MANOWSKA AND OTHERS v. POLAND

FIRST SECTION

DECISION

Application no. 51455/21
Małgorzata MANOWSKA against Poland
and 5 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 1 April 2025 as a Chamber composed of:

 Ivana Jelić, President,
 Alena Poláčková,
 Raffaele Sabato,
 Frédéric Krenc,
 Alain Chablais,
 Artūrs Kučs,
 Anna Adamska-Gallant, judges,
and Ilse Freiwirth, Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the Helsinki Foundation for Human Rights, which was granted leave to intervene by the President of the Section (in accordance with Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court),

Having deliberated, decides as follows:

INTRODUCTION

1.  The case concerns the applicants’ complaints under Article 6 of the Convention about a set of domestic proceedings in which they did not participate, and which were aimed at reviewing a resolution of the National Council of the Judiciary which had served as the basis for their appointment to judicial posts in the Civil Chamber of the Supreme Court.

THE FACTS

2.  A list of the applicants is set out in the appendix.

3.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  Ms M. Manowska has been a judge since 1996. In 2004 she was appointed to the Warsaw Court of Appeal. She was awarded a post-doctoral degree (habilitacja) in law by the University of Warsaw in 2010. Between March and November 2007, she held the post of Deputy Minister of Justice with responsibility for the judiciary, under Minister Z. Ziobro. In 2016, the Minister of Justice appointed her head of the National School of the Judiciary and Public Prosecution (Krajowa Szkoła Sądownictwa i Prokuratury); she held that post until 2020.

6.  Mr K. Zaradkiewicz has been an adjunct professor of law at the University of Warsaw since 2000. He was awarded a post-doctoral degree by that university in 2014. Between 2001 and 2016 he worked at the Constitutional Court. In 2017 he was appointed head of the Administrative Law Department of the Ministry of Justice under Minister Z. Ziobro.

7.  Mr M. Krajewski has been a legal adviser (radca prawny) since 1999. He was awarded a post-doctoral degree in law by the University of Warsaw in 2012 and is an adjunct professor at that university.

8.  Ms J. Misztal-Konecka has been a judge since 2007. In 2016 she was appointed to the Lublin Regional Court and later seconded to the Lublin Court of Appeal. She has taught at the John Paul II Catholic University of Lublin since 2005 and was awarded a post-doctoral degree in law by that university in 2012.

9.  Mr J. Grela has been a judge since 1997. He was appointed to the Gdańsk Court of Appeal in 2008. He has been a lecturer at the National School of the Judiciary and Public Prosecution since 2009.

10.  Mr T. Szanciło has been a judge since 2007. In 2017 he was appointed to the Warsaw Court of Appeal. He was awarded a post-doctoral degree in law by the University of Warsaw in 2015 and has been a lecturer at various universities as well as at the National School of the Judiciary and Public Prosecution.

11.  On 24 May 2018 the President of the Republic announced that there were forty-four vacant positions in the Supreme Court, seven of which were in its Civil Chamber (see also Advance Pharma sp. z o.o v. Poland, no. 1469/20, § 26, 3 February 2022). The announcement was published on 29 June 2018.

12.  Twenty‑seven candidates applied for the posts in the Civil Chamber, among whom were all the applicants in the present case as well as Mr J. Sadomski who also lodged an application with the Court (see Sadomski v. Poland, no. 56297/21, 9 May 2025).

13.  The competition procedure was conducted by the National Council of the Judiciary (“the NCJ”) as established under the Act of 8 December 2017 Amending the Act on the NCJ and Certain Other Acts (“the 2017 Amending Act”; for details thereof see Advance Pharma sp. z o.o, cited above, §§ 11‑15).

14.  On 5 May 2017 the Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) adopted its final Opinion on Draft of [the 2017 Amending Act]. The opinion stated that the “amendments raise serious concerns with respect to key democratic principles, in particular the separation of powers and the independence of the judiciary” (for a more detailed rendition see Advance Pharma, cited above, § 172).

15.  On 3 November 2017 ODHIR published an opinion on Certain Provisions of the Draft Act on the Supreme Court (see Advance Pharma, cited above, § 173). It reiterated its “recommendation to reconsider the principle of election of judge members to the [NCJ] by the Sejm, and instead ensure that they continue to be chosen by the judiciary.”

16.  On 11 October 2017 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2188 (2017) entitled “New threats to the rule of law in the Council of Europe Member States”. The Polish authorities were called upon to refrain from conducting any reform which would put at risk respect for the rule of law, and in particular the independence of the judiciary, and, in this context, to refrain from amending the 2011 Act on the NCJ in a way that would modify the procedure for appointing judges to the Council and would establish political control over the appointment process for judicial members.

17.  On 11 December 2017 the European Commission for Democracy Through Law (“Venice Commission”) adopted its opinion on the Draft [2017 Amending Act], on the Draft [2017 Act on the Supreme Court] proposed by the President of the Republic, and on the Act on the Organisation of Ordinary Courts (see Advance Pharma, cited above, § 182). It held that the amendments “put the judiciary under direct control of the parliamentary majority and of the President of the Republic. This is contrary to the very idea of separation of powers ... and of the judicial independence”.

18.  On 12 October 2017 the Consultative Council of European Judges (“CCJE”) adopted the “Opinion of the CCJE Bureau following the request of the Polish [NCJ] to provide an opinion with respect to the Draft [2017 Amending Act] presented by the President of the Republic amending the Act on the Polish National Council of the Judiciary and certain other acts”. the CCJE stated was “deeply concerned by the implications of the Draft Act for the principle of the separation of powers, as well as that of the independence of the judiciary, as it effectively means transferring the power to appoint members of the Polish National Council of the Judiciary from the judiciary to the legislature” (see Advance Pharma, cited above, § 186).

