Tribunal established by law
RELEVANT LEGAL FRAMEWORK AND PRACTICE Material RELEVANT TO the Article 6 § 1 complaint 93. The domestic, international and EU law relevant to the applicant’s complaint concerning the premature termination of his term of office as a judicial member of the NCJ was set out in Grzęda v. Poland ([GC], no. 43572/18, §§ 64-169, 15 March 2022). Material RELEVANT TO the Article 10 complaintDomestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) Domestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) Domestic lawThe Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) The Act of 9 June 2006 on the Central Anti ‑ corruption Bureau (Ustawa z dnia 9 czerwca 2006 o Centralnym Biurze Antykorupcyjnym - “the CBA Act”) 94. The Central Anti ‑ corruption Bureau was established as a special service to combat corruption, in particular in the State and local government institutions, as well as to combat activities detrimental to the economic interests of the State (section 1 of the CBA Act). 95. In accordance with section 2(1)(5) of the CBA Act, its competences include the verification of the accuracy and veracity of financial declarations submitted by persons holding public office. Under section 23(1) and (4) of the CBA Act, it can obtain, subject to a court’s approval, information from banks and other financial institutions concerning a person whose financial declaration is under examination. 96. Section 33(1) of the CBA Act provides that an audit can be carried out in accordance with the audit programme authorised by the Head of the CBA or its deputy. Under section 33(3) of the Act an audit is carried out by the CBA officers on the basis of their service card and a personal authorisation issued by the Head of the CBA. Financial declarations of judges 97. In accordance with section 87(1) of the Act on the Organisation of Ordinary Courts ( Ustawa o ustroju sądów powszechnych ), in its version applicable at the relevant time, judges are required to submit a financial declaration which concerns their personal property and property covered by a joint matrimonial regime to a competent President of the Court of Appeal. The declaration should include, inter alia, information about cash holdings, real estate, movable property of a value exceeding PLN 10,000, stocks, shares and financial instruments held by a judge. 98. Under section 87(6) of the Act on the Organisation of Ordinary Courts the information contained in the financial declaration is public with the exception of the address of the person concerned and the location of the real estate. The same provision stipulates that at the request of the judge, the person authorised to collect the declaration may decide to classify the information contained in the declaration, if the disclosure of this information could pose a threat to the person submitting the declaration or to his or her relatives. However, the Minister of Justice is entitled to declassify such declarations of judges. 99. The financial declarations are published in the Public Information Bulletin no later than 30 June each year (section 87(6a)). Court spokesperson 100. In accordance with Article 33 § 1 of the Regulation of the Minister of Justice on the Rules of operation of the ordinary courts, 23 December 2015, tasks related to cooperation between a court and the media are carried out by the president or vice-president of the court. In the Court of Appeal and the Regional Court the president of the relevant court may appoint a spokesperson to carry out those tasks (Article 33 § 2). The spokesperson reports directly to the president of that court (Article 33 § 3). 101. Under section 31(1)(1) of the Act on the Organisation of Ordinary Courts, the Board of the Regional Court expresses an opinion on the appointment of a spokesperson and on any dismissal from that position. International materialThe United Nations The United Nations The United Nations (a) The Basic Principles on the Independence of the Judiciary 102. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant point reads as follows: “8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.” (b) The UN Special Rapporteur on the independence of judges and lawyers 103. On 24 June 2019 the UN Special Rapporteur on the independence of judges and lawyers, Mr Diego García-Sayán submitted his Report on freedom of expression, association and peaceful assembly of judges and prosecutors to the Human Rights Council. He made the following recommendations, in so far as relevant: “101. In exercising their freedom of expression, judges and prosecutors should bear in mind their responsibilities and duties as civil servants, and exercise restraint in expressing their views and opinions in any circumstance when, in the eyes of a reasonable observer, their statement could objectively compromise their office or their independence or impartiality. 102. As a general principle, judges and prosecutors should not be involved in public controversies. However, in limited circumstances they may express their views and opinions on issues that are politically sensitive, for example when they participate in public debates concerning legislation and policies that may affect the judiciary or the prosecution service. In situations where democracy and the rule of law are under threat, judges have a duty to speak out in defence of the constitutional order and the restoration of democracy.” The Council of Europe (a) The Committee of Ministers 104. The relevant extracts from the appendix to Recommendation CM/Rec (2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, adopted on 17 November 2010, provide: “ Chapter II – External independence ... 19. Judicial proceedings and matters concerning the administration of justice are of public interest. The right to information about judicial matters should, however, be exercised having regard to the limits imposed by judicial independence. The establishment of courts’ spokespersons or press and communication services under the responsibility of the courts or under councils for the judiciary or other independent authorities is encouraged. Judges should exercise restraint in their relations with the media. ... 21. Judges may engage in activities outside their official functions. To avoid actual or perceived conflicts of interest, their participation should be restricted to activities compatible with their impartiality and independence.” (b) The Parliamentary Assembly of the Council of Europe 105. The report of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe of 6 January 2020 entitled “The functioning of democratic institutions in Poland” (doc. 15025) stated, in so far as relevant: “ 4. Disciplinary proceedings against judges 95. As we outlined in the previous sections, a main objective of the reform started after the 2015 legislative elections has been to bring the judiciary firmly under the control of the ruling majority. In that context, the reports of disciplinary proceedings against, and harassment of, judges and prosecutors who are seen as acting against the interests of the ruling majority, or who have been openly critical of the reforms, is extremely concerning. This is all the more the case since recent disclosures that a campaign of harassment of judges was orchestrated with the involvement of leading personalities in the Ministry of Justice and High Council of Justice closely connected to the current ruling majority. ... ... 98. According to the Polish Constitution, judges cannot be members of political parties or engage in activities that would be incompatible with the principle of the independence of the courts and judiciary. While judges should refrain from political activities, the law does not clearly define what amounts to political activity and what is protected under the right to freedom of speech [footnote omitted]. While we concur with the prohibition of party-political activities for judges, this cannot have the effect of forbidding judges from being able to express an opinion on the legal system and changes to it that would affect them directly.” 106. The report of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe of 5 January 2021 entitled “Judges in Poland and in the Republic of Moldova must remain independent” (doc. 15204) stated, in so far as relevant: “ 4. Changes in the functioning of the judiciary in Poland ... 