on statutory safeguards governing the election of judges of the Constitutional Tribunal, the role of the President of the Republic in the oath-taking process, and other judicial appointments
ATTORNEY-AT-LAW PhD MICHAŁ SKWARZYŃSKI
Law Office
27/6 Narutowicza Street
20-004 Lublin, Poland
www.adw.org.pl tel. 600-500-885 mail: michal.skwarzynski@gmail.com
Bank account with Pekao S.A: 92 1950 0001 2006 0403 3653 0002
Lublin, 29/09/26
OPINION NO. 1294/2026
European Commission for Democracy through Law
(Venice Commission of the Council of Europe)
Ms Marta Cartabia
President of the Venice Commission through Ms Simona Granata-Menghini
Director and Secretary of the Venice Commission
Council of Europe
Avenue de l’Europe
F-67075 Strasbourg Cedex, France
LEGAL AND FACTUAL SUBMISSION
on statutory safeguards governing the election of judges of the Constitutional Tribunal, the role of the President of the Republic in the oath-taking process, and other judicial appointments
Purpose of the submission. This submission provides factual and legal material relevant to Opinion No. 1294/2026 on the powers of the President in the context of the oath-taking of judges of the Constitutional Tribunal and of other judicial appointments. It is not an individual complaint to the Venice Commission. The course of my own candidacy is presented as a documented case study of a procedure whose defects have systemic significance.
I. Requests to the Venice Commission
I respectfully request that the Venice Commission accept this submission and take it into account when preparing Opinion No. 1294/2026. According to the official list of ongoing opinions, checked on 29 September 2026, this is the only opinion currently pending before the Venice Commission that directly concerns Poland. If, however, the issues set out below are separated into a follow-up opinion or another directly related procedure concerning the Constitutional Tribunal or judicial appointments in Poland, I ask the Commission, insofar as its procedural rules permit, to treat this submission as material for that analysis as well.
In particular, I ask the Venice Commission to:
1. assess the President’s power to receive the oath not in isolation, but together with the quality, lawfulness and verifiability of the preceding parliamentary procedure;
2 . obtain from the Sejm of the Republic of Poland and examine the full transcript or verbatim record of Sitting No. 141 of the Justice and Human Rights Committee of 12 March 2026 and, if possible, the complete audiovisual recording of that sitting and the verbatim record of the plenary sitting of 13 March 2026;
3. take account of the fact that the candidates’ hearing ended late in the evening and the vote took place the following day, giving the Committee’s oral report to the plenary particular informational importance; the omission of my candidacy from that report, despite the Committee’s favourable opinion, was not a neutral clerical error and may have deprived the full chamber of knowledge that an opposition-supported civilsociety candidate had passed the Committee’s substantive assessment;
4 . recognise the need for a statutory, transparent, equal and non-arbitrary framework governing the entire procedure for the election of judges of the Constitutional Tribunal, including time limits, supporting documents, verification of eligibility, hearings, the content of the Committee’s opinion, presentation to the plenary, the connection between candidates and specific vacancies, and remedies;
- recommend a mechanism ensuring the pluralism and broad representativeness of the constitutional court, in particular a qualified-majority requirement coupled with a properly designed anti-deadlock mechanism;
- recognise that the President may serve as a keystone of constitutional security: not as a political body empowered to reselect candidates, but as the final constitutional safeguard against an irreversible assumption of office where there are specific, objective and serious doubts concerning the lawfulness of the election, compliance with eligibility requirements, or state security;
- at the same time define strict limits on that role: any postponement of the oath-taking must be exceptional, based on identifiable facts and legal rules, reasoned, proportionate, limited to the time necessary for verification, and subject to prompt legal review;
- . take account of the parallel proceedings in Skwarzyński v. Poland, application no. 27956/26, and Dziurda and Others v. Poland, application no. 17392/26, including the need to preserve the status quo and the rights of all participants in the same procedure without determining the merits on the basis of an interim measure;
- . consider the subsequent election of Maciej Berek as a judge of the Constitutional Tribunal as a further example of the need for objective rules governing verification of qualifications, independence and institutional conflicts;
10. formulate a standard common to every parliamentary majority and every President, irrespective of their political affiliation, so that the law does not legitimise the policy of “Now Us” (“Teraz My”).
