FIRST SECTION
CASE OF TULEYA v. POLAND
 
(Applications nos. 21181/19 and 51751/20)
 
JUDGMENT
 
Art 6 § 1 (criminal) • Tribunal established by law • Lifting of judge’s immunity from prosecution and suspension from judicial duties by Supreme Court’s Disciplinary Chamber • Loss of victim status in relation to suspension decision • Resolution by Supreme Court’s new Chamber of Professional Liability (CPL) acknowledged Art 6 § 1 breach in respect of Disciplinary Chamber proceedings and afforded appropriate and sufficient redress • Resolution taken by judges whose appointments to the Supreme Court pre-dated reformed National Council of the Judiciary (NCJ) • Resolution a positive development in the context of the Polish rule-of-law crisis • Victim status in relation to lifting of immunity • Adverse consequences of Disciplinary Chamber’s ruling not redressed by Resolution • No action taken to terminate criminal proceedings against applicant despite CPL’s ruling as to non -existence of an offence • Art 6 applicable under its criminal head to immunity proceedings • Manifest breach of domestic law due to inherently deficient judicial appointment procedure to Disciplinary Chamber by reformed NCJ which lacked independence from legislature and executive • Findings in Reczkowicz v. Poland and Juszczyszyn v. Poland applied • Independence and impartiality of Disciplinary Chamber compromised
Art 8 • Private life applicable • Preliminary inquiry into applicant’s request for a preliminary ruling from the Court of Justice of the European Union • Disciplinary Chamber’s decision lifting applicant’s immunity and suspending him from duties • Impugned measures affected applicant’s private life to a very significant degree • Interferences not “in accordance with the law” • Preliminary inquiry into preliminary ruling request contrary to the Treaty on the Functioning of the European Union having precedence over domestic law • Decision on lifting immunity and suspension based on an unforeseeable interpretation of the domestic law by a body not constituting an “independent and impartial tribunal established by law”
Art 10 • Freedom of expression • Preliminary inquiries concerning applicant’s public statements on a television news channel and in public meetings • Decision on lifting immunity and suspension • Impugned measures to be seen in context of successive Polish reforms resulting in the weakening of judicial independence and having regard to the sequence of events in their entirety • Authorities’ action culminating in Disciplinary Chamber’s decision could be regarded as a disguised sanction for the applicant’s exercise of his freedom of expression • Impugned measures prompted by applicant’s views and criticisms publicly expressed in his professional capacity • Interferences not “prescribed by law” and not pursuing any legitimate aims • Applicant not afforded minimum procedural safeguards in preliminary inquiries • Decision on lifting immunity and suspension taken by a body not constituting an “independent and impartial tribunal established by law” • No requisite procedural safeguards to prevent arbitrary application of relevant substantive law • Measures could be characterised as a strategy aimed at intimidating (or even silencing) the applicant • Impugned measures with chilling effect on judges’ participation in public debate on legislative reforms affecting the judiciary and on its independence

 
STRASBOURG
6 July 2023
FINAL
 
06/10/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tuleya v. Poland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Ivana Jelić,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato, judges,
and Renata Degener, Section Registrar,
Having regard to:
the applications (nos. 21181/19 and 51751/20) 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 Igor Tuleya (“the applicant”), on 10 April 2019 and 24 November 2020 respectively;
the decision to give notice to the Polish Government (“the Government”) of the complaints under Article 6 § 1, Article 8, Article 10 and Article 13 of the Convention and to declare inadmissible the remainder of the applications;
the decision of the Court (the duty judge) of 26 November 2020 not to apply Rule 39 of the Rules of Court in application no. 51751/20 to suspend the execution of the Disciplinary Chamber’s resolution of 18 November 2020;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the Commissioner for Human Rights of the Republic of Poland, the “Judges for Judges” Foundation (the Netherlands) jointly with Professor L. Pech, the European Network of Councils for the Judiciary (“the ENCJ”), Amnesty International jointly with the International Commission of Jurists, the Polish Judges’ Association Iustitia and the Government of the Kingdom of the Netherlands, who were granted leave to intervene by the President of the Section;
the additional observations submitted by the parties on 3 January 2023;
Having deliberated in private on 29 November 2022, 28 March and 6 June 2023,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The case concerns several preliminary inquiries instituted by the disciplinary officer with regard to the applicant together with the decision of the Disciplinary Chamber of the Supreme Court lifting the applicant’s immunity from prosecution and suspending him from judicial duties. The applicant submitted that the Disciplinary Chamber had not satisfied the requirements of an “independent and impartial tribunal established by law”. He also claimed that preliminary inquiries and the Disciplinary Chamber’s decision had amounted to a breach of his right to respect for his private life and his right to freedom of expression. The applicant relied on Article 6 § 1, Article 8, Article 10 and Article 13 of the Convention. THE FACTS
2. The applicant was born in 1970 and lives in Warsaw. He was represented by Mr J. Dubois, Ms S. Gregorczyk-Abram, Ms M. Ejchart‑Dubois and Mr M. Wawrykiewicz, lawyers practising in Warsaw. 3. The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 4. The facts of the case may be summarised as follows. BACKGROUND AND CONTEXT OF THE CASE
5. The broader domestic background to the present case was set out in the Court’s judgments in Reczkowicz v. Poland (no. 43447/19, §§ 4-53, 22 July 2021) and Grzęda ([GC], no. 43572/18, §§ 14-28, 15 March 2022). 6. The applicant was appointed a district court judge in 1996. In 2010 he was appointed as judge of the Warsaw Regional Court where he has adjudicated in a criminal division. He sat on a bench in a number of cases that attracted widespread media interest. For example, he adjudicated in the case of M. Garlicki (see Mirosław Garlicki v. Poland, no. 36921/07, 14 June 2011), where he critically assessed the investigative measures applied by the Central Anti-corruption Bureau against the suspect. 7. The applicant is well-known in the judicial community and to the public at large. Cases in which he has adjudicated have been commented on by politicians and representatives of the State authorities. The applicant is also involved in the activities of the Polish Judges’ Association Iustitia, which defends, inter alia, the rule of law in Poland. PRELIMINARY INQUIRIES CONCERNING THE APPLICANT
8. Preliminary inquiries (czynności wyjaśniające), governed by section 114(1) of the Act of 27 July 2001 on the Organisation of Ordinary Courts (“the 2001 Act”), as amended by the Act of 8 December 2017 on the Supreme Court (see paragraph 144 below), are initiated by the disciplinary officer for ordinary court judges (Rzecznik Dyscyplinarny Sędziów Sądów Powszechnych – “the disciplinary officer”) of his own initiative or at the request of the relevant authorities “after initial determination of circumstances necessary to establish the constituent elements of a disciplinary offence” (“po wstępnym ustaleniu okoliczności koniecznych dla stwierdzenia znamion przewinienia dyscyplinarnego”). 9. The Deputy Disciplinary Officers, Judges M. Lasota and P.W. Radzik initiated five sets of preliminary inquiries concerning the applicant. The Government submitted that those inquiries had been initiated on account of the applicant’s conduct allegedly disregarding the limits of judicial independence. 10. The deputy disciplinary officers initiated the following preliminary inquiries on the basis of section 114(1) of the 2001 Act:
(1) Case no. RDSP 712-2/18 concerning “[the applicant’s] comments in a television programme on 17 July 2018 on the news channel TVN24, in particular those concerning the National Council of the Judiciary and the administration of justice”. On 9 August 2018 the applicant was summoned to make a written statement on the above. (2) Case no. RDSP 712-3/18 regarding “possible unauthorised disclosure of information from pre-trial proceedings no. VIII Kp 1335/17”. On 14 August 2018 the applicant was summoned to make a written statement. According to the applicant, those proceedings were at the origin of the criminal proceedings, as a result of which the Disciplinary Chamber lifted his immunity (see paragraphs 43-54 below). (3) Case no. RDSP 712-12/18 concerning the applicant’s participation in a public meeting held at the European Solidarity Centre in Gdańsk on 28 September 2018. On 8 October 2018 the applicant was summoned to make a written statement about his participation in this event, and to indicate who had organised the meeting, in what capacity had he participated in it and whether politicians had taken part in the meeting. This meeting with the applicant concerning the Constitution, freedom and the role of courts in a democratic society was organised by the Polish Judges’ Association Iustitia, the Gdańsk Bar Council and the Gdańsk Council of Attorneys-at-Law. (4) Case no. RDSP 712-13/18 regarding a public meeting held in Lublin on 30 September 2018. On 8 October 2018 the deputy disciplinary officer sought the same information from the applicant as in the case referred to under point 3. (5) Case no. RDSP 712-8/2-18 concerning the reference for a preliminary ruling made by the Warsaw Regional Court (the applicant) to the Court of Justice of the European Union (“the CJEU”) on 4 September 2018 in a criminal case. The request dealt with the compatibility of a new disciplinary regime for judges with Article 19 of the Treaty on the EU (TEU). On 29 November 2018 the deputy disciplinary officer summoned the applicant to make a written statement with regard to possible “judicial excess” (eksces orzeczniczy) on account of making that request contrary to the conditions stipulated in Article 267 on the Treaty on the Functioning of the EU (TFEU). 11. According to the Government, the applicant was summoned to make a voluntary written statement in the five above-mentioned sets of preliminary inquiries on the basis of section 114(2) of the 2001 Act. 12. The Government submitted in their observations that the deputy disciplinary officer had not found sufficient grounds for bringing disciplinary proceedings against the applicant in any of the above-mentioned cases. 13. The applicant submitted that he had not been informed by the disciplinary officer of the termination of any of those preliminary inquiries. PRELIMINARY INQUIRIES CONCERNING OTHER JUDGES
14. In the following two sets of preliminary inquiries concerning other judges, the disciplinary officer summoned the applicant to give evidence as a witness:
(1) Case no. RDSP 714-61/18 concerning disciplinary misconduct (delikt dyscyplinarny) on the part of two judges who had worn their robes and the state emblem during a moot court at the “Pol’and’Rock” music festival in August 2018 in a manner that might have undermined the dignity of judicial office and exceeded the limits of freedom of expression of a judge with regard to their public comments about other judges and representatives of public authorities. On 5 September 2018 the disciplinary officer summoned the applicant to give evidence as a witness. The applicant did so in the presence of his lawyer. The Government submitted that this preliminary inquiry had been concluded and no disciplinary proceedings had been initiated. According to the applicant, he was not informed about the conclusion of that preliminary inquiry. (2) Case no. RDSP 712-8/18 regarding a preliminary inquiry into the reasons for a referral to the CJEU by the Łódź Regional Court (Judge E.M.) for a preliminary ruling in a civil case. The applicant made a similar request to the CJEU for a preliminary ruling in the case mentioned above (see paragraph 10 point (5) above). On 21 September 2018 the disciplinary officer summoned the applicant to give evidence as a witness. This preliminary inquiry was concluded and no disciplinary proceedings were initiated. 15. The Government submitted that both sets of preliminary inquiries concerned the conduct of other judges and the applicant’s participation in those cases was limited to giving testimony as a witness – a compulsory procedure for any person summoned as a witness pursuant to Article 177 § 1 of the Code of Criminal Procedure (“the CCP”). 16. On 10 October 2018 the applicant was questioned as a witness by the deputy disciplinary officer in connection with preliminary inquiry no. RDSP 712-8/18 (see paragraph 14 point (2) above). 17. The applicant lodged an interlocutory appeal against the deputy disciplinary officer’s decision to hear him as a witness. He submitted that, contrary to what was indicated in the summons of 21 September 2018, the questioning concerned his own judicial activity. He made his statements as a witness on pain of criminal liability, even though neither the 2001 Act nor the CCP provided for a possibility that a judge be heard as a witness in the framework of the preliminary inquiry. The deputy disciplinary officer refused to examine the applicant’s interlocutory appeal for being inadmissible in law. A further appeal to the disciplinary officer was to no avail. According to the applicant, his statements were admitted in evidence and added to the case file of the proceedings concerning his own alleged “judicial excess” (see paragraph 10 point (5) above). 18. The applicant also requested that his lawyer be allowed to take part in the questioning. The deputy disciplinary officer refused that request on the basis of section 128 of the 2001 Act in conjunction with Article 87 § 3 of the CCP, which entitled a prosecutor to refuse to admit the lawyer’s participation in the proceedings, if in his opinion it was not necessary for the protection of the interests of the person concerned, who was not a party to the proceedings. A further appeal against the refusal was to no avail. 19. The Disciplinary Officer, Judge P. Schab, in his press release of 17 December 2018 referring to cases nos. RDSP 712-8/2-18 and RDSP 712‑8/18 observed that the requests for preliminary rulings by the Łódź Regional Court and the Warsaw Regional Court were identical in their content except for the reasons prompting those requests, whereas the applicant and Judge E.M. had testified in the course of the preliminary inquiries that they had not conferred with each other. For that reason the disciplinary officer considered that there was a possibility that the applicant and Judge E.M. could have committed a disciplinary offence of compromising the dignity of judicial office as a result of making their requests for preliminary rulings, while failing to observe the principle of impartiality. In addition, consideration had to be given to the possibility that one of those judges (the applicant or Judge E.M.) could have given false testimony when assuring that the requests for preliminary rulings had been prepared by themselves. 20. The disciplinary officer noted that the analysis of the legal context in which the above decisions had been made also led to the conclusion that the requests for preliminary rulings had been made contrary to Article 267 of the TFEU. In those circumstances, the deputy disciplinary officer, Judge M. Lasota considered it necessary to examine whether those requests, made in breach of Article 267 of the TFEU, had interfered with the proper conduct of the relevant domestic proceedings. In this regard, the disciplinary officer stated that the proceedings in which the applicant had made a request for a preliminary ruling concerned a particularly complex criminal case involving the commission of several serious offences. Thus, he considered it necessary to determine whether the indefinite stay of those proceedings, as a result of the action of a court in breach of the law, could constitute disciplinary misconduct on the part of the applicant. 21. It appears that no disciplinary charge was brought against the applicant in relation to the above. 22. The applicant submitted that as a result of the preliminary inquiries concerning him, many items of an insulting or discrediting nature were published or broadcast on the State television, printed media or on Internet portals. The applicant was confronted with many actions by unknown persons that impinged on his reputation. A parcel that allegedly contained anthrax bacteria was addressed to his professional address at the Warsaw Regional Court causing the evacuation of the building. THE CJEU’S JUDGMENT OF 26 MARCH 2020 IN MIASTO ŁOWICZ AND PROKURATOR GENERALNY, C-558/18 AND C-563/18, EU:C:2020:234
23. On 31 August and 4 September 2018 the Łódź Regional Court (Judge E.M.) and the Warsaw Regional Court (the present applicant) respectively made two requests to the CJEU for a preliminary ruling in cases pending before those courts. The first request was made in civil proceedings between the town of Łowicz and the State Treasury relating to a claim for payment of public subsidies. The second request was made in criminal proceedings against several persons for participation in kidnappings for financial gain. Both courts expressed fears that their expected decisions would lead to disciplinary proceedings being brought against the judges presiding in each of the cases, referring to the new legislation on the disciplinary regime applicable to judges and its compatibility with the right of individuals to effective legal protection, guaranteed in the second subparagraph of Article 19 § 1 TEU. They stressed the considerable influence of the Minister of Justice in the new disciplinary regime and pointed to the lack of adequate safeguards accompanying that influence. They submitted that the disciplinary procedures, as thus conceived, conferred on the legislative and executive branches a means of ousting judges whose decisions did not suit them, thereby influencing the judgments which those judges were called upon to deliver. 24. In its judgment of 26 March 2020 the CJEU declared both requests inadmissible. It found that they did not concern an interpretation of EU law which met an objective need for the resolution of the disputes pending before the courts, but were of general nature. 25. The CJEU, however, also addressed the question of the national law which exposed judges to disciplinary proceedings for making a reference for a preliminary ruling. In this part, the relevant reasons for the judgment read as follows:
“54. As regards the circumstance, mentioned by the national courts in their letters ..., in which the two judges who made the present requests for a preliminary ruling were, as a result of those requests, the subject of an investigation prior to the initiation of potential disciplinary proceedings against them, it should be noted that the disputes in the main proceedings in respect of which the Court is requested to provide a preliminary ruling in the present joined cases do not relate to that circumstance. Moreover, it should be noted, as the Polish Government stated in its written observations and at the hearing before the Court, that those investigation proceedings have since been closed on the ground that no disciplinary misconduct, involving a failure to respect the dignity of their office as a result of making those requests for a preliminary ruling, had been established. 55. In that context, it is important to note, as is clear from the Court’s settled case‑law, that the keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 176, and judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 41). 56. In accordance with equally settled case-law, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them. National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgments of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 26, and of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 42 and the case-law cited). 57. Therefore, a rule of national law cannot prevent a national court from using that discretion, which is an inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU and of the functions of the court responsible for the application of EU law, entrusted by that provision to the national courts (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 103 and the case-law cited). 58. Provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they submitted a reference to the Court for a preliminary ruling cannot therefore be permitted ... Indeed, the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference after it was made is likely to undermine the effective exercise by the national judges concerned of the discretion and the functions referred to in the preceding paragraph. 59. For those judges, not being exposed to disciplinary proceedings or measures for having exercised such a discretion to bring a matter before the Court, which is exclusively within their jurisdiction, also constitutes a guarantee that is essential to judicial independence (see, to that effect, order of 12 February 2019, RH, C‑8/19 PPU, EU:C:2019:110, paragraph 47), which independence is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 54 and the case-law cited).”