36. According to the authors of the motion for a resolution, ‘in Poland, courts remain the last resort for numerous prosecuted civil rights activists’ and ‘disobedient judges, such as Igor Tuleya, Wojciech Łączewski, Dominik Czeszkiewicz and Waldemar Żurek face disciplinary consequences from court newly appointed presidents’. ... 4.5. The ordinary courts ... 66. Several judges have even been threatened. Judge Waldemar Żurek, for example, has been receiving hate messages since 2016 and has been the subject of at least five sets of disciplinary or ‘explanatory’ proceedings. ... 4.7. Latest developments ... 79. Judge Waldemar Żurek, a member of the former NCJ, who was known to have criticised its reform, is the subject of disciplinary proceedings brought under the law of 20 December 2019, for having questioned the validity of the appointment of a judge to the S[upreme] C[ourt] (Mr K.Z.).” (c) The Council of Europe Commissioner for Human Rights 107. The Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. The report from her visit, published on 28 June 2019, reads in so far as relevant: “ 1.5 Mass dismissals and disciplinary proceedings affecting judges and prosecutors ... 49. The Commissioner recalls that judges and prosecutors have the right to express their views on matters of public interest, including on reforms of the judiciary and the prosecution service, in a proportionate way, and their freedom to do so must be safeguarded. ... 50. The Commissioner considers that, beyond the persons directly affected, disciplinary proceedings are likely to have a chilling effect on other judges and prosecutors who wish to participate in the public debate on issues related to the administration of justice and the judiciary, which according to the European Court of Human Rights works to the detriment of society as a whole [footnote omitted]. She observes that members of the judiciary and the prosecution service in Poland who publicly express their views on the reform relating to their professions incur a very real risk to their careers. The manner in which some disciplinary proceedings are being conducted, as relayed to the Commissioner by various interlocutors in Poland – including from the judicial and prosecutorial professions – and as described in media reports, has understandably been perceived as intimidating and/or as an attempt to silence outspoken or critical judges and prosecutors. The Commissioner urges the authorities to ensure that disciplinary proceedings are not instrumentalised and to secure the right to a fair trial of any person subjected to them.” (d) The European Commission for Democracy through Law (Venice Commission) 108. The Venice Commission, in its report on the Freedom of Expression of Judges, adopted at its 103rd Plenary Session (Venice, 19-20 June 2015, CDL-AD(2015)018) observed, in so far as relevant: “80. European legislative and constitutional provisions and relevant case-law show that the guarantees of the freedom of expression extend also to civil servants, including judges. But, the specificity of the duties and responsibilities which are incumbent to judges and the need to ensure impartiality and independence of the judiciary are considered as legitimate aims in order to impose specific restrictions on the freedom of expression, association and assembly of judges including their political activities.” (e) The Consultative Council of European Judges (“the CCJE”) 109. Opinion no. 3 of the CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality adopted on 19 November 2002 reads, in so far as relevant: “ b. Impartiality and extra-judicial conduct of judges 27. Judges should not be isolated from the society in which they live, since the judicial system can only function properly if judges are in touch with reality. Moreover, as citizens, judges enjoy the fundamental rights and freedoms protected, in particular, by the European Convention on Human Rights (freedom of opinion, religious freedom, etc). They should therefore remain generally free to engage in the extra-professional activities of their choice. 28. However, such activities may jeopardise their impartiality or sometimes even their independence. A reasonable balance therefore needs to be struck between the degree to which judges may be involved in society and the need for them to be and to be seen as independent and impartial in the discharge of their duties. In the last analysis, the question must always be asked whether, in the particular social context and in the eyes of a reasonable, informed observer, the judge has engaged in an activity which could objectively compromise his or her independence or impartiality. ... 33. The discussions within the CCJE have shown the need to strike a balance between the judges’ freedom of opinion and expression and the requirement of neutrality. It is therefore necessary for judges, even though their membership of a political party or their participation in public debate on the major problems of society cannot be proscribed, to refrain at least from any political activity liable to compromise their independence or jeopardise the appearance of impartiality. 34. However, judges should be allowed to participate in certain debates concerning national judicial policy. They should be able to be consulted and play an active part in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system. This subject also raises the question of whether judges should be allowed to join trade unions. Under their freedom of expression and opinion, judges may exercise the right to join trade unions (freedom of association), although restrictions may be placed on the right to strike.” 110. The Magna Carta of Judges (Fundamental Principles) was adopted in November 2010. The relevant part reads as follows: “ Judicial independence ... 3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence. ... Guarantees of independence ... 9. The judiciary shall be involved in all decisions which affect the practice of judicial functions (organisation of courts, procedures, other legislation).” 111. Opinion no. 18 of the CCJE on the position of the judiciary and its relation with the other powers of state in a modern democracy adopted on 16 October 2015 reads, in so far as relevant: “ VII. The need for restraint in the relations between the three powers ... A. “Judicial restraint” ... 41. In its dealings with the other two powers of state, the judiciary must seek to avoid being seen as guarding only its own interests and so overstating its particular concerns. Rather, the judiciary must take responsibility for the society it serves. The judiciary must show understanding and responsibility towards the needs of the public and the exigencies of the public purse. The judiciary can provide their insights on the possible effect of proposed legislation or executive decisions on the ability of the judiciary to fulfil its constitutional role. Judiciaries must also take care not to oppose all proposed changes in the judicial system by labelling it an attack on judicial independence. But, if judicial independence or the ability of the judicial power to exercise its constitutional role are threatened, or attacked, the judiciary must defend its position fearlessly. Examples of decisions which might come into those categories are massive reductions in legal aid or the closure of courts for economic or political reasons. 