Poland’s Constitutional Tribunal issued a ruling Thursday concerning the procedures for electing judicial members of the National Council of the Judiciary (KRS).
Tribunal Composition and Background
The case was heard by a five-judge panel of the Constitutional Tribunal, chaired by Judge Stanisław Piotrowicz, a former PiS MP who was a key architect of changes to the National Council of the Judiciary in 2017. Judge Święczkowski served as rapporteur, with Vice-President Bartłomiej Sochański and Judges Jakub Stelina and Rafał Wojciechowski also on the panel.
Selection Process Underway
The procedure for electing judicial members of the KRS for a new term has been ongoing for several weeks. The Sejm Chancellery indicated in early April that the election was preliminarily scheduled for a Sejm session on May 13-15.
Current Regulations and Candidate Nominations
Currently, the Sejm elects 15 judge-members of the KRS from among judges of the Supreme Court, common courts, administrative courts, and military courts for a joint four-year term. A group of 2,000 citizens or 25 practicing judges can nominate candidates, who must be submitted to the Sejm Marshal within 30 days of the start of the selection procedure.
“Plan B” and Judicial Opinions
The Sejm Marshal has publicly announced the nominations of 60 judges as candidates for the KRS. Opinions on these candidates from judicial assemblies across Poland are expected on Monday, April 20th. This was not originally provided for in law but was announced by the ruling authorities as a “Plan B” following the President’s veto of an amendment to the KRS Act that would have restored the election of the KRS’s judicial members by judicial circles.
Unconstitutional Provisions: Justice Ministry Confirmation
The Constitutional Tribunal identified two provisions as unconstitutional. It ruled that the requirement for the Minister of Justice to confirm the status of a judge supporting a KRS candidacy is unconstitutional. The provision stipulated that the Sejm Marshal would request confirmation of the supporter’s judicial status from the Minister of Justice.
Representing the KRS, Anna Dałkowska argued during Thursday’s hearing that this provision allows the Minister to “exclude a candidate with a single action… confirming the lack of judicial status,” potentially preventing their participation in the competition due to the executive branch’s powers.
Separation of Powers Violation
“Entrusting representatives of the executive branch with the exclusive competence in relation to one of the elements of the procedure for selecting members of a constitutional body guarding the independence of the courts and the independence of judges leads to a violation of the principle of separation and balance of powers,” stated President Święczkowski in the justification of the ruling.
Unconstitutional Provisions: Supreme Court Appeals
The Tribunal also deemed unconstitutional the rules regarding the Supreme Court’s review of appeals against the Sejm Marshal’s refusal to accept a KRS candidate’s nomination. While such a decision can be appealed to the Supreme Court, the proceedings are dismissed if the Supreme Court does not rule within three days, making the Marshal’s decision final.
President Święczkowski stated that this regulation “violates the right to a proper shaping of the judicial procedure and the right to obtain a court judgment,” as it does not guarantee a ruling on the merits of the case.
Dissenting Opinion
Judge Stelina filed a dissenting opinion, citing the fact that one of the panel members had been involved in issuing the KRS regulations and played an “above-standard” role, and should therefore have been recused.
Concerns Over Systemic Issues
Judge Dalkowska argued that removing the procedures for selecting judges to the KRS from the legal system will require legislative intervention to meet constitutional standards. She also suggested a “public agreement” between politicians and a specific group of judges, limiting the Sejm’s competence in favor of accepting candidates indicated by those judges.
Sejm Resolution and Publication of Rulings
In a resolution adopted in March 2024, the Sejm stated that considering decisions of the Constitutional Tribunal issued in violation of the law may be considered a violation of the principle of legalism. Since the adoption of that resolution, Constitutional Tribunal rulings have not been published in the Journal of Laws.
Warning from President Święczkowski
President Święczkowski warned that the ruling was issued while the procedure for electing 15 judges to the National Council of the Judiciary is ongoing. He emphasized that the effects of the ruling, effective upon its public announcement, should be considered by all participants in the electoral process, including the Sejm Marshal, the Minister of Justice, MPs, and KRS candidates.
He stressed that conducting the indicated procedure contrary to the effects of the ruling would render it flawed, potentially affecting the validity of the KRS composition resulting from the proceedings conducted using provisions deemed inconsistent with the constitution.
