Judge Tuleya files a complaint with the ECtHR for his return to the court being blocked by Ziobro’s people

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Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.

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 Igor Tuleya, a symbol of the free courts, filed a complaint with the ECtHR because the court presidents nominated by Ziobro are not implementing the judgments ordering his return to work. Tuleya will also request a fine of PLN 15,000 and the arrest of the minister’s nominee



The article was originally published in Polish n 8 November 2022 at OKO.press.

 

The judge’s attorney, Professor Michał Romanowski from the University of Warsaw, has filed, on Igor Tuleya’s behalf, an application with the European Court of Human Rights, accusing Poland of breaching four articles of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

The application alleges that judge Igor Tuleya from the Regional Court in Warsaw, who was illegally suspended almost two years ago by the illegal Disciplinary Chamber, was deprived of the right to a trial before an impartial and independent court. Because the judge cannot appeal against orders of the court presidents refusing to reinstate him in office. Even though Tuleya has final court judgments ordering his reinstatement.

 

Furthermore, the application alleges that the court authorities are applying discriminatory and repressive practices with respect to Tuleya in connection with his professional activities outside court. It emphasizes that Tuleya was prevented from holding classes with university students and from broadcasting legal talks in the radio. This breaches the right of respect for his private life and the right of freedom to express his opinion.

 

‘This is now my third application to the ECtHR. None of them has yet been considered. But the latest application is proof that we are not surrendering and we are fighting to the end,’ Judge Igor Tuleya tells us.

 

He previously filed a complaint against Poland for the decision of the illegal Disciplinary Chamber of November 2020 lifting his immunity and suspending him from office. He also accused Poland for Minister Ziobro’s people initiating disciplinary proceedings against him. These matters are waiting for a judgment.

 

This is not all. The 7-day deadline for fulfilling the final court judgment to reinstate Tuleya passed on Tuesday 8 November 2022. This deadline was set by the court in the enforcement proceedings. The new president of the Regional Court in Warsaw, Joanna Przanowska-Tomaszek, a nominee of Minister Ziobro’s ministry, was supposed to reinstate the judge.

 

The judge’s attorney, Professor Romanowski, announced that, if the judgment is not performed, he will file a motion with the court to impose a fine of PLN 15,000 on the court president – she will need to pay this out of her own pocket – to be converted into arrest if she continues to block Tuleya’s return to court.

 

The reinstatement of judges unlawfully suspended by the illegal Disciplinary Chamber is one of the conditions for the European Commission to pay Poland billions from the National Recovery Plan. There are three more such judges. In addition to Tuleya, these are Judges Piotr Gąciarek and Krzysztof Chmielewski from Warsaw and Maciej Ferek from Kraków. A further dozen or so independent judges are still being threatened with suspension.

 

Why Tuleya was suspended

Judge Igor Tuleya is one of the judges hated most by the right wing MPs in Poland. The right wing MPs dislike him for his brave judgments, in which he was not scared of criticizing the PiS authorities. They do not like him for criticizing Minister Ziobro and his people in the media and for strongly defending the rule of law.

 

That is why he was suspended by the illegal Disciplinary Chamber in November 2020, which cut his salary by 25%. The chamber simultaneously lifted his immunity because the National Prosecutor’s Office wants to press an absurd criminal charge against him for allowing journalists to attend the announcement of a ruling that is critical of PiS.

 

In the ruling, the judge ordered the prosecutor’s office to conduct an investigation – the prosecutor’s office had previously discontinued the case – into PiS’s vote on the budget in December 2016. The deliberations were then moved to the Sejm’s Column Hall because of the protests from the opposition MPs. There, however, access was obstructed for the opposition MPs, voting records were rewritten, and there may not have been a quorum in the hall. Tuleya pointed all this out in his ruling and the whole of Poland saw it, because there were journalists at the proclamation of the ruling.

 

In principle, rulings examining complaints about the refusal or discontinuation of an investigation are passed behind closed doors. However, the Criminal Procedures Code allows a judge to decide whether or not to make a court hearing in the case public. And Tuleya exercised this right. But the criticism of the PiS MPs must not have been liked in the ruling camp. That is why Zbigniew Ziobro’s prosecutor’s office started to prosecute him. Whereas the whole matter looks political. All the more so that the Disciplinary Chamber in the first instance did not want to give its consent to prosecute Tuleya, and it was only the Chamber in the second instance that lifted his immunity.

