How Poland Got Here: The Roots of the Constitutional Tribunal Crisis

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Poland is facing a constitutional crisis around its Constitutional Tribunal for which there is no clear, satisfactory resolution, at least not one that could be reached quickly and definitively. To understand how the country reached this point, and why the government’s justification for the use of force does not hold, one has to look both at the events of recent months and at a dispute that began more than a decade ago.

A takeover timed for a long weekend

On Friday, October 30, shortly after 5 p.m., the State Protection Service (similar to the Secret Service) escorted Anna Korwin-Piotrowska, who was elected by the Sejm as a Judge of the Constitutional Tribunal but never took her oath before the President, into the building of the Constitutional Tribunal. It was after working hours, just before a long weekend: Sunday was a public holiday, and Monday was a day off at the Tribunal. The moment was chosen so that the Tribunal would be empty for three and a half days.

The operation rests on the government’s position that five of the eight judges elected this year are validly elected and validly sworn in, even though they took their oath in the Sejm rather than before the President, the three remaining ones having taken then oath before the President. Taking the oath of office before the President of the Republic of Poland is a statutory requirement for the establishment of a judge’s official relationship and marks the commencement of their nine-year term.

These elections began in March, and they came late. They should have been held earlier, but the governing coalition waited for the outcome of the presidential election, counting on having its own president and thus being able to take over the Tribunal in a more legal way.

Why five judges have not been sworn in by the President

Five of the judges elected this year have not taken the oath before the President. In the case of four of them, it has not even been possible. After they took an “oath” before the Speaker of the Sejm, a request to resolve a competence dispute was brought before the Constitutional Tribunal. Until that dispute is resolved, all proceedings connected with it are suspended. Even if the President wanted to swear these judges in now, he would have to wait for the Tribunal’s ruling.

The Tribunal has no deadline for deciding the case. It has been deliberating and simply has not ruled yet. Meanwhile, the government maintains that an oath taken before the Speaker of the Sejm and sent in writing to the President is sufficient.

The Venice Commission recently endorsed this view through a feat of legal acrobatics. As the Venice Commission itself acknowledged in its opinion, its own interpretation is not consistent with the literal wording of the Polish statutory provision. However, in any case, its opinion has no legal force whatsoever, and no legal facts or actions can be derived from it. Nevertheless, in the government’s narrative, it became a source of legitimacy and a fresh impetus for claims in the media that these are lawfully sworn judges who should be allowed to adjudicate.

The lawful President of the Tribunal, Bogdan Święczkowski, takes the position that until the President of the Republic informs him that he has accepted the oath and that the procedure has been completed in accordance with the law, he cannot establish an employment relationship with these judges. As a result, they cannot begin their terms. Once a judge has taken the oath before the President, he or she must report to the Tribunal without delay to establish that relationship and take up duties.

However, President Święczkowski cannot decide on his own whether an oath was validly taken. That is why he asked the President of the Republic whether he had accepted the oath and whether it had actually been taken before him. Because he is not only the Tribunal’s President but also one of its judges, he cannot disclose his legal opinion: if he did, he could not later rule on the matter. He therefore chose a path that reconciles both roles. This matters all the more because the dispute over which form of oath is the only valid one is pending before the Tribunal, and he will probably sit on that case.

A valid ruling requires a bench of eleven judges. After the President swore in the first two of the newly elected judges, the Tribunal had eleven judges. But those two did not want to adjudicate. Judge Sławomir Patyra later took a valid oath before the President and then also refused to adjudicate. In other words, he lawfully became a judge, but in solidarity with those who took the oath under an improper procedure, he refused to rule. Had the three sat, the Tribunal could have resolved the dispute, either way. The Constitutional Tribunal could also determine whether intentionally taking the oath in an improper form affects the possibility of subsequently taking the oath in the form prescribed by law—and, if not, whether such individuals can still become judges of the Constitutional Tribunal.. In any event, the legal situation would now be clear.

