Published on 14 December 2022

FIRST SECTION

Application no. 39471/22 Ewa LESZCZYŃSKA-FURTAK against Poland and 2 other applications (see list appended) communicated on 6 December 2022

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix. They are represented before the Court by Mr P. Zemła, a lawyer practising in Warsaw.

The circumstances of the case

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

3. The applicants are judges of the Warsaw Court of Appeal ( sąd apelacyjny ), with over twenty years of experience in criminal law. On various dates they sat on panels of the Criminal Division of that court which delivered judgments or rulings contesting the legitimacy of courts composed of judges appointed by the President of Poland pursuant to recommendations of the National Council of the Judiciary ( Krajowa Rada Sądownictwa , “the NCJ”) as established under the Act of 8 December 2017 Amending the Act on the NCJ and certain other acts ( ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ; “the 2017 Amending Act”). They also refused to sit in judicial formations with judges appointed pursuant to such recommendations.

4. The Warsaw Court of Appeal is the largest court of appeal in Poland (it currently has 99 judges). In July 2022 Mr Zbigniew Ziobro – the Minister of Justice, who is at the same time the Prosecutor General, nominated Judge Piotr Schab, who is also the Disciplinary Officer for Ordinary Court Judges ( Rzecznik Dyscyplinarny Sędziów Sądów Powszechnych ), as the new President of that court. Around the same time, the Minister nominated judge Przemysław W. Radzik, the Deputy Disciplinary Officer for Ordinary Court Judges ( Zastępca Rzecznika Dyscyplinarnego Sędziów Sądów Powszechnych ), as the Vice-President of that court.

5. On 19 July 2022 Judge Radzik, in his capacity as the newly appointed Vice-President of the Warsaw Court of Appeal, sent a letter to all judges of the Criminal Division of the Warsaw Court of Appeal, informing them of the need to reinforce the Labour and Social Security Division of that court and his intention to transfer there three judges from the Criminal Division. He asked for declarations of consent (or lack thereof) to be filed by 29 July 2022, indicating that the absence of such declaration would be considered an objection to the transfer.

6. On 28 July 2022 the second and third applicant submitted their declaration to President Schab, objecting to their transfer. They stated that there was little doubt that the three judges who were to be transferred were the applicants and that such measure would constitute an illegal reprisal for the contents of their judicial decisions and their consistent refusal to adjudicate in panels composed of judges appointed pursuant to recommendations of the NCJ. They further indicated that judges, such as they both, with over 20 years of experience in criminal law would be able to provide little support to a division dealing with cases examined in the civil procedure. Furthermore, they referred to the fact that the president of the Criminal Division had consistently described the human resources situation in his division as “catastrophic” and asked for additional 8-10 judges to be assigned to deal with the backlog. It was indicated that the delay in examining appeals in the Criminal Division was 11 months, including cases in which the accused were detained on remand.

7. It appears that the first applicant objected ipso facto , by not submitting any declaration.

8. On 5 August 2022 Judge Radzik (acting under the authority of the President of the Warsaw Court of Appeal) informed the first and the second applicants that, pursuant to a positive opinion of the Board of the Warsaw Court of Appeal ( Kolegium SÄ…du Apelacyjnego ; a body composed of presidents of courts of the Warsaw appellate jurisdiction, nominated by the Minister of Justice), they would be transferred to the Labour and Social Security Division as of 22 August 2022.

9. On 8 August 2022 the president of the Labour and Social Security Division informed Judge Schab that she had not requested that any additional judges be assigned to her division. She further indicated that the first and the second applicants were exceptional specialists in criminal law with no experience at all in labour and/or social security law.

10. On the same day 49 judges of the Warsaw Court of Appeal, along with 24 retired judges of that court and 30 sitting and/or retired judges of the Supreme Court ( Sąd Najwyższy ) published a statement objecting to the first two applicants’ transfer, which they considered to be a flagrant violation of the constitutional principles of irremovability and independence of judges. They described the said transfer as a sign of disrespect and an attempt to create a chilling effect on other judges. They further compared it to harassment faced by judges under the communist rule, who had been transferred from criminal divisions to social security and/or family law divisions for rendering judgments unfavourable to the communist government. The statement was later signed by some 1,000 Polish judges of all court levels.

11. On 9 August 2022 Judge Radzik informed the third applicant that she would be transferred to the Labour and Social Security Division as of 12 September 2022. The order was served on her on 5 September 2022, upon her return from leave.

12. On 10 August 2022 the first applicant was issued with a document certifying that since 5 April 2017 she had completed 1,210 criminal cases of all categories, drafted 91 statements of reasons for judgments and that all the 14 cassation appeals lodged against her judgments over that period had been dismissed by the Supreme Court.

13. On the same day the second applicant was issued with a document certifying that since 1 October 2014 she had completed 1,697 criminal cases of all categories, including 182 judgments given on appeal. In 36 of these cases cassation appeals were lodged, of which only 4 were allowed by the Supreme Court.

