CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 juillet 2023

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height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FIRST SECTION CASE OF TULEYA v. POLAND   (Applications nos. 21181/19 and 51751/20)   JUDGMENT   Art 6 § 1 (criminal) • Tribunal established by law • Lifting of judge’s immunity from prosecution and suspension from judicial duties by Supreme Court’s Disciplinary Chamber • Loss of victim status in relation to suspension decision • Resolution by Supreme Court’s new Chamber of Professional Liability (CPL) acknowledged Art   6 §   1 breach in respect of Disciplinary Chamber proceedings and afforded appropriate and sufficient redress • Resolution taken by judges whose appointments to the Supreme Court pre-dated reformed National Council of the Judiciary (NCJ) • Resolution a positive development in the context of the Polish rule-of-law crisis • Victim status in relation to lifting of immunity • Adverse consequences of Disciplinary Chamber’s ruling not redressed by Resolution • No action taken to terminate criminal proceedings against applicant despite CPL’s ruling as to non -existence of an offence • Art   6 applicable under its criminal head to immunity proceedings • Manifest breach of domestic law due to inherently deficient judicial appointment procedure to Disciplinary Chamber by reformed NCJ which lacked independence from legislature and executive • Findings in Reczkowicz v.   Poland and Juszczyszyn v.   Poland applied • Independence and impartiality of Disciplinary Chamber compromised Art 8 • Private life applicable • Preliminary inquiry into applicant’s request for a preliminary ruling from the Court of Justice of the European Union • Disciplinary Chamber’s decision lifting applicant’s immunity and suspending him from duties • Impugned measures affected applicant’s private life to a very significant degree • Interferences not “in accordance with the law” • Preliminary inquiry into preliminary ruling request contrary to the Treaty on the Functioning of the European Union having precedence over domestic law • Decision on lifting immunity and suspension based on an unforeseeable interpretation of the domestic law by a body not constituting an “independent and impartial tribunal established by law” Art 10 • Freedom of expression • Preliminary inquiries concerning applicant’s public statements on a television news channel and in public meetings • Decision on lifting immunity and suspension • Impugned measures to be seen in context of successive Polish reforms resulting in the weakening of judicial independence and having regard to the sequence of events in their entirety • Authorities’ action culminating in Disciplinary Chamber’s decision could be regarded as a disguised sanction for the applicant’s exercise of his freedom of expression • Impugned measures prompted by applicant’s views and criticisms publicly expressed in his professional capacity • Interferences not “prescribed by law” and not pursuing any legitimate aims • Applicant not afforded minimum procedural safeguards in preliminary inquiries • Decision on lifting immunity and suspension taken by a body not constituting an “independent and impartial tribunal established by law” • No requisite procedural safeguards to prevent arbitrary application of relevant substantive law • Measures could be characterised as a strategy aimed at intimidating (or even silencing) the applicant • Impugned measures with chilling effect on judges’ participation in public debate on legislative reforms affecting the judiciary and on its independence   STRASBOURG 6 July 2023 FINAL   06/10/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tuleya v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Alena Poláčková,   Krzysztof Wojtyczek,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato , judges , and Renata Degener, Section Registrar, Having regard to: the applications (nos.   21181/19 and 51751/20) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Igor Tuleya (“the applicant”), on 10 April 2019 and 24   November 2020 respectively; the decision to give notice to the Polish Government (“the Government”) of the complaints under Article 6 § 1, Article 8, Article 10 and Article 13 of the Convention and to declare inadmissible the remainder of the applications; the decision of the Court (the duty judge) of 26 November 2020 not to apply Rule 39 of the Rules of Court in application no. 51751/20 to suspend the execution of the Disciplinary Chamber’s resolution of 18 November 2020; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Commissioner for Human Rights of the Republic of Poland, the “Judges for Judges” Foundation (the Netherlands) jointly with Professor L. Pech, the European Network of Councils for the Judiciary (“the ENCJ”), Amnesty International jointly with the International Commission of Jurists, the Polish Judges’ Association Iustitia and the Government of the Kingdom of the Netherlands, who were granted leave to intervene by the President of the Section; the additional observations submitted by the parties on 3 January 2023; Having deliberated in private on 29 November 2022, 28 March and 6 June 2023, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     The case concerns several preliminary inquiries instituted by the disciplinary officer with regard to the applicant together with the decision of the Disciplinary Chamber of the Supreme Court lifting the applicant’s immunity from prosecution and suspending him from judicial duties. The applicant submitted that the Disciplinary Chamber had not satisfied the requirements of an “independent and impartial tribunal established by law”. He also claimed that preliminary inquiries and the Disciplinary Chamber’s decision had amounted to a breach of his right to respect for his private life and his right to freedom of expression. The applicant relied on Article 6 §   1, Article 8, Article 10 and Article 13 of the Convention. THE FACTS 2.     