19.  In December 2017, GRECO, Group of States against Corruption, decided to apply its ad-hoc procedure to Poland. As a result, GRECO adopted addendum to the Fourth Round Evaluation Report on Poland (Rule 34) at its 80th Plenary Meeting (Strasbourg, 18-22 June 2018). It recommended to amend the provisions regarding election of judges to the NCJ and reconsider recent changes to Supreme Court (see Advance Pharma, cited above, § 189).

20.  The announcement of the vacancies sparked public debate.

21.  In a press release of 14 July 2018, the board of the Polish Judges’ Association Iustitia (hereinafter “Iustitia”) expressed the view that the competitions announced by the President on 24 May 2018 were invalid on account of the unconstitutionality of the procedure used and the absence of the Prime Minister’s countersignature on the President’s announcement. On that basis it took the view that the choice of Supreme Court judges would be invalid.

22.  On 20 July 2018 the Batory Foundation (Fundacja im. Stefana Batorego) published an opinion written by one of its expert groups (Team of Legal Experts) in which it raised similar arguments, reaching the following conclusions:

“The invalidity of the [announcement] initiating the procedure for the appointment of judges of the Supreme Court and the Supreme Administrative Court renders that procedure invalid, and under an invalid procedure it is not possible to validly fill the posts of judges of the Supreme Court and the Supreme Administrative Court. Candidates for the posts of judges of the Supreme Court and the Supreme Administrative Court must expect that their appointment to these posts will be invalid and, thus, that they will not be judges of the Supreme Court and the Supreme Administrative Court under current law.”

23.  On 22 July 2018 Iustitia published a resolution of its board in which it reiterated that the competitions announced by the President of the Republic had, in its view, been invalid and that the association would support any participants of the competition who would appeal against the relevant decisions of the NCJ to the Supreme Administrative Court challenging the competition’s validity. It further added that the “lawyers [who were] actively involved in dismantling the principles of the democratic rule of law and the guarantee of due protection of citizens by independent courts should expect a serious threat to their professional and civic reputation”. On 26 July 2018 Iustitia issued a joint statement with another association of Polish judges – Themis ­– in which they reiterated that the procedure for the competition for the Supreme Court was invalid.

24.  Even some of the people participating in the competition, for posts in other Chambers of the Supreme Court, publicly raised doubts as to its validity. On 3 August 2018, Judge P. Gąciarek[1] gave a radio interview in which he stated that he was participating in the competition because he intended to have its validity reviewed by the Supreme Administrative Court. On 22 August 2018, during his interview at the NCJ following his application for a post in the Criminal Chamber, he stated:

“... I intend to bring this Law before the independent Supreme Administrative Court so that all of us, judges or not, can know whether this law on the Supreme Court is consistent with the Constitution, whether the National Council of the Judiciary, elected by the Sejm, is [in fact] the National Council of the Judiciary, because there are serious doubts as to whether this body is acting in accordance with the law and, thirdly, whether the President’s announcement, ... lacking [as it does] the countersignature of the Prime Minister, contrary to the Constitution, is valid, [and] whether [the] competition is valid. Everyone has the right to know whether, by running for the highest judicial office in Poland, they are participating in a legal competition, on the basis of a law that complies with the Constitution. This must be subjected to scrutiny. If everything is in order, then let the independent court, that is the Supreme Administrative Court, express itself on this issue. I intend to use such legal remedies as I believe that transparency is paramount.”

On 23 August 2018, Judge A. Tomczak, applying for the post in the newly created Disciplinary Chamber of the Supreme Court, raised similar doubts and declared similar intentions during his interview at the NCJ. Subsequently, when he was not recommended for the post, he lodged an appeal against the NCJ resolution concerning his candidacy, as reported by the press on 19 September 2018.

25.  On 23 August 2018 a number of Polish non‑governmental organisations, including associations of judges, prosecutors, and lawyers, published a public appeal to the President of the Republic, urging him not to appoint the persons recommended as a result of the procedure which was then underway. The chairpersons of the Polish Bar Council (Naczelna Rada Adwokacka) and the National Council of Legal Advisers (Krajowa Rada Radców Prawnych) joined the appeal on the same day.

26.  On 29 August 2018 the Polish Bar Council adopted resolution no. 45/2018 in which it presented the following opinion:

“1.  The legal grounds and method of election of judges to the Supreme Court breach the principles of the Polish Constitution and common European Union laws.

2.  The method of selection of candidates is non-transparent, hurried and does not guarantee that the selected persons will meet the standards for appointment to the position of Supreme Court judge, which undermines the authority of the Supreme Court and the judgments it delivers.

3.  Doubts with regard to the compliance of the laws on the National Council of the Judiciary and the Supreme Court with European Union law and the Polish Constitution noted in the ECJ [Court of Justice of the European Union] decision in Celmer, in the procedure initiated by the European Commission, in the Supreme Court decision to apply a temporary measure and to apply to the ECJ for a preliminary ruling, and in the positions of the Venice Commission and the UN [United Nations] report indicate that the best way forward is to refrain from hurried application of the questioned law.

4.  It is the duty of each European Union member state to comply with and enforce the judgments of the European Court of Justice.

5.  It is the duty of all public government bodies to comply with and enforce the judgments of the Supreme Court.

In view of the foregoing the Polish Bar Council calls upon the President of the Republic of Poland to refrain from appointing the presented candidates to the positions of Supreme Court judges.”

27.  On 28 August 2018 the NCJ issued resolution no. 330/2018 recommending seven candidates – including all six applicants in the current case – to be appointed judges in the Civil Chamber of the Supreme Court (the first point of the resolution). The NCJ decided not to recommend other candidates (the second point of the resolution), including Mr Sadomski (see Advance Pharma sp. z o.o, cited above, § 34).