The case of Maciej Berek

The fifth judge who has not been sworn in is Maciej Berek, the most recently elected who was until recently a minister of Donald Tusk, who called him his right hand. In his case too, the President cannot receive the oath while the competence dispute before the Tribunal remains unresolved, as he also chose to take his oath before the speaker of the Sejm. But there are also doubts as to whether he meets the statutory requirements. One of them is ten years of professional experience in the legal profession, which in his case, as a legal counsel (radca prawny), means ten years of practice in that profession.

Once again, the issue is one of interpretation and of documentary proof that he actually practiced. He was certainly registered on the list of legal counsels for more than ten years. The doubt concerns whether he actually provided legal assistance as a legal counsel. Depending on the interpretation, the experience gained while practicing as a legal advisor ranges from over a year to approximately 3.5 years. These doubts were already raised before the Sejm committee that recommends candidates to the Sejm. The committee ignored them, and so did the Sejm when it voted.

The President rightly asked for these doubts to be clarified, so that it would be clear whether this candidate met the statutory requirements at all, and whether he could even have been a candidate and been elected. To this day, no documents have been provided.

The President’s duty and its limits

Under the Polish Constitution and Polish law, the President is obliged to receive the oath of a person elected by the Sejm as a judge of the Constitutional Tribunal. However, according to the Tribunal’s judgment of December 2015, there may be circumstances in which the President may legitimately withhold the oath. No provision of law sets a deadline within which he must receive it, and if he has doubts, he may withhold it while they are being clarified.

The President has taken active steps. He has written to the Speaker of the Sejm on several occasions asking for clarification of procedural doubts concerning the candidates’ oath, and he has asked the Constitutional Tribunal to resolve the competence dispute. He is now waiting for its ruling. The President is therefore not withholding the oath arbitrarily: he is taking action to resolve these doubts. He would be acting in accordance with the law if, once the doubts were resolved in the candidates’ favor, he received their oath, as he would then be required to do.

The “doubler judges” and their inheritance

Why did the current coalition, which has a majority in the Sejm, delay electing new judges to the Tribunal? Because it did not recognize the Tribunal’s legitimacy. Its political narrative held that Poland no longer had a Constitutional Tribunal, and since March 2024 the government has neither published nor implemented its judgments. This was justified by the presence of the so-called “doubler judges.” Yet a judge of the Tribunal is appointed for nine years, and the dispute that gave rise to the term dates back to December 2015. The problem should therefore have expired naturally at the end of 2024. Why, then, does the government still refuse to publish the Tribunal’s judgments?

The answer lies in another of its theories: that “doubler” status is inherited from the original doubler judges. Some of them did not serve their full terms because they died. New judges were elected in their place, and the government apparently considers that these successors inherited the “doubler” status. The reasoning seems to be that the original doublers should have served nine years. Had others been elected instead, those others might not have died in the meantime. So since the term was cut short and successors were elected to replace them, the successors inherited the defect.

These theories vary widely, and even over the past few months under Donald Tusk’s government they have evolved considerably. There was clearly no unified plan, although one may have taken shape by now; earlier, the theories sometimes even contradicted each other. In the most far-reaching version, every judge who served on the Tribunal at the same time as the doublers was “infected” by doubler status.

In that most radical version, fourteen judges were not recognized. Why one judge was immune to the “infection” is anyone’s guess. Such extreme theories cannot be taken seriously.

I personally witnessed how these theories escalated emotionally during public consultations in the Sejm on bills meant to regulate the situation. Professors of law, including Professor Andrzej Zoll, a former president of the Constitutional Tribunal, debated in a highly emotional way which judges should not be considered legitimate, and Professor Zoll went as far as fourteen in that discussion. It had the feel of a brainstorming session, with ever more extreme theories tossed back and forth to justify rebuilding the Tribunal by legislation from the ground up. Since, under the most radical version, fourteen judges should not adjudicate, the government denied legitimacy to the entire Tribunal, withheld funds in the state budget, and stopped publishing its judgments. As an aside, the final draft bill is flagrantly inconsistent with the Constitution of the Republic of Poland. This might explain why there has now been an attempt to escalate the issue in a way that might help adopt an unconstitutional law.

