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Polish right-wing populist government's court reforms were illegal, ECJ rules

Jon Stone

The EU’s top court has ruled that Poland’s populist government acted illegally by forcing a third of the country’s supreme court judges into early retirement, in a move that critics say violated the rule of law.

The European Commission and human rights groups warned that the reforms compromise the independence of country’s judiciary and amount to the ruling Law and Justice (PiS) party trying to stack the courts with its supporters.

A friendly supreme would be less of an obstruction to a government which already controls the presidency and parliament.

The law lowered the mandatory retirement age for judges to 65, unless their extension was approved by Poland’s president – a politicisation which many judges saw as a threat to their independence. The policy is part of changes to the wider judiciary that have also been subject to criticism.

The European Court of Justice said the effect of the changes “raise serious doubts as to the real aims” of the policy. Human rights groups also welcomed the ruling.

“The European Union’s top court has confirmed what we have long been saying,” said Eve Geddie, director of Amnesty International’s European institutions office.

“Despite numerous procedures going on to challenge this ‘reform’, the Polish authorities have continued to harass and discipline judges who they presumably considered to be unfavourable to their cause.

“It is imperative that they return to the respect of EU law. Today’s ruling is significant not only for Poland but for other European Union countries who think that they can breach human rights with impunity.”

The fact that the measure in question affected almost a third of the serving members of that court ... are such as to raise serious doubts as to the real aims of that reform.

ECJ ruling

“We call on Member States to follow suit and issue a clear call on Polish authorities to change their course and fully restore the independence of the judiciary.”

The ruling comes as an activist in the Polish town of Przemysl was arrested and charged with the crime of “insulting the Polish nation” after he chanted "Down with Polish fascism!" in response to Polish nationalists disturbing a public event.

The incident ocurred during an event to promote cooperation between Poland and Ukraine– which have historically had a difficult relationship. Nationalist protesters against the event played loud music and held up a banner with “Wolyn 1943”, a reference to a massacre of Poles by Ukranians during WWII.

But after police arrived in response to the disturbance they instead arrested activist Tomasz Grabowski, who in response to the protest chanted "Down with Polish fascism!" while displaying a European Union flag.

The incident comes amid growing concern about Poland’s nationalist ruling party using the institutions of the state to promote its ideology.

In its ruling on the judicial reforms on Monday, the the European Court of Justice said: “The implementation of a new mechanism allowing the President to decide, on a discretionary basis, to extend the period during which a judge carries out his or her duties and the fact that the measure in question affected almost a third of the serving members of that court, including its First President, whose six-year mandate guaranteed under the Constitution was shortened, are such as to raise serious doubts as to the real aims of that reform.

“In addition, that measure appears neither to be appropriate for the purposes of achieving the aims put forward by Poland nor to be proportionate. Consequently, the Court holds that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court is not justified by a legitimate objective and undermines the principle of the irremovability of judges, that principle being essential to their independence.”

Poland backed down last year and allowed the sacked judges to return to work, but the European Commission continued its case against the Polish government so that a formal ruling could be made by the ECJ.