Defective Judicial Appointments and their Rectification under European Standards

Transition 2.0 : re-establishing constitutional democracy in EU member states / Michal Bobek, Adam Bodnar, Armin von Bogdandy, Pál Sonnevend (eds.). Baden-Baden : Nomos Verlagsgesellschaft mbH & Co. KG, 2023, s. 425-470.

The Union law, the ECHR and the jurisprudence of the two European Courts do not answer as to the finality of an act of appointment of a judge made in breach of the law. That answer should be provided by national law and should fit into the limits set by the Constitution. From the perspective of European standards, it is sufficient that the defective appointees do not rule on, respectively, the interpretation and application of Union law and the protection of the rights and freedoms guaranteed by the ECHR. Theoretically, therefore, they can remain ‘national judges’, yet functionally they are not ‘European Judges’. Addressing unlawful judicial appointments is essential to overhauling the judicial system, reinstating the rule of law, ending the aggravating legal chaos and restoring fully effective legal protection to individuals. Curing defective appointments requires general, systemic arrangements, adequate to the nature and scale of the problem, while based on an Act of the Parliament. Extreme solutions should be avoided, as they can bring too much negative impact. There should bepreferably some arrangements that take account of all axiological, systemic, institutional and social considerations. Indeed, it is a balancing exercise to rectify the legal chaos that has developed, to lay down rules for removing deficiencies in judicial appoint ments, and to define the legal consequences of rulings made by defective courts. Still, in light of the jurisprudence of the ECJ and the ECtHR, the removal of unlawfully appointed judges would be permissible provided proper enactment, justification and proportionality of the measure.