The 2015–2017 crisis: five seats, rulings and unpublished judgments

Level of detail: Basics4 min read

What happened

Poland's Constitutional Tribunal checks whether laws comply with the Constitution. Its 15 judges, elected for nine years by the Sejm (the lower house), take an oath before the President.

In autumn 2015 five judges' terms were ending: three on 6 November, two in December. In the election of 25 October, Law and Justice (PiS) won a majority in the Sejm.

On 8 October 2015 the outgoing 7th-term Sejm elected five people to these seats under a transitional provision (Article 137) of the June 2015 Tribunal Act, added on a motion by a Civic Platform (PO) MP. The Sejm's Presidium nominated the candidates; according to the Tribunal, PiS, then the main opposition party, nominated no one. President Andrzej Duda did not take their oaths.

On 25 November the new 8th-term Sejm adopted five resolutions on the October election's "lack of legal force", asking the President not to accept the oaths. On 2 December, despite a Tribunal order to wait for its judgment, the Sejm elected five others, nominated by PiS MPs. That night, hours before the Tribunal's hearing, the President swore in four; the fifth on 9 December.

What the Tribunal ruled

On 3 December 2015, in K 34/15, the Tribunal held that the 7th-term Sejm could fill the three seats vacated on 6 November but not the two December seats, which fell vacant in the new Sejm's term. It also held that the President must take an elected judge's oath without delay.

On 9 December (K 35/15) it held that a judge's term begins on election, not the oath. On 7 January 2016 (U 8/15) it found that the November resolutions were a political position and did not change the October election's legal effects.

Julia Przyłębska and Piotr Pszczółkowski, elected in December, took the vacant December seats, sitting from January 2016. The President did not swear in the three elected in October to the November seats, even after K 34/15, so they never sat. The other three December electees went to seats the Tribunal held already filled; Tribunal President Andrzej Rzepliński gave them no cases.

Judgments the government did not publish

The Constitution requires judgments to be published without delay in the Journal of Laws, which the Prime Minister issues. A provision found unconstitutional loses force only on publication.

The Tribunal held unconstitutional the Act of 22 December 2015 (K 47/15, 9 March 2016) and parts of the July 2016 Act (K 39/16, 11 August 2016). Beata Szydło's government refused to publish both. On K 47/15 it argued the Tribunal had not applied the reviewed Act's procedure. Both appeared only on 5 June 2018, under headings questioning their validity.

In March 2016 the Venice Commission, a Council of Europe advisory body, found that the December 2015 Act could block the Tribunal and urged respect for its judgments; according to Demagog and Wikipedia, it also traced the conflict to the previous Sejm electing judges in advance.

New leadership

After Rzepliński's term ended on 19 December 2016, the President, under a new act, entrusted Julia Przyłębska with his duties; she let the three elected to filled seats sit. After a judges' assembly put forward candidates, the President appointed her on 21 December. The European Commission considered the procedure seriously flawed; the Tribunal's leadership called it valid. In 2025 the EU Court of Justice (CJEU) held that fundamental rules had been breached in presenting the candidate.

Why it matters

The Tribunal's rulings bind everyone. When it is disputed who is a judge, it is also disputed who issued a judgment.

In Xero Flor (2021), a company's case, the European Court of Human Rights (ECtHR) held that a Tribunal bench including a person elected in December 2015 to a filled seat was not a "tribunal established by law". In 2025 the CJEU found that, owing to those elections and its President's 2016 appointment, the Tribunal is not an independent and impartial tribunal established by law. The Tribunal answers that these courts may not assess the election of its judges (K 6/21) and lack jurisdiction over it.

Level of detail: For followers11 min read

Starting point: the Act of 25 June 2015

The Tribunal Act of 25 June 2015 (Dz.U. 2015 item 1064), signed by President Bronisław Komorowski, took effect on 30 August 2015.^1,2 The transitional Article 137 allowed nominations for terms ending in 2015 within 30 days of the Act's entry into force.³ According to the Tribunal, this let the 7th-term Sejm fill three seats falling vacant in its own term and two in the next.³ Article 137 was added on 12 May 2015 in a Sejm committee on a motion by Civic Platform (PO) MP Robert Kropiwnicki.⁴ According to Polish Wikipedia and Demagog, President-elect Andrzej Duda asked Ewa Kopacz's government on 29 May 2015 to halt the changes until he took office.^5,6

The Act required an oath before the President but set neither a deadline for it nor the moment a judge's term begins.^7,8 The terms ended on 6 November 2015 for three judges, on 2 December for Zbigniew Cieślak and on 8 December 2015 for Teresa Liszcz.^9,10,11,12

8 October 2015: election by the 7th-term Sejm

On 29 September 2015 the Presidium of the Sejm nominated five candidates.³ According to TVN24, the PO, PSL and SLD parliamentary clubs put them forward politically, while PiS nominated no one and voted against.¹³ On 8 October 2015 the Sejm elected, by absolute majority, Roman Hauser (274 votes in favour), Krzysztof Ślebzak (268), Andrzej Jakubecki (272), Bronisław Sitek (244) and Andrzej Jan Sokala (264).¹⁴ Hauser, Ślebzak and Jakubecki were to fill the 6 November seats, Sitek Cieślak's seat and Sokala Liszcz's.³

Beata Szydło (PiS) described the election on 8 October as "psucie państwa" ("spoiling the state").¹³ According to Wikipedia, PiS politicians spoke of a "skok na TK" ("grab at the Tribunal"), while PO argued that the aim was continuity in the Tribunal's membership.⁵ On 23 October 2015 PiS MPs challenged many provisions of the June 2015 Act (K 29/15) but withdrew the application on 10 November.³ On 17 November a group of PO MPs filed a similar application (K 34/15).³

November 2015: an amendment and resolutions on "lack of legal force"

On 19 November 2015 the 8th-term Sejm passed an amendment to the Tribunal Act (Dz.U. 2015 item 1928), in force from 5 December 2015.^15,3 It introduced an oath within 30 days of election, a term starting on the day of the oath, a new 7-day nomination window for the 2015 seats (Article 137a) and the expiry of the terms of the Tribunal's President and Vice-President after three months.¹⁵

