Lesser independence of judiciary

During the next session of the Sejm, parliamentarians will debate on an amendment to the Courts Act. The amendment lowers judges’ retirement age and empowers the Minister of Justice to dismiss all presidents of courts and later arbitrarily appoint their replacements without the need to consult with judges of a given court. Together with previously implemented changes in the court system, the new measures proposed by the legislative branch put the courts in dangerous proximity to the executive.

Court presidents nominated by Minister of Justice

The proposed amendment is presented as an element of the reform of common courts, appearing along the organisational changes such as the appointment of coordinators for international cooperation and human rights. However, the true purpose of the proposal is to modify the personal composition of courts.

First and foremost, the amendment enables the Minister of Justice to appoint presidents of courts without the obligation to consult representatives of the judges working in a given court. This solution contravenes the jurisprudence of the Constitutional Tribunal, which ruled that the Minister of Justice, as the administrator of all courts, needs to participate in the process of the presidents’ appointment. However, as the Tribunal observed, the Minister’s power of appointment cannot surpass that of the judiciary. The proposed measures deprive judges of the opportunity to evaluate a candidate for the court president’s post, thus prevents any control over the actions of the Ministry of Justice.

Simplified procedure for court president’s dismissal

In addition to the above, the Minister will gain new powers in respect of a dismissal of a court president: he will be able to rely on a new ground for dismissal, namely the “ascertainment of particularly ineffective performance of a president’s administrative supervision or work organisation function in the court over which they preside or in the courts subordinate thereto”. Moreover, an opinion on a dismissal issued by the National Council of the Judiciary of Poland will bind the Minister only if it is adopted by the qualified majority of two-thirds of voting Council members.

In any case, within six months from the amendment’s entry into force, the Minister of Justice’s powers will be even more extensive. During this period, he will be able to dismiss all presidents and deputy presidents of common courts without the obligation to ask for the National Council’s opinion, and without cause.

Early retirement

The proposed law also lowers the retirement age of judges, introducing different retirement thresholds for women and men (60 and 65 years, respectively). A judge may serve past the above age limits but only with the Minister of Justice’s approval. Under current law, a judge may declare his or her will to remain on the bench to the Minister of Justice and is allowed to do so on condition that he or she presents a medical certificate of fitness for performing a judicial function.

The newly proposed regulations are incompatible with a judgment of the Constitutional from 1998. In this judgment, the Tribunal held that “it would clearly be unacceptable if a political body (the Minister of Justice), left beyond the organisational structure of the judiciary, was empowered to approve extensions of judicial tenure, in the same way as this was done in the Communist Poland”.

Courts increasingly subordinated to other branches of government

The discussed amendment to Courts Act is yet another change affecting the court system that was implemented in recent months. So far, the “reforms” included:

Complete subordination of court managers to the Minister of Justice: the managers will be appointed and dismissed at the Minister’s pleasure, without any public competition being held;

Associate judges will be appointed by the Minister of Justice, subject to a challenge by the National Council of the Judiciary, which must be submitted within a month from an appointment;

According to a legislative proposal whose second reading is to take place during the next parliamentary session, the Sejm will delegate judges to sit on the National Council of the Judiciary of Poland, which will consist of two assemblies: the first one comprising mostly of politicians, and the other – of judges.