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Wednesday, May 5, 2021

The case of the term of office of the Ombudsman before the Constitutional Tribunal. Adam Bodnar during the hearing

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On Monday, the Constitutional Tribunal was considering a motion to review the constitutionality of the provision, according to which the Ombudsman performs duties after the end of his term of office until his successor takes up his post. – The aim is not to extend the term of office of the ombudsman, but to ensure the effectiveness of using the constitutional means of protecting rights and freedoms – explained the statutory provision by Adam Bodnar. The next hearing is scheduled for Tuesday.

The request of PiS deputies was sent to the Constitutional Tribunal led by Julia Przyłębska in mid-September last year. They asked for an examination of the constitutionality of the statutory extension of the five-year term of office of the Ombudsman in a situation where a successor is not elected. The term of office of the current Ombudsman – Adam Bodnar – expired on September 9 last year.


Next hearing is on Tuesday

Monday’s hearing, already on the tenth scheduled date, began on Monday after 2 p.m. and ended shortly before 3.30 p.m.

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The application was examined by a panel of five judges of the Constitutional Tribunal, chaired by President Julia Przyłębska. The rapporteur is Judge Stanisław Piotrowicz, and apart from them there are also judges: Justyn Piskorski, Bartłomiej Sochański and Wojciech Sych. Originally, instead of judge Sochański, there was judge Rafał Wojciechowski.

Apart from the representatives of the applicants, the ombudsman Adam Bodnar also participated in the hearing.

Bodnar: The goal is not to extend the Ombudsman’s term of office

Bodnar explained during the Monday hearing that the current statutory provisions “are about ensuring the continuity of the ombudsman institution”. – The aim is not to extend the term of office of the Ombudsman, but to ensure the effectiveness of using the constitutional means of protecting rights and freedoms, i.e. Article 80 of the Constitution, and the appropriate assistance of the Ombudsman in this regard – he continued.

As reported by the TVN24 reporter, the next hearing is to be held on Tuesday at 9 am.

Adam Bodnar before the Constitutional TribunalTVN24

“I am here in defense of article 80 of the Polish constitution”

There was a demonstration of support for Bodnar in front of the Tribunal building. The spokesman referred to her in a short conversation with journalists after leaving the courtroom.

– I want to sincerely thank the citizens for their support. It is amazing, I can feel it all the time, it was also heard in the Chamber of the Constitutional Tribunal – he said.

– I would like to emphasize once again that I am here in defense of article 80 of the Polish constitution, the right to lodge a complaint with the Ombudsman. To the Ombudsman, who will be independent – he added.

Everyone has the right to apply to the Ombudsman for assistance in the protection of their freedoms or rights infringed by organs of public authority, in accordance with the provisions of the Act.

After Monday’s hearing before the Constitutional Tribunal. Bodnar: I am here in defense of article 80 of the Polish constitutionTVN24

“We will see what the final decision will be”

The representative of the group of applicants, PiS MP Marek Ast, said after Monday’s hearing that the constitution does not provide for the extension of the term of office of the Ombudsman. – On the other hand, on the basis of the Act (on the Ombudsman – ed.), Such a situation (of remaining in the position of the ombudsman in the event of the failure to elect his successor – ed.) May actually be continued. This is clearly against the constitution, but today there is a break (in the work of the Constitutional Tribunal – ed.), There will be a continuation tomorrow. We will see what the final decision will be – he said.

Marek Ast: we will see what the final decision will beTVN24

Arguments of PiS MPs

The application examines the constitutionality of the de facto statutory extension of the term of office of the Ombudsman, which, pursuant to Article 209 (1) of the Polish Constitution, is 5 years. The Act on the Human Rights Defender provides that “the current Human Rights Defender shall perform his duties until the new Ombudsman takes up his position”.

Adam Bodnar in front of the building of the Constitutional TribunalTVN24

“The term of office of the Ombudsman resulting from the constitution should be treated as the first indicator of his legitimacy to act. This term of office should be synchronized with the term of office in the Act on the Ombudsman. Currently there is no such thing and therefore it is necessary to launch constitutional control of the challenged provision” – PiS deputies pointed out.

In his position addressed to the Tribunal, Bodnar stressed that “excluding the current Ombudsman from performing his duties until the new Ombudsman takes up his position would weaken the protection of rights and freedoms”. He applied for recognition of the provision as constitutional.