Late on 25 November 2015 the Sejm adopted five resolutions "on declaring the lack of legal force" of the election of each of the five people, each with 270–273 votes in favour.^16,17,18 The PiS and Kukiz'15 clubs voted in favour, and most PO MPs did not vote.¹⁹ Each calls on the President not to accept the named person's oath.^17,20

On 30 November 2015 the Tribunal issued a decision obliging the Sejm to refrain from electing judges until judgment in case K 34/15.^3,6

2 December 2015: election by the 8th-term Sejm and oaths

Sejm print no. 56 of 1 December 2015 listed five candidates, each nominated by PiS club MPs.²¹ On 2 December the Sejm rejected motions to adjourn the sitting, to refer the matter to committee and to hold a roll-call vote.²² Then, before judgment in K 34/15, it elected Henryk Cioch (236 votes in favour), Lech Morawski (232), Mariusz Muszyński (236), Julia Przyłębska (234) and Piotr Pszczółkowski (233).^22,23,24,25 Neither the print nor the resolutions state whose seat each elected person takes.^21,24,25

During the night of 2 to 3 December 2015, before the K 34/15 hearing scheduled for 9:00, the President took the oath from Cioch, Morawski, Muszyński and Pszczółkowski; Przyłębska took the oath on 9 December.^3,26

Judgments K 34/15 and K 35/15 and decision U 8/15

On 3 December 2015 a five-judge bench presided over by Sławomira Wronkowska-Jaśkiewicz held in K 34/15 that Article 137 complied with Article 194(1) of the Constitution for terms ending on 6 November but not for terms ending on 2 and 8 December 2015.^12,27 It held Article 21(1) of the Act unconstitutional if read otherwise than as imposing on the President a duty of "niezwłocznego odebrania ślubowania" (taking the oath "without delay").¹² Its reasoning states that a Sejm elects judges to seats falling vacant in its own term and may not elect "na zapas" (in reserve) for the next, so the two December elections lacked a legal basis; that the President takes no part in the election and cannot refuse the oath; and that only the Tribunal decides doubts about an election's basis.^28,3 The judgment was published in the Journal of Laws on 16 December 2015 (item 2129).¹²

On 9 December 2015, in K 35/15, the Tribunal held all four November 2015 changes unconstitutional, Article 137a only as regards the seats vacated on 6 November.²⁹ According to the Tribunal, a term runs from election, and a new nomination for the 6 November seats would fill more seats than the Constitution provides.³ The judgment was published on 18 December 2015 (Dz.U. 2015 item 2147).²⁹

On 4 December 2015 PO MPs challenged the resolutions of 25 November and of 2 December (U 8/15).³ On 7 January 2016 the Tribunal discontinued the case: resolutions electing judges are not normative acts, and the resolutions on "lack of legal force" express a political position without legal effect on the 8 October election.³ According to the Tribunal, the assessment of the 2 December resolutions depends on whether the seats were already filled, which judgment K 34/15 had settled.³

2016: who sat on cases

On 12 January 2016 President of the Tribunal Rzepliński allowed Pszczółkowski and Przyłębska to adjudicate; he did not assign cases to the three people elected on 2 December to filled seats.^19,30

On 14 April 2016 the Sejm elected Zbigniew Jędrzejewski to the seat of Mirosław Granat (227 in favour; 227 MPs did not vote, as the opposition boycotted it).³¹ According to RMF24 and TVN24, PiS nominated him; he was sworn in on 28 April 2016.^32,33 Andrzej Duda said then that the Tribunal again had 15 judges, "jak przewiduje Konstytucja" ("as the Constitution provides").³³

The Act of 22 December 2015 and judgment K 47/15

The Act of 22 December 2015 (Dz.U. 2015 item 2217) introduced, among other things, a full bench of at least 13 judges, full-bench judgments by a two-thirds majority, cases heard in order of receipt and delayed hearing dates.³ It entered into force on publication; the First President of the Supreme Court, two groups of MPs, the Commissioner for Human Rights (RPO) and the National Council of the Judiciary (KRS) challenged it.^19,3

On 9 March 2016 a twelve-judge bench (rapporteur Stanisław Biernat; Przyłębska and Pszczółkowski also sat) held in K 47/15 the entire Act unconstitutional (Articles 7, 112, 119(1) and proper legislation).³⁴ Two days earlier, Prosecutor General Zbigniew Ziobro wrote to the Tribunal that the government would not publish rulings issued by a "niewłaściwym" ("improper") bench.¹⁹ Beata Szydło's government refused to publish the judgment, arguing that the Tribunal had bypassed the procedure of the Act of 22 December 2015.^19,30 Prime Minister Szydło said in March 2016 that the judgment was the position of some judges.⁵

The Act of 22 July 2016, judgment K 39/16 and publication

The Tribunal Act of 22 July 2016 (Dz.U. 2016 item 1157) took effect on 16 August 2016, repealing the 2015 Act.³⁵ Its Article 89 required publication within 30 days of rulings issued before 20 July 2016 "in breach" of the 2015 Act, and Article 90 required the President of the Tribunal to include in benches the judges sworn in before the President.³⁵ On 11 August 2016 a twelve-judge bench in K 39/16 held Articles 89 and 90 and a number of other provisions unconstitutional.³⁶

On 16 August the government published 21 outstanding rulings, but not K 39/16.³⁷ On 29 December 2016 another 15 were published; K 47/15, K 39/16 and K 44/16 remained unpublished.^19,5

December 2016: three acts and new leadership

In November and December 2016 the Sejm passed the Organisation Act, the Status Act and the Implementing Provisions Act.^38,39 The last was published on 19 December 2016 (Dz.U. 2016 item 2074), and its Articles 17–22 took effect on 20 December.⁴⁰ Article 17 had the President of the Republic entrust a judge with the Tribunal President's duties pending an appointment, and Article 18 had that judge assign cases to judges sworn in before the President.⁴⁰

On 19 December 2016 Andrzej Rzepliński's term as judge and President of the Tribunal ended.¹⁹ On 20 December the President of the Republic, by decision, entrusted the duties of President of the Tribunal to Julia Przyłębska.⁴¹ That day she let Cioch, Morawski and Muszyński adjudicate and convened the General Assembly.^37,42

