Will the Supreme Court approve the election? The battle for the Chamber of Extraordinary Control continues

Karol Nawrocki overtook Rafał Trzaskowski by 369,591 votes, winning the presidential election. This is the smallest difference in support between candidates in the history of the Third Polish Republic. The wave of electoral protests that have recently reached the Supreme Court is also exceptional. We are talking about the number of around 55 thousand complaints from voters, which perfectly reflects the scale of the dispute over the election result. Its temperature was also effectively heated by some politicians and lawyers, who almost directly spoke about possible electoral fraud.

This was related to reports of anomalies in the election results that appeared in some electoral commissions. They indicated that the results of both candidates could have been swapped or the number of votes could have been incorrectly assigned. KO MP Roman Giertych was particularly active in challenging the election results, filing a protest in this matter, demanding a recount of votes in all commissions. The sample letter he provided was used by over 49.5 thousand voters who filed identical complaints, but without success.

The Supreme Court left these protests without further action, as well as several thousand other letters that contained formal errors or did not contain specific allegations regarding irregularities in a given electoral commission. Only a dozen or so protests were deemed justified, but without affecting the election result. In making this decision, the court found errors in the counting and allocation of votes in a dozen or so commissions.

However, this is not the end of the procedure for resolving electoral issues; the Supreme Court still has the most important task in this regard, which is to pass a resolution on the validity of the elections. This is to be done on July 1 by the Chamber of Extraordinary Control and Public Affairs. It is this Chamber that, according to the Supreme Court Act, is responsible for approving the election result.

The hearing in this case is to begin at 1 p.m. and, unlike most decisions in election protest cases, it will be public. – The hearing in this case is always public and attended by the public. It is conducted by the full chamber and is chaired by its president. The hearing is attended by the prosecutor general or his representative, who presents a position on the course of the elections. It generally includes information on criminal proceedings conducted in the case of crimes against elections and an assessment of the election protests – explains the former chairman of the National Electoral Commission, president of the Supreme Court, Wiesław Kozielewicz.

As he explains, the chairman of the National Electoral Commission also takes part in this session, presenting his position on the validity of the elections. In addition, the reporting judge submits a report on the course of proceedings in the case of election protests. "These three elements, the report on the examination of the protests, the positions of the prosecutor general and the National Electoral Commission, are the basis for deciding on the validity of the elections. After reviewing them and holding a meeting, the full composition of the Chamber signs a resolution, from which dissenting opinions may of course be submitted. Moreover, after the presidential elections in 1995, five such dissenting opinions were submitted," says judge Kozielewicz.

The session ends with the announcement of the resolution and dissenting opinions in the Supreme Court chamber. - Importantly, this decision is final, not subject to any control, and no appeal is possible. The resolution is sent for publication and to the Speaker of the Sejm. It is on the basis of this resolution that the Speaker of the Sejm convenes the National Assembly to receive the oath from the new president - indicates the former head of the National Electoral Commission.

However, it is not obvious and unequivocal to everyone that the resolution of the Chamber of Extraordinary Control establishing the validity of the elections will be the basis for taking the oath from Karol Nawrocki. There is a lively dispute regarding the legality of this Chamber's rulings in electoral matters. Some legal circles and politicians of the ruling coalition claim that the Chamber of Extraordinary Control should not rule in electoral matters.

Among them is also the Minister of Justice – Attorney General Adam Bodnar, who in his positions on the election protests requested the exclusion of all judges from the Extraordinary Control Chamber from considering them and transferring these cases to the Labor and Social Insurance Chamber. He referred to, among other things, the rulings of European tribunals in which the status of the Extraordinary Control Chamber is questioned. Minister Bodnar filed a similar motion regarding the ruling on the validity of elections. His spokeswoman, Prosecutor Anna Adamiak, announced that if the case is not transferred to the Labor Chamber, the Attorney General will refrain from presenting his position on the validity of the elections.

As explained by Prof. Jacek Zaleśny, such conduct by the Prosecutor General will not block the possibility of the Supreme Court issuing a resolution on the validity of the elections. – The Supreme Court is not dependent on the conduct of the Prosecutor General, if he has been properly notified of the case and has an actual opportunity to present his position. The failure of a participant in the proceedings to appear or his failure to present his position does not affect the legal significance of the actions performed by the Supreme Court – indicates the constitutionalist.

Importantly, during the review of the election protests, the Attorney General also requested a recount of votes in almost 1.5 thousand district electoral commissions, where in his opinion irregularities could have occurred. However, the Supreme Court did not agree to this, nor to another request from the prosecutor's office to forward all the election protests to it in order to change its positions. As a result, the ballots were verified in a dozen or so district electoral commissions, and the Attorney General received 321 protests to review.

However, there may be a recount of votes in at least 296 more commissions. According to reports from “Gazeta Wyborcza”, a team is to be set up in the prosecutor’s office to verify the results in 296 electoral commissions, which the investigators are authorized to do. But could these actions lead to the invalidation of the presidential election results? Experts interviewed by “Rzeczpospolita” are skeptical about this.

Minister Bodnar himself seems to see no grounds for invalidating the elections, stating in a recent interview for money.pl: "We certainly haven't considered all the election protests and it hasn't been done properly or fully. However, I think that saying that the elections are to be invalid is a far-fetched statement."

He also added that Marshal Szymon Hołownia will have to take responsibility for what to do with the decision of the Extraordinary Control Chamber.

The question is, what will the Speaker of the Sejm do? Szymon Hołownia gave the answer at a press conference three weeks ago, saying that there is a presumption of the validity of the presidential election and if the Supreme Court does not rule the presidential election invalid, he will convene the National Assembly. He has until August 6, when Andrzej Duda's term ends.