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
Warsaw, October 4, 2026
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
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
1. POSITION OF THE ASSOCIATION VERITAS ET IUS. W SŁUŻBIE NARODOWI SUBMITTED TO THE VENICE COMMISSION
The Association Veritas et Ius. W Służbie Narodowi, in connection with the Venice Commission’s ongoing examination of the Constitutional Tribunal in Poland, hereby submits its position from a constitutional perspective, focusing on the standard of legality governing the procedure for filling judicial offices in the constitutional court, the principle of a tribunal established by law, the transparency and equality of the nomination procedure, the individual nature of the election of a judge of the Constitutional Tribunal, constitutional pluralism, and the need to protect the Tribunal against political capture of its composition by successive parliamentary majorities.
In the Association’s view, the starting point for assessing the current situation of the Constitutional Tribunal cannot be confined to the question whether the President of the Republic of Poland is obliged to receive the oath of office from the persons elected by the Sejm on 13 March 2026. That question is subsequent to an issue which is logically and legally prior: whether the procedure that led to the election of those persons complied with constitutional and Convention standards concerning legality, transparency, equality of candidates, individualisation of the election, and protection against arbitrariness and impermissible political influence.
The final stage of the appointment process cannot be examined in isolation from the preceding stages. Where serious and unresolved allegations exist concerning the legality of the procedure leading to the election of a judge of a constitutional court, the solution cannot be to adopt the fiction that all stages preceding the election have been definitively concluded and are beyond legal review, while the subsequent role of other constitutional authorities is regarded as purely automatic.
This issue is all the more significant because the lawfulness of the procedure conducted in March 2026 is already the subject of proceedings before the competent judicial bodies. Proceedings are pending before the Constitutional Tribunal in case no. Ts 161/26 concerning the constitutional complaint of Michał Skwarzyński, who participated in the same procedure for the election of judges of the Constitutional Tribunal. At the same time, proceedings are pending before the European Court of Human Rights in Skwarzyński v. Poland, application no. 27956/26, concerning the manner in which the March election procedure was conducted. In turn, the situation of the persons elected as a result of that procedure is the subject of the case Dziurda and Others v. Poland.
A particular legal situation has therefore arisen. Different stages of the same appointment procedure have been submitted to review by competent judicial bodies from different perspectives. The persons elected by the Sejm challenge measures taken after their election, whereas another participant in the same procedure raises objections concerning the legality, equality and transparency of the stage that led to the election itself. The Association does not prejudge the merits of any of these claims. It nevertheless draws the Venice Commission’s attention to the fact that the existence of these proceedings cannot be disregarded when formulating a constitutional assessment.
The Venice Commission should therefore not base its analysis on the assumption that the legality of the election of 13 March 2026 is a legally settled matter. That very issue has been submitted to judicial review. The rule of law requires that the competent bodies be afforded a genuine opportunity to examine those allegations before an irreversible legal and factual situation is created.
In this respect, the Association draws particular attention to the situation of Michał Skwarzyński. He was formally nominated as a candidate for the office of judge of the Constitutional Tribunal, participated in the hearing before the Justice and Human Rights Committee and received a positive opinion from that Committee. This circumstance is relevant irrespective of the ultimate assessment of the merits of his complaint. It demonstrates that the March 2026 procedure cannot be reconstructed solely from the perspective of the persons who obtained a majority in the vote in the Sejm.
The Association therefore requests the Venice Commission to examine the complete record of meeting no. 141 of the Justice and Human Rights Committee held on 12 March 2026, during which the candidates for the offices of judges of the Constitutional Tribunal were heard. The analysis should not be confined to the formal nomination documents, the Committee’s final opinions and the results of the subsequent vote in the Sejm. The questions put to the candidates, their answers, the course of the debate and the manner in which the candidatures were differentiated constitute material relevant to determining the true nature of the procedure.
This material is also relevant to assessing whether the parliamentary procedure was designed in a manner permitting a genuine and substantive assessment of the candidates’ qualifications. In the Association’s view, the higher the constitutional status of the body whose offices are being filled, and the more difficult it is subsequently to remedy the consequences of a defective appointment, the greater the importance that should be attached to procedural safeguards operating before the election takes place.
This applies particularly to the Constitutional Tribunal. The nine-year term of office of a judge of the Constitutional Tribunal and the significance of the judgments delivered by the Tribunal mean that a defect in the appointment process may produce consequences for many years. The problem of a defective appointment does not end when the person assumes office. It may subsequently affect the status of judicial formations and the authority of the judgments delivered by them.
For this reason, the Association considers it necessary to establish a statutory procedure laying down minimum standards for the nomination, verification and assessment of candidates for the Constitutional Tribunal. Such a procedure should provide for a sufficiently long period to permit genuine verification of candidatures, an obligation to submit documents demonstrating compliance with statutory requirements, a transparent public hearing, equal rules governing the presentation of candidatures to the Sejm, and mechanisms enabling serious doubts concerning compliance with the requirements for assuming office to be clarified.
