One Year After Wałęsa v. Poland

The implementation of judgments issued by the European Court of Human Rights (ECtHR) in cases concerning the protection of the rule of law represents one of the most serious challenges the Polish government currently faces. Because November 2025 marks one year since the ECtHR issued the pilot judgment in Wałęsa v. Poland and December will mark the first anniversary of the appointment of the new government, it is a good moment to reflect on the progress made by the current authorities in implementing ECtHR judgments.

In this post, I assess the government’s efforts to implement the ECtHR’s judgments, focusing exclusively on issues related to the Constitutional Tribunal and irregularities in the composition of the National Council of the Judiciary (NCJ) that affect the legality of judicial appointments. I will argue that, given the current challenging political circumstances, the government cannot be fully blamed for failing to implement the ECtHR’s judgments. Nevertheless, some actions already taken raise questions about whether the government has a coherent plan for restoring the rule of law in accordance with European standards.

The legality of the Constitutional Tribunal’s composition

Both Xero Flor sp. z o.o. v. Poland and M.L. v. Poland underscore the need to ensure the legality of the Constitutional Tribunal’s composition and to regulate the consequences of judgments issued with the participation of improperly appointed individuals. The Committee of Ministers of the Council of Europe has also called for such measures, emphasizing in addition that authorities should “propose measures to prevent external undue influence on the appointment of judges in the future.” While the current ruling coalition has taken some actions to implement the above recommendations of the Committee of Ministers, these fall short of full and effective implementation the ECtHR judgments.

Regarding the legality of the Constitutional Tribunal’s composition, in March 2024, the Sejm adopted a resolution declaring, among other things, that the appointment of three individuals in December 2015 (so-called double judges) was marred by gross legal violations and thus had no legal effect.

However, in practice, these individuals continue to sit on the Constitutional Tribunal and participate in issuing its judgments. The former President of the Tribunal, Julia Przyłębska had no intention of removing these individuals. It is unlikely that her successor, Bogdan Święczkowski, will present different approach. Święczkowski, a former prosecutor and Undersecretary of State in the Ministry of Justice under the PiS government and a candidate from the PiS lists in the 2011 parliamentary elections, has already announced that he is open to reaching a compromise concerning the Constitutional Tribunal, but the boundary of this compromise must be the recognition of the legality of all its judges.

The Venice Commission recommended the adoption of a law that would remove unlawfully appointed persons from all cases and bar them from being assigned new ones. However, the adoption of such a law under the current political circumstances will surely face opposition from the President Andrzej Duda. Moreover, its implementation would still depend on the actions of the President of the Constitutional Tribunal.

It is therefore likely that the issue of improperly appointed judges will remain unresolved until the expiry of their terms (if they can be said to have terms at all), unless gradual personnel or organizational changes within the Tribunal enable their removal from adjudication earlier. The term of office of one of them expired in early December 2024, while the terms of two other improperly appointed individuals will only end on 18 September 2026 and 30 January 2027.

The status of judgments issued by the Constitutional Tribunal

The status of judgments issued by the Constitutional Tribunal with the participation of improperly appointed individuals was addressed in legislation passed in September 2024. This legislation states that judgments issued with the participation of improperly appointed Constitutional Tribunal judges are “void and do not produce the effects specified in Article 190, paragraphs 1 and 3 of the Constitution.” Consequently, these judgments will be considered non-existent, and procedural actions taken in such proceedings are to be redone. Despite the declaration of these judgments as void, final judicial verdicts and administrative decisions in individual cases based on the legal situation shaped by these flawed rulings will remain valid. Recognizing Constitutional Tribunal judgments as non-existent raises serious concerns. It could lead to many complications, especially where such rulings changed the legal status in favor of citizens. For this reason, the legislation has been criticized, including by the OSCE. The Venice Commission also expressed its concerns about the impact of such a law on legal certainty. However, ultimately this legislation has not yet entered into force because the President referred it to the Constitutional Tribunal in preventive review before signing it.

