The procedure

The Commissioner for Human Rights is elected for a five-year term of office and appointed by the Sejm with the Senate’s consent.

A group of at least 35 MPs can nominate candidates, while the speaker of the Sejm can nominate one candidate. Consequently, as many as 14 candidates may be nominated – one person may be nominated by the speaker of the Sejm, while up to 13 candidates may be nominated by groups of at least 35 MPs (there are 460 MPs in Sejm). MPs may only support one candidate each.

A simple majority in the Sejm is sufficient for the election of the Commissioner. In the current term of office, PiS party (Prawo i Sprawiedliwość) has such a majority on its own – 236 MPs.

After the Commissioner for Human Rights is elected, the Sejm sends its resolution to the Senate. The Senate has a month to adopt a resolution on whether it accepts or rejects the person nominated by the Sejm. The failure to decide within the deadline means that the Senate accepts the nomination. If the Senate does not agree, the procedure restarts.

Adam Bodnar can stay for longer than his term of office

Article 3.6 of the Act on the Commissioner for Human Rights states that ‘the Commissioner for Human Rights to date holds his office until the new Commissioner for Human Rights takes office.’

On 22 July, ‘Rzeczpospolita’ reported that, as the next session of the Sejm will be held as late as on 16 and 17 September, the current Commissioner Adam Bodnar will hold his office for longer than his term of office.

However, information appeared in the Sejm’s schedule about a session on 7 August. The new Commissioner may be elected at this session.

If this happens, the speaker of the Sejm may immediately send the resolution to the Senate. In such a scenario, if the Senate were to take advantage of the whole of the 30 days to which it is entitled, it would have until 7 September to vote on whether it accepts or rejects the Commissioner for Human Rights approved by the Sejm.

Pragmatism or show of power

The ruling PiS could nominate a ‘technical’ or  ‘civic’ candidate to the office of the Commissioner for Human Rights who would be acceptable to the Senate. This would be advantageous for legitimising the new Commissioner in Poland and abroad and for the work of the Commissioner for Human Rights’s office and therefore also for citizens.

Civil society organisations representing various ideological options are collecting signatures for nominating Zuzanna Rudzińska-Bluszcz, a lawyer and the main coordinator of the strategic litigation team at the Commissioner for Human Rights’ office. Her candidacy is to be presented officially this week. In 2015, Adam Bodnar also received the support of civil society organisations.

It is likely that other ‘civic’ candidates will also appear. If the ruling majority were to decide to support one of these people who are acceptable to the Senate, the new Commissioner for Human Rights could be elected before 9 September, the last day of Adam Bodnar’s term of office.

The efficient succession and election of a person, who has not participated in or supported unconstitutional changes in the judiciary or changes that are in conflict with EU law, to the office of the Commissioner of Human Rights would be an advantage to the government in discussions with the European Union on the rule of law in Poland.

Especially in view of:

• the publication of country reports on the state of the rule of law in the 27 members states of the EU, which is planned for September;
• the ambitions of the German presidency to organise another hearing of the Polish government in the procedure of the political dialogue under Article 7 of the Treaty on European Union;
• as well as the specification of the conditionality mechanisms in the EU budget.

After all, the current government could further marginalise and reduce the annual budget of the Commissioner for Human Rights’ Office and the state authorities could refuse to work with the Commissioner. The Constitutional Tribunal may also not consider the Commissioner for Human Rights’ motions for years.

Some of the Commissioner’s duties would be performed by the government’s ‘human rights representative’, Dr. Hab. Marcin Warchoł, a close associate of the Minister of Justice Zbigniew Ziobro, who was appointed in December 2019.

However, for the time being, the ruling camp is not giving any signs that it would be prepared to accept a compromise. The leading PiS politicians, including PiS chairman Jarosław Kaczyński and the Minister of Justice Ziobro, spoke about taking an even harder line.

It is more likely that PiS will treat the election of the new Commissioner for Human Rights as a show of hegemony and a symbolic retaliation against Adam Bodnar as well as lawyers and civil society activists involved in the defence of the rule of law, which means there will be a ‘trench warfare’ between the Sejm and Senate in the autumn.

The Senate will decline successive commissioners chosen by the Sejm. The media supporting the government will write about the Senate’s obstruction.

Until this deadlock ends, Adam Bodnar will continue to hold the office. This will not be a precedent. Prof. Andrzej Zoll held the office of the Commissioner for Human Rights longer than his five-year term until. Janusz Kochanowski was elected in 2006.

However, PiS could amend the Act on the Commissioner for Human Rights, deleting Article 3.6 (‘the Commissioner of Human Rights to date holds his office until the new Commissioner for Human Rights takes office’).