The individual nature of the election of a judge of the Constitutional Tribunal is of particular importance. The Constitution establishes individual nine-year terms of office. This mechanism is significant not merely in technical terms but also as a safeguard. Staggering changes in the composition of the constitutional court over time counteracts the possibility of a single parliamentary majority shaping a substantial part of its composition at one time. The procedure should therefore make it possible to establish unequivocally the specific judicial office and the specific individual term of office for which a particular candidate is being elected.
This issue is connected with the broader question of constitutional pluralism. The Association does not contend that the Constitution requires mathematical representation of individual political parties within the Tribunal. That would contradict the judicial nature of the office. At the same time, a constitutional court cannot be structured as a body belonging to the parliamentary majority of the day.
Pursuant to Article 1 of the Constitution, the Republic of Poland is the common good of all its citizens. The Constitutional Tribunal, as one of the fundamental constitutional organs of the State, must likewise retain the character of an institution of the State as a whole, rather than an institution of a single majority. Pluralism does not mean distributing seats among political parties. It means, however, creating a procedure in which no majority may treat electoral victory as a mandate to take control of the constitutional court.
The Association particularly warns against a mechanism of political succession that may be reduced to the formula: “our predecessors filled the Tribunal with their people, so now we will fill it with ours”. A change in the political identity of those making use of a defective instrument does not remedy the defect in the instrument itself. If the possibility of politically subordinating the nomination process constituted a defect under the previous majority, it remains a defect when the same possibility is used by a majority declaring that it is restoring the rule of law.
The constitutional standard must remain neutral towards changing political majorities. The rule of law cannot mean that a successive majority is entitled to use against the judiciary instruments which it regarded as impermissible while it was in opposition. If the standard is genuinely intended to protect the independence of constitutional justice, it must also constrain the power of those who themselves declare that they are acting in its defence.
From this perspective, the Venice Commission should also consider a model for electing judges of the Constitutional Tribunal by a qualified majority combined with an appropriate anti-deadlock mechanism. The purpose of such a solution would not be to grant political parties a right to their own seats on the Tribunal, but to create a structural incentive to select candidates capable of obtaining support extending beyond the governing majority of the day. An anti-deadlock mechanism is also necessary in order to prevent the requirement of consensus from being transformed into a means of permanently blocking the filling of vacancies on the Tribunal.
It is also important clearly to distinguish the election carried out by the Sejm from the verification of compliance with the legal requirements for assuming office. No authority should acquire an unlimited political right of veto over an election made by another constitutional authority. This does not mean, however, that after the parliamentary vote the State should consciously disregard the disclosure of a serious legal impediment concerning the person elected. The system must provide a procedure enabling such a situation to be resolved according to law rather than according to the political assessment of the authorities concerned.
In the Association’s view, the present crisis demonstrates above all the absence of sufficiently precise rules. A conflict between State authorities should not be resolved by increasing the political discretion of one of them. It should lead to the establishment of rules under which an analogous conflict in the future will be resolved by law.
For this reason, the Association requests the Venice Commission, in the course of its work, to take into account not only the situation of the persons elected on 13 March 2026, but the entire appointment process that led to their election, including the allegations currently under review by the Constitutional Tribunal in case no. Ts 161/26 and by the European Court of Human Rights in Skwarzyński v. Poland, application no. 27956/26.
The existence of these proceedings is constitutionally significant. It means that the State has competent bodies before which allegations concerning the legality of the March procedure have been raised and which should have a genuine opportunity to examine them. The Venice Commission need not determine whether those allegations are well-founded. It should, however, take account of their existence and avoid recommending a solution that would, in practice, render the outcome of those proceedings devoid of purpose before they have been concluded.
The Association therefore proposes that the Venice Commission treat the events of March 2026 as material from which a standard for the future may be formulated: a statutory and transparent procedure; genuine assessment of qualifications; individualisation of each election and term of office; sufficient time for the verification of candidates; equal treatment of all candidatures; a mechanism for resolving serious legal doubts; institutional pluralism; and safeguards limiting the possibility of political capture of the Tribunal by any successive majority.
The purpose of such a standard should not be to determine who should become a judge of the Constitutional Tribunal. Its purpose should be to establish a system in which that question is decided according to rules laid down in advance, rather than according to the principle of “Now Us”. Only such a model can gradually restore the authority of constitutional justice and ensure that the Tribunal is perceived as an organ of the Republic of Poland rather than as an institution of successive parliamentary majorities.
