CEDH · CASELAW;CLIN;ENG — 31 mars 2022

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Poland (communicated case) - 6904/22   Article 6 Civil proceedings Criminal proceedings Article 6-1 Impartial tribunal Independent tribunal Tribunal established by law Alleged lack of independence and impartiality of newly established Supreme Court’s Disciplinary Chamber deciding the lifting of a judge’s immunity from criminal prosecution: communicated Article 8 Article 8-1 Respect for private life Investigation into judge’s alleged negligence in the exercise of his judicial functions and proceedings concerning the lifting of his immunity from criminal prosecution: communicated Article 10 Article 10-1 Freedom of expression Proceedings to lift judge’s immunity from criminal prosecution in relation to his exercise of judicial functions and public criticism of the recent judicial reform: communicated Article 18 Restrictions for unauthorised purposes Proceedings to lift judge’s immunity from criminal prosecution allegedly made for ulterior purposes: communicated The applicant is a judge at the Criminal Chamber of the Supreme Court of Poland since 2011. He is also a well-known academic involved in promoting the rule of law in Poland and in civic education. In 2020 he was co-rapporteur in a resolution delivered by the joined Civil, Criminal, Labour and Social Security Chambers of the Polish Supreme Court, which held, among other things, that the National Council of the Judiciary lacked independence and that the Disciplinary Chamber of the Supreme Court was not an “independent tribunal established by law”. On 16 March 2021 the State Prosecutor’s Office sought to lift his immunity with a view to charging him with unintentional criminal negligence in relation to a judgment of the Criminal Chamber of the Supreme Court given by a bench of three judges, including the applicant. The panel had quashed the contested judgment and remitted the case. According to the State Prosecutor, the applicant had failed to fulfil an obligation to verify whether the accused had already been serving his prison sentence – which had resulted in his being unlawfully detained. On 31 May 2021 the Disciplinary Chamber of the Supreme Court, sitting as a court of first instance, 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” and found to have “unintentionally failed to fulfil his duties”. The State Prosecutor’s Office appealed against that resolution and the applicant against its reasoning. On 8 February 2022 the Court granted the applicant’s request for an interim measure under Rule 39 of the Rules of Court indicating to the respondent State to ensure that the proceedings concerning the lifting of his judicial immunity complied with the requirements of “fair trial” as guaranteed by Article 6 § 1, in particular the requirements of an “independent and impartial tribunal established by law” ( Reczkowicz v. Poland ), and that no decision in respect of his immunity be taken by the Disciplinary Chamber until the final determination of his complaints by the Court. On the same day that Chamber cancelled the appellate hearing in the applicant’s case planned for 9 February 2022. Relying on Article 6 § 1 and, in this connection, inter alia , on the Court’s judgment in Reczkowicz v. Poland, the applicant complains that the Disciplinary Chamber which examined the application to lift his judicial immunity did not satisfy the requirements of “an independent and impartial tribunal established by law”. He also complains under Article 8 that the initiation of proceedings to lift his immunity, based on the alleged failure to fulfil his judicial duties, adversely affected his professional reputation and was aimed at creating a “chilling effect” on him and other judges who defend the rule of law in Poland. Further, he alleges that these proceedings are in breach of Article 10 as they were 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. This interference with his rights did not pursue a legitimate aim and was not necessary in a democratic society. Lastly, relying on Article 18 in conjunction with Articles 8 and 10, the applicant maintained that the initiation of the proceedings for lifting his immunity constituted a covert form of harassment and was aimed at limiting judicial independence in Poland. Communicated under Articles 6 § 1 (civil and criminal limb), 8, 10 and 18 of the Convention. (See also Reczkowicz v. Poland , 43447/19, 22 July 2021, Legal Summary ; Advance Pharma sp. z o.o v. Poland , 1469/20, 3 February 2022, Legal Summary ; Grzęda v. Poland [GC], 43572/18, 15 March 2022, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes