“We are facing a profound rift among lawyers, not only among judges, the executive branch is trying to influence rulings, and pre-trial detention is still being abused,” Professor Ireneusz Kamiński told Gazeta Polska. A lawyer who served as an ad hoc judge at the European Court of Human Rights in Strasbourg from 2014 to 2016 and a former associate of Adam Bodnar at the Helsinki Foundation for Human Rights, he calls for a constitutional reset and explains that no international tribunal has challenged the status or rulings issued by the “new” judges after 2017.
Professor, for two years now we have been hearing, primarily from politicians but also from some lawyers, that the rule of law needs to be restored in Poland, and there seems to be no end to this process. One of its most important elements is the stability, impartiality, and independence of the judiciary. Do you see any positive changes in this area in recent months?
Unfortunately, we are facing a profound crisis of the justice system. And I would not limit it solely to what is described as the problem of the rule of law, nor to suggestions that the rule of law should be restored in the way it existed ten years ago. Because what happened during the rule of Law and Justice (PiS), that is from 2015 to 2023, was to a large extent a response – and I am deeply convinced of this, having also revised my earlier assessments – to a crisis of the judiciary. I mean the judges’ withdrawal into their own environment. The word “caste” has been used to describe this process, and in my view it accurately reflects the closed nature of the judicial community. This meant a lack of promotion for younger judges, a lack of clear criteria for evaluating their work, and also a closing-off of judges to public perception. The courts were and still are consistently perceived very negatively by society.
This phenomenon was either not noticed or criticism was disqualified as unjustified, or even outright malicious. What happened after 2015, I am inclined to see precisely as a consequence of that criticism, the self-satisfaction of judges, and the lack of what I mentioned earlier – namely, clear, transparent, objective, and understandable criteria for promotion and evaluation by and of judges.
And now it is somewhat better, as we hear from politicians and some judges?
It is even worse, because we are dealing with a profound rift among lawyers, not only among judges. What used to be called caste-like behavior can today be described as the existence of closed and mutually hostile legal clubs. The rift does not concern judges alone, because it is a much broader phenomenon, which I observe with great pain and even terror. We are hostilely divided, we have stopped talking to one another, we do not jointly reflect on what should be done to get out of the collapse of the courts. As a legal community, we are therefore unprepared to engage in a serious discussion, and this is the fundamental problem. Without such readiness, we will not overcome the collapse of the justice system.
What is the cause of this rift among lawyers? Political views, mutual grudges, a desire for revenge, or perhaps a wish to play a greater role in public life?
I am not a judge, so I speak here as an external observer of the crisis of the judiciary, but I see that personal issues sometimes also arise, yet above all there are profound differences related to the fact that judges have been assigned – or have assigned themselves – to certain groups defined in various ways. Partly politically, due to their views and sympathies, but the mechanism is much deeper. And not everyone accepts that the very deep crisis of the Polish justice system and judiciary did not suddenly appear after 2015, but had accompanied the Polish justice system much earlier.
What matters most is citizens’ certainty that they can count on a fair trial, and the fact that dangerous criminals will be convicted. Yet for months we have been dealing with a situation in which final judgments are being overturned. Each time we hear about an “improper panel of judges,” that is, “neo-judges.” Does such a concept exist in law? Can a ruling be challenged under the pretext of questioning a judge’s status if there are no substantive arguments – procedural errors or mistakes in assessing the evidence?
I must admit that I watch with terror when judgments in cases involving extremely serious crimes are overturned solely because a so-called new judge was on the panel. At the same time, I would not trivialize certain legal circumstances related to the appointment of judges after 2015, and even more so after 2017, because we have case law from the European Court of Human Rights and the Court of Justice of the European Union noting defects in that process. However, there is no doubt that these judges have become judges, they adjudicate, and they issue hundreds, and perhaps some already thousands, of judgments. If all these rulings were to be challenged, we would face a true catastrophe. I believe that a strong solution is needed. This is not only my view – more and more people are openly saying that a “constitutional reset” should be carried out.
What would that involve in your view?