28.  The process for notifying the successful candidates of resolution no. 330/2018 began on 13 September 2018. They were notified in the course of September 2018. In so far as concerns the applicants in the present case, Mr Zaradkiewicz received his copy on 13 September; Mr Grela and Mr Krajewski – on 17 September; Ms Misztal-Konecka – on 20 September; and Ms Manowska and Mr Szanciło – on 21 September 2018. The remaining candidate recommended by the resolution received her copy on 24 September 2018.

29.  On various dates, some candidates who had not been recommended by the NCJ, including Mr Sadomski (see paragraph 12 above), lodged appeals (odwołanie) with the Supreme Administrative Court against resolution no. 330/2018 of the NCJ. Mr Sadomski lodged his on 1 October 2018 via the NCJ, as required by the relevant legislation. He argued that (1) the President’s announcement of vacant positions in the Supreme Court had been issued without the countersignature of the Prime Minister, and thus in breach of Article 144 § 2 of the Constitution; (2) the judicial members of the NCJ had been elected to it in breach of the Constitution; (3) the competition procedure before the NCJ had been flawed and the selection made by that body had violated the constitutional right of equal access to public service; and (4) the competition procedure had been designed in such a manner that he was deprived of an effective remedy. The NCJ did not notify the applicants of Mr Sadomski’s appeal.

30. In lodging his appeal Mr Sadomski relied on section 44(1a) of the Act on the NCJ which provided, at the relevant time, that in individual cases concerning appointments to the office of judge of the Supreme Court such an appeal could be lodged with the Supreme Administrative Court.

31.  During the competition – and thus prior to the above-mentioned appeals being lodged – subsections (1b) and (4) were added to section 44 of the Act on the NCJ by the Act of 20 July 2018 Amending the Act on the Organisation of Ordinary Courts and Certain Other Statutes, which entered into force on 27 July 2018. Subsection (1b) provided that unless all the participants in a procedure (including those who had received a recommendation) challenged the NCJ’s resolution in individual cases concerning appointments to the office of judge of the Supreme Court, that resolution would become final in its entirety (see also Advance Pharma sp. z o.o, cited above, § 100).

32.  The NCJ did not forward the appeals against resolution no. 330/2018 to the Supreme Administrative Court until 9 November 2018.

33.  On 20 September 2018 one of the other participants in the competition lodged an application for an interim order with the Supreme Administrative Court prior to filing an appeal seeking that NCJ resolution no. 330/2018 be set aside. On 27 September 2018 the Supreme Administrative Court issued an interim order staying the implementation of the impugned resolution both in the part recommending seven candidates for appointment to the Civil Chamber of the Supreme Court (including the applicants) and in the part not recommending the appellant (case no. II GW 27/18). The decision to issue the order was reported by the national media the next day. The interim order was served on the representative of the participant concerned and on the NCJ.

34.  On 1 October 2018 Mr Sadomski applied directly to the Supreme Administrative Court for an interim order to stay the implementation of NCJ resolution no. 330/2018.

35.  On 8 October 2018 the Supreme Administrative Court (case no. II GW 31/18) issued an interim order staying the implementation of that resolution both in the part recommending seven candidates for appointment to the Civil Chamber of the Supreme Court (including the applicants) and in the part not recommending Mr Sadomski. The court held that the stay was possible because a condition that enforcement of the decision could cause irreparable harm to a party had been met. It also noted that Mr Sadomski’s appeal against the resolution had not been transmitted by the NCJ to the Supreme Administrative Court (see paragraph 32 above).

36.  The Supreme Administrative Court ordered that the interim order be served on Mr Sadomski’s representative and on the NCJ; the interim order was not served on the persons recommended by the NCJ and listed by Mr Sadomski in his appeal (including the applicants) or on the President of the Republic.

37. On 8 October 2018 the chairperson of the NCJ submitted resolution no. 330/2018 to the President of the Republic.

38.  On 9 October 2018 Mr Sadomski transmitted the interim decision of 8 October 2018 to the NCJ and the President of the Republic, informing them that it was binding and enforceable.

39.  On 10 October 2018, while the appeals were pending and in spite of the Supreme Administrative Court’s orders to stay the implementation of resolution no. 330/2018, the President of the Republic decided to appoint the candidates recommended by the NCJ in that resolution, including the applicants. On the same day the President handed them the letters of appointment and administered the oath of office to them (see also Advance Pharma sp. z o.o, cited above, § 35).

40.  On 21 November 2018 the Supreme Administrative Court made a request to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling in the case brought by Mr Sadomski (case no. II GOK 2/18). It took the view that the recent amendments to the Act on the NCJ (see paragraph 31 above) precluded in practice the effectiveness of an appeal lodged by a participant who had not been put forward for appointment (see also Advance Pharma sp. z o.o, cited above, §§ 46-48).

41.  In its judgment of 25 March 2019 (case no. K 12/18) the Constitutional Court held, inter alia, that section 44(1a) of the Act on the NCJ concerning the procedure for the judicial review of individual resolutions of the NCJ on the selection of judges was incompatible with Article 184 of the Constitution of the Republic of Poland (for more details see Grzęda v. Poland [GC], no. 43572/18, §§ 60-62, 15 March 2022). In the reasoning of the judgment, the Constitutional Court found that all proceedings conducted on the basis of the unconstitutional provision, which it struck down, should be terminated.

42.  Subsequently, section 44 was modified by the Act of 26 April 2019 Amending the Act on the NCJ and the Act on the System of Administrative Courts, which entered into force on 23 May 2019. Section 44(1b) was repealed and section 44(1) was amended with a view to excluding the right of appeal in individual cases regarding appointments to the office of judge of the Supreme Court. The law retained the possibility of lodging an appeal in cases regarding appointments to the office of judge of the ordinary courts. Furthermore, section 3 of the Act of 26 April 2019 stipulated that “proceedings in cases concerning appeals against NCJ resolutions in individual cases regarding appointments to the office of judge of the Supreme Court, which have been initiated but not concluded before this Act comes into force, shall be discontinued by operation of law” (see also Advance Pharma sp. z o.o, cited above, § 101).

