185–196 LEGAL DISPUTE OVER THE CONSTITUTIONALITY OF POLISH REGULATIONS AND THEIR EFFECTS AFTER THE AMENDMENT OF THE PROVISIONS ON REACHING THE RETIREMENT AGE BY THE JUDGES OF THE POLISH SUPREME COURT Andrzej Marian Świątkowski* Abstract: The Constitution of the Republic of Poland clearly states in article 180 (1) that “Judges are irremov- able”. Irremovability, next to independence, is a guarantee of impartiality of courts, defined in the Constitu- tion of the Republic of Poland as “a separate authority, independent of other authorities” (Article 173). The previous Act on the Supreme Court of 23 November 2002 also established the rule of retirement of a judge after reaching 70 years of age. On 4 July 2018, the Act of 8 December 2017 on the Supreme Court came into force. It lowers by five years the age at which judges of the Supreme Court retire (leave service) (Article 37 § 1). The age after reaching which there occurs an automatic - at the will of the legislature - change in the status of the judge from active status to the state of non-performance of duties may be legitimately called a “retirement age”. The executive and political power again obtained legally accepted influence on the selec- tion of judges. This scenario is again being implemented by the currently ruling political party and state au- thorities, legislative and executive. Keywords: Constitution, independence, retirement age, Supreme Court judges I. INTRODUCTORY NOTE For more than a year there has been a dispute between the ruling government and rul- ing party on one part, and the opposition and progressive community of legal practition- ers on the other part, concerning the Polish justice system. Under the pretext of increasing social control over the justice system, the urgent need to improve the functioning of courts and the need to remove from the justice system dishonest judges or those connected with the previous political system, the government of the Republic of Poland and the political party “Law and Justice” aims to subordinate courts and judges to the executive authorities – the President of the Republic of Poland, the Minister of Justice and the legislature – cur- rently the ruling parliamentary majority. Personnel changes were made in the Constitutional Tribunal, the National Council of the Judiciary of Poland and in the Supreme Court. All judges of the Supreme Court, in- cluding the First President of this Court, whose constitutional term of office expires in 2020, were forced to retire after reaching the age of 65. The composition of the new Supreme Court was supplemented by the politicised National Council of the Judiciary. The new Supreme Court has been authorised, among others, to amend in a special pro- cedure the final judgments passed in the last twenty years. The authority to change the * Professor Dr. Hab. Andrzej Marian Świątkowski, Jean Monnet Professor of European Labour Law and Social Se- curity Law, Jesuit University Ignatianum, Kraków, Poland TLQ 3/2019 | www.ilaw.cas.cz/tlq 185 ANDRZEJ MARIAN ŚWIĄTKOWSKI 185–196 stabilised judicature has been granted to the “social factor”, lay judges who have no sub- ject-matter preparation to make legal assessments and make different final decisions on the most important and complicated legal issues so far resolved by the most experienced and qualified professional judges of the Supreme Court. In order to subordinate the judges to state power, the Supreme Disciplinary Chamber was established in the Supreme Court. One of its tasks is to adjudicate on disciplinary matters of judges who – according to the executive power – have committed offenses in the service. Judges of the Disciplinary Chamber, dominated by former prosecutors, are not subject to the authority of the supreme supervisor, i.e. the First President of the Supreme Court. They also receive remuneration 40 percent higher than the remuneration of other judges of the Civil, Criminal and Labour and Social Security Chamber of the Supreme Court. The opposition accuses the state authorities and the ruling political party that the pro- posed and partly implemented ideas of changing the justice system in Poland are contrary to the fundamental principles of a democratic rule of law. In particular, opponents of court reform claim that: - the election of judges by politicians threatens the independence of the judiciary; - the application of the mechanism of expiration of the official employment relation- ship of judges following the lowering of the retirement age below the previously ap- plicable 70 years for the currently adjudicating judges of the Supreme Court – is contrary to the constitutional principle of irremovability expressed in Article 180 (1) of the Constitution of the Republic of Poland. - the termination of the term of office of the First President of the Supreme Court due to the lowered retirement age is unacceptable taking into account the explicit wording of Article 183 (3) of