The applicant was born in 1970 and lives in Warsaw. He was represented by Mr J. Dubois, Ms S. Gregorczyk-Abram, Ms   M.   Ejchart ‑ Dubois and Mr M. Wawrykiewicz, lawyers practising in Warsaw. 3.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case may be summarised as follows. BACKGROUND AND CONTEXT OF THE CASE 5.     The broader domestic background to the present case was set out in the Court’s judgments in Reczkowicz v. Poland (no. 43447/19, §§ 4-53, 22 July 2021) and Grzęda ([GC], no.   43572/18, §§ 14-28, 15 March 2022). 6.     The applicant was appointed a district court judge in 1996. In 2010 he was appointed as judge of the Warsaw Regional Court where he has adjudicated in a criminal division. He sat on a bench in a number of cases that attracted widespread media interest. For example, he adjudicated in the case of M. Garlicki (see Mirosław Garlicki v. Poland , no. 36921/07, 14 June 2011), where he critically assessed the investigative measures applied by the Central Anti-corruption Bureau against the suspect. 7.     The applicant is well-known in the judicial community and to the public at large. Cases in which he has adjudicated have been commented on by politicians and representatives of the State authorities. The applicant is also involved in the activities of the Polish Judges’ Association Iustitia, which defends, inter alia , the rule of law in Poland. PRELIMINARY INQUIRIES CONCERNING THE APPLICANT 8.     Preliminary inquiries ( czynności wyjaśniające ), governed by section 114(1) of the Act of 27 July 2001 on the Organisation of Ordinary Courts (“the 2001 Act”), as amended by the Act of 8 December 2017 on the Supreme Court (see paragraph 144 below), are initiated by the disciplinary officer for ordinary court judges ( Rzecznik Dyscyplinarny Sędziów Sądów Powszechnych – “the disciplinary officer”) of his own initiative or at the request of the relevant authorities “after initial determination of circumstances necessary to establish the constituent elements of a   disciplinary offence” (“ po wstępnym ustaleniu okoliczności koniecznych dla stwierdzenia znamion przewinienia dyscyplinarnego ”). 9.     The Deputy Disciplinary Officers, Judges M. Lasota and P.W. Radzik initiated five sets of preliminary inquiries concerning the applicant. The   Government submitted that those inquiries had been initiated on account of the applicant’s conduct allegedly disregarding the limits of judicial independence. 10.     The deputy disciplinary officers initiated the following preliminary inquiries on the basis of section 114(1) of the 2001 Act: (1) Case no. RDSP 712-2/18 concerning “[the applicant’s] comments in a   television programme on 17 July 2018 on the news channel TVN24, in particular those concerning the National Council of the Judiciary and the administration of justice”. On 9 August 2018 the applicant was summoned to make a written statement on the above. (2) Case no. RDSP 712-3/18 regarding “possible unauthorised disclosure of information from pre-trial proceedings no.   VIII Kp 1335/17”. On   14   August 2018 the applicant was summoned to make a written statement. According to the applicant, those proceedings were at the origin of the criminal proceedings, as a result of which the Disciplinary Chamber lifted his immunity (see paragraphs 43-54 below). (3) Case no. RDSP 712-12/18 concerning the applicant’s participation in a public meeting held at the European Solidarity Centre in Gdańsk on 28   September 2018. On 8 October 2018 the applicant was summoned to make a written statement about his participation in this event, and to indicate who had organised the meeting, in what capacity had he participated in it and whether politicians had taken part in the meeting. This meeting with the applicant concerning the Constitution, freedom and the role of courts in a   democratic society was organised by the Polish Judges’ Association Iustitia, the Gdańsk Bar Council and the Gdańsk Council of Attorneys-at-Law. (4) Case no. RDSP 712-13/18 regarding a public meeting held in Lublin on 30   September 2018. On 8 October 2018 the deputy disciplinary officer sought the same information from the applicant as in the case referred to under point   3. (5) Case no. RDSP 712-8/2-18 concerning the reference for a preliminary ruling made by the Warsaw Regional Court (the applicant) to the Court of Justice of the European Union (“the CJEU”) on 4 September 2018 in a criminal case. The request dealt with the compatibility of a new disciplinary regime for judges with Article 19 of the Treaty on the EU (TEU). On 29   November 2018 the deputy disciplinary officer summoned the applicant to make a written statement with regard to possible “judicial excess” ( eksces   orzeczniczy ) on account of making that request contrary to the conditions stipulated in Article 267 on the Treaty on the Functioning of the EU (TFEU). 