Kognicja sądowoadministracyjna a odmowa powołania na stanowisko sędziego – kilka refleksji na tle postanowienia NSA z dnia 7 grudnia 2017 r. o sygn. akt I OSK 857/17

Abstract

The paper indicates the most important arguments raised by the participants in the dispute concerning the possibility of control by the administrative courts of decisions of the President of the Republic of Poland on the refusal to appoint a judge and an attempt to make a substantive evaluation of them. In my opinion, the refusal to appoint a judge, as well as refusal to accept the judge’s position under the amended Act on the Supreme Court (SC) should be strictly exceptional and in principle be justified at the constitutional level, which should be seen as the duty of the President to ensure compliance with the Constitution. Both of these resolutions should contain the motives of the President, which would make this act, with all its arbitrariness, more transparent. This is important not only from the point of view of the person concerned, but this also has an important social dimension. The public has the right to know, not only which candidates, who met the requirements for the appointment as a judge and were recommended by the National Council of the Judiciary of Poland (NCJ), were not appointed by the President, but also what reasons were at the heart of such a decision of the Head of State.