Judges dismantle the state

https://doi.org/10.63189/CFDC3488

The 2018¹ change in the method of electing judges – members of the National Council of the Judiciary (NCJ) – has received constant criticism from political and legal circles, particularly the judiciary.

The criticism was all the greater because the amendment ceased the undemocratic selection of judges by other judges and reverted to their election by the Sejm, which comprises deputes elected by universal sovereign and which therefore has democratic legitimacy. Moreover, the Constitutional Tribunal declared the regulation on the election of judges to the NCJ by the Sejm to be constitutional.²

The challenge to the composition of the NCJ, as established by the 2017 Act, amounted to the claim that the NCJ is not a body that is independent of the executive and legislative branches of government and thus ‘is not a body identical to the constitutional body whose composition and method of appointment is regulated by Article 187(1) of the Constitution of the Republic of Poland’.³

This claim has led to the questioning of the independence and impartiality of the judges who have been appointed since 2018. Some opinions have even asserted that these judges are not judges in the sense of the Constitution.⁴

On 3 February, the Commission for the Codification of the Judiciary and the Public Prosecution System⁵ presented two draft laws ‘on the restoration of the right to an independent and impartial court established by the law’. The draft laws are, prima facie, clearly incompatible with the Polish Constitution because they provide not only for the dismissal of judges but also for their compulsory transfer and delegation.⁶

According to public statements made by Commission officials, who are often judges, the dismissal of judges will last until 2030.⁷ This has been criticised by legal circles close to the current government that expect judges appointed since 2018 to be dismissed immediately.⁸

The judiciary is responding to these expectations. At the forefront are politically active judges, who are now acting as modern-day Catos. Without waiting for the Sejm to pass the relevant legislation, the appellate courts and the Supreme Court are massively overturning lower court rulings – without examining them on their merits but merely because a judge who was appointed after 2018 was on the bench when they were issued.

Following the change of political power in Poland, when the “December 13” Coalition⁹ took the reins, the number of verdicts that were overturned owing to the “composition of the court” increased. The prime minister and the minister of justice have been known to publicly question the legitimacy of judicial appointments made since 2018.¹⁰ This has effectively granted free rein to judges who unquestioningly comply with these authorities and readily engage in overturning sentences handed down by judges who were appointed after 2018.

According to data published by the Supreme Court,¹¹ between 2022 and 2024, the Supreme Court overturned appealed judgements and ordered retrials in 155 cases (including 129 cassation judgements) solely owing to the composition of the court that issued the judgements and not on the basis of any objections to their substantive correctness. These judgements were overturned because of the “improper composition of the court”;¹² that is, when they were issued, the composition of the court included a judge who had been appointed after 2018.

Notably, a certain inglorious model of adjudication has been established in such cases. Firstly, the court determined that, consequent to the statutory amendments effected by the Act, the NCJ had ceased to embody the characteristics of a constitutional body, thereby invalidating the presumption that persons appointed by the president of the Republic of Poland to the position of judge, upon the recommendation of such NCJ, satisfy the criteria of independence and impartiality. As stated in one of the judgements, ‘the direct dependence on political power of the decisions made in the procedure of judicial nominations justified the conviction that these appointments may be determined by extra-judicial considerations’.¹³

Following that, the Supreme Court has strenuously looked for circumstances in such cases ‘indicating any potential connection between the judge [...] and the executive power’. The following “crimes” are of concern: endorsement of a list of support for judges – candidates for the NCJ – holding a position in a court, e.g. president or visiting judge, delegation to the Court of Appeal, application for a competition for a judge of the Court of Appeal, participation in the Disciplinary Court, participation in examination commissions related to lawyers’ traineeship, participation in the examination commission for the judicial exam, or holding the position of an election commissioner or delivery of lectures to trainees of the National School of the Judiciary and Public Prosecution.

Emphasising that these are conventional functions and activities that judges have performed for many years within the Polish judiciary is imperative. They result from the provisions of the laws and have never been assessed as discrediting a judge. However, it has been observed that the same functions received from the current executive power are performed by judges who participate in overturning judgements.

Particularly egregious is that verdicts that were subsequently overturned were typically issued for crimes of an exceptionally grave nature for which the common courts imposed exceedingly stringent penalties. In certain instances, the expiration of the statute of limitations occurred as a consequence of the aforementioned overturning of a verdict, thereby precluding the possibility of prosecution of the perpetrators.

As the Supreme Court emphasised in an announcement made on 27 January 2025,¹⁴ several examples of cases of this type that were recently examined in cassation proceedings are worthy of note:

- In a case concerning the crimes of aggravated murder and robbery, the judgement imposing a sentence of 25 years of imprisonment was annulled solely because of the composition of the court, and the case was sent for retrial. The judgement was also annulled with respect to the co-perpetrator, who did not file a cassation appeal.

- A case concerning an organised criminal group in which almost 30 people were accused and the charges included drug-related crimes was subsequently set aside. The final judgement of the Court of Appeal in Warsaw was appealed against in a cassation appeal, which the Supreme Court dismissed as manifestly unfounded. Unfortunately, however, these cassation proceedings were reopened, also owing to the composition of the court, and the judgement was set aside during the retrial. Consequently, criminal liability for a substantial proportion of the crimes became statute-barred, a situation which the Court of Appeal endeavoured to circumvent by implementing specific organisational measures to facilitate the conduct of the case during the course of the COVID-19 pandemic (the hearing was conducted in three courtrooms in parallel).

- In a case concerning, among other things, murder and attempted murder using a car, for which a total sentence of 15 years of imprisonment was imposed, the contested judgement was annulled solely because of the composition of the court, without a substantive examination of the case.

