Published on 25 July 2022

FIRST SECTION

Application no. 32301/22 Krzysztof CHMIELEWSKI against Poland lodged on 4 July 2022 communicated on 7 July 2022

SUBJECT MATTER OF THE CASE

The applicant is a judge of the Warsaw Regional Court in the X th Criminal Appellate Division.

On 15 December 2021 the applicant, sitting in a single-judge formation, delivered a decision excluding another judge (A.S.-R.) from hearing a criminal case pending before the Warsaw Regional Court. The applicant relied on the fact that A.S.-R. had been appointed as judge of the Warsaw Regional Court following a recommendation of the National Council of the Judiciary (“the NCJ”) composed pursuant to the provisions 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 ).

Still on 15 December 2021 the Vice-President of the Warsaw Regional Court (who is also the deputy disciplinary officer for the judges of the ordinary courts) ordered a one-month immediate interruption in the applicant’s judicial functions, pursuant to section 130(1) and (3) of the Act of 27 July 2001 on the Organisation of Ordinary Courts ( ustawa z dnia 27 lipca 2001 – Prawo o ustroju sądów powszechnych; “the 2001 Act”).

On 5 January 2022 the deputy disciplinary officer charged the applicant with a disciplinary offence defined in section 107(1)(3) of the 2001 Act (contesting the validity of judicial appointment and the legitimacy of the constitutional organ of the State) in connection with his giving the decision of 15 December 2021. The deputy disciplinary officer further alleged that the applicant’s decision amounted to a criminal offence of abuse of power under Article 231 § 1 of the Criminal Code.

Still on 5 January 2022 the Disciplinary Chamber of the Supreme Court (“DCSC”), sitting at in camera session ( posiedzenie ) adopted a resolution (no. I DO 17/21) suspending the applicant in his judicial functions for the duration of the disciplinary proceedings and reduced his salary by 25%. The DCSC’s resolution was immediately enforceable and enforced.

The applicant’s lawyers appealed against the above resolution, but their appeals have not yet been examined. An in camera session was scheduled to that effect for 5 May 2022 but was ultimately cancelled.

The applicant complains under Article 6 § 1 of the Convention that the proceedings before the DCSC, a body that does not satisfy the requirements of an “independent and impartial tribunal established by law” were in breach of that provision. He maintains, referring to Reczkowicz v. Poland , that he was suspended in his judicial functions by the DCSC which lacked the attributes of a “lawful court”.

He also complains under Article 8 of the Convention that his arbitrary suspension adversely affected his professional reputation and, in consequence, amounted to a breach of the right to respect for his private life.

QUESTIONS TO THE PARTIES

Article 6 § 1

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 applicant’s suspension in judicial functions 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. Did the proceedings before the Disciplinary Chamber of the Supreme Court violate the applicant’s right to be heard by a “tribunal established by law”, as guaranteed by Article 6 § 1 of the Convention (see Reczkowicz v. Poland , no. 43447/19, §§ 225- 282, 22 July 2021)?

3. Was the Disciplinary Chamber of the Supreme Court which dealt with the applicant’s case an “independent and impartial tribunal”, as required by Article 6 § 1 of the Convention (see Reczkowicz , cited above, §§ 283-284)?

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, resulting from the resolution of the Disciplinary Chamber of the Supreme Court of 5 January 2022 (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? In particular, was the impugned interference “in accordance with the law”, having regard to the fact that the Disciplinary Chamber of the Supreme Court lacks the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1 (see Reczkowicz, cited above, §§ 225-282)? Which legitimate aim did it pursue?