Published on 10 May 2021
FIRST SECTION
Application no. 35599/20
Paweł JUSZCZYSZYN
against Poland
lodged on 4 August 2020
communicated on 30 April 2021
STATEMENT OF FACTS
The applicant, Mr Paweł Juszczyszyn, is a Polish national who was born in 1972 and lives in Olsztyn. He is represented by Mr P. Kładoczny, a lawyer working with the Helsinki Foundation of Human Rights.The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicant passed his judicial exam in April 2001. On 15 June 2001 he was nominated as an assessor (trainee judge). On 4 December 2003 the applicant was appointed to the office of district court judge at Olsztyn District Court.
3. On 2 September 2019 the Minister of Justice seconded the applicant to Olsztyn Regional Court until February 2020.
4. On 20 November 2019 the applicant, sitting as a one-judge panel at the Regional Court, heard an appeal against a civil judgment given by the Lidzbark Warmiński District Court. The District Court had given judgment as a one-judge panel composed of Judge D.I. The National Council of the Judiciary (“the NCJ”), in its resolution of 9 January 2019, had proposed that the President of the Republic appoint D.I. to the office of district court judge.
5. When hearing the appeal, the applicant gave a decision ordering the Head of the Chancellery of the Sejm (Szef Kancelarii Sejmu) to produce copies of lists of citizens and judges supporting the candidatures of members of the new NCJ that had been submitted to the Chancellery. He fixed a time-limit for transmission of the relevant documents under pain of a fine. The applicant referred to the judgment of the Court of Justice of the European Union (“the CJEU”) of 19 November 2019 (A.K. and Others, joined cases C-585/18, C-624/18 and C-625/18) concerning the independence of the NCJ and of the Disciplinary Chamber (“the DC”) of the Supreme Court (see Relevant legal framework below).
6. The impugned documents were not publicly available at the relevant time. A Deputy to the Sejm, Ms K.G.-P. requested the Chancellery of the Sejm to disclose those documents under the Access to Information Act, but to no avail. She challenged the refusal before the administrative courts. However, despite a final judgment of the Supreme Administrative Court of 28 June 2019 (case no. I OSK 4282/18) ordering disclosure, the documents were not made public.
7. The applicant intended to verify whether the lower court had complied with the requirement of independence under EU law since judge D.I. had been appointed on the basis of a resolution adopted by the new NCJ. This was relevant for the validity of the first-instance proceedings and consequently for the right to a fair hearing of the parties to these proceedings.
8. On 25 November 2019 the Minister of Justice recalled the applicant from his secondment to the Regional Court.
9. The Minister publicly admitted that the decision to recall the applicant was based on the latter’s judicial activity. On 26 November 2019 the Minister of Justice stated at a press conference:
“[T]he role of a court is to adjudicate fairly, and not to play politics and undermine the status of other judges or constitutional foundations of the Republic of Poland, including the powers of such authorities as the Sejm, the NCJ or the President of the Republic ...”.
10. On the same day the Ministry published a press release on the termination of the applicant’s secondment. It stated, inter alia, that
“This judge [the applicant] was examining an appeal in one of the civil cases. In the course of the proceedings he challenged – in an unjustified manner – the status of a judge appointed by the President of the Republic, who in the same case gave a first-instance judgment. In the Ministry of Justice’s assessment, such act constitutes an inadmissible interference with the activities of the [State] constitutional organs and can lead to chaos and anarchy”.
11. At the same time certain media, including public media, published a series of articles attempting to demonstrate that the applicant had wished to cause anarchy in the Polish judiciary and had links with the opposition parties. They also divulged information about the applicant’s private life.
