary session of the Chamber of Extraordinary Control and Public Affairs of January 11, 2024, https://www.sn.pl/sites/orzecznictwo/orzeczenia3/i nsw 1237-23.pdf.
[24] An unrecognized chamber of the Supreme Court has declared the recent parliamentary elections valid, https://tvn24.pl/polska/wybory-2023-nieuznawana-izba-kontroli-nadzwyczajnej-sadu-najwyzszegouznala-waznosc-wyborow-st7717551, accessed: 02/12/2024
