–Zuzanna Nowicka, PhD candidate, Doctoral School of Social Sciences, Jagiellonian University; Head of the Freedom of Speech Programme, Helsinki Foundation of Human Rights
The Script
October 30 was one of the most chaotic days in the history of rule of law restoration in Poland. It felt like a sequel (or rather a reboot or a spin-off) of the ongoing story surrounding the Constitutional Tribunal, albeit a particularly turbulent one. Judge Korwin-Piotrowska, elected to the Tribunal with the support of the current ruling coalition, suspended – or attempted to suspend, given that her authority to do so depended on the interpretation of the law – the Tribunal’s President and Vice-President, both elected under the previous Law and Justice government.
The central issue surrounding Judge Korwin-Piotrowska’s decision concerns a fundamental question: who has the authority to suspend the President of the Constitutional Tribunal? The importance of the Constitutional Tribunal hardly needs explaining, and its President as well as Vice President play a central role in the institution.
The legal controversy revolves around two provisions. The first one is Article 130(2) of the Act on the Structure of Ordinary Courts, which allows the Minister of Justice or the president of the competent court to order the immediate suspension of a judge from their duties. Such a measure is permitted when a judge is caught in flagrante delicto committing an intentional offence, or when justified by the seriousness of the judge’s conduct, the dignity of the court or important interests of the service. The provision itself is problematic, as it clashes with Article 180(2) of the Polish Constitution which stipulates that a judge may only be suspended from office pursuant to a final court judgment.
The second provision concerns the substitution of the Tribunal’s President. Article 12(4) of the Act on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal provides that, where the President is unable to authorise the Vice-President or another judge to exercise certain powers, those powers may be exercised by the judge with the longest judicial service. As Judge Korwin-Piotrowska does not hold the office of the Tribunal’s President, she relied on this provision to justify the substitution. The difficulty with this reasoning is that the Tribunal’s President was neither absent nor otherwise unable to perform his duties when she issued the order. It was precisely that order which purported to prevent him from exercising his functions. The interpretation therefore rests on circular reasoning: the judge invoked the President’s inability to act as a justification for a decision that itself created that inability. This is what makes the legal basis for her intervention particularly difficult to defend, regardless of the grounds invoked for suspending the Tribunal’s leadership.
The Story Behind the Script
To understand the current situation, one has to go back to 2015, when the Constitutional Tribunal became the centre of a political and legal crisis. What began with the unlawful appointment of three judges gradually developed into a broader process of bringing the institution under the influence of the then ruling Law and Justice party. Although subsequent appointments formally complied with the law, some of the judges had close ties to Law and Justice. Among them is the Tribunal’s suspended President, Judge Święczkowski, who previously served as Undersecretary of State at the Ministry of Justice under the Law and Justice government and ran in parliamentary elections on the party’s lists. The Tribunal effectively became a tool in the hands of Law and Justice, which exploited its power to shape the legal system by arbitrarily declaring legal norms unconstitutional and thereby removing them from the legal order. At one point, the Tribunal went so far as to declare certain provisions of the Treaty on European Union and the European Convention on Human Rights concerning judicial independence incompatible with the Polish Constitution. This was all the more striking given that the Polish Constitution itself expressly grants ratified international precedence over the statues – ordinary domestic legislation. It is hardly a coincidence that the Tribunal targeted legal safeguards designed to protect judicial independence and capable of constraining the government’s efforts to undermine the rule of law, making these judgments yet another example of its instrumentalisation for political purposes.
Rather than bringing the decade-long crisis any closer to a resolution, Judge Korwin-Piotrowska’s decision appears to have added to it yet another layer. The disagreement over its legality extends even to legal scholars. While Kim Lane Scheppele, Laurent Pech and Maciej Kisilowski argue that the move was not only necessary but also had a sound legal basis, Marcin Szwed takes a more cautious approach, questioning its legal justification. Against the backdrop of political tensions and extreme polarisation, the prospects for a meaningful compromise seem increasingly remote.
The Film Set
The battle for the Constitutional Tribunal in Poland seems like a badly scripted political drama. Over the past few days, we have seen a crowd storming the Tribunal in scenes compared to the events of January 6 in the United States, police officers wearing helmets and carrying shields, and the Polish President flying to Senegal only to return mid flight to join the protesters. Social media was flooded with pictures of him attempting to enter the building, while allegations also emerged that he had physically assaulted Judge Korwin-Piotrowska. The hectic public media coverage did not do a good job explaining why the law being used instrumentally by a different political fraction this time around would make it all right.
