Constitutional court rulings involving illegitimate PiS-appointed judges not valid, rules Supreme Court

Poland’s Supreme Court (SN) has ruled that judgements made by the Constitutional Tribunal (TK) involving judges illegitimately appointed under the former Law and Justice (PiS) government are invalid.

The SN’s ruling – which confirms similar ones issued by the European Court of Human Rights (ECHR) and Poland’s Supreme Administrative Court (NSA) – could affect a number of major judgements issued by the TK, including the 2020 decision to introduce a near-total ban on abortion.

Sąd Najwyższy podważył moc wyroków Trybunału Przyłębskiej
Wyroki wydane z udziałem dublerów nie mają mocy powszechnie obowiązującej i nie są ostateczne – wynika z orzeczenia powiększonego składu Izby Karnej.https://t.co/5SnCnVJrQD

— Bartosz T. Wieliński 🇵🇱🇪🇺🇺🇦 (@Bart_Wielinski) January 3, 2024

The issue in question dates back to the earliest days of the PiS government in 2015, when President Andrzej Duda, a PiS ally, refused to swear in three judges legally appointed to the TK under the former government and instead appointed in their place three judges nominated by the new PiS-controlled parliament.

Legal experts and various court rulings – including by the TK itself – have found those appointments to have been unlawful. Those illegitimate judges are often referred to in Polish as dublerzy, meaning doubles or stand-ins.

Two of them subsequently died while in office and were replaced by judges also nominated by PiS and appointed by Duda. But those judges have also been deemed illegitimate given that they took up the positions of unlawfully appointed predecessors.

The ECHR has ruled that Poland’s constitutional court is not a “tribunal established by law” as it contains a judge illegitimately appointed by the ruling PiS party and president

It is the first ruling of its kind, and could open the way for further cases https://t.co/oKkvK1yv2f

— Notes from Poland 🇵🇱 (@notesfrompoland) May 7, 2021

In 2021, the ECHR ruled that the presence of the doubler-judges rendered the TK not a “tribunal established by law”. The following year, Poland’s own Supreme Administrative Court likewise found that the TK had lost the ability to adjudicate lawfully because those judges “infect it with unlawfulness”.

Now the Supreme Court has reached the same conclusion. In a ruling issued last month, the court’s criminal chamber said that it “fully agrees with the assessment made by the ECHR” regarding the doubler-judges.

It found that a judgement passed by the TK in December 2022 was issued by a court that “did not include a duly appointed judge, but J[arosław] W[yrembak], who took the position of a judge that had already been filled”.

Wyrembak was appointed to the TK in 2018 in place of Henryk Cioch, one of the original doubler-judges appointed in 2015 but who died in office.

Poland’s constitutional court cannot 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 https://t.co/kN1h0BQGcB

— Notes from Poland 🇵🇱 (@notesfrompoland) December 6, 2022

“The Supreme Court cannot accept a judgment that was issued as a consequence of a violation of the constitution of the Republic of Poland,” wrote the judges in last month’s ruling.

Poland’s new government, which replaced PiS in office last month, also rejects the validity of TK rulings issued with the involvement of doubler-judges. It has already begun adding an annotation to such rulings stating that they were made in violation of provisions on appointing TK judges.

The new ruling coalition has also promised to overturn the near-total abortion ban introduced under a TK ruling made in October 2020. Equality minister Katarzyna Kotula said last month that she hopes this can be done by simply annulling the TK ruling, which was issued with the involvement of doubler-judges.

Last month, the ECHR ruled that the abortion ban violated the rights of a Polish woman because it was issued with the involvement of illegitimately appointed TK judges.

Poland’s near-total ban on abortion violated the rights of a woman who had to travel abroad to obtain an abortion, the European Court of Human Rights has ruled.

It found that the ban was introduced by illegitimately appointed constitutional court judges https://t.co/nPHDZC89u2

— Notes from Poland 🇵🇱 (@notesfrompoland) December 14, 2023

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Main image credit: Sakuto/Flickr (under CC BY-NC 2.0)

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.