{"id":27038,"date":"2023-12-22T20:20:46","date_gmt":"2023-12-22T20:20:46","guid":{"rendered":"https:\/\/z6frttwr.ordoiuris.io\/aktualnosc\/constitutional-crisis-in-poland-ordo-iuris-analysis\/"},"modified":"2025-10-29T10:44:09","modified_gmt":"2025-10-29T09:44:09","slug":"constitutional-crisis-in-poland-ordo-iuris-analysis","status":"publish","type":"informacje","link":"https:\/\/ordoiuris.pl\/en\/press-newsdesk\/constitutional-crisis-in-poland-ordo-iuris-analysis\/","title":{"rendered":"Constitutional crisis in Poland. Ordo Iuris analysis"},"content":{"rendered":"

\u00b7 A constitutional crisis is brewing in Poland caused<\/b> <\/b>by<\/b> the actions of the new government.<\/b><\/span><\/span><\/span><\/p>\n

\u00b7 The Minister of Justice Adam Bodnar has published a draft decree that would make the rulings of Polish courts subordinate to those of international tribunals.<\/b><\/span><\/span><\/span><\/p>\n

\u00b7 Meanwhile, the Sejm passed a resolution challenging the validity of <\/b>election of members of the National <\/b>Judiciary<\/b> Council appointed <\/b>in the period of<\/b> March 2018 to May 2022.<\/b><\/span><\/span><\/span><\/p>\n

\u00b7 The judges are supposed to<\/b> also undergo an “<\/b>test of <\/b>independence” that could undermine their appointment by the President of Poland and subordinate them to political <\/b>parties<\/b>.<\/b><\/span><\/span><\/span><\/p>\n

\u00b7 There was also an unlawful attack on the <\/b>public media and <\/b>unlawful<\/b> dismissal of the <\/b>Management <\/b>Boards and Supervisory Boards of<\/b> the<\/b> <\/b>Polish <\/b>TV<\/b> (TVP)<\/b>, Polish Radio and <\/b>Polish Press Agency (<\/b>PAP<\/b>).<\/b><\/span><\/span><\/span><\/p>\n

\u00b7 The Warsaw District Court, meanwhile, convicted MPs Mariusz Kaminski and Maciej W\u0105sik in the  case in which they were <\/b>previously pardoned by the President<\/b> of Poland<\/b>.<\/b><\/span><\/span><\/span><\/p>\n

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PDF FILE – LINK<\/strong><\/a><\/p>\n

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RULE OF LAW OBSERVER – LINK<\/a><\/strong><\/p>\n

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On December 13, 2023, a new Council of Ministers was appointed in Poland, under the leadership of Mr. Donald Tusk. Acting based on the resolutions of the Sejm, i.e., the lower chamber of the Parliament of the Republic of Poland, the new Polish government, started undertaking unlawful actions undermining the foundations of a democratic rule of law, and intended to constitute a certain kind of \u201ctransitory period\u201d order. The term \u201ctransitory period\u201d was used in the resolution of the Sejm of the Republic of Poland of December 19, 2023 on the restoration of the rule of law and the impartiality and integrity of the public media and the Polish Press Agency.<\/span><\/span><\/span><\/p>\n

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The doctrine of justice of the transitory period was referred to by the current Justice Minister Adam Bodnar in an article published in Gazeta Wyborcza<\/i><\/a>. In the practice of the current government, it is supposed to consist in deviating from the normal principles of a law-abiding and democratic state and in undertaking actions without legal grounds, which are based on the use of violence (as exemplified by the battery of one of the Members of Parliament (MPs) who intervened in defense of the public media) and subersive actions (such as shutting off the signal of the Polish television TVP Info station).<\/span><\/span><\/span><\/p>\n

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1. The attempt to deprive the Polish judiciary of its sovereignty and to subordinate it to the rulings of European tribunals<\/b><\/span><\/span><\/span><\/p>\n

