In an interview with OKO.press, Counsellor Jacek Dubois, deputy chair of the Tribunal of State, wonders how to seek justice after eight years of PiS rule and what role the Tribunal can play in this:

 

• The misfortune of the Tribunal of State is its politicization. It is treated as an expression of the distribution of political forces rather than a way of seeking justice.

• An independent prosecution service could return to the two threads of the ‘Twin Towers’ scandal from 2018: the possible embezzlement of a businessman by Jarosław Kaczyński, as well as corruption, namely the notorious envelope with money.

• What about Kaczyński in front of the Tribunal of State? ‘As a judge of the Tribunal, I am not allowed to comment on such a possibility. The matter of the ‘Twin Towers’ certainly perfectly illustrates the unconstitutional, extremely politicized actions of the prosecution service.’

• ‘The need and the ability to obtain justice should not be confused. If a group of MPs believe that constitutional breaches took place, it is their duty to try to investigate the liability of the people who may have breached that law. It should not be accepted that, since we don’t have the appropriate majority, we won’t try.’

• ‘What disturbs me in the discussions about inquiry commissions is that the question is asked of whether they make sense from a media point of view and whether viewers will become overexposed to the show. This is a confusion of notions.’

• ‘All three of the commissions that have been announced are needed, but neither these nor other scandals will be thoroughly investigated if the biggest scandal, namely what happened in the prosecution service, is not clarified.’

Piotr Pacewicz, OKO.press: Of the 19 people in the Tribunal of State, there are 10 representatives of the democratic coalition (Civic Coalition, New Left Party and Third Way), one of the Confederation Party, seven Law and Justice (PiS) representatives and the first president of the Supreme Court as the chair. Does such a composition increase the chances of holding PiS politicians accountable before the Tribunal? The 100 concrete tasks of the Civic Coalition contain seven names: Duda, Morawiecki, Sasin, Ziobro, Glapiński, Gliński and Świrski.

 

Jacek Dubois, four-times judge of the Tribunal of State (since December 2012; deputy chair since November 2023): We are bound by the principle of complaints being filed, which means that the Tribunal only considers those cases that are referred to it. This means that the Sejm decides who will be tried. The road is long. A preliminary motion signed by 115 MPs, which satisfies the requirements of an indictment, goes to the Marshal of the Sejm, who can refer it to the Constitutional Liability Committee. The Committee reviews the case, analyses documents and possibly examines witnesses. It can commission tasks to the prosecution service or the Supreme Audit Office. It then presents a motion to the Sejm (or not) to bring the person before the Tribunal and such a resolution is put to the vote. If the motion receives a sufficient majority, the Sejm appoints the prosecutors and only then does the indictment end up in the Tribunal of State.

 

Just like a court, which has no influence on who stands before it, the Tribunal has no power to specify who is to be held accountable.

 

Other than in exceptional cases, the Tribunal does not adjudicate in its full membership. But since it is a two-instance court, benches are designated for the first instance, and then for the second instance. So this majority of democratic candidates, as you called it, can be disrupted as a result of the drawing of the bench.

 

Politics as the misfortune of the Tribunal of State

 

But the whole misfortune of the Tribunal is that we are talking about candidates of one party or another, although, after all, we, as judges, rule on the basis of the law.

 

In theory, our beliefs and who elected us are irrelevant.

 

The decision to refer the indictment to the Tribunal by the Sejm requires a majority – with respect to the President as many as two-thirds of the National Assembly (the Sejm and the Senate – 374 votes), against the Prime Minister and members of the Sejm – three-fifths of the membership of the Sejm (276 votes). It’s more realistic to put the president of the National Bank of Poland, Adam Glapiński, before the Tribunal, isn’t it?

 

An absolute majority would be sufficient, just as in the case of the members of the National Broadcasting Council, which, according to current political count, would be realistic. But again, we are talking about a political act. People whose guilt has been substantiated such that an indictment can be filed should be brought before the Tribunal. But the public doesn’t see this as a breach of the Constitution and statutes, but whether there is a majority.

 

As if justice is a question of the political distribution of power and not of the provisions of the law.

 

Another thing is that it is good that the Tribunal does not choose the cases itself. After all, we can’t first identify who to try and then try him. That’s how the inquisition worked.

 

As the Queen says to the jurors in ‘Alice in Wonderland’: ‘Sentence first – verdict afterwards’. The original sin is the politicization of both the procedure of the selection of judges and the selection of those to be tried. Can this not be depoliticized?

 

The Constitution and the Act on the Tribunal of State do not give much room for manoeuvre and this will be difficult to change, even if it is obvious that the current system is not working. The body, which has been in place (after the Second World War) since 1982, has only once tried five people in the so-called alcohol scandal [two people were sentenced in 1987 to five years of a loss of the right to stand for election and a prohibition to hold managerial positions – ed.]. After all, it’s not because we have politicians who don’t breach the Constitution and the law…. If there are so many cases that the public feels should have been brought before the Tribunal over these 30 years, but weren’t, that means that the Tribunal is incapable of achieving the objectives for which it was established.

