The text (in Polish) was published on 9 February 2021 at OKO.press.

Judge Igor Tuleya is a symbol of independent courts in Poland. He is the first independent judge in Poland to be criminally charged for performing the duties of a judge. The prosecutor’s office wants to charge him for issuing a judgment in which he harshly reviewed the PiS MPs.

Igor Tuleya is to appear as a suspect at the headquarters of the National Prosecutor’s Office at ul. Postępu 3 in Warsaw at noon on Wednesday, 10 February 2021. The prosecutor is first planning to press criminal charges against him and then to question him. But Tuleya will not turn up on the summons.

However, he will be at the headquarters of the National Prosecutor’s Office: he will stand in front of the entrance as a symbolic protest against the repression he has suffered. He will not be alone. He will be supported by judges from the Iustitia association, who are organising a conference there at 11:30. There will also be citizens.

‘The prosecutor’s office has no legal grounds for pressing charges against me, because the Disciplinary Chamber, which is not a court, has not effectively waived my immunity,’ – Judge Igor Tuleya tells us. And adds: ‘I am not afraid of any further consequences. I expect the prosecution office will use force. In other words, they will at least send the police after me to apprehend me and bring me to the prosecutor’s office. They may also hold me in custody for 48 hours or file for my arrest for allegedly obstructing criminal proceedings’.

The solution with the use of force is confirmed by the National Prosecutor’s Office:

‘If the suspect unjustifiably fails to appear for questioning, the Internal Affairs Department of the National Prosecutor’s Office will take the steps set out in the Criminal Procedures Code to perform procedural activities with his participation,’ – the press office of the National Prosecutor’s office announces.

How Judge Tuleya got into the bad books with the ruling regarding the authorities

Judge Tuleya is being summoned by the internal affairs department of the National Prosecutor’s Office. This is a special department set up by the PiS party to prosecute judges and prosecutors.

The summons for the judge was signed by Prosecutor Czesław Stanisławczyk. He is the former mayor of the municipality of Laskowa, near Limanowa, whose career accelerated rapidly under the PiS government. Stanisławczyk became district prosecutor in Limanowa only in 2018, and he is already on secondment to the National Prosecutor’s Office, namely the headquarters of the prosecutor’s office headed by Bogdan Święczkowski, who is a trustee of Prosecutor General Zbigniew Ziobro.

Prosecutor Stanisławczyk wants to press a criminal charge against Tuleya under Article 241 § 1 of the Penal Code. This provision states that ‘whoever publicly disseminates information about a crime without permission before it is disclosed in court proceedings shall be punishable by a fine, a restriction of freedom or imprisonment for up to 2 years.’

In 2017, the judge ordered the prosecutor’s office to reinvestigate the numerous irregularities committed by PiS MPs during the voting on the 2016 budget in the Sejm’s Column Hall. The vote was held during a politically heated period. The plenary hall was then being occupied by opposition MPs in protest, while citizens were protesting outside the Sejm.

Therefore, PiS passed the new budget in the Column Hall in the chaos. When ordering the investigation, Judge Tuleya pointed to the irregularities during the voting, including obstruction of the opposition MPs, reworking the voting records and a possible lack of quorum.

What the National Prosecutor’s Office is prosecuting Tuleya for

The prosecutor’s office did not like the fact that Tuleya allowed journalists into the hearing on this matter and the whole of Poland heard how the PiS MPs behaved in the Sejm. The prosecutor’s office also did not like the fact that the judge quoted testimonies of PiS MPs from the case files when justifying his ruling.

It therefore started to prosecute him, accusing him of revealing materials from the investigation and allowing journalists into the hearing, which, in principle, is not public. But the judge had the right to decide on whether or not to make the ruling public. He was also able to reveal what was in the files, because it was the court that was to make the decision. Besides, the case was discontinued, so he did not harm the investigation and he did this for the public good because the citizens were interested in the case.

After conducting an investigation, the National Prosecutor’s Office requested that the judge’s immunity be lifted. However, in June 2020, Jacek Wygoda of the illegal Disciplinary Chamber refused. He acknowledged that the judge had the right to allow the journalists in. Wygoda emphasised that the Constitution guarantees the openness of court proceedings.

A complaint was filed against this by the prosecutor’s office and, in November 2020, in a three-member bench, Sławomir Niedzielak, Konrad Wytrykowski, Jarosław Sobutka (he filed a dissenting opinion), the Disciplinary Chamber nevertheless lifted the immunity. However, the Chamber only agreed to one charge being pressed regarding the disclosure of materials from the investigation. According to the Chamber, a judge cannot disclose anything in such cases without the consent of the prosecutor’s office. Together with the waiver of the immunity, the Chamber suspended Tuleya from his duties as a judge and reduced his salary by 25%.