11.     According to the Government, the applicant was summoned to make a voluntary written statement in the five above-mentioned sets of preliminary inquiries on the basis of section 114(2) of the 2001 Act. 12.     The Government submitted in their observations that the deputy disciplinary officer had not found sufficient grounds for bringing disciplinary proceedings against the applicant in any of the above-mentioned cases. 13.     The applicant submitted that he had not been informed by the disciplinary officer of the termination of any of those preliminary inquiries. PRELIMINARY INQUIRIES CONCERNING OTHER JUDGES 14.     In the following two sets of preliminary inquiries concerning other judges, the disciplinary officer summoned the applicant to give evidence as a   witness: (1) Case no. RDSP 714-61/18 concerning disciplinary misconduct ( delikt   dyscyplinarny ) on the part of two judges who had worn their robes and the state emblem during a moot court at the “Pol’and’Rock” music festival in August 2018 in a manner that might have undermined the dignity of judicial office and exceeded the limits of freedom of expression of a judge with regard to their public comments about other judges and representatives of public authorities. On 5 September 2018 the disciplinary officer summoned the applicant to give evidence as a witness. The applicant did so in the presence of his lawyer. The Government submitted that this preliminary inquiry had been concluded and no disciplinary proceedings had been initiated. According to the applicant, he was not informed about the conclusion of that preliminary inquiry. (2) Case no. RDSP 712-8/18 regarding a preliminary inquiry into the reasons for a referral to the CJEU by the Łódź Regional Court (Judge E.M.) for a preliminary ruling in a civil case. The applicant made a similar request to the CJEU for a preliminary ruling in the case mentioned above (see paragraph 10 point (5) above). On 21 September 2018 the disciplinary officer summoned the applicant to give evidence as a witness. This preliminary inquiry was concluded and no disciplinary proceedings were initiated. 15.     The Government submitted that both sets of preliminary inquiries concerned the conduct of other judges and the applicant’s participation in those cases was limited to giving testimony as a witness – a compulsory procedure for any person summoned as a witness pursuant to Article 177 §   1 of the Code of Criminal Procedure (“the CCP”). 16.     On 10 October 2018 the applicant was questioned as a witness by the deputy disciplinary officer in connection with preliminary inquiry no. RDSP 712-8/18 (see paragraph 14 point (2) above). 17.     The applicant lodged an interlocutory appeal against the deputy disciplinary officer’s decision to hear him as a witness. He submitted that, contrary to what was indicated in the summons of 21 September 2018, the questioning concerned his own judicial activity. He made his statements as a   witness on pain of criminal liability, even though neither the 2001 Act nor the CCP provided for a possibility that a judge be heard as a witness in the framework of the preliminary inquiry. The deputy disciplinary officer refused to examine the applicant’s interlocutory appeal for being inadmissible in law. A further appeal to the disciplinary officer was to no avail. According to the applicant, his statements were admitted in evidence and added to the case file of the proceedings concerning his own alleged “judicial excess” (see   paragraph 10 point (5) above). 18.     The applicant also requested that his lawyer be allowed to take part in the questioning. The deputy disciplinary officer refused that request on the basis of section 128 of the 2001 Act in conjunction with Article 87 § 3 of the CCP, which entitled a prosecutor to refuse to admit the lawyer’s participation in the proceedings, if in his opinion it was not necessary for the protection of the interests of the person concerned, who was not a party to the proceedings. A further appeal against the refusal was to no avail. 19.     The Disciplinary Officer, Judge P. Schab, in his press release of 17   December 2018 referring to cases nos. RDSP 712-8/2-18 and RDSP 712 ‑ 8/18 observed that the requests for preliminary rulings by the Łódź   Regional Court and the Warsaw Regional Court were identical in their content except for the reasons prompting those requests, whereas the applicant and Judge E.M. had testified in the course of the preliminary inquiries that they had not conferred with each other. For that reason the disciplinary officer considered that there was a possibility that the applicant and Judge E.M. could have committed a disciplinary offence of compromising the dignity of judicial office as a result of making their requests for preliminary rulings, while failing to observe the principle of impartiality. In addition, consideration had to be given to the possibility that one of those judges (the applicant or Judge E.M.) could have given false testimony when assuring that the requests for preliminary rulings had been prepared by themselves. 