43.  On 14 May 2019 the Prosecutor General requested the Supreme Administrative Court to discontinue the proceedings initiated by appeals against the NCJ’s resolutions, having regard to the Constitutional Court’s judgment of 25 March 2019.

44.  Considering that it had been deprived of its jurisdiction over the issues which formed the subject matter of the request for a preliminary ruling that it had previously made to the CJEU, the Supreme Administrative Court, in a complementary request for a preliminary ruling of 26 June 2019, sought that court’s opinion on the compatibility of the new rules introduced by the Act of 26 April 2019, when Mr Sadomski’s request for judicial review had been pending, with EU law.

45.  On 2 March 2021 the CJEU delivered a judgment in A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153 (see also Advance Pharma sp. z o.o, cited above, §§ 207‑09), holding in the operative part, in so far as relevant, as follows:

“1.  Where amendments are made to the national legal system which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the [Polish] Supreme Court against decisions of a body such as the [NCJ] not to put forward their application, but to put forward that of other candidates to the President of the Republic of Poland for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling:

...

– the second subparagraph of Article 19(1) [of the Treaty on European Union – “the TEU”)] must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the [NCJ], to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.

Where it is proved that those articles have been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin, and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.

2.  The second subparagraph of Article 19(1) TEU must be interpreted as precluding provisions amending the state of national law in force under which:

–  notwithstanding the fact that a candidate for a position as judge at a court such as the Supreme Court lodges an appeal against the decision of a body such as the [NCJ] not to accept his or her application, but to put forward that of other candidates to the President of the Republic of Poland, that decision is final inasmuch as it puts forward those other candidates, with the result that that appeal does not preclude the appointment of those other candidates by the President of the Republic of Poland and that any annulment of that decision inasmuch as it did not put forward the appellant for appointment may not lead to a fresh assessment of the appellant’s situation for the purposes of any assignment of the position concerned, and

–  moreover, such an appeal may not be based on an allegation that there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when a decision on the presentation of the proposal for appointment was made,

where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those provisions are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges thus appointed, by the President of the Republic of Poland, on the basis of the decisions of the [NCJ], to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.

Where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply those provisions and to apply instead the national provisions previously in force while itself exercising the judicial review envisaged by those latter provisions.”

46.  On 6 May 2021, the Supreme Administrative Court gave its judgment on the merits in the case brought by Mr Sadomski (case no. II GOK 2/18). The court dismissed the Prosecutor General’s request for the discontinuation of the proceedings before it. On the merits it (i) set aside NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court, and (ii) set aside resolution no. 330/2018 in the part concerning the NCJ’s refusal to recommend other candidates in so far as it concerned Mr Sadomski (and discontinued the proceedings before the NCJ in that last respect).

47.  In the judgment, the Supreme Administrative Court held, pursuant to, inter alia, the CJEU judgment of 2 March 2021 (see paragraph 45 above), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the appointment process for the judges. The Supreme Administrative Court found that the proceedings before the NCJ concerned the right of access to public service on equal terms, as provided in Article 60 of the Constitution, and that this right belonged to the category of constitutional rights and freedoms protected by the absolute prohibition against denying access to court, as expressed in Article 77 § 2 of the Constitution of the Republic of Poland.

48.  Furthermore, the Supreme Administrative Court found that the amendments introduced by the Acts of 20 July 2018 and 26 April 2019 (see, respectively, paragraphs 31 and 42 above) had been intended to prevent any judicial review of appointments to the Supreme Court made with the involvement of the NCJ as established under the 2017 Amending Act. For that reason, the court decided to disapply the above-mentioned amendments.

49.  It further held that – in view of the fact that the right to a court and effective legal protection, in the sense deriving from Article 45 § 1 in conjunction with Article 78 and Article 77 § 2 of the Constitution of the Republic of Poland, was identical to the right to a court and effective legal protection in the sense deriving from EU law (Article 19(1) of the TEU and Article 47 of the Charter of Fundamental Rights) and Article 6 of the Convention – it was justified to conclude that the failure to ensure judicial review in individual cases concerning appointments to the office of judge of the Supreme Court, including in cases already pending before the Supreme Administrative Court, did not comply with the EU standard or the corresponding constitutional and Convention standards.

50.  The court also noted that the actions of the NCJ in the case under consideration showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) various candidates to the Civil Chamber of the Supreme Court. The NCJ had only transmitted the appeal lodged by Mr Sadomski on 1 October to the Supreme Administrative Court on 9 November 2018, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates (see paragraphs 32 and 37 above).

51.  The Supreme Administrative Court also agreed with the finding of the Supreme Court contained, inter alia, in its resolution of 23 January 2020 (for details thereof see Grzęda, cited above, §§ 110-16), that the President’s announcement of vacancies at the Supreme Court required a countersignature of the Prime Minister to be valid.

52.  Considering the effects of its judgment on the appointments made by the President of the Republic, the Supreme Administrative Court held that:

“9.  It should also be emphasised and clarified that the consequences of the ruling in this case do not relate to the validity and effectiveness of presidential appointments to the office of judge of the Supreme Court made on the basis of recommendations submitted by the NCJ in the resolution under review.

Under the law as it currently stands, such [appointments] are not subject to judicial review and are not revocable (paragraphs 133 and 145 of the CJEU’s judgment of 19 November 2019 and paragraphs 122 and 128 of the CJEU’s judgment of 2 March 2021).”