Of the 14 judges attending the Assembly, six voted (Przyłębska five votes, Muszyński one) and the others declined to vote.^42,26,19 On 21 December 2016 the President of the Republic appointed Przyłębska President of the Tribunal, saying the Tribunal should return to its "należną mu pozycję" ("rightful position").^41,43 The Helsinki Foundation for Human Rights (HFPC) and Judge Pszczółkowski disputed how the Assembly was run; the Tribunal's leadership replied in a speech of about November 2017 that some judges not voting did not affect validity.^42,26

2017 and publication in 2018

In 2017 Przyłębska sent Vice-President Biernat on annual leave until his term ended on 26 June 2017; he contested this, and according to the HFPC the leave kept him off the Kp 1/17 bench, among others.^44,45,46 The Sejm elected Grzegorz Jędrejek (24 February, to the seat of Andrzej Wróbel, who returned to the Supreme Court) and Andrzej Zielonacki (8 June, to Biernat's seat).^47,48,49,46

Morawski died on 12 July 2017 and Cioch on 20 December 2017.¹⁹ The Sejm elected Justyn Piskorski (15 September 2017; 191 MPs did not vote) and Jarosław Wyrembak (26 January 2018; 205 MPs did not vote) to their seats.^50,51 Cioch, Morawski and Muszyński sat on benches in 2017, including in case Kp 1/17.⁴⁵

After a 2018 act passed on a PiS initiative and an order by Przyłębska, K 47/15 and K 39/16 were published on 5 June 2018 (Dz.U. 2018 items 1077 and 1078), with headings stating that they had been issued in breach of the 2015 Act.^19,34,36

The Venice Commission and the European Commission

On 11 March 2016 the Venice Commission (a Council of Europe advisory body) found that the 13-judge quorum and two-thirds majority exceeded European standards and that the December 2015 changes could seriously disrupt the Tribunal; it called the oath "przede wszystkim ceremonialne" ("primarily ceremonial") and urged respect for the judgment of 9 December 2015.³⁰ According to Demagog and Wikipedia, it also traced the crisis to the previous Sejm electing judges in advance.^6,19 In October 2016 it stated that the judgment of 3 December 2015 required the October judges to join the Tribunal and that the December election had no vacancies to fill.^52,53 The European Commission's 2016 recommendations called for the judgments to be implemented and published; in December 2017 it made an Article 7(1) TEU proposal (see the Europe article).^37,54

Who claims what

Elections, oaths and seats, 2015

Binding force and publication of the 2016 judgments

The Tribunal's leadership in December 2016

Level of detail: Expert35 min read

The law in force at each stage

Article 194(1) of the Constitution of 2 April 1997 provides that the Tribunal consists of 15 judges elected individually by the Sejm for nine years; Article 194(2) provides that the President of the Republic appoints the President and Vice-President of the Tribunal from candidates presented by the General Assembly of Judges of the Tribunal.¹ Article 190(1)–(3) makes the Tribunal's rulings universally binding and final, requires their publication without delay and ties a provision's loss of force to the day of publication.¹

The election of 8 October 2015

The 7th-term Sejm passed the June 2015 Act on 27 May 2015 by 261 votes to 144 with 11 abstentions; the PO, PSL and SLD clubs voted in favour and PiS and United Poland (Zjednoczona Prawica) against.¹⁸ Article 137 was proposed on 12 May 2015 in the Justice and Human Rights Committee by PO MP Robert Kropiwnicki, on the ground that several terms ended around the change of Sejm term.¹⁷ A. Szmyt writes that the provision "od początku spotkał się z ostrą krytyką" ("was sharply criticised from the start") by the then opposition, and that it enabled the election "in reserve" of two judges whose seats fell vacant in the new Sejm's term.¹⁹ The exact wording of Article 137 was not retrieved; its content (30 days from the Act's entry into force for nominations to terms ending in 2015) is known from the participants in K 34/15 and the Tribunal's communiqué.^20,7 According to Polish Wikipedia and Demagog, President-elect Andrzej Duda asked Ewa Kopacz's government on 29 May 2015 to halt the changes until he took office on 6 August 2015.^21,22

On 29 September 2015 the Presidium of the Sejm nominated five candidates, and the Justice and Human Rights Committee considered them on 7 October.⁷ The Tribunal's communiqué of 29 February 2016 notes that the main opposition party did not nominate a candidate.⁷ According to TVN24, Sitek was the PSL's candidate and Sokala the SLD's, Jakubecki replaced Kotlinowski and Ślebzak replaced Hermeliński.²³

The votes took place at the 102nd sitting of the 7th-term Sejm (agenda item 7), 17 days before the parliamentary election, and required an absolute majority.²⁴

The resolutions were published in Monitor Polski on 23 October 2015.^25,29 According to an HFPC report, the terms were to begin on 7 November for Hauser, Ślebzak and Jakubecki, on 3 December for Sitek and on 9 December 2015 for Sokala.¹⁷ Beata Szydło described the election as "psucie państwa" ("spoiling the state"); according to Wikipedia, PiS spoke of a "skok na TK" ("grab at the Tribunal") and PO of continuity in the Tribunal's terms.^23,21 On 23 October 2015 a group of PiS MPs filed application K 29/15 against many provisions of the 2015 Act; they withdrew it on 10 November, and the Tribunal discontinued the case on 25 November 2015.⁷

The resolutions of 25 November 2015

At the 2nd sitting of the 8th-term Sejm, adding the five draft resolutions to the agenda (votes 16–20, about 19:14–19:23) passed by 271–272 votes to 157–163.³¹ The resolutions were adopted in votes 23–27 between 23:46 and 23:50 and published in Monitor Polski on 26 November 2015; all were signed by the Marshal of the Sejm (its presiding officer), Marek Kuchciński.^31,25,26

The resolutions "declare the lack of legal force" of the resolutions of 8 October, citing a breach of law in the election, and call on the President not to accept the oath.^25,26 Their full preambles and the explanatory notes to the drafts (prints 42–46) were not retrieved; according to press reports, the drafts were submitted by PiS MPs⚠ unverified.²⁵ PiS and Kukiz'15 voted in favour and PO mostly did not vote, which matches the 143–149 MPs not voting.^8,31

The election of 2 December 2015

On 30 November 2015 the Tribunal issued a decision obliging the Sejm to refrain from steps towards electing judges until judgment in K 34/15; according to Wikipedia, the decision was unanimous.^7,22,8 Print no. 56 of 1 December 2015 contained the candidacies of Cioch, Morawski, Muszyński, Przyłębska and Pszczółkowski, each "zgłoszony przez posłów Klubu Parlamentarnego Prawo i Sprawiedliwość" ("nominated by MPs of the Law and Justice parliamentary club"); MP Marek Ast represented the nominators.³² Print no. 57 is the opinion of the Justice and Human Rights Committee, positive according to the Tribunal.^33,7

