The legal status of the ombudsman in the Republic of Poland is researched in the article. Based on the Constitution of Poland, the other acts and the practice of ombudsman’s activities, the author analyzes the way of election, authority of the Ombudsman and its impact on the human rights issues in Poland.
Key words: the Republic of Poland, the Ombudsman, the Constitution of Poland, the authority, human rights issues.
The building of the most appropriate model of constitutional status of ombudsman in Ukraine requires the comprehensive analysis of the legal status of Ombudsman in the neighboring countries. Those countries use familiar legal system and have similar national and cultural features. One of such states is the Republic of Poland which is the growing leader in the East Europe. However, it should be noted that not all features of the Ombudsman activities and status in Poland have to be implemented in Ukraine. That is why the Ukrainian scientists have to study the legal status of Polish Ombudsman in the best way.
Poland was the first country in the post-socialist camp which introduced the institution of ombudsman – Spokesman of Civil Rights (hereinafter, Spokesman) or “Rzecznik praw obywatelskich” which operates from the 15th of July, 1987. It should be noted that the Polish legislator equates the “civil rights” and the “fundamental rights and freedoms”. That is why the Polish Ombudsman should be perceived as a body designed to protect the full range of the constitutional rights of Polish citizens not just civil ones in the narrow sense of the word as it can be mistakenly seemed based solely on the title of this institution.
The Spokesman is the parliamentary Ombudsman as far as he/she is elected by the Parliament. The right to nominate Spokesman for discussion and for the subsequent election belongs to the Head of the Polish Parliament or 35 deputies. Except of the abovementioned, the candidature of Spokesman has to be agreed with the Senate (the upper House of the Polish Parliament) .
The Spokesman directly accepts complaints from citizens. Though the Ombudsman is the authority of the unitary state, Polish legislation allows to found up specialized Ombudsmen (specialized in the children’s rights, women’s ones, sexual and ethnic minorities rights, etc). Apart from this, regional ombudsmen may be set up in Poland who should operate at the same level of regions as the administrative courts do.
The Spokesman is endowed with mandatory powers. The bodies to which the Spokesman appeal with recommendations regarding the violation of human rights must take appropriate measures in 30 days. Otherwise, the Spokesman gets the right to appeal to the higher authorities with a demand to use coercive means to carry out his/her recommendations.
The Spokesman reads out the annual report about his/her activities during the year at the meetings of Parliament. Besides, the Spokesman obtains the authority to form the Bureau of Spokesman to facilitate the preparation to cases. The Bureau consists of three members appointed by the Spokesman. One of the members must be a representative of the armed forces.
It is worth noting that the Spokesman owns equal, direct and absolutely unlimited access to any and all persons legally staying in Poland. The legislator did not set any special conditions for the realization of the humans right to appeal to the Spokesman such as the requirement of prior recourse to other legal remedies, etc.
In his/her activities the Spokesman is governed not only by the Constitution and laws of the Republic of Poland, international legal instruments, but also by the principles of fairness and feasibility. A vivid illustration of their application is fighting with bureaucracy in state agencies and local governments as far as this tendency does not violate human rights but violates the principle of expediency because of difficult access to governmental bodies of citizens [3; p. 27].
In case of violations, the Spokesman has a wide range of impacts including:
Appeal with providing recommendations to those who breaches someone’s rights.
Appeal to the higher authorities demanding to force hierarchically subordinated bodies to adopt the proposed measures.
The requirement to start criminal case and participation there in the same rights as the public prosecutor has.
Demanding to start the administrative proceedings.
The requirement to punish (whom?) or, alternatively, to cancel the decision.
Appeal to the body of the constitutional control for the clarification of the constitutionality of certain existing legal acts [3; p. 28].
As we see, the Spokesman does not have the right to initiate the criminal or administrative proceedings as, for example, the ombudsman in Sweden can, but may require these actions from relevant authorities. Taking into consideration the already mentioned principle of imperativeness of the Polish Ombudsman’s demands, such procedures are almost identical. In addition, the Spokesman can initiate the constitutional control proceeding.
It should be noted that the practice of the Polish Ombudsman shows tend to abandon the use of peremptory powers and apply the alternative (i.e. “Soft”) leverage. For this purpose the Spokesman produced a number of fundamental principles of its interaction with other state authorities, in particular the principle of “non-antagonism”: taking the least stringent measures from the beginning of the case and the intensification of effects only when necessary.
The Ombudsman in Poland has a great level of legitimacy and therefore – the society trust in Poland. Only for the first two years of the Spokesman existence (from 1988 till 1990) he received about 100 thousand applications and about 80% of them were complaints. In Poland third a year the official organ of the Spokesman – Bulletin of the Parliamentary Ombudsman – is published which shows the most important acts issued by the Polish Ombudsman, profile cases, submission to the authority of constitutional jurisdiction and so on. In addition, Poland has developed a practice of monthly press conferences of the Ombudsman [5; p. 28]. Undoubtedly, the high level of legitimacy of the Spokesman promotes the growth of its effectiveness.
The Ombudsman in Poland is a very significant legal institute. It is a body designed for conducting the parliamentary control over the governmental institutions dealing with human rights issues. The Ombudsman in Poland obtains the power to force the relevant authorities to initiate the criminal and administrative proceedings, to appeal to the Constitutional Court of Poland in order to check the constitutionality of the particular law.
Baglai M. The Constitutional law of foreign countries / M. Baglay. – M .: NORMA, 2004 – 380 p.
Constitution of Poland: [electronic resource] / Constitution of Poland. – access: http://www.sejm.gov.pl/prawo/konst/rosyjski/kon1.htm.
Martseliak О. The functions of the Ombudsman / O. Martselyak // Law and Security. – 2003. – № 2’4 – P. 61-66 .
Martseliak O. The Status of the Polish Ombudsman / O. Martselyak // Law and Security. – 2003. – № 2’2 – P. 25-29.
Naulik N. Ombudsman in Ukraine and Poland (comparative research): Ph. D. thesis / N. Naulik. – K., 2007. – 28 p.
Rud M. Ombudsman as guarantor of the human rights and freedoms / M. Rud // Law and Practice. – 2007. – № 9. – P. 8-11.
Shapoval V. Constitutional law in foreign countries / V. Shapoval. – K.: High School, 1997. – 338 p.