CRIMINAL PROCEEDINGS AGAINST THE APPLICANTBackground to the case

26. On 16 December 2016, during the session of the Sejm, the opposition blocked the parliamentary rostrum in protest, inter alia, against planned restrictions on the work of journalists in Parliament. The Speaker of the Sejm moved the session to the Column Hall in the parliament building, where a vote on the 2017 Budget Act was to be held. According to opposition MPs, they were prevented by the MPs from the majority and officials of the Chancellery of the Sejm from taking part in a debate on the 2017 Budget Act. Again according to opposition MPs, there were also irregularities during the vote and its course was not reliably recorded in the official transcript. Those events were subject to intense public interest and media coverage. 27. After the session in the Column Hall, certain opposition MPs filed a criminal complaint with the prosecutor, alleging that they had not been allowed to take part in the parliamentary debate. They also claimed that the required quorum might not have been attained, which would result in the Budget Act not being duly adopted. Other criminal complaints were filed by several citizens. 28. On 2 August 2017 the Warsaw Regional Prosecutor discontinued the investigation into the alleged irregularities during the Sejm’s session of 16 December 2016 held in the Column Hall. Four persons lodged an interlocutory appeal (zażalenie) against that decision. 29. On 18 December 2017 the applicant, sitting in a single-judge formation at the Warsaw Regional Court, considered the interlocutory appeal. Journalists from the two television channels who were present requested the court for permission to record the court session (posiedzenie). The applicant consulted the representatives of the MPs and the prosecutor, who raised no objections in this regard. The applicant accordingly decided to hold the court session in public and to allow the representatives of the media to record the court session, pursuant to Article 357 § 1 of the CCP. 30. The Warsaw Regional Court (the applicant) decided to allow the interlocutory appeal and ordered the prosecutor to continue the investigation into the alleged irregularities during the vote on the Budget Act held in the Column Hall. The applicant provided orally the main reasons for the decision. In doing so, he quoted from witness testimony given in the investigation and noted that certain MPs from the parliamentary majority could have committed the offence of giving false testimony. 31. On 18 December 2017 the portal wpolityce.pl published an interview with Ms K. Pawłowicz, an MP of the majority and member of the new NCJ, who is currently a judge of the Constitutional Court (see paragraph 206 below), in which she commented on the applicant’s decision of 18 December 2017. She stated, inter alia:
“Judge Tuleya is an extremely resentful judge and I hope he will be the first person in respect of whom the proceedings will be instituted in the new Disciplinary Chamber for bias and political motivation in adjudicating.”
32. On 26 April 2018 the Warsaw Regional Prosecutor again discontinued the investigation. Application for the lifting of the applicant’s immunity
33. On 10 January 2018 the State Prosecutor’s Office (Prokuratura Krajowa) instituted an investigation concerning the applicant’s possible unauthorised disclosure of information from the pre-trial proceedings by allowing the media to record the session of 18 December 2017. 34. On 17 February 2020 a prosecutor from the Internal Affairs Department (Wydział Spraw Wewnętrznych) of the State Prosecutor’s Office applied to the Disciplinary Chamber of the Supreme Court to issue a resolution permitting the applicant to be held criminally liable. The prosecutor intended to charge the applicant as follows:
“On 18 December 2017, as a public official, the judge of the Warsaw Regional Court, publicly failed to fulfil his official duties arising from Articles 2 § 1 (2) and 297 § 1 (1,2,4 and 5) of the Code of Criminal Procedure (‘the CCP’) as well as Article 241 § 1 of the Criminal Code (‘the CC’) and exceeded his powers under Articles 95b § 1, 329 § 1 and 357 § 1 of the CCP and Article 241 § 1 of the CC in that he allowed representatives of the media to record images and sounds during a session of the Warsaw Regional Court [in the case] no. VIII Kp 1335/17 and during the delivery of the decision in the case and oral reasons for it, as a result of which he disclosed to unauthorised persons, without the legally required consent of the authorised person [the prosecutor], information from the investigation [conducted] by the Warsaw Regional Prosecutor’s Office in the case ... which he had obtained in connection with the performance of his official duties by which he acted to the detriment of public interest, namely an offence under Article 231 § 1 in conjunction with Articles 266 § 2 and 241 § 1 in conjunction with Article 11 § 2 of the CC.”
35. Those acts were punishable by a term of imprisonment of up to three years. The first-instance decision of the Disciplinary Chamber
36. On 9 June 2020 the Disciplinary Chamber, sitting as the first-instance court in a single-judge formation (Judge J. Wygoda), adopted a resolution (uchwała) dismissing the prosecutor’s application (no. I DO 8/20). It found that there was no reasonable suspicion that the applicant had committed the impugned criminal offence. 37. First, the Disciplinary Chamber noted that the prosecutor had erroneously asserted that the applicant failed to fulfil his official duties arising from the statutory provisions invoked by the prosecutor by authorising the representatives of the media to record the session of the Warsaw Regional Court on 18 December 2017 in case no. VIII Kp 1335/17 and the delivery of the decision in that case. 38. It found that the fact that the applicant had “made public” the course of the session on 18 December 2017, by allowing the media representatives to record it, had not involved any abuse of the judge’s powers under Article 95b § 1 of the CCP. It was clear from the wording of this provision that in a situation where the court conducting the proceedings or the president of the court ordered a session to be held in public it could not be claimed that they abused their powers or failed to fulfil their duties since that type of decision fell within their statutory powers. 39. The Disciplinary Chamber further noted that the applicant, as a judge presiding over a public court session, had, pursuant to Article 95b § 3 in conjunction with Article 357 of the CCP, the competence to allow representatives of the media to record the session. It was therefore impossible to share the position of the prosecutor that the applicant, by allowing the representatives of the media to participate in the session of 18 December 2017 and to record it, had exceeded his powers in any way. In this context, it referred also to Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention, which enshrined the right to a public hearing. In conclusion, the Disciplinary Chamber held that the applicant’s act could not have been characterised as an abuse of his powers or a failure to fulfil his duties as specified in Article 231 of the Criminal Code (“the CC”). 40. Secondly, the Disciplinary Chamber refuted the prosecutor’s assertion that the act imputed to the applicant had carried the constituent elements of the offence defined in Article 241 § 1 of the CC. It noted that it was clear from the literal wording of this provision that that offence could not have been committed by someone who, acting as an authority, disseminated information from an investigation in court proceedings. The Disciplinary Chamber noted that in the case at hand, the “disclosure” of information from the investigation had taken place in court proceedings and emphasised that it had been made in the absence of any objection from the prosecutor conducting the investigation. 41. The Disciplinary Chamber concluded that the disclosure of material from the investigation at the public court session concerning the examination of an interlocutory appeal against the discontinuance of the investigation could not have been characterised as an offence under Article 241 of the CC, since it had taken place in the course of the court proceedings and the disclosure of information had been made by an authorised body. 42. On 16 June 2020 the prosecutor lodged an interlocutory appeal. He claimed, inter alia, that the applicant had, in accordance with Article 95b § 1 of the CCP, the competence to decide that the session could be held in public and to admit the representatives of the media to the session; however no provision of the law authorised him to disclose the evidential material from the investigation. The second-instance decision of the Disciplinary Chamber
43. On 18 November 2020 the Disciplinary Chamber, sitting as the second-instance court, in a formation of three judges, P.S. Niedzielak, J. Sobutka and K. Wytrykowski, partly allowed the prosecutor’s interlocutory appeal and amended the first-instance resolution (no. II DO 74/20). It took its decision by a majority, with Judge J. Sobutka dissenting. The Disciplinary Chamber lifted the applicant’s immunity and permitted him to be held criminally liable with regard to the charge under Article 241 § 1 of the CC. The charge against the applicant was that, as president of the single-judge formation of the Warsaw Regional Court during the session of 18 December 2017, while giving oral reasons for the decision, he had publicly disclosed without permission – through the media – information from the investigation conducted by the Warsaw Regional Prosecutor’s Office. 44. The Disciplinary Chamber further decided, pursuant to section 129(2) and (3) of the 2001 Act, to suspend the applicant from his judicial duties and to reduce his salary by 25% for the duration of his suspension. 45. The Disciplinary Chamber found that the first-instance court had erred in adopting an extensive interpretation of the notion of “court proceedings”, one of the constituent elements of the offence under Article 241 § 1 of the CC, which defined the moment up to which the disclosure of information from pre-trial proceedings without authorisation was punishable. It noted that “court proceedings” under that provision were only those proceedings that were subsequent to the conclusion of pre-trial proceedings and were initiated by the filing of a bill of indictment or an equivalent pleading in court and which were conducted in a hearing or session dealing with the issue of the criminal liability of the person concerned. Accordingly, it should be clear that disclosure of information from pre-trial proceedings, without the permission of the relevant authority (the prosecutor), was punishable until the final conclusion of the pre-trial proceedings. However, the conduct of the applicant had taken place after the order setting aside the non-final decision to discontinue the proceedings and referring the case for further pre-trial proceedings had been given, i.e. when the pre-trial proceedings were still ongoing. The Disciplinary Chamber noted that judicial review of the prosecutor’s decisions to discontinue pre-trial proceedings or to refuse to initiate such proceedings were judicial acts in pre-trial proceedings, which were not “judicial proceedings” within the meaning of Article 241 § 1 of the CC. 46. It went on to observe that an order to hold a session in public was not a discretionary decision, but had to take into account the circumstances of a given case. In the instant case, the nature and objectives of the pre-trial proceedings, including the fact that the interest of those proceedings was protected directly by Article 241 § 1 of the CC, could not be extinguished through the possibility provided for in Article 95b § 1 of the CCP. There might be cases in which the possibility of ordering that a session be held in public would be excluded or significantly limited owing to the interest protected by Article 241 § 1 of the CC. The Disciplinary Chamber found that the Warsaw Regional Court (the applicant), when deciding to hold the session in public, should have considered whether allowing the recording of the session by the media was at all admissible in the circumstances of the case. Once he had so decided, he should have conducted the session in such a way that the offence under Article 241 § 1 of the CC would not be committed. 47. From this point of view, the Disciplinary Chamber noted that the last few minutes of the giving of oral reasons for the decision had been particularly critical. In this part, the applicant had read out extensive excerpts from the minutes of the questioning of witnesses, commented on them and quoted the content of other material from the pre-trial proceedings, when not all of the resulting information was already known to the public beforehand, in particular from the MPs’ recordings of the proceedings in the Sejm’s Column Hall and their direct reports of those proceedings. 48. The Disciplinary Chamber noted that in view of his order to allow the media to record the session under Article 357 § 1 of the CCP, the judge should have given oral reasons for his decision in a general manner so as not to give rise to a reasonable suspicion that he had committed an offence under Article 241 § 1 of the CC. Then, he would have been able to present a detailed analysis of the evidence examined by the prosecutor in the written reasons for the decision, which were, as a rule, only available to the parties. 49. The Disciplinary Chamber also examined whether the applicant’s act could be characterised as an offence under Article 231 § 1 and Article 266 § 2 of the CC, both of which required an act to the detriment of public interest. It found that the evidence adduced by the prosecutor did not justify a conclusion that the applicant’s act amounted to any threat to the public interest. In this regard, the Disciplinary Chamber noted that it did not result from the material produced in the proceedings, which included the testimony of the prosecutor in charge of the impugned investigation, that the giving of oral reasons by the applicant had given rise to any real threat to the public interest. The absence of such a threat had been explicitly confirmed by the press releases published by the State Prosecutor’s Office, which showed that there had been no difficulties in conducting the investigation after the applicant had publicly given oral reasons for the decision of 18 December 2017. 50. Nonetheless, the Disciplinary Chamber found that, in the light of the constituent elements of the offence under Article 241 § 1 of the CC, there was a reasonable suspicion that the applicant had committed the impugned offence by giving reasons for his decision in a manner that was unnecessary and contrary to that provision. 51. In conclusion, the Disciplinary Chamber found that on a proper interpretation of the term “court proceedings”, in the light of the evidence adduced by the prosecutor, in particular the video and audio recording of the applicant giving oral reasons for the decision made on 18 December 2017, which were publicly disseminated through the mass media, despite the fact that the Warsaw Regional Court set aside the prosecutor’s decision to discontinue the investigation which meant that the pre-trial proceedings had not ended, there was no doubt as to the reasonable suspicion that the offence under Article 241 § 1 of the CC had been committed by the applicant. 52. At the same time, the Disciplinary Chamber stressed that the offence prescribed in Article 241 § 1 of the CC was a formal offence, for the commission of which it was sufficient to take the action specified therein, without the occurrence of any negative effect of such an action, from the point of view of the interest protected by this provision. The occurrence of such an effect, on the other hand, should certainly affect the assessment of the degree of social harm caused by the act prohibited under Article 241 § 1 of the CC. In this context, the Disciplinary Chamber noted that the unauthorised disclosure of information from pre-trial proceedings could harm not only the proper functioning of the justice system, but also the individual rights of specific persons, including the participants in the pre-trial proceedings. 53. Lastly, the Disciplinary Chamber stressed that it was accepted in the Supreme Court’s case-law to date and legal scholarship that, since section 80(2c) of the 2001 Act provided for the necessity of establishing a reasonable suspicion that an offence has been committed, the degree of social harm caused by the act should also be examined, and not only the existence of the constituent elements of the offence as prescribed in the CC. However, even if this view were to be regarded as correct, it was primarily aimed at strengthening the control of the legitimacy of the initiation of criminal proceedings against judges, not in order to protect judges themselves, but mostly to protect citizens from the improper influence of other authorities on judicial independence. The Disciplinary Chamber noted that it was impossible to establish such a risk in the instant case, contrary to the suggestions of the applicant, some other judges and representatives of part of the media. It went on to observe that there were no circumstances indicating that the prosecutor’s action had been intended to serve any other purpose than those prescribed in the CCP in connection with a reasonable suspicion of a violation of the applicable criminal law. 54. The Disciplinary Chamber noted in this regard that, when assessing the degree of social harm caused by the applicant’s conduct, the possible hypothesis that this harm was negligible was not obvious for various reasons. Therefore, the question of social harm had to be decided by the court dealing with the merits of the case. 55. The President of the Warsaw Regional Court, Judge P. Schab, who had been appointed to that position by the Minister of Justice on 16 November 2020, immediately enforced the decision on the applicant’s suspension. 56. In a radio interview broadcast on 19 November 2020 the Minister of Justice/Prosecutor General stated in relation to the Disciplinary Chamber’s resolution of 18 November 2020:
“Judicial independence is not independence from everything and does not make a judge a God, but it means acting within the framework of the law. Judge Tuleya knows very well that he was issuing a decision concerning the investigation stage of the proceedings, where only the prosecutor ... can give permission to disclose to the public material from the investigation. Judge Tuleya clearly breached the letter of the law, and according to the Criminal Code, this breach constitutes an offence of disclosure of material from the pre-trial proceedings without the prosecutor’s consent, and, if we take the principle of equality before the law seriously, everyone must expect to be held criminally liable for breaching criminal norms.”