At the 3rd sitting the Sejm rejected a motion to adjourn (196 for, 232 against) and a motion to refer to committee (206 for, 233 against), at 16:23 added the election of judges to the agenda (234 for, 206 against), and rejected a motion for a roll-call vote (196 for, 234 against).³⁴

The resolutions were signed by Marshal Kuchciński and do not state whose seat the elected person takes (checked for items 1185 and 1186).^35,36 On 2 December 2015 the June 2015 Act was in force without the November changes, because the amendment of 19 November, including Article 137a, entered into force on 5 December 2015.^5,7

The oaths

Article 21 of the 2015 Act provided for an oath before the President and treated a refusal to take it as resignation from office.³ The President took the oath from none of the five people elected on 8 October.^7,37 During the night of 2 to 3 December 2015, before the K 34/15 hearing set for 9:00, Cioch, Morawski, Muszyński and Pszczółkowski took the oath; Wikipedia gives the time as about 0:15.^7,38,8 Julia Przyłębska took the oath on 9 December 2015.^7,38 On 3 December the four sworn-in judges entered the Tribunal's building, and President of the Tribunal Rzepliński did not assign them cases.⁸

The President's position is known from the press and Wikipedia, not from a primary document. According to en.wikipedia, the President had earlier refused to swear in the October judges, considering their election contrary to democratic principles⚠ unverified.³⁹ On 3 December 2015, after K 34/15, the President's spokesperson reportedly said that the President would not swear in the three judges upheld by the Tribunal either, because the number of judges would then be unconstitutional⚠ unverified.³⁹ On 28 April 2016 Andrzej Duda said that the Tribunal again had 15 judges and that the President guarantees the continuity of state authority, which means he counted Cioch, Morawski and Muszyński as members.⁴⁰

In opinion CDL-AD(2016)001 the Venice Commission called the oath "primarily ceremonial" (point 108).³⁷ In opinion CDL-AD(2016)026 it noted that the President had refused the oath of the three October judges but accepted that of the December judges, and that full respect for the judgment of 3 December 2015 would mean including the October judges in the Tribunal (§ 104).^41,42

Judgment K 34/15 (3 December 2015)

A group of PO MPs filed the application on 17 November 2015; its content was close to the withdrawn K 29/15.⁷ On 30 November the Tribunal excluded Judges Biernat, Rzepliński and Tuleja from the case, and since a full bench (at least nine judges) could not be formed, on 1 December it asked the President of the Tribunal for a five-judge bench.⁷ The bench: Sławomira Wronkowska-Jaśkiewicz (presiding), Leon Kieres and Marek Zubik (judges rapporteur), Stanisław Rymar and Andrzej Wróbel; the published text contains no dissenting opinions.^4,20

Operative part (provisions of the Act of 25 June 2015):^4,20

1. Art. 3 is compatible with Article 2 and not incompatible with Article 197 of the Constitution;⁴
2. Art. 12(2) is compatible with Article 2, and Art. 12(1) and (5) are compatible with Article 144(3)(21);^4,20
3. Art. 19(2) is compatible with Article 112 and not incompatible with Article 197;⁴
4. Art. 21(1), understood otherwise than as imposing on the President a duty of "niezwłocznego odebrania ślubowania" (taking the oath "without delay") from a judge elected by the Sejm, is incompatible with Article 194(1) (point 5 of the operative part);⁴
5. Art. 24(1) and (2) read with Art. 42(1) are compatible with Article 196, and Art. 104(1)(3) is compatible with Articles 191(1) and 193;^4,20
6. Art. 137 is compatible with Article 112 and not incompatible with Articles 62(1) or 197; as regards judges whose terms end on 6 November 2015 it is compatible with Article 194(1), and as regards terms ending on 2 and 8 December 2015 it is incompatible with Article 194(1) (point 8(a)–(c)).^4,20

The Tribunal discontinued the remainder of the case.⁴ According to the Tribunal's communiqués, the reasoning states that the Sejm of a given term elects judges to seats falling vacant during that term and may not elect "na zapas" (in reserve) for the next term (the election of two judges to the December seats lacked a legal basis); that the President takes no part in the election and has no power to refuse the oath; that only the Tribunal decides doubts about the constitutionality of the basis for an election; and that, absent a deadline, the oath must be taken without delay because it enables the judge to take up duties and serves the Tribunal's continuity.^43,7 The point numbers of Part III of the reasoning were not established, because the text read broke off at point 2.5.²⁰

Participants' positions (Part I of the reasoning): the Marshal of the Sejm and the Council of Ministers took no position.²⁰ Prosecutor General Andrzej Seremet asked the Tribunal to find Article 137 unconstitutional as regards the December seats and argued that the election belongs to the Sejm and that only the elected person's refusal to take the oath has legal effect (points 3.1–3.2).²⁰ The Commissioner for Human Rights (RPO) considered Article 137 constitutional except for the December seats, which the 8th-term Sejm should fill; in the RPO's view the Sejm's power is "exhausted" (wyczerpuje się) upon election, and the resolutions of 25 November could have a basis only if Article 137 were found unconstitutional (points 6.1 and 6.3).²⁰

The judgment was published in the Journal of Laws on 16 December 2015 (item 2129), 13 days after delivery.⁴ According to Wikipedia, on 10–11 December the head of the Prime Minister's Chancellery, Beata Kempa, sent the President of the Tribunal a letter with questions about publication, and Rzepliński replied citing Article 190(2) of the Constitution; on 14 December prosecutors opened proceedings concerning the non-publication, discontinued on 7 January 2016.⁸

Judgment K 35/15 (9 December 2015)

The bench: Andrzej Wróbel (presiding), Piotr Tuleja (judge rapporteur), Mirosław Granat, Małgorzata Pyziak-Szafnicka and Sławomira Wronkowska-Jaśkiewicz; there were no dissenting opinions.⁶ The operative part concerns the Act of 19 November 2015:⁶

