Venice Commission: Poland must uphold principle of irremovability for lawfully appointed judges

In the opinion, the Commission reviewed proposed amendments to Poland's constitution and two draft laws concerning the Constitutional Tribunal. These proposals were submitted for evaluation by Justice Minister Adam Bodnar.

The Sejm (lower house of parliament) passed the laws with Senate amendments in mid-September. President Andrzej Duda subsequently referred them to the Tribunal for preventive review on October 7. Meanwhile, the constitutional amendment process is ongoing in the Senate.

The document, based on reports from experts of the Venice Commission, noted that the proposed constitutional amendment envisions the removal of all current judges of the Constitutional Tribunal, including the three improperly appointed ones. The Commission also observed that the proposed amendments currently have little chance of being adopted.

The Commission highlighted its concern regarding the participation of the three irregularly appointed judges in the Tribunal's decisions. It recommended prioritizing this issue legislatively and asserted that measures should be implemented to prevent these judges from ruling on pending cases or being assigned new ones.

The Council of Europe's advisory body also considered whether a complete overhaul of the Tribunal's composition could be justified. While it recognized the legal rationale for restoring the Tribunal’s legitimate composition and addressing rule-of-law concerns, it underscored the importance of adhering to European standards.

Among these standards is the principle of the irremovability of lawfully appointed judges, the Commission underscored.

It also cautioned that radical measures, even if supported by a constitutional majority, could establish a precedent for future political majorities to undertake similar actions. According to the Commission, such measures might result in instability, as successive parliamentary majorities could potentially reshape the Tribunal at will.

This, it emphasized, could erode judicial independence and create an atmosphere of insecurity among judges.

The Venice Commission highlighted the importance of rebuilding public confidence in Poland’s legal institutions as part of restoring the rule of law. It called for solutions that not only resolve current disputes but also reinforce the long-term stability and credibility of the judiciary.

The opinion from the Venice Commission serves as a reminder that any efforts to reform judicial systems must carefully balance the need for accountability and legality with the principles of independence and adherence to the rule of law.