President Bogdan Święczkowski and Vice-President Bartłomiej Sochański are lawful judges. The government nonetheless considers Święczkowski’s election as President of the Tribunal to be flawed, because one of the doubler judges took part in the vote. Since that judge should not have been on the Tribunal, the argument goes, he should not have voted either. Someone else would of course have been there in his place and might also have voted, in a way no one can know. At that time, the General Assembly of the judges of the Constitutional Tribunal nominated Bogdan Święczkowski and Bartłomiej Sochański as candidates for the position of President of the Constitutional Tribunal. President Andrzej Duda, who is empowered to select the President from among the nominated candidates, chose the former. In fact, the legitimacy to serve as President is derived directly from the President of the Republic of Poland, rather than from a vote by the judges..

Back to 2015

The conflict did not begin with the “doublers” alone, and the errors were not only those of the Law and Justice (PiS) party. To understand it, one has to go back a few months before December 2015, to June of that year. The governing majority of the time, which was a coalition of Donald Tusk’s Civic Platform party with the agrarian center-right PSL party (both parties are now members of today’s governing coalition with the Left), aware of polls showing that it would probably lose power in the fall elections, passed an amendment to the Constitutional Tribunal Act that allowed it to elect judges in advance.

It justified this by saying that elections would be held in the fall and that the Tribunal’s work could not be interrupted before the new Sejm’s first sitting. It therefore decided to elect all the judges whose terms ended in that calendar year, even though the terms of two of them ended in December, that is, during the new Sejm’s term. It was the newly elected Sejm that should have chosen their successors.

Five judges were then elected in October, days before the parliamentary elections: three whose predecessors’ terms ended in November, and two whose predecessors’ terms ended in December.

After the change of government, this election was challenged. Without going into detail, PiS first filed a motion with the Constitutional Tribunal and then withdrew it. A week later, Civic Platform filed an almost identical motion. The aim was to obtain a ruling and to block the appointments of the new judges. Then the newly elected Sejm repealed the resolutions electing all five judges, none of whom had been sworn in by President Andrzej Duda, and elected five new ones.

The Constitutional Tribunal’s judgment holding that three judges had been validly elected by the previous Sejm and two invalidly was delivered on December 3. Under the prevailing doctrine, the Tribunal’s judgments take effect upon their announcement in the courtroom, not upon their formal publication in the Journal of Laws, and they apply to the future. Fifteen minutes after midnight on December 3, in the night of December 2 to 3, President Andrzej Duda swore in the  three judges elected to the seats vacated in November and a fourth one elected to one of the seats vacated in December, formally a dozen or so hours before the judgment.

As for the second December seat, he received the oath of the last judge designated by the newly elected Sejm, after the Tribunal’s judgment. In light of the judgment, there is no doubt regarding the status of one judge who was sworn in the night before the Constitutional Tribunal’s ruling, and another who was sworn in after the ruling. The problem arose with the other three (for the seats vacated in November). The Tribunal held that those three had been validly elected by the previous Sejm, yet the new Sejm had elected three others, from whom the President had received the oath before the judgment was announced by the Tribunal. Three judges were lawfully elected but not sworn in, while three others were elected and sworn in. That was the beginning of a conflict over this “doubler” status, first legal and over time also political, which has continued around the Constitutional Tribunal for eleven years with varying intensity and through various stages.

Precedents on both sides, on a different scale

It must also be said that the United Right coalition (ie., the governing coalition led by PiS), from March 2016 onward, pursued legislative and legal efforts and built a political majority to remedy the situation around the Tribunal and find a compromise solution consistent with the law. At the same time, however, it withheld the publication of twenty-one judgments of the Constitutional Tribunal. All of them were eventually published, but the publication was withheld without any legal basis, solely on the grounds of doubts.

