The Supreme Administrative Court ruled – contrary to what the services subordinate to PiS have claimed – that Kozlovska poses no threat to national security. The court overturned the negative verdict of the Voivodeship Administrative Court judges. This is the 4th ruling that is beneficial for the activist, but she still cannot return to Poland.
IN AUGUST 2018, the head of the Office for Foreigners, at the request of the services, entered Lyudmyla Kozlovska – the President of the Open Dialogue Foundation, a Ukrainian woman who has been living in Poland and Belgium for years – into the Schengen Information System (SIS) and marked her with the highest alert. This resulted in her deportation and a ban on entry into EU countries. Why is that? Because the Internal Security Agency, which is subordinate to the PiS party, considered Kozlovska a threat to the security of the country, concealing what exactly this was about.
Earlier, in 2017, her husband, Bartosz Kramek, the Head of the Open Dialogue Foundation Board, openly urged civil disobedience to PiS rule in the famous manifesto “Let the state come to a stop: let’s shut down the government!” From that moment on, he has become a public enemy to the PiS party and its propagandists. The victims of the attacks also included the foundation and its personnel.
Subsequent EU countries, following their own controls, admitted the activist to their territories, considering that she did not pose any threat. During the year, her details was erased from the SIS. In the Schengen area, Poland became the only country to ban her entry.
For the past 4.5 years, there has been a court battle in this case. Decisions favourable to Kozlovska with regard to her inclusion in the list of foreigners whose stay on the territory of the Republic of Poland is undesirable were made twice. Despite this, the authorities controlled by PiS – the Mazovian Voivode and the Head of the Office for Foreigners – refused to allow her to reside in the EU. In 2019, the Voivodeship Administrative Court overturned these decisions. The next round of refusals from officials subordinate to the PiS party was approved by the Voivodeship Administrative Court panel of three neo-judges – they considered Kozlovska’s stay in Poland undesirable, justifying it in a very laconic manner. Kozlovska filed a cassation complaint with the Supreme Administrative Court.
“… poses no threat to national security”
On December 5, 2022, the Supreme Administrative Court, composed of three judges (Małgorzata Miron, Zdzisław Kostka, Grzegorz Rząsa), overturned the last verdict of the neo-judges unfavourable to the activist, and thus the decision of the Mazovian Voivode in her case. The court also decided that Kozlovska should be reimbursed by the Head of the Office for Foreigners PLN 1407 for the costs of legal proceedings.
The verdict is final. No representative of the Office for Foreigners appeared neither at the hearings nor at the verdict.
“This is undoubtedly a huge success,” said the activist’s attorney Joanna Koch. “This is an important decision, because it means the cassation of the verdict of the neo-judges. And it shows that even I, as a foreigner, have the opportunity to win a case against PiS, who used the entire state apparatus against me. Without independent judges, I would not have had a chance” – said Kozlovska.
In the oral explanatory memorandum, the Judge-Rapporteur Małgorzata Miron stated that the court had taken note of the classified documents in the case. This is very important, because neither Kozlovska nor her legal representatives know what these documents contain – they are not allowed to get acquainted with these materials. This obviously significantly hinders their actions. “[Kozlovska’s – ed.] right to defence is limited, but this limitation is fully confirmed in the regulations” – the Supreme Administrative Court noted. And it accused the Voivodeship Administrative Court of establishing an “incorrect factual situation”. “The collected material, both secret and public, does not allow to state that Lyudmyla Kozlovska poses a threat to the security of the state. (…) This statement is too far- reaching.” In other words, the ban on the activist’s entry into Poland has no grounds in the evidence.
As the Supreme Administrative Court pointed out, the lower court did not even try to address the issue of state security in a more detailed manner, the violation of which was to be the reason for not granting Kozlovska a residence permit.
Neo-judges are OK
However, the Supreme Administrative Court rejected Kozlovska’s accusations regarding the composition of the court in the Voivodeship Administrative Court. “The mere fact that a possible procedure for the selection of candidates for judges by the National Council of the Judiciary may violate the law does not mean that such a judge or such a person who has become a judge is not a judge within the meaning of the Constitution, if the appropriate appointment has been given to them by the president” – explained Małgorzata Miron. She added that the case of each judge should be considered individually and “in great detail”, not “en bloc”.
The activist also applied for a change of the secrecy clause of the documents that are the basis for expelling her from Poland in order to be able to read them. The complaint in this regard was also dismissed by the Supreme Administrative Court. “This limits our ability to defend ourselves effectively and to respond to these allegations. We are navigating a bit in the dark without access to the case files,” emphasises Joanna Koch.
Kozlovska and Koch do not know how the president of the ODF is to threaten the security of our country, but they can guess what the Internal Security Agency could have gathered – “fake news from Moldova, Kazakhstan and Russia.” In order to overthrow them, the activist and the lawyer gathered documents to prove that Lyudmyla did not threaten the security of the country. What were they? For example, an elaboration on the so-called Moldovan report – Kozlovska and the ODF had previously offended the former Moldovan authorities with their anti-corruption and pro-opposition activities. The Moldovan authorities of that time launched an investigation against the ODF. However, when the oligarch Vladimir Plahotniuk lost power and fled the country, the proceedings were discontinued and no one
Kozlovska was also granted the right of residence in Belgium. “This means that the state also had to assess her potential threat to the Schengen zone’s security and did not notice it,” explains Joanna Koch. Several EU and EU-related countries (e.g. Germany, the United Kingdom, France, Switzerland) also granted her visas and invited her to speak about human rights violations in Poland, including in parliaments.