The Public Prosecutor General and the Seym petitioned for the recognition of the provision to be unconstitutional in the positions of the Constitutional Tribunal. In his position, the Public Prosecutor General wrote that “one cannot, however, pragmatically justify the circumvention of constitutional rigors, especially those explicitly enshrined in the constitution, and not only interpreted from it”.

Adam BodnarPAP / Mateusz Marek

The Sejm noted that the constitution precisely defined the term of office of the Ombudsman and did not make its duration dependent on any additional conditions. Meanwhile – as indicated by the Sejm – “in the event of a permanent disagreement between the Sejm and the Senate, the provision allows the Ombudsman to perform his duties at least until the end of the Sejm’s term of office, and theoretically even longer, for an indefinite period”.

Applications for the exclusion of Julia Przyłębska

Earlier, the Commissioner for Human Rights applied to the Constitutional Tribunal to exclude Julia Przyłębska from the adjudicating panel in this case. As he emphasized, a judge of the Constitutional Tribunal is subject to exclusion, inter alia, when there are “circumstances that may raise doubts as to his impartiality” and whether he would be objective in the case. “In the opinion of the Human Rights Defender, objectivity understood in this way cannot be determined due to the public statements of Andrzej Przyłębski, who was the Polish ambassador to Germany and the spouse of judge Julia Przyłębska” – assessed Bodnar.

In dismissing this request at the beginning of March, the Tribunal stated that “the subject of the case is the assessment of the provisions of the Act of 15 July 1987 on the Human Rights Defender against the background of the constitution, and not the assessment of the person or activity of Adam Bodnar”. Earlier, the Commissioner for Human Rights requested the exclusion of judges Piotrowicz and Piskorski, which the Constitutional Tribunal also refused.

Changes in the composition of the judges

The last of Bodnar’s conclusions, which was announced on Friday, concerned the exclusion of president Przyłębska due to the change in the adjudication panel – it is about replacing judge Wojciechowski with judge Sochański. In the opinion of the Ombudsman, no provision of the Constitutional Tribunal Act entitles to any change of the already appointed composition. “The Ombudsman as a participant in the proceedings was not informed in writing about this change” – Bodnar pointed out, stressing that “such manipulation of the adjudication panel of the Constitutional Tribunal is unlawful”.

Dismissed Bodnar’s request

At the beginning of the hearing, President Przyłębska informed about the dismissal of the latter motion, and a copy of the decision was delivered to Bodnar after a break of several minutes.

“The Ombudsman complained in media interviews that he was not informed about the change of the bench. Meanwhile, the Tribunal, like no court – including the Court of Justice of the European Union – does not notify the participants of the proceedings about the changes in the bench, but discloses it on websites, which is not a common practice in the case of other courts, such as the CJEU, “the press office of the Constitutional Tribunal stressed on Monday.

Referring to the fact that the Commissioner for Human Rights had also filed motions to exclude a judge in his case, the press office of the Constitutional Tribunal stated that “the reason for the exclusion of a judge cannot be that he has performed the actions of the President of the Constitutional Tribunal. The Defender knows the law and knows what are the competences of the President of the Constitutional Tribunal in the matter of shaping the adjudication panels “- indicated.

“Pursuant to the Constitutional Tribunal Act, judges are appointed by the president, and the regulations of the Constitutional Tribunal provide for derogation from the general rules in the event of an excused absence of a judge. more time to get to know the case “- the CT office reminded.

Several attempts to choose the successor of Adam Bodnar

The Ombudsman is appointed by the Sejm with the consent of the Senate at the request of the Marshal of the Sejm or a group of 35 deputies. If the Senate refuses to consent to the appointment of the Ombudsman (it takes one month to adopt a resolution expressing consent or objection), the Sejm shall appoint another person to this position.

In recent months, parliament has tried three times to elect Adam Bodnar’s successor. Twice the only candidate was attorney Zuzanna Rudzińska-Bluszcz, who was a joint candidate of the KO, Lewica and Poland 2050 Szymon Hołownia, but she did not receive the support of the Sejm. The third time, the Sejm appointed the PiS candidate, deputy head of the Ministry of Foreign Affairs, Piotr Wawrzyk, to the Ombudsman, but the Senate did not consent to this candidacy.

Another procedure for selecting Bodnar’s successor is underway. The PiS candidate is MP Bartłomiej Wróblewski; candidate of KO and PSL – dr hab. Legal sciences Sławomir Patyra, candidate of the Left – lawyer and social activist Piotr Ikonowicz.

Main photo source: TVN24

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