20.     The disciplinary officer noted that the analysis of the legal context in which the above decisions had been made also led to the conclusion that the requests for preliminary rulings had been made contrary to Article 267 of the TFEU. In those circumstances, the deputy disciplinary officer, Judge M.   Lasota considered it necessary to examine whether those requests, made in breach of Article 267 of the TFEU, had interfered with the proper conduct of the relevant domestic proceedings. In this regard, the disciplinary officer stated that the proceedings in which the applicant had made a request for a preliminary ruling concerned a particularly complex criminal case involving the commission of several serious offences. Thus, he considered it necessary to determine whether the indefinite stay of those proceedings, as a result of the action of a court in breach of the law, could constitute disciplinary misconduct on the part of the applicant. 21.     It appears that no disciplinary charge was brought against the applicant in relation to the above. 22.     The applicant submitted that as a result of the preliminary inquiries concerning him, many items of an insulting or discrediting nature were published or broadcast on the State television, printed media or on Internet portals. The applicant was confronted with many actions by unknown persons that impinged on his reputation. A parcel that allegedly contained anthrax bacteria was addressed to his professional address at the Warsaw Regional Court causing the evacuation of the building. THE CJEU’S JUDGMENT OF 26 MARCH 2020 IN MIASTO ŁOWICZ AND PROKURATOR GENERALNY , C-558/18 AND C-563/18, EU:C:2020:234 23.     On 31 August and 4 September 2018 the Łódź Regional Court (Judge   E.M.) and the Warsaw Regional Court (the present applicant) respectively made two requests to the CJEU for a preliminary ruling in cases pending before those courts. The first request was made in civil proceedings between the town of Łowicz and the State Treasury relating to a claim for payment of public subsidies. The second request was made in criminal proceedings against several persons for participation in kidnappings for financial gain. Both courts expressed fears that their expected decisions would lead to disciplinary proceedings being brought against the judges presiding in each of the cases, referring to the new legislation on the disciplinary regime applicable to judges and its compatibility with the right of individuals to effective legal protection, guaranteed in the second subparagraph of Article   19 § 1 TEU. They stressed the considerable influence of the Minister of Justice in the new disciplinary regime and pointed to the lack of adequate safeguards accompanying that influence. They submitted that the disciplinary procedures, as thus conceived, conferred on the legislative and executive branches a means of ousting judges whose decisions did not suit them, thereby influencing the judgments which those judges were called upon to deliver. 24.     In its judgment of 26 March 2020 the CJEU declared both requests inadmissible. It found that they did not concern an interpretation of EU law which met an objective need for the resolution of the disputes pending before the courts, but were of general nature. 25.     The CJEU, however, also addressed the question of the national law which exposed judges to disciplinary proceedings for making a reference for a preliminary ruling. In this part, the relevant reasons for the judgment read as follows: “54. As regards the circumstance, mentioned by the national courts in their letters ..., in which the two judges who made the present requests for a preliminary ruling were, as a result of those requests, the subject of an investigation prior to the initiation of potential disciplinary proceedings against them, it should be noted that the disputes in the main proceedings in respect of which the Court is requested to provide a preliminary ruling in the present joined cases do not relate to that circumstance. Moreover, it should be noted, as the Polish Government stated in its written observations and at the hearing before the Court, that those investigation proceedings have since been closed on the ground that no disciplinary misconduct, involving a failure to respect the dignity of their office as a result of making those requests for a preliminary ruling, had been established. 55 . In that context, it is important to note, as is clear from the Court’s settled case ‑ law, that the keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in Article   267 TFEU, which, by setting up a dialogue between one court and another, between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (Opinion 2/13 of 18   December 2014, EU:C:2014:2454, paragraph   176, and judgment of 24   October 2018,   XC and Others , C ‑ 234/17, EU:C:2018:853, paragraph   41). 56 . In accordance with equally settled case-law, Article   267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them. National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgments of 5   October 2010,   Elchinov , C ‑ 173/09, EU:C:2010:581, paragraph   26, and of 24   October 2018,   XC   and Others , C ‑ 234/17, EU:C:2018:853, paragraph   42 and the case-law cited). 