“The collected material, both secret and public, does not allow to state that Lyudmyla Kozlovska poses a threat to the security of the state,” the Supreme Administrative Court stated. The politically persecuted president of the Open Dialogue Foundation can again apply for the right of residence in Poland.
The final decision of the Supreme Administrative Court issued on Monday, 5 December, should end the legal battle of the president of the Open Dialogue Foundation, Lyudmyla Kozlovska, for the right of residence in Poland, which has been on for more than four years. The Foundation is engaged in the defence of human rights, democracy and the rule of law in Poland and Eastern European countries.
“Let the State Come to a Stop: Let’s Shut Down the Government!”
The case has its origins in the events of 2017. Since then, the activist, the foundation and its employees have been targeted by services, the PiS party politicians and the media that support them. At that time Kozlovska’s husband, Bartosz Kramek published the article “Let the state come to a stop: let’s shut down the government” during the mass social protests against the PiS laws on the Supreme Court, the National Council of the Judiciary and the common courts. Referring to the experiences of the Ukrainian Maidan, Kramek recommended civil disobedience – from general strikes to a tent city in front of Jarosław Kaczyński’s house.
In August 2018, the president of the Open Dialogue Foundation was entered by the Head of the Internal Security Agency into the Schengen Information System and marked with the highest alert. This meant that the pro-democratic activist who had a Ukrainian passport was banned from entering most EU countries, including Poland. She found out about it when she landed at Brussels airport on her way back from Kyiv.
Since then, Kozlovska has been struggling to regain her rights, and she perceives the whole case as politically motivated harassment. She was supported by other European countries, granting her the right to stay on their territory. Such decisions were taken by Germany, Belgium, the United Kingdom, France and Switzerland. “In this way, they gave a signal that they did not agree to use international legal instruments to persecute someone whom the authorities of another country consider to be an inconvenient person. “This mode of action has been tried many times by Russia, which has used Interpol’s international arrest warrants against its political opponents,” said the activist.
Finally, the details of the president of the Open Dialogue Foundation were deleted from the Schengen Information System. Polish authorities were forced to remove Lyudmyla Kozlovska’s record. However, she still could not enter Poland and this is still the case today.
Defence without access to documents
It was still like in Franz Kafka’s novel – Kozlovska never learned the justification for the decision of the Internal Security Agency in her case, which hindered the entire defence process. The documents are classified. According to the ‘Wyborcza’ magazine, the activist, unofficially, knows that the basis for this action was a two-page report prepared by theservices based on propaganda materials and fake news from Moldova, Kazakhstan and Russia.
Despite the secrecy of the files, the president of the Open Dialogue Foundation won her cases before the voivodeship administrative court three times. In January last year, the Voivodeship Administrative Court in Warsaw once again overturned the decision to expel Kozlovska from Poland and also ordered the Office for Foreigners to reconsider her application for removal from the list of undesirable persons.
But that didn’t end it. In July 2021, the Voivodeship Administrative Court in Warsaw ruled on another case, this time concerning the decision of the Head of the Office for Foreigners who did not allow Kozlovska to stay in Poland as a long-term EU resident. Then, for the first time, the court agreed with the administrative authorities that Kozlovska’s stay on the territory of Poland was undesirable.
Kozlovska filed a cassation complaint with the Supreme Administrative Court. On Tuesday, December 5, the case had its finale. “For us, it’s a huge success. The Supreme Administrative Court overturned both the verdict of the Voivodeship Administrative Court in Warsaw and the decisions of the Head of the Office for Foreigners and the Mazovian Voivode in Lyudmyla Kozlovska’s case,” said attorney Joanna Koch, who represents the activist, in an interview for ‘Wyborcza’.
The verdicts were announced by the Judge-Rapporteur Małgorzata Miron, but were delivered by a three-member panel: Małgorzata Miron, Zdzisław Kostka, Grzegorz Rząsa. The Supreme Administrative Court has reviewed the classified material concerning the activist. The Court stated that there were no grounds for requesting that these documents be declassified, but at the same time issued a key decision: the secret and public material collected in this case does not allow to state that Lyudmyla Kozlovska poses a threat to the security of the state.
The Open Dialogue Foundation commented the ruling in its social media channels. “For the fourth time, an independent court has ruled that the expulsion of Lyudmyla Kozlovska from Poland and the European Union was unlawful and unjustified and that the ‘secret evidence’ gathered by the services was worthless. The authorities simply ignored the evidence, focusing on fake information from Moldova, Russia or Kazakhstan,” we read in the comment.
Following the verdict of the Supreme Administrative Court, Kozlovska may again submit to the voivode for a long-term residence permit in Poland. “So we’re back to square one. The administrative authorities should consider it, taking into account the decision of the Supreme Administrative Court,” says attorney Joanna Koch.
However, Lyudmyla Kozlovska does not believe that the final ruling will change her situation. “PiS have put so much effort into defaming me and our foundation that I don’t think they’ll suddenly change their mind and stop attacking us. What is likely to happen is what we have already experienced many times. The Polish authorities will continue to abuse the secrecy clause. They will prepare new classified ‘information’ about me that will form the grounds for another politically motivated refusal. This is the practice of authoritarian regimes – they go into denial, regardless of the facts. Nevertheless, I am happy with the decision of the Supreme Administrative Court, because it shows why it is worth fighting for free courts – said Kozlovska in her interview for ‘Wyborcza’.
What about the neo-judges?
Lyudmyla Kozlovska’s cassation appeal also contained arguments concerning doubts about the panel of judges from the Voivodeship Administrative Court that delivered the contested judgement. All members of this panel are nominees of the new, politicised National Council of the Judiciary. According to the Open Dialogue Foundation, the verdict was therefore issued by persons unauthorised to adjudicate, and Kozlovska was deprived of the right to an independent, unbiased and impartial court.
However, the Supreme Administrative Court did not share these doubts. The Court considered that there were no grounds to consider that the panel included non-judges. Is this a failure in the fight for the rule of law? – we asked attorney Joanna Koch. “We are focusing on the outcome that is favourable for my client. And the fight for the rule of law takes place on many fronts, including before the CJEU, and it brings results,” says the lawyer.
According to Kozlovska, the Supreme Administrative Court did not take up the neo-judges’ theme in order not to give the authorities reasons to attack. “Judges who unequivocally, uncompromisingly speak out against the breaking the rule of law pay a high price for this – are persecuted by those in power. This is supposed to have a chilling effect, so that subsequent judges do not decide to make such a confrontation. I understand this as a precaution, but if we are to protect the justice system, we need courageous people to do so. People like Waldemar Żurek or Maciej Ferek,” she said.