The prosecutor’s office must immediately return the phone to Judge Jakub Iwaniec without reviewing its contents. The court emphasized that “a defense attorney’s statement that a document contains information protected by attorney-client privilege is absolutely binding on the procedural authority.” It also stressed categorically, “It is not subject to verification, and consequently, the court has no ability to review the contents of the phone.”
In early October, there was allegedly a minor collision involving Judge Jakub Iwaniec of the District Court for Warsaw-Mokotów. Attorney Michał Skwarzyński denied that his client was behind the wheel at the time of the incident.
The following day, police officers appeared at Iwaniec’s family home and, on the orders of the prosecutor’s office, seized the judge’s phone – despite the judge stating that it contained information protected by attorney-client privilege, meaning no third party has the right to access it.
The case was swiftly taken over by the Military Police, the same body whose unlawful actions were ruled on a few weeks earlier by… Judge Iwaniec. “Such a device should primarily remain with the person who was searched if they declare that it contains information protected by attorney-client privilege. If that person’s statement raises doubts, the device should be placed in a secure envelope without reviewing its contents and then submitted to the court’s custody,” said Attorney Przemysław Rosati, President of the Polish Bar Council, to Niezalezna.pl.
Ultimately, the District Court in Krasnystaw reviewed the prosecutor’s motion regarding the phone and had no doubts that it was unfounded. At the same time, it ordered the phone to be immediately returned to Judge Iwaniec.
In its justification, Judge Katarzyna Kaczor cited provisions of the Code of Criminal Procedure, which are unequivocal.
“If a defense attorney or another person from whom an item is demanded or whose premises are being searched states that the delivered or found documents during the search include matters related to performing the function of a defense attorney, the authority conducting the action leaves these documents with the person without reviewing their contents or appearance,” she stated.
“However, if a statement by a person who is not a defense attorney raises doubts, the authority conducting the action forwards these documents, observing the procedures specified in § 1, to the court, which after reviewing them, returns them wholly or partially, observing the procedures specified in § 1, to the person from whom they were taken, or issues a decision to retain them for the purposes of the proceedings.”
The court noted that if a prosecutor had doubts about whether a person was acting as a defense attorney in any proceeding, they should have sought such information from Judge Jakub Iwaniec and his attorney, Michał Skwarzyński. Such cases do exist, for example in the Chamber of Professional Responsibility of the Supreme Court, where Iwaniec acts as counsel for Judge Maciej Nawacki.
“A defense attorney’s statement that a document contains information protected by attorney-client privilege is absolutely binding on the procedural authority. They therefore do not have the right to verify whether the attorney’s statement is true and whether the document indeed contains privileged information,” the court stated.
“Equally important, attorney-client privilege does not expire with the termination of the attorney-client relationship, regardless of how it ends,” Judge Kaczor emphasized. “The court shares the view expressed in criminal law doctrine (…) that a defense attorney’s statement carries an assumption of truthfulness and therefore is not subject to verification.”
“Therefore, since Judge Jakub Iwaniec is acting as a defense attorney, his statement that the phone subject to the prosecutor’s motion contains information protected by attorney-client privilege is absolutely binding. It is not subject to verification, and consequently, the court cannot access the phone’s contents. The phone must be returned to the person from whom it was taken, i.e., Judge Jakub Iwaniec, observing the procedures specified in Article 225 § 1 of the Code of Criminal Procedure – without reviewing its contents, in a sealed package,” Judge Kaczor concluded.