53.  The Supreme Administrative Court served its judgment on Mr Sadomski (at his lawyer’s address) as well as on the applicants (at their professional addresses).

54.  The Supreme Administrative Court gave judgments in three other cases concerning appointments to the Civil Chamber of the Supreme Court on the basis of resolution no. 330/2018 (two on 6 May 2021, nos. II GOK 3/18 and II GOK 5/18, and one on 13 May 2021, no. II GOK 4/18), in which it noted that the impugned resolution, in so far as it recommended the applicants, had already been set aside by the judgment issued in the case of Mr Sadomski (no. II GOK 2/18). The reasoning in those cases was essentially identical to that provided in the judgment in the case of Mr Sadomski.

55.  The publication of the Supreme Administrative Court’s judgment of 6 May 2021 attracted wide media coverage. Commentators expressed a variety of views as to the consequences of the judgment for the validity of the appointments made by the President, from fully accepting the validity of the new judges’ appointment to openly contesting it.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

56.  The relevant legal framework and practice is set out in detail in the Court’s judgments in the cases of Advance Pharma sp. z o.o (cited above, §§ 95-225), Grzęda (cited above, §§ 64-167) and Wałęsa v. Poland (no. 50849/21, §§ 106-21, 23 November 2023).

COMPLAINT

57.  The applicants complained, under Article 6 § 1 of the Convention, that their right of access to a court and to a fair hearing had been violated in the proceedings before the Supreme Administrative Court terminated by the judgment of 6 May 2021 (case no. II GOK 2/18), whose outcome had directly concerned them. They alleged that the Supreme Administrative Court had not notified them of the initiation of those proceedings or of any decisions taken in them (except for the judgment of 6 May 2021), resulting in their having been unable to take part in those proceedings.

58.  Furthermore, the applicants submitted that even though the Supreme Administrative Court had noted that the impugned judgment did not relate to the validity and effectiveness of the President’s appointment of them to the office of judge of the Supreme Court, the setting aside of NCJ resolution no. 330/2018 of 28 August 2018 by that judgment, in the part concerning the applicants, had exposed them to doubts being raised in public debate as to the validity of their appointment.

THE LAW

59.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

60.  All the applicants raised complaints under Article 6 § 1 of the Convention, which, in the relevant part, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

(a)   The Government

61.  The Government raised several preliminary objections on various grounds.

62.  Firstly, the Government argued that the applications should be considered incompatible ratione materiae with the Convention on account of the alleged effect of the judgment of the Constitutional Court of 10 March 2022 in case K 7/21 (see Wałęsa v. Poland, no. 50849/21, §§ 107‑08, 23 November 2023). They contended that the judgment in question should be regarded as an emanation of the “constitutionally justified objection” against the Court’s authority of a judicial and interpretative nature, thus making Article 6 inapplicable to the present case (ibid., §§ 134-38).

63.  Secondly, the Government submitted that the applications should be considered as lodged outside the six-month time-limit. In the Government’s view the applicants, as legal professionals, knew or should have known about the impugned proceedings significantly earlier than the date on which they received copies of the judgment of the Supreme Administrative Court of 6 May 2021. In that connection and as regards all of the applicants, the Government relied on a public judicial decision of a common court (the Kraków Court of Appeal’s decision of 7 October 2019 in the case no. I Aca 649/19) which made reference to the Supreme Administrative Court’s interim order of 8 October 2018. Additionally, the Government submitted that Ms Manowska had been appointed the First President of the Supreme Court and thus, ex officio, had become a member of the NCJ as of 26 May 2020, and that she should therefore have been aware of the impugned proceedings as of her appointment at the latest.

64.  The Government further submitted that the applicants had been entitled to request to be admitted to the impugned proceedings under section 33(2) of the Administrative Courts Act of 30 August 2002 (Prawo o postępowaniu przed sądami administracyjnymi). Moreover, in the Government’s view, the applicants could have lodged a constitutional complaint and a civil claim for compensation under Article 23 of the Civil Code. Based on those arguments, the Government argued that the applications should be declared inadmissible on the ground of non‑exhaustion of domestic remedies.

65.  The Government also contended that the applicants could not claim to be victims of a violation of the Convention, on account of the fact that the course and outcome of the impugned proceedings had not affected their rights protected under the Convention. The Government based its view on the fact that on 24 September 2018, that is when the last person recommended in the NCJ resolution was notified of it (see paragraph 28 above), the resolution entered into force and became effective, and that the impugned proceedings could not have had a negative impact on the applicants’ status as judges of the Supreme Court, who had been appointed to their posts on 10 October 2018. Consequently, the Government claimed that the applications should be declared incompatible rationae personae with the Convention. Relying on the same arguments, the Government further argued that the consequences of the impugned proceedings did not attain a minimum level of severity requisite to consider that the applicants had suffered a significant disadvantage.

(b)   The applicants

66.  As regards the incompatibility with the six-month time-limit, the applicants argued that the relevant limit could not have started running before the parties had been informed by the relevant public body of the violation of their rights, which, in their cases, had occurred upon service of the judgment of 6 May 2021, between May and June 2021. The applicants further argued that it was the Respondent State which had been under the duty of diligence, and not themselves as the parties excluded from the proceedings at issue.

67.  Without explicitly commenting on their reasons for not requesting to be admitted to the impugned proceedings, the applicants disputed the Government’s objection of non-exhaustion of domestic remedies by claiming that neither a constitutional complaint nor a claim for compensation could be considered adequate and effective remedies for their grievances.

68.  The applicants made no comments regarding the remaining objections raised by the Government.

69.  The Helsinki Foundation for Human Rights (“the Foundation”) submitted that the relevant legal framework did not clearly regulate the catalogue of participants to proceedings concerning the legality of NCJ resolutions and that the ability to participate in such proceedings depended on the interested person’s legal interest.

