by Łukasz Woźnicki, Gazeta Wyborcza

This applies to one of the most important courts in the country – the Court of Appeal in Warsaw, which hears appeals in cases against state institutions, adjudicates on high-profile criminal cases and those involving politicians, as well as controlling approvals for wiretaps.

43 judges believe there are ‘gross breaches of legal and ethical norms’ in this court. In a declaration they just issued, they accused the authorities of their court of this.

‘As judges adjudicating at the Court of Appeal in Warsaw, we consider it inconsistent with the good of the justice administration for a person who, by his actions, demonstrates an obvious disregard for the norms of constitutional and international law to continue to hold the position of court president in such a manner,’ they wrote. ‘The way in which the functions of the vice presidents are exercised by those who actively participate in these actions should be similarly assessed,’ they added.

The judges decided to issue this declaration when the court president prevented them from voting on a resolution of the same content that is critical of him. The General Assembly of Judges of the Court of Appeal, namely the self-government of judges, was able to adopt it in late April. ‘The court president declared that the resolution was political and prevented them from voting on it,’ we hear in the court of appeal.

The prohibition of the self-government of the judges to deal with ‘political issues’ was introduced by the so-called ‘Muzzle Act’ which was enacted by PiS. It was supposed to stop the assemblies from criticising the changes being introduced in the courts by PiS. Here, it was used to defend the president against criticism.

‘We don’t know to this day what was political in the resolution,’ say the judges, who issued an identical declaration instead of a resolution. It was signed by 43 of the 100 judges in the Court of Appeal. ‘We are coming out to publicly indicate the problems in our court,’ says one of the judges.

Disapproval, objection, condemnation 

‘The judges adjudicating in the Court of Appeal in Warsaw express their adamant disapproval and objection to (condemnation of) the actions taken by the President and Vice Presidents of this Court,’ the declaration reads.

Piotr Schab has been that president since last year. He is a so-called neo-judge who owes his promotion to the Court of Appeal to the NCJ, which was politicised by PiS. He was promoted to the position of court president by Minister of Justice Zbigniew Ziobro. The same minister had previously made Schab the chief disciplinary commissioner for judges in the country. Meanwhile, Przemysław Radzik, the second of the disciplinary commissioners appointed by Ziobro, was made the court’s vice president.

Commissioners Schab with Radzik became ‘famous’ for prosecuting judges who disagree with the restrictions on the independence of the judiciary. After their appointments as presidents, they started to introduce a new ‘order’ in the court of appeal. They transferred three experienced criminal judges with 20 to 30 years of experience, namely Marzanna Piekarska-Drążek, Ewa Gregajtys and Ewa Leszczyńska-Furtak from the criminal division to the labour and social insurance division. This was punishment for the judges after they refused to adjudicate with neo-judges and overturned their judgments, referring to the rulings of the CJEU and the ECtHR.

The European Court of Human Rights ordered Poland to suspend the effects of its decision regarding the transfer of the judges in December. ‘The interim measure will not be respected,’ responded the Polish government, which lawyers considered an unprecedented situation. This response was supported by Schab’s decision, who refused to comply with the ECtHR’s interim measure. ‘I conclude that there are no factual or legal grounds for implementing this recommendation,’ he stated.

‘Such an action is a gross breach of the Polish Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms,’ wrote the 43 judges in the declaration, because, according to the Constitution, the Convention on Human Rights, which is ratified by the state, is a source of universally applicable law in Poland. The failure to respect the ECtHR’s interim measures is a breach of the Convention, which the Strasbourg Court has confirmed in its rulings.

‘Contrary to the position of the President of the Court of Appeal in Warsaw, the ECtHR’s interim measures are binding on the state,’ emphasise the judges. ‘Despite the passage of more than four months and numerous requests from the legal community, the court president has not implemented the interim measure,’ they noted.

