JOINT PARTLY DISSENTING OPINION OF JUDGES BOÅ NJAK, SCHEMBRI ORLAND AND KTISTAKIS

1. Whilst voting in favour of a violation of Article 6 § 1, Article 8 and Article 18 of the Convention, we voted against the dismissal of the applicant’s claim for pecuniary damage in respect of these violations (see point 9 of the operative provisions).

2. The applicant claimed 105,036.88 Polish zlotys (equivalent to 23,341 euros (EUR)) in respect of pecuniary damage corresponding to his loss of income in the period until 31 December 2021 resulting from the reduction of his salary ordered by the Disciplinary Chamber. The Court rejected the applicant’s complaint in this regard, on the basis that the complaint under Article 1 of Protocol No. 1 to the Convention had been found to be incompatible ratione materiae and, moreover, that it did not discern any causal link between the violations found in the present case and the pecuniary damage alleged by the applicant (see paragraph 353).

3. The Chamber was unanimous in declaring the complaint under Article 1 of Protocol No. 1 inadmissible. It is not our intention to review the findings of the Court concerning Articles 6 § 1, 8 and 18, or Article 1 of Protocol No. 1, as we fully concur on all counts as premised.

4. However, we respectfully disagree with the conclusions put forward to justify rejecting the applicant’s claim in respect of pecuniary damage.

5. The applicant in this case was a member of the Polish judiciary who was suspended from office by the Disciplinary Chamber of the Supreme Court in connection with the exercise of judicial powers. More precisely, the suspension was linked to the issuance of an order by the applicant, of the court’s own motion, requesting the production of copies of the endorsement lists for the judicial candidates to the new National Council of the Judiciary (the NCJ) who had been subsequently elected by the Sejm on 6 March 2018. Taken in the context of the dispute, the suspension was a disciplinary measure issued in connection with the giving of a judicial decision. The suspension remained in effect from 4 February 2020 to 23 May 2022, during which time the applicant sustained a 40% decrease in his salary (see paragraphs 40 and 74 respectively).

6. Just satisfaction is afforded, under Article 41 of the Convention, so as to compensate the applicant for the actual damage established as being consequent to a violation. In that respect, it may cover pecuniary damage, non-pecuniary damage, and costs and expenses. It is true that Article 41 considers the granting of just satisfaction to be a matter of discretion on the part of the Court, having regard to the circumstances of the case and the nature of the violation. Furthermore, Article 41 triggers this discretion if the domestic law of the member State allows for only partial reparation in a particular case.

7. This being premised, the Court is not precluded from granting pecuniary satisfaction, which is an important element of the restitutio in integrum principle, in finding a violation of Articles 6 and 8, in the present case. Nor is the Court precluded from resorting to an equitable method of compensation (compare Baka v. Hungary [GC], no. 20261/12, § 191, 23 June 2016), or from reserving the matter for future decision (compare Oleksandr Volkov v. Ukraine , no. 21722/11, § 211, ECHR 2013).

8. We are mindful that the violations which have been found in this case are fundamental to the proper guarantee of the rule of law, as applicable to disciplinary actions against the judiciary. In such a context, the finding of a violation assumes major importance. However, the Court has not chosen to declare that a finding of a violation is sufficient in itself, as it could have done, but rather, it dismissed the claim and it is on this point that we disagree.

9. In the present case, section 129(4) of the Act on the Organisation of the Ordinary Courts provides that “[w] here disciplinary proceedings have been discontinued or resulted in an acquittal, all components of the salary or emolument shall be adjusted to the full amount ”. However, the decision to reject the claim was not made on this basis but on the basis of there being no causal link between the violations found in the present case and the pecuniary damage alleged by the applicant.

10. Yet the loss of salary was a direct consequence of the applicant’s suspension from office, decided in proceedings which have been determined not to be Convention compliant. Moreover, the disciplinary action was a direct consequence of the applicant’s exercise of judicial power pursuant to the fulfilment of his obligations, as a judge, to seek to uphold the rule of law. Once the legal basis of the suspension was deprived of legitimacy, it followed that the consequences of that suspension could be directly imputed to the violation.

11. These consequences were not limited to his professional standing and repute, but were also undoubtedly financial in nature. Moreover, the sum could be calculated on the basis of the determinate period in which the deduction took place. Any such sum could have been awarded with the caveat that should the applicant be entitled to a reinstatement of his salary in full and with retrospective effect, then the domestic courts should also take into account the amount awarded by the Court.

[1] Six judges annexed separate opinions to the resolution.

[2] The translation is based on the English version of the judgment published on the Supreme Court website, edited by the Registry of the Court.

[3] Judgments of 4 March 2020, no. P 22/19; 20 April 2020, no. U 2/20; and 2 June 2020, no. P 13/19 (cited in paragraph 102 above).