The article was posted in Polish at OKO.press on 16 March 2021.

The request submitted to the illegal Disciplinary Chamber to lift the immunity of three Supreme Court judges was announced in a communiqué of the National Prosecutor’s Office. The request was made by the internal affairs department, which was appointed by the Law and Justice party (PiS) to prosecute judges and prosecutors. It intends to charge them with the inadvertent failure to settle cases in accordance with the applicable laws’.

This is about two cases that were pending in the Criminal Chamber of the Supreme Court in 2019. The case is not as clear-cut as the prosecution would like. It seems that the prosecution wants to use a pretext to strike at the old, legal Criminal Chamber, the judges of which are making no secret of their commitment to the rule of law.

The request to lift the immunity applies to Andrzej Stępka, Marek Piertuszyński and Professor Włodzimierz Wróbel. All of them are judges of the Criminal Chamber. The last of them was the most serious candidate to succeed the President of the Supreme Court, Małgorzata Gersdorf. He was the only one to receive the support of the majority of the Supreme Court judges, but, in 2020, President Andrzej Duda chose Małgorzata Manowska, Zbigniew Ziobro’s former deputy minister. During the Assembly of Judges of the Supreme Court, which was supposed to select candidates for the office of the new President of the Supreme Court, Prof. Wróbel became famous for highlighting and fiercely reviewing the actions of the Supreme Court ‘commissioners’ (acting presidents), namely Kamil Zaradkiewicz and Aleksander Stępkowski.

‘This request to lift their immunity is no accident. This is mainly about Prof. Wróbel, for his criticism of the “good change”. In a way, the other two judges are an addition to him. But the request is absurd and shows that the prosecutor’s office does not understand and does not know how the document flow looks in the Supreme Court,’ a person familiar with the workings of the Supreme Court tells us.

Why the prosecutor’s office is after the Supreme Court judges

In a communiqué requesting the immunity to be lifted, the National Prosecutor’s Office announces that the three judges ‘caused the unlawful imprisonment of two people’.

It accuses Judge Marek Piertuszyński of making a stay of the execution of the judgment of the Regional Court in Gdansk in January 2019 by a decision of October 2019 ‘with respect to a man sentenced to 3 years and 3 months’ imprisonment for burglary and attempted burglary’.

What is the judge’s guilt supposed to involve? ‘Despite having such an obligation, the judge did not take steps to ascertain whether the convict was serving a sentence at the time he issued the verdict of the stay of the execution of the sentence. Meanwhile, he started serving such a sentence from 3 September 2019. It was not until 15 November 2019, as a result of the intervention of the convict’s counsel, that an order was issued for the man’s release. The judge’s omission resulted in the man being unreasonably imprisoned for almost a month’ alleges the National Prosecutor’s Office.

A similar allegation is made against judges Andrzej Stępka and Włodzimierz Wróbel, who heard one of the cases. Judge Stępka was the presiding judge in it and Judge Wróbel was the rapporteur. In October 2019, they 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, ‘Despite their obligation, they did not check whether the sentence was already being executed. 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.’

The prosecutor’s office further announces that, if the Disciplinary Chamber lifts the immunities, it will charge them with the ‘negligent failure to fulfill the obligation of settling cases in accordance with the applicable laws’. The prosecutor’s office refers to Article 189, para. 2 of the Penal Code. It states in paragraph 1 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’.

According to the prosecutor’s office, ‘If a judgment overturns a final verdict or makes a stay of execution, the judge must order the release of the convicted person if that person is serving a sentence.’ OKO.press published a list of 16 prosecutors from the Internal Affairs Department of the National Prosecutor’s Office who are prosecuting judges and prosecutors.

Judge Laskowski: the employees were at fault

We asked Judge Michał Laskowski, president of the Criminal Chamber of the Supreme Court and former press officer of the Supreme Court, about these two cases. He confirms that, in two cases, the accused were not immediately released from custody. But this is not the fault of the judges, but of the secretariat of the Third Criminal Division of the Criminal Chamber.

‘This has been a long-standing practice in the Supreme Court, which has not changed, that it is the head of the secretariat and the court clerk in the case who execute judgments resulting in the activation of the procedure of release from custody. Of the thousands of judgments issued, there were two cases in which this was not done,’ Michał Laskowski explains.