More needs to be done

The Committee of Ministers of the Council of Europe also recommended measures to “prevent external undue influence on the appointment of judges in the future.” Some provisions aimed at achieving this goal are included in the September 2024 Act on the Constitutional Tribunal and a proposed constitutional amendment currently under consideration by the Polish Senate. However, like the legislation regulating the consequences of judgments issued by improperly composed panels, the new Act on the Constitutional Tribunal was referred by the President to the Constitutional Tribunal before being signed. The proposed constitutional amendment primarily aims to remove all current Constitutional Tribunal judges (a measure deemed unacceptable by the Venice Commission) and establish a basis for selecting their successors under a new procedure. However, the chances of its adoption are low, and it can be criticized for not introducing more significant changes to the appointment process that would ensure its depoliticization.

While the ECtHR judgments concern only the issue of rulings made by improperly appointed judges, the crisis surrounding the Constitutional Tribunal is much deeper. Problems include irregularities in the appointment of the current President of the Constitutional Tribunal, manipulation in the assignment of adjudicating panels, and the overall widespread perception of the Tribunal as politicized. Given this situation, the Sejm, in its March 2024 resolution, declared that “violations of the Constitution of the Republic of Poland and the law in the activities of the Constitutional Tribunal have reached a scale that prevents this body from performing its constitutional tasks.” Although this declaration has no legal effects, it led to the government ceasing to publish the Tribunal’s judgments entirely. The ruling coalition also announced that it would not appoint new judges to fill vacancies until the situation in the Tribunal is resolved. Both actions were recently criticized by the Venice Commission. According to the Commission, “Regardless of what the view of the Constitutional Tribunal may be, crippling the Constitutional Tribunal will do little to resolve the constitutional crisis and will only give a different ruling political majority in future arguments to do the same.” The Venice Commission was particularly alarmed by the government’s decision not to publish the Tribunal’s judgments, stating that “allowing the government to control the legal force of a judgment would «egregiously violate the independence of the court and the rule of law».”

The problems with the National Council of the Judiciary

The second area where the authorities must carry out significant reforms to implement ECtHR judgments concerns the composition of the National Council of the Judiciary (NCJ), the status of judges appointed with the participation of a NCJ formed in violation of constitutional and international standards, as well as the status of rulings issued by these judges. This issue was the focus of the aforementioned pilot judgment in Wałęsa v. Poland.

In light of the ECtHR’s case law and the documents of the Committee of Ministers, it is necessary, first, to restore the independence and legality of the NCJ. In July 2024, the Sejm passed legislation aimed at achieving this goal. The law provided for the cessation of the functions of the current 15 judicial members of the Council and their replacement by members elected by the judiciary. This approach was deemed acceptable by both the OSCE and the Venice Commission. More controversial, however, was the exclusion of judges appointed with the participation of the “new” NCJ from eligibility to seek membership in the Council. Despite objections from the Venice Commission, this solution was retained in the final version of the law. However, as with the legislation concerning the Constitutional Tribunal, this law was referred by the President to the Constitutional Tribunal and has not yet entered into force. As a result, the NCJ continues to operate in its current composition, though the Minister of Justice has refrained from announcing new competitions for judicial vacancies, seeking to minimize the negative effects of the current NCJ’s activities.

Two visions for reform

The issue of regulating the status of judges appointed with the participation of the so-called new NCJ is much more complex. For a long time, Polish discussions on this subject have been divided between two visions for reform. The first, proposed by the Association of Polish Judges “Iustitia”, broadly advocated that appointments made on the recommendation of the “new” NCJ should be legally ineffective. Consequently, such appointees (with some exceptions, mainly concerning the “assessors”, that is trainee judges) would return to their positions held before their flawed appointment. This concept, however, faced criticism from organizations such as the Helsinki Foundation for Human Rights, which argued that the ex lege nullification of appointments would conflict with constitutional and international standards. The Foundation suggested that appointees should undergo individualized review procedures before an independent NCJ, which could either confirm their status or request their removal from office or reassignment to lower courts by the Supreme Court. The Minister of Justice leaned toward the Iustitia proposal but suggested dividing judges into three categories and applying disciplinary accountability to those most involved in dismantling the rule of law.

In October 2024, the Venice Commission issued its opinion on this matter. It unequivocally stated that the ex lege nullification of appointments was unacceptable. Instead, judges must undergo “some form of individualized assessment” by a body independent of the government, with the possibility of appeal to a court. The Commission also noted that individualized assessment does not necessarily require separate proceedings for each case, as it is possible to group similar cases and consider them collectively. Currently, work is underway on draft legislation that incorporates the recommendations of the Venice Commission.

