CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 avril 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 } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } Published on 2 May 2022   FIRST SECTION Application no. 18380/22 Maciej RUTKIEWICZ against Poland lodged on 13 April 2022 communicated on 19 April 2022 SUBJECT MATTER OF THE CASE The applicant is a judge of the Elbląg District Court. On 8 November 2021 the applicant, sitting in a single- judge formation of the Elbląg District Court discontinued criminal proceedings against a prosecutor, relying on the fact that her immunity had been lifted by the Disciplinary Chamber of the Supreme Court (“DCSC”) which did not constitute a “tribunal established by law” and applying the EU law, the CJEU’s rulings relating to the issue of independence and impartiality of the Disciplinary Chamber and the resolution of 23 January 2020 issued by the joined Chambers of the Supreme Court holding that the Disciplinary Chamber had not fulfilled the requirements of an “independent and impartial tribunal established by law”. The applicant found that the DCSC was not an independent tribunal established by law and that, as a result, it could not effectively and lawfully lift the prosecutor’s immunity. On 9 November 2021 the President of the Elbląg District Court ordered an immediate break in the applicant’s judicial functions for one month, relying on section 130 §§ 1 and 2 of the Act of 27 July 2001 on the Organisation of Ordinary Courts ( Ustawa z dnia 27 lipca 2001 – Prawo o ustroju sądów powszechnych; “the 2001 Act”). On 2 December 2021 the deputy disciplinary representative for the judges of the ordinary courts charged the applicant with one count of disciplinary offence defined in section 107(1) subsections (3)(5) of the 2001 Act (contesting validity of judicial appointment and infringement of the dignity of the office) and a criminal offence of abuse of power (Article 231 § 1 of the Criminal Code). The first in camera session was scheduled before the DCSC in the applicant’s case for 9 December 2021. The applicant submits that he was not informed of the date of the session and learned about it only by chance; information of the session held at 10.00 a.m. became available at 8.24 a.m. via the Supreme Court’s internal information system. Following one of the applicant’s defence lawyer’s intervention, the session was rescheduled for 15   December 2021. On 15 December 2021 the DCSC, sitting in camera at first instance, gave resolution no. I DO 16/21 suspending the applicant in his judicial functions for the duration of the disciplinary proceedings and reduced his salary by 40%. The DCSC’s resolution was immediately enforceable and enforced. The applicant and his defence lawyers appealed against the resolution. The case was scheduled before the DCSC sitting as the court of the second instance for 20 April 2022; the appeal was to be examined at in camera session. The applicant complains that the proceedings before the DCSC, a body that does not satisfy the requirements of an “independent and impartial tribunal established by law” under Article 6 § 1 of the Convention, were in breach of that provision. He maintains that he was suspended in his judicial functions by the DCSC which, in Reczkowicz v. Poland , has already been found by the Court as lacking the attributes of a “lawful court”. He claims that the criminal charge against him is baseless and relating solely to his judicial and public activity. He also complains under Article 8 of the Convention that his arbitrary suspension has negatively affected his professional reputation and, in consequence, amounted to a breach of the right to respect for his private life. Referring to the Disciplinary Chamber’s continued operation despite rulings of the European courts and the reasons behind his suspension, the applicant also alleges that the impugned resolution suspending him in judicial functions issued by that body also amounted to a breach of Articles 13 and   18 of the Convention. QUESTIONS TO THE PARTIES 1.     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 applicant’s suspension in judicial functions 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.     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)? 3.     Was the Disciplinary Chamber of the Supreme Court 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)? 4.     Was the applicant’s right to a “fair trial” respected in the proceedings before the Disciplinary Chamber of the Supreme Court? Reference is made to the fact that the applicant, who lives some 300 km away from Warsaw, had not been informed of the date of the in camera session set for 9 December 2021 and learnt of it only by chance, and that the information about the session scheduled for 10.00 a.m. was made available in the Supreme Court’s internal information system on the same day only at 8.24 a.m.   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, resulting from the resolution of the Disciplinary Chamber of the Supreme Court of 15 December 2021, determining that the applicant committed a disciplinary offence for the reasons invoked in that resolution and reducing his salary (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 of the Supreme Court lacks the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1 (see Reczkowicz, §§ 225-282)?   Article 18   Were the measures imposed by the State in the present case, purportedly pursuant to Articles 6 § 1 and 8 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)?