“This is tangible evidence that Poland is no different from Turkey.   The consequences for issuing a judgment on the vote of the Sejm’s majority in the Column Hall should have been expected from the beginning. And I expected them. I am probably one of the pests that should be eliminated,” this is how Judge Igor Tuleya comments on the prosecutor’s motion to waive his immunity.

National Prosecution Office: Tuleya has overstepped his powers

The internal department of the National Prosecution Office has applied for the waiver of the immunity. This is a special department established by the Law and Justice party (Prawo i Sprawiedliwość, PiS) or prosecuting prosecutors and judges.

The prosecution office wants to waive the immunity in order to press criminal charges against the judge for failing to comply perform his official duties and overstepping his powers, with regard to the judgment issued on 18 December 2017.

The National Prosecution Office claims Tuleya unlawfully allowed it to be heard and recorded by journalists. According to the prosecution office, the judge disclosed a secret of the investigation to ‘unauthorized personnel’. The motion for the waiver of the immunity was signed by Prosecutor Dariusz Ziomek, who had been delegated to work for the National Prosecution Office from the Regional Prosecution Office in Gdańsk.

The motion will be considered by the Disciplinary Chamber of the Supreme Court on 20 March 2020. Such motions have been considered to date by the disciplinary court at the court of appeal. However, Law and Justice entered a provision into the muzzle act whereby motions to waive the immunity of judges and prosecutors were to be immediately recognized by the Disciplinary Chamber appointed by Law and Justice.

This is how the ruling camp wants to increase the chances of accusing rebellious judges and prosecutors, because the Disciplinary Chamber is staffed mainly with former co-workers of the Minister of Justice and Prosecutor General, Zbigniew Ziobro.

The motion to waive Igor Tuleya’s immunity will be considered by Jacek Wygoda, a former prosecutor, among others, associated with the Institute of National Remembrance (IPN).

How Tuleya ordered another investigation into the voting in the Column Hall

The association of judges, Iustitia, reported the motion to waive the immunity on its Facebook profile on Wednesday, 26 February 2020 (in the evening).

However, many months ago, OKO.press was the first to write that the prosecution office intends to press charges against Tuleya.

Just to reiterate. Judge Igor Tuleya received a complaint to discontinue the investigation into the Law and Justice voting on the budget for 2017 in the Column Hall of the Sejm for adjudication in December 2017. The Speaker of the Sejm had moved the meeting then because the opposition was protesting against the exclusion of MP Michał Szczerba from the deliberations and the planned restriction of journalists’ rights in the Sejm in the Plenary Hall. A heated protest of the citizens was taking place at that time in front of the parliament.

After voting in the Column Hall, the opposition MPs reported the matter to the prosecution office. They wrote in that report that they were not allowed to take part in the deliberations and that there might not have been a quorum during the voting. Therefore, the budget may have been passed illegally. The investigators did not see any faults and dismissed the case.

However, Judge Tuleya overruled the decision of the prosecution office and ordered another investigation.

Tuleya’s judgment was publicised because he allowed the media to record his oral justification. In the justification, the judge quoted the testimony given in the prosecution office by the Law and Justice MPs. It transpired from them that, among other things, the opposition MPs were not allowed to enter the Column Hall, that the voting reports had been reworked, and that there may not have been a quorum in the hall, because MPs were constantly leaving to go into the corridor.

In addition, in view of the discrepancies in the testimony of the Law and Justice MPs, the judge ordered the prosecution office to examine whether they had given false testimony.

Judge Tuleya was able to let the media in

After Tuleya’s decision, however, the prosecution office discontinued the case for a second time and took an interest in the judge.

The case came to the forefront because the prosecution office questioned the employees of the secretariat of the VIII division, in which Tuleya was adjudicating, including the court clerk who was in the courtroom with the judge at that time. Joanna Bitner, President of the Regional Court and former chairperson of the VIII Criminal Division and Judge Wojciech Małek, who assigned the matter of voting in the Column Hall to Tuleya, were also questioned.

The willingness of the prosecution office to prosecute the judge is absurd and can be considered as repression of a brave judge whom Law and Justice and its supporters have hated for over a dozen years.

Tuleya considered the complaint of the opposition MPs about the discontinuation of the matter of the voting on the budget in the Column Hall by the prosecution office at a court session. He only admitted the journalists for the announcement of the judgment.

As a rule, sessions at which complaints against the prosecution office’s decision are heard are held behind closed doors, as referred to in Article 95b para. 1 of the Criminal Procedures Code. The further paragraphs of this provision list which meetings are open to the public.

However, Article 95b para. 1 also states that the president of the court or the judge himself may decide that a session, which is, in principle, to be held behind closed doors, may be held in public. This is his discretionary decision.

In this case, Tuleya ordered a public hearing. Before the start, the journalists who were present in the courtroom submitted a request for permission to record the meeting and for taking part in it. The judge asked the representatives of the MPs and the prosecutor for their position, and they left the decision to the court.

The prosecutor did not raise an objection, for instance by making reference to the good of the investigation or the materials gathered in the case files. In this situation, the judge allowed the hearing to be held in public. It is important that the case applied to a matter which is of importance to the public.

Tuleya could also legally disclose evidence from the investigation. Because when a case is filed with the court, the court decides about the extent of disclosure of the material from the case files. The judge did not reveal any secrets from the investigation, because the case had already been discontinued in the prosecution office.

Tuleya, who does not bow to the Central Anticorruption Bureau and Ziobro

The current motion to waive the immunity for the judgment that was critical of Law and Justice can be treated as an excuse for pressing criminal charges against him. Tuleya has been heavily involved in the defence of the free courts for several years; he often meets with citizens.  He was awarded the prestigious Edward J. Wende prize in 2019 for that.

Tuleya also strongly criticizes the ‘good change’ in the courts and Minister Zbigniew Ziobro. He is threatened with disciplinary proceedings for that and for meeting with citizens and for submitting requests for preliminary rulings to the CJEU.

But Tuleya has been in the Law and Justice firing line for a dozen or so years. He fell to the right wing’s bad books when he compared the methods of work of Mariusz Kamiński’s Central Anticorruption Bureau (in 2006–2007) to the methods used in the Stalinist era. Tuleya used this comparison in his judgment on the cardiac surgeon, Dr. G., whom he judged for receiving envelopes with money from patients.

And he became one of the right wing’s most hated judges in Poland for this comparison. Because he criticized the service subordinated to Mariusz Kamiński at that time. Kamiński is currently the head of the Ministry of Interior and Administration and vice president of Law and Justice.