It would be carried out under the Constitution, precisely, by introducing a provision into the Constitution – which would, of course, require cross-party agreement, since no one currently has the majority necessary to amend the Basic Law – a step that would cut through the dispute over the appointment of new judges. In short, it would mean deciding that all judges have a uniform status. We therefore need to sit down together and finally think about Poland, not only about particular party interests or the interests of a group of lawyers. And I trust that this can be done, that is, that the dispute can be extinguished by cutting off its sources and starting anew with a constitutionally clean slate.
The “neo-judges” would remain in their positions with full judicial status?
Of course. The provision I propose would confirm that all judges, regardless of whether they received their nomination before 2017 or after, from any president, and thus in accordance with the procedure set out in Polish law, have a uniform status. Then the division into “paleo” and “neo-judges” would end. A constitutional reset would be important in light of European reservations about the rule of law. And it seems to me that it would be accepted by the European Court of Human Rights and the CJEU, because a provision of constitutional rank carries special weight and establishes, at the level of the highest law in the country, a starting point of fundamental importance for subsequent decisions. In summary: an appropriate constitutional provision effecting a reset, adopted with cross-party support by a qualified majority of the Polish parliament, would have to be noticed and accepted by Europe.
In your view, did the CJEU in its judgments actually order Poland to exclude “neo-judges” from adjudicating and to ignore the rulings they issued? This is what some judges from Iustitia claim.
No, the law here is much more subtle, and therefore also less understandable to observers – especially those who lack solid legal training. What both courts expressed – in response to complaints and questions concerning specific cases – comes down to the fact that the presence of new judges on adjudicating panels raises doubts as to the requirement that a court be established by law – that is, lawful. In other words, European tribunals require that the composition of the court reflect the statute. That is all. But this does not in any way affect the assessment of the application of law in an individual case or the status of a judge, because that is a consequence of a presidential decision.
The chaos and violations of norms go even deeper, because decisions are overturned and not only “neo-judges” are ignored. For example, at the end of 2025, Dariusz Łubowski of the Warsaw Regional Court overturned a European arrest warrant issued against Law and Justice (PiS) MP Marcin Romanowski. His decision is not appealable, but the prosecution filed a renewed request for an EAW, and at the same time – as announced by Prosecutor General Waldemar Żurek – the judge was removed from the panel and the legally required random assignment of cases was abandoned, with a judge being appointed manually. Is this not a breaking of spines? Judge Łubowski is an excellent judge. Moreover, he is a “paleo-judge,” so no objections can be raised against him of the kind directed at new judges. What happened around the decision he issued at the Warsaw Regional Court is appalling. It turned out that this judge, whose ruling concerning a Ukrainian man sought by Germany for blowing up the Nord Stream gas pipeline had been praised by Minister Waldemar Żurek and Prime Minister Donald Tusk, and who was considered an excellent judge, is now, after a different ruling, a judge being “flogged” by politicians, especially those from the Ministry of Justice, by the executive branch. In addition, there is a dangerous attempt to produce the expected decision, that is, to issue a European arrest warrant again, when the factual and legal circumstances have not changed.
There is an attempt to produce a different outcome than the one lawfully issued by Judge Łubowski. I do not hide that this is a new phenomenon, difficult even to name. Let us call it forcing another, different decision expected by the executive branch with respect to a final ruling concerning the same facts and charges. We are also touching upon a very important constitutional circumstance, because the executive branch is trying to exert influence over judicial decisions, which is a violation that should be analyzed in the context of the independence of the judiciary from other branches of state power.
The prosecution recently discontinued the thread concerning Romanowski’s detention by the Internal Security Agency in July 2024, despite his immunity stemming from his seat in the Parliamentary Assembly of the Council of Europe. You were one of the few who wrote that the prosecution would have trouble obtaining consent for arrest without lifting immunity. The court then released the MP from the cell. Do you also believe that the services did not exceed their powers, despite illegally undertaken actions, as acknowledged in the investigators’ position?
