Case Summary and Outcome

The European Court of Human Rights ruled that the measures taken by the Polish authorities against a judge, recognized by civil society as a defender of the rule of law and the independence of the judiciary during the Polish constitutional crisis, were infringements of his right to freedom of expression. The judge had been subjected to various preliminary disciplinary enquiries and was eventually suspended from judicial office. The Court held that the measures taken against him were in response to his critical statements and constituted a disguised sanction and concluded that the interference was not “prescribed by law” and did not pursue a legitimate aim.

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Facts

On November 18, 2020, the Polish Judicial Disciplinary Chamber removed Warsaw Regional Court criminal judge Igor Tuleya’s immunity from prosecution and suspended him from office. Tuleya was recognized in Poland as an active figure in the context of the Polish constitutional crisis, opposing reforms of political power and defending the independence of the judiciary and is an activist of the Polish judges’ association “Iustitia“.

In Poland, the disciplinary officer for ordinary court judges (Rzecznik Dyscyplinarny Sędziów Sądów Powszechnych) is empowered to initiate preliminary enquiries (czynności wyjaśniajace) into judges “of his own initiative or at the request of the relevant authorities ‘after initial determination of circumstances necessary to establish the constituent elements of a disciplinary offence’.” [para. 8] These are governed by section 114(1) of the Act of 27 July 2001 on the Organisation of Ordinary Courts (the 2001 Act).

The disciplinary action related to a decision Tuleya delivered on December 18, 2017 where Tuleya, sitting as a single judge in the Warsaw Regional Court, ruled on a controversial political issue concerning irregularities in the adoption of the 2017 Budget Act. Some opposition Members of Parliament had claimed that they had not been allowed to take part in the parliamentary debate and after the Warsaw Regional Prosecutor had discontinued the investigation, four people filed an interlocutory appeal (zażalenie). Journalists requested permission to record the court session and Tuleya, after consultation and no objections from the representatives of the MPs and the prosecutor, decided to hold the court session in public and to allow media representatives to record the court session in accordance with Article 357(1) of the Code of Criminal Procedure. Tuleya allowed the interlocutory appeal and ordered the prosecutor to continue the investigation.

Subsequently, on January 10, 2018, the Prosecutor’s Office opened an investigation into the possible unauthorized disclosure of information from the pre-trial proceedings by Tuleya. It took more than two years before one of the prosecutors applied, on February 17, 2020, to the Disciplinary Chamber of the Supreme Court to issue a decision allowing Tuleya to be held criminally liable. The prosecutor argued that Tuleya had failed to fulfill his duties under the Code of Criminal Procedure and the Criminal Code by disclosing to unauthorized persons information from the investigation conducted by the Warsaw Regional Prosecutor Office.

On June 9, 2020, the Disciplinary Chamber adopted a resolution (uchwała) rejecting the application to allow Tuleya to be held criminally liable. The Disciplinary Chamber, sitting as a court of first instance in this case, found that there was no reasonable suspicion that he had committed the criminal offense in question and found that he had acted on the basis of the powers conferred on him by the law. On June 16, 2020, a prosecutor lodged an interlocutory appeal and on November 18, 2020, the Disciplinary Chamber, sitting as a court of second instance, ruled to remove Tuleya’s immunity and to allow him to be held criminally liable in regard to the charge under Article 241(1) of the Criminal Code. Pursuant to section 129(2) and (3) of the 2001 Act, he was also suspended from his judicial duties and his salary was reduced by 25% for the duration of the suspension. The judgment criticized the interpretation of Article 241(1) of the Criminal Code adopted in the first instance judgment and found the last few minutes of Tuleya’s oral argument, in which he was to reveal previously unknown material from the pre-trial proceedings to be crucial.

Tuleya was summoned three times, on January 20, February 10 and March 12, 2021, to appear before the prosecutor conducting the investigation in order to be presented with the charges, but he did not appear and, instead, on each of the three dates mentioned above, took part in a demonstration in front of the State Prosecutor’s Office building, challenging the legality of the Disciplinary Chamber’s resolution of November 18, 2020.

