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Supreme Administrative Court has dismissed complaints of judges without presidential appointment

Last week, the Supreme Administrative Court dismissed the complaints of four judges not appointed to office by the Polish President. The cases of six more judges are yet to be heard. The claimants are represented pro-bono by Mr Marcin Ciemiński, Clifford Chance, and Mr Patrick Radzimierski, Salans.

The cassation complaints dismissed by the SAC concerned both the President’s inaction and the presidential refusal to appoint the complainants to judicial offices. In dismissing the complaints, SAC judges upheld the earlier rulings issued in the case by the Provincial Administrative Court in Warsaw.

In the oral reasons for the decision, the presiding judge Barbara Adamiak noted the absence of legal grounds for assuming that presidential judicial appointments were an example of the President’s public powers subject to administrative courts’ review.

Judicial appointment decision-making powers are among the prerogatives of the Head of State, which fall outside the scrutiny of the courts. According to the SAC, the President has the right to personally assess the judicial candidates and his decision whether or not to appoint a judge is discretionary. “The President of Poland is not obliged to appoint a judge”, argued Małgorzata Masternak-Kubiak, SAC judge rapporteur in several of the complainants’ cases.

Counsel for the unappointed judge candidates, Mr Ciemiński and Mr Radzimierski, contended that the case of the judges had constitutional implications as it set the boundaries of the judicial review of individual decisions made by the President. The attorneys said that presidential activity in this area should be reviewed by independent courts and should not be arbitrary or discretionary. “Public power is not about majesty, it’s about service”, said Mr Radzimierski.

On her part, counsel for the President’s Chancellery noted that there was no legal remedy against the presidential refusal to appoint a judge that may be sought in courts. She also pointed out that there was no legal right to be appointed to a judicial post, and a decision to appoint a candidate put forward by the National Council of Judiciary was a President’s prerogative.

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