—Jan Denka, PhD Student, Adam Mickiewicz University (Poznań, Poland)[*]
It has been over two years since the PiS party lost power in both chambers of the Polish Parliament to a coalition of several opposition parties. In late 2023, the current parliamentary majority and the newly formed government began “rebuilding the rule of law”. One could reasonably expect that the recent political turnabout would therefore lead to improvements in the enforcement of international human rights standards. Although the PiS party was notorious for introducing new social policy measures, it did not use its authority to strengthen procedural guarantees of social rights protection. Under the current government, the emerging state of affairs – at the halfway point before the next parliamentary election – is not particularly encouraging, either. Serious impediments to the enforcement of social rights still exist, and to some extent, the obstacles have been exacerbated. However, there are still actions that can be implemented to strengthen guarantees of their protection. Overlooking these in the process of “rebuilding the rule of law” may adversely affect the enjoyment of these rights.
The nearly non-justiciable rights
Long before the “constitutional crisis” began in 2015, Polish judges remained somewhat hesitant to rely on the provisions of the ICESCR and the catalogue of social rights enshrined in the Polish Constitution. More generally, Polish authorities have been repeatedly criticised by the UN Committee on Economic, Social and Cultural Rights for failing to provide adequate examples of social rights enforcement through the case-law of domestic courts (see: the concluding observations published in 1998, 2002, 2009, 2016, 2024). However, the Constitutional Tribunal has thus far been the only judicial body that had developed particularly distinctive ways of adjudicating cases concerning social rights. Still, its jurisprudence was characterised by some limitations, as in many cases the Tribunal acknowledged a broad scope of the legislature’s discretion in the enforcement of social rights, and could only declare the contested provisions unconstitutional if they were also incompatible with some other constitutional principles and/or infringed the very “essence” of social rights.
From the perspective of an individual, seeking judicial protection in cases involving alleged breaches of social rights was, therefore, always deeply problematic. Firstly, because the courts have been rather unlikely to invoke any constitutional or international provisions expressing social rights standards when resolving specific cases. Moreover, under Article 193 of the Polish Constitution, referring a question of law to the Constitutional Tribunal is merely a power, not an obligation. Secondly, because constitutional complaints can be lodged only if “a final decision on freedoms or rights” has been issued. The outcome of pending proceedings before the Tribunal remains uncertain and delayed (even for many years). Under such circumstances, vulnerable groups, which benefit the most from social rights, could inevitably be put at a disadvantage.
This reluctant approach to the judicial enforcement of social rights did not see a considerable shift during the constitutional crisis. Interestingly, even though the Constitutional Tribunal has been successively “dominated” by judges elected by the PiS parliamentary majority, the newly appointed judges still relied on arguments developed in the pre-2015 case-law. At that time, the judicial enforcement of social rights became even more problematic. Given the considerable controversies surrounding the legitimacy and independence of the Constitutional Tribunal, many Polish judges have lost trust in this institution, which has further limited the practice of referring questions of law to this institution.
Rebuilding the rule of law without social rights enforcement?
The electoral victory of the opposition parties in 2023 marked the beginning of a process called “rebuilding the rule of law”, which has primarily aimed at reinforcing the independence of the judiciary and respect for international human rights standards. As part of this political project, on 4 March 2024, the first chamber of the Polish Parliament (Sejm) adopted a resolution that overtly declared the Constitutional Tribunal unable to perform its constitutional duties. As a response to this quite unusual act, the Prime Minister ceased publishing the Constitutional Tribunal’s judgments in the Journal of Laws. This decision has affected any rulings regardless of whether or not, in a given case, the “double judges” were part of adjudicating panels.[1] While the primary objective was to comply with the ECtHR judgment Xero Flor, it is worth reflecting on the debit side of the Prime Minister’s move.
Since March 2024, the Tribunal has delivered five different decisions on the merits concerning various aspects of social rights protection. In each of the cases, the result was favourable for the rights-holders – pensioners (4 June 2024, SK 140/20), tenants (20 November 2025, P 2/25) and carers for persons with disabilities (18 March 2025, SK 22/22; 8 August 2025, SK 33/23; 4 December 2025, SK 50/22). Although the judgments have been announced by adjudicating panels and made public by a case-law database, none of the rulings has been published by the Prime Minister in the official publication pursuant to Article 190(2) of the Polish Constitution. As a result, those seeking judicial enforcement of their social rights encountered another obstacle: even winning the case before the Tribunal could not guarantee that their rights would be efficiently enforced. The above-mentioned case concerning pensioners’ rights can serve here as an illustrative example. The National Insurance Institution (Zakład Ubezpieczeń Społecznych) cited the lack of publication as grounds for not withdrawing additional pension benefits, which forced many people to initiate subsequent legal proceedings in ordinary courts. Moreover, despite several interventions made by the Polish Ombudsman (Rzecznik Praw Obywatelskich), the government did not respond promptly to the constitutional problem raised in the case. Eventually, an amendment to existing laws was proposed as an alternative solution, but after more than 1,5 years, no act has been adopted yet.
