EHRM, 06-07-2023, nr. 21181/19, nr. 51751/20

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 Grzėda v. Poland ([GC], no. 43572/18, §§ 64–76, 15 March 2022).

The relevant provisions of the Constitution read as follows:

Article 42 § 2

Article 45 § 1

Article 91

Article 180 § 2

Article 181

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

Section 42

Section 66

Section 82

Section 85

Section 89(1)

Section 107(1)

Section 110

Section 1141.

Section 128

Section 129

Section 131

Section 132

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).

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 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).

Section 29 of the 2017 Act on the Supreme Court reads as follows:

Section 29

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 Sėdziów 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.

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’).

The 2019 Amending Act introduced amendments to the Act on the Organisation of Ordinary Courts. The following provisions were amended, among others:

Section 42a

Section 107

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.

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.

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.

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.

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.

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.

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 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)).

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)).

The Criminal Code, in so far as relevant, provides as follows:

Article 1

Article 231

Article 241

Article 266

The Code of Criminal Procedure, in so far as relevant, provides as follows:

Article 17 § 1

Article 41§1

Article 95b

Article 247

Article 313

Article 322 § 1

Article 357

According to the commentary on the CCP3., the presentation of charges regulated in Article 313 of the CCP plays an important role in the course of the investigation since it shifts the investigation from the in rem stage to the in personam stage. From the point at which the charges are presented, the suspect appears in the proceedings as a party with all the procedural rights and obligations.

The presentation of charges is one of the most important safeguards in the conduct of pre-trial proceedings. It secures the suspect's fundamental right to know that the criminal proceedings are being brought against him or her, what they involve and on what factual basis the prosecuting authorities have acted (compare Article 6 §§ 1 and 3(a) of the Convention).

The drawing-up of a decision on the presentation of charges requires the existence of a more detailed factual basis than that which is sufficient to initiate an investigation under Article 303 of the CCP. In addition to a reasonable suspicion that an offence has been committed, there must also be a sufficiently justified suspicion that the act was committed by a specific person.

Article 23 of the Civil Code contains a non-exhaustive list of so-called ‘personal rights’ (dobra osobiste) and states:

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person at risk of infringement by a third party may seek an injunction, unless the activity is not unlawful. In the event of infringement, the person concerned may, inter alia, require the party who caused the infringement to take the necessary steps to eliminate the consequences of the infringement, for example by making a relevant statement in an appropriate form, or ask the court to award an appropriate sum for the benefit of a specific public interest. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

The relevant domestic practice was summarised in the Court's previous judgments in Reczkowicz (cited above, §§ 71–125), Dolińska-Ficek and Ozimek (cited above, §§ 97–155), Advance Pharma sp. z o.o. (cited above, §§ 110–169) and Grzėda (cited above, §§ 77–119).

The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide:

On 28 January 2020 the Parliamentary Assembly decided to open its monitoring procedure in respect of Poland. In its resolution of the same date entitled ‘The functioning of democratic institutions in Poland’ (2316 (2020)), the Assembly stated, in so far as relevant:

The above-mentioned resolution was based on the report of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe of 6 January 2020 (doc. 15025) which stated, in so far as relevant:

On 26 January 2021 the Parliamentary Assembly adopted a resolution entitled ‘Judges in Poland and in the Republic of Moldova must remain independent’ (2359 (2021)), in which it stated, in so far as relevant:

The above-mentioned resolution was based on the report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe of 5 January 2021 (doc. 15204) which stated, in so far as relevant:

On 23 November 2022 the Secretary General of the Council of Europe published a report assessing the information provided by the Government on how the internal law ensured the effective implementation of the Convention requirements in the light of the above-mentioned judgments of the Constitutional Court.

The report's relevant concluding remarks read as follows:

The international material relevant to the applicant's complaint under Article 10 of the Convention was set out in Żurek v. Poland (no. 39650/18, §§ 102–104 and 108–112, 16 June 2022).

Opinion no. 25 (2022) of the CCJE for the attention of the Committee of Ministers of the Council of Europe on the Freedom of Expression of Judges adopted on 2 December 2022 reads, in so far as relevant:

Between August and October 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling in cases pending before that court which arose in connection with the lowering of the retirement age for judges of the Supreme Court in the new Act on the Supreme Court adopted in December 2017. This rule was also applicable to judges of the Supreme Administrative Court. The cases in question involved proceedings brought by a judge of the Supreme Administrative Court (A.K.) against the NCJ, and proceedings brought by two Supreme Court judges (C.P. and D.O.) against the President of the Republic. The requests concerned, inter alia, the issue whether the newly established Disciplinary Chamber of the Supreme Court that was to have jurisdiction in such cases could be regarded as an independent court under EU law in light of the fact that it was composed of judges selected by the new NCJ.

On 19 November 2019 the CJEU delivered its preliminary ruling. It held, in so far as relevant:

The relevant reasons for the judgment were cited in paragraph 164 of Reczkowicz and paragraphs 151–152 of Grzėda (both cited above).

The Commission brought proceedings against Poland for failing to fulfil its obligations under the second subparagraph of Article 19(1) TEU and the second and third paragraphs of Article 267 TFEU on account of national measures establishing the new disciplinary regime for the judges of the Supreme Court and the ordinary courts instituted by legislation adopted in 2017. In particular, the Commission contended that the Republic of Poland has infringed the second subparagraph of Article 19(1) TEU on four grounds regarding: first, the treatment of the content of judicial decisions as a disciplinary offence; second, the lack of independence and impartiality of the Disciplinary Chamber of the Supreme Court, third, the discretionary power of the President of that Chamber to designate the competent court, which prevents disciplinary cases from being decided by a court established by law; and, fourth, the failure to guarantee the examination of disciplinary cases within a reasonable time and the rights of the defence of accused judges. The Commission also claimed that Poland had infringed the second and third paragraphs of Article 267 TFEU because the right of national courts to make a reference for a preliminary ruling was limited by the possible initiation of disciplinary proceedings against judges who exercised that right.