Indeed, the existence of that immunity – the second one, of the Parliamentary Assembly of the Council of Europe, alongside the domestic one, which I pointed out as one of the few – was confirmed by the Parliamentary Assembly of the Council of Europe. Thus, my view, which in any case stemmed from earlier practice of the Parliamentary Assembly, was correct. MP Romanowski was nevertheless detained before the consent of the Parliamentary Assembly was obtained. This happened despite the immunity of the Parliamentary Assembly of the Council of Europe. For a lawful detention to occur, it was first necessary to apply for the lifting of that immunity and to have it effectively lifted. Outside the immunity of the Parliamentary Assembly, however, I would distinguish at least two legal issues. First, MP Romanowski was unlawfully detained, and for that reason he is entitled to claim compensation. This is a claim he may pursue. The second issue is how the prosecution would be held accountable for that operation of the services. Were the prerequisites for committing a crime met, which could be alleged against the persons issuing the prosecutorial decisions, and even more broadly – also the participants in the entire decision-making process? Would this unlawfulness of the detention translate into the possibility of bringing charges related to abuse of power?
Why, in your opinion, is pre-trial detention abused? The current government announced that it would abandon this preventive measure in favor of non-custodial tools, but in political investigations requests for detention are very often filed.
This is a persistent problem related to the justice system. For ten years I was associated with the Helsinki Foundation for Human Rights as a lawyer dealing with ongoing cases, and I saw that pre-trial detention was used routinely and for long periods. This issue was and is, moreover, of interest to the European Court of Human Rights. We lost cases before it concerning the use of pre-trial detention, which has not changed to this day. Thus, we have hasty court decisions, then often extended – whereas other measures would suffice: bail or police supervision. There is no reason for the most severe measure, namely depriving a person of liberty, to be implemented routinely. This is an ultimate solution, which should be applied only when there are very strong grounds. I still hear about a number of questionable decisions of this type, such as the pre-trial detention of a farmer for pouring manure in protest against the minister of agriculture…
Father Michał Olszewski and female officials of the Ministry of Justice, arrested in the investigation concerning the Justice Fund, were treated below human dignity – as reported by the Ombudsman in his report. The Ombudsman did not agree with the thesis of “torture,” referring to formal premises, but peeping at women in the shower by guards, integrated handcuffs, urinating into a bottle, keeping the lights on in the cell around the clock, and lack of proper medical care cannot be the standard in remand prisons. After the Ombudsman’s report, nothing happened. Public opinion talked about it for several weeks and the topic disappeared; it outraged only one side of the political dispute. Is this how suspects should be treated?
These are examples not only in the discussion about the legitimacy of pre-trial detention of suspects, but also about the manner of treatment in remand prisons or police detention facilities. In the case of Fr. Olszewski and the female officials, acts occurred which, from the perspective of the European Convention on Human Rights and the provisions of Polish law, may be classified as a violation of dignity or ill-treatment. There was also talk of torture, but in the formal-legal sense that is the most serious and most drastic form of ill-treatment, fortunately rare. But prohibited ill-treatment is not limited to acts of torture. Ill-treatment has varying degrees of severity and intensity. Torture is a special torment, caused by the infliction of physical and mental pain. Alongside it, acts of inhuman and degrading treatment of a person are prohibited. I am convinced that what happened to the people we are discussing can be classified as acts reaching the threshold of degrading treatment. That was the Ombudsman’s position. But even if we do not classify certain acts as degrading treatment, there may be a violation of the right to private life. This was the case with the presence of officers of the opposite sex during bathing and physiological activities.
There was also much talk about the scandalous situation of June 2025, when a mother convicted of fraud was transported from her cell to the funeral of her own child, who had died after being transferred by the services to a foster family. The woman was transported in integrated handcuffs and a prison uniform, and that was how she bid farewell to her little son. It later turned out that Magdalena W. could serve her sentence under electronic monitoring, but we do not know the results of the audit in the Prison Service. Was this an example of violating basic civil rights?
The right to privacy was violated. If a convicted woman was brought to a funeral in a prison uniform, marking her out, and integrated handcuffs were used, such circumstances of participation in a funeral ceremony may be categorized as violating the aforementioned right.