Published on 23 March 2023
FIRST SECTION
Application no. 8687/22
Agnieszka NIKLAS-BIBIK
against Poland
lodged on 14 February 2022
communicated on 23 May 2022 and 8 March 2023
REVISED SUBJECT MATTER OF THE CASE
The earlier facts and previous complaints in this application have been summarised in the Subject Matter of the Case, published on 13 June 2022 and available on HUDOC.
The new facts can be summarised as follows:
The applicant’s case concerning the President of the Słupsk Regional Court’s order on the immediate interruption in the exercise of her judicial duties was pending before the Disciplinary Chamber of the Supreme Court (“the DCSC”). The DCSC was abolished on 15 July 2022, upon entry into force of the Act of 9 June 2022 amending the Act on the Supreme Court and certain other Acts (ustawa z dnia 9 czerwca 2022 r. o zmianie ustawy o Sądzie Najwyższym oraz niektórych innych ustaw; “the 2022 Amending Act”).
The 2022 Amending Act established a new chamber of the Supreme Court: the Chamber of Professional Responsibility (“the CPR”).
On 15 July 2022 the First President of the Supreme Court nominated five judges of that court (Judges W. Kozielewicz, D. Kala, M. Wąsek-Wiaderek, M. Siwek and K. Wiak) to adjudicate in the CPR on the transitional basis.
On 5 August 2022 the applicant was informed that her case before the CPR will be examined by a panel composed of Judge W. Kozielewicz, Judge M. Siwek and lay Judge C. Makuch. She submits that she was not informed how the above-mentioned judges were assigned to sit on her case, despite having requested an explanation in this regard.
On 12 September 2022 the applicant filed a request to have the so-called “independence and impartiality test” carried out in respect of Judge M. Siwek. She submitted that Judge M. Siwek had been appointed to the Supreme Court’s Chamber of Extraordinary Review and Public Affairs in an unlawful procedure. In this respect, she referred to Dolińska-Ficek and Ozimek v. Poland judgment (nos. 49868/19 and 57511/19, 8 November 2021). The applicant’s case before the CPR was to be examined on 22 September 2022. However, the session was adjourned since the applicant’s challenge to Judge M. Siwek was pending examination.
On 17 September 2022 the President of the Republic, with the countersignature of the Prime Minister, nominated eleven judges of the Supreme Court to adjudicate in the CPR for a term of five years. Six of those judges had been appointed to the Supreme Court by the President of the Republic on recommendations of the NCJ as established under the Act of 8 December 2017 Amending the Act on the NCJ and certain other acts (“the 2017 Amending Act”).
On 15 September 2022 the applicant lodged a request under Rule 39 of the Rules of Court in connection with the proceedings before the CPR. On 19 September 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 “the respondent State ensure that the disciplinary proceedings concerning the applicant’s suspension from her judicial functions comply with the requirements of “fair trial” as guaranteed by Article 6 § 1 of the Convention, in particular that the composition of the body dealing with her case meet the requirements of an “independent and impartial tribunal established by law” (see Reczkowicz v. Poland, no. 43447/19, 22 July 2021, §§ 225-284; and Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, 8 November 2021, §§ 281‑357 and 368-369).”
On 17 October 2022 the applicant was informed about a change in the composition of the CPR’s panel, namely that lay Judge C. Makuch had been replaced by lay Judge E. Mazur-Orlik. She was not informed of the reasons for that change. The proceedings before the CPR are pending.
The applicant complains under Article 6 § 1 of the Convention that the CPR does not satisfy the requirements of an “independent and impartial tribunal established by law”. In this regard, she submits that:
(1) the CPR 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) the composition of the CPR was determined in a discretionary manner by the executive (the President of the Republic with the countersignature of the Prime Minister);
(3) there was an undue influence on the assignment of lay judges to the CPR in that they were elected by the Senate and that their initial terms of office were extended for political reasons;
(4) the manner of assigning judges and lay judges to judicial formations in the CPR is unclear, non-transparent and arbitrary.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case in so far as the ordering of an immediate interruption in the applicant’s judicial duties is concerned?
2. Have the proceedings before the Chamber of Professional Responsibility of the Supreme Court violated the applicant’s right to be heard by an independent and impartial tribunal established by law, as guaranteed by Article 6 § 1 of the Convention? Reference is made to the following:
(a) six out of eleven judges assigned to that Chamber were appointed to the Supreme Court pursuant to recommendations of the NCJ as established under the 2017 Amending Act (see Reczkowicz v. Poland, no. 43447/19, 22 July 2021; Dolińska-Ficek and Ozimek v. Poland, nos.49868/19 and 57511/19, 8 November 2021; Advance Pharma sp. z o.o. v. Poland, no.1469/20, 3 February 2022);
(b) the applicant’s allegation that the manner of assigning judges and lay judges to judicial formations in the Chamber of Professional Responsibility was unclear, non-transparent and arbitrary.
The Government are requested to provide information about the rules governing the assignment of judges and lay judges to judicial formations in the Chamber of Professional Responsibility and the application of those rules in the applicant’s case.