II. Scope of the Venice Commission’s current review and the nature of this submission
The Venice Commission’s official website identifies case No. 1294/2026 as an opinion on the powers of the President in the context of the oath-taking of judges of the Constitutional Tribunal and of other judicial appointments. The request was made by the Chairperson of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe. On 15 and 17 September 2026, the Commission held online meetings with, among others, the Chancellery of the President, representatives of the parliamentary majority and opposition, the Ministry of Justice, the Constitutional Tribunal, the National Council of the Judiciary, the Commissioner for Human Rights, civil-society organisations and professional associations. The draft is scheduled for consideration at the plenary session of 9–10 October 2026.
The scope of the opinion does not permit the receipt of the oath to be analysed as an isolated ceremonial act. If the preceding procedure does not provide for statutory verification of the most important eligibility requirements, does not resolve serious information concerning a candidate, does not ensure equal presentation of candidates, and allows one majority to accumulate several vacancies, the question of the President’s role becomes a question about a constitutional safeguard. Conversely, where the parliamentary procedure is lawful, transparent, pluralistic and reviewable, the permissible scope of presidential intervention narrows accordingly. The two levels form a single constitutional system.
The Venice Commission expressly states that it has no mandate to deal with individual complaints. I therefore do not ask it to find a violation of my rights or to alter the result of the vote. I present my own case as a documented test of the rules in operation: a candidate outside the majority’s agreed slate, nominated by opposition MPs, participated in the same hearing and received a favourable Committee opinion, but was then omitted from the Committee’s oral report to the full chamber. That case reveals a systemic gap more accurately than an abstract description.
III. Chronology of the procedure of 12 and 13 March 2026
At Sitting No. 141 of the Sejm Justice and Human Rights Committee on 12 March 2026, eight candidacies for six judicial vacancies were considered. Seven candidates were present. The sitting began at 5.05 p.m. and ended at approximately 9.35 p.m. The verbatim record notes that candidates were notified by email less than twenty-four hours before the sitting, while civil-society organisations that had previously sought to participate were informed that they would be admitted approximately forty minutes before the sitting began. A motion to adjourn was rejected.
Despite those conditions, a lengthy and substantive hearing took place. Candidates answered questions concerning their understanding of the Constitution, the status of the Tribunal, independence, the relationship with European law, judicial terms of office and vacancies. The answers differentiated the candidates and showed whether declared qualifications translated into an ability to address concrete constitutional problems. For that reason, the full record cannot be replaced by the Committee’s decision or a summary notice.
My candidacy was submitted by a group of opposition MPs as a civil-society candidacy. I participated in the hearing, answered questions, and presented my position on the individual nature of nine-year judicial terms, the need to fill vacancies in a timely manner, pluralism and the desirability of candidates capable of attracting broad support. The Committee issued a favourable opinion on my candidacy.
On the following day, 13 March 2026, the sponsoring MP presented my candidacy at the plenary sitting. The Committee rapporteur then reported the Committee’s position and listed the candidates who had received favourable opinions, but omitted my name. At the same time, he expressly mentioned the candidate who had received an unfavourable opinion. Only immediately before the votes did the Marshal of the Sejm state the complete list of candidates who had received favourable opinions, including my name. The vote on my candidacy took place at 1.37 p.m. I received 172 votes in favour, 253 against and four abstentions and was therefore not elected.
I do not contend that my candidacy was never presented, that it was not put to a
vote, or that the Marshal announced an inaccurate list. The complaint is narrower but constitutionally more serious: the Committee rapporteur failed to communicate to the full chamber the complete outcome of the body that had concluded its substantive examination of the candidates only several hours earlier.
IV. Informational effect of omitting the favourable opinion on a civil-society candidate
The substance of this complaint is not formalism about the order in which names were read. The Committee concluded its work late in the evening after more than four hours of hearings. The plenary vote took place in the early afternoon of the following day. Approximately sixteen hours, including the night, separated the end of the hearing from the vote. There were no realistic conditions in which each of the 460 MPs could independently study the entire transcript or recording, the candidates’ answers and the Committee’s voting record.
