Constitutional Tribunal: discontinuing the selection of judges is inconsistent with the Constitution

The Constitutional Tribunal ruled on Wednesday that the amendment to the regulation of the Minister of Justice regarding the system of random allocation of cases to judges is unconstitutional. Applications to the Constitutional Tribunal in this matter were submitted in October by President Karol Nawrocki and the National Council of the Judiciary.

The case was considered by a three-person panel chaired by the Constitutional Tribunal's vice-president Bartłomiej Sochański with the participation of Constitutional Tribunal judges Michał Warciński (rapporteur) and Wojciech Sych. The ruling was unanimous.

PiS politicians considered this to be the actual abolition of the drawing of squads

The regulation of the head of the Ministry of Justice amending the regulations of courts was announced at the end of September this year. The provision that “the chairman of the division may decide, if there is a need to improve the efficiency of the division's work, that cases heard by a panel of three SLPS judges will be assigned to clerks, and the remaining two members of the panel will be appointed by the chairman of the division in accordance with the principles set out by the president of the court after seeking the opinion of the board of the competent court” was controversial. Critics of the amendment, including: PiS politicians considered this to be a virtual abolition of the selection process and a threat to the impartiality of the courts.

Presenting the reasons for the ruling, Judge Warciński pointed out that the provisions of the amendment to the regulation questioned by the president and the National Council of the Judiciary give the head of the department the competence to appoint judges to adjudicating panels as an alternative to the system of random case assignment. In the opinion of the Constitutional Tribunal, such a solution is inconsistent with the Act, which clearly establishes the principle of random allocation of cases, which is superior to the regulation.

“The minister exceeded his powers”

At the Constitutional Tribunal, the president was represented by prof. Dariusz Dudek, who, presenting the application, emphasized that the Minister of Justice exceeded his statutory powers and violated the principle of legalism enshrined in Art. 7 of the Constitution. In the president's opinion, the regulation, among others, it also went beyond the scope of authorization resulting from the Act – Law on the Organization of Common Courts, because it introduced the possibility of arbitrarily assigning cases to judges, while the Act only provides for a random system.

– This is intended as an attempt to manually control the range of cases and the selection of judges: better and worse. Ours and not ours. Trustworthy and untrustworthy. But whose? Politicians or court management – said prof. Hoopoe.

According to the president, the minister of justice had no right to change the principles set out in the act by means of a regulation. He also believes that the regulation violated the principle of separation of powers because the minister – without a legal basis – interfered with the sphere of the judiciary, which should remain independent. As a result, according to Nawrocki, the articles of the constitution that protect the independence of courts and judges were violated.

Also In its application to the Constitutional Tribunal, the National Council of the Judiciary assessed, among other things, that the Minister of Justice exceeded his statutory authorization. The Council also alleged a violation of the principles of legislation because the ministry changed the regulation without the National Council of the Judiciary having the opportunity to review it. Additionally, according to the National Council of the Judiciary, the regulation is affected by the defect of “secondary unconstitutionality” – due to the failure to take into account last year's judgments of the Constitutional Tribunal, which related to other amendments to the Regulations on the operation of common courts.

Representatives of the Ministry of Justice and the Prosecutor General were absent from the hearing at the Constitutional Tribunal.

Żurek: The idea was to eliminate the risk of judgments issued by nine-legal panels

The matter was addressed on Wednesday evening on Platform X by Deputy Minister of Justice Dariusz Mazur, who noted that the Law on the System of Common Courts in Art. 41 pairs 1 imposes on the Minister of Justice the obligation to issue, by way of a regulation, internal regulations for the operation of common courts. “The procedure requires seeking the opinion of the National Council of the Judiciary – unfortunately, there is no such body, formed in accordance with the Constitution, in our system at the moment,” Mazur wrote.

As indicated by the deputy head of the Ministry of Justice, in these regulations the minister is to define, among others: “manner of selecting cases” and “rules for establishing multi-member panels”. He emphasized that further modifications of the regulations are also the responsibility of the head of the Ministry of Justice. “The exercise of the competences granted by the Act was found by the Peer Tribunal to be inconsistent with the Constitution and… the provision granting this competence!” – said Mazur.

The Deputy Minister of Justice emphasized that “the changes in the regulations in question serve to speed up proceedings” and are “completely rational, transparent and based on the provisions of the Act.”

In response to public criticism of the amendment to the regulation, the head of the Ministry of Justice, Attorney General Waldemar Żurek, pointed out that the change in regulations is intended to eliminate the risk of judgments issued by illegal courts so that citizens can be sure that their case will be heard quickly and by an independent court.

He also added that the system of random allocation of cases, known as “zibrolotka”, caused “chaos in the courts.” The Minister of Justice also pointed out that the changes introduced to the regulations are consistent with the case law of the European Court of Human Rights, according to which a citizen has the right to a court established in accordance with law.

In response to public criticism of the amendment to the regulation, the head of the Ministry of Justice, the Prosecutor General Waldemar Żurek, said that the change in regulations is intended to eliminate the risk of judgments issued by illegal courts so that citizens can be sure that their case will be heard quickly and by an independent court.

He also added that the system of random case assignment, known as “zioblotka”, caused “chaos in the courts”. The Minister of Justice also pointed out that the changes introduced to the regulations are consistent with the case law of the European Court of Human Rights, according to which a citizen has the right to a court established in accordance with law.

In turn, commenting on the president's decision to refer the regulation to the Constitutional Tribunal, Żurek considered it expected. He explained that the solutions he introduced regarding the allocation of cases are intended to increase transparency and enable citizens to control this process. As he emphasized, the new regulations limit the minister's powers to influence the allocation of cases, which – in his opinion – will help reduce the backlog in courts.

The minister also announced a press conference devoted to the principles of random allocation of cases, recalling that his predecessor Zbigniew Ziobro changed these regulations many times – nine times – during his term of office.

Żurek assured that the regulation was consistent with the constitution, but at the same time criticized the current Constitutional Tribunal, describing it as a “shell” acting on political orders. In his opinion, the current composition of the Tribunal is politicized and predictable, and the body itself has lost its importance as a guarantor of the rule of law.

In a resolution adopted in March 2024, the Sejm stated that “taking into account, in the activities of a public authority, decisions of the Constitutional Tribunal issued in violation of the law may be considered a violation of the principle of legalism by these bodies.” Since then, the Constitutional Tribunal's judgments have not been published in the Journal of Laws. From the end of April this year. The Constitutional Tribunal has 11 judges for 15 planned judicial positions. So far, parliamentary clubs – apart from PiS – have consistently failed to propose candidates for Constitutional Tribunal judges. (PAP)

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