| Applicant name | TULEYA |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | POLAND |
| Application no. | 21181/19 51751/20 |
| Date | 06/07/2023 |
| Judges | Marko Bošnjak, President, Alena Poláčková, Krzysztof Wojtyczek, Ivana Jelić, Gilberto Felici, Erik Wennerström, Raffaele Sabato |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Quality of law; no legitimate interest |
| Type of privacy | Private life |
| Keywords | Dismissal from office; quality of law; silencing oposition |
| Facts of the case | 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 relied on Article 6, 8, 10 and 13 ECHR. |
| Analysis | This judgement is relevant for a number of reasons: 1. The inner workings of the ECtHR remain a bit of a mystery. Oftentimes, for example, the Court would assess matters as to fair procedural issues under substantive provisions of the ECHR, such as Article 8 containing the right to privacy, pointing to the procedural requirements implicit in those doctrines. Other times, such as in this case, however, the Court would issue a ruling both under Article 6 ECHR as to the procedural elements of the case and then also assess potential substantial violations under Article 8 ECHR. When and why it choses one route or the other is not always clear. This judgement consist for the majority of a very elaborate and detailed description of the facts of the case and the proceedings at the domestic level, and the Court’s finding that Article 6 ECHR had been violated. Although the ECtHR refutes most of the applicant’s claim under this provision either on preliminary or substantive grounds, it does find that the government’s preliminary objection as to the applicant’s victim status in respect of the lifting of his immunity must be dismissed. The Court finds that the irregularities in the appointment process compromised the legitimacy of the disciplinary chamber to the extent that, following an inherently deficient procedure for judicial appointments, it had lacked and continued to lack the attributes of a “tribunal” which could be considered “lawful” for the purposes of Article 6 § 1 ECHR. The very essence of the right at issue had therefore been affected. 2. As to Article 8 ECHR, the applicant complained that his right to private life had been violated on account of the various preliminary inquiries initiated by the disciplinary officer and of the disciplinary chamber’s resolution of 2020 lifting his immunity and suspending him from his judicial duties. The government suggested that the applicant could not rely on Article 8 with respect to the loss of his reputation because that stemmed from his own actions, but the Court finds that the alleged misconduct on the applicant’s part is not evident. Therefore, it is not willing to apply the exclusionary principle, according to which in cases where the negative effects complained of are limited to the consequences of the unlawful conduct which were foreseeable by the applicant, Article 8 cannot be relied upon to allege that such negative effects encroached upon private life. 3. As to the content of the complaint, the Court finds that the initiation of a preliminary into the allegedly improper exercise of judicial duties by the applicant, even if not leading to disciplinary proceedings stricto sensu, was undertaken with a view to initially determining whether a disciplinary offence had been committed. Having regard to the nature and the duration of the variousnegative effects stemming from the initiation of preliminary inquiry into the applicant’s request for a preliminary ruling as well as from the lifting of his immunity and the ensuing suspension, the Court considers that the impugned measures affected his private life to a very significant degree, falling therefore within the scope of Article 8 ECHR. Thus, there has been an interference. 4. The ECtHR subsequently analyses whether that interference was in accordance with the law and in particular points to its quality of law doctrine. As regards the preliminary inquiry into the reference for a preliminary ruling, the ECtHR primarily summarises the CJEU’s jurisprudence and its conclusion that the interference in the form of a preliminary inquiry into the reference for a preliminary ruling was contrary to EU law. Thus, the ECtHR concludes, the interference with the applicant’s right to respect for his private life in this part was not in accordance with the law for the purposes of Article 8 ECHR. As regards the Disciplinary Chamber’s resolution of 18 November 2020,the Court points out that even though the interference complained of had a basis in statute law, the question was whether the relevant legal framework was foreseeable in its application and compatible with the rule of law. The Court finds that the Disciplinary Chamber of the Supreme Court failed to satisfy the requirements of an “independent and impartial tribunal established by law” and that the irregularities in the appointment processcompromised the legitimacy of the Disciplinary Chamber to the extent that, following an inherently deficient procedure for judicial appointments, it did lack and continues to lack the attributes of a “tribunal” which is “lawful”. That is why the Court finds that the decision permitting the applicant to be held criminally liable and suspending him was given by a body which cannot be considered a “court” for the purposes of the Convention, despite the explicit requirements under the Polish Constitution that decisions of this kind must emanate from a court. 