Will the head of the National Electoral Commission resign from his position? Interview with Sylwester Marciniak

At the end of August National Electoral Commission rejected the financial report of the electoral committee PIS from the 2023 parliamentary elections, the National Electoral Commission (PKW) alleged irregularities in the financing of the campaign by PiS in the amount of PLN 3.6 million. In connection with this, the entity subsidy for this party (almost PLN 38 million) was reduced by three times the amount in question, i.e. by approximately PLN 10.8 million. In addition, the almost PLN 26 million annual subsidy was reduced by PLN 10.8 million. PiS must also return the disputed amount, i.e. PLN 3.6 million, to the State Treasury. PiS filed a complaint to the Supreme Court against the decision of the National Electoral Commission.

This is not the end of PiS's financial problems. The party Jaroslaw Kaczynski there is a risk of rejection of the financial report for 2023 and, consequently, loss of the entire subsidy for the next three years, i.e. a total of over PLN 77 million.

The head of the National Electoral Commission, Sylwester Marciniak, addressed these issues in an interview with money.pl. He was asked how likely he thought it was that PiS would soon lose its entire subsidy for the remainder of this term of the Sejm.

– Article 38d of the Political Parties Act is of decisive importance here. It states that in the event of the rejection of the report by the National Electoral Commission or – in the event of a complaint against the decision to reject the report – in the event of the dismissal of the complaint by Supreme Court (SN) a political party loses the right to receive a subsidy in the next 3 years in which it is entitled to receive it. This period is counted from the beginning of the quarter following the quarter in which the report was rejected or the complaint was dismissed by the Supreme Court – he said.

Asked whether the decision would be made anew, Marciniak replied that “in a way, yes, because Article 38a of the Act on Political Parties strictly specifies that the National Electoral Commission, just as when settling accounts with committees, also when settling accounts with parties, has six months from the date of their submission of the report to make a decision”. – Rejection of such a report may be based on one of the eight premises indicated in Article 38a, section 2. One of them occurred in the case of PiS – as the National Electoral Commission stated in its resolution of August 29, the PiS election committee accepted prohibited non-monetary values, i.e. it was financed in violation of Article 132 § 5 of the Electoral Code – he explained.

Asked about a possible scenario that the National Electoral Commission, when considering the PiS party report, will most likely refer to Article 38a, paragraph 2, item 8, and on this basis PiS will lose the right to subsidies for the next three years, Marciniak said: “I agree”. – However, it will not happen immediately, in accordance with what is provided for in the aforementioned Article 38d of the Act on Political Parties – he declared.

Marciniak also explained in the interview the issue of the possible payment of the next tranche for PiS, which is due at the end of October. – If they appeal the decision of the National Electoral Commission, they will receive it – he said. – There was already such a case – specifically the Razem Party – which appealed a similar resolution of the National Electoral Commission taking away its subsidy to the Supreme Court. The Supreme Court referred the case to the Constitutional Tribunal, but the case lasted so long that the entire term of the Sejm had already elapsed, and the party spent the funds received – he added.

Asked if he expected a similar scenario, Marciniak replied that “the verdicts of divine courts and appellate courts are unfathomable”. – What will the Supreme Court do? It is difficult to predict – he assessed.

The head of the National Electoral Commission was asked whether, in his opinion, the scenario in which the Supreme Court appeals to the Constitutional Tribunal could prove to be a life raft for PiS. – It is possible. The question will be different – if the Supreme Court takes into account the PiS complaint, what will the National Electoral Commission itself do with it, when the regulations state that it is obliged to accept the party's report in such a situation – he stated.

– This has already happened in various matters, concerning, for example, the registration of an election committee or a candidate. However, the National Electoral Commission is a collegial body, and even in the event of an equal number of votes, my vote as chairman is not decisive – he pointed out. – At the moment, it is difficult to predict how individual members of the National Electoral Commission will vote. When adopting a resolution to reject the financial report of the PiS election committee, 5 members were in favor and 4 against – he added.

Asked what if the Supreme Court finds that it overturns the decision of the National Electoral Commission and that the PiS report should be accepted, Marciniak said that “if we read the regulation, it is unambiguous”. – If the Supreme Court finds the complaint justified, the National Electoral Commission should immediately decide to accept the financial report. And so the National Electoral Commission has done many times, changing its resolutions after the Supreme Court rulings. Now there may be a bigger problem, because a majority vote may pass a resolution that in the light of the case law of European courts, the National Electoral Commission is not a court – he explained.

When asked if the Minister of Finance Andrzej Domanski in such a situation he can say that “I do not have a letter from the National Electoral Commission, so I have no basis for the transfer”, Marciniak replied in the affirmative. – And in this way justify my lack of action. However, I hope that the members of the National Electoral Commission will apply the provisions of the Electoral Code. As the chairman, after the resolution is adopted by the National Electoral Commission, I will sign it, because this is also stated in the regulations – he added.

Referring to a possible scenario in which the Supreme Court finds that the NEC resolution was in order, Marciniak said that “a final court ruling binds not only the parties and the court that issued it, but also other courts and other state bodies.”

