In accordance with Article 179 of the Constitution, judges are appointed by the President of the Republic of Poland upon the motion of the National Council of the Judiciary (KRS), for an indefinite term, writes Judge Łukasz Zawadzki of the association “Lawyers for Poland” in a commentary for Niezalezna.pl.
The cited constitutional provision applies to judges of common courts (district, regional, and appellate courts), judges of the Supreme Court, and judges of administrative courts. The procedure for evaluating candidates, as well as the substantive requirements for receiving a judicial nomination in the common courts, are defined by the Law on the Structure of Common Courts of 27 July 2001 (Journal of Laws 2024, item 334, consolidated text). For the Supreme Court, the applicable statute is the Law on the Supreme Court of 8 December 2017 (Journal of Laws 2024, item 622), and for administrative courts, the Law on the Structure of Administrative Courts of 25 July 2002 (Journal of Laws 2024, item 1267).
In the past, there were numerous situations in which the Constitutional Tribunal- the judicial body holding a monopoly on reviewing the constitutionality of legal norms-found certain statutes regulating the process of assuming judicial office to be unconstitutional. From the Constitutional Tribunal’s extensive case law, the following conclusions emerge:
• First: The appointment of judges in Poland is a presidential prerogative. The President’s decision cannot be appealed or reviewed in any form by any body, and he is not bound by a positive recommendation from the National Council of the Judiciary. He may refuse to appoint a judicial candidate even if recommended by the Council.
• Second: There are no grounds to challenge the judicial status of persons who participated in a procedurally defective (constitutionally flawed) process, provided they met the statutory requirements for judicial office and received a presidential act of appointment. A presidential prerogative is a constitutionally qualified power belonging exclusively to the President-no one else. The President is not a mere “notary” of the KRS and is bound by his own act of appointment, as well as the acts of appointment issued by his predecessors. He has no authority to remove a judge from office, even one whom he appointed himself.
These conclusions are supported by numerous Constitutional Tribunal rulings, including decisions issued on: 24 October 2007 (case SK 7/06), 29 November 2007 (SK 43/06), 27 May 2008 (SK 57/06), 5 June 2012 (K 18/09), 4 June 2012 (K 18/09), 5 June 2012 (K 18/09), 2 June 2020 (P 13/19), 20 April 2020 (U 2/20), 4 March 2020 (P 22/19), and 23 January 2022 (P 10/19).
Following the 2017 amendment to the Law on the National Council of the Judiciary, democratic oversight of judicial nominations was expanded. Since then, the judicial members of the Council have been elected by the Sejm-the lower house of Parliament, elected in free and direct elections. Before the reform, these judges were selected by what Judge Zawadzki describes as oligarchic judicial circles with no democratic mandate.
As the author notes, the 2017 reform-which expanded democratic accountability-was in fact consistent with demands once advanced by the now-governing Civic Coalition (KO). In its January 2007 program proposal “Deep Transformation of the State,” KO advocated for changes similar to those enacted a decade later by the conservative United Right government. Thus, by challenging the post-2017 KRS and the judges appointed upon its recommendations, today’s ruling majority undermines its own earlier programmatic principles-formulated under the very same Constitution.
Unfortunately, in recent years European tribunals have frequently commented on the legality of Poland’s judicial organization-doing so, Judge Zawadzki argues, in contradiction to their treaty-based mandates. The European Court of Human Rights, operating under the European Convention on Human Rights, may rule on the right to a fair trial (Article 6.1), but this does not authorize it to question the status of Polish judges. The Polish Constitutional Tribunal ruled on 10 March 2022 that Article 6.1 of the Convention, insofar as it allows the ECtHR or domestic courts to assess the constitutionality or legality of Poland’s judicial system and the KRS, is incompatible with Articles 188(1)-(2) and 190(1) of the Polish Constitution (case K 7/21).
Similarly, the Court of Justice of the European Union (CJEU) is tasked with ensuring the uniform application of EU law but has no authority over sovereign competences not transferred to the Union-such as the organization of the judiciary in Poland. This area is not an exclusive, shared, or supporting EU competence (Articles 3, 4, and 6 of the Treaty on the Functioning of the European Union).
Even the Venice Commission, in opinion No. 1206/2024 (12 October 2024), issued at the request of then–Justice Minister Adam Bodnar, ultimately rejected key assumptions behind the proposals advanced by the current government. Contrary to Bodnar’s intentions, the Commission confirmed the unquestionable status of judges appointed after 2017, the impossibility of their mass removal by statute, and the legal validity of judgments they have issued.
The widespread rejection of judges appointed since 2017 by democratically elected Presidents of Poland has, according to Judge Zawadzki, become a persistent tool for undermining the democratic legitimacy of the winners of the 2015 and 2019 parliamentary elections, as well as the presidential elections of 2015, 2020, and 2025.
Such claims come not only from the current left-liberal parliamentary majority but also from two judicial associations-Iustitia and Themis-which, according to media reports, received direct or indirect financing from foreign sources. This has resulted in what the author describes as an alliance between parts of the judiciary and the left-liberal political camp, supported by EU institutions including the CJEU. According to the author, between 2015 and 2023 judges linked to these associations engaged in unprecedented political activism-participating in rallies, events, and even social gatherings with opposition politicians-actions contrary to judicial ethics. Many of these judges have since taken high-ranking positions in the judiciary following purges conducted by recent justice ministers. The head of Iustitia, Judge Krystian Markiewicz, now chairs the Commission for Codification of the Judicial System and the Prosecutor’s Office.
The author is a judge of the Regional Court in Opole and a member of the association “Lawyers for Poland.”