42. If it is necessary to criticise another power of the state or a particular member of it in the course of a judgment in a dispute or when it is necessary in the interests of the public, that must be done. For example, therefore, courts may criticise legislation or the failure of the legislative to introduce what the court would regard as adequate legislation. However, just as with the other powers of the state in relation to the judiciary, criticism by the judiciary must be undertaken in a climate of mutual respect. Judges, like all other citizens, are entitled to take part in public debate, provided that it is consistent with maintaining their independence or impartiality. The judiciary must never encourage disobedience and disrespect towards the executive and the legislature. In their professional and private relations with the representatives of the other powers, judges must avoid any conflict of interest and avoid any behaviour that might create a perception that judicial independence and impartiality and the dignity of the judiciary in general is impugned. As long as criticism is undertaken in a climate of mutual respect, it can be beneficial to society as a whole. However, it cannot be too often emphasised that it is not acceptable that reasonable critical comments from the judiciary towards the other powers of the state should be answered by removals from judicial office or other reprisals [footnote omitted]. The CCJE also emphasizes that inadmissible behaviour by representatives of the legislative and executive powers and by politicians may occur in the form of connivance and, in certain cases, support for aggression or even radical, violent and unlawful actions against the judiciary [footnote omitted]. Direct or indirect support for such actions against the judiciary is totally unacceptable. Not only are such actions a direct attack on judicial independence, they also stifle legitimate public debate by judges.” Other material 112. The Sofia Declaration adopted by the General Assembly of the ENCJ on 7 June 2013 reads in so far as relevant: “(vii) The prudent convention that judges should remain silent on matters of political controversy should not apply when the integrity and independence of the judiciary is threatened. There is now a collective duty on the European judiciary to state clearly and cogently its opposition to proposals from government which tend to undermine the independence of individual judges or Councils for the Judiciary.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 113. The applicant complained that he had been denied access to a court in order to contest the premature and allegedly arbitrary termination of his term of office as a judicial member of the NCJ. He had been elected as a member of this body for a four-year term, as provided for in Article 187 § 3 of the Constitution, and had the right to remain in office for the duration of that term, thus until 21 March 2018. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” AdmissibilityApplicability of Article 6 Applicability of Article 6 Applicability of Article 6 (a) The Government’s submissions 114. The Government contested the applicability of Article 6 § 1 of the Convention to the present case. They claimed that under Polish law there was no right to exercise public authority, including the right of a judge to be elected to the NCJ or to remain in that office. Moreover, in the present case there was no genuine and serious “dispute” concerning the existence of the alleged civil right of the applicant to remain a member of the NCJ. 115. The Government referred to the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17), in which certain provisions of the 2011 Act on the NCJ had been found unconstitutional. In order to implement the above ‑ mentioned Constitutional Court judgment, the authorities had prepared a bill amending the Act on the NCJ. The bill, subsequently enacted into law as the 2017 Amending Act, departed from the principle of the individual character of the term of office for judicial members of the NCJ and changed the manner of their election. The Government maintained that the decision to terminate the applicant’s term of office as a judicial member of the NCJ had been legitimate. That decision had concerned solely his position as a member of the NCJ and did not touch upon his status as a judge. Its rationale was to implement the Constitutional Court’s judgment in so far as the nature of the term of office of the NCJ’s judicial members was concerned. It thus constituted a merely technical measure aimed at the establishment of a new term of office consonant with the relevant constitutional provisions. 116. They submitted that the applicant’s membership of the NCJ did not constitute “employment” or any other comparable legal relationship. The fact of being a member of the NCJ could not be regarded as a right either under domestic law or under the Convention, but pertained to the exercise of public authority. 117. As regards the first condition of the Eskelinen test, the Government maintained that under Polish law the applicant had been excluded from the right of access to a court in so far as his seat on the NCJ was concerned. This exclusion had been in place already on the date of his election to the NCJ and thus the 2017 Amending Act had not affected this. They noted that the Act on the NCJ had never provided for any form of appeal or remedy in connection with the expiry, termination or renunciation of office for the members of this body. Matters pertaining to participation in the NCJ did not constitute a “case” ( sprawa ) within the meaning of Article 45 § 1 of the Constitution and as such were excluded from the right to a court ratione materiae. The Government concluded that national law “excluded access to a court” for an individual claim based on the alleged unlawfulness of the termination of the term of office. The first condition of the Eskelinen test had therefore been met. 118. As regards the second condition of the Eskelinen test, the Government submitted that the subject-matter of the applicant’s complaint related exclusively to the exercise of State power. In their view, the amendments in the 2017 Amending Act had been proportionate since the aim had been to adjust the election rules to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in its judgment of 20 June 2017 (no. K 5/17). The Government maintained that in the Constitutional Court’s case ‑ law the protection of the term of office of the NCJ’s judicial members was not regarded as absolute. In their view, the cohesion of the changes which made it possible for the NCJ to operate in compliance with the Constitution justified the termination of the terms of office of the NCJ’s judicial members who had been elected on the basis of the previous provisions. Furthermore, the “democratisation” of the NCJ election procedure constituted an important public interest which justified in turn the early termination of the term of office of the NCJ’s judicial members. In this context, the Government submitted that under the 2017 Amending Act judicial members of the NCJ were to be elected by the Sejm from among the judges who obtained adequate support from other judges or from citizens. The Government concluded that the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest. The second condition of the Eskelinen test had therefore been met as well. 119. In the present case, since both conditions of the Eskelinen test had been fulfilled, the applicant’s complaint under Article 6 § 1 should be considered incompatible ratione materiae. (b) The applicant’s submissions 120. The applicant maintained that Article 6 § 1 under its civil head was applicable to his case. He asserted that the Polish Constitution guaranteed to a judge elected to the NCJ the right to serve a full four-year term of office. This conclusion stemmed from Article 60 read in conjunction with Article 187 § 3 of the Constitution. Therefore, the early termination of his term of office in the NCJ had to be seen as an interference with his individual right of access to public service, not as a deprivation of the exercise of public power. The latter was exercised by the NCJ as a collective body, not by its individual members. 121. The applicant submitted that the stability of tenure of the NCJ’s members was fundamental to ensuring the proper functioning of that body. The Constitutional Court had underlined in its judgment of 18 July 2007 (no. K 25/07) that only extraordinary circumstances could warrant a breach of the tenure of the NCJ’s members. The applicant submitted that the Government’s argument that there had been no alternative to the shortening of his term of office in connection with the introduction of the new system of electing the NCJ’s judicial members could not be accepted as proportionate or legitimate. 122. As regards the first condition of the Eskelinen test, the applicant argued that the domestic law had never explicitly excluded access to a court for judicial members of the NCJ whose term of office had been prematurely terminated. The premature termination in his case had been unprecedented. The Act on the NCJ in force at the time of his election to the Council did not provide for such termination, except in the situations provided for in section 14 of the Act. The termination at issue had resulted from the ad hoc application of statute law and lacked the characteristics of abstract legal norms. It could not be concluded that the national law “expressly excluded access to a court” for a claim based on the alleged unlawfulness of the measure at issue. 