 

There hasn’t been the will to make use of this institution, and if there were attempts, they arose from a political interest and not the need to apply the law. It is unlikely that the mentality of the political class will change, so the act should be amended in order for the politicians not to be the only ones who decide on whether politicians are brought before the Tribunal, because they actually become judges in their own case.

 

The president of the National Bank of Poland outpaces a possible indictment. He has put up a giant banner on the building of the National Bank of Poland stating that he did everything legally. The Civic Coalition is announcing that he will be brought before the Tribunal for ‘destroying the independence of the National Bank of Poland and for failing to fulfil the NBP’s fundamental task of combating high prices’. It would probably be easier to demonstrate that the National Broadcasting Council has breached the constitutional principle that it is supposed to ‘uphold freedom of speech, the right to information and the public interest in broadcasting’.

 

I believe we are walking on thin ice.

 

A judge cannot adjudicate before a trial

 

If I want to retain the feeling that I am worthy of the position of judge of the Tribunal, which I have held for 11 years, I cannot breach the rules. Being a judge of the Tribunal of State does not allow me to express an opinion as to whether or not given people have committed acts for which they should defend themselves before the Tribunal.

 

That would be a pre-judgment.

 

The worst thing for a judge to do is to form an opinion before a trial, especially on the basis of indirectly provided information. Of course, none of us will get rid of our own assessments, but objectivity is based firstly on not prejudging anything in your own mind and secondly not publicly assessing events that could end up before the Tribunal.

 

The assessment of whether a ministry or a council is functioning well or badly is a different matter; I am entitled to such opinions like any other citizen. However, I cannot comment on possible constitutional liability.

 

So we can agree that the current National Broadcasting Council is also not fulfilling its role which has been enshrined in the Act, which requires it to ‘ensure an open and pluralistic nature of broadcasting’.

 

I am aware of numerous publications and studies that support your thesis. But there is a large amount of middle ground between deviating from duties and entering the realm of constitutional liability. And that is what sentencing is about, namely assessing whether someone is breaching the rules but not breaching the Constitution, or whether the Rubicon has been crossed.

 

I think your situation is even more interesting because, as an attorney, you have defended numerous people against breaches of their rights by the authorities, the representatives of which could be brought before the Tribunal of State. You have to forget about those actions, don’t you?

 

That’s not true. When defending a client, we look for the most favourable arguments for him, which may not necessarily be in line with our views. We may not agree with the acts of our clients, we do not have to identify with them, an attorney’s speech is not the voice of a politician or an activist.

 

We do not present our views when delivering statements of defence, however suggestive they may be, but we present arguments which are supposed to help the client.

 

And whether such arguments coincide with our views is another story altogether.

 

It must be frustrating to work at the Tribunal. You wait and wait for a complaint to come in, but there are no prospects that it will.

 

Working at the Tribunal is not an occupation at all, in the sense of a job that involves constant activity and being paid for that. We can be members of the Tribunal for several years and not once fulfil the tasks for which we were appointed. Fortunately, we are also all occupied with other things. This is purely an additional function which is only paid for if the Tribunal has a session.

 

We are not parasites living off the State.

 

Having nothing to do in the Tribunal would not be frustrating if it meant that the State was functioning well. It’s worse if the State is functioning badly and we don’t have any work.

 

Looking at things systemically, representatives of the authorities may have overstepped many limits of the law in recent years. If that was the case and no one has been brought before the Tribunal, it means that the system, which was supposed to be one of the safeguards of democracy, isn’t working. Why isn’t it working? Perhaps because those in power don’t want to apply the law? Perhaps because of the regulations that are bad?

 

Both of these situations have taken place simultaneously in recent years. The ruling majority didn’t notice that much of the behaviour of various officials was being criticized not because of bad work, but precisely because of a breach of the constitutional principles. If such accusations were formulated by serious people and that did not cause any reaction, it means that the politicians who decided about that simply did not want to enforce the law.

 

The need to do justice, even without a majority

 

Numerous analyses have been prepared demonstrating that the president has breached the Constitution at least a dozen or so times. It started with his failure to swear in three properly elected judges of the Constitutional Tribunal, after which the President swore in the ‘stand-in judges’ in December 2015. He should face the Tribunal of State, especially since Article 3 of the Act on the Tribunal of State states that he is liable even if he ‘unintentionally’ breached the Polish Constitution. But there is no chance of achieving a 2/3 majority of the members of the National Assembly to bring the President before the Tribunal.

 

We are talking about two things. About the need and the possibility to do justice.

 

If a group of MPs believe that the Constitution was breached, it is their duty to try to restore the law.

