Judges without presidential appointment lodge new constitutional complaints

Four judges who had not been appointed to office in 2007 made another complaints to the Constitutional Tribunal. The complainants are represented by advocates Marcin Ciemiński, Clifford Chance and Agnieszka Wardak, Salans, and legal counsellor Patrick Radzimierski, Salans, all acting pro bono.

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 judges of common courts are appointed to judicial offices by the President upon the motion of the National Council of the Judiciary.

However, the claimants were denied the appointment by the President of Poland. The case was subsequently reviewed by the Provincial Administrative Court, which dismissed the complaints for the President’s inaction. The court declared itself not competent to rule in the case because in making judicial appointments the President did 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 Tribunal pointed out that, in essence, the constitutional complaints centred around the practice of applying constitutional provisions by the President of Poland, and this type of complaint could not be the subject of the constitutional review. In addition, 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 President’s administrative duties.

In response to the above decision, in February 2013 four judges refused appointment once again submitted their complaints with the Constitutional Tribunal. The complainants argued the unconstitutionality of art. 55 (1) of the Courts Act insofar as it failed to compel the President to substantiate his refusal to appoint a judge and provided no judicial remedy against the decision.

The complainants argued that the cited article did not comply with a number of Constitutional provisions. For instance, they referred to article 179 of the Constitution contending that Polish law waives the President’s right of refusal in the event where a judicial candidate obtained an approval of the National Council of Judiciary. They also argued that the absence of appeal procedure against Presidential decisions violated the constitutionally guaranteed right to a court.

Another point made in the complaints concerned the violation of the principle of cooperation between the branches of government as well as the President’s failure to submit arguments against the appointment of the candidates already at the stage of their applications being reviewed by the National Council of Judiciary.