123. As regards the second condition of the Eskelinen test, even assuming that domestic law excluded access to a court in his case, the applicant argued that the exclusion was not based on objective grounds in the State’s interest. Firstly, the exclusion had a significant impact on his status as judge since he had been elected to the NCJ in his capacity as a judge of an ordinary court, not as an ordinary citizen. His election to the NCJ had been aimed at ensuring the proper operation of the NCJ, a body responsible for safeguarding judicial independence. 124. Secondly, the applicant maintained that the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) had to be seen as a false pretext justifying the introduction of changes to the NCJ’s composition at the time when the legislative procedure, initiated by the Ministry of Justice, had been pending in Parliament. Moreover, the impugned judgment was invalid and contrary to the Constitution owing to the participation of Judges M.M. and L.M. in the adjudicating panel. 125. Thirdly, the exclusion of the right of access to a court was incompatible with the rule of law. The shortening of the applicant’s term of office could not be regarded as a merely technical measure. Rather, it constituted a serious violation of Article 187 § 3 of the Constitution and interference with the right of access to public service under Article 60 of the Constitution. (c) Submissions of third-party interveners 126. The European Network of Councils for the Judiciary, Amnesty International jointly with the International Commission of Jurists, the Helsinki Foundation for Human Rights, the Polish Judges’ Association Iustitia, the Judges for Judges Foundation jointly with Professor L. Pech and the Commissioner for Human Rights of the Republic of Poland submitted their written comments on the case, similar to those made earlier in the case of Grzęda v. Poland. Their submissions were summarised in the Grzęda judgment (cited above, §§ 205-239). The submissions received pertain both to the admissibility and merits of the complaint under Article 6 § 1. 127. The Judges’ Association Themis, which did not intervene in Grzęda, submitted comments in the present case. With regard to the stability of tenure of judicial members of the NCJ, the intervener supported the view of the Commissioner that the judicial members were entitled to protection as regards their irremovability, analogous to that afforded to judges performing judicial functions. It considered that in this context the Court should have regard to the relevant jurisprudence of the CJEU. The intervener noted that the change of procedure for electing judicial members of the NCJ rendered that procedure politicised. It also resulted in a situation where the NCJ ceased to fulfil its constitutional role as guardian of judicial independence. (d) The Court’s assessment (i) General principles 128. The general principles regarding the applicability of Article 6 § 1 in its “civil” limb were recently summarised in Grzęda v. Poland ([GC], no. 43572/18, §§ 257-264, 15 March 2022). (ii) Application of the general principles to the present case 129. The Court notes that the applicant is a judge of the Cracow Regional Court. On 2 March 2014 he was re-elected to the NCJ for a period of four years by the Representatives of the General Assemblies of Regional Court judges, in accordance with the relevant provisions of the Constitution and the applicable legislation. His second term of office on the NCJ began on 21 March 2014 and was due to come to an end on 21 March 2018. 130. In Grzęda v. Poland the Grand Chamber of the Court examined the question of applicability of Article 6 § 1 to a dispute arising out of the premature termination of that applicant’s term of office as a judicial member of the NCJ, while he still remained a serving judge (ibid., § 265). The same question arises in the present case. 131. As regards the existence of a right, the Court found in Grzęda that, having regard to the terms of Article 187 § 3 of the Constitution, there was in domestic law an arguable right for a judge elected to the NCJ to serve a full term of office, save for the exhaustively enumerated statutory exceptions in section 14(1) of the 2011 Act on the NCJ (ibid., § 282). The Court further held in Grzęda that there was a genuine and serious dispute over the “right” to serve a full term of four years as a judicial member of the NCJ (ibid., § 286). 132. Next the Court examined in that case whether the “right” claimed by the applicant was a “civil” one within the autonomous meaning of Article 6 § 1 in the light of the criteria developed in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007 ‑ II). As regards the first condition of the Eskelinen test, namely whether the domestic law expressly excluded access to a court, the Court held that the first condition could be regarded as fulfilled where, even without an express provision to such effect, it had been clearly shown that domestic law excluded access to a court for the type of dispute concerned ( Grzęda, cited above, § 292). However, it left open the question of compliance with the first condition of the Eskelinen test, noting the opposing views of the parties in this respect and having regard to its conclusion as to the second condition of the test (ibid., § 294). 133. As regards the second condition of the Eskelinen test, namely whether the applicant’s exclusion from access to a court was justified on objective grounds in the State’s interest, the Court held that it had not been met (ibid., § 325). It found in this context that the applicant’s position as an elected judicial member of the NCJ, the body with constitutional responsibility for safeguarding judicial independence, had been prematurely terminated by operation of the law in the absence of any judicial oversight of the legality of this measure. The exclusion of the applicant from a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence could not be regarded as being in the interest of a State governed by the rule of law (ibid., § 326). Accordingly, the Court found in Grzęda that Article 6 § 1 in its civil limb was applicable in the applicant’s case. 134. In the present case, for the same reasons as those set out in Grzęda (ibid., 266-329), the Court finds that Article 6 § 1 is applicable. It thus rejects the Government’s objection in this regard. Victim status 135. The Government argued that membership of the NCJ pertained to the sphere of exercise of public authority and that as such was not an individual right protected by the Convention. The mere fact that an individual was removed from an office entailing the exercise of public power should not be regarded as an interference with human rights. Therefore, the applicant could not claim to be a victim of a violation of human rights protected by the Convention and his application was inadmissible owing to a lack of victim status. 136. The applicant contested the Government’s assertion. 137. The Court notes that the Government’s objection on the grounds of a lack of victim status is based on the same arguments as those raised in respect of the applicability of Article 6 to the present case, which it has dismissed above (see paragraphs 114-117 above). As the Court has already decided that the dispute arising out of the premature termination of the applicant’s term of office as a judicial member of the NCJ pertained to a “civil right” within the meaning of Article 6 § 1 of the Convention, it finds that the Government’s objection alleging a lack of victim status must be dismissed. Objection based on a lack of significant disadvantage (a) The parties’ submissions 138. The Government further submitted that the application was inadmissible on account of a lack of significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. In their view, the applicant had not sustained any disadvantage of a pecuniary or non-pecuniary nature in connection with the termination of his term of office as a member of the NCJ. In support of this contention, they referred to their earlier arguments on the applicability of Article 6 § 1. 