The proposed amendment to Poland’s Courts Act lowers judges’ retirement age and empowers the minister of justice to dismiss the president of any court and appoint their replacement.

Together with previously implemented changes to the judicial branch, the new amendment would put the court in dangerous proximity to the influence of the executive branch.

The minister’s new powers

The draft amendment has been submitted as a reform of the common courts, appearing alongside organizational changes such as the appointment of officials for international cooperation and human rights. The true purpose of the amendment, however, is to allow the minister of justice to control the composition of the courts.

The amendment would enable to the minister of justice to appoint presidents of the country's courts without first needing to consult with judicial representatives of the affected courts.

This situation would violate a decision already handed down by the Constitutional Tribunal, the country's highest constitutional court, which ruled that the minister of justice must undertake a full consultative process when replacing court presidents.

Simplified procedure

In addition to the aforementioned new powers, the minister of justice will also gain the power to dismiss the presidents of courts by simply by asserting a new legal basis for termination that finds "particularly ineffective performance of a president’s administrative supervision or organizational functioning in the court over which they preside, or in the courts subordinate thereto."

Moreover, a judicial decision issued by the National Council of the Judiciary regarding a judge’s dismissal will be binding for the minister of justice only if the qualified majority of two-thirds of the voting Council members joins the decision.

It is clear that the adoption of the amendment will give the minister of justice extensive new powers. He will be able to dismiss all presidents and deputy presidents of common court without cause and without first needing to ask for the National Council’s opinion.

Early retirement

The proposed amendment also lowers the retirement age of judges, introducing different retirement thresholds for women and men (60 and 65 years, respectively). A judge may serve beyond the age limits, but only with the minister of justice’s approval.

Under current law, a judge may remain on the bench by declaring his or her desire to do so, accompanied by medical certificate proving physical fitness, to the minister of justice.

The newly proposed amendment stands in violation of a 1998 Constitutional Tribunal ruling that held that "it would clearly be unacceptable if a political body (e.g., the Ministry of Justice), outside the organizational structure of the judiciary, were empowered to approve extensions of judicial tenure, in the same manner as was done in communist Poland."

Subordinated judiciary

The discussed amendment to Courts Act is yet another change affecting the court system that was implemented in recent months. So far, the "reforms" have 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 consulation 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 of 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 politicians, and the other judges.