On 8 April 2020 the CJEU (Grand Chamber) issued an interim order in a case initiated by the Commission and concerning disciplinary proceedings against judges pending before the Disciplinary Chamber of the Supreme Court. The interim order stated:

Following its interim decision of 8 April 2020 (see paragraph 228 above), on 15 July 2021 the Grand Chamber of the CJEU delivered its judgment in the case of Commission v. Poland (Disciplinary regime for judges) holding that the new disciplinary regime for judges was not compatible with EU law. The CJEU found, inter alia, that in light of the global context of major reforms that had recently affected the Polish judiciary, in which context the Disciplinary Chamber of the Supreme Court had been created, and owing to a combination of factors that framed the process whereby that new chamber had been established, that chamber did not provide all the guarantees of impartiality and independence and, in particular, was not protected from the direct or indirect influence of the Polish legislature and executive; among those factors, the Court criticised, in particular, the fact that the process for appointing judges to the Supreme Court, including the members of the Disciplinary Chamber, was essentially determined by the NCJ, which had been significantly reorganised by the Polish executive and legislature and whose independence could give rise to reasonable doubts.

The relevant part of the operative part of the judgment reads as follows:

The reasons for the judgment regarding the lack of independence and impartiality of the Disciplinary Chamber were cited in § 161 of the Grzėda judgment (cited above).

The relevant reasons for the judgment as regards the disciplinary liability of judges on account of the content of their judicial decisions read as follows:

The relevant reasons for the judgment regarding the restrictions of the right of national courts to submit requests for a preliminary ruling to the CJEU read as follows:

In March 2021 the European Commission commenced infringement proceedings in respect of the 2019 Amending Act (see paragraphs 179–180 above), considering that the law undermined the independence of Polish judges and was incompatible with the primacy of EU law. The Commission maintained that, in so far as the 2018 Amending Act conferred on the Supreme Court's Disciplinary Chamber, whose independence and impartiality were not guaranteed, jurisdiction to rule on cases having a direct impact on the status of judges and the performance of their duties, that law affected their independence. Furthermore, according to the Commission, the 2019 Amending Act prohibited any national court from reviewing compliance with the EU requirements relating to an independent and impartial tribunal previously established by law and characterised such a review as a disciplinary offence. The Chamber of Extraordinary Review and Public Affairs of the Supreme Court was deemed to have exclusive jurisdiction to carry out such reviews. Finally, the Commission maintained that, by requiring judges to communicate information relating to their activities in associations or foundations and previous political memberships, and by planning to publish that information, the amending law infringed the right to respect for private life and the right to protection of personal data. The Commission also decided to ask the CJEU to order interim measures until it had given a judgment in the case.

On 14 July 2021 the Vice-President of the CJEU issued an interim order in the case (C-204/21 R, EU:C:2021:593). Poland was required to suspend, inter alia, the application of subsection 1a of section 27(1) of the 2017 Act on the Supreme Court as amended by the 2019 Amending Act, under which the Disciplinary Chamber of the Supreme Court had jurisdiction to adjudicate, at both first instance and second instance, on applications for authorisation to initiate criminal proceedings against judges, place them in provisional detention, arrest them or summon them to appear before it, and second, the effects of the decisions already adopted by the Disciplinary Chamber on the basis of that article which authorised the initiation of criminal proceedings against or the arrest of a judge.

On 27 October 2021 the Vice-President of the CJEU ordered Poland to pay to the European Commission a periodic penalty payment of EUR 1,000,000 per day until such time as that member State complied with the obligations arising from the order of 14 July 2021, or, if it failed to do so, until the date of delivery of the final judgment in the case (C-204/21 R, EU:C:2021:878).

On 10 March 2023 the Republic of Poland made an application for cancellation or variation of the order of 27 October 2021, relying on the adoption of the 2022 Amending Act and the abolition of the Disciplinary Chamber. On 21 April 2023 the Vice-President of the CJEU ordered that the amount of the periodic penalty payment which Poland was required to pay under the previous order was to be reduced to EUR 500,000 per day (C-204/21 R-RAP, EU:C:2023:334). In that decision the Vice-President of the CJEU examined the implementation of the various interim measures prescribed by the order of 14 July 2021.

As regards the obligation to suspend the effects of the decisions adopted by the Disciplinary Chamber authorising the initiation of criminal proceedings against or the arrest of a judge, the order analysed the two remedies introduced by section 9 and section 18(1) of the 2022 Amending Act.

In this respect the relevant reasons for the order read as follows:

On 5 June 2023 the Grand Chamber of the CJEU delivered its judgment upholding the Commission's action. The CJEU held, inter alia, referring to its earlier case-law, that the Disciplinary Chamber of the Supreme Court did not satisfy the requirements of independence and impartiality.

The relevant part of the operative part of the judgment reads as follows:

The relevant reasons as regards the Disciplinary Chamber and its jurisdiction read as follows:

Other relevant case-law of the CJEU is cited in the Court's above-cited judgments in Reczkowicz (§§ 161 and 165), Dolińska-Ficek and Ozimek (§§ 190, 194–196 and 201–203), Advance Pharma sp. z o.o. (§§ 207–209 and 214–216) and Grzėda (§§ 148 and 153–159).

The Court notes that the complaint under Article 6 § 1 regarding the proceedings for the lifting of the applicant's immunity is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

The applicant argued that the Disciplinary Chamber of the Supreme Court, which had dealt with his case, did not meet the requirements of an ‘independent and impartial tribunal established by law’. In his view, the Disciplinary Chamber had been established in flagrant breach of the domestic law since the judges of that Chamber had been appointed by the President of the Republic on the recommendation of the recomposed NCJ, which, in turn, had been established contrary to the Constitution. In the latter respect, the applicant referred to the fact that judicial members of the NCJ had been elected by the Sejm and not by their peers, and that the term of office of the previous judicial members had been unlawfully terminated.

In support of his contention, the applicant relied on the Reczkowicz judgment (cited above). He further referred to a number of other rulings, including 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) given following the latter ruling, the resolution of the joined Chambers of the Supreme Court of 23 January 2020 and the CJEU's judgment of 15 July 2021 in Commission v. Poland (Disciplinary regime for judges) (C-791/19).

As regards the comments made by the First President of the Supreme Court asserting that the change in the model of electing judicial members of the NCJ was compatible with the Constitution and did not affect the independence of that body (see paragraphs 325 and 330 below), the applicant disagreed, referring to the findings made in the resolution of the joined Chambers of the Supreme Court of 23 January 2020. In his view, it was evident that the election of judges to the NCJ by their peers was a standard of a democratic State governed by the rule of law, since only the predominance of judicial representation in that body safeguarded the independence of the judiciary from the legislative and executive authorities. The applicant also referred to the opinion of the Polish Commissioner for Human Rights, submitted in the course of legislative work on the 2017 Amending Act, that the proposed change in the model of electing judicial members of the NCJ would lead to a breach of Article 10, Article 173 and Article 187 § 1(2) of the Constitution. He pointed out that in accordance with Article 187 § 1(3) of the Constitution the Sejm was authorised to elect four members of the NCJ from among its deputies and that was where its constitutional powers on the election of members of the NCJ ended. Similarly, the Senate elected two members of the NCJ from among the senators. The explicit specification of the creative competence of the two houses of Parliament to elect only six members of the NCJ meant, a contrario, that those houses could not elect more members of that body. The applicant argued that Article 187 § 1(2) of the Constitution, taking into account the constitutional principles relating to judicial independence expressed in Articles 10, 45 § 1, 173, 174 and 178 § 1, implied that judicial members of the NCJ should be elected by other judges as representatives of the judicial community.