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In 2017, the then ruling United Right government introduced into Polish courts the institution of \u201ccoordinators for international cooperation and human rights\u201d in criminal and civil cases. The justification for the amendment<\/a> stressed that this was done \u201cin order to improve the practice of exchanging information and experience regarding international cooperation and human rights\u201d.<\/span><\/span><\/span><\/p>\n

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Meanwhile, Poland\u2019s new Minister of Justice and Attorney General Adam Bodnar decided to use the institution of coordinators for something completely different: for instructing judges on how they should rule, claiming that the National Judiciary Council is operating illegally, as it was supposed to be elected based on the provisions introduced by the law of December 8, 2017, which is supposedly confirmed by the rulings of the Court of Justice of the European Union and the European Court of Human Rights.<\/span><\/span><\/span><\/p>\n

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Already on his very first day in office, on December 13, 2023, the Minister sent a letter to the coordinators<\/a> in which he interpreted that the coordinators have the obligation to \u201cpay special attention to the case law [of the CJEU and ECHR] regarding the status of persons appointed to judicial positions with the participation of the National Judiciary Council [as of 2017]\u201d, from Articles 16b and 16d of the Law of July 27, 2001 on the System of Common Courts<\/i>, according to which coordinators are obliged to \u201cinform judges about relevant current case law of international bodies\u201d. He also announced that \u201c in the near future, the Ministry of Justice will be holding seminars and training sessions on the importance of CJEU and ECHR case law concerning the independence of the judiciary\u201d.<\/span><\/span><\/span><\/p>\n

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The 2017 amendment changed the method of appointment of the 15 judges-members of the NJC. Until then, they were selected by the judicial assemblies, and they are elected by the Sejm ever since. The Article 187 of  the Constitution, which regulates this area, does not specify who elects the judges-members of the NCJ, but states that the method of selecting the members is determined by parliamentary bill. This change was opposed from the beginning by many judges maintaining in contradiction to the letter of the Polish Constitution, that these 15 judge-members of the NJC must be elected by judges. Thus, the new Minister of Justice and Attorney General Adam Bodnar completely ignored the position of the Polish Constitutional Tribunal, which in its judgment of March 25, 2019, ref. K 12\/18, confirmed the conformance of the provisions of the Law of December 8, 2017<\/i> with the Constitution as well as with the well-established line of jurisprudence maintaining that the act of appointment to the Office of a Judge by the President of the Republic of Poland is final and is not subject to any kind of review, including by courts and tribunals (see: the verdict of the Constitutional Tribunal of March 4, 2020, P 22\/19, the judgment of the Constitutional Tribunal of December 11, 2023, Kp 1\/23).<\/span><\/span><\/span><\/p>\n

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In addition, on December 15, 2023, Adam Bodnar published a draft decree<\/a> adding a new paragraph 118a to the Rules of Procedure of Common Courts, according to which
\n\u201cduring the preparation of verdicts and justifications the European Union law shall be taken into cosideration<\/b>, in particular Article 19 of the Treaty on European Union\u201d [regarding the CJEU], as well as \u201cacts of the international law binding on the Republic of Poland\u201d, in particular Article 6 of the European Convention on Human Rights, \u201ctaking into account the jurisprudence of the CJEU and the ECHR when interpreting them\u201d<\/b>.<\/span><\/span><\/span><\/p>\n

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\u201eBodnar\u2019s Decree\u201d \u2013 as the draft regulation has already been dubbed \u2013 constitutes a flagrant violation of Article 178(1) of the Polish Constitution<\/a>, according to which \u201cin the exercise of their office, Judges shall be independent and subject only to the Constitution and statutes\u201d. Therefore, it is forbidden to impose obligations on judges regarding adjudication and justification of rulings by means of decrees. Bodnar\u2019s decree<\/i> also contradicts the Constitutional Tribunal\u2019s judgment of October 7, 2021<\/a> (ref. K 3\/21), which stated that Article 19 of the Treaty on European Union, cited by Bodnar is incompatible with the Polish Constitution, to the extent that it would authorize a court to review the independence of judges appointed by the President of the Republic of Poland.<\/span><\/span><\/span><\/p>\n