The 43 judges considered the mere transfer of the criminal court judges against their will to be illegal. ‘This decision is harmful not only to the court’s interests, but, primarily, to the interests of the participants of court proceedings, who are entitled to an efficient and fair trial,’ they wrote.

Illegal interference with rulings 

The second allegation made in the declaration is even more serious. It is ‘impermissible interference in the content of final rulings by people holding functional positions.’

According to the judges, such interference took place twice in the First Civil Division. They were allegedly committed by the deputy head of that division – a judge from a regional court who was pulled in to the Court of Appeal on secondment as part of the ongoing personnel changes there.

The judges give the case references of two cases in the declaration. They contained final decisions dismissing the prosecutor general’s request for a stay of execution. ‘These decisions were subsequently overturned ex officio and without legal grounds by the deputy head of the division,’ wrote the judges.

We learn that these were cases of abduction of children who the court of appeal had ordered to be returned to the country from which they were abducted. The prosecutor’s office applied for a stay of execution of these judgments, but its motions were dismissed – finally and without the possibility of appeal. Even so, the judgments dismissing the motions were later overturned by the deputy head of the civil division.

This happened when the court of appeal received a cassation appeal against the ruling ordering the surrender of the children submitted by the prosecutor’s office. Complaints are handled precisely by the deputy head of the division, who checks for shortcomings and, if everything is in order, forwards them to the Supreme Court.

Here, however, the deputy head overturned an order that was unfavourable to the prosecutor’s office, which withheld the release of the children. In doing so, he allegedly referred to a change in the circumstances of the case, although the judges believe that no circumstances had changed in this case.

‘The deputy head of the division sits down, acknowledges that circumstances have changed and grants the prosecutor’s office its request, which has already been examined. He acknowledges that it is possible to change a final decision of another judge outside the procedure. We have not encountered anything like this before,’ comments one judge. Another calls the situation an ‘unheard-of scandal.’ ‘This is absolutely illegal and outrageous,’ he says.

The judges notified the court president of the matter, but this allegedly did not bring the expected response. ‘The notified court president did not take any action,’ they wrote. ‘Groundless interference with final rulings undermines public confidence in the judiciary and compromises the authority of the court,’ they assess.

We asked the authorities of the court of appeal about the case and are waiting for a response.

Commissioner Schab will not deal with President Schab

According to the judges, President Schab was also alleged to have misled representatives of the college of the court of appeal. The judges write that this took place in January, when the college gave its opinion on the candidacy of his colleague, Michał Lasota, Ziobro’s third disciplinary commissioner after Schab and Radzik, who is applying for a nomination to the Court of Appeal.

The matter of his activities as a commissioner appeared during Lasota’s assessment. This included the high-profile case of Judge Paulina Asłanowicz. In her declaration about her activities in associations (judges have to file them in accordance with the Muzzle Act), the judge revealed that she belongs to an association. However, she did not give its name so as not to reveal the disease from which her child is suffering. Lasota disciplined her for that, which encountered an objection from the judges.

Before the vote at the college, Schab supposedly said that the case had been discontinued. But when Lasota was asked about this by Asłanowicz’s attorney, it transpired that this was not true. The proceedings were ultimately discontinued, but after the meeting of the college.

The judges at the college demanded that the minutes of the meeting be corrected, but, we hear, they were denied this. ‘It is unacceptable that the court president presents false information during the nomination process which can affect the evaluation of the given candidate,’ the 43 judges wrote in the declaration.

They add that Schab’s and Radzik’s combination of the functions of commissioners with those of presidents ‘essentially prevents the objective examination of the issues raised in this declaration.’ We hear from the judges that they would normally notify the disciplinary commissioner of the president’s actions. The problem is that the president of their court is the chief disciplinary commissioner for judges in the country.

‘What is the point of writing to Mr Schab as the commissioner about Mr Schab?’ asks one of the judges.

The article was published in Polish in Gazeta Wyborcza, May 14th 2023.