Former Justice Ministry Deputy Anna Dalkowska appeals to Poland’s Constitutional Tribunal after the Supreme Administrative Court questioned her judicial independence and removed her from a case.
From Deputy Minister to Supreme Court Judge
Anna Dalkowska served as Undersecretary of State in the Ministry of Justice from 2019 to 2021, when Zbigniew Ziobro headed the ministry. In 2022, she was elected by Law and Justice (PiS) MPs to the National Council of the Judiciary (KRS), a body deemed unconstitutional by critics. She joined the Supreme Administrative Court (NSA) in 2021, moving directly from a district court.
She had previously attempted to transfer to the administrative judiciary as early as 2012, when she applied to a provincial administrative court but lost the competition to a court referendary already working in administrative courts. She made another attempt after becoming deputy justice minister under Ziobro and after changes to regulations governing the composition of the judicial section of the KRS. She immediately applied to the NSA’s Financial Chamber, despite having no experience in administrative court proceedings.
Supreme Administrative Court’s Objections
The NSA highlighted these circumstances in its October 7, 2024 decision (case ref. III FSK 605/24), which removed Dalkowska from adjudicating a case. The court noted that while still deputy minister, she had publicly spoken about the legality of the adopted KRS model—statements that contradict EU legal order.
The decision’s reasoning states she was “a member of a group centered around the Minister of Justice implementing his political program, one pillar of which was changing the KRS model.” The NSA also noted that after her appointment to the court, Dalkowska continued as deputy justice minister for nearly two months under Ziobro, seeing “no elementary impropriety or conflict with democratic rule of law standards in combining an executive branch position with serving as an administrative court judge charged with overseeing public administration.”
Constitutional Complaint Filed
This NSA decision prompted Dalkowska to file a complaint with the Constitutional Tribunal. She questions provisions of the law on administrative courts (Journal of Laws 2024, item 1267), which she argues allow a court to examine requests to verify a judge’s independence and impartiality requirements—even when that court itself doesn’t meet these requirements.
Dalkowska specifically refers to panels including judges appointed based on recommendations from the KRS as formed under pre-2017 regulations, as well as judges who question how the KRS is currently constituted. The former deputy minister also argues that judges who served on codification commissions appointed by the Council of Ministers shouldn’t conduct “independence tests,” as they are directly subordinate to the prime minister and justice minister.
Alleged Violation of Right to Court
According to Dalkowska’s complaint, the provisions cited in the NSA decision violate the right to a court through lack of clarity. She challenges Article 5a of the law, which permits examining whether an administrative court judge meets independence and impartiality requirements, considering circumstances surrounding their appointment and subsequent conduct.
“It is impossible through interpretation to identify the concepts of ‘requirements of independence and impartiality,’ ‘circumstances accompanying appointment,’ or ‘conduct after appointment,'” the complaint states. “The lack of precise, clear regulations regarding criteria for meeting independence and impartiality requirements, at least theoretically, combined with the concept of an abstract impartiality test, makes it possible to exclude a judge from any case pending before a court and consequently from effectively administering justice.”
Constitutional Tribunal Panel
The Constitutional Tribunal will sit in a five-member panel. Jarosław Wyrembak will serve as presiding judge, with Stanisław Piotrowicz as rapporteur. The other panel members are Rafał Wojciechowski, Tribunal President Bogdan Święczkowski, and Andrzej Zielonacki.