Public prosecutor enters the home of a judge fighting for free courts in Poland by Mariusz Jałoszewski

Public prosecutor enters the home of a judge fighting for free courts in Poland

 

Mariusz Jałoszewski, 18 September 2020

 

 

The public prosecutor, assisted by the CBA[1], entered Judge Beata Morawiec’s house a little after 6 a.m. on 18 September. Threatening to search the house, he took her official laptop containing sensitive data. Judge Morawiec is the president of the Themis Association of Judges, which defends the courts and criticizes the Minister of Justice, Zbigniew Ziobro. Lawyers, including prof. Zoll say that the National Prosecutor’s Office has broken the immunity protecting the judge.

Judge Beata Morawiec from the Regional Court in Krakow was awoken by her intercom on Friday, 18 September 2020. It was around 6.30 a.m. A prosecutor and two CBA agents stood in front of her house. They were holding a decision of the National Prosecutor’s Office on the ‘voluntary handover of items’. The decision was issued by prosecutor Michał Walendzik from the Internal Affairs Department of the National Public Prosecutor’s Office, who was appointed to prosecute judges and prosecutors.

The judge let the prosecutor and CBA agents into her home. She heard that they wanted her to give them an expert opinion, which she wrote in 2013 at the request of the Court of Appeal in Kraków, as well as the electronic media on which she had prepared it. The judge was warned that if she did not hand them over, the prosecutor would search her house. Morawiec voluntarily gave them a pen drive with the opinion and her official computer, which contains notes related to cases in which she had adjudicated and draft judgments.

The CBA’s visit with the prosecutor lasted about an hour. During the visit, the prosecutor kept leaving the room to confer with someone by phone. The same group appeared in court at 10.30 a.m. – Morawiec said that she had a copy of the expert opinion there. They took the copy and the printer on which the judge had printed it.

The judge will file a complaint with the court about the prosecutor

The raid on Judge Beata Morawiec’s house is related to an investigation being conducted by the Internal Affairs Department of the National Prosecutor’s Office. In this investigation, the prosecutor’s office wants to press criminal charges against the judge and, to this end, submitted a request to the Disciplinary Chamber of the Supreme Court to cancel the judge’s immunity.

The prosecutor’s office wants to charge Beata Morawiec for an allegedly fictitious agreement of 2013 concluded with the Court of Appeal in Krakow. The prosecutor’s office claims the judge took PLN 5,000, but did not prepare an opinion. The judge denies this and makes the assurance that the opinion is there. She spoke about this in the media and perhaps this was the reason for the prosecutor coming to her house on Friday.

The judge is also under threat of being charged with allegedly receiving a telephone from a defendant in 2012 for passing sentence in his favour. ‘Nobody gave me a telephone. I only buy telephones from shops. I do not know the person who was supposed to have given it to me,’ says Judge Beata Morawiec. We wrote about the charges that the prosecutor’s office wants to bring against her:

https://oko.press/prokuratura-chce-postawic-zarzut-kryminalny-sedzi/

After Friday’s raid, the judge appointed a proxy to handle her case. He will file a complaint against the prosecutor’s decision regarding the handover of the item. ‘I consider the actions of the prosecutor’s office as harassment with respect to me. They want to choke me. I have not received any criminal charges, but they come to my home looking for evidence on me,’ says Morawiec.

 

Prosecutor’s Office: we have the right to enter the judge’s house

The prosecution came to the judge early in the morning. Usually the most dangerous criminals are dragged from their beds by surprise at this time. And here they came to an important public official, protected by law, to get her work laptop.

However, the National Prosecutors’ Office believes that immunity protects the person, not the place where she is. He cites Article 217 of the Code of Criminal Procedure.

This provision applies to the release of the item and reads:

„§1. Items that may constitute evidence in the case or are subject to seizure to secure financial penalties, financial penal measures, forfeiture, compensation measures or claims for damages should be issued at the request of the court or the public prosecutor, and in urgent cases also at the request of the Police or other authorized body .

§2. The person who has the item to be released is called to hand it over voluntarily (…)

§5. In the event of a refusal to voluntarily release the item, its collection may be carried out (…)”.

Prof. Andrzej Zoll: the judge’s immunity has been broken

“The prosecutor’s office has broken the judge’s immunity. If she had not voluntarily released her laptop, they would have made her boil in the apartment. This is unacceptable. I wouldn’t even let them into my apartment. But judges are intimidated, this is how Ziobro’s prosecutor’s office works, ”says OKO.press, one of the judges.

