Two Proposals to Re-Establish the Rule of Law

Ten years of judicial politicization: Poland’s legal system in crisis

The crisis surrounding the rule of law in Poland began in 2015. In early October, during the final Sejm session before the elections, the Civic Platform (PO) majority swiftly appointed five successors to soon-to-be-vacant judicial positions in the Constitutional Tribunal. The Constitutional Tribunal of Poland is, inter alia, responsible for reviewing the constitutionality of laws and adjudicating disputes over the division of powers between state authorities. While three of these appointments were legitimate, as the vacancies arose before the newly elected Sejm convened, the remaining two were not set to be vacated until early December and should have been filled by the incoming parliamentary majority. However, President Andrzej Duda, who had assumed office in August, refused to swear in any of the appointed judges. Instead, the newly PiS-dominated parliament appointed five replacements. The two illegally appointed, so-called double-judges were sworn in, however, the President of the Constitutional Tribunal barred them from participating in rulings. In response, the government altered procedural rules and refused to publish the Tribunal’s rulings in the official journal, effectively stripping them of legal force. With additional judicial appointments and the eventual replacement of the Tribunal’s President, the government’s takeover of the Tribunal was effectively completed by 2016.

At the beginning of the same year, then Justice Minister Zbigniew Ziobro took on the role of Attorney General. In 2017, President Duda signed the law on common courts, enabling Ziobro to interfere with the ordinary judiciary; replacing the presidents and vice-presidents of the regional courts. Based on the new law on the National Council of the Judiciary (NCJ), the body, which, according to the Constitution, is supposed to ensure judicial independence, was filled by a PiS majority in the Lower House with PiS loyalists who were then responsible for selecting judges. Due to its illegitimacy, the Council is since referred to as the “neo-NCJ”. With the intention of replacing judges with politically loyal followers, disciplinary proceedings were initiated against inconvenient judges and around two-thirds of the judges in the Supreme Court were forcibly retired.

EU sanctions and the pilot judgment procedure

While there were increasing protests and initiatives by legal professionals in Poland due to these severe constitutional violations, the European Commission and EU member states responded hesitantly. However, judgments of  the European Court of Human Rights (ECtHR) established that the composition of the Constitutional Tribunal is illegitimate and violating Article 6 of the European Convention on Human Rights which guarantees the right to a fair hearing held by an independent and impartial court. Further violations concerning the independence of Polish courts were found in several rulings by the Court of Justice of the European Union (CJEU). Moreover, the CJEU refused to answer a preliminary reference procedure initiated by neo-judges of the Supreme Court’s neo-Chamber of Extraordinary Control, effectively signalling its rejection of their legitimacy as a judicial body. The European Commission, supported by the European Council, finally began withholding funds in 2022 from the Recovery and Resilience Fund and later from the Cohesion Fund, as well as other smaller funds using the new Common Provision Regulation. The disbursement of these funds was now conditional on Poland restoring an independent judiciary in accordance with Article 47 of the Charter of Fundamental Rights, so that expenditures could be independently reviewed by Polish courts. 

The new government from December 2023, led by the Civic Platform, presented a roadmap on how to restore the rule of law and meet the milestones set by the Commission. In response, Poland received all previously withheld funds amounting to €137 billion, after approval by the European Council and the Commission in July 2024. Notably, this was done without the required reforms being implemented, raising questions about why such a decision was made.

Meanwhile, the lack of transparency in Poland’s judicial system continues to deepen. The neo-NCJ has appointed around 3.200 so-called “neo-judges,” whose illegitimate appointments have swung the legality and credibility of the judicial system into question, causing an increasingly chaotic and unpredictable legal environment.