The practice of not publishing judgments sparked criticism from the Venice Commission, which underlined that the government is not in a position to “control” their legal force and that the validity of the judgments cannot depend “on the goodwill of political authorities” (see the Opinion adopted on 7 December 2024, § 64). The rulings issued by panels involving the so-called double judges certainly raise doubts about their legal effect, because, according to recent ECtHR case-law, the Constitutional Tribunal, in such compositions, is not considered a “tribunal established by law” within the meaning of Article 6 § 1 of the European Convention on Human Rights. Still, it is not the government’s job to “invalidate” these rulings. Moreover, when it comes to the above-mentioned cases on social rights, it must be noted that Justyn Piskorski, whose status as a judge was discussed in the famous ECtHR judgment M.L. v. Poland, participated in issuing only two of the judgments (SK 140/20 and P 2/25) as one of five persons sitting in the adjudicating panels. The three remaining rulings were adopted without any judge whose appointment was negatively assessed by the Strasbourg Court. Additionally, only the first of the five judgments was issued when Julia Przyłębska, whose position as President of the Tribunal was found to have violated EU law (see the judgment of the CJEU, 18 December 2025, C-448/23, § 294), was still in office. These circumstances prompt the question whether the means adopted as part of “rebuilding the rule of law” were really proportionate and thoroughly evaluated in terms of their effects on the enforcement of social rights.
In search of stronger guarantees of social rights protection
One could suppose that systemic problems with insufficient institutional guarantees of social rights protection affect, to the same extent, any other human rights. After all, the refusal to publish the Tribunal’s judgments also applies to cases concerning civil and political rights. In practice, there exists a substantial difference in the scope of available safeguards, however. First and foremost, the judicial enforcement of social rights has always been more problematic due to the wording of Article 81 of the Polish Constitution, which imposes limitations on the assertion of certain social rights recognised in the constitutional catalogue.
Another point of divergence is access to proceedings before international bodies. Poland is a party to the 1966 Optional Protocol to the International Covenant on Civil and Political Rights, but not to the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Individuals can, as an alternative, rely on complaint procedures at the UN level, but not in every category of rights. A similar disparity can be observed in the Council of Europe system. The European Court of Human Rights, which, amid the “constitutional crisis”, seems to fulfil the functions of a “European constitutional court”, mainly deals with cases concerning civil and political rights and, to a lesser extent, with social rights. The European Committee of Social Rights could serve as an alternative body responsible for improving enforcement. Still, since 1995, Poland has not accepted the collective complaints procedure, which could strengthen the position of national NGOs and ultimately benefit rights-holders.
The reality is that in the last two years, Polish authorities have failed to ratify the UN 2008 Optional Protocol to the ICESCR and the 1995 Additional Protocol that provides for a system of collective complaints before the European Committee of Social Rights (not to mention the 1996 Revised European Social Charter). Accepting these additional international obligations could considerably change the landscape of social rights enforcement. In view of the irregularities affecting the functioning of the Constitutional Tribunal, NGOs and individuals would be able to seek the protection of their rights at the international level. In turn, it would compensate for the deficiencies of the national human rights protection system invoked by the “constitutional crisis”. This kind of shift could also have a positive impact on how domestic courts resolve cases concerning social rights (similarly, the ECtHR affects national case-law concerning civil and political rights).
As of now, the project of “rebuilding the rule of law” does not seem to be geared towards providing stronger institutional guarantees for social rights protection. Yet, much can be done to place this issue on the agenda. “Catching up” with ratifying international agreements is only the first step. Re-examining the problem of publishing the above-mentioned judgments, filling vacant seats in the Tribunal with excellent experts on constitutional law, promoting the ICESCR among judges (as well as the society) by the Ministry of Justice and initiating constitutional debates about amending Article 81 of the Polish Constitution could all contribute to fostering a legal culture in which courts can effectively enforce social rights. Overlooking this much-needed element can seriously undermine efforts to reinforce the rule of law in Poland. To use the words put in the Council of Europe 2023 Reykjavík Declaration “ –social justice is crucial for democratic stability and security”. It is therefore necessary to search for better ways to safeguard the enforcement of social rights, and the best time for Poland to find them is now.
Suggested citation: Jan Denka, Social Rights at Stake: The Overlooked Element in Rebuilding the Rule of Law in Poland, Int’l J. Const. L. Blog, Feb. 20, 2026, at: http://www.iconnectblog.com/social-rights-at-stake-the-overlooked-element-in-rebuilding-the-rule-of-law-in-poland/
[*] The article is a direct outcome of the research project “Social Rights in the Central and Eastern European Constitutionalism”, which received funding from the National Science Centre (Poland), no. 2022/47/D/HS5/01784.. The author is a recipient of the AMU Foundation Scholarship for PhD students for the 2025–2026 academic year.
[1] The term “double judges” is one of the crucial expressions used in Polish debates on the constitutional crisis. It refers to persons – elected by the PiS parliamentary majority – who filled seats in the Constitutional Tribunal already taken by judges elected in 2015 by the previous parliamentary majority of the Civic Platform (PO) and the Polish People’s Party (PSL). However, the lawfully elected judges were never admitted to the bench because the President of Poland failed to receive the oath from them. Instead, he enabled the “double judges” to adjudicate in the Tribunal. This move was one of the key events that led to the constitutional crisis. The theme was extensively discussed by many scholars, including Wojciech Sadurski.