This ruling was issued on Wednesday, 18 November 2020, by the illegal Disciplinary Chamber of the Supreme Court. Judge Igor Tuleya, who is a symbol of free courts in Poland, was prosecuted by a three-person panel: Sławomir Niedzielak (the chairman of the panel and the case clerk), Konrad Wytrykowski, and Jarosław Sobutka (who submitted a dissenting opinion). The Chamber issued a ruling on this important matter under the cover of night, which has become something of a tradition.

“I didn’t expect anything else. The Disciplinary Chamber has once again raised its middle finger to the EU. I think that with this ruling, Warsaw has moved a few hundred kilometres away from the EU. But I’ll behave consistently. I will go to my job in the court on Thursday, I don’t know if they will let me in,”, judge Tuleya told us. And he emphasised: “But I will not appear when the prosecutor’s office summons me. I’ll be waiting for them to come for me. I’m not afraid.”

The lifting of judge Tuleya’s immunity will resound throughout the European Union, because judges and lawyers from all over Europe have been involved in his defence.

The consent to prosecute the judge also coincides with a hot period of negotiations on the EU’s new budget, in which the payment of funds for Poland will be linked to compliance with the rule of law. The consent to lay charges against Judge Tuleya by Ziobro prosecutor’s office will be hard evidence for the EU that the threat to independent courts in Poland is serious, because Tuleya is being prosecuted for the judicial decisions which he issued while serving as a judge.

Why the National Prosecutor’s Office is prosecuting Tuleya

Judge Igor Tuleya is the face of free courts in Poland. For several years he has been heavily involved in defending them. He meets members of the public in person, and has criticised the government’s “good changes” to the courts in the media.

Above all, however, he has shown courage in his judgements. One of them is being challenged by a special internal department of the National Prosecutor’s Office; this unit is headed by Bogdan Święczkowski, a close confidant of Zbigniew Ziobro, who serves as the Minister of Justice and the Prosecutor General. This department was established specifically to prosecute judges and prosecutors. At the beginning of 2020, he/it applied to the Disciplinary Chamber of the Supreme Court to waive judge Tuleya’s immunity.

The National Public Prosecutor’s Office did not like the fact that in December 2017 judge Tuleya admitted representatives of the media to the announcement of an important ruling. At the time, Tuleya was examining a complaint by opposition deputies against the discontinuation of the investigation by the prosecutor’s office into the vote by PiS on the budget in the Sejm’s Column Hall in December 2016.

Let us recall: that vote took place in a politically hot period. People assembled en masse in front of the Sejm because PiS wanted to make the work of the journalists in the Sejm more difficult. Deputy Michał Szczerba was also excluded from the session, which later led to the opposition occupying the Plenary Hall of the Sejm. That is why PiS moved the deliberations to the Column Hall. The problem was that access to it was blocked to the opposition deputies, and the vote itself could have been legally invalid, because there might not have been a quorum.

Assessing what happened in the Column Hall a year later, Judge Tuleya ordered the prosecutor to recommence the investigation. The journalists were admitted to the announcement of this ruling, to which the prosecutor present in the courtroom had no objection. In his verbal justification of the ruling, he cited the materials from the investigation, principally the testimony of the PiS deputies.

The testimony of the Deputy Speaker of the Sejm Ryszard Terlecki (PiS) disclosed by Tuleya shows that:

* the work in the Hall of Columns of the opposition deputies, including PO and Nowoczesna, was made particularly difficult;

* the chairs were arranged in such a way that the opposition deputies could not come to the table and submit formal motions;

* some PiS deputies blocked their passage on purpose.

The investigation materials also show that

* the tallies of the vote counts were manipulated;

* various deputies were entering and leaving the room the whole time (and so there might not have been a quorum).

Judge Tuleya also ordered the prosecutor’s office to assess whether some of the PiS deputies had given false testimony in the investigation as witnesses, which PiS must have disliked.

The judgement was made under cover of night

The National Public Prosecutor’s Office, in requesting a waiver of immunity, accused the judge of exceeding his powers. In its opinion, he had disclosed material from the investigation to unauthorised persons, i.e. journalists. However, judges have the right to make public hearings that are usually closed. This is the individual decision of a judge, which falls within the scope of their performing their judicial functions. This is allowed by Article 95b §1 of the code of criminal procedure.

Moreover, in this case, the following arguments were made for opening up the session: the case concerned important politicians and events in which both citizens and journalists were interested; the case had already been discontinued, that is, the judge could not prejudice the investigation by disclosing materials from the files of the prosecutor’s office; and the presence of journalists was not opposed by the prosecutor present in the courtroom.

This was what Jacek Wygoda from the Disciplinary Chamber had in mind when he refused in the first instance to waive judge Tuleya’s immunity in June 2020. In justifying the decision, Wygoda stressed that the judge had the right to admit journalists because it was his autonomous decision. In addition, the Constitution and the Convention on Human Rights also support open court proceedings.