“They will continue (…) to destroy us”
Attorney Koch points out that after this verdict, Kozlovska found herself at the starting point, 4.5 years ago. First, the Mazovian Voivode – in the first instance of the administrative procedure – should issue a decision regarding Kozlovska’s residence permit. In a possible second instance, this will already be done by the Head of the Foreigners Office. The first one has a month for this. “But this is just a theory. In order to block Lyudmyla’s stay again, new material would have to be collected,” says her attorney. Similar information was given in the oral reasons for the judgement by the Judge-Rapporteur.
“We know that subsequent decisions may be negative, as the experience to date indicates. But we also believe that public administration bodies will take into account judicial decisions,” emphasises Koch.
Kozlovska admits that the verdict alone did not change anything in her situation.
The decision of the Supreme Administrative Court does not exhaust all the procedures that PiS may use against her.
“They’ll do anything not to let me in. For example, they will create another secret document to keep this going indefinitely,” she believes. Kozlovska feels that only a change of government in Poland will allow her to enter the country where she has lived for so long and whose language and culture she knows so well.
Why the pessimism? She points out that PiS and its services have already harassed the foundation in many ways for speaking in the European forum about the violation of the rule of law by the government – from a treasury audit, to an attempt to dismiss the management board by the Ministry of Foreign Affairs.
Lyudmyla’s husband, Bartosz Kramek, was accused by the Ziobro’s prosecutors office of, among others, certifying untruths in VAT invoices and laundering PLN 5.3 million. They kept him in custody for a few weeks and wanted to extend his arrest, which the court did not agree to. His passport was taken away, which prevented him from meeting his wife for almost half a year. As a result of the repression, the ODF had to relocate part of its activities to Brussels.
Even there, the rulers of Poland harassed the activists. The services subordinate to the PiS party, among others, pursued the Foundation in Europe using mechanisms created to track crime organized. For what? Because the satirical website “Sok z Buraka” managed by the ODF at that time, raised the question: “Hello @pisorgpl, why did Kaczyński get vaccinated out-of-turn?” In Belgium, for this reason, the foundation’s bank accounts were closed, cards were cancelled, and a contract was terminated. Most importantly, this innocent question was asked before the ODF even took over “Sok z Buraka”.
PiS MEPs also requested that Kozlovska and ODF members have their accreditations at the European Parliament revoked.
“They will continue to destroy us at all costs,” the activist comments.
The ODF is on the list of public enemies of the ruling party in Poland, also because the has brought 20 trials against very important members of the United Right political alliance (e.g. J. Brudziński, P. Jaki, M. Kamiński) and their propagandists (e.g. TVP, Gazeta Polska) for the untruths they report in the media about the ODF. Tomasz Sakiewicz, the head of the “Gazeta Polska” magazine, has already lost the trial twice, and MEP Dominik Tarczyński lost once – just like Maciej Wąsik, the deputy minister at the Ministry of Interior and Administration.
Resolution against states that abuse the SIS
For the fight for human rights in Kazakhstan and Moldova, as well as supporting sanctions against Putin, the ODF has already been subjected to repression by these countries. “However, Polish persecution was the most severe. Poland is a member state of the EU, so it is a big challenge to explain why we are being repressed here. The hunt for us has been conducted in many languages, and this was a strike against our reputation,” explained the president of the ODF. She gave an example: the foundation was recently deprived of a grant at the last minute, probably under the influence of information about the ODF spread by media controlled by the PiS party or heads of secret services in Poland. “Before, I helped people who were in difficult situations, and now I have been in such a situation since 2018”, she points out.
The case of Kozlovska’s expulsion from the EU by placing her in the SIS allowed to publicise the fact of abusing this procedure by states. In this way, foreigners prosecuted for politicalreasons are removed from the Schengen area, enter it and have no effective appeal procedures.
Kozlovska’s case became so famous that it contributed to the adoption of a resolution of the Council of Europe in October 2022 to protect foreigners from this type of persecution. “The aim of the recommendations contained therein is to, among other things, allow foreigners or their representatives at least partial access to secret files concerning them. Without it, it is difficult to appeal against false accusations prepared by secret services for political reasons,” Kozlovska believes.
A few days ago, in Sweden, the assassins of the Chechen ruler Ramzan Kadyrov murdered Tumso Abdurachmanov, a blogger and refugee from Chechnya (this was at least the first version – currently, there are rather reports of his disappearance, and even this information has not been officially confirmed by the Swedish police).
In any case, Poland refused him asylum. “His stay in our country was also blocked by the secret opinion of the Internal Security Agency, according to which he posed a threat to the security of the state,” Bartosz Kramek from the ODF pointed out.