This will be another high-profile case regarding the criminal prosecution of an independent judge by the National Prosecutor’s Office.  And as in the case of Judge Igor Tuleya – a symbol of free courts – it will reverberate around the European Union. This is the first time the National Prosecutor’s Office has requested permission to prosecute a Supreme Court judge for his judicial activities. It also strikes at a legal authority and Małgorzata Manowska’s most serious opponent for the position of First President of the Supreme Court, as well as against a defender of the independence of the Supreme Court.

In the case of Professor Włodzimierz Wróbel, similar emotions and twists of the tale can be expected to those in the case of the consent to detain Igor Tuleya. Because the panel of the illegal Disciplinary Chamber, which will decide on whether to lift Professor Wróbel’s immunity, is described by lawyers as inquisitorial to say the least.

The decision in this case will also show whether the Disciplinary Chamber will open the floodgates to a frontal attack on the three old Supreme Court Chambers, whose judges have shown that they will defend the independence of the Supreme Court. Professor Wróbel’s case is only a prelude for the National Prosecutor’s Office, which is conducting a larger investigation that could end in absurd criminal charges for as many as several dozen old Supreme Court judges, including the former president of the Supreme Court, Małgorzata Gersdorf.

What the National Prosecutor’s Office is prosecuting Professor Wróbel for

The internal affairs department of the National Prosecutor’s Office is requesting consent for lifting the immunity of Judge Włodzimierz Wróbel of the Criminal Chamber of the Supreme Court. The internal affairs department is a special department set up by PiS to prosecute judges and prosecutors. The prosecutor’s office wants the immunity lifted to press an unfounded criminal charge against the judge.

This is about one of the cases examined by the Supreme Court, in which Judge Wróbel was the judge rapporteur. In October 2019, the panel, of which he was a part, overturned the judgment of the Regional Court in Zamość of February 2018 regarding a man sentenced to 2 years’ imprisonment for ‘causing a fatal land traffic accident’.

According to the National Prosecutor’s Office, Professor Wróbel’s fault was that ‘Despite their obligation, they [the panel – ed.] did not check whether the sentence was already being carried out. Such steps were only taken after a phone call was made from a prison warden from the prison where the convict was incarcerated. The man illegally spent over a month in prison as a result of the omissions of the judges.’ According to the prosecutor’s office, Judge Wróbel forgot to issue an order to release the defendant from custody, as a result of which the man was still in custody for a month after the Supreme Court ruled in his favour.

It is for this that they want to press a criminal charge against him under Article 189, paragraph 2 of the Penal Code. Paragraph 1 states that ‘Whoever deprives a person of freedom shall be punished with imprisonment for between 3 months and 5 years.’ Whereas paragraph 2 states that ‘If the deprivation of freedom lasts more than 7 days, the perpetrator is punishable with a penalty of imprisonment for between 1 and 10 years’.

In addition to Professor Włodzimierz Wróbel, the prosecutor’s office also wants the immunity of two other judges from the Criminal Chamber to be lifted in order to press similar charges against them. They are Andrzej Stępka – he was the presiding judge in the case in which Judge Wróbel was the judge rapporteur – and Marek Pietruszyński.

In October 2019, Judge Marek Pietruszyński made a stay of the execution of the judgment of the Regional Court in Gdańsk from January 2019 ‘with respect to a man sentenced to 3 years and 3 months’ imprisonment for burglary and attempted burglary’. Likewise, in that case, no order was immediately issued to release the suspect from custody. He was released a month later. In the case of Judges Stępka and Pietruszyński, the Disciplinary Chamber has not yet set dates for hearings.

Supreme Court defends the prosecuted judges

However, the allegations being raised on the three Supreme Court judges by the prosecutor’s office are groundless. The Supreme Court took a stance on the case and issued a statement. It was signed by the First President of the Supreme Court. The statement says that employees of the Supreme Court were responsible for the breaches. This is because orders for release from custody have been executed by employees of secretariats for years.  They prepare them and give them to the judge or head of division to sign.

