Published on 25 July 2022 and 16 January 2023

FIRST SECTION

Application no. 32301/22 Krzysztof CHMIELEWSKI against Poland lodged on 4 July 2022 communicated on 7 July 2022 and 15 December 2022

SUBJECT MATTER OF THE CASE

The earlier facts and previous complaints in this application have been summarised in the Subject Matter of the Case, published on 25 July 2022 and available in HUDOC.

The new facts can be summarised as follows:

The Disciplinary Chamber of the Supreme Court (“the DCSC”) was abolished on 15 July 2022, upon entry into force of the Act of 9 June 2022 amending the Act on the Supreme Court and certain other Acts ( ustawa z dnia 9 czerwca 2022 r. o zmianie ustawy o Sądzie Najwyższym oraz niektórych innych ustaw ) – “the 2022 Amending Act”.

The 2022 Amending Act created a new chamber of the Supreme Court: the Chamber of Professional Responsibility (“the CPR”).

The interlocutory appeal lodged by the applicant’s lawyers was never examined by the DCSC. The disciplinary case regarding the applicant’s suspension from his judicial duties and the reduction of his salary has been transmitted to the CPR.

The applicant’s case was assigned to a CPR panel composed of: (1) judge W.K. (appointed to the Supreme Court in 1999), (2) judge D.K. (appointed to the Supreme Court in 2016), and (3) a lay judge.

The CPR scheduled an in camera session ( posiedzenie ) to examine the applicant’s appeal on 8 September 2022. On 30 August 2022 the applicant filed a request for the exclusion of the entire CPR panel from hearing his case, relying mainly on the fact that the challenged judges have previously agreed to sit on panels together with judges appointed 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 ).

The applicant’s request for exclusion of the CPR panel was transmitted to the Chamber of Extraordinary Review and Public Affairs (“the CERPA”) of the Supreme Court and has not been examined to date.

The in camera session set by the CPR for 8 September 2022 was cancelled and no further hearings have been scheduled to date.

On 17 November 2022 the CPR, sitting in a single-judge formation (Judge B.S.), stayed the execution of the DCSC’s resolution of 5 January 2022 suspending the applicant from his judicial duties and reducing his salary. It held that the applicant should be immediately reinstated to his post in the division where he had adjudicated prior to his suspension.

The applicant complains, under Article 6 § 1 of the Convention, that the CERPA does not satisfy the requirements of an “independent and impartial tribunal established by law”. He maintains, referring to Dolińska-Ficek and Ozimek v. Poland , that his request for exclusion of the CPR panel from hearing his disciplinary case was assigned to a body which lacks the attributes of a “lawful court”. According to the applicant this could, in turn, affect the fairness of the disciplinary proceedings before the Chamber of Professional Responsibility of the Supreme Court.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case as regards the applicant’s request for exclusion of all the members of the panel of the Chamber of Professional Responsibility of the Supreme Court assigned to examine his disciplinary case (see Baka v. Hungary [GC] , no. 20261/12, §§ 104-105, 23 June 2016; Paluda v. Slovakia , no. 33392/12, §§ 33-34, 23 May 017; and Camelia Bogdan v. Romania , no. 36889/18, § 70, 20 October 2020)?

2. Do the proceedings before the Chamber of Extraordinary Review and Public Affairs 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 Dolińska-Ficek and Ozimek v. Poland , nos. 49868/19 and 57511/19, 8 November 2021, §§ 281-355)?

3. Is the Chamber of Extraordinary Review and Public Affairs of the Supreme Court, assigned to deal with the applicant’s request, an “independent and impartial tribunal”, as required by Article 6 § 1 of the Convention (see Dolińska-Ficek and Ozimek v. Poland , cited above, §§356-357)?

4. Does the involvement of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court in the ancillary proceedings regarding the applicant’s request for exclusion of panel members negatively impact the fairness of the disciplinary proceedings before the Chamber of Professional Responsibility of the Supreme Court?