12. On 28 November 2019 the deputy disciplinary representative for judges of the ordinary courts (Zastępca Rzecznika Dyscyplinarnego Sędziów Sądów Powszechnych - “deputy disciplinary representative”) initiated disciplinary proceedings against the applicant. He charged the applicant, inter alia, with a disciplinary offence of undermining the dignity of the office of judge under section 107 § 1 of the Act of 27 July 2001 on the Organisation of Ordinary Courts (ustawa z dnia 27 lipca 2001 r. Prawo o ustroju sądów powszechnych; “the 2001 Act”), referring to the decision of 20 November 2019. The deputy disciplinary representative noted that the applicant had exceeded his powers when giving the decision ordering the Head of the Chancellery of the Sejm to produce copies of documents regarding the election of the new NCJ members. By doing so, he arrogated to himself a competence to assess the lawfulness of election of members of the NCJ and of the exercise by the President of the Republic of his competence to appoint judges, and thus acted against the interest of the proper functioning of the administration of justice.
13. The deputy disciplinary representative noted that the DC was competent to hear the case as a first-instance court since the disciplinary charge relating to the decision of 20 November 2019 had also met the constitutive elements of an intentional offence.
14. On 29 November 2019 the President of Olsztyn District Court, Judge M.N., by virtue of section 130 § 1 of the 2001 Act, ordered that the applicant be immediately suspended from the exercise of his official duties for a period of one month and until the DC had given a decision in this respect. Judge M.N. is also a member of the NCJ.
15. On 20 December 2019 the applicant’s lawyers filed an application with the First President of the Supreme Court for withdrawal of the disciplinary representative, P.S., and his two deputies, P.R. and M.L., from the consideration of the case owing to their lack of impartiality. They also submitted that their application could not be examined by the DC which, according to the Supreme Court’s judgment of 5 December 2019 (no. III PO 7/18), was not a court within the meaning of EU and domestic law. They proposed that their application should be examined by the Criminal Chamber of the Supreme Court.
16. On the same day the applicant’s lawyers requested the First President of the Supreme Court to find that the DC did not have competence to hear the case regarding the applicant’s suspension. They requested that a different chamber be designated to examine the case. They maintained that the DC could not be regarded as an independent and impartial tribunal established by law within the meaning of Article 45 of the Constitution, Article 6 of the Convention and Article 47 of the Charter of Fundamental Rights.
17. On 23 December 2019 the First President of the Supreme Court replied that the request of the applicant’s lawyers had been received on 20 December, while a case was to be heard on 23 December 2019. In these circumstances, she was unable to act as requested and, in addition, the acting President of the Disciplinary Chamber had refused to transmit the case file.
18. On 23 December 2019 the DC, sitting as a panel of two judges and one lay member, adopted a resolution setting aside the President of Olsztyn District Court’s order of 29 November 2019 suspending the applicant. It found that the giving of an unfounded judicial decision could not have been qualified as a disciplinary offence of undermining the dignity of the office of judge. It further noted that it was unjustified to claim that the applicant’s impugned act had met the elements of the offence specified in Article 231 § 1 of the Criminal Code (exceeding powers by a public official).
19. On 30 December 2019 the deputy disciplinary representative lodged an appeal against this decision.
20. On 13 January 2020 the applicant’s lawyer again requested the First President of the Supreme Court to find that the DC did not have competence to hear the case and to designate a different chamber of the Supreme Court to this effect.
21. In two decisions of 4 February 2020 the disciplinary representative dismissed the applicant’s challenge to the deputy disciplinary representative M.L. and left unexamined the challenge to himself and his other deputy.
22. On 4 February 2020 the DC, sitting as a panel of two judges, R.W. and A.T. and one lay member, amended the resolution of 23 December 2019 and decided to suspend the applicant from his official duties. It also decided to reduce the applicant’s salary by 40% for the duration of the suspension.Relevant legal frameworkConstitution of the Republic of Poland
Article 10
“1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.”
Article 45 § 1
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Article 178 § 1
“Judges, in the exercise of their office, shall be independent and subject only to the Constitution and statutes.”
Article 186 § 1
“1. The National Council of the Judiciary shall safeguard the independence of courts and judges.”The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary
23. Before the entry into force of the Act of 8 December 2017 Amending the Act on the National Council of the Judiciary (ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”), the Act on the National Council of the Judiciary provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels of the judiciary.
24. The 2017 Amending Act granted to the Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a § 1). It stipulated that the joint term of new members of the NCJ begins on the day following the day of their election (section 9a § 3).
