Poland’s centre-left government led by Prime Minister Donald Tusk has pledged to investigate claims that the country’s Internal Security Agency (ABW) obtained intelligence from inside the European Court of Human Rights (ECHR) under a previous Law and Justice (PiS) government.
Justice minister and prosecutor-general Waldemar Żurek said on August 19 that the authorities would examine whether the agency surveilled the Strasbourg-based court while Bogdan Święczkowski, now president of Poland’s Constitutional Tribunal (TK), led the agency between 2006 and 2007.
PiS led a minority government between 2005 and 2006 and then a coalition government in 2006-2007 before Tusk came to power in coalition with the centre-right Polish People’s Party (PSL) in November 2007 and that government ruled Poland between 2007 and 2015.
The party regained power as a majority government in 2015 and ruled the country until 2023 when Tusk returned with a centre-left coalition composed of his Civic Coalition (KO), Poland 2050, the PSL and the Left.
In that second PiS government Święczkowski was a deputy justice minister in 2015 before moving on to become national prosecutor in 2016, a position he occupied until 2022 when he was elected as a constitutional court judge.
He was selected by the then PiS allied President Andrzej Duda as president of the tribunal in December 2024.
Święczkowski is not recognised as a legitimate president by the Tusk government which has argued ever since coming to power in 2023 that the constitutional court is illegitimately constituted since PiS took power in 2015 and packed the court with its nominees, sometimes involving allegedly illegal appointments.
The Tusk government’s inquiry follows remarks Święczkowski made to independent conservative broadcaster TV Republika in mid-August in which he said that the Internal Security Agency had “various kinds of means and information coming from inside the European Court of Human Rights”.
Święczkowski cited the information while arguing that the court could not be regarded as an independent judicial body because of the way it is elected by a parliamentary body (Parliamentary Assembly of the Council of Europe) from among nominations submitted by the governments of member states.
The ECHR hears cases concerning alleged violations of the European Convention on Human Rights by members of the Council of Europe, including Poland.
It is meant to be separate and independent from the institutions of the European Union but its rulings in recent times have been broadly in line with those of the EU’s European Court of Justice (ECJ) with regards to seeing Polish judicial reforms introduced by the last PiS government as being a threat to judicial independence and the rule of law.
Żurek took to X to pledge that the authorities would “check in detail every thread of the alleged surveillance” described by Święczkowski.
“If as head of the ABW he committed a crime, he will have to bear the consequences,” Żurek said.
The implication is that Święczkowski could be prosecuted if the constitutional court in a new composition were to lift his immunity.
Tusk also addressed the allegations against Święczkowski on the same day, in response to a question from news website Wirtualna Polska, accusing Święczkowski of having a history of being involved in dubious surveillance.
“I know he likes to wiretap,” Tusk said. “According to a great deal of data, my family and I were also victims,” he added, without producing any evidence of the allegation.
The present government has claimed that its predecessor had ordered illegal wiretaps of the then liberal opposition. All the surveillance was, though, authorised by judges and concerned alleged criminal rather than political activities and none of the alleged cases have as yet gone to court.
Tusk said that Święczkowski’s legal responsibility should be determined by the appropriate authorities, adding that his government would use lawful measures to repair Poland’s justice system.
The PM also criticised Święczkowski’s appointment as head of the tribunal, calling it an illustration of the deterioration of legal institutions under the previous PiS administration.
The constitutional court determines whether laws comply with Poland’s constitution, rules on any attempt to delegalise a political party and has the power to inform the Marshal of the Sejm of the inability of the President to carry out the duties of his office.
Święczkowski denies any suggestions that his remarks proved that any surveillance had actually taken place. He said that he had information but did not reveal its source nor did he claim that he or the then government had initiated any such surveillance.
The ABW, the agency Święczkowski was in charge of between 2006 and 2007, also reacted to the media reports, its press office saying that after such a long time he “may no longer remember precisely what the agency dealt with and where the limits of its powers lay”.
The Tusk administration, after for two years having argued that the TK is illegitimate because of the alleged original sin of three justices being appointed to the court in 2015 in place of those who had been elected by the previous parliament on spurious grounds of parliamentary procedure, has now decided to elect judges to the court.
The Sejm elected six judges on March 13, four of whom were not accepted by the PiS allied President Karol Nawrocki because he wanted the constitutional court in its present composition to rule as to the validity of their election, having been delayed for years after vacancies on the court had actually arisen.
The ruling Tusk majority decided not to wait for the President and, in a move the legality of which is hotly contested, the four took the oath of office in the Sejm on April 9 using the formula that they were swearing “before the President”.
According to the Polish constitution that oath of office may only be taken in front of the head of state, no one else. Therefore Nawrocki and his aides have now said that since the judges defied the constitution rather than wait for a constitutional court ruling they have forfeited the right to become constitutional court justices.
The ECHR has ordered the Polish authorities, in an interim measure issued on May 5, to refrain from hindering the four from taking up and exercising their duties. It has not ruled on the substance of the case.
Święczkowski rejects that, arguing that the President had every right to ask the constitutional court for its opinion on their election and that the Polish constitution, the provisions of which trump European law, make it clear what the powers of the President are.
Żurek has said the government is considering entering the tribunal by force to install the four disputed justices in the 15-member court, though he insisted any such step would amount instead to a determined enforcement of the Strasbourg court’s interim measure.
If that was to happen the government would by the end of this year have a majority on the constitutional court which would elect candidates for president of the court for the President to approve.
The President would not approve such a move, though, and therefore the legal validity of decisions taken by the court would continue to be questioned.
PM Tusk seems determined to proceed. On August 13 he confirmed a retiring Cabinet minister in his government, Maciej Berek, as a candidate of his party to be a constitutional court judge to fill a vacancy that will arise in September.
The stand-off between Tusk’s administration and President Nawrocki is almost certain to continue, though, since the head of state has said he will not sign legislation that attempts to remove judges appointed during the time of the previous government and will not accept nominations of judges to the constitutional court that defied him.
Only a parliamentary majority allied with Nawrocki could introduce any legislation for further reform of the judiciary.
If a right-wing majority does emerge, its attempts to reform the judiciary could once again come into conflict with the European Commission and the ECJ, as they did during the period of the last PiS government.
This is why the dispute over Poland’s judiciary is not likely to be resolved any time soon.