the Constitution of the Republic of Poland which provides that “the first President of the Supreme Court shall be appointed by the President of the Republic of Poland for a six-year term of office from among candidates presented by the General Assembly of the Supreme Court”.1 According to specialists, theoreticians and practitioners in the field of constitutional law and labour law, the changes made so far by state authorities (legislative and executive) in the Polish justice system collide with the Montesqieu’s concept of division of power, the spirit of the law and good practice.2 According to the author, the lowering of the re- tirement age, resulting in termination of the official employment relationship of judges, is contrary to the principle of non-retroactivity and the legal culture prevailing in modern civilised European countries. The author, using the dogmatic method of interpretation of the Act on the Supreme Court adopted by a parliamentary majority entirely belonging to the ruling political party – “Law and Justice”, lowering the “retirement age” of judges, causing the termination of official relations with the group of the most experienced judges, aims to demonstrate the unlawfulness of actions taken and continued in the justice system by the current govern- 1 Constitution of the Republic of Poland of 2 April 1997, Journal of Laws [Dz.U.] of 1997, No.78, item 483. 2 ŚWIĄTKOWSKI, A. M. Pozakodeksowe przypadki wygaśnięcia stosunku pracy [Non-Labour Code cases of expi- ration of employment relationship]. Palestra. Pismo Adwokatury Polskiej. 2018, Vol. LXIII, No. 725, p. 5 ff. 186 www.ilaw.cas.cz/tlq | TLQ 3/2019 LEGAL DISPUTE OVER THE CONSTITUTIONALITY OF POLISH REGULATIONS ... 185–196 ment and the ruling party. He does that by presenting the legal specifics of the concept of the “retirement age” of judges (part II), their irremovability in the period adopted in the previously applicable laws – the Constitution and the Act on the Supreme Court (Part III) and the obligations to declare the expiration of the official employment relationship with judges who have reached a lowered retirement age, not complied with by the President of the Republic of Poland (Part IV). He shows the contradiction of the collective termination of official employment with the legal culture well established in the European Union (part V), the fundamental prin- ciple of the Polish legal system – lex retro not agit (part VI) and the use by the state, exec- utive (government and president) and legislative authorities (the parliament and senate) of the presumption of compliance with the Constitution of an automatic retirement of the judge after reaching the “retirement age” (Part VII). The author addresses the present text, being on the borderline of constitutional law, labour law and social security law, to the judges not approving the practice of “purge” in the Supreme Court who have “lost” the battle not only for the independence of the highest judicial authority, but above all for their own image of independent judges (part VIII). II. “RETIREMENT AGE” OF JUDGES On 4 July 2018, the Act of 8 December 2017 on the Supreme Court came into force.3 It lowers by five years the age at which judges of the Supreme Court retire (leave service) (Article 37 § 1). The age after reaching which there occurs an automatic – at the will of the legislature – change in the status of the judge from active status to the state of non-per- formance of duties may be legitimately called a “retirement age”. Lowering the “retirement age” by five years allows a judge to exercise his entitlement to social security benefits, which are, in principle, the equivalent of the universal pension benefits. Judges and other public officials who are in service relationships have the right to pro- tection of substantive rights in the field of social security. In the case of judges, those rights may be protected by Article 1 of Protocol No. 1 (Protection of property) to the European Convention on Human Rights. This follows from the obligation of a Member State to make contributions to a judges’ social security scheme.4 In the case of an individual who makes contributions to the social security scheme, creating entitlement to social benefit, the Eu- ropean Court of Human Rights has interpreted the right to those benefits as property right to certain assets used by the State for the payment of pension. Therefore, property benefits from state funds were protected as “proprietary interest” falling within the concept of “possessions”. Therefore the State legislation must be regarded as generating a proprietary interest within the meaning of Article 1 of Protocol No. 1.5 3 Journal of Laws [Dz.U.] of 2018, item 5. 4 HEREDERO, A. G. Social security as a human right. The protection afforded by the European Convention of Human Rights. Strasbourg: Council of Europe Publishing, 2007, pp. 25–26. 5 ECtHR judgment (Grand Chamber) in Stec and others v.