139. The applicant argued that his case could not be rejected under Article 35 § 3 (b) as he had suffered a significant disadvantage in the form of non-pecuniary damage related to the distress caused by the violation of his Convention rights. Furthermore, respect for human rights as defined in the Convention required the examination of his case on the merits since it pertained to the relationship between the principles of the separation of powers and the effective protection of human rights. Lastly, his case had not been duly examined by a domestic court. In fact, he had been deprived of the possibility of challenging the premature termination of his term of office before a court. (b) The Court’s assessment 140. The Court considers that the objection based on Article 35 § 3 (b) cannot be accepted. The present application concerns similar issues to those which arose in Grzęda, where it was considered that they raised serious questions affecting the interpretation of the Convention or the Protocols thereto and the case had therefore been relinquished to the Grand Chamber under Article 30 of the Convention. The Court is thus of the view that the conditions set forth in Article 35 § 3 (b) are not met, since respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination of the application on the merits (see Grzęda, cited above, § 332). 141. The Government’s objection under Article 35 § 3 (b) of the Convention must accordingly be dismissed. Overall conclusion on admissibility 142. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 143. The applicant argued that he had not had access to a court for the determination of his civil rights in accordance with Article 6 § 1 of the Convention. The Government’s submissions 144. The Government maintained that there had been no violation of Article 6 § 1 of the Convention. They reiterated their arguments as to the inapplicability of this provision to the present case. The Court’s assessment (a) General principles 145. The applicable general principles concerning the right of access to a court were recently summarised in Grzęda (cited above, §§ 342-343). (b) Application of the general principles to the present case 146. The Court would point out that it has left open the question whether the first condition of the Eskelinen test has been fulfilled, taking account of the opposing views of the parties on that issue and since, in any event, it has concluded that the second condition has not been met (see paragraph 132 above). However, the Court reiterates that the Government have consistently argued that for the purposes of Article 6 of the Convention the applicant’s access to a court was excluded at all times under national law, both before his term of office as a judicial member of the NCJ was terminated by the 2017 Amending Act, as well as after that termination (see paragraph 117 above). Therefore, the Court is now called upon to assess whether the applicant’s lack of access to the domestic courts, in order to have examined the genuine and serious dispute over his arguable right to serve a full term of four years as a judicial member of the NCJ (see paragraph 131 above), was justified in conformity with the general principles emanating from the Court’s case-law. 147. Referring to its analysis with regard to the issue of the applicability of Article 6 § 1, in particular the importance of the NCJ’s mandate to safeguard judicial independence and the link between the integrity of the judicial appointment process and the requirement of judicial independence (see Grzęda, cited above, §§ 300-303), the Court considers that similar procedural safeguards to those that should be available in cases of dismissal or removal of judges should likewise be available where, as in the present case, a judicial member of the NCJ has been removed from his or her position (ibid., § 345). 148. The Court further emphasises the need to protect a judicial council’s autonomy, notably in matters concerning judicial appointments, from encroachment by the legislative and executive powers, and its role as a bulwark against political influence over the judiciary. In assessing any justification for excluding access to a court with regard to membership of judicial governance bodies, the Court considers it necessary to take into account the strong public interest in upholding the independence of the judiciary and the rule of law. It also has regard to the overall context of the various reforms undertaken by the Polish Government which have resulted in the weakening of judicial independence and adherence to rule-of-law standards (ibid., § 346). 149. In the instant case the Government have not provided any reasons justifying the absence of judicial review, but have simply reiterated their arguments as to the inapplicability of Article 6 to the case. 150. Having regard to the foregoing, the Court finds that on account of the lack of judicial review in this case the respondent State impaired the very essence of the applicant’s right of access to a court (ibid., § 349). 151. Accordingly, the Court finds that there has been a violation of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention. Alleged violation of Article 13 of the Convention 152. The applicant complained under Article 13 of the Convention that he had been deprived of an effective domestic remedy in respect of the premature termination of his term of office as judicial member of the NCJ. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 153. The Court notes that the complaint under Article 13 is essentially the same as that under Article 6 § 1. It reiterates that the safeguards of Article 6 § 1, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI, and Baka, cited above, § 181). 154. Consequently, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention (see Grzęda, cited above, § 353). ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 155. The applicant complained about the termination of his position as the NCJ’s spokesperson, resulting from the termination of his term of office as a judicial member of the NCJ, and the earlier dismissal from his position as the Cracow Regional Court’s spokesperson. He further complained about the actions taken, inter alia, by the CBA, the tax authorities and the prosecution service with regard to him and his family members and about the declassification of his financial declaration by the Minister of Justice. The applicant alleged that those measures had been taken in response to his critical public statements on legislative changes affecting the judiciary and entailed a violation of his right to freedom of expression. He relied on Article 10 of the Convention, of which the relevant part provides: “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. ... 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 integrity or public safety, for the prevention of 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.” Admissibility 156. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe applicant’s submissions The applicant’s submissions The applicant’s submissions 157. The applicant averred that both the decision to remove him from his position as Cracow Regional Court’s spokesperson and the measures taken, inter alia, by the CBA, the tax authorities and the prosecution service with regard to him and his family members, in themselves and by the manner in which they had been carried out, had constituted an interference with his freedom of expression. In this connection, the applicant also referred to the premature termination of his term of office as a judicial member of the NCJ which had brought to an end his duties as the NCJ’s spokesperson. He had taken an active part in the public debate concerning the reorganisation of the judiciary primarily in his capacity as the NCJ’s spokesperson. 158. The applicant submitted that in order to answer the question whether there had been an interference with his freedom of expression, the scope of the measure had to be determined by putting it in the context of the facts of the case and of the relevant legislation. He disagreed that only formal disciplinary proceedings or typical sanctions could constitute an interference within the meaning of Article 10. In any event, several sets of disciplinary proceedings had been instituted against him, including for his statements in the public debate, but since they were pending they were not subject to the Court’s assessment in the present case (see paragraphs 86-90 above). 