Contrary to the view of the First President of the Supreme Court, the applicant argued that the Constitutional Court had unequivocally stated in the reasons for its judgment of 18 July 2007 (no. K 25/07) that, according to the Constitution, judicial members of the NCJ were to be elected by judges. In that judgment the Constitutional Court had explicitly referred to the constitutional guarantees of the NCJ's independence, which — in the applicant's view — were breached by the 2017 Amending Act. Furthermore, that judgment was clearly in contradiction with its judgment of 20 June 2017 (no. K 5/17).

As regards the domestic case-law on the status of the new NCJ referred to by the First President of the Supreme Court, the applicant stated that it should be supplemented by three decisions of the Criminal Chamber of the Supreme Court of 16 September, 29 September and 28 October 2021 (case nos. I KZ 29/21, V KZ 47/21 and III KK 237/21). Those rulings confirmed the established line of the Supreme Court's case-law that a judge appointed on a recommendation of the new NCJ did not have the attributes of an ‘independent and impartial tribunal established by law’.

The applicant also noted that the Supreme Administrative Court had given nineteen judgments in cases concerning appeals against resolutions of the NCJ by which the latter had decided not to propose to the President of the Republic the appointment of the appellants to positions as judges of the Supreme Court and to propose the appointment of other candidates to those positions. The Supreme Administrative Court had quashed the impugned NCJ resolutions in the part concerning the refusal to propose the appointment of the appellants, referring to the lack of independence of the recomposed NCJ (see, inter alia, the judgments of 6 May 2021 (nos. II GOK 2/18 and others).

The applicant lastly submitted that in the light of the CJEU's interim order of 8 April 2020 (C-791/19 R), the Disciplinary Chamber had been precluded from ruling on the lifting of his immunity and his suspension.

The Government argued that there had been no manifest breach of domestic law with regard to the process of appointing the judges of the Disciplinary Chamber who had heard the applicant's case. Referring to Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, 1 December 2020), they noted that the Convention did not establish any universally binding model with regard to the procedure of appointment of candidates for judicial office, nor did it prohibit the cooperation of the authorities in that procedure. Accordingly, the applicant's assertion that the judges adjudicating in his case had been improperly appointed as a result of being subject to an unspecified political influence of the NCJ seemed to be devoid of substantive justification and could not constitute a violation of Article 6 § 1. The Polish legislature could not be accused of violating any standards applicable to the appointment of judges on account of the participation of the Sejm in the election of the judicial members of the NCJ. Although the representatives of the legislature and members of the executive, including the Minister of Justice, were members of the NCJ, the independent constitutional authority of the State, they acted only as its members without having a decisive role in making any decisions. In addition, it had to be noted that the majority of the members of the NCJ were judges.

Furthermore, as regards the right to an ‘independent and impartial tribunal established by law’, the Government restated the same arguments as those that they had already submitted in Juszczyszyn (cited above, §§ 171–178).

The Government also contended that the independence of the Supreme Court judges resulted not only from the procedure for appointing them but, above all, from an extensive system of constitutional and statutory guarantees that aimed to ensure that all judges adjudicated completely free from external influence, namely, inter alia, the appointment of judges for an indefinite period (Article 179 of the Constitution), the irremovability of judges (Article 180) and their judicial immunity (Article 181).

In addition, the Government submitted that the fact that the procedure for the appointment of judges in Poland, including the judges of the Disciplinary Chamber, involved a judicial council which was not composed of members directly elected by the judiciary, did not affect the assessment of a judge's independence from the executive. There was no doubt for the Government that the judges of the Supreme Court's Disciplinary Chamber were completely independent judges, and the court which dealt with the applicant's case had been independent and impartial.

The Government supplemented their observations with submissions made by the First President of the Supreme Court.

The First President of the Supreme Court submitted that there were absolutely no grounds for considering the change in the model of the election of the judicial members of the NCJ as incompatible with the Constitution. It was not possible to indicate any legal norm that had been breached in connection with the introduction of the new model of electing judicial members of the NCJ. Accordingly, it could not be demonstrated that the new model had led to a violation of Article 6 § 1 of the Convention according to the criteria established in the Guðmundur Andri Ástráðsson judgment. The First President of the Supreme Court maintained that it was not possible to demonstrate a simple breach of domestic law, still less the obvious nature of an alleged breach, which was indispensable to fulfil the ‘manifest breach of domestic law’ test. Moreover, there were no grounds for the claim that the NCJ was not independent merely because its judicial members were currently elected by the Sejm from amongst judges proposed by their peers.

The First President of the Supreme Court submitted that Article 187 § 1(2) of the Constitution did not provide for a mandatory rule under which the fifteen judicial members of the NCJ were to be elected solely by their peers. Moreover, pursuant to its Article 187 § 4, the manner of choosing the NCJ's members had to be specified by statute. Accordingly, the legislature had a certain margin of appreciation in determining the model of the NCJ's composition. Thus, the change from the previous model of electing judicial members of the NCJ by entrusting their election to the Sejm could not be considered unconstitutional.

According to the First President of the Supreme Court, the allegations made against the change in the statutory model for electing judicial members of the NCJ indicated that it resulted from a fundamental and unjustified departure from the well-established case-law of the Constitutional Court concerning the interpretation of Article 187 § 1(2) of the Constitution. This, so-called, ‘new and divergent interpretation of the Constitution’, applied without convincing reasons, was supposed to confirm the ‘manifest breach of domestic law’. However, a detailed analysis of the Constitutional Court's judgments cited in the recent case-law of the Court indicated that there were absolutely no grounds for such a claim. In both Reczkowicz and Dolińska-Ficek and Ozimek the Court had referred to the judgment of 18 July 2007 (no. K 25/07), which allegedly provided a ‘firmly established’ model for the appointment of judicial members of the NCJ. However, the judgment in case no. K 25/07 had made no mention whatsoever of this issue, and thus the reference to this judgment as allegedly confirming that ‘judicial members of the NCJ could be elected only by judges’ had resulted from unfamiliarity with this judgment and from its free citation by the Court.

