Published on 29 March 2021

FIRST SECTION

Application no. 28061/17 Krzysztof KIEŁB against Poland lodged on 31 March 2017 communicated on 9 March 2021

STATEMENT OF FACTS

The applicant, Mr Krzysztof Kiełb , is a Polish national, who was born in 1976 and lives in Słupsk .

The circumstances of the case

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

On 26 June 2007 the applicant was nominated as judge in the Miastko District Court.

On 14 September 2011 he was nominated President of the Miastko District Court.

Pursuant to section 26 (3) of the Organisation of Courts Act ( Prawo o ustroju sądów powszechnych ) of 27 July 2001, the term of a president of a district court shall last four years.

The applicant ’ s term of office started on 1 October 2011.

On that date, he started receiving a duty allowance for a sum equal to 0.37 of a basic salary of a judge.

On 26 April 2012 the applicant was also nominated as president of his court ’ s civil section. His term of office was due to end on 30 September 2015.

On 31 December 2012 this court stopped operating by virtue of the ordinance issued by the Minister of Justice on 5 October 2012. The ordinance in question regulated the shutting down of a number of district courts.

In 2015 the Miastko District Court was re-opened.

The applicant was not reinstated in his post of president.

On 13 November 2012 the Minister of Justice issued a decision transferring the applicant to the Słupsk District Court, starting on 1 January 2013. This decision did not include the applicant ’ s terms as the court ’ s president.

On 18 January 2013 the applicant appealed to the Supreme Court against the decision transferring him to the Słupsk District Court. In his appeal, the applicant argued in particular that his transfer had been ordered by a minister acting beyond his powers and in breach of the constitutional principle of irrevocability of judges, had caused a reduction in his remuneration and had been decided without the applicant ’ s consent.

On 25 February 2015 he lodged a complaint about the unreasonable length of these proceedings, pending before the Supreme Court.

On 15 April 2015 the Supreme Court (case no. IV CSP 1/15) dismissed his complaint. The court held that a legal question had been submitted to the Constitutional Court which led to the adjournment of the hearing in the applicant ’ s case.

On 27 July 2016 the Supreme Court, having linked the applicant ’ s case with similar cases of 274 judges, quashed the decision of 13 November 2012 on the applicant ’ s transfer (case no. III KRS 46/12). The Supreme Court held that the Minister of Justice had not acted in accordance with the law.

By letter of 14 December 2012, the President of the Gdańsk Appellate Court declared that the decision nominating the applicant as court ’ s president had expired in light of the Minister of Justice ’ Ordinance of 5 October 2012. As a result the payment of his duty allowance had been discontinued.

No appeal lay against that decision.

On 6 May 2015 the Minister of Justice issued a new decision, by virtue of which the applicant was transferred back to the Miastko District Court, starting on 1 July 2015. This decision made no mention of the applicant ’ s reinstatement in his post of the court ’ s president.

The applicant lodged an interlocutory appeal against that decision and asked that the proceedings be stayed until the completion of his case, no. III KRS 92/13.

On 27 July 2016 the Supreme Court dismissed this interlocutory appeal (served on the applicant on 4 October 2016). The court found that by issuing the new decision, the Minister of Justice had actually reinstated the applicant in his original place of work, as determined in the applicant ’ s judicial nomination by the President of Poland.

The applicant formulated an appeal, essentially arguing that the decision on his transfer back to the Miastko District Court should not have been taken while case no. III KRS 92/13 was still on-going. He also argued that he should have been reinstated in his office of court ’ s president.

On 26 January 2017 the Supreme Court (case no. III SO 8/16) rejected the applicant ’ s appeal on the grounds that no such remedy was set out in the law.

COMPLAINTS

The applicant invokes Articles 6 § 1 and 13 of the Convention.

He submits that the Minister of Justice – by means of shutting down the applicant ’ s court and ordering his transfer to another court – has effectively shortened the applicant ’ s term as district court ’ s president, in breach of section 26 (3) of the Organisation of Courts Act and Article 10 of the Polish Constitution (principle of separation of powers).

The applicant also complains that a breach of his rights was not corrected by the Supreme Court ’ s judgments of 27 July 2016 issued in case no. III KRS 92/13 or in the case no. III KRS 57/15. Even though the first of these judgments found that the initial transfer had been unlawful and the second judgment validated the applicant ’ s transfer back to his original court, the applicant was not reinstated in his office of president.

The applicant further complains about the unreasonable length of the proceedings concerning his removal from office and his transfer to another court (case no. III KRS 92/13).

Lastly, in respect of case no. III KRS 57/15, the applicant asserts that he was denied access to an appellate jurisdiction to contest the premature reinstatement as a judge of the Miastko District Court. In the applicant ’ s view, this breached Article 78 of the Polish Constitution which guarantees a right to a second-instance appeal.

QUESTIONS TO THE PARTIES:

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, §§ 100-118, 23 June 2016)? In particular, did the applicant have a “civil right” within the meaning of Article 6 § 1 of the Convention?

2. If so, 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?

3. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention in relation to the early termination of his mandate?