The Disciplinary Chamber will examine the case of judge Igor Tuleya on 9 June. The case will be examined in private session by Jacek Wygoda, a former prosecutor for the Institute of National Remembrance*.

The prosecutor’s request to lift Tuleya’s immunity can be seen as a political act. It was referred to the Disciplinary Chamber some months ago.

The Disciplinary Board set a deadline for the case to be diagnosed by March 2020, but the case was adjourned because of the epidemic.

Now the Chamber is returning to this case, despite the decision from the EU Court of Justice of April 2020 to apply interim measures which, pending the final judgment, has suspended the work of the Disciplinary Chamber.

In this case, therefore, the Ombudsman Dr Adam Bodnar will intervene on behalf of the new President of the Supreme Court Małgorzata Manowska or the President of the Disciplinary Chamber.

From our investigation, it appears that the Ombudsman will argue that the Disciplinary Chamber cannot deal with Tuleya’s immunity because of the guarantee issued by the CJEU.

“I am calmly waiting for the date. I will be at the Supreme Court on 9 June, but I’m not going to a meeting that is not a court. I do not recognise Jacek Wygoda as a judge,” said judge Tuleya.

He added with some irony, “I’m not afraid of the prosecution or prosecution. I am ready. I’m not running off abroad.”

Persecuting judge Tuleya for his openness

The National Prosecutor’s Office wants to waive the immunity of judge Igor Tuleya in order to bring absurd criminal charges against him. The matter concerns his alleged failure to perform his official duties and exceeding his rights in connection with a judgement issued on 18 December 2017. According to the National Prosecutor’s Office, Tuleya unlawfully allowed journalists to hear and record him. According to the prosecutor’s office, by doing so the judge revealed an “unauthorised” secret concerning the investigation.

In December 2017, judge Igor Tuleya received a complaint ordering the discontinuance of an investigation into the PiS vote of the 2017 budget in the Sejm’s Column Hall** in December 2016. The Marshal of the Sejm had moved the meeting there because opposition protests against the exclusion of deputy Michał Szczerba from the session and the planned restriction of journalists’ rights in the Sejm were taking place in the Plenary Chamber. At the same time, a heated public demonstration was also taking place outside the parliament.

After the vote in the Column Hall, opposition deputies notified the prosecutor’s office. They stated that they had been restricted from taking part in the deliberations, and that there might not have been a quorum during the votes, and so the budget may have been passed unlawfully. The investigators did not find any fault in the proceedings and discontinued the matter.

However, judge Tuleya overruled the prosecutor’s decision and ordered another investigation.

The ruling was widely publicised because the judge had allowed the media to record his oral argumentation. In this, he cited the testimony submitted to the prosecutor’s office by PiS deputies, which showed that the opposition deputies had deliberately been blocked in the Column Hall, that the voting reports had been tampered with, and that there could not have been a quorum in the room because deputies were still coming out into the corridor.

In addition, due to discrepancies in the testimonies from PiS deputies, the judge ordered the prosecutor’s office to examine whether they had in fact given false testimonies.

However, after Tuleya’s decision, the prosecutor’s office closed the case for the second time; nor did it open any investigations into the testimonies from PiS deputies. This is why the judge began to take an interest in the matter.

Tuleya did not break the law; he admitted the media for the good of the public

The prosecutor’s office desire to prosecute Tuleya can be seen as the repression of a brave judge whom PiS and its supporters have hated for over a dozen years. And now he is the face of the defence of free courts. It now looks like the National Prosecutor’s Office is looking for an excuse to bring a criminal case against him. Journalists were only admitted to the announcement of the ruling.

Sessions during which complaints against the prosecutor’s decision are considered are usually secret, according to Article 95b § 1 of the Criminal Code. Further paragraphs of this provision enumerate which sessions can be held in public.

However, Article 95b § 1 also says that the president of the court or the judge himself may decide whether a session can be held in public; it is his discretionary decision.