70.  The Foundation further argued that usually a person recommended by the NCJ would have a legal interest in participating in proceedings initiated by a candidate who had not been recommended as the outcome of such proceedings would have a direct impact on the interested person’s eligibility to be appointed. The Foundation noted, however, that the situation was less clear in the situation at hand as those recommended had been appointed despite a pending challenge to the relevant NCJ resolution. In that case, the Foundation submitted that proceedings concerning the legality of an NCJ resolution did not directly affect the legal status of an appointed judge as they could not lead to the removal of such a judge from office or a declaration that they had not in fact been appointed.

71.  The Foundation further noted that the legal status of such judges was being questioned in practice but that that was caused not only by the setting aside of the NCJ resolution but, above all, by the unlawful composition of the NCJ.

(a)   Introductory remarks

72.  At the outset, the Court finds it important to note that, while the applications under review raise the issue of access to a court, the applicants have not contended that there was no way for them to institute any proceedings whatsoever in which they could have protected their civil rights. Instead, they identified a specific set of domestic proceedings instituted by a third party in which, they argued, they should have been allowed to participate to secure their rights.

73.  Therefore, the scope of the instant case, as delineated by the applicants’ complaint, does not cover the applicants’ right of access to a court in general, understood as a right to institute proceedings before courts in civil matters in general (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18), but is limited to the question of access to a specific set of domestic proceedings before the Supreme Administrative Court.

74.  Furthermore, the Court observes that the applicants also complained of inadequate notification about that specific set of proceedings. The Court notes with concern that the applicants have not been notified of the pending proceedings before the Supreme Administrative Court. It also notes that the applicants had not applied to be admitted to the impugned proceedings and had not provided any explanation for that decision (see paragraphs 64 and 67 above). However, the Court will only be called upon to address the complaint about inadequate notification under Article 6 § 1 of the Convention if it first determines that the aforementioned Article is applicable in the instant case (see Stichting Landgoed Steenbergen and Others v. the Netherlands, no. 19732/17, § 43, 16 February 2021, and Sukhorubchenko v. Russia, no. 69315/01, § 53, 10 February 2005; for further references see also Resolution 77 (31) of the Committee of Ministers of the Council of Europe to Member States on the protection of the individual in relation to the acts of administrative authorities of 28 September 1977, and Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts of 15 December 2004).

(b)   Applicability of Article 6 § 1 of the Convention to the proceedings in question

75.  Consequently, the Court will first consider whether Article 6 § 1 of the Convention was applicable, in relation to the applicants, to the proceedings before the Supreme Administrative Court in the case no. II GOK 2/18.

(i)      General principles

76.  For Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” (“contestation” in French) over a right which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention.

77.  While the term “dispute” should not be construed too technically and should be given “a substantive rather than a formal meaning” (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 45, Series A no. 43), the dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, 23 June 2016; Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 71, 29 November 2016; Károly Nagy v. Hungary [GC], no. 56665/09, § 60, 14 September 2017; and Regner v. the Czech Republic [GC], no. 35289/11, § 99, 19 September 2017). Lastly, the right must be a “civil” right (see Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000‑X).

78.  Article 6 § 1 does not guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005‑X; Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012; and Károly Nagy, cited above, § 61).

79.  In order to decide whether the right in question has a basis in domestic law, the starting-point must be the provisions of the relevant law and their interpretation by the domestic courts (see, for example, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 97, 21 June 2016).

80.  With regard to the “civil” nature of the right, the Court has noted that an employment relationship between a public-law entity, including the State, and an employee may be based, according to the domestic provisions in force, on the labour-law provisions governing relations between private individuals or on a body of specific rules governing the civil service. There are also mixed systems, combining the rules of labour law applicable in the private sector with certain specific rules applicable to the civil service (see Regner, cited above, § 106).

81.  As regards public servants employed in the civil service, in accordance with the criteria established in Vilho Eskelinen and Others v. Finland [GC] (no. 63235/00, ECHR 2007-II, and also Grzęda, cited above, § 292) the respondent State cannot rely before the Court on an applicant’s status as a civil servant to exclude the protection embodied in Article 6 unless two conditions are fulfilled. First, the State in its national law must have excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists a special bond of trust and loyalty between the civil servant and the State, as employer. It is also for the respondent State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the Article 6 guarantees of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent State to demonstrate, first, that a civil servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (ibid., § 62; see also Baka, § 103, and Regner, § 107, both cited above).

82.  Whilst the Court stated in Vilho Eskelinen and Others (cited above, § 61) that its reasoning in that case was limited to the situation of civil servants, it has extended the application of the criteria established in that judgment to various disputes regarding judges. It has noted that although the judiciary is not part of the ordinary civil service, it is considered part of typical public service (see Baka, cited above, § 104).

83.  The Court has applied the criteria set out in Vilho Eskelinen and Others (cited above) to all types of disputes concerning judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011), career/promotion (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012, and Tsanova-Gecheva v. Bulgaria, no. 43800/12, §§ 85-87, 15 September 2015), transfer (see Tosti v. Italy (dec.). no. 27791/06, 12 May 2009, and Bilgen v. Turkey, no. 1571/07, § 79, 9 March 2021), suspension (see Paluda v. Slovakia, no. 33392/12, §§ 33‑34, 23 May 2017, and Camelia Bogdan v. Romania, no. 36889/18, § 70, 20 October 2020), disciplinary proceedings (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 120, 6 November 2018; Di Giovanni v. Italy, no. 51160/06, §§ 36‑37, 9 July 2013; and Eminağaoğlu v. Turkey, no. 76521/12, § 80, 9 March 2021), dismissal (see Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 91 and 96, ECHR 2013; Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, §§ 118 and 132, 19 January 2017; Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017; amenos v. Cyprus, no. 147/07, §§ 82‑88, 31 October 2017; and Olujić v. Croatia, no. 22330/05, §§ 31-43, 5 February 2009), reduction in salary following conviction for a serious disciplinary offence (see Harabin v. Slovakia, no. 58688/11, §§ 118-23, 20 November 2012), removal from post (for example, from that of president of the Supreme Court, president of a Court of Appeal or vice-president of a Regional Court) while remaining a judge (see Baka, cited above, §§ 34 and 107-11; Denisov v. Ukraine [GC], no. 76639/11, § 54, 25 September 2018; and Broda and Bojara v. Poland, nos. 26691/18 and 27367/18, §§ 121-23, 29 June 2021) or judges being prevented from exercising their judicial functions after legislative reform (see Gumenyuk and Others v. Ukraine, no. 11423/19, §§ 61 and 65-67, 22 July 2021).

