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The President's Refusal to Appoint Judges

Writer: Konrad Wytrykowski
Konrad Wytrykowski
55 minutes ago
6 min read

On 12 November 2025, President Karol Nawrocki of the Republic of Poland refused to appoint the 46 judges proposed to him by the National Council of the Judiciary. Although the President did not provide a justification for his decision, he publicly stated the reasons behind it:

"I will also not promote those judges who question the constitutional and legal order of the Republic of Poland. Those judges who listen to the evil whispers of the Minister of Justice, Mr. Waldemar Żurek, who encourages judges to question the constitutional and legal order of the Republic of Poland." [...]

"Today, this also affects the lives of our citizens, ordinary people, who cannot receive a fair court judgement that complies with Polish law."[1]

The President's decision not to appoint judges sparked sharp criticism from the Ministry of Justice.

Deputy Minister Dariusz Mazur described the President's decision as "an unacceptable abuse of power, which will result in the politicisation of the judiciary," and described the President's prerogative to appoint judges as "an honorary right to select candidates for senior judicial positions."[2]

Minister Waldemar Żurek stated that the President's prerogative only authorises him "to make nominations, but not to independently decide who is to become a judge." In the minister's opinion, "the appointment of a judge by the President is purely formal and ceremonial in nature; it is not a substantive decision." The President "is usurping the authority to make such decisions, and such decisions are unlawful". The minister also expressed the opinion that "such a decision by the President should be treated as an administrative act and should be subject to judicial review."[3]

Lawyers associated with the executive branch also addressed the issue of the refusal of nominations, arguing that the appointment of judges "is a prerogative of the President of the Republic of Poland, but it has the nature of a ceremonial event. This is a formal matter intended to emphasise the nature of receiving such a nomination," and that "the President does not have the authority to issue a refusal decision. The Constitution does not grant him such authority."[4]

Given such polarised opinions, it is necessary to clarify the actual legal status and nature of the President's authority to appoint judges. Pursuant to Article 179 of the Constitution, judges are appointed by the President of the Republic of Poland at the request of the National Council of the Judiciary, for an indefinite period.

The President's authority to appoint judges is not an 'administrative act' and is therefore not subject to the jurisdiction of administrative courts. According to the doctrine, "assuming that the President of the Republic of Poland acts as a public administration body when shaping the composition of the judiciary would clearly violate the principles of separation and balance of powers, as well as the principle of a democratic state ruled by law. Appointing staff to sovereign bodies, such as judicial bodies that adjudicate on behalf of the Republic of Poland, is not an activity of public administration.'[5]

The President's right to appoint judges is his prerogative arising directly from the Constitution and is considered a personal right of the President, falling within his sphere of exclusive responsibility. By appointing judges, the President invests them with authority on behalf of the nation. As a directly elected body, the President possesses the strongest legitimacy to do so under the Constitution of the Republic of Poland. As the supreme representative of the Republic of Poland and guarantor of the continuity of state authority,[6] the President's democratic mandate is the source of the judicial authority entrusted to a judge upon appointment.[7]

The President's powers in this respect are derived directly from the Constitution of the Republic of Poland and from winning the presidential elections. These powers are an expression of the direct will of the nation, and as such, are his personal prerogative and are not subject to any judicial review, as has been confirmed repeatedly in case law.

Both the Constitutional Tribunal and the Supreme Administrative Court highlighted the direct connection between the President's nominating prerogative and constitutional issues, rather than strictly administrative ones. They therefore unanimously concluded that they were not authorised to review the manner in which this prerogative is exercised, and that the institution of appointing a judge as a prerogative of the head of state should be interpreted as an expression of "acceptance of the independence of the judiciary from the government and its subordinate bodies."[8]

In turn, the Supreme Administrative Court's decision of 7 December 2017[9] emphasised the systemic distinctiveness of the President's office from the state administration.

It stated that the President of the Republic of Poland is not a public administration body, but that his systemic position is defined in the Constitution of the Republic of Poland. Although the Constitution includes the President among the organs of executive power, this does not mean that he belongs to the organs of public administration. The concept of executive power is broader than that of public administration.' The President's nominating powers do not result in the establishment of an administrative legal relationship, and „the competence specified in Article 179 of the National Council of the Republic of Poland is treated as a personal power (prerogative) of the President, as well as a sphere of his exclusive discretion and responsibility”.

