Published on 4 July 2022

FIRST SECTION

Application no. 18632/22 Tomasz Aleksander ZAWIÅšLAK against Poland lodged on 13 April 2022 communicated on 13 June 2022

SUBJECT MATTER OF THE CASE

The applicant is a judge of the Wrocław-Śródmieście District Court.

Since 2016 he has been a member of the management board of the Polish Judges’ Association Iustitia, the largest association of judges in Poland, engaged in the defence of the rule of law. The applicant participated in numerous activities of the association, such as preparation of its legal opinions on the Government’s drafts concerning the reorganisation of the judiciary. He repeatedly expressed solidarity with judges intimidated for defending the rule of law and signed petitions calling on the Government to implement the rulings of the CJEU concerning the independence of the judiciary.

On 17 September 2020 the applicant was involved in a traffic accident with a moped. The moped driver was taken to a hospital, but was discharged the following day with a few bruises and abrasions.

On an unspecified date the Internal Affairs Department of the State Prosecutor’s Office instituted investigation into the accident. The applicant claims that this Department was established for the sole purpose of prosecuting judges and prosecutors. In his opinion, there are strong indications that the charge pressed against him was intended to intimidate him and produce a chilling effect on him and other judges defending the rule of law.

On 10 February 2022 a prosecutor of the Internal Affairs Department of the State Prosecutor’s Office applied to the Disciplinary Chamber of the Supreme Court to have the applicant’s judicial immunity lifted. The prosecutor intended to charge the applicant with causing a traffic accident occasioning a health impairment lasting more than seven days (Article 177 § 1 of the Criminal Code).

By a letter of 18 March 2022 the applicant was notified that a session before the Disciplinary Chamber in his case was fixed for 8 April 2022. He requested to be granted access to the case file and on 6 April 2022 he was informed that his request was allowed. On 8 April 2022 the Disciplinary Chamber refused the applicant’s request to adjourn the session on the grounds that the applicant had not had sufficient time to prepare his case. Following a subsequent request of the applicant’s lawyers to exclude judges of the Disciplinary Chamber who were to hear the case, the hearing was postponed to 19 April 2022.

On 13 April 2022 the applicant requested the Court to apply an interim measure in his case pursuant to Rule 39 of the Rules of Court. On 14 April 2022 the Court decided to indicate to the Government that they should ensure that no decision regarding the applicant’s judicial immunity was taken by the Disciplinary Chamber of the Supreme Court until 4 May 2022. On 19 April 2022 the Disciplinary Chamber adjourned the hearing.

On 26 April 2022 the Court decided to apply an interim measure indicating to the Government that, in the interests of the parties and the proper conduct of the proceedings before the Court, the respondent State should ensure that the proceedings concerning the lifting of the applicant’s judicial immunity, which are currently pending before the Disciplinary Chamber of the Supreme Court, comply with the requirements of “fair trial” as guaranteed by Article 6 § 1 of the Convention, in particular the requirement of an “independent and impartial tribunal established by law” (see Reczkowicz v. Poland , judgment of 22 July 2021, §§ 225-284) and that no decision in respect of the applicant’s immunity be taken by the Disciplinary Chamber until the final determination of the applicant’s complaints by the Court.

The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning the lifting of his immunity are conducted before the Disciplinary Chamber of the Supreme Court, a body that does not satisfy the requirements of “an independent and impartial tribunal established by law”. He relies, inter alia , on the Court’s judgment in Reczkowicz v. Poland (no. 43447/19, 22 July 2021).

The applicant further alleges that he was not granted access to the case file sufficiently in advance and thus could not prepare his case.

The applicant also complains under Article 8 of the Convention that his arbitrary and prolonged prosecution by the Internal Affairs Department of the State Prosecutor’s Office has adversely affected his professional reputation and 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 head applicable to the proceedings in the present case considering that the applicant’s suspension from official duties is the potential consequence of the lifting of his immunity (see Baka v. Hungary [GC], no. 20261/12, §§ 104-105, 23 June 2016 and Paluda v. Slovakia , no. 33392/12, §§ 33-34, 23 May 2017; Camelia Bogdan v. Romania , no. 36889/18, § 70, 20 October 2020; and Grzęda v. Poland [GC], no. 43572/18, §§ 265-327, 15 March 2022)?

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

3. Have the proceedings before the Disciplinary Chamber of the Supreme Court violated 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)?

4. Has the applicant had a fair hearing before the Disciplinary Chamber of the Supreme Court in accordance with Article 6 § 1 of the Convention? Reference is made to the assertion that the applicant was not granted access to the case file sufficiently in advance and thus could not prepare his case.

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 on account of the investigation caried out by the Internal Affairs Department of the State Prosecutor’s Office and the subsequent application for the lifting of the applicant’s immunity (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?