An investigation was conducted in this case at the Supreme Court and the head of the secretariat and her deputy, who was also the minutes secretary in both cases being investigated by the prosecutor’s office, were found guilty. Both were reprimanded. The manager’s penalty was cancelled for formal reasons. It was revoked by mutual agreement of the parties. The manager is currently working in one of the new Chambers of the Supreme Court. And as can be seen, someone interested Ziobro’s prosecution service in this case, which eagerly began to press charges.

He praised the authorities and will now decide on Professor Wróbel’s fate

The motion of the Prosecutor’s office to lift Professor Włodzimierz Wróbel’s immunity is to be considered on 6 May 2021 from 11 am. As it applies to a Supreme Court judge, it is to be examined by a three-person panel of the illegal Disciplinary Chamber. The judge rapporteur in the case is Adam Tomczyński. The panel also includes Jarosław Duś and Adam Roch. In an interview with OKO.press, the Disciplinary Chamber’s press officer, Piotr Falkowski, explains that Tomczyński was assigned to the case in the order in which the cases were received by the Chamber.

Adam Tomczyński is a controversial figure. He was a legal counsel before he was appointed to the Disciplinary Chamber by the new NCJ. He was active on Twitter and appeared on the pro-government TV Republika. He made himself known as an advocate of Ziobro’s ‘reforms’ in the courts, and made himself out to be a patriot. His activity on Twitter was described by RMF FM. Tomczyński, for example, continued to forward other people’s entries supporting PiS: ‘Warsaw citizens… don’t f**k it up’, ‘it doesn’t matter who you vote for on 21 October 2018, as long as it’s identified as PiS. So much for the right wing being divided’.

In the Disciplinary Chamber, Tomczyński is known for having illegally lifted the immunity of Judge Beata Morawiec from Kraków, the head of the Themis association of judges which is critical of Ziobro, under the cover of night. The prosecutor’s office wants to press two unbelievable charges against her.

Even earlier, Tomczyński was a judge. In the 1990s, he adjudicated in the bankruptcy division of the capital’s court which was headed by Judge Dariusz Czajka. This was a period when there were highly publicized and controversial company bankruptcies. Tomczyński was a member of the panel that declared the leasing company, CLiF, bankrupt. This judgment was later overruled by the Supreme Court, but CLiF never returned to its former greatness.

Tomczyński was also the judge rapporteur in the three-person panel that suspended Judge Paweł Juszczyszyn from Olsztyn, who was the first in Poland to implement the CJEU ruling and who wanted to check the legality of the new NCJ. The justification for this decision was announced by Tomczyński. It was harsh and was intended to be a preventive measure to create a chilling effect for other judges. It was also not very legalistic, sometimes resembling journalistic arguments.

Furthermore, Tomczyński was the judge rapporteur of the Chamber’s panel that lifted Prosecutor Józef Gacek’s immunity. The prosecutor fell into disrepute because he discontinued the civil part of the Smolensk investigation and did not see any grounds for charging the former head of the Government Protection Bureau, Marian Janicki.

Tomczyński ran for the office of president of the Supreme Court in May 2020 but failed miserably.

Former prosecutors associated with Ziobro

Jarosław Duś, who will also decide on Professor Wróbel’s immunity, worked in the National Prosecutor’s Office before his appointment to the Disciplinary Chamber. He was a director in Bogdan Święczkowski’s National Prosecutor’s office. Duś was penalized on disciplinary charges for slandering former Prosecutor General Andrzej Seremet. During the PiS government, he came out of retirement to work for the prosecutor’s office. Duś’s name appeared in the Lex Super Omnia association’s report on prosecutors who earn high incomes and are promoted thanks to their cooperation with Zbigniew Ziobro and his supporters.  Duś has been repeatedly rewarded financially.

