- The Polish Constitutional Tribunal holds that, in light of the provisions of the national Constitution, it is impermissible to interpret the provisions of the Code of Civil Procedure on judicial recusal to mean that all judges appointed since 2018 are, by operation of law, disqualified from adjudicating.
- The Tribunal has emphasized that such an interpretation of these provisions would amount to unjustified differential treatment of judges. He has also recalled that no authority is empowered to challenge the validity of judicial appointments made by the President under the prerogative vested in him.
- The Tribunal’s judgment has thus complemented its existing line of case law, according to which the disqualification of a judge upon a party’s motion citing the fact that the judge was appointed in or after 2018 has been deemed inadmissible.
On November 25, 2025, the Polish Constitutional Tribunal issued a judgment (P 7/23) in which it answered the following legal question:
whether Article 48 § 1 point 1 of the Act of 17 November 1964 – Code of Civil Procedure (Official Journal of 2021, item 1805, as amended) “understood as meaning that the circumstance of a judge’s appointment by the President of the Republic of Poland, upon a motion of the National Council of the Judiciary, to hold office constitutes a ground for the judge’s disqualification by operation of law,” is consistent with Article 179 in conjunction with Article 144(3)(17) and Article 190(1) of the Constitution.
In essence, the question concerned whether a court may rely on the provisions of the Code of Civil Procedure concerning the disqualification of a judge by operation of law to disqualify a judge solely and exclusively on the ground that the judge was appointed by the President of the Republic of Poland on the basis of a motion by the National Council of the Judiciary (KRS), elected under the rules in force since 2018 (that is, one whose members chosen from among judges, as referred to in Article 187(1)(2) of the Constitution, were elected by the Sejm).
Let us recall here that the change in the method of electing KRS members was one of the main fault lines in the conflict between the then-opposition, which now governs as part of a broad left-liberal coalition led by Prime Minister Donald Tusk, and the then-parliamentary majority led by Law and Justice (PiS). This reform was deemed unconstitutional by Donald Tusk’s camp and challenged by the European Commission, neither of which, however, had the authority to rule on the matter. The Polish Constitutional Tribunal had such powers and in the judgment of March 25, 2019 (K 12/18) found this reform to be consistent with the Polish Constitution. This, however, did not change the stance of Donald Tusk and his successive justice ministers, who do not recognize the legitimacy of the current Constitutional Tribunal and have consistently refused since spring 2024 to publish and enforce all of its rulings.
However, in the judgment of November 25 of this year Poland’s Constitutional Tribunal unanimously held that such an interpretation of the provisions of the Code of Civil Procedure (k.p.c.) referred to above is unconstitutional.
Article 48 § 1(1) of the Polish Code of Civil Procedure reads:
A judge is disqualified by operation of law from cases in which he or she is a party, or is in such a legal relationship with one of the parties that the outcome of the case affects his or her rights or obligations.
The Constitutional Tribunal, in this regard, invoked the case law, shared primarily by Supreme Court judges appointed before 2018, according to which a judge appointed since 2018, i.e. following the reform of the National Council of the Judiciary and the change in the method of appointing its members-judges under the 2017 reform, should, at the very beginning of a given case – and also in the course of the case – assess the correctness and legality of his or her appointment to the position of judge.
It is, however, an absurd and entirely unfounded line of reasoning, devised solely for the purpose of completely preventing judges appointed since 2018 from adjudicating.
The Constitutional Tribunal strongly recalled that these judges were appointed in accordance with the requirements set out in Article 179 of the Constitution, namely:
- by the President,
- at the request of the National Council of the Judiciary,
- for an indefinite period.
The Polish Constitutional Tribunal also emphasized that any differentiation of the powers of judges appointed in accordance with these requirements, based on the time when they were appointed (or, indeed, at all, for any reason whatsoever), is impermissible. This view aligns with the existing line of case law, especially the judgment concerning Minister Bodnar’s draft amendment to the Act on the National Council of the Judiciary (KRS), which held that depriving judges appointed after 2018 of the right to stand for election to the National Council of the Judiciary was impermissible. It shall therefore be considered all the more impermissible to deprive those judges of the right to what constitutes the essence of their office—the administration of justice, i.e. adjudication.
Secondly, the Polish Constitutional Tribunal recalled (which had also just been raised in the previously discussed judgment) that no public authority has the competence to review the President’s acts of appointing judges, and consequently to challenge their status. And this is exactly what the recusal of judges due to the circumstances of their appointment would amount to, which is the subject of the legal question. In this respect, such practice contravenes Article 144(3)(17) of the Polish Constitution, under which the appointment of judges is the President’s prerogative (on which we wrote in more detail in a recent post).
Third and finally, the Tribunal found that the interpretation of the provisions of the Code of Civil Procedure referred to in the question is inconsistent with Article 190 of the Constitution, under which:
Judgments of the Constitutional Tribunal have universally binding force and are final.
On this occasion, the Tribunal emphasized that the understanding of the provisions of the Code of Civil Procedure (k.p.c.) referred to at the outset is contrary to the Constitutional Tribunal’s consistent line of case law, in which it held inadmissible the recusal of a judge at a party’s request within the framework of criminal procedure (P 22/19) or civil procedure (P 13/19 and P 10/19) solely on the grounds of circumstances concerning appointment (i.e., in practice, due to an appointment made upon the motion of the KRS elected under the rules in force since 2018). To this list, cited by the Constitutional Tribunal, one should add, first and foremost, the judgment of March 25, 2019 (K 12/18), in which the Tribunal expressly found that the provisions of the Act on the National Council of the Judiciary (KRS) currently in force, governing the manner of electing the judge-members of the KRS, are consistent with the Constitution.
The Constitutional Tribunal also recalled on this occasion the position expressed in the judgment of 28 May 2024 (U 5/24), according to which the Constitutional Tribunal’s judgments:
may not be altered or challenged by any public authority. […] International bodies must likewise not challenge the final nature of Constitutional Tribunal rulings or question their universal applicability.
This means that neither any judgments of the Supreme Court, including even resolutions of the combined chambers, nor judgments of the Court of Justice of the European Union or the European Court of Human Rights can undermine the Polish Constitutional Tribunal’s established case law, according to which judges appointed since 2018, whether to the common courts or to the Supreme Court, are full-fledged judges!
In the conclusion of the grounds for the judgment, the judge-rapporteur stated that the judgment shall be binding on all public authorities, including all panels of the Supreme Court. Any subjective, individual opinions of commentators or even judges, including those sitting on the Supreme Court, regarding the alleged unconstitutionality of the current method of electing judge-members of the National Council of the Judiciary (KRS) and the consequences thereof, should be completely irrelevant to adjudicating panels examining the grounds for the recusal of a particular judge.
One should not delude oneself that that this judgment will in any way affect the Minister of Justice Waldemar Żurek and that he will cease to exert pressure on judges from both the Supreme Court and the Supreme Administrative Court, as well as ordinary courts, aimed at forcing those judges to resign from adjudicating, as Minister Żurek, alongside Prime Minister Donald Tusk, have, together with their ruling left-liberal coalition and with Brussels’s tacit support, ceased to publish and apply the rulings of Poland’s Constitutional Tribunal. Undoubtedly, however, this judgment constitutes yet another unequivocal confirmation that the actions of Donald Tusk’s Justice Minister actions in this regard are groundless, and therefore also unlawful.