159. The applicant maintained that he was a symbolic figure of the Polish judicial community and one of the judges most engaged in the public debate concerning the independence of the judiciary in recent years. At the same time, he was one of the most “targeted” judges and had been subjected to, more or less formal, repressive measures by the authorities over the past few years. His case had been mentioned, inter alia, in a report by the Polish Judges’ Association Iustitia and by the Lex Super Omnia Association of Prosecutors, “Justice Under Pressure”, published in 2020. 160. For many years and in a consistent manner the applicant had defended the rule of law and the independence of the courts and openly criticised the unconstitutional changes in the judiciary brought about by the current majority. He argued that all the measures taken by the authorities in response to the multiple statements he had made in the public debate had amounted to an interference with his freedom of expression. Those measures clearly constituted a “restriction” within the meaning of Wille v. Liechtenstein ([GC], no. 28396/95, ECHR 1999 ‑ VII). 161. As regards the CBA officers’ entry into the NCJ’s premises on 19 April 2017, the applicant maintained that they had interrupted his confidential meeting with the President, Vice-President and the other spokesperson of the NCJ. The officers had introduced themselves and stated that they were going to serve the audit authorisation on the applicant. The applicant did not acknowledge receipt of the authorisation and the officers left the NCJ’s building. The authorisation was only a two-page formal document and contained no substantive content. The applicant observed that it could have been sent to him by post or served during his appearance before the CBA. He submitted that such action had been aimed at drawing the attention of public opinion and other judges to his supposed legal problems. 162. The applicant pointed out that the Government, while admitting that the CBA had selected the financial declarations of six judges for auditing, had not provided any information on the frequency or time-scale of those audits. He argued that the manner of auditing his financial declarations had gone far beyond the CBA’s routine activities and had shown that the real intention of the authorities was to draw public attention to possible inaccuracies in his financial declarations. 163. Both the timing and accumulation of the measures taken in relation to the applicant and his family showed that even if there were formal grounds for taking those measures, they had all been used instrumentally or even ultra vires in order to intimidate him. No measures targeting the applicant had been taken before the current majority came to power in the 2015 general election despite the fact that the applicant had been acting as the NCJ’s spokesperson and the Cracow Regional Court’s spokesperson for several years already. Although the CBA’s audit of his financial declarations covered the years 2012-2017, the audit had been initiated in late 2016, at a time when the applicant was frequently criticising the reforms of the judiciary implemented by the governing majority. In addition, the manner in which the public officials had informed the media about the measures taken with regard to the applicant and his family clearly demonstrated that they had intended to raise suspicions as to his credibility in public opinion and therefore to have a “chilling effect” on him. 164. The applicant maintained that when putting all the impugned measures in the context of the facts of the case, including the broader context of the rule of law crisis in Poland, it was obvious that those measures had been taken in direct response to the views and criticisms that he had expressed in his professional capacity. 165. The applicant submitted that the interference at issue had not been “prescribed by law”. He referred to the controversy concerning his removal from the position of spokesperson of the Cracow Regional Court. As regards the measures taken by the CBA and other authorities, he underlined that although those measures had at first glance been taken on formal grounds, they were intended to intimidate him and discourage him from criticising the government’s reforms of the judiciary. The use of those measures should be regarded as an abuse of power or as ultra vires. 166. In the applicant’s view, the interference at issue did not pursue a legitimate aim. In fact, it was impossible to see any such aim in the punitive restrictions imposed on him for fulfilling his legal duty to provide opinions on the reforms of the judiciary in Poland in his capacity as the NCJ’s spokesperson. The applicant had not formulated his statements in a courtroom while adjudicating upon cases, but in the course of the intensive public debate in the media in his capacity as spokesperson. He had warned public opinion about the threats to the independence of the judiciary resulting from the reforms. 167. Lastly, the interference at issue was not necessary in a democratic society in the light of the Court’s case-law. The Government and its agencies had not recognised the need for special protection of the applicant’s freedom of expression when he had expressed views in his official capacity on matters of public interest concerning the independence of the judiciary. The measures taken by the authorities had been intended to cause a “chilling effect” not only on the applicant, but also on other judges, so they would refrain from participating in public debate on those issues. In this context, it was noteworthy that the audits carried out by the CBA had been extended to six judges, including the applicant, out of a total of some ten thousand judges in Poland. The Government had not provided any details about the other judges subjected to audits. The purpose of actions targeting the applicant was undoubtedly to break his steadfastness with a view to facilitating the hostile takeover of the judiciary. Referring to the number of cases decided or pending before the Court in relation to the reforms of the Polish judiciary, the applicant argued that the impugned measures taken by the authorities could not be regarded as necessary in a democratic society. The Government’s submissions 168. The Government disagreed that the measures taken with regard to the applicant and his family had been the consequence of the criticism he had expressed in his professional capacity. They maintained that there had been no interference with the applicant’s freedom of expression within the meaning of Article 10. 169. As regards the applicant’s dismissal from his position as spokesperson of the Cracow Regional Court, the Government argued that the impugned measure could not have had any impact on his freedom of expression. The tasks related to the cooperation of the court with the media were carried out by the president or vice-president of the court. However, in the court of appeal or the regional court the president of that court could appoint a spokesperson to carry out those tasks. The spokesperson reported directly to the president of the court. For these reasons, dismissal from the position of spokesperson of a court could not be equated with a restriction on freedom of expression because an individual’s opinion could not be fully expressed in performing the function of spokesperson. Therefore, the Government maintained that the applicant’s dismissal from the position of spokesperson of the court would, at the most, limit his ability to represent that institution publicly, which was not a right guaranteed in Article 10. 