Published on 17 October 2022

FIRST SECTION

Application no. 41743/21 Remigiusz CHMIELEWSKI against Poland lodged on 11 August 2021 communicated on 30 September 2022

SUBJECT MATTER OF THE CASE

The applicant is a judge of the Olsztyn Regional Court. In 2017 the Szczecin Branch of the Commission for the Prosecution of Crimes against the Polish Nation ( Komisja Åšcigania Zbrodni przeciwko Narodowi Polskiemu ) instituted an investigation into the alleged communist crimes committed by the applicant in 1982 when he had served as a judge of the military court. The prosecutor alleged that the applicant had been a member of a three-judge formation of the military court in two cases in 1982 where that court convicted and sentenced two persons, the opponents of the communist regime, on political grounds.

In June 2019 the prosecutor of the Commission applied to the Disciplinary Court at the Szczecin Court of Appeal ( Sąd Dyscyplinarny przy Sądzie Apelacyjnym w Szczecinie ), asking that the applicant’s immunity be lifted with a view to charging him with criminal offences, namely unlawful deprivation of liberty and abuse of power (Articles 189 § 2 and 231 § 1 of the Criminal Code).

On 7 August 2019 the Disciplinary Court at the Szczecin Court of Appeal decided to lift the applicant’s immunity. It also suspended the applicant from his judicial duties and reduced his salary by 25% for the duration of the suspension. The applicant lodged an appeal.

On 7 July 2021 the Disciplinary Chamber of the Supreme Court, sitting as the second-instance disciplinary court in a formation of three judges, upheld the first-instance decision.

The applicant complains under Article 6 § 1 of the Convention that the decision on lifting his immunity was taken by a body that did not satisfy the requirements of an “independent and impartial tribunal established by law”.

QUESTIONS TO THE PARTIES

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

2. Did the proceedings before the Disciplinary Chamber of the Supreme Court violate 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 (see Reczkowicz v. Poland , no. 43447/19, §§ 225-284, 22 July 2021)? Reference is made to Article 181 of the Polish Constitution which stipulates that judge shall not be held criminally responsible “without prior consent granted by a court”.