The Republic of Poland is governed by the supreme constitutional principle of the separation of powers.[1] It is explicitly expressed in Article 10(1) of the Constitution of the Republic of Poland. The system of the Republic of Poland is to be based on the separation and balance of the legislature, executive and judicial powers. Such a position of the judiciary was formed after the political transformation of 1989. Earlier, in the period of the Polish People's Republic, the principle of uniformity of state power was in force and the courts, in addition to administering justice, were obliged to „protect the achievements of the working people, social property and [...] to guard the people's rule of law”.[2]
The principle of the separation of powers is one of the basic principles characterizing a democratic state ruled by law. It prevents the concentration of power and its appropriation by one political option. The essence of this principle is the division of various functions, tasks and competences among various state authorities.[3] As the Constitutional Tribunal has repeatedly emphasised, the separation of powers means that each of the three branches of government should be assigned competences materially corresponding to their essence, and what is more, each of these powers should maintain a certain minimum of competences which would determine the preservation of this essence. Whereas the legislator – shaping the competences of particular state organs – cannot violate this 'essential scope' of a given authority.[4] Moreover, the Constitutional Tribunal stated that it follows from the principle of the separation of powers that „the legislature, the executive and the judiciary are separated, and moreover, that there must be a balance between them and that they must cooperate with each other. This principle is not of purely organizational importance. The purpose of the principle of separation of powers i.a. is to protect human rights by preventing the abuse of power by any of the organs exercising it”.[5]
The independence of the judiciary is treated as freedom from the intervention of other powers in the performance of judicial functions. It must also be expressed in a sufficient organizational separation. It is noted that the legislature, executive and judicature directly implement the will of the Nation within the scope of their functions, and each of them remains in an equal distance from the subject of sovereign power, which is the Nation. Neither the legislative nor the executive power can influence the administering of justice by the courts. The special position of the judiciary results from Article 10 of the Constitution, but it is particularly emphasised in Article 173 of the Constitution, which establishes the principle of independence and separateness of courts and tribunals.
The constitutionally guaranteed separation of the judiciary imposes on the legislator the obligation to establish specific solutions ensuring the distinctness and independence of the courts from the other branches of government.
All these issues have recently been updated in the context of the provisions allowing the Minister of Justice to dismiss court presidents and vice-presidents before the end of their statutory terms of office.[6] which the current minister has used nearly 80 times by 20 June 2024.
According to the provisions of the Act, the Minister of Justice may dismiss the president and vice-president of a court during the term of office in cases generally specified in the Act.[7] The exercise of this right is conditional on the Minister obtaining a positive opinion from the college of the competent court. If the opinion of the college of the competent court on the dismissal of its president or vice-president is negative, the Minister of Justice may present the intention to dismiss, together with a written justification, to the National Council of the Judiciary (hereinafter: NCJ). A negative opinion of the NCJ is binding on the Minister of Justice if the resolution on this matter was adopted by a two-thirds majority. The failure of the NCJ to deliver an opinion within thirty days from the date on which the Minister of Justice presents his intention to dismiss the president or vice-president of the court does not preclude a dismissal.[8]
The described procedure for dismissing court presidents before the end of their term of office assumes verification of the assessment of the circumstances justifying dismissal by the court body, i.e. the college of the competent court, and by the NCJ only if the college issues a negative opinion. A positive opinion of the college of the competent court opens the way to the dismissal of the president of the court, while a negative opinion makes it necessary to obtain the approval of the NCJ in order to finalise the actions taken by the Minister of Justice. If a positive opinion is obtained from the college of the competent court, the Act provides for the omission of the NCJ in the process of issuing opinions. This circumstance, as well as the introduction of a high qualified majority of the required votes, were noticed by the NCJ, which, in its resolution of 16 February 2024, requested the Constitutional Tribunal to declare these regulations inconsistent with the provisions of the Constitution of the Republic of Poland.[9]
The NCJ argues that the statutory regulation strengthens the role of the executive, i.e. the Minister of Justice, and means that he will be able to influence the decision of the NCJ to a greater extent than by applying the general voting rules. The possibility of dismissing the president or vice-president of a court without an opinion of the NCJ contradicts the idea of control of supervisory decisions over the administration of justice by the NCJ in the procedure for dismissing the president and vice-president of the court, and violates the balance of powers in favour of the executive and legislative powers.