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2. Questioning the status of the National Judiciary Council<\/b><\/span><\/span><\/span><\/p>\n

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Various circles associated with the current ruling coalition are attempting to challenge the status of the National Judiciary Council, as part of a broader campaign to allegedly
\n\u201crestore the rule of law\u201d. The result of these efforts is a resolution adopted by the Sejm on December 20, 2023<\/a>, stating that the Sejm\u2019s resolutions from March 2018 to May 2022 regarding the selection of members of the NJC were adopted in flagrant violation of the Polish Constitution. Moreover, in the resolution, the Sejm calls on the thus elected members of the NJC to immediately cease their activities in this body.<\/span><\/span><\/span><\/p>\n

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It should be reiterated that under Article 186(1) of the Polish Constitution, the National Judiciary Council shall safeguard the independence of courts and judges. According to Article 187 (1) of the Polish Constitution, the National Judiciary Council consists of:<\/span><\/span><\/span><\/p>\n

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    \n
  1. the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and the representative appointed by the President of the Republic;<\/span><\/span><\/span><\/li>\n
  2. 15 judges chosen from the judges of the Supreme Court, common courts, administrative courts and military courts;<\/span><\/span><\/span><\/li>\n
  3. 4 members chosen by the Sejm from its Deputies and 2 members chosen by the Senate from the Senators.<\/span><\/span><\/span><\/li>\n<\/ol>\n

     <\/p>\n

    The aforementioned constitutional provision does not indicate at any point that the fifteen members chosen from among judges of the Supreme Court, common courts, administrative courts and military courts are to be elected by the judicial community itself. Indeed, the National Judiciary Council does not constitute a form of professional self-government (cf. Article 17(1) of the Polish Constitution). Moreover, a bona fide<\/i> interpretation of the cited provision of the Constitution of the Republic of Poland leads to the obvious conclusion that the authors of the constitution deliberately did not specify the method of selecting the fifteen members of the NJC referred to in Article 187(1)(2) of the Constitution of the Republic of Poland, leaving the ordinary legislators the freedom to do so. This was confirmed by the judgments of the Constitutional Tribunal of June 20, 2017 (ref. K 5\/17) and of March 25, 2019 (ref. K 12\/18). Therefore, nothing prevents the current ruling coalition from amending the law on the National Judiciary Council to the extent indicated. In accordance with the lex retro non agit<\/i> rule derived from the principle of a democratic state under the rule of law, such changes could take effect from the next term of office of the designated members of the NCJ. On the other hand, it is impermissible to attempt to force changes in the composition of the NCJ, which is what the resolution adopted by the Sejm of the Republic of Poland is intended to achieve (similarly to the one adopted regarding the public media).<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    3. \u201cTest of Independence\u201d \u2013 a means to  make judges dependent<\/b><\/span><\/span><\/span><\/p>\n