5. ‘The impugned interference thus cannot be regarded as lawful in terms of Article 8 of the Convention as not being based on a “law” that afforded the applicant proper safeguards against arbitrariness. This conclusion in itself would be sufficient for the Court to establish that the interference with the applicant’s right to respect for his private life was not “in accordance with the law” within the meaning of Article 8 of the Convention. Nevertheless, the Court finds it appropriate to examine the complaint further and establish whether the “quality of law” requirements were met (§443-444)’.The latter finding is interesting for three reasons. First, it seems to find that Polish national law was not adhered to, as it speaks of a court, but to find what that term means, the ECtHR refers to its own requirements and interpretation of that term. Second, although this would in itself, the Court continues to evaluate the quality of the legal regime as well. Third, to explain what that requirement means in this case, the ECtHR refers to its standards under Article 7 ECHR, the prohibition of retroactive legislation. 6. The Court stresses that the applicant’s case must be seen in the general context concerning the reorganisation of the judiciary in Poland and that the whole sequence of events in Poland vividly demonstrated that successive judicial reforms had been aimed at weakening judicial independence. As a result of the successive reforms, the judiciary was exposed to interference by the executive and legislative powers and thus substantially weakened. It makes clear that the applicant’s individual circumstances must be seen against the general context, as he is one of the most outspoken critics of the judicial reform in Poland. Because an independent judiciary is a vital requirement for the rule of law and the quality of the legal system, and because there had been conflicting views on the standards to be used in terms of the existence of a reasonable suspicion in relation to the applicant, the Court finds that the correct interpretation of the domestic legal system was unforeseeable. This finding is again interesting, as it at least partially could be seen as self-referential. 7. As to the complaint of applicant that his freedom of expression, Article 10 ECHR was violated, the Court finds, because the impugned measures were prompted by the views and criticisms that applicant had publicly expressed in his professional capacity. Again, the Court finds that the impugned interference thus cannot be regarded as lawful in terms of Article 10 ECHR as it was not based on a “law” that afforded the applicant proper safeguards against arbitrariness. It follows that the interference with the applicant’s freedom of expression was not “prescribed by law”. Normally, the Court would have stopped there, but it also analyses whether there was a legitimate interest in this case. It suggests that the measures taken by the authorities could be characterised as a strategy aimed at intimidating (or even silencing) the applicant in connection with the views that he had expressed in defence of the rule of law and judicial independence. Also, the impugned measures undoubtedly had a “chilling effect” in that they must have discouraged not only the applicant but also other judges from participating in public debate on legislative reforms affecting the judiciary and more generally on issues concerning the independence of the judiciary. Therefore, the Court concludes, the interference did not pursue any of the legitimate aims permitted for the purposes of that provision. Obviously, the Polish government would deny that these measures were aimed at silencing the applicant and his colleagues and although the ECtHR gives reasons for its findings, it does not provide too much evidence to support its claims or refute the arguments of the Polish government. 8. Finally, judge Wojtyczek, in a separate opinion, points out his disagreement with the finding of the majority that the claims of the applicant under Articles 6 and 8 where admissible. As to Article 8 ECHR, he feels that the opening of criminal proceedings necessarily impacts upon the person concerned, but that such is still not a matter that falls under the scope of Article 8 ratione materiae. |
| Other Article violation? | Violation 6 ECHR & Violation 10 ECHR; no violation 13 ECHR |
| Damage awarded | that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |