On 4 June 2025, Minister of Justice Adam Bodnar gave an interview to businessinsider.com.pl, in which he referred generally to the mood prevailing in the current government after the defeat of his protégé Rafał Trzaskowski in the recent presidential election. The minister stated that he definitely does not feel guilty for this defeat, and instead expressed far-reaching satisfaction with his actions to date, such as dismissing court presidents in violation of procedure (which was found by the Constitutional Tribunal to be contrary to the Constitution in case K 2/24), or attempting to arrest MP Marcin Romanowski in violation of his immunity.
However, the most interesting part of the Minister’s statement was when he presented a kind of ‘contingency plan’ for the election of judges’ representatives to the National Council of the Judiciary in the event that the President did not sign the re-submitted bill reforming the KRS (the first such bill was adopted by the Sejm on 12 April 2024, but due to serious doubts as to its constitutionality, President Andrzej Duda referred it to the Constitutional Tribunal for preventive review). Minister Bodnar suggested that when the term of office of the current judges who are members of the National Council of the Judiciary expires in May 2026, the Sejm will be able to elect new members to replace them on the basis of the current provisions.
This declaration should be met with surprise and outrage for several reasons. Firstly, Minister Bodnar recently insisted that the current method of selecting judges who are members of the KRS (by the Sejm) is unconstitutional. It was for this reason in particular that the Minister initiated disciplinary proceedings against all current judges who are members of the KRS solely because of their membership! Also quite recently, the Minister presented a draft (contrary to the constitutional guarantee of the irremovability of judges) providing for the removal of almost all judges appointed to their current positions on the basis of applications submitted to the KRS operating under the current rules from their positions.
What is more, as Judge Konrad Wytrykowski has established, in connection with the government’s request to the Venice Commission for an opinion on the above draft, the Minister probably misled the Commission by stating in the documentation accompanying the request for an opinion that Article 187(1) of the Constitution requires judges to elect the members of the National Council of the Judiciary from among themselves.
It should be noted here that this article does not provide for such a rule, but merely states that:
The National Council of the Judiciary shall consist of:
1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and a person appointed by the President of the Republic of Poland,
2) fifteen members elected from among judges of the Supreme Court, courts of general jurisdiction, administrative courts and military courts,
3) four members elected by the Sejm from among its members and two members elected by the Senate from among its members.
– without specifying how members of the KRS who are judges should be elected. The search for such provisions in this article of the Constitution was explicitly rejected by the Constitutional Tribunal in its judgment of 25 March 2019 (ref. no. K 12/18), in which it stated that:
The statement that Article 187(1)(2) “clearly specifies that members of the KRS may be judges elected by judges” has no basis in the content of the provision cited. A different interpretation goes beyond both the literal wording of the provision and the belief in the rationality of the legislator. Since the constitutional legislator specifies in Article 187(1)(1) and (3) of the Constitution exactly who has the active right to elect members of the National Council of the Judiciary, the fact that it does not do so in relation to representatives of the courts allows us to conclude that it did not regulate this issue deliberately and left it to the legislator.
What is more, the Advocate General of the Court of Justice of the European Union, in one of his opinions prepared for the Court of Justice of the European Union (in a case concerning a judgment delivered with the participation of a judge appointed on the basis of a proposal by the current National Council of the Judiciary), stated that European Union law does not prohibit the Sejm from electing members of the KRS who are judges, nor does it require a return to the model of their election by judges themselves, which was in force until 2018.
It should therefore be emphasised that there is no supra-legal norm, whether constitutional or international, which would delegitimise the current National Council of the Judiciary.
Minister Bodnar’s statement is also outrageous for another reason. Namely, he announced that until a new composition of the KRS is elected, he will not announce new competitions for judicial positions. Meanwhile, it is estimated that there is currently a shortage of over 1,500 judges in the judiciary, which certainly does not contribute to the efficiency of proceedings. In other words, a government representative has announced that until the government gains political control over the composition of the KRS, it will continue its current policy, regardless of its consequences for ordinary citizens who have to deal with lengthy court proceedings.
The Minister’s assurances that the announced selection of judges to the KRS by the Sejm in May 2026 will be ‘as consistent as possible’ with the spirit of the Constitution are definitely not convincing, because:
the judges themselves should select their candidates for KRS members through a clear and transparent procedure, and the role of the Sejm should be limited to approving these candidates. Without any interference.
However, an obvious question arises: how will such an informal procedure (not based on generally applicable law) actually be ‘clear and transparent’? Will the government be willing to ensure the equal participation of all judges, including those appointed since 2018, or will it rather lead to further privileging of that part of the judicial community which makes no secret of its sympathies for the Minister’s political line (including openly supporting actions contrary to the letter of the law)?
It should be recalled here that it was precisely this type of informal and semi-formal links between the judicial and political circles that were one of the main reasons for the reform of the National Council of the Judiciary in 2018. Even if a statutory return to the previous solutions would entail the risk of the emergence of oligarchic mechanisms, as warned by the current KRS in its resolution of October last year (concerning the initiation of proceedings before the Constitutional Tribunal for preventive review of the act adopted by the Sejm on 12 April 2024), such a risk would be even greater if the same solution were introduced as part of an informal, extra-statutory procedure.
In view of the above, it must be concluded that Minister Bodnar’s position is indefensible from the point of view of the rule of law. A provision is either contrary to the Constitution or it is not, regardless of political conditions and attempts to impose informal modifications on it.
Since there are no grounds for concluding that the current composition of the National Council of the Judiciary is unconstitutional, the government should cease its harassment of the Council, including by complying with the Constitutional Tribunal’s ruling ordering it to allocate budgetary resources enabling the Council to function normally and announcing competitions for vacant judicial positions, so that citizens are not further exposed to increasing delays in proceedings.
Image source: Wikipedia.