Moreover, the allegation that the Constitutional Court's position expressed in case K 25/07 had been subsequently substantively modified in its judgment of 20 June 2017 (no. K 5/17) was groundless. Both of those judgments merely pointed out that there was no firmly established position as to which body had — pursuant to Article 187 § 1(2) in conjunction with Article 187 § 4 of the Constitution — sole competence to elect judicial members of the NCJ. Thus, it could not reasonably be argued that the modification of the statutory model for the election of those members in 2017 had contradicted the Constitution and had resulted in a ‘manifest breach of the law’. It also had to be noted that in both judgments the statements about the possibility of electing judges to the NCJ by their peers had been obiter dicta.

The First President of the Supreme Court submitted that, taking account of different views presented in the Supreme Court case-law, it could not be proved that the solutions introduced by the legislator in 2017 were incompatible with the Constitution. Before 2019 it had been consistently held in that case-law that Article 187 § 1(2) of the Constitution contained no specific rules for the selection of judges to the NCJ and that the duty to determine such rules had been entrusted to the legislature. Having regard to the above, it was clear that the case-law considered by the Court in the Reczkowicz and Dolińska- Ficek and Ozimek judgments concerned only one side of the issue. There were numerous other examples in the case-law, including that of the Supreme Court, which pointed in the opposite direction. Also, after the Reczkowicz judgment there had been no consistent case-law on the matter of the composition of the Supreme Court. In this respect the First President of the Supreme Court referred to the decision of the Supreme Court's Criminal Chamber of 23 September 2021 (no. IV KZ 37/21) and two judgments of the Supreme Administrative Court of 4 November 2021 (nos. III FSK 3626/21 and III FSK 4104/21).

The First President of the Supreme Court argued that the allegation that the mere legislative change replacing the previous model for choosing the judicial members of the NCJ was, by its very nature, supposed to undermine the independence of that body and subsequently — which was more important — the independence of the judges appointed on the NCJ's recommendation to the President of the Republic, was entirely groundless and not supported by the Court's existing case-law. Moreover, the claim that the solution adopted by the Polish legislature regarding the composition of the present NCJ had been inconsistent with Polish law was beyond the powers of the Court and violated the principle of subsidiarity and the margin of appreciation.

The First President of the Supreme Court maintained that it was essential that judges could exercise their duties free from the influence and pressure of other authorities. However, the presumed violation of this primary principle could not be derived solely from the fact that a particular judge was appointed by the NCJ, elected in accordance with the 2017 Amending Act. Thus, to infer a lack of independence of judges merely due to reservations concerning the changes in the method of election of the NCJ's judicial members was a far-reaching simplification. This argument was based, inter alia, on an unsubstantiated assumption that the mere appointment of the NCJ's judicial members by the Sejm automatically meant that the candidates for judicial office presented by this body, after their appointment by the President of the Republic, would not be independent. At the same time, this argument strongly deviated from the Court's current position, according to which, when assessing the independence of a judge, the attitude of a judge exercising the office entrusted to him or her was of paramount importance. Since, in the Guðmundur Andri Ástráðsson case (cited above), the Court had not questioned the independence of judges appointed by the Icelandic Parliament, it could not — in the present case — be reasonably assumed that the lack of independence of judges appointed as members of the Disciplinary Chamber of the Supreme Court was due solely to the fact that their candidatures had been presented by a body partially elected by a parliamentary vote from amongst judges chosen by their peers.

The Court notes that the complaint under Article 8 of the Convention, in so far as it concerns the initiation of a preliminary inquiry into the applicant's request for a preliminary ruling and the Disciplinary Chamber's resolution of 18 November 2020, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

The applicant maintained that the interference with his right to respect for his private life in the form of preliminary inquiries and the Disciplinary Chamber's resolution lifting his immunity had not been ‘in accordance with the law’ since domestic law did not afford him adequate safeguards in respect of the arbitrary actions of the disciplinary officer. Similarly, no such safeguards were available as regards the activities of the Disciplinary Chamber which had been functioning in conflict with the judgments of the domestic courts and the CJEU's interim measure.

Next, the applicant argued that the interference in his case had not pursued any legitimate aim. He submitted that the legislature had deliberately designed the current disciplinary regime for judges to be used as an instrument of political control over them. The operation of the disciplinary regime in its current form, violated the constitutional legal order, undermined the principle of the separation of powers, sought to subjugate judges to the political powers and destroyed the public image of courts as independent bodies.

The applicant stressed that the preliminary inquiry initiated in connection with the so-called ‘judicial excesses’ related to the referral of his request for a preliminary ruling to the CJEU (see paragraph 10 point (5) above) was in direct conflict with the settled case-law of that court. He referred to the judgment of 5 July 2016 in Atanas Ognyanov (case C-614/14) where the CJEU ruled out the possibility of the existence and application of any national disciplinary provisions which could in any way contribute to discouraging national courts from referring requests for a preliminary ruling under Article 267 TFEU.

The applicant contended, referring, inter alia, to the resolution of the joined Chambers of the Supreme Court of 23 January 2020 (see paragraphs 199–200 above) and the CJEU's interim order of 8 April 2020 (C-791/19 R; see paragraph 228 above) that the actions of the Disciplinary Chamber which resulted in the lifting of his judicial immunity were in conflict with both Polish and EU law and as such should not be protected under the Convention.

The applicant also submitted that he had had the competence to admit the media to the session of 18 December 2017. According to Article 95b § 1 of the CCP, while sessions of the court were generally not open to the public, the court or the president of the court could decide otherwise. The applicant took such a decision in the impugned proceedings taking account of the public interest in the case. He also referred to the Disciplinary Chamber's resolution of 22 April 2021 which found that the reasonable suspicion against him had not been substantiated.

The applicant further maintained that the interference in his case had not been ‘necessary in a democratic society’ and was contrary to its fundamental values.

Referring to the submissions of the Commissioner for Human Rights (see paragraph 368 above), the applicant stated that his case had not been an isolated incident where the authorities had taken disciplinary and criminal measures against the judges with a view to undermining their credibility. The authorities were instrumentally making use of the applicable regulations to persecute the applicant, who publicly opposed the unconstitutional changes in the justice system and their illegal activities with regard to the exercise of his judicial powers. Similarly, the legal harassment of the applicant gave rise to an interference with his judicial independence, and therefore an unlawful act violating not only his rights, but also the rights of all citizens to be judged by an independent and impartial tribunal.