14. On 12 August 2022 the first and second applicants appealed against the order of 5 August 2022 to the NCJ. The appeal had no suspensive effect, hence both applicants were transferred to the Labour and Social Security Division on 22 August 2022.

15. On 12 August 2022 the President of the NCJ published a press release, informing that the Presidium of the NCJ ( Prezydium Krajowej Rady Sądownictwa ) considered that the transfer of the first and the second applicants did not require its urgent intervention as the information supplied by Judge Radzik suggested that the transfer was necessary to ensure the citizens’ right of access to a court and was justified by the interests of justice.

16. On 16 August 2022 the First President of the Supreme Court ( Pierwszy Prezes Sądu Najwyższego ), Judge Małgorzata Manowska, published a letter to Judge Schab, asking him to reconsider his decision to transfer the first and the second applicants, which – according to her – resulted in a justified protest of the judiciary and would be detrimental to the citizens seeking judicial protection in the courts. She stated that it was obvious that a judge who specialised in a certain area of law for many years must readapt him- or herself to adjudicate in a different field of law. This slowed down the adjudicating process and carried a risk of erroneous judicial decisions being made.

17. On 19 August 2022 Judge Schab replied (ref. no. Kd-10-143/22). He stated that the judges concerned had neglected their duties by contesting (in their declarations and judicial decisions) the legality of appointment of other judges, negating the constitutional order of Poland and undermining the President of Poland’s role in the process of appointing judges. Judge Schab concluded by stating that it was necessary to change the applicants’ working conditions in such a way as to eliminate the possibility of them adjudicating in panels composed of more than one judge.

18. On 12 September 2022 the third applicant appealed against the order of 9 August 2022 to the NCJ. On the same day her transfer to the Labour and Social Security Division became effective.

19. On 12 October 2022 the NCJ discontinued the proceedings initiated by the first and second applicants’ appeals and dismissed the appeal lodged by the third applicant. Its resolutions contained no reasoning.

20. On an unspecified date after the applicants’ transfer had become effective, four lower courts’ judges were seconded to adjudicate in the Criminal Division of the Warsaw Court of Appeal.

21. On 6 December 2022, the Court (the Chamber to which the cases had been allocated) decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Poland, under Rule 39 of the Rules of Court, that the respondent State suspend the effects of decisions to transfer the applicants from the Criminal Division to the Labour and Social Security Division of the Warsaw Court of Appeal and ensure that no decision to transfer the applicants to another division of the Warsaw Court of Appeal against their will is taken until the final determination of the applicants’ complaints by the Court.

RELEVANT LEGAL FRAMEWORK

22. The relevant legal framework is set out in the communicated case of Biliński v. Poland , no. 13278/20.

23. Further developments concerning the jurisprudence of the CJEU, in so far as relevant, were summarised in Advance Pharma sp. z o.o. v. Poland , no. 1469/20, §§ 207-222, 3 February 2022.

24. Section 22a of the Act of 27 July 2001 on the Organisation of Ordinary Courts ( ustawa z dnia 27 lipca 2001r. prawo o ustroju sądów powszechnych ; “the 2001 Act”) reads, in so far as relevant, as follows:

Ҥ 1. The president of the court of appeal in the court of appeal after consultation with the board of the court of appeal, the president of the regional court in the regional court after consultation with the board of the regional court, and the president of the district court in the district court after consultation with the board of the relevant district court, shall determine the division of activities, which shall specify:

1) the assignment of judges, assessors ( asesorzy ) and court officers ( referendarze sÄ…dowi ) to the divisions of the court,

2) the responsibilities of judges, assessors and court officers and the manner of their participation in the assignment of cases,

3) the schedule of duty and replacements of judges, assessors and court officers;

- taking into account the specialisation of judges, assessors and court officers in the recognition of particular types of cases, the need to ensure the proper distribution of judges, assessors and court officers in the divisions of the court and the even distribution of their duties, and the need to guarantee efficient court proceedings. ... § 4a. Transfer of a judge to another division requires the judge’s consent.

§ 4b. A judge’s consent is not required for transfer to another division if:

1) the transfer is to a division where cases of the same scope are heard;

2) no other judge in the division from which the transfer is made has consented to the transfer;

3) ...

... § 5. A judge or assessor whose division of duties has been changed in a way that results in a change in the scope of his duties, in particular transfer to another division of the court, may appeal to the National Council of the Judiciary within seven days of receiving the new scope of duties. An appeal is not allowed in the case of:

1) transfer to a division where cases of the same scope are heard;

2) assignment of duties in the same division under the rules applicable to other judges, in particular, cancellation of assignment to a section or other form of specialization.

§ 6. The appeal referred to in § 5 shall be filed through the president of the court that made the assignment of activities covered by the appeal. The president of the court shall forward the appeal to the National Council of the Judiciary within 14 days from the date of its receipt, together with his position on the case. The National Council of the Judiciary shall adopt a resolution accepting or dismissing the appeal of the judge, taking into account the considerations referred to in § 1. The resolution of the National Council of the Judiciary on the appeal referred to in § 5 does not require justification. The resolution of the National Council of the Judiciary is not subject to appeal. Until the resolution is adopted, the judge or assessor shall perform his or her previous duties.”