 

However, Tuleya does not recognize the Chamber as a legal court, which is confirmed by the judgments of the ECtHR and the CJEU, but also by the Polish Supreme Court and the Supreme Administrative Court. That is why he did not appear when summoned by the prosecutor’s office, when they wanted to press a criminal charge against him. That is why the prosecutor’s office applied to the Chamber for permission to detain him and to have him forcibly brought in by the police. But Adam Roch of the Disciplinary Chamber did not agree to this. This is because he considered that the judge had not committed a crime and suggested that the prosecutor’s office should discontinue the case.

 

The prosecutor’s office appealed and its appeal will be heard on 17 November 2022 by the new Chamber of Professional Liability of the Supreme Court, which replaced the liquidated Disciplinary Chamber. The case is to be examined by a panel of legal judges of the Supreme Court. Judge Tuleya will stand outside the Supreme Court’s building at that time, just as he did on the day that Adam Roch did not agree to his detention. He will be defended in the courtroom by Attorneys Jacek Dubois, Bartosz Tiutiunik and Michał Zacharski.

 

[editor’s note: on November 29, 2022, the new Chamber of Professional Liability in the Supreme Court has disapproved the detention of Judge Igor Tulea of the Warsaw District Court. It also reinstated him to adjudication. – Judge Igor Tuleya did not commit any crime, it stated.]

 

 

How Tuleya fought for reinstatement

Judge Tuleya has not been frightened either by the repression or by prosecution by the prosecutor’s office. He is still defending the free courts, meeting with citizens and criticizing the appropriation of the courts by PiS. This is why he is one of the symbols of free courts.

 

Tuleya applied to the labour court for reinstatement. The basis of the claim is that the Disciplinary Chamber did not suspend him because it is not a court. This arises from numerous judgments of the ECtHR, CJEU, the Supreme Court, the Supreme Administrative Court and the ordinary courts. And in March 2022, the Capital’s Regional Court in Warszawa-Praga issued a final order, as so-called security, to allow him to perform his official duties.

 

The security protects the judge’s rights for the duration of the action filed against Tuleya’s own court. This security was issued by a bench consisting of: Iwona Wróblewska-Pokora (presiding judge and judge rapporteur in the case), Paulina Wawrzynkiewicz and Anna Wrembel-Woźniak.

However, the court authorities of that time, namely Court President Piotr Schab and his deputy, Przemysław Radzik, did not fulfil this order. They believe the illegal Chamber’s decision to suspend the judge is still in force. They are also both Minister Ziobro’s disciplinary commissioners and are prosecuting independent judges for any reason whatsoever, including Igor Tuleya, by initiating disciplinary action against him.

 

The new president of the Regional Court in Warsaw, Joanna Przanowska-Tomaszek, wanted to admit Tuleya to work in August 2022, but her decision was quickly overturned by Przemysław Radzik. He did this as the vice-president of the Court of Appeal in Warsaw, where he was promoted together with Schab (he is the court president). Radzik overturned the decision that was favourable for Tuleya within the framework of administrative supervision. Since then, President Przanowska-Tomaszek has been disregarding the court’s ruling and has been blocking Tuleya’s return to work.

 

That is why Tuleya applied to the court for the enforcement of the court’s security for the reinstatement of the judge. And the court gave the court president seven days to do so in October 2022. This deadline is just passing. If Tuleya is still unable to work, He plans to file another application with the court to impose a PLN 15,000 fine on Przanowska-Tomaszek, to be converted into arrest if she still does nothing.

 

Tuleya is one of three judges suspended by the Disciplinary Chamber, who have been reinstated by the court as a security measure. The first was Paweł Juszczyszyn from the District Court in Olsztyn. In turn, his return was blocked by the president of the court in Olsztyn, Maciej Nawacki, who is simultaneously a member of the illegal neo-NCJ. However, Juszczyszyn has already returned to work, because his suspension was overturned by Adam Roch of the Disciplinary Chamber.

 

Judge Piotr Gąciarek of the Regional Court in Warsaw also has security for reinstatement. But the new court president is not implementing this ruling. For this, just like Radzik, Lasota and Nawacki, she is exposing herself to criminal and disciplinary liability in the future.

 

The Disciplinary Chamber’s decision on suspension was also recently contested by Judge Maciej Ferek of the Regional Court in Kraków. However, he was granted security, in which the District Court in Rzeszów ordered his court to pay him half of the salary unlawfully reduced by the Chamber. The court ordered this because it acknowledged that he had not been suspended. If the new president of the district court in Kraków, Bartłomiej Migda, does not fulfill this ruling, Judge Ferek will refer the matter to the bailiff.

