CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 mars 2022

.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 } .s715E7C6D { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .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 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } Published on 19 April 2022   FIRST SECTION Application no. 6904/22 Włodzimierz WRÓBEL against Poland lodged on 4 February 2022 communicated on 31 March 2022 STATEMENT OF FACTS 1.     The applicant, Mr Włodzimierz Wróbel, is a Polish national who was born in 1963 and lives in Cracow. He is represented before the Court by Ms   S.   Gregorczyk-Abram and Ms A. Helsztyńska, lawyers practising in Warsaw. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. Background to the present case 3.     The applicant is a judge at the Criminal Chamber of the Supreme Court of Poland and Chair of the Criminal Law Department at Jagiellonian University in Cracow. He was appointed to the Supreme Court in 2011. 4.     Since late 2015 the Polish Government has been carrying out a general reorganisation of the Polish judicial system (for a summary of the relevant facts see Advance Pharma sp. z o.o. v. Poland , no. 1469/20, §§ 4-78 and   98 ‑ 169, 3   February 2022 and Grzęda v. Poland , no. 43572/18, §§ 14-28, 15   March 2022). 5.     The applicant was a co-rapporteur of the Supreme Court’s resolution of 23   January 2020 (no. BSA I-4110-1/20) adopted in a formation of the joined Civil, Criminal and Labour and Social Security Chambers of that court, finding, inter alia , that the National Council of the Judiciary (NCJ) had lacked independence and that the Disciplinary Chamber of the Supreme Court did not meet the requirements of an “independent and impartial tribunal established by law” (see Reczkowicz v. Poland , no. 43447/19, §§ 89-105). The resolution constituted a measure of implementation of the judgment of the Court of Justice of the European Union (CJEU) in the case of A.K.   and   Others (C-585/18, C-624/18 and C-625/18, ibid , §§ 162 – 164). 6.     In May 2020 the Assembly ( Zgromadzenie Ogólne ) of the Supreme Court nominated the applicant as one of five candidates for the position of First President of the Supreme Court. He received fifty out of ninety-five votes: the most of any candidate. However, the President of the Republic appointed another judge to that position, who had received twenty-five votes at the Assembly. 7.     The applicant – a well-known judge and academic – has been involved in promoting the rule of law in Poland and in civic education. In 2019 he published an article entitled “The Disciplinary Chamber as a special tribunal within the meaning of Article 175 § 2 of the Constitution of the Republic of Poland”, in which he argued that the regulation concerning the Disciplinary Chamber was unconstitutional. Proceedings before the Disciplinary Chamber of the Supreme Court 8.     On 9 December 2020 the Internal Affairs Department of the State Prosecutor’s Office instituted an investigation into the alleged negligence of three Supreme Court judges, including the applicant in giving a judgment of 16   October 2019 (case no. no. III KK 399/18). 9.     On 16 March 2021 the prosecutor seconded to the Internal Affairs Department of the State Prosecutor’s Office applied to the Disciplinary Chamber of the Supreme Court, asking that the applicant’s immunity be lifted with a view to charging him with a criminal offence, namely unintentional criminal negligence (Article 231 § 3 of the Criminal Code). The prosecutor submitted that the applicant had been a member and the rapporteur in a three ‑ judge panel of the Supreme Court which, in a judgment of 16 October 2019, quashed a judgment given by a second ‑ instance court convicting a certain P.F. and remitted the case to that court (no. III KK 399/18). According to the prosecutor, the applicant had failed to fulfil an obligation stemming from Rule 96 § 1 of the Rules of the Supreme Court ( Regulamin Sądu Najwyższego ) to verify whether P.F. had been serving a prison sentence at the time of the Supreme Court’s judgment. As a result of the applicant’s alleged negligence P.F. had been – according to the prosecutor – unlawfully remanded in prison between 16   October and 18 November 2019. 10.     P.F.’s cassation appeal, along with the case file, was lodged with the Supreme Court on 11 July 2018. P.F.’s home address was indicated as his current residence and neither P.F., nor his lawyer, nor the prosecutor informed the Supreme Court that he was serving a prison sentence. The hearing took place on 16 October 2019. With the consent of the parties present (a prosecutor and auxiliary prosecutor’s lawyer), the applicant refrained from giving an oral summary of the case. On the same day, the Supreme Court quashed a second-instance court’s judgment and remitted the case. 11.     