BRAZEWICZ v. POLAND

Published on 27 March 2023

 

FIRST SECTION

Application no. 46788/21
Włodzimierz BRAZEWICZ
against Poland
lodged on 13 September 2021
communicated on 10 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the length of the disciplinary proceedings against the applicant, the lack of effective remedy in this respect as well as the impact of those proceedings and of the preliminary inquiries on the applicant’s reputation.

The applicant is an experienced judge at the Gdańsk Court of Appeal. Prior to the events described below he has never been charged with any disciplinary offence.

Background of the instant case

On 28 September 2018 the applicant, together with Judge I. Tuleya, participated in a public meeting at the European Solidarity Centre in Gdańsk (see § 9(5) of the communication report in case Tuleya v. Poland, no. 21181/19). The meeting was organised by the Polish Judges’ Association Iustitia, the Gdańsk Bar Council and the Gdańsk Council of Attorneys-at-Law and concerned the Constitution and the role of courts in a democratic society.

On 8 October 2018 the deputy disciplinary officer for ordinary court judges (“the disciplinary officer”) summoned the applicant to give evidence as a witness on 6 November 2018 in the preliminary inquiry concerning Judge I. Tuleya (case no. RDSP 712-12/18). The applicant appeared as summoned and was questioned as a witness. He asked that his lawyer be allowed to take part in the questioning, but the disciplinary officer refused that request. The applicant insisted that his rights as a witness, specified in Article 183 § 1 of the Code of Criminal Procedure, be respected.

On 17 October and 6 and 24 November 2018 the portal onet.pl published articles describing the applicant’s position regarding his summons to be questioned as a witness and the course of the questioning as well as his critical views on the actions of the disciplinary officer.

Preliminary inquiries concerning the applicant by the disciplinary officer

On an unspecified date in 2018 the disciplinary officer initiated a preliminary inquiry concerning the applicant (case no. RDSP 712-18/18). On 30 October 2018 the disciplinary officer summoned the applicant to make a written statement on (1) the untimely preparation of written reasons [for his decisions] and (2) his informing of third parties about being summoned by the disciplinary officer to give evidence as witness. On an unspecified date the disciplinary officer requested the President of the Gdańsk Court of Appeal to provide statistical information regarding the applicant’s work and whether any disciplinary actions had been undertaken against the applicant between 2002 and 2007. On 10 December 2018 the applicant requested the disciplinary officer to explain the reasons for seeking that information from the President of the Gdańsk Court of Appeal. In his reply of 10 January 2019, the disciplinary officer referred to the summons of 30 October 2018 addressed to the applicant. On 24 January 2019 the applicant made a further similar request to the disciplinary officer but received no specific reply.

On an unspecified date in 2019, following a complaint made by a certain J.R. against the applicant, the disciplinary officer initiated another preliminary inquiry concerning him (case no. RDSP 715-125/19). On 21 May 2019 the disciplinary officer requested the President of the Gdańsk Court of Appeal to express his position on the complaint. In his reply of 18 June 2019, the President of the Gdańsk Court of Appeal stated that there had been no grounds to initiate disciplinary proceedings against the applicant as requested by J.R.

On an unspecified date in 2019 the disciplinary officer initiated another preliminary inquiry concerning the applicant (case no. RDSP 712-19/19). On 24 October 2019 the disciplinary officer summoned the applicant to make a written statement on the possible disciplinary misconduct in the form of obvious and gross violation of the law in connection with the Gdańsk Court of Appeal’s judgment of 7 March 2018, given by a three-judge panel which included the applicant, quashing the Elbląg Regional Court’s judgment of 13 November 2017. On 19 November 2019 the applicant replied to the disciplinary officer that any attempt to inquire into the secrecy of judicial deliberations constituted a breach of Article 178 of the Constitution, Article 47 of the Charter of Fundamental Rights and Article 6 of the Convention.

It is not clear whether the above-mentioned three sets of preliminary proceedings concerning the applicant were terminated.

Disciplinary proceedings against the applicant

On 29 October 2019 the disciplinary officer instituted disciplinary proceedings against the applicant (case no. RDSP 711-23/19). Referring to the above-mentioned articles published by the portal onet.pl, he charged the applicant with three disciplinary offences, consisting in providing media representatives with statements and assessments related to the applicant’s judicial office, contrary to section 89(1) of the Act of 27 July 2001 on the Organisation of Ordinary Courts (“the 2001 Act”). The disciplinary officer referred to section 107(1) of the 2001 Act but did not specify whether the alleged disciplinary misconduct concerned “compromising the dignity of the office of judge” or “obvious and gross violation of the law” by the applicant. At the same time, the applicant was obliged to provide written explanation and evidentiary requests within fourteen days from the service of the charges.

As a result of the initiation of disciplinary proceedings against the applicant, he has been prevented from working as a lecturer at the National School of Judiciary and Public Prosecution.

On 26 November 2019 the President of the Disciplinary Chamber of the Supreme Court designated the Disciplinary Court at the Warsaw Court of Appeal as competent to hear the applicant’s disciplinary case at first instance.

On 2 December 2019 the applicant sent a letter to the disciplinary officer containing his explanations and request to adduce evidence. No further actions appear to have been taken in the disciplinary proceedings which are still pending.

Complaints

The applicant complains, under Article 6 § 1 and Article 13 of the Convention about the length of the disciplinary proceedings and the lack of any domestic remedies in this respect. He further complains that the prolonged disciplinary proceedings had adverse impact on his reputation. The applicant further alleges that the preliminary inquiries initiated by the disciplinary officer were aimed at discrediting him.

QUESTIONS TO THE PARTIES

1.  Is Article 6 § 1 of the Convention applicable to the disciplinary proceedings in the present case?

2.  If so, is the length of the disciplinary proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3.  Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1, as required by Article 13 of the Convention (see Kudła v. Poland ([GC], no. 30210/96, 26 October 2000).

4.  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 initiation and prolonged duration of the disciplinary proceedings against him as well as on account of three preliminary inquiries initiated by the disciplinary officer (see Denisov v. Ukraine [GC], no. 76639/11, 25 September 2018 and Juszczyszyn v. Poland, no 35599/20, 6 October 2022)?

5.  If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?

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