The Government referred to their earlier submissions that the complaint under Article 8 was incompatible ratione materiae. Should the Court decide otherwise, they argued that neither the preliminary inquiries nor the Disciplinary Chamber's resolution of 18 November 2020 contravened the requirements of Article 8 § 2 of the Convention.

As regards the lawfulness of the alleged interference, they submitted that the impugned preliminary inquiries had been initiated on the basis of section 114(1) of the 2001 Act (as amended), according to which the disciplinary officer may initiate such inquiries after a preliminary determination of circumstances necessary to establish constituent elements of a disciplinary offence. The applicant's participation in the preliminary inquiries was in line with section 114(2) of the 2001 Act as he had been summoned by the disciplinary officer to make written and oral statements concerning the subject of the inquiries.

The Government further indicated that the Disciplinary Chamber's resolution of 18 November 2020 was based on section 80(2c) of the 2001 Act according to which a disciplinary court could issue a resolution permitting a judge to be held criminally liable if there was a reasonable suspicion that the judge had committed an offence. Under section 129(2) and (3) of the 2001 Act, should the disciplinary court issue such a resolution, the judge would be suspended automatically from his judicial duties and his remuneration would be reduced by 25 to 50% for the period of the suspension (see paragraph 144 above). These two provisions concerning judicial immunity had been in force since 1 October 2001 when the 2001 Act entered into force and since then they had not undergone any substantial change. The Government noted that the proceedings in which the court lifted a judge's immunity were neither disciplinary proceedings, nor were they in any way connected with them. The aim of those proceedings was limited to allowing the prosecutor in charge to continue the criminal proceedings in order to establish whether the offence in question had been committed by a judge.

Furthermore, the resolution at issue had been adopted owing to a reasonable suspicion that the applicant might have committed the offence of publicly disclosing information from the pre-trial proceedings before it had been disclosed in the court proceedings, an offence under Article 241 § 1 of the CC.

The Government maintained that the alleged interferences had a solid basis in domestic law. Moreover, owing to the applicant's profession and experience, not only had he needed to be familiar with the relevant rules on judicial conduct, as well as criminal law provisions, he should also have been able to foresee the consequences of breaching them. Therefore, the alleged interference was in accordance with the law.

The Government contended that the impugned measures had pursued the legitimate aims of the prevention of crime and the protection of the rights of others. Along with the alleged irregularities concerning the applicant's professional conduct, they had constituted circumstances indicating that he might have committed disciplinary offences. The applicant's actions could simultaneously have undermined the authority of the judiciary, obstructed the proper administration of justice and infringed the rights of the parties to the proceedings.

Moreover, the applicant's decision allowing the media to record the session of 18 December 2017 had resulted in the alleged disclosure of information from the investigation. Such behaviour might have impeded the conduct of the pre-trial proceedings and simultaneously interfered with the rights of persons whose testimonies had been made public. Accordingly, the Government maintained that initiating the preliminary inquiries and lifting the applicant's immunity from prosecution had served the legitimate aims and allowed the disciplinary officer to examine whether the applicant had committed disciplinary offences and the prosecutor in charge to continue the criminal proceedings in order to establish whether the applicant had committed the offence in question.

As regards the assessment of the necessity, the Government submitted that the alleged interference had not gone beyond what was strictly necessary in a democratic society and that it had been proportionate to the legitimate aims pursued. They emphasised that to hold the office of judge was associated with certain limitations resulting from Article 178 § 3 of the Constitution, which restricted judges' constitutional rights of a political nature, such as freedom of speech and belief or freedom of assembly and association inasmuch as these freedoms were exercised in a public dimension.

The Government referred to the wording of an oath that judges took upon their appointment in accordance with section 66 of the 2001 Act, which stated that they were to serve faithfully the Republic of Poland, to safeguard the law, to discharge their duties conscientiously, to administer justice impartially in accordance with the law and their conscience, to keep State and professional secrets and to act in accordance with the principles of propriety and honesty. Pursuant to section 82 of the same Act, judges were required to act in compliance with the judicial oath and respect the authority of their office at all times. In addition to the above constitutional and statutory provisions, judges should abide by the rules laid down in the Collection of Principles of Judges' Professional Ethics.

Taking account of the above regulations, the Government maintained that all Polish judges, including the applicant, were subjected to the same rules, which required them to abide by the highest ethical and professional standards of conduct. Any signs of behaviour deviating from such standards would be scrutinised and thoroughly examined by the relevant authorities in order to safeguard the authority of the judiciary. In particular, allegations of criminal conduct of a judge required an immediate and firm response. It would be unfounded to expect that the appropriate provisions of generally applicable laws would not be applied to the applicant's conduct, especially taking into account his above-average media exposure. Such expectation would inevitably contravene the principle of equality before the law.

The Government pointed out that the preliminary inquiries had not led to the conclusion that the applicant had breached any of the above-mentioned rules and no sanctions had been imposed upon him. Therefore, taking into account the circumstances of the case, the Government submitted that the preliminary inquiries had been proportionate and necessary in terms of Article 8 § 2 of the Convention.

The Government submitted that the applicant's judicial immunity had been lifted on the basis of a reasonable suspicion that he might have committed an offence in the exercise of his judicial duties. They noted that such an allegation had cast a shadow on the applicant's professional conduct and questioned his ability to properly deliver justice. The adoption of the resolution of 18 November 2020 lifting the applicant's immunity had simply enabled the authorities to fulfil their duties related to the prosecution of crimes. In this regard, it could not be overlooked that the powers and privileges which judges enjoyed were not tantamount to releasing them entirely from any liability in the event of a criminal offence being committed.

The Government contended that the resolution of 18 November 2020 had been in line with the principle of legalism enshrined in Article 10 of the CCP, which obliged the prosecution authorities to institute and conduct pre-trial proceedings with respect to offences prosecuted of their own motion, and the prosecutor to bring and substantiate charges. They noted in this regard that having acquired the information that the applicant, acting in the capacity of a judge, might have committed an offence, the public authorities had no discretion and they had been obliged to react. They requested the domestic court to lift the applicant's judicial immunity, in particular taking into account his profession and his significant role in the administration of justice as well as the impact that the applicant had as a judge on the rights and freedoms of others. Therefore, the measure corresponded to a pressing social need.