57 . Therefore, a rule of national law cannot prevent a national court from using that discretion, which is an inherent part of the system of cooperation between the national courts and the Court of Justice established in Article   267 TFEU and of the functions of the court responsible for the application of EU law, entrusted by that provision to the national courts (judgment of 19   November 2019,   A.   K. and Others   (Independence of the Disciplinary Chamber of the Supreme Court)   (C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982, paragraph   103 and the case-law cited). 58 . Provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they submitted a reference to the Court for a   preliminary ruling cannot therefore be permitted ... Indeed, the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference after it was made is likely to undermine the effective exercise by the national judges concerned of the discretion and the functions referred to in the preceding paragraph. 59 . For those judges, not being exposed to disciplinary proceedings or measures for having exercised such a discretion to bring a matter before the Court, which is exclusively within their jurisdiction, also constitutes a guarantee that is essential to judicial independence (see, to that effect, order of 12   February 2019,   RH , C ‑ 8/19   PPU, EU:C:2019:110, paragraph   47), which independence is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article   267 TFEU (see, to that effect, judgment of 25   July 2018,   Minister for Justice and Equality (Deficiencies in the system of justice) , C ‑ 216/18   PPU, EU:C:2018:586, paragraph   54 and the case-law cited).” CRIMINAL PROCEEDINGS AGAINST THE APPLICANT Background to the case 26.     On 16 December 2016, during the session of the Sejm , the opposition blocked the parliamentary rostrum in protest, inter alia , against planned restrictions on the work of journalists in Parliament. The Speaker of the Sejm moved the session to the Column Hall in the parliament building, where a   vote on the 2017 Budget Act was to be held. According to opposition MPs, they were prevented by the MPs from the majority and officials of the Chancellery of the Sejm from taking part in a debate on the 2017 Budget Act. Again according to opposition MPs, there were also irregularities during the vote and its course was not reliably recorded in the official transcript. Those events were subject to intense public interest and media coverage. 27.     After the session in the Column Hall, certain opposition MPs filed a   criminal complaint with the prosecutor, alleging that they had not been allowed to take part in the parliamentary debate. They also claimed that the required quorum might not have been attained, which would result in the Budget Act not being duly adopted. Other criminal complaints were filed by several citizens. 28.     On 2 August 2017 the Warsaw Regional Prosecutor discontinued the investigation into the alleged irregularities during the Sejm ’s session of 16   December 2016 held in the Column Hall. Four persons lodged an interlocutory appeal ( zażalenie ) against that decision. 29.     On 18 December 2017 the applicant, sitting in a single-judge formation at the Warsaw Regional Court, considered the interlocutory appeal. Journalists from the two television channels who were present requested the court for permission to record the court session ( posiedzenie ). The applicant consulted the representatives of the MPs and the prosecutor, who raised no objections in this regard. The applicant accordingly decided to hold the court session in public and to allow the representatives of the media to record the court session, pursuant to Article 357 § 1 of the CCP. 30.     The Warsaw Regional Court (the applicant) decided to allow the interlocutory appeal and ordered the prosecutor to continue the investigation into the alleged irregularities during the vote on the Budget Act held in the Column Hall. The applicant provided orally the main reasons for the decision. In doing so, he quoted from witness testimony given in the investigation and noted that certain MPs from the parliamentary majority could have committed the offence of giving false testimony. 31.     On 18 December 2017 the portal wpolityce.pl published an interview with Ms K. Pawłowicz, an MP of the majority and member of the new NCJ, who is currently a judge of the Constitutional Court (see paragraph   206 below), in which she commented on the applicant’s decision of 18 December 2017. She stated, inter alia : “Judge Tuleya is an extremely resentful judge and I hope he will be the first person in respect of whom the proceedings will be instituted in the new Disciplinary Chamber for bias and political motivation in adjudicating.” 32.     On 26 April 2018 the Warsaw Regional Prosecutor again discontinued the investigation. Application for the lifting of the applicant’s immunity 33.     On 10 January 2018 the State Prosecutor’s Office ( Prokuratura Krajowa ) instituted an investigation concerning the applicant’s possible unauthorised disclosure of information from the pre-trial proceedings by allowing the media to record the session of 18 December 2017. 34.     