Let us also remember that, at the time, the Government Protection Bureau escorted the three judges sworn in at night into the Tribunal. The then President of the Tribunal, Andrzej Rzepliński, completed all the formalities to establish their employment relationship and assigned them offices, but said he would not assign them cases until the doubts had been resolved.

So there were precedents, such as the non-publication of judgments or the entry of judges into the Constitutional Tribunal building accompanied by the services, which have been repeated since Civic Platform (now renamed Civic Coalition) came back to power. It has now failed to publish more than 80 judgments. And last Friday, the State Protection Service, the same service (albeit with a changed name) that escorted judges into the Tribunal in December 2015, escorted into the building judges who have not been sworn in. The dispute is extremely complicated, and the two main political camps fighting over the Tribunal have taken similar actions, only with different intensity and on a different scale.

The United Right acted at the edge of the law, but it did not formally cross that line. The current government, lacking legal arguments, interprets various provisions in an entirely arbitrary way and goes ever further with its alternative interpretations. They have now gone so far that legal authorities who once supported the government are turning away from these actions. Institutions are being taken over by force, as with the public media and the Academy of Justice. Unauthorized persons, with no legal basis, are issuing orders in a completely extralegal manner. The scale of these violations is in no way comparable to what happened in 2015 by the December 2023.

Protecting citizens from the fallout

Is there a way out? Ordo Iuris published a report, How to Get Out of the Rule-of-Law Crisis, before the Tribunal reached its present, dangerous deadlock. As regards the Constitutional Tribunal, it proposes only one provision. This is because we set out to identify the areas where the rule of law and legal clarity should be restored only with respect to actions taken after December 13, 2023. The report therefore deals solely with protecting citizens’ rights in the face of the non-publication of judgments.

We anticipated the problem accurately. We presented the first, draft version of the report publicly in December 2025, and the final version was published in early 2026.

The Supreme Administrative Court has just confirmed our concerns. When a citizen obtains a favorable judgment from the Constitutional Tribunal, two time limits begin to run for reopening court proceedings that were concluded on the basis of provisions found unconstitutional. One of them runs only from the publication of the Constitutional Court’s ruling in the Journal of Laws, but the other runs from the moment the unfavorable judgment put to the Constitutional Court was delivered.

If the dispute drags on, the latter time limit may expire, and reopening the proceedings will no longer be possible. To protect citizens and their rights from the negative consequences of a political dispute, we propose an amendment that would suspend these time limits, so that no citizen suffers because of it.

There are already several such judgments, concerning housing communities and pensions paid by the Social Insurance Institution (ZUS), which should have been recalculated upward. There is no explicit provision on this point, but according to the interpretation in the Tribunal’s case law and in legal doctrine, state bodies should apply these judgments from the moment they are announced in the courtroom. They are not doing so, to the detriment of citizens.

A constitutional “reset”?

As for the proposals for a “reset” of the Constitutional Tribunal, they are understandable. The dispute has lasted eleven years and is extraordinarily complicated. It has gone through various phases, and it must be said plainly that both sides repeatedly had the opportunity to act more responsibly. Each played for all or nothing, for a complete victory of either Civic Platform or PiS. Along the way, various conciliatory, compromise solutions that would have served the interest of the state and of Poles gave way to political struggle.

It is therefore no surprise that emotions are rising and that many simply want to cut through the knot, without going into the current legal situation. This is all the more so because, over the past three years, the legal dualism, the existence of two legal orders as understood by each political camp, has been deepening.

We are now seeing how far the government’s legal interpretation of what is happening has become detached from reality, including from what is actually taking place. So the calls for a reset are entirely understandable. But a constitutional amendment requires such a large majority that, given the reluctance of the two largest parties, Civic Coalition and PiS, as well as the New Left, to make any change, there is no chance of building it.

That is the first problem. The second is that a reset cannot be arbitrary either. An amendment to the Constitution must, in a sense, be consistent with the current Constitution and preserve its overall coherence.