Application for leave to have the applicant arrested
57. On 16 December 2020 the prosecutor of the State Prosecutor’s Office issued a decision to charge the applicant with the offence under Article 241 § 1 of the CC. In order to present the applicant with the charge he was summoned to appear before the prosecutor conducting the investigation as a suspect on the following dates: 20 January, 10 February and 12 March 2021. The summonses were correctly served on the applicant, but he did not appear before the prosecutor. 58. On each of the three dates specified above, the applicant appeared in front of the building of the State Prosecutor’s Office participating in a demonstration concerning his case, publicly criticising the prosecutor’s conduct, questioning the legality of the Disciplinary Chamber’s resolution of 18 November 2020 and announcing to the media that he had refused and would refuse in the future to appear before the prosecutor. 59. On 15 March 2021 the prosecutor of the State Prosecutor’s Office applied to the Disciplinary Chamber of the Supreme Court for leave to have the applicant arrested (zatrzymanie i przymusowe doprowadzenie) with a view to being charged under Article 241 § 1 of the CC and questioned as a suspect. The prosecutor submitted that the applicant’s conduct had indicated his disrespectful attitude to his obligations as prescribed in the applicable law. In the prosecutor’s view, there was a high probability that the applicant would continue failing to comply with the summons. 60. On 22 April 2021 the Disciplinary Chamber, sitting as the first‑instance court in a single-judge formation (Judge A. Roch), dismissed the prosecutor’s application (no. I DI 18/21). 61. The Disciplinary Chamber first rejected the applicant’s argument that it could not hear the case owing to the CJEU’s interim order of 8 April 2020 (see paragraph 228 below) as the said interim order did not apply to proceedings concerning the immunity of judges. 62. The Disciplinary Chamber noted that following the final decision on lifting the applicant’s immunity in respect of the charge under Article 241 § 1 of the CC, the prosecutor had summoned the applicant on three occasions with a view to charging him and questioning him as a suspect. The Disciplinary Chamber found that the applicant’s attitude (see paragraphs 57‑58 above) had indicated that he did not intend to appear voluntarily. 63. In those circumstances, the Disciplinary Chamber accepted that the formal condition of arrest prescribed in Article 247 § 1(1) of the CCP had been made sufficiently probable. However, it noted that this did not mean that the disciplinary court, when examining an application for leave to arrest a judge, could limit itself to merely analysing the existence of the formal conditions referred to in the latter provision. In the context of arrest under Article 247 § 1(1) of the CCP it was also necessary to establish, on the basis of the adduced evidence, that there was a reasonable suspicion that a person concerned had committed a criminal offence. In this regard, the Disciplinary Chamber stressed the importance of maintaining a balance between, on the one hand, securing public order and the fulfilment of procedural obligations and, on the other hand, the right to liberty. 64. The Disciplinary Chamber stressed that in a case which concerned an application for leave to arrest a judge, it did not carry out a renewed assessment with regard to the decision on lifting of immunity which had already been made. A final decision in this respect could not be challenged. However, the Disciplinary Chamber had to independently make the necessary findings for the purposes of its decision on a person’s arrest, also with regard to the existence of a reasonable suspicion that an offence had been committed. 65. Thus, the Disciplinary Chamber moved to verify whether it could allow the prosecutor’s application for the applicant’s arrest. In this regard it took account of the legal scholarship and the case-law, referring in particular to the Supreme Court’s resolution of 28 March 2012, no. I KZP 26/11. In that decision the Supreme Court held, having regard to Article 45 § 1 of the Constitution and the constitutional meaning of the term “case”, that although sessions in the course of pre-trial proceedings should be held in camera, this did not apply to sessions in which the court examined an interlocutory appeal against decisions terminating the pre-trial proceedings, namely those refusing to initiate or discontinuing an investigation. The Disciplinary Chamber found that under the current legislation, and approving of this understanding of the term “case”, the court or the president of the court should and certainly could conduct sessions in this category of cases in open court. 66. Having regard to the above, the Disciplinary Chamber noted that a session where the court examined an interlocutory appeal against the prosecutor’s decision discontinuing the investigation conducted at the ad personam stage should certainly be held in public. At the same time, the interest of secrecy of pre-trial proceedings did not, in principle, make any difference with regard to the status of sessions concerning cases where no one had been charged. Consequently, it was not erroneous to hold that also those sessions where the court could finally terminate the criminal proceedings conducted at the in rem stage should be held in public. 67. The Disciplinary Chamber stressed that if the court or its president decided to hold a session in public in accordance with Article 95b § 1 of the CCP, this decision alone could lead to the possible disclosure of information from the pre-trial proceedings, in a case where even a dozen persons might appear for the session. Thus, it was not necessary for the disclosure to take place by means of the mass media, all the more so as the granting of permission to the media to record the session, despite the merely mutatis mutandis application of Article 357 § 1 of the CCP, was in principle obligatory. The Disciplinary Chamber noted that a public session (jawne posiedzenie) was governed by the same rules as those which applied to a public hearing. The presence of the media enhanced the dissemination, but was not its essence, and the decision referred to in Article 357 of the CCP was secondary to the decision ordering that a session be held in public. 68. The Disciplinary Chamber found that the content of reasons for a decision (be it written or presented orally) could not be limited in any way in order to avoid the disclosure of certain information originating from the pre-trial proceedings. It noted in this regard that when setting aside a decision discontinuing the investigation, the court should indicate the acts to be taken in the course of the pre-trial proceedings, stating, where necessary, on the basis of which material it took that decision and why certain deficiencies or doubts needed to be addressed. Referring to the importance of giving reasons for judicial decisions, the Disciplinary Chamber held that any discretionary restriction on the scope of the written reasons or oral reasons in proceedings held in public would in fact defeat the purpose of ordering a session to be held in public, since the control function of that exercise would effectively be eliminated. 69. Furthermore, the Disciplinary Chamber noted that it was undisputed that only information that was previously unknown to the public could constitute the object of the offence under Article 241 § 1 of the CC. However, in the course of the investigation conducted by the State Prosecutor’s Office, it was not established which specific information, disclosed by the applicant during the session of 18 December 2017, was of such a nature. It was common knowledge that the investigation carried out by the Warsaw Regional Prosecutor concerned events in the Sejm which were widely known and commented on in public. The participants in those events also commented on them in the media, presenting recordings made with private mobile phones. The media had broadcast various materials showing the course of events being the subject of the investigation. Thus, the dissemination of information, even if originating from the pre-trial proceedings, in so far as it was already generally known beforehand, could not be punishable on the basis of Article 241 § 1 of the CC, because in such a case there was no threat to the proper functioning of justice. 70. The Disciplinary Chamber noted that the prosecutor, apart from vaguely stating in the grounds of the application for the lifting of immunity that it concerned the testimony of witnesses, had not specified what precise information contained in that testimony had been disseminated by the applicant. Nor had he shown that this action caused any real threat to the interest of the pre-trial proceedings. The Disciplinary Chamber stressed that the failure to specify the precise content of the information allegedly disseminated made it impossible not only to verify the question of its disclosure, but also to examine the possible impact of the alleged disclosure on the pre-trial proceedings. 71. The Disciplinary Chamber observed that the prosecutor M. K., who had conducted the investigation in the Warsaw Regional Prosecutor’s Office and attended the court session on 18 December 2017, when questioned as a witness, had testified that the public delivery of the main reasons for the decision by the applicant had not had any adverse effects on the remitted investigation. This was also apparent from the reasons for the second prosecutor’s decision on discontinuance of 26 April 2018. In this particular case, the Disciplinary Chamber noted that no threat to the effectiveness of the investigation had been established. 72. In those circumstances, the Disciplinary Chamber found that there was no sufficient probability that the applicant had committed the impugned offence, taking into account the existence of different interpretations in the case-law and scholarship as to the possibility and the consequences of ordering a session to be held in public in the course of pre-trial proceedings. As a result, there was no reasonable suspicion that the applicant had acted with the intention of disclosing the protected information from the pre-trial proceedings within the meaning of Article 241 § 1 of the CC. It was also impossible to sufficiently indicate whether and, if so, which specific information from the pre-trial proceedings was disseminated and what, if any, risk this could pose to the proper conduct of the pre-trial proceedings. 73. Furthermore, the Disciplinary Chamber noted that, notwithstanding the above, the disclosure of information from the pre-trial proceedings could lead to criminal liability if the degree of social harm caused by the impugned act was more than insignificant, just as in respect of any offence. Therefore both in the proceedings for permission to hold a judge criminally liable or to have him arrested, it was necessary to establish whether the social harm caused by the alleged act was not manifestly insignificant. 74. The Disciplinary Chamber noted that, even though the applicant’s act was allegedly intended to undermine the effectiveness of the investigation carried out by the Warsaw Regional Prosecutor, the prosecutor M.K. in charge of the continued investigation had testified that its interest had not been affected in any way. No other evidence in the case pointed to that risk. In addition, the applicant’s motives regarding his decision to hold the session in public did not indicate any harm caused by his act. The Disciplinary Chamber noted that the material of the investigation had shown that he was motivated by a desire to present to the public the grounds for the decision to discontinue the investigation and the motives behind the court’s decision in a case that had aroused much public controversy. It further observed that in the case examined by the applicant the transparency of public life was of particular importance, both because the victims and potential suspects were persons holding public office and because the prosecutor was investigating the possibility of criminal action against fundamental interests of the State. The Disciplinary Chamber found that there were clearly no sufficient grounds to conclude that the social harm caused by the act imputed to the applicant had been more than insignificant. 75. In conclusion, the Disciplinary Chamber found that, in accordance with the principle of proportionality relevant for the application of the coercive measure of arrest, there was no reasonable suspicion that the applicant had committed an offence under Article 241 § 1 of the CC. Consequently, there were no sufficient grounds for allowing the prosecutor’s application. 76. On 14 May 2021 the prosecutor lodged an interlocutory appeal against the Disciplinary Chamber’s decision of 22 April 2021. Resolution of the Chamber of Professional Liability of 29 November 2022 (II ZIZ 4/22)
77. The interlocutory appeal was to be examined by a different panel of the Disciplinary Chamber. However, the Disciplinary Chamber did not rule on it owing to difficulties in forming the panel, as a number of judges withdrew from sitting in the case. Ultimately, on 14 July 2022 the Acting President of the Disciplinary Chamber decided to transfer the applicant’s case to the new Chamber of Professional Liability (Izba Odpowiedzialności Zawodowej – “the CPL”). 78. On 15 July 2022, upon the entry into force of the Act of 9 June 2022 Amending the Act on the Supreme Court and Certain Other Acts (“the 2022 Amending Act”), the Disciplinary Chamber of the Supreme Court was abolished and the new CPL was established (for further details see paragraphs 181-187 below). 79. On 15 July 2022 the First President of the Supreme Court designated five judges of that court (Judges W. Kozielewicz, D. Kala, M. Wąsek‑Wiaderek, M. Siwek and K. Wiak) to adjudicate in the CPL on a transitional basis. 80. On 8 September 2022 the applicant’s case was assigned to a formation of three judges composed of W. Kozielewicz, M. Wąsek-Wiaderek (the rapporteur) and D. Kala. All these judges were appointed to the Supreme Court on recommendation of the “old” NCJ, operating before the entry into force of the Act of 8 December 2017 Amending the Act on the NCJ (“the 2017 Amending Act”). 81. On 14 November 2022 the applicant requested that Judges W. Kozielewicz and D. Kala be removed from hearing the case on account of doubts as to their impartiality. He argued, inter alia, that both judges had agreed to sit in judicial formations with judges appointed to the Supreme Court on the recommendation of the recomposed NCJ, thus ignoring the resolution of the joined Chambers of the Supreme Court of 23 January 2020 as well as the well-established case-law of the CJEU and of the Court, namely Reczkowicz (cited above), Dolińska-Ficek and Ozimek (nos. 49868/19 and 57511/19, 8 November 2021) and Advance Pharma sp. z o.o. (no. 1469/20, 3 February 2022). Furthermore, both judges annexed their dissenting opinions to the above-mentioned resolution of the joined Chambers of the Supreme Court. The applicant also requested that the judges of the Supreme Court appointed on the recommendation of the recomposed NCJ be excluded from ruling on his request for the exclusion of Judges W. Kozielewicz and D. Kala. 82. On 17 November 2022 the CPL held a session in the case. 83. On 29 November 2022 the CPL gave its resolution (no. II ZIZ 4/22). First, it dismissed the prosecutor’s interlocutory appeal and upheld the Disciplinary Chamber’s decision of 22 April 2021 (see paragraph 60 above). Secondly, the CPL, of its own motion, set aside the Disciplinary Chamber’s resolution of 18 November 2020 in the part regarding the applicant’s suspension from his judicial duties and reduction of his salary for the duration of that suspension. 84. With regard to the interlocutory appeal, the CPL found that it was manifestly ill-founded. It dismissed the prosecutor’s argument that the court, in deciding on an application for leave to have a judge arrested, had been bound by an earlier decision of the court lifting the judge’s immunity as regards the existence of a reasonable suspicion that an offence had been committed. The CPL agreed in this regard with the Disciplinary Chamber’s decision of 22 April 2021 that, for an arrest under Article 247 § 1(1) of the CCP to be lawful, the condition of reasonable suspicion had to be satisfied (see paragraphs 64-75 above). The contrary view could not be accepted in the light of the constitutional and Convention standards. 85. The CPL had no doubt that the applicant, while deciding to hold in public the session of 18 December 2017, the subject of which was to examine an interlocutory appeal against the decision refusing to initiate the investigation, had acted on the basis and within the limits of the law, and therefore his action did not comprise the constitutive elements of the offence provided for under Article 241 § 1 of the CC. The competence of the court (in practice, the judge adjudicating in a single-judge formation) to hold that session in public followed directly from the applicable provisions, namely Article 95b § 1 of the CCP. Furthermore, the admission of the media to report on that session had a clear basis in Article 95b § 3 of the CCP, which, with regard to open sessions, mandated that the provisions on the participation of the media in a hearing should apply accordingly. The CPL went on to note that since the legislature had created a legal basis of statutory rank (Article 95b § 1 of the CCP) enabling the court to hold a session in public, including a session which concerned a review of the refusal to initiate the investigation, it could not be accepted that a judge hearing a case in such an open session committed the offence under Article 241 of the CC. 86. The CPL further referred to the Disciplinary Chamber’s finding that the applicant’s actions had not constituted a threat to the interest of that specific set of pre-trial proceedings. It agreed with those arguments, but at the same time, having determined that the applicant had acted in accordance with the applicable law, it was unnecessary to assess the social harm of his actions at all. Accordingly, the prosecutor’s interlocutory appeal against the resolution of 22 April 2021 was manifestly ill-founded. 