The prosecutor of the State Prosecutor’s Office then applied to the Disciplinary Chamber for leave to have Tuleya arrested (zatrzymanie i przymusowe doprowadzenie) with a view to charging him under Article 241(1) of the Criminal Code and questioning him as a suspect. On April 22, 2021, the Disciplinary Chamber dismissed this application finding that there were no reasonable grounds to suspect that an offense had been committed and noting that the prosecutor did not specify the information allegedly disclosed by Tuleya.

The prosecutor filed an interlocutory appeal against this decision and on November 29, 2022, the body that replaced the Disciplinary Chamber – the Chamber of Professional Liability – upheld the Disciplinary Chamber’s decision of April 22, 2021, finding the interlocutory appeal to be manifestly ill-founded. On its own initiative, the Chamber of Professional Liability set aside the Disciplinary Chamber’s resolution of November 18, 2020 in so far as it concerned Tuleya’s suspension from judicial duties and the reduction of his salary for the duration of that suspension.

Notably, in November 2020, the Warsaw Regional Court, sitting in a panel composed of Tuleya, stayed the criminal proceedings due to the reference to the Court of Justice of the European Union for a preliminary ruling. The prosecutor filed an interlocutory appeal against the decision to stay the proceedings, which was dismissed by the Warsaw Court of Appeal on February 24, 2021. Tuleya later relied on this judgment, which undermined the status of the Disciplinary Chamber as a court, and in light of this, Tuleya remained an ordinary judge with immunity and the right to adjudicate.

Deputy disciplinary officers had previously initiated five enquiries against Tuleya “on account of [his] conduct allegedly disregarding the limits of judicial independence”. [para. 9] Three of these enquiries were relevant to the case and related to investigations into an interview on the TVN24 television news channel on July 17, 2018 and Tuleya’s statements on the National Council of the Judiciary and the administration of justice; Tuleya’s participation in a public meeting in Gdańsk on September 28, 2018 organised by the Iustitia, the Gdańsk Bar Council and the Gdańsk Council of Attorneys-at-Law, and addressed topics on the Constitution, freedom and the role of courts in a democratic society; and Tuleya’s participation in public meeting in Lublin on September 30, 2018.

In each case, the deputy disciplinary officers had not found sufficient grounds for bringing disciplinary proceedings. Despite this, Tuleya maintained that he had not been informed of the termination of the preliminary inquiries.

The action taken against Tuleya and the judicial proceedings provoked a reaction from civil society, including international legal institutions. The OSCE Office for Democratic Institutions and Human Rights, the International Association of Judges, the Bar Council of England and Wales, the American Bar Association Center for Human Rights and Amnesty International expressed concern about the independence of the judiciary in Poland in the context of the conduct of the political authorities towards Tuleya. Conversely, people linked to the ruling party issued statements describing Tuleya as a political activist.

Tuleya had first approached the European Court of Human Rights, arguing that his rights under Article 10 of the European Convention on Human Rights had been infringed in 2019. When he filed a second application, the two applications were combined.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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Decision Overview

The First Section of the European Court of Human Rights delivered the judgment. Judge Wojtyczek issued a partly dissenting opinion. The central issue for the Court’s determination was whether the action taken against Tuleya was an infringement of his rights to freedom of expression, protected by Article 10.

Tuleya described his position as a so-called “civic judge” and defender of the rule of law during the Polish constitutional crisis and gave examples of how his position had been appreciated by civil society and expert bodies. He submitted that the action taken against him was a consequence of his public activity and stressed that his case should be seen in the context of the crisis of the rule of law and the threat to the independence of the judiciary. Tuleya said 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”. [para. 464] Tuleya submitted that none of the requirements of the tripartite test to determine whether the infringement with his right to freedom of expression was justified had been met. First, the interference was not “prescribed by law” because the Disciplinary Chamber applied the provisions of the 2001 Act in an arbitrary manner in order to deprive him of his judicial immunity and because his judicial immunity had not been lawfully removed (as found by the Warsaw Court of Appeal on February 24, 2021). Second, the interference in question did not pursue any legitimate aim as Tuleya submitted that his activity served to maintain the authority and impartiality of the judiciary and referred to two resolutions of the Disciplinary Chamber (dated 9 June 2020 and 22 April 2021) in which it was found that there was no reasonable suspicion that he had committed an offense under Article 241(1) of the Criminal Code. Third, the measure in question was not necessary in a democratic society as Tuleya argued that the exercise of his judicial functions and his participation in public debate could not justify the interference with his freedom of expression.