1. the procedure by which the Act was passed is compatible with Articles 7, 112, 119(1) and 186(1) of the Constitution;⁶
2. Art. 12(1), second sentence (reappointment of the President and Vice-President), is incompatible with Article 173 read with Article 10;⁶
3. in Art. 21(1), the words "within 30 days of the election" are incompatible with Article 194(1);⁶
4. Art. 21(1a) (term running from the oath) is incompatible with Article 194(1) read with Articles 10, 45(1), 173 and 180(1) and (2);⁶
5. Art. 137a, as regards nominating a candidate for the seat of a judge whose term ended on 6 November 2015, is incompatible with Article 194(1) read with Article 7, and not incompatible with Articles 45(1) and 180(1)–(2) read with Article 6(1) ECHR or with Article 25(c) read with Articles 2 and 14(1) ICCPR;⁶
6. Art. 2 (expiry of the terms of the President and Vice-President) is incompatible with Articles 2, 7, 45(1), 180(1)–(2) and 194(1) read with Article 10 of the Constitution, and with Article 6(1) ECHR and Article 25(c) ICCPR.⁶

The remainder was discontinued.⁶ According to the Tribunal's summary, a judge's term runs from election, and making it depend on the oath indirectly involves the President in the election; electing someone to a seat vacated on 6 November would fill more seats than the Constitution provides; and the Tribunal did not assess the correctness of individual elections.⁷ The judgment was published on 18 December 2015 (Dz.U. 2015 item 2147), nine days after delivery.⁶

Decision U 8/15 (7 January 2016)

On 4 December 2015 a group of PO MPs challenged the five resolutions of 25 November and the five of 2 December 2015; the case was listed for the full bench on 12 January 2016, but on 7 January the Tribunal discontinued it in a closed sitting.⁷ According to the Tribunal's communiqué: resolutions electing judges are not normative acts and are not subject to substantive review; the resolutions on "lack of legal force" express a political position with no legal effect on the earlier election; no obvious defect was found in the 8 October elections that would make them non-existent; and the assessment of the 2 December resolutions depends on whether the seats were already filled, which judgment K 34/15 had settled.⁷ The bench and any dissenting opinions were not established; en.wikipedia gives the date as 11 January 2016 and mentions three dissenting opinions, which conflicts with the date given by the Tribunal.^7,39

Status of the ten people elected in 2015

The matrix keeps election, oath, assessment under the judgments, admission to adjudication and functions apart.^4,6,7

The Act of 22 December 2015 and judgment K 47/15 (9 March 2016)

The Act of 22 December 2015 (Dz.U. 2015 item 2217) provided, among other things, for: General Assembly resolutions by a two-thirds majority with at least 13 judges present; a full bench of at least 13 judges, with full-bench judgments by a two-thirds majority; cases heard in order of receipt; hearing dates no earlier than six months (full bench) or three months (other benches) away; disciplinary proceedings on a motion by the President of the Republic or the Minister of Justice; and dismissal of a judge by the Sejm on a motion by the General Assembly.⁷ The Sejm passed it on 22 December, the Senate adopted it without amendments on 23–24 December, the President signed it on 28 December 2015, and it entered into force on the day of publication.^8,39 Applications were filed by the First President of the Supreme Court, two groups of MPs, the RPO and the KRS.⁷

The hearing took place on 8 March and judgment was delivered on 9 March 2016 by a bench of 12: Andrzej Rzepliński (presiding), Stanisław Biernat (judge rapporteur), Mirosław Granat, Leon Kieres, Julia Przyłębska, Piotr Pszczółkowski, Małgorzata Pyziak-Szafnicka, Stanisław Rymar, Piotr Tuleja, Sławomira Wronkowska-Jaśkiewicz, Andrzej Wróbel and Marek Zubik.⁹ The Tribunal held the entire Act incompatible with Articles 7, 112 and 119(1) and with the principle of proper legislation under Article 2, while compatible with Article 186(1) and not contrary to Article 123(1); points 2–18 of the operative part held individual provisions unconstitutional (including on the organisation of the Tribunal's work, dismissal of a judge and disciplinary proceedings).⁹ Article 44(1) loses force nine months after publication; the remainder was discontinued.⁹ According to Wikipedia, Przyłębska and Pszczółkowski filed dissenting opinions; they were not found in the text read from the 2018 Journal of Laws⚠ unverified.^8,9

The government's position: on 4 March 2016 Prosecutor General Zbigniew Ziobro withdrew the position filed earlier by Andrzej Seremet, and on 7 March wrote to the Tribunal that the government would not publish rulings issued by an "niewłaściwym" ("improper") bench; the consolidated text of the Tribunal Act (Dz.U. 2016 item 293) was published the same day.^8,2 Beata Szydło's government refused publication, arguing that the Tribunal had bypassed the procedure of the Act of 22 December 2015 (the Venice Commission describes this in points 42–43 of its March 2016 opinion).^8,37 Beata Szydło said in March 2016 that the judgment was the position of some of the Tribunal's judges.²¹ On 27 April 2016 prosecutors declined to open proceedings concerning the non-publication of K 47/15.⁸

The judgment was published on 5 June 2018 in Dz.U. 2018 item 1077; the heading of the publication states that the ruling was issued in breach of the Act of 25 June 2015 and concerns an act that has lost force.⁹

2016: admissions, the Jędrzejewski election, the July Act, K 39/16

On 12 January 2016 President of the Tribunal Rzepliński allowed Pszczółkowski and Przyłębska to adjudicate; the Venice Commission confirms that the Tribunal let two December judges adjudicate (point 106 of its March 2016 opinion).^8,37 According to the Tribunal's communiqué of 29 February 2016, Hauser, Jakubecki and Ślebzak are judges whose terms have run since 7 November 2015 but who have not taken the oath because of the President's inaction.⁷

On 14 April 2016 (16th sitting) the Sejm added the election of a judge (prints nos. 369 and 401) to the agenda by 228 votes to 202 and at 10:46 elected Zbigniew Grzegorz Jędrzejewski: 227 for, 0 against, 6 abstentions, 227 not voting (the opposition boycotted the vote to break the quorum); the resolution was published as M.P. 2016 item 393.^47,46 According to RMF24 and TVN24, PiS nominated him, several Kukiz'15 MPs voted despite the boycott, the Marshal confirmed to the President that the resolution was effective, and the oath took place on 28 April 2016; the term in Mirosław Granat's former seat ran until 28 April 2025.^48,40,38 According to the same reports, MP Małgorzata Zwiercan also cast a vote for MP Kornel Morawiecki, and prosecutors opened proceedings; the materials do not give the outcome.^48,40 On 29 April 2016 PiS and PSL submitted bills for new Tribunal acts.⁸