The chaotic legal situation can be illustrated by a recent dispute over party financing. In August 2024, the state Electoral Commission found evidence of misuse of public funds in the financial report of PiS. As a consequence, the Electoral Commission decided that PiS should neither be reimbursed for its 2023 campaign expenses, nor be subsidized with public money for the next three years. PiS then filed a lawsuit at the Supreme Court’s Chamber for Extraordinary Control, which, according to the CJEU and the ECtHR, is improperly constituted and impartial. The chamber ruled in favor of PiS. In response, the Electoral Commission, unsure about how to respond to a judgement by a doubtful court simply conducted a second vote, in which two members abstained, so that the PiS’s financial report was suddenly accepted despite the prior finding of misuse. The finance minister is bound by decisions of the Electoral Commission and responsible for disbursing the funds but would, in doing so, validate an unlawful ruling and a questionable Electoral Commission procedure. In response, he requested the Electoral Commission to vote again and come to an unambiguous decision.

Such situations have prompted Judge Igor Tuleya, known for defending the rule of law, to state that judicial chaos is now even greater than under the PiS government. As legal uncertainty continues to grow, urgent action is required. And a judgment by the ECtHR adds additional pressure.

The ECtHR ruled on November 23, 2023 in Lech Wałęsa v. Poland that the composition of the newly appointed National Council of the Judiciary violated Articles 6 and 8 of the European Convention on Human Rights. Applying a pilot judgment procedure, the Court identified systemic issues underlying these violations and obligated Polish authorities to address them. It ordered the restoration of the NCJ’s independence by ensuring its members are elected by the judiciary itself. Additionally, the Court stressed the need to clarify the status of judges appointed with the involvement of the neo-NCJ and the validity of their rulings. It also emphasized that matters affecting judicial independence must be reviewed by bodies that meet the criteria of an independent and impartial court under the law. Due to an extension granted by the ECtHR, Poland must implement the ruling by November 2025. Currently, approximately 700 cases concerning the right to an independent and impartial tribunal in Poland are pending before the European court.

Two paths to judicial restoration 

Against the background of the looming deadline of the pilot procedure, the Polish government faces a critical challenge of implementing reforms in a way that satisfies both domestic expectations and European standards. The Codification Committee, a specially established body operating at the Ministry of Justice, though as a separate entity from the Minister of Justice or the Council of Ministers, tasked with restoring the rule of law, has now presented two draft laws under the striking title: Law on Restoring the Right to an Independent and Impartial Court Established by Law by Regulating the Effects of the Resolutions of the National Council of the Judiciary Passed in 2018-2025. They present two different approaches to bringing back the rule of law and removing systemic deficiencies. 

Option 1 

The first proposition is reportedly significantly faster. It addresses the issue of neo-judges appointed after 2017 through a parliamentary law (na mocy ustawy/ex lege), enabling a swift and decisive resolution. It is based on the premise that neo-judges are statutory rather than constitutional judges, meaning they are not entitled to constitutional protection or recognition from supranational bodies such as the ECtHR or the CJEU.

Under this approach, judicial appointments made by the neo-NCJ would be deemed invalid ex lege, requiring approximately 1.200 neo-judges, who were promoted through the neo-NCJ, to return to their previously held positions. During a transitional period of up to two years, these judges would be allowed to continue ruling on their current cases, but only as delegated judges. The NCJ would have the authority to revoke their delegation in cases where a judge’s continued adjudication would be incompatible with the perception of the court as an impartial and independent institution.

A newly established, legitimate NCJ would conduct fresh judicial competitions for positions held by judges appointed between 2018 and 2025. Current officeholders would be guaranteed the right to participate in these competitions unless they chose to forgo this opportunity.

Additionally, around 300 individuals who had no prior judicial status before their appointment (e.g., former advocates and notaries) would be required to return to their previous professions or transition into roles as court referendaries. 55 judges appointed to the Supreme Administrative Court and the Supreme Court would be dismissed without the possibility of working on delegation and would return to their previous positions. Under this option, none of the abovementioned neo-judges promoted or appointed by the neo-NCJ are recognized as legitimate and will have no right to appeal their reversal to the Supreme Court.

