The European Court of Human Rights will consider Judge Igor Tuleya’s application no. 21181/19. This is now the thirteenth application in which the ECtHR will assess whether the changes in the justice system in Poland since 2015 breach the rights of the applicants protected by the European Convention on Human Rights.

Tuleya is accusing the Polish government of, inter alia, breaching his right to private life and his reputation in connection with disciplinary proceedings against him and summoning him as a witness in disciplinary proceedings against other judges in 2018 (events after 2018 are not included in the application).

The ECtHR noticed the broader context of the disciplinary proceedings against Tuleya and other judges in Poland.

In the press release, the Court pointed out that, since the model of disciplinary liability for judges changed in 2018, disciplinary proceedings have been initiated against judges in Poland in connection with their judicial activity and because they have been speaking up in a public debate, especially if the judges criticized the changes in the judiciary. It also noted that a slanderous campaign was being conducted against Judge Tuleya in the media, insulting him and attempting to discredit him and that the judge was receiving hate messages.

Disciplinary proceedings were initiated against Igor Tuleya in 2018:

• for his statements on TVN24 about the National Council of the Judiciary and the justice system;
• in connection with the alleged public dissemination of information about an investigation in a pending case. The case applied to the resumption of the investigation into the voting in the Sejm’s Column Room on 16 December 2016 during the so-called Sejm crisis;
• for taking part in a public meeting at the European Solidarity Centre in Gdańsk;
• for taking part in a public meeting in Lublin;
• for referring a question for a preliminary ruling to the Court of Justice of the EU. Judge Ewa Maciejewska from the District Court in Łódź also referred the same question to the CJEU (in March 2020, the CJEU held that it would not consider these questions for formal reasons, but simultaneously emphasized that disciplinary action against judges for submitting a question requesting a preliminary ruling was inadmissible).

Furthermore, Tuleya was called as a witness in 2018:

• in disciplinary proceedings against judges for allegedly breaching the freedom of speech in connection with statements made at the Pol’and’Rock festival;
• in disciplinary proceedings against Judge Maciejewska in connection with her referral of a question requesting a preliminary ruling to the Court of Justice of the EU; the Deputy Disciplinary Commissioner described this question as a ‘judicial excess’.

Judge Tuleya accuses the Polish authorities of breaching the European Convention on Human Rights

Tuleya states before the ECtHR that the right to a fair trial protected by Article 6.1 of the European Convention on Human Rights was breached as a result of summoning him for questioning in the case of Judge Ewa Maciejewska.

He states that he was not informed about the actual subject of the questioning and that his proxy, Attorney Jacek Dubois, was not allowed to participate in the questioning. He testified under the pain of criminal liability about his judicial activity because he referred the same question as Judge Maciejewska to the Court of Justice of the EU. He was therefore actually a witness in his own case and whatever he said could have been used against him.

Tuleya was unable to appeal against the failure to admit his proxy to the questioning, which, in his opinion, was in breach of Article 14 of the Convention, guaranteeing the right to an effective remedy.

Furthermore, Judge Tuleya believes his right to privacy and family life, which is protected by Article 8 of the Convention, from which the protection of his reputation arises, was breached.

He argues that his professional reputation is being breached through the conduct of unjustified disciplinary proceedings, which are disproportionate to his actions, and by summoning him as a witness in disciplinary proceedings against other judges. This is because he practices the profession of a judge and adjudicates in criminal cases, while his professionalism, competence, and independence as a judge are being undermined. According to Tuleya, this also breaches the authority of the judiciary.

‘This complaint does not have the objective of challenging the legitimacy of the existence of disciplinary proceedings against judges, but constitutes the expression of an objection to the instrumentalization of such proceedings,’ Tuleya concludes in his complaint to the European Court of Human Rights.

13th complaint in connection with Ziobro’s ‘reforms’

The European Court of Human Rights has found thirteen applications admissible, in which it will assess whether the ‘reforms’ of the judiciary being forced through by Zjednoczona Prawica [the United Right group] breached the rights of the applicant protected by the European Convention on Human Rights.

They apply, among other things, to:

• the status of the Constitutional Tribunal and its members;
• neo-National Council of the Judiciary;
• the new Chambers of the Supreme Court – the Disciplinary Chamber and the Extraordinary Control and Public Affairs Chamber;
• the matter of appointing and dismissing judges from various functions, for example from membership of the National Council of the Judiciary or the post of court president.

The ECtHR held that the applications were not manifestly ill-founded and referred them for examination.

The Court examines the complaints in chronological order, while taking into account the importance and urgency of the case. It first handles cases of particular importance.

Professor Róberta Ragnar Spanó, who was appointed the new president of the ECtHR in May. He is trying to show that the ECtHR treats matters of independence of the judiciary seriously and as a priority.

In early September, during his official visit to Turkey, Spanó recalled that ‘Those in power cannot control the courts. To put it clearly, laws must not only apply to the populace, but also, and crucially to those that hold the reins of power at any given moment. Ladies and gentlemen, no man or woman is above the law.’ The moderate tone of his remaining statements and the fact that the President of the ECHR did not meet with representatives of the civic society in Turkey cast a shadow over this historic visit. Some Turkish lawyers even called on Spanó to resign.

However, the President of the ECtHR can still draw conclusions from that visit. While the Court itself should not delay in issuing judgments in cases regarding the independence of the judiciary and the impartiality of judges.

The most important courts in Europe will assess the ‘good change’ in the courts in Poland

The Court of Justice of the EU has so far assessed the changes in the judiciary being forced through by the United Right since 2015. The most important court of the European Union specified how EU law protects judicial independence in ground-breaking judgments.

In June 2019, the Grand Chamber of the CJEU held that the reduction in the retirement age of Supreme Court judges was in breach of EU law. It also ruled in November 2019 on the regulations reducing the retirement age of ordinary court judges. On 19 November 2019, when answering questions from the Supreme Court, the CJEU specified the criteria of an independent court and bodies such as the National Council of the Judiciary.

The Court of Justice of the EU is now examining the third complaint of the European Commission – the model of disciplinary liability for judges. We shall hear the verdict, among others regarding the Disciplinary Chamber of the Supreme Court in a few months. In April, the CJEU decided to apply interim measures in this case. The Disciplinary Chamber was to refrain from adjudicating in disciplinary cases of judges. However, it adjudicated in a criminal case regarding Judge Igor Tuleya (it did not remove his immunity).

The European Commission is to announce the next steps (‘a reasoned opinion’) in the coming few days in the proceedings against the Polish government regarding the breach of EU law under Article 258 of the Treaty on the Functioning of the European Union. It applies to the provisions of the Muzzle Act, which further intensifies the disciplinary liability of judges. The act has been in force since 14 February 2020.

The CJEU will also respond to a dozen or so questions requesting preliminary rulings from Polish and Dutch courts.