25. Pursuant to section 6 of the 2017 Amending Act, the mandates of judicial members of the NCJ elected on the basis of the previous Act shall continue until the day preceding the beginning of the term of office of the new members of the NCJ.The Act of 8 December 2017 on the Supreme Court
26. The Act of 8 December 2017 Act on the Supreme Court (ustawa z dnia 8 grudnia 2017 o Sądzie Najwyższym – “the 2017 Act on the Supreme Court”) entered into force on 3 April 2018 It modified organisation of that court by, in particular, creating two new Chambers: Disciplinary and of Extraordinary Control and Public Affairs (section 3).
27. Section 29 of the 2017 Act on the Supreme Court provides that the judges of the Supreme Court shall be appointed by the President of Poland acting on a proposal from the NCJ.The Act of 27 July 2001 on the Organisation of the Ordinary Courts as applicable at the relevant time (“the 2001 Act”)
28. Section 107 § 1 of the 2001 provides as follows:
“1. A judge shall be liable to disciplinary action for professional misconduct, including obvious and gross violations of the law and undermining the dignity of his office (disciplinary offences).”Judgment of the Court of Justice of the European Union of 19 November 2019 (joined cases A.K. and Others nos. C-585/18, C‑624/18 and C-625/18)
29. In August and September 2018 the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before that court.
30. The requests concerned, inter alia, a question whether the Disciplinary Chamber of the Polish Supreme Court satisfied, “in the light of the circumstances in which it [had been] formed and its members appointed, the independence and impartiality required” by EU law.
31. On 27 June 2019 the Advocate General Tanchev delivered his written opinion in those cases. He analysed the required qualifications of the NCJ with reference to the Court’s case-law (§ 123 of the opinion). The Advocate General Tanchev concluded that the Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence (§ 76 ibid).
32. On 19 November 2019 the Court of Justice of the European Union gave a preliminary ruling on the cases referred by the Supreme Court (joined Cases C-585/18, C-624/18 and C-625/18). The CJEU concluded as follows:
“Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the [Supreme Court].
If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”
33. The CJEU formulated following concerns with respect to the NCJ (§ 143 of the judgment):
“...first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2 000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the NCJ directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly‑formed NCJ.”
34. The CJEU noted that: “the decisions of the President of the Republic appointing judges to the Supreme Court are not amenable to judicial review” (§ 145 ibid).
35. In addition, the CJEU considered that other features, taken jointly, pertaining to the Disciplinary Chamber should also be taken into account (§§ 147-151):
- “this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social security and retirement of judges of the [Supreme Court], which previously fell within the jurisdiction of the ordinary courts”.
- “under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly-appointed judges, thereby excluding judges already serving in the [Supreme Court]”.
- “although established as a chamber of the [Supreme Court], the Disciplinary Chamber appears, in contrast to the other chambers of that court, and as is clear, inter alia, from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court.”Judgment of the Supreme Court of 5 December 2019, case no. III PO 7/18
36. The judgment of 5 December 2019 contained extensive grounds and applied interpretation indications given by the CJEU. The court concluded that the NCJ in “its current composition is not a body that is impartial and independent from legislative and executive branches of power” (§ 88 of the judgment). The Supreme Court also concluded that the Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and of Article 6 of the Convention (§ 79).Resolution of the formation of the joined Civil, Criminal and Labour and Social Security Chambers of the Supreme Court of 23 January 2020 (no. BSA I-4110-1/20)
37. On 23 January 2020 the joined Chambers of the Supreme Court (fifty-nine judges of Civil, Criminal and Labour Law and Social Security Chambers) issued a common resolution. The court made the following conclusions:
“1. A court formation is unduly composed within the meaning of Article 439(1)(2) of the Code of Criminal Procedure or a court formation is inconsistent with the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure also where the court includes a person appointed to the office of a judge of the Supreme Court on recommendation of the National Council for the Judiciary in accordance with the [2017 Amending Act].
