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First instance administrative court dismisses complaints of judges denied appointments. HFHR to file a complaint in cassation

On 29 December 2016, the Provincial Administrative Court in Warsaw dismissed the complaints of judges who had been denied presidential appointments. The Helsinki Foundation for Human Rights plans to appeal against the decision to the Supreme 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 the Provincial Administrative Court, arguing that the order was illegal. The Commissioner for Human Rights and Helsinki Foundation for Human Rights later joined the proceedings. “In our joinder motion, we emphasised its significance for the constitutional system of distribution of power in Poland. We also pointed to international standards – expressed, for example, in the European Court of Human Rights’ judgment of Baka v. Hungary – which provide that judges should not be deprived of the right to court in cases concerning their status”, says Marcin Szwed, a lawyer working with the HFHR.

However, the PAC dismissed all complaints and ruled that the presidential authority to appoint judges is a discretionary power and as such is not subject to a judicial review. The administrative court referred to a 2012 decision of the Supreme Administrative Court, which was issued in a similar case that concerned President Lech Kaczyński’s refusal of a judicial appointment. However, it must be noted that the SAC decision was at the time criticised by experts in constitutional law. Furthermore, a new law on the National Council of the Judiciary was subsequently enacted, which provided the President with the right to apply to the NCJ for reconsideration of a given judicial candidature.

We intend to bring a complaint in castigation against the first-instance decision to the Supreme Administrative Court. We will argue that the PAC deprived us of the opportunity to effectively participate in the proceedings. This was a consequence of the fact that the decision approving the Foundation’s joinder had not been delivered to us until 29 December, which was the date of the dismissal decision. Although we had stated the intent to present a statement in the case, the court prevented us from doing so”, explains member of the HFHR’s legal team Katarzyna Wiśniewska.

The Foundation also disagrees with the substance of the dismissal. “It’s impossible to agree with the PAC’s argument that presidential power to appoint judges is entirely discretionary. Such a contention would undermine the independence of the courts and judges since in this way the President would be able to exert political pressure on judges by blocking their promotions. Moreover, in a state ruled by law, no official body that affects the legal status of an individual may act in an arbitrary manner and without any external review mechanism”, Mr Szwed notes.

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