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Applications to European Court of Human Rights in case of “unappointed judges”

The judges who in 2007 did not receive their official appointments to judicial offices lodged applications with the European Court of Human Rights. The applicants are represented by Marcin Ciemiński, an advocate with Clifford Chance.

The case concerns events that took place between 2005 and 2008. In this period five judges and five assistant judges (asesorzy sądowi) obtained the approval for the appointment to the judicial office from the National Council of the Judiciary of Poland. Pursuant to Article 55 (1) of the Courts Act (being an equivalent of Article 179 of the Polish Constitution) judges of common courts are appointed to judicial offices by the President upon the motion of the National Council of the Judiciary.

Yet the Chancellery of the President of Poland informed that President Lech Kaczyński decided not to appoint the applicants to judicial offices. It was only in 2007 that such a decision was issued without any justification accompanying it.

The unappointed judges filed their complaints with a Provincial Administrative Court. They argued the President was guilty of inaction in its capacity as a public administration body. The court dismissed the complaints and declared itself not competent to rule in the case because in making judicial appointments the President does not act as a public administration body.

Proceedings before the Supreme Administrative Court were suspended following the lodging of complaints to the Constitutional Tribunal. The judges argued that Article 55 (1) of the Courts Act did not conform to, for example, the principle of a democratic state ruled by law and the right of equal access to public service.

Four years passed before the Constitutional Tribunal, sitting en banc, decided to discontinue the proceedings. In the reasons for its decision, the CT noted that the complainants did not exhaust all available legal avenues as their cases had not been finally resolved by the Supreme Administrative Court.

Eventually, in October 2012 the Supreme Administrative Court dismissed the cassation complaints. The SAC highlighted, among other things, that it may be concluded, based on a statutory role of the President, that the appointment of judicial officials did not fall within the exercise of the President’s administrative duties.

In February 2013 four judges who were refused appointment, once again submitted their complaints with the Constitutional Tribunal. But the Tribunal refused to hear their cases, stating, among other things, that even the revocation of the provisions challenged by the complainants would not result in the change of the situation for the unappointed judges.

“The case of the unappointed judges is a frustrating one not only because of the situation of the applicants, but also because of the fact that Polish courts were shirking as much as they could their obligation to issue a concrete ruling in this case”, says Adam Bodnar, HFHR Deputy President.

“Many lawyers were involved in this case and they were acting pro bono“, says Adam Bodnar. Before the Constitutional Tribunal and the administrative courts the applicants were represented by advocates Marcin Ciemiński and Paweł Pogorzelski, Clifford Chance and Agnieszka Wardak and legal counsellor Patrick Radzimierski, Dentons.

The applicants lodged applications with the European Court of Human Rights. They stated, among other things, that neither the administrative courts, nor the Constitutional Tribunal, ruled on the merits of the case and investigated the legality of the President’s refusal to appoint the applicants to judicial offices, thus violating the right to court and the right to fair trial.

In the applicants’ opinion Poland has violated Article 13 of the Convention through its failure to secure an appellate measure. In addition, the applicants argued they had been discriminated against by having been treated differently than other judicial candidates who had met the same criteria.

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