CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 novembre 2023

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text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s17E903BE { width:3.01pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC986E16F { font-family:Arial; color:#ffffff } .s4EC10A73 { width:26.87pt; display:inline-block } .sB995083 { width:143.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } FIRST SECTION CASE OF WAŁĘSA v. POLAND (Application no. 50849/21)   JUDGMENT   Art 6 § 1 (civil) • Tribunal established by law • Independent and impartial tribunal • Reversal by Supreme Court’s Chamber of Extraordinary Review and Public Affairs (CERPA) of final civil defamation judgment given in applicant’s favour ten years earlier, following Prosecutor General’s extraordinary appeal on defendant’s behalf • Finding of violation based on reasons in Dolińska-Ficek and Ozimek v.   Poland in light of three-step test formulated in Guðmundur Andri Ástráðsson v.   Iceland [GC] • Manifest breaches in appointment of judges to CERPA following legislative reform • Exclusive competence of CERPA in matters involving plea of lack of independence on part of judge or court, including where motion directly against them, in breach of fundamental principle nemo judex in causa sua • CERPA having uncircumscribed power in all matters concerning Polish judiciary’s independence Art 6 § 1 (civil) • Fair hearing • Extraordinary-appeal procedure incompatible with principle of legal certainty • Lack of foreseeability of relevant legal provisions • Unfettered discretion afforded to authorities and bodies involved in interpreting extraordinary-appeal grounds • Exceptionally extended and retrospectively applied time-limits to contest, over considerable period of time, judgments in civil cases closed over twenty years before legislation took effect • Lack of sufficient safeguards against possible abuse of process and instrumentalising of extraordinary-appeal procedure • Exclusive competence of CERPA, body lacking attributes of “independent and impartial tribunal established by law”, to deal with extraordinary appeals • Procedure used as “ordinary appeal in disguise” resulting in fresh examination of finally determined case • Abuse of procedure in present case by State authority in pursuance of its own political opinions and motives • No circumstances of substantial and compelling nature justifying departure from res judicata principle Art 8 • Reversing of final judgment by CERPA adversely affected applicant’s private life to significant degree • Breach of “in accordance with the law” requirement deriving from Art   6 §   1 violations Art 46 • Pilot judgment • Violations originating in interrelated systemic problems connected with malfunctioning of domestic legislation and practice • Continued increase in applications against respondent State stemming from Polish judicial reform • Respondent State required to take rapid and adequate legislative and other measures to secure in its domestic legal order compliance with requirements of “independent and impartial tribunal established by law” and principle of legal certainty • Detailed general measures indicated by the Court   STRASBOURG 23 November 2023 FINAL   23/02/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wałęsa v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak, President ,   Alena Poláčková,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato, judges ,   Ioannis Ktistakis, ad hoc judge , and Renata Degener, Section Registrar , Having regard to: the application (no.   50849/21) 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   Lech Wałęsa (“the applicant”), on 5 October 2021; the decision to give notice to the Polish Government (“the Government”) of the application; the withdrawal of Mr Krzysztof Wojtyczek, the judge elected in respect of Poland, from sitting in the case (Rule 28 § 3 of the Rules of Court); the decision of the Chamber under Rule 29 § 2 (b) that less than three of the persons indicated in the list of ad hoc judges submitted in advance by the Government in accordance with Article   26 §   4 of the Convention and Rule   29 § 1 (a) satisfied the conditions set out in paragraph 1(c) of this Rule; the decision of the President of the Section to appoint Judge Ioannis Ktistakis to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule   29 § 2 (b)) in place of Mr Wojtyczek; the observations submitted by the Government and the observations in reply submitted by the applicant; the comments submitted by the third-party interveners, namely the Helsinki Foundation for Human Rights, the Commissioner for Human Rights of the Republic of Poland (“the Commissioner”) and the Polish Judges Association Iustitia, which were granted leave to intervene by the President of the Section; Having deliberated in private on 14 November 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns proceedings in which, following the Prosecutor General’s extraordinary appeal lodged in the applicant’s defamation case, the Chamber of Extraordinary Review and Public Affairs (hereinafter “the CERPA”) of the Supreme Court reversed the final civil-court judgment which had been given in the applicant’s favour over ten years earlier. It raises issues under Article 6 § 1, Article   8 and Article   18 of the Convention. Legal Context of the Case 2.     