 

And the law is restored by examining the liability of those who may have breached that law.

 

It should not be accepted that, since we don’t have the appropriate majority, we won’t try to bring about justice. If so many people object that they prevent this, there will at least be a historical fact that an attempt was made and the people who brought about its failure will show themselves.

 

The basic principle of criminal law is to apply the law in such a way that the perpetrator is punished and the innocent person is not punished. It is inadmissible to be guided by whether any group, or even the public as a whole, wants this justice or not. This has to be seen as doing one’s duty here and now.

 

It’s the same here: if someone should be held accountable, there is an obligation to make such an attempt.

 

The misfortune with the Tribunal of State is that we keep looking at holding someone accountable from the point of view of the numbers in the Sejm. In other words, we assume that MPs will not be honest (with respect to the law), but loyal (to the party).

 

Such loyalty has nothing to do with honesty, but it primarily has nothing to do with the law.

 

It is as if we were to staff the prosecution service according to a political key and every morning the prosecutors would vote on whether to prosecute a given person or not. Their vote would be based on some kind of patriotism, whether it is party patriotism or local patriotism; for example, that we do not prosecute people from Gniezno or priests.

 

Zbigniew Ziobro’s prosecution service did just that. He, too, is on the short list of the Civic Coalition’s candidates to be put up before the Tribunal.

 

The Act on the Tribunal of State says that Mr Ziobro can be accountable before the Tribunal of State if he breached the Constitution and statutes, not because that is the opinion of his political opponents, who may have a majority in the Sejm.

 

I am returning to the question, how should the Tribunal of State be depoliticized?

 

The really good membership of the Tribunal that has just been elected could trigger the desire to develop a new concept. There have already been discussions on how to ensure that the judges are not delegates of party interest groups. Perhaps the terms of office of the Sejm and the Tribunal of State should at least be separated, as is the case with the Constitutional Tribunal?

 

The point is to ensure that the Tribunal does not boil down to a kind of travesty, when instead of the people who should be held accountable, people are brought before it because of a political rather than legal intention.

 

How about going in the same direction as the appointment to the National Council of the Judiciary – until the Sejm breached the Constitution? So that some of the Tribunal’s judges are appointed by judicial communities or other non-political bodies?

 

There is one way to go, although experience has shown that the independence of the NCJ was eliminated in a single stroke by politicians who actually dissolved a constitutional body and created a different body. Recent years have shown that building institutions on the basis of trust in the decency of politicians has failed.

 

Since we are not living in a gentlemen’s club, we have to look for other guardians of principles.

 

The new authority will face the challenge of creating guarantees of observing the Constitution and holding people who breach the Constitution accountable. The misfortune is that those who would like to protect the Constitution do not have enough power to make its provisions stricter or to supplement them. The outcome of the elections does not give them such a majority.

MPs go unpunished, even if they vote in favour of breaching the Constitution

 

MPs can only stand before the Tribunal if they breach Article 107 of the Constitution, which prohibits them from ‘conducting business to achieve benefits from the State Treasury’s or local government’s property or from acquiring this property’.

 

This provision was intended to limit the scope of an MP’s liability before the Tribunal so as not to lower the significance of our court. Other irregularities can be dealt with by parliamentary committees or the prosecution service.

 

It’s difficult for an MP to breach the Constitution, especially since, according to the doctrine of criminal law it is not a violation to vote even in favour of unconstitutional solutions, because an MP does not make individual decisions.

 

I consider this to be debatable.

 

If the chamber passes a law that is unconstitutional, who is to be held accountable?

 

There is the proposer, for instance the government, but the decision-maker is the Sejm.

 

As a criminal law attorney, I would like to remind you that we have liability under Article 231, namely overstepping one’s powers, which can be applied to situations in which someone knowingly votes in favour of enacting a law that is in conflict with the Constitution.

 

The case law has gone in a different direction.

 

Of course, an MP is free to vote in accordance with his own conscience but the lack of limits means that he can actually vote for anything and still be immune from punishment. The discussion on the liability of MPs has been theoretical for many years because nobody could imagine that statutes, which are clearly in conflict with the Constitution, could be voted on to such an extent.

 

Jarosław Kaczyński and his ‘Twin towers’

 

As Gerald Birgfellner’s attorney, you told OKO.press how Jarosław Kaczyński deceived this Austrian businessman by arranging for the construction of the famous ‘Twin Towers’, a 190-metre building in the centre of Warsaw for Srebrna, a company controlled by PiS. The party chairman had the role of a businessman. Can he stand trial before the Tribunal for that?

 

As Mr. Birgfellner’s attorneys [Roman Giertych was also an attorney in addition to Dubois – ed.] we pointed out repeatedly in letters to the prosecution service that Mr. Kaczyński’s activities were in breach of the law with regard to the duties of an MP. The prosecution service did its best not to take up this thread, excluding him from the case, which also meant that it did not address the notorious envelope with money [Kaczyński ordered the businessman to give it to the priest, whose vote was needed for implementing the investment – ed.].

