Konsekwencje odmowy lub odroczenia opiniowania kandydatów na stanowiska sędziowskie przez zgromadzenie sędziowskie lub kolegium sądu, ze szczególnym uwzględnieniem ważności przedstawienia w takiej sytuacji kandydatur przez prezesa właściwego (...)
The consequences of a refusal or postponement of giving an opinion on the candidate for the position of a judge by a judicial assembly or college of judges, particularly for the validity of presenting, in such situation, candidatures by the president

Summary/Abstract: The failure to perform an obligation vested in the judicial self-government and colleges of judges in the form of providing an opinion on candidates for the position of a judge is an abuse of right and as such shall not have legal effects. Applying Article 35(3) of the Act on the National Council of Judiciary and claiming that based thereon candidates are presented by the president of a relevant court to the National Council of Judiciary is not impeded by Article 58(4) of the Law on the System of Common Courts, as of which “President of the court presents [...] opined candidatures [...] together with the assessment of qualifications and an opinion of a relevant college of judges”. The main argument for this approach is the principle according to which no one shall make wrong use of their right (male iure nostro uti non debemus), which would be the case if the actions of a president of a court were denied validity on the basis of Article 35(3) of the Act on the National Council of Judiciary. Taking into account a strictly formalist understanding of law, I would be willing to postulate appropriately amending Article 58(4) of the Law on the System of Common Courts. In Poland decisions referring to arguments on the abuse of right and prohibition of making use of it find no acceptance.

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