(ii)    Application of the above principles to the present case

84.  The applicants complained that the proceedings before the Supreme Administrative Court (in the case no. II GOK 2/18) had been conducted without their participation even though, in their view, the outcome of those proceedings had directly concerned them.

85.  The Court observes that the applicants did not explicitly identify, in the application forms, any specific civil rights which, in their view, had been determined in the proceedings under review, or for which those proceedings had been directly decisive. They merely argued that the setting aside of the relevant NCJ resolution by the Supreme Administrative Court had exposed them to doubts being raised in public debate as to the validity of their appointment.

86.  In that context, the Court notes that the applicants explicitly acknowledged that the Supreme Administrative Court had not questioned the validity or effectiveness of their appointment to the Supreme Court (see paragraph 52 above).

87.  Nevertheless, the applicants developed their arguments at a later stage of the proceedings, essentially claiming that the failure to grant them access to the proceedings before the Supreme Administrative Court had violated their right to (i) reputation, in so far as the judgment terminating the proceedings had led to the honour and reputation of the applicants being attacked by fellow members of the judiciary, which in turn had led to media attacks on their ability and integrity; and to (ii) work, understood as the right to self-realisation of their aspirations to become judges at a senior level and thereby to enjoy the “fruits of their labour”.

88.  The Court will address the above-mentioned rights in turn, verifying in particular: (i) whether the invoked rights existed; (ii) whether the specific set of proceedings in which the applicants wished to participate represented a genuine and serious “dispute” over those rights; and (iii) whether they were directly decisive for those rights.

(α)     Right to reputation

89.  Firstly, the Court observes that the existence and “civil” character of the right to reputation is well established (see Helmers v. Sweden, 29 October 1991, 27, Series A no 212-A). While it is evident, in that context, that Article 6 of the Convention applies to defamation proceedings (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 58, Series A no. 316-B), the Court notes that the applicants did not institute any such proceedings; nor did they claim that, despite their efforts, it had been impossible for them to institute any proceedings aimed at protecting their reputation. Instead, as noted above, the applicants argued that they should have been allowed to participate in the impugned set of proceedings which, in their view, had had negative consequences for their reputations.

90.  The Court notes that the relevant proceedings before the Supreme Administrative Court were aimed at reviewing the validity of NCJ resolution no. 330/2018 (see paragraphs 29- 30 above). Thus, the “dispute” within those proceedings pertained to whether or not the impugned resolution had been issued in violation of the applicable provisions. Nothing in the content of the Supreme Administrative Court’s judgment or its reasons suggests that the applicants’ right to reputation – be it with regard to its existence, scope, or exercise – had been, at any point, the subject of the proceedings before it. Therefore, the Court finds it difficult to accept that the set of proceedings in which the applicants wished to participate represented a “genuine and serious dispute” over their right to reputation, the link between the proceedings at issue and the applicants’ reputation being too remote to bring Article 6 § 1 into play.

91.  That being said, the Court deems it appropriate to also address the question of whether the proceedings at issue were “directly decisive” for the applicants’ right to reputation, in so far as they argued that the judgment in question exposed them to doubts as to the validity of their appointment.

92.  In this connection, the Court finds it important to take into account the broader context of the proceedings at issue and notes that the doubts as to the validity of the competition in which the applicants participated were voiced as early as two weeks after the publication of the announcement of the competition by the President of the Republic (see paragraphs 11 and 21 above). Most importantly for the right relied upon by the applicants, concerns as to potential consequences for the reputation of persons participating in the competition had also already been voiced at that time (see paragraph 23 above).

93.  Furthermore, the Court reiterates that, at the relevant time, all the applicants were highly experienced legal professionals (see paragraphs 5‑10 above).

94.  It is therefore impossible for the Court to accept that, given the applicants’ profiles and experience, they could have remained unaware of the public debate, both in Poland and internationally, surrounding the competition in which they participated and, notably, the various doubts raised as to its validity (see paragraphs 14-26 above).

95.  The Court further considers that the circumstances of the applicants’ appointments should also be reiterated at this point. The Court refers notably to the fact that (i) the NCJ delayed transmitting the appeals lodged with it against resolution no. 330/2018 (see paragraphs 32 and 50 above), and that (ii) the President of the Republic appointed the applicants despite the public calls upon him to refrain from doing so (see paragraphs 25-26 above) and despite the binding interim orders of the Supreme Administrative Court which had stayed the implementation of that resolution (see paragraph 39 above). Lastly, the Court considers relevant and emphasises the fact that, while an appointment to a judicial post is an act of the President of the Republic, the appointee does not become a Supreme Court judge by way of that act alone but has to actively take the oath of office. All of the applicants, despite the arguments raised by organisations of judges and lawyers as to the validity of the competition, voluntarily took that oath of office.

