CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 novembre 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA99DAF77 { margin-top:0pt; margin-left:3pt; margin-bottom:0pt; text-indent:11.2pt; text-align:justify } Published on 6 December 2021   FIRST SECTION Application no. 3685/20 Andrzej Jacek STERKOWICZ against Poland lodged on 24 December 2019 communicated on 17 November 2021 STATEMENT OF FACTS 1.     The applicant, Mr Andrzej Jacek Sterkowicz, is a Polish national, who was born in 1965 and lives in Tarnów. He is represented before the Court by Ms   K. Gajowniczek-Pruszyńska, a lawyer practising in Warsaw. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     In 1994 the applicant was appointed as a judge of the Tarnów District Court and in 2011 as a judge of the Warsaw Regional Court. He adjudicates in civil cases. 4.     At some point in time, the applicant began adjudicating cases involving the weekly “Gazeta Polska” and D.K., a journalist of the weekly. According to the applicant, that weekly is regarded as close to the current government in Poland. On an unspecified date, the applicant gave judgment ordering D.K. to publish an apology and pay damages to a person whose personal rights she had violated in an article published in the weekly. Soon after that judgment, “Gazeta Polska” started publishing articles defaming the applicant and his father. The applicant’s father passed away shortly afterwards. The applicant adjudicated in a few other cases involving the same weekly. Later, he decided to recuse himself from adjudicating in those cases. On an unspecified date, “Gazeta Polska” published an article by D.K. describing details of the applicant’s divorce and the conflict with his former wife over child custody. The applicant submits that after that article had been published, a number of the prosecutor’s offices in the country, including the Department of Internal Affairs of the State Prosecutor’s Office, investigated his relationship with his former wife. 5.     On an unspecified date in 2017, prosecutor T.K. of the Internal Affairs Department of the State Prosecutor’s Office opened an investigation into the alleged trespassing by the applicant of the property of his former mother-in-law on 18 March 2017. He joined to that investigation the case of an alleged insult of two police officers by the applicant on 5 June 2015. The alleged offences were connected to the conflict between the applicant and his former wife over the contact with their son. 6.     On 13 February 2018, the prosecutor of the Internal Affairs Department of the State Prosecutor’s Office applied to the Cracow Court of Appeal to have the applicant’s judicial immunity lifted with a view to charging him with commission of two criminal offences, namely insulting two police officers on 5 June 2015 (Article 226 § 1 of the CC) as well as trespassing the property of his former mother-in-law and threatening her (Article 193 in conjunction with Article 190 § 1 of the CC). He argued that the evidence obtained in the course of the investigation had justified the suspicion that the applicant had committed the impugned offences. 7.     On 16 November 2018, the Cracow Court of Appeal, sitting as a disciplinary court, adopted a resolution dismissing the prosecutor’s application. It found that there was no reasonable suspicion that the applicant had committed the acts imputed to him or that they were of insignificant social danger. The prosecutor lodged an interlocutory appeal with the Disciplinary Chamber of the Supreme Court. 8.     According to the applicant, the composition of the Disciplinary Chamber in his case had been changed a few times. On 19 February 2019 the President of the Disciplinary Chamber assigned the composition of the bench to hear the applicant’s case. On 18 March 2019 the order of 19   February 2019 was changed without providing a legal basis for that change. On 4 April 2019 the order of 18 March 2019 was revoked. 9.     On 17 June 2019 the applicant unsuccessfully requested the Disciplinary Chamber to adjourn the proceedings pending the examination by the Court of Justice of the EU of the referral for preliminary ruling in case C-585/18. 10.     On 25 June 2019 the Disciplinary Chamber, sitting in a bench composed of two members of that chamber (J.W. and P.S.N) and one lay judge (M.W.), allowed the interlocutory appeal and amended the resolution of 16 November 2018. It decided to lift the applicant’s immunity with regard to the offences imputed to the applicant. As a result, it became possible to press criminal charges against him. Relevant legal framework 11.     The relevant legal framework was set out in the recently communicated case of Tuleya v.   Poland (no. 2) , no. 51751/20. COMPLAINTS 12.     The applicant complains under Article 6 § 1 of the Convention that the decision to lift his immunity was taken by the Disciplinary Chamber, a body that did not satisfy the requirements of “an independent and impartial tribunal established by law”. As regards the requirement of a “tribunal established by law”, the applicant complains that the judges of the DC had been appointed by the President of the Republic on the recommendation of the new NCJ, which, in turn, had been established contrary to the Constitution and lacked independence. The applicant relies on the CJEU’s preliminary ruling of 19 November 2019, joined cases A.K.   and Others nos. C-585/18, C ‑ 624/18 and C-625/18 and the Supreme Court’s judgment of 5 December 2019, no. III PO 7/18. 13.     The applicant further complains that judges of the DC lacked independence and impartiality as a result of the politicised appointment process. He refers to links between the prosecutor, answerable to the Minister of Justice-Prosecutor General, who lodged the interlocutory appeal in his case and judges of the DC. The applicant further alleges that the DC did not independently examine the case, but simply followed the views expressed in the interlocutory appeal lodged by the prosecutor. He also complains about the unexplained changes in the composition of the Disciplinary Chamber that heard his case. 14.     Under Article 8 the applicant complains that the decision to lift his immunity constituted an unjustified interference with his private and family life and was part of a harassment campaign against him. He alleges that the Internal Affairs Department of the State Prosecutor’s Office took interest in his conflict with the former wife after he had given unfavourable rulings in cases involving the weekly “Gazeta Polska”. 15.     Lastly, the applicant complains about the excessive length of proceedings in his case and the lack of effective domestic remedy to complain about their length. QUESTIONS TO THE PARTIES Article 6 § 1   1.     Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case in so far as the lifting of the applicant’s immunity was concerned? 2.     Did the proceedings before the Disciplinary Chamber violate the applicant’s right to be heard by a tribunal established by law guaranteed by Article 6 § 1 of the Convention (see Guðmundur Andri Ástráðsson v.   Iceland [GC], no. 26374/18, 1 December 2020)? 3.     Was the Disciplinary Chamber which dealt with the applicant’s case “an independent and impartial tribunal”, as required by Article 6 § 1 of the Convention? 4.     Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   Article 8   1.     Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention on account of the Disciplinary Chamber of the Supreme Court’s decision of 25   June 2019 (see Denisov v. Ukraine ([GC], no.   76639/11, 25   September 2018). 2.     If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?   Article 13   Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1 concerning the unreasonable length of the proceedings, as required by Article   13 of the Convention?