This article is a part of Poland Unpacked. Weekly intelligence for decision-makers
President Karol Nawrocki’s decision to administer the oath of office to two of the six newly elected judges has opened a new chapter in the long-running dispute over the Constitutional Tribunal. At issue are both the scope of the head of state’s powers and the process for appointing judges to the court. The judges sworn in on Wednesday say they expect the president to administer the oath to the remaining four as well.
Only two of the six judges elected in March to the Constitutional Tribunal were invited to the Presidential Palace to take the oath of office before the president: Professor Dariusz Szostek and Dr. Magdalena Bentkowska. No invitations were extended to Professor Krystian Markiewicz, Professor Maciej Taborowski, Professor Marcin Dziurda, or Anna Korwin-Piotrowska.
President invites two of six judges
Even before Wednesday’s ceremony, Justice Minister Waldemar Żurek weighed in, saying he could not rule out alternative solutions. He argued that, by deciding which of the Sejm-elected judges to invite for the oath, the president was “once again attempting to arrogate powers to himself.”
“I am in favor of effectiveness, and there are, of course, various options—whether before parliament, before the Speaker of the Sejm, or even remotely,” Mr. Żurek said.
New judge: the Presidential Palace cannot censor the Sejm’s choice
The new judges took their oaths before noon, each separately. Speaking to reporters afterward, Dr. Bentkowska said she believed the Constitutional Tribunal could regain its former standing. She added that all judges elected by the Sejm in March should be invited to take the oath.
“The Presidential Palace cannot censor the choice made by the Sejm. If we have been sworn in, then I understand that the remaining four should have the same opportunity,” she said.
Professor Szostek offered a more detailed account, confirming he had asked President Nawrocki about the reasoning behind his decision. He noted that the procedure by which he and Judge Bentkowska had been elected was not questioned, and that the Sejm resolution of March 13—under which all six judges were elected—had been read aloud.
“I asked about the other judges, noting that a properly constituted Constitutional Tribunal consists of 15 members. I therefore believe the president will also administer the oath to the remaining judges. I have no doubt that, since the resolution has been recognized by the president in our case, it should—and in fact must—also be recognized in respect of the other four. We were elected on the same day, under the same procedure, each individually. Legally, we are in an identical situation,” Szostek said.
Two vacancies during Nawrocki’s presidency
Szostek also asked why only two judges had been invited.
“The president replied that two vacancies arose during his term of office, and therefore he has, for the time being, appointed two individuals,” Szostek said, adding that he hoped the remaining judges would also be invited. “Poland needs a strong Tribunal with independent judges. All six of us meet that standard. After nine years, we are tired of debates about ‘duplicate’ judges. We were all appointed in the same way, and I differ in no respect from my colleagues.”
He also stressed that the future shape of the Tribunal would depend largely on the president. “We need order restored and a Tribunal that commands authority—both for the state and for politicians.”
Presidential aide explains the decision
Zbigniew Bogucki, head of the President’s Chancellery, defended the move, confirming the rationale described by Szostek.
“It is the responsibility of the president, as head of state, for everything that happens during his term, entrusted to him by the nation in free elections,” Mr. Bogucki said.
He added that swearing in two judges would enable the Tribunal to adjudicate in its legally required full bench of 11 judges.
“Currently, there are nine judges on the Tribunal. The constitutional composition is 15 judges, but under the statute, a full bench requires at least 11. With nine judges, appointing two more satisfies that requirement. The president, in order to cut through the disputes, is assuming responsibility for everything that has happened around the Tribunal since August 6. Filling two positions, in line with the law, allows the Tribunal to function in a full bench,” he said.
Warning to the governing coalition
Mr. Bogucki also criticized the current governing majority for failing to fill vacancies in the Tribunal on an ongoing basis. The first vacancy under the current government arose in December 2024 and remained unfilled until now. He said he had received no explanation from the Speaker of the Sejm and no information on which former judges the newly elected ones were replacing.
He also rejected suggestions from coalition politicians that the oath is merely ceremonial. In his view, judges only become full members of the Tribunal once they take the oath before the president. He warned against proposals to administer the oath before other bodies.
“The president warns anyone who might entertain the reckless idea of having judges sworn in before another authority: that would constitute a constitutional violation and a criminal offense. If the governing majority wants to change these rules, it must do so through legislation. Taking the oath in violation of the law will result in refusal to administer the oath by the president, which - under the statute - would be equivalent to resigning from the office,” Mr. Bogucki said.
