MAIN POINTs
1
In a letter of August 11, 2026, Poland’s Ministry of Justice admitted that the European Court of Human Rights (ECtHR) has never issued a single judgment finding a violation of the right to a court because a common court judge appointed on the motion of the National Council of the Judiciary (NCJ), as reshaped in 2018, sat on the bench.
2
Yet for more than a year, Justice Minister Waldemar Żurek has been announcing that judges appointed since 2018 will pay out of their own pocket for compensation allegedly awarded by the ECtHR, while his ministry speaks of a hundred cases lost in Strasbourg.
3
In reality, money reaches the applicants almost exclusively because the Polish government itself – in friendly settlements and unilateral declarations – admits to violations of the Convention and offers compensation.
4
A government that first pays voluntarily and then announces it will shift the costs onto the judges has no grounds to demand recourse from those judges. Responsibility for the purposefulness of these expenditures lies with those who decide on them – which raises questions of public finance discipline.
Since 2018, Polish judges have been appointed by the President of the Republic on the motion of the National Council of the Judiciary (NCJ), whose judge-members – following the 2017 reform – are elected by the Sejm, Poland’s lower house of parliament. Poland’s Constitutional Tribunal held this model to be consistent with the Constitution as early as its judgment of March 25, 2019 (ref. K 12/18). Nevertheless, the coalition led by Donald Tusk, which took power in December 2023, has been treating the thousands of judges appointed under this procedure as “defective,” relying on the case law of two European courts. The European Court of Human Rights (ECtHR) – most notably in its pilot judgment in Wałęsa v. Poland of November 23, 2023 – and the Court of Justice of the European Union (CJEU) – most recently in its rulings of September 4, 2025 and March 24, 2026 – have taken it upon themselves to assess the procedure by which Polish judges are appointed and to conclude that benches including such judges may fail to meet the standard of a “tribunal established by law.”
The actions of both European courts thus constitute a usurpation of competences that Poland has never conferred on either court. Under Article 179 of the Polish Constitution, judges are appointed by the President of the Republic on the motion of the NCJ, and neither the European Convention on Human Rights nor the EU Treaties authorize Strasbourg or Luxembourg to review the effectiveness of such appointments. The Constitutional Tribunal confirmed this in its judgment of March 10, 2022 (ref. K 7/21), holding Article 6(1) of the Convention unconstitutional insofar as it allows the ECtHR to create norms on the appointment of national judges and to review the constitutionality of Polish laws on the judiciary and the NCJ, and – with respect to the CJEU – in its judgment of September 10, 2026 (ref. P 10/24).
The conflict with both European courts is therefore a fact. Poland’s Ministry of Justice, however, not only ignores the Constitutional Tribunal’s case law finding that these courts have exceeded their competences, but also misleads the public about what the two courts have actually held and what this would mean for the status of the judges concerned – proposing solutions that not even Strasbourg or Luxembourg would ever endorse, such as the mass removal of judges from office by statute. In particular, government ministers have suggested that every time a judge appointed since 2018 hears a case, Poland ends up paying millions because of the many cases it supposedly loses in Strasbourg. The reality is quite different.
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Source of cover photo: iStock
