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ECtHR vs. the Polish Constitutional Court: Who Has the Final Word in Warsaw?


On 6 May 2026, the European Court of Human Rights (ECtHR) informed, through the publication of a press release, about the issuance of an “interim measure” in the case of Dziurda and Others v. Poland (application no. 17392/26).[1] According to this press release, we learn that the case concerns four legal professionals who were elected on 13 March 2026 as judges of the Polish Constitutional Tribunal, but who have so far not been allowed to take up their duties. We further learn that the ECtHR requested the Government of Poland to ensure that the applicants are not hindered in taking up and exercising their duties as judges of the Polish Constitutional Tribunal until any further decision is taken on their request for interim measures. The ECtHR also requested the Government to submit, by 20 May 2026, information concerning the applicants’ situation. The applicants submitted their request for interim measures on 30 April 2026 and had until 2 June 2026 to submit a full application under Article 34 of the European Convention on Human Rights (ECHR)[2].

The above-mentioned press release also presented a further element of the factual situation recognised by the ECtHR. In this case, the applicants are Marcin Dziurda, Anna Korwin Piotrowska, Krystian Markiewicz and Maciej Henryk Taborowski. These persons hold Polish citizenship and legal education. On 13 March 2026, the lower chamber of the Polish Parliament elected the aforementioned persons as judges of the Polish Constitutional Tribunal for a nine-year term of office. Pursuant to Article 4(1) of the Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal, “A person elected to the office of judge of the Tribunal shall take the following oath before the President of the Republic of Poland: ‘I solemnly swear that, in the performance of the duties entrusted to me as a judge of the Constitutional Tribunal, I shall faithfully serve the Nation, safeguard the Constitution, and perform the duties entrusted to me impartially and with the utmost diligence.’ The oath may be taken with the addition of the sentence ‘So help me God.’”.[3] In its press release, the ECtHR stated that, since their election, the applicants had unsuccessfully requested the President of the Republic of Poland to allow them to take the oath of office. Ultimately, on 9 April 2026, they took the oath of office before, among others, the Speaker of the Sejm. They subsequently sent a notarised version of the oath to the President of the Republic of Poland. As the ECtHR noted in its press release, “Nevertheless, the applicants have not as yet been allowed to take up their judicial duties as judges of the Constitutional Court”, which is worth quoting verbatim. Additionally, in their request for interim measures, the above-mentioned applicants argued that they had been prevented from taking up and exercising their judicial duties despite their lawful election as judges of the Constitutional Tribunal and the taking of the oath before the Speaker of the Sejm together with the notarised certification of that act. They stated that, as a result, they formally hold the office of judge and their term of office has already commenced, yet they are entirely deprived of the possibility of performing their duties. They indicated that this situation has already produced tangible consequences for their individual legal and professional status, as they resigned from their previous positions. In their view, however, the consequences extend beyond their personal situation, since this state of affairs creates serious threats to the domestic constitutional order and the protection of individual rights and undermines public confidence in the State. In this regard, they also referred to what they consider to be the ongoing rule-of-law crisis in Poland. They relied on Article 6, Article 8 and Article 13 of the ECHR.

On 5 May 2026, the ECtHR decided, in the interests of the parties and in order to ensure the proper conduct of the proceedings before it, to provisionally indicate to the Government of Poland that: “the respondent State should ensure that its competent authorities refrain from hindering the taking up and exercise of judicial duties by the applicants as judges of the Constitutional Court until any further decision on the applicants’ request for interim measures is taken”. In this regard, as stated in the press release, the ECtHR indicated that the decision was taken in the light of the judgment in Xero Flor w Polsce sp. z o.o. v. Poland (application no. 4907/18), as well as due to the importance of ensuring the proper functioning of the Constitutional Tribunal of the Republic of Poland in order to secure the implementation of the principle of subsidiarity (Grzęda v. Poland, application no. 43572/18, § 324).

