Julia Przyłębska’s Constitutional Tribunal is to finally rule on 10 March 2021 on whether extending the term of office of the incumbent Commissioner for Human Rights, if his successor has not been elected, is constitutional.

The motion on this matter was submitted to the Constitutional Tribunal by two PiS deputies as early as in September 2020, while the date of the session has been postponed five times.

The bench will consist of the President of the Constitutional Tribunal, Julia Przyłębska (as the presiding judge) and Judges Stanisław Piotrowicz (as rapporteur), Justyn Piskorski, Wojciech Sych and Rafał Wojciechowski.

Adam Bodnar filed a motion to remove Przyłębska on 3 March 2021. In his opinion, she should not rule on the case because of public statements made by her spouse, Andrzej Przyłębski, Poland’s ambassador to Germany.

The Commissioner recalls that Przyłębski fiercely criticized his activities in a letter to the Federal Association of German-Polish Societies in October 2020. The ambassador explained in it why he did not intend to give a welcoming speech at the Polish Commissioner’s Dialogue Award giving ceremony. He made direct accusations about Bodnar.

‘During his time in office, Professor Bodnar has done everything to slow down the necessary reforms being implemented by a democratically elected parliament and its emanation, the government,’ wrote Ambassador Przyłębski. In his opinion, Bodnar was also alleged to have involved international institutions in an unauthorized manner in the case of the deprival of Judge Beata Morawiec’s immunity by the Disciplinary Chamber of the Supreme Court.

Bondar points out that Przyłębski made these remarks ‘without any reference to the reasons for the Commissioner’s action in this case’. ‘These statements should be considered an attempt to disparage the constitutional body – the Commissioner for Human Rights – and personally Dr Hab. Adam Bodnar in Polish-German relations – as a biased body of the protection of civil rights,’ reads the motion for removal.

‘Reasonable doubts’

According to the Commissioner, Przyłębski’s statements ‘give rise to reasonable doubts’ as to whether his spouse is impartial. All the more so that she herself has publicly commented on the reform of the judiciary in a similar tone.

Bodnar refers to Article 39 of the Act on the proceedings before the Constitutional Tribunal, which lists the premises for removing judges from adjudication. In para. 2, item 2, it states that it is possible, among other things, when ‘there are other circumstances not mentioned in item 1 or para. 1 that may incite doubts as to his impartiality’.

The Commissioner refers to this premise with the knowledge that it is ‘of an evaluative nature’. However, he believes that Przyłębski’s statements satisfy the features of such circumstances. Especially as the matter in question is of great importance. As Bodnar emphasizes, its outcome can threaten the efficient functioning of a constitutional body, namely the Commissioner.

In his motion, Bodnar cites, among other things, the case law of the Supreme Court. In one of its judgments, the Supreme Court held that the grounds for removal could be ‘a set of personal relations that would make it difficult for a judge to retain an impartial attitude in resolving a dispute due to the emotional attitude to the given person’ or ‘connections influencing a judge’s interests or position in life’.

The need to maintain ‘impartiality and independence of the court in the eyes of the public’ was emphasized by the Constitutional Tribunal itself in its earlier judgments. This has been repeatedly pointed out by the European Court of Human Rights in Strasbourg and the Court of Justice of the EU.

‘Situations such as the presentation of negative and emotional statements without specifying the grounds for the allegations “can give rise to reasonable doubts about the independence of this body of external factors in the minds of individuals,” thereby undermining “the trust that the judiciary should inspire in these individuals in a democratic society”,’ writes Bodnar, quoting the CJEU.

Initiative of PiS MPs

The case was referred to the Tribunal on 17 September 2020 by PiS MPs Marek Ast and Przemysław Czarnek (currently Minister of Science and Education). They asked the Constitutional Tribunal to rule on the constitutionality of the provisions of the Act on the Commissioner for Human Rights. This applies to the extension of the term of office of the incumbent Commissioner in the situation where a new person has not yet been elected.

If the Constitutional Tribunal decides that this provision is unconstitutional, the government will delete it from the Act. There will no longer be any grounds for extending Bodnar’s mandate, whose term of office formally ended on 9 September 2020.

A battle is currently in progress in parliament over the election of a new ombudsperson. PiS has twice rejected Zuzanna Rudzińska-Bluszcz, a former employee of the Commissioner’s Office who was supported by hundreds of social organizations. In her place, it tried to push through the candidacy of the current Deputy Minister of Foreign Affairs, Piotr Wawrzyk. However, the Senate, which is dominated by the opposition, did not agree to his appointment.

According to Article 209(1) of the Constitution, the consent of the Senators is a necessary condition in the process of electing the Commissioner. Article 3, para. 6 of the Act on the Commissioner, which was contested by Ast and Czarnek, states that ‘the Commissioner to date holds his office until the new one takes office.’ PiS argues that this solution is in conflict with the principle of legalism contained in Article 7 of the Constitution.

Bodnar takes the position that the provision is consistent with the Constitution. As he emphasized in his letters to the Constitutional Tribunal, his removal would weaken the protection of rights and freedoms that the Commissioner is supposed to guarantee. In addition, similar provisions on the extension of the term apply to the heads of the National Bank of Poland and the Supreme Audit Office.

However, for the PiS government, Bodnar’s continuation in office is highly inconvenient, because the Commissioner and his Office meticulously monitor abuses of power, point out to unconstitutional ‘reforms’, and defend social groups marginalized by the authorities, such as LGBT people and refugees. This is almost certainly the reason for the attempt to end Bodnar’s term of office with the help of the politicized Constitutional Tribunal.

Others also to be removed

Bodnar has raised serious reservations about the legitimacy of this process and its possible consequences.

This is because it is unclear who would head the Commissioner’s Office in the situation where the Sejm and the Senate cannot agree on a successor. Bodnar has also already drawn attention to formal issues, demanding the removal of former PiS MP, Stanislaw Piotrowicz, and the ‘stand-in’ Judge Justyn Piskorski from the bench.

However, the Tribunal refused, arguing that Judge Piskorski’s status has already been confirmed by the Constitutional Tribunal, which consistently dismisses similar removal motions. In Stanislaw Piotrowicz’s case, the Tribunal stated that the ‘Commissioner Adam Bodnar’s subjective opinions’ about Piotrowicz’s statements from the time when he was an MP ‘are not relevant to the assessment of the independence of a judge of the Constitutional Tribunal’.