On 18 November 2019 a prison guard from the prison where P.F. had been serving his sentence informed the Registry of the Supreme Court that P.F. had remained in prison, despite his conviction having been quashed. On the same day a copy of the judgment of 16 October 2019 was sent to that prison and P.F. was released. He was later finally sentenced to 1 year and   6   months’ imprisonment with the entire period of his prior detention (including the period between 16 October 2019 and 18 November 2019) having been counted towards his penalty. 12.     According to a joint statement of the First President of the Supreme Court and the President of the Criminal Chamber of that court issued on 17   March 2021, the failure to release P.F. in a timely manner was a consequence of the negligence of two employees of the Supreme Court’s Registry, for which they had received a reprimand ( nagana ). The statement indicated that judges sitting on panels of the Supreme Court ordinarily did not conduct checks on whether defendants were imprisoned, nor did they supervise the implementation of procedural orders, which was the task of members of the Registry. 13.     On 19 March 2021 the First President of the Supreme Court published another statement in which she explained that steps had been taken in order to limit the possibility of similar errors in the future. She emphasised that all public officers – both judges and employees of the registry – were under an obligation to ensure that fundamental rights and freedoms (such as the right to liberty) were respected. 14.     The first hearing in the applicant’s case before the Disciplinary Chamber was scheduled for 6 May 2021. On 30 April 2021 the applicant’s lawyers requested that it be adjourned until the CJEU decided on the European Commission’s request for indication of interim measures of 31   March 2021 (case no. C-204/21 R, Commission v. Poland ). 15.     On 6 May 2021 the Disciplinary Chamber dismissed that request. One of the applicant’s lawyers requested the Disciplinary Chamber to adjourn the hearing due to the fact that the lawyers had not been granted sufficient access to the case file. She also read a statement written by the applicant, questioning the legitimacy of the Disciplinary Chamber and requesting that the prosecutor’s request be transferred to a competent court – the Criminal Chamber of the Supreme Court. All of the above requests were refused by the Disciplinary Chamber. 16.     On 12 May 2021 the Disciplinary Chamber refused the applicant’s request to have judge A.T. excluded from a three-judge panel that was to hear his case. The applicant relied, inter alia , on the fact that judge A.T. had previously publicly expressed his sympathy for the ruling party. The   Disciplinary Chamber held that the circumstances relied on by the applicant had not concerned him or the subject matter of his case. 17.     On 31 May 2021 a second hearing in the applicant’s case took place. Seven non-governmental organisations and the Polish Bar Council ( Naczelna Rada Adwokacka ) requested leave to intervene in the proceedings. Their requests were refused by the Disciplinary Chamber. The applicant also requested, pursuant to Article 361 § 1 of the Code of Criminal Proceedings, that the Dean of the Warsaw Regional Bar be allowed to observe the proceedings, which were conducted in camera. 18.     On the same day, during a recess, the Minister of Justice (who is also the Prosecutor General) held a press conference. Referring to the applicant’s pending case, he contested the fairness of a situation in which a regular employee was blamed for the negligence of an influential Supreme Court judge. He stated that the law should be equally applicable to everyone, including members of the elite. 19.     Following that press conference the applicant’s lawyers requested the exclusion of all members of the panel of the Disciplinary Chamber who were to decide whether or not to lift the applicant’s immunity. They argued that the Minister of Justice wanted the applicant to face criminal charges, thus expecting the members of the panel of the Disciplinary Chamber to lift his immunity. 20.     On 31 May 2021 the Disciplinary Chamber refused to lift the applicant’s immunity. It held that the applicant had shown negligence, which could have been investigated in regular disciplinary proceedings. The delivery of the resolution and oral presentation of its reasons were broadcast by Polish media outlets. The applicant was described as a “perpetrator” ( sprawca ) and found to have “unintentionally failed to fulfil his duties”. 21.     The State Prosecutor’s Office lodged an appeal against that resolution on 6 July 2021. The applicant’s lawyers appealed against the reasoning of that resolution on 21 July 2021. 22.     