2. A court is unduly composed within the meaning of Article 439(1)(2) of the Code of Criminal Procedure or a court formation is inconsistent with the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure also where the court includes a person appointed to the office of a judge of a common or military court on recommendation of the National Council for the Judiciary formed in accordance with the [2017 Amending Act], if the defectiveness of the appointment process leads, in specific circumstances, to the violation of the guarantees of independence and impartiality within the meaning of Article 45 Section 1 of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 § 1 of the [Convention].
3. The interpretation of Article 439 § 1 (2) of the Code of Criminal Procedure and Article 379 § 4 of the Code of Civil Procedure provided in points 1 and 2 hereof shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date hereof under the Code of Criminal Procedure before a given court formation.
4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under [the 2017 Act on the Supreme Court] irrespective of the date of such judgments.”
38. In the reasons for the Resolution, the Supreme Court held, in so far as relevant:
“45. (...)
The formation of the combined Civil, Criminal and Labour and Social Security Chambers of the Supreme Court fully shares, in that regard, the legal assessment and its reasons stated in the Supreme Court’s judgment of 5 December 2019 in case no. III PO 7/18 that the Disciplinary Chamber established in the Supreme Court by the Act on the Supreme Court of 2017 structurally does not fulfil the criteria of an independent court within the meaning of Article 47 of the Charter of Fundamental Rights, Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention, and that it is an extraordinary court which cannot be established in peacetime in accordance with Article 175 § 2 of the Constitution. For these reasons alone, judgments issued by formations of judges in the Disciplinary Chamber are not judgments given by a duly established court”.Opinions of Advocate General Tanchev in cases C-487/19 (W.Ż.) and C-508/19 (M.F.) delivered on 15 April 2021
39. On 15 April 2021 the CJEU’s Advocate General Evgeni Tanchev delivered two opinions in cases C-487/19 and C-508/19. Both cases originated in a request for preliminary ruling lodged by panels of the “old” chambers of the Supreme Court, in the course of proceedings concerning the determination of status of two judges from the newly created chambers of that court: one from the Chamber of Extraordinary Control and Public Affairs (A.S. – C-487/19) and one from the Disciplinary Chamber (J.M. – C-508/19).
40. In the opinion in the case C-487/19 the Advocate General explicitly confirmed that in the light of A.S.’s appointment (where the stay of enforcement of the NCJ resolution was ordered and ignored by the President of the Republic), the gravity of breaches was more serious than of those identified in the Court’s Grand Chamber judgment Ástráðsson v. Iceland. He also stated that intentional infringements of the appointment procedure were manifestly aimed at ensuring that the government would have an influence on judicial appointments.
41. In the opinion delivered in case no. C-508/19, the Advocate General stated that the appointment of judge J.M. by the President, despite the fact that appeal proceedings against the NCJ resolution were pending, resulted in a potentially flagrant breach of fundamental norms of national law.
42. The assessment of consequences of flawed judicial appointment was left to the discretion of the referring court, although the Advocate General concluded, that legal effectiveness of a ruling issued by a court composed of judges appointed in such procedure should be limited.
COMPLAINTS
1. The applicant asserts that Article 6 § 1 of the Convention under its civil head was applicable to his case and that, accordingly, he should have been provided with access to an independent and impartial tribunal established by law. However, the DC is not a “tribunal established by law” since it was created in flagrant breach of the domestic law. This breach was related, in particular, to the appointment of judges of the DC by the President on application of the NCJ which, in turn, had been established in breach of the Constitution. Accordingly, the NCJ could no longer be considered as an independent body, which rendered the procedure of selection of judges defective. The applicant refers to the arguments set out in the Resolution of the combined Civil, Criminal and Labour and Social Security Chambers of the Supreme Court of 23 January 2020 (no. BSA I‑4110-1/20).
2. The applicant also alleges that the DC did not comply with the requirement of independence. Judges of the Disciplinary Chamber were appointed with the participation of the new NCJ. The Minister of Justice‑Prosecutor General played a key role in the establishment of the new NCJ. He also appointed the deputy disciplinary representative whose appeal was examined by the DC in the applicant’s case. The applicant further refers to the authorities’ actions aimed at undermining the independence of the judiciary in general and to the statements of the Government representatives condemning the applicant, which could have adversely affected the independence of the DC.