He emphasizes that, contrary to what the prosecutor’s office says, immunity not only protects the body of a judge, but above all protects his activity as a judge. That is the professional sphere, including the official laptop on which she has confidential data related to work in court, personal data of the parties to the trial, or work-related notes. In the opinion of our interlocutor, immunity also protects the judge’s house, and the prosecutors, at best, could send a letter to the judge to provide them with the requested items.

Former Ombudsman and former President of the Constitutional Tribunal, prof. Andrzej Zoll also believes that the judge’s immunity has been breached. The prosecutor’s office is just planning to bring charges against the judge, but it must have the consent of the disciplinary court. So formally, there are no proceedings against a judge yet, says OKO.press prof. Andrzej Zoll. And he emphasizes that the prosecutor’s office should at least have the consent of the president of the court to enter the judge’s house.

Krystian Markiewicz, president of the Iustitia Judges’ Association, thinks similarly. “It is not that immunity only protects a judge from criminal liability. It also protects his home and workplace. And if the prosecutor’s office wants to do something, it can do it only after the immunity is lifted. And he makes intrusions as if the judge were a dangerous gangster, says OKO.press judge Krystian Markiewicz.

And one more opinion of one of the experienced prosecutors. The prosecutor’s arguments are not correct. The prosecutor went into the house to prosecute the person protected by immunity, not the things. This was done to obtain evidence of the guilt of the person being chased. But such an action before the lifting of immunity should not take place, says the prosecutor OKO.press.

In his opinion, however, the judge could not refuse to let the prosecutor into the house and oppose his actions, even if he was acting against the law. This can only be questioned by submitting a complaint against these actions to the court. If the court recognizes the complaint, then compensation can be demanded, and the prosecutor who decided to do so can be subject to disciplinary proceedings or an investigation, emphasizes the prosecutor.

Who is Judge Morawiec?

The prosecutor entered the home of a judge who is recognizable in Poland and is known for defending the rule of law and free courts. Beata Morawiec is the former president of the Regional Court in Krakow and president of the Themis Association of Judges, which, together with the Iustitia association of judges, has been defending judges against repression for several years. This context is important because it explains why coming to Morawiec’s home and threatening her with criminal charges was no accident. Accusing such a judge of accepting a telephone as a bribe can be used to discredit independent judges.

The prosecutor’s investigation needs to be approached with caution. Beata Morawiec fell foul of Minister of Justice Zbigniew Ziobro. She was dismissed from the post of president of the Regional Court in Krakow in 2017 as part of the national purge of court presidents. Minister Ziobro dismissed her in an atmosphere of suspicion. In an announcement posted on the ministry’s website, her name was linked to an investigation of the public prosecutor, which did not apply to her. She was also accused of allegedly bad work.

Morawiec was the only former court president in Poland who sued the Minister of Justice regarding the protection of her reputation and won the case against him in the regional court with a non-final judgment. Ziobro appealed and the case is pending. There are currently speculations among the judicial community as to whether the current criminal charges against Judge Morawiec could be a consequence of the fact that she fell foul of the minister and humiliated him by winning the case. We wrote about this judgment in OKO.press:

https://oko.press/ziobro-ma-przeprosic-sad-to-byl-celowy-zamiar-naruszenia-dobrego-imienia-sedzi-morawiec/

The charges that the judge may face should also be viewed with caution. The prosecutor’s office says that evidence of her guilt was obtained during a major investigation lasting several years into irregularities at the Krakow court of appeal. But it is not known who testified to what about the judge and what they were counting on in return. This is important. Furthermore, Onet posted an article in 2019 which showed that prosecutors were allegedly persuading the former accountant of the Krakow court of appeal to make accusations about ‘known’ judges from Krakow with her testimony. The National Prosecutor’s Office then claimed that it knew nothing about that.

And it so happens that Judge Beata Morawiec, among others, is a ‘known’ judge from Kraków.

 

Link to the original publication in Polish:

https://oko.press/prokuratura-wchodz-domu-sedzi-morawiec-ktora-walczy-o-wolne-sady-i-wygrala-proces-z-ziobra/

[1] Centralne Biuro Antykorupcyjne  – Central Anti-Corruption Office (CBA)