Controversial judicial elections

Controversy over legitimacy. Right-wing protesters in front of the Constitutional Court headquarters in Warsaw, October 31.

Controversy over legitimacy. Right-wing protesters in front of the Constitutional Court headquarters in Warsaw, October 31.

“Coup d’etat”, “abolition of the rule of law”, “political takeover of the Constitutional Court” – these accusations were heard last week from the mouths of Polish politicians from the right-wing and right-wing extremist opposition parties. They are reminiscent of the disputes over the rule of law during the government of the national-conservative PiS (Law and Justice) from 2015 to 2023. Only this time the roles are reversed: the voted-out PiS is the largest opposition party and is the protest leader, while the government coalition under the liberal-conservative President Donald Tusk is accused of destabilizing the Constitutional Court.

The renewed confrontation escalated on the evening of October 30th. Police units in full riot gear cordoned off the headquarters of the Constitutional Court, in front of which a few protesters had already gathered. The reason was two announcements: Constitutional Judge Anna Korwin-Piotrowska had announced a one-month suspension of the President of the Constitutional Court, Bogdan Święczkowski, and his deputy, Bartłomiej Sochański. She cited her seniority as the longest practicing judge as well as an article of the Court Constitution Act, which, according to her interpretation, enables such a suspension in special cases. According to his own statements, the non-party Minister of Justice and Attorney General Waldemar Żurek had requested that the immunity of the two constitutional judges be lifted. This approach was justified by irregularities in their election and the fact that they had blocked the work of other constitutional judges.

Korwin-Piotrowska is one of six judges appointed by the Sejm majority in the spring. However, President Karol Nawrocki, who is close to PiS, did not accept the nomination of Korwin-Piotrowska and three other judges; instead, the Sejm Marshal, i.e. the Speaker of Parliament, took their swearing in. However, the President of the Constitutional Court refused to recognize these four and did not assign cases to them.

The conflict over the appointment of constitutional judges has been simmering in Poland for over ten years. Immediately after PiS came to power in November 2015, it decided to re-elect judges and initiated measures that further undermined the independence of the Constitutional Court and the judiciary. These led, among other things, to controversial nominations and the double appointment of judges. But the previous government, then also under Tusk, had also appointed constitutional judges in proceedings that were later deemed illegal.

The restructuring of the justice system also had far-reaching consequences in terms of foreign policy: in 2017, the EU initiated proceedings under Article 7 of the Treaty of the European Union against Poland for serious violations of its fundamental values ​​and, in the years after 2020, blocked, among other things, the disbursement of funds from the Corona Fund. These were only released after the Sejm elections in 2023, after the new coalition under Prime Minister Donald Tusk (Civic Coalition, KO) promised to restore the rule of law. Since then, however, the government of parties from the conservative to social democratic milieu has pushed forward only a few reforms in the justice system, also because of the blockade initially by President Andrzej Duda, who is close to the PiS, and from early summer 2025 by his successor Nawrocki.

Other paths had to be chosen, and the escalation of the conflict at the end of October also occurred in this context. The crowd of demonstrators in front of the Constitutional Court grew to several thousand, including leading politicians from PiS, the right-wing extremist economic liberal Konfederacja (Confederation) and the fascist Konfederacja Korony Polskiej (Confederation of the Crown of Poland). Meanwhile, right-wing media spoke of a "coup" by the Tusk government and Nawrocki, who was on his way to a state visit to Senegal, announced his early return to the country.

Demonstrators tried to get into the Constitutional Court building, some using a grinder. After midnight, the visibly irritated Nawrocki and his security guards broke through the police barricade, and in the rooms of the Constitutional Court there were verbal battles between the judges recently appointed by the Sejm and the President and his entourage.

There is currently no sign of a compromise. The Citizens' Coalition did not appear at consultations scheduled by the President on October 31 with the leaders of all parties represented in the Sejm, Anna Korwin-Piotrowska announced the consideration of disciplinary measures and criminal prosecution against its suspended leader. Opposition parties from Konfederacja to the left-wing Razem party have long been calling for a “reset” of the Constitutional Court by re-electing all judges with a three-fifths majority of the Sejm. But it doesn't seem as if the two major parties to the conflict are ready for such a solution – they have so far shown no interest in backing down from their positions.

The at least brutal, possibly even constitutionally questionable actions of the government coalition and the Prime Minister show the pressure that the liberal-conservative Tusk is under a year before the upcoming parliamentary elections. The idea of ​​having to fend off a “coup” could help the notoriously divided right-wing parties competing for leadership in the opposition to achieve greater unity.

The debate about the Constitutional Court was briefly overshadowed by the sadness over the victims of the attack on a young man in Krakow on Saturday. The perpetrator first murdered three family members and then shot six other people. At a memorial event on the Tuesday after the crime, Tusk and Nawrocki appeared together. But just a few hours after the attack, right-wing and right-wing extremist politicians and news channels falsely claimed that the police in Krakow could not have intervened more quickly because they had been withdrawn to protect the Constitutional Court in Warsaw and questioned indications that the perpetrator might have had a right-wing extremist background.