The practice of ministers of justice appropriating powers not provided for by any legal provision, initiated by Adam Bodnar, is unfortunately continuing unabated under Waldemar Żurek. We have just written about the Ministry’s further actions in connection with the attempt to dismiss the Disciplinary Ombudsman for Judges of the Court of General Jurisdiction and his deputies, even though no legal provision allows for this.
However, we also mentioned another issue – the Ministry’s consent to the continuation of judges who have reached the age at which they should retire.
Retirement in the light of the law
Let us recall that, pursuant to Article 69 of the Law on the System of Court of General Jurisdiction:
§ 1. A judge shall retire on the day of reaching the age of 65, unless, no later than six months and no earlier than twelve months before reaching that age, they declare to the National Council of the Judiciary their intention to continue in office and submit a certificate stating that they are fit, due to their state of health, to perform the duties of a judge, issued in accordance with the rules laid down for candidates for judicial office.
§ 1b. The National Council of the Judiciary may consent to the continued holding of the position of judge if this is justified by the interests of the administration of justice or an important social interest, in particular if this is justified by the rational use of the personnel of the court of general jurisdiction or by the needs arising from the workload of individual courts. The resolution of the National Council of the Judiciary shall be final. If the proceedings related to the continued holding of the position of judge after reaching the age referred to in § 1 are not completed, the judge shall remain in office until the completion of those proceedings.
The effects of a ruling by a judge who has retired (by operation of law) are very serious. Firstly, such a ruling will be flawed due to incorrect composition of the court – issuing court rulings – judgments and decisions – by an unauthorised person. Proceedings involving such a judge are invalid within the meaning of Article 379(4) of the Code of Civil Procedure, or, in the case of criminal proceedings, pursuant to Article 439 § 1(1) of the Code of Criminal Procedure, they will be subject to absolute annulment by the court of appeal. These consequences have been explicitly confirmed by the Supreme Court, for example in its judgment of 7 September 2024 (ref. no. III KK 385/24).
Secondly, the continued performance of duties by a judge who, in accordance with the law, should be considered retired, exposes the State Treasury to unjustified expenses. Such a judge is paid his full salary, whereas, pursuant to Article 100 § 2 of the Law on the System of Court of General Jurisdiction, a judge who retires due to age should be entitled to only 75% of his salary.
Scale of the phenomenon
In recent days, we have learned of the approximate scale of the phenomenon of the Minister of Justice granting permission to judges who have reached the age of 65 to continue adjudicating, usurping a power that, according to the above-mentioned provisions, belongs exclusively to the National Council of the Judiciary. In its response to interpellation no. 11045 submitted by MP Bartłomiej Wróblewski concerning the general situation in the courts, the Ministry, perhaps unwittingly, admitted that on 31 May 2025 as many as 68 judges:
for whom the Minister of Justice (and not the National Council of the Judiciary)
– will remain in active service despite reaching the age of 65.
To this number should be added judges who, by virtue of law, retired after 31 May but continue to adjudicate without regard to the need to obtain the consent of the National Council of the Judiciary.
The case of Judge Beata Najjar
The most high-profile example of this type is the case of Judge Beata Najjar, President of the Regional Court in Warsaw – the largest court in Poland in terms of the number of cases and organisational structure. We recently wrotethat on the day she reached retirement age – 11 July – everything indicated that she intended to continue adjudicating, even though she had not applied to the National Council of the Judiciary for consent within the statutory time limit. It was hoped that the Minister of Justice would respond appropriately to this situation and, in accordance with the obligation referred to in Article 72 of the Law on the System of Court of General Jurisdiction, would notify the judge of her retirement. It was probably with this intention that the Chair of the National Council of the Judiciary, Judge Dagmara Pawełczyk-Woicka, approached Minister Żurek shortly after he took office:
The first letter I sent to the new Minister of Justice, Waldemar Żurek, was a reminder of the obligation under Article 72 of the Act on the System of Court of General Jurisdiction to notify Judge Beata Najjar, who was still acting as President of the Regional Court in Warsaw, of her retirement due to reaching the statutory age. It is scandalous that she continues to perform her duties as President and to adjudicate. According to the position of the Supreme Court, judges who, after reaching the age of 65, have not submitted a request to the National Council of the Judiciary for permission to continue adjudicating are not entitled to perform their judicial duties, and their judgments are subject to revocation. Failure to respond may be considered a dereliction of official duties.