In those circumstances, the Committee’s oral report performed an essential function for an informed plenary debate. It was the only common communication made to the entire chamber whose natural purpose was to convey, concisely and faithfully, which candidates had passed the Committee’s assessment. In particular, only that report could make all MPs aware of a politically and constitutionally significant fact: a civil-society candidate nominated by the opposition and outside the slate agreed by the majority had received a favourable opinion following a public hearing.
That information could have opened a different debate. MPs could have asked why an opposition-supported candidate had received a favourable Committee assessment; they could have examined his answers, requested a fuller presentation of his arguments, or considered him as a compromise candidate. The very fact that the political division had been crossed at Committee stage could have weakened the assumption that the plenary vote was merely to approve candidates belonging to the governing camp. It cannot now be proved that the result would certainly have been different. A fair-procedure standard does not, however, require certainty of a different outcome. It is enough that the defect deprived the chamber of information reasonably capable of affecting the scope of debate and the manner in which MPs voted.
The Marshal’s later reading of the complete list of favourable opinions, when the chamber was already proceeding to the individual votes, did not restore the lost function of the Committee report. Information delivered at the stage of technical management of voting is not equivalent to presenting the outcome of the Committee’s work at the stage reserved for evaluation and debate. Nor did the earlier presentation of my curriculum vitae by the sponsoring MP replace the information that my candidacy had acquired cross-party legitimacy through a favourable Committee opinion. A curriculum vitae reflects the position of the nominators; the Committee’s opinion records the outcome of parliamentary scrutiny.
The absence of statutory rules governing the minimum content of the report, equal presentation of every candidacy, and the consequences of an inaccurate report allows the result of a substantive hearing to be distorted at the final stage of communication with the electing body. This undermines equal access to public service, transparency, legitimate trust in the State, and the requirement that the Sejm exercise its constitutional power on an informed basis.
V. Absence of a statutory and verifiable selection procedure
The Constitution provides that the Constitutional Tribunal is composed of fifteen
judges elected individually by the Sejm for nine years from among persons distinguished by their knowledge of the law. The Act on the Status of Judges of the Constitutional Tribunal additionally requires a candidate to meet the requirements for appointment as a judge of the Supreme Court or the Supreme Administrative Court. Substantive eligibility requirements therefore exist. The problem is that the legislature has not created a procedure requiring those requirements to be demonstrated uniformly and reliably before the election. Section 2(2) of the Act on the Status of Judges of the Constitutional Tribunal refers the detailed requirements for a nomination and the procedure to the Rules of Procedure of the Sejm. Article 30(2) of those Rules requires a nomination to be accompanied by reasons, information about the candidate and the candidate’s consent to stand. As a general rule, the consent to stand is essentially the only statement required from the candidate. The law does not prescribe a uniform set of documents or declarations made subject to legal responsibility confirming, in particular, a university degree in law, the requisite length of professional experience, full public rights, absence of criminal convictions, irreproachable character, the absence of statutory impediments, conflicts of interest, obligations towards foreign entities, or other risks to independence and security.
This does not mean that the Sejm may lawfully appoint a person without a law degree. It means that the current procedure lacks a sufficient, uniform and prior mechanism designed to prevent such an appointment and to leave an auditable record of verification. In an extreme scenario, the Sejm could in fact adopt a resolution electing a person who did not meet the statutory requirements, and the defect might emerge only after the vote or after that person assumed office. The seriousness of the risk must be assessed not only by its probability but also by the irreversibility of its consequences. A Constitutional Tribunal judge receives a nine-year term and participates in decisions that are final and universally binding.
The same gap concerns national security. The law provides no standard procedure capable of excluding, before an election, serious foreign dependencies or activity on behalf of a foreign intelligence service. I do not allege that any person elected on 13 March 2026 was a spy. I use an extreme but constitutionally rational stress test: would the system be able to establish such a fact, lawfully, confidentially where necessary, and in a reviewable manner before the candidate assumed office? The present framework does not provide a sufficiently clear answer.