 

As the victim’s attorneys, it seemed to us that it was the prosecution service’s obvious duty to investigate Kaczyński’s business role, including the thread regarding the envelope. We did not prejudge whether it was a crime against business trading, which is referred to as ‘managerial corruption’ (Article 296 a. § 1 of the Penal Code), or even whether there was corruption at all. But the prosecution service separated the thread that did not directly apply to fraud, covered it up and did not allow us to appeal. Mr. Birgfellner was deprived of his rights as a victim.

 

You are speaking more openly about Kaczyński’s case.

 

I can talk about this case, because if this thread had ended up before the Tribunal of State, then, necessarily, as an attorney of Mr. Kaczyński’s victim, I would not have been able to be a member of the bench. As attorneys, we took a clear legal stance, and I still believe that the prosecution service, if it is actually renewed, e.g. in accordance with the Lex Super Omnia project, should wash away the disgraces with which it has been affected, and the ‘Twin Towers’ case seems to me to be one of the biggest.

 

But could Kaczyński have somehow breached Article 107 of the Constitution?

 

I am not allowed to present such assessments. As attorneys, we pointed to Mr. Kaczyński’s obvious participation in business trading and in – let’s describe it as – non-typical circulation of money. If this were to be confirmed, there could be great deal of doubt about the legality of Mr. Kaczyński’s actions, including because he was doing it as an MP.

 

The veracity of the asset declarations filed by Jarosław Kaczyński is also in doubt given the allegations raised by our client regarding the acceptance and handover of money.

 

Can this renewed prosecution service return to the ‘Twin Towers’ case? The possible crime took place in mid-2018; you filed the notice of the justified suspicion of a crime under Article 286 para. 1 of the Penal Code (‘in order to obtain financial benefits, brings about another person to unfavourably dispose of his own or someone else’s property by misleading him’) in January 2019.

 

The prosecution service can reopen the case, because proceedings had not even been initiated. The prosecutor can return to two threads at any time: possible fraud and corruption, namely the envelope with money, and there is also the matter of the veracity of Mr. Kaczyński’s asset declarations. The objective of the prosecution service was not to get to the material truth, but purely to protect Chairman Kaczyński’s image. Mr. Kaczyński was not even questioned in the presence of the attorneys, even though we had numerous questions for him. The minutes of another questioning of the PiS chairman which took place without our presence were added to the case files.

 

The case can also be resumed at the victim’s request.

 

Have you and Mr. Gerald Birgfellner considered filing such a motion?

 

Let’s wait until there is an independent prosecution service.

 

What about Kaczyński before the Tribunal of State?

 

As a judge of the Tribunal, I am not allowed to comment on such a possibility. The matter of the ‘Twin Towers’ certainly perfectly illustrates the unconstitutional, extremely politicized actions of the prosecution service.

 

Inquiry commissions are not a media show

 

And how does a judge of the Tribunal of State see the plans of the parliamentary inquiry commissions? They too will be able to file a motion to bring someone before the Tribunal.

 

I cannot really assess the specific drafts, because, for example, the Pegasus commission brings up the question of the constitutional liability of the minister of justice, as well as the matter of the role of the minister of internal affairs.

 

The visa scandal applies to the minister of foreign affairs, while the correspondence elections also have a culprit – Minister Sasin.

 

In the discussions about the commissions, I am concerned about asking the question of whether the commissions make sense from a media point of view. And whether there will be too many of them.

 

Won’t we, the audience, be overexposed to this form of show, will there be any interest? This is a confusion of notions.

 

The role of the commission is not to gain popularity and look at the statistics of viewership (which could arise from people’s vanity), but to investigate the liability of the government representatives and to find the systemic errors that should be eliminated by changing the law. In justified cases, the commission is also supposed to refer motions to the prosecution service or the Tribunal of State to determine the liability of individual people.

 

All three commissions are absolutely necessary, but in my opinion as a practising lawyer, there will be no thorough investigation of these and other scandals, if the biggest scandal is not clarified, namely what happened in the prosecution service.

 

How it happened that the body which, according to Article 64 of the Constitution, ‘upholds the rule of law and sees to the prosecution of crimes’ zealously protected political interests? 

 

I am not talking about all prosecutors; I am friends with many of them and I have a very good opinion of many of them. I am talking about bringing about the stoppage of the performance by this institution of its fundamental tasks. I don’t think the prosecution service on its own will be able to cure the disease that has bloomed there, to overcome the pathologies without the help of some external body which has more extensive powers and without the involvement of the public.

 

Translated by Roman Wojtasz

 

The interview was published in Polish in OKO.press.