Time-limit set for appointing judges by the President of the Republic of Poland K 18/09
Setting a time-limit for appointing common court judges by the President in a statute is inconsistent with the Constitution.
At the hearing on 5 June 2012 at 9 a.m., the Constitutional Tribunal considered an application submitted by the President of the Republic of Poland with regard to a time-limit set for appointing judges by the President.
The Constitutional Tribunal adjudicated that Article 55(1) of the Act of 27 July 2001 - the Law on the Organisational Structure of Common Courts, in the part which included the wording “within a month from the date of sending such a motion” was inconsistent with Article 179 and Article 2 of the Constitution.
The Tribunal discontinued the proceedings as to the remainder on the grounds that issuing a ruling was useless.
Pursuant to Article 144(3)(17) of the Constitution, the power to appoint judges is a prerogative of the President, i.e. it is his exclusive competence, which does not require the signature of the Prime Minister to be valid. This power is elaborated on in Article 179 of the Constitution, in accordance with which judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary. As regards specifying the President’s power to appoint judges, the said provision is a complete norm, since all indispensable elements of the appointment procedure have been regulated therein. In accordance with the said procedure, it is the task of the National Council of the Judiciary to submit a motion for the appointment of judges, i.e. to indicate candidates to be appointed as particular common court judges. Only after the motion has been submitted, the President may take action in order to appoint judges.
At the same time, it is obvious that the said provision does not specify in detail the appointment procedure and, in that sense, it is not self-executing in character. Within that scope, the exercise of the said power by the President may be sufficiently specified by statute, provided that this does not violate the prerogative to appoint judges and is not contrary to the will of the legislator.
In Article 55(1) of the Law on the Organisational Structure of Common Courts, the legislator introduced the time-limit of one month for the President to appoint judges. In the view of the Tribunal, the said time-limit constituted a vital element of the appointment procedure, and thus the inclusion of the time-limit in statutory provisions undermined the essence of the power set forth in Article 179 of the Constitution. The Tribunal pointed out that where time-limits had been provided for the President to exercise his powers (e.g. 21 days for signing a bill), they had explicitly been specified in the Constitution. Given the constitution-maker’s rational actions, it should be assumed that it was his intention not to specify the time-limit in that regard, and there were no grounds for the legislator to set time-limits in the provisions of ordinary statutes.
The Tribunal stated that the lack of an explicit time-limit for appointing judges in Article 179 of the Constitution should be interpreted as the President’s obligation to act forthwith. Such an interpretation permits a justified delay in the exercise of the said power by the President, for instance when it is necessary to analyse candidatures proposed by the National Council of Judiciary, and properly exercise the power, by making it possible to thoroughly evaluate the candidates for judges.
Moreover, when setting the time-limit for appointing common court judges, the legislator introduced an exception which was not justified in the light of the binding provisions that regulated the President’s power of appointment within the scope of the judicial branch of government. Neither the Constitution, nor the provisions of particular statutes provided for any time-limits for the President to appoint the judges of administrative courts, military courts, the Supreme Administrative Court or the Supreme Court, or the presidents or vice-presidents of those courts. This resulted in diversifying the appointment procedure, which entailed differentiating between the situations of candidates for judges. Therefore, the legislator infringed the principle of appropriate legislation, arising from Article 2 of the Constitution.
Also, the said principle was infringed, since the legislator did not specify the consequences of the President’s failure to observe the one-month time-limit for appointing judges. Thus, doubts arose as to whether that was just an instructional time-limit, the breaching of which did not bring about any consequences within the scope of the President’s power of appointment, or whether the breaching of the time-limit constituted grounds for holding the President constitutionally accountable before the Tribunal of State for the infringement of the statute.
The hearing was presided over by Judge Piotr Tuleja, and the Judge Rapporteur was Judge Marek Kotlinowski.
The judgment is final and its operative part shall be published in the Journal of Laws.