     <\/p>\n

    The reason for the controversy and confusion regarding the issue of the legality of the functioning of the National Judiciary Council is the unfounded claims of opposition politicians and some representatives of the legal doctrine, according to which, after the reforms carried out in 2017 by the then ruling party, this body allegedly lost the attribute of independence.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    The new rules for the selection of part of the NCJ, according to politicians of the then opposition and today\u2019s ruling majority, were carried out in a manner inconsistent with the Constitution. As a result, they claim, the judges appointed by the President with the participation of the NJC, which in their view was inappropriately staffed, did not acquire the status of a judge and the judges promoted in the process must return to their previous positions and take part in new, \u201clegal\u201d competitions. What\u2019s more, some proponenets of the view go even further, calling for the declaration of all verdicts issued with the participation of judges appointed since 2018 as as null and void.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    In this context, there have been proposals, for several years, to introduce a so-called \u201ctest of independence\u201d, which would evaluate more than 2,500 judges appointed to their positions after the change in the rules of the NCJ. This test would allow for \u201cverification\u201d that a given judge meets the requirements of impartiality and independence. The demand for the establishment of a test of independence appeared, among other things, in a recently publicized draft regulation of the Minister of Justice<\/a>.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    Mechanisms that allow for the status of some judges to be questioned by other judges (appointed in an earlier period) based on underdefined criteria constitute a flagrant violation of the guarantees of the independence of judeges and courts. It should be stressed that under Article 178(1) of the Constitution of the Republic of Poland, in the exercise of their office judges are independent and subject only to the Constitution and statutes. In turn, Article 180(1) of the Polish Constitution stipulates that judges are irremovable, which is a fundamental guarantee of judicial independence. This guarantee is therefore extended to judges, i.e., pursuant to Article 179 of the Constitution of the Republic of Poland, persons appointed by the President to the office of judge at the request of the National Judiciary Council. As emphasized in jurisprudence, the appointment of a judge is an act of constitutional law involving the formation of the personnel of the judiciary authority, which constitutes a discretionary decision of the President, falling within the scope of his personal prerogative (decision of the Supreme Administrative Court of December 7, 2017, ref. I OSK 857\/17).<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    The appointment of a judge is a prerogative of the President, and a possible hypothetical defect in the staffing of the National Judiciary Council is not a sufficient basis for challenging the status of judges appointed by the President. This is confirmed by the jurisprudence of the Supreme Administrative Court \u2013 a body whose proper legitimacy has never been questioned and whose judges are not those directly involved in the dispute over the status of judges of common courts and the Supreme Court. All of the cited rulings have been issued after the legal changes to the way in which a part of the National Judicial Council was staffed:<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    \u201cIn view of the previous acts of appointment of judges and assessors of administrative courts from among candidates presented by the National Judiciary Council formed under the new rules, who exercise the administration of justice, and issue judgments on behalf of the Republic of Poland, it is impossible to accept, that the alleged defectiveness of the Council, however it may impact the assessment of the correctness of judicial appointments, is a sufficient premise for declaring the judgments issued by these judges to be null and void or defective. Even if one were to consider that the body submitting the application for appointment in the form of the current National Judiciary Council did not meet the constitutional requirements, it should be recognized that the application was submitted, it was subject to judicial review, and, most importantly, the President of the Republic of Poland, within the authority granted to him, made a substantive assessment of it, appointing the person in question to the position of judge or assessor of an administrative court\u201d \u2013 Ruling of the Supreme Administrative Court of September 15, 2022, ref. III OZ 493\/22.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    \u201eA judge of an administrative court or a judicial assessor in a provincial administrative court, appointed to hold office by the President of the Republic of Poland, is a judge of the Republic of Poland, and a European judge within the meaning of Articles 2 and 19(1) and 6(1)(3) of the Treaty on European Union (Journal of Laws of 2004, No. 90, item 864\/30, as amended) in conjunction with Article 47 of the Charter of Fundamental Rights (Official Journal of the EU C 303 of December 14, 2007, p. 1), as well as Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms drawn up in Rome on November 4, 1950 (Journal of Laws of 1993, No. 61, item 284, as amended), also when the procedure preceding its appointment may have been flawed. In terms of the EU and Convention standards of the right to a court trial, it can be considered that if a judge or judicial assessor who meets the constitutional standards of sovereignty, independence and impartiality sits on the bench of a provincial administrative court, even if he was appointed by the President at the request of the National Judicial Council in the composition formed by the law of December 8, 2017, then such a court should be considered a European court within the meaning of Articles 2 and 19(1) of the Treaty on European Union, Article 6(1)-(3) of the TEU in conjunction with Article 47 of the Charter of Fundamental Rights and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms\u201d \u2013 Rulling of the Supreme Administrative Court of November 16, 2021, ref. III FSK 4255\/21.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    \u201eIf an administrative court judge or a judicial assessor has been appointed to an office by the President of the Republic of Poland, he or she is a judge of the Republic of Poland and a European judge, even if the procedure preceding his or her appointment may have been flawed\u201d \u2013 Ruling of the Supreme Administrative Court, November 4, 2021, III FSK 3626\/21.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    \u201eIn the nomination procedure for judges, the President does not have a mere approving role, but can oppose any nomination in a situation where he considers that the nomination of a person to the position of judge would contradict the constitutional values he was appointed to protect. The power to appoint judges is a personal power of the President, and the Constitution knows of no subjective right of access to judicial service. This prejudges the inability of the administrative courts to exercise control over acts related to such a procedure. In a situation where the President has found no grounds for refusing to appoint a judge, the Supreme Administrative Court, in proceedings to exclude a judge, cannot assess the correctness of the appointment of that judge. The institution of the exclusion of a judge does not serve to control the actions of the President taken within the framework of his constitutional powers set forth in Article 179 and Article 144(2) and (3)(17) of the Constitution\u201d \u2013 Ruling of the Supreme Administrative Court of January 27, 2020, ref. I OSK 1917\/18.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    It follows from the cited jurisprudence, as well as from the content of the Constitution of the Republic of Poland, which is the highest and directly applicable law of the Republic of Poland, that whether a person is a judge is determined solely by the act of appointment by the President. No body has the authority to review presidential competence in the indicated scope. Any attempt to undermine the status of judges appointed by the President constitutes a blatant attack on judicial independence. It would constitute unlawful pressure on a significant portion of Polish judges, while undermining the foundations of the principle of a democratic state ruled by law.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    4. Violation of the independence of the Constitutional Tribunal<\/b><\/span><\/span><\/span><\/p>\n

