FIRST SECTION
CASE OF SOBCZYŃSKA AND OTHERS v. POLAND
(Applications nos. 62765/14 and 2 others –
see appended list)
 
JUDGMENT
Art 6 § 1 (civil) • Access to court • Lack of judicial review of President of the Republic’s refusal to appoint junior judges to vacant district court judge posts despite their successful participation in a selection procedure conducted by the National Council of the Judiciary (“NCJ”) • Art 6 § 1 applicable • Genuine and serious dispute over arguable right in domestic law to a fair procedure in the examination of an application for a judicial post, including the right to be protected against arbitrary rejection • Second condition of Eskelinen test not met • Denying applicants, who met statutory eligibility requirements, judicial review of the refusal decision, not in the interest of a State governed by the rule of law • Decision did not contain reasons, was not subject to any form of review and bore prima facie appearances of arbitrariness • Essence of applicants’ right of access to a court impaired
Art 35 § 1 • Applications introduced within the applicable six-month period following the final decision refusing to entertain the applicants’ complaints • Applicants only became aware of the ineffectiveness of the domestic remedies used after that decision • Novel and unprecedented situation with no relevant case-law indicating the impossibility of appealing against the President’s decision refusing to appoint persons put forward by the NCJ for judicial positions
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
21 May 2026
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sobczyńska and Others v. Poland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ivana Jelić, President,
 Raffaele Sabato,
 Frédéric Krenc,
 Davor Derenčinović,
 Alain Chablais,
 Artūrs Kučs,
 Anna Adamska-Gallant, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the applications against Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) – namely, no. 62765/14 lodged by Ms Aleksandra Sobczyńska (“the first applicant”), no. 62769/14 lodged by Mr Adrian Klepacz (“the second applicant”), no. 62772/14 lodged by Mr Rafał Brukiewicz (“the third applicant”) – all of them Polish nationals – on the dates indicated in the appended table;
the decision to give notice to the Polish Government (“the Government”) of the complaints concerning Articles 6 § 1 and 13 of the Convention and to declare inadmissible the remainder of the applications;
the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
the comments submitted by the Commissioner for Human Rights of the Republic of Poland, and the Polish Judges’ Association Iustitia, who were granted leave to intervene by the President of the Section;
Having deliberated in private on 28 April 2026,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the President of the Republic’s refusal to appoint the applicants to vacant judicial posts – despite their successful participation in a competitive selection procedure conducted by the National Council of the Judiciary – and the absence of any judicial review of that decision. It raises issues under Article 6 § 1 of the Convention. 2. Although the case touches upon issues concerning the organisation of the judiciary, the material events took place before the overhaul of the judiciary, which was initiated in 2017 (for an overview, see Wałęsa v. Poland, no. 50849/21, §§ 2‑4, 23 November 2023). Most notably, all actions undertaken by the National Council of the Judiciary (which conducted the relevant selection procedures) took place before 6 March 2018 (for details, see Reczkowicz v. Poland, no. 43447/19, § 14 and §§ 271-78, 22 July 2021) and the composition of the Constitutional Court in the proceedings concerning the applicants did not raise the issues examined by this Court in Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, 7 May 2021). THE FACTS
3. A list of the applicants is set out in the appendix. 4. The Polish Government (“the Government”) were represented by their Agent, Mr J. Sobczak, subsequently replaced by Ms A. Kozińska-Makowska, of the Ministry of Foreign Affairs. 5. The facts of the case may be summarised as follows. I. Applications for vacant judicial posts in 2006
6. At the relevant time, in 2006, the applicants were working in various district courts (courts of first instance) as junior judges (asesorzy sądowi; for details, see paragraphs 40-43 below). 7. Under the relevant legislation – as in force at the time in question (see paragraph 43 below) – in order to be appointed as a judge, a candidate for the post, as a general rule, had to have served as a junior judge for at least three years. 8. In 2006, the applicants applied for vacant posts as district court judges in Słubice, Jelenia Góra and Gliwice, respectively. After being approved by the respective general assemblies of the courts in question and by the National Council of the Judiciary (Krajowa Rada Sądownictwa – “the NCJ”), in October 2006, June 2006 and February 2007 respectively, the applicants’ applications were forwarded by the NCJ to the President of the Republic, with a motion that they be appointed. II. Refusal of the President of the Republic to appoint the applicants – decision of 3 January 2008
9. In August 2007, the NCJ informed the applicants that it had received a letter from the President of the Republic stating that he did not intend to appoint them. 10. In November 2007, the applicants requested the President of the Republic to remedy the breach of law (wezwanie do usunięcia naruszenia prawa) which, in their view, had resulted from his refusal to appoint them. 11. On 16 January 2008, a decision (postanowienie) issued by the President of the Republic on 3 January 2008 and refusing to appoint nine candidates (including the applicants) to various positions in the judiciary was published in the Official Gazette of the Republic of Poland (Monitor Polski). No reasons were given for that decision. It was the first time that a President of the Republic had declined to appoint candidates indicated in the motion of the NCJ. III. Proceedings relating to the refusal by the President of the Republic to appoint the applicants
A. Administrative court proceedings
1. Complaints alleging inaction on the part of the President of the Republic
12. Having received no response to their respective requests (see paragraph 10 above), in January 2008 the applicants lodged complaints with the Warsaw Regional Administrative Court alleging inaction (skarga na bezczynność) on the part of the President of the Republic. 13. Between 25 February and 17 March 2008, the Regional Administrative Court declared the complaints inadmissible (odrzucił skargi). The Administrative Court’s decisions in respect of the matter in question were based on the following grounds:
- under the relevant provisions of Article 184 of the Constitution and section 3(2) of the Law on Proceedings before Administrative Courts (“the 2002 Act” – see paragraph 30 below), inaction on the part of the public administration could be the subject of a complaint lodged with an administrative court, provided that the case in question fell within the jurisdiction of that court;
- since, in the present case, the applicants sought to challenge the President of the Republic’s use of his competence to appoint judges, their complaints were not subject to review by the administrative courts. The President of the Republic, exercising his competence, was not considered to constitute a public administrative authority. Furthermore, the decisions of the President of the Republic in respect of the matter could not be equated with acts or actions which, like those referred to in section 3(2) of the 2002 Act, were subject to appeal before the administrative court;
- the act of appointment conferred judicial authority on a candidate for the post of judge. It gave rise to a public-law relationship between that candidate and the State, which produced its effects mainly in the institutional sphere. Even though the act in question concerned a private individual, it did not fall within the scope of the administrative function;
- although, under Article 10 § 2 of the Constitution, the President of the Republic represented the executive power, he was not considered to constitute a body of the public administration. The head of State had specific powers relating to the conduct of public policy and setting the direction of public actions (and overseeing the implementation of such actions). 14. The applicants lodged cassation appeals against the respective decisions of the Warsaw Regional Administrative Court, asking the Supreme Administrative Court to discontinue the proceedings in view of the fact that the President of the Republic had – in the meantime – ended the state of inaction by issuing the decision of 3 January 2008. In decisions dated 9 (cases no. I OSK 1873/12 and I OSK 1872/12) and 16 October 2012 (case no. I OSK 1871/12), the Supreme Administrative Court dismissed the cassation appeals, terminating the proceedings. 2. Appeals seeking the annulment of the decision refusing to appoint the applicants
15. After the publication of the President’s decision of 3 January 2008 (see paragraph 11 above), the applicants lodged, on 15 February 2008, appeals with the Warsaw Regional Administrative Court, seeking the annulment of the impugned decision on the grounds that it was contrary to the motions issued by the NCJ in their regard and that it was devoid of any reasoning. In their view, the decision in question was contrary to: (i) Article 179 of the Constitution in conjunction with section 55(1) of the Act on the Organisation of Ordinary Courts (Prawo o ustroju sądów powszechnych – see paragraph 27 below), (ii) the following provisions of the Constitution (and the principles derived therefrom): Articles 10 § 2 and 173 (principles underlying the separation of powers and the independence of the judiciary from the executive), Articles 32 and 60 (right of equal access to public service), Article 2 (principle of a democratic State governed by the rule of law) and Article 7 (principle of legality), and (iii) Article 107 of the Code of Administrative Procedure (specifying the mandatory components of each administrative decision). 16. In 2011, the Warsaw Regional Administrative Court declared inadmissible (odrzucił) the applicants’ appeals. In doing so, it relied on arguments similar to those set out in the decisions on the inadmissibility of the applicants’ complaints alleging inaction on the part of the President of the Republic (see paragraph 13 above). 17. The applicants lodged cassation appeals with the Supreme Administrative Court against the decisions of the Regional Administrative Court. Since, in the meantime, the first two applicants had lodged constitutional complaints with the Constitutional Court (see paragraph 19 below), the proceedings concerning the cassation appeals were suspended. 18. Following the conclusion of the above-mentioned proceedings by the Constitutional Court (see paragraph 20 below), the Supreme Administrative Court resumed the proceedings before it and gave decisions dated 9 (cases no. I OSK 1891/12 and I OSK 1882/12) and 16 October 2012 (case no. I OSK 1887/12) by which it dismissed the cassation appeals lodged by the applicants, thus terminating the proceedings. B. Constitutional Court proceedings