Meanwhile, around 1.700 so-called “young judges”, former court assessors, notaries, and legal assistants, would have their judicial status confirmed, although they were likewise appointed by the neo-NCJ. This decision is based on the assumption that their appointments were not politically motivated and that the neo-NCJ was their only viable path to becoming judges due to the absence of an independent alternative. As a result, ‘only’ 1.500 judicial positions would require new appointments.

According to this approach neo-judges who knowingly accepted appointments through an unlawful process can be relatively quickly recalled. As a result, the Codification Commission claims that most positions could be filled by the third quarter of 2027. The proposal aligns with public demand for a swift reckoning with the PiS government and a thorough reversal of its judicial policies before a new administration takes office in late 2027.

Option 2 

The second option proposes a slower, more gradual process, focusing on a systematic review of the neo-NCJ’s past decisions. In this approach, instead of the legislature directly annulling these appointments, a newly constituted and legitimate NCJ would reassess previous judicial nominations. All judicial appointments  conducted under the flawed neo-NCJ’s resolutions would be reopened and restarted under the new law.

The reformed NCJ would issue rulings in groups, applying a cohort-based approach to streamline the process for individuals affected by the same legal circumstances. During the verification process, judges appointed under the neo-NCJ would continue serving in their current courts on delegation. However, those in the Supreme Court and the Supreme Administrative Court would have their appointments suspended.  As in the first option, the largest group, the so-called “young judges” would not be affected. Their status would be validated by law, exempting them from the verification process.

It is noteworthy that decisions made by NCJ during this verification process could be appealed to the Labour Chamber of the Supreme Court. Consequently, this approach envisions a longer timeline, as the Minister of Justice would only be able to announce competitions for vacant positions once the appeal process is completed and the NCJ’s rulings are published. The entire review is, according to the Codification Committee, expected to be completed by 2030.

Furthermore, both legislative proposals entail significant changes to the Supreme Court. In addition to removing neo-judges from the court's jurisprudence, extraordinary complaints will be abolished, and two chambers – the Chamber for Extraordinary Control and Public Affairs and the Chamber for Professional Responsibility – will be dissolved. Their responsibilities will be taken over by the proposed Chamber for Labour Law, Social Security, and Public Affairs. Importantly, rulings issued with the participation of neo-judges would generally remain in force. Only cases in which a party previously, formally challenged a ruling based on the questionable status of the judge would be subject to annulment.

How to proceed? Legal opinions about the two proposals

The first, more decisive approach has faced criticism, particularly regarding concerns over its alleged unconstitutionality and the risk of legislative interference in judicial matters. This critique has been strongly voiced by the Venice Commission, the advisory body of the Council of Europe on constitutional matters. While the Venice Commission supports the general direction of both proposals, it has firmly stated that it is inadmissible to declare all decisions of the politically captured neo-NCJ since 2018 invalid by law. Consequently, it has expressed support for the second approach, emphasizing that each case must be individually assessed by an impartial, legally constituted body and that judges facing adverse rulings must have the right to appeal, which would constitute an essential step in implementing the ECtHR judgments.

The Venice Commission disapproves of the idea of reassigning neo-judges through legislative action, arguing that this falls outside the parliament’s competence. It warns that the interference  could violate European legal standards and undermine the principle of separation of powers. At the same time, the Venice Commission stresses that individual reviews must be conducted efficiently and suggests grouping cases to prevent excessive delays — an aspect that invites further discussion on how such grouping should be structured.

Experts of the Non-Governmental Helsinki Foundation for Human Rights in Warsaw demand for both proposals a comprehensive impact assessment to fully understand the reform’s consequences on ongoing legal proceedings. Moreover, the foundation is concerned about the speed of the implementation process. The first option could seriously destabilize the judiciary and lead to its collapse. According to the legislative proposal, approximately 300 judges who transitioned from other legal professions will be demoted, potentially leaving some courts critically understaffed. For example, in the Regional Court in Opoczno, three out of four judges are neo-judges from non-judicial backgrounds — a situation mirrored in numerous smaller courts across the country. The experts further underline that, despite assurances by the Codification Commission, both proposals lack a transparent and concrete timeline.