87. Furthermore, the CPL found that the impugned resolution should have been upheld despite the fact that it had been given by the Disciplinary Chamber of the Supreme Court, that is, a body which, in accordance with the rulings of the CJEU, the Court and the Supreme Court, did not guarantee the right to an independent and impartial tribunal established by law (referring, inter alia, to the CJEU’s judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges), C-791/19 and the Court’s judgment in Reczkowicz (cited above)). It noted that the rulings issued by such a body should have been removed from the legal system. This had been unequivocally confirmed in the 2022 Amending Act, which introduced both the requirement to “review”, of its own motion, the Disciplinary Chamber’s decision on suspension of a judge from his or her duties – to be done at the first session in the case – and the possibility of challenging, at the judge’s request, any final resolution allowing a judge to be held criminally liable if it was issued with the participation of a judge of the Disciplinary Chamber (sections 9 and 18 of the 2022 Amending Act, respectively; see paragraphs 186-187 below). However, in the applicant’s particular case, given that the impugned resolution was as favourable as possible to him and, at the same time, sharing in principle, the reasoning expressed in the resolution, the CPL decided to uphold it. 88. The CPL noted that its ruling had resulted in a final termination of the proceedings concerning the prosecutor’s application for leave to have the applicant arrested, while the setting-aside of the impugned resolution of the Disciplinary Chamber would have resulted in the case having to be remitted to the CPL for examination at first instance. In view of the evident lack of grounds for consenting to the applicant’s arrest, the CPL considered that the continuation of the proceedings in question, even if prompted by respect for the important procedural directive to remove grossly flawed decisions from the legal system, would be unjust and ill-founded. Furthermore, the CPL found that the upholding of the impugned resolution, despite its adoption by the Disciplinary Chamber, did not conflict with the obligation to comply with the Court’s judgment in Reczkowicz (cited above). It noted that the applicant’s case, whose subject-matter concerned an application for leave to have a judge arrested, was part of the procedure for allowing a judge to be held criminally liable. It was thus subject to the procedural requirements of Article 6 of the Convention (as, rightly, found in the Supreme Court’s decision of 14 September 2022, no. I KZP 7/22). However, in the Convention system, violations of procedural rights under Article 6 of the Convention that occurred during proceedings terminated by acquittal or discontinuance could not be successfully invoked (see, in particular, Batmaz v. Turkey, no. 714/08, §§ 34-37, 18 February 2014, where the complaint of a failure to ensure the right to an independent and impartial tribunal established by law was declared inadmissible on that basis; see also Khlyustov v. Russia, no. 28975/05, § 103, 11 July 2013; it is only permissible to complain about the unreasonable length of such proceedings). Accordingly, the giving of a ruling that was as favourable as possible in a case resulted in the loss of the status of “victim” within the meaning of Article 34 of the Convention. The CPL noted that such position of the Court supported the view that, despite the finding in Reczkowicz that the Disciplinary Chamber was not a tribunal satisfying the requirements of Article 6 of the Convention, and in view of the decision reached in the impugned resolution of that Chamber, the fact it was upheld did not constitute a violation of the applicant’s right to a fair hearing. 89. In so far as the applicant’s suspension was concerned, on the basis of section 9 of the 2022 Amending Act, the CPL decided, of its own motion, to set aside the Disciplinary Chamber’s resolution of 18 November 2020 in the part regarding the applicant’s suspension and the 25% reduction of his salary for the duration of that suspension. 90. Having analysed section 9 of the 2022 Amending Act, the CPL found that this provision allowed it to examine the measures ordered by the Disciplinary Chamber in the form of suspension of a judge and reduction of his or her remuneration, regardless of whether they had been ordered in connection with the disciplinary proceedings or in connection with the lifting of the judge’s immunity. In accordance with this provision, the CPL was to undertake such an examination “of its own motion, at the first session in the case”. It had therefore to be assumed that it was the legislature’s will that the new CPL would review of its own motion all measures imposed in the form of “suspension of a judge and reduction of his or her remuneration”. 91. Having compared section 9 of the 2022 Amending Act with its section 18 (see also paragraphs 186-187 below), the CPL noted that in accordance with the latter provision a review of the final decisions of the Disciplinary Chamber on lifting the judge’s immunity was possible at the judge’s request. It found that such a legal solution was inconsistent and dysfunctional since it disregarded the fact that, in accordance with section 129(2) and (3) of the 2001 Act, when adopting a resolution permitting a judge to be held criminally liable in respect of an intentional offence prosecuted by public prosecution, the disciplinary court automatically decided to suspend the judge from his or her duties, which in turn, entailed the obligation to reduce his or her remuneration by 25 to 50% for the duration of the suspension. 92. The CPL further noted that an analysis of the 2022 Amending Act led to the conclusion, although this was not apparent from the explanatory report accompanying it, that the legislature had noted the unequivocal position of the Court and the CJEU that the Disciplinary Chamber could not be regarded as an independent and impartial tribunal established by law within the meaning of Article 6 § 1 of the Convention and Article 47 of the Charter of Fundamental Rights. In view of that conclusion, the legislature had created a separate legal basis for the review and annulment of decisions suspending judges from their duties and reducing their remuneration, if the CPL found those decisions to be unjustified. Thus, it had to be assumed that section 9 of the 2022 Amending Act introduced a statutory basis for reviewing the legitimacy of a decision to suspend a judge and reduce his or her remuneration also in those cases in which suspension and reduction of remuneration was mandatory under section 129(2) and (3) of the 2001 Act. 93. The CPL emphasised again that the legal solutions ultimately adopted in the transitional provisions of the 2022 Amending Act were inconsistent. On the one hand, section 9 of the Act allowed the CPL to act of its own motion with regard to the verification of the provisional measures applied (e.g. suspension), while on the other hand, with regard to the issue of verification of the decision lifting the immunity of a judge, section 18 of the same Act provided that this was possible only at the request of the judge concerned. In view of the above, taking into account the content of section 9 of the 2022 Amending Act, the CPL found itself competent to act in this case of its own motion only with regard to the verification of the legitimacy of the provisional measures applied. 94. The CPL considered that it was obliged to apply section 9 of the 2022 Amending Act, despite the fact that it was not deciding on a request for authorisation to hold a judge criminally liable, but was ruling for the first time on the interlocutory appeal against the refusal to grant leave to have the applicant arrested with a view to being charged. It adopted such a view because of the functional, inseparable link between the subject matter of the present proceedings and the proceedings in which provisional measures in the form of suspension of the applicant from his duties and reduction of his remuneration for the duration of the suspension had been applied. It noted that both the Disciplinary Chamber’s resolution of 22 April 2021, which was the subject of the present proceedings, and the Disciplinary Chamber’s resolution of 18 November 2020, had been issued in the framework of the immunity proceedings, i.e. proceedings for authorisation to hold the applicant criminally liable. Moreover, the granting of leave to have a judge arrested with a view to being charged, as well as the application of the provisional measures referred to above in the “immunity procedure”, required the fulfilment of the same substantive condition, namely the establishment of a reasonable suspicion that a criminal offence had been committed. 95. The CPL found that the applicant’s conduct had not comprised the constitutive elements of an offence and this conclusion resulted in upholding the Disciplinary Chamber’s resolution refusing authorisation for the applicant’s arrest. In its view, the fact of endorsing the Disciplinary Chamber’s findings led to the removal of the conditions for the application of a sui generis preventive measure in the immunity proceedings, namely the suspension of a judge from his duties, which allowed the CPL to act of its own motion to the extent indicated in section 9 of the 2022 Amending Act. 96. On 29 November 2022 Judges W. Kozielewicz and D. Kala made a declaration in connection with the applicant’s request for their removal from the case. They stated that they had annexed their dissenting opinions to the resolution of the joined Chambers of the Supreme Court of 23 January 2020 since they disagreed with the legal view adopted in the resolution. They also noted that the right to express a dissenting opinion was one of the guarantees of judicial independence. Decision of the Chamber of Professional Liability concerning the applicant’s request for removal of judges
97. On 31 January 2023 the CPL sitting in a single-judge formation (Judge M. Siwek), dismissed the applicant’s request for removal of Judges W. Kozielewicz and D. Kala from the case no. II ZIZ 4/22 as ill-founded. It found that none of the circumstances invoked by the applicant justified his doubts about the impartiality of those judges. 98. The CPL noted that the judge’s right to express a dissenting opinion was one of the aspects of judicial independence. As regards the resolution of the joined Chambers of the Supreme Court of 23 January 2020, it observed that the Constitutional Court in its judgment of 20 April 2020 (no. U 2/20) had held that the said Resolution was incompatible, inter alia, with several constitutional provisions and Article 6 § 1 of the Convention. It found that, in consequence, the said resolution had been removed from the legal system. 99. Furthermore, the CPL disagreed with the applicant’s argument that adjudication in formations with judges appointed to the Supreme Court on the recommendation of the recomposed NCJ was incompatible, inter alia, with the Court’s judgments. As regards the Court’s judgments referred to by the applicant, it pointed out that those judgments were first of all binding on the parties to the case in which they had been given. In its view, the Court’s judgments did not create universally binding norms, in particular of a constitutional nature. In this connection, the CPL referred to the Constitutional Court’s judgment of 10 March 2022 (no. K 7/21) in which that court had held that Article 6 § 1 of the Convention was incompatible with several provisions of the Constitution (see paragraphs 206-207 below). It further referred to the Constitutional Court’s judgment of 7 October 2021 (no. K 3/21) where that court had held that several provisions of the TEU were incompatible with the Constitution. The CPL noted that those judgments, which according to the Constitution were final and universally binding, responded to the arguments raised by the applicant relating to the adjudication by Judges W. Kozielewicz and D. Kala in formations with judges appointed to the Supreme Court on the recommendation of the recomposed NCJ. 100. Lastly, as regards the applicant’s request that the judges of the Supreme Court appointed on the recommendation of the recomposed NCJ be excluded from ruling on his principal request for removal of judges, the CPL found than in accordance with the Supreme Court’s established case-law a party to the proceedings was not entitled to request the exclusion of a judge designated to hear an application for the removal of another judge. Other facts
101. In the light of the material in the Court’s possession, the criminal proceedings against the applicant are still pending. 102. On 16 April 2023 the portal onet.pl published an interview with the applicant. In that interview the applicant stated that he had been summoned to the State Prosecutor’s Office to give evidence as a witness in a case. Shortly afterwards, the applicant was approached on the corridor by a prosecutor and invited to his office. The prosecutor informed the applicant that he was in charge of the investigation in the “Column Hall vote” case and asked the applicant if he could present charges to him in that case, but the applicant refused and left. REFERENCE FOR A PRELIMINARY RULING MADE ON 18 NOVEMBER 2020
103. On 18 November 2020 the Warsaw Regional Court, sitting in a panel composed of the applicant, submitted a reference for a preliminary ruling to the CJEU in criminal case no. VIII K 105/17. The request concerned the status of the Disciplinary Chamber and its judges as well as the competences of that body. Consequently the Warsaw Regional Court stayed the proceedings. On 28 June 2022 the CJEU held a hearing in the case (C-615/20). The proceedings are pending. 104. The prosecutor lodged an interlocutory appeal against the Regional Court’s decision to stay the proceedings, claiming that the applicant was not authorised, within the meaning of Article 439 § 1(1) of the CCP, to do so. He argued that the Disciplinary Chamber’s resolution of 18 November 2020 had deprived the applicant of the right to exercise judicial duties. 105. On 24 February 2021 the Warsaw Court of Appeal, sitting in a formation of three judges, M. Piekarska-Drążek (the rapporteur), D. Tyrała and P. Filipkowski, dismissed the interlocutory appeal as manifestly ill‑founded. It noted that the prosecutor had unsuccessfully attempted to challenge the Warsaw Regional Court’s decision to stay the proceedings as a result of that court’s preliminary reference to the CJEU. The prosecutor in fact intended to challenge the very existence of those two decisions by raising a ground of appeal under Article 439 § 1(1) of the CCP, i.e. the most serious procedural flaw leading to the automatic setting-aside of the challenged decision, if that flaw had actually occurred. The Court of Appeal observed that the prosecutor had intended to have both decisions, namely on the stay and on the preliminary reference set aside, while legally he could not have challenged the preliminary reference. 106. In the Court of Appeal’s view, those actions of the prosecutor could not be dissociated from the initial reasons for the prosecution’s application to lift the applicant’s immunity. The allegation that the applicant had committed criminal offences had been made on account of the strictly procedural decisions taken by the Warsaw Regional Court, which had adjudicated in a case concerning a breach of parliamentary procedures by public officials of the majority in the Sejm. The Court of Appeal held that the prosecutor’s plea that the decision to stay the proceedings had been given by a “judge unauthorised to adjudicate”, referring to the lifting of the applicant’s immunity, was unfounded. It found that the prosecutor’s reliance on the Disciplinary Chamber’s resolution of 18 November 2020 was ineffective, being just as groundless and ineffective as that body’s resolution on the applicant’s immunity. 107. The Court of Appeal found that in the constitutional order recognised by it, the possibility of a challenge to the independence of a judge and independent decisions of a court by a body which did not have the attributes of a “court” could not be accepted. In accordance with Article 180 § 2 and Article 181 in conjunction with Article 45 § 1 of the Constitution, the suspension of a judge from office, the lifting of his or her immunity and permission to hold a judge criminally liable could only result from a final decision of a court – a court that was independent and impartial – in the course of the fair examination of a case. For the Court of Appeal, the operation of the Disciplinary Chamber had none of those characteristics. 108. The Court of Appeal shared the objections that the Disciplinary Chamber was not a “court” within the meaning of Article 45 § 1 of the Constitution, but rather an extraordinary body that could be temporarily established according to the Constitution in time of war. A body lacking the characteristics of a court, both as regards the procedural grounds for its establishment and the selection and appointment of its members, as well as an indispensable feature of a court, namely its independence, could not be considered a court. 109. In this regard the Court of Appeal found that the Disciplinary Chamber could not, therefore, rule on the disciplinary cases of judges, still less on cases involving the lifting of a judge’s immunity, the suspension of a judge from his duties or the authorisation of the deprivation of liberty of a judge. The activities of the Disciplinary Chamber in this regard since its inception, and which had intensified over the year 2020, were unacceptable and provided further evidence that the Disciplinary Chamber was pursuing a policy of sanctioning independent judges. 110. The Court of Appeal noted that the prosecutor’s allegation that the applicant (judge) had been stripped of his right to adjudicate disregarded the provisions of the Constitution, the decisions of the Supreme Court and the CJEU, as well as international conventions and treaties which guaranteed everyone, including judges, the right to have their case heard by an independent court. It invoked in this respect, inter alia, the CJEU’s preliminary ruling of 19 November 2019 in A.K. and Others (C‑585/18, C‑624/18 and C‑625/18), the Supreme Court’s judgment of 5 December 2019, no. III PO 7/18, the resolution of the joined Chambers of the Supreme Court of 23 January 2020 and the CJEU’s interim decision of 8 April 2020 (C-791/19 R). There was therefore no doubt that the Disciplinary Chamber should not adjudicate in disciplinary cases of judges, still less in cases entailing the lifting of a judge’s immunity and suspension from his or her duties, i.e. in cases with the most far-reaching consequences for the status of a judge. It was inadmissible for the Disciplinary Chamber to rule in those matters, including in the applicant’s case, disregarding the rulings mentioned above. Consequently the applicant remained an ordinary judge (at all times), with immunity and the right to adjudicate attached to that office; he was therefore entitled to issue decisions to make a preliminary reference and to stay proceedings on 18 November 2020 in case no. VIII K 105/17 as a court – the Warsaw Regional Court. 111. The Court of Appeal also noted that the prosecutor’s current concern not to interrupt the course of a criminal case in which the court had stayed the proceedings was a pretence, since it was at the request of the prosecution that the Disciplinary Chamber had issued the resolution lifting the applicant’s immunity. The applicant’s suspension was the result of those authorities’ actions, known to them from the outset, in the form of stopping the course of all cases assigned to him, often involving complex and labour-intensive criminal trials. It could be inferred from those actions that neither the course of case no. VIII K 105/17, nor the efficiency of other proceedings, nor even the interest of the parties to those proceedings, including the harm to victims of crime and the interest of the administration of justice in general, was considered a higher good. 112. In his press release of 28 February 2021, relating to the Warsaw Court of Appeal’s decision of 24 February 2021, the President of the Warsaw Regional Court, Judge P. Schab stated that the applicant remained suspended. He noted that the above-mentioned decision had determined only the question of the validity of the stay of proceedings in criminal case no. VIII K 105/17 and had no impact on the need to comply with the Disciplinary Chamber’s resolution of 18 November 2020. 113. Further to the Court of Appeal’s decision of 24 February 2021, on 1 March 2021 the applicant requested the President of the Warsaw Regional Court, Judge P. Schab, who was at the same time the disciplinary officer, to allow him to resume his judicial duties. On 2 March 2021 the Vice-President of the Warsaw Regional Court, Judge P.W. Radzik, who was at the same time the deputy disciplinary officer, informed the applicant that in the light of the Disciplinary Chamber’s resolution of 18 November 2020 his request could not be granted. CIVIL PROCEEDINGS AGAINST THE WARSAW REGIONAL COURT