What the prosecution will do with Tuleya now

The lifting of the immunity by the illegal Disciplinary Chamber opened the door for the National Prosecutor’s Office to press truncated criminal charges against Tuleya. It first summoned him for this on 20 January 2021. But Tuleya did not turn up. He stood in protest outside the headquarters of the National Prosecutor’s Office, together with independent judges and citizens. Because he does not recognise the Disciplinary Chamber as a legitimate court and therefore believes it could not effectively lift his immunity.

The current summons for the hearing on 10 February is now the second. But Tuleya will not turn up for that either:

‘The Disciplinary Chamber is not a court. It should not rule because its adjudicating activity was suspended by the CJEU in April 2020. This also arises from the resolution of the full membership of the Supreme Court of January 2020 [the Supreme Court then decided that the rulings of the Disciplinary Chamber are not binding – ed.]’ – he tells us.

As we mentioned above, in response to our questions, the National Prosecutor’s Office responds that it will reach out to Tuleya with the use of the means permitted under the Criminal Procedures Code to ‘perform procedural activities with respect to the judge’. In other words, to press charges against him and to question him.

He will not be summoned a third time, because, in the practice of the prosecutors, if a summoned person fails to appear the first time, he is sent a second summons just to be sure. And if he fails to appear again, coercive measures are applied.

The Criminal Procedures Code allows the public prosecutor’s office to first instruct the police to hold the person in custody and bring him by force to the public prosecutor’s office if the person fails to appear in response to a summons. This is provided for in Article 247 of the Criminal Procedures Code. The public prosecutor’s office may also hold such a person in custody for 48 hours in a so-called hole in order to perform procedural activities. And release him after questioning him. Finally, the prosecution office may request the court to remand such a person in custody for obstructing procedural activities in an investigation. This is regulated in Article 258 of the Criminal Procedures Code.

Lawyers: the judge is still protected by immunity

Igor Tuleya emphasises that the prosecutor’s office needs to request permission from the Disciplinary Chamber to detain or arrest him.

‘If they hold me in custody without that consent, this will be an overstepping of powers by the prosecutor’s office. But I can expect anything, because perhaps they will come to the conclusion that I am not being deprived of my freedom if the police hold me in custody and brings me to the prosecutor’s office. After all, that is how they treated the participants of the demonstration. They held them in custody and then they released them,’ Judge Tuleya tells us.

The lawyers are divided. We hear opinions that the prosecutor’s office must request permission from the Disciplinary Chamber to apprehend and forcibly bring the judge in for questioning. But there are also voices saying that the prosecutor’s office does not need permission because the Chamber has waived the judge’s immunity by agreeing to the charge being pressed. And the apprehension is related to that.

A well-known Warsaw lawyer tells us:

‘They cannot apprehend the judge without a new approval of the Disciplinary Chamber. Because the previous lifting of the immunity did not include permission to deprive the judge of his freedom, and that is what apprehension and bringing him in by the police is. Nor do I see any grounds for requesting an arrest.’

An experienced prosecutor believes similarly: ‘Arrest for Tuleya? It is theoretically possible. If someone fails to appear twice when summoned by the procedural authority, it will be considered an obstruction of the proceedings. Following this line of reasoning, the prosecutor’s office could apply to the Disciplinary Chamber for permission to detain, or even to remand him in custody. Only this would be a difficult charge to accept. Because remanding him in custody is not justified here. The prosecutor’s office is planning some simple activities with the judge, which can last from a dozen minutes to no more than a few hours. Besides, the judge is not in hiding.’

The prosecutor adds that the prosecutor’s office could sooner decide to hold him for up to 48 hours.

‘But that would also be an abuse of the law and probably only used for demonstration purposes. Overall, I have considerable doubts about the legitimacy of prosecuting Judge Tuleya. It is unreasonable. The National Prosecutor’s Office has put itself up against the wall on its own. It did not foresee the consequences of its decisions and the stubbornness of the judge,’ we hear.

And what about the apprehension of the judge and being brought in by the police for questioning? The prosecutor assesses: ‘He cannot even be apprehended because the Disciplinary Chamber has only lifted his immunity with regard to agreeing to his criminal prosecution. On the other hand, the judge is still protected by immunity with regard to his personal freedom.’

If the National Prosecutor’s Office applies to the Disciplinary Chamber for permission to apprehend the judge, there is a good chance that the Chamber will grant it. After all, it had itself previously agreed to the prosecution of the judge.

Every 18th of the month, judges from Iustitia will organise a day without hearings. This is a protest against the suspension by the illegal Disciplinary Chamber of already three independent judges. The protest will continue until the judges return to court: Igor Tuleya from Warsaw, Paweł Juszczyszyn from Olsztyn and Beata Morawiec from Kraków. The protest takes place on the 18th of the month, because Tuleya was suspended on 18 November 2020.

Translated by Roman Wojtasz