96.  The Court reiterates that in the case of Advance Pharma sp. z o.o (cited above), when assessing the legislative amendments (see paragraphs 31 and 42 above) and the actions taken by the President of the Republic within the appointment process, it concluded:

“334.  ... that both the legislature’s interference with the pending judicial review of the legality of NCJ resolution no. 330/2018 and the President of Poland’s appointment of seven judges to the Civil Chamber upon the contested resolution, notwithstanding that its implementation had been stayed pending appeals contesting its legality, amounted to a manifest breach of the domestic law. Conduct of the State’s highest executive authority which, by deliberate actions disregarding a binding judicial decision and through faits accomplis, interferes with the course of justice, in order to vitiate and render meaningless a pending judicial review of the appointment of judges, can only be characterised as blatant defiance of the rule of law.

...”

97.  The applicants, having wilfully participated in the intensely disputed procedure and accepted the appointments, cannot claim that the proceedings before the Supreme Administrative Court, which were aimed precisely at reviewing the doubts raised as to the validity of the competition, had been at the origin of those doubts.

98.  Consequently, the Court finds that the doubts complained of by the applicants as allegedly resulting from the impugned judgment and negatively impacting their reputation had been raised in public debate not only before that judgment was delivered, but before the proceedings at issue were initiated and before the interviews for the judicial posts at the Supreme Court were even held by the NCJ.

99.  Thus, the Court cannot accept that the connection between the proceedings and the applicants’ reputation was anything more than tenuous. As a result, the Court considers that the result of the proceedings was not in any way “directly decisive” for the applicants’ right to reputation.

(β)      Right to work as Supreme Court judges

100.  The applicants contended that, having pursued legitimate careers in the legal profession and applied, in good faith, for positions at the Supreme Court, they had the right to derive benefit from their previous hard work and take advantage of employment opportunities by becoming judges at the highest level. The applicants thus, essentially, claimed to have a right to be appointed to judicial posts at the Supreme Court and work as Supreme Court judges.

101.  The Court observes that the applicants failed to cite any domestic basis for the existence of such a right. The Court further reiterates that, under the Convention, there is no right to hold a public post related to the administration of justice (see Dzhidzheva-Trendafilova, § 38, and Denisov, § 46, both cited above).

102.  It is important to differentiate the abovementioned right invoked by the applicants from the right of equal access to public service, namely the judiciary (compare and contrast with Juričić, cited above, §§ 49-57 and, as regards specifically the Polish legal order, Dolińska-Ficek and Ozimek, cited above, §§ 229-31). The applicants did not allege a lack of equality as regards their access to public office. Rather, they insisted that they had been entitled to be appointed and hold the post of Supreme Court judges, presumably on the basis of previous hard work. In so far as the applicants relied, in this respect, on their subjective good faith in applying for positions at the Supreme Court, the Court reiterates its findings made in paragraphs 92-98 above.

103.  Given that the starting point in deciding upon the existence of the right in question must be the provisions of the relevant domestic law (see paragraph 79 above and the case-law cited therein) and that the applicants – themselves highly experienced lawyers represented by another lawyer – made no attempts at establishing the existence of such a right in the domestic law, the Court must conclude that no such right existed in the domestic legal order. Consequently, that alleged right may not be relied upon by the applicants in the proceedings before this Court.

104.  That being said, and even assuming that the applicants had such a right, the Court considers that the proceedings before the Supreme Administrative Court were not “directly decisive” therefor, on the following grounds.

105.  The Court reiterates that, in the proceedings before it, the applicants explicitly acknowledged that the Supreme Administrative Court’s judgment did not relate to the validity and effectiveness of their appointment by the President of the Republic to the office of judge of the Supreme Court on the basis of resolution no. 330/2018 (see paragraph 86 above). In other words, the applicants themselves accepted that their professional status as judges of the Supreme Court appointed by the President of the Republic was not put into question by the impugned judgment.

106.  Therefore, the applicants’ alleged “right to work as Supreme Court judges” was realised upon their appointment and could no longer have been at stake in the impugned proceedings after 10 October 2018, as the Supreme Administrative Court could not reverse the President’s appointment of the applicants nor order that a new competition be organised (compare and contrast with Tsanova-Gecheva, cited above, § 84 in fine). Thus, the proceedings before the Supreme Administrative Court were not “directly decisive” for the applicants’ status as judges of the Supreme Court (compare and contrast, Dolińska-Ficek and Ozimek, cited above, § 231).

107.  In this context, the Court fully reiterates its negative assessment of the actions undertaken by the executive and legislative branches of the Respondent State with a view to securing the applicants’ appointment and extinguishing any legal or practical effects of judicial review (see Advance Pharma sp. z o.o, cited above, §§ 331-34). Consequently, the finding that the impugned proceedings did not have a “directly decisive” character concerning the applicants’ alleged right to work as Supreme Court judges is in no way tantamount to condoning a state of affairs in which the President of the Republic may appoint a person to a judicial office regardless of whether the judicial proceedings aimed at verifying the validity of the underlying recommendation received by that person have been completed. Rather, on the basis of that finding the Court observes that in the specific circumstances of the case at hand and under the law as it stood at the relevant time, the judgment of the Supreme Administrative Court could not have resulted in the applicants’ appointments being reversed.

(c)   Conclusion as to admissibility

108.  Consequently, given that the proceedings before the Supreme Administrative Court did not determine any of the applicants’ civil rights, they do not fall within the purview of Article 6 of the Convention.

109.  Accordingly, although not for the reasons advanced by the Government (see paragraph 62 above), this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

In view of these findings, the Court considers that it is not necessary to examine the remaining preliminary objections advanced by the Government.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 9 May 2025.

 Ilse Freiwirth Ivana Jelić
 Registrar President

APPENDIX

List of applications

[1] Mr P. Gąciarek is the applicant before the Court (no. 27444/22).