POLAND: Judge defending freedom of assembly in Poland to be transferred to the family department

(Translated from Polish with DeepL – Polityka) Judge Łukasz Biliński, who is famous for establishing a settled case law, in which the distributed control of constitutionality is being exercised by polish judges dealing with protests, is to be transferred to the family department. – “I see this as harassment related to my legal decisions”, he says.

In the District Court for Warsaw City Centre, the department dealing with minor offences, in which Judge Biliński is ruling, is being liquidated. It will be merged with the penal department. But Judge Biliński is the only one to be transferred to the family department. This is the decision of the president of the court, Maciej Mitera, the president of the District Court for Warsaw City Centre, in parallel also the spokesman for the neo-KRS (KRS – National Council of the Judiciary, in which newly appointed, politically dependent, judges dominate).

“I confirm that today the president of the court sent a motion to the Board of the District Court to transfer me, without my consent, to the family department” – he says. – “They are transferring a colleague from the family department to the penal department, although she does not want that at all. I had already tried to be transferred to the penal department much earlier, and for this reason, I improved my professional qualifications by studying criminal economic law in 2017-18. The President gave me permission to do so and promised that my application would be reconsidered in the event of the liquidation of the criminal division. From this point of view, there is no point in transferring me to the family department”.

 Judge Biliński is one of the most famous “disobedient ” judges. He judged probably several hundred cases of street protests, counter-protests against the monthly “Smolensk accident celebrations”, placing words critical of the authorities at the walls, etc. He was a precursor invoking the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union in petty crime code cases. He paved the way for many judges, daring them to apply the Constitution in their judgements.

His judgments already became a historical milestone in polish judiciary. At the same time, he has never gone to any protest, made no public statements and ensured that his rulings were extremely meticulously substantiated. He was the one who ruled that the counter-protests of the “Citizens of the Republic of Poland” (Obywatele RP) group were not blocking legal assemblies because the monthly assemblies celebrating Smolensk plane crash were not public assemblies according to the law. This is because they were not open to an unlimited number of people. On the contrary, the authorities allowed only selected people and separated themselves with barriers. It was Judge Biliński who first – or as one of the first – ruled that the defence of the constitution and its rights could not be considered socially harmful, so it was not an offence.

The authorities have not found an excuse for disciplinary proceedings, which they have repeatedly used against judges who do not adhere to their instructions and participate in various civic activities, such as court marches in defence of their independence, legal training within the framework of the Constitutional Week in schools or educational simulations of hearings, e.g. at the “Przystanek Woodstock” rock Festival or voicing in public critical opinions on the authorities.

Transferring a judge without permission is a form of harassment already known from the times of communist regime in Poland (1945-1898). That is why the constitution (with exceptions) guarantees that judges cannot be transferred. At the moment, the transfer is taking place on a large scale – in connection with the merger of criminal departments in courts and the dissolution of penitentiary departments (which control the observance of the rights of convicted persons), initiated by the Ministry of Justice. The question is to what extent this is a simple reorganisation (its justification, as far as the improvement of work is concerned, is doubtful) rather than a pretext for harassing inconvenient judges.

Two years ago, the Law and Justice party broadened the possibility of transfers without consent, creating a new basis for it: “change of the scope of the judge’s duties” by the President of the court. And by depriving judges of the right to appeal to the relevant court against the decision to transfer. Now, the only possibility of appeal is filled by PiS neo-KRS.

The first victim of the new “change of the scope of duty” provision was another well-known judge, a former spokesman for the National Council of the Judiciary Waldemar Żurek. Called “Ziobro’s friend”, the new president of the District Court in Krakow, Dagmara Pawelczyk-Woicka, moved him from the appeal department to the first instance as soon as the law came into force. Judge Żurek appealed to the neo-KRS, in which Pawełczyk-Woicka is a member. His appeal was rejected. The written law did not foresee any further appeal, but based on the constitutional right to a court, judge Żurek appealed to the Chamber of Labour of the Supreme Court. Unfortunately, this one transferred the case to the Extraordinary Control Chamber filled with neo-KRS judges. There, the judge’s complaint was rejected. Against this case, the judges of the SN Chamber of Labour (Dariusz Dończyk, Jacek Gudowski, Wojciech Katner, Agnieszka Piotrowska, Karol Weitz, Mirosława Wysocka, Dariusz Zawistowski) recently asked preliminary (prejudicial) questions to the EU Tribunal of Justice concerning the legality of the appointment of judges to the Extraordinary Control Chamber: by the neo-National Council of the Judiciary, whose appointment is doubtful, and judges nominated by President Andrzej Duda, despite the fact that the NSA (National Administrative Court) ordered the suspension of their appointment.

 Judge Lukasz Biliński announces that he will follow in the footsteps of Judge Zurek.

The whole story takes place one day before the hearing at the European Union Tribunal of Justice on the questions of judges disciplinarily persecuted for their rulings: Judge Ewa Maciejewska from Łódź and Judge Igor Tuleya from Warsaw, on the compliance with EU standards of the right to an independent court of writing disciplinary regulations. And less than a week before the Tribunal of Justice judgement on early retirement of SN judges. And also nine days before the publication of the opinion of the Tribunal of Justice Advocate General on the legality of the establishment of the National Council of the Judiciary. The information about the harassment suffered by one of the best-known judges, which do not sentence according to the authorities wish, may not be without effect on the assessment of the state of the rule of law in Poland and the intentions of the Polish authorities.

Read more about the case (article in Polish)