PROCEDURE

The case originated in an application (no. 66484/09) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Mariusz Lewandowski (“the applicant”), on 30 November 2009.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant complained that in proceedings in which a court had imposed a penalty of solitary confinement on him he had not received a hearing by an impartial tribunal. He further complained that his right to freedom of expression had been breached.

On 10 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1966 and lives in Elblag.

In 2009 the applicant was serving a prison sentence. On 8 March 2009 he applied for a stay of the execution of his sentence.

On 8 June 2009 a penitentiary judge, E.O., refused the application.

On 18 June 2009 the applicant lodged an interlocutory appeal against that decision. In his appeal, the applicant referred to a paragraph in the decision in which the judge had referred to his wife’s situation instead of his mother’s. The relevant part of the applicant’s appeal read as follows: “As to page 3 of the reasoning of the decision, I claim that E.O. must have drafted it under the influence of intoxicating substances, for instance alcohol or other narcotic substances. (...) [H]is mental functions being impaired, I therefore request the Court of Appeal to examine the capacity of that judge to decide cases.”

On 24 June 2009 his appeal was rejected for failure to comply with the relevant time-limit.

On 26 June 2009 Judge E.O. gave a decision imposing on the applicant, as a punishment for his accusation contained in the letter of appeal, twenty-eight days’ solitary confinement, referring to section 49 of the Act on Common Courts (ustawa o sądach powszechnych, hereinafter referred to as the Courts Act).

On 28 June 2009 the applicant appealed against that decision, complaining that the judge had lacked impartiality. He submitted that he had been penalised for exercising his right to freedom of expression and requested the court to stay the execution of the punishment until his appeal had been examined.

On the same date the applicant lodged a further appeal against the court’s decision of 24 June 2009 to reject his appeal. He submitted that the decision of 8 June 2009 with its reasoned grounds had been served on him late and therefore the seven-day time-limit for lodging an appeal should have been counted from the date of delivery of that decision.

On 9 July 2009 Judge E.O. refused to grant a stay of the execution of the decision concerning the applicant’s detention in solitary confinement.

On 22 July 2009 the Gdańsk Court of Appeal quashed the decision of 26 June 2009, holding that it had been unlawful. The court observed that section 49 of the Courts Act conferred on a judge the power to immediately apply measures necessary to ensure the peaceful conduct of a hearing in a courtroom, including the power to order immediate imprisonment as a penalty for contempt of court or for disturbing order in the courtroom. However, the case-law of the Supreme Court, established in a resolution adopted by a seven-judge bench of that court, had made it clear that these powers could not be used in situations where insults or disparaging statements about a judge or a court had been made in writing, in a context different from that of maintaining order in a courtroom. The Court of Appeal further observed that the applicant had already served the period of detention in solitary confinement imposed by the impugned decision.

The Court of Appeal noted in passing that there was disagreement in the doctrine as to the scope of judges’ powers to apply section 49 of the Courts Act . Certain writers were of the view that it could also be applied in other circumstances than those of a hearing or a court session held in a courtroom.

On the same date the Gdańsk Court of Appeal dismissed the applicant’s appeal against the order of 24 June 2009, finding that it was not open to doubt that the applicant had submitted his appeal against the refusal to stay the execution of his sentence outside the seven-day time-limit, which under the applicable provisions of procedural law had started to run from the date on which the court had read out its decision to the applicant.

The applicant later repeatedly complained about Judge E.O.’s conduct and requested that he be excluded from the composition of the penitentiary court dealing with his case in the future.

In its reply of 19 August 2009 the President of the Elbląg Regional Court stated that Judge E.O. felt offended by the allegations made in the applicant’s letter and that he was envisaging bringing criminal proceedings against the applicant for defamation punishable under Article 212 of the Criminal Code.

In its reply dated 29 September 2009, the Gdansk Court of Appeal stated that it had not found any grounds to discipline the judge. It was true that the judge had mistakenly referred to the applicant’s non‑existent “wife” in one paragraph of his initial decision instead of his mother, on whose situation the applicant had relied in his application, but that did not suffice to pursue disciplinary proceedings against him.