The legislation should specify at least the required documents and declarations, the verifying bodies, access to official registers, the candidate’s opportunity to explain discrepancies, protection of sensitive information, the degree to which verification results are public, liability for false declarations, the procedure following the emergence of new information, and a remedy capable of preserving the status quo temporarily. Matters of such constitutional importance cannot depend on ad hoc practices of the Presidium of the Sejm, a committee or parliamentary groups.
VI. The Blue Cards procedure as a test of the missing fact-finding mechanism
During the plenary debate of 13 March 2026, MP Witold Tumanowicz stated that troubling information had been received concerning at least one candidate. He asked whether all candidates satisfied the requirement of irreproachable character and whether it had been verified that none of them had been subject to the “Blue Cards” domesticviolence procedure. This was a parliamentary question and a report of a concern, not evidence that a particular person had committed violence. The commencement of a “Blue Cards” procedure is neither a criminal conviction nor a final determination of responsibility.
For that very reason, the incident should be highlighted as evidence of a procedural gap.
Once serious information emerged, the system should have activated a predetermined process: determine whether it concerned any candidate; distinguish the existence of a procedure from an assessment of conduct; give the candidate an opportunity to explain; protect the data of third parties and alleged victims; and provide the electing body with a verified result rather than a rumour. The vote nevertheless proceeded without any visible statutory mechanism for that verification.
For a constitutional court, the requirement of irreproachable character cannot be either an empty formula or an instrument of insinuation. The lack of a procedure harms both sides: it may admit to office a person who does not meet the standard, or it may unjustifiably destroy a candidate’s reputation. A statutory verification process simultaneously protects institutional credibility, candidates’ rights and the rights of potential victims.
VII. Personal data protection and the mismatch between broad processing and insufficient verification
The selection procedure requires the collection, analysis, publication and retention of candidates’ data. This concerns not only professional curricula vitae but also information about legal views, public activity, affiliations, conflicts of interest and circumstances touching on private life. Article 51 of the Constitution requires the rules and procedure for the collection and disclosure of information by public authorities to be laid down by statute. The GDPR requires a clear legal basis, purpose limitation, proportionality, data minimisation and appropriate safeguards.
The Act on the Status of Judges of the Constitutional Tribunal does not define the categories of data, the purposes and stages of processing, retention periods, publication, access, rectification, protection of special-category data, or the treatment of information about persons considered as potential candidates but ultimately not nominated. A candidate consents to stand but does not make a separate standardised declaration concerning the scope of data publication and is not provided with a statutory account of the full dataprocessing cycle.
I do not contend that consent within the meaning of the GDPR must be the legal basis for processing by the Sejm; a legal obligation or a task carried out in the public interest may provide that basis. In that event, however, the law itself should clearly define the scope, purpose and safeguards. Consent to stand cannot replace the statutory basis for processing. A paradox arises: the State discloses and assesses extensive personal data without a complete protective framework, while at the same time failing to require standard declarations and evidence concerning the elementary conditions for holding office.
VIII. Individual judicial terms, accumulation of vacancies and the risk of institutional capture
Article 194(1) of the Constitution requires judges to be elected individually for nine-year terms. In 2026, a single procedure concerned six vacancies. Candidates were put to separate, successive votes, and I therefore do not describe the process as a single block vote. The defect lies elsewhere: candidates were not linked in advance and unambiguously to specific vacancies, their dates and individual terms, while the prolonged failure to fill vacancies accumulated the power of one majority to shape a substantial part of the Tribunal.
An individual term is not merely a technical statement of the length of office. It is a mechanism that distributes changes in the court’s composition over time and limits the possibility of one election winner taking control of the institution at a single political moment. The deliberate or tolerated accumulation of vacancies, followed by their simultaneous filling, weakens that function. Each vacancy should be identified and filled in due time, and every candidate should know the specific office for which he or she is standing.
Otherwise, the policy of “Now Us” emerges: the previous majority filled the court with its candidates, so the new majority considers itself entitled to fill accumulated seats with its own package. A change of actors does not cure the rule. The constitutional standard must operate in the same way when the majority’s views coincide with mine and when they do not.