1. First set of proceedings – initiated by the first two applicants
19. In April 2008, the first and second applicants, A. Sobczyńska and A. Klepacz (along with one more person who was affected by the presidential decision of 3 January 2008 but who has not lodged an application with this Court) lodged a complaint (skarga konstytucyjna) with the Constitutional Court, asking it to declare that section 55(1) of the Act on the Organisation of Ordinary Courts (“the 2001 Act” – see paragraph 27 below) – in so far as it had allowed the President of the Republic not to proceed with their appointment without having to give reasons for his decision (despite the approval of their respective candidacies by the NCJ) – was contrary to the following provisions of the Constitution: Article 32 (principles of equality before the law and non-discrimination), Article 45 § 1 in conjunction with Article 77 § 2 (right of access to a court), and Article 60 (right of equal access to public service). The arguments advanced by the applicants in their respective constitutional complaints were as follows:
- the refusal of the President of the Republic to proceed with their respective appointments had constituted an interference with the proper functioning of the judiciary;
- the guarantees of the impartiality and independence of the courts and tribunals applied both to their judicial activities sensu stricto and to the procedures for recruiting magistrates;
- the above-mentioned contested provision of section 55(1) of the 2001 Act was contrary to the constitutional principle of respect for human dignity. Since only the applications of candidates who had previously satisfied all the conditions for access to the posts to be filled were submitted to the President of the Republic for appointment, it followed that by refusing to appoint the persons concerned by the decision of 3 January 2008, the President of the Republic had called into question their professional abilities and damaged their reputation;
- even assuming that the President of the Republic did have the authority to refuse to appoint a candidate to the post of judge, his powers in this regard should have been regulated in greater detail by section 55(1) of the 2001 Act. The fact that, despite its importance for the candidates concerned, the President of the Republic’s decision on this point was not accompanied by any reasoning and was not subject to any appeal was indicative of an obvious shortcoming in the relevant legislation;
- the Constitution required that every decision by which the public authorities interfered with individual rights and freedoms be subject to judicial review. Furthermore, given that (in the event of disputes concerning the rights and freedoms of individuals) the Constitution established a presumption in favour of access to courts, any restrictions in that area could only be applied if the Constitution provided express authorisation to that effect. Furthermore, restrictions of that type were only permitted in the event of a conflict between the rights and freedoms in question and a constitutional provision of at least equal importance to those rights and freedoms. It followed from all of the above-noted principles that those of the President of the Republic’s decisions which were administrative in nature and which were decisive for individual rights and freedoms had to be subject to judicial review;
- section 55(1) of the 2001 Act was contrary to the principle of equal access to public service that was set out in Article 60 of the Constitution. Since each candidate for the position of judge had to meet the most stringent legal requirements in that regard and since eligible applications were subject to prior review by the general assemblies of the competent courts (and then by the NCJ), the rejection by the President of the Republic of the applications thus selected – on the basis of vague criteria and without any justification – constituted both arbitrary interference by the President in the right of the candidates in question to equal access to public service and clear discrimination against them. 20. On 19 June 2012, the Constitutional Court, sitting in plenary session, gave a decision (in case no. SK 37/08) by which it discontinued the proceedings on the grounds that it was inadmissible for it (that is, the Constitutional Court) to deliver a judgment in respect of that case (that is, case no. SK 37/08) (umorzył postępowanie ze względu na niedopuszczalność wydania wyroku). In the reasons for its decision, the Constitutional Court stated the following:
- under Article 79 of the Constitution and the principles established in its case-law, its task was to review the constitutionality of laws and not the application of the provisions of the Constitution by public authorities;
- the conclusion of case no. Kpt 1/08 (see paragraph 49 below) concerning the exhaustive and exclusive nature of Article 179 of the Constitution (which covered all issues relating to the competence of the President of the Republic in the appointment of judges) implied that all questions that might arise in connection with the President of the Republic’s possible refusal to appoint a candidate to the position of judge fell within the sphere of the interpretation and application of the provisions of the Constitution, and not that of the constitutionality of laws;
- the wording of section 55(1) of the 2001 Act was identical to that of Article 179 of the Constitution;
- given that, in the case under review, the applicants were seeking to challenge the President of the Republic’s use of the competence conferred on him under Article 179 of the Constitution, their appeals were outside the scope of a constitutional review; indeed, the Constitutional Court did not have jurisdiction to review the application of the Constitution by public authorities or to rule on the alleged inconsistency with the Constitution of the President of the Republic’s practice;
- in addition to the above, the complaint relating to the alleged violation of the applicants’ right of access to a court (alleging the incompatibility of section 55(1) of the 2001 Act with Articles 45 § 1 and 77 § 2 of the Constitution) had been premature. On the one hand, the respective cassation appeals of the parties concerned were pending before the Supreme Administrative Court; on the other hand, no established case-law of the administrative courts on the issue was the subject of those appeals. 21. Three of the 15 members of the Constitutional Court expressed dissenting opinions, holding, in particular, that – given the importance of the case for the correct application of the principle of a democratic State governed by the rule of law – the Constitutional Court should have ruled on the merits of the case. One of the three dissenting members (Judge P. Tuleja) stated in his dissenting opinion, in particular, that:
- the argument put forward by the majority of the Constitutional Court judges that the subject matter of section 55(1) of the 2001 Act and Article 179 of the Constitution was identical had been insufficiently substantiated. The fact that the powers conferred on the President of the Republic under the Constitution with regard to the appointment of judges constituted the exclusive competence of the President did not prevent the manner in which those powers were exercised from being regulated by ordinary legislation. Furthermore, it was clear from the wording of section 55(1) of the 2001 Act that the matter regulated therein was broader than that regulated by Article 179 of the Constitution;
- the Constitutional Court had been wrong to rely so heavily on its decision in case no. Kpt 1/08 (see paragraph 49 below). Not only had the latter case differed from the applicants’ case in terms of its subject matter, but the Constitutional Court had itself concluded that there were lacunae in the legislation concerning the appointment of judges by the President of the Republic. It was precisely this aspect that the applicants were seeking to challenge. Furthermore, the legal doctrine on which the majority of the Constitutional Court judges claimed to have based their decision did not corroborate their conclusion regarding the exhaustive and exclusive nature of the provisions in the Constitution itself on all matters relating to the appointment of judges by the President of the Republic;
- the applicants had indeed exhausted the remedies necessary to bring the matter before the Constitutional Court. The above-mentioned dissenting judge also made the following statement:
“It is legitimate to ask what purpose is served by establishing elaborate criteria for the selection of judges and by creating a multi‑stage procedure for identifying candidates, if at the end of that process the President retains an arbitrary and entirely unconstrained discretion (in particular, unconstrained by statute). How is the constitutional role of the National Council of the Judiciary to be guaranteed if, in practice, the President may initiate a parallel assessment of candidates? The President is not bound by any time‑limit for examining the Council’s motions, and the members of the Council may never learn the reasons for a decision refusing to act upon such a motion. Does Polish law sufficiently safeguard the independence of a judge who may be required to adjudicate on the legal situation of the President – for example, in respect of the obligation to disclose public information – when that judge’s promotion depends on the procedure described above? The competence vested in the President under Article 144 § 3 (17) of the Constitution should serve to limit the influence of the Council of Ministers on the process of appointing judges and to strengthen the independence of the judiciary. To derive, from the nature of that competence, limitations on the principle of statutory exclusivity – where that principle is designed to protect human rights and the separation of powers – would produce the opposite effect: it weakens the protection of human rights and undermines the independence of the judiciary.”