In 2015, the Constitutional Tribunal also became the site of a wave of protests, reflecting a remarkable degree of public mobilisation. Not to sound cynical, but after all, one might wonder why ordinary citizens should care so deeply about an institution before which most of them will never have a case heard. Yet, for years, the debate surrounding the Tribunal has been dominated not by legal arguments, but by political divisions.
The Film’s Criticism
The law is an incredibly flexible instrument. It sounds like a truism to say that the law is always subject to interpretation but it is especially important in this context. The provisions that served as a basis of suspension of the President and the vice President comes up to the total of 50 words, which is less that this paragraph up to this point. It took 50 words to dismantle the Constitutional Court (although dismantling may not be the right phrasing, as it ceased to fulfil its role a long time ago anyway).
The interpretation of the legal basis for the events of October 30 is shaped by court judgments, scholarly commentary and, whether we like it or not, podcasts and late-night television interviews with legal experts. Some of these voices are independent, while others seem to interpret the law in ways that align with their own political views. It seems that whether Judge Korwin-Piotrowska had the legal authority to suspend the Tribunal’s President and Vice-President depends less on legal reasoning and more on which political party one aligns with. Some of the very people we should be able to turn to for guidance and expertise seem to base their opinions not on constitutional standards, EU law or the case law of the ECtHR, but on their proximity to political power and what they stand to gain from it. This has implications beyond the immediate dispute. A society needs people whose opinions they can trust, and in a political climate where even respected professors and legal experts contribute to the confusion, it becomes increasingly difficult to know whom to turn to for guidance.
End credits
The comparison to a movie might seem a little too lighthearted. As much as I would love to sit back with a Coca-Cola and a large bucket of popcorn and watch the drama unfold, this is personal to me, not only as a Polish citizen but also as a human rights lawyer who has spent almost five years working at an NGO. When the NGO I work at, the Helsinki Foundation of Human Rights – an independent Polish non-governmental organisation established in 1989, following seven years of underground activity – issued its statement on Judge Korwin-Piotrowska’s move, most of its Council – prominent professors and well-known civil society actors handed in their resignations. The resignations stemmed from disagreements between the Foundation’s Council and its Board and staff lawyers over the approach to restoring the rule of law in Poland.
The statement of the Helsinki Foundation was also met with a lot of negative comments in traditional and social media. The recurring accusation was that it was contributing to slowing down the restoration of the rule of law. Some voices also accused the Foundation of being politically biased, and questions were raised about what the Foundation was doing when the Law and Justice government was bringing the judiciary under its control. And to that there’s a very simple answer – we were doing the exact same thing as we are doing now, meaning evaluating the actions of those in power against constitutional standards.
The debate surrounding the statement is a clear reflection of something – that both, prominent public figures and private individuals in the comment sections of online media or on X, hold a deep misconception about the role of watchdog organisations. Unlike politicians, we are not driven by the need to get re-elected, but by the need to hold those in power accountable for failing to comply with the law. And if it stings, it means it is working and that we are fulfilling our role just right. We have to be inconvenient – otherwise, we would not be doing our job.
The law should not be political, but it inherently is, because it is politicians who make it. And this is precisely why the third sector is so important. Not everyone has to agree with our vision, including people from our own organisation – as the example of the resignations shows. But our position is not simply a matter of opinion – it’s based on what the law says. Supporting a particular political vision is a matter of choice; assessing whether those in power comply with the law is something different altogether.
Working in the third sector and being inconvenient comes at a price, from the Minister of Justice condescendingly referring to our lawyers, including Marcin Szwed, who is among the best experts in the field, as ‘young lawyers’, to receiving hate messages (our social media team has a corkboard in their office with printouts of the nastiest comments from each month, and everyone can vote for the worst one). It does feel weird to receive that kind of backlash simply for comparing new legislation against the standards stemming from the Polish Constitution, EU law and the established case law of the ECtHR.
But someone has to do it. It’s easy to be brave when what you’re saying is popular or aligns with the prevailing political vision. The real test comes when it isn’t.
Suggested citation: Zuzanna Nowicka, The Battle for the Constitutional Court in Poland, Int’l J. Const. L. Blog, Nov. 14, 2026, at: http://www.iconnectblog.com/the-battle-for-the-constitutional-court-in-poland/