Even in Prison

There is certainly no lack of comment-worthy topics this week. Nevertheless, I decided to cede this week’s editorial to IGOR TULEYA, judge at the Warsaw District Court. Why? Read for yourself:

Judge Igor Tuleya:

“In December 2016, a vote on the budget in the Polish lower house of Parliament, the Sejm, was taking place under peculiar circumstances. Opposition deputies were prevented from participating in parliamentary debates. The debate was moved from the plenary hall to the so-called Column Hall (a smaller assembly room). Opposition members were physically blocked from approaching the podium and thus deliberately prevented from speaking. All this had been planned in advance by the governing party „Law and Justice”. Several MPs submitted a notification that the Speaker of the Sejm (the lower chamber of Polish parliament) and his subordinate officials had committed a crime. The politicized prosecutors refused to investigate the case. A year later, they admitted a complaint against this decision. The judge agreed with the applicants, ordered the investigation to be continued, and also informed the law enforcement authorities about the alleged crime that the leaders of the Law and Justice party could have committed, namely that they committed perjury while giving their testimonies.

I was the judge in that case.

For the last five years I have been defending the independence of the judiciary and judicial independence in Poland. I publicly criticize the government for breaking the rule of law and not following the principles enshrined in the Constitution. For this reason, the Disciplinary Commissioners, reporting to the Minister of Justice, are currently conducting another seven cases against me.

Nearly three years after the “Column Hall case”, the Prosecutor’s Office asked the so-called „Disciplinary Chamber“ of the Supreme Court to remove my judicial immunity. They claim that by obliging it to continue the investigation, I failed to fulfill my official duties, exceeded my authority as a judge and disclosed and disseminated information from the discontinued preparatory proceedings. Indeed, I proceeded openly and journalists took part in my court’s session. However, it is fully permitted by the Code of Criminal Procedure. I did not reveal any secrets. The sessions of the Sejm were reported by media, and the undemocratic behaviour of the Law and Justice party caused a wave of social protests which were pacified by the police.

And then came November 18, 2020. The „Disciplinary Chamber” lifted my immunity and suspended me from official duties. After 25 years, according to that body, I ceased being a judge. I am facing a penalty of 3 years in prison. I did not participate in the hearing before this body. The so-called Disciplinary Chamber is not an independent court, and its members are no independent judges. The “judges” are former prosecutors and those associated with the executive. This much was established by the Polish Supreme Court, and this was confirmed by the decision on the application of the CJEU interim measures. This body should not proceed at all. For this reason, I did not enter the courtroom where they were proceeding. Had I done otherwise, I would have legitimized lawlessness. I did not, and could not, do it.

The German Bundestag was in turmoil this week, on the occasion of the vote on the new legal basis for anti-Covid-19 measures. In our crisis podcast Corona Constitutional, I talked to HANS-MICHAEL HEINIG about the mistrust that this piece of legislation arouses in parts of the population and justified and unjustified criticism of the law and the procedure in which it came about. UWE VOLKMANN takes a critical look at the result: while there is much to like about it, he finds one thing in particular objectionable, namely that it still remains unclear whose protection the law primarily aims at – that of the population against infection or that of the health system against collapse.

Last Wednesday thousands of people demonstrated once again in Berlin against the pandemic measures but also against the passing of the new infection protection law. However, no protests were allowed directly in front of the building where it happened: the Bundestag. CHRISTIAN NEUMEIER explains why permission is needed at all, what the Ministry of the Interior has to do with it and which function the constitution ascribes to parliament in that matter – and which we should attribute to it.

Syrian refugees who flee from being drafted to the army have a right to asylum in Germany, not just subsidiary protection. This is the verdict of the ECJ which, as CONSTANTIN HRUSCHKA notes, may also affect final decisions.

The ECtHR has ruled against Germany at the end of October because a prisoner was unable received compensation for illegal body searches. This violated the ban on degrading treatment, it said, since immaterial damages to the victims of serious fundamental rights violations would also have to be compensated. EVA NEUMANN comments.

KATHRIN STRAUSS draws our attention to a little noticed decision by the Administrative Court of Appeals of Baden-Württemberg: If an applicant for German citizenship refuses the handshake ritual with the clerk who performs the act of naturalisation, may that be a reason to withhold it? Yes, says the court, which, in Strauss’ critical view, only creates a “compulsion to conformity”.

The notorious holocaust denier Horst Mahler was released from prison last month, and now as he is at large again he is rather unlikely to stop his crime anytime soon. So what to do? If the public prosecutor’s office has its way, he will have to report all his publications at least one week in advance. ANDREAS ZÖLLNER considers this constitutionally untenable: The Basic Law forbids censorship even of extremists.

In Poland and the USA obviously the right to abortion depends very much on courts. In Germany, too, the Federal Constitutional Court used to take decisive influence in shaping abortion law, at the expense of parliamentary deliberation. VERA SCHÜRMANN thinks it is time to put abortion law back on the parliamentary agenda.

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While the German capital Berlin is famous for many things, the quality of its public services is not one of them. The case that KLAUS FERDINAND GÄRDITZ is analyzing, however, reveals a lot more than just poor administration: The Berlin police has summoned a “suspect” for interrogation because he allegedly hit a woman on the wrist – only the alleged perpetrator is six years old and his victim is his elementary school teacher. In Gärditz’s opinion, the only crime in play here is the prosecution of innocent people which, under sec. 344 of the German penal code, is punishable with one to ten years of prison.

In the Bundestag there are two draft laws on the table, both of which seek to guarantee gender self-determination in the entry of the sexes in the civil register. According to RONJA HESS, the public hearing in the Committee for Home Affairs has shown both the weakness of the arguments of the proponents of the status quo and the inevitability of a reform.

A year and a half ago, hundreds of thousands took to the streets against the upload filter Article 17 of the EU Copyright Directive. Now it is being argued in court: FELIX REDA reports in German and English on the hearing about the Polish lawsuit and explains why Article 17 is hardly compatible with the previous jurisprudence of the ECJ and the ECtHR. Even if the fate of the article is uncertain: the member states are running out of time, the directive must be implemented by the middle of next year. If the Court will hand down its decision in time remains to be seen.

Climate change is also a risk factor for the financial and banking system. Nevertheless, banks continue to invest in CO2-intensive sectors of the economy while making insufficient provision for potential losses. In its 2020 Draft Guide on Climate-Related and Environmental Risks, the ECB has set out how it intends to tackle the problem. However, AGNIESZKA SMOLEŃSKA and JENS VAN ‘T KLOOSTER are skeptical about whether the approach chosen will be successful. In their view, the ECB will not be able to avoid taking on a more political role if it is serious about a “green” banking system.

That’s all for this week. Please don’t forget to support us on Steady, by Paypal (paypal@verfassungsblog.de) or bank transfer (IBAN DE41 1001 0010 0923 7441 03, BIC PBNKDEFF). Many thanks and all the best to you,

Max Steinbeis