 

How Tuleya is complaining about Poland to the ECtHR

Despite rulings of the labour court that are favourable for the suspended judges, Minister Ziobro’s nominees in the courts – the court presidents – are blocking their return to work.

 

That is why Igor Tuleya filed an application with the ECtHR, accusing Poland of breaching four articles of the Convention for the Protection of Human Rights and Fundamental Freedoms. And so, by the decisions of Minister Ziobro’s people in the courts, Poland has breached:

 

Article 6 of the Convention, which guarantees citizens the right to a trial before an independent and impartial court established by law. Tuleya has been deprived of this right because he cannot appeal against the decisions of the court presidents refusing to allow him to work and against Radzik’s and Schab’s decision revoking his admission to work in August 2022 granted by the new president of the regional court. This is because the law does not envisage the possibility of challenging them.

 

Article 8 of the Convention, which guarantees citizens the right to respect for private and family life. This happened in 2021 by Tuleya being prevented from holding classes with students at the Kozminski University as well as from broadcasting legal talks in Halo.Radio. Furthermore, he was prevented from holding training sessions in court. The vice-president of the regional court of the time, Przemysław Radzik, was behind these decisions. The 25% reduction in the judge’s salary by the illegal Disciplinary Chamber is also interference in the judge’s private life. However, the judge has not given up. He is still broadcasting talks and holding classes at the university under the threat of disciplinary action, because, after protests, the Kozminski University withdrew from its earlier severance of the cooperation as a result of Radzik’s prohibition.

 

Article 10 of the Convention, which guarantees the right to express an opinion. It was breached with respect to the judge through his prohibition by the court authorities to broadcast legal talks in Halo.Radio.

 

Article 13 of the Convention, which guarantees the right to an effective remedy. Meanwhile, Tuleya cannot appeal against the decisions of the court presidents which are blocking him. They are non-appealable.

 

Professor Michał Romanowski, who filed a complaint on Tuleya’s behalf, tells OKO.press: ‘I want to demonstrate before the ECtHR that the lack of remedies with respect to the orders of court presidents breaches the right to a trial in court guaranteed by Article 6 of the Convention and the right to have an effective remedy, to which in turn Article 13 of the Convention refers. Judge Tuleya is also experiencing unprecedented harassment, bullying and humiliation. Piotr Schab and Przemysław Radzik have been consistently pursuing a strategy of destroying Warsaw judges, the latest example of which is the repression of judges from the Court of Appeal in Warsaw.’

 

Professor Romanowski refers here to three judges who have been transferred as a disciplinary punishment to the labour division for implementing ECtHR and CJEU judgments. These are Judges Marzanna Piekarska-Drążek, Ewa Gregajtys and Ewa Leszczyńska-Furtak. They are also experiencing disciplinary action for this. Just like a fourth judge of that court, Dorota Tyrała. Schab and Radzik, as the new court authorities, are behind these reprisals. And the disciplinary action is being conducted by the deputy disciplinary commissioner, Michał Lasota, who prosecutes judges, together with Schab and Radzik, as Minister Ziobro’s disciplinary commissioners.

 

In the complaint to the ECtHR, Professor Romanowski also argues that, in the case of Tuleya, Ziobro’s people breached a number of provisions of the Constitution guaranteeing a judge’s independence and irremovability from office. That his suspension is a punishment and is meant to be a warning to other independent judges in Poland that these will be the consequences of defying the political will of the current authorities.


All of Tuleya’s applications to the ECtHR

This is Igor Tuleya’s third application to the ECtHR. He filed the first in 2020 as a result of further disciplinary cases being brought against him for meeting with citizens and for criticizing Minister Ziobro and his people. He filed the second in 2021 for the Disciplinary Chamber’s decision to suspend him from office and lift his immunity. In that complaint, the Court will address the status of the Chamber and the legality of the judge’s suspension.

 

Tuleya has a chance of winning in Strasbourg. Because the first judge suspended in Poland, Paweł Juszczyszyn from Olsztyn, recently won his case there. The Court ruled in October 2022 that the Polish authorities had breached the Convention by prosecuting the judge for having implemented the CJEU’s judgment from November 2019. The judge was suspended by the illegal Disciplinary Chamber for executing it and disciplinary action was taken against him for that.

