The prosecutor present at the hearing did not object to the media presence at that time or to Judge Tuleya’s reference to the evidence presented in his public decision. However, in 2018, the deputy disciplinary officer for common court judges launched an investigation into Judge Tuleya’s decision to allow journalists access to the proceedings. It was one of seven investigations opened by the deputy disciplinary officer involving Judge Tuleya in 2018 alone. At the same time, he was being repeatedly named and publicly criticized for his decision by PiS party members.
In February 2020, the National Prosecutor’s Office sought permission to lift Judge Tuleya’s judicial immunity from criminal prosecution in relation to the December 2017 proceedings. The Prosecutor’s office alleged that Judge Tuleya failed to fulfill his duties and overstepped his authority by allowing the media to record the December 2017 session. The Disciplinary Chamber considered the request, in a closed hearing, on June 9, 2020 and refused to lift Judge Tuleya’s immunity. The Disciplinary Chamber found that Judge Tuleya’s decision to permit media recordings “in no way” constituted overstepping the judge’s authority as judicial discretion to admit media to such proceedings is explicitly authorized under statutory law. The Prosecutor’s office appealed the June ruling.
On November 18, 2020, the Disciplinary Chamber overturned its first instance decision and granted the prosecutor’s motion to waive Judge Tuleya’s immunity. It also suspended him from professional duties for an indefinite period and reduced his pay for the duration of the suspension. There is no further appeal within the Polish court system and it appears that Judge Tuleya may now face criminal charges for exercising his judicial discretion during a proceeding in his courtroom.
The decision against Judge Tuleya poses a severe threat to the independence of the judiciary in Poland and undermines his individual rights. An independent judiciary is a core element of a democratic system of government that adheres to the rule of law. A key component of an independent judiciary is the immunity of judges from prosecution for judicial decisions. The National Prosecutor’s quest to criminally charge Judge Tuleya – and the Disciplinary Chamber’s revocation of his immunity – for a judicial decision made within the scope of his judicial discretion, goes against international and European standards on judicial independence. The numerous disciplinary inquiries and the Disciplinary Chamber’s November 18 ruling also signal an escalation in the government’s efforts to curb Polish judges’ engagement in the public discourse surrounding the reforms and violate Judge Tuleya’s freedom of speech. Furthermore, the proceedings before the Disciplinary Chamber concerning lifting Judge Tuleya’s immunity do not meet international standards on the right to a fair hearing. The independence and impartiality of the Disciplinary Chamber has been called into question by the European Commission, and due to concerns about its impartiality and independence, the Court of Justice of the European Union suspended the Chamber’s disciplinary jurisdiction on April 8, 2020.
The Government of Poland should take immediate action to change its course and comply with its obligations under regional and international law to ensure an independent judiciary and the rule of law.