However, the prosecutor’s office lodged a complaint against this decision. The three-member Disciplinary Chamber had previously adjourned the meeting on two occasions, but on 18 November, it finally managed to convene. It started with a two-hour delay (for technical reasons) and lasted around ten minutes. However, the panel considered its final decision for nearly four hours, and only issued it after it had gone dark, around 6.30pm.

The Disciplinary Chamber is gagging judges. They should choose their words carefully

The Disciplinary Chamber panel changed the ruling of the Disciplinary Chamber of the first instance which had supported Tuleya, and lifted his immunity. In the verbal justification of the decision, Sławomir Niedzielak said that Tuleya had disclosed materials from the preparatory proceedings. This mainly concerns the testimony of some PiS deputies which had not previously been made public.

Niedzielak emphasised that this violates Article 241 §1 of the Criminal Code, and that this alone meant that the National Prosecutor’s Office would now be able to bring charges. This provision states that “Whoever disseminates to the public information from preparatory proceedings without permission, before that information has been disclosed in court proceedings, shall be subject to a fine, restriction of liberty or imprisonment for up to two years”.

In the opinion of this board of the Disciplinary Chamber, the sessions on complaints against the prosecutor’s office’s decision to discontinue the case constitute part of the preparatory proceedings, which are hosted by the prosecutor’s office and not the court. It is therefore the prosecution which decides what can be disclosed. Niedzielak said that the court proceedings begin only after the indictment has been filed.

Therefore, in the opinion of this board of the Disciplinary Chamber, in his verbal justification of its decision Tuleya should only have provided the main reasons for his decision. He should not have cited the testimonies from the investigation file; he could have made reference to them, but only in his written justification.

In this way the Chamber disagreed with judge Tuleya’s lawyers, Jacek Dubois and Michał Zacharski, who emphasised in their defence speeches that the provisions do not specify what form the justification for the rulings should take. The defence lawyers also referred to a resolution by the Supreme Court of 2012, in which it ruled that examining complaints about the prosecutor’s office discontinuation of the case does not form part of the preparatory proceedings, and that in such cases court hearings may be opened to the public.

Iustitia condemns the Disciplinary Chamber

In the evening Iustitia, the board of the largest association of independent judges in Poland, issued a position condemning the decision by the Disciplinary Chamber. The directorate of Iustitia recalled that the Chamber “does not meet the criteria of an independent court, either under national or [European] Community law, as was confirmed by the Supreme Court in the resolution of the combined Civil, Criminal and Labour & Social Insurance Chambers of 23 January 2020 (BSA I-4110-1/20). Thus, the disciplinary chamber has the character of an exceptional court, of which the Polish Constitution prohibits the establishment in peace time.

For this reason alone, the decisions issued by the members of that chamber do not constitute judgements issued by a properly appointed court. This lack of the attributes of an independent court, which means it is not a court that guarantees the right to effective judgement, resulted in the suspension by the CJEU of the provisions relating to the Disciplinary Chamber’s functioning. Iustitia’s management has emphasised that the Chamber should not adjudicate, due to its suspension by the CJEU. “The activity of the Disciplinary Chamber violates [European] Community law and the Constitution of the Republic of Poland, and also damages Poland’s image on the international stage. Its activity is part of a total, closed disciplinary and bureaucratic system, which the ruling camp created in order to take political control over the judiciary and the prosecutor’s office in Poland,” writes the management of Iustitia.

Moreover, it emphasises that “the waiver of Judge Igor Tuleya’s immunity by an authority that does not fulfil the characteristics of a court within the meaning of national and Community law is a manifestation of repression against a judge whose judgements are inconvenient for the politicians of the ruling camp, and who has had the courage to publicly criticise the harmful changes introduced by the ruling camp in the area of justice. By lifting the immunity at the request of the politicised prosecutor’s office, subordinate to Zbigniew Ziobro, an attempt is being made to exclude a judge from public and professional life, thus creating a chilling effect among the circles of independent judges.”

The Disciplinary Chamber suspends defiant judges

Judge Tuleya is one of several judges who have spoken up to defend free courts and been suspended by the Disciplinary Chamber. The first was Judge Paweł Juszczyszyn, who is being disciplined for implementing the CJEU’s judgement and trying to check the lists of who supports the candidates for the National Judiciary Council.

Much was also heard about the suspension of Beata Morawiec, president of the Themis judges’ association; she has also been vocally committed to defending the rule of law. Morawiec also won a civil lawsuit against justice minister Zbigniew Ziobro. Now the prosecution will charge her with far-fetched charges of allegedly accepting a bribe – in the form of a telephone – and for accepting payment for an allegedly fictionalised expert opinion which the judge herself actually wrote.

The article was published in Polish at OKO.press on 18 November 2020.