Last Updated on May 17, 2021 by LawEuro
Published on 10 May 2021
FIRST SECTION
Application no. 26004/20
Waldemar PIONKA
against Poland
lodged on 15 June 2020
communicated on 30 April 2021
STATEMENT OF FACTS
1. The applicant, Mr Waldemar Pionka, is a Polish national who was born in 1958 and lives in Ćmielów. He is represented before the Court by Ms K.M. Gajowniczek-Pruszyńska, a lawyer practising in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant has been a public prosecutor since 1985. Between July 2004 and April 2016, the applicant held the position of Head of the Ostrowiec Świętokrzyski District Prosecutor’s Office (Prokurator Rejonowy).
As Head of Office, the applicant supervised an investigation into allegations of medical malpractice resulting in the death of the father of Mr Z.Z. Since 16 November 2015 Mr Z.Z. has been Minister of Justice, and on 4 March 2016 he became Prosecutor General following an amendment to the law which combined the two positions. The investigation into the death of his father was conducted by the Ostrowiec Świętokrzyski Prosecutor’s Office between 2007 and 2011 and was discontinued on 15 June 2011 with the conclusion that no offence had been committed.
4. Since 2002 the applicant has been married under the community of assets regime (wpólnota majątkowa). In Poland, prosecutors are under a legal obligation to submit annual declarations of means (oświadczenia majątkowe) for their households. The applicant has submitted such declarations, including information on his wife’s assets. In 2018 the applicant learned from his wife, with whom he was in conflict, that she held a bank account of which he had not been aware.
5. On 7 March 2018 the applicant lodged with his superiors a request to amend his declarations of means for the years 2011 to 2017, in order to add all his wife’s assets.
6. On 6 July 2018 the Gdańsk Regional Prosecutor initiated an investigation against the applicant in connection with his allegedly incorrect declarations of means.
7. On 2 April 2019 the Head of Department of Internal Affairs of the State Prosecution Service (Naczelnik Wydziału Spraw Wewnętrznych Prokuratury Krajowej) applied to the Disciplinary Court at the General Prosecutor (Sąd Dyscyplinarny przy Prokuratorze Generalnym) to allow prosecution of the applicant under several charges, in particular abuse of power proscribed by Article 231 of the Criminal Code. The request indicated that the applicant had been aware of his wife’s assets in her bank account but had intended to hide them.
8. The applicant requested the Disciplinary Court to dismiss the application. He repeated his arguments that, once he had become aware that his wife had been transferring her salary to a separate account, he had immediately sought to amend his declarations of means. The applicant underlined that he had no interest in hiding her savings as they came from a legitimate source and had been subject to applicable taxes.
9. On 20 May 2019 the Disciplinary Court gave a resolution in which it held not to allow the prosecution of the applicant. The court considered that, in the light of the facts of the case, it had not been possible to conclude that the applicant had known or ought to have known about his wife’s bank account. The account had been opened by her personally and the applicant had no insight into it. This version of events had been confirmed by the applicant’s wife and was consistent with all other evidence, including that from the bank. The court held that the applicant had acted in good faith when lodging his request to amend the impugned declarations.
10. On 11 July 2019 the State Prosecutor lodged an appeal with the Supreme Court. The appeal was transferred to the Disciplinary Chamber of the Supreme Court.
11. On 10 December 2019 the applicant lodged a request seeking that his case be examined by a court which would comply with the requirements indicated in the judgment of 19 November 2019 given by the Court of Justice of the European Union (“CJEU”; see paragraph 27 below).
12. During the hearing held on 19 December 2019, the applicant challenged impartiality of judges M.B. and J.W., sitting in the panel of the Disciplinary Chamber. In particular, he stressed that both judges had previously been prosecutors, and that the General Prosecutor B.S., involved in the applicant’s case, had been their hierarchical superior. On the same day the Disciplinary Chamber dismissed the applicant’s challenge.
13. On 19 December 2019 the Disciplinary Chamber altered the resolution of the Disciplinary Court of 20 May 2019 and allowed criminal prosecution of the applicant. The Disciplinary Chamber also decided to suspend the applicant from his official duties for the duration of the proceedings. The Disciplinary Chamber held that on the collected evidence sufficiently justified reasonable suspicion that the criminal offence had been committed.