The legal aspects of the case are connected with the so-called “reform of the judiciary” in Poland which was initiated in 2017 and has been implemented by successive amending laws. The broader domestic legal background to the present case and international material relevant for the Polish reform of the judiciary were set out in the Court’s judgments in Reczkowicz v. Poland (no. 43447/19, §§   4 ‑ 53, 22   July 2021), Dolińska-Ficek and Ozimek v. Poland (nos. 49868/19 and   57511/19, 8 November 2021), Advance Pharma sp. z o.o v.   Poland (no.   1469/20, §§ 4-78 and 95-225, 3 February 2022) and Grzęda v.   Poland ([GC], no.   43572/18, §§ 14-28, 15 March 2022). 3.     The present case mainly concerns the operation of the Amending Act of 12   July 2017 on the National Council of the Judiciary and certain other statutes ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”), which modified the procedure for the election of members of the National Council of the Judiciary (“the NCJ”) – a body responsible for recommending judges of ordinary courts, the Supreme Court, the Supreme Administrative Court, administrative courts and military courts for appointment by the President of Poland; and the Act of 8 December 2017 on the Supreme Court ( ustawa o Sądzie Najwyższym – “the 2017 Act on the Supreme Court”), which established two new chambers of the Supreme Court – the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs or CERPA ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ) – and introduced an extraordinary appeal ( skarga nadzwyczajna ) into the Polish legal system. 4.     The Court has dealt with the operation of the 2017 Amending Act and the recomposed NCJ, including its involvement in the procedure of judicial appointments, in Reczkowicz , Dolińska-Ficek and Ozimek , Advance Pharma sp. z o.o and Grzęda (all cited above), and in Żurek v. Poland (no.   39650/18, 16 June 2022), Juszczyszyn v. Poland (no. 35599/20, 6   October 2022) and Tuleya v. Poland (nos. 21181/19 and 51751/20, 6 July 2023). In Dolińska-Ficek and Ozimek (§§ 353-354), the Court found a violation of the applicants’ right to an independent and impartial tribunal established by law under Article 6 § 1 of the Convention on account of the inherently deficient procedure for the appointment of judges of the CERPA. According to official statistics published on the website of the President of Poland [1] , between 6 April 2018 (when the recomposed NCJ started its work) and 17 October 2023 the President appointed 2,006 judges to the ordinary courts, 58   judges to the Supreme Court, 31 judges to the Supreme Administrative Court and 115 judges to regional administrative courts. The last 72 letters of appointment were issued on 17 October 2023. THE FACTS 5.     The applicant was born in 1943 and lives in Gdańsk. In the proceedings before the Court he was represented by Ms K. Warecka, a lawyer practising in Gdańsk. 6.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 7.     The facts of the case may be summarised as follows. BACKGROUND TO THE CASE 8.     The applicant is the former leader of the “Solidarity” ( Solidarność ) trade union, former President of Poland (from 1990 to 1995) and laureate of the 1983 Nobel Peace Prize. 9.     In 2000 the applicant was a candidate in the presidential elections. Candidates were required by law to make what is known as a “lustration declaration” ( oświadczenie lustracyjne ) under the Act of 11 April 1997 on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons performing public duties ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne ). On an unspecified date the applicant made a declaration, stating that he had not collaborated with the communist security services. 10.     On 12 July 2000 the Warsaw Court of Appeal ( Sąd Apelacyjny ) initiated ex proprio motu a “lustration” (vetting) procedure ( postępowanie lustracyjne ) concerning the applicant. In the course of the proceedings evidence was taken from the material submitted by the Office for State Protection ( Urząd Ochrony Państwa ), as well as from witnesses. 11.     