On 17 February 2020 a prosecutor from the Internal Affairs Department ( Wydział Spraw Wewnętrznych ) of the State Prosecutor’s Office applied to the Disciplinary Chamber of the Supreme Court to issue a   resolution permitting the applicant to be held criminally liable. The prosecutor intended to charge the applicant as follows: “On 18 December 2017, as a public official, the judge of the Warsaw Regional Court, publicly failed to fulfil his official duties arising from Articles 2 § 1 (2) and 297 §   1 (1,2,4 and 5) of the Code of Criminal Procedure (‘the CCP’) as well as Article 241 §   1 of the Criminal Code (‘the CC’) and exceeded his powers under Articles 95b § 1, 329 §   1 and 357 § 1 of the CCP and Article 241 § 1 of the CC in that he allowed representatives of the media to record images and sounds during a session of the Warsaw Regional Court [in the case] no. VIII Kp 1335/17 and during the delivery of the decision in the case and oral reasons for it, as a result of which he disclosed to unauthorised persons, without the legally required consent of the authorised person [the   prosecutor], information from the investigation [conducted] by the Warsaw Regional Prosecutor’s Office in the case ... which he had obtained in connection with the performance of his official duties by which he acted to the detriment of public interest, namely an offence under Article 231 § 1 in conjunction with Articles 266 §   2 and 241 § 1 in conjunction with Article 11 § 2 of the CC.” 35.     Those acts were punishable by a term of imprisonment of up to three years. The first-instance decision of the Disciplinary Chamber 36.     On 9 June 2020 the Disciplinary Chamber, sitting as the first-instance court in a single-judge formation (Judge J. Wygoda), adopted a resolution ( uchwała ) dismissing the prosecutor’s application (no. I DO 8/20). It found that there was no reasonable suspicion that the applicant had committed the impugned criminal offence. 37.     First, the Disciplinary Chamber noted that the prosecutor had erroneously asserted that the applicant failed to fulfil his official duties arising from the statutory provisions invoked by the prosecutor by authorising the representatives of the media to record the session of the Warsaw Regional Court on 18 December 2017 in case no. VIII Kp 1335/17 and the delivery of the decision in that case. 38.     It found that the fact that the applicant had “made public” the course of the session on 18 December 2017, by allowing the media representatives to record it, had not involved any abuse of the judge’s powers under Article   95b § 1 of the CCP. It was clear from the wording of this provision that in a situation where the court conducting the proceedings or the president of the court ordered a session to be held in public it could not be claimed that they abused their powers or failed to fulfil their duties since that type of decision fell within their statutory powers. 39.     The Disciplinary Chamber further noted that the applicant, as a judge presiding over a public court session, had, pursuant to Article 95b § 3 in conjunction with Article 357 of the CCP, the competence to allow representatives of the media to record the session. It was therefore impossible to share the position of the prosecutor that the applicant, by allowing the representatives of the media to participate in the session of 18 December 2017 and to record it, had exceeded his powers in any way. In this context, it referred also to Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention, which enshrined the right to a public hearing. In conclusion, the Disciplinary Chamber held that the applicant’s act could not have been characterised as an abuse of his powers or a failure to fulfil his duties as specified in Article 231 of the Criminal Code (“the CC”). 40.     Secondly, the Disciplinary Chamber refuted the prosecutor’s assertion that the act imputed to the applicant had carried the constituent elements of the offence defined in Article 241 § 1 of the CC. It noted that it was clear from the literal wording of this provision that that offence could not have been committed by someone who, acting as an authority, disseminated information from an investigation in court proceedings. The Disciplinary Chamber noted that in the case at hand, the “disclosure” of information from the investigation had taken place in court proceedings and emphasised that it had been made in the absence of any objection from the prosecutor conducting the investigation. 41.     The Disciplinary Chamber concluded that the disclosure of material from the investigation at the public court session concerning the examination of an interlocutory appeal against the discontinuance of the investigation could not have been characterised as an offence under Article 241 of the CC, since it had taken place in the course of the court proceedings and the disclosure of information had been made by an authorised body. 42.     On 16 June 2020 the prosecutor lodged an interlocutory appeal. He   claimed, inter alia , that the applicant had, in accordance with Article   95b §   1 of the CCP, the competence to decide that the session could be held in public and to admit the representatives of the media to the session; however no provision of the law authorised him to disclose the evidential material from the investigation. The second-instance decision of the Disciplinary Chamber 43.     