114. On 8 March 2021 the applicant lodged an application for an injunction against the Warsaw Regional Court with the Warsaw Praga‑Południe District Court (labour division). He sought, inter alia, to be allowed to exercise his rights and duties as a judge. 115. On 23 September 2021 the Warsaw Praga-Południe District Court dismissed the application. The applicant lodged an interlocutory appeal. 116. On 21 March 2022 the Warsaw Praga Regional Court amended the first-instance decision and granted the injunction (no. VII Pz 48/21). It ordered the Warsaw Regional Court to allow the applicant to exercise his rights and duties as judge of the latter court for the duration of the main proceedings. It further ordered the applicant to bring proceedings in respect of his claim within two weeks from the service of the injunction. The injunction of 21 March 2022 was final. 117. On 24 March 2022 the applicant sent the Warsaw Regional Court a request for enforcement of the final decision of 21 March 2022. He informed the court that he intended to report to work on 28 March 2022 and that in case of non-compliance with the injunction he would be obliged to initiate enforcement proceedings in this connection. In his reply of 25 March 2022 the Vice-President of the Warsaw Regional Court, Judge P.W. Radzik requested the applicant to rectify the formal shortcomings of his request by producing a copy of a decision setting aside the Disciplinary Chamber’s resolution of 18 November 2020. The applicant renewed his request for enforcement of the decision of 21 March 2022. In a reply of the same day, the Vice-President of the Warsaw Regional Court informed the applicant that there had been no legal grounds to allow his request, having regard to the Disciplinary Chamber’s resolution of 18 November 2020 suspending the applicant from his duties. 118. On 8 August 2022 the applicant sent the Warsaw Regional Court another request for enforcement of the final injunction of 21 March 2022. It appears that the injunction of 21 March 2022 has not been enforced to date. FACTS CONCERNING THE APPLICANT’S REINSTATEMENT
119. On an unspecified date in July 2022 Judge J. Przanowska-Tomaszek was appointed as President of the Warsaw Regional Court. On 5 August 2022 she decided to reinstate the applicant as of 8 August 2022 owing to the inactivity of the CPL of the Supreme Court as regards the examination of the Disciplinary Chamber’s resolution of 18 November 2020 concerning the applicant’s suspension. She also decided to place the applicant on leave from 8 August to 19 September 2022 in view of the need to use up his outstanding annual leave for 2018. 120. On 8 August 2022 the President of the Warsaw Court of Appeal, Judge P. Schab, who had meanwhile been promoted to that post from the previously held post of the President of the Warsaw Regional Court (see paragraph 55 above) and was, at the same time the disciplinary officer acting in the applicant’s cases, set aside – [apparently] exercising the administrative supervision over the Warsaw Regional Court – ­the decisions of the President of that court on the applicant’s reinstatement and taking of leave. He found that those administrative acts were incompatible with the final and enforceable resolution of the Disciplinary Chamber of 18 November 2020. 121. On 30 November 2022 the President of the Warsaw Regional Court informed the applicant that he would be reinstated as from that day, having regard to the resolution of the Supreme Court’s CPL of 29 November 2022 which set aside in part the Disciplinary Chamber’s resolution of 18 November 2020 (see paragraph 83 above). Subsequently, the applicant’s salary was adjusted to the full amount and he received his back pay. JUDGMENT OF THE SUPREME COURT OF 19 OCTOBER 2022, NO. II KS 32/21 REGARDING THE INDEPENDENCE AND IMPARTIALITY OF JUDGE P. SCHAB
122. On 19 October 2022 the Criminal Chamber of the Supreme Court, sitting in a formation of three judges (W. Wróbel, J. Matras and M. Pietruszyński), quashed a judgment of the Warsaw Court of Appeal in a criminal case. The impugned judgment was rendered by a judicial formation including Judges P. Schab and P.W. Radzik – the Disciplinary Officer for Ordinary Court Judges and his Deputy, respectively. 123. Analysing the procedure for appointment of Judge P. Schab to the Warsaw Court of Appeal, the Supreme Court found that, irrespective of the fact that an unconstitutional body (the recomposed NCJ) had recommended him, the Assembly of Judges of the Court of Appeal had not given its opinion on the candidature of Judge P. Schab. Moreover, the fact that he was the only candidate excluded the possibility of comparing his competences with those of other candidates. The Supreme Court further found that the analysis of the case indicated that the politically dominated NCJ had been determined to carry out the appointment procedure despite the lack of documents required by law, which could be regarded by the public as reflecting a special interest of that body in having Judge P. Schab appointed to a judicial post. 124. The Supreme Court further held that, in the context of assessing the fulfilment of requirements of independence and impartiality by Judge P. Schab, the circumstances surrounding his appointment by the political authorities to various positions were of a particular importance. In particular, the Minister of Justice, using the discretionary power created by the Act of 20 July 2018 amending the Act on the Organisation of Ordinary Courts and Certain Other Acts, on 30 May 2018 appointed Judge P. Schab to the position of Disciplinary Officer for Ordinary Court Judges. Furthermore, on 17 April 2019, Judge P. Schab was seconded by the Minister of Justice to adjudicate in the Warsaw Court of Appeal, then in November 2020 he was appointed by the same Minister to the post of the President of the Warsaw Regional Court and, later in July 2022, to the post of the President of the Warsaw Court of Appeal. The Supreme Court noted that all of those appointments had been of a discretionary nature, which in the public perception was regarded as reflecting an expression of trust in political power. It was also relevant that those appointments took place over a relatively short period of time and that most of them were made by the same politician serving as Minister of Justice. 125. The Supreme Court further found that another circumstance relevant in this context was the nature of Judge P. Schab’s activities as disciplinary officer or president of the court. It noted that as disciplinary officer Judge P. Schab and his deputies had initiated disciplinary proceedings against judges in respect of their judicial acts, in particular for submitting requests for preliminary rulings to the CJEU, or actions ensuring that the court panels be duly composed in accordance with the standards deriving from Article 45 of the Constitution of the Republic of Poland, Article 6 § 1 of the Convention and Article 47 of the Charter of Fundamental Rights. The Supreme Court also referred to decisions of Judge P. Schab in his capacity as President of the Warsaw Court of Appeal, whereby he had prevented judges applying EU law from adjudicating. 126. The Supreme Court concluded that the participation in the panel of the Court of Appeal which had given the impugned judgment of Judge P. Schab, appointed as judge of the Warsaw Court of Appeal in a defective procedure before the NCJ, did not meet the standard of due composition of a court formation referred to in Article 439 § 1 (2) of the Code of Criminal Procedure owing to the failure to observe the guarantees of impartiality and independence required by Article 45 § 1 of the Constitution of the Republic of Poland, Article 6 § 1 of the Convention and Article 47 of the Charter of Fundamental Rights. OTHER DEVELOPMENTS
127. On 14 July 2021, following the interim order issued by the Vice‑President of the CJEU in case C‑204/21 R (see paragraph 235 below), the applicant submitted a request to the President of the Warsaw Regional Court to allow him to resume his duties. In his reply of 20 July 2021, the Vice-President of the Warsaw Regional Court, Judge P.W. Radzik informed the applicant that there had been no legal grounds on which to allow his request. Referring to the Constitutional Court’s judgment of 14 July 2021 (no. P 7/20; see paragraph 204 below), he stated that the execution of the above-mentioned interim order would have constituted a violation of the Constitution. 128. On 20 July 2021, following the CJEU’s judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges) (see paragraphs 229‑233 below), the applicant requested the President of the Warsaw Regional Court to allow him to resume his judicial duties. He submitted that in the light of the CJEU’s judgment, the decision on the lifting of his immunity and his suspension had been given by a body which was not a “tribunal” within the meaning of EU law. In his reply of 23 July 2021 the Vice-President of the Warsaw Regional Court informed the applicant that in view of the Disciplinary Chamber’s resolution of 18 November 2020 his request could not be granted. 129. On 26 July 2021 the applicant filed a criminal complaint against the President and Vice-President of the Warsaw Regional Court, alleging that they had unlawfully refused to allow him to resume his duties despite the CJEU’s interim order of 8 April 2020 and the judgment of 15 July 2021, and thus had abused their powers. On 29 December 2021 the State Prosecutor’s Office refused to initiate an investigation into the case. 130. On 2 September 2021 the applicant requested the President of the Warsaw Regional Court to authorise him to give classes at the Koźmiński University and the School of Procedural Law “Ad Exemplum” in the academic year 2021/2022. He submitted that he had been collaborating with those two entities for the last few years. On 10 September 2021 the Vice‑President of the Warsaw Regional Court, Judge P.W. Radzik, who was at the same time the deputy disciplinary officer, refused that request. He found that the giving of classes by the applicant would compromise the dignity of the judicial office, referring to the decision permitting him to be held criminally liable and suspending him. 131. On 4 October 2021 the applicant sought a similar authorisation to give an on-line lecture on criminal law for members of the Warsaw Bar Council. On 6 October 2021 the Vice-President of the Warsaw Regional Court refused that request relying on the same grounds as in respect of the applicant’s earlier request. On 18 October and 3 November 2021 the Vice‑President of the Warsaw Regional Court refused two further similar requests of the applicant concerning lectures for members of the Warsaw Bar Council. SELECTED PUBLIC STATEMENTS OF THE APPLICANT
132. On 17 July 2018 the applicant was interviewed on the TVN24 television news channel as follows:
“Q: The judges have a difficult choice to make, because you have made the decision that maybe you [the judges] will run for the Supreme Court in order to actually delay the whole procedure. But on the other hand, it is also a choice that you accept the [new] NCJ, which you in turn recognise has been illegally appointed, and that is a little bit a tragedy of this situation. A: You very nicely said: ‘the tragedy of the whole situation’. What we are going to do we already know, but for the moment I cannot say it publicly. I think that at the end of the week there will be an official position of the Iustitia board. Of course we have a strategy, we have to adapt it to the changing circumstances. To what our ‘opponent’ (in inverted commas) allows us to do. Well, but we are united. We have a few ideas. Of course we will fight on the ground of law. Well, indeed some people have a dilemma, because it is difficult to appeal, to discuss with a body such as the current NCJ ... This is my position. On the other hand, there are judges who believe that out of ‘force majeure’, we should - while not recognising the NCJ - at the same time use all these available legal-procedural paths. Well, I’ll be honest and say that I don’t know what I’m going to do yet, but at this point it’s rather difficult for me to write or submit a request to a body that is not functioning. It has nothing to do with the judiciary anymore. It is a kind of fiction, like in 1984 where the Ministry of Truth dealt with propaganda, the Ministry of Peace with war. And the NCJ has so much to do with the judiciary that it destroys it, and the people who sit there are simply gravediggers of judicial independence. Q: I feel that you may be disciplined for these words. A: This can’t be deleted. What bad luck. Also, I think my individual reluctance will prevail here and I will not apply [for a post] at the Supreme Court even if there is a need to do so. I referred to Orwell to show the paradox of the institution ... Unfortunately, everything is heading in the wrong direction, which is why I think that judges should - in defence of values, because we defend values, we don’t defend particular people or posts - we should have an active role in this public, civic life. We should take part in demonstrations in defence of the courts. It is, firstly, a gesture of solidarity with people who defend the same values that we hold dear. And secondly, it is to show that it is not true that we are fighting for the ‘trough’. When we hear statements from politicians who threaten [us] with disciplinary proceedings for participating in demonstrations, it is by actively participating in the defence of the courts that we show that we do not care about our positions, but rather defend certain values. If we are threatened with removal from the profession for doing so, there are more important things than a judicial post or, as the politicians of the ruling camp say, the ‘trough’. Let us also stand together with the people.”
133. On 19 February 2019 the applicant was interviewed by the portal onet.pl. He stated, inter alia:
“A: It is indeed the case that judges and prosecutors who try to say out loud what they [think] about the so-called judicial reforms are exposed to various forms of harassment. It is no longer a matter of them having problems with promotion or finding it more difficult at work, but it is already concrete actions of disciplinary officers or even law enforcement agencies that are directed at them. Law enforcement agencies, that is, simply the prosecutor’s office. Here we have the example of Judge Żurek, who has been repeatedly interrogated by the CBA. ... It is not the case that our justice system works well. The judges see that a lot needs to be changed. Above all, procedures need to be improved and practitioners have their opinions [and] demands that they try to present to politicians, but politicians have never been interested in actually bringing the courts closer to the citizens. Over the last few years, you can see that they are only focused on either getting rid of inconvenient judges or muzzling judges who dare to stand up in defence of the courts. Q: Are you not afraid to speak out in the media and in public about what is happening in the Polish judiciary, given that you are also on this ‘black list’? A: Of course I am not afraid and I am convinced that the vast majority of judges are not afraid to express their views. This is simply our duty - to call a spade a spade. Of course we reckon with such consequences [potential removal from the profession], but these are costs that are built into our activity.”
OTHER SELECTED MATERIALThe OSCE Office for Democratic Institutions and Human Rights

134. In its press release of 20 November 2020 the OSCE Office for Democratic Institutions and Human Rights (ODIHR) stated as follows:
“The ruling by the Disciplinary Chamber of the Supreme Court of Poland on 18 November 2020, stripping Judge Igor Tuleya of his immunity, raises concerns about judicial independence in the country. The independence and impartiality of judges is a crucial component of the right to a fair trial. In both 2017 and 2020, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) made recommendations to improve legislation regarding the executive branch influence over disciplinary proceedings against judges in Poland. ODIHR reports have found that shortcomings in the current legal framework seriously undermine judicial independence and the separation of powers in Poland. Poland, like all OSCE participating States, has committed to “support and advance the independence of judges and the impartial operation of the public judicial service” as well as to “respect the internationally recognized standards that relate to the independence of judges”. ...”
The International Association of Judges
135. The International Association of Judges released the following statement about an application to lift the judicial immunity of Judge Igor Tuleya, a serving judge, due to be heard on 9 June 2020 by the Disciplinary Chamber of the Polish Supreme Court, which read in so far as relevant (original English):
“We are deeply concerned that the proceedings against Judge Tuleya seriously undermine fundamental pillars of justice which is the right of the Polish people. We are concerned that:
i) The proceedings to strip Judge Tuleya of his immunity from criminal suit for his bona fide exercise of judicial functions including contributing to public debate on legitimate criticisms of Polish legislative measures affecting the independence of the judiciary are misconceived.
ii) There is serious doubt about the independence of the Disciplinary Chamber which is due to hear the application. The IAJ confirms its support to all judges in Poland, the European Union and elsewhere who fearlessly uphold and apply the principles of law including where applicable European union law, human rights law and the principles of judicial independence reflected in other international rulings and authoritative statements. Indeed, it is their duty to do so; and to do so fearlessly and without favour. The confidence of the public is necessary undermined and eroded when that is not the case.”
 The Bar Council of England and Wales
136. On 25 September 2020 the Bar Council of England and Wales and the Bar Human Rights Committee of England and Wales addressed their third letter to the Polish President and Prime Minister, and to the Speakers of the Sejm and the Senate regarding the motion to lift the immunity of Judge Tuleya. The letter read, in so far as relevant:
“We are deeply dismayed that the hearing is due to take place before the Disciplinary Chamber in the face of the clear ruling by the Supreme Court that it is not a ‘court’ within the meaning of either Polish or EU law. In addition, the Court of Justice of the European Union (CJEU) judgment of 8 April 2020 requires Poland to suspend the legislative provisions constituting the basis of the jurisdiction of the Disciplinary Chamber to rule in disciplinary cases concerning judges, and to refrain from referring pending cases to a panel which does not meet the requirements of independence as defined by the CJEU. ... In light of the above, we reiterate our serious concern that the pursuit of this motion in the case of Judge Tuleya is not only unlawful but represents an unacceptable reprisal against him for his defence of the rule of law in Poland and forms part of a series of measures which strike at the heart of judicial independence in Poland and fundamentally undermine the rule of law. ... Accordingly, we urge you again to take steps to ensure that the arbitrary motion against Judge Tuleya is withdrawn without delay.”