In a judgment of 11 August 2000, the Warsaw Court of Appeal held that the applicant had filed a true lustration declaration. It concluded that it was not possible to establish with certainty whether the records of the former Security Service ( Służba Bezpieczeństwa ) relating to the secret collaborator “Bolek” (allegedly a code name for the applicant) were authentic and made at the material time or fabricated much later for the purpose of discrediting the applicant. For those reasons, the court held that, in the absence of any evidence of the applicant’s alleged collaboration with the former Security Service, it should be concluded that he had submitted a true lustration declaration. 12.     Despite that judgment, the question of the applicant’s alleged collaboration has reverberated in some discussions in political and media circles, attracting at times considerable interest among the public in the matter. Over the years many press articles and books have been published, and historians have taken part in the discussions. Public opinion has been divided. 13 .     The strongest, most vocal and categorical public statements that the applicant was a secret collaborator have come from the circle of members and supporters of the Law and Justice party (hereinafter also referred to as “PiS”), led by Jarosław Kaczyński, including: Mr Kaczyński himself (the party’s president since 2003; Prime Minister in 2006-07; Deputy Prime Minister from 6 October 2020 to 17 June 2022 and then again from 21 June 2023 to the present day); his now late brother, Mr Lech Kaczyński (former President of Poland from 2005 to 2010); and Mr Zbigniew Ziobro (member of parliament since 2005, Minister of Justice and Prosecutor General from October 2005 to November 2007; Minister of Justice since November 2015 and, since February 2016, Minister of Justice and Prosecutor General, member of PiS from 2001 to 2011; since 2012, leader of the party initially named Solidarity Poland and currently known as Sovereign Poland, forming the United Right alliance with PiS from 2014). In 1990-91 Mr Jarosław Kaczyński served as the Head of Chancellery of the President of Poland during the applicant’s term in that office. He was dismissed by Mr Wałęsa. In January 1993 he was one of the organisers of the so-called “March on Belweder [2] ”, demanding that Mr Wałęsa step down. At the beginning of 1993 his former political party initiated a movement whose aim was to remove the applicant from office. Mr Krzysztof Wyszkowski, connected with the PiS party and the Kaczyński brothers, and a member of the party since 2010, had consistently supported the view that the applicant had been a secret collaborator of the communist security services. 14 .     On 9 June 2005 the TVN24 television station broadcast a programme featuring, among other participants, the applicant and Mr Wyszkowski. During this programme, it was discussed whether the applicant should be granted victim status ( osoba pokrzywdzona ) by the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation ( Instytut Pamięci Narodowej – Komisja Ścigania Zbrodni przeciwko Narodowi Polskiemu – “the IPN”). Mr Wyszkowski took the view that the IPN should refuse to grant the applicant victim status, on the grounds that he had been a secret collaborator of the security services before being persecuted. 15.     On 16 November 2005 the IPN granted the applicant victim status under section 6 of the Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation ( ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu ). Under section 6(1) a victim within the meaning of that Act was “[a] person in respect of whom organs of the secret service collected information on the basis of purposefully gathered data, including in a secret manner”. Under section 6(3), a “person who subsequently became an officer, employee or collaborator of the secret service” was not a “victim” for the purposes of the Act. The IPN issued the applicant with certificate no.   1763/05, thus confirming that as a victim he had not been a collaborator of the communist State security organs. This fact was widely reported by the media. 16 .     On the evening of that same day, the news programmes of two   television stations, TVP2 and TVN24, reported this information. The journalists sought comments from Mr Wyszkowski, who was a former friend and associate of the applicant’s. He stated, among other things, as follows: “[T]oday victim status does not mean that you were not an informant. Lech Wałęsa was a secret collaborator under the alias Bolek , (he) reported on his colleagues, (he) received money for it ...” PROCEEDINGS FOR DEFAMATION LODGED BY THE APPLICANT 17.     