On 12 May 2026, in case no. K 3/26, the Polish Constitutional Tribunal delivered a Judgment according to which the above-cited Article 4(1) of the Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal, understood in such a way that it imposes on the President of the Republic of Poland an obligation to receive the oath from a person elected by the Sejm of the Republic of Poland as a judge of the Constitutional Tribunal, is inconsistent with Article 126 in conjunction with Article 2 of the Constitution of the Republic of Poland (CRP).[4] According to the press release published after the delivery of that judgment, the mechanism of the oath taken before the President by a person elected by the Sejm as a judge of the Constitutional Tribunal has not been expressly described in the Constitution of the Republic of Poland (CRP)[5]. The Constitutional Tribunal noted that the ordinary legislator nevertheless has the competence to introduce such a mechanism as an element supplementing the procedure specified in the Constitution of the Republic of Poland, where the ordinary legislator made use of that competence by creating the legal norm contained in Article 4(1) of the Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal. The Constitutional Tribunal stated that the competences provided for in that provision should be interpreted from the perspective of the exercise by the Head of State of the competences provided for in the Constitution and other statutes. In this case, the Constitutional Tribunal relied on the reasoning constructed in case no. K 34/15. In that case, it was noted that “in certain exceptional circumstances there may arise situations which, in an objective manner, will require the President to protect a higher value than the immediate fulfilment of the obligation to receive the oath, namely the supremacy of the Constitution (…). The occurrence of an extraordinary, objective and unquestionable situation (…) may result in the principle of protecting the supremacy of the Constitution requiring (…) and justifying an extension of the time for receiving the oath, but only insofar as this is rationally necessary to clarify the doubts”. The Constitutional Tribunal emphasised that Article 4(1) of the Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal refers to the obligation of a person elected to the office of judge of the Constitutional Tribunal to take the oath, and not to an obligation of the President of the Republic of Poland to receive the oath. In the opinion of the Constitutional Tribunal, the President of Poland cannot be obliged to perform and undertake an act automatically at a time that would prevent him from ensuring that it complies with the Constitution of the Republic of Poland. Consequently, the Constitutional Tribunal concluded that the duties of the President of Poland specified in Article 126(1)–(3) of the Constitution of the Republic of Poland may therefore result in the necessity for the President of Poland to refrain from receiving such an oath, nevertheless only in an extraordinary, objective and unquestionable situation.

On 1 June 2026, the President of the Polish Constitutional Tribunal, Bogdan Święczkowski, submitted directly to the ECtHR a position concerning the proceedings Dziurda and Others v. Poland initiated by the application of four persons elected as judges of the Constitutional Tribunal.[6] The Honourable President of the Constitutional Tribunal indicated that the four persons elected as judges did not establish a service relationship with the Constitutional Tribunal and did not commence duties within the Constitutional Tribunal due to the fact that they had not taken the oath before the President of the Republic of Poland in accordance with the requirement set out in Article 4 of the Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal. He also indicated that the service relationship of a judge of the Constitutional Tribunal, pursuant to Article 5 of the same Act, is established upon taking the oath. As noted in the above-mentioned press release, the submission of the position of the Constitutional Tribunal is of significance for the further actions undertaken by the European Court of Human Rights in examining the case of the four persons elected as judges of the Polish Constitutional Tribunal. As was additionally noted, the position of the Government of the Republic of Poland submitted in parallel is entirely contrary to the argumentation expressed by the Constitutional Tribunal in its letter to the Agent of the Minister of Foreign Affairs for proceedings before the European Court of Human Rights.

It is also worth noting that proceedings concerning a competence dispute between the President of the Republic of Poland and the Sejm of the Republic of Poland are currently pending before the Polish Constitutional Tribunal and have yet to be resolved (case no. Kpt 1/26). The main issue in this case is the question whether the recitation by the applicants, in their application to the ECtHR, of the wording of the oath without the participation of the President of the Republic of Poland may produce legal effects in the form of assuming the office of judge of the Constitutional Tribunal. The delivery of the Judgment in this case is currently awaited.

