The hierarchy of acts of law that is applicable in Poland clearly specifies that the highest ranking act of law is the Constitution of the Republic of Poland, followed by international agreements ratified by the Sejm, and then statutes, and finally lower order executive acts. In turn, the bodies authorized to interpret European Law and the European Convention on Human Rights (ECHR) are respectively the Court of Justice of the European Union (CJEU), the jurisdiction of which has encompassed Poland since 1 December 2014, and the European Court of Human Rights (ECtHR), the jurisdiction of which Poland recognized on 1 May 1993.

In the light of the established case law of the ECtHR (judgments in Reczkowicz v. Poland of 22 July 2021 – application no. 43447/19, Dolińska-Ficek and Ozimek v. Poland of 8 November 2021 – applications no. 49868/19 and 57511/19, Advance Pharma sp. z o.o. v. Poland of 7 February 2022 – application no. 1469/20, Broda and Bojara v. Poland of 29 June 2021 – applications no. 26691/18 and 27367/18, Grzęda v. Poland of 3 December 2015[RO1]  – application no. 43572/18, Juszczyszyn v. Poland – application no. 35599/20, Tuleya v. Poland – applications no. 21181/19 and 51751/20, Pająk and Others v. Poland – applications no. 25226/18, 25805/18, 8378/19 and 43949/19, and Wałęsa v. Poland of 23 November 2023[RO2]  – application no. 50849/21), judgments of the CJEU (judgments of 19 November 2019 in AK in joined cases C-585/18, C-624/18 and C-625/18, judgment of 15 July 2021 in case C-791/19, judgment of the Grand Chamber of the CJEU of 6 October 2021 in case C-487/19, judgment of 16 November 2021 in joined cases from C-748/19 to C-754/19, judgment of 21 December 2023 in case C-718/21), judgments of the Polish Supreme Court (judgment of 5 December 2019, III PO 7/18, OSNP 2020/4/38, the decision of the Supreme Court of 15 January 2020, III PO 8/18, OSNP 2020/10/114, the resolution of the joined Chambers of the Supreme Court of 23 January 2020, BSA I-4110-1/2, and the resolution of 7 judges of the Supreme Court of 7 June 2022 ref. I KZP 2/22), as well as judgments of the Supreme Administrative Court (including the decision of 26 June 2019, II GOK 2/18, the judgment of 11 October 2021, II GOK 9/18 and the judgments in cases II GOK 10/18, II GOK 11/18, II GOK 12/18, II GOK 13/18 and II GOK 14/18, all of 21 September 2021),  because the composition of the NCJ formed by the Act of 8 December 2017 is in conflict with Article 187 of the Constitution, this body does not satisfy the requirements of independence from the executive and legislative authorities. The presumption of independence and impartiality of a judge appointed with the participation of the National Council of the Judiciary, which was politicized in this way, becomes undermined, because his appointment was in gross breach of the basic rules of the procedure for appointing judges.

Over the last few years, both the hierarchy of acts of law and the constitutionally guaranteed checks and balances have been disrupted by the depreciation of the importance of a number of international agreements that are binding on Poland, as well as a substantial weakening of the guarantee of the independence of the judiciary. A number of legislative changes were introduced at that time, which – after disabling the effective constitutional review through the political subordination of the Constitutional Tribunal – were intended, among other things, to undermine the independence of the judiciary by politicizing the procedure of selecting judge-members of the NCJ, politicizing the procedure for selecting court presidents, and giving the Minister of Justice excessively broad personal and procedural powers in disciplinary proceedings. Furthermore, deprived of independence and operating with a defective membership (with the participation of so-called stand-in judges, elected to previously correctly occupied positions), the Constitutional Tribunal issued several judgments questioning the validity of European Union law and the ECHR in Poland, while the amendment to the Act on the Structure of the Ordinary Courts (the so-called “Muzzle Act”) enabled judges to be punished for their judgments which had the objective of implementing standards arising from international agreements that are binding on Poland and the Treaty on European Union (TEU), as well as implementing the judgments of the international tribunals. These tools were used, among others, by initiating groundless disciplinary proceedings against judges who referred to European Union law and the ECHR in their judgments, and clearly had the objective of creating a chilling effect among judges. These factors led to a reduction in the level of protection of civil rights and freedoms, including primarily the right to a fair trial, which should be protected to a similar extent in the light of both Article 45 of the Polish Constitution, as well as the provisions of international agreements that are binding on Poland, including Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 ECHR.

Therefore, as the Minister of Justice, I appeal to the judges to take into account the international law that is applicable to Poland in your adjudicating work and, while interpreting it, take into account the above judgments of the Polish courts and international tribunals, including those regarding the status of the people appointed to judicial positions with the participation of the NCJ, which was  formed by the Act of 8 December 2017, which is a sine qua non condition for guaranteeing the parties the right to a fair trial before an independent and impartial court.

I would also like to draw your attention to the fact that almost 500 cases, which are based on changes in the Acts on the judiciary introduced in recent years, are currently pending before the ECtHR, while several dozen such cases are also being considered by the CJEU. I encourage you to closely follow the rapidly developing case law of the CJEU and ECtHR on the third power, and to take part in training on these issues.                 

 Communication and Promotions Ofice
Ministry od Justice