On 23 November 2005 the applicant lodged a civil claim with the Gdańsk Regional Court ( Sąd Okręgowy ) against Mr Wyszkowski for infringement of his personality rights. He claimed that the defendant had disseminated untrue information about him and damaged his reputation. The applicant demanded that the defendant publish an apology on television stations TVP2 and TVN24, which was to be formulated as follows: “On 16 November 2005 on TVP’s Channel 2 and TVN’s Fakty, I stated that the applicant had collaborated with the Security Service in the 1970s and had received money in return, a statement which was manifestly untruthful, thereby undermining the reputation and personal dignity of [the applicant]. I therefore retract [this statement] in its entirety and apologise to Lech Wałęsa for infringing his personality rights.” The applicant also sought an order requiring the defendant to make a payment of 40,000 Polish zlotys (PLN) to the Gdańsk Children’s Hospital for the purchase of a new X-ray unit as compensation for non-pecuniary damage caused by his defamatory statement. 18 .     On 30 January 2006 the Gdańsk Regional Court gave judgment, ordering Mr Wyszkowski to publish an apology and to pay PLN 10,000 in compensation. On 25 October 2006 that judgment was set aside by the Gdańsk Court of Appeal ( Sąd Apelacyjny ) and the case was remitted to the Gdańsk Regional Court. In the reasoning of its decision, the Court of Appeal stated, among other things, that the defendant had been prevented from initiating evidence-taking proceedings before the court of first instance even though he had wished to do so. 19.     By a judgment of 5 March 2007, the Gdańsk Regional Court ordered Mr   Wyszkowski to publish, at his own expense, the apology in the manner specified by the applicant. In addition, the court ordered the defendant to pay PLN   40,000 to the Children’s Hospital in Gdańsk. On 23 October 2007, following the defendant’s appeal, the Gdańsk Court of Appeal quashed the impugned judgment, annulled the proceedings before the Gdańsk Regional Court as from the hearing held on 5 March 2007, and remitted the case to that court. 20.     On 31   August 2010 the Regional Court gave judgment and dismissed the claim. It observed that the possibility of examining and discussing the existence of a historical fact, namely the applicant’s alleged collaboration with the Security Service, could not be entirely ruled out. Nor, in the court’s view, was it possible to prohibit, particularly journalists, from speaking out about the existence of a particular historical fact on the basis of reliable reports from sound historical studies. According to the court, the discussion on the applicant’s alleged collaboration had not ensued as a result of Mr   Wyszkowski’s statement but, on the contrary, his statement was merely part of a wide-ranging, long-standing discussion on that subject. The court noted that the defendant, as an established journalist who had been collecting, analysing and publishing results of historical research and data on the subject, had the right to have his voice heard in that discussion, and that the applicant, as a public figure, had to expect that the entire period of his activity would be probed and that the result of such probing would be a subject of public debate. In support of its conclusions, the court cited the Court’s case-law on freedom of expression, the role of public debate and journalists, and the limits of permissible criticism of politicians. The court also said that the fact that a journalist observed the requisite diligence and acted in good faith was a circumstance which rendered his conduct justified, i.e. not unlawful, without it being necessary for the journalist to demonstrate that accusations made by him were true. Therefore, it was not for the defendant to prove indisputably that his journalistic statement was true but to demonstrate that he, as a journalist, had displayed the requisite diligence in researching and checking information and had obtained it from reliable sources. According to the court, the defendant had satisfied that condition and the action brought by the claimant (the present applicant) therefore had to be dismissed. 21 .     On 24 March 2011 the Gdańsk Court of Appeal, on the applicant’s appeal, amended the Regional Court’s judgment. The court ordered Mr   Wyszkowski to publish an apology to the applicant on the television stations TVP2 and TVN24. It dismissed the remainder of the applicant’s appeal regarding pecuniary claims. The Court of Appeal held that the defendant had not proved the accuracy of his claims that the applicant had collaborated with the Security Service. In the court’s view, the allegations made by the defendant against the applicant should have been based on accurate facts and verified evidence, in which case the applicant could not have claimed protection because, as a public figure, he had to withstand public criticism of his conduct. Consequently, the veracity of the accusations concerning the past collaboration with the Security Service, in the court’s view, should have been proved by Mr Wyszkowski. The Court of Appeal concurred with the view expressed by the Supreme Court in the reasoning of its judgment of 10 September 2009 in case no.   