Communicated on 23 April 2015

FOURTH SECTION

Application no. 965/12 Remigiusz GUZ against Poland lodged on 6 December 2011

STATEMENT OF FACTS

The applicant, Mr Remigiusz Guz , is a Polish national, who was born in 1973 and lives in Wodzisław Śląski .

The circumstances of the case

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

1. The applicant ’ s candidature for the o ffice of a regional court judge

The applicant is a district court judge. In 2009 he applied for the offic e of a judge at the Gliwice Regional Court. On 9 February 2009 the President of the Gliwice Regional Court instructed a regional court Judge S.F.-P. to act as a judge controller ( sędzia wizytator ) and prepare a report on the applicant. The judge controller inspected the files of some cases decided by the applicant and spoke to his supervisors.

The judge controller submitted her assessment report on the applicant to the President of the Regional Court on 20 March 2009. In the conclusions of her report, she noted that no disciplinary proceedings had been instituted against the applicant. However, she co nsidered necessary to include a negative comment which had been made by the hierarchical superiors of the applicant (the President of the Wodzisław Śląski District Court and the President of the relevant division) on their relations with the applicant, in particular that he had failed to comply with their administrative orders ( zarz ą dzenia ). The judge controller ’ s overall assessment of the applicant ’ s work was good. However, she stated that it was premature to approve his candidature for the office of a regional court judge at this stage. The applicant needed to improve the efficiency of the proceedings, the stability of his decisions and to match his productivity with other judges in his division.

On 23 March 2009 the applicant received a copy of the report. A general assembly meeting of judges of the Gliwice Regional Court was scheduled for 27 March 2009.

On 25 March 2009 the Board of the Regional Court ( kolegium ) negatively assessed the applicant ’ s candidature (5 votes against, 2 abstaining).

On 26 March 2009 the applicant submitted to the President of the Gliwice Regional Court his written comments on the assessment report. It included the following statements: “the assessment of my work was made only superficially, in many cases unfairly and, unfortunately, also tendentiously” (“ ocena mojej pracy zosta ł a dokonana jedynie pobie ż nie , w wielu wypadkach nierzetelnie i , niestety , r ó wnież tendencyjnie ” ); “to allege that I was insubordinate is not serious, and the origin of these allegations is solely personal despite what is being claimed by the controller. Specifically they are related to events occurring in 2003 and 2004 when I was assigned duties in the enforcement section, probably without a prior decision of the Board. The scale of negligence which I encountered there was such that it should be assessed from the angle of disciplinary or even criminal responsibility.” (“ stawianie mi zarzutu niesubordynacji jest niepoważne, a jego źródła, wbrew temu co twierdzi opiniująca, maj ą charakter wyłącznie osobisty. Konkretnie zaś datują się na rok 2003 i 2004, kiedy przydzielono mi, prawdopodobnie bez uprzedniej decyzji kolegium, obowiązki w sekcji wykonawczej. Skala zaniedbań, z jak ą się tam spotkałem, kwalifikowała je do rozpoznania nie tylko pod k ą tem odpowiedzialności dyscyplinarnej, ale wręcz karnej ”.). The applicant also presented his comments on specific cases mentioned in the assessment report.

Having regard to the applicant ’ s ’ written comments, the Board of the Regional Court met again on 27 March 2009. The judges - members of the Board took note of the applicant ’ s comments and heard the views of the judge controller. In the second vote, the applicant received 6 votes against and 1 abstaining.

On 27 March 2009 the General Assembly meeting of judges of the Gliwice Regional Court ’ s jurisdiction was held. The applicant maintained his written comments on the assessment report. In response to a question as to what extraneous factors influenced the assessment report, he replied that those could have been the interpersonal relations at the Wodzisław Śląski District Court. During the vote the applicant received 6 votes for, 86 votes against and 9 votes abstaining.

On 25 May 2009 the Minister of Justice positively assessed the applicant ’ s candidature and transmitted it to the National Council of the Judiciary (“the NCJ”; Krajowa Rada Sądownictwa ).

On 22 June 2009 the National Judiciary Council decided not to transmit the applicant ’ s candidature for the office of a regional court judge to the President of the Republic. The applicant appealed against this decision. He submitted that the NCJ had not properly assessed his candidature. In this respect he stated:

“It was so despite the fact that the candidate [the applicant] made a number of critical remarks about the assessment report prepared by the judge controller S.F.-P. which served as a basis for the decisions of the Board and the General Assembly m eeting [of the Regional Court]. Regardless of the fact that the assessment report had included many false data it was not verified and the N CJ , as it transpires from the reasoning, did not consider this issue.”

On 6 November 2009 the Supreme Court dismissed the applicant ’ s appeal.

