Published on 10 May 2021

FIRST SECTION

Application no. 13278/20 Łukasz BILIŃSKI against Poland lodged on 23 November 2019 communicated on 30 April 2021

STATEMENT OF FACTS

1 . The applicant, Mr Łukasz Biliński, is a Polish national who was born in 1977. He is represented before the Court by Mr M. Pietrzak and Ms M. M ą czka-Pacholak, lawyers practising in Warsaw.

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

3 . In 2005 the applicant qualified as a prosecutor. Between 2006 and 2016 he practised as an advocate. On 3 February 2016 he was appointed a district court judge at the Warsaw- Śródmieście District Court (“the District Court”). The applicant was assigned to Criminal Division XI of that court, dealing exclusively with administrative offences ( wykroczenia ).

4 . Between 2018 and June 2019 the applicant examined a few hundred cases of administrative offences relating to the exercise of freedom of assembly and expression. He ruled, inter alia , in cases relating to counter ‑ demonstrations against the so-called “SmoleÅ„sk commemorative events” and demonstrations against the Government ’ s reforms of the judiciary. The applicant ’ s rulings attracted significant media and public interest. Among the rulings made by the applicant was, inter alia , a judgment acquitting members of the movement “ Obywatele Solidarni w Akcji (Citizens United in Action)” and “ Obywatele RP (Citizens of the Republic of Poland)” who had been charged with disrupting the SmoleÅ„sk commemorative event, a decision discontinuing a case against Mr W. Frasyniuk, a well-known political activist and a judgment acquitting persons who had obstructed a demonstration by an extremist right-wing organisation. In his rulings, the applicant referred to the constitutional and Convention standards of freedom of expression and assembly and pointed to the risks relating to the activities of extremist organisations promoting racism, xenophobia and homophobia. In a public debate the applicant ’ s rulings were perceived as unfavourable to the Government. The politicians of the ruling party criticised the applicant. The applicant was denigrated on social media and on the KastaWatch Twitter account which had used data originating from the Ministry of Justice.

5 . On 3 December 2018 and 18 January 2019 the applicant requested that the President of the District Court assign him to another criminal division of the court so as to enable him to deal with cases other than administrative offences.

6 . On 29 March 2019 the Minister of Justice issued an order abolishing Criminal Division XI of the Warsaw-Śródmieście District Court with effect from 1 July 2019.

7 . On 17 June 2019 the Vice-President of the District Court requested the Board ( Kolegium ) of the Warsaw Regional Court (a higher court) to give its opinion on the applicant ’ s transfer to Family and Juvenile Division III of the District Court in connection with the dismantling of Criminal Division XI. The applicant did not consent to his proposed transfer. On 17 June 2019 the applicant requested the Board to adjourn the examination of the case, which would enable him to present his observations.

8 . On 27 June 2019 the President of the District Court, Judge M.M., informed the applicant that, due to the closure of Criminal Division XI and the absence of the Board ’ s opinion concerning his transfer, he was to be assigned to the unit of administrative offences in Criminal Division V of that court with effect from 1 July 2019.

9 . On 2 July 2019 the Board decided to adjourn giving its opinion on the request for the applicant ’ s transfer to the Family and Juvenile Division until the Court of Justice of the European Union (“the CJEU”) had given a preliminary ruling in the joined cases A.K. and Others (nos. C-585/18, C ‑ 624/18 and C-625/18) concerning, inter alia , the independence of the National Council of the Judiciary (“the NCJ”).

10 . On 3 July 2019 the President of the Warsaw-Śródmieście District Court decided to assign the applicant to Family and Juvenile Division III of that court, with effect from 1 July 2019, in view of the closure of Criminal Division XI. The applicant submits that the decision did not specify legal grounds for the change in his assignment.

11 . On the same day the applicant wrote to the President of the District Court requesting an explanation of the decision on his transfer which, in his view, was in manifest breach of section 22a §§ 1 and 4 of the Act of 27 July 2001 on the Organisation of the Ordinary Courts ( ustawa z dnia 27 lipca 2001 r. Prawo o ustroju s ą d ó w powszechnych ; “the 2001 Act”) applicable at the relevant time. He also pointed out that a decision on the change in the assignment of a judge could not be taken without an opinion of the Board, and that in his case the Board had adjourned giving its opinion.

12 . On 10 July 2019 the applicant lodged an appeal against the decision on the change of his assignment with the NCJ. He alleged:

1) a manifest breach of section 22a §§ 1 and 4 taken in conjunction with section 31 § 1(4) of the 2001 Act in that a decision on his transfer had been taken without having obtained a mandatory opinion of the Board of the Regional Court;

2) a breach of section 22a §§ 1 and 4c of the 2001 Act by having disregarded the statutory criteria of the length of service and specialisation of a judge, which amounted to a breach of Article 6 § 1 of the Convention in the proceedings which were of a quasi-disciplinary nature;

3) a breach of Article 178 § 1 of the Constitution, Article 47 of the Charter of Fundamental Rights and Article 6 § 1 of the Convention in that the decision on his transfer had infringed his judicial independence and the prohibition of arbitrary transfer of a judge from one section to another.