V   CSK 64/09, according to which the veracity of factual allegations was a necessary element for excluding the unlawfulness of conduct that infringed personality rights. Unlawfulness was not removed by merely displaying the requisite diligence in verifying and using the data on which an accusation was based. Neither was it sufficient, in order to exclude the unlawfulness of a false statement which violated the personality rights of another person, for its author to believe that – in exercising his or her constitutionally guaranteed freedom of expression – he or she was acting in the defence of a socially legitimate interest. In the opinion of the Gdańsk Court of Appeal – and contrary to the view taken by the Regional Court – when formulating his allegation of the applicant’s past secret collaboration, the defendant had not acted as a journalist publishing material but as an ordinary citizen asked to comment on the applicant’s having been granted victim status by the IPN. The defendant’s statement had been quoted for an ordinary purpose and introduced as such by the author and journalist of the television programme. The defendant had been asked to comment as one of the applicant’s main opponents and his former associate, as was noted in the broadcast (see also paragraph 16 above). Therefore, it was not possible to apply the provisions of the Press Act ( ustawa prawo prasowe ) to protect the defendant’s statements or, as the Regional Court had done, to seek justification for the uncompromising claims which violated the applicant’s personality rights. In the court’s view, the defendant had failed to prove that he was an active journalist at that time. 22 .     On 30 November 2011 the Supreme Court refused to entertain a cassation appeal ( skarga kasacyjna ) lodged by Mr Wyszkowski on account of a lack of adequate grounds. 23.     The above proceedings and their outcome were the object of an application (no. 34282/12) lodged by Mr   Wyszkowski with the Court on 8   May 2012 and of which notice was given to the Government on 11   March 2019 under Article 10 of the Convention [3] . That case, following the Government’s unilateral declaration, was struck out of the Court’s list on 1   July 2021 (for further details, see paragraphs 45 ‑ 46 below). 24 .     On 21 March 2017 Mr Wyszkowski lodged a request with the Gdańsk Court of Appeal, seeking to have the terminated proceedings reopened on account of newly discovered evidence which allegedly proved his statements on the applicant’s collaboration with the communist security services (secret files kept by the last communist Prime Minister of Poland, which were obtained by the IPN during a search of his house after his death). 25 .     On 27 June 2017 the Gdańsk Court of Appeal rejected that request as lodged outside the relevant time-limit. On 30 November 2017 the Supreme Court dismissed Mr Wyszkowski’s interlocutory appeal against that ruling. 26 .     Mr Wyszkowski, who shortly after the final judgment apparently appealed to the public for financial support to cover the costs of publication of the apology, eventually refused to publish it as ordered. The applicant published the apology on his own, by way of substitute performance. Ultimately, the television station TVN, which aired the apology, reimbursed the applicant the costs of the publication, which amounted to PLN   24,000 (approximately 5,200 euros – EUR). INTRODUCTION OF AN EXTRAORDINARY APPEAL UNDER THE 2017 ACT ON THE SUPREME COURT 27.     On 8 December 2017 the Sejm enacted the 2017 Act on the Supreme Court (see paragraph 3 above), creating two new chambers: the Disciplinary Chamber and the CERPA. The latter Chamber became competent to examine extraordinary appeals – a new type of appeal, also introduced into the Polish legal system under that Act (see paragraph   69 below; see also Dolińska-Ficek and Ozimek , cited above, §§   23, 25, 89 and 91). The 2017 Act on the Supreme Court entered into force on 3 April 2018. The Prosecutor General’s extraordinary appeal and proceedings before the CERPA (case n o . I NSN c 89/20) 28 .     On 31 January 2020 the Prosecutor General, Mr Ziobro, lodged an extraordinary appeal against the judgment of the Gdańsk Court of Appeal of 24   March 2011. 29.     Relying on section 89(1) and (2) in conjunction with section 115(1) and (1a) of the 2017 Act on the Supreme Court, the Prosecutor General submitted that the lodging of the extraordinary appeal was necessary in order to ensure compliance with the principle of a democratic State governed by the rule of law and implementing the principles of social justice (Article 2 of the Constitution), which must protect freedom of expression and freedom of press. 