The application submitted by the NCJ seeks to demonstrate that the procedure for dismissing presidents and vice-presidents of common courts by the Minister of Justice thus developed goes beyond the framework of cooperation and balancing of powers outlined in the Constitution of the Republic of Poland, and that this extraordinary procedure violates the constitutional principle of the separation of powers. Pursuant to Article 186(1) of the Constitution, the NCJ is the guarantor of the protection of constitutional values, which primarily constitute the right of citizens to a fair trial (Article 45(1) of the Constitution of the Republic of Poland). Hence, the review of the decisions of the Minister of Justice by the NCJ may not be illusory or lead to excessive influence of the executive or legislative power on the Council's opinions in this area.
In addition, there was pointed out the secondary unconstitutionality of the challenged provisions resulting from the judgment of the Constitutional Tribunal issued in 2004.[10]
In the view of the NCJ, such a formulation of the procedure under Article 27(5a) of the Law on the organisation of the ordinary courts renders that provision inconsistent with Article 10 and Article 173 of the Constitution, as well as with Article 178(1) of the Constitution of the Republic of Poland, because presidents and vice-presidents of courts supervise the judicial activity of courts and perform other tasks of importance for the functioning of the judiciary, including in specific court proceedings.
On 20 June 2024, the first hearing was held in the Constitutional Tribunal in a case brought by the NCJ. The hearing has been adjourned until July 25, 2024, when the verdict is likely to be passed.[11] A declaration of unconstitutionality of the challenged provisions may mean the illegality of the previous actions of the Minister of Justice, who dismissed presidents and vice-presidents of courts en masse.
[1] Art. 10 of the Constitution of the Republic of Poland (Journal of Laws 1997.78.483 of 1997.07.16)
1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.
[2] Article 59 § 1 of the Act of 20 June 1985. The Law on the System of Common Courts (Journal of Laws 1985.31.137 of 1985.07.12) specified the oath of office taken by a judge when taking up his or her position: „"I solemnly swear, in the position of judge entrusted to me, to contribute with all my strength within my scope of activity to the consolidation of freedom, independence and comprehensive development of the Polish People's Republic, to whose fidelity I will always maintain; to guard its political, social and economic system, to protect the achievements of the working people, social property and the rights and interests of citizens protected by law; safeguard the people's rule of law and strengthen the legal awareness of citizens; to fulfill the duties of my office conscientiously, to administer justice impartially according to my conscience and in accordance with the provisions of the law, to observe state and professional secrecy, and to be guided by the principles of dignity, honesty and social justice in my proceedings.”
[3] M. Florczak-Wątor [in:] Constitution of the Republic of Poland. Commentary, ed. II, ed. P. Tuleja, Warsaw 2023, art. 10.
[4] Judgment of the Constitutional Tribunal of 29 November 2005, P 16/04, OTK-A 2005/10/119.
[5] Decision of the Constitutional Tribunal of 9 November 1993, K. 11/93, OTK w 1993/II.
[6] Presidents and vice-presidents of district courts are appointed for terms of office of four years, while presidents and vice-presidents of courts of appeal and regional courts are appointed for terms of office of six years (Article 26 § 1-4 of the Act of 27 July 2001 Law on the System of Common Courts, Journal of Laws 2024.334, i.e. Of 2024.03.08).
[7] Article 27 of the Act of 27 July 2001. Law on the System of Common Courts, Journal of Laws 2024.334, i.e. of 2024.03.08, Journal of Laws 2024.334, i.e. Of 2024.03.08)
§ 1.The president and vice-president of a court may be dismissed by the Minister of Justice during their term of office in the following cases:
1) gross or persistent failure to perform official duties;
2) when the continuation of the function cannot be reconciled with the interests of the administration of justice for other reasons;
3) finding particularly low effectiveness of activities in the field of administrative supervision or organization of work in a court or lower courts;
4) resignation from the function.
[8] Article 27 § 1 - 5a of the Act of 27 July 2001. Law on the System of Common Courts, Journal of Laws 2024.334, i.e. Of 2024.03.08).
[9] Resolution of the National Council of the Judiciary on submitting to the Constitutional Tribunal a request to examine the conformity to the Constitution of the Republic of Poland of Article 27(5) and Article 27(5a), second sentence, of the Act of 27 July 2001 – Law on the Organisation of the Courts p (krs.pl).
[10] The Constitutional Tribunal stated the unconstitutionality of the provisions authorising the Minister of Justice to dismiss the president of a court during his term of office, despite the negative opinion of the NCJ, when the continuation of his functions for reasons other than failure to perform his official duties cannot be reconciled with the interests of the administration of justice (judgment of the Constitutional Tribunal of 18 February 2004, file ref. no. K 12/03).
[11] Documentation of the proceedings before the Constitutional Tribunal, Ref. No. K 2/24, trybunal.gov.pl.
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