After being suspended for over two years, judge Igor Tuleya can finally return to work - Poland's Supreme Court ruled on Tuesday. The decision represents a significant setback for the National Prosecutor's Office, which wanted to indict the judge for allowing the media to record a justification of his verdict concerning irregularities in the 2016 parliamentary vote.
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The Chamber of Professional Liability (CPL), a new Supreme Court body created to replace the abolished Disciplinary Chamber, heard on Tuesday the prosecution's complaint against the refusal to detain Judge Igor Tuleya. Back in April 2021, the Disciplinary Chamber did not approve of his detention, so the National Prosecutor's Office took steps to challenge the decision. 

- After hearing the prosecution's complaint, the Supreme Court decided to uphold the challenged decision- Wiesław Kozielewicz, the head of CPL’s panel, began presenting the ruling. He added that the Supreme Court also decided to repeal ex officio parts of another resolution from Tuleya’s 2020 case concerning suspending the judge and reducing his salary (but not lifting his immunity).

This comes unexpected, since the hearing only concerned Tuleya’s detention and not his suspension. Yet, the CPL found both cases to be related.

The decision to reinstate Tuleya was made by a panel of three Supreme Court justices: Wiesław Kozielewicz (the chairman), Dariusz Kala, and Małgorzata Wąsek-Wiaderek (rapporteur). After their Tuesday ruling, Tuleya’s immunity remains lifted, but he is no longer suspended. The judge can therefore return to adjudicating after a two-year-long break. 

- The ruling is final. The judge can address the president of the Warsaw District Court and demand his reinstatement. We would be happy to give him a ride- said one of Tuleya's attorneys, Bartosz Tiutiunik.

Judge Tuleya found not guilty

The ruling represents a significant setback for the National Prosecutor's Office. Its internal affairs department demanded that the judge be detained and forcibly brought to the prosecutor's office. Investigators wanted to question the judge and charge him for disclosing sensitive information about the investigation. If found guilty, judge Tuleya would be looking at a penalty of up to two years in prison.

The National Prosecutor's Office spent two years trying to prosecute Igor Tuleya for allowing the media to record the justification of his verdict concerning irregularities in the 2016 parliamentary vote, even though the judge had the right to open the case.

- We conclude that Judge Igor Tuleya committed no crime when he decided to hold the hearing in public and allow the media to attend it. The judge acted within the limits and on the basis of law- Judge Wąsek-Wiaderek said presenting the ruling on Tuesday, adding that detention would be inadmissible. - Since there are no grounds for detaining the judge, there are also no grounds for preventing the judge from adjudicating- she said. 

„It was all about revenge"

- We knew all along that the entire case is simply an attempt to get back at an independent judge. Our thesis was finally confirmed- Jacek Dubois, a lawyer and one of Igor Tuleya's attorneys, said after the ruling. - The court said that Judge Tuleya acted in accordance with the law. That is, we have a situation in which the prosecution tried to indict a judge for an act that is not prohibited- he added.

The judge's attorneys hope that the case will continue in court, although under different circumstances- those who "tried to destroy the judge" will now be held accountable. According to Mr. Dubois, the prosecution has overstepped its authority. 

Poland’s judicial community - but also representatives of other legal professions - see the attempts to prosecute Tuleya as harassment. Mr. Tuleya is perhaps the most prominent example of judges who openly oppose the ruling party’s judicial overhaul, risking persecution and repeated attacks by members of the right-wing coalition government.

Is PiS making a nod to Brussels?

In reinstating judge Tuleya, the Chamber of Professional Liability invoked the June presidential amendment to the Supreme Court law which ordered the CPL to review the decisions concerning judicial suspensions of its predecessor- the abolished Disciplinary Chamber. - This is precisely what we have done- judge Wąsek-Wiaderek said.

The CPL also cited an EU Court of Justice ruling ordering Poland to suspend the effects of the Disciplinary Chamber’s resolutions concerning judicial immunity. This has yet to be done. - As the Supreme Court, we feel obliged to comply with the CJEU's July 14, 2021 ruling - the reporting judge said.

But why didn't the Chamber revoke its consent to indict Tuleya as well? As judge Wąsek-Wiaderek explained, according to the presidential amendment, Mr. Tuleya has the right to request the resumption of proceedings concerning his immunity. - The next move belongs to judge Tuleya- she added. 

- There was no evidence of a crime, but the Supreme Court is telling judge Tuleya to apply for a resumption of the proceedings. I'm glad that he is returning to adjudication, but the ruling lacked courage, a final touch, so to speak. The panel should’ve said that what happened to the judge was illegal- said Piotr Gąciarek, a judge at the Warsaw District Court, commenting on the ruling.

Mr. Gąciarek sees the Chamber’s decision as a nod to Brussels. He links Tuleya's reinstatement to Poland’s deadlocked National Recovery Plan, as one of the conditions for Brussels unfreezing the money is allowing suspended judges to return to work.

- The atmosphere has changed. I think everyone cares about Poland getting the money. It's good to see Supreme Court judges taking European law into consideration. It means that the CJEU rulings are working- he says. 

"The Chamber of Professional Liability is not an independent court"

Mr. Tuleya has not applied for a resumption of the proceedings and apparently does not intend to do so. The judge believes that he does not need to fight for his immunity because he never lost it - it was taken from him ineffectively by the illegal Disciplinary Chamber, whose decision was challenged by both Polish and international courts. 

Tuleya does not consider the Chamber of Professional Liability to be an independent court either. The new chamber, he argues, was illegally staffed by President Andrzej Duda and the head of the Supreme Court, Małgorzata Manowska. In addition to legally appointed judges, the Chamber of Professional Liability also includes the so-called "neo-judges" appointed to the Supreme Court at the request of the politicized National Council of the Judiciary. 

- It is difficult for me to apply for the reinstatement of my immunity since I have never lost it. I don't want to have two immunities. I don't want to wade into this absurdity and make the confusion even bigger- Tuleya told the Supreme Court on Tuesday. - Two years ago, something that was not an independent court prevented me from doing my job. Today, something that is not an independent court either allowed me to return to work- he added.

What’s next for judge Tuleya?

- Today’s Supreme Court ruling is not subject to appeal. It is final- Chairman of the adjudicating panel, judge Kozielewicz, said on Tuesday.

In theory, however, there is a possibility that the resolution will be invalidated.

That could be the case if a motion filed by judge Tuleya in November is granted. At the time, the judge requested that two members of Tuesday’s adjudicating panel, judges Kozielewicz and Kala, be excluded from deciding the case. He accused them of not being impartial.

Kozielewicz and Kala addressed the motion in a written statement. "It is said that the world is full of paradoxes. This phrase is certainly true" – it reads. One of such paradoxes, they added, is that judges sensitive to threats to judicial independence question a judge's right to file a dissenting opinion. "This right has been widely recognized for decades as one of the guarantees of judicial independence" - they wrote.

The Supreme Court has so far not ruled on the motion to exclude Kozielewicz and Kala from the panel. The Chamber of Professional Liability decided to settle the case anyway. What if Tuleya's motion is granted, however?

- If we are excluded from the panel - that is, me and Mr. Dariusz Kala - the resolution announced today will cease to be effective. And the case will still be heard by another panel of judges- judge Kozielewicz stated.

***

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