The Polish government submitted that there had been no interference with Tuleya’s freedom of expression. It argued that the measures had not stopped Tuleya’s activity in the public sphere and that the preliminary enquiries had not led to any disciplinary proceedings and so there had not been any sanction imposed on Tuleya. Because of the absence of sanctions and an actual chilling effect, the government distinguished the case from Baka v. Hungary and Kudeshkina v. Russia. The government maintained that Tuleya had violated the judicial duty of discretion derived from the Polish Constitution, statutes and the Collection of Principles of Judges’ Professional Ethics, and submitted that the Disciplinary Chamber’s resolution of November 18, 2020 was not related to Tuleya’s statements and views expressed in the context of public debate on the Polish judicial system but to his professional activity during the session held on December 18, 2017. The government argued that removing Tuleya’s immunity had not been a sanction and reiterated that Tuleya had continued his activities after that resolution. The government argued that the interference was justified. It submitted that the “prescribed by law” criterion was met, as the preliminary inquiries had a legal foundation and the resolution of the Disciplinary Chamber of November 18, 2020 was taken on the basis of a reasonable suspicion that Tuleya might have committed an offense, as provided for in Article 241(1) of the Criminal Code. The government provided a list of legitimate aims underpinning the action against Tuleya, including the prevention of crime and the protection of the reputation of others, the prevention of the disclosure of information received in confidence and the maintenance of the authority and impartiality of the judiciary. The government argued that the interference was necessary and proportionate to the legitimate aims pursued as, given Tuleya’s numerous activities in which he openly criticized the Polish judicial system, the competent authorities were obliged to verify that the requirements of impartiality and independence had not been violated. It added that Tuleya may have failed to exercise caution by allowing the media to record the court session of December 18, 2017.

The following third-party interveners submitted briefs in the case: the Commissioner for Human Rights of the Republic of Poland; Judges for Judges Foundation and Professor L. Pech; Amnesty International and the International Commission of Jurists; Polish Judges’ Association Iustitia; and the Government of the Kingdom of the Netherlands. All third-party interveners generally supported Tuleya’s position, stressing the importance of judicial speech in protecting the independence of the judiciary. The intervenors also referred to the specific context of the rule of law crisis in Poland and its impact on the case.

The Court held that Tuleya’s claim was admissible. It accepted that all domestic remedies had been exhausted and agreed with Tuleya that the remedies the government said he could have used – a civil action for the protection of personal rights under Articles 23 and 24 of the Civil Code – were not effective because there was a systematic violation of his rights. Tuleya had also highlighted that despite the successful judgment of the Warsaw Court of Appeal of February 24, 2021, he was not allowed to resume his judicial duties (which should be taken as a suggestion that even formally obtained remedies under domestic law may not be enforced). The Court also held that the application was neither manifestly ill-founded nor inadmissible on any of the other grounds listed in Article 35 of the Convention.

In determining whether Tuleya’s rights had been interfered with, the Court acknowledged that Article 10 does apply to civil servants. With reference to its judgment in Żurek v. Poland, the Court noted that it has previously held that, in cases involving disciplinary proceedings against judges or their removal or appointment, it must determine whether the measure constitutes an interference with the exercise of freedom of expression, or whether it merely affects the exercise of the right to hold a public post in the administration of justice. This is because Article 10 only applies if the right to freedom of expression has been infringed, and not if the ability to perform professional duties is affected and it can only be determined by analyzing the scope of the measure in the context of the facts of the case and the relevant legislation, including reasons given by the authorities, the arguments put forward in the context of subsequent appeal proceedings and the submissions of the parties. The Court stressed the importance of prima facie evidence supporting the version of events submitted by Tuleya which may indicate the existence of a causal link between the measures complained of and freedom of expression as this would be sufficient to conclude that the State must then prove that the measures were taken for other reasons.