170. They stressed that the applicant was able to continue to express his views in the public debate on judicial reform in Poland at the meetings of judicial associations of which he was an active member and by participating in the Judges’ Cooperation Forum. The applicant had participated in numerous debates in various fora concerning the judiciary. The Government maintained that the applicant had been actively exercising his rights guaranteed by Article 10, as exemplified by his interviews, statements and other activities in the public debate after he had been removed from the position of spokesperson of the Cracow Regional Court. Moreover, the assessment of sanctions allegedly affecting the applicant for his criticism of the reforms of the judiciary was problematic. The Government stressed in this respect that the applicant had not referred to any disciplinary proceedings against him or any penalty imposed on him. 171. The Government submitted that contrary to the case of Kudeshkina v. Russia (no. 29492/05, 26 February 2009) the applicant had not been dismissed from his judicial office as a result of disciplinary proceedings, but only removed from the position of spokesperson of the court. That latter decision was legitimate and did not touch upon his judicial functions. They also noted that the present case was not comparable to the case of Baka v. Hungary (cited above). 172. As regards the measures taken by the CBA, the Government admitted that in 2016 the CBA’s unit responsible for the auditing of financial declarations had carried out a systematic examination of such declarations by judges. The unit had selected a group of six judges, which included the applicant, whose financial declarations had been subjected to advanced scrutiny due to existing irregularities. The selection of six judges had been based on a two-stage analysis of the declarations and prompted by uncertainties relating to their correctness. The CBA had initiated an audit of the applicant’s assets and his financial declarations. The Government stressed that the audit carried out in the applicant’s case had been one of a routine nature and had not differed from those carried out in relation to members of parliament, other judges and prosecutors. 173. The Government maintained that the applicant had had the right to participate in the audit procedure, which had been transparent and based on the provisions of the CBA Act. Section 33 of this Act concerning the relevant procedure of the CBA required that, in order to conduct the audit, the officer should present to the person concerned an official ID card and an authorisation issued by the Head of the CBA. For this reason, it had been impossible to initiate an audit without a meeting of the CBA officer and the applicant. 174. The Government argued that the CBA officers had made numerous attempts to arrange a meeting with the applicant, both at his place of residence and at the court where he served as a judge. However, owing to the applicant’s persistent avoidance of the meeting, thus obstructing the initiation of the audit procedure, the CBA had taken the decision to serve the authorisation at the seat of the NCJ. On 19 April 2017 the CBA officers had entered the NCJ’s premises. In the Government’s submission, the applicant had been asked to leave a room so the officers could serve on him a decision authorising the auditing of his financial declarations, but he had refused, thus preventing the officers from carrying out their statutory tasks. Therefore, the officers had walked into the room and interrupted the applicant’s meeting with other members of the NCJ in order to serve the authorisation on him. 175. The Government maintained that the basic element of the audit procedure was the verification of the accuracy of the individual’s financial declaration against the relevant records of the State, bank account history and participation in investment funds. The competent authorities and the national financial institutions had been contacted during the audit. The only auditing activities that had been applied to the applicant’s family members consisted in obtaining the court’s permission for access to data covered by banking secrecy relating to the applicant’s and his family’s bank accounts. These actions were necessary since the applicant had remained under the regime of joint matrimonial property with his wife during the period covered by the audit. The applicant’s wife had been informed of these actions, which had been carried out in accordance with section 23(9) of the CBA Act. 176. The Government submitted that the results of the audit, based on official documents received from government bodies and financial institutions, had constituted the basis for a report concerning the established irregularities which had been submitted to the Cracow Regional Prosecutor’s Office for the purpose of criminal law assessment. In the Government’s view, the actions conducted by the CBA officers against the applicant had exclusively been aimed at assessing the accuracy and veracity of his financial declarations. All activities undertaken by the officers had been based on the provisions of the CBA Act regulating the audit procedure. The audit procedures concerning the financial declarations of judges and prosecutors complied with the guidelines of the Group of States against Corruption of the Council of Europe (GRECO). 177. As regards the declassification of the applicant’s financial declaration, the Government submitted that judges were required to submit such declarations pursuant to section 87(1) of the Act on the Organisation of Ordinary Courts. The declaration concerned personal property and property covered by a joint matrimonial regime. It had to contain, inter alia, information on cash holdings, real estate, movable property of a value exceeding PLN 10,000, stocks, shares and financial instruments held by a judge. The information contained in the financial declaration was public with the exception of the address of the person concerned and the location of the real estate. The financial declarations were published in the Public Information Bulletin no later than 30 June each year (section 87(6a)). The Government stressed that the rules on disclosing the financial status of judges were analogous to those applicable to prosecutors and persons holding elected office. 178. The Government maintained that the main objective of the amendment to section 87 of the Act on the Organisation of Ordinary Courts, which made the judges’ financial declarations public, had been to implement the recommendation included in the report on the fourth evaluation round of GRECO. The legislature’s intention was to ensure the transparency of those financial declarations in order to strengthen public trust in the courts and judges. The audit procedures carried out by the authorities with regard to financial declarations of judges were conducted in accordance with the GRECO guidelines concerning the fight against corruption. For those reasons, it could not be assumed that the declassification of the applicant’s financial declaration constituted a “sanction” specifically directed at the applicant (as the transparency of declarations concerned all judges). 179. In the light of the above, the Government averred that the measures taken by the CBA and the tax authorities with regard to the applicant and his family members, together with the declassification of his financial declaration, had been in accordance with the domestic law aimed at implementation of the Council of Europe standards. 180. In sum, the Government submitted that in the applicant’s case there had been no interference with his freedom of expression within the meaning of Article 10 § 1 of the Convention. In any event, the Government argued that there had been no violation of Article 10 in the present case. Submissions of third-party interveners (a) The Commissioner for Human Rights of the Republic of Poland 181. The Commissioner submitted that freedom of expression, constituting an essential foundation of a democratic society, applied to members of the judiciary. However, the Polish authorities, in an attempt to silence criticism, frequently claimed that judges expressing critical opinions on changes in the judiciary were politically involved. In the Commissioner’s view, this argument had to be rejected. 182. To be sure, judges should not participate in political life. The Polish Constitution prohibited them from joining a political party or carrying out public activities that would compromise the independence of the judiciary (Article 178 § 3). However, Polish judges who criticised the changes in the judiciary were pointing above all to the threats to judicial independence as well as to the dismantling of the separation of powers and the rule of law which those changes entailed. Judges were not only entitled, but in fact obliged to defend their independence. That obligation especially concerned the judge who was acting as the court’s spokesperson and the spokesperson of the NCJ – the constitutional guardian of independence. 