The Act of 22 July 2016 (Dz.U. 2016 item 1157) was published on 1 August and entered into force on 16 August 2016 (Art. 92).¹⁰ Article 89 required publication within 30 days of rulings issued before 20 July 2016 in breach of the 2015 Act, except those concerning acts that had lost force; Article 90 provided that the President of the Tribunal "włącza do składów orzekających i przydziela im sprawy" ("includes in adjudicating benches and assigns cases to") judges sworn in before the President who had not taken up their duties; Article 91 repealed the 2015 Act.¹⁰

On 11 August 2016, in the joined cases K 39/16, K 40/16 and K 41/16, the Tribunal delivered judgment in a closed sitting (Art. 93(1)(2) of the 2015 Act), with the bench: Rzepliński (presiding), Biernat, Jędrzejewski, Kieres, Przyłębska, Pszczółkowski, Pyziak-Szafnicka, Rymar, Tuleja (judge rapporteur), Wronkowska-Jaśkiewicz, Wróbel (judge rapporteur) and Zubik.¹¹ It held unconstitutional, among others, Art. 26(1)(1)(g), Art. 38(3)–(6), part of Art. 61(3), Art. 61(6), Art. 68(5)–(7), Art. 80(4), Art. 83(2), Arts. 84–87, Art. 89 and Art. 90; Art. 83(1), in a specified reading, was held compatible with Article 2.¹¹ According to Wikipedia, three dissenting opinions were filed; their authors were not established.⁸ The judgment was published on 5 June 2018 (Dz.U. 2018 item 1078) under a heading stating a breach of the 2015 Act.¹¹

Jarosław Kaczyński said on 10 August 2016 that the government would not publish the judgment of 11 August.²¹ On 16 August 2016 the government published 21 outstanding rulings but did not recognise or publish K 39/16; the European Commission recorded that criminal proceedings were opened on 18 August against the President of the Tribunal — the sources examined do not state their subject or outcome.⁴⁴ According to Wikipedia, on 8 August 2016 the Supreme Administrative Court (NSA) applied an unpublished Tribunal judgment for the first time.⁸ On 7 November 2016 the Tribunal delivered judgment K 44/16 on the procedure for selecting the President of the Tribunal; according to a CJEU press release, presenting candidates not backed by a majority of judges had previously been held unconstitutional.^44,49 The European Commission recorded that the General Assembly lacked a quorum on 10 November, 30 November and 8 December 2016, while Wikipedia gives 8 and 30 November.^44,8 On 29 December 2016 another 15 outstanding rulings were published (Dz.U. 2016 items 2196–2210); three remained unpublished, including K 47/15.⁸

The Acts of 30 November and 13 December 2016

The Sejm passed the Organisation Act (print no. 1052) on 30 November 2016 in vote no. 37: 228 for, 200 against, 6 abstentions; that day it also rejected most of the Senate's amendments to the Status Act.⁵⁰ It passed the Implementing Provisions Act (print no. 1115) on 13 December 2016 at 21:21:57 by 229 votes to 198 with 4 abstentions.⁵¹ The Implementing Provisions Act was published on 19 December 2016 (Dz.U. 2016 item 2074).¹² According to Wikipedia, all three acts were published late that evening, the last day of Rzepliński's term; the publication dates of items 2072 and 2073 were not verified in the Journal of Laws⚠ unverified.^8,14

Key provisions of the Implementing Provisions Act:¹²

• Art. 17: until a President of the Tribunal is appointed, the President of the Republic, by decision, entrusts the duties of President of the Tribunal to the judge with the longest service (the research materials differ on whether this means service in the common courts or in the judiciary generally, and in central administration); Art. 11(2) of the Organisation Act does not apply;¹²
• Art. 18: the judge acting as President directs the Tribunal's work, represents it, assigns cases to judges who have taken the oath before the President, and provides them with working conditions;¹²
• Art. 19: rulings issued in breach of the 2015 and 2016 Acts are published on the order of the acting President, unless they concern acts that have lost force;¹²
• Arts. 16 and 20–22: the General Assembly procedure for presenting candidates for President; only judges who took the oath before the President take part; a candidate needs at least five votes; Art. 22 disapplies Art. 8 and Art. 11(3)–(15) of the Organisation Act, including the two-thirds quorum;¹²
• Art. 23: Arts. 1–3, 12 and 16–22 apply from 20 December 2016.¹²

From 20 December 2016 Articles 1–6 of the Status Act also applied: Article 4 provides for the oath before the President, and Article 5 provides that the service relationship arises upon the oath and that the President of the Tribunal assigns cases.^12,15 The speech at the Tribunal's 2017 General Assembly says that the act under which Przyłębska was entrusted with the duties "entered into force" on 13 December 2016; 13 December is in fact the date of passage, and Arts. 16–22 apply from 20 December.^38,12

19–21 December 2016: the end of Rzepliński's term and the change of leadership

On 15 December 2016 at 00:50:50 the Sejm elected Michał Warciński to Rzepliński's seat: 231 for, 179 against, 5 abstentions, 45 not voting; the resolution was published as M.P. 2016 item 1206 (19 December), and his term began on 20 December.^52,46,38 On 19 December Andrzej Rzepliński's term as judge and President of the Tribunal ended; that day Judge Andrzej Wróbel announced his resignation.⁸

By decision no. 1131.24.2016 of 20 December 2016 (M.P. 2016 item 1229, published the same day) the President of the Republic entrusted the duties of President of the Tribunal to Judge Julia Przyłębska.⁴⁶ A summary in the European Commission's recommendation (recitals 20–24) says that the President "designated" Przyłębska on 19 December; the M.P. document is dated 20 December, and Rzeczpospolita reports that she took up the duties on the morning of 20 December.^44,46,53,54 That day the acting President allowed Cioch, Morawski and Muszyński to adjudicate and convened the General Assembly; she also authorised Muszyński to exercise her powers on 20 and 21 December (annex of 4 January 2017).^44,53,55