30.     The Prosecutor General argued that the impugned judgment had breached the principles, freedoms and rights of every human being and citizen as enshrined in Articles 31 § 3 and 54 of the Constitution by infringing the principle of proportionality and protecting the applicant’s reputation at the expense of Mr Wyszkowski’s freedom of expression. The Prosecutor General also submitted, relying on the jurisprudence of the Constitutional Court, the Supreme Court and the Court, that the impugned judgment had breached the constitutional freedom of speech ( wolność słowa ) and flagrantly violated Article 10 of the Convention in conjunction with Article 54 of the Constitution and Articles 23 and 24 § 1 of the Civil Code by not concluding that Mr Wyszkowski’s statements had been made within the boundaries of his freedom of expression. The Court of Appeal had not properly balanced, on the one hand, the constitutional protection of freedom of speech and, on the other, the protection of reputation and honour, unjustifiably giving primacy to the protection of private life. The Prosecutor General further argued that the Gdańsk Court of Appeal had erred in making factual findings and evaluating evidence submitted by Mr Wyszkowski, which – according to the Prosecutor General – had proved the truthfulness of the defendant’s statements concerning the applicant’s collaboration with the communist security services. Lastly, he questioned the Court of Appeal’s conclusion that Mr   Wyszkowski had not been acting as a journalist, emphasising that the defendant had in the past – and subsequently – published in Gazeta Polska and, given the economic reality, his journalistic activity had not always been remunerated. 31 .     Pursuant to section 91(1) of the 2017 Act on the Supreme Court, the Prosecutor General requested the Supreme Court to reverse the impugned judgment, in so far as it ordered Mr Wyszkowski to apologise to the applicant, and to rule on the merits of the case by dismissing the applicant’s claim and making an award concerning the costs of the proceedings. 32.     The applicant submitted that he had been served with the Prosecutor General’s extraordinary appeal only on 23 June 2020 and had been required to present his arguments in reply within two weeks. In his reply, he had rebutted the Prosecutor General’s arguments by contesting the constitutionality of the extraordinary appeal which, in his submission, was in breach of the rule of law and arguing that reconsideration of the case ten years after it had been finally concluded would be a violation of his right to a fair hearing and the principle of legal certainty. He stressed that the time-limit of two weeks for presenting his reply to the appeal was overly short and in breach of the principle of equality of arms. Furthermore, the new legal provisions concerning extraordinary appeals had been introduced in a political context and lacked any legal justification. 33.     The applicant also pointed to the “logical impossibility” of granting the relief sought by the appeal: the Prosecutor General had sought to have the final judgment quashed in the part ordering the apology whereas, in his view, the effects of an apology already published could not be made null and void. He also argued that allowing the extraordinary appeal would constitute an unlawful interference with his right to respect for his private life. 34 .     On 19 April 2021 the applicant requested that seventeen judges currently sitting in the CERPA of the Supreme Court – starting with its president, Judge Joanna Lemańska, and including Judges Aleksander Stępkowski, assigned as rapporteur to his case, and Paweł Księżak (who was subsequently to deal with the applicant’s request for exclusion – see paragraph 35 below) – be excluded from the examination of the Prosecutor General’s extraordinary appeal in his case. The applicant submitted that the procedure for appointment of all these judges to the Supreme Court raised serious doubts from the point of view of the rule of law, especially as they had been recommended for appointment by the reformed NCJ, which had been constituted in a deficient procedure under the 2017 Amending Act. Several cases were already pending before the Court where the legality of the Disciplinary Chamber and the CERPA was being examined. This should result in suspending the operation of those bodies. Furthermore, the procedure of appointment to those chambers had been widely criticised by various institutions, including the Venice Commission, the European Commission and the Court of Justice of the European Union (“the CJEU”). The Supreme Court had expressed its doubts as to whether a person appointed in the procedure involving the defectively elected NCJ could be considered an “independent and impartial tribunal” in a request for a preliminary ruling to the CJEU. There were therefore serious doubts regarding the independence and impartiality of Judge Stępkowski, as it was his status as judge which was the object of pending proceedings before the CJEU following the above request for a preliminary ruling (see judgment of 6 October 2021 in W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court   – Appointment) , C ‑ 487/19, EU:C:2021:798; see also Dolińska-Ficek and Ozimek , cited above, §§   131-136 and 201 ‑ 203). The applicant said that he was “outraged” ( zbulwersowany ) by the fact that Judge Stępkowski was sitting in his case. In that regard, he also referred to that judge’s past activities before being appointed, including co-founding and leading Ordo Iuris in Poland, a non ‑ governmental organisation which – according to the applicant   – was promoting an extreme and fundamentalist programme, arousing strong opposition from various social circles; these activities demonstrated views adversely affecting his impartiality. All this, in his submission, should have disqualified Judge Stępkowski from dealing with his case. 35 .     On 21 April 2021 the applicant’s request for the exclusion of the judges was dismissed in so far as it concerned Judge Stępkowski and the remainder was rejected. The decision was issued by the CERPA sitting in a single-judge formation (Judge Księżak). No written reasons were provided. The decision is available on the Supreme Court’s website. 36 .     On the same day the CERPA reversed the judgment of the Gdańsk Court of Appeal of 24   March 2011 and dismissed the applicant’s appeal against the first-instance judgment in so far as the Court of Appeal had allowed his claim. The bench was composed of Judges Marcin Łochowski (president), Aleksander Stępkowski (rapporteur) and lay judge ( ławnik ) Marek Sławomir Molczyk. The full text of the judgment is available on the Supreme Court’s website. 37 .     The CERPA began its written statement of reasons by summarising the rationale behind the extraordinary appeal. Referring to the Supreme Court’s jurisprudence and the Court’s case-law (in particular, Brumărescu v.   Romania [GC], no. 28342/95, §   62, ECHR 1999-VII; Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003 ‑ IX; and Sutyazhnik v. Russia , no. 8269/02, §   38, 23 July 2009), it explained that the basis for an extraordinary appeal was compatible with international standards of human rights protection and that the mechanism was aimed at rectifying mistakes that could be considered of fundamental importance for the administration of justice. Furthermore, the distinct legal basis of the extraordinary appeal, the time ‑ limit for lodging it and additional safeguards laid down in section 89(3) and (4) of the 2017 Act on the Supreme Court (see paragraph 69 below) ensured its compliance with the standards developed by the Court. 38.     The chamber then assessed the admissibility of the appeal, characterised the arguments raised by the Prosecutor General (some of which it considered incorrectly formulated) and recapitulated the facts. Referring to the proceedings conducted before the lower courts, it held that the Gdańsk Court of Appeal could have ordered Mr Wyszkowski, at most, to publish a statement about the fact that he had not proved his allegations concerning the applicant’s past, whereas it had actually ordered him to state that they were false. As such, according to the court, the judgment of the Gdańsk Court of Appeal had entailed a flagrant disregard for the constitutional freedom of speech and constituted a flagrant breach of Article 54 of the Constitution. 39 .     Referring extensively to the Court’s jurisprudence under Articles   8 and 10 of the Convention, the chamber concluded that the latter provision had been flagrantly violated. It explained that Mr Wyszkowski should have been considered a “public watchdog” and that there had been no pressing social need to limit his freedom of expression, considering that his statement concerned the applicant – a public figure. In its view, the Court of Appeal had formalistically limited the notion of “journalist” to that defined in the Press Act and, as a result, had not excluded the unlawfulness of the defendant’s acts, thus refusing him the protection accorded to journalists who fulfilled a duty of particular diligence in collecting materials for their statements and publications. Furthermore, the sanction imposed on the defendant was disproportionate. 40.     