25. Section 15zzs 5 of the Act of 2 March 2020 on special arrangements related to the prevention, combatting and control of COVID-19, other infectious diseases and emergencies caused by them ( ustawa z dnia 2 marca 2020r. o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych ) reads:

“During the period of the state of epidemic emergency or state of epidemic declared due to COVID-19 and within one year after the last of them is revoked, the division of activities referred to in Article 22a of the Act of 27 July 2001 on the Organisation of Ordinary Courts may be determined before consulting the board of the competent court. An appeal against the decision on assignment of activities does not suspend its enforcement. If the appeal is upheld, the assignment of cases made before the resolution of the National Council of the Judiciary is delivered to the court shall remain in effect.”

COMPLAINTS

26. The applicants complain under Article 6 § 1 of the Convention about their inability to have recourse to judicial review concerning their transfer to another division of their court. They further complain about the unfairness of proceedings before the NCJ and its lack of independence and impartiality.

27. The applicants also complain under Article 8 § 1 of the Convention that their transfer to another division of the Warsaw Court of Appeal constituted an arbitrary interference with the applicants’ right to respect for private life, considering that they lack experience in hearing labour and social security disputes.

28. Lastly, the applicants complain under Article 4 § 2 of the Convention that their transfer amounted to compulsory labour and had not been based on meritorious grounds but on factors of political and personal nature and that they constituted a disguised form of persecution for their judicial decisions, which adversely affected their independence. They argue that it constituted a reprisal for the contents of their judicial decisions and declarations.

This complaint is to be characterised as falling within Article 18 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 124-125, 20 March 2018).

QUESTIONS TO THE PARTIES

Article 6 § 1 (access to a court and fairness)

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings concerning the applicants’ transfer (cf. Baka v. Hungary [GC], no. 20261/12, §§ 104-105, 23 June 2016; Bilgen v. Turkey, no. 1571/07, §§ 68-69, 9 March 2021 and Paluda v. Slovakia , no. 33392/12, §§ 33-34, 23 May 2017)?

2. If so, did the National Council of the Judiciary satisfy the requirements of independence and impartiality laid down in that provision (see Reczkowicz v. Poland , no. 43447/19, §§ 271-274, 22 July 2021 and Advance Pharma sp. z o.o v. Poland , no. 1469/20, §§ 316-318, 3 February 2022)?

3. Did the applicants have a fair hearing before the National Council of the Judiciary in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

4. Did the applicants have access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see , mutatis mutandis , Bilgen , cited above, §§ 92-96)?

Article 6 § 1 – judicial independence

5. Can Article 6 § 1 of the Convention be interpreted in such a way as to recognise a subjective right for judges to have their individual independence safeguarded and respected by the State?

6. If so, was the applicants’ independence respected by the State in the present case?

Article 8 § 1

1. Is Article 8 of the Convention applicable to the present case (see Denisov v. Ukraine [GC], no. 76639/11, §§ 95-114, 25 September 2018)?

2. If so, has there been an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention, on account of their transfer to the Labour and Social Security Division of the Warsaw Court of Appeal, without their consent?

3. In the affirmative, 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 applicants objected to them being transferred and the National Council of the Judiciary, which examined their appeals, lacked sufficient guarantees of independence from the legislature and the executive (see Reczkowicz , cited above, § 276)?

Article 18

Can it be said that the applicants’ transfers to the Labour and Social Security Division of the Warsaw Court of Appeal, purportedly taken in order to ensure the interests of justice and the citizens’ access to a court in accordance with Article 6 § 1 of the Convention, constituted measures applied for purposes other than those envisaged by this provision, contrary to Article 18 of the Convention (see, mutatis mutandis , Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 163 - 174, 15 November 2018)? Reference is made, in particular, to the contents of Judge Schab’s letter to the First President of the Supreme Court of 19 August 2022 (ref. no. Kd-10-143/22).

Decision to ask the Government for documents

The Government are also asked to produce a copy of minutes of the session of the National Council of the Judiciary of 12 October 2022, in so far as the examination of the applicants’ appeals against their transfer is concerned.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Nationality

Represented by

1.

39471/22

LeszczyÅ„ska ‑ Furtak v. Poland

16/08/2022

Ewa Izabela LESZCZYŃSKA ‑ FURTAK 1968 Polish

Piotr ZEMŁA

2.

39477/22

Gregajtys v. Poland

16/08/2022

Ewa Agata GREGAJTYS 1972 Polish

Piotr ZEMŁA

3.

44068/22

Piekarska-Drążek v. Poland

16/09/2022

Marzanna Anna PIEKARSKA-DRĄŻEK 1965 Polish

Piotr ZEMŁA