The Assembly was called for 13:30, and judges were notified about four hours earlier; according to Rzeczpospolita (citing the HFPC), Stanisław Rymar was on leave.⁵³ According to the 2017 speech, the absent judge was on approved leave and had declared he did not intend to stand, so the sitting was not postponed.³⁸ Fourteen judges took part — seven elected by earlier Sejms and seven elected by the 8th-term Sejm.^53,38 Six votes were cast (Przyłębska 5, Muszyński 1), and the other judges declined to vote; the European Commission describes an Assembly in which six judges took part selecting two candidates, and the 2017 speech by the Tribunal's leadership says that some judges not voting does not affect validity.^8,44,38 According to the CJEU press release in C-448/23, the candidate received five votes, three of them from persons whose election was disputed.⁵⁶

Procedural objections: Pszczółkowski argued that the candidates should be chosen by 15 judges; the HFPC states that the rules required a separate resolution after the vote on candidates, whereas Przyłębska treated the vote itself as the resolution and signed the minutes alone; the HFPC also questions the constitutionality of the function of a judge acting as President.⁵³ According to M. Matczak, Judge Zubik asked about the countersignature of the President's decision.⁵⁷ According to Rzeczpospolita, the Tribunal described reports in Gazeta Wyborcza as a manipulation based on provisions not yet in force on the day of the Assembly.⁵³

By decision no. 1131.25.2016 of 21 December 2016 (M.P. 2016 item 1237) the President of the Republic appointed Julia Przyłębska President of the Tribunal.⁴⁶ The resolution naming Przyłębska and Muszyński as candidates reached the President's Chancellery on the evening of 20 December, and the appointment followed at about noon on 21 December; Andrzej Duda said the Tribunal should return to its "należną mu pozycję" ("rightful position").⁵⁴

2017: Vice-President, new elections, deaths, benches

President of the Tribunal Przyłębska sent Vice-President Stanisław Biernat on annual leave, citing the Labour Code: from 9 January to 31 March and then from 1 April to 26 June 2017; Biernat contested the calculation of the leave, citing limitation.⁵⁸ According to the HFPC, the leave excluded him from, among others, the bench in case Kp 1/17.⁵⁵ Biernat's term as judge and Vice-President ended on 26 June 2017.^59,39

Andrzej Wróbel submitted his resignation in mid-December 2016; on 11 January 2017 the KRS agreed to his return to the Supreme Court, the President appointed him to the Supreme Court on 24 January, and the Tribunal's General Assembly declared his mandate expired in early February 2017.⁶⁰

By decision no. 1131.10.2017 of 5 July 2017 (M.P. 2017 item 684, published 10 July) the President of the Republic appointed a Vice-President of the Tribunal; the act's title in the ELI database contains no name, and according to the HFPC and the press it was Mariusz Muszyński.^45,55 In 2017 the General Assembly adopted new Rules of Procedure of the Tribunal (M.P. 2017 item 767); the research materials give the date as 27 July (from the ELI database) and, as a supposition, 3 July 2017.^45,13

Benches including Cioch, Morawski and Muszyński, according to the HFPC's report on 2017: in Kp 1/17 (16 March 2017, M.P. 2017 item 265) Muszyński was judge rapporteur and Cioch and Morawski sat on the bench; a January 2017 motion by the Prosecutor General led to Judges Zubik, Tuleja and Rymar being excluded from two full-bench cases (Kp 1/17 and Kp 4/15), with the decisions issued by Cioch, Muszyński and Jędrejek.⁵⁵ In K 1/17 (24 October 2017) Muszyński and Cioch sat despite the RPO's motion to exclude them; Morawski also sat in K 5/17.⁵⁵ The report says that in 2017 the Tribunal delivered 36 judgments and 53 decisions (p. 10), and elsewhere 35 judgments (p. 20).⁵⁵

On 11 January 2017 Prosecutor General Zbigniew Ziobro filed application U 1/17 against the Sejm's 2010 resolutions electing Rymar, Tuleja and Zubik; the Tribunal discontinued those proceedings on 12 March 2020.⁸ Judgment K 1/17 was delivered by five judges, with a dissenting opinion by Leon Kieres.⁸ According to Matczak, when Rymar found Muszyński on his bench instead of Przyłębska, he adjourned the hearing indefinitely.⁵⁷

2018: publication of the backlog and the administrative court judgment

On 22 March 2018 PiS submitted a bill on publishing the 2016 judgments; the Sejm passed it on 12 April, the President signed it on 2 May, and it entered into force on 23 May 2018; on 29 May Przyłębska ordered the publication of K 47/15, K 39/16 and K 44/16.⁸ On 5 June 2018 K 47/15 (Dz.U. 2018 item 1077) and K 39/16 (item 1078) were published; K 44/16 probably appeared as item 1079⚠ unverified.^9,11

According to Rzeczpospolita, the Regional Administrative Court in Warsaw, in a judgment of 20 June 2018 (V SA/Wa 459/18), found Muszyński to be an "osoba nieuprawniona" ("person not entitled") to adjudicate in the Tribunal and reopened proceedings, pointing to his participation in the bench in SK 37/15 (20 December 2017); whether that judgment became final and what followed have not been established⚠ unverified.⁶⁵

The Venice Commission and the European Commission (in brief)

Opinion CDL-AD(2016)001, adopted on 11 March 2016 (known from the Polish translation published by TVN24): a quorum of 13 of 15 judges goes much further than the European standard and risks blocking the Tribunal (points 67–71); a two-thirds requirement is not a general rule, and Article 190(5) of the Constitution requires a simple majority (points 79–82); the combined effect of the changes could seriously disrupt the Tribunal's effectiveness (point 88); the judgment of 9 December 2015 on terms running from election should be respected (point 109).^37,66 According to Demagog and Polish Wikipedia, the Commission also identified the election of judges in advance by the previous Sejm as the source of the crisis and called for dialogue and respect for the judgments.^22,8

Opinion CDL-AD(2016)026 (108th plenary session, 14–15 October 2016) was requested by the Secretary General of the Council of Europe, Thorbjørn Jagland; the Polish government sent no representative (points 1–8).⁴² The Commission stated that the July Act requires cases to be assigned to the three December judges who, according to the Tribunal's case law, were elected in breach of the Constitution (point 103), that publishing and implementing K 47/15 is a condition for resolving the crisis (points 16, 76, 86), and that the President of the Republic choosing the Tribunal's President from three candidates gives him excessive influence given the current composition (points 26–31).⁴² Since the Tribunal held the October election valid, there were no vacancies for the December election (§ 107).⁴¹

