In Uncertain Waters: The Restoration of the Rule of Law in Poland

The victory of Karol Nawrocki, backed by the Law and Justice party (PiS), in the presidential election is set to alter the trajectory of one of the central projects of the coalition government led by Prime Minister Donald Tusk: the restoration of the rule of law in Poland. The first phase of the “Transition 2.0”, which lasted a year and a half and involved preparing legislative proposals in the hope of approval by a reform-friendly president, has now concluded. 

For the duration of his term Nawrocki’s five-year presidency will significantly hinder—and may even entirely block—the resolution of the constitutional crisis in which Poland has been mired since a decade. Nonetheless, the government can—and should—continue its efforts to improve the judiciary, making it more effective and efficient.

In the second round of the election, Nawrocki defeated the Civic Coalition candidate Rafał Trzaskowski by a mere 370,000 votes, obtaining 50.89% of the total vote. This result underscores the strong polarization of the Polish electorate and is set to profoundly influence the country’s democratic trajectory.

Duda’s Last Months

Until October 6, 2025 the presidential office remains occupied by Andrzej Duda, who is completing his second and final term. Duda consistently played an active role in undermining the rule of law. It began with him accepting the oath of office from three individuals appointed to the Constitutional Tribunal by the PiS majority in December 2015, instead of three lawfully elected judges chosen by the previous PO-PSL majority. He also swore in judges selected for the National Council of the Judiciary (KRS)—a body originally intended to protect judicial independence—through a flawed procedure established under 2017 PiS regulations, whereby 15 judges were appointed by the Sejm, rather than being chosen by the judiciary itself, as previously required. Duda signed numerous laws that contributed to the erosion of the rule of law, including reforms to the KRS, the Supreme Court, and the so-called “muzzle law” tightening disciplinary measures against judges—measures used to harass judges defending judicial independence.

Following the victory of a pro-democratic center-right to left coalition in the 2023 parliamentary elections, Duda started acting as a brake on rule of law reforms. In 2024, he referred laws passed by the Sejm concerning the KRS and the Constitutional Tribunal to the tribunal itself, which is entirely composed of judges appointed by PiS. Since December 2024, the tribunal has been chaired by Bogdan Święczkowski, a close associate of PiS former justice minister Zbigniew Ziobro. Święczkowski’s six-year term as president of the tribunal is set to end in 2030. As its president, he holds significant power over the composition of adjudicating panels.

New President, Old Ways?

While Nawrocki generally lacks substantial leadership experience and does not have a strong political background, in 2021, he was appointed by PiS to the strategically significant post of President of the Institute of National Remembrance (IPN), a state institution responsible for historical policy—a key component of PiS’s identity project. Nevertheless, in the presidential election, Nawrocki ran as an independent candidate with PiS support only. A relatively unknown figure, he was chosen because his profile resonated with younger right-wing voters. During the campaign, he sought to attract supporters of the far-right Confederation (Konfederacja) party, whose votes ultimately secured his presidency.

Throughout the campaign, Nawrocki portrayed himself as a continuation of Duda’s legacy. His presidency will likely focus on undermining and discrediting Tusk’s government and assisting PiS in winning the next parliamentary elections, scheduled for 2027—unless early elections are called. The latter is not impossible, as Nawrocki’s victory increases the risk of the coalition government’s collapse. For Tusk’s cabinet, cohabitation with Nawrocki is likely to be more difficult than it was with Duda.

Under the Polish constitution, the president holds veto power, and the current governing coalition lacks the supermajority required to override it. Additionally, like Duda, Nawrocki can exercise an informal veto by referring legislation to the Constitutional Tribunal for preemptive review.

Nawrocki is expected to ensure PiS’s return to power and will likely block initiatives of the current government. He is almost certain to oppose judicial reforms, any liberalization of abortion laws, as well as legislation concerning LGBTQI+ rights—including the recently passed law extending hate speech protections to include sexual orientation, age, and disability and a bill introducing civil partnerships in Poland.

Nawrocki’s presidency will also affect the accountability process. Once in office, he will hold the power of presidential pardon, meaning that if PiS politicians or their associates are convicted with final rulings for crimes committed during the 2015–2023 period, he could pardon them—just as President Duda did with Kamiński and Wąsik. However, given the slow pace of Polish courts, it remains uncertain whether final judgments in two instances could be reached within Nawrocki’s five-year term.

A New Strategy

Strategically, the government had assumed Trzaskowski’s victory—an assumption now clearly mistaken in hindsight. As a result, Tusk’s government will need to develop a new strategy for judicial reform, though systemic recovery is becoming increasingly unlikely. 