To ensure the implementation of ECtHR judgments, it is also necessary to regulate the legal effects of judgments issued by improperly appointed judges. It is clear that such regulations cannot provide for the nullification of all such rulings but should instead introduce appropriate procedures allowing parties to seek retrials in justified cases.

Political obstacles to successful implementation

In Wałęsa v. Poland, the ECtHR gave the government a one-year deadline to take the actions necessary for implementation, suspending its examination of new cases concerning the issues addressed in that judgment. However, in November 2024, it extended this deadline by another year, citing the Polish authorities’ positive shift in attitude toward implementing ECtHR judgments and actions already taken to restore the NCJ’s independence.

Because the ECtHR judgments concerning the rule-of-law crisis remain unimplemented, the Committee of Ministers of the Council of Europe continues to supervise the process of their implementation. In its most recent decisions regarding the execution of judgments on irregularities in the Constitutional Tribunal and the judicial appointment procedure, it welcomed the ongoing legislative works in these areas, but also emphasized the need for further actions.

The lack of full implementation of the Court’s judgments may be partially due to the difficult political conditions under which the current government operates. Resolving the crisis initiated during the PiS government requires the adoption of laws, which must be signed by the President to come into force. However, the current President, Andrzej Duda, contributed to the crisis himself and has shown no interest in cooperating on restoring the rule of law. This is evidenced not only by his decision to refer laws passed by the Sejm in key areas (NCJ, the Constitutional Tribunal) to the Constitutional Tribunal for preventive review but also by his public statements openly opposing any attempts to question the status of judges he appointed.

The current government cannot be blamed for the President’s decisions. Nor can it be criticized for refraining from alternative measures, such as the dismissal of all judges of the Constitutional Tribunal and members of the NCJ via the Sejm’s resolutions. Such actions would not only raise questions about their legality but also risk creating new legal problems and exacerbating legal chaos.

The need for a coherent plan

However, the challenging political situation does not absolve the government of all criticism. Its actions can still be evaluated, particularly the legislation already enacted or proposed, as well as the overall plan for restoring the rule of law. In this respect, both positive and negative aspects can be identified.

On the positive side, the government has unequivocally expressed its intention to implement ECtHR judgments, marking a significant departure from the PiS government’s stance. Furthermore, it has correctly identified the areas requiring reform to comply with ECtHR judgments. Positive developments include efforts to restore the NCJ’s independence and most of the proposed changes to the Constitutional Tribunal’s organization (although this project was developed by civil society groups, namely experts from the Batory Foundation, rather than the government). The decision to seek the Venice Commission’s opinions on NCJ reform, the regulation of improperly appointed judges’ status and laws concerning the Constitutional Tribunal was also a sound move.

However, it is difficult to avoid the impression that the government has yet to develop a coherent plan for addressing the issue of improperly appointed judges. Not only has no draft legislation been presented, but the proposals outlined by the Minister of Justice in September have become largely obsolete following the Venice Commission’s opinion. It remains unclear what form the project, developed by the Codification Commission for the System of Judiciary and Prosecution, will take, especially given that some of its members have previously expressed skepticism toward the idea of individualized assessments of appointments. It is also hard to escape the impression that some legislative initiatives lack thorough analysis of their potential consequences. This is evident in the proposal to declare Constitutional Tribunal judgments issued with improperly appointed judges as void. Setting aside the fact that this law was referred by the President to the Constitutional Tribunal, it is uncertain whether the authorities fully understand its potential effects and are prepared for them. Moreover, the government’s decision not to publish all judgments of the Constitutional Tribunal raises serious doubts about its legality.

Time will tell

Thus, the process of implementing ECtHR judgments in cases concerning the protection of the rule of law is proving to be both complex and time-consuming. More definitive evaluations of this process should wait until the 2025 presidential elections, as only then – assuming the victory of a candidate willing to cooperate in restoring the rule of law – will it be possible to adopt and enforce necessary legislative reforms. However, the adoption of new laws will only mark the first step in implementing the judgments. Further steps will involve enforcing these new regulations, such as reviewing improper appointments, which will also pose significant challenges.