CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 décembre 2024

.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 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .sADF64B3C { margin-top:14pt; margin-left:14.75pt; margin-bottom:3pt; text-align:justify; page-break-after:avoid; font-family:Arial } .s7A64F404 { text-decoration:underline } .s64CC2915 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:2.99pt; font-family:Arial } Published on 23 December 2024   FIRST SECTION Application no. 33082/22 Piotr RACZKOWSKI against Poland lodged on 7 July 2022 communicated on 6 December 2024 SUBJECT MATTER OF THE CASE The application concerns the applicant’s right of access to a tribunal established by law in a case concerning the lifting of his judicial immunity. Applicant’s background The applicant is an experienced military judge. He was elected to the National Council of the Judiciary (“NCJ”) for two terms, in 2010 and 2014 (that is the term ex lege terminated in 2017, for details see Grzęda v.   Poland [GC], no. 43572/18, 15 March 2022). He was also elected the Vice-President of the NCJ in 2014. Proceedings before the Disciplinary Chamber of the Supreme Court The applicant submits that in 2019 criminal proceedings have been launched into various aspects of his professional activity. In so far as relevant, one of the allegations was the abuse of powers by allegedly unlawful declassification of the case file of one set of criminal proceedings in 2016. On 17 March 2021 the State Prosecution Service requested the Disciplinary Chamber of the Supreme Court (DCSC) to lift the applicant’s judicial immunity in order to allow for his criminal prosecution for abuse of powers. An in camera session was scheduled in the case by the DCSC for 11 July 2022. Interim measure indicated by the Court On 7 July 2022 the applicant lodged a request under Rule 39 of the Rules of Court in connection with the proceedings before the DCSC. On 8 July 2022 the Court (the President of the Chamber to which the case has been allocated) decided to indicate to the Government, under Rule 39, that, in the interests of the parties and the proper conduct of the proceedings before the Court, the Respondent State ensure that the proceedings concerning the lifting of the applicant’s judicial immunity, which were then pending before the DCSC, comply with the requirements of “fair trial” as guaranteed by Article 6 § 1 of the Convention, in particular the requirements of an “independent and impartial tribunal established by law” (see Reczkowicz v. Poland , no. 43447/19, 22 July 2021, §§ 225-284) and that no decision in respect of the applicant’s immunity is taken by the DCSC until the final determination of the applicant’s complaints by the Court. The session scheduled by the DCSC for 11 July 2022 was cancelled on that day. Abolition of the DCSC and the transfer of the applicant’s case Following the abolition of the DCSC in 2022 the applicant’s case was transmitted to the newly created Chamber of Professional Liability (“the CPL”). The CPL was composed of judges appointed to the Supreme Court both before 6 March 2018 and after that date on the recommendation of the NCJ as established under the Amending Act on the NCJ and certain other statutes of 8 December 2017 (“the recomposed NCJ”, see Tuleya v.   Poland , nos. 21181/19 and 51751/20, §§ 181-185, 6 July 2023). On 13 September 2022, the single judge W. Kozielewicz (appointed to the Supreme Court in 1999) of the CPL issued a 1 st instance resolution refusing to lift the applicant’s immunity. The prosecutor appealed but the CPL, sitting in a three-judge panel at 2 nd instance, on 6 December 2022 gave a final and binding ruling in which it upheld the impugned resolution. The panel was composed of judges M.   Motuk, M. Dobrowolski and M. Siwek (all appointed after 6 March 2018, on the recommendation of the recomposed NCJ). The appli cant’s request to exclude the three members of the 2 nd instance panel from hearing the case, lodged on 29 November 2022, was dismissed on 14   March 2023. The interim measure, previously indicated on 8   July 2022, was later lifted by the Court (the President of the Section) on 7 October 2024. Complaints The applicant complains, under Article 6 § 1 of the Convention, that the request for lifting his immunity was submitted to be examined by bodies that did not satisfy the requirements of an “independent and impartial tribunal established by law”, first the DCSC and later the CPL of the Supreme Court. In particular, as regards the CPL, the applicant submits that: (1) it includes judges appointed to the Supreme Court in manifest breach of the law as established in the Court’s judgments in Reczkowicz , Dolińska-Ficek and Ozimek and Advance Pharma sp. z o.o .; (2) its composition was determined in a discretionary manner by the executive (the President of the Republic with the countersignature of the Prime Minister, see Tuleya , cited above, § 185), which lacked competence to appoint judges to hear a specific category of cases. The applicant also complains, under Article 8 of the Convention, that the impugned proceedings adversely affected his professional reputation and, in consequence, amounted to a breach of the right to respect for his private life. He submits that the mere initiation of proceedings for lifting his judicial immunity negatively impacted his reputation and that the ensuing necessity to prove his innocence before bodies not constituting an “independent and impartial tribunal established by law” further exacerbated this effect. Finally, the applicant alleges that the CPL of the Supreme Court ruled on the merits of his case despite the binding interim measure indicated by the Court. QUESTIONS TO THE PARTIES Victim status:   Can the applicant claim to currently be a victim of a violation of his Convention rights in view of the fact that the request to lift his immunity was ultimately refused? Article 6 § 1   (a)     Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings for lifting of the applicant’s immunity? (b)     Can the applicant’s case be considered to have been “heard” by the Disciplinary Chamber of the Supreme Court? If so, have the proceedings before that body violated the applicant’s right to be heard by an independent and 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)? (c)     Have the proceedings before the Chamber of Professional Liability of the Supreme Court violated the applicant’s right to be heard by an independent and tribunal established by law as guaranteed by Article 6 § 1 of the Convention? Reference is made to: (i)     the composition of the Chamber of Professional Liability of the Supreme Court in general, and its composition in the applicant’s case; (ii)     the method of appointment of judges to that Chamber and the President’s involvement in that process. Article 8   (a)     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 prosecutor’s request for the lifting of the applicant’s immunity and the ensuing proceedings before the Disciplinary Chamber and the Chamber of Professional Liability of the Supreme Court? (b)     If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention? Article 34   Has there been any hindrance by the respondent State in the present case with the effective exercise of the applicant’s right of application, ensured by Article 34 of the Convention? Reference is made to the examination of the applicant’s case on the merits by the Chamber of Professional Liability of the Supreme Court after the Court’s decision on interim measures of 8 July 2022.