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"If a Polish and European judge expresses a legal view inconsistent with the expectations of Poland’s executive branch, there is a risk that disciplinary and criminal proceedings will be launched against that person. In the cases of Judges Juszczyszyn and Tuleya, these actions are being taken during the course of court proceedings. These practices are characteristic of an authoritarian state”- reads the letter that Michał Romanowski, a lawyer representing judges Juszczyszyn and Tuleya, sent to the Vice President of the European Commission Vera Jourova.

In his letter, Mr Romanowski evokes the examples of his clients to describe the repressive tactics used against Polish judges who refuse to toe the party line.

"The independence of the Polish and European judiciary is being ferociously assailed by the executive branch in Poland" – the lawyer argues. "On behalf of Paweł Juszczyszyn and Igor Tuleya, I beg you, Commissioner, for the European Commission to take up the fight in the Court of Justice of the European Union to seek justice”- he concludes. 

Paweł Juszczyszyn, an Olsztyn-based judge suspended by the politicized Disciplinary Chamber of the Supreme Court for implementing a CJEU ruling, has not been able to exercise his professional duties since February 4, 2020

Similarly, Igor Tuleya, a judge from Warsaw, was denied to adjudicate over 173 days ago. The same Chamber waived his immunity and suspended him for allowing the media to record the justification of his verdict concerning irregularities in the 2016 parliamentary vote.

Both judges argue that the decisions of the Disciplinary Chamber are illegal. The Chamber was entirely staffed with the help of a politically compromised National Council of the Judiciary. According to last year's resolution issued by the remaining three chambers of the Supreme Court, the NCJ is not a court, and its rulings are inherently defective.  Later, also the Court of Justice of the European Union decided to suspend the Chamber’s activity.

Yet, the decisions of the illegal Disciplinary Chamber are still respected by the Law and Justice government, the national prosecutor's office, as well as the government-friendly court presidents who removed judges Juszczyszyn and Tuleya from the bench. Both defiant judges are suing their courts and demand to be reinstated. The disciplinary prosecutor and the National Prosecutor's Office have been involved in the legal proceedings. In one of the cases, the adjudicating panel ordering the reinstatement of a judge was accused of committing a crime.

Sędzia Paweł JuszczyszynSędzia Paweł Juszczyszyn Piotr Wójcik

Unfavorable ruling? Surely a crime!

"Paweł Juszczyszyn should be allowed to perform all his official duties". - The District Court in Bydgoszcz ruled in mid-April.

The protective order issued pending the outcome of the case obliges the District Court in Olsztyn to reinstate judge Juszczyszyn to bench. The ruling stepped into force immediately. Yet, the court’s president, Maciej Nawacki, continues to refuse to comply with the decision. Mr Juszczyszyn's attorney has filed a motion to enforce the protective measure in court, additionally asking to impose a PLN 15. 000 fine on Mr Nawacki should he fail to comply with the ruling.

"Constitutional issues, such as allowing a judge to adjudicate, are not subject to civil law protective orders" Mr Nawacki told the Polish Press Agency. He is likely to appeal the interim measure, but before he does, he is trying to get the case reviewed in the court of the first instance. "I request that the order be immediately revoked in view a new circumstance – the fact that the panel of judges has committed a crime" he wrote to the Bydgoszcz District court in late April. 

Oko.press was the first to report on Mr Nawacki's motion. In it, the portal wrote, the president alleges that the members of the panel that ordered judge Juszczyszyn's reinstatement- Katarzyna Błażejowska, Aneta Marciniak and Iwona Wiśniewska- committed a crime.

They are accused of abusing their power to obtain personal or material benefits. Such an act is punishable by up to 10 years in prison. - The allegations are unbelievably absurd. It’s even difficult to comment on this. The provision applies when a public official issued a specific decision in exchange for financial benefits. I think the goal here is to simply intimidate the judges - says Mr Romanowski, the lawyer.

- What exactly was the criminal offense in this case? Did you file a notice to the prosecution? - We asked Mr Nawacki, but he did not respond to our inquiry.

