Why judicial appointment procedures matter for citizens?

On Thursday 23 November 2017, the Supreme Administrative Court will hear the matter of the President’s refusal to appoint judge candidates designated by the National Council of the Judiciary of Poland.

The Helsinki Foundation for Human Rights submitted a complaint in cassation against a decision of the Provincial Administrative Court in Warsaw. Dr Marcin Cemiński and Mr Paweł Pogorzelski, attorneys from Clifford Chance, provide pro bono representation before the SAC to the Foundation.

Let us remind our readers, 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.

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.

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.