14. On 14 and 28 January 2020 the applicant requested re-opening of the proceedings, submitting that in the light of the CJEU judgment of 19 November 2019 and the Supreme Court’s resolution of 28 January 2020 his case had not been examined by a tribunal established by law. The request was initially assigned to the Criminal Chamber of the Supreme Court and, subsequently, to the Disciplinary Chamber. On 23 September 2020 the Disciplinary Chamber held that the applicant’s request had been inadmissible and decided to leave it without examination.
15. In July 2020 the applicant was charged with abuse of power proscribed by Article 231 of the Criminal Code. On 13 October 2020 the State Prosecutor lodged a bill of indictment against him with the Ostrowiec Świętokrzyski District Court. The proceedings are pending.
B. Relevant domestic law legal framework and practice
1. Constitution of the Republic of Poland
Article 186 § 1
“1. The National Council of the Judiciary shall safeguard the independence of courts and judges.”
2. Criminal Code
Article 231 (abuse of power)
“1. A public official who, overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a prison term of up to three years.”
3. Code of Criminal Procedure and Code of Civil Procedure
16. Article 439 § 1 of the Code of Criminal Procedure deals with absolute grounds of appeal (bezwzględne przyczyny odwoławcze).
“Regardless of the scope of the appeal and the arguments raised, as well as the impact of the shortcoming on the content of the ruling, the appellate court shall, at a sitting, revoke the decision appealed against if:
2) the court was unduly composed or any of its members was not present at the entire hearing”.
17. Article 379 of the Code of Civil Procedure deals with invalidity of proceedings (nieważność postępowania).
“Proceedings shall be null and void:
4) if the composition of the adjudicating court was inconsistent with the provisions of the law, or if a judge excluded by virtue of the law took part in the examination of the case;”
4. The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary
18. Before the entry into force of the Act of 8 December 2017 Amending the Act on the National Council of the Judiciary (ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw; “the 2017 Amending Act”).
2017 Amending Act, on 17 January 2018, the Act on the National Council of the Judiciary (“the NCJ”) provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels of the judiciary.
19. The 2017 Amending Act granted to the Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a § 1). It stipulated that the joint term of new members of the NCJ began on the day following the day of their election (section 9a § 3).
5. The Act of 8 December 2017 on the Supreme Court
20. 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. It modified the organisation of that court, in particular by creating two new Chambers: Disciplinary and of Extraordinary Control and Public Affairs (section 3).
21. The Disciplinary Chamber of the Supreme Court became competent to rule on cases of the employment, social security and retirement of judges of the Supreme Court (section 27 § 1).
22. The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in Supreme Court were excluded from it (section 131).
23. Section 29 of the 2017 Act on the Supreme Court provides that judges of the Supreme Court shall be appointed by the President of Poland acting on recommendation by the NCJ.
24. On 19 September 2018 the President appointed ten judges, including judges sitting in the case at hand, to the Disciplinary Chamber of the Supreme Court. The appointment was made upon recommendation of the NCJ.
6. The rulings of the Court of Justice of the European Union (the CJEU)
(a) Preliminary ruling of 19 November 2019
25. In August and September 2018 the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before that court.
26. The requests concerned, inter alia, a question whether the Disciplinary Chamber of the Polish Supreme Court satisfied, “in the light of the circumstances in which it was formed and its members appointed, the independence and impartiality required” under EU law.
27. On 19 November 2019 the Court of Justice of the European Union gave a preliminary ruling on the cases referred by the Supreme Court (joined Cases C-585/18, C-624/18 and C-625/18). The CJEU concluded as follows:
“Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the [Supreme Court].
If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.”
28. The CJEU formulated the following concerns with respect to the NCJ (§ 143 of the judgment):
“…first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2 000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the NCJ directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly‑formed NCJ.”
29. The CJEU noted that “the decisions of the President of the Republic appointing judges to the Supreme Court are not amenable to judicial review” (§ 145 ibid).