     <\/p>\n

    The Constitutional Tribunal is a judicial authority with the purpose of, among other things, assessing the compliance with the Constitution of other normative acts and eliminating unconstitutional acts from the legal system. Judges of the Constitutional Tribunal are elected by the Sejm and then take an oath before the President. The government of Donald Tusk, citing rulings of the European Court of Human Rights, which do not constitute sources of law in the Polish legal order, announced that it will question the status of some of the judges of the Constitutional Tribunal and invalidate the rulings issued by them. This is to be done through a resolution of the Sejm, which is an act which also has no universally binding force and as a rule, is not subject to constitutional control. The status of a Constitutional Tribunal judge is regulated by the statute<\/a>, which stipulates that a person elected by the Sejm becomes a judge and assumes an official capacity after taking an oath before the President. From that moment on, a judge of the Constitutional Tribunal becomes independent in the exercise of his or her office and is subject only to the Constitution. The Sejm has no authority to verify the status of a Constitutional Tribunal judge after his taking the oath of office.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    During its first days in office, Donald Tusk\u2019s government has already managed to demonstrate its attitude toward the Constitutional Tribunal in undermining the status of Constitutional Tribunal judges by making an annotation by the the publishing authority (of the Journal of Laws issued by the Prime Minister) to the recent Constitutional Tribunal rulings<\/a> saying \u201cAccording to the judgments of the European Court of Human Rights in the cases of Xero Flor in Poland Sp. z o.o. vs. Poland, dated 7.05.2021, complaint no. 4907\/18; Walesa vs. Poland, dated 23.11.2023, complaint no. 50849\/21; M.L. vs. Poland, dated 14.12.2023, complaint no. 40119\/21, the Constitutional Tribunal is deprived of the characteristics of a tribunal established by statute when an unauthorized person sits in its bench. According to these rulings, the published judgment was issued in a quorum established in violation of the fundamental principle applicable to the election of judges of the Constitutional Tribunal and consequently violating the essence of the right to a court trial established by law\u201d. It should be pointed out that the annotation to the judgments of the Constitutional Tribunal unlawful, because official journals publish acts in the form signed by the authorized entity (here, the judges of the Constitutional Tribunal), and any interference with the content of the text to be promulgated is not permitted, especially without the consent of the authorized entity. Once again, it should be emphasized that Polish law does not provide for the possibility of annotating legal acts and rulings published in the official journal with any kind of annotation, which means that the Article 7 of the Constitution, which stipulates that \u201cThe organs of public authority shall function on the basis of, and within the limits of, the law\u201d, was clearly violated.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    5. Unlawful attack on public media<\/b><\/span><\/span><\/span><\/p>\n

