Ziobro’s man strikes at the Court of Appeal in Warsaw. He is prosecuting a judge for the ruling in Tuleya’s case and EU law

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Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.

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Michał Lasota, Minister Ziobro’s disciplinary commissioner, has instigated disciplinary action against Judge Dorota Tyrała. The judge’s ‘guilt’ is that she issued a ruling that was favourable for Igor Tuleya and implemented the judgments of the CJEU and the ECtHR. Additionally, charges were filed against three other appellate judges for the same thing.



Judge Dorota Tyrała of the Court of Appeal in Warsaw is an experienced judge with 32 years of experience in criminal cases. The judge heard four disciplinary charges from Deputy Disciplinary Commissioner Michał Lasota, Minister Ziobro’s nominee (pictured above). Lasota, together with the chief disciplinary commissioner, Piotr Schab and his second deputy Przemyslaw Radzik, are known for prosecuting judges who defend free courts.

 

The three charges against Judge Tyrała are for being a member of a multi-member panel which issued three rulings challenging rulings issued with the involvement of neo-judges. In other words, judges nominated by the illegal and politicised National Council of the Judiciary (neo-NCJ).

 

Meanwhile, the fourth charge is for the fact that a judge was a member of a multi-member panel in February 2021, which then issued a precedent-setting ruling challenging the legality of the Disciplinary Chamber. This was perhaps the first such ruling by an ordinary court. The Court of Appeal then ruled that that Chamber had not lifted Judge Igor Tuleya’s immunity or suspended him. This is because it is not a legal court.

 

Judge Tyrała, together with other judges, referred to the rulings of the ECtHR, the CJEU and the Supreme Court which challenged the legality of the neo-NCJ, the Disciplinary Chamber and the nominations for neo-judges.

 

However, Lasota is exposing himself to criminal and disciplinary liability in the future for the allegations raised against Judge Tyrała, as he breached the CJEU’s interim measure of 14 July 2021. The Court had then suspended the provisions of the Muzzle Act allowing judges to be punished for applying EU law. Whereas Lasota applied them. He also failed to notice that PiS itself liquidated the Disciplinary Chamber.

 

‘I feel strange, because I have never had disciplinary charges in my work as a judge,’ Judge Dorota Tyrała tells OKO.press. And adds: ‘I apply the provisions of the law and the case law of the Supreme Court, the European Courts and the Constitution. And I now have disciplinary charges for that. But this does not mean that it will have the effect of intimidating me. I will not change my legal view. If I were to regret my decisions now, I would be distorting the essence of a judge’s work.’

 

Lasota is prosecuting three more appellate judges

In addition to Judge Tyrała, three other judges of the Court of Appeal in Warsaw have heard disciplinary charges. They were also pressed by Michał Lasota. These are Judges Ewa Gregajtys, Ewa Leszczyńska-Furtak and Marzanna Piekarska-Drążek. They are all criminal law judges. They, too, are facing charges for enforcing the judgments of the ECtHR and the CJEU, which challenged the neo-NCJ and the nominations it had given to neo-judges. Judge Piekarska-Drążek may also be charged for issuing a ruling with Judge Tyrała in Tuleya’s case. 

 

These three judges have not yet received formal decisions. However, it is already known that they have heard disciplinary charges, as Chief Disciplinary Commissioner, Piotr Schab, announced them at a meeting of the neo-NCJ.

 

Judges Gregajtys, Piekarska-Drążek and Leszczyńska-Furtak had previously been transferred as punishment to the labour division for applying EU law. Piotr Schab, who was also recently made president of the Warsaw Court of Appeal, and his deputy, Przemysław Radzik, were behind these decisions. The judges were being defended by judges throughout Poland, including from the Supreme Court.

 

The transfer of the judge to the labour division was perceived as a hard line that Radzik and Schab want to take in the court of appeal, which is one of the most important courts in Poland. Because it is here that appeals are heard in judgments against the most important state institutions (they are located in Warsaw), in high-profile political cases or those involving politicians. And there are increasingly more neo-judges in the court of appeal. So they have side-lined three brave judges who are not afraid to challenge their status.

 

What Lasota is prosecuting Judge Tyrała for

Deputy Disciplinary Commissioner Michał Lasota pressed disciplinary charges against Judge Dorota Tyrała for four alleged acts. These apply to the judge’s involvement in four rulings being issued by multi-member panels:

 

According to Lasota, she overstepped her powers in February 2021 by issuing a ruling in which she questioned the legality of the Disciplinary Chamber, the neo-judges who were its members and the legality of the neo-NCJ. In this way, the judge was supposed to have acted to the detriment of the public interest, in the form of the correct functioning of the judiciary. It was this precedent-setting judgment that stated that Judge Igor Tuleya was not suspended by the Chamber and his immunity was not effectively lifted.