30. In addition, the CJEU considered that other features, taken jointly, pertaining to the Disciplinary Chamber should also be taken into account (§§ 147-151):
– “this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social security and retirement of judges of the [Supreme Court], which previously fell within the jurisdiction of the ordinary courts”.
– “under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly-appointed judges, thereby excluding judges already serving in the [Supreme Court]”.
– “although established as a chamber of the [Supreme Court], the Disciplinary Chamber appears, in contrast to the other chambers of that court, and as is clear, inter alia, from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court.”
(b) Interim measures in case C 791/10
31. In January 2020 the Commission requested the CJEU to order Poland to adopt a series of interim measures in another case pending before the CJEU (C 791/19 Commission v. Poland). On 9 March 2020 the CJEU held a hearing and on 8 April 2020 granted the interim measures requested by the Commission. The court ordered a provisional suspension of the relevant provisions of the 2017 Act on the Supreme Court governing activity of the Disciplinary Chamber, in disciplinary proceedings of judges, until delivery of the final judgment by the CJEU. Secondly, the Polish authorities were ordered to refrain from referring cases pending before the Disciplinary Chamber for examination by a panel that did not fulfil the requirements of independence as indicated, in particular, in the ruling of 19 November 2019). Thirdly, the Polish authorities would inform the Commission, within one month from the ruling ordering interim measures, of the measures taken in its execution.
(c) Cases nos. C-487/19 (W.Ż.) and C-508/19 (M.F.)
32. On 15 April 2021 the CJEU’s Advocate General Evgeni Tanchev delivered two opinions in cases C-487/19 and C-508/19. Both cases originated in a request for preliminary ruling lodged by panels of the “old” chambers of the Supreme Court, in the course of proceedings concerning the determination of status of two judges from the newly created chambers of that court: one from the Chamber of Extraordinary Control and Public Affairs (A.S. – C-487/19) and one from the Disciplinary Chamber (J.M.‑ C‑508/19).
33. In the opinion in the case C-487/19 the Advocate General explicitly confirmed that in the light of A.S.’s appointment (where the stay of enforcement of the NCJ resolution was ordered and ignored by the President of the Republic), the gravity of breaches was more serious than of those identified in the Court’s Grand Chamber judgment Ástráðsson v. Iceland. He also stated that intentional infringements of the appointment procedure were manifestly aimed at ensuring that the government would have an influence on judicial appointments.
34. In the opinion delivered in case no. C-508/19, the Advocate General stated that the appointment of judge J.M. by the President, despite the fact that appeal proceedings against the NCJ resolution were pending, resulted in a potentially flagrant breach of fundamental norms of national law.
35. The assessment of consequences of flawed judicial appointment was left to the discretion of the referring court, although the Advocate General concluded, that legal effectiveness of a ruling issued by a court composed of judges appointed in such procedure should be limited.
7. Follow up to the CJEU’s judgment of 19 November 2019
36. On 5 December 2019 and 15 January 2020, the Supreme Court gave judgments in the three cases where requests had been made to the CJEU for a preliminary ruling. The judgment of 5 December 2019 contained extensive grounds and applied interpretation indications given by the CJEU. The court concluded that the NCJ in “its current composition is not a body that is impartial and independent from legislative and executive branches of power” (§ 88 of the judgment). The Supreme Court also concluded that the Disciplinary Chamber of the Supreme Court was not a court within the meaning of domestic law and of Article 6 of the Convention (§ 79).
37. On 23 January 2020 the joined Chambers of the Supreme Court (fifty-nine judges of Civil, Criminal, and Labour Law and Social Security Chambers) issued a common resolution. The court made the following conclusions, in so far as relevant:
“1. A court formation is unduly composed within the meaning of Article 439(1)(2) of the Code of Criminal Procedure or a court formation is inconsistent with the provisions of law within the meaning of Article 379(4) of the Code of Civil Procedure also where the court formation includes a person appointed to the office of a judge of the Supreme Court on recommendation of the National Council for the Judiciary formed in accordance with the [2017 Amending Act].
…
3. The interpretation of Article 439(1)(2) of the Code of Criminal Procedure and Article 379(4) of the Code of Civil Procedure provided in points 1 and 2 hereof shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date hereof under the Code of Criminal Procedure before a given court formation.