It should also be added that the President of the Republic of Poland's exercise of his prerogative to appoint or not to appoint a judge does not require justification, as it is not an administrative decision. In its judgement of 7 December, 2017,[10] the Supreme Administrative Court stated that "there is no administrative legal relationship between the National Council of the Judiciary and the President of the Polish Republic. Acts issued by the National Council of the Judiciary (regarding the submission of a motion to appoint a judge) and by the President (regarding the decision to appoint a judge) constitute the distinct exercise of the competencies of both bodies. The President is not bound by the National Council of the Judiciary's request. In his capacity as head of the Polish state, symbolising the majesty and sovereignty of the state, the President transcends the sphere of administrative activity." Similar positions have also been found in a number of other rulings from various courts.[11]

The view that the competence covered by the prerogative of appointing a judge is of this nature was also expressed in the literature. It was emphasised that the most important element of judges' legal status is their public law relationship with regard to participating in the exercise of judicial power. According to the constitutional principle of the tripartite separation and mutual balance of state power, this should not be approached from the perspective of public administration.[12]

In summary, it should be noted that, under the Polish constitutional order, the President has the right to appoint or refuse the appointment of a judge. The Minister of Justice's misrepresentation of this prerogative demonstrates a lack of basic constitutional knowledge. Furthermore, the destabilising effects on the state of a government member openly disregarding the Constitution and the President's prerogatives must be noted.


 

 

 

 

[5] M. Masternak-Kubiak [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz, ed. M. Haczkowska, Warszawa 2014, art. 179.

 

[6] Art. 126 (1) of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16): The President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority.

 

[7] Judgement of the Supreme Court of 30 January 2020, II DSK 5/19, www.sn.pl/sites/orzecznictwo/Orzeczenia3/II%20DSK%205-19.pdf.

 

[8] Resolution of the Constitutional Tribunal of 23 June 2008, Kpt 1/08, OTK-A 2008, no. 5, item 97; Judgement of the Constitutional Tribunal of 5 June 2012, K 18/09, OTK – A 2012, No. 6, item 63.

 

[9] Resolution of the Supreme Administrative Court of 7 December 2017, I OSK 857/17, LEX No. 2441401.

 

[10] Ibidem.

 

[11] Judgement of the Constitutional Tribunal of 5 June 2012, file reference K 18/09, OTK-A 2012/6/63; resolutions of the Supreme Administrative Court: of 9 October 2012: file reference number I OSK 1872/12, I OSK 1873/12; I OSK 1874/12; I OSK 1875/12, I OSK 1882/12, I OSK 1883/12; I OSK 1890/12, I OSK 1891/12; resolutions of the Supreme Administrative Court of 16 October 2012, reference number I OSK 1870/12, I OSK 1871/12, I OSK 1878/12, I OSK 1879/12, I OSK 1880/12, I OSK 1881/12, I OSK 1885/12, I OSK 1886/12, I OSK 1887/12, I OSK 1888/12; resolutions of the Supreme Administrative Court of 17 October 2012: reference number I OSK 1876/12, I OSK 1877/12, I OSK 1889/12; resolution of the Supreme Administrative Court of 20 March 2013, reference number I OSK 3129/12; judgement of the Supreme Court of 10 June 2009, file reference III KRS 9/08, OSNP 2011/7-8/114.

 

[12] A.Kijowski, Odrębności statusu prawnego sędziów Sądu Najwyższego, Przegląd Sejmowy 2004/1/s. 18; J.Sułkowski, Uprawnienia Prezydenta RP do powoływania sędziów, Przegląd Sejmowy 2008/4/s. 59-60; M. Pilich, glosa do postanowienia SN z dnia 5 listopada 2009 r., sygn. akt I CSK 16/09, Przegląd Sejmowy z 2010/4(99)/s. 217-218, A.Roch, Konstytucyjna problematyka wyboru sędziów do Krajowej Rady Sądownictwa, Prokuratura i Prawo 2021, nr 7-8, s. 162-186, P. Czarny, Realizacja konstytucyjnych kompetencji Prezydenta RP w odniesieniu do sądów i Krajowej Rady Sądownictwa [w:] System rządów Rzeczypospolitej Polskiej. Założenia konstytucyjne a praktyka ustrojowa, pod red. M. Grzybowskiego, Wydawnictwo Sejmowe Warszawa 2006).

 

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