If we were to find a case which constitutes the quintessence of how the system of protection of our rights is being destroyed, it is the criminal case that the Polish state is trying to bring against Judge Igor Tuleya. The judiciary is disliked by other branches. It is because it has a great power in the state. Although not elected by citizens, it is capable of protecting their rights. Thus, the people, who chose the legislature in the elections, which then selected the executive, may maintain control the situation. Even if the authorities, elected once every few years, try to abuse their powers in relation to the people and the rule of law, the judiciary has the power of stopping the abuse and ensuring the correct balance of power.

Thus, the courts are the citizens’ allies in their relations with the authorities. We have observed this many times. When the executive abused its power and fined people for failing to observe its guidelines, the courts pointed out that there can be no shortcuts – any restrictions of freedom of movement must be introduced in an Act. When the public prosecutor’s office refused to take up a case concerning the transfer of data from electoral registers to the Polish Post without any legal grounds using the opportunity of the 10 May 2020 elections that never happened, the courts pointed out that the case had to be properly investigated. When the public prosecutor’s office wants to arrest someone, the courts decide whether this is an adequate remedy.

In short, courts and independent judges are indispensable. You might say – but there are so many arrests that have been accepted by the courts, and it was not necessary. Or – why do the courts sometimes believe that it is necessary to initiate an investigation and at other times that it is not, although the cases concern the same issue. Our answer is – firstly, you have to accept that we do not have all the facts. Secondly, the differences may arise from the fact that judges are also subject to influences, they are more or less courageous, more or less humble and inquisitive. They are just people. But one thing is certain – it is in our interest for them to protect us, in accordance with the spirit of the law. No one else will do this. Therefore, let’s do whatever we can do to guarantee their independence from other authorities.

This is why the case of Judge Tuleya is so important for each and every one of us. He is a judge that is bearing the consequences of the fact that he protected our rights. The state institutions did everything to deprive us of them. Firstly, the Sejm adopted an Act, most likely breaking the principles of legislation. This concerns the memorable session in the Column Hall on 16 December 2016 when, after voting on the budget and the Act to reduce the retirement and disability pensions paid to former officers of the security service (SB) of the communist Polish People’s Republic (commonly referred to as “ustawa dezubekizacyjna” – the SB-Reckoning Act), the votes were counted by hand and there is no certainty that there was a quorum at all.  It is therefore possible that the Acts passed that day were not adopted effectively. The consequences of that situation may affect us in the years to come. Next, they did everything to keep those breaches from coming to light. A great propaganda machine in the form of the TVP television channel was put into motion to drown out reliable information about what had happened. Access was denied to recordings which could have shown to the public opinion what the truth was. And when the citizens managed to make their way to the judgment that ordered the recordings to be disclosed, it turned out that they had been destroyed.

However, another thread appeared in this story, which the authorities did not manage to control – the criminal case in which it was going to be examined what had really happened on 16 December 2016. The public prosecutor’s office tried to avoid the investigation, but the court was persistent. It ordered the investigation to be initiated. What is more, the judge in charge of the case – Igor Tuleya – explained why it was important for everything happening around this case to be transparent.

In his statement of reasons, he spoke about the transparency of the legislative process. And this is exactly what had been infringed in the case we are talking about.

Article 61 of the Constitution of the Republic of Poland is functionally connected with the principle of openness of the Sejm sittings, mentioned in Article 113 of the Constitution of the Republic of Poland. The lawmakers reserved at the same time that the openness of sittings is not absolute and provided for the possibility of the house adopting a resolution on holding the debate in secret. The adoption of an appropriate resolution in this respect depends on the occurrence of the prerequisite specified in the discussed provision– the “interest of the State”, and fulfilling the requirement of obtaining the support of an absolute majority of votes in the presence of at least half of the statutory number of MPs. However, on 16–17 December 2016, this did not take place.

The authorities are destroying the judge for protecting our rights. They do not have the right to do so. They claim that the judge disclosed important information concerning the investigation. We, the people, also believe so. This is very important information. However, it is difficult to see why transparency would have a destructive influence on the proper conduct of this case. It is also important that if not for the judiciary, the public prosecutor’s office would be without any supervision. The court has the right to independently assess the situation and, in its decision, make corrections. Judge Igor Tuleya showed the power of openness. And he bears the consequences of what he did every day.

And what are the consequences?

First of all, depriving the judge of his immunity by the Disciplinary Board of the Supreme Court.

Igor Tuleya did not accept the decision of the Disciplinary Board because the case concerning the independence of this Board is pending in the EU Court of Justice. The Board was appointed almost in its entirety with the participation of the new National Council of the Judiciary. And the latter had been appointed in violation of the principles of the Constitution – the term of office of the previous Council was interrupted and the constitutional principles of the selection of further members of the Council were not observed. We can add that also this process was non-transparent and information was concealed.

The failure to accept the decision of the Disciplinary Board has its consequences. Although the judge keeps being summoned by the public prosecutor’s office because according to them he is not protected by immunity, the judge consistently does not attend.

On 21 April 2021, a judge of the Disciplinary Board is to adjudicate whether Judge Igor Tuleya is to be taken to the public prosecutor’s office by force. Therefore, our question asked less than a year ago “Will Judge Tuleya become martyr to transparency?” is beginning to be rhetorical.