Judge critical of Polish government barred from returning to work as dispute over judiciary deepens

A Polish judge and leading critic of the government’s overhaul of the judiciary has today been denied the right to return to work, despite a court ruling on Friday declaring his suspension to be illegitimate.

The case highlights an issue at the heart of the dispute over Poland’s judiciary. Many judges – citing Supreme Court and European Court of Justice rulings – reject the legitimacy of bodies created by the government’s policies. In response, the government accuses them of creating “legal anarchy”.

“We can effectively observe two legal systems within one member state of the European Union,” says Patryk Wachowiec, a legal analyst at the Civil Development Forum (FOR). He warns that this could “paralyse” aspects of EU law.

The judge in question is Igor Tuleya of Warsaw’s district court. He has been a prominent figure in protests against the judicial policies introduced by the national-conservative government, which have also been criticised by a wide range of international bodies.

In November, Tuleya was suspended from his position and stripped of legal immunity by the disciplinary chamber of the Supreme Court, which was created as part of those government policies.

That opens the way for Tuleya to face criminal charges prosecutors are seeking to bring against him relating to a ruling he issued that went against the government. Prosecutors are under the ultimate authority of Zbigniew Ziobro, who serves as both justice minister and prosecutor general.

However, the legitimacy of the disciplinary chamber has been rejected by the Supreme Court itself, which found it to “not be a court [under] EU and national law”. Last year, the Court of Justice of the European Union (CJEU) ordered Poland’s new disciplinary regime for judges to be suspended.

One CJEU judge, Marek Safjan, told Onet that the disciplinary chamber’s decision regarding Tuleya “is not a legal ruling”. He added that the actions against the judge are “a direct and unacceptable encroachment into the sphere of judicial independence”.

Tuleya refused to appear before the chamber or to recognise its ruling. He has also twice – in January and February this year – refused to comply with summonses from prosecutors who wish to present him with charges and question him.

At the time that the disciplinary chamber was issuing its decision in November, Tuleya submitted a request to the CJEU for a preliminary ruling on whether the chamber had the right to rule on his case.

That request was in turn challenged by the District Prosecutor’s Office in Warsaw, which argued that it was invalid because Tuleya had no right to serve as a judge at the time.

The prosecutors’ challenge was, however, rejected last week by the court of appeals in Warsaw. Its judges found that, because the disciplinary chamber is not a legitimate court, its decision to suspend Tuleya carries no legal force.

“The suspension of a judge from office and the waiving of immunity only happen on the basis of a decision [by] an independent and impartial court through fair and open proceedings,” noted the court. “The functioning of the disciplinary chamber does not have any of these characteristics.”

The judges agreed with the previous ruling of the Supreme Court that the disciplinary chamber “is not a court within the meaning of the constitution”. The way its members are selected – through another newly created body under political influence – means that it “lacks the indispensable feature of a court, independence”.

As such, Tuleya has “continued to be a judge with immunity and the right to adjudicate assigned to this office”, concluded the appeals court.

In response, the National Prosecutor’s Office declared that the court of appeal’s ruling was itself “legally ineffective, as no legal provision provide for the competence of this court [regarding] judicial immunity or suspension from duty”. Only the disciplinary chamber is entitled to make such decisions.

A deputy justice minister, Sebastian Kaleta, declared that the court of appeal’s ruling was “another attempt to create anarchy in the Polish judiciary by some judges [who are] undermining the legal order of the Polish Republic”.

Wachowiec notes that the judges at the appeals court who made the ruling could themselves now face disciplinary action. Legislation introduced last year – which critics dub the “muzzle law” – allows judges to be punished, including with dismissal, for refusing to accept the validity of the government’s judicial policies.

In light of last week’s ruling confirming that his suspension was invalid, Tuleya today sought to return to work at Warsaw district court. He arrived this morning at the court, surrounded by fellow judges and other supporters.

The court, however, refused to readmit Tuleya. “The president of Warsaw district court respects the resolution of the Supreme Court’s disciplinary chamber to suspend judge Igor Tuleya from duty,” it announced in a statement.

The president of the court is Piotr Schab, who was in 2018 appointed by Ziobro – the justice minister and prosecutor general – as the official overseeing disciplinary cases against judges.

How the case will develop remains unclear, says Wachowiec. It is possible that prosecutors could detain Tuleya by force to hear charges, as they have threatened to do. However, as there is no time limit on when the case must be presented to court, in theory Tuleya could remain suspended indefinitely, notes Wachowiec.

The analyst believes that the dispute at the heart of the issue – over the validity of the government’s judicial changes – will ultimately be settled in European courts.

The current “dual legal system creates tremendous harm in Poland and the EU”, and threatens to “paralyse spheres of EU law”, such as European Arrest Warrants, family law issues and business cooperation. A growing number of courts in other EU countries have questioned the independence of Polish courts.

Because Poland’s most powerful court – the Constitutional Tribunal, which was also overhauled by the government – itself “does not fulfil the requirements of independence and is also not properly established…The most effective tool is to bring cases before the CJEU or the European Court for Human Rights”, says Wachowiec.

Main image credit: Adam Stepien / Agencja Gazeta

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.