“The SCA notes that Article 3 (6) of the Act, according to which the Commissioner shall hold the position until it is taken over by a newly appointed Commissioner, ceased to be effective on 16 July 2021, pursuant to the Polish Constitutional Tribunal judgment of 15th April 2021 (case K 20/20) which found that the Commissioner cannot exercise his/her functions after the expiry of the five-year term.
The SCA notes that it is necessary that the constitutional or legislative text is set out the NHRI’s mandate, as well as the composition of its leadership body. This requires, but is not limited to, the inclusion of complete provisions on the NHRI’s appointment mechanisms, terms and conditions of office, mandate, and powers. The SCA considers this provision to be of central importance in guaranteeing both the permanency and independence of the Institution.
The SCA recommends that the CHRP advocates for changes to its enabling law to ensure that the position of the Commissioner for Human Rights does not remain vacant after the mandate of a Commissioner expires and that the selection and appointment process is launched in a timely manner.
The CHRP also informed the SCA that in the context of the selection process of a new Commissioner, there is wide media coverage about potential candidates, and that, in practice, civil society and NGOs actively participate in the debates related to the appointment procedures.
However, the Act does not require the advertisement of vacancies, nor does it specify a process to maximize the number of potential candidates from a wide range of societal groups to ensure pluralist representation. Also, the Act, does not describe how applicants are assessed on the basis of predetermined, objective and publicly available criteria. Finally, the Law does not formalize civil society participation/consultation in the selection process.
The SCA is of the view that it is critically important to ensure the formalization of a clear, transparent, and participatory selection and appointment process of the NHRI’s decision-making body in relevant legislation, regulations or binding administrative guidelines, as appropriate. A process that promotes merit-based selection and ensures pluralism is necessary to ensure the independence of, and public confidence in, the senior leadership of an NHRI.
The SCA recommends that the CHRP advocates for the formalization of the selection process for the Commissioner in relevant legislation, regulations or binding administrative guidelines, and for its subsequent application in practice. This should include requirements to:
a) Publicize vacancies broadly;
b) Maximize the number of potential candidates from a wide range of societal groups;
c) Promote broad consultation and / or participation, including of civil society, in the application, screening, selection and appointment process; and
d) Assess applicants on the basis of pre-determined, objective and publicly available criteria.
The SCA refers to Paris Principle B.1 and to its General Observation 1.8 on ‘Selection and appointment of the decision-making body of NHRIs’.”