Last week, the media reported on the case of a woman who provided humanitarian aid and was accused of leading a criminal group and organising illegal border crossings (see the HFHR Board's statement). Together with Kolektyw Szpila, the HFHR is providing legal assistance to the woman. The Garwolin District Court decided to remand her in custody (with the understanding that she would be released from custody and placed under police supervision at the time of payment of bail). Both the woman's defence lawyers and the prosecution disagreed with this decision. Next week, the appeal against the use of pre-trial detention against the activist will be heard by a district judge who has been transferred to the Regional Court on a secondment from the Minister of Justice.
The District Court in Siedlce upheld the decision of the District Court in Garwolin on 27 September 2023, and Ewa was released from pre-trial detention. The court did not share the opinion of the prosecution arguing that the necessity of absolute arrest was due to the fear of obstruction of justice, and that a surety and police supervision were a sufficient preventive measure. The judgment is non-appealable.
The current mechanism for the transfer of judges to higher courts by the Minister of Justice has notably been questioned, inter alia, by the Court of Justice of the European Union (judgment of 16 November 2021 in Joined Cases C-748/19 to C-754/19). According to the CJEU, seconded judges lack the institutional guarantees of independence and impartiality necessary to avoid the risk of secondments being used to politically control the content of judicial decisions.
The CJEU noted that the Minister of Justice, who is also the Prosecutor General, has the authority over both the prosecutor and the seconded judge in a given criminal case, which may raise legitimate doubts among individuals about the impartiality of the seconded judge deciding such a case. The Minister of Justice has the power to second judges to higher courts and to dismiss them from their secondments at any time and without the obligation to give reasons for this decision. This means that during their secondment, the judges are not subject to the guarantees of independence and impartiality that should normally apply to all judges.
In this context, one should not lose sight of the fact that the Minister of Justice as well as other high-ranking officials of the Ministry have made unequivocal statements in the media regarding the allegations against the woman and have prejudged her guilt. Moreover, this case is being used by them for the purposes of the ongoing election campaign.
The Supreme Court has already recognised that circumstances may be sufficient to disqualify a judge from deciding a case that could raise reasonable doubts in the public mind about the judge's impartiality. It is also worth noting that the Minister of Justice/Prosecutor General has already used the power to suddenly remove judges from the secondment in the past, e.g. in the case of a verdict that contradicts the expectations of the prosecution.
The woman's defence team have filed a motion to remove the judge from hearing the case. The motion has yet to be considered.
The hearing to hear the appeal against pre-trial detention is scheduled for 26 September 2023 at the Siedlce Regional Court.