13 . The applicant requested the NCJ to adjourn the examination of his appeal until the CJEU had given a preliminary ruling in the case mentioned above. He also requested that Judge M.M., the President of the Warsaw ‑ ÅšródmieÅ›cie District Court, and the member of the NCJ be excluded from the examination of his appeal by the NCJ.

14 . On 15 and 16 July 2019 the applicant ’ s lawyers requested permission for them and the applicant to attend a session of the NCJ at which the applicant ’ s appeal would be examined. They also requested access to the case file. The NCJ replied that it had not decided to summon the appellant or his representative to take part in the session.

15 . On 18 July 2019 the Commissioner for Human Rights requested that the President of the Warsaw-Śródmieście District Court explain the reasons justifying the applicant ’ s transfer to the Family and Juvenile Division.

16 . On 24 July 2019 the applicant ’ s lawyer informed the NCJ that on 22 July 2019 the President of the Warsaw Regional Court had quashed the decision of 3 July 2019 on the change in the applicant ’ s assignment. She submitted that, in those circumstances, the proceedings concerning the appeal against this decision were devoid of purpose.

17 . On 25 July 2019 the applicant ’ s lawyer asked the NCJ that judges M.N. and R.P., members of the NCJ, be withdrawn from the examination of the applicant ’ s appeal on account of their statements made on the internet portal sedziowie.net. In those statements judges M.N. and R.P presented their views on the statutory conditions justifying a transfer of a judge from one division to another.

18 . On 25 July 2019 the NCJ adopted a resolution dismissing the applicant ’ s appeal on the basis of section 22a § 5 and 6 of the 2001 Act. The resolution was served on the applicant ’ s lawyer on 31 July 2019. It did not include any reasons or information on the NCJ ’ s composition in which the resolution had been adopted. It appears that the NCJ disregarded the President of the Warsaw Regional Court ’ s decision of 22 July 2019 quashing the decision under appeal of 3 July 2019.

19 . On 26 July 2019 the President of the Warsaw Regional Court informed the applicant that on 22 July 2019 she had quashed the decision of 3 July 2019 on the change of his assignment. She found that this administrative act had been taken without a mandatory opinion of the Board of the Regional Court, contrary to Article 22a § 1 of the 2001 Act, and as such had been unlawful. The decision of 22 July 2019 was immediately communicated to the President of the Warsaw-Śródmieście District Court.

20 . On 26 July 2019 the President of the Warsaw-Śródmieście District Court applied to the President of the Warsaw Court of Appeal to have the quashing decision of 22 July 2019 set aside. On 16 September 2019 the President of the Warsaw Court of Appeal informed him that there were no legal grounds for setting aside the quashing decision of 22 July 2019. In a letter of the same date addressed to the President of the Warsaw Regional Court, the President of the Warsaw Court of Appeal expressed her agreement with the former ’ s assessment of the President of the District Court ’ s failures.

21 . Despite the quashing of the applicant ’ s transfer to the Family and Juvenile Division, he has been de facto assigned there.

22 . On 9 October 2019 the applicant was informed of the composition of the NCJ that decided on his appeal after having filed a request for access to information under the relevant law. He was also informed that the three ‑ member panel that initially examined his appeal had been composed of Judges M.N., R.P. and Senator S.G.

23 . The following constitutional provisions are relevant in the context of the present case.

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.”

24 . 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.

25 . 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).

26 . 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.

27 . Section 22a of the 2001 Act stipulates, in its relevant part, that the President of a District Court, after having obtained an opinion of the Board of a relevant Regional Court, determines the assignment of judges to the divisions of a court and the scope of their duties having regard, inter alia , to their specialisation and caseload. The same section provides in paragraph 5 that a judge who was transferred to another division of a court may lodge an appeal with the NCJ. The NCJ ’ s decision on such appeal does not need to be reasoned and is not amenable to review (§ 6).

28 . Section 31 § 1(4) of the 2001 Act provides that the Board of a Regional Court gives opinions in matters concerning regional and district court judges.

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.”

36 . The Supreme Court ’ s judgment of 5 December 2019 contained extensive grounds and applied interpretation indications given by the CJEU in its judgment of 19 November 2019. 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).

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:

“31. ...

The Act of 8 December 2017 amending the Act on the NCJ terminated mandates of members of the NCJ referred to in Article 187 § 1 (2) of the Constitution elected in accordance with the previous provisions. The shortening of the terms of office of judges who were members of the NCJ on the date of entry into force of the amending legislation was justified by the need to ensure a collective term of office for all NCJ members; however, the amended Act on the NCJ provides for a situation in which the mandate of an NCJ member would expire before the end of the four-year term of office ..., which is contrary to Article 187 § 3 of the Constitution. Therefore, the argument justifying the amendment was false, and the NCJ term of office was terminated for other reasons.

