Disciplinary trial of Polish judge Irena Majcher sets ‘dangerous precedent’

Source: Iustitia

On 21 October 2020 the Disciplinary Chamber of the Supreme Court of Poland will hear the case of Judge Irena Majcher. The prosecutor has filed a motion to waive her immunity, because a judicial decision of hers allegedly constitutes a criminal offence. This will set a dangerous precedent, writes Polish Judges’ Association Iustitia.

Nearly 20 years ago, the Sejm passed laws that obliged companies to register with the National Court Register (NCR), which replaced the previous Commercial Register B (RHB). The companies had a limited time to re-register, the deadline was postponed several times. Another amendment to the law introduced a deadline for transferring the company to the National Court Register by the end of 2015. Failure to do so could result in the loss of assets that were transferred to the State Treasury under the Act. However, one of the companies did not re-register within the deadline imposed by the Act and as a result lost ownership of property. The authorities of the above mentioned company therefore filed a report with the prosecutor’s office.

Initially, the case was conducted by the Opole prosecutor’s office, then it was taken over by the Internal Affairs Department of the National Prosecutor’s Office – appointed to prosecute judges and prosecutors. The prosecutor’s office had been investigating for more than a year whether the judge exposed one of the companies to the loss of assets. Finally, prosecutors considered that a judge should have initiated proceedings to force the company to re-register from the RHB to the NCR, and if the company still did not do so, a fine should be imposed. The prosecutors found that the judge, when deciding on the loss of the company’s assets, committed an offence under Article 231 § of the Criminal Code (failure to fulfil her duties) and filed a motion to the Court of Appeal in Wrocław – the disciplinary court – to waive the judge’s immunity. That is a necessary step to be able to bring charges of committing a crime against Judge Irena Majcher.

This is a dangerous precedent for the prosecution to enter the judicial sphere of judges. Therefore Judge Majcher is defended by four lawyers.

In January 2019, the disciplinary court of first instance in Wrocław refused to waive her immunity (AsDO 9/18).

The Prosecutor’s Office appealed to the Disciplinary Chamber of the Supreme Court in Warsaw. The request regarding the lifting of Judge Majcher’s immunity will be handled by the Disciplinary Chamber. The bench was originally composed of: Jacek Wygoda (former prosecutor from the IPN, Institute of National Remembrance), Adam Roch (former prosecutor) and Michał Górski.

The examination of the case at first set for 19.9.2019 was postponed without indicating a new term upon request of Judge Majcher’s defenders. At the beginning, the presiding judge Jacek Wygoda announced that press and public was excluded from the hearing, because the case concerned issues related to the investigation and there was a serious threat of revealing the confidentiality of the pretrial proceedings. However, it is important to underline that the transparency of cases concerning waiving judicial immunity has never been questioned since the Disciplinary Chamber appointed by PiS started to adjudicate disciplinary cases. When those cases were examined by the Chamber of Criminal Matters within the Supreme Court, they used to be public.

It is also worth mentioning that following the protests of defenders of Judge Majcher who started to object against the exclusion of press and public, the bench decided to conduct the hearing publicly.

After setting the new date of the trial on 20th February 2020, the case was once again postponed without indicating a new term due to Covid-19.

Judge Majcher, due to the stress caused by the proceedings, had a heart attack at the end of 2019. Despite the fact that she was unable to participate in the procedure for several months because of her poor health, the hearing was planned to continue despite her absence. That was possible because new amendments to the Polish Code of Criminal Proceedings (applicable to disciplinary cases) allow to proceed despite justified absence of a defendant.

After the lockdown period, the Supreme Court planned Judge Majcher’s case for October 2nd, 2020. Then the court changed the deadline to October 21st, 2020 without any justification. On October 21, 2020, the case will be heard by Supreme Court Judges Tomasz Przesławski, Ryszard Witkowski, and Adam Tomczyński, which means that the composition of the court has changed.