 

Lasota classified this as a disciplinary delict under Article 107, para. 1, item 3 of the Act on the Structure of Ordinary Courts (which prohibits the examination of the legality of institutions appointed by PiS or staffed by the party). Lasota applied this provision, even though the CJEU had suspended it, which meant that Lasota breached this Court’s interim measure. Furthermore, the deputy disciplinary commissioner is also accusing the judge of an act under Article 231, para. 1 of the Penal Code, which refers to overstepping powers by a public official.

 

In July 2022 – according to Lasota – the judge was alleged to have committed three disciplinary delicts related to a breach of the Muzzle Act and was again alleged to have overstepped her powers. This is about being involved in four rulings issued by multi-member panels. These panels reviewed rulings made in the first instance with the involvement of neo-judges. And they overturned them, finding that the panels with neo-judges were defectively staffed. The contested neo-judges are Dorota Radlinska of the Court of Appeal in Warsaw and Agnieszka Brygidyr-Dorosz of the Regional Court for Warszawa-Praga.

 

Lasota is charging Judge Tyrała of once again undermining the legitimacy of the neo-NCJ and the nominations it has given to neo-judges. Meanwhile, the judge applied the judgments of the ECtHR, the CJEU, the resolution of the full Supreme Court of January 2020 and the resolution of the 7 judges of the Supreme Court of June 2022. It was in these rulings that the neo-NCJ was held not to be a legitimate body, so the nominations it had given for neo-judges could also be contested.

 

Judge Tyrała: nothing to be ashamed of

Judge Dorota Tyrała is surprised by the disciplinary charges for her rulings. Especially for the ruling of February 2021 regarding Tuleya and the Disciplinary Chamber. Because, in that case, although Lasota initiated an investigation, nothing had been happening for a long time. Now it looks like he has added the charge for that case to a further three charges for applying EU law.

 

And he has used the charges against Dorota Tyrała to make a head-on strike at the legitimate judges of the Court of Appeal in Warsaw who apply EU law. Namely, also Judges Ewa Leszczyńska-Furtak, Ewa Gregajtys and Marzanna Piekarska-Drążek.

 

The last of these judges is known for her speeches in front of the Supreme Court building in defence of other repressed judges. She was even suspended for a month by Minister of Justice Zbigniew Ziobro in January 2022 for applying EU law and contesting the status of neo-judges. But the illegal Disciplinary Chamber did not manage to suspend her indefinitely, because the ECtHR gave her protection by issuing an interim measure. In September, Piekarska-Drążęk’s further suspension was dealt with by the new Chamber of Professional Liability (which replaced the abolished Disciplinary Chamber), which assessed that Ziobro had wrongly suspended the judge for a month for applying the judgments of the ECtHR and the CJEU.

 

Judge Dorota Tyrała has been dealing with criminal cases since 1990. She is an experienced judge. She was also a vice-president of the Regional Court in Warsaw, and an electoral commissioner. Now, in the Court of Appeal, she handles serious and complicated murder trials and trials of organised crime groups. She is currently handling 89 cases at once. So far, she has never heard any reservations about her work as a judge. That is why she is surprised by Lasota’s disciplinary charges.

 

‘A judge of my generation assumes that disciplinary proceedings are for shortcomings at work for which an experienced judge should be ashamed,’ Judge Tyrała tells OKO.press. And adds: ‘But I applied the law, the rulings of the European Courts and the Constitution. And I have disciplinary charges for that. That’s why I feel strange and am shocked. But this type of action will not intimidate me.’

 

Repression of judges for applying EU law

Judge Tyrała and the three other appellate judges are not the only judges in Poland who are being repressed for implementing the ECtHR and CJEU rulings. There are dozens of such judges. They are being disciplined, suspended and transferred to other divisions as punishment. The illegal Disciplinary Chamber alone has managed to suspend five judges for applying EU law: Paweł Juszczyszyn from Olsztyn, Piotr Gąciarek and Krzysztof Chmielewski from Warsaw, Maciej Rutkiewicz from Elbląg and Maciej Ferk from Kraków. Judges Juszczyszyn and Rutkiewicz have already returned to adjudication. Their suspensions were lifted.

 

But suspension threatens a larger group of judges. They were not suspended only because interim measures in their cases were issued by the ECtHR, and the Disciplinary Chamber was finally liquidated as the implementation of the CJEU judgment of 15 July 2021 (the Court in this judgment ruled that the Chamber was not a legitimate court).

 

The European Commission is still not paying Poland billions of euros from the National Recovery Plan, among other things, because of the suspension of judges applying EU law. Meanwhile, Poland has been fined 1 million euros per day for applying the Muzzle Act, the provisions of which were suspended by the CJEU in an interim measure of 14 July 2021. And today, this penalty already amounts to 1,603 million zlotys.

 

Translated by Roman Wojtasz

 

The article was published in Polish at OKO.press.



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Journalist covering law and politics for OKO.press. Previously journalist at Gazeta Wyborcza, Rzeczpospolita, Polska The Times, Dziennik Gazeta Prawna.


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Published

October 27, 2022

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