New members of the NCJ were elected by the Sejm, in accordance with the Act on the NCJ as amended, which was contrary to Article 187 § 1 (2) of the Constitution. Having contested the premise of this provision, which required that judicial members of the NCJ were to be elected by judges, does not permit to indicate a State authority that could elect them. The Constitution does not establish a presumption in favour of the parliament ’ s competence. ...

The procedure for election of judges to the NCJ as established by the Act of 8 December 2017 amending the Act on the NCJ resulted in the judiciary losing any influence on the NCJ ’ s composition, and thus indirectly ... on the candidates proposed to the President for appointment to the office of judge .... The NCJ has been dominated by political appointees of the majority in the Sejm. ... Following the election of judges to the NCJ [by the Sejm], judges-members of the NCJ ceased to represent judges of the Supreme Court, judges of the ordinary courts, administrative courts and military courts, as required under Article 187 § 1 (2) of the Constitution.

...

The provisions of the Act of 8 December 2017 amending the Act on the NCJ regarding the election of judges to the NCJ are incompatible with the principle of separation and balance of powers (Article 10 § 1 of the Constitution), as well as with the principle of separation and independence of the courts (Article 173 of the Constitution) and independence of judges (Article 178) ... With regard to the NCJ, the principle of separation implies that the legislative and executive powers may influence the composition and functioning of the NCJ only to the extent expressly provided for by the Constitution (Article 187 § 1 (1 in fine ), (3) and § 4). Consequently, in determining the organisational structure, the scope of activity and procedures of work of the NCJ (Article 187 § 4 of the Constitution), the legislature cannot create its competence, unforeseen in the Constitution, to elect members of the NCJ from among judges, since the scope of its [the legislature ’ s] competence to appoint members of the NCJ was determined by the Constitution (Article 187 § 1 (3)).

In turn, the shortening of terms of office of previous members of the NCJ and the election of new members on the basis of the 2017 Amending Act raises significant objections as to its conformity with Article 187 §§ 1 and 3 of the Constitution, and consequently casts doubt on the legality of the NCJ and of the nomination procedure regarding candidates to the office of judge with the participation of the NCJ.”

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

43 . The applicant complains under Article 6 § 1 that his right to a fair hearing was not respected in the proceedings concerning his transfer from the Criminal to the Family Division of the Warsaw District Court. He complains, in particular, that:

a) the decision was taken in breach of the substantive and procedural requirements set out in Article 22a of the 2001 Act;

b) the principles of equality of arms and of adversarial and public procedure were not respected. The applicant was not heard in the proceedings and neither he nor his lawyers could participate in the proceedings before the NCJ;

c) the applicant had no possibility to ascertain the motives of the NCJ ’ s decision since it included no reasons;

d) judges R.P and M.N., members of the NCJ, who took part in the initial examination of his appeal in the NCJ, lacked impartiality on account of their statements on the portal sedziowie.net;

e) the NCJ was not an independent and impartial authority.

44 . The applicant also complains under Article 6 § 1 that the arbitrary and sudden decision on his transfer, taken without his consent and disregarding his specialisation, constituted a form of reprisal for his rulings. This decision constituted an interference with the applicant ’ s independence as a judge. It was taken by the President of the District Court, who had been appointed by the Minister of Justice, in reaction to rulings made by the applicant which had been perceived as unfavourable to the Government.

45 . The applicant complains under Article 6 § 1 that he had no possibility to contest the arbitrary decision of the NCJ on his transfer before an independent and impartial tribunal and that he did not have an effective remedy in this regard. In his view, the NCJ could not be considered an independent authority since it lacked independence from the executive and the legislature. He submits that his case touches on the general issue of ensuring appropriate substantive and procedural safeguards to protect judicial independence. The applicant asserts that the decision in his case could lead to a chilling effect on other judges adjudicating in politically sensitive cases.

QUESTIONS TO THE PARTIES

Article 6 § 1 (access to a court and fairness)

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case (cf. Baka v. Hungary [GC], no. 20261/12, §§ 104-105, 23 June 2016 and Paluda v. Slovakia , no. 33392/12, §§ 33-34, 23 May 2017?

2. If so, did the National Council of the Judiciary satisfy the requirements of independence and impartiality laid down in that provision?

3. Did the applicant have a fair hearing before the National Council of the Judiciary in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

4. Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

Article 6 § 1 – judicial independence

5 . Can Article 6 § 1 of the Convention be interpreted in such a way as to recognise a subjective right for judges to have their individual independence safeguarded and respected by the State?

6 . If so, was the applicant ’ s independence respected by the State in the present case?