Polish constitutional court has lost ability to adjudicate lawfully, rules top administrative court

Poland’s constitutional court has lost the ability to adjudicate lawfully because it contains improperly appointed judges who “infect it with unlawfulness”, the country’s top administrative court has found, in the latest ruling against the government’s judicial policies.

The development came in a judgement issued by the Supreme Administrative Court (NSA) on 16 November but only publicly announced today. It concerned a request from the prime minister’s office that the NSA suspend proceedings on a case until it has first been considered by the Constitutional Tribunal (TK).

However, the NSA rejected the application on the basis that the TK contains judges “appointed in violation of the constitution” and who had “taken the place of the properly appointed judges”.

“The presence of incorrectly appointed judges in the composition of the TK means that the entire Polish constitutional court has been somehow ‘infected’ with unlawfulness, and thus has lost the material capacity to adjudicate in accordance with the law,” wrote the NSA in its ruling.

The issue in question relates to the decision by President Andrzej Duda in 2015 to refuse to swear in three TK judges appointed under the previous government and instead to accept three nominees of the new ruling Law and Justice (PiS) party in their places.

In its ruling, the NSA noted that the TK itself in 2015 found those appointments to be invalid as did the European Court of Human Rights last year, when it ruled that the TK is not a “tribunal established by law” because it contains an illegitimately appointed judge.

“There is a high degree of probability that at least one of the so-called ‘doublers’ will be included in the adjudicating panel,” wrote the NSA in its ruling. “In such a situation, suspending proceedings and relying on ‘blind chance’ that perhaps one of the ‘doublers’ will not be in the panel is burdened with too much risk.”

Duda and PiS’s changes to the TK in 2015-16 – which included making Julia Przyłębska, a close associate of PiS chairman Jarosław Kaczyński, chief justice – have led to the widespread perception among experts and the public that the body is now under the effective political control of the ruling party.

PiS denies this, arguing that its appointments were lawful and accusing the opposition, judicial establishment and international bodies of conspiring against it for political reasons.

The case on which the NSA was ruling concerns a long-running dispute over another judicial institution overhauled by PiS, the National Council of the Judiciary (KRS), which is responsible for nominating judges.

Previously, most of the council’s members were chosen by the judiciary itself but PiS changed that system to one in which the majority were picked by politicians. Various rulings by Polish and European courts have found the new KRS to be illegitimate.

The prime minister’s office had tried to keep secret the lists of who had supported new appointees to the KRS. It called on the NSA to hold back from ruling on whether they should be published until the TK had issued a judgement on the issue.

But in its new ruling, the NSA has rejected that request and ordered the prime minister’s office to publish the lists within 14 days. That decision is somewhat moot, however, as the lists were already published by parliament in 2020 after newspaper Gazeta Wyborcza obtained and published one.

Main photo image: Lukas Plewnia/Flickr (under CC BY-SA 2.0)

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.