There are also speculations about the Act on state institutions, which could also include the Supreme Audit Office and the National Council of Judiciary in addition to the Commissioner for Human Rights.

PiS could introduce the function of ‘acting’ Commissioner for Human Rights, which is not addressed in the constitution, as it did in the case of the Acting President of the Constitutional Tribunal (which current CT’s President Julia Przyłębska was in December 2016 for a short while) and Acting First President of the Supreme Court (this post was held in May 2020 by Kamil Zaradkiewicz and Aleksander Stępkowski, subsequently).

Who will PiS nominate?

The Commissioner for Human Rights tasks is protecting human and civil rights and freedoms, as specified in the Polish Constitution and other acts of law, including protecting the principle of equal treatment.

Article 2 of the Act specifies that ‘the Commissioner for Human Rights may be a Polish citizen who is distinguished by his legal knowledge, professional experience and high level of authority because of his or her moral values and social sensitivity.’

Adam Bodnar was elected in 2015 by the Sejm with 239 votes. He was nominated by civil society organisations. Bodnar previously held such positions as the vice-president of the Helsinki Foundation for Human Rights and lectured at the Law Faculty, University of Warsaw.

Many people have been mentioned as Bodnar’s potential successor since PiS’s victory in the parliamentary elections in October 2019. The current government reshuffle may bring new candidates.

An unofficial list of candidates that the ruling majority can put forward includes:

Prof. Dr. Hab. Jacek Czaputowicz – Minister of Foreign Affairs since January 2018, previously Undersecretary of State at the Ministry of Foreign Affairs. Professor of social sciences since 2016. He lectured at the University of Warsaw. In 2008–2012, Czaputowicz was the head of the National School of Public Administration (which, if interpreted to his favour, could demonstrate that he has the distinctive legal knowledge, which must be demonstrated by the Commissioner for Human Rights). After the presidential election in July 2020, Czaputowicz announced that he intends to leave the government and has the consent of the prime minister Mateusz Morawiecki for this.

Dr. Hab. Przemysław Czarnek – PiS MP, Lublin voivod in 2015–2019, lawyer, assistant professor at the Catholic University of Lublin, specialising in constitutional law. During the presidential campaign in June 2020, in a discussion on TVP about the rights of LGBT people, he said that ‘it’s time to stop listening to these idiocies about some human rights or some equality. These people are not equal to normal people so let’s finally put an end to this discussion.’

Jarosław Gowin – founder and president of the Polska Razem party, a coalition partner of PiS. Member of Parliament of the 6th (PO), 7th (PO), 8th and 9th (PiS) terms of office. Senator of the 6th (PO) term of office. In 2011–2013, Minister of Justice in Donald Tusk’s second government. In 2015–2020, he was the Deputy Prime Minister and Minister of Science and Higher Education.

Dr. Hab. Elżbieta Karska – a member of the Council of Europe’s European Commission against Racism and Intolerance (ECRI) since May 2020. Since 2014, the director of the Institute of International Law, European Union Law, and International Relations at the Cardinal Stefan Wyszyński University in Warsaw. She worked as an expert at the European Union Agency for Fundamental Rights, the OSCE Office for Democratic Institutions and Human Rights, and the UN Council’s Working Group on Business and Human Rights. She is the wife of the PiS MEP, Karol Karski.

Dr. Marcin Romanowski – Undersecretary of State in the Ministry of Justice, in 2016–2019, Director of the Institute of Justice Administration, in 2018–2019 proxy of the Minister of Justice for IT and Cybersecurity, as well as for the Justice Fund. In 2005–2007 and 2015–2019, he was an adviser to the Minister of Justice, Zbigniew Ziobro. Opus Dei numerary.

Dr. Hab. Marcin Warchoł – attorney-at-law, lecturer at the University of Warsaw. A close associate of Zbigniew Ziobro. He was appointed the government’s human rights representative in December 2019. Although Warchoł worked at the Ministry of Justice in 2015-2019, he also formally worked in the Commissioner for Human Rights Office, from where he was on unpaid leave. Warchoł was an assistant to the Commissioner Janusz Kochanowski and Ziobro’s assistant during the first PiS government in 2006–2007.

Who will the opposition support?

The Civic Coalition is considering nominating Sylwia Gregorczyk-Abram, an attorney-at-law and activist, co-founder of the Free Courts initiative, and the Justice Defence Committee (KOS), defending the rule of law in Poland, representing judges before Polish courts and the EU Court of Justice.

She successfully represented clients in many high-profile trials, including on blocking the distribution of ‘stop LGBT’ stickers by Gazeta Polska, and in Prof. Wojciech Sadurski’s trial in the action brought against him by PiS party.