On 24 April 2025, the Ministry of Justice presented a draft bill on ‘restoring constitutional order in the judiciary’. The draft is based on the division of judges into three groups: ‘green’, ‘yellow’ and ‘red’, which was previously presented by Deputy Minister Mazur on 11 April in a post on platform X:
Judges from the ‘yellow’ group, or, as the Deputy Minister put it: approx. 1,150 judges who were promoted after being assessed by the unconstitutional National Council of the Judiciary […] [will] be returned to their previous positions. These judges would continue to adjudicate in the courts where they currently sit for two years after the draft comes into force, on the basis of a statutory delegation to their current positions. Judges from the ‘red’ group, on the other hand, approximately 400 people who entered the profession from other professions thanks to the current KRS […] [w]ill return to their professions.
In addition to the above groups, the draft also conceals a fourth group, which was completely omitted by the ministry’s representatives in the announcement concerning the draft and in posts promoting it on platform X. This group consists of members of the current National Council of the Judiciary, elected by the Sejm from among judges, and the Disciplinary Ombudsman for Common Court Judges and his deputy. These judges would not only be removed from their offices, but would also be deprived of the possibility of holding positions in the court to which they were appointed on a secondment basis. This solution bears the hallmarks of extrajudicial individual repression against these 17 specific individuals and, as such, deserves to be condemned in the strongest terms (as do the earlier actions of Minister Bodnar against these individuals, which we wrote about on our website: dismissing them from their positions without legal basis and initiating disciplinary proceedings against them for the mere fact of performing their duties).
However, what should be particularly emphasised is that, not only does the draft provide for the automatic removal of all judges affected by the Act (both from the ‘yellow’ and ‘red’ groups), but it also fails to provide them with any real possibility of appealing against this decision to any court. Article 15a of the draft provides only for an illusory possibility of appealing to the Supreme Court – not, however, for a substantive assessment of the work of a given judge and the legitimacy of removing him or her from office, but only for verification of his or her assignment to one of the three groups mentioned above.
It should be pointed out here that such a solution is obviously contrary to Article 180 of the Constitution, according to which it is unacceptable to remove a judge by means of an act of Parliament. The first two points of this article clearly state:
1. Judges are irremovable.
2. A judge may be removed from office, suspended from office, transferred to another seat or to another position against his will only by a court decision and only in cases specified by law.
The constitutional invalidity of the adopted solutions concerns both the red group (which is obvious) and the yellow group, as Dr Lewandowski rightly pointed out. In the Polish legal system, there is no such thing as a general ‘appointment as a judge’, but, as indicated in Article 55 § 2 of the Law on the System of Common Courts:
Judges of common courts are appointed to the following positions:
1) district court judge;
2) regional court judge;
3) appeal court judge.
In Poland, there is no uniform status of judge, but rather judges of district courts, regional courts, courts of appeal, the Supreme Court, provincial administrative courts and the Supreme Administrative Court. One cannot be ‘just a bit of a regional court judge’, just as one cannot be, for example, ‘just a bit of the President of the Supreme Audit Office’.
This means that the constitutional guarantee of irremovability prohibits not only the expulsion of someone from the judicial profession in general, but also the deprivation of the status of a judge of a given level.
The above solution is also contrary to the opinion of the Venice Commission on European standards regulating the status of judges of 14 October 2024. In that opinion, the Commission took the view that the evaluation of judges must always be individual and that it is not possible to remove them in groups. It also emphasised that, in the light of the Polish Constitution, it is not possible to remove a judge by means of a mere act of law, without a court judgment. Although this opinion is not binding, it nevertheless casts in an incomprehensible light the actions of the Ministry in submitting to the Commission (as mentioned in the communication) a draft that is directly contrary to the position already expressed by the same commission.
What is particularly surprising is that the solutions proposed in the draft are also contrary to the position of the Advocate General of the CJEU, which we recently described. In that opinion, the Advocate General clearly ruled against the collective dismissal of common court judges appointed since 2018 without an individual assessment of each of them by an independent court. This means that the draft, which according to its authors was supposed to implement European Union law, following their line of reasoning, should rather be considered directly contrary to that law (although, of course, it should be realised that this entire narrative is flawed, as the European Union has no competence whatsoever in the matter of the judicial system of Member States, as Dr Bartosz Lewandowski also pointed out):
The CJEU Advocate General can think whatever he wants, because neither he nor the CJEU has any say in the matter of the Polish judiciary.
A detailed, critical opinion on the draft was published by the Association of Judges of the Republic of Poland. It pointed out that the draft treats judges who took office in 2018 in an arbitrary and unprecedented manner, even though similar sanctions were not applied to judges elected earlier in a manner that raised doubts as to the implementation of the standard of independence and other constitutional standards, especially during the Polish People’s Republic, but also later.
However, doubts about the proposed solutions are also raised by other, very different parties. For example, Dr Marcin Szwed, associated with the Helsinki Foundation for Human Rights, stated:
I believe that these provisions may in practice lead to many problems, including a negative impact on the effectiveness of the Polish justice system. I suspect that the application of this law may be challenged before Polish courts and European tribunals by those whom it affects. I do not rule out that they will be successful.
It is high time that Minister Bodnar stopped making further attempts to usurp the powers of the judiciary and remove judges in violation of fundamental guarantees of judicial independence. Once again, it is clear that these actions, propagandistically described as ‘restoring the rule of law’, in fact constitute a flagrant violation of the principle of the separation of powers referred to in Article 10 of the Constitution, leading to the supremacy of the government and the parliamentary majority behind it.
