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- The Supreme Court refuses to give its consent to the request of the prosecution to use coercive measures against judge Igor Tuleya on the grounds of the crime he is being accused of- the Disciplinary Chamber announced its decision at 11:00 pm on Thursday.

The decision was made by Adam Roch, who was appointed to the Supreme Court at the request of the politically compromised National Council of the Judiciary (NCJ). Before that, he was the deputy head of the Regional Prosecutor's Office in Katowice.

On Thursday, Mr Roch disagreed with the National Prosecutor's Office, which requested to detain the defiant Warsaw District Court judge Igor Tuleya. - When examining the prosecutor's motion, the court considered issues relating to the freedom of movement, which is a fundamental human right- Mr. Roch said.

The ruling, however, is not final - it is a first instance decision and can be appealed to a three-member panel consisting of judges of the Disciplinary Chamber. The prosecution is likely to exercise its right to challenge the ruling. A similar scenario already happened when the Disciplinary Chamber refused to waive judge Tuleya's immunity. The interlocutory judgment was later reversed by the three-member panel.

Mr Roch vs public prosecutor

The National Public Prosecutor's Office requested that judge Tuleya be seized by the police and brought to testify because he has been refusing to attend hearings regarding the unlawful revocation of his immunity. “With his unlawful behavior, Mr Igor T. is prolonging the proceedings and hindering judicial verification of the charges brought against him” – the prosecution argued.

- The formal grounds for detention have become plausible, as there is no justified reason why the judge refuses to attend the hearings- Mr Roch said. - But the Supreme Court cannot limit itself to assessing whether the formal conditions are met. This would stand in opposition to the constitutionally guaranteed protection of personal liberty- he added. 

Mr Tuleya is being persecuted for allowing the media to record the justification of his verdict concerning irregularities in the 2016 parliamentary vote. According to the prosecutor, Mr Tuleya abused his powers and disclosed the secret of the investigation. Should the prosecutor’s office succeed in bringing the charges, he might be facing up to two years in prison.

However, Mr Roch recognized that “proceedings of this nature can be conducted in public”, adding that, “in this case, the transparency of public affairs was of particular importance. It was crucial to shine a light on events that appalled the public opinion”.

Mr Roch also emphasized that in order to detain judge Tuleya, there would have to be a reasonable suspicion that he had committed a crime. - There are no sufficient grounds to justify the detention - he concluded after having examined the materials presented by the prosecution. - The prosecutor did not specify what information about the proceeding had been disclosed. The prosecution failed to demonstrate that this action realistically endangered the proceedings – Mr Roch argued. 

He thus criticized the prosecution, but also the panel of the Disciplinary Chamber, which, having analyzed the same evidence material, concluded that there were sufficient grounds to lift the judge's immunity. - I do not mean to depreciate the importance or the viability of that resolution- Mr Roch pointed out. 

Finally, he stated that Mr Tuleya’s refusal to attend the hearings creates a deadlock situation. - This deadlock can be broken if the prosecution changes its position on the legitimacy of the charges brought against the defendant- he said. Another option would be the judge deciding to show up to the hearing. - This will allow the investigation to be concluded and discontinued, or the indictment to be sent to court.

Legal experts comment on the decision: „fake judges are starting to fight each other”

-It looks like the fake judges in the Disciplinary Chamber are seriously starting to fight each other now. The justification of today's decision indicates that the Disciplinary Chamber currently sees no reasonable suspicion that Mr Tuleya committed a crime – said the constitutional law expert, Prof. Marcin Matczak.

Some lawyers link the decision to the complaint that the European Commission has brought against Poland. The Court of Justice of the European Union is expected to decide soon whether to suspend the validity of the Disciplinary Chamber resolutions to strip judges of their immunity.

- Is this a success? Sure, we won the battle, but let's keep in mind that the situation was similar when the court has decided to lift my immunity. I will say what I already said last time: the case was decided by an institution that is certainly not a court- Mr Tuleya commented on the decision.

All the rulings in Mr Tuleya's case were made by the Disciplinary Chamber, which is staffed entirely with the help of the politicized NCJ. The Supreme Court ruled that the Disciplinary Chamber is not an official court, and its rulings are necessarily flawed. Therefore, Mr Tuleya did not recognize the Chamber’s decision to strip him of his immunity and refused to attend the hearings. His reaction to yesterday’s ruling was similar.

- It cannot be that an illegal institution is trying to legitimize itself at my expense- Mr Tuleya said shortly before midnight in front of the Supreme Court building. - I stand by my words that the decision announced today was made not in this building, but in someplace else.

We are yet to find out what the person who is really pulling the strings here has planned for us. Our fight for judicial independence continues- he added.

- At this moment, we are not getting ourselves the entire argument whether the Disciplinary Chamber is legal or not, this case has a different context. We can sign off on every word of the justification- one of Mr Tuleya's attorneys, Jacek Dubois, said after the hearing. - We learned why Mr Igor Tuleya is an exemplary judge, and why there were no grounds for him to go through the ordeal he was put through. The wall of slander is falling apart - he pointed out.

The decision was announced after two days of deliberations and a total of 22 hours in a closed session. After hour-long speeches of the defense attorneys, Mr Roch announced only a half-hour break and read the oral grounds afterward.

"He read from a several dozen pages-long document, which did not refer to the arguments presented by the defense in a single sentence. It must have been prepared beforehand, that is clear" –lawyers from the Free Courts Initiative pointed out.

"The text of the 'resolution' makes it clear that the Disciplinary Chamber’s decision to wave Mr Tuleya’s immunity remains in force. Judge Tuleya is still not allowed to adjudicate and has his salary significantly reduced, although - as the text also shows - he is completely innocent. It’s an absurd situation, much like in Kafka's ‘Trial’”- they added.

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