IX. Pluralism and representativeness of the constitutional body
The Constitutional Tribunal is not a delegation of parliamentary groups, and its judges cannot represent political parties after their election. It does not follow, however, that the selection procedure may disregard the pluralism of society and the Sejm. The Republic is the common good of all citizens, and a constitutional court should be capable of earning the trust of those who do not support the current majority. Representativeness in the constitutional sense means diversity of professional paths, legal traditions, experience and constitutional outlook, while preserving the complete independence of each judge.
In its 2024 opinion, the Venice Commission reiterated its recommendation that Constitutional Tribunal judges be elected by a qualified majority combined with an effective anti-deadlock mechanism. Such an arrangement compels the search for candidates capable of crossing the boundary of one coalition. My candidacy demonstrated that a substantive hearing may produce a result extending beyond the origin of the nomination: although supported by the opposition, it received a favourable Committee opinion. That made faithful communication of this fact to the full chamber all the more important.
An anti-deadlock mechanism must not reward a party that deliberately refuses dialogue or accumulates vacancies. It should include mandatory and public negotiation stages, a repeated hearing, reasons for rejecting candidates and, where appropriate, a gradually adjusted threshold, but not an automatic return to a simple majority after merely formal conditions have been met.
X. The President as a keystone of constitutional security
The President’s constitutional position does not permit him to be reduced either to a political reviewer of every election by the Sejm or to a notary required to confirm every act irrespective of an obvious defect. Article 126 of the Constitution entrusts the President with safeguarding observance of the Constitution and the sovereignty and security of the State. In the oath-taking process for a Constitutional Tribunal judge, the President may act as a keystone of constitutional security: the point at which a serious and objective defect disclosed before the assumption of office can be held in abeyance for the time needed for its lawful resolution.
That role is particularly important where the Sejm has no statutory procedure for verifying documents, criminal-record status, irreproachable character, actual professional experience, conflicts of interest and counter-intelligence risks. If the State does not systematically verify even basic conditions, completely depriving the President of any ability to respond would create a dangerous gap. In an extreme case, an absolute duty to receive the oath immediately could be understood as requiring admission to office of a person lacking the required qualifications, or a person acting for a foreign state, before any authority had examined credible information. Such automatism serves neither the separation of powers nor national security.
Conversely, the concept of a keystone cannot legitimise an unrestricted veto, a test of political sympathy, or indefinite obstruction of a lawfully elected person. The President should identify the specific legal rule and factual concern, enable prompt clarification, act only for the time reasonably necessary, and respect the outcome of the proper review. The standard must distinguish review of legality and security from a renewed assessment of the merits of a candidate.
In its judgment of 12 May 2026 in case K 3/26, the Constitutional Tribunal held that an interpretation of section 4(1) of the Act on the Status of Judges of the Constitutional Tribunal imposing an absolute obligation to receive the oath from every person elected by the Sejm was incompatible with Article 126 in conjunction with Article 2 of the Constitution. The Tribunal’s communiqué emphasised that the situation must be exceptional, objective and unequivocal and that any delay could last only for the time reasonably necessary to clarify the doubts. Irrespective of disputes concerning the present Tribunal, that reasoning identifies a genuine systemic problem which the Venice Commission should address by a standard capable of surviving changes in institutional office-holders.
XI. Relationship between Dziurda and Others and Skwarzyński v. Poland
On 6 May 2026, the European Court of Human Rights announced an interim measure in Dziurda and Others v. Poland, application no. 17392/26, concerning four persons elected on 13 March 2026. The measure was provisional and, as the Court’s press release expressly stated, did not prejudge either the admissibility or the merits of the application. Protection afforded to one group of participants cannot be interpreted as a final determination of the lawfulness of the entire procedure or as extinguishing the rights of another candidate.
In Skwarzyński v. Poland, application no. 27956/26, and in my subsequent request, I explained that both cases arose from the same procedure, the same Committee and Sejm decisions, and competing claims concerning their effects. I requested joinder under Rule 42 of the Rules of Court, or alternatively coordinated or parallel examination, and, in the further alternative, leave to intervene as a third party. The object is not to deprive the applicants in Dziurda of protection, but to prevent an interim measure concerning one part of the events from effectively determining the rights of a person whose arguments the Court has not yet examined.