Position of the Association on Venice Commission Opinion CDL-AD(2024)035
The Association considers that the proposals set out above are, in principle, consistent with the underlying values of Venice Commission Opinion CDL-AD(2024)035, but require further development in the light of the experience of the procedure for the election of judges of the Constitutional Tribunal conducted in March 2026. The 2024 Opinion was adopted in a different factual context and concerned proposed legislative solutions. The March 2026 procedure now makes it possible to assess in practice whether the risks identified by the Commission have actually been eliminated.
First, paragraph 44 of Opinion CDL-AD(2024)035 assumes particular importance. The Commission identified the prevention of undue influence over the appointment of judges of the Constitutional Tribunal as one of the fundamental objectives of the reform and indicated that the essential rules governing the appointment and removal of constitutional judges should be laid down at constitutional or statutory level, while constitutional regulation provides stronger protection against interference by the political majority of the day.
The Association shares this line of reasoning but draws attention to its further consequence. It is not sufficient for legislation merely to determine the majority required for an election. Protection against arbitrariness also requires normative regulation of the essential stages preceding the vote: the time limits for submitting candidatures, the documents required, the method of verifying qualifications, the time available for such verification, the public hearing, the manner in which the results of the assessment of candidates are presented to the Sejm, and uniform rules governing the treatment of all persons admitted to the procedure. The Commission itself observed that the current Constitution essentially confines itself to identifying the Sejm as the electing body, whereas the applicable arrangements leave the conditions governing the election, to a significant extent, to the Rules of Procedure of the Sejm. In the Association’s view, the experience of March 2026 confirms that it is precisely this part of the appointment process that requires further regulation.
Second, paragraphs 45–47 of the Opinion assume particular importance. The Commission welcomed the introduction of a three-fifths majority because such a solution requires support extending beyond a single parliamentary majority and may contribute to the depoliticisation of the election. At the same time, the Commission considered that a qualified majority must be accompanied by a genuine anti-deadlock mechanism. Merely repeating the procedure was not regarded as sufficient. The Commission even indicated the possibility of applying a two-thirds majority as the general rule and a three-fifths majority as an anti-deadlock mechanism, and also recalled its earlier proposal concerning the participation of different branches of State power in shaping the composition of the Tribunal.
The Association considers this part of the Opinion particularly relevant to the present situation. The electoral mechanism should be designed in such a way that both the majority and the opposition have an incentive to seek candidates acceptable across the current political divide. An anti-deadlock mechanism must not, however, consist merely in waiting until the qualified-majority requirement is replaced by a majority enabling the governing coalition to elect its own candidates. Such a mechanism would merely postpone the application of the “winner takes all” principle rather than eliminate it.
Third, paragraph 47 of the Opinion is also relevant to the assessment of constitutional pluralism. The Commission recalled the possibility of a system in which one third of constitutional judges are elected by the President, one third by the Sejm and one third by the judiciary. The Association does not prejudge whether such a solution should be adopted in Poland. What matters, however, is the principle underlying that proposal: the composition of a constitutional court should not simply reflect the will of a single parliamentary majority.
Fourth, paragraph 48 of the Opinion is directly relevant to the subsequent election of Maciej Berek. The Commission welcomed a four-year cooling-off period covering, inter alia, persons who had previously served as members of the Council of Ministers, Secretaries of State or Undersecretaries of State. The Commission expressly indicated that, although such a cooling-off period does not constitute a uniform European standard, it was justified in the specific Polish context by the need to safeguard the perceived impartiality of the Tribunal.
The Association considers that this argument should be taken into account when assessing the direct transition of a person from implementing government policy to exercising the office of constitutional judge. This does not amount to automatically calling into question the independence of any particular individual. It does mean, however, that the Venice Commission itself identified, in the Polish constitutional context, a specific risk associated with a direct transition from high political office to the Constitutional Tribunal and regarded a four-year cooling-off period as a reasonable solution.
Fifth, paragraph 49 of the Opinion deserves particular emphasis. The Commission welcomed the extension of the range of bodies entitled to nominate candidates beyond the Sejm itself and its Presidium, referring, inter alia, to the President, judicial bodies and the governing bodies of the legal professions. The rationale was to increase the diversity of candidatures and facilitate agreement between different political forces.
In the Association’s view, this argument directly supports the concept of pluralism set out above. Pluralism does not mean allocating seats to political parties. It entails, inter alia, creating a genuine possibility for candidates from outside the immediate political environment of political parties to emerge and ensuring that such a candidature, if properly submitted and having successfully passed the substantive assessment stage, is subsequently treated according to the same rules as politically preferred candidatures.
Sixth, paragraph 50 of the Opinion points to the possibility of using candidate hearings as an instrument for the depoliticisation of the process. Although the Commission was referring to the giving of an opinion by the National Council of the Judiciary, the underlying principle is significant: an additional substantive assessment of a candidate may contribute to depoliticisation even if its outcome is not ultimately binding on the Sejm.
