CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 septembre 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 } .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 17 October 2022   FIRST SECTION Application no. 18001/22 Andrzej STĘPKA against Poland lodged on 1 April 2022 communicated on 30 September 2022 SUBJECT MATTER OF THE CASE The applicant is a judge at the Criminal Chamber of the Supreme Court. On 16 March 2021 the prosecutor applied to the Disciplinary Chamber of the Supreme Court, asking that the applicant’s immunity be lifted with a view to charging him with unintentional criminal negligence (Article 231 § 3 of the Criminal Code). The prosecutor submitted that the applicant had been the president of 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 the Rules of the Supreme Court 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 for about a month. According to the applicant, the criminal charge against him is baseless and relating to his judicial activity. The Disciplinary Chamber has not yet ruled on the application for lifting the applicant’s immunity. Several hearings were fixed (last of them on 22 April 2022), but subsequently cancelled. The case is pending before the Disciplinary Chamber. On 14 April 2022 the Court (the President of the Chamber to which the case has been allocated) 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 v. Poland , no. 43447/19, §§ 225-284, 22 July 2021), and that no immediately enforceable decision in respect of the applicant’s immunity is taken by the Disciplinary Chamber until the final determination of the applicant’s complaints by the Court. The applicant complains under Article 6 § 1 that the proceedings concerning the lifting of his immunity are conducted before the Disciplinary Chamber, a body that does not satisfy the requirements of an “independent and impartial tribunal established by law”. He refers, among others, to Reczkowicz . The applicant contends that judges of the Disciplinary Chamber are supporters of the ruling majority or persons connected with the executive, as for example former prosecutors. The applicant also complains under Article 8 that the application to lift his immunity, based on the allegation that he had committed an offence, constituted a form of harassment and amounted to an interference with the right to respect for his private life. 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 is concerned?   2.     Have the proceedings before the Disciplinary Chamber of the Supreme Court violated the applicant’s right to be heard by an independent and impartial tribunal established by law as guaranteed by Article   6 §   1 of the Convention (see Reczkowicz v. Poland , no. 43447/19, §§ 225-284, 22 July 2021)?   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 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 (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)?