Published on 19 July 2021

FIRST SECTION

Application no. 51751/20 Igor Zygmunt TULEYA against Poland (no. 2) lodged on 24 November 2020 c ommunicated on 16 July 2021

STATEMENT OF FACTS

1 . The applicant, Mr Igor Zygmunt Tuleya, is a Polish national, who was born in 1970 and lives in Warsaw. He is represented before the Court by Ms S. Gregorczyk-Abram, M. Wawrykiewicz and M. Ejchart-Dubois, lawyers practising in Warsaw.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On 10 April 2019 the applicant lodged his first application with the Court (no. 21181/19). On 1 September 2020 the Court decided to give notice to the Government of the applicant ’ s complaints under Articles 8, 10 and 13 of the Convention.

4 . In 1996 the applicant was appointed as judge of the Warsaw District Court, and in 2010 as judge of the Warsaw Regional Court. He adjudicates in criminal cases. He sat on a bench in a number of cases that attracted widespread media interest.

5 . The applicant is well-known in the judicial community and by the public at large. Cases in which he adjudicated have been commented on by politicians and representatives of the State authorities. The applicant is also involved in the activities of judicial associations, which defend the rule of law in Poland.

6 . On 16 December 2016, during the session of the Sejm (the lower house of parliament), the opposition blocked the parliamentary rostrum in protest, inter alia , against planned restrictions on the work of journalists in parliament. The Speaker of the Sejm moved the session to the Column Hall in the parliament building, where a vote on the 2017 Budget Act was to be held. The MPs from the majority and officials of the Chancellery of the Sejm prevented the opposition MPs from taking part in debate on the 2017 Budget Act. There were also irregularities during the vote and its course was not reliably recorded in the official transcript.

7 . After the vote in the Column Hall, certain opposition MPs filed a criminal complaint with the prosecutor, alleging that they had not been allowed to take part in the parliamentary debate. They also claimed that the required quorum might not have been attained, which would result in the Budget Act not being duly adopted. On 2 August 2017 the Warsaw Regional Prosecutor discontinued the investigation into the alleged irregularities during the session of 16 December 2016. Four persons lodged an interlocutory appeal against that decision.

8 . On 18 December 2017 the applicant, sitting in a one-judge formation at the Warsaw Regional Court, considered the interlocutory appeal. Journalists who were present requested the court (the applicant) for permission to record the court session. The applicant consulted the representatives of the MPs and the prosecutor, who raised no objections in this regard. The applicant accordingly decided to hold the court session in public.

9 . The Warsaw Regional Court (the applicant) decided to allow the interlocutory appeal and ordered the prosecutor to continue the investigation into the alleged irregularities during the vote on the Budget Act. The applicant provided orally reasons for the decision. In doing so, he noted that certain MPs and politicians from the parliamentary majority could have committed an offence of giving false testimony.

10 . Following the Warsaw Regional Court ’ s decision to quash the prosecutor decision on discontinuation, on an unspecified date the prosecutor instituted an investigation concerning the unauthorised disclosure of information from the investigation by the applicant.

11 . On 14 February 2020 the prosecutor D.Z. of the Internal Affairs Department of the State Prosecutor ’ s Office applied to the Disciplinary Chamber of the Supreme Court to have the applicant ’ s judicial immunity lifted with a view to charging him with commission of a criminal offence. The prosecutor intended to charge the applicant as follows:

“On 18 December 2017, as a public official, judge of the Warsaw Regional Court, publicly failed to fulfil his official duties arising from Articles 2 § 1 (2) and 297 § 1 (1,2,4 and 5) of the Code of Criminal Procedure (“the CCP”) as well as Article 241 § 1 of the Criminal Code (“the CC”) and exceeded his powers under Articles 95b § 1, 329 § 1 and 357 § 1 of the CCP and Article 241 § 1 of the CC in that he allowed representatives of the media to record images and sounds during a session of the Warsaw Regional Court [in the case] no. VIII Kp 1335/17 and during the delivery of decision in the case and oral reasons for it, as a result of which he disclosed to unauthorised persons, without the legally required consent of the authorised person, information from the investigation [conducted] by the Warsaw Regional Prosecutor ’ s Office in the case ... which he had obtained in connection with the performance of his official duties by which he acted to the detriment of public interest, namely an offence under Article 231 § 1 in conjunction with Articles 266 § 1 and 241 § 1 in conjunction with Article 11 § 2 of the CC”.

These acts are punishable by a term of imprisonment of up to three years.

12 . On 9 June 2020 the Disciplinary Chamber, sitting in a one-judge formation, adopted a resolution ( uchwa ł a ) dismissing the prosecutor ’ s application. It found that there was no reasonable suspicion that the applicant had committed the impugned criminal offence. The prosecutor lodged an interlocutory appeal.