In addition, the Disciplinary Chamber's resolution of 18 November 2020 had not challenged the applicant's status as a judge, but only suspended him from his judicial duties. The suspension had been a temporary measure which would be lifted upon the conclusion of the criminal proceedings should the prosecutor find that the applicant had not committed the offence at issue. Similarly, the applicant's remuneration was reduced only for the period of his suspension. They Government also noted that the Disciplinary Chamber had applied the lower statutory limit for this measure and had reduced the applicant's remuneration by 25% instead of the maximum 50%. Thus, in their view, the measure was proportionate to the legitimate aims pursued.

In conclusion, the Government argued that that the domestic authorities had carried out a careful analysis and had sought to strike a balance between the protection of the applicant's private life and the need to protect the legitimate aims invoked by them. Consequently, they submitted that no violation of Article 8 of the Convention had occurred in the case.

As established above, the initiation of a preliminary inquiry into the applicant's request for a preliminary ruling as well as the lifting of his immunity and the ensuing suspension from exercising judicial duties affected his private life to a very significant degree (see paragraph 387 above). The impugned measures therefore constituted an interference with the applicant's right to respect for his private life (see, mutatis mutandis, Gumenyuk and Others, cited above, § 93).

Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being ‘in accordance with the law’, pursuing one or more of the legitimate aims listed therein, and being ‘necessary in a democratic society’ in order to achieve the aim or aims concerned.

The Government maintained that the applicant had failed to avail himself of the remedies available under the domestic law for his complaint under Article 10, in particular a civil action for the protection of his personal rights under Articles 23 and 24 of the Civil Code.

The applicant contested the Government's objection regarding the non-exhaustion of domestic remedies. He claimed that no effective remedy was available to him under domestic law, referring to the same arguments as made earlier in respect of the complaint under Article 8 (see paragraphs 396–397 above).

The Court notes that the applicant's complaint under Article 10 concerns three sets of preliminary inquiries initiated by the disciplinary officer with regard to the applicant (see paragraph 10 points (1), (3) and (4) above) and the final decision of the Disciplinary Chamber of 18 November 2020 lifting the applicant's immunity and suspending him from judicial duties. The Government pleaded, in general terms, that the applicant should have had recourse to a civil action for the protection of his personal rights. However, they offered no explanation as to how that remedy could have provided redress for the applicant's grievances under Article 10 of the Convention. The Court finds that its above conclusions as to the lack of effectiveness of a civil claim for infringement of personal rights regarding the applicant's situation in respect of Article 8 equally apply to the complaint under Article 10 (see paragraph 399 above). The present objection must accordingly be dismissed.

The Court further notes that the complaint under Article 10 of the Convention is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

The applicant submitted that he was one of the most uncompromising critics of the attack on the rule of law and judicial independence that had been taking place in Poland over the last years. His public activity in this area was undertaken in accordance with the concept of the so-called ‘civic judge’, whose task it was to explain to citizens the principles of the rule of law. His attitude was highly appreciated by both civil society and expert bodies. In 2019 he had been awarded the Edward Wende Prize for his involvement in the defence of judicial independence and the Civic Honorary Prize of the Polish Judges' Association Iustitia. In 2021 he was bestowed with the Harvard University Scholars at Risk Award and the Scott Crosby Human Rights Award of the European Criminal Bar Association. The American Bar Association had prepared a report on the legal harassment to which he had been subjected.

The applicant argued that there had been an interference with his freedom of expression. He averred that the measures taken against him, namely the preliminary inquiries and criminal proceedings, were the consequence of his public criticism of the authorities' actions aimed at undermining judicial independence. His stance in defence of judicial independence had been noted by numerous domestic and international organisations.

The applicant maintained that the assessment of his statements had to take into account the general context, namely the unprecedented attack by the Government on the rule of law and judicial independence that had been taking place since late 2015. This was confirmed by countless reports of international organisations and expert bodies, and also by domestic and international courts and by the position of numerous EU member States.

The applicant stated that the true aim of all the measures taken against him by the authorities was to produce a ‘chilling effect’ with a view to discouraging him and other judges from taking a position on the Government's actions against the judiciary. In the applicant's submission, the sole fact that he had continued participating in the public debate on matters relating to the judiciary and the rule of law did not mean that the ‘chilling effect’ was absent in his case. He also referred to a smear campaign against Polish judges with the involvement of high-ranking public officials. This campaign included the establishment and operation of the so-called ‘troll farm’ within the Ministry of Justice.

As an example of the ‘chilling effect’, the applicant referred to the decision of the Koźmiński University in Warsaw to terminate collaboration with him in September 2021 even though he had lectured there for years (see paragraph 130 above). This decision, subsequently reversed, had been taken in consequence of the official ban on teaching students imposed on the applicant by the Vice-President of the Warsaw Regional Court. The same authority had banned the applicant from giving lectures to members of the Warsaw Bar Council (see paragraph 131 above). The applicant maintained that a sanction did not need to be imposed in order to achieve a chilling effect, as the mere fact of having been investigated or the risk of being investigated under unclearly drafted and interpreted legislation could constitute a violation of the right to freedom of expression. He referred to Altuğ Taner Akçam v. Turkey, no. 27520/07, 25 October 2011.

The applicant contended that the disciplinary proceedings against him, the series of stigmatising messages from the representatives of the authorities, as well as the media smear campaign against him, were all elements leading to the unlawful decision of the Disciplinary Chamber lifting his judicial immunity and suspending him from his duties. In the same vein the actions of the State Prosecutor's Office had been taken with a view to ultimately removing him from judicial office. In the applicant's view, an examination of the sequence of events in their entirety clearly showed that sanctions against him had been introduced in reaction to his public statements in defence of judicial independence.

The applicant submitted that the lifting of his immunity and his suspension from judicial duties also constituted the authorities' warning to all judges, showing what could happen to them for publicly defending the rule of law and the independence of the judiciary. In his view, the Disciplinary Chamber's resolution had to be seen against the background of all the circumstances of the case. The proceedings before the Disciplinary Chamber, which were initiated three years after the court session of 18 December 2017, had become the pretext for the applicant's legal harassment and for imposing unlawful restrictions on his freedom of expression. Those proceedings had been related to the fact that the court session at issue was of the utmost inconvenience to the ruling party.

The applicant stressed that in publicly addressing threats to judicial independence he had complied with the obligations arising from Article 178 § 3 of the Constitution. He stated that it was his obligation as a judge to speak out in protection of judicial independence and referred on this point to the Magna Carta of Judges (Fundamental Principles) adopted by the CCJE and the Sofia Declaration on Judicial Independence and Accountability adopted by the ENCJ. The applicant emphasised that both in the exercise of his judicial duties and in his public statements he had always been guided by the law and the principles of the judicial profession.

