Published on 28 November 2022

FIRST SECTION

Application no. 22591/22 Maciej FEREK against Poland lodged on 22 April 2022 communicated on 7 November 2022

SUBJECT MATTER OF THE CASE

The applicant is a judge of the Cracow Regional Court in I Civil Division.

In February 2021 the applicant was assigned, as rapporteur, to a three ‑ judge formation to examine an interlocutory appeal in case I C 1374/20. One of the three judges in the formation was Judge M.L., who had been appointed a judge of the Cracow 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. In this connection, the applicant decided to suspend the interlocutory appeal proceedings, having regard to a request for preliminary ruling submitted to the CJEU by Judge W. Å»urek of the Cracow Regional Court on the status of judges appointed following recommendations of the new NCJ (Case C ‑ 269/21).

On 20 September 2021 the applicant and ten other judges of the Cracow Regional Court signed a declaration addressed to the President of the Cracow Regional Court informing her that they refuse to adjudicate cases in formations including a judge who had been appointed following a recommendation of the new NCJ. In such cases they would suspend the proceedings or file a dissenting opinion, since – in their view – a judgment given with the participation of such a judge would violate Article 6 of the Convention as the authority giving it could not be considered an “independent and impartial tribunal established by law”. The applicant and other judges relied, inter alia , on Reczkowicz v. Poland judgment (no. 43447/19, 22 July 2021) and the Supreme Court’s judgment of 5 December 2019 (no. III PO 7/18). They also stated that the new NCJ was not properly established, it lacked independence and that the judicial appointments made on its recommendations were defective in the light of EU law, the Convention and the case-law of the Court and the CJEU.

On 11 October 2021 the applicant set aside a decision given by Judge M.L., sitting as the Cracow Regional Court in case I Cz 311/21.

On 21 October 2021 the applicant refused to append an enforcement clause to the judgment of the Cracow Regional Court (no. I C 2121/15) and the Cracow Court of Appeal. He found that the first-instance judgment was not final since the judgment of the Court of Appeal had been given with the participation of Judge W.Å». appointed to that court in the defective procedure involving the new NCJ.

On 22 October 2021 the President of the Cracow Regional Court ordered a one-month immediate break in the applicant’s judicial functions, pursuant to section 130(1) and (3) of the Act of 27 July 2001 on the Organisation of the Ordinary Courts. She referred, inter alia , to the applicant’s actions questioning the legality of appointment of other judges.

On 4 November 2021 the Deputy Disciplinary Officer for the Ordinary Court Judges instituted disciplinary proceedings against the applicant and charged him with three disciplinary offences of compromising the dignity of judicial office by (1) questioning the validity of appointment of Judge M.L. in case I C 833/21 and the authority of the constitutional organs of the State; (2) questioning the validity of appointment of the same judge in case I Cz 311/21 and the authority of the NCJ; and (3) questioning the validity of appointment of Judge W.Å». of the Cracow Court of Appeal in case I C 2121/15. The Deputy Officer alleged that the applicant had committed disciplinary offences defined in section 107(1) (3 and 5).

On 16 November 2011 the Disciplinary Chamber of the Supreme Court gave a resolution (no. I DO 13/21) suspending the applicant in his judicial functions and reducing his salary by 50% for the duration of his suspension. The applicant submits that he was not notified of the date of the session of the Disciplinary Chamber in his case. The applicant appealed. The proceedings are pending before the new Chamber of Professional Liability, which was set up following the abolition of the Disciplinary Chamber on 15 July 2022.

Other judges of the Cracow Regional Court who signed the declaration of 20 September 2021 were also subjected to various actions taken by the President of the Cracow Regional Court, in particular by being transferred to different divisions of that court without their consent.

On 8 September 2022 the applicant applied for an interim measure under Rule 39 of the Rules of Court, requesting the Court, inter alia , to ensure that his case will be examined by an “independent and impartial tribunal established by law” as provided by Article 6 § 1 of the Convention, in particular that his disciplinary case pending before the Chamber of Professional Liability be transferred to the Criminal Chamber of the Supreme Court and examined by a panel composed of judges of the Supreme Court recommended to that court by the NCJ operating before 6 March 2018.

On 12 September 2022, the Court (the President of the Chamber to which the case has been allocated) refused to grant the interim measure sought by the applicant. The Court considered, in particular, that the applicant’s request was belated since the alleged irreparable damage in terms of his suspension in judicial functions and reduction of his salary materialised on 16 November 2021, when the Disciplinary Chamber of the Supreme Court delivered its resolution.

The applicant complains that the proceedings before the Disciplinary Chamber, a body that does not satisfy the requirements of an “independent and impartial tribunal established by law” under Article 6 § 1 of the Convention, were in breach of that provision. He maintains that he was suspended in his judicial functions by the Disciplinary Chamber which, in Reczkowicz v. Poland , has already been found by the Court as lacking the attributes of a “lawful court” (see Reczkowicz , cited above, §§ 225-284).

He 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.

The applicant also complains under Article 10 of the Convention that he has been punished for expressing views relating to his judicial independence and impartiality (i.e. for declaring that he would not adjudicate with judges appointed pursuant to a recommendation of the new NCJ).

He further complains under Article 18 in conjunction with Article 8 that the disciplinary measures taken against him were in reality meant to intimidate him and discourage him from questioning the legality of judicial appointments made with the involvement of the new NCJ.

Lastly, the applicant complains under Article 1 of Protocol No.1 to the Convention that he has been deprived of 50% of his salary.

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 16 November 2011 (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)? In this connection reference is made to Article 180 § 2 of the Polish Constitution. Which legitimate aim did that interference pursue?

Article 10

1. Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention? Reference is made, inter alia , to the initiation of disciplinary proceedings against the applicant and his suspension in judicial functions on account of his statements questioning the legitimacy of appointment of other judges?

2. If so, was that interference prescribed by law and necessary in terms of Article 10 § 2? In particular, was the impugned interference “in accordance with the law”, having regard to the fact that the Disciplinary Chamber lacks the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1 (see Reczkowicz , §§ 225-282)? Which legitimate aims did that interference pursue?

Article 18 in conjunction with Article 8

Were the measures imposed by the State in the present case, purportedly pursuant to Article 8 of the Convention, applied for a purpose other than those envisaged by that 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)?

Article 1 of Protocol No. 1

1. Is Article 1 of Protocol No. 1 to the Convention applicable to the present case?

2. If so, has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the convention(see, mutatis mutandis , Savickas and Others v. Lithuania (dec.), no. 66365/09, §§ 91-92, 15 October 2013)?

3. Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? Reference is made to the fact that the reduction of his salary was ordered by the Disciplinary Chamber of the Supreme Court (see Reczkowicz, §§ 225-282).