In the opinion of the Author of the Blog, the case of Dziurda and Others v. Poland constitutes another example of tension between the domestic constitutional order and the tendency towards increasingly broad interference by international bodies in the constitutional matters of nation-states. Without prejudging the final decision of the European Court of Human Rights, it should be noted that the subject matter of the dispute concerns above all the interpretation of the provisions of the Constitution of the Republic of Poland and the scope of the constitutional competences of the organs of the Republic of Poland. It appears that these are matters which should remain within the competence of the bodies entrusted by the Polish constitution-maker with the authority to resolve them authoritatively, namely the Polish Constitutional Tribunal, and not the ECtHR. This observation is significant in light of the principle of conferral of competences by sovereign nation-states applicable in international law.

From the perspective of the classically understood principle of the rule of law, respect for the procedures provided for by the applicable provisions acquires particular importance. It appears that, since the legislator provided for an obligation to take the oath before the President of the Republic of Poland, and at the same time proceedings are pending before the Constitutional Tribunal aimed at clarifying the meaning and legal effects of that act, it must be regarded as premature to determine that the persons elected by the Sejm of the Republic of Poland have effectively assumed the office of judge of the Constitutional Tribunal. This will be determined in the awaited ruling of the Polish Constitutional Tribunal as the only body in Poland, in accordance with the provisions of the Constitution of the Republic of Poland, vested with the authority to issue a binding interpretation of the Constitution of the Republic of Poland.

It is worth emphasising at this point that, irrespective of the assessment of the political aspects of the case, the final resolution should be based on the principle of legality, respect for the hierarchy of sources of law provided for in the Constitution of the Republic of Poland, and loyalty to the Constitution of the Republic of Poland as the supreme law of the Republic of Poland. It is also worth emphasising that only the conclusion of the proceedings pending before the Constitutional Tribunal and the European Court of Human Rights will allow for a full assessment of the legal effects of the events under analysis. Until that time, it appears justified, firstly, to maintain appropriate restraint in formulating categorical assessments and, secondly, to respect the constitutional competences of the organs of the State.

What may appear interesting is that the above-mentioned full assessment of the legal effects of the analysed events may be significant not only for the President of the Republic of Poland, but also for the Prime Minister of the Republic of Poland. This is because an analogous situation concerns a group of assessors of administrative courts in Poland who obtained the recommendation of the National Council of the Judiciary, whose appointments were signed by the President of the Republic of Poland, but who cannot assume their functions due to the lack of the countersignature of the Prime Minister of the Republic of Poland required in the case of assessors[7]. 


[2] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) 213 UNTS 221

[3] Act of 30 November 2016 on the Status of Judges of the Constitutional Tribunal (consolidated text: Journal of Laws of 2018, item 1422; Journal of Laws of 2026, item 26).

[4] The Constitution of the Republic of Poland of 2 April 1997, Journal of Laws 1997, No. 78, item 483.

[5] Principles and procedure for electing a judge of the Constitutional Tribunal (https://trybunal.gov.pl/postepowanie-i-orzeczenia/komunikaty-prasowe/komunikaty-po/art/zasady-i-tryb-wyboru-sedziego-trybunalu-konstytucyjnego-4 - last access: 05.06.2026).

[6] The Constitutional Tribunal forwarded its position to the ECtHR regarding four persons elected as judges of the Constitutional Tribunal (https://trybunal.gov.pl/wiadomosci/uroczystosci-spotkania-wyklady/art/trybunal-konstytucyjny-przekazal-etpc-stanowisko-w-sprawie-czterech-osob-wybranych-na-sedziow-tk - last access: 05.06.2026).

[7] A precedent-setting complaint about the prime minister's inaction (https://www.rp.pl/sady-i-trybunaly/art44520191-precedensowa-skarga-na-bezczynnosc-premiera - last access: 06.06.2026).

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