Disciplinary prosecutor takes over the case files

The disciplinary prosecutor Michał Lasota already got involved in judge Juszczyszyn's case. - He requested the case files and they were handed over to him - says Judge Sylwia Suska-Obidowska, the spokesperson for the District Court in Bydgoszcz. 

Mr Lasota is one of three chief disciplinary prosecutors directly appointed by the Minister of Justice. Their task is to prosecute unruly judges. After analyzing the case files, Mr Lasota may initiate an investigation and disciplinary proceedings against the three judges in Bydgoszcz. We have not yet received an answer as to whether this has already happened.  

- This is a model example of exerting political pressure on independent courts. A chilling effect- says Mr Romanowski. - It is unheard of for a disciplinary prosecutor to hold on to a case file during an ongoing proceeding when there is no justification for a protective order yet. The files are already in Warsaw, so the court in Bydgoszcz can’t even access them. This will certainly prolong the proceedings – the lawyer adds.

Another case in point: the case of judge Igor Tuleya

According to Mr Romanowski, the chilling effect can already be seen in practice in a similar case pending in Warsaw, where judge Igor Tuleya is fighting for his reinstatement. He was removed from office by Piotr Schab, president of the Warsaw District Court and the country's chief disciplinary prosecutor.

Mr Tuleya filed a motion for a protective order to the Warsaw District Court, which then transferred the case to the Circuit Court for Warsaw Praga-Północ district. However, in mid-April, the court decided that the case was not in its jurisdiction, and returned it to the district court. This has been going on for two months now, even though the motion for a protective order has to be decided within seven days. – Already two months in, and we are still at the starting point" says Mr Romanowski.

The decision to return the case was made singlehandedly by Monika Garstka, a judge of the Praga district circuit court. Mr Tuleya is seeking to prove the existence of an employment relationship (such cases are decided by circuit courts), but the judge ruled that the case is about non-property claims, and such cases are under the jurisdiction of district courts. She cited the passages in the justification of Mr Tuleya's motion that argue for the protection of his good name and dignity.

Moreover, she decided to determine a new value of the matter in dispute. Mr Tuleya's lawyer calculated it at PLN 46,000 (the Disciplinary Chamber reduced his salary by 25%). Ms Garstka, however, estimated the value at PLN 184.000 (she multiplied the judge's full salary times 12), and cases where the value of the matter in dispute exceeds PLN 75.000 are heard by district courts.

- The judge attempted to show that the case involved non-property claims, and then (incorrectly) determined the new value of the dispute. Her reasoning is grossly illogical. I think the judge was looking for an excuse not to hear the case- says Mr Romanowski.

Judges intimidated by the prosecution

Before the circuit court decided it could not hear the case, the National Prosecutor's Office stepped in. Specifically, its department of internal affairs, which is tasked with prosecuting judges.

The prosecution may join any proceeding "if the protection of the rule of law, citizens' rights, or the public interest requires it to". And that is precisely how the prosecution justified its involvement.

"The case has stirred up public opinion and sets a legal precedent. The prosecutor cannot remain silent in the face of a threat and an attempt to upend the stability of the legal order"- prosecutor Edyta Tawrel argued. "The judge's claims for a protective order will lead to legal chaos"- she added.

"The judge presiding over the panel has yielded to the so-called chilling effect caused by the prosecutor's involvement in the proceedings, and has treated Judge Tuleya's case like the proverbial 'hot potato' that needs to be moved to another court" – Mr Romanowski wrote in a letter to the district court requesting that the case be reassigned to the circuit.

- Of course, I understand that we cannot expect every single judge to show heroic courage, but still, Ms Garstka is a judge and cannot refuse to hear the case- the lawyer added. - Judge Garstka is de facto trying to toss the case to another judge so that she doesn’t have to deal with the prosecution. The prosecutor's internal affairs department is still on the case, so the chilling effect tactic will continue even if it ends up being passed to another judge.

We asked Ms Garstka for a comment, but she did not respond. As of today, we know that the district court has already decided that Mr Tuleya's case must be heard by a circuit court, and returned it to the circuit court for the Warsaw Praga-Północ district.

***

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