A Polish judge who has been a vocal critic of the government’s judicial policies has been suspended and stripped of immunity from prosecution by the controversial disciplinary chamber of the Supreme Court created by those very policies.
The legitimacy of that chamber has been rejected by both the Supreme Court itself – which found it to “not be a court [under] EU and national law” – and the Court of Justice of the European Union (CJEU), which earlier this year ordered Poland’s new disciplinary regime for judges to be suspended.
A CJEU judge told Polish media that the ruling against Igor Tuleya, of Warsaw’s district court, was “not legal”, given that such activity by the disciplinary chamber should be suspended.
Tuleya, who had previously said that he did not see the institution as legitimate and would not accept its decision, confirmed this position after the ruling. Vowing to continue to adjudicate, he said: “No political court can take me away from ruling. I am a European judge”.
When he turned up for work the next day, however, his cases had been taken off the court’s calendar and he was not permitted to enter the courtroom, reports Gazeta Wyborcza.
"Judge Igor Tuleya has faced threats, fake anthrax attacks and denunciations in the right-wing news media as he fights the government’s campaign to control the courts"@nytimes #SaturdayProfile https://t.co/0u9qZSWsks
— Notes from Poland 🇵🇱 (@notesfrompoland) January 11, 2020
The disciplinary chamber’s decision now opens Tuleya up to criminal proceedings that prosecutors are seeking to bring against him over a highly political case in which he issued a ruling that effectively went against the ruling coalition.
In 2017, Tuleya annulled a decision by prosecutors to discontinue an investigation into the potentially unlawful passing of the government’s annual budget by parliament. The speaker of the lower house – who was from the ruling Law and Justice (PiS) party – had ordered the vote to be held outside the normal chamber, because it was being occupied in a protest by opposition MPs
After the vote, opposition MPs notified prosecutors of alleged restrictions on participation in the impromptu session and raised doubts as to whether the necessary quorum was achieved.
Prosecutors decided to discontinue the case, but Tuleya overturned that decision, ruling they should proceed and also noting potentially false statements made by 230 MPs, mainly from the ruling coalition. The case was nonetheless discontinued once more by prosecutors in 2018.
Now, prosecutors claim that, by allowing journalists to attend and record his court proceedings, Tuleya allowed the public disclosure of details of the case to “unauthorised” people. That has served as grounds for launching criminal proceedings against him for exceeding his powers and unlawfully disclosing information.
However, Tuleya and his supporters in the judicial community argue that he was entitled to make the hearing public. He says the charges against him are “political”. Prosecutors are under the ultimate authority of prosecutor general Zbigniew Ziobro, who in his other role as justice minister has led the government’s judicial policies.
Tuleya has been one of the most prominent judges to have protested against the government’s overhaul of the judicial system, which has been condemned as a violation of the rule of law by a wide range of international institutions and expert bodies.
The disciplinary chamber of the Supreme Court earlier this year rejected a request to waive Tuleya’s immunity. However, prosecutors appealed the chamber’s decision, and it has now ruled in their favour. As well as stripping his immunity and suspending him, the chamber also cut Tuleya’s salary by a quarter.
Tuleya is not the first judge critical of the government to have been stripped of immunity, but he is the first to have it done as a result of actions in the courtroom, according to Iustitia, a Polish judges’ association cited by Reuters.
“I can appeal to Europe. You didn’t protect the independence of the courts in Poland. You didn’t protect the independence of Polish judges. You allowed the rule of law to be destroyed in Poland,” Tuleya told Reuters after this week’s verdict.
Previously, prosecutors’ request to strip the judge of immunity would have been heard by the disciplinary court at a court of appeal. But, under the disciplinary system created by the PiS-led government, that task now falls to the disciplinary chamber of the Supreme Court.
That chamber was itself created as part of PiS’s judicial overhaul, and all of its members were chosen by the National Council of the Judiciary (KRS), which was also reformed by PiS and declared by the Supreme Court to be “not an impartial and independent body”. In that ruling, the Supreme Court noted that the KRS had selected judges for the disciplinary chamber who “are strongly associated with the legislative or executive”.
Earlier this year, the chamber gained new powers allowing it to punish judges who question the government’s judicial overhaul and engage in unspecified “political activities”. That decision has been criticised by EU institutions as well as representatives of the OSCE, the Council of Europe and the UN.
in January this year, the European Commission requested interim measures from the CJEU to suspend the disciplinary chamber ahead of a final ruling. In April, the CJEU accepted the commission’s argument that Poland’s disciplinary system could “cause serious and irreparable harm to the EU legal order”, and that therefore an interim suspension of it is a matter of “urgency”.
One of the CJEU’s judges, Marek Safjan – who is also a former president of Poland’s Constitutional Tribunal – said yesterday that the disciplinary chamber’s pronouncement “is not a legal ruling”.
Such activity by the chamber should be suspended, Safjan told Onet. He said that the action against Tuleya is “particularly disturbing” because it relates to his judicial activity and is therefore “a direct and unacceptable encroachment into the sphere of judicial independence”.
The verdict comes during a scrap between Warsaw and Brussels over the proposal to link funding from the next EU budget to respect for the rule of law. The budget has been blocked by both Poland and Hungary, who say that it would open the gates to political decisions punishing certain countries arbitrarily.
On Wednesday night, Poland’s Prime Minister Mateusz Morawiecki compared the EU to Poland’s communist regime, accusing it of using the rule of law as a “propaganda bludgeon” to “chasten us like children”.
Main image credit: Dawid Zuchowicz / Agencja Gazeta
Maria Wilczek is deputy editor of Notes from Poland. She is a regular writer for The Times, The Economist and Al Jazeera English, and has also featured in Foreign Policy, Politico Europe, The Spectator and Gazeta Wyborcza.