22. The above-noted dissenting opinion, which was shared by one of the other dissenting judges, concluded that section 55(1) of the 2001 Act – in so far as it did not require the President of the Republic to give reasons for his decision to refuse to appoint a candidate to the position of judge – was incompatible with Article 60 of the Constitution in conjunction with Articles 32 and 2 thereof. 2. Second set of proceedings – initiated by all three applicants
23. Following the termination of the administrative-court proceedings (see paragraph 18 above), the applicants lodged complaints with the Constitutional Court in 2013, that were essentially the same as those previously brought before it by the first two applicants. 24. On 12 June 2013, the Constitutional Court, sitting as a single judge, gave decisions (cases no. Ts 36/13, Ts 38/13, Ts 39/13) by which it refused to entertain each complaint (odmówił nadania biegu skardze). In the reasoning for its decisions, the Constitutional Court observed that the decisions by which the Supreme Administrative Court (ruling as the court of final instance) had dismissed the respective cassation appeals of the applicants had been adopted in application of the provisions of the 2002 Act (see paragraph 30 below – which concerned the jurisdiction of administrative courts) and not in application of the provisions of section 55(1) of the 2001 Act (the constitutionality of which was contested by the applicants in the proceedings before it). The Constitutional Court also deemed that the complaint concerning the lack of reasoning in the President of the Republic’s decision refusing to appoint the applicants to the position of judge had become time-barred. In that regard, it observed that, since it was clear that that decision was not subject to appeal, the three-month period for lodging a constitutional complaint had begun to run from the date on which the decision in question had been communicated to the parties concerned. Lastly, the Constitutional Court reiterated that it had itself discontinued the proceedings concerning the complaints lodged by the first two applicants (see paragraph 20 above), which were similar to those before it. 25. All three applicants appealed, but the Constitutional Court, sitting as a panel of three judges, dismissed the appeals by decisions of 5 March 2014 (served on the representatives of the applicants on 7 March 2014). RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW AND PRACTICE
A. Domestic law
1. Constitutional provisions
26. The relevant provisions of the Constitution read as follows:
Article 2
“The Republic of Poland shall be a democratic State governed by the rule of law and implementing the principles of social justice.”
Article 7
“The organs of public authority shall function on the basis of, and within the limits of, the law.”
Article 10
“1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. 2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.”
Article 32
“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”
Article 45 § 1
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Article 60
“Polish citizens enjoying full public rights shall have a right of access to public service based on the principle of equality.”
Article 77 § 2
“Statutes shall not bar the recourse by any person to a court in pursuit of claims alleging infringement of freedoms or rights.”
Article 79 § 1
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act upon the basis of which a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations under the Constitution.”
Article 126
“1. The President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority. 2. The President of the Republic shall ensure observance of the Constitution, and safeguard the sovereignty and security of the State and the inviolability and integrity of its territory. 3. The President shall exercise his duties within the scope of and in accordance with the principles specified in the Constitution and statutes.”
Article 144
“1. The President of the Republic, exercising his constitutional and statutory authority, shall perform official acts. 2. Official acts of the President shall require, for their validity, the signature of the Prime Minister who, by virtue of that signature, accepts accountability therefor to the Sejm [the lower house of Parliament]. 3. The provisions of paragraph 2 above shall not relate to:
... (17) appointing judges; ...”
Article 173
“The courts and tribunals shall constitute a separate power and shall be independent of other branches of power.”
Article 174
“The courts and tribunals shall pronounce judgments in the name of the Republic of Poland.”
Article 175 § 1
“The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the common courts, administrative courts and military courts.”
Article 177
“The common courts shall implement the administration of justice concerning all matters save for those statutorily reserved to other courts.”
Article 178 § 1
“Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.”
Article 179
“Judges shall be appointed by the President of the Republic, upon a motion by the National Council of the Judiciary, for an indefinite period.”
Article 184
“The Supreme Administrative Court and other administrative courts shall exercise – to the extent specified by statute – supervision over the performance of the public administration. Such supervision shall also extend to judgments on the conformity with statute of resolutions [issued by] organs of local government and regulatory instruments [adopted by] f territorial organs of government administration.”
Article 186
“1. The National Council of the Judiciary shall safeguard the independence of courts and judges. 2. The National Council of the Judiciary may lodge an application with the Constitutional Court seeking that that court examine the conformity with the Constitution of normative acts to the extent to which they relate to the independence of courts and judges.”
Article 187
“1. The National Council of the Judiciary shall be composed as follows:
(1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic;
(2) fifteen judges chosen from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts;
(3) four members chosen by the Sejm from among its deputies and two members chosen by the Senate from among its senators. 2. The National Council of the Judiciary shall choose, from among its members, a chairperson and two deputy chairpersons. 3. The term of office of those chosen as members of the National Council of the Judiciary shall be four years.
...”
2. The Act on the Organisation of Ordinary Courts – “the 2001 Act”
(a)   Wording applicable to the case of the applicants
27. The relevant provision of the Act of 27 July 2001 on the Organisation of Ordinary Courts (ustawa z dnia 27 lipca 2001 r. Prawo o ustroju sądów powszechnych“ (the 2001 Act”) – as worded between 12 September 2001 and 5 May 2009 – provided as follows:
Section 55 § 1
“Judges of the ordinary courts shall be appointed to judicial office by the President of the Republic of Poland, upon a motion of the National Council of the Judiciary.”