The Court recognized that Tuleya, in his capacity as a judge and a member of Iustitia, had actively participated in discussions concerning changes to the judiciary introduced by legislation, expressing critical views. It had to determine whether the action taken against Tuleya was in response to these critical statements. The Court referred to its case of Grzęda v. Poland which had found that the judicial reforms of the ruling party in Poland were aimed at weakening the independence of the judiciary and to the Court of Justice of the European Union’s case in Commission v. Poland (Disciplinary regime for judges, C-791/19) which found that the new disciplinary regime for Polish judges was not compatible with EU law.

Regarding the preliminary inquiries initiated by the disciplinary officer, the Court found it evident that they were primarily a result of Tuleya’s exercise of his freedom of expression as they related to statements made by Tuleya on television and at public meetings. In respect of the Disciplinary Chamber’s resolution of November 18, 2020, the Court identified key facts as relevant to the background of this issue: that five preliminary inquiries were initiated and that, despite the fact that none of those inquiries led to disciplinary charges, they were nevertheless conducted with the objective of constructing a negative narrative and maintaining him in a state of uncertainty; that the actions to removing Tuleya’s immunity were accompanied by statements of politicians from the ruling party, including the Minister of Justice/Prosecutor General, who suggested that Tuleya had committed a criminal offense; that the measures leading to the removal of his immunity and his suspension were initiated by prosecutors subordinate to the Prosecutor General and that the final decision itself was taken by the Disciplinary Chamber, a body which, in the light of the Court’s previous case-law, does not satisfy the requirements of the European Convention. The Court also expressed doubts on the decision of the Disciplinary Chamber that there was a reasonable suspicion that Tuleya had committed the offense referred to in Article 241(1) of the Criminal Code.

The Court concluded that the measures leading to the removal of Tuleya’s immunity could be regarded as a disguised sanction and that there is prima facie evidence of a causal link between Tuleya’s exercise of his freedom of expression and the decision of the Disciplinary Chamber of November 18, 2020. The Court also considered relevant the existence of numerous documents indicating a widespread perception that such a causal link existed. The Court found that the action taken was prompted by the views and criticisms which Tuleya had publicly expressed in his professional capacity.

Accordingly, the Court held that there had been an interference in Tuleya’s right to freedom of expression. The Court then had to determine whether that interference was justified, and it applied the tripartite test under Article 10(2) to determine whether it was “prescribed by law”, pursued a “legitimate aim” and was “necessary in a democratic society” to achieve that aim or aims.

In determining whether the interference was “prescribed by law”, the Court examined the three relevant preliminary inquiries and their purported legal basis of section 114(1) of the 2001 Act. It found that there was a lack of minimum procedural safeguards, in particular the right to be informed of the termination of a preliminary inquiry and so an inquiry may be used as a form of interference with the judge’s freedom of expression. Accordingly, the Court found that the “quality of the law” element of this test was not met. It also examined the November 18, 2020 Disciplinary Chamber’s resolution removing Tuleya’s immunity and suspending him from judicial duties, the Court held that the resolution was not taken by a “court” for the purposes of the Convention, although under Articles 181 and 180(2) of the Polish Constitution such a decision must be taken by a court. Accordingly, this interference was not “prescribed by law”.

Notwithstanding the fact that the first criterion of the tripartite test was not met, the Court considered it important to examine the second part of the test, that is whether the interference pursued one of the legitimate aims referred to in Article 10(2). The Court noted Tuleya’s role as “one of the most emblematic defenders of the rule of law in Poland” and found 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. [para. 544] It added that the measures had a “chilling effect” on both Tuleya and other judges and stressed that his suspension was in response to the adjudication of a case, described by the Court as an “an act intrinsically linked to the exercise of judicial duties”. [para. 545]

Accordingly, the Court concluded that, in addition to failing to meet the requirement of being “prescribed by law”, the measures taken against Tuleya did not pursue any of the legitimate aims permitted.

The Court held, unanimously, that there had been a violation of Article 10.

In his partly dissenting judgment Judge Wojtyczek noted that the foreseeability of interference with freedom of expression was indeed one of the main problems in this case but would have addressed the case under Article 10, read with Article 7 (which states that “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”) rather than the approach of the majority judgment in examining Articles 10 and 8 separately.

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