     <\/p>\n

    An unlawful attack on public media took place based on a resolution of the Polish Sejm of December 19, 2023 on the restoration of legal order and the impartiality and integrity of public media and the Polish Press Agency<\/a>. On the same day, the acting Minister of Culture and National Heritage, Colonel Bartlomiej Sienkiewicz, as the body exercising the ownership rights of the State Treasury (which holds 100% of the shares in the Companies), acting under the provisions of the Commercial Companies Code<\/a>, dismissed the existing Chief Executives of the boards of Polish TV (Telewizja Polska S.A.), Polish Radio (Polskie Radio S.A.) and Polish Press Agency (Polska Agencja Prasowa S.A.), as well as the supervisory boards of these companies. The Minister appointed new supervisory boards in their place, which appointed new management boards of the companies. The Minister\u2019s actions were undertaken in violation of statutory provisions.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    The Minister justified his decisions with the provisions of the aforementioned resolution of the Sejm, which called on the State Treasury, represented by the ownership body of the companies carrying out the public mission of radio and television broadcasting and the Polish Press Agency S.A., to take immediate corrective measures to depoliticize the public media until appropriate legislative solutions are enacted and implemented.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    In justifying its decision, the Sejm of the Republic of Poland referred, first, to the failure to implement the Constitutional Tribunal\u2019s December 13, 2016 ruling<\/a> (ref. K 13\/16), erroneously attributing to the ruling that it declared unconstitutional the entrustment of the appointment and dismissal of public media authorities to the National Media Council, while the CT judgment (K 13\/26) regarded depriving the National Broadcasting Council of participation in these processes and transferring these powers to the competent minister<\/b>. Secondly, the resolution pointed to the flawed appointment of the authorities of the companies carrying out the mission of the public media and the Polish Press Agency S.A. following \u201eunconstitutional\u201d amendments to, among others, the Broadcasting Act of December 29, 1992<\/a>, and the Polish Press Agency Act of July 31, 1997<\/a>. It should be pointed out, however, that the provisions of the Act on the National Media Council have so far not been the subject of a Constitutional Tribunal ruling that would overrule them in any respect. Hence, they enjoy the presumption of constitutionality. It should also be recalled that the Sejm does not have the authority to assess the constitutionality of laws \u2013 in the event that MPs are convinced that a particular piece of legislation raises doubts as to its compliance with the Polish Constitution, they should use their powers within the legislative process.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    In response to the unprecedented and misleading resolution of the Sejm, the position was taken by President of the Republic of Poland Andrzej Duda in a letter dated December 20, 2023, addressed to the Prime Minister<\/a>. The President first recalled that the sources of universally binding law are, according to Article 87 of the Constitution<\/a>, the Basic Law, statutes, ratified international agreements and regulations. Since this catalog is closed, resolutions of the Sejm do not constitute acts of universally binding law, i.e., they have no legal force, and no bodies can take action against citizens based on them.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    In addition, the President of the Republic recalled that the body with jurisdiction over the appointment and dismissal of the members of the governing bodies of public broadcasting units and the Polish Press Agency is exclusively the National Media Council (Article 2(1) of the Act of June 22, 2016 on the National Media Council<\/a>). Moreover, the judgment of the Constitutional Tribunal of December 13, 2016, cited in the Sejm\u2019s resolution in question, found only the provisions of the Act of December 30, 2015, amending the Broadcasting Act, to be unconstitutional. It should be noted that the judgment in question did not declare the Law on the National Media Council unconstitutional. Any change in this regard requires the intervention of the legislature and the enactment of new legislation.<\/span><\/span><\/span><\/p>\n

     <\/p>\n

    In the context of the unlawful actions of the Polish Government in preventing the normal functioning of the public media, it should also be pointed out that:<\/span><\/span><\/span><\/p>\n