The political standing of Justice Minister Adam Bodnar has weakened following the presidential election. Some Civic Coalition politicians have criticized him for the lengthy process of preparing reforms and holding PiS-era figures accountable. Bodnar rebuked this claim by listing proceedings conducted against those in power between 2015 and 2023 and their associates.

In February 2024, Bodnar presented an Action Plan to restore the rule of law. By the presidential elections, three reform bills regarding the KRS and the Constitutional Tribunal had been passed. Additionally, a bill on the separation of the roles of justice minister and prosecutor general is under consultation, and a draft bill on regulating the status of irregularly appointed judges has been presented. Furthermore, a comprehensive reform of the prosecutor’s office is underway, and Poland has changed its stance in ongoing EU legal proceedings related to the rule of law crisis.

Some substantive changes have occurred: the disciplinary system is no longer used to harass judges, and Minister Bodnar, following appropriate procedure, has replaced court presidents. However, in the case Wałęsa v. Poland, the European Court of Human Rights (ECtHR) ruled that Poland must adopt a systemic solution for judges appointed under flawed procedures. A major challenge remains the lack of trust between lawfully appointed judges and the so-called “neo-judges”. The Ministry’s draft legislation proposes stripping some of these irregularly appointed judges of promotions received through unlawful means—a move Nawrocki will likely oppose. 

Regardless, the government should continue drafting and passing the promised legislation. Doing so is necessary to maintain credibility and demonstrate a coherent plan to restore the rule of law.

The government will also need to determine how to handle the Constitutional Tribunal. Currently, it ignores the tribunal, refuses to publish its rulings—a practice criticized by the Venice Commission—and does not nominate candidates for vacant judicial posts. The tribunal is meant to consist of 15 judges, but only 11 positions are currently filled, one by a so-called “double” lacking a lawful mandate. Another vacancy is expected in December, with two more anticipated in 2026. The tribunal’s judges are appointed by the Sejm with a simple majority, though the current government has proposed a bill requiring a qualified three-fifths majority.

Another critical issue is the KRS, whose current term expires in May 2026. Minister Bodnar has avoided announcing new judicial appointments to prevent the existing KRS and the president from nominating further irregularly appointed judges. As mentioned, under PiS legislation from 2017, 15 members of the KRS are selected by parliament. This leads to a politicization of appointments that undermines judicial independence, as recognized by the Supreme Court, the ECtHR, and the Court of Justice of the EU (CJEU). The government is expected to appoint a new KRS under the existing law in 2026, but it may consult with judges to ensure that nominees are acceptable to the judiciary—a step already announced by Minister Bodnar.

With Nawrocki as president, the government is also unlikely to succeed in reforming the Supreme Court or abolishing the two chambers added under PiS: the Chamber of Extraordinary Control and Public Affairs—which as established by the CJEU is not an independent court under EU law—and the Chamber of Professional Accountability. Moreover, it will face limitations in selecting candidates for the positions of judge at the CJEU. Currently, the position is vacant following the departure of Judge Marek Safjan. Legislation enacted during the PiS-era, before the 2023 parliamentary elections, requires presidential approval for appointments to high-level EU positions.

What Can Be Done

Alongside constitutional repair, restoring the rule of law must be accompanied by genuine judicial reform aimed at improving efficiency and reducing case backlogs. Planned reforms include revisions to civil and criminal procedures, continued digitalization of court operations, and procedural improvements to expedite foreign currency mortgage (franc loan) cases, which currently congest parts of the judiciary. The Ministry of Justice also aims to promote mediation across various types of cases. There are plans to streamline the system of court experts, which has contributed to delays in adjudication, and court staff are expected to receive salary increases. Over 1,000 additional judicial assistants have already been hired. These changes are unlikely to be blocked by Nawrocki, especially since not all of them require legislative approval.

Improving the efficiency of the judiciary would be a major achievement for any government—but especially in Poland, where the current administration is largely assessed through the lens of its ability to resolve the constitutional crisis. Due to political constraints, progress on that front will take much longer than anticipated.

Due to Nawrocki’s victory in the election, constitutional issues in Poland are likely to become even more complex, and comprehensive systemic repair may prove unachievable in the near term. Nonetheless, the judicial system can—and should—be improved. The Polish case clearly illustrates how deeply intertwined political dynamics are with efforts to restore the rule of law.

Anna Wójcik is a ReThink.CEE fellow 2021 of the German Marshall Fund of the United States, an assistant professor at Kozminski University, and principal investigator in the research project “The European Union media regulation and the protection of media freedom in Member States.”

This article was first published by the Review of Democracy on June 11, 2025.