independence, accountability

Judicial Self-Government (Judicial Council), Role of national higher courts

Sąd Najwyższy - Izba Kontroli Nadzwyczajnej i Spraw Publicznych

Supreme Court - Extraordinary Control and Public Affairs Chamber

I NKRS 118/21

January 12th, 2022

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A case from the appeal of one of the candidates for appointment to a senior judicial post. The appeal against the resolution of the NCJ (neo-KRS) was submitted to the newly appointed chamber of the Supreme Court.

Appointment of a judge - National Council of Judiciary decision assessement - Judge working in Ministry of Justice as a best candidate for promotion - access to court - access to justice - independence of judiciary

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Two candidates with similar qualifications applied for appointment to the senior judicial post. In the council's assessment, the better candidate was the judge, who was on secondment at the Ministry of Justice at the time of the competition. The counter-candidate's appeal led to the NCJC's resolution being overturned.

"In the Supreme Court's view, it is also necessary to re-examine the length of the Participant's and the Participant's judicial seniority. Indeed, it is undoubtedly necessary to concede the Appellant's point that, in general, the period during which a judge performs administrative activities as part of a delegation to the Ministry of Justice should not be taken into account in calculating the length of his or her adjudicatory seniority if the delegation involves the cessation of the delegated judge's adjudicatory activities. Indeed, judicial seniority is not the same concept as length of service."" ""In doing so, the Supreme Court sitting in the present case takes the view that judges, during the period of their institutional connection with the Ministry of Justice, should not be presented to the President of the Republic of Poland as candidates for appointment to a judicial post in higher courts, the Supreme Court or administrative courts. The experience of working on secondment in the Ministry of Justice obviously cannot disqualify a judge from promotion. On the contrary, it may prove to be an asset in the future, as it indicates the judge's activities other than adjudication. However, it cannot lead to reasonable doubts linking promotion to a secondment in the Ministry of Justice. Promotion of judges to a higher instance should be possible after a certain period of time has elapsed since the end of the period of secondment to the Ministry of Justice. It should be stressed that competitions are held for specific judicial positions, whereas judges seconded to the Ministry of Justice do not adjudicate or adjudicate to a limited extent. There is therefore no interest of the judiciary in promoting judges who will not adjudicate or whose adjudication will be significantly limited.
In view of the foregoing, the Supreme Court considered it necessary to annul the appealed resolution and to refer the case back for reconsideration."

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No

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Jarosław Gwizdak, INPRIS

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