On 22 July 2021 the Court delivered a judgment in the case of Reczkowicz (cited above). It held, inter alia , that the irregularities in the appointment process compromised the legitimacy of the Disciplinary Chamber to the extent that, following an inherently deficient procedure for judicial appointments, it did lack and continued to lack the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1 ( ibid ., § 280). That judgment became final on 22 November 2021. 23.     The Disciplinary Chamber scheduled an appellate hearing in the applicant’s case for 9 February 2022. 24.     On 4 February 2022 the applicant applied for an interim measure pursuant to Rule 39 of the Rules of Court, requesting the Court to suspend all actions (procedural and administrative) of the Disciplinary Chamber of the Supreme Court against him until the Government fully implemented the order of the CJEU of 14 July 2021 (case no. C-204/21 R) and the judgment of that court of 15 July 2021 (case no. C-791/19), or to appoint a panel of Supreme Court judges as recommended by the NCJ operating before 6 March 2018 to hear the applicant’s case. 25.     On 8 February 2022 the Court (Chamber of the First Section) decided to apply Rule 39 of the Rules of Court, indicating to the Government that, in the interests of the parties and the proper conduct of the proceedings before the Court, the respondent State should ensure that the proceedings concerning the lifting of the applicant’s judicial immunity, which are currently pending before the Disciplinary Chamber of the Supreme Court, complied with the requirements of a “fair trial” as guaranteed by Article 6 § 1 of the Convention, in particular the requirement of an “independent and impartial tribunal established by law” (see Reczkowicz , cited above, §§ 225-284), and that no decision in respect of the applicant’s immunity be taken by the Disciplinary Chamber until the final determination of the applicant’s complaints by the Court. 26.     On the same day the Disciplinary Chamber cancelled the hearing in the applicant’s case planned for 9 February 2022 referring to “formal grounds”. RELEVANT LEGAL FRAMEWORK AND PRACTICE 27.     The relevant legal framework was set out in the communicated case of Tuleya v. Poland (no. 2) , no. 51751/20. 28.     Further developments concerning the jurisprudence of the CJEU, in so far as relevant, were summarised in Advance Pharma sp. z o.o. v. Poland , no. 1469/20, §§ 207-222, 3 February 2022. 29.     Article 231 of the Criminal Code, in so far as relevant, provides as follows: “§ 1. A public official who, exceeding his authority, or not fulfilling his duty, acts to the detriment of a public or individual interest shall be subject to a penalty of deprivation of liberty for up to 3 years. ... § 3. If the perpetrator of the act specified in § 1 acts unintentionally and causes significant damage, he or she shall be subject to a fine, the penalty of limitation of liberty, or deprivation of liberty for up to 2 years.” 30.     Section 129 (1) and (2) of the Act of 27 July 2001 on the Organisation of the Ordinary Courts provides: “1. A disciplinary court may suspend a judge against whom disciplinary or incapacitation proceedings were initiated, and if it delivers a resolution permitting a judge to be held criminally liable. 2. If the disciplinary court passes a resolution permitting a judge to be held criminally liable for an intentional offence prosecuted by public prosecution, it shall suspend the judge from his duties.” 31.     Article 75 of the Code of Criminal Procedure, in so far as relevant, reads: “§ 1. The accused shall notify the authority conducting the proceedings of any change of his place of residence or stay lasting longer than seven days, also including due to his imprisonment in another case, as well as of any change of contact data indicated in Article 213 § 1, which he knows to be known to the authority conducting the proceedings. The accused shall also be obliged to appear at every summons during the criminal proceedings. The accused must be warned of these obligations at the first hearing.” 32.     Rule 96 § 1 of the Rules of the Supreme Court provides: “After the hearing or session has been opened, attendance checked and the rapporteur’s report made, the President shall give the floor to the persons entitled to take part in the hearing or session, in the order laid down by him.” COMPLAINTS 33.     The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning the lifting of his immunity were conducted before the Disciplinary Chamber, a body that does not satisfy the requirements of “an independent and impartial tribunal established by law” and whose shortcomings could not be remedied by the same Disciplinary Chamber, sitting as the second-instance court. He relies, inter alia , on the Court’s judgment in Reczkowicz (cited above). The applicant asserts that Article 6 §   1 under its civil head was applicable to the proceedings before the Disciplinary Chamber. 