October 23, 2026
By Barbara Grabowska-Moroz
In May 2026, the ECtHR decided Sobczyńska and others v Poland – a case suggesting the existence of structural shortcomings of judicial independence in the Polish legal system, which existed long before the rule of law crisis started in Poland in 2015. The case concerns the role of access to judicial review in a context of guarantees of judicial appointments. It shows the role of procedural guarantees in securing judicial independence. Unfortunately, it seems that domestic (administrative) courts have still not learned their lesson.
Three applicants were junior judges (asesorzy), who applied in 2006 for judicial positions in district courts. In 2007, the National Council of Judiciary (NCJ) approved those nominations and forwarded its resolutions to the President of Poland, who, according to the Constitution, appoints judges in Poland. It was an established practice that the President followed the decisions of the NCJ and appointed the judges. This time, however, the dynamic was different. First, the President informed the NCJ that he did not intend to appoint them. Later, the President issued decisions in which the refusal was formally expressed, but without providing any justification.
Applicants tried to challenge those decisions before the administrative courts, which dismissed the cases (found the complaints inadmissible) and found that the administrative courts have no jurisdiction to review those decisions. One of the arguments was that the President, when exercising his power to appoint judges, was not considered to constitute public administrative authority. The case reached the Constitution Tribunal through a constitutional complaint procedure, which was also dismissed in 2012 and 2014. Before the Constitutional Court, the applicants argued that the provisions of the law on common courts violated, among other provisions, their right to equal access to public service and right of access to a court. The Constitutional Tribunal argued that it did not have jurisdiction to review the application of the Constitution by public authorities.
The applicants argued that the domestic courts had refused to hear their cases, which resulted in a denial of access to a court as required by Article 6(1) of the Convention.
In order to verify whether this provision is even applicable, the Court relied on a three-element test – (i) the existence of a right; (ii) whether there was a ‘genuine’ and ‘serious’ dispute about a right; and (iii) whether the right in question was ‘civil’ within the meaning of that provision. The Court found that the applicants relied on the constitutional right of equal access to public service (para. 133). Furthermore, the Court found that under pre-2015 case law of the Constitutional Court, the right of equal access to public service was protected with numerous conditions that had to be met in order to introduce any limitations of that right. In the end, the Court ruled that the applicants ‘could claim, on at least arguable grounds under Polish law, a right to a fair procedure in the examination of an application for a judicial post – including the right to be protected against arbitrary rejections’. The Court agreed also – without further examination – that the dispute over the right of equal access to public service was ‘genuine and serious’.
In deciding whether the right was of a ‘civil nature’ the Court applied the Eskelinen test, just as applied in numerous cases concerning the various aspects of the status of judges. Eskelinen test verifies whether the civil nature of the right was in fact excluded in the light of the domestic law. It consists of two elements: (i) analysis of whether the State, in its national law, has excluded access to a court in a given type of situation; and (ii) verification whether such exclusion must be justified on objective grounds in the State’s interest. In light of the opposing views of the parties, the Court left this issue open; however, it highlighted the important specificity of this case: first, that the applicants were not merely external candidates, but sitting junior judges; and second, that the case does not concern a purely internal promotion either. In the second stage the test, the Court analysed whether this exclusion was justified and found that ‘the decision to refuse to appoint the applicants (…) without providing any reasons, and the absence of any judicial review of that decision, cannot be regarded (…) as having been in the interests of a State governed by the rule of law’ (para. 158) The Court found that the second element of the Eskelinen test was not met, so Article 6 of the Convention is applicable.
Even though already at the stage of admissibility, it was ruled that such an exclusion of access to a court was not justified, the Court moved to analyse the merits of the case – if such a limitation of right met a ‘reasonable relationship of proportionality’ between the means and the aim. To some extent, this stage mirrors the second element of the Eskelinen test, which made the reasoning of the Court quite complicated.
