by Łukasz Woźnicki 

The text was posted at Gazeta Wyborcza on  16 March 2021.

The requests to lift the immunity were filed by prosecutors from the Internal Affairs Department of the National Prosecutor’s Office. This is a special unit created in 2016 to prove that the justice system is affected by pathologies and corrupt arrangements. The IAD is already prosecuting judges who disagree with PiS’s restriction of the independence of the judiciary: Igor Tuleya and Beata Morawiec. Both were stripped of their immunity at the request of the prosecutor’s office. Now, three ‘old’ judges of the Supreme Court could encounter a similar fate.

The requests to lift immunity apply to ‘Marek P., Andrzej S. and Włodzimierz W.’ – as the prosecutors presented them in their announcement. These judges are Marek Pietruszyński, Andrzej Stępka and Włodzimierz Wróbel.

‘The prosecutor’s office intends to charge them with the inadvertent failure to settle cases in accordance with the applicable laws’, announced the prosecutors. The Penal Code provides for a penalty of up to two years’ imprisonment for this.

The judges will answer for the negligence of the employees

According to the prosecutor’s office, by their rulings, the judges ‘brought about the unlawful imprisonment of two people’. How? Judge Marek Pietruszyński made a stay of the execution of a sentence for a man sentenced to prison for theft. According to the prosecutor’s office, the judge did not check whether the man was already serving his sentence. ‘The judge’s omission resulted in the man being unreasonably imprisoned for almost a month’ reads the communiqué.

In turn, Judges Andrzej Stępka and Włodzimierz Wróbel overturned a two-year prison sentence for the perpetrator of a fatal accident. ‘Despite their obligation, they did not check whether the sentence was already being executed. The man illegally spent over a month in prison as a result of the omissions of the judges,’ acknowledged the prosecution office.

The cases described by the prosecutor’s office were pending in the Supreme Court in 2019. No release order was indeed issued in either case, which should have gone to the prison.

‘This is a routine activity that all managers of secretariats take care to perform. I, as a judge, have never issued such an order myself. In these two cases, it was acknowledged that there was negligence on the part of the employees of the Supreme Court,’ says the president of the Criminal Chamber, Michał Laskowski.

‘The failure to issue the orders resulted in disciplinary proceedings being conducted in the Supreme Court against the court clerk, who should have initiated this, and the manager of the secretariat of the Third Criminal Chamber. These proceedings ended with a final and binding reprimand for the court clerk and the dismissal of the manager of the secretariat,’ he adds.

‘The long-standing practice of the Criminal Chamber is as follows: it is the manager of the secretariat or possibly the court clerk who ensures that the court’s decision is implemented. The court overturns the sentence and someone looks into the system, checks where the offender is being held, and sends a release order to the unit. In this case, it only took place after the defence counsel intervened, and in the other case, after the prison intervened,’ describes Laskowski.

‘The judges were not considered liable in these cases. But the prosecutor’s office initiated criminal proceedings in a situation where there was no intention to deprive a person of freedom. I have never encountered such a situation,’ says Laskowski. ‘It is significant that Włodzimierz Wróbel was among these three judges. The assumption can be made that it is about an attack on that judge,’ he comments.

‘Old’ judges in the hands of the Disciplinary Chamber 

Professor Włodzimierz Wróbel is the head of the Department of Criminal Law at the Jagiellonian University and the author of over a hundred academic works, awarded the title of ‘Civic Judge of the Year’ in 2020. It was he who justified the famous resolution of three chambers of the last year (the PiS government does not recognise this resolution). In last year’s elections of candidates for the office of first chairman of the Supreme Court, Wróbel received the most votes of the judges, but was not appointed by the president. In his speeches, the judge emphatically stood up in defence of the independence of the Supreme Court.

Now, the Disciplinary Chamber staffed in whole with ‘new’ judges appointed by the politicised NCJ will deal with the requests of the prosecutor’s office. The Supreme Court – among others, in a resolution of the three chambers – ruled that the Disciplinary Chamber is not a court and its rulings are burdened with an irremovable defect. Later, the activities of the Chamber were frozen by the EU Court of Justice. Even so, the Chamber continues to rule on the lifting of the immunity of judges.

‘A judge’s immunity can only be lifted by a final decision of an independent and impartial court. The Disciplinary Chamber has none of these properties,’ the Court of Appeal in Warsaw recently concluded in Judge Igor Tuleya’s case.

‘The Polish prosecutor’s office has just acknowledged that the most dangerous potential criminals are the judge-professors from the Polish Supreme Court. That is why it has applied to a non-court, namely the Disciplinary Chamber, to lift their immunity. This is legal violence,’ comments constitutionalist Professor Marcin Matczak.

‘The National Prosecutor’s Office wants to prosecute legal judges of the Supreme Court, including Prof. Włodzimierz Wróbel. Obviously, the inquisitorial disciplinary chamber is to lift their immunities. They have really gone crazy in this rush to repress independent judges,’ commented Michał Wawrykiewicz, attorney-at-law from the ‘Free Courts’ initiative.