34.     Under Article 8 of the Convention the applicant complains that the application to lift his immunity, based on the alleged failure to fulfil his judicial duties, adversely affected his professional reputation and, in consequence, amounted to a breach of the right to respect for his private life. He further refers to the reasons for the decision of the Disciplinary Chamber. He relies on the Court’s judgment in Denisov v. Ukraine [GC]. The applicant submits that the true motive behind the prosecutor’s application was to create a “chilling effect” on him and other judges who defend the rule of law in Poland. The applicant claims that the interference with his rights under Article 8 did not pursue a legitimate aim and was not necessary in a democratic society, also on account of the lack of procedural safeguards in the proceedings before the Disciplinary Chamber. 35.     He further alleges a breach of Article 10 of the Convention, referring to the case of Baka v. Hungary . In his view, the initiation of proceedings to lift his immunity was closely related to his public statements, made in his capacity both as a judge and as a university professor, in which he criticised the so-called reform of the judiciary pursued by the authorities. The applicant submits that the interference with his rights under Article 10 did not pursue a legitimate aim and was not necessary in a democratic society. 36.     Lastly, relying on Article 18 in conjunction with Articles 8 and 10 of the Convention, the applicant maintains that the initiation of proceedings for lifting his immunity did not further any legitimate interests, but constituted a covert form of harassment and was aimed at limiting judicial independence in Poland. He relies on the Court’s judgment in Miroslava Todorova v.   Bulgaria . QUESTIONS TO THE PARTIES Articles 6 § 1   1.     Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case in so far as the applicant’s suspension from judicial duties is concerned (see Baka v. Hungary [GC], no. 20261/12, §§   104-105, 23 June 2016 and Paluda v. Slovakia , no. 33392/12, §§ 33-34, 23   May 2017; and Camelia Bogdan v. Romania , no. 36889/18, §   70, 20   October 2020)? 2.     Was Article   6 §   1 of the Convention under its criminal head applicable to the proceedings in the present case in so far as the lifting of the applicant’s immunity is concerned? 3.     Did the proceedings before the Disciplinary Chamber of the Supreme Court violate the applicant’s right to be heard by a tribunal established by law as guaranteed by Article   6 §   1 of the Convention (see Reczkowicz v. Poland , no. 43447/19, §§ 225- 282, 22 July 2021)? 4.     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 (see Reczkowicz , §§ 283-284)? Reference is made, inter alia , to the applicant’s view that the regulation concerning the Disciplinary Chamber was unconstitutional and to his unsuccessful request for the recusal of Judge   A.T.   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: (a)     the investigation into the alleged negligence and the subsequent prosecutor’s application for the lifting of the applicant’s immunity in relation to the exercise of his judicial functions? (b)     the Disciplinary Chamber of the Supreme Court’s determining that the applicant had committed a disciplinary offence in the reasons for its resolution of 31 May 2021 (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? In particular, was the impugned interference “in accordance with the law”, having regard to the fact that the Disciplinary Chamber lacks the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1 (see Reczkowicz, §§ 225-282)?   Article 10   1.     Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention? Reference is made to the prosecutor’s application for the lifting of the applicant’s immunity in order to prosecute him in relation to the exercise of his judicial functions and his public statements concerning the promoting of the rule of law and the reorganisation of the Polish judicial system. If so, was that interference prescribed by law and necessary in terms of Article 10 § 2? In particular, was the impugned interference “in accordance with the law”, having regard to the fact that the Disciplinary Chamber lacks the attributes of a “tribunal” which is “lawful” for the purposes of Article   6 §   1 (see Reczkowicz, cited above, §§ 225-282)? Which legitimate aims did that interference pursue?   Article 18   1.     Were the measures imposed by the State in the present case, purportedly pursuant to Articles 8 and 10 of the Convention, applied for a purpose other than those envisaged by these provisions, contrary to Article   18 of the Convention (see, mutatis mutandis , Navalnyy v. Russia [GC], nos.   29580/12 and 4 others, §§ 163 - 174, 15 November 2018)?