The case concerns 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.

President refuses to seat judges

Despite the Courts Act, the Chancellery of the President of Poland announced that President Lech Kaczyński has decided not to appoint the applicants to judicial offices, a decision his office first announced back in 2007.

The judges who were refused appointment filed their complaints with a Provincial Administrative Court. They argued the president was guilty of inaction in its capacity as a public administration body. The court dismissed the complaints and declared itself not competent to rule in the case because the president does not act as a public administration body in making judicial appointments.

Proceedings before the Supreme Administrative Court 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.

Courts don't act for judges

Four years passed before the Constitutional Tribunal, sitting en banc, decided to discontinue the proceedings. In the reasons for its decision, the Constitutional Tribunal noted that the complainants did not exhaust all available legal avenues, as their cases had not been finally resolved by the Supreme Administrative Court.

Eventually, in October 2012, the Supreme Administrative Court dismissed the complaints. It highlighted, among other things, that it might be concluded, based on a statutory role of the president, that the appointment of judicial officials did not fall within the exercise of the president’s administrative duties.

In February 2013, four judges who were refused appointment once again submitted their complaints to the Constitutional Tribunal. But the Court refused to hear their cases, stating, among other things, that even the revocation of the provisions challenged by the complainants would not result in the change of the situation for the judges.

Courts shirking obligation

“The case of the unappointed judges is a frustrating one not only because of the situation of the applicants, but also because of the fact that Polish courts were shirking as much as they could their obligation to issue a concrete ruling in this case,” said Adam Bodnar, deputy president of the Helsinki Foundation for Human Rights.

“Many lawyers were involved in this case and they were acting pro bono," says Mr. Bodnar. In their cases before the Constitutional Tribunal and the administrative courts, the applicants were represented by advocates Marcin Ciemiński and Paweł Pogorzelski, from Clifford Chance law firm, and Agnieszka Wardak and legal counsellor Patrick Radzimierski, of Dentons law firm.

The applicants lodged applications with the European Court of Human Rights. They stated, among other things, that neither the administrative courts nor the Constitutional Tribunal ruled on the merits of the case and investigated the legality of the president’s refusal to appoint the applicants to judicial offices, thus violating the right to due process and the right to fair trial.

In the applicants’ opinion, Poland has violated Article 13 of the Convention through its failure to secure an appellate measure. In addition, the applicants argued they had been discriminated against by having been treated differently than other judicial candidates who had met the same criteria.