 

The ECtHR ruled in his case that Articles 6, 8 and 18 of the Convention had been breached. The Court held that his suspension was illegal and breached his right to respect for his private and family life. Because Juszczyszyn was deprived of the right to practice the profession of judge. The Court held that the suspension was intended to discourage other judges from examining the legality of the neo-NCJ, which is what the judge wanted to do on the basis of the CJEU judgment. And Poland is to pay Juszczyszyn 30,000 euros compensation for that.

 

This is not all. In December 2022, the CJEU is to address Igor Tuleya’s questions requesting preliminary rulings, which he sent on the same day that the illegal Chamber suspended him. Tuleya is asking the CJEU whether the Disciplinary Chamber can suspend judges and lift their immunity. Similarly, Judge Piotr Gąciarek (who did this before he himself was suspended for applying EU law) also asked questions on the back of Tuleya’s removal from office. In turn, Gąciarek asked the CJEU whether a court president can, among other things, remove a judge from office. The CJEU will examine both questions together in December 2022.

 

Poland is not getting billions from the National Recovery Plan because of Ziobro’s people

By not implementing court rulings challenging the decisions of the Disciplinary Chamber to suspend judges, the court presidents appointed by Minister Ziobro are blocking the payment of billions of euros to Poland from the National Recovery Plan. This is because reinstatement by them is one of the conditions for the European Commission to unblock the funds.

 

The illegal Disciplinary Chamber has managed to suspend six judges for their rulings and for implementing the judgments of the ECtHR and the CJEU.

 

Judge Paweł Juszczyszyn from Olsztyn has already returned to office. His over two-year suspension was overturned by Adam Roch of the Disciplinary Chamber, because he held that it was groundless. This was one of the last decisions of that Chamber before its liquidation. Maciej Rutkiewicz of the District Court in Elbląg has also returned to work. His suspension has already been overturned by the new Chamber of Professional Liability, which replaced the Disciplinary Chamber.

 

The other four suspended judges are waiting for the decisions of the new Chamber. The cases of Judges Piotr Gąciarek and Maciej Ferk were already in the docket in September 2022, but were removed. Because they had filed motions to remove neo-judges of the Supreme Court, as well as Wiesław Kozielewicz, who was then temporarily heading the new Chamber, from their cases. Judge Krzysztof Chmielewski is also waiting for a decision from the new Chamber. Meanwhile, it is not known what will happen with Igor Tuleya. Because the decision regarding his suspension, although unlawful, has still not been repealed. This can be done by the new Chamber taking up the case ex officio.

 

Motions to suspend another dozen or so independent judges for their rulings and for applying EU law are also pending. However, some of the cases will not be heard quickly because several judges have received interim measures from the ECtHR protecting them from having their cases heard by neo-judges of the Supreme Court. And there are six such neo-judges in the new 11-member Chamber. President Andrzej Duda elected them to the Chamber.

 

Without the reinstatement of the illegally suspended judges, Poland will not receive billions from the National Recovery Plan. However, the European Commission will also be checking to find out what happened to the cases of other independent judges that the Chamber has not managed to suspend. And there are a dozen or so of these.

 

They include Professor Włodzimierz Wróbel from the Supreme Court, Agnieszka Niklas-Bibik from the Regional Court in Słupsk, Anna Głowacka from the Regional Court in Kraków, Joanna Hetnarowicz-Sikora from the District Court in Słupsk, Aleksandra Janas and Irena Piotrowska from the Court of Appeal in Katowice, Olimpia Barańska-Małuszek from the District Court in Gorzów Wielkopolski, as well as Rafał Lisak, Wojciech Maczuga and Kazimierz Wilczek from the Regional Court in Kraków. All of them are being prosecuted by Ziobro’s people for issuing independent rulings and implementing ECtHR and CJEU judgments.

 

Adam Synakiewicz from the Regional Court in Częstochowa, Marzanna Piekarska-Drążek from the Court of Appeal in Warsaw, Anna Bator-Ciesielska from the Regional Court in Warsaw and Marta Pilśnik from the District Court for Warszawa-Śródmieście were also under threat of indefinite suspension for applying EU law. However, the new Chamber of Professional Liability of the Supreme Court did not agree to their suspension in September 2022. But these are not final rulings. Ziobro’s people can appeal against them. And such an appeal has already been filed by Przemysław Radzik, the deputy disciplinary commissioner, demanding the suspension of Judge Synakiewicz.

 

Translated by Roman Wojtasz



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Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.


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Published

November 29, 2022

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