13 . On 18 November 2020 the Disciplinary Chamber, acting as a second-instance body and sitting in a three-judge formation, partly allowed the prosecutor ’ s interlocutory appeal and amended the resolution of 9 June 2020. It lifted the applicant ’ s immunity with regard to the alleged offence of unauthorised disclosure of information from the investigation (Article 241 § 1 of the CC). The Disciplinary Chamber further suspended the applicant in his official duties and reduced his salary by 25% for the duration of his suspension. As a result, it became possible to press criminal charges against the applicant.

14 . The Warsaw Regional Court immediately enforced the decision on the applicant ’ s suspension.

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 181

“A judge shall not, without prior consent granted by a court specified by statute, be held criminally responsible nor deprived of liberty. ...”

Article 186 § 1

“1. The National Council of the Judiciary shall safeguard the independence of courts and judges.”

15 . 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.

16 . 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).

17 . 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.

18 . 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 Review and Public Affairs (section 3).

19 . 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.

20 . In August and September 2018 the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before that court.

21 . 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.

22 . 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).

23 . 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.”

24 . 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.”

25 . 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).

26 . 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.”

27 . The judgment of 5 December 2019 contained extensive grounds and applied interpretation indications given by the CJEU in the above cases (see paragraphs 23-26 above). The Supreme 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). It 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).

28 . 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 judge of the Supreme Court on the recommendation of the National Council of the Judiciary in accordance with the [2017 Amending Act].

2. 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 judge of an ordinary or military court on the recommendation of the National Council of the Judiciary formed in accordance with the [2017 Amending Act], if the deficiency of the appointment process leads, in specific circumstances, to a violation of the guarantees of independence and impartiality within the meaning of Article 45 § 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 above shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date [of the present resolution] 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.”

29 . In the reasons for the Resolution, the Supreme Court held, in so far as relevant:

“45. ...

The formation of the joined Civil Chamber, Criminal Chamber, and Labour and Social Security Chamber of the Supreme Court fully shares, in that regard, the legal assessment and its justification provided in the judgment of the Supreme Court of 5 December 2019 in case III PO 7/18, which found that the Disciplinary Chamber established in the Supreme Court, under the 2017 Act on the Supreme Court, structurally fails to fulfil the criteria of an independent court within the meaning of Article 47 of the Charter and Article 45 § 1 of the Constitution of the Republic of Poland and Article 6 § 1 ECHR, and that it is an extraordinary court which cannot be established in time of peace pursuant to Article 175 § 2 of the Constitution of the Republic of Poland. For those reasons alone, judgments issued by formations of judges in the Disciplinary Chamber are not judgments given by a duly appointed court.”

30 . 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).

31 . 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.

32 . 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.

33 . 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.

34 . In October 2019 the European Commission brought an action before the CJEU alleging that, by adopting the new disciplinary regime for judges, Poland had failed to fulfil its obligations under EU law. The Commission claimed, inter alia , that the new disciplinary regime did not guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, composed exclusively of judges selected by the new NCJ.

35 . In his opinion of 6 May 2021, Advocate General Tanchev stated that the CJEU should rule that the Polish legislation concerning the disciplinary regime for judges was contrary to EU law. He observed, among others, that the contested provisions infringed the principle of judicial independence because they allowed the content of judicial decisions to be treated as a disciplinary offence. He further considered that the Commission had sufficiently demonstrated that the disputed provisions did not guarantee the independence and impartiality of the Disciplinary Chamber.

36 . In December 2019 Parliament enacted the Act Amending the Act on the Organisation of Ordinary Courts, the Act on the Supreme Court and Certain Other Acts (“the 2019 Amending Act”). This Act introduced, inter alia , new disciplinary offences and sanctions for judges, including for questioning the lawfulness of judicial appointments made with the participation of the new NCJ. On 1 April 2021 the European Commission brought infringement proceedings against Poland in respect of the 2019 Amending Act (case C-204/21). It also decided to ask the CJEU to order interim measures in the case.

37 . On 14 July 2021 the Vice-President of the CJEU issued an interim order in the case. Poland was required, immediately and until the delivery of the judgment bringing to an end the proceedings in Case C-204/21, to suspend the application of the provisions of the 2019 Amending Act relating to the competences of the Disciplinary Chamber of the Supreme Court. In particular, Poland was ordered to suspend the application of the provisions of section 27(1)(1a) of the Act on the Supreme Court of 8 December 2017, as amended by the 2019 Amending Act, pursuant to which the Disciplinary Chamber of the Supreme Court was competent to rule, both at first and second instance, on applications for permission to open criminal proceedings against judges or assistant judges, to remand them in custody, to arrest them or to summon them, as well as the effects of decisions already adopted by the Disciplinary Chamber on the basis of that section authorising the initiation of criminal proceedings against a judge or his or her arrest, and to refrain from referring the cases referred to in that Article to a court which did not meet the requirements of independence laid down, inter alia , in the judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C ‑ 625/18, EU:C:2019:982).

38 . In April 2020 the Disciplinary Chamber of the Supreme Court referred a legal question to the Constitutional Court on the conformity of certain provisions of the TEU with the Constitution in so far as they concerned the obligation of a member State of the EU to execute interim measures relating to the organisation of the judicial authorities of that State.