2. Disciplinary proceedings against t he applicant

On 22 October 2010 the Disciplinary Attorney of the Gliwice Regional Court ( Rzecznik Dyscyplinarny ) instituted disciplinary proceedings against the applicant. The applicant was charged with three disciplinary offences of having dishonoured the dignity of the office of a judge ( uchyb ienie godności urzędu sędziego ) specified in section 107 § 1 of the Organisation of Courts Act ( Prawo o ustroju sądów powszechnych ; “the 2001 Act”) . Firstly, the Disciplinary Attorney alleged that in his written comments the applicant had imputed that the judge controller had tendentiously assessed his work. Further, he imputed that Judge M.O., the President of the Wodzisław Śląski District Court, and Judge K.G.-G., the President of the VIth Division, had informed the judge controller about untrue cases of the applicant ’ s failure to respect administrative orders. In addition, the applicant imputed that Judges I.H. and E.T. had committed criminal and disciplinary offences in failing to supervise the enforcement section. Secondly, the Disciplinary Attorney alleged that during the General Assembly meeting of the judges on 27 March 2009 the applicant had maintained his allegations made in his written comments and that, in addition, he had imputed that judge controller had been motivated by extraneous (not-merit-based) factors in her assessment of the applicant ’ s work. Thirdly, the Disciplinary Attorney alleged that in his appeal against the NCJ ’ s decision the applicant had imputed that the judge controller had used false data in her assessment report.

The case against the applicant was examined by the Katowice Court of Appeal sitting as a Disciplinary Court.

The applicant submitted that the institution of disciplinary proceedings against him was meant to send a signal that criticism of senior judges would not be tolerated. However, such actions violated his freedom of expression. The applicant averred that in his professional life he had always acted honestly and because of that he could not remain silent when the assessment of his work had been based on inaccurate data. In his report, the controller criticised the applicant for a failure to comply with administrative orders but had not given him a possibility to express his position on the remarks made by the President of the District Court and the President of the Division even though the principle of objectivity would have required her to do so. The term “tendentious” used in his written comments meant a one ‑ sided presentation of his alleged failings. The term “false data” from his appeal against the NCJ ’ s decision meant erroneous conclusions included in the assessment report which did not take proper account of the number of cases assigned to the applicant.

On 31 March 2011 the Disciplinary Court gave judgment. The applicant was convicted of having dishonoured the dignity of the office of a judge on three occasions in that he lacked objectivity and required moderation in formulating his views. The conviction concerned (1) the applicant ’ s written comments contesting the assessment report in respect of his work and cooperation with his supervisors; (2) his oral submissions made at the plenary meeting of 27 March 2009 in which he had maintained his written comments and (3) his appeal against the NCJ ’ s decision and the assessment made therein of the judge controller ’ s work. The Disciplinary Court sentenced the applicant to a censure ( kara upomnienia ).

The Disciplinary Court found that the evidence obtained in the case confirmed the disciplinary offences of which the applicant was convicted. The Disciplinary Court did not have the competence to determine the accuracy of the assessment report and therefore it dismissed the applicant ’ s requests to adduce evidence with a view to challenging the findings made in the report. It admitted that the report contained certain minor inaccuracies; however, they did not affect the soundness of the report ’ s conclusions. On the basis of the applicant ’ s personal file and the evidence of Judge M.O., the President of the District Court at the relevant time, the Disciplinary Court found that the relationship between the applicant and his superiors had not been easy. The applicant accepted only written communications in work ‑ related matters, no matter how ordinary.

With regard to the merits, the Disciplinary Court noted that the dignity of the office of a judge manifested itself in the judge ’ s ability to remain faithful to his judicial oath, retain unblemished character and avoid anything which could bring disrepute to the office (cf. the Supreme Court ’ s judgment of 23 January 2008, case no. SNO 89/07). Referring to § 2 of the Code of Professional Ethics of the Judges enacted by the NCJ, the court observed that a highly inappropriate behaviour of a judge towards other judges, including towards a judge controller who prepared an assessment report, could dishonour the dignity of a judge because the professional ethics required restraint in expressing one ’ s emotions. It was true that a judge could not be constrained in expressing his view; however, he had to express his view at an appropriate place, in a moderate manner and without excessive expressiveness so as to not expose other persons to lowering their esteem and dignity.

With regard to Article 10 of the Convention, the Disciplinary Court noted that a judge ’ s statement violating the reputation or dignity of other judges could be justified only if it pursued a pressing social interest. However, there was no such interest in the applicant ’ s comments. T he Disciplinary Court further established that the applicant ’ s comments constituted value judgments (“superficial, inaccurate, tendentious assessment”; “using many false data”) which had not had a sufficient factual basis and consequently they infringed the personal rights of the judge controller. It underlined that every judge, and in particular a judge who applied for appointment to a higher judicial office, should display tact, moderation and objectivity in formulating his remarks on the report assessing his work.

The Disciplinary Court found that the applicant ’ s allegation that the assessment of his work had been “tendentious” should be considered as lacking in objectivity and required moderation. Such allegation infringed the reputation of the judge controller and amounted to a disciplinary offence of dishonour to the dignity of the office. The same held true for the allegation that the negative assessment of the applicant ’ s relationship with his superiors had been motivated by personal interests. The second of the applicant ’ s reprehensible acts consisted of sustaining these allegations at the general assembly of the judges. The third reprehensible act concerned the phrase “used many false data” included in his appeal against the NCJ ’ s decision which the Disciplinary Court considered excessive and lacking a factual basis.

