17 June 2025
A recent declaration by the Minister of Justice regarding the possible selection of members of the National Council of the Judiciary (KRS) for another term by parliament has electrified public opinion. This is particularly true for those who have closely followed developments in the Polish judiciary in recent years. Why such strong reactions? One of the key post-election slogans of the new ruling coalition was „restoring the constitutional and apolitical nature of the KRS.” The 2018 decision to strip judges of the right to elect 15 KRS members and transfer that power to the Sejm caused an earthquake in the justice system. It triggered accusations of constitutional violations, politicization, mass protests, and complaints to international tribunals. Every judge appointed on the recommendation of this reformed KRS was labeled a „neo-judge”—someone masquerading as a real judge under the Constitution.
Adam Bodnar himself, then serving as the Ombudsman, vehemently opposed this change. Now, as Minister of Justice, Bodnar’s recent declaration calls into question the weight and sincerity of past accusations and massive protests. It forces us to ask whether the issue has been reduced to a simple matter of current politics—where one’s viewpoint depends on where one sits, and the optics of the former opposition change once they assume power. This raises fundamental questions about the essence of the rule of law.
The Origins of Judicial Councils
In democratic countries where the political system is based on the separation of powers, great importance is placed on judicial independence. To ensure this, various institutions are established. In Poland, the KRS has existed since 1989. A glance at history shows that judicial councils are typical for post-transition Central and Eastern European countries (such as Hungary, Bulgaria, Croatia, and Lithuania).
However, it’s worth noting that a judicial council is not a necessary condition for an independent judiciary. While some Western countries had similar bodies before World War I, they are not universal. No single model has been established, and five EU Member States (Germany, Austria, Finland, the Czech Republic, and Luxembourg) have no equivalent to the KRS. Where such councils do exist, their powers vary—some are purely advisory, while others play a role in judicial appointments. Each council’s composition and authority reflect the unique legal traditions of its country.
Who Selects the Judges?
The Constitution stipulates that the National Council of the Judiciary (KRS) is composed of 25 members, including—literally—”fifteen members chosen from among the judges of the Supreme Court, ordinary courts, administrative courts, and military courts.” The crux of the problem lies in whether the phrase „chosen from among judges” should be interpreted as „chosen by judges.” The letter of the Constitution does not explicitly determine who gets to select these judicial members of the KRS. Thus, we are left with interpretations—and these, as it turns out, shift with the changing political landscape.
Before 2018, Polish law granted this authority to the judiciary itself. Constitutional scholars were divided on whether this was the only permissible interpretation. Some legal experts argued that, within legislative discretion, the matter could be regulated in different ways. Even the Supreme Court, in some rulings, acknowledged that the Constitution did not exclusively reserve the right to elect KRS members for judges alone.
Critics pointed out that judges—both elected members and ex officio members (such as the First President of the Supreme Court and the President of the Supreme Administrative Court)—made up nearly 70% of the KRS. They argued that this imbalance risked judicial self-interest dominating the Council, isolating the justice system from broader societal concerns.
In March 2018, a controversial reform shifted the selection of judicial KRS members from judges to the Sejm (the lower house of parliament). The government at the time defended the change as necessary to strengthen democratic legitimacy and balance within the judiciary. However, it faced fierce backlash, with opponents decrying it as a politicization of judicial appointments.
The KRS Under Fire
Since 2018, the KRS has been accused of becoming a political tool. Critics argue that letting parliament elect most of its members violates the Constitution by granting the legislative and executive branches undue control over the judiciary.
After the 2023 change in government, the Sejm passed a resolution declaring that the previous parliamentary selections of KRS members had been made in „gross violation of the Constitution.” Meanwhile, the KRS’s legitimacy has been repeatedly challenged—by Poland’s Supreme Court, the Supreme Administrative Court, the Court of Justice of the European Union (CJEU), and the European Court of Human Rights (ECHR).
The conflict over the KRS has international ramifications. The EU has long criticized Poland’s judicial reforms as a threat to the rule of law, withholding billions in funding. The CJEU has repeatedly ruled that the post-2018 KRS does not guarantee judicial independence.
Given these legal rulings, one might assume that the only acceptable interpretation of the Constitution is that judges themselves must elect KRS members. Yet, the current government’s stance suggests otherwise.
Attempts at Reform and Continued Disputes
Under the Ministry of Justice, several draft laws have been proposed to amend the KRS statute and clarify the status of judges appointed after March 2018. However, the Venice Commission—a key European advisory body—has rejected these proposals. According to the Commission, compliance with EU court rulings requires individual verification of judicial appointments, with the right to appeal in court. It is impossible for a law to retroactively annul all resolutions of the National Council of the Judiciary (KRS) adopted after 2018, nor can it—under European standards—force all so-called „new judges” to return to their previous positions. Such a move would exceed parliamentary authority and violate the separation of powers. As the Venice Commission emphasized, the restoration of the rule of law must itself comply with the rule of law.
A Shift in Perspective
Against this backdrop, shortly after the presidential elections, Justice Minister Adam Bodnar announced that if he fails to reach an agreement with the president on his ministry’s proposed amendments to the KRS law, the judicial members of the Council could still be selected under the current legislation—meaning by parliament. With this statement, history has come full circle. Nearly all the arguments behind the reform project and the accusations against the previous government have been reversed. The method of appointing the KRS—once condemned as infecting the entire justice system—suddenly appears acceptable under new political circumstances.
Until now, we were told that the current crisis in the judiciary—the contradictory rulings of the Supreme Court, the Supreme Administrative Court, the Constitutional Tribunal, the CJEU, and the ECHR—stemmed from the 2018 changes in the KRS appointment process. Yet the Minister’s declaration casts a new, unexpected light on the issue of so-called „neo-judges.” Their appointments have been challenged solely on formal grounds—namely, that they were selected by a KRS appointed by parliament. But if future judicial nominations are made under a KRS still shaped by parliamentary selection (as the minister suggests), will they not also be contested?
The Role of Law vs. Politics
A lawyer’s duty—unlike a politician’s—is to interpret legal provisions objectively, drawing conclusions based on jurisprudential principles rather than political expediency. This matter is grave: over the past seven years, the KRS has participated in appointing thousands of judges who have issued hundreds of thousands of rulings. Their legitimacy has been questioned, leaving litigants in uncertainty about their rights and obligations.
A credible constitutional review of past practices should guide negotiations between the parliamentary majority and the new president—especially given the international repercussions for Poland and its citizens.
The Rule of Law Reversed
The essence of the rule of law lies in predictability and non-arbitrariness—grounding state actions in clear rules so citizens can plan their lives accordingly. „Reversed rule of law,” however, occurs when those in power interpret laws based on political convenience rather than principle.
The KRS saga raises the question: Are we witnessing a principled struggle for judicial independence and Poland’s international reputation—or just another political skirmish? Recent statements by the Justice Minister suggest the latter.
The Real Loser: Public Trust
The biggest casualty of this conflict is society itself. When citizens perceive courts through the lens of political battles, trust in the judiciary erodes—and without trust, there can be no true rule of law.
The debate over judicial appointments, KRS reform, and compliance with European standards is complex, tangled in layers of legal doctrine, rulings, and interpretations. To an outside observer, it may be unclear whether this is a fight for fundamental principles or merely another move in the political game. One thing is certain: if the rule of law bends to political winds, democracy itself is at risk.
This text was produced as part of a project implemented under the Central European Academy