In the applicant's view, the course of events in his case and a significant amount of evidence adduced by him before the Court confirmed the existence of a causal link between the exercise of his freedom of expression and the measures taken against him by the authorities, in particular the Disciplinary Chamber's resolution of 18 November 2020.

The applicant argued that the interference at issue did not meet the requirements of Article 10 § 2 of the Convention.

The applicant maintained that the interference with his freedom of expression resulting from the Disciplinary Chamber's resolution of 18 November 2020 had not been ‘prescribed by law’. He referred to his earlier submissions regarding the unlawfulness of the proceedings before the Disciplinary Chamber (see paragraphs 313–319 above). The applicant claimed that the relevant provisions of the 2001 Act, namely sections 80(2c), 110(2a) and 129(2) and (3), had been applied by the Disciplinary Chamber in an arbitrary manner with a view to depriving him of his judicial immunity. He also stressed that according to the Warsaw Court of Appeal's decision of 24 February 2021 his judicial immunity had not been lawfully lifted (see paragraphs 105–111 above).

He further argued that the interference at issue had not pursued any legitimate aim within the meaning of Article 10 § 2 of the Convention. All his actions as a judge and all his public statements were intended in fact to maintain the authority and impartiality of the judiciary, which had been undermined by the authorities currently in power. In this regard, he referred to the Disciplinary Chamber's resolutions of 9 June 2020 and 22 April 2021 finding a lack of reasonable suspicion that he had committed an offence under Article 241 § 1 of the CC. The applicant stated that, even as indicated by members of the illegally operating Disciplinary Chamber of the Supreme Court, his actions as a judge were in full conformity with the relevant Polish law.

The applicant contended that the impugned interference had not been necessary in a democratic society. He argued that neither the exercise of his judicial functions nor his involvement in public debate could justify the interference with his freedom of expression.

The applicant submitted that the preliminary inquiries, having regard to their number and obvious connection with his judicial and public activities had produced adverse consequences for him. All the disciplinary proceedings against the applicant had sought to involve him in various legal procedures, causing obvious impairment to the exercise of his judicial duties. In this regard, the applicant stressed that the severity of those measures had been compounded by the fact that the disciplinary proceedings had not been concluded for years and that he remained in a state of prolonged uncertainty as to further developments. In his view, those proceedings should be regarded as legal harassment.

The applicant argued that as a result of the unlawful actions of the State Prosecutor's Office and illegally operating Disciplinary Chamber he had been deprived of the right to exercise his judicial duties, which constituted one of the severest sanctions for a judge. He also faced the threat of being arrested at all times. The applicant further referred to the bans on his teaching activities.

In his view, there had been no ‘pressing social need’ that could justify the lifting of his immunity and the subsequent actions of the State Prosecutor's Office, which had sought permission to arrest him and bring him forcibly for questioning. The applicant argued that the criminal proceedings against him had been contrary to the Polish Constitution and to the European standards and had been motivated by political considerations.

The applicant claimed that the proceedings before the Disciplinary Chamber, a body which did not meet the requirements of an ‘independent and impartial tribunal established by law’, could not be regarded as fair or attended by adequate procedural safeguards.

The Government maintained that there had been no interference with the applicant's freedom of expression. As regards the preliminary inquiries, they argued that they had not amounted to such an interference. They noted that one set of preliminary inquiries had concerned the applicant's comments in a television programme and the two others related to his participation in public meetings. However, no disciplinary proceedings against the applicant had been brought and no sanctions had been imposed on him as a result of those preliminary inquiries. Moreover, at no point had the applicant been precluded from publicly expressing his views on matters relating to the Polish judicial system.

The Government submitted that, on the contrary, in the period subsequent to the initiation of those preliminary inquiries the applicant had remained active in the public sphere, openly criticising the public authorities and the justice system in Poland or even announcing that he would hinder the ongoing criminal proceedings against him in an interview published in the daily Dziennik Gazeta Prawna on 27 November 2020. They referred to numerous interviews given by the applicant to various media outlets. The Government further mentioned the applicant's participation in a public meeting organised by the Committee for the Defence of Democracy on 18 December 2018 and his speech delivered in front of the Supreme Court on 18 November 2020 during a demonstration organised by the Committee for the Defence of Justice. They lastly referred to the applicant's invitation of 3 January 2020 to participate in the March of a Thousand Robes published on the Internet by the Polish Judges' Association Iustitia.

Taking into account the above information, the Government maintained that it would be unfounded to claim that measures undertaken with regard to the applicant had amounted to an interference with his freedom of expression.

For those reasons, the applicant's case differed significantly from Baka v. Hungary ([GC], no. 20261/12, 23 June 2016) and Kudeshkina v. Russia (no. 29492/05, 26 February 2009) in the following two aspects. Firstly, in both of those cases the applicants had been subjected to harsh sanctions in the form of removal either from the office of judge or from the position of court president. By contrast, in the present case no sanction had been imposed on the applicant and no disciplinary proceedings had been initiated against him. Secondly, the Court had found in the two above-mentioned cases that the impugned measures had a ‘chilling effect’ on judges who had expressed criticism on constitutional and legislative reforms affecting the organisation of the justice system (Baka, cited above, §§ 168–176) or who wished to participate in the public debate on the effectiveness of the judicial institutions (Kudeshkina, cited above, §§ 97–99). However, in the present case the applicant had continued criticising the attempts to reform the justice system and thus it did not appear that the impugned measures had produced any ‘chilling effect’.

In this regard, the Government argued that mere allegations that the contested measures had had a ‘chilling effect’, without clarifying in which specific situation such an effect had occurred, was not sufficient to constitute interference for the purposes of Article 10 of the Convention (they referred to Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland, no. 68995/13, decision of 12 November 2019, § 72).

Referring to Morice v. France [GC] (§§ 128 and 162), the Government stated that the particular task of the judiciary in society required judges to observe a duty of discretion. That duty pursued a specific aim: the discourse of judges was received as the expression of an objective assessment which committed not only the judge expressing himself or herself as an individual, but also, through that judge, the entire justice system. In addition, judicial authorities, in the exercise of their adjudicatory function, were required to exercise maximum discretion not only with regard to the cases with which they dealt, but also in expressing criticism towards fellow public officers and, in particular, other judges (they referred to di Giovanni v. Italy, no. 51160/06, 9 July 2013).