39 . On 14 July 2021 the Constitutional Court, sitting in a bench of five judges, held a hearing and gave judgment in the case. It held, by majority, as follows:

“The second sentence of Article 4(3) of the TEU, in connection with Article 279 of the TFEU, to the extent that the Court of Justice of the European Union imposes ultra vires obligations on the Republic of Poland, as a member State of the European Union, by issuing interim measures relating to the organisation and jurisdiction of the Polish courts and the procedure before Polish courts, is incompatible with Article 2, Article 7, Article 8 § 1 and Article 90 § 1 in conjunction with Article 4 § 1 of the Constitution of the Republic of Poland and to that extent is not subject to the principles of primacy and direct applicability [of a ratified international agreement] set out in Article 91 § 1 to 3 of the Constitution.”

40 . In its judgment of 15 July 2021 (case C-791/19), the CJEU held that the disciplinary regime for judges in Poland was not compatible with EU law. The CJEU found, inter alia , that in light of the global context of major reforms that have recently affected the Polish judiciary, in which context the Disciplinary Chamber of the Supreme Court had been created, and owing to a combination of factors that framed the process whereby that new chamber had been established, that chamber did not provide all the guarantees of impartiality and independence and, in particular, was not protected from the direct or indirect influence of the Polish legislature and executive; among those factors, the Court criticised, in particular, the fact that the process for appointing judges to the Supreme Court, including the members of the Disciplinary Chamber, was essentially determined by the NCJ, which had been significantly reorganised by the Polish executive and legislature and whose independence could give rise to reasonable doubts.

41 . The CJEU also found that the disciplinary regime allowed the content of judicial decisions adopted by judges of the ordinary courts to be classified as a disciplinary offence; accordingly, it could be used in order to exert political control over judicial decisions or to exert pressure on judges with a view to influencing their decisions, and could undermine the independence of the courts concerned.

42 . Article 241 § 1 of the Criminal Code provides as follows:

“1. Whoever publicly disseminates, without permission, information from an investigation before they have been disclosed in court proceedings shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.”

COMPLAINTS

43 . The applicant complains under Article 6 § 1 of the Convention that the decision to lift his immunity was taken by the Disciplinary Chamber, a body that did not satisfy the requirements of “an independent and impartial tribunal established by law”. The same decision resulted in his automatic suspension from official duties for an unspecified period of time. He claims that the criminal charge against him is baseless and relating to his judicial activity. In his view, the Disciplinary Chamber was established in flagrant breach of the domestic law since the judges of that Chamber had been appointed by the President of the Republic on the recommendation of the new NCJ, which, in turn, had been established contrary to the Constitution. In the latter respect, the applicant refers to the fact that judicial members of the NCJ were elected by the Sejm and not by their peers, and that the mandate of the previous judicial members had been unlawfully terminated.

44 . The applicant complains under Article 8 of the Convention that the decision to lift his immunity and the resultant suspension from official duties adversely affected his career and professional reputation and, in consequence, amounted to a breach of the right to respect for his private life. He relies on the Court ’ s judgment in Denisov v. Ukraine . Being a judge is a key element of the applicant ’ s identity and a vocation with which he fully identifies. The applicant also claims that he was in a state of permanent stress in the face of attacks by the authorities and the media that are associated with them. The Minister of Justice stated that “ Judge Tuleya has clearly breached the letter of the law and, according to the Criminal Code, this breach is a crime of disclosure of materials from the investigation without the prosecutor ’ s consent and, if we take the principle of equality before the law seriously, everyone must be held criminally accountable for breaching criminal law ”. The applicant claims to have regularly experienced acts of physical and verbal aggression in public which were motivated by the authorities ’ campaign against the judges.

45 . The applicant further alleges a breach of Article 10 of the Convention, referring to the case of Baka v. Hungary . In his view, the lifting of his immunity was closely related to his public statements, in which he criticised the so-called reform of the judiciary pursued by the authorities. The applicant claims that the interference with his rights under Article 10 did not pursue a legitimate aim and was not necessary in a democratic society. He submits that the sanctions imposed on him for his criticism of the authorities were designed to create a chilling effect on him, but also on other judges participating in public debate on judicial reform.

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 in so far as the applicant ’ s suspension from official duties is concerned (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. Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case in so far as the lifting of the applicant ’ s immunity is concerned?

3. Did the proceedings before the Disciplinary Chamber 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)?

4. Was the Disciplinary Chamber which dealt with the applicant ’ s case “an independent and impartial tribunal”, as required by Article 6 § 1 of the Convention?

Article 8

1. 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 18 November 2020 and on account of the alleged attacks on the applicant by the authorities and the media associated with them (see Denisov v. Ukraine ([GC] , no. 76639/11, 25 September 2018).

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

Article 10

1. Has there been an interference with the applicant ’ s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention (see Baka v. Hungary [GC], no. 20261/12, 23 June 2016)?

2. If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?