The chamber considered it significant that the defendant’s statements did not strictly concern the private sphere of the applicant’s life but his relations with the special services of the totalitarian State. As these services had been responsible for systematic violations of human rights, the collaboration with an organisation of that kind inevitably led to an unambiguous moral assessment, which was undoubtedly extremely damaging to the honour and good name of the person accused of such collaboration. However, this unequivocally negative assessment in respect of public figures, in particular those holding a high public office, called especially for disclosure and, justifiably, was the object of keen interest to the public and the media. Accordingly, the applicant’s private life warranted a weaker degree of protection on account of his status as a public figure. 41.     Referring to the Court’s case-law on Article 10 of the Convention, the chamber held that the defendant’s statements could not be considered in the context of a violation of Article 8 of the Convention. The statements, apart from being unrelated to the applicant’s private life or its more intimate aspects, concerned one of the key topics of public debate in Poland after 1989. Consequently, there was no basis for considering the issue of the infringement of the applicant’s reputation under Article 8. It could only be considered from the point of view of the limitations referred to in Article 10 § 2 of the Convention, which had to be interpreted strictly. 42 .     The chamber concluded that the severity of the violation of Article   10 of the Convention had been more far-reaching than the breach of Article   54 of the Constitution, as the sanctions imposed on the defendant had been severe, whereas his statements had warranted special protection under Article   10. For that reason, Article 10 of the Convention had been flagrantly violated. 43.     In the subsequent part of the judgment, the chamber dismissed the Prosecutor’s General arguments regarding the allegedly incorrect assessment of evidence and errors in factual findings. 44 .     Lastly, the chamber considered that even though more than five years had elapsed since the judgment of the Gdańsk Court of Appeal had become final, in the light of the importance of public debate for a democratic State governed by the rule of law, the impugned judgment should be reversed and there was nothing which justified granting precedence to the principle of res judicata . The chamber noted that the proceedings in the case of Mr   Wyszkowski (see paragraphs 45 ‑ 46 below), concerning a violation of Article 10 of the Convention resulting from the impugned judgment, were currently pending before this Court. It considered that, in the light of its findings in the applicant’s case, the outcome of the Court’s proceedings seemed “fairly easy to predict”. That being so, it was obvious that the reversal of that judgment was not only proportionate but also necessary to ensure compliance with the principle of a democratic State governed by the rule of law and implementing the principles of social justice. RELATED PROCEEDINGS BEFORE THE COURT (APPLICATION No.   34282/12, WYSZKOWSKI v. POLAND ) 45 .     In his application of 8 May 2012, Mr Wyszkowski complained that judicial decisions in his case, in particular the judgment of the Gdańsk Court of Appeal of 24 March 2011, had violated Article 10 of the Convention. On   11 March 2019 the Court gave notice of the application to the Polish Government (see also paragraph 23 above). On 15 January 2021, after an unsuccessful attempt to reach a friendly settlement, the Government submitted a unilateral declaration. 46 .     On 1 July 2021 the Court struck the case of Wyszkowski v. Poland ((dec.) [Committee], no.   34282/12) out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. It noted that the Government, in their declaration, had acknowledged a violation of Article 10 of the Convention regarding the interference with Mr Wyszkowski’s freedom of expression and offered to pay him PLN 20,000, which would constitute the final resolution of the case. Since none of the parties had informed the Court of the extraordinary appeal lodged by the Prosecutor General on Mr Wyszkowski’s behalf (the appeal had been lodged around one year before submission of the unilateral declaration by the Government – see paragraph 28 above) or of the judgment given by the CERPA on 21   April 2021, those developments were not referred to in the Court’s strike-out decision. AFTER THE COURT’S STRIKE-OUT DECISION IN WYSZKOWSKI 47.     On 16 September 2021 the Supreme Court published a press release entitled “European Court of Human Rights confirms the ruling of the Supreme Court”, which stated: “[T]he European Court of Human Rights in Strasbourg, in its recently published decision of 1 July 2021, found a violation of Article 10 of the [Convention] on account of the interference with the freedom of expression and ordered payment of compensation to the applicant.” The press release