Poland’s Constitutional Court has ruled unconstitutional a provision allowing courts to question judges’ impartiality based on appointment circumstances.
TK: Art. 5a of Law on Organization of Administrative Courts Inconsistent with Constitution
In the Tribunal’s opinion, the challenged provision should be considered “constitutionally unacceptable” because it enables abstract questioning of a judge’s impartiality solely based on appointment circumstances or substantive assessment of a final KRS resolution regarding their appointment.
Additionally, according to the TK, judicial practice indicates this mechanism is “practically only used against judges appointed by the president after 2018.”
Background of Judge Dalkowska’s Case
The Tribunal issued Wednesday’s ruling after considering judge Anna Dalkowska’s constitutional complaint, concerning proceedings before the Supreme Administrative Court in 2024. The NSA then dismissed Dalkowska’s appeal – a KRS member and former deputy minister of justice – against the decision to exclude her from hearing one case.
In the exclusion decision, the NSA assessed that her professional advancement was characterized by “an undoubtedly extraordinary situation, where a district court judge, skipping career levels, becomes a Supreme Administrative Court judge immediately, without any experience in administrative cases.”
Impartiality Test Under Constitutional Court Scrutiny
In connection with this case, judge Dalkowska filed a constitutional complaint to declare Art. 5a of the Law on the Organization of Administrative Courts unconstitutional, concerning examination of judges’ impartiality.
On Wednesday, the Tribunal ruled on the unconstitutionality of this provision. Reporter Stanisław Piotrowicz stated it should be assessed as “constitutionally unacceptable” because it enables abstract questioning of a judge’s impartiality solely based on appointment circumstances.
President’s Prerogatives and Equal Access to Public Service
Piotrowicz referred to the constitutional norm regarding citizens’ right to public service on equal terms. In the TK’s opinion, this norm applies to persons already in public service, ensuring opportunity to actually perform their duties.
In the TK’s view, this right consisted of undisturbed service and fulfillment of judicial duties – adjudicating in specific cases pending before the NSA.
Dissenting Opinion and Broader Dispute Over Judges’ Status
The decision was made by majority vote in a five-member panel chaired by judge Jarosław Wyrembak. Reporter Stanisław Piotrowicz, TK President Bogdan Święczkowski, judges Rafał Wojciechowski and Andrzej Zielonacki served on the panel, with Zielonacki filing a separate opinion.
Zielonacki assessed Wednesday’s ruling as “unjustified, both procedurally and substantively,” though he acknowledged the impartiality test “raises his doubts.”
Political Context
Dalkowska’s constitutional complaint was also heard last Thursday. She presented oral grounds for her application and requested expansion of the complaint to encompass the entire Art. 5a. Neither Sejm representatives nor the Prosecutor General attended either session.
In a March 2024 resolution, the Sejm stated that implementing TK decisions issued in violation of law may constitute violation of the principle of legality. The Sejm also recognized that judges Jarosław Wyrembak and Justyn Piskorski are not legitimate Constitutional Tribunal judges.
