Information Note on the Court’s case-law 267
October 2022
Juszczyszyn v. Poland - 35599/20
Judgment 6.10.2022 [Section I]
Article 18
Restrictions for unauthorised purposes
Judge’s suspension predominantly aiming to sanction and dissuade him from verifying lawfulness of appointment of judges on recommendation of reformed National Council of the Judiciary: violation
Article 6
Disciplinary proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Tribunal established by law
Grave irregularities in appointment of judges to newly established Supreme Court’s Disciplinary Chamber, that suspended judge from duties for verifying another judge’s independence: violation
Article 8
Article 8-1
Respect for private life
Unforeseeable suspension of judge, in connection with the giving of a judicial decision, based on manifestly unreasonable application of law, by a body not being “a tribunal established by law”: violation
Facts – In its preliminary ruling of 19 November 2019 in the case of A.K. and Others, the Court of Justice of the European Union’s (CJEU) pinpointed a number of issues regarding, inter alia, the independence the new National Council of the Judiciary (“the NCJ”), established as part of a wide-scale reform of the Polish judiciary (the broader domestic background was set out in the Court’s judgments in Reczkowicz v. Poland and Grzęda v. Poland [GC].
Having regard to the above ruling, the applicant judge, when hearing an appeal in a civil case during his secondment to a Regional Court, decided to verify whether the first instance judge, who had been appointed by the President of the Republic upon the recommendation of the NCJ, complied with the requirement of independence. To this effect he issued an order, directing the Head of the Chancellery of the Sejm to produce copies of the endorsement lists for judicial candidates to the new NCJ, which at the time were not publicly available. His secondment was then terminated, a one-month immediate interruption in his judicial duties was ordered and, following disciplinary proceedings, the Disciplinary Chamber of the Supreme Court, sitting as a second-instance disciplinary court, suspended him from judicial duties and reduced his salary by 40% for the duration of the suspension. The Disciplinary Chamber characterised the issuance of the applicant’s order as both compromising the dignity of judicial office and as constituting an obvious and gross violation of the law within the meaning of section 107(1) of the Act on the Organisation of the Ordinary Courts (“the 2001 Act”). Just over two years later, the Disciplinary Chamber decided ex officio to lift the applicant’s suspension and revoke the reduction of his salary, finding that the measure had been disproportionate at that stage. The applicant was then placed on compulsory leave and was transferred, against his will, to another division of his district court.
Law – Article 6 § 1: Applying the criteria laid down in Guðmundur Andri Ástráðsson v. Iceland [GC] and for the same reasons as in Reczkowicz, the Court concluded that the Disciplinary Chamber of the Supreme Court, which had examined the applicant’s case, had not been a “tribunal established by law”. The irregularities in question had been of such gravity that they had undermined the very essence of the right to have the case examined by a tribunal established by law. The same irregularities had also compromised the independence and impartiality of that court. Furthermore, there was no legal avenue under Polish law through which the applicant could appeal against his suspension to a judicial body satisfying the requirements of Article 6 § 1.
Conclusion: violation (unanimously)
Article 8:
(a) Applicability – The reasons underpinning the applicant’s suspension had been linked to the performance of his professional duties and had had no connection to his private life. The Court therefore employed the consequence-based approach: having regard to the nature and the duration of the various negative effects stemming from the applicant’s suspension, the impugned measure had affected his private life to a very significant degree, falling therefore within the scope of Article 8. While the alleged misconduct on the applicant’s part, in the circumstances, had not been evident, as a consequence of the Disciplinary Chamber findings, he could be perceived as being unworthy of performing a judicial function. Moreover, he had been prevented from exercising his judicial duties, constituting his fundamental professional role, for more than two years.
(b) Merits –
(i) Compliance with domestic law and the rule of law – As the Disciplinary Chamber had failed to satisfy the requirements of a “independent and impartial tribunal established by law”, the suspension decision had been given by a body which could not be considered a “court” for the purposes of the Convention, and thus could not be regarded as lawful in terms of Article 8. In view of this finding, the requisite procedural safeguards had not been put in place to prevent arbitrary application of the relevant substantive law.
(ii) Compliance with “quality of law” requirements – The Disciplinary Chamber, in its appeal decision, had characterised the applicant’s conduct as compromising the dignity of judicial office without addressing the pertinent point made in the first-instance decision that the giving of an unfounded judicial decision could not have been characterised, in the light of the existing case-law, as that offence. Further, although the disciplinary charge against the applicant concerned solely that offence, that Chamber, in characterising the issuing of his judicial order also as an “obvious and gross violation of the law”, which was a separate type of professional misconduct, had ruled beyond the scope of the disciplinary charge that had been brought against the applicant. The fact that the Disciplinary Chamber had done so without referring to any of the earlier domestic case-law on the interpretation of this concept, was striking and indicative of the lack of foreseeability.
The imposition of disciplinary liability in connection with the giving of a judicial decision must be seen as an exceptional measure and be subject to restrictive interpretation, having regard to the principle of judicial independence. In this connection the Court referred to Recommendation CM/Rec (2010)12 made by the Committee of Ministers of the Council of Europe to member States that the interpretation of the law by judges should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence. Moreover, the Court had discerned a common thread running through the institutional requirements of Article 6 § 1, that is, of “independence”, “impartiality” and “tribunal established by law”, in that they were guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlay each of those requirements. Analysed in that context, there was no indication that the applicant’s order had been motivated by any reason other than the need to assess compliance with the above-mentioned institutional requirements of Article 6 § 1. Nor had his action amounted to malice or gross negligence.
