The new Act on the Supreme Court in Poland

The Polish parliament recently passed a new bill that will change how the Supreme Court functions. What are these new changes and what will be the implications? Is the Polish legal order threatened by this new reform?
Michał Wiewióra, a Polish student, argues that things will change for the worse.

Polish judicial deform; Chapter of the Supreme Court

02/27/2018 - 21:28
The Act on the Supreme Court, newly enacted and signed by the President, aims at subordinating another key institution of the judiciary (after the Constitutional Tribunal) to the ruling Law and Justice (PiS) party. This is another drastic example of the violation of the rule of law, the constitutional division of powers, the independence of the courts and the impartiality of the judges.

It should be noted at the very beginning that complex of provisions, regarding the determination of the number of Supreme Court judges, the age of retirement, the new competences granted in this regard to the President and intertemporal regulations, tend to replace the majority of the current Supreme Court judges.

Retirement age 

So far, the retirement age of the Supreme Court judge was 70, however, after reaching that age and presenting a medical certificate, the judge could continue to perform the function solely on the basis of a statement he made expressing his will to continue working. At present, the retirement age has been reduced to 65, while the President will decide on the possibility of the person further working as a judge, at the request of the judge concerned. This mechanism violates the principle of division of powers and independence of the judge, because it increases the risk of influence of the executive (the President) on the work of the judge. It is difficult not to get the impression that lowering the retirement age is aimed at reducing the guaranteed duration of the 6-year term of the First President of the Supreme Court in the Constitution by retiring Prof. Małgorzata Gersdorf, who has just turned 65 two months ago. Lowering the retirement age means that approximately 30-40% of the current 81 Supreme Court judges can be sent into compulsory retirement, and only 50 judges from the previous personnel will remain in the Supreme Court. In addition, the Act foresees the increase of the number of judges of the Supreme Court from the current 81 to a minimum of 120 or more, at the discretion of the President, who will freely determine the number of judges of the Supreme Court. Moreover, the Minister of Justice-Prosecutor General (sic!) will have the right to delegate the judges of common courts to perform judicial activities in the Supreme Court. Delegates may constitute up to 30% of the number of Supreme Court judges, i.e. at 120 Supreme Court judges, there will be additionally 36 positions of judges appointed by the Minister, in the case of the recurrent risk that their case law will be determined by their desire to get nomination of a judge of the Supreme Court, from representatives of the executive branch.

The President gains new powers

On the basis of the Act, the President gained new powers: to determine the Supreme Court regulations (adopted so far by the General Assembly of the Supreme Court Judges), to reject the employment of a Supreme Court judge in a legitimate and decisive position, to appoint an Extraordinarily Disciplinary Spokesman to conduct a particular case regarding the judge of Supreme Court. These are other examples of violations of the division of powers, independence of courts and impartiality of judges, which may cause dreadful consequences among judges, leading to a situation in which the judiciary with fused democracy does not work, and freedoms or human rights are not sufficiently protected.

Regarding the organization of the Supreme Court, the Act has renounced the mechanism of random assignment of cases to the judges. In this situation, "manual control" was introduced, consisting in the allocation of cases at the discretion of the President of a given chamber of the Supreme Court. In addition, the possibility of appointing a judge to adjudicate in another chamber, without his consent, for a period of up to 6 months was introduced, which may in the future constitute a disciplinary instrument. In the Supreme Court, two new chambers were established: The Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber. The first of them will deal with disciplinary matters and the responsibility of judges, while the second will include control of general elections and confirmation of their validity. It should be noted that all judges of these chambers will be appointed on new terms by the President at the request of the National Council of the Judiciary, whose constitutional term has also been shortened recently by law, and its almost all new composition will be determined by the ruling party.

It is also necessary to assess the introduction of the institution of jurors of the Supreme Court and the institution of extraordinary complaint against the judgments, which became valid after 1997, as another extraordinary appeal, which in fact means the introduction of the fourth appeal instance. Both institutions threaten the stability of the Polish legal order.

This article deliberately presents only one of the many existing points of views of this contorversial subject. Its content is not necessarily representative of its author's personal opinion. Please have a look at Duel Amical's philosophy.

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