By Teodora Miljojković

On April 21, Review of Democracy and CEU Democracy Institute hosted Adam Bodnar, Polish Ombudsman and Professor at the Department of Public and International law at SWPS University of Social Sciences and Humanities. Adam Bodnar, as the President of CEU Michael Ignatieff noted in his welcoming comments, has been one of the strongest voices in the fight to preserve  the rule of law in Poland in the last several years. In conversation with Petra Bard, Head of RevDem Rule of Law Section, Bodnar discussed the challenges he has recently faced within his mandate as the Polish Ombudsman, as well as the broader issues of the rule of law crisis in Poland. 

Adam Bodnar’s 5-year mandate as the Polish Ombudsman expired last September, but he legally remained in office until now as the two houses of Parliament has not yet reached an agreement on his replacement. The politically compromised Polish Constitutional Tribunal ruled on April 15 2021 that the Article 3(6) of the Act on the Commissioner for Human Rights, that allows the previous Commissioner to fulfill their obligations until the new Commissioner takes up the position, is unconstitutional.  In effect, the Constitutional Tribunal ordered that Bodnar shall stay in office for only three more months.

The 5-member judicial panel was composed of judges who were elected exclusively by the PiS party, including Ms. Przyłębska, disputed President of the Constitutional Court and the judge Stanislaw Piotrowicz, who was formerly a key politician and the architect of the so-called “reforms” in Poland which caused the rule of law crisis. While serving as an MP, Piotrowicz openly criticized Bodnar’s work as the Polish Ombudsman, which is why his presence in this judicial panel was additionally controversial. 

Bodnar admitted that  the procedure before the Constitutional Tribunal and the ruling itself were very difficult for him, especially as the hearing was rescheduled and delayed ten times altogether. 

“It felt like this Sword of Damocles was constantly hanging above my head”, Bodnar noted. 

 Bodnar participated in the proceedings exercising his right as the Ombudsman and asserted that the provision which allows him to stay in office is in compliance with the Constitution. 

“For thirty years, nobody challenged this provision and suddenly there is a problem. Additionally, the same provision applies to the status of the President of the Audit Chamber and President of the National Bank of Poland”. 

Additional argument supporting the extension of Bodnar’s mandate until the vacancy is filled is that the right of Polish citizens to have access to the services of the Ombudsman’s office should not be interrupted. 

As the Court’s ruling was immediately published in the official journal, thus legally enforced, means that Bodnar will have to leave the Ombudsman’s office on July 15, without any legal recourse available to challenge such an outcome. 

“That is the whole drama of the situation. You may say all different things about constitutional courts, how much they are politicized and dependent on those who are transforming the democracy in a given country, but in the end, they produce binding legal outcomes. There was the same situation with the infamous judgement on access to abortion. The judgement has been challenged by thousands of people participating in demonstrations, but the ruling has been published, and there is no possibility anymore in the Polish legal system to terminate a pregnancy in case of genetic disease of the fetus”. 

 Bodnar asserted there is no international remedy for his situation either, other than a political one.

„In my opinion, all international organizations should make a strong statement that Poland should guarantee the election of the new Ombudsman in a constitutional fashion. That should be stated by the UN, Council of Europe, European Union and OSCE. If the new Ombudsman is elected in accordance with the Constitution, then maybe this judgement won’t be so painful.“

„What made Polish government and the Tribunal so angry with you, in other words, what are you most proud of during your term? What fights did you have to fight?“ Bard asked. 

Bodnar highlighted just a few controversial issues which he dealt with during his Ombudsman mandate, which could have made the government initiate this proceeding before the Constitutional Tribunal. Since 2015, Bodnar has been very much involved in the preservation of the rule of law in Poland on both national and international level. Secondly, he was involved in women’s rights casesand LGBT cases. Thirdy, Bodnar’s criticism of the manner in which last year’s presidential elections were organized was certainly not welcomed by the government. Lastly, Bodnar challenged the recent purchase of the biggest Polish media company Polska Press by  a state-owned oil company in front of the Competition Division of the Warsaw’s Regional Court. This proceeding has recently had its first positive outcomes, as the Regional Court decided to suspend the controversial transaction. 

„It seems to me that all the cases I initiated before the national courts in regard to the mentioned issues didn’t create a very good reputation for me within governmental circles“, Bodnar concluded. 

When asked to asses the EU’s efforts to mitigate the rule of law crisis in Poland, Bodnar stated he had „mixed feelings“. On one hand, the evergrowing case-law of the ECJ on judicial independence in Poland, the EU’s rule of law framework but also new rule of law instruments that the EU recently introduced have been all positive developments in that regard. On the other, the EU responses still seem „too little too late“. One of the examples Bodnar offered was the controversial Muzzle Law which introduced a direct punishment for regime-disobedient judges which the EU, even after one year, still hasn’t challenged before the ECJ. This is especially worrisome as the „Polish judges are the greatest defenders of the European Union membership of Poland“, Bodnar emphasized.

„It seems that some political concerns prevented the European Commission from acting as the Guardian of Treaties“.

Nevertheless, it’s never too late to make use of all the existing EU tools to preserve the rule of law in Poland if there is the political will for it. 

Finally, as RevDem editor Katarzyna Krzyzanowska noted, according to the latest polls, the Polish Ombusdman has been the constitutional institution which enjoys the highest trust of the Polish citizens. Even further, this trust has been rising for the last two years despite the lack of Ombudsman’s presence in the Polish media.

 „If the last week’s Constitutional Tribunal’s ruling paved the way to capturing one of the last independent institutions, where could we search for legal leadership in Poland?“, Kasia Krzyzanowska asked.

According to Bodnar, there is still hope that the person which replaces him will be elected in a constitutional manner, if the political and social pressures make that happen. If not, the legal leadership will be decentralized and dispersed among free independent thinkers who won’t shy away from confronting the unconstitutional actions of the PiS government. 

When his mandate of the Polish Ombudsman expires, Bodnar is planning to continue his work on the protection of the rule of law and human rights in Poland through public presence but also his professorship at the SWPS University of Social Sciences and Humanities.

Watch the whole interview: