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The requests to lift the immunity were filed by prosecuting authorities from the Internal Affairs Department of the National Prosecutor’s Office. It is a special unit created in 2016 to prove that the Polish justice system suffers from pathologies and corrupt arrangements. The IAD is already prosecuting judges who disagree with the ruling camp’s efforts to restrict the independence of the judiciary: judges Igor Tuleya and Beata Morawiec. Both had their immunity revoked at the request of the prosecutor’s office. Now, three ‘old’ justices of the Supreme Court could be facing a similar fate.

The requests apply to “Marek P., Andrzej S. and Włodzimierz W.” – as the prosecutors referred to them in the announcement. These judges are Marek Pietruszyński, Andrzej Stępka and Włodzimierz Wróbel.

„The prosecutor’s office intends to charge them with the inadvertent failure to settle cases in accordance with the applicable laws’- the prosecutors announced. According to the Polish Penal Code, the judges might be looking at a sentence of up to two years in prison.

Judges will answer for the negligence of the employees

According to the prosecutor’s office, by their rulings, the judges “brought about the unlawful imprisonment of two people”. How? Judge Marek Pietruszyński made a stay of the execution of a sentence for a man sentenced to prison for theft. Allegedly, the judge did not check whether the man was already serving his sentence. “The judge’s omission resulted in the man being unreasonably imprisoned for almost a month”- reads the official communiqué.

In turn, Judges Andrzej Stępka and Włodzimierz Wróbel overturned a two-year prison sentence for the perpetrator of a fatal accident. “Despite their obligation, they did not check whether the sentence was already being executed. The man illegally spent over a month in prison as a result of the omissions of the judges”- the prosecutor’s office acknowledged.

The cases described by the prosecutor’s office were pending in the Supreme Court in 2019. No release order was indeed issued in either case, which should have gone to the prison.

“This is a routine activity that all managers of secretariats take care to perform. I, as a judge, have never issued such an order myself. In these two cases, it was acknowledged that there was negligence on the part of the employees of the Supreme Court”- says the president of the Supreme Court’s Criminal Chamber, Michał Laskowski.

“The failure to issue the orders resulted in disciplinary proceedings being conducted in the Supreme Court against the court clerk, who should have initiated this, and the manager of the secretariat of the Third Criminal Chamber. These proceedings ended with a final and binding reprimand for the court clerk and the dismissal of the manager of the secretariat”- he adds.

“The long-standing practice of the Criminal Chamber is as follows: it is the manager of the secretariat or possibly the court clerk who ensures that the court’s decision is implemented. The court overturns the sentence and someone looks into the system, checks where the offender is being held and sends a release order to the unit. In this case, it only took place after the defense counsel intervened, and in the other case, after the prison intervened”- Mr. Laskowski points out.

“The judges were not considered liable in these cases. But the prosecutor’s office initiated criminal proceedings in a situation where there was no intention to deprive a person of freedom. I have never encountered such a situation”- says Mr. Laskowski. “It is significant that Włodzimierz Wróbel was among these three judges. We can assume that the attack is aimed at him”- he adds.

‘Old’ judges in the hands of the Disciplinary Chamber 

Professor Włodzimierz Wróbel is the head of the Department of Criminal Law at the Jagiellonian University and the author of over a hundred academic works. He holds a title of the “Civic Judge of the Year 2020”. He was behind the famous justification of the resolution of three chambers issued last year (the PiS government does not recognize it). Despite the fact that he received the most votes in last year’s election for the office of the first chairman of the Supreme Court, the president did not appoint Mr. Wróbel. In his speeches, the judge emphatically stood up in defense of the Supreme Court’s independence.

Now, the Disciplinary Chamber staffed in whole with ‘new’ judges appointed by the politicized NCJ will deal with the requests of the prosecutor’s office. The Supreme Court – among others, in a resolution of the three chambers – ruled that the Disciplinary Chamber is not a court and its rulings are burdened with an irremovable defect. Later, the activities of the Chamber were frozen by the EU Court of Justice. Even so, the Chamber continues to rule on the lifting of the immunity of judges.

“A judge’s immunity can only be lifted by a final decision of an independent and impartial court. The Disciplinary Chamber has none of these properties”- the Warsaw Court of Appeals recently concluded in Judge Igor Tuleya’s case.

“The Polish prosecutor’s office has just acknowledged that the most dangerous potential criminals are the judge-professors from the Polish Supreme Court. That is why it has applied to a non-court, namely the Disciplinary Chamber, to lift their immunity. This is legal violence”- says the constitutional law expert, Professor Marcin Matczak.

“The National Public Prosecutor’s Office wants to prosecute legal judges of the Supreme Court, including Prof. Włodzimierz Wróbel. Obviously, the inquisitorial disciplinary chamber is to lift their immunities. They have really gone crazy in this rush to repress independent judges”- comments Michał Wawrykiewicz, attorney-at-law associated with the ‘Free Courts’ initiative.

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An initial version of the translated article first appeared on the Rule of Law website.

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