We cannot write anything into it simply because we have the majority to do so. The various proposals would therefore have to fit into the Constitution’s current logic. That would not be a major obstacle; the proposals can be adapted. But it must be borne in mind that this cannot be done entirely at will, and the debate must take it into account.

The real problem is that all the reset proposals aim to cut off completely what has happened over the past eleven years. In a sense, that means not holding anyone accountable and not deciding who acted lawfully and who did not. At the same time, they rely on a large qualified majority (2/3) to elect the Tribunal’s judges, instead of the current requirement of just an absolute majority (1/2 + one vote). This, in such a polarized climate, will obviously block those elections. The various mechanisms for shortening the Sejm’s term or lowering the majority in successive votes are problematic in their own ways, and a high qualified majority forces the choice of compromise candidates only.

Such candidates would be bland and colorless. Building that majority might also require trading other bills and votes, so the public debate must consider seriously whether that is the solution we want. Perhaps it would be better to leave the choice to the parliamentary majority and introduce other safeguards instead.

At present, there is no procedure for reviewing the Sejm’s election of judges. Legal scholars have pointed this out for many years, including Professor Monika Florczak-Wątor, now Poland’s appointed member of the Venice Commission, who has noted that there is no review of the procedure by which the Sejm elects a judge. Perhaps the solution lies elsewhere than in requiring a large compromise majority for every candidate. One should also consider having groups of constitutional judges selected by various bodies—the Nation, the President, the Sejm, and the Senate.

So while the demands are understandable, as long as there is no specific draft, there are more doubts and questions than clear solutions.

The most realistic way out

The proposal of Rozwój Plus, the new association that has split off from PiS under the leadership of former Prime Minister Mateusz Morawiecki, deserves praise here. It appears to be the most politically realistic option.

Rozwój Plus is simply seeking a constructive vote of no confidence that would remove Donald Tusk’s government. It has put forward former Sejm Speaker Marek Jurek as its candidate for a technical prime minister for the coming year. Such a vote requires a majority of only 231 deputies. With a united opposition, that means that, for example, half of the PSL–Third Way parliamentary club would have to support it, not even the whole club (center-right parties from the ruling coalition).

Only fifteen righteous deputies are missing to put an end to Donald Tusk’s actions. A technical government, however, might lack a stable majority in parliament. This would make governing significantly more difficult during the year remaining until the scheduled elections; therefore, an alternative plan—one not yet raised by politicians—should be considered. If the technical government resigned immediately, and parliament then rejected, in the next two votes, purely pro forma candidates put forward first by the President and then by the Sejm, the Sejm’s term would be shortened. Under this scenario, which still requires 231 deputies and not a single one more, new elections could be held as early as next spring.

The term would be cut short, and we would not have to wait until next fall for a new parliament with a new majority. After all, even a technical government led by Marek Jurek would be governing without a parliamentary majority, which is a serious handicap.

It may not make sense to remain in that situation until the fall. Perhaps it would be better to agree on rejecting the successive candidates, so that elections could take place around mid-March. That is roughly how the timeline would play out under the constitutional procedure. It would, of course, be only a first step: the situation at the Constitutional Tribunal would still have to be repaired.

Łukasz Bernaciński is a doctor of law and the director of the Ordo Iuris Center for Constitutional Research.

See also:

• Coup d’État in Poland: After the Constitutional Tribunal, They Will Come for the Supreme Court
• Poland’s Constitutional Tribunal Session of November 3 Is Invalid: Ordo Iuris Identifies Nine Defects in the Convening of the General Assembly
• Police Takeover of Poland’s Constitutional Tribunal: Anatomy of a Coup
• On the Seizure of the Seat of Poland’s Constitutional Tribunal and the Attempt to Install Its Leadership Outside the Legal Order
• Statement of the Ordo Iuris Institute for Legal Culture on the Forcible Seizure of the Seat of the Constitutional Tribunal

Source of cover photo: Ordo Iuris