Meanwhile, the new minister decided to continue his predecessor’s disgraceful policy and, instead of informing Judge Najjar of her retirement, issued a bizarre statement on 31 July, stating that:
Judge Beata Najjar remains in office as President of the Regional Court in Warsaw. Six months before reaching the age of 65, Beata Najjar submitted a statement of her intention to continue in her position as judge. […] The documents were submitted on 8 January this year. to the Minister of Justice, Adam Bodnar, who, pursuant to Article 187(1) of the Constitution, is also a member of the National Council of the Judiciary.
In the further part of the statement, the Ministry expressed the position that:
The National Council of the Judiciary in its current form, established by the Act of 8 December 2017, cannot be considered an independent body from other authorities, in particular from the legislative and executive authorities. This has been confirmed by the case law of the Court of Justice of the European Union, the European Court of Human Rights and Polish courts.
In view of the above, it was concluded that:
In the absence of a properly constituted National Council of the Judiciary, the proceedings concerning the continued holding of office by the President of the Regional Court in Warsaw after reaching the age of retirementhave not been completed, which results in Judge Beata Najjar remaining in office.
However, the Ministry’s position must be considered erroneous and unacceptable in the light of Polish law. Firstly, the judgments of the Court of Justice of the European Union and the European Court of Human Rights referred to therein are completely irrelevant to the issue at hand. Irrespective of the substantive assessment of these rulings (which are seriously questionable as to whether they were issued in breach of the limits of the powers conferred on them by Poland in the relevant treaties), it should be emphasised that the rulings of these courts only referred to specific cases in which they found a violation of the right to a court within the meaning of the EU Charter of Fundamental Rights or the European Convention on Human Rights through the issuance of an individual ruling by an allegedly improperly appointed judge. These bodies were not and are not competent to rule on the overall constitutional situation of the National Council of the Judiciary. Moreover, EU bodies have recently acknowledgedthat the current method of appointing judges to the National Council of the Judiciary (by the Sejm) does not in any way violate EU law.
The only body that could rule on the unconstitutionality of the current method of selecting the composition of the National Council of the Judiciary is the Constitutional Tribunal. However, not only did it fail to do so, but on the contrary, in its judgment of 25 March 2019 (K 12/18)it found the current provisions of the Act on the National Council of the Judiciary, regulating the method of appointing judges who are members of the National Council of the Judiciary, to be in line with the Constitution.
However, the Constitutional Tribunal would not have the power, even if it found these provisions to be unconstitutional, to create a new competence for the Minister of Justice. This is because, in accordance with the principle of legality (Article 7 of the Constitution), all powers of public authorities, including in particular those of the executive,must have their basis in generally applicable legal provisions – as a rule, in statutes.
The Ministry is trying to circumvent this requirement by arguing that since the Minister of Justice is a member of the National Council of the Judiciary by virtue of the Constitution, it can be considered that the declaration of intent to continue to hold the position of judge was submitted to the National Council of the Judiciary. However, this conclusion is inadmissible under the applicable law. Firstly, it is incorrect to equate a collegial (multi-member) body with one of its members. Moreover, the Minister of Justice is not authorised to represent the KRS as a whole – this competence, pursuant to Article 17(1) of the Act on the National Council of the Judiciary, rests exclusively with the President of the KRS. Thus, the Minister, having received the statement from the judge, should have forwarded it to the full composition of the KRS for consideration, which he failed to do. Therefore, it cannot be agreed that the proceedings concerning the continued tenure of the President of the Regional Court in Warsaw after reaching the age of retirement did not come to an end – they did not even begin, and the deadline for their commencement expired more than six months ago.
Consequences
The above actions of the Ministry of Justice are a flagrant violation of the rule of law. Usurping powers not provided for by law is not only a violation of the constitutional principle of legality, but also exposes ordinary citizens to protracted court proceedingsin which unauthorised persons will adjudicate, as well as exposing the State Treasury to unjustified expenditure.
It should therefore come as no surprise that the National Council of the Judiciary has intervened again in the matter, with its presidium adopting a resolution on 7 August 2025 a resolution on the vetting of judgeswhom the National Council of the Judiciary has not adopted a resolution on continuing to hold office after reaching the age of retirement.
Although the National Council of the Judiciary is not authorised to take any decisive action following such vetting, it may, on the basis of the information obtained in this way, for example in accordance with Article 114 § 1 of the Law on the System of Court of General Jurisdiction, request the disciplinary ombudsman to initiate an investigation into a given judge, which in turn may result in disciplinary proceedings.
One can only hope that the Ministry will soon cease the above-described practice, which not only violates the abstract principles of the Polish constitutional system, but also potentially violating the right of every citizen to a fair and public hearing without undue delay by a competent, independent, impartial and independent court, as referred to in Article 45(1) of the Constitution.
Image source: Adobe Stock.