Report of the American Bar Association Center for Human Rights
137. The report of the ABA Center for Human Rights of November 2020 is entitled “The Case of Judge Igor Tuleya: Continued Threats to Judicial Independence in Poland”. Its relevant part reads as follows (original English):
“The Polish government’s use of the judicial disciplinary system to interfere with Judge Tuleya’s judicial decisions fails to meet these international standards and threatens the independence of Poland’s judiciary. It further undermines Judge Tuleya’s fundamental rights and will likely have a chilling effect on other Polish judges’ participation in the public discourse over judicial reforms and independence of the judiciary ... Several aspects of the prosecutor’s actions against Judge Tuleya threaten judicial independence based on these standards. First, the prosecution has neither alleged nor offered any evidence that Judge Tuleya acted in malice to support their argument that his immunity from criminal prosecution should be lifted. Second, Judge Tuleya’s decision to allow media representatives to attend and record the hearing in his courtroom on December 18, 2017 was an exercise of his judicial discretion based on his assessment of the facts and his understanding of the law. In particular, it was based on his understanding of his authority under Article 95b of Poland’s Criminal Procedure Code. As explained in the Disciplinary Chamber’s June 9, 2020 decision, Judge Tuleya’s decision to permit media to record the proceeding in his courtroom on December 18, 2017 fell within his judicial authority under Article 95b. By calling into question the legitimacy of the judge’s decision to hold a hearing in his court open to the press by seeking criminal charges against him for that decision, the prosecution inappropriately interfered with the judicial process. Further, a reasonable observer in this case may conclude that, in light of the new appointment structure within the disciplinary system for judges and the merger of the Prosecutor General and Minister of Justice positions, the seven disciplinary inquiries sent to Judge Tuleya in 2018 also constitute inappropriate influence and interference with his ability to fulfil his judicial functions in an independent manner. Each of the seven inquiries related, on their face, to otherwise protected activities that were adverse to stated PiS [Law and Justice ruling party] positions. For this reason, the clustered inquiries, with the threat of follow-up disciplinary action, appear solely aimed at intimidation of Judge Tuleya. The Disciplinary Chamber’s November 18 decision to lift Judge Tuleya’s immunity goes many steps further – not simply to intimidate Judge Tuleya, but to intimidate all judges in Poland who publicly oppose the government’s judicial reforms or rule in a manner unfavorable to the PiS party. The sheer volume of disciplinary measures initiated against Judge Tuleya – together with public statements by PiS members and the timing of the National Prosecutor’s move to seek criminal sanctions – suggest that the prosecutor’s office targeted Judge Tuleya for speaking out against the government’s judicial reforms. In addition, the prosecutor’s pursuit of criminal charges against Judge Tuleya and the Disciplinary Chamber’s permission to charge the judge criminally signal an escalation in the government’s efforts to curb Polish judges’ engagement in the public discourse surrounding the reforms and violate Judge Tuleya’s freedom of expression. ... Judge Tuleya’s public statements about the government’s reforms to the judiciary and the threat they pose to judicial independence in Poland fall squarely within permissible speech, even for judges. There is no question that Judge Tuleya’s public statements directly affect the independence of the judiciary, operation of the courts, and the administration of justice in Poland. Thus, even with his unique status as a judge and the resulting limitations on freedom of expression recognized by international standards, Judge Tuleya’s public statements should not subject him to disciplinary actions. ... Taken together, the volume, timing, and subject matter of the disciplinary actions initiated against Judge Tuleya suggest that the judicial disciplinary process in Poland is being used in a politicized manner in retaliation for public statements and positions taken against the sitting government. The Disciplinary Chamber’s authorization for Judge Tuleya to be criminally charged for a decision made under his judicial authority sets a dangerous precedent and may be just the beginning of heightened interference with judicial independence in light of the recently enacted ‘muzzle law’. The Disciplinary Chamber’s failure to safeguard the independence of the judiciary and ensure judges are not improperly targeted appears to bear out concerns that have been consistently raised about whether so-called reforms to the judiciary in Poland are, as enacted and as applied to individual judges, a means to ensure political control of the courts. The Government of Poland should take immediate action to change its course and comply with its obligations under regional and international law to ensure an independent judiciary and the rule of law.”
Amnesty International
138. In 2019 Amnesty International published a report entitled “Poland: Free Courts, Free People. Judges Standing for Their Independence”. The report referred, inter alia, to the preliminary inquiries instituted by the disciplinary officer with regard to the applicant and contained the following passage:
“3.1 TARGETING JUDGES WHO TURNED TO THE CJEU WITH QUESTIONS
... Amnesty International remains concerned that the disciplinary proceedings mechanism appears to be used against judges solely for the performance of their duties. Regular targeting of certain judges by investigations – even if they eventually conclude that they did not commit any offence – may amount to a form of harassment. National courts in EU member states have the right under Article 267 of the TEU to submit questions to the CJEU regarding the interpretation of the Treaties. Launching a disciplinary investigation against judges simply because they have exercised this right raises serious concerns about interference with the administration of EU law.”
Report “Justice Under Pressure”
139. In 2020 judges from the Polish Judges’ Association Iustitia and a prosecutor from the Lex Super Omnia Association of Prosecutors published a report entitled “Justice Under Pressure” (Wymiar sprawiedliwości pod presją). The report stated, in so far as relevant:
“26. Igor TULEYA – Judge of the Warsaw Regional Court
“... Judge Igor Tuleya is a member of the Warsaw Branch of the Polish Judges’ Association Iustitia. [He] has repeatedly spoken in public debate on the state of the rule of law in Poland and in his statements he has always boldly defended the independence of the courts, the independence of judges and the principles of a democratic state under the rule of law, openly criticising the unconstitutional changes introduced in the area of justice by those currently in power. A judge regularly meets with citizens in meetings on the rule of law, judicial independence, independence of judges, the principles of the democratic rule of law and human rights. During these meetings, Judge Igor Tuleya brings closer and explains to citizens the importance of independent courts in a democratic state under the rule of law, as well as the role of independent judges in protecting human rights and fundamental freedoms. Judge Igor Tuleya is a model of a steadfast judge who advocates for judicial independence and respect for constitutional ... values. Among other things, the judge gave judgments that were unfavourable to the ruling camp, or concerned politicians from that camp. Judge Igor Tuleya’s educational and civic activities met with a systemic response from the disciplinary officer. The judge was called several times for questioning as a witness and was also called upon to make written statements.”
Selected press articles about the applicant
140. On 10 January 2020 the New York Times published an article about the applicant entitled “In Poland, a Stubborn Defender of Judicial Independence”. The article read, inter alia:
“In Poland’s yearslong struggle over the rule of law, its judges have often found themselves at the ramparts – frequently vilified but also leading the efforts to stop the nationalist government’s campaign to tighten control over the judiciary. In the last two years, at least 20 judges have reported political harassment, while hundreds of judges and lawyers currently face threats of disciplinary proceedings widely regarded as politically motivated. At the center of the dispute is Judge Tuleya, whose rulings – branded ‘political’ by Poland’s governing Law and Justice Party – have been cited by the authorities as one of the reasons they need to bring the country’s judiciary to heel. The overhaul has already triggered a process in Brussels that could see the country become the first European Union country to lose its voting rights. Judge Tuleya, 49, like many of his colleagues, said he has no choice but to resist, no matter the professional or personal cost.
‘Next year, some of us might be removed from office and those who will remain will be harassed into obedience,’ he said during an interview at the District Court in Warsaw, where he is a judge trying criminal cases. ‘We will go back to the times of communism, when the judiciary was under the heel of politicians. We need to stand our ground while we still can.’
These days Judge Tuleya, along with some of his peers from the Polish judges’ association, Iustitia, spends more and more time outside the courtroom, traveling the country to help educate the public about the consequences of the government’s threats to judicial independence. In court, Judge Tuleya, who is single and known for his serious demeanor, always wears a suit underneath his scarlet robes. Outside the courtroom, though, he prefers a military green parka and funky T-shirts with bold statements like ‘Judge Not Dead’, ‘Free Courts, Free People’ and the increasingly popular slogan of the protest movement: ‘Konstytucja’ or Constitution. He believes that the actions of Law and Justice have given birth to a ‘civic judge,’ a new type of a justice who is ‘not isolated from the world but engages with the public outside the courtroom.’
‘Perhaps this is not a model known in older democracies in Europe, but I don’t think it’s at odds with their standards,’ he said. ‘It may be new and it’s very needed here.’
Those efforts at public outreach seem to be the target of a draft law proposed by Law and Justice in December that seeks to punish judges who criticize the government’s campaign to overhaul the judiciary and who engage in unspecified ‘political activities.’
‘None of the changes they have made in the last four years have made the courts more efficient, transparent or friendlier toward citizens,’ Judge Tuleya said. ‘All they have meant to do is fill key positions with loyalists.’
On Saturday, Polish judges led by Judge Tuleya, among others, will be joined by their peers from about 20 European countries in the March of a Thousand Scarlet Robes in Warsaw to protest the new bill.”
141. On 26 November 2020 the Financial Times published an article about the applicant entitled “Suspended judge fights rearguard action over Polish judicial reforms”. The article read, in so far as relevant:
“In the bitter five-year battle over the future of the Polish judiciary, judges have often been on the front line. But few more so than Igor Tuleya. Last week, the Warsaw judge, one of the most outspoken critics of a controversial judicial overhaul introduced by the ruling Law and Justice party (PiS), had his immunity from prosecution revoked in relation to a highly political case three years ago, and was suspended from his duties. Prosecutors demanded the move so that they could file criminal charges against Mr Tuleya, alleging he had overstepped his powers by allowing journalists to hear and record his ruling on case relating to a disputed 2016 parliamentary vote. Mr Tuleya dismisses the claims as false and says the move is designed to stifle dissent: ‘This is an attempt to intimidate judges,’ he told the Financial Times in an interview at the central Warsaw court where he has worked for a decade. ‘And I think it is also about removing an inconvenient judge.’ ... The removal of his immunity is both a message to his Polish colleagues and, Mr Tuleya suspects, a gesture of defiance ‘to European courts and the EU’. Over the past five years, Warsaw and Brussels have clashed repeatedly over PiS’s judicial changes, with the European Commission launching legal action over fears they undermine rule of law. Those tensions escalated last week when Poland and Hungary threatened to block the EU’s €1.8tn budget and recovery package after European officials struck a deal to link access to the funds to EU principles, including judicial independence. ... Mr Tuleya, has no intention of giving up his fight for judicial independence. Although prosecutors can now press criminal charges against him, he plans to remain in Poland. But he said he would not voluntarily submit to questioning as that would imply recognition of the disciplinary chamber and its decision to remove his immunity. If a criminal case went against him, he could face jail. But Mr Tuleya is not deterred. ‘I can’t turn back,’ he said. ‘I am convinced that I am fighting for a just cause. And so I am also prepared to pay that price.’”
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic law and practiceDomestic lawDomestic law already summarised

142. The relevant provisions of the domestic law concerning the functioning of the judiciary and the NCJ were summarised in the Court’s previous judgments in Reczkowicz v. Poland (cited above, §§ 59-70), Dolińska-Ficek and Ozimek v. Poland (nos. 49868/19 and 57511/19, §§ 82‑96, 8 November 2021), Advance Pharma sp. z o.o. v. Poland (no. 1469/20, §§ 95-109, 3 February 2022) and Grzęda v. Poland ([GC], no. 43572/18, §§ 64-76, 15 March 2022). Constitutional provisions
143. The relevant provisions of the Constitution read as follows:
Article 42 § 2
“Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings”
Article 45 § 1
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Article 91
“1. After promulgation thereof in the Journal of Laws of the Republic of Poland, a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute. 2. An international agreement ratified upon prior consent granted by statute shall take precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes. 3. If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and take precedence in the event of a conflict of laws.”
Article 180 § 2
“Dismissal of a judge from office, suspension from office, or transfer to another court or position against his or her will, may only occur by virtue of a court judgment and only in those instances prescribed by statute.”
Article 181
“A judge shall not, without prior consent granted by a court specified by statute, be held criminally liable or deprived of liberty. A judge shall not be arrested or detained, except where he or she has been apprehended in the commission of an offence and his or her arrest is necessary for securing the proper course of proceedings. The president of the competent court shall forthwith be notified of any such arrest and may order the immediate release of the person arrested.”
The Act on the Organisation of Ordinary Courts (as amended)
144. The relevant provisions of the Act of 27 July 2001 on the Organisation of Ordinary Courts (ustawa z dnia 27 lipca 2001 r. Prawo o ustroju sądów powszechnych; “the 2001 Act”) provided as applicable at the relevant time, in so far as relevant as follows:
Section 41b
“1. The president of the court is competent to examine complaint or request concerning the operation of the court.
...
3a. ..., and the National Council of the Judiciary is competent to hear complaint concerning the activity of the Disciplinary Officer for Ordinary Court Judges.”
Section 42
“2. The courts shall hear and decide cases in open court. 3. The hearing of a case in camera or the exclusion of the public from the proceedings shall be allowed only as provided by statute.”
Section 66
“Upon appointment, a judge takes an oath before the President of the Republic of Poland, in accordance with the following formula:
‘I swear, as a judge of an ordinary court, to serve faithfully the Republic of Poland, to safeguard the law, to discharge the duties of a judge conscientiously, to administer justice impartially in accordance with the law and my conscience, to keep State and professional secrets, and to act in accordance with the principles of propriety and honesty’; the person taking this oath may finish it by saying the words: ‘So help me God.’”
Section 82
“1. A judge shall act in compliance with the judicial oath. 2. A judge should, when on and off duty, guard the authority of the office of judge and avoid everything that could bring discredit to the authority of a judge or weaken confidence in his or her impartiality.”
Section 85
“A judge shall keep secret the circumstances of a case of which he or she has become aware by reason of his or her office outside a hearing in open court.”
Section 89(1)
“1. Requests, interventions and complaints on matters connected with his or her office may be lodged by a judge only in an official capacity. In such matters, a judge may not address third institutions and persons or make such matters public.”
Section 107(1)
“1. A judge shall be liable to disciplinary action for professional misconduct, including obvious and gross violations of the law and acts compromising the dignity of the office (disciplinary offences).”
Section 110
“1. Disciplinary cases against judges shall be adjudicated by:
(1) in the first instance:
(a) disciplinary courts at the courts of appeal, composed of three judges;
(b) the Supreme Court, composed of two judges of the Disciplinary Chamber and one judge of the Supreme Court, in cases involving disciplinary offences that constitute intentional offences prosecuted by a public prosecutor or intentional tax offences or cases in which the Supreme Court has requested that a disciplinary case be heard along with a finding of error,
(2) in the second instance – the Supreme Court, composed of two judges of the Disciplinary Chamber and one lay judge of the Supreme Court. (2a) The disciplinary court in whose region the judge subject to the proceedings serves shall have local jurisdiction to hear the cases referred to in section 37 (5) and section 75 (2)(3). The cases referred to in sections 80 and 106zd shall be adjudicated in the first instance by the Supreme Court composed of one judge of the Disciplinary Chamber, and in the second instance by the Supreme Court composed of three judges of the Disciplinary Chamber.”
Section 114[1]
“1. The disciplinary officer undertakes preliminary inquiries (czynności wyjaśniające) at the request of the Minister of Justice, the president of a court of appeal or the president of a regional court, the board of a court of appeal or the board of a regional court, the National Council of the Judiciary, as well as on his own initiative, after a preliminary determination of the circumstances necessary to establish the elements of a disciplinary offence. The preliminary inquiries activities should be conducted within thirty days from the date of the first action taken by the disciplinary officer. 2. The disciplinary officer, in the framework of the preliminary inquiries, may call upon a judge to make a written statement concerning the subject matter of the inquiry within fourteen days of receiving such request. The disciplinary officer may also take an oral statement from the judge. Failure by the judge to submit the statement shall not impede the further course of the proceedings. 3. If, following the preliminary inquiries, there are grounds for initiating disciplinary proceedings, the disciplinary officer shall initiate such proceedings and draw up disciplinary charges in writing. 4. Immediately after drawing up the disciplinary charges, the disciplinary officer shall notify them to the accused. When notifying the charges, the disciplinary officer shall call upon the accused to provide explanations and all requests for evidence in writing within fourteen days from the date of notification of the disciplinary charges. In the event of failure to comply with this obligation, the disciplinary officer may leave unexamined the requests for evidence made by the accused after the expiry of this time limit, unless the accused shows that the evidence was not known to him/her beforehand. 5. The disciplinary officer may also obtain from the accused, and shall obtain from the accused when so requested, oral explanations by way of a hearing. 6. Failure to submit explanations within the time limit specified in subsection 4 or failure to appear at the hearing date set by the disciplinary officer shall not impede further proceedings. 7. Simultaneously with the notification of charges, the disciplinary officer shall request the President of the Supreme Court directing the work of the Disciplinary Chamber to appoint a disciplinary court to hear the case in the first instance. The President of the Supreme Court in charge of the work of the Disciplinary Chamber shall appoint this court within seven days from receipt of the request. 8. After the expiry of the time limit referred to in subsection 4, and, if necessary, after further evidence has been taken, the disciplinary officer shall submit a motion to hear the disciplinary case to the disciplinary court designated pursuant to subsection 7. The request shall contain a precise identification of the act which is the subject of the proceedings, a list of evidence justifying the request and the grounds for the request. 9. If the disciplinary officer does not find grounds to institute disciplinary proceedings, upon the request of the authorised body, he/she shall make a decision to refuse to institute such proceedings. A copy of the decision shall be notified to the body which submitted the request to initiate proceedings, the board of the regional court or of the court of appeal respectively and to the accused. A copy of the order shall also be notified to the Minister of Justice, who may lodge an objection within thirty days. The lodging of an objection shall be regarded as entailing an obligation to initiate disciplinary proceedings, and the Minister of Justice’s indications as to the further course of the proceedings shall be binding on the disciplinary officer. 10. Where the disciplinary proceedings have not provided grounds for a request to the disciplinary court to hear a disciplinary case, the disciplinary officer shall make a decision to discontinue the disciplinary proceedings.”
