ECtHR: the applications of judges denied appointments communicated to Poland Helsinki Foundation For Human Rights

The proceedings before the ECtHR concern the joined applications of six non-appointed candidates. Three of them took part in competitions for judicial posts in 2005 and 2006. All of them were positively assessed by general assemblies of judges at their courts and nominated for appointment in a resolution of the National Council of the Judiciary. Nevertheless, in January 2008 President Kaczyński issued an unreasoned order refusing their appointments. In the following years, proceedings were held simultaneously before administrative courts and the Constitutional Tribunal. Finally, in October 2012, the Supreme Administrative Court (SAC) dismissed the cassation appeal of the unappointed candidates, indicating, inter alia, that the issue of judicial appointments is a constitutional matter and as such falls outside of the jurisdiction of the administrative courts. The Constitutional Court, on its part, in decisions issued in June 2012 and June 2013 (upheld by a 2014 decision) refused to proceed with the constitutional complaints lodged by the candidates.

The appointments of the three remaining candidates whose applications will be considered by the ECtHR were refused by President Andrzej Duda in 2016. They appealed to the Provincial Administrative Court (PAC) in Warsaw, which rejected their appeals in December 2016. Referring to the existing jurisprudence based on the aforementioned cases, PAC ruled that the presidential authority to appoint judges is a discretionary power and as such is not subject to a judicial review. In December 2017, SAC dismissed the cassation appeals filed by the candidates. The Commissioner for Human Rights and Helsinki Foundation for Human Rights also participated in the proceedings. In its cassation appeal, the HFHR argued, inter alia, that the assumption that the President has an unlimited and unchecked power to refuse judicial appointments would jeopardise the independence of the judiciary and the courts and would be incompatible with international standards.

In their applications to the ECtHR, all non-appointed candidates complained about a violation of Article 6 ECHR (right to a court) and Article 13 ECHR (right to an effective remedy). Furthermore, the candidates refused the appointment by President Duda also alleged a violation of Article 8 ECHR (right to privacy), pointing out that the arbitrary refusal to appoint them destroyed their judicial careers.

Timeline:

• 16 January 2008: President Lech Kaczyński refuses to appoint judicial candidates nominated by the NCJ.
• February and March 2008: The Provincial Administrative Court in Warsaw rejects complaints against President’s inaction submitted by the non-appointed candidates.
• 23 June 2008: the Constitutional Tribunal discontinues the proceedings in the case brought by the First President of the Supreme Court who requested resolution of a jurisdictional dispute between the President and the National Council of the Judiciary concerning the authority to evaluate candidates for judicial posts.
• January, February and March 2011: Warsaw’s PAC rejects appeals against the President’s refusal to appoint submitted by the non-appointed candidates.
• 19 June 2012: The Constitutional Tribunal discontinues the proceedings concerning constitutional complaints lodged by the non-appointed candidates.
• October 2012: SAC rejects cassation appeals filed by the non-appointed candidates.
• 12 June 2013: The Constitutional Tribunal refuses to proceed with new constitutional complaints lodged by the non-appointed candidates.
• 5 March 2014: The Constitutional Tribunal upholds the above decision.
• 7 September 2014: Three non-appointed candidates submit their applications to the ECtHR.
• 14 May 2020: The ECtHR communicates the joined cases to the Polish Government.
• June 2016: President Andrzej Duda refuses to appoint three candidates to judicial posts.
• 29-30 December 2016: Warsaw’s PAC rejects appeals submitted by the non-appointed candidates.
• 7 December 2017: SAC dismisses cassation appeals.
• 28 February 2018: Three non-appointed candidates submit their applications to the ECtHR.
• 14 May 2020: The ECtHR communicates the joined cases to the Polish Government.