Having regard to that case-law, the Government submitted that judicial office was associated with certain limitations, also in the area of freedom of speech. In the Polish legal system, those limitations were prescribed in the Constitution and in statute law. Numerous interviews and public speeches delivered by the applicant indicated that he might have failed to observe the duty of discretion and lacked restraint in exercising his freedom of expression, contrary to Article 178 of the Constitution, which imposed on a judge an obligation of impartiality, this being inextricably linked to the principle of independence.

Taking into account, inter alia, sections 66, 82 and 89(1) of the 2001 Act and the rules contained in the Collection of Principles of Judges' Professional Ethics, the Government claimed that the applicant had acted in a way that, in fact, undermined his impartiality and independence since his public activities and statements had revealed his political likes and dislikes. In any event, the preliminary inquiries had not led to a conclusion that the applicant had breached any of the above-mentioned rules and no sanctions had been imposed upon him. Therefore, there had been no interference with his freedom of expression in this regard.

As regards the Disciplinary Chamber's resolution of 18 November 2020, the Government stressed that also in this respect there had been no interference with the applicant's freedom of expression. The resolution had not related to any statements or views expressed by the applicant in the context of a public debate, but had referred solely to his professional conduct during the session held on 18 December 2017. The applicant's conduct during the above session had borne no relation to the reform of the judicial system or to his criticism thereof.

In the Government's contention, the resolution of 18 November 2020 lifting his immunity had not been a sanction. Similarly, the applicant's suspension from office and reduction of his salary were not to be considered sanctions as, firstly, they were of a temporary nature and, secondly, they constituted the consequences of adopting the resolution. The resolution had permitted the prosecution to continue conducting the investigation, which, if necessary, could then enter the phase of the proceedings in personam. In addition, the criminal proceedings against the applicant were at their initial stage since he had not been formally charged. The Government claimed that the applicant had failed to indicate any direct or indirect causal link between his participation in the public debate and the lifting of his immunity.

Furthermore, after the Disciplinary Chamber's resolution of 18 November 2020 the applicant had continued his public activities. He had participated in the demonstrations in front of the Supreme Court on 18 November 2020 and in front of the State Prosecutor's Office on 20 January, 10 February and 12 March 2021, when he had referred to the proceedings against him as a ‘mockery’. He had been interviewed on numerous occasions, had appeared on Polish and international radio and television programmes and had expressed his opinions on the Internet and on social media. Therefore, the applicant had not been pressured by anyone to remain silent and no authorities had legally obliged him to refrain from publicly commenting on political events and legislative developments.

Should the Court decide that the measures at issue, namely the preliminary inquiries and the Disciplinary Chamber's resolution of 18 November 2020 amounted to an interference with the applicant's freedom of expression, the Government argued that the interference had satisfied the requirements of Article 10 § 2 of the Convention.

The Government submitted that the interference complained of was ‘prescribed by law’, referring to their earlier submissions with regard to the complaint under Article 8 of the Convention (see paragraphs 414–417 above). The Disciplinary Chamber's resolution of 18 November 2020 had been adopted owing to a reasonable suspicion that the applicant might have committed an offence under Article 241 § 1 of the CC. The Government noted that the applicant, as a judge, must have been familiar with the scope of this provision, which was precise and accurate. In addition, referring to Brambilla and Others v. Italy (no. 22567/09, § 64, 23 June 2016), they argued that judges, compared with journalists, should all the more be expected to know the law and to realise what actions might fulfil the constitutive elements of specific offences.

The Government maintained that the measures at issue had pursued the legitimate aims of the prevention of crime and the protection of the reputation of others as well as preventing the disclosure of information received in confidence and maintaining the authority and impartiality of the judiciary. They submitted that the preliminary inquiries and the disciplinary proceedings had served to maintain the highest standards of judicial conduct, simultaneously safeguarding the proper administration of justice.

Furthermore, the applicant's decision to allow the media to record the session held on 18 December 2017, during which he had presented extensive information from the pre-trial proceedings, had allegedly resulted in the unauthorised disclosure of information from the investigation no. VIII Kp 1335/17. Simultaneously, the applicant's action might not only have impeded the conduct of the pre-trial proceedings, but might have also violated the rights of persons whose testimonies had been made public.

In this context, the Government argued that the applicant, as a judge, should have taken care in processing the information received in the course of the ongoing criminal proceedings. In their view, disclosing specific factual information concerning the investigation in a sensitive case before it was made public in the court proceedings might have been regarded as incompatible with the role of a judge and as such might have undermined the authority and impartiality of the judiciary.

Next, the Government contended that the alleged interference had been necessary and proportionate to the legitimate aims pursued. Referring to their earlier submissions concerning the legal obligations incumbent on judges (see paragraphs 420–421 above), the Government stressed that the preliminary inquiries with regard to the applicant had been legitimate and necessary. The relevant authorities had been obliged to verify that the applicant's numerous activities in the public sphere and his open criticism of the authorities and the justice system in Poland did not amount to a violation of pertinent regulations obliging judges to remain independent and impartial. As such, the authorities were committed to maintain the authority and impartiality of the judiciary and their actions had been proportionate to the legitimate aim pursued.

The Government further submitted that the Disciplinary Chamber had been obliged to issue the resolution of 18 November 2020, as it had been necessary in the light of the reasonable suspicion that the applicant had committed an offence while exercising his judicial duties.

The Government submitted that in fact the public already had knowledge of the events that were the subject of investigation no. VIII Kp 1335/17 even before the court session of 18 December 2017 had been held. This case had received extensive media coverage as it concerned the activities of the Sejm and so the disclosure of specific information from the investigation could have been regarded as redundant. However, by allowing the media to record the session the applicant might have failed to exercise caution and breached the rules of professional conduct for judges.

In addition, the Government submitted that neither the preliminary inquiries, nor the criminal proceedings had constituted a penalty or had led to the imposition of one. The preliminary inquiries had not resulted in disciplinary proceedings or imposed a disciplinary penalty upon the applicant. The resolution of 18 November 2020 had been issued owing to a reasonable suspicion that the applicant might have committed an offence, the perpetrator of which was liable to a fine, restriction of liberty or imprisonment for up to two years. The applicant had not been dismissed, but only temporarily suspended from his position and retained the possibility of exercising the profession of judge in the future. The applicant's salary had been reduced by a minimum amount of 25% for the period of the suspension. Therefore, the measure had corresponded to the gravity of the offence in question and had not been disproportionately severe.

In conclusion, the Government submitted that the domestic authorities had struck a proper balance between the need to protect the relevant aims prescribed in paragraph 2 of Article 10 of the Convention and the protection of the applicant's freedom of expression. Consequently, they argued that no violation of Article 10 had occurred in the case.