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On Thursday, Poland’s Constitutional Court has convened to decide whether the Commissioner for Human Rights (the Ombudsman) can perform his duties even after the end of his term in a situation when the parliament has not yet elected his successor. While a specific article of the Act on the Commissioner for Human Rights is clear on this matter, the ruling party’s MPs requested that the provision be declared unconstitutional. Their motion was supported by the lower house of the Parliament, as well as by the Attorney General and Minister of Justice Zbigniew Ziobro.

- The Court rules that article 3.6 of the Act on the Commissioner for Human Rights is unconstitutional- announced the Constitutional Court’s president, Julia Przyłębska. The ruling comes as no surprise. It is exactly what PiS had expected.

The verdict was issued by a five-member panel composed exclusively of judges elected to the Constitutional Tribunal by the votes of the MPs of the right-wing coalition government. The panel includes former PiS politicians and is chaired Julia Przyłębska, who is known to have hosted Jarosław Kaczyński (the leader of the ruling party) at private dinners in her apartment.

Involved in the ruling was Justyn Piskorski - one of the so-called “stand-ins” or "judge doubles" hand-picked and illegally installed by PiS for an already occupied seat in the Constitutional Court. "Justyn Piskorski is unauthorized to rule in the Constitutional Court. The participation of an unauthorized person in the Court panel makes the proceedings invalid"- Adam Bodnar, the Ombudsman, argued during the hearing.  

The challenged article guarantees the continuity of the office of the Commissioner for Human Rights- the main authority protecting civil librties. The Constitutional Court decided that it will cease to be effective three months after the judgment has been published. In effect, Adam Bodnar will be removed from office. His term ended seven months ago. - If the verdict means the article in question must be eliminated, I will have no other option but to accept it- Mr. Bodnar said in an interview with Wyborcza on Tuesday.

A former communist prosecutor removes the Ombudsman from office

The draft judgment of the announced ruling was prepared by Stanisław Piotrowicz, a former communist prosecutor and former member of the ruling party. Ms. Przyłębska appointed him as the rapporteur. While still an MP and head of the parliamentary justice committee, he accused Mr. Bodnar of "not representing Polish citizens" and of acting "against his own government”.

- Today, a post-communist prosecutor is abolishing a democratic institution of an independent Polish state- said the constitutional law expert Prof. Marcin Matczak, commenting on the court’s ruling.

- The challenged article introduces the institution of an acting Commissioner for Human Rights, an institution not foreseen by the Constitution- Mr. Piotrowicz said about Adam Bodnar carrying out his duties after the end of his term.

- The Act on the Commissioner for Human Rights is inconsistent with the Constitution, which defines the Commissioner’s term of office as five years. A term of office is a strictly defined period of time that cannot be exceeded. The Commissioner’s term of office cannot be longer- reads the ruling’s justification.

Yet, the Constitution allows the functioning of the office of the Ombudsman to be regulated by statutory law. Similar solutions exist in Acts on the heads of the Supreme Audit Office (NIK) and Poland’s Central Bank (NBP), and function in many European countries. Nearly all previous Ombudsmen remained in office after the official end of their term. It was never questioned.

- We will send the Parliament an appealable decision on the unconstitutional character of the acts concerning other state institutions- Mr. Piotrowicz announced referring to the heads of NIK and NBP.

The Parliament has three months to prepare a new legislation

The timing of the announcement coincided with yet another attempt to appoint a new Ombudsman. Late in the afternoon on Thursday, the Parliament may elect Bartłomiej Wróblewski, a candidate proposed by PiS, to replace the outgoing Ombudsman. Mr. Wróblewski was behind the motion to the Constitutional Court to further restrict the Polish abortion law. The ruling camp’s candidate will still have to gain the approval of the Senate, where the opposition has a majority.

After the Constitutional Court’s verdict has been put on the books, both houses of the Parliament will have three months to elect a new Commissioner for Human Rights. Should the Parliament fail to do so, Polish citizens will no longer have a guardian of their fundamental rights, because Mr. Bodnar will be effectively removed from office.

- In order to maintain continuity in the protection of citizens' rights, the Constitutional Court decided that the verdict will come into force after three months. This is the time for the parliament to adjust the legal system- Mr. Piotrowicz said.

- Within three months, there should be a law regulating situations in which the office of the Commissioner for Human Rights is left vacant after the expiration of the term - he added.

In this way, a scenario anticipated for many months came true. The Constitutional Court gave PiS a green light to amend the Act on the Commissioner for Human Rights. Legal experts speculate that the party will now appoint its own hand-picked Ombudsman to replace the outgoing Mr. Bodnar until a new Ombudsman is elected. Such a temporary Ombudsman can be elected by the lower house of the Parliament or appointed by President Andrzej Duda.

"The office of the Commissioner for Human Rights, a constitutionally-mandated state institution, has been abolished. No other person than a legally elected Commissioner can perform his constitutional duties. The attempt to exclude the Senate and establish an 'acting' Ombudsman will be a violation of the Constitution" - comments Mikołaj Małecki, Ph.D., a criminal law expert at the Jagiellonian University.

“Today’s Constitutional Court ruling creates a worrying gap in the functioning of the Ombudsman institution in-between terms and the protection of #humanrights in #Poland. A successor must urgently be selected fully respecting the Polish Constitution and law and international standards" - said the Council of Europe Commissioner for Human Rights, Dunja Mijatović, referring to Adam Bodnar's removal from office.

[The entire reaction of the Council of Europe Commissioner for Human Rights, Dunja Mijatović, can be found here]


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