Additionally, the judicial delegation poses challenges. If 1.200 neo-judges face demotion, there is a significant risk that many will cease adjudicating entirely, weakening an already fragile judiciary. This could result in a legal vacuum as courts grapple with staff shortages and a lack of qualified professionals to enforce and implement judicial rulings.

Apart from these rather pragmatic concerns about the realization of the proposals, legal scholars criticized opinion of the Venice Commission and the Helsinki Foundation.

Kim Lane Schepelle, professor of sociology and international affairs at Princeton University, argues that the Venice Commission, in its recent opinions prioritizes formal legality over substantive judicial independence. This, she contends, effectively legitimizes the judiciary captured by PiS. The Venice Commission now asserts that even improperly appointed judges must be treated as legitimate, as long as their selection followed formal legal procedures. This narrow legalistic perspective marks a shift, as Scheppele argues, and contradicts the Venice Commission’s earlier positions. It makes it politically impossible for the new Polish government to restore judicial independence in line with European standards. She sees this as a dangerous precedent, where legal formalism is used to entrench the consequences of judicial capture rather than rectify them. 

In a similar tone, Wojciech Sadurski, constitutional law professor at Sydney University, criticizes the Venice Commission for failing to recognize that systemic, structural flaws require corresponding systemic solutions. He argues that the Venice Commission's opinion, issued in October 2024, is based on the fundamental misconception that declaring judicial appointments invalid is equivalent to dismissing judges, which the legislature cannot do. He contends that appointments made through an unconstitutional body were legally void from the outset and did not confer legitimate judicial status. Therefore, the Venice Commission in an incomprehensible way advocates for the unnecessary individualized assessment of the neo-judges. It is thereby overly sympathetic to those who willingly advanced through a flawed system and dismissive of those who upheld judicial integrity. Moreover, he distinguishes between the status of neo-judges and the validity of their rulings, emphasizing that parties to legal proceedings should not suffer for past governmental abuses. Given the institutional collapse left by PiS, he argues that solutions must be guided by ethical principles and practical reasoning rather than strict legal formalism.

Conclusion

In conclusion, the two proposals represent an initial step in a long and complex process toward restoring the rule of law in Poland. A significant obstacle remains the current president Andrzej Duda, who regularly announces to use his veto blocking any judicial reform proposed by the new government. The parliament lacks a sufficient majority to overrule his decision. Still, considerable chances remain for a transitional change after the presidential vote, if Karol Nawrocki the PiS-supported president loses.

Yet, the upcoming presidential elections, with the first round in May and the second in June 2025, mark a point where the erosion of the rule of law appears to have come full circle; creating a deadlock with no clear resolution. If the elections were to be challenged at court, the above mentioned Supreme Court’s neo-Chamber of Extraordinary Control — dominated by judges appointed by the neo-NCJ and therefore lacking legality — would be responsible to validate or invalidate the elections. In order to prevent this situation, a special incidental regulation was proposed requiring the 15 longest-serving Supreme Court judges, among them no neo-judges, to oversee the decision instead. Duda was included in the consultation of the bill, though expressed his veto to the proposal on March 10, 2025.

The proposals and the opinions show that various, partly contrary aspects, must be observed to find a legally sound and political possible solution. The first option observes the pressuring need for a swift change, yet it risks severe understaffing and prolonged judicial proceedings. The second proposal carries the possibility that a future government may halt the reform process in 2027, reversing any progress and entrenching the status quo. Regrettably, the Venice Commission has not, on this occasion, proposed a solution capable of addressing the current crisis constructively. A soon to be published opinion of the Office for Democratic Institutions and Human Rights is expected.