(b)   Changes introduced following the events concerning the applicants
28. The Act of 23 January 2009 on the National School of Judiciary and Public Prosecution (ustawa z dnia 23 stycznia 2009 r. o Krajowej Szkole Sądownictwa i Prokuratury) amended section 55(1) of the 2001 Act (with effect from 5 May 2009) by introducing a requirement that the President of the Republic of Poland appoint judges to ordinary courts within one month of receiving the respective motions from the National Council of the Judiciary. 29. By a judgment of 5 June 2012 (case no. K 18/09 – see paragraph 51 below) the Constitutional Court ruled that the above-mentioned amendment was incompatible with Articles 179 and 2 of the Constitution. 3. The Law on Proceedings Before Administrative Courts – “the 2002 Act”
30. Pursuant to section 3(1) of the Law of 30 August 2002 on Proceedings Before Administrative Courts (ustawa z dnia z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed sądami administracyjnymi – “the 2002 Act”), administrative courts exercise oversight over the activities of the public administration and apply the legal remedies provided for by statute. 31. Section 3(2) of the 2002 Act specifies the acts and measures undertaken by the public administration that may be challenged before the administrative courts – including:
- administrative decisions (decyzje administracyjne; section 3(2)1),
- various procedural orders (postanowienia) made during administrative proceedings (section 3(2)2), and
- other acts or measures undertaken by the public administration (akty lub czynności z zakresu administracji publicznej) that concern rights or obligations arising from statutory provisions (section 3(2)(4). 32. Moreover, section 3(2)(8) of the 2002 Act – as applicable at the time relevant for the complaints raised by the applicants – provided that the administrative courts also had jurisdiction to hear complaints against inaction (bezczynność) on the part of public authorities in respect of the kind of cases referred to in section 3(2)(1) to (4) above. 4. Provisions concerning the NCJ’s role in the appointment procedure
33. Under section 2(1) of the Act of 27 July 2001 on the National Council of the Judiciary (ustawa z dnia 27 lipca 2001 r. o Krajowej Radzie Sądownictwa –“the Act on the NCJ (2001)”) – as applicable at the time in question, the NCJ had authority to perform the tasks set out by statutes, and in particular to:
- examine and assess candidates for judicial office at the Supreme Court and the Supreme Administrative Court, as well as for judicial posts at the ordinary courts, regional administrative courts, and military courts (section 2(1)2)
- submit to the President of the Republic of Poland motions for the appointment of judges to the Supreme Court, the Supreme Administrative Court, the ordinary courts, the regional administrative courts, and the military courts (section 2(1)(3). 5. Procedure provided (at the material time) for the appointment of ordinary court judges
34. The procedure for the selection and appointment of candidates to judicial office in ordinary courts comprised several stages and was governed by the relevant provisions of (i) the Constitution (Article 144 § 3 (17)), (ii) the 2001 Act, and (iii) the Act on the NCJ (2001). 35. The procedure began with the publication of a vacancy notice in the Official Gazette of the Republic of Poland (Monitor Polski) by the Minister of Justice. Interested candidates who met the eligibility criteria were to submit their applications to the president of the competent court (which depended on the level of jurisdiction at which the vacancy arose) – (section 57 of the 2001 Act). 36. Applications deemed admissible were to first be reviewed by the board (kolegium) of the competent court (section 57(3) of the 2001 Act), and subsequently by its general assembly of judges (zgromadzenie ogólne sędziów). The general assembly was to decide on each application by vote, the results of which were to be transmitted by the president of the competent court to the NCJ (section 58(2)-(3) of the 2001 Act). The Minister of Justice was also to present his or her opinion on each of the candidates (section 58(4) of the 2001 Act). 37. The NCJ would then conduct a comprehensive assessment of the candidates (section 60 of the 2001 Act in conjunction with section 2(1) of the Act on the NCJ (2001) – see paragraph 33 above). The assessment would be made on the basis of the documents submitted and of the relevant criteria (including their professional qualifications, experience, and moral integrity – section 61 of the 2001 Act). Following this evaluation, the NCJ would express either a favourable or unfavourable opinion on each applicant. In the event of a favourable opinion, the NCJ was to submit to the President of the Republic a motion that the candidate in question be appointed (section 2(1)3 of the Act on the NCJ (2001)). The NCJ’s opinion would be presented in the form of a resolution adopted in plenary session – in the presence of at least half of its members – by an absolute majority of the votes cast (section 12 of the Act on the NCJ (2001)). 38. Under Article 179 of the Constitution and section 55(1) of the 2001 Act (see paragraphs 26-27 above), the President of the Republic would appoint candidates indicated in the motion of the NCJ. 39. At the relevant time, a resolution containing the NCJ’s opinion on a candidate did not have to contain any written reasoning and was not subject to any appeal (section 13(1)-(2) of the Act on the NCJ (2001)). 6. Status of junior judges (asesorzy sądowi), as regulated by the 2001 Act at the material time
40. At the time in question (that is to say from the adoption of the 2001 Act until 4 March 2009, when the provisions in question were repealed) the status of junior judges (asesorzy sądowi) was comprehensively set out in sections 134-36 of the 2001 Act. 41. The position of junior judge was open only to candidates who had successfully completed judicial or prosecutorial training (aplikacja sądowa or aplikacja prokuratorska) and passed the judicial or prosecutorial examination (section 134(1)). In addition, candidates were required to satisfy the general conditions for judicial office set out in section 61(1)(1)-(4) of the 2001 Act – namely: Polish citizenship; full legal capacity; an impeccable character; and a degree in law. The 2001 Act further provided that the fact that a junior judge had taken and passed the judicial or prosecutorial examination could not serve as a sufficient basis for appointment if more than five years had elapsed since a candidate had taken it – unless the candidate had, in the meantime, carried relevant work in the field of law (of the type specified in section 61(2)-(3)) for at least three years (section 134(2)). 42. A candidate for the office of junior judge was required to lodge a request to be appointed (mianowanie) with the Minister of Justice (section 134(3)). Such an appointment was a discretionary act on the part of the Minister of Justice. Each candidate was to be required to submit a certificate from the National Criminal Register and a medical certificate confirming fitness to perform judicial duties, in accordance with the rules applicable to candidates for judicial office (section 134(3) in conjunction with section 57). 43. Once appointed and sworn in, junior judges would gain the right to perform judicial functions that were essentially the same as those of a fully qualified judge (section 136(2)). In order to be eligible for a (fully independent) judicial office, a junior judge had to perform his or her functions for at least three years (section 61(1)(7)). B. Domestic practice
1. Case-law of the Constitutional Court
44. The issue of judicial appointments has been examined on several occasions by the Constitutional Court – notably within the context of its review of the constitutionality of the 2001 Act and the Act on the NCJ (2001). 45. In a judgment of 24 October 2007 (case no. SK 7/06), the Constitutional Court declared unconstitutional certain provisions of the 2001 Act, on the grounds that junior judges lacked independence from the Minister of Justice (for details, see Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 19-24, 30 November 2010). The Constitutional Court found that junior judges could be dismissed at any time during their term by the Minister of Justice, and that no adequate safeguards existed to protect them against the arbitrary exercise of that power. In this regard, the Constitutional Court observed that the possibility for an extrajudicial body – representing the executive and led by a political figure – to influence the career of junior judges was problematic in the light of the requirement of an “independent and impartial tribunal”. 46. In a judgment of 29 November 2007 (case no. SK 43/06), the Constitutional Court declared unconstitutional certain provisions of the Act on the NCJ (2001) in so far as they conferred upon the NCJ the authority to regulate the criteria for assessing candidates for judicial office. The Constitutional Court held that such matters should be regulated by statute. On that occasion, the Constitutional Court examined the procedure for selecting judicial candidates in the light both of the principles set out in Article 60 of the Constitution, and those arising from the imperatives of judicial impartiality, independence and the prohibition on arbitrariness. In the reasoning of that judgment the Constitutional Court held, inter alia, that:
“Article 60 of the Constitution is the source of precisely defined subjective constitutional rights, which must be respected by the public authorities.
