Poland violated female judges rights by making them retire earlier than men, rules European court

Poland violated the rights of female judges by forcing them to retire earlier than men, the European Court of Human Rights (ECHR) has ruled.

The measures in question were made as part of the Law and Justice (PiS) government’s contested overhaul of the judiciary, many aspects of which have already been found by the ECHR to have violated the rights of Polish judges.

Judgment Pajak and Others v. Poland – Legislation lowering retirement age to 60 for female judges in violation of Conventionhttps://t.co/ahYoOdTezu#ECHR #CEDH #ECHRpress pic.twitter.com/plwgtML1x1

— ECHR CEDH (@ECHR_CEDH) October 24, 2023

The latest case was filed to the ECHR by four former Polish judges – Lucyna Pająk, Marta Kuzak, Elżbieta Kabzińska and Danuta Jezierska – after the changes introduced by PiS forced them to retire earlier than they wanted.

That was because, under measures introduced between 2016 and 2018, the retirement age for judges was lowered from 67 for both sexes to 65 for men and 60 for women.

That matched the general retirement ages for men and women introduced by the government, which PiS had argued was necessary due to “the different role for women in family and social life.”

But the changes were criticised by the opposition as an attempt by the ruling party to force certain judges into retirement and create space for new appointees.

Poland has informed the European Court of Human Rights that it will not comply with an order to provisionally reinstate judges opposed to the government’s judicial policies.

It is the first time that Poland has refused to comply with such an order https://t.co/iLVeI5KCqE

— Notes from Poland 🇵🇱 (@notesfrompoland) February 17, 2023

A procedure was put in place for judges who wished to continue working beyond the new retirement ages. But to do so they were required to seek authorisation from the justice minister and the National Council of the Judiciary (KRS), a body overhauled by PiS to fill it with more political appointees.

PiS later backtracked on the reforms and raised female judges’ retirement age to 65 to match that of male ones. But the initial changes resulted in some judges being forced to retire, including Pająk, Kuzak, Kabzińska and Jezierska, whose requests to continue working were rejected by the justice minister and KRS.

After a fviolatcomplaint to Poland’s Supreme Court was rejected, the women turned to the ECHR. In a ruling issued yesterday, the Strasbourg court found that the changes to judges’ retirement ages violated Articles 6 (right of access to a court) and 14 (prohibition of discrimination) of the European Convention on Human Rights.

Part of the European Convention on Human Rights guaranteeing the right to a fair trial – which was recently used to punish Poland for firing judges without explanation – is inconsistent with the Polish constitution, Poland’s constitutional court has found https://t.co/boqNIa7GKg

— Notes from Poland 🇵🇱 (@notesfrompoland) March 10, 2022

“Judges should enjoy protection from arbitrary decisions by the legislative and executive powers and only oversight by an independent judicial body of the legality of a disputed measure was able to render such protection effective,” said the ECHR, which found that the judges lacked such protection.

“They had been purely and simply removed from the judiciary,” stated the European court. Moreover, the reforms “clearly introduced a difference in treatment, on the ground of sex, as to the mandatory retirement age for members of the same profession”, it added.

The ECHR highlighted the intellectual nature of the profession of a judge and pointed out that “biological differences between men and women and any potential considerations as to the role of women in society were immaterial to the aptitude of either sex to engage in professions of that nature”.

A similar ruling was made in 2019 by the Court of Justice of the European Union (CJEU), which found that Poland’s new rules on the retirement age for judges and prosecutors were incompatible with EU law as they discriminated on the basis of gender and negatively affected judicial independence.

The ECJ has ruled that judicial reforms introduced by the Polish government in 2017 contravened the principle of gender equality by setting different retirement ages for judges and introduced political influence that endangered judicial independence https://t.co/VC7OojhgZW

— Notes from Poland 🇵🇱 (@notesfrompoland) November 5, 2019

In yesterday’s ruling, the ECHR ordered Poland to pay damages and costs to the four complainants. Its ruling can be appealed to the ECHR’s grand chamber by any party involved within three months.

The ECHR has issued a number of rulings against the PiS government’s judicial reforms in recent years. In 2021, it found that Poland’s constitutional court is no longer a “tribunal established by law” because it contains an illegitimately appointed judge.

Last year, it ruled that the Polish authorities have acted with “manifest disregard for the rule of law” in their judicial policies, meaning that the way judges are appointed violated the right to a fair trial.

This year, it found that a prominent Polish judge critical of the government had suffered “multiple violations” of his rights to a fair trial, respect for his private life and his freedom of expression.

The ECHR has ruled that Poland’s constitutional court is not a “tribunal established by law” as it contains a judge illegitimately appointed by the ruling PiS party and president

It is the first ruling of its kind, and could open the way for further cases https://t.co/oKkvK1yv2f

— Notes from Poland 🇵🇱 (@notesfrompoland) May 7, 2021

Main image credit: ELSA International/Flickr (under CC BY-SA 2.0)

Agata Pyka is an assistant editor at Notes from Poland. She is a journalist and a political communication student at the University of Amsterdam. She specialises in Polish and European politics as well as investigative journalism and has previously written for Euractiv and The European Correspondent.