Consistency requires preservation of the status quo until the competent bodies have examined both the claims of the elected persons and the complaints concerning unequal treatment, the statutory basis of the procedure, individual judicial terms, verification of qualifications and data protection. Interim protection should prevent irreversible effects, not create them in favour of one side of the dispute.
XII. Legal review cannot be replaced by executive action creating facts on the ground
On 14 July 2026, in connection with a dispute about the participation of some persons elected on 13 March in the General Assembly of Judges of the Constitutional Tribunal, police officers and a prosecutor entered the premises of the Tribunal. I do not claim that physical violence or coercive measures were used. The constitutional significance already lies in the involvement of authorities equipped with coercive and investigative powers in an unresolved dispute concerning the composition of the constitutional court.
On 17 July 2026, the Prime Minister, when asked about the possibility of a forceful takeover of the Tribunal, described the incident as the beginning of the Government’s actions and announced the use of all available means. That statement does not by itself prove that an instruction had been issued or that physical force was planned. In conjunction with the earlier intervention, however, it creates an objective risk that a legal dispute will be determined through faits accomplis before the judicial proceedings and the Venice Commission’s review have been completed.
The legalist argument emphasised in the materials of the Ad Vocem Association remains fully relevant: the police and prosecution authorities should not replace a court in determining an unresolved constitutional issue. The Veritas et Ius perspective, in turn, stresses that the requirement of a tribunal established by law encompasses the integrity of the entire appointment process, not merely the formal existence of a parliamentary resolution. Both approaches lead to the same conclusion: the dispute should be resolved through law and independent review, not by political declarations or institutional coercion.
XIII. Subsequent election of Maciej Berek
On 4 September 2026, the Sejm elected Maciej Berek as a judge of the Constitutional Tribunal by 226 votes, where the required majority was 219. His candidacy was submitted in Sejm Paper No. 3006, and the Justice and Human Rights Committee issued a favourable opinion on 3 September. From 13 December 2023 he had served as a Minister and member of the Council of Ministers, coordinating, among other matters, the legislative process and the Government’s co-operation with Parliament.
A previous political or governmental office cannot automatically disqualify a lawyer. Direct transition from the office of a serving minister to the constitutional court nevertheless requires particularly transparent scrutiny of distance from the executive, potential conflicts and the capacity to sit in cases concerning measures prepared or coordinated by that Government. Election by the governing coalition’s simple majority may create objective concerns about perceived independence, even if it does not prove a personal lack of independence.
The dispute concerning this candidacy also revealed divergent assessments of whether the documents produced sufficiently established the required period of legal practice. The Chancellery of the President questioned the sufficiency of certain certificates, while representatives of the professional association took the opposite view. I do not determine that issue here. The dispute confirms, however, that the required evidence, the method of calculating professional practice and the body competent to conduct final verification should be prescribed by statute in advance rather than developed only after an election.
The legal framework should also regulate the consequences of potential constitutional liability before the Tribunal of State of a person who moves directly from ministerial office to the Constitutional Tribunal. I do not allege that Maciej Berek committed a constitutional offence. I identify a normative conflict: the constitutional model should answer in advance whether and how proceedings concerning earlier governmental activity affect the performance of the office of Constitutional Tribunal judge.
XIV. Other judicial appointments and the need for the same neutral standard
The scope of Opinion No. 1294/2026 also covers other judicial appointments. The material submitted to the Commission should therefore lead to a standard broader than the dispute concerning four oaths. Decisions on appointment, secondment, termination of a secondment or an administrative judicial function should be based on pre-established objective criteria, contain reviewable reasons and avoid creating an appearance of retaliation for standing in an election or expressing legal views.
The submitted materials describe the case of Judge Gudowski: after favourable assessments of his work, the continuation of his secondment was announced, but the decision was subsequently reversed after the results of elections to the National Council of the Judiciary showed that he had received 919 votes as an independent candidate. The sequence of events alone does not prove a retaliatory motive. It does, however, justify questions about objective criteria, documentation of the decision-making process and an effective remedy. A neutral procedure is what makes it possible to distinguish a lawful change of assessment from a political response.
