The ICJ welcomes yesterday’s judgment of the Court of Justice of the EU (CJEU) which ruled that forcing the retirement of Polish Supreme Court judges by lowering their mandatory retirement age, violated EU law.
Following the judgement, the security of tenure of these judges must now be permanently ensured, the ICJ said.
“The independence of the judiciary in Poland has been systematically undermined by the Polish executive and legislative authorities in recent years. This is a landmark decision that should herald a return to the rule of law in Poland, including legal, institutional and practical protection for judicial independence,” said Róisín Pillay, Europe and Central Asia Programme Director at the ICJ.
“This decision should be fully complied with. But it should also prompt the Polish authorities to reverse the wider damage that has been done to the rule of law, to restore the independence of the institutions of the judiciary, and end the harassment of judges through unjustified disciplinary proceedings,” she added.
In its decision issued on 24 June, the CJEU found that the lowering of the retirement age for judges, without transitional arrangements for those already in office, was not justified by any legitimate objective and therefore undermined the principle of irremovability of judges, which is central to judicial independence. It therefore violated the principle of effective judicial protection in Article 19(1) of the Treaty of European Union.
The Court also considered the discretionary power of the President to allow a judge to remain in office following the mandatory retirement date.
It found that, although this power was based on the opinion of the National Council of the Judiciary, such opinions were in practice given without any reasons, and therefore did not provide an effective safeguard.
The Court found that the President’s discretionary power gave rise to reasonable doubts that judges could be subject to external influence, in violation of the principle of effective judicial protection under Article 19(1) TEU.
A law on the Supreme Court, which entered into effect in July 2018, attempted to force the “retirement” of 27 of the 72 Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65 years.
The ICJ has repeatedly condemned the “forced retirement” of the 27 Supreme Court Justices as violating the security of tenure of judges in direct contravention of the principle of judicial independence, as expressed in international law and standards.
These include the UN Basic Principles on the Independence of the Judiciary, Council of Europe standards, the European Court of Human Rights’ jurisprudence and the rule of law principles enshrined in article 2 of the Treaty on European Union.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Proceedings against Poland under Article 258 TFEU were launched by the European Commission in October 2018, alleging infringement of Article 19(1) TEU (the principle of effective judicial protection) together with Article 47 of the EU Charter of Fundamental Rights (the right to a fair hearing and an effective remedy).
Following an interim decision of the CJEU in December 2018, the judges who were forcibly retired were reinstated in office, under a Law on the Supreme Court that came into force in January 2019.