- In a case concerning murder, for which a life sentence was imposed, the contested judgement was annulled solely because of the composition of the court.

- In a case concerning, among other things, causing serious bodily harm that manifested in the form of multiple fractures, haemorrhage, and other head injuries and ultimately resulted in the demise of the affected individual, the contested judgement was overturned solely because of the composition of the court.

None of the cases under discussion were examined by the Supreme Court on the merits.

The annulment of judgements in such cases – which are of great social importance and concern the most serious crimes, often involving criminal groups and drug crimes –– merely based on a negative assessment of the judge’s exercise of his or her powers under the Constitution and laws demonstrates contempt for the legal system.

Judgements of this nature are incompatible with the Polish constitutional order, particularly in light of the universally binding judgement of the Constitutional Tribunal of 2 April 2020 in case U 2/20¹⁵ that declared unconstitutional the so-called resolution of three combined chambers of the Supreme Court, which aimed to establish the grounds for such repeals.¹⁶

The individuals who stand to gain the most from such judicial proceedings are evidently the criminals because they can evade both trial and punishment, or at the very least, delay their conviction in circumstances where the law presumes their innocence. The true victims in such cases are the injured parties and their families, who are compelled to participate in the judicial process and endure protracted periods of waiting for justice to be served.

The collective moral message these stories convey may be encapsulated as follows: on the contemporary sociopolitical landscape of Poland, engaging in illicit activities, such as cocaine trafficking or criminal robbery, has proven to be considered a more valuable endeavour than undertaking the role of a judge, after being nominated, with the participation of the NCJ, and thus becoming figure that attracts a degree of animosity from the country’s legal echelon.

¹ Article 9a Section 1 of the Act of 8 December 2017r (Journal of Laws of the Republic of Poland 2018.3): The Sejm elects from among judges of  the Supreme Court,  common courts, administrative courts and military courts, 15 members of the National Council of the Judiciary for a 4-year tenure. Previously, judges – members of the National Council of the Judiciary – were elected by judges in indirect and curial elections (Article 11 of the Act of 12 May 2011 concerning the National Council of the Judiciary ruling until the 21^st June 2017).

² The judgement of the Constitutional Tribunal of 25 March 2019, K 12/18, OTK-A 2019, no, 17.

³ A few instead of many: decision of the Supreme Court: of 14 March 2024, III KK 430/23, LEX nr 3715960; of 8 February 2024, III KK 471/23,LEX nr 3670345; of 2 June 2022 r., I KZP 2/22, OSNK 2022, z. 6, poz. 22.

⁴ Sędzia Markiewicz o “neosędziach”: nie przysługuje im ochrona konstytucyjna | Polska Agencja Prasowa SA. [Judge Markiewicz on "neo-judges": they are not entitled to constitutional protection | Polish Press Agency SA.].

⁵ Codification Commission of the Judiciary and Public Prosecution System established by the decree of the Council of Ministers of 5 March 2024 (Journal of Laws 2024, item 350).

⁶ Neo-sędziowie propozycje Ministerstwa Sprawiedliwości i Komisji Kodyfikacyjnej (prawo.pl); Projekty "unieważniające uchwały KRS" gotowe w miesiąc (wpolityce.pl). Rządy prawa to nasz wspólny priorytet - Kancelaria Prezesa Rady Ministrów [Neo-judges – proposals of the Ministry of Justice and the Codification Commission (prawo.pl); Drafts “invalidating the KRS resolutions” ready in a month (wpolityce.pl). Rule of law is our common priority – Chancellery of the Prime Minister] - Portal Gov.pl (www.gov.pl).

⁷ Krystian Markiewicz o neosędziach: “Nie stać nas na czekanie” [Krystian Markiewicz on neo-judges: "We cannot afford to wait."].

⁸ Iustitia i autorytety prawnicze wspierają projekt nr 1 Komisji Kodyfikacyjnej - Stowarzyszenie Sędziów Polskich Iustitia. [Iustitia and legal authorities support draft no. 1 of the Codification Commission – Association of Polish Judges Iustitia].

⁹ The “December 13” Coalition includes the Civic Coalition, the Left, the Polish People’s Party and Poland 2050.

¹⁰ Rządy prawa to nasz wspólny priorytet - Kancelaria Prezesa Rady Ministrów [Rule of law is our common priority – Chancellery of the Prime Minister] - Portal Gov.pl.

¹¹ Rośnie liczba spraw karnych, w których dochodzi do uchylenia prawomocnego orzeczenia tylko ze względu na kwestionowanie statusu sędziów powołanych po 2018 r. - Sąd Najwyższy [The number of criminal cases in which final judgments are overturned solely due to the questioning of the status of judges appointed after 2018 is growing – Supreme Court].

¹² Article 439 § 1, point 2 of the Act of 6 June 1997 – the Code of Criminal Procedure (consolidated text: Journal of Laws of 2025, item 46).

¹³ Look at the case: ii kk 262-23-1.pdf.

¹⁴ See endnote no. 11.

¹⁵ The judgement of the Constitutional Tribunal of 20 April 2020 r., U 2/20, OTK-A 2020, no. 61.

¹⁶ Uchwała składu połączonych Izb: Cywilnej, Karnej oraz Pracy i Ubezpieczeń Społecznych Sądu Najwyższego z dnia 23 stycznia 2020 r. - Sąd Najwyższy [Resolution of the combined Chambers: Civil, Criminal, and Labour and Social Insurance of the Supreme Court of 23 January 2020 – Supreme Court].