The third person in the Chamber’s panel on Professor Wróbel’s immunity, namely Adam Roch, is a former prosecutor from Silesia, who was promoted under the current government. Roch was previously known for his investigation of lobbyist Marek Dochnal. It was recently recalled how he sent officers to obtain samples of handwriting from Dochnal’s company accountant, who was giving birth in hospital at the time.

However Roch surprised everyone on Thursday 22 April 2021. Because he refused to detain Igor Tuleya, whom the National Prosecutor’s Office is prosecuting for letting journalists in to hear a ruling that was unfavourable for PiS. Roch presented himself as an advocate of openness of cases in courts and civic control over the courts. He assessed that Tuleya had not committed any crime and suggested that the prosecutor’s office discontinue his case. Was he protecting himself in this way so that he would not face criminal charges in the future for Tuleya’s case? Did he not want to go down in history as the one who allowed Tuleya to be handcuffed? Or perhaps he behaved like a real judge?

The question is how Roch will now behave in Professor Włodzimierz Wróbel’s case.

Who is after the Supreme Court judges

Prosecutor Kamil Kowalczyk, who works on secondment at the National Prosecutor’s Office, may take part in the session of the Disciplinary Chamber in Professor Wróbel’s case. It was he who signed the motion to lift the immunity of the three Supreme Court judges.

Kowalczyk is a former military prosecutor from Poznań and Lublin. It was he who pressed criminal charges against Prosecutor Justyna Brzozowska while he was working for the Internal Affairs Department of the National Prosecutor’s Office, when she fell foul of her superiors because she did not want to conduct a sweeping investigation into the matter of restitution in Warsaw. Her investigations, which struck at the current government, were in the background. Brzozowska is also a member of the independent prosecutors, Lex Super Omnia.

Prosecutor Kowalczyk also handled the case of Judge Andrzej Sterkowicz from the Regional Court in Warsaw. The judge had previously fallen foul of the pro-government ‘Gazeta Polska’ newspaper. Journalists from that newspaper had lost lawsuits handled by Sterkowicz. Articles then appeared in ‘Gazeta Polska’ about family disputes between the judge and his ex-wife. And the National Prosecutor’s Office began to dig into Sterkowicz’s private affairs, and then pressed charges and indicted him. This was the internal affairs department’s first indictment against an independent judge.

Professor Wróbel will be defended on 6 May by several defence attorneys, including lawyers Sylwia Gregorczyk-Abram of the Justice Defence Committee and Agnieszka Helsztyńska. Both lawyers defend repressed judges.

Why the prosecutor’s office is attacking Professor Wróbel

The attack by Ziobro’s prosecution service on Professor Włodzimierz Wróbel is no accident. This is because he is a legal authority and lecturer at the Jagiellonian University. He heads the criminal law department at the Faculty of Law and Administration, which is a breeding ground for the best criminal lawyers. Professor Andrzej Zoll, Professor Piotr Kardas and the former Minister of Justice in the PO-PSL government, Zbigniew Ćwiąkalski, are associated with this faculty. Professor Wróbel is also the author of over 100 academic works. He was also recently awarded the title of ‘Civic Judge of the Year’.

In 2020, Wróbel was the most serious candidate for the position of First President of the Supreme Court, at the end of Małgorzata Gersdorf’s term of office. He was the only one with the support of the majority of judges from the Supreme Court Assembly. But the President put his faith in Małgorzata Manowska, former deputy of the Minister of Justice, Zbigniew Ziobro.

During the Assembly of Judges of the Supreme Court, at which candidates were selected to succeed Gersdorf, Professor Wróbel became famous for pointing out and sharply commenting on the actions of the Supreme Court ‘commissioners’ (acting presidents), namely Kamil Zaradkiewicz and Aleksander Stępkowski. It was then that he fiercely defended the independence of the Supreme Court and the rule of law.