On 18 November 2020 the Disciplinary Chamber, sitting as the second-instance court, in a formation of three judges, P.S. Niedzielak, J.   Sobutka and K. Wytrykowski, partly allowed the prosecutor’s interlocutory appeal and amended the first-instance resolution (no. II DO 74/20). It took its decision by a majority, with Judge J.   Sobutka dissenting. The Disciplinary Chamber lifted the applicant’s immunity and permitted him to be held criminally liable with regard to the charge under Article   241   §   1 of the CC. The charge against the applicant was that, as president of the single-judge formation of the Warsaw Regional Court during the session of 18   December 2017, while giving oral reasons for the decision, he had publicly disclosed without permission – through the media – information from the investigation conducted by the Warsaw Regional Prosecutor’s Office. 44.     The Disciplinary Chamber further decided, pursuant to section   129(2) and (3) of the 2001 Act, to suspend the applicant from his judicial duties and to reduce his salary by 25% for the duration of his suspension. 45.     The Disciplinary Chamber found that the first-instance court had erred in adopting an extensive interpretation of the notion of “court proceedings”, one of the constituent elements of the offence under Article 241 § 1 of the CC, which defined the moment up to which the disclosure of information from pre-trial proceedings without authorisation was punishable. It noted that “court proceedings” under that provision were only those proceedings that were subsequent to the conclusion of pre-trial proceedings and were initiated by the filing of a bill of indictment or an equivalent pleading in court and which were conducted in a hearing or session dealing with the issue of the criminal liability of the person concerned. Accordingly, it should be clear that disclosure of information from pre-trial proceedings, without the permission of the relevant authority (the prosecutor), was punishable until the final conclusion of the pre-trial proceedings. However, the conduct of the applicant had taken place after the order setting aside the non-final decision to discontinue the proceedings and referring the case for further pre-trial proceedings had been given, i.e. when the pre-trial proceedings were still ongoing. The Disciplinary Chamber noted that judicial review of the prosecutor’s decisions to discontinue pre-trial proceedings or to refuse to initiate such proceedings were judicial acts in pre-trial proceedings, which were not “judicial proceedings” within the meaning of Article 241 § 1 of the CC. 46.     It went on to observe that an order to hold a session in public was not a discretionary decision, but had to take into account the circumstances of a   given case. In the instant case, the nature and objectives of the pre-trial proceedings, including the fact that the interest of those proceedings was protected directly by Article 241 § 1 of the CC, could not be extinguished through the possibility provided for in Article 95b § 1 of the CCP. There might be cases in which the possibility of ordering that a session be held in public would be excluded or significantly limited owing to the interest protected by Article 241 § 1 of the CC. The Disciplinary Chamber found that the Warsaw Regional Court (the applicant), when deciding to hold the session in public, should have considered whether allowing the recording of the session by the media was at all admissible in the circumstances of the case. Once he had so decided, he should have conducted the session in such a way that the offence under Article 241 § 1 of the CC would not be committed. 47.     From this point of view, the Disciplinary Chamber noted that the last few minutes of the giving of oral reasons for the decision had been particularly critical. In this part, the applicant had read out extensive excerpts from the minutes of the questioning of witnesses, commented on them and quoted the content of other material from the pre-trial proceedings, when not all of the resulting information was already known to the public beforehand, in particular from the MPs’ recordings of the proceedings in the Sejm ’s Column Hall and their direct reports of those proceedings. 48.     The Disciplinary Chamber noted that in view of his order to allow the media to record the session under Article 357 § 1 of the CCP, the judge should have given oral reasons for his decision in a general manner so as not to give rise to a reasonable suspicion that he had committed an offence under Article   241 § 1 of the CC. Then, he would have been able to present a detailed analysis of the evidence examined by the prosecutor in the written reasons for the decision, which were, as a rule, only available to the parties. 49.     The Disciplinary Chamber also examined whether the applicant’s act could be characterised as an offence under Article 231 § 1 and Article   266 §   2 of the CC, both of which required an act to the detriment of public interest. It found that the evidence adduced by the prosecutor did not justify a   conclusion that the applicant’s act amounted to any threat to the public interest. In this regard, the Disciplinary Chamber noted that it did not result from the material produced in the proceedings, which included the testimony of the prosecutor in charge of the impugned investigation,