Case: Alojzy (name changed) was a candidate for a youth council member in Poland. In October 2022, he submitted his application form and met all the formal requirements that allowed him to take up the position of a youth council member. Unfortunately, despite his efforts, he did not receive the mandate in the recruitment process conducted by the provincial council – in November 2022, he received information about not being qualified, first by the competition committee team, and then by the council. No reasons for this decision were given. Alojzy feels aggrieved by this situation – he believes that the recruitment process was conducted in a non-transparent manner, and he does not know the reasons for rejecting his candidacy.
What to do in this situation?
IREPSO’s answer:
According to the wording of Article 10b (10) of the Act on the Province Self-Government: “The provincial council, when creating the youth council of the province, gives it a statute specifying in particular the rules of operation of the youth council of the province, the procedure and criteria for selecting its members, as well as the rules for the expiration of the mandate and the dismissal of a youth council member of the province.” Therefore, the key issue is whether “selection criteria” must be equal to “election criteria”, in other words – whether the provision referred to any selection of youth council members or only to selection through organizing elections.
Opinions on this aspect are divided. There are representatives of legal science who believe that elections to the youth council can be held in the form of recruitment (for example, A. Misiejko, Youth council of the municipality – selected institutional aspects after the amendment, Territorial Self-Government 2022, No. 6, pp. 75-86), but there are also opponents of this view, who believe that the selection of youth council members is solely through elections (for example, R. Marchaj, Youth council of the municipality, PPP 2022, No. 3, pp. 81-94). As part of a wide range of publications prepared by the Institute of Legal Education Development over the past three years, one of IREPSO’s experts addressed the theoretical and legal issues of elections to youth provincial councils. In the publication, he takes the position that the selection of the youth council should be through elections, not recruitment. J. Zapolski-Downar also believes that the factual situation of selecting youth council members in the recruitment process is highly debatable legally, but above all, it is decidedly not recommended from a political and social point of view.
In order to determine the evaluation criteria for access to all documents related to the recruitment process, it would be appropriate to apply to the provincial assembly with a request for access to public information based on Article 2, paragraph i and Article 10, paragraph 1 of the Act of 6 September 2001 on access to public information. Such a request is quite informal, the only information that needs to be provided is the name and surname of the applicant, their email address (with a request to send the response via email), and possibly a postal address. Upon receiving the request, the authority has 14 days to respond, but may extend this time after notifying the applicant in advance.
The above action provides a basis for further steps in the proceedings, particularly since the provincial assembly is obligated to provide all documents related to the recruitment process that the applicant requests. These documents may show certain reasons why Alojzy was not selected as a member of the assembly, but they do not constitute a clear and explicit justification (expressis verbis).
The above information may be useful in the procedure of challenging the resolution to the Provincial Administrative Court, but only with regard to the resolution concerning the selection criteria for members of the youth assembly (if, for example, these criteria were indirectly or directly discriminatory or contrary to the provisions of universally binding law – acts, international agreements, Constitution, etc.) or if the resolution was adopted unlawfully.
The resolution concerning the composition of the youth assembly is non-appealable. In this case, the provincial assembly acts as a “competition court”, which decides on the matter on the basis of administrative recognition and decision-making flexibility. Therefore, in this particular case, if Alojzy does not agree with the selection of individual members of the youth assembly, and not with the criteria for their selection, they cannot appeal the assembly’s resolution either in the appellate proceedings by appealing to the Municipal Appeals Board or in the proceedings concerning the legality of the issuance of the legal act by filing a complaint to the Provincial Administrative Court.