And adds: ‘In these two cases, it was the office manager and the court clerk who did not execute the release from custody. They were the ones who always stamped the release order and this was sent to the detention centre. Disciplinary proceedings were applied against them. The manager was dismissed on disciplinary charges and the court clerk received a reprimand.’

Laskowski emphasizes that these disciplinary proceedings were conducted under the previous president of the Supreme Court, Małgorzata Gersdorf. And no grounds were found then for initiating such proceedings against these three judges.

The strike of the National Prosecutor’s Office against Prof. Włodzimierz Wróbel may be a show, to exert a chilling effect on other Supreme Court judges. He is the head of the Department of Criminal Law at the Jagiellonian University and the author of over a hundred academic works. He was also recently awarded the title of ‘Civic Judge of the Year’. He became famous in 2020, because he was the most serious candidate for the office of the new president of the Supreme Court. He was put forward by the ‘old’ judges of the Supreme Court. It was also he who justified the famous resolution of the three combined chambers of the Supreme Court regarding the new NCJ and the illegal Disciplinary Chamber. Wróbel has become the face of what was the independent Supreme Court to date.

Who is after the Supreme Court judges

We have asked the National Prosecutor’s Office who is handling this investigation and who filed the notice in this case – when we receive an answer, we shall publish it. However, we managed to establish some of the details of this case. The National Prosecutor’s Office took an interest in it many months ago. Because employees of the Supreme Court were summoned for questioning in the autumn of 2020. Interestingly, the manager who was dismissed on disciplinary charges – according to our unofficial information – found employment in one of the two new Chambers of the Supreme Court.

We also managed to establish that the motions to lift the immunity of the Supreme Court judges were submitted by Prosecutor Kamil Kowalczyk, who has been posted to work for the National Prosecutor’s Office. He was previously at the District Prosecutor’s Office in Malbork. It was he who, while working in the Internal Affairs Department, brought criminal charges against Prosecutor Justyna Brzozowska, who fell foul of her superiors because she did not want to conduct a sweeping investigation into the matter of reprivatization in Warsaw. Her investigations striking at the current government were in the background. She 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.

Other judges prosecuted by the National Prosecutor’s Office

The request to lift the immunity of the three Supreme Court judges is further evidence that the National Prosecutor’s Office will forcefully make settlement with the critics of Minister of Justice and Prosecutor General Zbigniew Ziobro and his supporters in the ordinary courts, the prosecutor’s office, the Supreme Court and the NCJ. The public prosecutor’s office will prosecute them under any pretext, digging into their files, CVs and private affairs.

Judge Igor Tuleya, a symbol of the free courts, is on the verge of being absurdly charged for a judgment against PiS.

The head of Themis, the association of independent judges, which is critical of the ‘good change’, Beata Morawiec, is also on this path. She won a civil case against the Minister of Justice in a final judgment, who is supposed to apologize to her for his defamatory communiqué. An attempt is being made to attribute her with two far-fetched and unbelievable allegations.

The National Prosecutor’s Office is also prosecuting as many as 14 judges from Kraków who issued favourable judgments for Prosecutor Mariusz Krasoń, who was harassed at work for defending the independent prosecution service.

Judge Waldemar Żurek, former press officer of the old, legal NCJ, is also in the sights of the Internal Affairs Department. He is another symbol of the free courts. Just for a change, the prosecution service is digging into his private affairs and picking at his accident at work. There are as many as two investigations at the National Prosecutor’s Office into the judge’s accident. The judge may face contrived criminal charges on their basis.

Disciplinary and court action for criticizing the National Prosecutor’s Office

The National Prosecutor’s Office, its head Bodgan Święczkowski and the Internal Affairs Department must not be criticized. Judge Żurek was rapidly disciplined for such criticism on Święczkowski’s motion.

In turn, Katarzyna Kwiatkowska, the head of the Lex Super Omnia association of independent prosecutors, is facing a trial for criticizing the National Prosecutor’s Office.

Judge Piotr Gączarek from Warsaw, who organized pickets in front of the National Prosecutor’s Office in defence of Igor Tuleya, is also threatened with disciplinary action for this.

Translated by Roman Wojtasz