In its complaints, the HFHR alleges that Provincial Administrative Court (PAC) violated a law that should result in the invalidity of the proceedings. The Foundation is represented before the Supreme Administrative Court (SAC) by Dr. Marcin Cemiński and Paweł Pogorzelski, attorneys from Clifford Chance who are working pro bono.
In July 2016, President Andrzej Duda issued an order in which he refused to appoint three judges promoted to higher-level courts and a judicial candidate who expected to receive his first appointment. His decision was made without explanation and despite positive opinions about the candidates expressed by the National Council of the Judiciary of Poland.
The judges complained about the president’s order to a Provincial Administrative Court, claiming that the decision was illegal. The Commissioner for Human Rights and Helsinki Foundation for Human Rights joined the proceedings.
On December 29 and 30, the PAC dismissed both complaints and ruled that the presidential authority to appoint judges is a discretionary power and is beyond the reach of judicial review.
In its appeal, the HFHR alleges that the PAC violated regulations because the decision approving the organization's joinder in the case had been delivered on December 29, the same day as the decision to dismiss the first complaint, and a day before the date of the other complaint’s dismissal.
In consequence, the HFHR was deprived of the opportunity to take part in the proceedings.
The Helsinki Foundation for Human Rights has brought several other allegations of violations of procedural and substantive law. The HFHR claims that it is incorrect to assume 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, he should have requested that the NCJ reconsider such candidates, in accordance with the act on the National Council of the Judiciary.
Regardless of the these 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 allows 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.
Violation of the Constitution
The assumption that the president had the unrestricted and uncontrolled power to refuse a judicial appointment would mean not only that he could exert pressure on the judicial branch, but also that judges’ and judge candidates’ right to equal access to public service would be violated. This right is expressed in the Constitution and International Covenant on Civil and Political Rights, and one of the guarantees of its effectiveness is the subjecting of decisions to refuse access to or dismiss from public service to a judicial review.
According to the HFHR, the correct decision would have been to consider the president’s decision to deny a judicial appointment an unilateral authoritative act with an impact on rights and duties of a designated person in an individual case which, as such, is an administrative decision or another act of public administration subject to a judicial review.