CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 janvier 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } Published on 3 April 2023   FIRST SECTION Application no. 2203/23 Paweł GRZEGORCZYK against Poland lodged on 12 January 2023 communicated on 16 January 2023 SUBJECT MATTER OF THE CASE On 24 January 2017 the President of Poland appointed the applicant, the Head of the Department of Civil Procedure at the Adam Mickiewicz University in Poznań, to the Civil Chamber of the Supreme Court. On 13 June 2022 the President of Poland signed into law the Act of 9 June 2022 Amending the Act on the Supreme Court and certain other acts ( ustawa o zmianie ustawy o Sądzie Najwyższym oraz niektórych innych ustaw , “the 2022 Act”), which entered into force on 15 July 2022. On the latter date, the Disciplinary Chamber of the Supreme Court was abolished, and the Chamber of Professional Responsibility of the Supreme Court ( Izba Odpowiedzialności Zawodowej Sądu Najwyższego ) was established. The 2022 Act envisaged that the new chamber would be competent to hear, in particular, certain disciplinary cases against judges, assessors, prosecutors and prosecutorial assessors, requests for authorisation of their detention on remand, requests for lifting judicial or prosecutorial immunity and cassation appeals in disciplinary cases of members of the so-called “professions of public trust” ( zawód zaufania publicznego ). In accordance with the provisions of the 2022 Act, the First President of the Supreme Court presided over a drawing of lots and drew names of 33   sitting judges of the Supreme Court, whose names as candidates to the Chamber of Professional Responsibility were submitted to the President of Poland. On 17 September 2022 the President of Poland designated from among them 11 judges of the Supreme Court, including the applicant, to adjudicate in the Chamber of Professional Responsibility, for a term of five years. The President’s decision was countersigned by the Prime Minister of Poland and promulgated in the Monitor Polski – Official Gazette of the Republic of Poland on 27 September 2022. Pursuant to the relevant provisions of the 2022 Act, the applicant could not refuse to participate in the drawing of lots, nor could he object to being designated to the Chamber of Professional Responsibility or refuse to adjudicate in that chamber. The 2022 Act further provides that the allocation of cases in the Chamber of Professional Responsibility may not exceed a half of the overall workload of a judge. On 17 October 2022 the applicant lodged an appeal against the decision of 17 September 2022 with the Warsaw Regional Administrative Court, through the intermediary of the President of Poland. On 2 November 2022 he also requested that court to stay the enforcement of the impugned decision, pending the outcome of proceedings. Meanwhile, on 31 October 2022, the applicant requested the President of Poland to reconsider his designation to the Chamber of Professional Responsibility. On 17 November 2022 the Secretary of State at the Chancellery of the President of Poland replied that the applicant’s request could not be granted. On the following day, the President of Poland requested the Warsaw Regional Administrative Court to reject the applicant’s appeal due to the lack of jurisdiction ratione materiae or, alternatively, to dismiss it. On 23 February 2023 that court decided to stay the enforcement of the decision of 17 September 2022, in so far as it concerned the applicant (case no. VI SA/Wa 8158/22). The Warsaw Regional Administrative Court held that the implementation of the decision in question interfered with the applicant’s independence as a judge. Referring to the jurisprudence of the CJEU, it noted that transferring a judge without his consent to another court, or between two divisions of the same court, may violate the principles of irremovability and independence of judges. It also noted that the impugned decision was issued not by a body within the structure of the judiciary, but by organs of the executive power – the President of Poland and the Prime Minister, and therefore not within the former’s exclusive prerogatives. The applicant complains under Article 6 § 1 of the Convention that he was denied the right of access to a court. He submits that the decision designating him to adjudicate in the Chamber of Professional Responsibility, against his will, amounts to a de facto transfer from his judicial office and constitutes a breach of the constitutional principle of irremovability of judges. According to the applicant, the decision of the President of Poland was arbitrary, aimed at legitimising judges appointed to the Supreme Court in manifest breach of domestic law (in that respect, the applicant cited Reczkowicz v. Poland , no.   43447/19, 22 July 2021, Dolińska-Ficek and Ozimek v. Poland , nos.   49868/19 and 57511/19, 8   November 2021 and Advance Pharma sp.   z   o.o v.   Poland , no. 1469/20, 3   February 2022) and comparable to a disciplinary sanction, in so far as the applicant’s autonomy was disregarded and he was forced to adjudicate in a field outside of his expertise. He argues that the lack of any statutory criteria for the designation of judges to the Chamber of Professional Responsibility renders judicial review ineffective. The applicant also complains under Article 6 § 1 of the Convention about being forced to adjudicate in a body that does not constitute an “independent and impartial tribunal established by law” which amounts to a breach of his judicial independence. He submits that he is faced with an impossible choice of either violating the litigant’s right to a fair trial or exposing himself to disciplinary and/or criminal liability for refusing to hear cases in the Chamber of Professional Responsibility. Finally, the applicant complains under Article 8 of the Convention that he was forced to revise his chosen career path. He submits that the President’s decision forces him to give up a significant part of his private and family life in order to prepare himself for a role imposed by the executive in a discretionary and arbitrary manner. QUESTIONS TO THE PARTIES Article 6 § 1   1.     Was Article 6 § 1 of the Convention under its civil limb applicable to the dispute concerning the applicant’s designation to the Chamber of Professional Responsibility of the Supreme Court? In particular, did the applicant arguably have a “right” that was “civil” in nature (see, mutatis mutandis , Grzęda v. Poland [GC], no. 43572/18, §§ 266-327, 15 March 2022)?   2.     If so, did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see , mutatis mutandis , Bilgen v. Turkey, no.   1571/07, §§ 92-96, 9 March 2021)? In particular, were the conditions of the test established in Vilho Eskelinen and Others v.   Finland ([GC], no. 63235/00, § 62, ECHR 2007 ‑ II) and subsequently refined in Grzęda (cited above, §§ 291-92) satisfied?   3.     Can Article 6 § 1 of the Convention be interpreted in such a way as to recognise a subjective right of judges to have their individual independence safeguarded and respected by the State?   4.     If so, was the applicant’s independence respected by the State in the present case?   5.     Can the applicant claim to be a victim of a violation of Article 6 § 1 of the Convention, within the meaning of Article   34 (see Burden v. the United Kingdom [GC], no. 13378/05, §§   33 ‑ 34, ECHR 2008), in so far as he complains about being forced to adjudicate in a body that does not constitute an “independent and impartial tribunal established by law”?   6.     In the affirmative, did the applicant’s designation to the Chamber of Professional Responsibility of the Supreme Court, a body that also includes judges appointed to the Supreme Court following an “inherently deficient procedure” (see Dolińska-Ficek and Ozimek , cited above, § 353 and Advance Pharma Sp. z o.o. , cited above, § 353), result in violation of Article 6 § 1 of the Convention on account of the fact that he would be sitting in formations including such judges? Article 8   1.     Is Article 8 of the Convention applicable to the present case (see Denisov v.   Ukraine [GC], no. 76639/11, §§ 95-114, 25 September 2018 and Juszczyszyn v. Poland , no. 35599/20, §§ 228-37, 6 October 2022)?   2.     If so, has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, on account of his designation to the Chamber of Professional Responsibility of the Supreme Court without his consent?   3.     In the affirmative, was that interference “in accordance with the law”, in terms of the relevant legal provisions being foreseeable in their application and was it “necessary in a democratic society”, as required by Article 8 (see Silver and Others v. the United Kingdom , 25 March 1983, § 88, Series A no. 61)?