In Recommendation (EU) 2016/1374 of 27 July 2016 the European Commission found a systemic threat to the rule of law and gave Poland three months; on 27 October 2016 the government replied, disagreeing with the recommendation on every point.⁴⁴ In Recommendation C(2016) 8950 of 21 December 2016 the Commission found, among other things, that three judges it described as properly elected in October 2015 had not taken office, while three elected without a valid legal basis had been allowed to adjudicate, and recommended full implementation of the December 2015 judgments and publication of the judgments of 9 March and 11 August 2016, setting two months (points 61, 65–66, 68).⁴⁴ The European Parliament adopted resolutions on 13 April 2016 (according to Demagog, calling for implementation of the judgments of 3 and 9 December 2015) and 14 September 2016.^22,44 On 20 December 2017 the Commission submitted a reasoned proposal under Article 7(1) TEU, citing the absence of independent and legitimate constitutional review and recommending that the Tribunal's judges, President and Vice-President be elected and appointed in accordance with the law; according to en.wikipedia, it issued a fourth Recommendation the same day.^67,39 Later rulings — the ECtHR judgment Xero Flor of 7 May 2021 and the CJEU judgment C-448/23 of 18 December 2025 — and the Sejm resolution of 6 March 2024 (M.P. 2024 item 198) are covered in the articles on Europe and on 2023–2025.^68,69,49,29

Disputed points

• Whether the Sejm's election of a judge is final — as the Tribunal held in K 34/15 and U 8/15, a view also taken by the RPO and the Venice Commission — or a step the Sejm can deprive of force by resolution and the President complete with the oath (the 8th-term Sejm, the President, later the Tribunal's 2017 leadership).^4,7,25,38
• Whether the President could decline the oaths of Hauser, Jakubecki and Ślebzak: the Tribunal held there was a duty to take the oath without delay (point 5 of K 34/15), and the President did not take it even after the judgment; the reasons for the refusal are known only from the press and Wikipedia.^4,39
• Whether the three seats filled on 2 December 2015 were vacant: according to judgments K 34/15 and K 35/15 (point 5) and decision U 8/15 they were not; the Venice Commission and the European Commission took the same view, and the ECtHR (Xero Flor, M.L.) and the CJEU (C-448/23) later based their judgments on it. The Tribunal's 2017 leadership maintained that K 34/15 did not decide this as regards persons.^{4,6,7,41,44,70,71,49,38}
• Whether judgments issued without applying the Acts of December 2015 and July 2016 are binding and must be published: the Constitution (Article 190(1)–(2)) makes judgments universally binding and requires their publication without delay; the government in 2016–2018 maintained that judgments issued without applying those Acts were not to be published; the Venice Commission and the European Commission that they were; in K 39/16 the Tribunal held Articles 89–90 of the July Act unconstitutional, and the 2018 publication headings state a breach of the 2015 Act.^{1,8,42,44,9,11}
• Whether the General Assembly of 20 December 2016 validly presented candidates for President of the Tribunal: the CJEU (C-448/23) held that fundamental rules were breached in presenting the candidate, one of the reasons it found the Tribunal not to be an independent tribunal established by law; the HFPC, Judge Pszczółkowski and the European Commission had disputed the procedure earlier; the Tribunal's 2017 leadership and the President of the Republic treat it as valid, and the Tribunal maintains that the CJEU has no jurisdiction over it.^{56,49,53,44,38,72}
• Whether the function of a judge acting as President (Art. 17 of the Implementing Provisions Act) is constitutional — the HFPC disputes it; the European Commission recommended that the Vice-President deputise instead.^53,44

Evidentiary gaps

• Statements by the President's Chancellery from October–December 2015 were not retrieved; the President's position is known from the press and en.wikipedia.³⁹
• The number of the 7th-term Sejm print with the candidacies of 29 September 2015 and the committee opinion of 7 October 2015 were not established.²⁴
• Who submitted the drafts of the 25 November 2015 resolutions was not checked in prints 42–46, nor were the resolutions' full preambles.²⁵
• Which provision the Sejm relied on for the election of 2 December 2015 was not established; the research chronology lists Art. 19 of the 2015 Act or Art. 137a, and the amendment containing Art. 137a entered into force on 5 December.^32,5
• Missing: the full reasoning of K 34/15 and K 35/15 with point numbers, the bench and any dissents in U 8/15, and the names of the dissenting judges in K 47/15 and K 39/16.^20,7,8
• The oath dates of Warciński, Zielonacki, Piskorski and Wyrembak, and who nominated Warciński, Piskorski and Wyrembak, were not established.^46,45,29
• No document was found assigning Przyłębska and Pszczółkowski to the seats of Liszcz and Cieślak, nor letters from the President of the Tribunal on not assigning cases in 2016.^35,36
• The Journal of Laws number of the 2018 publication act, the position of K 44/16 in Dz.U. 2018 and the publication dates of Dz.U. 2016 items 2072 and 2073 were not established.^8,9
• Case numbers, courts and outcomes of any lawsuits by Hauser, Jakubecki and Ślebzak, and whether WSA judgment V SA/Wa 459/18 became final, were not established.⁶⁵
• The full conclusions of both 2016 Venice Commission opinions with point numbers, and the original texts of the European Commission recommendations in EUR-Lex, were not retrieved.^42,37,44
• Conflicts between sources: en.wikipedia says five people were sworn in after midnight on 2 December, the Tribunal's documents say four; Matczak says Pszczółkowski was absent on 20 December 2016, Rzeczpospolita and the Tribunal say Rymar; the European Commission and Wikipedia give different dates for the General Assembly's lack of quorum in November–December 2016.^{39,7,57,53,44,8}
• Conflicts within the research materials: one study marks the content of the 19 November 2015 amendment and judgments K 35/15, U 8/15, K 47/15 and K 39/16 as unverified, while another bases them on Journal of Laws texts; the version based on the Journal of Laws is used.^5,6,9,11 One study (citing Wikipedia) says application K 34/15 was filed by PO and PSL MPs, while the Tribunal's communiqué says PO MPs; the Tribunal's version is used.^21,7