3. The applicant further complains that the DC was not an impartial body. The judges of the DC, when imposing sanctions on the applicant and indicating in the reasoning that a verification of the validity of appointment of other judges was inadmissible, acted in their own personal interest. They intended to dissuade other judges from challenging the status of judges of the DC and sought to legitimise their own appointment. In addition, Judge A.T., who examined the applicant’s appeal in the DC, had made no secret of his affinity with politicians of the ruling party.
4. Referring to Denisov v. Ukraine, the applicant complains under Article 8 of the Convention that his right to respect for his private life was violated. He submits that judges need to enjoy public trust and that the disciplinary sanctions imposed on him adversely affected his professional reputation. The adverse effect was aggravated by statements made in the reasoning for the Disciplinary Chamber’s decision in his case such as, inter alia, “[he] further violated provisions of the Constitution, undermining the constitutional legal order”, “gave a particularly bad example to other judges” and that his exercise of the judicial duties for the duration of the proceedings “would be contrary to the interest of the administration of justice”, which questioned the applicant’s competences and his moral qualifications. The applicant submits that the interference with his private life did not comply with the requirements of Article 8 § 2. He alleges that the law did not provide procedural safeguards against arbitrary actions of the bodies which did not satisfy the requirements of Article 6 § 1. The measures imposed on him were intended to have a chilling effect to deter judges from verifying the validity of the appointment of judges who had been appointed in dubious circumstances.
5. The applicant alleges a breach of Article 18 in conjunction with Article 8 of the Convention. He submits that the disciplinary sanctions imposed on him did not further any legitimate interests, but were aimed at intimidating him and dissuading him and other judges from verifying the lawfulness of appointment of judges who had been nominated in a politicised procedure. The disciplinary proceedings against the applicant were only seemingly conducted before independent bodies, since the actions against him were taken by the president of the court subordinated to the Minister of Justice, the deputy disciplinary representative appointed by the Minister of Justice and the politicised NCJ. The applicant submits that in the assessment of his case it was necessary to have regard to other actions of the authorities aimed at disciplining independent judges. He also asserts that the disciplinary proceedings in his case should be regarded as the authorities’ attempt to undermine judicial independence, which was incompatible with the principles on which the Convention was founded.
6. The applicant complains that the reduction of his salary by 40% for the duration of the proceedings, where such duration was not limited in time, amounted to a disproportionate interference with his property rights. The applicant did not lose his “future earnings”, but was deprived of part of his salary to which he had a statutory right. The interference at issue did not have objective justification and was intended to create a “chilling effect”.
QUESTIONS TO THE PARTIES
Article 6 § 1
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (cf. see Baka v. Hungary [GC], no. 20261/12, §§ 104-105, 23 June 2016; Paluda v. Slovakia, no. 33392/12, §§ 33-34, 23 May 2017; and Camelia Bogdan v. Romania, no. 36889/18, § 70, 20 October 2020)?
2. Did the proceedings before the Disciplinary Chamber of the Supreme Court violate the applicant’s right to be heard by a tribunal established by law guaranteed by Article 6 § 1 of the Convention (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020)? Reference is made, in particular, to the Resolution of the formation of the joined Civil, Criminal and Labour and Social Security Chambers of the Supreme Court of 23 January 2020 (no. BSA I‑4110-1/20).
3. Was the Disciplinary Chamber of the Supreme Court which dealt with the applicant’s case “an independent and impartial tribunal”, as required by Article 6 § 1 of the Convention?
Article 8
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 Disciplinary Chamber of the Supreme Court’s decision of 4 February 2020 (cf. Denisov v. Ukraine ([GC], no. 76639/11, 25 September 2018).
5. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
Article 18
6. Were the restrictions imposed by the State in the present case, purportedly pursuant to Article 8 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?
Article 1 of Protocol No. 1
7. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
8. Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
9. If so, was that interference necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties?
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