The standard should bind every Minister of Justice, including one who previously sought protection before the European Court of Human Rights. Past experience of a violation does not create immunity from the duty to act lawfully. The rule of law consists in applying the same rules to opponents and allies.
XV. European standard of a tribunal established by law and integrity of the appointment process
In Guðmundur Andri Ástráðsson v. Iceland, the Grand Chamber of the European Court of Human Rights held that the right to a tribunal established by law encompasses the judicial appointment process and that an alleged violation must be assessed by reference to the manifest nature and gravity of the breach, the object of the rule violated and the effectiveness of domestic review. In Xero Flor w Polsce sp. z o.o. v. Poland, the Court applied that standard to the Constitutional Tribunal. These judgments do not establish that every procedural error automatically invalidates an election. They do establish that essential appointment rules must be real, foreseeable and enforceable.
Parliamentary involvement in the election of constitutional judges is not in itself contrary to the Convention. A political body may exercise an appointment power where the law limits arbitrariness and ensures substantive assessment, pluralism, transparency and effective responses to serious defects. The danger arises when the majority simultaneously determines the practice, controls the timetable, accumulates vacancies, elects its own slate and decides which information from the hearing reaches the full chamber.
These principles accord with the arguments attributed in the available materials to Veritas et Ius and Ad Vocem: the former perspective emphasises the integrity of appointments, pluralism and the tribunal-established-by-law requirement; the latter stresses legality, the prohibition on replacing judicial proceedings with executive action and the need not to determine the merits through an interim measure. This submission combines both approaches in a single procedural model.
XVI. Minimum model for reform
In my submission, the Venice Commission should recommend that legislation, rather than only the Rules of Procedure of the Sejm or parliamentary practice, prescribe at least the following elements:
- precise identification of each vacancy, the date on which it arose, and the individual judicial term for which the candidate is nominated;
- reasonable time limits for nomination, publication of documents, civil-society participation, the hearing and MPs’ consideration of the outcome, which cannot be shortened arbitrarily;
- a uniform set of documents and declarations concerning legal education, professional experience, public rights, criminal-record status, irreproachable character, conflicts, dependencies and statutory impediments, backed by liability for false statements;
- a proportionate integrity and security-vetting procedure protecting classified information, candidates’ rights and third-party data;
- clear rules for responding to information such as the assertion concerning a “Blue Cards” procedure: verification, a hearing, distinction between suspicion and established fact, and no vote before the necessary checks have been completed;
- statutory rules on personal-data processing, including scope, legal basis, purpose, publication, retention, access, rectification and safeguards for sensitive data;
- a public hearing governed by equal rules, with an opportunity for questions from the majority, opposition, Commissioner for Human Rights, professional associations and civil society;
- a duty to adopt and promptly publish a complete, candidate-specific Committee opinion setting out its essential reasons;
- a minimum required content for the plenary report and a duty to present every candidacy equally, including an unambiguous statement of the result of the Committee’s assessment;
- sufficient time between publication of the Committee materials and the plenary debate for all MPs to consider them genuinely;
- a qualified-majority requirement and an effective anti-deadlock mechanism that does not reward obstruction;
- a legal remedy capable of examining a serious procedural violation before irreversible effects occur;
- an exceptional, reasoned and time-limited power of the President to postpone receipt of the oath where there is an objective concern about legality or security, coupled with immediate referral for appropriate review;
- a prohibition on using the police, prosecution authorities or other executive instruments to determine a person’s status in practice before the proper proceedings have ended.
XVII. Conclusions
The dispute over oath-taking is the consequence of an earlier gap. The Sejm may vote on a candidate for the most important constitutional court although the law does not require a coherent package of evidence and declarations concerning legal education, professional experience, criminal-record status, irreproachable character, conflicts and security. The candidate principally submits consent to stand. At the same time, the Sejm processes and publishes extensive candidate data without a complete statutory framework protecting those data. The proportions are reversed: the system provides neither sufficient verification of eligibility for office nor sufficient protection of the individual.