In each of these three situations the applicant commented on the assessment report in the manner which lacked objectivity and required modera tion. The allegations raised by the applicant had to be considered as a dishonour to the dignity of the office since the applicant, being a judge, was required to respect the authority of the judiciary and generally exercise his office in a dignified manner, while he failed to display an appropriate moderation in his comments and violated the personal rights of others.

The Disciplinary Court sentenced the applicant to a censure which was the most lenient penalty provided for by law. It had regard to the fact that the degree of harmfulness of his act was not significant.

The applicant appealed. He argued, inter alia , that his comments on the assessment report had not amounted to a disciplinary offence of dishonouring the office of a judge because his comments had had a sufficient factual basis and been motivated by public interest.

On 20 July 2011 the Supreme Court, sitting as a Disciplinary Court, dismissed the applicant ’ s appeal.

The Supreme Court noted that a judge should have an unblemished character (section 61 of the 2001 Act) as well as should act in accordance with the judicial oath and avoid anything which could dishonour the dignity of a judge (sections 82 and 66 of the 200 1 Act). The judicial oath had a substantive meaning and should be treat ed with all solemnity because a judge could be held responsible for acts which were contrary to it. The concept of “unblemished character” was not statutorily defined, but it was described in the case ‑ law and the legal doctrine as intellectual quality and high moral character. One of the basic duties of a judge was the duty to respect the rules of decency ( dobre obyczaje ) and the authority of the judiciary ( § 2 and 4 of the Code of Professional Ethics respectively). The Supreme Court noted, referring to its previous case ‑ law, that a judge who formulated critical remarks addressed to other judges, and in particular, judges mores senior to him, should have done so in a tactful, moderate and dispassionate manner. In this respect, for the purposes of the assessment of the applicant ’ s behaviour towards the judge controller, it was not relevant whether the assessment report had been accurate. The relevant issue to consider was whether in commenting on the report the applicant had acted honourably and in a manner respecting the accepted rules.

The Supreme Court established that the assessment of the applicant ’ s behaviour in this context had to be negative. The words used by the applicant in respect of a more senior judge, in particular the words “inaccurate, tendentious, superficial, false” carried a significant pejorative connotation. The Supreme Court found that the applicant had abused his freedom of expression and the standards of judicial decency, and thus undermined the interests of the administration of justice. The applicant ’ s comments infringed the reputation of the judge controller and undermined his professional standing. Such comments made in public (at the General Assembly meeting and in an appeal to the NCJ and to the Supreme Court) could not be left without reaction from the judiciary. The Supreme Court noted that the applicant could present his comments to the assessment report but was required to do so in a dispassionate manner free from personal comments about the judge controller. It found that the applicant ’ s act was harmful to the judiciary, its image and was damaging to the relations within the judiciary. It further breached the judicial oath and the rules of professional ethics, and thus made out the disciplinary offence specified in section 107 of the 2001 Act.

On 17 November 2011 the applicant filed a constitutional com plaint. He alleged that section 107 § 1 of the 2001 Act, in part concerning responsibility for dishonouring the dignity of the judicial office, was incompatible with Article 54 § 1 of the Constitution (freedom of expression). The applicant argued that he had exercised his freedom of expression in submitting his written comments on the assessment report. His comments were exclusively related to the assessment of his work and did not infringe the rights of the judge controller. The applicant submitted that for the Supreme Court the protection of the judiciary was more important in the case where a judge had made an erroneous assessment of a candidate for judicial office. He maintained that his comments pursued public interest and were motivated by the need to ensure fairness of the promotion procedures in the judiciary. The applicant also invoked the Court ’ s case-law under Article 10 of the Convention.

Secondly, the applicant claimed that section 107 § 1 of the 2001 Act was incompatible with Articles 42 § 1 of the Constitution ( n ullum crimen sine lege ). He maintained that section 107 § 1 did not clearly define the offence of dishonouring the dignity of the judicial office and, in particular, that the term “dignity of the office” was overbroad and ambiguous.

On 7 March 2013 the Constitutional Court refused to entertain the constitutional complaint. The applicant appealed. On 6 May 2013 the Constitutional Court dismissed the applicant ’ s interlocutory appeal.

COMPLAINTS

The applicant alleges a violation of Article 10 of the Convention. He complains that he was sanctioned in disciplinary proceedings even though his comments on the assessment report were moderate and respectful. He exercised his right to comment because the report contained an inaccurate assessment of his work and pursued public interest in defending fair rules in the process of promotion of judges. He further complains that the interference with his freedom of expres sion was disproportionate. As a result of the disciplinary proceedings the applicant ’ s prospects of promotion were stalled and his salary was reduced. He disagreed that his comments were harmful to the judiciary because he had raised them only internally.

QUESTION S TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the constitutional complaint an effective remedy within the meaning of this provision in respect of the applicant ’ s complaint under Article 10 of the Convention?

2. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention?