Struggle for impartiality

Adam Bodnar

The political turmoil surrounding the judicial system is not just a matter for European debate on principles. How does the issue of judicial independence affect regular people? WBJ asked Poland’s Ombudsman, Adam Bodnar, how his job has changed in the current political climate, what problems regular Poles ask for help with, as well as the greatest challenges for his office

Interview by Ewa Boniecka

WBJ: You are serving as the Ombudsman in a difficult time, amidst controversial legislative steps that the government has been taking. Has it affected your job?

Adam Bodnar: Indeed, the job of the Ombudsman is not easy when the administration’s actions raise serious doubts as to their constitutional merit and international human rights obligations. You can see a deep imbalance building up recently between the state and its citizens. I address state bodies in these matters and I comment on the drafts of legislative bills.

I also always stress that the Ombudsman is not just for major issues that appear in newspaper headlines. We deal with all regular matters that people come across in their dealings with the state and public institutions. These are matters that have been the same for years, regardless of who is in office. I regret that real social injustice is rarely the subject of public debate.

Last year, the Office of the Ombudsman investigated 25,711 matters in total. In as much as 54 percent of those cases we explained to the applicants their rights and the measures available to them. The majority of cases dealt with criminal law and labor law, as well as social policy issues.

What kind of cases do regular Poles come to you with: personal injustices or professional problems? What do they expect of you as their Ombudsman?

The Ombudsman’s job is not to impose something on somebody. It is to raise issues, recommend solutions, create room for debate and explain. We are not regular counsels, we deal with human rights and freedoms and their infringements.

The scope of the cases that citizens come to us with is quite large. In 2017, a lot of cases dealt with the disabled and their carers; state support, judgements, living situation and pension benefits. There were also quite a few complaints from elderly people who fell victim to telemarketers or people impersonating representative of well-known companies.

Families and self-governments raised numerous questions about educational reform. We dealt with many disagreements between former spouses and life partners about custody rights, domestic abuse, spousal support and adjudications by family courts. The matter of transport exclusion – that is limiting the access to services or education due to insufficient public transport – is becoming an increasingly common problem. Also, inconvenient investments, the lack of odor regulations and environmental issues were also on the agenda.

There were also many complaints last year that revolved around court cases, their duration and judge partiality. More grievances involved the police. Citizens complain about the negative consequences they face for participating in public demonstrations, about the way police force acts in such cases, as well as about prosecutors being too repressive.

What about the economic sphere? What are the most common problems people face?

The number of complaints about public administration hindering economic activity has decreased substantially. Instead, there are now cases where people claim to have restricted access to public offices and institutions. Consumer rights infringements were raised on more than one occasion, too.

In a lot of cases, our intervention is what it takes for public bodies to take action and issue decisions, sometimes after years of delaying it. The Ombudsman’s office also frequently joins court proceedings that citizens instigate when they feel victimized by authorities, and courts often side with the citizens in such cases.

Do entrepreneurs also apply for your assistance when they feel their rights are violated?

The protection of constitutional laws is of great importance to Polish entrepreneurs. The Office of the Ombudsman verifies several thousand complaints in that area each year. They are mainly about tax regulation, administrative decisions and social benefits. It is particularly important for me that the rulings in uncertain situations should always be in favor of the taxpayer. For instance, I join them in proceedings before administrative courts.

Recently, the Supreme Administrative Court (NSA) ruled to uphold the appeal that our Office made in the case of an entrepreneur who had won a public tender for the coastal embankment reconstruction. The condition in the tender process was zero VAT tax for these services; however, after the company finished its work, the tax audit office levied a 23 percent VAT tax on the entrepreneur. Luckily, the NSA reversed the decision. I hope this judgement will be a signal for tax offices that they cannot repress entrepreneurs.

How often do administrative bodies respond to your interventions?

In 2017, I submitted 273 cases, including 115 that required legislative initiative to be taken. In most cases our Office receives a response, sometimes we can work together to correct the laws. But it is not the job of the Ombudsman to have people agree with us. We indicate a problem, protect constitutional values and human rights. That is the Ombudsman’s statutory role.

It does not, however, mean that citizens should remain silent, because it is in all of our hands to make sure our rights are respected. I think that now public pressure is particularly important. Let me remind you of last year’s mass demonstrations to protect the independence of the Supreme Court and the National Council of the Judiciary, after which the president vetoed the bills that had been adopted. Recently, the government ceased work on the public property vetting or the bill restricting public gatherings, which many people, including myself, had widely criticized.

Still, it is a fact that I often cannot get certain ministries to respond to my queries, even though they are mandated by law to do so. Missing these statutory deadlines for no reason should not happen in a democratic state of law. For example, I have been unable to receive a response from the Justice Minister since April regarding an important matter of providing a detained person with legal counsel the moment they are arrested. I indicated that it is necessary to include that right into law to ensure that those detained are not subjected to torture or inhumane treatment from law enforcement officers. That is what happened in Igor Stachowiak’s case – he died due to torture he was subjected to at a Wrocław police station in 2016.

What do you consider to be your greatest challenge?

I happen to serve as Ombudsman at a time when the constitutional order and court independence are being threatened. Some citizens may think that it doesn’t affect them personally but that’s not true. Can a debtor with a Swiss franc-denominated loan expect a fair verdict if the judge has to take into account the consequences of ruling against a de facto state-controlled bank? How are we to interpret what the justice system is doing if judges who implement the constitution for the benefit of the citizen could face disciplinary action? There are also other ways of exerting pressure on judges, like reassigning them to a different district or a different city.

The job of being a judge requires impartiality in their decisions and independence. If a judge is subject to political pressures and fears possible repercussions from the governing bodies if they fail to fall in line, citizens lose their right to impartial judgement. I do, however, hope that individual judges will be strong enough to continue to be impartial in their judgements despite being deprived of an institutional guarantee of independence. Indeed, we have a lot of courageous lawyers in our country – not only judges, but also attorneys, legal counsels and prosecutors. They know what our constitution means and they will not abandon our citizens in need.

As for me, I will not stop reminding the ruling elite about the human rights standards resulting from the Constitution of the Republic of Poland and from international obligations. That is my greatest challenge; it is a duty that my office mandates and that has been vested in me by Parliament.

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