It is likely that today Sejm will be voting once again on election of a new Ombudsman. If it is another failure in appointing of the new Ombudsman, the term of current one may be extended until the new representative has taken the office. It shall full comply with the applicable laws. Pending the voting results, may we remind you the most important information about the Ombudsman.
The right to present candidates for the Ombudsman is held by the Speaker of the Sejm and the group of 35 MPs. The Ombudsman is appointed by Sejm for the five-year term with the consent of the Senate. It is essential that she/he shall not be a member of any political party, trade union, or carry out public activities, that cannot be compatible with the dignity of the office. Furthermore, her/his operations shall be autonomous, independent from other state authorities and she/he is only liable to the Sejm upon the provisions set out in the Act. The Ombudsman shall enjoy immunity and her/his liabilities include notifying to the Sejm and Senate on her/his operations and reporting on the degree of respect accorded to the freedoms and rights of persons and citizens.
Ombudsman is a constitutional body. Pursuant to Art. 208, item 1 of the Constitution of the Republic of Poland – the Ombudsman upholds freedom as well as human and citizen rights set out in the Constitution and other applicable regulations.
Moreover, it is to be highlighted that anyone may request the Ombudsman to protect her/his freedom and rights. In this very case the legislator has applied the broadest term “anyone:, to define the scope of entities entitled to approach the Ombudsman. The objective scope of the request, referred to in Art. 80 of the Constitution of the Republic of Poland ought to refer to protection of freedom and rights infringed by the public authorities. Here, it is necessary to point out those infringements, in particular, resulting from acting or failing to act (inaction) of the public authority.
Turning to analysis of the Ombudsman Act of July 15, 1987, it is to be stressed out that when it comes to initiating of proceedings by the Ombudsman, this Act shall exercise both the principle of accusatorial procedure ( Art. 9, items 1-2a) and ex officio procedure (Art. 9 item 3). Proceeding may be initiated by the Ombudsman upon the request and ex officio. It is worth mentioning that Art. 11 of the Act stipulates that the Ombudsman shall be obliged to go through each request she/he has received, thus providing the requesting party with huge opportunities. Nevertheless, due to the number of requests submitted, going through them may be carried out with some help from employees of the Ombudsman’s Office (see art. 20, item 1 of the Act).
The Act provides for four proceeding scenarios related to the request submitted at the Ombudsman. In each of the four cases, the Ombudsman ought to inform the petitioner and the person this case refers to on her/his decision explaining how the request is going to be proceeded.
The style of Art. 11 of the Act indicates that the Ombudsman shall notify the petitioner and the person this case refers to on her/his decision. Therefore, the Act does not require that the Ombudsman shall deliver a detailed explanation of motifs, she/he based upon while taking the decision on the proceeding scenario to handle the case he had been addressed. At the moment the case has been initiated by the Ombudsman, following the investigation, the Ombudsman – unless she/he has detected any infringement of freedom and rights – shall explain the petitioner prerequisites of such statement (Art. 14, item 1 of the Act).
An interesting element of this case study is that persons not satisfied with the way this case is dealt with or it has been settled by the Ombudsman, shall lodge a complaint to the administrative court. However, settlement of requests addressed to the Ombudsman shall not be made in forms provided for in Art. 3 § 2 items 1-4 of the. The conclusion is that the evaluation of operations shall not be made by administrative courts, yet the above-mentioned competences are to be exercised by the Sejm and Senate, that are received from the Ombudsman. Nonetheless, such a follow-up assessment of the Ombudsman’s operations shall in no way affect individual cases of the requesting parties.
It is also worth adding that the regular person holds the public right to claim his complaint to be investigated by the Ombudsman, but the applicant shall not request her/his case to be handled in accordance with her/his demands.
The Constitution of the Republic of Poland of April 2, 1997 (Journal of Laws, No 78, item. 483)
The Ombudsman Act of July 15, 1987 (Journal of Laws of 2020, item. 627)
Act – Law on Proceedings before Administrative Courts of August 30, 2002 (Journal of Laws, No 153, item 1270 as amended)
Garlicki L., Zubik M. (editors), The Constitution of the Republic of Poland. Commentary. Volume I, Edition II, Warsaw 2016.
Trociuk S., The Ombudsman. Commentary, LEX 2007.