Based on facts in the case, the Court found that the ‘applicants could have had a reasonable expectation that their applications for posts of judges would be given proper consideration, subject to transparent and objective evaluation devoid of arbitrariness’ (para. 183). Yet, the applicants were not given any reasons from the President (para. 184), which indirectly resulted in the inability to conduct any review. Here, the Court found that ‘where the career (…) of a judge is at stake, there should be weighty reasons exceptionally justifying the absence of any judicial review’ (para. 185). The Court ruled that in the light of the overall facts of the case, ‘the essence of the applicants’ right of access to a court has therefore been impaired’ (para. 186).
Sobczyńska and others v Poland is yet another case concerning guarantees of judicial independence in Poland. However, this case concerned shortcomings of the constitutional legal system in Poland, which existed before the rule of law backsliding intensified when the National Council for Judiciary was captured in late 2018. The Government tried to argue that limitation of the access to the court was justified with an ‘institutional balance’ as established by the Constitution (para. 159). In this context is worth underlining that this specific ‘institutional balance’, which would leave the Presidential decisions outside any independent review, has not protected the constitutional legal system against the rule of law crisis, which deepened when the NCJ was captured by one side of the political scene. The case-law of domestic courts, which left applicants without access to the court, was later used to immunise post-2018 judicial appointments from any judicial review or oversight (para. 60). Unfortunately, it took the ECtHR 12 years to decide the case. In the meantime, in a pilot judgment Wałęsa v Poland, the Court ruled that Poland is facing a systemic problem with judicial independence, mainly caused by flaws in the judicial appointments procedure.
Even though the case does not deal with the consequences of the rule of law crisis, the standards regarding procedural guarantees surrounding judicial appointments developed as a result of the rule of law crisis, might be to some extent linked with Sobczyńska and others case. Dolińska-Ficek and Ozimek v Poland case dealt with a situation where the decisions of the National Council for the Judiciary were reviewed by a newly established chamber of the Supreme Court, which turned out not to meet the standards of a tribunal established by law. Yet, as the Court underlined that Dolińska-Ficek and Ozimek case is different, since at least some access to judicial review was provided (and the quality of this review was the main issue), whereas in Sobczyńska no judicial review was granted at all (para. 136).
Also, the case-law of the Court of Justice concerning the rule of law crisis developed the set of standards dealing with procedural guarantees concerning judicial appointments. In A.B.case, the Court of Justice had to decide on a situation where the legislative amendments aimed at removing any judicial review of the NCJ resolutions in the process of judicial appointments. The procedural guarantees surrounding judicial appointments were built into ‘appearance’ test applicable in assessing the guarantees of judicial independence: ‘it is (…) necessary to ensure that the substantive conditions and procedural rules governing the adoption of those appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges’ (para. 123). The Court directly linked the shape of the procedural rules with meeting the guarantees of judicial independence, such as protection against external intervention or pressure. The Court further ruled that there might be cases where lack of such legal remedies might be acceptable, yet the situation when those judicial remedies ‘are suddenly eliminated’ may give rise ‘to systemic doubts in the minds of individuals as to the independence and impartiality of the judges appointed at the end of that process’ (para. 129).Sobczyńska and others case did not concern, however, the availability of judicial review of the NCJ resolutions, but the lack of an effective remedy of the last stage of the judicial appointment procedure – the decision of the President. If such a decision were to remain without any external review, such a situation could influence the right of access to public service and would mean that arbitrariness remains part of the appointment process. In such a situation, an effective judicial remedy over the NCJ decisions could be ‘cancelled’ with a fully arbitrary decision of the President. From a substantive law perspective, the Court argued that: ‘[t]o hold otherwise – namely that the right guaranteed by that provision [right to an equal access to public service] extends only up to the final stage before the National Council of the Judiciary and ceases to apply to the stage before the President of the Republic – would deprive it of any practical effect’ (para. 138).
Probably what makes Sobczyńska such an interesting case is its practical consequences. Yet it is not clear how the judgment should be implemented. On an individual level, the applicants will be paid a just satisfaction. Due to the fact that the refusal of judicial appointment took place in 2008, it is highly probable that re-applying for a judicial position might be a challenge. Yet, the case might suggest that there are huge ‘flaws’ in the constitutional design of judicial appointments in Poland, which existed before the rule of law crisis occurred with all force in 2015. Sobczyńska and others case was the first instance when the President refused to appoint a judge selected by NCJ. Before that, it was an established constitutional practice that resolutions of the NCJ regarding judicial appointments were accepted by the President. Decisions taken by the administrative courts in Sobczyńska and others were the first to deal with the issue concerning judicial review of Presidential refusals. As the Court found, the case-law of administrative courts was further developed and confirmed that administrative courts lacked jurisdiction in such cases.
Most probably, the case-law of the administrative courts should be changed in order to broaden the jurisdiction of the administrative court and to provide an effective legal remedy as required in the light of the Sobczyńska and others case. It might be the most obvious way to implement the ECtHR ruling, especially in the light of the fact that the administrative courts were fully aware of the shortcomings of such limited jurisdiction and threats attached to it (para. 159). At the same time, it remains necessary to implement Wałęsa case, since the systemic problems with the independence of the National Council for the Judiciary might remain a problem in ensuring the ‘appearance of independence’ of a judge and fulfilling the requirement of a ‘tribunal established by law’.
Yet it is not clear whether the administrative courts are prepared (or willing) to implement the ECtHR judgment in Sobczyńska and others case. In November 2025, before Sobczyńska was decided, President Nawrocki refused to appoint 46 judges selected by the ‘new’ NCJ. However, his refusal was not based on the status of NCJ, but on the out-of-the-courtroom actions taken by the candidates for judicial office. The statement presented by the President did not provide any precise factual background, only a general statement that: ‘No judge who questions the President’s constitutional powers, the Polish Constitution, and the Polish legal system can count on an appointment’. Unofficially, it was suggested that the main reason for the refusal was the fact that the candidates in 2020 signed an open letter to the OSCE arguing for the need to monitor presidential elections, which were to be organised under an unclear legal framework.
The case reached the regional administrative court (WSA in Warsaw) and was rejected. Despite the fact that judgment in Sobczyńska and others was delivered on 21 May 2026, the regional administrative court, when deciding the case (on 23 June 2026; case VI SA/Wa 462/26), mentioned the judgment only once, arguing that a way to implement the judgment is … to make the Supreme Court review the decisions of the President. Another way to implement the judgment, according to WSA, is to amend the law, which seems to be unnecessary, since the lack of jurisdiction is the result only of the interpretation adopted and developed by the administrative courts.
The essence of the case concerns the arbitrariness in a context of judicial appointment procedures, which makes the issue at stake ‘a rule of law’, since the rule of law is all about limiting arbitrariness. Arbitrariness was highlighted on numerous occasions in the ECtHR ruling:
Despite the fact that the case was built around the argument of arbitrariness, WSA, in its decision of 23 June 2026, fully accepted that the decision of the President dealing with judicial appointments (or refusal thereof) is ‘discretionary’ and ‘falling within the scope of his personal prerogative, within the sphere of his exclusive authority and responsibility’. It is rather doubtful whether perceiving the position of the person holding public office (such as the President of the Republic) in terms of unlimited prerogatives could be compatible with the standard adopted by the ECtHR. The Court argued that ‘arbitrariness entails a negation of the rule of law’ (para. 153) and that ‘domestic law needs to be couched in unequivocal terms, to the extent possible, so as not to allow arbitrary interferences in the appointment process, including by the executive’ (para. 152). Sobczyńska and others case shows that in the field of rights of individuals, there is not much space for uncontrolled discretion, lacking any effective remedy.
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