The “Blue Cards” issue demonstrates the defect particularly clearly. Serious public information emerged concerning the statutory standard of irreproachable character, but the law did not provide a process for verifying it. The information must not itself be treated as a judgment. Nor may the electing body pretend that no clarification is required. Only a prior, statutory and impartial process protects the Tribunal, the candidate and potential victims at the same time.
My candidacy revealed another dimension of the same arbitrariness. Following a lengthy hearing, the Committee issued a favourable opinion on a civil-society candidate nominated by the opposition. The sitting ended late in the evening and the vote took place the next day. MPs had no realistic opportunity to study the full material independently. The oral report was therefore the only common moment at which the full chamber could learn that a candidate outside the majority’s slate had received a favourable Committee assessment. Omitting that candidacy may have closed off a debate that could otherwise have included consideration of a compromise candidate. I do not claim that the result would certainly have been different. I submit that the Sejm was deprived of information reasonably capable of influencing its decision.
In such an under-regulated system, the President serves as a keystone of constitutional security. The President cannot become a political competitor of the Sejm, but neither should he be compelled to receive an oath automatically in the face of an objective, serious and unresolved defect. This applies both to lack of qualifications and to an extreme threat to national security, including credible information that a person is acting for a foreign intelligence service. Any postponement must be exceptional, reasoned, proportionate, time-limited and reviewable.
A pluralistic constitutional court will not be created by replacing one group of “our” judges with another. The “Now Us” policy produces successive cycles of delegitimisation. The solution is a procedure that requires agreement beyond the governing majority, protects individual judicial terms, treats candidates equally, discloses the complete outcome of their assessment and prevents any institution from creating irreversible facts before review is complete.
I therefore renew my request that the Venice Commission examine the full transcript or verbatim record of Sitting No. 141 of the Justice and Human Rights Committee of 12 March 2026. It is not sufficient to read the list of candidates and the voting results. The candidates’ answers, the manner in which the hearing was conducted, the objections raised, the timing of notifications, the outcome of the Committee’s assessment and the subsequent plenary report are necessary to determine whether the procedure was genuine, transparent, substantive and equal.
The Venice Commission can propose a solution that is not a victory for either side in the present dispute, but a protection for future majorities, oppositions, Presidents, candidates and citizens. Only a standard neutral as to names and the current political alignment can rebuild trust in the Constitutional Tribunal as a common institution of the Republic.
Michał Skwarzyński, PhD, Advocate
Documents – annexes
- Constitutional complaint of 15 June 2026, file no. Ts 161/26, including the request for an interim order and subsequent letters to the President of the Constitutional Tribunal.
- Application to the European Court of Human Rights in Skwarzyński v. Poland, application no. 27956/26, including the request for interim protection.
- The author’s amicus curiae submission in Dziurda and Others v. Poland, if submitted as a separate document.
- Full record of Sitting No. 141 of the Justice and Human Rights Committee of 12 March 2026 and the verbatim record of the Sejm sitting of 13 March 2026.
Public sources and verification materials
- Komisja Wenecka, opinia nr 1294/2026 — strona sprawy
- Komisja Wenecka, informacja o spotkaniach online dotyczących przygotowywanej opinii o Polsce
- Komisja Wenecka, wykaz aktualnie prowadzonych opinii
- Komisja Wenecka, CDL-REF(2026)022rev — wyciągi z prawa krajowego
- Komisja Wenecka, Sekretariat
- Komisja Wenecka, formularz kontaktowy i informacja o braku kompetencji do rozpoznawania skarg indywidualnych
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- ISAP, ustawa z 15 września 2017 r. zmieniająca art. 3 ustawy o statusie sędziów TK
- Trybunał Konstytucyjny, komunikat po wyroku z 12 maja 2026 r., K 3/26
- Europejski Trybunał Praw Człowieka, komunikat o środku tymczasowym w sprawie Dziurda i inni przeciwko Polsce
- Sejm RP, druk nr 3006 — kandydatura Macieja Berka
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- Kancelaria Prezesa Rady Ministrów, zakres działań ministra Macieja Berka
- ETPCz, Guðmundur Andri Ástráðsson przeciwko Islandii [WI], nr 26374/18
- ETPCz, Xero Flor w Polsce sp. z o.o. przeciwko Polsce, nr 4907/18