Competing interpretations of rulings
In defending the decision, Mr. Bogucki cited a Constitutional Tribunal ruling of December 3, 2015, concerning Article 194 of the Constitution. He argued that judicial terms should be individualized and that exceptional circumstances may require the president to protect higher constitutional values over the immediate administration of the oath.
The same ruling states that a temporary vacancy in the Tribunal is constitutionally acceptable—provided it is not a deliberate strategy. However, it also makes clear that administering the oath is not a matter of presidential discretion and that the president is obliged to accept it from judges elected by the Sejm.
A subsequent ruling on December 9 held that making the start of a judge’s term dependent on taking the oath is unconstitutional, as it would effectively involve the president in the selection process. That provision was subsequently repealed—a point highlighted by constitutional scholar Dr. Marcin Szwed.
Bogucki argued that since the Sejm had not specified which vacancies the new judges were to fill, the choice fell to the president.
Questions over consistency
He also described as a “constitutional violation” the election of judges more than a year after the expiry of their predecessors’ terms, noting that the law requires elections within 30 days before a term ends.
Journalists, however, pointed to a case under the previous Law and Justice (PiS) government, when more than six months elapsed between the end of Professor Leon Kieres’s term in July 2021 and the appointment of his successor, Bogdan Święczkowski, in February 2022. Bogucki dismissed this as an isolated case.
He further acknowledged that the two selected judges had not been publicly engaged in political activities—implicitly casting doubt on the independence of the others. Professor Markiewicz and Korwin-Piotrowska had led judges’ associations critical of PiS-era judicial reforms, while Taborowski had served as deputy to the Ombudsman Adam Bodnar.
“I think that is also an important aspect—namely, independence,” Mr. Bogucki said.
Experts: differentiation between judges is unlawful
Legal experts consulted by XYZ were unequivocal: the president had exceeded his authority. Professor Piotr Uziębło, a constitutional law scholar and vice dean at the University of Gdańsk’s Faculty of Law, rejected Bogucki’s arguments.
“They are highly strained. The claim that the president can select which judges to swear in does not align with constitutional principles. Differentiating between judges in this way is legally impermissible. The Constitution clearly states that the Sejm elects judges of the Constitutional Tribunal—not candidates. The oath is linked to the exercise of judicial powers,” he said.
“Attributing powers the president does not have”
In Mr. Uziębło’s view, the Presidential Palace is attempting to pressure the remaining judges not to seek alternative ways of taking the oath and to prevent them from assuming office.
He argued that the judges became members of the Tribunal at the moment of their election by the Sejm, though they cannot perform their duties without taking the oath.
“The statute states that the oath is taken ‘before the president,’ not ‘in the presence of the president.’ It could therefore be taken before a notary and submitted to the president. There is no doubt that Minister Bogucki is trying to attribute powers to the president that he does not have,” he said.
Further inconsistencies
Piotr Ciepiński, a legal scholar at SWPS University, also pointed to inconsistencies. He described as a “cognitive dissonance” the claim that earlier delays were exceptional, while similar circumstances now were deemed unacceptable.
He also noted that the 2015 ruling cited by Bogucki clearly states that administering the oath is not at the president’s discretion.
“These judges were properly elected. The president should therefore administer the oath without delay. He has no authority to assess the validity of their election—that is determined by the Sejm’s resolution. He cannot arbitrarily delay or choose whom to swear in,” Ciepiński said.
Like Mr. Uziębło, he argued that if the president delays, the oath could be submitted in writing, citing Article 4 of the statute on the status of Constitutional Tribunal judges.
“The form of the oath is not specified. It does not say it must be oral before the president. A written declaration submitted officially would have legal effect. The next step would be to report to the Tribunal and begin duties,” he said.
He also questioned the government’s argument regarding the start of judicial terms, noting that terms begin upon election by the Sejm, even if duties can only be performed after taking the oath.
The four remaining judges have written to the president requesting a date for their oath ceremonies, declaring their readiness to assume office.
Key Takeaways
- Legal experts are critical, arguing that the president is overstepping his authority by effectively deciding who may serve. They stress that judges assume office upon election by the Sejm and that the president has no discretion in administering the oath.
- Professor Szostek and Dr. Bentkowska, who took the oath on April 1, expressed hope that the remaining judges would be given the same opportunity. Those not invited have formally requested dates and declared readiness to serve.
- Presidential aide Zbigniew Bogucki justified the decision by citing two vacancies arising during President Nawrocki’s term and the need to reach the 11-judge threshold for a full bench. He also criticized the governing coalition for delays in filling vacancies, while hinting at political considerations.