Section 128
“The provisions of the General Part of the Criminal Code and the provisions of the Code of Criminal Procedure, with the exception of Articles 344a and 396a, shall apply mutatis mutandis to matters not regulated in this Chapter, taking into account the specificities resulting from the nature of disciplinary proceedings.”
Section 129
“1. A disciplinary court may suspend a judge against whom disciplinary or incapacitation proceedings have been initiated, and if it delivers a resolution permitting a judge to be held criminally liable. 2. If the disciplinary court passes a resolution permitting a judge to be held criminally liable for an intentional offence prosecuted by public prosecution, it shall suspend the judge from his duties. 3. When suspending a judge from his duties, the disciplinary court shall reduce, within the limits of 25% to 50%, the amount of his remuneration for the duration of such suspension; this shall not apply to persons in respect of whom proceedings for incapacitation have been initiated.
... 4. Where disciplinary proceedings have been discontinued or resulted in an acquittal, all components of the salary or emolument shall be adjusted to the full amount.”
Section 131
“4. A resolution on suspension of a judge from performing his duties may be appealed against by the judge, and the disciplinary officer may also appeal against a resolution revoking an order for interruption in the performance of duties, referred to in section 130(2); an interlocutory appeal shall not stay the execution of the resolution. 5. An interlocutory appeal shall be examined by the disciplinary court of second instance.”
Section 132
“The suspension shall cease as soon as the disciplinary proceedings have been finally concluded, unless the disciplinary court has cancelled it earlier.”
The immunity of ordinary court judges
(a)   Previous regulations of constitutional and statutory rank
145. Article 79 of the Constitution of 17 March 1921 provided as follows:
“Judges may not be held criminally liable or deprived of their liberty without the prior consent of the court designated by law, unless they are apprehended in the act of committing an offence, but even in such a case the court may demand the immediate release of the detained person.”
146. Article 67 of the Constitution of 23 April 1935 read as follows:
“A judge may not be held criminally liable without the consent of the competent disciplinary court or arrested without a court order, unless he was apprehended in the act of committing an offence.”
147. The Constitution of the Polish People’s Republic of 1952 did not regulate the institution of judicial immunity. However, during the period of the People’s Republic of Poland and until the adoption of the new Constitution in 1997 judicial immunity was provided for at the statutory level, first in the Decree of the President of the Republic of Poland of 6 February 1928 and then in the Act of 20 June 1985 on the Organisation of Ordinary Courts. (b)   The regulation of the immunity of ordinary court judges in the 2001 Act
148. The immunity of ordinary court judges is regulated in section 80 of the 2001 Act, contained in Chapter 1a “The status of judge”. The relevant part of section 80 read as follows:
“1. A judge may not be arrested or held criminally liable without the permission of the competent disciplinary court. This shall not apply to an arrest when a judge is apprehended in the act of committing an offence, if the arrest is necessary to ensure the proper conduct of the proceedings. Only urgent actions may be taken until a resolution authorising a judge to be held criminally liable is issued. 2. The president of the court of appeal having jurisdiction over the place of arrest shall be immediately notified of the arrest of a judge. He may order the immediate release of the arrested judge. The president of the court of appeal shall immediately notify the National Council of the Judiciary, the Minister of Justice and the First President of the Supreme Court of the fact that a judge has been arrested.
2a. An application for permission to hold a judge criminally liable, if not lodged by a prosecutor, should be drawn up and signed by an advocate or legal adviser acting as a representative.
...
2c. The disciplinary court shall issue a resolution permitting a judge to be held criminally liable if there is a sufficiently justified suspicion that the judge has committed an offence. The resolution shall contain a decision on the authorisation to hold a judge criminally liable, together with the reasons for the decision.
2d. The disciplinary court shall examine an application for permission to hold a judge criminally liable within fourteen days from the date on which it was lodged with the disciplinary court.
2e. Before issuing the resolution, the disciplinary court shall hear the disciplinary officer, the judge concerned, the representative of the authority or the person who requested permission – if they appear. Their non-appearance, as well as the non‑appearance of defence counsel, shall not suspend the examination of the application.
2f. The judge whom the proceedings concern shall have the right to access the documents enclosed with the application. However, when lodging the application with the disciplinary court, the prosecutor may stipulate that such documents or a part thereof may not be disclosed to the judge, having regard to the interest of the pre-trial proceedings.
2g. If the prosecutor has made the objection referred to in § 2f, the president of the disciplinary court shall immediately refer the case to a session. The disciplinary court may refuse a judge access to the documents enclosed with the application.”
(c)   Procedural aspects
149. Prior to the establishment of the Disciplinary Chamber, disciplinary cases concerning judges of the ordinary courts were heard, at first instance, by the courts of appeal and, at second instance, by the Supreme Court acting as the disciplinary court. Their jurisdiction included the examination of applications for the lifting of immunity of judges. The disciplinary courts adjudicated in three-judge formations. The composition of the disciplinary court was determined, by drawing lots, from the list of all the judges of the disciplinary court concerned (with minor exceptions), subject to the proviso that at least one judge adjudicating in criminal cases was to form part of the composition (see sections 110 and 111 of the 2001 Act in their wording at the relevant time). 150. The Act of 8 December 2017 on the Supreme Court, which entered into force on 3 April 2018, modified the organisation of that court by, in particular, creating the Disciplinary Chamber. That Chamber became competent to rule, inter alia, on cases concerning the disciplinary proceedings conducted under the 2001 Act (section 27(1)), including the lifting of immunity of the ordinary court judges. The latter cases were heard, at first instance, by one judge of the Disciplinary Chamber and, at second instance, by a three-judge formation of that Chamber. Following the abolition of the Disciplinary Chamber, those cases are at present heard by the CPL (see paragraph 183). (d)   Domestic practice
(i)      Case-law of the Constitutional Court
(α)     Judgment of 28 November 2007, no. K 39/07
151. In this judgment, the Constitutional Court reviewed, on an application from the First President of the Supreme Court, the constitutionality of several provisions modifying the procedure for lifting the immunity of a judge, which were added to the 2001 Act on the Organisation of Ordinary Courts by the Act of 29 June 2007 amending the former Act. 152. The first of the contested provisions (section 80(2f) and (2g)) concerned the access of a judge to the case file of the immunity proceedings, which could have been restricted by a decision of the prosecutor. Such a decision was also binding on the court. The Constitutional Court held (by nine votes to six) that section 80(2f) and (2g) of the 2001 Act, in so far as it precluded a judicial review of the prosecutor’s decision refusing access to documents in the file to a judge who was the subject of the immunity proceedings, was incompatible with Article 42 § 2 and Article 45 § 1 in conjunction with Article 181 of the Constitution. 153. In its general observations, the Constitutional Court noted that judicial immunity was a constitutional guarantee protecting the courts and judges in their independent adjudication. The existence of immunity had a subjective aspect, as it protected a specific person; however, that aspect was of a secondary nature. The fundamental purpose of immunity was to ensure judicial independence as the foundation for the functioning of courts that were independent of other authorities and not subject to their influence. According to the Constitutional Court, it could not be argued that judicial independence was not possible without judicial immunity, since there were countries whose legal system did not provide for it (e.g. Austria, Germany, France). However, those countries were mature democracies with a well‑established understanding of the separation of powers and a high level of legal and political culture. In the so-called “young” democracies with less established democratic traditions and a still-developing understanding of the separation of powers, the existence of judicial immunity was an important component of judicial independence. 154. Next, the Constitutional Court considered whether the restrictions on access to the file of the immunity proceedings could be examined in the light of the constitutional right to defence, as enshrined in Article 42 § 2 of the Constitution. It disagreed that this right was relevant only for the criminal proceedings stricto sensu, having regard to the autonomous meaning of terms used in the Constitution. It noted that it was established in its case-law that Article 42 of the Constitution referred to “repression-related proceedings” (postępowanie represyjne) in general, which was a broader concept than criminal proceedings regulated by the Code of Criminal Procedure. The right to defence in the constitutional sense applied to “all proceedings”, so there was no basis for a restrictive interpretation eliminating interlocutory or pre-trial proceedings as long as they were related to an encroachment on constitutional rights and freedoms (see Article 31 of the Constitution). The immunity proceedings, being a preliminary stage for holding a person criminally liable, should provide for the right to defence on account of that very liability which was potentially engaged by those proceedings. 155. In this connection, the Constitutional Court held as follows:
“The lifting of immunity does not result in a mere removal of a procedural obstacle [for holding a person criminally liable], but amounts to placing an individual in the shadow of suspicion, which as such justifies – on constitutional grounds – the need for protection at this stage. ... Immunity proceedings have a constitutional basis (Article 181 of the Constitution). It is clear that, depending on the subject-matter of the proceedings and their purpose, the procedure and the guarantees contained therein may be different. In particular, it does not have to be the model resulting from the CCP or reproducing it. The scope of application of Article 42 § 2 of the Constitution, however, cannot ... be reduced to situations existing only after charges have been brought in criminal proceedings stricto sensu. Thus, this provision of the Constitution refers to all repression-related proceedings: criminal (irrespective of their stage) and other (quasi‑criminal: e.g. disciplinary or preparatory prior to proper proceedings). In the light of the Strasbourg Court’s judgments, it was incorrect to hold that the proceedings conducted before the disciplinary court did not have the characteristics of a ‘case’ within the meaning of Article 6 of the Convention and therefore did not have to comply with the standards established under this provision, and thus that the exclusion of the right of defence would be justified therein.
... It should be noted that a request for the lifting of immunity involves the direct application of repressive measures such as suspension from judicial duties and a reduction in remuneration ... Indeed, the [filing of an] application [for lifting immunity] with a court involves the initiation of a ‘case’ within the meaning given to the term under the Convention, which requires the right of defence to be afforded at the stage of the initiation of such a ‘case’. The affording of a defence is therefore necessary in any proceedings, even those not involving interference with constitutional rights and freedoms, which seek to legalise the use of coercive measures of any kind. This is what every fair procedure requires, by virtue of Article 2 of the Constitution. This should be applied a fortiori to situations where, as in the present case, the subject of interference lies in the sphere of constitutionally guaranteed freedoms (Article 181 of the Constitution). A person against whom proceedings associated with adverse consequences are directed (it is difficult to deny the existence of such consequences by the mere fact of being ‘put under the shadow of suspicion’, especially in the case of persons supposed to have an impeccable reputation) must be provided with possibilities of defence adequate to the purpose of those proceedings. The mere fact of initiating immunity proceedings causes trouble for the judge, even if it later turns out that the case had no grounds and no criminal liability will follow. ... The idea that the right of defence can be restricted at the stage of immunity proceedings since the case will in future be heard anyway by the court deciding on the [commission of] an act, as well as on the questions of [a judge’s] guilt and punishment, is also constitutionally unacceptable. Every stage of criminalisation, even the preliminary stage, must be accompanied by guarantees of defence rights that are appropriate to that stage. This view by no means implies that the initiation of the immunity proceedings is to be accompanied by all the guarantees ... available in the Code of Criminal Procedure for the criminal proceedings; it only means that the initiation of [the proceedings] for the lifting of immunity, leading as it does to a limitation of the constitutionally protected sphere, requires a procedure that must comply with procedural standards in the form of the right of defence.”
