The ICJ today condemned the appointment by President Andrzej Duda of 27 judges to the Supreme Court in place of those forcibly “retired” last July.
“These appointments are patently illegitimate and deal a severe blow to the rule of law in Poland,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
The new appointments purport to replace the Supreme Court Justices including President of the Supreme Court Małgorzata Gersdorf, whose forced “retirement” is in clear violations of international standards on the security of tenure and independence of judges.
The decision of the President is even more concerning since it contravenes an order of the Supreme Court suspending the law under which these appointments were made, pending a decision by the Court of Justice of the European Union.
It is a fundamental tenet of the rule of law and principles on the independence of the judiciary that the executive respect decisions duly made by the judiciary.
“In announcing these appointments now, while cases on the forced retirement of Supreme Court judges are still pending at the EU Court, President Duda has disregarded the proceedings of the EU’s apex judicial body,” Róisín Pillay added.
The ICJ considers that the legality of the appointments of the new judges is further compromised by the role played by the now politicized National Council for the Judiciary, whose independence and impartiality has been seriously compromised following recent legislative amendments.
The ICJ urges the Polish authorities to cease all interference with the Supreme Court in carrying out its legitimate functions, and to reverse the measures taken to force the retirement of Supreme Court judges.
This attack against the actions of the Supreme Court occurs amid a systematic undermining of the independence of the judiciary in Poland by the Polish executive and legislative authorities, which attempt to increase political influence in the judiciary and which the ICJ has repeatedly condemned.
Earlier this year Poland issued a new law on the Supreme Court that attempts to force the “retirement” of one third of the Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65. This measure clearly contravenes international human rights law and standards.
The European Commission has launched an infringement procedure for lack of compliance of this law with EU law.
In the absence of satisfactory reforms by Poland, on 24 September, the Commission referred Poland to the Court of Justice of the European Union (CJEU) and asked for interim measures to restore Poland’s Supreme Court to its situation before 3 April 2018.
At the same time Supreme Court of Poland submitted a preliminary ruling request to the CJEU seeking its interpretation on the compliance of the legislation on retirement ages of judges with EU law, in particular with the prohibition of discrimination on grounds of age under Directive 2008/78.
Following the jurisprudence of the CJEU, the Supreme Court suspended the effect of national law on the forcible retirement of the judges.
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.