... It is beyond dispute that the right of access to public service also extends to judicial posts. The particular importance and role of the courts in safeguarding constitutional rights and freedoms require that the constitutional principles outlined above be observed with particular rigour when judicial positions are filled. In view of the constitutional principle of judicial independence, any form of arbitrariness or unfettered discretion in this sphere must be excluded.
... The right under consideration encompasses not only the general right to seek admission to public service as such, but also the right to apply for a specific post within that service. The guarantees concerning access to public service set out above must therefore apply to the procedures for filling each category of public‑service position.”
47. In a judgment of 27 May 2008 (case no. SK 57/06) the Constitutional Court declared unconstitutional certain provisions of the Act on the NCJ (2001) in so far as they excluded from judicial review NCJ resolutions containing an opinion on a candidate for a judicial post (see paragraph 39 above). In relation to the right of equal access to public service, the Constitutional Court made, inter alia, the following observations:
“The right arising from Article 60 of the Constitution has the character of a formal guarantee, since the constitutional provisions, apart from the requirement of Polish citizenship, do not specify the conditions that must be met by persons seeking a position in the public service. This provision therefore cannot serve as a basis for asserting before a court a claim to be admitted to employment or to perform a specific function, or to occupy a particular post. The [public] interest protected by Article 60 of the Constitution is the transparency and openness of the rules applied when determining the requirements for holding positions in the public service. The right guaranteed by this constitutional provision also encompasses the verifiability of the criteria used in recruitment to the public service: public authorities are entitled to establish specific conditions of access to particular branches of the service, and thus to conduct selective recruitment. It is, however, necessary to ensure appropriate guarantees of the lawfulness of decisions concerning access to public service, so as to exclude any arbitrariness on the part of the public authorities (see judgment of 9 June 1998, no. K 28/97).
... The procedure in which the NCJ assesses a candidate for judicial office at a given judicial post and decides whether to submit to the President of the Republic of Poland a request for appointment to that post concerns the right, guaranteed by Article 60 of the Constitution, of Polish citizens enjoying full public rights to have access to public service on the basis of the principle of equality. It is therefore a right belonging to the category of constitutional rights and freedoms to which the absolute prohibition on excluding judicial review, expressed in Article 77 § 2 of the Constitution, applies. For that reason, emphasising in the present case the link between this constitutional provision and Article 60, the Constitutional Court held that the complete exclusion of judicial review by the challenged provision – section 13(2), second sentence, of the Act on the National Council of the Judiciary – was incompatible with Article 45 § 1 and Article 77 § 2 of the Constitution in conjunction with Article 60. It is for the legislature to determine the court competent to examine such cases, as well as the scope and procedure of judicial review of proceedings concerning the filling of judicial posts. Reiterating the legislature’s regulatory discretion in shaping judicial review in matters of judicial appointments, the Constitutional Court wishes to emphasise that the scope of such protection must correspond to the content of the right guaranteed in Article 60. It must not be overlooked that the object of this protection is primarily the formal aspect of access to public service – namely, compliance with uniform criteria and procedural rules – and not the substantive assessment of a given person’s qualifications or credibility in the light of the criteria applied in that procedure. Only to the extent that the Constitution itself defines the content of the right of access to public service does it become necessary to give effect to the guarantee of judicial protection contained in Article 45 § 1 in conjunction with Article 77 § 2. That right, as indicated above, is exhausted in the requirement to respect equal rules of access to public service. Judicial review therefore does not provide a basis for encroaching upon the competences of the National Council of the Judiciary, as this could amount to an infringement of the Council’s constitutional powers under Article 179. The judicial protection afforded to a candidate for a particular judicial post would thus encompass review of the procedure solely in terms of its compliance with the law (as defined above), and would therefore be limited to assessing the lawfulness of the procedure applied in that individual case – including a decision to lodge with the President of the Republic a request for appointment or to refrain from lodging such a request in respect of that candidate. Subjecting the outcome of the proceedings before the NCJ in an individual case to judicial review cannot, however, be understood as implying that the court would participate in deciding on the filling of a specific judicial post.”
48. On 28 February 2008, following the adoption by the President of the Republic of the decision refusing to appoint the applicants (see paragraph 11 above), the First President of the Supreme Court referred the matter to the Constitutional Court, requesting a ruling on a “conflict of competence” (wniosek o rozstrzygnięcie sporu kompetencyjnego) between the President of the Republic and the NCJ. In support of his request, he enquired whether, in view of (i) the time that had elapsed between the submission of the applicants’ candidacies to the President of the Republic for approval and the date on which the latter had ruled on this point, and (ii) the lack of reasoning for the contested decision – the President of the Republic had in the meantime re-examined those applications. He pointed out in that regard that, under the relevant provisions of the Constitution and the relevant law, only the NCJ (in its capacity as guarantor of the independence of Poland’s courts and tribunals) was competent to assess candidates for judicial posts. Accordingly, the First President of the Supreme Court deemed that not only was the President’s decision unprecedented in Poland’s recent history, but it also appeared to be contrary to the principles of the separation of powers and of the independence of the judiciary from the executive. 49. On 23 June 2008, the Constitutional Court gave a decision (case no. Kpt 1/08) by which it discontinued the proceedings on the grounds that for it to deliver a judgment in that case was inadmissible (see paragraph 20 above). In the reasons for its decision, the Constitutional Court made the following observations:
- in the absence of identical powers in this area on the part of the respective authorities, there was no conflict of competence. There was no doubt that the power to assess and appoint candidates for the position of judge lay, respectively, with the NCJ and the President of the Republic. Furthermore, the nature of the respective decisions taken by those bodies differed from each other. The NCJ issued a favourable or unfavourable opinion on each candidate and, in the event of a favourable opinion, forwarded the candidate’s application to the President of the Republic with a motion that he or she be appointed. The President, for his part, could not carry out actions forming part of the competence to assess candidates for judicial office and had no authority to formulate an alternative opinion to that expressed by the NCJ; rather, he exercised his competence to either appoint or decline to appoint as judges candidates who had received a favourable opinion (that is, who had been indicated in a motion) from the NCJ. If, in the case under review, the Constitutional Court were to declare itself competent to hear the request of the First President of the Supreme Court, it would be setting itself up as a judge of the exercise of that competence by the President of the Republic;
- the intervention of the First President of the Supreme Court could, to a certain extent, be justified by the absence of the necessary regulations on the effects of a possible refusal by the President of the Republic to appoint a candidate to a judicial post. In the interests of the completeness of the legal system and good legislative technique, regulations on this point would certainly be desirable. Nevertheless, the absence of such regulations was not in itself (both generally and in this particular case) such as to give rise to a conflict of competence between the authorities concerned. 50. In a judgment of 15 January 2009 (case no. K 45/07), the Constitutional Court examined certain provisions of the 2001 Act concerning the secondment of judges and the supervisory powers of the Minister of Justice over the administrative activities of courts. Furthermore, in a judgment of 19 November 2009 (case no. K 62/07), the Constitutional Court declared unconstitutional certain provisions of the Act on the NCJ (2001) which empowered the President of the Republic to regulate (by way of secondary legislation) the procedure conducted by the NCJ for selecting candidates for judicial office. 51. In a judgment of 5 June 2012 (case no. K 18/09) – delivered within the context of a preventive constitutional review of section 55(1) of the 2001 Act (see section 29 above) – the Constitutional Court held that the provision was incompatible with the Constitution in so far as it imposed, at the time, a one-month time-limit on the President of the Republic for exercising the competence set out in Article 179 of the Constitution concerning the appointment of judges. The Constitutional Court made the following findings:
“Under Article 179 of the Constitution, judges are appointed by the President, at the request of the NCJ, for an indefinite term. The Constitution accordingly identifies two entities that are involved in the procedure for appointing judges: the President and the National Council of the Judiciary. The judicial appointment procedure [provided by] the Constitution thus presupposes cooperation between two bodies – one of which has a direct social mandate, while the other (owing to the participation of, among others, members of parliament and senators) has an indirect mandate ... Under Article 144 § 3 of the Constitution, the power to appoint judges is one of the official acts of the President which, in order to be valid, do not require the signature of the Prime Minister ... . However, this classification does not [constitute] so much a strengthening of the President’s independent position within the system as an emphasis on the independence of the judiciary from the government and its subordinate bodies. The requirement of countersignature would mean granting the Prime Minister the right of veto over candidates proposed by the NCJ ... Pursuant to Article 186 of the Constitution, the NCJ safeguards the independence of courts and judges, which can be broadly defined as ensuring that there are no threats to the independence of courts and judges in the legal system ... Under the procedure for appointing judges, the NCJ is to guarantee, on the one hand, the correct selection of candidates and, on the other hand, the transparency of the criteria for appointment to the position of judge ... By entrusting the President with the power to appoint judges, the Constitution thus adopts a system of judicial appointments – but one that is limited in nature. Although judicial appointments do not require countersignature, the constitutional requirement for a motion from the NCJ significantly restricts the President’s freedom of action in this situation. The President cannot appoint [simply] any person who meets the requirements for candidates for judges, but only a person whose candidacy has been considered and indicated by the NCJ ...