Asked about the annual reports of all parties, Marciniak said that “in the case of PiS it is practically 'automatic', the regulation is unambiguous”. – The reports of the other party committees have been accepted. And we are not going back to this, the provisions of the Electoral Code do not allow it – he added.

The head of the National Electoral Commission was also asked about the assessment of such a decision of the National Electoral Commission in the case of PiS. – For years, after every election, we have indicated that a number of electoral regulations need to be changed. I agree that what happened in the last elections, from an ethical point of view, exceeded acceptable limits. Only I always said: “please give us legal instruments” – he said.

– It is difficult to control on an ongoing basis whether someone has hung 100,000 posters instead of the 10,000 shown in the report, since our team for financing political parties and election campaigns consists of seven people. For example, Slovakia There is a separate commission for elections and a separate commission for controlling the financing of parties and election committees – he explained.

In response to the fact that PiS managed to intervene in the case within the framework of the currently applicable regulations, the head of the National Electoral Commission replied that “it happened by a majority vote of the National Electoral Commission members”.

– I will say this: in my opinion, this is an unclear and unprecedented situation. On the one hand, I agree that the financing of election committees and political parties should be meticulously accounted for and controlled. Regardless of who is responsible for this – the National Electoral Commission, the National Electoral Office or Supreme Audit Office – he said.

– On the other hand, we have a regulation giving the National Electoral Commission six months from the date of submission of reports to settle them, in this case until July 15, this deadline was not met and nothing is happening. For example, in the case of irregularities in the RCL under the leadership of Minister Szczucki, we rely only on the letter of the current president, and, in my opinion, rather vague explanations of Minister Szczucki, which he included in a 20-page letter. We have no other evidence. This means that as the National Electoral Commission, we accept responsibility for the fact that the letters and documents of one party are credible and have evidentiary value, and those of the other – we reject without any justification – he continued.

– I can say that we received a list of all cases that were recorded in prosecutors' offices in the electoral context during the last elections. There were over 60 of them. We do not have a single verdict, not even a final one. We have 5 indictments, but the remaining cases were dismissed due to the lack of elements of a crime. For us, the most “comfortable” situation would be if we had court verdicts, even if they were not final – he added.

Asked if he was thinking about resigning, Marciniak replied: “I'm wondering”. – That would be the easiest, but would it be the best? After the resolution on PiS, I received dozens of emails, some of them downright aggressive. And these were emails from both the left and the right – asking why I abstained from voting. And I abstained because I am in favor of downright meticulous control, but first of all we need to be given legal instruments for such control – he said.

Marciniak was also asked about the upcoming presidential election campaign in light of the recent decisions of the National Electoral Commission.

– Regardless of how the PiS case ends, it was important for me to make the political elites aware that the time of lack of responsibility for abuses in the election campaign is coming to an end. However, it is not only about the approach to the currently applicable regulations, but also about changing them, strengthening the staff and finances of the National Electoral Commission, which is also pointed out by non-governmental organizations – he said.

– I hope that pressure from this side will change the approach of the government. A relatively simple matter that has been waiting to be resolved for years is changing the boundaries of electoral districts. In October, a conference will be held with the participation of many non-governmental organizations, including the Batory Foundation, the Responsible Politics Foundation, which – I hope – will be an impulse for change – he indicated.

– At the first meeting on the reports of the electoral committees, I indicated that we cannot allow a situation in which electoral bodies will function as in eastern satrapies or undemocratic regimes, and will be used to eliminate opposition candidates or political parties that do not fit into the system accepted by some. And this is a great danger. This is also one of the reasons that encourages me not to make a decision to resign after all – he said.

Asked about the fact that Sławomir Mentzen is de facto already campaigning as the Confederation's candidate for president, Marciniak said that “we hear that what is not forbidden is allowed, because that is the assumption of such people”. – At most, we can admonish and appeal – he said.

Asked about a complete change to Polish electoral law, Marciniak said that “it is certainly worth considering changes to it, at least due to the development of new technologies, the Internet and social media”. – The only question is whether a completely new electoral code should appear. Since we have codification commissions for civil, criminal and family law, I see no obstacles to establishing such a commission for electoral law. Of course, there is a question of where to place it, because it certainly should not be in the Ministry of Justice or in the government in general – he stated.

– Besides, it is always the case that the ruling team makes changes to suit themselves and usually ends badly. It is possible that the Senate could be a natural place for such a commission. Besides, there have already been proposals for changes to the Electoral Code, this year I think three, concerning, for example, electronic signatures under candidacies – he added.

– Electronic collection of signatures for the presidential elections would be an interesting solution. But the question is whether it does not violate the rule that electoral law cannot be changed six months before the elections. Elections we will have the presidential elections in May next year, for example the first round could take place on May 11 and the second on May 25. Changes to the electoral law are certainly necessary, but since it will not be possible to do this before the next presidential elections, they should take place before the parliamentary elections. The electoral districts should also be changed, because 26 out of 41 electoral districts to the Sejm do not correspond to the current demographic situation in the country – he noted.