4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under [the 2017 Act on the Supreme Court] irrespective of the date of such judgments.”
38. On 28 January 2020 the Constitutional Court examined a request made by the Speaker of the Sejm on a conflict of competence between the Sejm and the Supreme Court and between the President of Poland and the Supreme Court. On the above date, the Constitutional Court issued an interim measure in which it suspended the enforcement of the Supreme Court’s resolution of 23 January 2020 and suspended the prerogative of the Supreme Court to issue resolutions concerning issues of national or international law. In particular, the court held that it would be inadmissible to rely on Article 439 § 1 (2) of the Code of Criminal Procedure and on Article 379 (4) of the Code of Civil Procedure in the manner set out in the Supreme Court’s resolution of 23 January 2020.
39. On 21 April 2020 the Constitutional Court gave a final ruling on the matter of “conflict of competence” (postanowienie; case no Kpt 1/20). It decided to:
“1. Resolve the conflict of competence between the Supreme Court and the Sejm of the Republic of Poland as follows:
(a) The Supreme Court – also in connection with a decision of an international court – does not have the competence to make a binding interpretation of the provisions of law, by means of [a resolution], leading to a change in the law in the sphere of the system and organisation of the judiciary,
(b) pursuant to Article 10, Article 95(1), Article 176(2), Article 183(2) and Article 187(4) of the Constitution of the Republic of Poland, the making of an amendment to the extent specified in item 1(a) shall be within the exclusive competence of the legislature.
2. Resolve the conflict of competence between the Supreme Court and the President of the Republic of Poland as follows:
(a) under Article 179 in conjunction with Article 144(3)(17) of the Constitution, the appointment of a judge is the exclusive competence of the President of the Republic of Poland, which he exercises on the proposal of the National Council of the Judiciary personally, definitively, without the participation or interference of the Supreme Court,
(b) Article 183 of the Constitution does not provide for the competence of the Supreme Court to exercise supervision over the exercise by the President of the Republic of Poland of the competence referred to in Article 179 in conjunction with Article 144(3)(17) of the Constitution, including the exercise of a binding interpretation of legislation leading to the determination of the conditions for the effectiveness of the exercise of that competence by the President of the Republic of Poland.”
40. On 20 April 2020 the Constitutional Court gave judgment (case no U 2/20) in which it held that the joined resolution of the Supreme Court of 23 January 2020 was not in compliance with the Constitution. The judgment was published in the Official Journal on 21 April 2020.
COMPLAINTS
41. The applicant complains under Article 6 § 1 of the Convention that his case was examined by the Disciplinary Chamber of the Supreme Court that was not an “independent and impartial tribunal established by law”. In this respect, the applicant complains that the judges of the Disciplinary Chamber were appointed in the procedure involving the NCJ. In his view, there are indications that the judges sitting in the panel were not independent and impartial, inter alia, due to their previous work in the prosecution service.
42. The applicant also complains under Article 8 of the Convention about the Disciplinary Chamber’s decision allowing his criminal prosecution and suspending him in his functions. The applicant submits that the disciplinary proceedings and criminal charges were part of a harassment campaign against him. Moreover, the interference in his private and family life was arbitrary and was carried out by an authority that had not been a “court established by law”.
43. Finally, the applicant complains about the excessive length of proceedings in this case and the lack of effective domestic remedy to complain about their length.
QUESTIONS TO THE PARTIES
Article 6 § 1
1. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case?
2. Did the proceedings before the Disciplinary Chamber of the Supreme Court violate the applicant’s right to be heard by a tribunal established by law as guaranteed by Article 6 § 1 of the Convention (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020)? Reference is made, in particular, to the Resolution of the joined Civil, Criminal, and Labour and Social Security Chambers of the Supreme Court of 23 January 2020 (no. BSA I‑4110-1/20).
3. Was the Disciplinary Chamber of the Supreme Court which dealt with the applicant’s disciplinary case independent and impartial, as required by Article 6 § 1 of the Convention?
4. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
Article 8
5. 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 the Disciplinary Chamber’s decision of 19 December 2019?
6. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
Article 13
7. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1 concerning unreasonable length of the proceedings, as required by Article 13 of the Convention?
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