156. The Constitutional Court found that the regulation under which a prosecutor could refuse access to the material justifying an application for the lifting of immunity to the judge concerned and where the prosecutor’s decision was binding on the disciplinary court, reduced the court to an enforcer of the prosecutor’s decision. Such a regulation could not be reconciled with the independence of the court because its power in respect of one aspect of the immunity proceedings was limited by a decision of the public prosecutor. In this context, the Constitutional Court noted that the constitutional guarantees enshrined in Articles 45 and 181 of the Constitution were applicable to the immunity proceedings since the Constitution required that those proceedings be conducted before a court, i.e. an independent body, not bound in its adjudicatory activity by other authorities. 157. The second group of contested provisions (sections 80a to 80c) concerned the introduction of an accelerated and simplified procedure for lifting the immunity of a judge in cases of serious crime. Those provisions introduced a 24-hour time-limit for the court to examine an application for the lifting of immunity (section 80a(1)) and application for leave to have a judge arrested and detained on remand (section 80b(1)). As regards the latter, the judge concerned had no right to take part in a court session (section 80b(3)). The relevant provisions further stipulated that a first-instance decision lifting the immunity of a judge or authorising his arrest (detention on remand) was immediately enforceable regardless of the lodging of an interlocutory appeal (sections 80a(3) and 80b(4) respectively). 158. The Constitutional Court ruled that the above-mentioned provisions were unconstitutional as they had been adopted in a procedurally-flawed manner. In addition, it held that sections 80a(1) and 80b(1 and 3) of the 2001 Act were incompatible with Article 45 § 1 in conjunction with Article 181 of the Constitution. It further ruled that sections 80a(3) and 80b(4) of the 2001 Act were incompatible with Article 176 § 1 in conjunction with Article 181 of the Constitution. (β)      Judgment of 15 January 2009, no. K 45/07
159. In its application to the Constitutional Court, the NCJ also contested the constitutionality of several provisions of the 2001 Act as amended by the Act of 29 June 2007 (see paragraphs 151-152 and 157 above). One of those provisions was section 80(2h) of the 2001 Act, which allowed the prosecutor lodging an application for the lifting of the immunity of a judge to simultaneously seek leave for the judge’s arrest and detention on remand. 160. In its judgment of 15 January 2009, no. K 45/07 the Constitutional Court held that section 80(2h) of the 2001 Act, in so far as it established a presumption that a resolution permitting a judge to be held criminally liable also comprised leave for the judge’s arrest and detention on remand, was incompatible with Article 42 § 2 and Article 181 of the Constitution. It found that the impugned presumption failed to meet the requirements of Article 181 of the Constitution, under which the court’s consent to each of the above measures should be given in separate decisions. The Constitutional Court further confirmed its earlier judgment of 28 November 2007, no. K 39/07 (see paragraphs 151-158 above), as regards the applicability of the rights of the defence, enshrined in Article 42 § 2 of the Constitution, to all repression-related proceedings, including immunity proceedings. (ii)    Case-law of the Supreme Court
(α)     The resolution of 20 September 2007, no. SNO 58/07
161. In that resolution, the Supreme Court, sitting as a disciplinary court of second instance, refused to lift the immunity of a judge and made some general comments on the nature of the relevant proceedings. It found that the purpose of the proceedings for permission to hold a judge criminally liable (section 80 of the 2001 Act and Article 181 of the Constitution) was not to prejudge the criminal liability of the judge (questions concerning the commission of an act, guilt and punishment), as this matter was reserved to the exclusive competence of the court within the framework of regular criminal proceedings. Accordingly, the Supreme Court noted that the gathering of evidence and the conduct of proceedings by the disciplinary court should be limited to determining whether there was a sufficiently justified suspicion that the judge had committed the act alleged in the prosecutor’s application. Therefore, the provisions of criminal procedure concerning the determination of the commission of the act and the acknowledgement of guilt should be applied mutatis mutandis (this concerned the relevant provisions of the CCP applied by the double reference to section 80d(1) in fine and section 128 of the 2001 Act). 162. The Supreme Court further found that the duty of the disciplinary court in the proceedings initiated by an application of the prosecutor to lift the immunity of a judge was to examine the evidence adduced in order to ascertain whether there was a sufficiently justified suspicion that the judge had committed an offence (referred to in section 80(2c) of the 2001 Act). That scrutiny was of a substantive nature, although it did not reach such a high level of conviction on the part of the court as in the case of adjudication in regular criminal proceedings as to the commission of an act and the guilt of the perpetrator. 163. The Supreme Court noted that the condition justifying the lifting of judicial immunity specified in section 80(2c) of the 2001 Act was similar to that prescribed in Article 313 § 1 of the CCP for drawing up a decision on the presentation of charges. This latter procedural act should also be preceded by the examination of the evidence adduced, in order to assess the fulfilment of the same condition. The assessment of the disciplinary court in the case of the lifting of immunity of a judge should be similar; however, having regard to the constitutional aspects of judicial immunity, the probability of a judge having committed an offence calls for a higher threshold than in the framework of regular pre-trial proceedings. (β)      The resolution of 27 May 2009, no. I KZP 5/09
164. The First President of the Supreme Court requested a seven-judge formation of the Supreme Court (Criminal Chamber) to issue a resolution on the legal question whether, in the proceedings for permission for a judge to be held criminally liable, the provisions of the CCP should apply mutatis mutandis. This request was prompted by the Constitutional Court’s judgment of 28 November 2007, no. K 39/07 which led to a repeal in the 2001 Act of a provision referring to the mutatis mutandis application of the CCP to immunity proceedings. 165. On 27 May 2009 the Supreme Court issued its resolution, case no. I KZP 5/09 which read as follows:
“In the proceedings pending before the disciplinary court concerning the permission for a judge to be held criminally liable or to be remanded in custody, the provisions on disciplinary proceedings contained in the 2001 Act apply mutatis mutandis, and to the extent not regulated by them, which is necessary to maintain the functionality and standards of a fair trial, the provisions of the Code of Criminal Procedure apply in the same manner ”. 166. The Supreme Court found that there was no doubt that proceedings for the lifting of immunity of an ordinary court judge under section 80 of the 2001 Act, like those under section 49 of the Act of 23 November 2002 on the Supreme Court in respect of the Supreme Court judges, were closely related to the pending in rem pre-trial proceedings and conditioned the possibility of conducting criminal proceedings against a judge protected by immunity. Moreover, if only in the light of the reasons contained in the Constitutional Court’s judgment of 28 November 2007, no. K 39/07 there was no doubt that proceedings aimed at lifting a judge’s immunity were repression-related proceedings. (γ)      The decision of 14 September 2022, no. I KZP 7/22
167. In the context of pending interlocutory appeal proceedings, the Elbląg Regional Court decided to refer a legal question to the Supreme Court (Criminal Chamber) as to whether a situation in which the final resolution lifting the immunity of a prosecutor had been issued by the Disciplinary Chamber of the Supreme Court could be regarded as lacking the required authorisation to prosecute within the meaning of Article 17 § 1(10) of the CCP. 168. In its decision of 14 September 2022, no. I KZP 7/22, the Supreme Court refused to adopt a resolution on the legal question, considering that the statutory conditions for doing so were not fulfilled[2]. However, it provided certain guidance to the referring court with a view to assisting it in reaching its decision. 169. The Supreme Court noted that the statutory regulation of the procedure for the lifting of immunity of a prosecutor did not have as strong a systemic protection as the same procedure for judges, since the latter was anchored in the Constitution. As regards the lifting of immunity of judges, the Constitution required that a relevant decision had to be taken by a court having the attributes indicated in Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention. 170. The next question to be examined was whether the subject-matter of the proceedings concerning the lifting of immunity of a prosecutor fell within the scope of Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention. In this respect, the Supreme Court recalled that the constitutional notion of a “case” was an autonomous one and could comprise not only the main proceedings, but also other proceedings – interlocutory, auxiliary, outside the subject of the “main” proceedings – in which the court determined the rights and obligations of a given private-law subject. Referring to the Constitutional Court’s judgment of 28 November 2007, no. K 39/07, the Supreme Court noted that the standard of the right to a defence in Article 42 § 2 of the Constitution applied to the immunity proceedings and that they were judicial proceedings within the meaning of Article 45 § 1 of the Constitution. It stressed that the above-mentioned judgment of the Constitutional Court concerned the procedure for the lifting of immunity of a judge; however, the subject-matter of those proceedings was no different as regards the immunity of a prosecutor. Having regard to the above, the Supreme Court found that permission for a prosecutor to be held criminally liable had to be given by a body having the characteristics indicated in Article 45 § 1 of the Constitution, namely a court in the substantive sense. Although the immunity proceedings were conducted before a disciplinary court, this did not alter the fact that they were interlocutory proceeding in the framework of (or at least closely related to) the in rem pre-trial proceedings, conditioning the possibility of conducting criminal proceedings against a person protected by immunity; they were therefore not disciplinary proceedings. 171. The Supreme Court further considered that the immunity proceedings had to fulfil the standard of Article 6 § 1 of the Convention. It stressed that this provision was subject to extensive interpretation in order to determine the scope of the notion of a “criminal charge” (it referred for example to judgment of 17 January 1970, Delcourt v. Belgium, no. 2689/65). Although that notion was autonomous, the national law had to be taken into account in the context. In this connection, the Supreme Court referred to the three “Engel criteria”, namely the classification of the offence under national law, the nature of the offence and the degree of severity of the possible penalty (judgment of 8 June 1976, Engel and Others v. the Netherlands) and the fact that the charge was to be understood not in a formal, but in a substantive manner (judgment of 27 February 1980, Deweer v. Belgium, no. 6903/75), which implied not only an official notification by the competent authority of an allegation that a person had committed a criminal offence, but also other measures allowing an inference of the existence of suspicion against the person and seriously affecting the position of that person. (δ)      The Supreme Court’s resolution of 31 August 2022, no. I ZI 7/22
172. In that resolution lifting the immunity of a judge, the Chamber of Professional Liability of the Supreme Court, sitting in a single-judge formation (Judge W. Kozielewicz), made some general observations on judicial immunity. It noted that the prohibition, prescribed in Article 181 of the Constitution, against holding a judge criminally liable without the consent of a court specified by statute, constituted the so-called formal (procedural) immunity of a judge. That provision did not result in the exclusion of liability for the committed act, but only introduced a prohibition against holding the person enjoying such immunity criminally liable, unless the prosecutor obtained the consent of the authorised body to do so. 173. The Supreme Court went on to note that the immunity of a judge was one of the guarantees of judicial independence. It was clear from Article 181 of the Constitution that judicial immunity was relative in nature, as it could be lifted, allowing a judge to be held criminally liable. This constitutional provision set out the following requirements in this regard: (1) the lifting of a judge’s immunity had to always be prior in nature, meaning that until the date on which the decision to lift the immunity became final, it was possible to conduct criminal proceedings “in the case” only (in rem) and not “against the person” (in personam); (2) the decision to lift the immunity of a judge could only be made by a “court” and in the procedure ensuring the essential guarantees of a fair hearing; and (3) such decision could only be made by a court “specified by statute” which implied the general statutory regulation prescribing the jurisdiction of the court to decide on the lifting of immunity. The Supreme Court stressed that the institution of judicial immunity had a long-standing tradition in Polish law, starting with the Constitution of March 1921. The 2011 Act on the National Council of the Judiciary and the 2017 Amending Act
174. The relevant provisions of the 2011 Act on the NCJ in force prior to and after the entry into force of the 2017 Amending Act were cited in Reczkowicz (cited above, respectively § 62 and § 63). 175. Section 3(1)(1-2) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act provides as follows:
Section 3(1)
“The competences of the Council include:
(1) examining and assessing candidates for holding office as judge of the Supreme Court and as judge in ordinary courts, administrative courts and military courts, and as trainee judge in administrative courts;
(2) presenting to the President of the Republic of Poland motions for the appointment of judges of the Supreme Court, ordinary courts, administrative courts and military courts ...”
The 2017 Act on the Supreme Court
176. The Act of 8 December 2017 on the Supreme Court (ustawa z dnia 8 grudnia 2017 o Sądzie Najwyższym; „the 2017 Act on the Supreme Court”) entered into force on 3 April 2018. The relevant provisions of this Act were rendered in Reczkowicz (cited above, §§ 67-68). 177. Section 29 of the 2017 Act on the Supreme Court reads as follows:
Section 29
“Appointment to judicial office at the Supreme Court shall be carried out by the President of the Republic of Poland pursuant to a recommendation of the National Council of the Judiciary.”
178. The rules of disciplinary liability of judges were significantly changed by the Act of 8 December 2017 on the Supreme Court amending the Act on the Organisation of Ordinary Courts which entered into force on 3 April 2018. The Minister of Justice – Prosecutor General assumed significant powers in the new model of disciplinary liability. The minister appoints, inter alia, the disciplinary officer for ordinary court judges (Rzecznik Dyscyplinarny Sędziów Sądów Powszechnych; “the disciplinary officer”) and his two deputies for a four-year term as well as judges adjudicating in the disciplinary court of first-instance at the courts of appeal. The amendments established also the office of the disciplinary officer of the Minister of Justice who is appointed by the minister. The 2019 Amending Act
179. On 12 December 2019 a group of deputies from the majority introduced in the Sejm a bill to amend the Act on the Organisation of Ordinary Courts, the Act on the Supreme Court and Certain Other Acts. On 20 December 2019 the Sejm passed the Act Amending the Act on the Organisation of Ordinary Courts, the Act on the Supreme Court and Certain Other Acts (ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym, oraz niektórych innych ustaw, “the 2019 Amending Act”). On 23 January 2020 the Sejm refused the Senate’s resolution proposing to reject the Act and on 4 February 2020 the President of the Republic signed it into law. The 2019 Amending Act was promulgated on 6 February 2020 and entered into force on 14 February 2020. It introduced new disciplinary offences and sanctions for judges, including for questioning the lawfulness of judicial appointments made with the participation of the new NCJ. The law has been dubbed the “Muzzle Act” (“ustawa kagańcowa”). 180. The 2019 Amending Act introduced amendments to the Act on the Organisation of Ordinary Courts. The following provisions were amended, among others:
Section 42a
“(1) In the course of the activities of courts or judicial bodies, it shall not be permissible to question the legitimacy of courts and tribunals, constitutional State bodies and bodies constituted for the scrutiny and protection of the law. (2) It shall not be permissible for an ordinary court or other authority to determine or assess the lawfulness of the appointment of a judge or the authority arising from such appointment to perform judicial tasks.”
Section 107
“1. A judge shall be disciplinarily liable for official (disciplinary) offences, including:
(1) an obvious and gross violation of the law;
(2) acts or omissions which may prevent or significantly obstruct the functioning of the judicial authority;
(3) actions that question the existence of the official relationship of a judge, the effectiveness of his or her appointment or the constitutional authority of the Republic of Poland;
(4) public activity incompatible with the principles of independence of courts and independence of judges;
(5) acts compromising the dignity of the office.”
The abolition of the Disciplinary Chamber and establishment of the Chamber of Professional Liability
181. On 4 February 2022 the President of the Republic introduced in the Sejm a bill to amend the Act on the Supreme Court and Certain Other Acts. According to the explanatory report, the bill sought to introduce changes in the organisation of the Supreme Court through the creation of the Chamber of Professional Liability and the abolition of the Disciplinary Chamber, and thus sought to ensure that the actual disciplinary liability of judges could be engaged in the proceedings conducted before the Supreme Court. 182. On 9 June 2022 the Sejm adopted the Act 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”), which entered into force on 15 July 2022. 183. Upon the entry into force of the Amending 2022 Act, the Disciplinary Chamber of the Supreme Court was abolished and the new Chamber of Professional Liability (“CPL”) was established (section 8(1)). In accordance with section 8(2) of the 2022 Amending Act, cases pending before the Disciplinary Chamber and not concluded before the date of entry into force of the Act, were to be transmitted to the CPL. The CPL has the exclusive competence to rule, inter alia, on disciplinary cases of judges of the Supreme Court and ordinary courts as well as applications authorising judges to be held criminally liable or detained on remand. 184. Pending the appointment of at least five judges to the CPL, on 15 July 2022 the First President of the Supreme Court designated five judges of that court to adjudicate in the new Chamber on a transitional basis (section 8(4)), namely Judges W. Kozielewicz, D. Kala, M. Wąsek‑Wiaderek, M. Siwek and K. Wiak. Judges Siwek and Wiak were appointed to the Supreme Court on recommendation of the “new” NCJ as established under the 2017 Amending Act. 185. On 17 September 2022 the President of the Republic designated eleven judges of the Supreme Court, from among thirty-three chosen by drawing lots, to adjudicate in the new CPL for a term of five years. Six of those judges had been appointed to the Supreme Court by the President of the Republic on recommendations of the NCJ as established under the 2017 Amending Act. The President of the Republic’s decision was countersigned by the Prime Minister. 186. Section 9 of the 2022 Amending Act provides that the CPL must examine, of its own motion, at the first session in the case, the Disciplinary Chamber’s decision ordering the suspension of a judge from his duties, where disciplinary proceedings have been instituted against that judge or a resolution has been issued permitting the judge to be held criminally liable and reducing his salary for the duration of his suspension or disciplinary proceedings. 187. In accordance with section 18(1) of the 2022 Amending Act, within six months from the date of entry into force of the Act, a judge in respect of whom a final resolution permitting him to be held criminally liable was adopted by the Disciplinary Chamber, shall be entitled to request the reopening of the proceedings. Requests for reopening of the proceedings shall be examined by the CPL. The 2016 Prosecution Service Act
188. The Prosecution Service Act (ustawa Prawo o prokuraturze) was enacted on 28 January 2016. It provides that the Prosecutor General is the highest authority in the prosecution service and that this office merged with the office of the Minister of Justice (section 1(2)). 189. The prosecution service is composed of, inter alia, the Prosecutor General, the State Prosecutor, other deputies of the Prosecutor General and prosecutors of the ordinary units of the prosecution service (section 1(1)). The Prosecutor General manages the operation of the prosecution service directly or through the State Prosecutor (the first deputy of the Prosecutor General) and other deputies of the Prosecutor General (section 13(1)). The Prosecutor General is the hierarchical superior of all prosecutors (section 13(2)). Criminal Code
190. The Criminal Code, in so far as relevant, provides as follows:
Article 1
“§ 2. A prohibited act whose social harm is insignificant shall not constitute an offence.”
Article 231
“§ 1. A public official who, exceeding his authority, or not fulfilling his duty, acts to the detriment of a public or individual interest shall be subject to a penalty of deprivation of liberty for up to 3 years.
...
§ 3. If the perpetrator of the act specified in paragraph 1 hereof acts unintentionally and causes significant damage, he or she shall be subject to a fine, the penalty of limitation of liberty, or that of deprivation of liberty for up to 2 years.”
Article 241
“§ 1. Whoever publicly disseminates, without permission, information from the pre-trial proceedings before they have been disclosed in court proceedings shall be subject to a fine, the penalty of restriction of liberty or that of deprivation of liberty for up to 2 years.”
Article 266
“§ 2. A public official who discloses to an unauthorised person classified information marked ‘restricted’ or ‘confidential’, or information which he has obtained in connection with the performance of his official duties, the disclosure of which may compromise a legally protected interest, shall be subject to a penalty of imprisonment of up to 3 years.”
Code of Criminal Procedure
191. The Code of Criminal Procedure, in so far as relevant, provides as follows:
Article 17 § 1
“§ 1. An investigation shall not be opened and a pending investigation shall be discontinued where:
(1) no offence has been committed or there is insufficient material to justify the suspicion that an offence has been committed;
(2) an act [in question] does not comprise constituent elements of an offence or a statute prescribes that a perpetrator has not committed an offence;
... (10) there is no required authorisation to prosecute or no request to prosecute from a person so entitled, unless otherwise provided by law;”

Outcome for Article 8: violation