It was also Professor Wróbel who justified the famous and historic resolution of the three combined chambers of the Supreme Court regarding the new NCJ and the illegal Disciplinary Chamber.

The National Prosecutor’s Office ambushed the old Supreme Court

Therefore, the attack on Professor Wróbel is spectacular for the National Prosecutor’s Office. It seized the opportunity by taking over an already clarified case from the Supreme Court to turn it into criminal charges. And now it can be a showcase to create a chilling effect for the remaining Supreme Court judges, ordinary court judges and the legal community. Because this is a signal that the prosecution will not back down from anything.

But the case of Judge Wróbel and two other Supreme Court judges is part of a greater attack on the old, legal Chambers of the Supreme Court, namely the Civil, Criminal and Labour and Social Insurance Chambers. The judges of these chambers have shown that they will defend the independence of the Supreme Court and have issued rulings questioning the status of the new NCJ and the Disciplinary Chamber. They are also the ones who submitted a number of requests for preliminary rulings to the CJEU regarding the changes introduced into the courts by Minister Ziobro, as well as the status of the new judges of the Supreme Court.

And this is what the National Prosecutor’s Office is interested in. It is conducting a broader investigation in which absurd criminal charges of allegedly overstepping powers could threaten as many as several dozen old SN judges, including former Supreme Court President Małgorzata Gersdorf. The prosecutor’s office has requested case files and information on judges from the Criminal Chamber and the Labour Chamber within this investigation.

This is because the prosecutor’s office is interested in the cases that the illegal Disciplinary Chamber wants to take over, including the precedent-setting actions against the new Supreme Court judges to establish that they are not judges. In this way, the National Prosecutor’s Office is putting pressure on the old judges of the Supreme Court, who apply the CJEU’s rulings, and is meddling in the Supreme Court’s adjudications. And it can use criminal law to hold them accountable for the application of the Constitution and the CJEU’s judgments, which are unfavourable to Ziobro’s ‘reforms’.

What the CJEU and Przyłębska’s Constitutional Tribunal will do

Professor Włodzimierz Wróbel’s immunity case may not be held on 6 May. Because a ruling is expected in a few days in which the CJEU will decide whether to freeze all of the Disciplinary Chamber’s judicial activity. This has been requested by the European Commission. The CJEU already suspended the chamber once, in April 2020, but the chamber interpreted this ruling narrowly and suspended only disciplinary cases of judges.

It is unclear how the Chamber will behave if the CJEU suspends it again. Because Julia Przyłębska’s Constitutional Tribunal is already supposed to decide on 28 April whether the CJEU’s interim measures apply in Poland at the request of the Disciplinary Chamber.

Who will consider the immunity cases of the remaining Supreme Court judges

It arises from our information that, although the Disciplinary Chamber has not yet set a date for hearing the motions to lift the immunity of two more Supreme Court judges, the panels have already been appointed for this.

And so, Judge Marek Pietruszyński’s immunity will be considered by the panel: Jacek Wygoda (judge rapporteur, formerly at the National Prosecutor’s Office, former director of the vetting office of the Institute of National Remembrance), Jarosław Duś and Małgorzata Bednarek. The last of these was previously working for the National Prosecutor’s Office. She became famous for accusing judges from Bielsko-Biała of an arrangement during the first PiS government, but the court set aside her allegations. She founded the Ad Vocem association of ‘Ziobrist’ prosecutors.

Bednarek was working on an Act on the prosecutor’s office subordinating it to the government and gave Ziobro a huge amount of power over the prosecutors. She is also the author of the legal question to Julia Przyłębska’s Constitutional Tribunal on the validity of the CJEU’s interim applications in Poland.

And the case of Judge Andrzej Stępka’s immunity will be considered by the panel: Małgorzata Bednarek (judge rapporteur), Adam Roch and Adam Tomczyński.

Translated by Roman Wojtasz

The text was posted in Polish at OKO.press on 24 April 2021.