For precisely this reason, the Association once again requests the Venice Commission to examine the full minutes and record of meeting no. 141 of the Justice and Human Rights Committee of 12 March 2026. A hearing cannot be treated as a meaningless ritual preceding a political decision. If the State organises a substantive assessment of candidates, the course of that assessment should constitute a genuine element of the decision-making process. The March procedure enables the Commission to assess not only the formal rules but also their operation in practice.
Seventh, paragraphs 51–53 confirm that both the qualified-majority requirement and the anti-deadlock mechanism should have an appropriately high normative status. The Commission rightly drew attention to the risk inherent in leaving these matters to the ordinary legislature, which may subsequently alter the rules according to the needs of the political majority of the day. From the Association’s perspective, this argument should also be extended to other fundamental elements of the nomination process. The rules of the game must be established before a particular procedure begins and must not depend on who the candidate is or which majority is conducting the election.
Eighth, paragraphs 69–73 of the concluding part of the Opinion assume particular importance. The Commission expressly stated that restoring the rule of law entails rejecting a “winner takes all” logic under which the winner of an election may govern without regard to the rights and legitimate expectations of minorities. This is, in substance, the same problem that the Association describes in the present position as the “Now Us” policy.
In the Association’s view, there can be no stronger justification for applying the same standard to successive majorities. The “winner takes all” principle does not become acceptable merely because a new majority declares that it is repairing damage caused by its predecessors. If the essence of restoring the rule of law is the rejection of that principle, it must also be rejected by those who are restoring the rule of law.
Ninth, paragraph 71 of the Opinion is particularly relevant to the principles of continuity and individualisation of terms of office. The Commission did not accept the concept of a complete renewal of the composition of the Tribunal, emphasising the irremovability of lawfully appointed judges and the danger that a single majority could appoint the entire Tribunal at one time. At the same time, the Commission pointed to the benefit resulting from staggering appointments over time.
This reasoning corresponds to the constitutional function of the individual nine-year term of office of a judge of the Constitutional Tribunal. Its significance is not limited to a personal guarantee afforded to the judge. Staggering terms of office over time protects the Tribunal against a single political majority replacing its entire or substantial composition at one time. Accordingly, each office should be linked to a specific vacancy and a specific individual term of office, and the State should not permit vacancies to be deliberately accumulated so that a single majority may subsequently carry out a collective replacement of a substantial part of the Tribunal.
Tenth, paragraph 72 of the Opinion demonstrates the implications of the principles of proportionality and legal certainty. Even where there is a binding judgment of the European Court of Human Rights finding a defect in the appointment of a judge, the Commission rejected an automatic solution consisting in the statutory nullification of all judgments delivered with that judge’s participation. It required a more individualised solution taking legal certainty into account.
The same logic should apply at an earlier stage of the appointment process. If even the remedying of an established violation cannot proceed automatically without regard to competing constitutional values, all the more reason why an irreversible constitutional consequence should not be created where the legality of the election procedure remains the subject of unresolved proceedings.
In this context, the Association draws attention to the fact that the March 2026 procedure is currently the subject of proceedings before the Constitutional Tribunal in case no. Ts 161/26 and before the European Court of Human Rights in Skwarzyński v. Poland, application no. 27956/26. It is therefore inappropriate to treat all legal issues concerning the March election as already resolved. Competent judicial bodies are engaged in examining them and should be afforded a genuine opportunity to perform their function.
Eleventh, paragraph 67 of the Opinion is significant in that the Commission warned against measures leading to the effective paralysis of the Tribunal in order subsequently to obtain the opportunity to alter the direction of its case-law by filling a sufficient number of vacancies. The Commission emphasised the duty of sincere cooperation between constitutional authorities and the need to act within the applicable rules even where those rules make it more difficult to achieve a political objective.
The Association considers this principle fundamental. It is impermissible either to obstruct the functioning of the Tribunal in order to take control of its composition or to accelerate the filling of accumulated vacancies in a manner enabling a single majority to shape a substantial part of its composition at one time. Both practices are different manifestations of the same problem: treating the composition of the constitutional court as an instrument for altering the direction of its activity.
Consequently, the events of March 2026 do not undermine the fundamental premises of CDL-AD(2024)035. On the contrary, they demonstrate the need to apply them consistently also to the current majority. The Commission itself formulated the principle that restoring the rule of law requires abandoning the “winner takes all” logic. The Association requests that this principle be applied symmetrically, irrespective of the political identity of the majority which, at any given time, has the capacity to shape the composition of the Constitutional Tribunal.
For and on behalf of
VERITAS ET IUS ASSOCIATION
IN SERVICE OF THE NATION
Piotr Schab
President of the Management Board