The Polish Ombudsman’s fulfilment of duties after the expiry of the five-year term and until the appointment of the new Ombudsman K 20/20
On 15 April 2021, at 9.00 a.m., the Constitutional Tribunal delivered its ruling in the case concerning the application filed by a group of Sejm Deputies with regard to the Polish Ombudsman’s fulfilment of duties after the expiry of the five-year term and until the appointment of the new Ombudsman.
The Constitutional Tribunal adjudicated that:
I. Article 3(6) of the Ombudsman Act of 15 July 1987 (Journal of Laws – Dz. U. of 2020 item 627) is inconsistent with Article 209(1) in conjunction with Article 2 and in conjunction with Article 7 of the Constitution of the Republic of Poland.
II. The legal provision indicated in 'part I' will cease to have effect after the lapse of 3 (three) months from the date of the publication of this judgment in the Journal of Laws of the Republic of Poland.
The ruling was unanimous.
In accordance with challenged Article 3(6) of the Ombudsman Act of 15 July 1987 (Journal of Laws – Dz. U. of 2020 item 627), “the Ombudsman in office shall continue performing the duties until a new Ombudsman is appointed”.
In the context of constitutional regulations, the Tribunal considered matters related to the rule that a public office is held for a fixed term of office; hence, it ruled that the challenged provision was inconsistent with Article 209(1) in conjunction with Article 2 and in conjunction with Article 7 of the Constitution of the Republic of Poland. The rule that a public office is held for a fixed term of office, as expressed in Article 209(1) of the Constitution, is based on the principle of a democratic state ruled by law, i.e. Article 2 of the Constitution, as well as the principle that public authorities function on the basis of, and within the limits of, the law, as derived from Article 7 of the Constitution.
The Tribunal held that a given term of office constitutes a specified period the exceeding of which is inadmissible. This is meant as a guarantee granted to a given state official as well as to external parties making referral to the said official. What this entails for the state official is that s/he may exercise his/her powers within a certain time-frame, and for those contacting and/or working with the state official – this gives certainty that the said official is equipped with the said powers, since the time-limit for which the powers are vested in him/her has not yet elapsed. The Constitution clearly states that the term of office of the Polish Ombudsman is five years. The general referral in Article 208(2) of the Constitution of the Republic of Poland stipulates that the legislature has been entrusted with exclusive powers to regulate the scope of activity and modus operandi of the Polish Ombudsman. The internal structure of the provisions of the Constitution which introduce the Ombudsman as a state authority shows that the mode of appointing the Ombudsman as well as the length of his/her term of office do not comprise “the scope of activity and modus operandi” referred to in Article 208(2) of the Constitution of the Republic of Poland.
Taking account of the constitutionally specified powers of the Ombudsman and the powers granted to him/her in special statutory provisions, the Ombudsman constitutes a key state authority, established with the aim to support citizens who need such support the most, as they are at a loss, feel helpless, or are potentially disadvantaged, etc. as regards their position juxtaposed with the state and its activities.
Persons requesting the Ombudsman’s assistance assume that their applications or requests will be dealt with by an authority that does have legitimacy to act i.e. by an authority that is actually vested with granted powers to act – the powers granted for a time-limit that has not yet elapsed. Moreover, a similar presumption may be made by courts before which the Ombudsman appears as well as by participants in particular proceedings.
Making it possible for a citizen to question not only the Ombudsman’s competence to be involved in a given case, but also the status of the official in question as the Ombudsman in general – due to the infringement of Article 209(1) of the Constitution by the challenged provision – also entails that the challenged provision infringes the principle of legal security as well as the principle that public authorities function on the basis of, and within the limits of, the law.
With view to preserving the protection of citizens’ rights and freedoms, the Tribunal decided that the Tribunal’s judgment would enter into force after the lapse of three months from the date of the publication of the said judgment in the Journal of Laws. This is a period for the Polish Parliament to adjust the legal system to comply with the Tribunal’s ruling. Within the next three months, a statute should be adopted to address situations where the office of the Ombudsman remains vacant for some time after the end of the term of office.
As, in the course of analysing the case in question, the Tribunal confirmed the existence of defects in law the elimination of which is indispensable to ensure the coherence of the legal system of the Republic of Poland, the Tribunal also decided to notify the Sejm – in accordance with the procedure provided for in Article 35(1) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal – signalling that, apart from the unconstitutional provision, there were other analogous provisions concerning other authorities for each of whom a relevant term of office was specified by the Polish Constitution.
The composition of the adjudicating bench of the Constitutional Tribunal in the case: Judge Julia Przyłębska – Presiding Judge; Judge Stanisław Piotrowicz – Judge Rapporteur; Judge Justyn Piskorski; Judge Bartłomiej Sochański; Judge Wojciech Sych.