In this case, Tuleya took just such a decision. Before the start of the session, journalists applied for permission to record and be present in the room. The judge asked the representatives of the deputies and the prosecutor what the position was, and they left the decision to the discretion of the court. The prosecutor did not raise any objection, for example by referring to the legal interest of the investigation or the materials gathered in the files. In this situation, the judge allowed the hearing to be held in public. It was relevant that the case concerned a matter of importance to the public.

According to the law, Tuleya was also able to disclose evidence from the investigation; this is because when the case goes to court, it is the court decides how much the material from the files will be disclosed. The judge did not reveal any secret information from the investigation, because the proceedings regarding the vote in the Column Hall had already been discontinued by the prosecutor’s office.

The Ombudsman and Iustitia will intervene in the Tuleya case

Why does the Disciplinary Chamber want to deal with Tuleya’s immunity, despite the guarantee from the CJEU?

“The CJEU’s ruling only covers judges’ disciplinary matters. It does not cover other disciplinary cases, like those concerning prosecutors, or cases concerning waivers of immunity,” says Piotr Falkowski, a spokesman for the Disciplinary Chamber.

Kamil Zaradkiewicz, the president of the Disciplinary Chamber and a former interim president of the Supreme Court, thinks similarly. It was Zaradkiewicz himself who annulled the order by the former president of the Supreme Court, Małgorzata Gersdorf, to implement the CJEU ruling, and which suspended all the Disciplinary Chamber’s legal work.

So Zaradkiewicz gave the green light to the Disciplinary Chamber to resume work, imposing only small restrictions on it, which in his opinion demonstrated that the CJEU’s judgement of April 2020 was being adhered to.

Meanwhile the president of the Disciplinary Chamber, Tomasz Przesławski, issued a recommendation that disciplinary proceedings against judges be suspended, but he left the final decision to the adjudicating panels. However, these restrictions did not apply to disciplinary proceedings concerning other professional groups and lawyers, or to cases of immunity.

Now the Disciplinary Board is taking advantage of it. That is why the Ombudsman will intervene; after the CJEU issued its guaranteed, he issued a statement from which it appears that the Chamber has lost any grounds to continue its work. This is because the CJEU suspended the application of those provisions of the Supreme Court Act concerning the establishment of the Disciplinary Chamber.

Krystian Markiewicz, the head of Iustitia, the largest association of independent judges, believes the same:

“Everyone who has the legal knowledge of the first semester of law should know what the problem of the Disciplinary Chamber in its proceedings before the CJEU and the European Commission concerns. It concerns whether people who claim to be judges of the Disciplinary Board are actually judges. If they are not, they cannot make law,” says Markiewicz.

He adds: “The fact that the CJEU has issued a guarantee against the backdrop of the judges’ disciplinary case does not mean that the effects of this guarantee do not cover all the judicial activities in this Chamber. The view confining the use of this security to judges’ disciplinary matters alone is a mockery of the CJEU and constitutes an unlawful act.”

Markiewicz told that he expects the Supreme Court’s leadership to cause the Disciplinary Chamber not to recognise Tuleya’s immunity. This right was given it by the unconstitutional ‘muzzle’ law. Markiewicz emphasised that in this situation the prosecutor’s request should be recognised by judges from the old Criminal Chamber. “We will inform the European institutions that the Supreme Court does not respect the ruling of the CJEU,” announced the head of Iustitia.

* The Institute of National Remembrance (IPN) is an institution dealing with documenting and archiving of Polish history of the 20th century. It stores documents from the security services, including individual files. It publishes information that forms the basis for checking the lustration statements that must be submitted by candidates for the performance of public functions. The Institute of National Remembrance also has prosecutor’s powers, and prosecutes historical crimes committed on Polish territory. The IPN is a key institution of the official historical policy of the Polish state, and is generously subsidised by PiS.

** A large chamber in the Polish parliamentary building in which the largest political party has the right to meet. The holding of the vote there contravened established parliamentary practice, which states that all votes must be held in the Plenary Chamber, where all parliamentary parties have the opportunity to participate.