EXECUTIVE SUMMARY
The independence of the judiciary in Poland has been systematically dismantled over the last six years, during which the ruling camp has set up several central bodies, specializingin repressing judges, with the aim of generating a chilling effect on them (such as the Disciplinary Chamber of the Supreme Court, and the central disciplinary commissioners who conduct politically motivated disciplinary proceedings against defiant judges).
One of the new central bodies that has the objective of handling criminal proceedings against Polish judges is the Internal Affairs Department of the State Prosecution Service, which was established in 2016 to conduct and supervise preparatory proceedings in cases of intentional crimes committed by judges and prosecutors.
The systemic position of the Internal Affairs Department of the State Prosecution Service not only satisfies the criteria of its inconsistency with European Union law in the light of the ruling of the CJEU of 18 May 2021 (joined cases C-83/19 and others) as it has the exclusive right to prosecute judges and prosecutors, its establishment was not justified by a real need, and the extent of its subordination to an active politician of the ruling camp – Minister of Justice/Prosecutor General Zbigniew Ziobro – is indisputable (he appoints prosecutors who are members of the Department, as well as being able to dismiss them, and give them direct instructions on individual procedural actions).
Not only does the systemic position of the Departmentconfirm its inconsistency with European law, but so does way it has operated to date. Chapter VI of this report contains a description of the proceedings conducted by the Division against a number of judges and 3 prosecutors. Even without reviewing the files, some of these proceedings can be assessed as manifestly unfounded (such as the proceedings against Judge Tuleya, Judge Majcher, Prosecutor Pionka, four judges of the Supreme Court, or the questioning of a number of judges in the Kraków courts), while the legitimacy of others raises very serious doubts (such as the proceedings against Judge Morawiec and Prosecutor Gacek). The fact that some of the decisions of the Disciplinary Chamber of the Supreme Court, which, although very submissive to the ruling camp, eventually restored Judge Morawiec’s immunity and did not agree to Judge Tuleya being forcibly brought in for questioning is even evidence that the grounds for these proceedings are highly questionable.
Undoubtedly, the common denominator of all the judges and prosecutors described in Chapter VI is the fact that, in the past, they issued decisions that were unfavourable to the ruling camp and were subsequently prosecuted by the Internal Affairs Department. The Department also manifests its ability to creatively seek opportunities to bring charges by trawling through files (see subchapter VI.9), and to “sweep a case under the carpet” when it involves a judge who actively cooperates with the politicians in destroying the independence of the judiciary (see subchapter VI.10).
In the light of the above arguments, the author of this report is of the opinion that the European Commission has all the grounds for initiating infringement proceedings against the Internal Affairs Department of the State Prosecution Service before the CJEU.