The Court also attached significant weight to the CJEU’s findings in its judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges) that Poland had failed to fulfil its obligations under Article 19(1) of the Treaty on European Union by, inter alia, “allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts, referring to section 107(1) of the 2001 Act”.
In conclusion, the interpretation and application of the relevant provision by the Disciplinary Chamber had been manifestly unreasonable and thus the applicant could not have foreseen that the issuance of his order could have led to his suspension. That being so, the condition of foreseeability was not satisfied.
Conclusion: violation (five votes to two)
Article 18 in conjunction with Article 8: The applicant alleged that his suspension had pursued the ulterior purpose of sanctioning him and dissuading him from verifying the lawfulness of the appointment of judges who had been nominated in a politicised procedure. The Court was prepared to assume that the applicant’s suspension pursued one of the legitimate aims invoked by the Government, namely the protection of the rights and freedoms of others. From the point of view of Article 18, it had to examine whether the suspension decision had also pursued an ulterior purpose, and, if that was the case, whether that ulterior purpose had been the predominant purpose of the restriction of the applicant’s right to respect for his private life.
At the outset the Court referred to the general context concerning the reorganisation of the judiciary in Poland as noted in Grzęda. As a result of the successive reforms, the judiciary – an autonomous branch of State power – had been exposed to interference by the executive and legislative powers and thus substantially weakened; the legislative and the executive powers had been allowed to achieve a decisive influence over the composition of the NCJ which, in turn, enabled those powers to interfere directly or indirectly in the judicial appointment procedure.
In so far as the applicant’s individual situation was concerned, his suspension had been the culmination of a series of measures taken by the Minister of Justice or persons appointed by him. Public statements had also been made, inter alia, by that Minister to the effect the applicant’s order had amounted to “anarchisation of the Polish judiciary and overstepping the judges’ powers”.
The principal ground for the applicant’s suspension by the Disciplinary Chamber had been the disciplinary charge relating to the issuance of the order. However, as already established, the interpretation and application of the relevant provision had been manifestly unreasonable and had failed to meet the condition of foreseeability and neither malice nor gross negligence could be discerned in the applicant’s order. Further, the Disciplinary Chamber had disregarded the rulings of the CJEU and the Polish Supreme Court, which had made fundamental findings as to the lack of independence of the new NCJ and the status of judges appointed upon its recommendations.
The authorities, including the Disciplinary Chamber, had been determined to demonstrate that to challenge the status of judges appointed with the participation of the recomposed NCJ would have exposed any judges so doing to sanctions. This intention of the authorities was corroborated by the adoption by the Sejm in 2019 of further legislation, which had introduced new disciplinary offences for judges. Its adoption had coincided with the proceedings in the applicant’s case. However, there was no basis for a conclusion that the Convention standards of independence and impartiality excluded the power of “other judges” to generally question a “judge’s right to adjudicate” or to verify “the regularity of the procedure preceding the appointment of a judge by the President”. The impugned legislation had, moreover, been criticised in the joint opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe. The European Commission had brought infringement proceedings against Poland in this respect. In the context of those proceedings an interim order had been issued requiring Poland to suspend, inter alia, the application of domestic provisions, which prohibited national courts from, and allowed the disciplinary liability of judges to be engaged for, verifying compliance with the requirements of independence and impartiality of a tribunal previously established by law.
In its assessment of the applicant’s complaint under Article 18 the Court must have regard to judicial independence and be particularly attentive to the protection of members of the judiciary against measures that could threaten their judicial independence and autonomy. The recourse to disciplinary proceedings and ultimate suspension of the applicant for issuing a judicial order that had been aimed at safeguarding the right of a party to an “independent and impartial tribunal established by law”, was incompatible with the the fundamental principles of judicial independence and the rule of law. In the CJEU’s view, the Disciplinary Chamber’s decision in the applicant’s case confirmed the existence of a risk that the disciplinary regime might be used in order to influence judicial decisions. The CJEU found, inter alia, that in order to preserve judicial independence and to prevent the disciplinary regime from being diverted from its legitimate purposes and being used to exert political control over judicial decisions or pressure on judges, the fact that a judicial decision contained a possible error in the interpretation and application of national or EU law, or in the assessment of the facts and the appraisal of the evidence, could not in itself trigger the disciplinary liability of the judge concerned.
In conclusion, the predominant purpose of the disciplinary measures that had been taken against the applicant leading to his suspension had been to sanction him and to dissuade him from assessing the status of judges appointed upon the recommendation of the recomposed NCJ by applying the relevant legal standards, including those stemming from Article 6 § 1. This ulterior purpose had been incompatible with the Convention.
Conclusion: violation (five votes to two)
Article 1 of Protocol No. 1: The reduction of the applicant’s salary for the duration of his suspension had been of a temporary nature and had eventually been revoked. During the period of his suspension the applicant had received a reduced salary. However, this part of his income had not actually been earned and it could not be argued that it had been definitely payable.
Conclusion: inadmissible (incompatible ratione materiae)
Article 41: EUR 30,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Legal Summary; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal Summary; Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal summary; Xero Flor w Polsce sp. z o.o. v. Poland, 4907/18, 7 May 2021, Legal Summary; Broda and Bojara v. Poland, 26691/18 and 27367/18, 29 June 2021; and Reczkowicz v. Poland, 43447/19, 22 July 2021, Legal Summary; Dolińska-Ficek and Ozimek v. Poland, 49868/19 and 57511/19, 8 November 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