Published on 25 July 2022

FIRST SECTION

Application no. 37483/20 Andrzej KIEŁTYKA against Poland and 3 other applications (see list appended) communicated on 6 July 2022

SUBJECT MATTER OF THE CASES

The applicants are prosecutors or retired prosecutors. On dates indicated in the appended table they were subject to disciplinary investigation in connection with various charges. The Disciplinary Court at the Prosecutor General gave rulings in their cases. The applicants lodged appeals with the Supreme Court. The Disciplinary Chamber of the Supreme Court agreed on prosecution of the applicants on criminal charges or upheld a disciplinary sanction imposed at the earlier stage of the proceedings.

All judges of the Disciplinary Chamber of the Supreme Court who dealt with the applicants’ cases were appointed by the President of Poland on 19 September 2018 upon the National Council of the Judiciary’s recommendation (resolution of 3 August 2018, no. 317/2018 ).

The applicants complain that the Disciplinary Chamber was not an “independent and impartial tribunal established by law,” in breach of Article 6 § 1 of the Convention.

In addition, the applicant in the case Gacek v. Poland , (no. 8050/21) complains under Article 8 that his right to respect for his private life was violated in that the lifting of his immunity by the Disciplinary Chamber adversely affected his professional reputation.

QUESTIONS TO THE PARTIES

All cases

1. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings complained of?

2. Was the Disciplinary Chamber of the Supreme Court which dealt with the applicants’ cases an “independent and impartial tribunal established by law,” as required by Article 6 § 1 of the Convention?

Reference is made to the Court’s judgments in Reczkowicz v. Poland , no. 43447/19, 22 July 2021 §§ 225-284 and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020, §§ 205-290.

Additionally in case of Gacek v. Poland (8050/21)

3. 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 on account of the Disciplinary Chamber’s resolution of 22 July 2020?

4. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

APPENDIX

List of cases

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

Subject and summary of domestic proceedings

1.

37483/20

Kiełtyka v. Poland

14/08/2020

Andrzej KIEŁTYKA 1953 Przysieki Polish

The applicant is a retired prosecutor. On an unspecified date the Disciplinary Officer of the Prosecution Service ( Rzecznik Dyscyplinarny ) instituted disciplinary proceedings against him in connection with an incident when the applicant allegedly refused to pay some 12 Polish zlotys (PLN) to a taxi driver and had been aggressive. During the proceedings the parties reached a plea bargain and on 14/11/2019 the Disciplinary Chamber of the Supreme Court accepted it in a judgment (the sanction of suspension of valorisation of pension for 1 year). The Prosecutor General appealed.

On 21/07/2020 the Disciplinary Chamber of the Supreme Court amended the first instance judgment of 14/11/2019 and deprived the applicant of his retired prosecutor’s pension rights (case no. II DSK 1/20). It sat as a panel of three judges composed of judges K.W. and R.W. and a lay judge. On 14/07/2020 the applicant had requested written reasons be prepared but has not received them to date.

2.

42632/20

Kapliński v. Poland

10/09/2020

Wojciech KAPLIŃSKI 1971 Białystok Polish

Michał Adam SYKAŁA

The applicant is a prosecutor at the Institute of National Remembrance (“IPN”). The Disciplinary Court for IPN Prosecutors allowed for his prosecution on charges of fraud and suspended him in his functions. The applicant appealed. On 6/03/2019 the Disciplinary Chamber of the Supreme Court upheld the decision.

Afterwards, the IPN applied to the Disciplinary Court for IPN Prosecutors to decrease the applicant’s remuneration during his suspension. On 3/09/2019 the Disciplinary Court for IPN Prosecutors decided to reduce the applicant’s renumeration by 50%. The applicant appealed.

On 10/12/2019 the Disciplinary Chamber of the Supreme Court dismissed his appeal (case no. II DO 34/19). It sat as a panel of three judges composed of judges R.W. and A.T. and a lay judge. The decision was notified to the applicant on 13/12/2019.

3.

8050/21

Gacek v. Poland

18/01/2021

Józef GACEK Warszawa Polish

Tomasz Tadeusz KONCEWICZ

The applicant is a public prosecutor who in 2012 had investigated the 2010 plane crash in Smoleńsk.

On 11/07/2019 the Radom Regional Prosecutor requested the Disciplinary Court at the Prosecutor General to allow prosecution of the applicant under several charges of abuse of power proscribed by Article 231 of the Criminal Code (in connection with investigative decisions taken by him). On 6/11/2019 the Disciplinary Court at the Prosecutor General gave a resolution in which it held not to allow the prosecution of the applicant. The Radom Regional Prosecutor appealed.

On 22/07/2020 the Disciplinary Chamber of the Supreme Court altered the resolution and allowed the criminal prosecution of the applicant (resolution notified to the applicant on 17/08/2020, case no. II Do 10/20). It sat as a panel of three judges R.W., A.T. and K.W.

The applicant appealed against this resolution. On 14/12/2020, the Disciplinary Chamber left it without examination as not provided by law. The applicant also requested that all judges of the Disciplinary Chamber be disqualified from the examination of the case – this motion was left without examination on 8/10/2020 by the Chamber of Extraordinary Review and Public Affairs of the Supreme Court.

On 20/11/2020 the applicant was charged with the offence of abuse of power and the criminal proceedings against him are pending.

4.

35463/21

Poręba v. Poland

23/06/2021

Józef PORĘBA 1957 Grybów Polish

The applicant is a retired prosecutor. On 11 March 2020 the Disciplinary Court at the Prosecutor General convicted the applicant in disciplinary proceedings for driving under influence of alcohol (he had previously been convicted in criminal proceedings). The applicant was found guilty and deprived of his retried prosecutor’s status and pension.

On 12/01/2021 the Disciplinary Chamber of the Supreme Court dismissed the applicant’s appeal (case no. II DOW 18/21/p). It sat as a panel of three judges composed of judges R.W. and K.W. and a lay judge.