... Another controversial issue is whether the President may disregard the motion of the NCJ and refuse to appoint a ... person to the office of judge. In the light of the prevailing views of legal scholars, there is no doubt that although the President’s freedom of action is limited to taking a position on a candidate proposed by the NCJ, the fact that [his or her] power to appoint judges is framed as an exclusive competence emphasises that the President has no legal obligation to accept the NCJ’s motion; [however,] refusal [to accept the NCJ’s motion] should only take place in exceptional circumstances and would have to be preceded by the presentation of objections to the NCJ by the representative of the President who sits on it ... As far as constitutional practice is concerned, until 2007 were no cases of the President refusing to accept a motion of the NCJ. This ... changed when, by a decision of 3 January 2008 ... [the President] refused to appoint nine persons [indicated by the] NCJ for the office of judge.
...
... [U]nder Article 144 § 3 of the Constitution, the power to appoint judges [constitutes] an exclusive competence of the President (that is, his personal right), which does not require the signature of the Prime Minister in order to be valid. As such, [that power] remains within the exclusive competence and responsibility of the President, although this does not mean that he can act completely freely – he is bound by the principles and values expressed in the Constitution, which he is obliged to uphold under Article 126 § 2 of the Constitution. ... Article 179 of the Constitution therefore [constitutes] a complete rule in terms of defining the President’s powers to appoint judges, as it regulates all the necessary elements of the appointment procedure. It is obvious, however, that this provision does not describe the entire procedure in detail and, in this sense, is not self-executing. In this respect, the exercise of the President’s powers may be specified in statutes, provided that the principle of the supremacy of the Constitution (expressed in Article 8 § 1 of the Constitution) is observed. ...
... [T]he fact that the time-limit within which the President is to exercise his powers is not explicitly specified does not mean that Article 179 of the Constitution does not refer to this issue at all. It should be interpreted as an obligation on the part of the President to act without undue delay. This interpretation is justified, inter alia, by the content of Article 126 of the Constitution.
... [T]he role of the President in the nomination procedure is not limited to that of a ‘notary’ confirming decisions taken elsewhere ..., but rather that he makes his own assessment of the candidates presented to him and, as a consequence, may refuse to accept an NCJ motion. He should be granted the right to refuse to comply with the motions put forward if, in his opinion, they would be contrary to the values that the Constitution has entrusted him to uphold ...
... [I]t seems that ad hoc changes to the law do not guarantee the realisation of the intended objective – which is, according to the intentions of the drafters, the proper exercise by the President of the powers conferred on him by Article 179 of the Constitution. This requires cooperation between the bodies involved in the procedure for appointing judges – the President and the NCJ – as required of the authorities of the Republic of Poland by the preamble to the Constitution.”
2. Case-law of the Supreme Administrative Court
52. All the other persons (that is, other than the applicants) concerned by the President of the Republic’s decision of 3 January 2008 also attempted to have administrative courts review the case. Specifically: (i) all six[1] remaining candidates appealed against the refusal of the President of the Republic to appoint them as judges; (ii) five[2] of them lodged complaints alleging inaction on the part of the President; and (iii) three[3] of the latter lodged complaints in respect of the President’s “stance” on not appointing them to judicial office. None of those attempts were successful, given that the Warsaw Regional Administrative Court found the relevant complaints and appeals inadmissible and the Supreme Administrative Court gave final decisions by which it dismissed the appellants’ cassation appeals. 53. Among the rulings noted above, the Supreme Administrative Court gave a series of almost identical decisions of 17 October 2012 (cases no. I OSK 1876/12, I OSK 1877/12 and I OSK 1889/12), concerning the complaints and appeal lodged by one candidate, in respect of which it made the following observations:
- the President’s constitutional competences had to be exercised solely to fulfil his constitutional functions and not as autonomous political instruments detached from those functions (Article 126 § 3 of the Constitution);​
- while Article 179 of the Constitution conferred the formal act of appointment on the head of State, safeguarding the independence of courts and judges lay with the NCJ under Article 186 § 1 of the Constitution;​
- the President had lacked the authority to substitute his own (alternative) assessment of the candidate’s merits for that of the NCJ; there was no duty to accept every NCJ motion; however, any refusal should be exceptional and preceded by reservations articulated by the representative of the President representative who sat on the NCJ (reference was made to the Constitutional Court’s rulings in cases Kpt 1/08 and K 18/09 – see paragraphs 49 and 51 above, respectively);
- Articles 10 and 173 of the Constitution emphasised the judiciary’s special constitutional position; appointment and promotion practices had to exclude arbitrariness and ensure stability for sitting judges seeking promotion;​
“... [T]he current legal framework may give rise to doubts as to its compatibility with the constitutional principles set out in Articles 60 and 45 § 1 of the Constitution – namely, the right of access to public service and the right of access to a court. It is beyond doubt that, for the reasons indicated above, decisions of the President cannot be subject to review by the administrative courts. However, it should be considered whether leaving this sphere entirely outside any form of review does not endanger the constitutional values referred to above and does not create a potential field of conflict between two constitutional organs [that share] common objectives. The fundamental duty of the President of the Republic of Poland is to ensure respect for the Constitution and, in that regard – even without detracting from the President’s personal competences – it is necessary to define the scope of his discretion to make assessments and decisions. Article 173 of the Constitution distinguishes the judiciary as a separate branch of power, while Articles 178–81 establish the principles of the independence of judges and of the autonomy of the courts. These values, in a State governed by the rule of law, must be afforded the strictest protection, since the proper performance by the courts of their assigned functions depends on their existence. In this situation, consideration should be given to the possibility of introducing a legal provision requiring [i] the President to consult the National Council of the Judiciary in cases where, in his view, a candidate presented for appointment does not offer sufficient guarantees of the proper exercise of judicial office, or alternatively, [ii] the subjection of a refusal by the President [to approve a candidate] to a single-instance review by the Supreme Court. The practice of consultation between the President and the National Council of the Judiciary has functioned [satisfactorily] for a very long period; however, the case under examination demonstrates that the absence of a statutory provision [mandating such consultation] may give rise to the risks indicated above.”
54. Also in 2012 – in a case initiated by a person whose candidacy for judicial office had been dismissed by a different decision of the President of the Republic than the one concerning the applicants (namely, by a decision of 4 September 2008) – the Supreme Administrative Court confirmed that it lacked jurisdiction to review presidential decisions on judicial appointments; the proceedings in question were concluded by the Supreme Administrative Court’s decision of 16 October 2012 (case no. I OSK 1886/12). 55. Furthermore, on 20 March 2013 (case no. I OSK 3129/12) the Supreme Administrative Court similarly dismissed a cassation appeal lodged by yet another person whose candidacy for a judicial position had ultimately been dismissed by a 2010 decision of the President of the Republic – reversing an earlier, positive decision of 27 March 2009 (issued by the previous holder of the office of the President of the Republic). 56. In its later case-law (for example, by a decision of 25 April 2019 in case no. II GZ 62/19, and by a decision of 11 May 2021 in case no. III OSK 3265/21) the Supreme Administrative Court confirmed its approach regarding the lack of jurisdiction of administrative courts to review presidential decisions concerning the appointment of candidates to judicial office). 57. Moreover, in a series of cases concerning allegations that the composition of judicial panels of administrative courts had been unlawful – on the basis that the judges in question had been appointed on the motion of the recomposed NCJ (see Wałęsa v. Poland, cited above, §§ 3-4) – the Supreme Administrative Court ruled on the legal effects of the exercise by the President of the Republic of his constitutional competence in the matter of judicial appointments (see, inter alia, decision of 27 January 2020, case no. I OSK 1917/18, and judgment of 4 November 2021, case no. III FSK 3626/21). In the latter judgment, the Supreme Administrative Court made, inter alia, the following observations:
“In the light of Article 179 § 1 in conjunction with Article 144 § 2 and § 3 (17) of the Constitution, it does not appear that the mere fact that the appointment of a judge constitutes the constitutional competence of the President (and thus a personal act that is exempt from the requirement of the Prime Minister’s countersignature) suffices for it to be concluded that the President may, at his unfettered discretion, decide when he is not bound by the motion of the National Council of the Judiciary. The President’s role in the process of judicial appointments must rather be interpreted in the light of Articles 10 and 126 of the Constitution.
... The function of guarantor of the continuity of State authority requires the President to take measures aimed at preventing disruption to the constitutionally prescribed mechanism of the functioning of State organs (including the judiciary, which is inherently linked to the personal staffing of judicial posts). Furthermore, the function of safeguarding compliance with the Constitution is, in essence, a constitutional duty incumbent upon the President in every sphere of his activity. Its proper fulfilment should not rest solely upon his subjective convictions as to the content and interpretation of constitutional provisions, but must be grounded in constitutional principles and values.”
58. Furthermore, in 2021 the Supreme Administrative Court gave a series of judgments concerning appeals against resolutions of the recomposed NCJ (by which the latter indicated some candidates for appointment to the Supreme Court and refused to indicate others). The Supreme Administrative Court set aside the impugned resolutions but held that the consequences of its judgments did not relate to the validity and effectiveness of presidential appointments to the office of judge of the Supreme Court made on the basis of motions submitted by the NCJ in the resolutions under review (for details see Sadomski v. Poland, no. 56297/21, §§ 9-14 and §§ 28-35, 9 May 2025)
3. Case-law of the Supreme Court
59. In a judgment of 5 November 2009 (case no. I CSK 16/09) relating to a civil claim for the establishment (pozew o ustalenie) of the appellant’s right to exercise the mandate of a judge of the Constitutional Court, the Supreme Court held that the constitutional right of access to a court served to secure the effective protection of individual rights. It arose only where there existed a “case” in the constitutional sense – that is, where judicial proceedings were capable of affording protection to a private right or interest. A claim seeking recognition of the right to exercise the mandate of a judge of the Constitutional Court was characterised as relating to a public‑law relationship and not to the enforcement of an individual right. Accordingly, the appellant could not rely on Article 45 § 1 or Article 77 § 2 of the Constitution, and disputes concerning the conferral or removal of a judicial mandate in the Constitutional Court were considered to fall outside the scope of judicial review. 60. The issue of presidential acts of appointment to judicial posts has gained notoriety in the case-law of the Supreme Court since the 2017 reform of the NCJ and the judicial appointments carried out with the participation of the recomposed NCJ (see Wałęsa, cited above, §§ 3-4). The Supreme Court – often referring to the above-cited case-law of the Supreme Administrative Court and the Constitutional Court – essentially confirmed that the possibility of seeking judicial review was excluded in respect of presidential decisions on judicial appointments. The Court notes, however, that many of those rulings (for example, judgment of 1 July 2019, case no. I NO 70/19; decision of 16 October 2019, case no. I NOZP 2/19; and judgment of 9 June 2020, case no. I NO 37/20) have been issued by the judges sitting in the Chamber of Extraordinary Review and Public Affairs (Izba Kontroli Nadzwyczajnej i Spraw Publicznych) of the Supreme Court (whose appointment procedure, involving the recomposed NCJ, was found inherently deficient in Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, §§ 353-54, 8 November 2021). II. INTERNATIONAL MATERIAL
A. International material already summarised
61. The relevant international material is set out in detail in the Court’s judgment in the case of Guðmundur Andri Ástráðsson v. Iceland [GC] (no. 26374/18, §§ 117-27, 1 December 2020). B. The International Covenant on Civil and Political Rights (ICCPR)
62. The relevant provisions of the ICCPR (adopted by the United Nations General Assembly on 16 December 1966), to which Poland is a State Party, read:
Article 25
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
... (c) To have access, on general terms of equality, to public service in his country.”
C. The Council of Europe
63. The following relevant Council of Europe material has already been set out in the Grand Chamber judgment in the case of Guðmundur Andri Ástráðsson (cited above, §§ 121-27): (i) the Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) on “Judges: independence, efficiency and responsibilities”; (ii) the Venice Commission’s Report on Judicial Appointments (CDL-AD(2007)028), adopted at its 70th Plenary Session (16-17 March 2007); (iii) the Rule of Law Checklist (CDL‑AD(2016)007); (iv) Opinion no. 1 (2001) on “standards concerning the independence of the judiciary and the irremovability of judges” of the Consultative Council of European Judges (CCJE); (v) the Magna Carta of Judges; (vi) CCJE Opinion no. 18/2015 on the “Position of the judiciary and its relation with the other powers of state in a modern democracy” dated 16 October 2015; (vii) CCJE Report on “Judicial independence and impartiality in the Council of Europe member States in 2017”. In addition, the following materials are relevant in the instant case. 1. The Committee of Ministers
(a)   Recommendation Rec(94)12
64. The Recommendation adopted by the Committee of Ministers on 13 October 1994 (no. R (94) 12) on the independence, efficiency and role of judges in its relevant parts provided as follows:
Principle I - General principles on the independence of judges
“1. All necessary measures should be taken to respect, protect and promote the independence of judges. 2. In particular, the following measures should be taken:
a. The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal traditions of each state, such rules may provide, for instance, the following:
i. decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law;
ii. the terms of office of judges and their remuneration should be guaranteed by law;
iii. no organ other than the courts themselves should decide on its own competence, as defined by law;
iv. with the exception of decisions on amnesty, pardon or similar, the government or the administration should not be able to take any decision which invalidates judicial decisions retroactively.
b. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges.
c. All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules. However, where the constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following:
i. a special independent and competent body to give the government advice which it follows in practice; or
ii. the right for an individual to appeal against a decision to an independent authority; or
iii. the authority which makes the decision safeguards against undue or improper influences.
