European court orders transfer of Warsaw judges to be suspended

The European Court of Human Rights (ECHR) has ordered the Polish authorities to provisionally reverse a decision to forcibly reassign three judges to a different department.

The trio – Marzanna Piekarska-Drążek, Ewa Gregajtys and Ewa Leszczyńska-Furtak, who have 20-30 years of experience in criminal law – were transferred from the criminal department of Warsaw’s court of appeal to the labour and social security department.

The decision was made after they refused to sit alongside judges chosen by the National Judicial Council (KRS) – the body responsible for nominating judges – after it was overhauled by the government to give politicians greater control over the body.

Various rulings by Polish and European courts have found the new KRS to be illegitimate and legal experts say that court rulings issued by judges nominated by it may be legally defective

Piekarska-Drążek, Gregajtys and Leszczyńska-Furtak justified their decision by the need to ensure the right to an independent court. However, the president of their court, Piotr Schab – who is also the top disciplinary officer for judges – accused them of “a longstanding refusal to perform fundamental official duties”.

When in August Gregajtys and Leszczyńska-Furtak were transferred by Schab, 1,500 other judges from across Poland signed letters in their defence, reported the Gazeta Wyborcza daily.

“The treatment of our colleagues is deeply objectionable and is perceived by us as disrespectful of the years of their hard work and as an attempt to create a ‘chilling effect’,” read one of the letters signed by over 100 active and retired judges from the Supreme Court and Warsaw’s court of appeal.

In the letter, the judges also drew comparisons between Schab’s decision and repressive actions taken by Poland’s communist authorities in the 1980s, “especially under martial law”. Schab. however, did not change his decision and subsequently also transferred Piekarska-Drążek.

The three judges brought their case to the ECHR and, in a decision published late on Tuesday, the European court provisionally suspended enforcement of the decision to transfer them to the labour department and prohibited their transfer without their consent to any other department.

“The ECHR ruling means that the judges are again assigned to rule in the criminal division of the court of appeal,” their lawyer, Piotr Zemła, told online news service OKO.press. The ruling is immediately enforceable and the three judges will now file a complaint against Poland to the ECHR.

According to Zemła, the ruling is unprecedented and, if the president and the vice-president of the court of appeal fail to implement it, they could face criminal liability under article 231 of Poland’s criminal code, which punishes those who abuse their power or fail to fulfil official duties.

Meanwhile, in Poland itself, another attorney representing the judges has filed a notice to prosecutors against Schab and his deputy, Przemyslaw Radzik, accusing them of exceeding their powers by transferring the judges without their consent, reports OKO.press.

The latest ruling marks a further development in the long-running dispute over the rule of law in Poland under the national-conservative Law and Justice (PiS) government, which has been accused by various Polish and international bodies of undermining judicial independence.

The issue has led the European to withhold billions of euros in pandemic recovery and cohesion funds from Poland, while it has also created confusion within the Polish legal system. Polling shows that a majority of the Polish public are opposed to the government’s reforms.

PiS, however, argues that its reforms have been carried out legally and that they have been necessary to make the justice system more accountable and effective.

In another landmark ruling issued yesterday, Poland’s Supreme Administrative Court found that the Constitutional Tribunal has lost the ability to adjudicate lawfully because it contains improperly appointed judges who “infect it with unlawfulness”.

 Main photo credit: STEFAN ROMANIK / Agencja Wyborcza.pl

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.