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Complaints in cassation against denied judicial appointments

The Helsinki Foundation for Human Rights has submitted two complaints in cassation in cases concerning President’s refusal to appoint three judges of common courts. In the complaints, brought to the Supreme Administrative Court against a Provincial Administrative Court’s decisions, the HFHR alleges a violation of law which results in the invalidity of the proceedings.  The Foundation is represented before the SAC by Dr Marcin Cemiński and Mr Paweł Pogorzelski, attorneys from Clifford Chance working pro bono.

Judges complain to a Provincial Administrative Court

In July 2016, President Andrzej Duda issued an order in which he refused to appoint three judges promoted to higher-level courts and a judge candidate who expected to receive his first appointment. The President’s made his decision despite positive opinions on candidates expressed by the National Council of the Judiciary of Poland and failed to provide a substantiation. The judges complained against the President’s order to a Provincial Administrative Court, arguing that the order was illegal. The Commissioner for Human Rights and Helsinki Foundation for Human Rights joined the proceedings. However, on 29 and 30 December, the PAC dismissed both complaints and ruled that the presidential authority to appoint judges is a discretionary power and as such is not subject to a judicial review.

Administrative Court’s fails to timely deliver the ruling

In its complaints in cassation, the HFHR alleges that the PAC violated provisions of law, which results in the invalidity of the proceedings. This allegation is based on the fact that the decision approving the Foundation’s joinder had been delivered on 29 December, which was the date of the decision to dismiss the first complaint and a day before the date of the other complaint’s dismissal. In consequence of the above, the HFHR has been deprived of the actual opportunity to take part in the proceedings.

Complaint in cassation

The Foundation has brought several other allegations of violations of procedural and substantive law. The HFHR argues that the PAC erred in assuming that President’s power of judicial appointments is purely discretionary. First, it is unclear whether the President’s constitutional prerogative of judicial appointment may be the source of the right to refuse such an appointment. If the President had had reservations about certain candidates, then, in accordance with the Act on the National Council of the Judiciary, he should have requested that the NCJ reconsider such candidates. Regardless of the above ambiguities, the constitutional award of a prerogative power to the head of state does not mean that the latter has the right to act in an entirely unrestricted manner but only the absence of the obligation to obtain a countersignature from the prime minister. In a democratic state ruled by law, no state body should act in a manner that is completely arbitrary and free from any oversight.

Constitution violated

If the President had the unrestricted and uncontrolled power to refuse a judicial appointment, this would mean not only that he could exert pressure on the judicial branch, but would also violate judges’ and judge candidates’ right to equal access to public service. This right is expressed in the Constitution and International Covenant on Civil and Political Rights, and one of the guarantees of its effectiveness is the subjecting of decisions to refuse access to or dismiss from public service to a judicial review.

According to the Foundation, the correct decision would have been to consider the President’s decision to deny a judicial appointment a unilateral authoritative act with an impact on rights and duties of a designated person in an individual case, which, as such, is an administrative decision or another act of public administration subject to a judicial review.

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