...”
(b)   Recommendation CM/Rec(2010)12
65. The Recommendation CM/Rec(2010)12 on “Judges: independence, efficiency and responsibilities” (see paragraph 63 above) replaced the above-mentioned Recommendation Rec(94)12. In it relevant parts, it provides as follows:
Chapter I – General aspects
Judicial independence and the level at which it should be safeguarded
“3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence. 4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.”
Chapter II − External independence
“11. The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law.”
Chapter VI - Status of the judge
Selection and career
“44. Decisions concerning the selection and career of judges should be based on objective criteria pre‑established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.
... 46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. 47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice. 48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.”
The Explanatory Memorandum to this recommendation further provides as follows:
“13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of the member states.”
2. The Venice Commission
66. The Venice Commission, in its Opinion on the Draft Act Amending the Act on the National Council of the Judiciary, on the Draft Act Amending the Act on the Supreme Court proposed by the President of Poland and on the Act on the Organisation of Ordinary Courts, which it adopted at its 113th Plenary Session (Venice, 8-9 December 2017, CDL-AD(2017)031), observed, in so far as relevant:
“77. The Venice Commission acknowledges that appointment of the SC judges by a popularly elected President may, in theory, provide the appointed judges with a certain degree of democratic legitimation which is not the case in entirely the same way when the appointment of judges follows a system of co-optation within the judiciary. That being said, the Venice Commission is rather in favour of the minimisation of the role of the Head of State in the judicial appointments. In Opinion CDL-AD(2013)034 on Ukraine the Venice Commission stressed that it ‘has no objection against appointment of judges by the Head of State when the latter is bound by a proposal of the judicial council and acts in a ‘ceremonial’ way, only formalising the decision taken by the judicial council in substance.’[footnote omitted] Even where the President has the real (not ceremonial) power to choose, his/her choice should be limited to candidates having significant support within the judiciary.”
3. Consultative Council of European Judges
67. In the declaration adopted by the Consultative Council of European Judges Plenary at its 9th meeting on 13 November 2008 concerning the practice of judicial appointments in Poland – issued in response to the refusal by the President of the Republic to appoint as judges a certain number of persons presented by the NCJ – the CCJE made the following observations, the relevant parts of which read as follows:
“After due consideration of the above issue, the CCJE
- recalls, first of all, that by its Recommendation No R(94) 12, the Committee of Ministers of the Council of Europe took the view that, in principle, ‘the authority taking the decision on the selection ... of judges should be independent of the government and administration’ and ‘its members’ should be selected ‘by the judiciary’; even ‘where the constitutional or legal provisions and traditions allow judges to be appointed by the government’, the Recommendation calls for guarantees ‘to ensure that the procedures to appoint judges are transparent and independent in practice’, e.g. that the government ‘follows in practice’ advice provided by an independent body, and that a guarantee for concerned candidate of a ‘right of appeal against a decision’ to the independent body is established;”
68. Opinion no. 24 (2021) of the CCJE on the Evolution of the Councils for the Judiciary and their role in independent and impartial judicial systems, CCJE(2021)11, adopted on 5 November 2021 states, in so far as relevant:
“20. The [Court] and the CJEU have decided that the appointment of judges is of great importance for an independent judiciary. The CCJE has always taken that view. Consequently, the selection or recommendation of new judges for appointment and promotion based on merit is a crucial task. .... Decisions with respect to the career of judges must not be taken because of loyalty to politicians or other judges. Through the selection and promotion of judges or the composition of a court, these decisions have great influence on future court decisions.
... III. Councils for the Judiciary in society
1. Relations with other powers of state
40. Members of parliament and members of the executive must of course respect the law in their dealings with the Council for the Judiciary and not infringe its role and functioning by breaking or circumventing legal rules. Moreover, relations with the Council must be based on a culture of respect for the rule of law and the role of the Council for the Judiciary in their respective member state.
... IV. Conclusions and recommendations
... 9. Decisions with respect to the career of judges must not be taken because of loyalty to politicians or other judges, but in a transparent procedure using objective criteria as far possible. Such decisions must be reasoned and based on merit alone. Judges who think that their rights have been disregarded must have a right to judicial review ...”
III. EUROPEAN UNION LAW
A. European Union Law already summarised
69. The relevant European Union law material is set out in detail in the Court’s judgments in Grzęda v. Poland [GC] (no. 43572/18, §§ 145-47 and §§ 153-59, 15 March 2022) and Dolińska-Ficek and Ozimek, cited above, § 190. B. Case-law of the Court of Justice of the European Union
70. On 20 April 2021 the Court of Justice of the European Union (CJEU) gave a ruling in Repubblika, C‑896/19, EU:C:2021:311 (for details see Grzęda, cited above, §§ 157-159), in response to a request for a preliminary ruling on the conformity with EU law of the provisions of the Constitution of Malta governing the procedure for the appointment of members of the judiciary. 71. In so far as relevant, the CJEU gave the following reasons:
“70. In the second place, it should be noted that, as pointed out, in particular, by the Commission, although the Prime Minister has, in accordance with the national provisions at issue in the main proceedings, a certain power in the appointment of members of the judiciary, the fact remains that the exercise of that power is circumscribed by the requirements of professional experience which must be satisfied by candidates for judicial office, which requirements are laid down in Article 96(2) and Article 100(2) of the Constitution. 71. Furthermore, while it is true that the Prime Minister may decide to submit to the President of the Republic the appointment of a candidate not put forward by the Judicial Appointments Committee established by Article 96A of the Constitution, he or she is nevertheless required, in such a situation, under Article 96(4) and Article 100(6) of the Constitution, to communicate his or her reasons to the House of Representatives and, except as regards the appointment of the Chief Justice, by means of a declaration published in the Gazette. Inasmuch as the Prime Minister exercises that power only in quite exceptional circumstances and adheres to strict and effective compliance with that obligation to state reasons, that power is not such as to give rise to legitimate doubts concerning the independence of the candidates selected. 72. In the light of all of those factors, it does not appear that the national provisions at issue in the main proceedings relating to judicial appointments are, per se, such as to give rise to legitimate doubts, in the minds of individuals, as to the imperviousness of appointed members of the judiciary to external factors – in particular, to direct or indirect influence from the legislature or the executive – and as to their neutrality vis-à-vis the interests before them, and thus lead to those members of the judiciary not being regarded as independent or impartial, the consequence of which would be to undermine the trust which justice in a democratic society governed by the rule of law must inspire in individuals. 73. In the light of all of the foregoing considerations, the answer to the second question is that the second subparagraph of Article 19(1) [of the Treaty on European Union] must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister.”
THE LAW
I. JOINDER OF THE APPLICATIONS
72. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. PRELIMINARY REMARKS
73. The Court notes that the Government raised several objections as to the admissibility of the applications – both as a whole and in respect of individual complaints raised by the applicants. 74. Regarding the applications (taken as a whole), the Government submitted that they were inadmissible owing to the fact that they had allegedly been lodged out of time. 75. Referring to individual complaints under Articles 6 and 13 of the Convention, the Government submitted that they were incompatible ratione materiae with the Convention.
76.

Outcome for Article 6: violation