Minister of Justice Adam Bodnar wants to introduce “his” president to the Court of Appeals in Warsaw despite the de facto failure to dismiss the current president of this Court, Piotr Schab. He could not be lawfully dismissed due to the negative opinion of the Board of the Court of Appeals in Warsaw, the order to secure claims issued by the Constitutional Tribunal, and the complete omission of the National Council of the Judiciary.
The website of the Court of Appeals in Warsaw (sa.gov.pl) displayed an announcement of the Court’s management, which was subsequently removed, which read:
We would like to remind, that on 17 January 2024 the Board of the Court of Appeals in Warsaw gave a unanimous negative opinion on the intention to dismiss the Judge of the Appellate Court Piotr Schab from the position of President of the Court of Appeals in Warsaw. Pursuant to Article 27 § 5a of the Act – Law on the system of common courts, if the opinion of the board of the appropriate court on the dismissal of its president or vice-president is negative, the Minister of Justice may submit the motion to dismiss, together with a written justification, to the National Council for the Judiciary. However, the Minister of Justice did not address the National Council for the Judiciary, which means that he was not entitled to dismiss Judge of the Appellate Court Piotr Schab from the position of President of the Court of Appeals in Warsaw.
We would like to emphasise that, in an interim decision of 27 February 2024 (ref. Ts 32/24), the Constitutional Tribunal suspended the validity of the decision of the Minister of Justice of 20 February 2024 No. DKO-I.565.30.2024 (point 1) and prohibited the Minister of Justice from issuing a decision to dismiss Piotr Schab from the position of President of the Court of Appeals in Warsaw in the future on the same legal grounds.
For this reason, among others, the said decision has no legal effect and Judge of the Appelate Court Piotr Schab continues to be the President of the Court of Appeals in Warsaw.
The management of the Court of Appeals in Warsaw has become aware of the collection of signatures by a group of judges in support of a motion to the Minister of Justice for the appointment of Judge of the Appellate Court Dorota Markiewicz as President of the Court of Appeals in Warsaw. We emphasise that the appointment by the Minister of Justice of anyone to the duly filled position of the President of the Court of Appeal in Warsaw – in the absence of legal effects of the “dismissal” from this position of JAC Piotr Schab and the interim decision of the Constitutional Tribunal – will fulfill the criteria of the offence of exceeding official powers (Art. 231 § 1 of the Penal Code).
Any of the judges who, in such circumstances, attempts to take up office will in fact only usurp the right to be the President of the Court of Appeals in Warsaw, which will also fulfil the criteria of the offence of exceeding official powers and misappropriation of a public function (Article 231 § 1 and 2 of the Penal Code in conjunction with Article 227 of the Penal Code in conjunction with Article 11 § 2 of the Penal Code), as well as the disciplinary tort.
The act of signing the letter is an incitement to commit a crime, which constitutes an offence under Article 255 of the Penal Code.
Also, the First President of the Supreme Court, Professor Małgorzata Manowska, pointed out that the actions of the Minister of Justice are contrary to the law:
The actions aimed at changing the management of the Court of Appeal in Warsaw are officially explained by those in power as a necessity to “restore the rule of law”.
However, it seems that the reasons for such an urgent takeover of this Court are less sublime:
– it was the judges of this Court who drew attention to the faulty empowerment of the prosecutors against whom decisions were made by the “acting National Prosecutor”, prosecutor Jacek Bilewicz;
– it is this Court that examines the complaints against the refusal to grant consent for operational control from all over Poland;
– it is this Court that has jurisdiction to hear appeals in many cases of politicians from the current ruling majority (the case of Slawomir N., the case of Senator Krzysztof K. or the former head of the PSL parliamentary club, Jacek B.);
– it is this Court that in 2013 changed the ruling of the District Court in Warsaw and acquitted Beata Sawicka of the charge of corruption, while at the same time recognizing that the then MP had indeed accepted a bribe from CBA agents posing as businessmen;
– it is this Court that hears the appeals against rulings made within the election procedures during the electoral campaigns.
