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Supreme Administrative Court to hear complaints of judges without Presidential appointments

In October 2012, the Supreme Administrative Court is scheduled to hear the complaints of judges who were not appointed to office by the President of Poland despite receiving approval by the National Council of the Judiciary. This year in June the Constitutional Tribunal discontinued the proceedings concerning constitutional complaints lodged by several judges.

The complaints to be heard by the Supreme Administrative Court relate to 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 (being an equivalent of article 179 of the Polish Constitution) judges of common courts are appointed to judicial offices by the President upon the motion of the National Council of the Judiciary.

The President, however, refused to appoint the judges. Not only it took two years for the decisions on refusal to be issued but also they offered no substantiation. In consequence of the above, the judges and assistant judges filed complaints for inaction to the Provincial Administrative Court in Warsaw. Yet the Court found that the appointment to the judicial office was not an act of public administration and remained outside of the jurisdiction of administrative courts. On this ground, the PAC refused to hear the complaint for inaction of the head of state. Several judges lodged cassation complaints to the Supreme Administrative Court.

Proceedings before the SAC 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 CT 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 in a situation where their cases had not been resolved by the Supreme Administrative Court.

In the wake of the Constitutional Tribunal’s decision the SAC resumed the suspended proceedings. A SAC’s decision will be crucial for judges who are still waiting for their official appointments to judicial offices.

“The case of the judges who were refused appointments by the President is vital to the principle of judicial independence”, highlights Dr. Adam Bodnar, Vice-President of the HFHR Board. “For four years we’d been waiting for this decision of the Constitutional Tribunal and it came as a great surprise, especially if we compare it to the arguments raised in dissenting opinions. The decisive resolution of the CT seems to indicate that the Supreme Administrative Court will be ‘the last resort’ for obtaining redress by the judges not appointed to their judicial offices”, adds Dr. Bodnar.

The Constitutional Tribunal also spoke on the issue of presidential powers of judicial appointment in June 2012, reviewing the constitutionality of the same provision of the Courts Act.

The challenged provision required the President of Poland to appoint judges within a month from the day they were approved by the National Council of the Judiciary. The Constitutional Tribunal found this restriction unconstitutional because it interfered in the prerogative of the President by establishing a time-limit that constitutes a key element of the appointment process.


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