183. The intervener noted that the issues of judicial independence and the functioning of the judiciary were naturally matters of constitutional law and inevitably had political implications. However, this element alone should not prevent judges from making statements on such matters. Since comments made by judges on changes in the judiciary impacting on the right to a fair trial were not only acceptable, but also desirable, the authorities should neither prevent nor discourage judges from expressing their opinions. 184. Having regard to the Court’s case-law, the intervener submitted that the concurrence of actions taken by several State bodies against a judge, at a time when he was critically commenting on issues relating to judicial independence and changes in the functioning of the judiciary, substantiated the claim that these actions were coordinated and aimed at limiting the judge’s activity. Taking account of the entirety of the situation, rather than separate incidents, there could be prima facie evidence of a causal link between the judge’s exercise of the freedom of expression and the measures undertaken by various State bodies. Once there was such evidence in favour of the applicant’s version of the events and the existence of a causal link, the burden of proof should shift to the Government. (b) The Judges’ Association Themis 185. The intervener submitted that in the years 2016-2018, when the Polish Government was engaging in numerous measures aimed at the subordination of the Constitutional Court, the NCJ and the Supreme Court, the applicant had become the voice of the independent Polish judiciary. His numerous appearances in the media in defence of the rule of law had resulted in a wave of persecution against him. Currently, the applicant was one of the most persecuted Polish judges; there were five sets of disciplinary proceedings pending against him and two sets of preliminary disciplinary proceedings. He had also experienced a prolonged audit by the CBA, administrative means of harassment applied by the newly appointed President of the Cracow Regional Court, Ms D.P.-W. and attacks from State-owned media outlets. 186. The intervener maintained that the actions taken against the applicant were part of the general approach of the ruling majority aimed at depriving the representatives of the judicial community of the right to speak in public. This was evidenced by the adoption of changes to the Act on the Organisation of the Ordinary Courts on the basis of the so-called “Muzzle Act”, which prohibited bodies of judicial self-government from adopting resolutions criticising the reform of the judiciary. The same Act had introduced the prohibition of critical statements and actions in this regard by individual judges under the threat of disciplinary liability. One of the sets of disciplinary proceedings against the applicant was the very first to be initiated on the basis of the “Muzzle Act”. (c) The Helsinki Foundation for Human Rights 187. The Helsinki Foundation for Human Rights submitted that the Convention standards regarding the protection of the freedom of expression of judges were similar to those provided for in various international documents and recommendations. It referred to the UN Basic Principles on the Independence of the Judiciary, the Universal Charter of the Judge, the Bangalore Principles of Judicial Conduct as well as the report of the UN Special Rapporteur on the Independence of Judges and Lawyers and the Venice Commission’s report on the freedom of expression of judges. In its view, there was a consensus that judges, as all other individuals, had the right to freedom of expression. Due to the specificity of their profession and the necessity of maintaining public trust in the judiciary, the freedom of expression of judges could be subject to various restrictions. However, such restrictions should not prevent judges from taking part in debates of public importance, in particular on topics related to the independence of the judiciary. 188. The intervener underlined, echoing the report of the UN Special Rapporteur, that in times of a rule-of-law crisis judges had to be able to speak freely about threats to the independence of the judiciary. In this context, first, the judges’ criticism of controversial reforms of the judicial system could discourage politicians from pursuing them or at least oblige them to explain their motivation to the public and, second, the opinion of judges could be of great informative value to citizens. Moreover, every instance of the alleged violation of the rules concerning the limits of the judges’ freedom of expression should be reviewed by an independent disciplinary body in fair proceedings. It would be completely unacceptable to harass judges through imposition of sanctions, dismissals, transfers or initiation of various criminal or disciplinary proceedings against them under the false pretext of de facto punishment for the exercise of their freedom of expression. 189. The Helsinki Foundation maintained that persecution of judges who exercised their freedom of expression to protest against reforms inconsistent with the rule-of-law standards ultimately threatened not only the rights of judges but also the right to a fair hearing of every individual. Such persecution could produce a “chilling effect” which could discourage judges not only from expressing their views on matters of public importance, but also from issuing rulings which would be unfavourable to the politicians. 190. The intervener stated that since the parliamentary elections in the autumn of 2015, the Government had taken a series of measures aimed at undermining judicial independence. Those legislative and other measures raised serious controversies and led to numerous proceedings before the CJEU and the Court. In addition to the legislative changes, the independence of the judiciary had been undermined by different actions of the Minister of Justice and disciplinary officers appointed by him following the changes to the rules of disciplinary liability of judges. The intervener referred to important changes in this context introduced by the so-called “Muzzle Act” of December 2019. 191. There were different forms of harassment of judges via disciplinary proceedings which could be divided into two categories. First, some judges were questioned by the disciplinary officers or even charged before the Disciplinary Chamber of the Supreme Court for alleged transgression of freedom of expression, usually in connection with their critical statements about the actions of the government. Many examples of such proceedings were described in the report “Justice under pressure” published in 2019 by the Iustitia Polish Judges’ Association. The report had focused on instances of misuse of disciplinary proceedings to harass judges who opposed unconstitutional reforms implemented by the government. The second category of cases concerned judges who were subjected to disciplinary proceedings in connection with their rulings. This type of disciplinary proceedings had been initiated in particular against judges who had questioned the status of judges appointed by the President of the Republic upon the recommendation of the new NCJ. In addition, in some cases the authorities had applied to the Disciplinary Chamber to waive the immunity of judges in contexts which could suggest political motivation. 192. While analysing various forms of harassment of judges in Poland, the role of the public media, which carried out regular “smear campaigns” against judges, could not be ignored. According to the private media some officials of the Ministry of Justice and some newly-elected judicial members of the NCJ had allegedly coordinated online smear campaign against judges. The intervener submitted that all these actions could be perceived as a form of pressure on the judges. Although so far disciplinary sanctions had been imposed on judges in a relatively small number of cases, the potential “chilling effect” produced by the mere fact of initiating disciplinary, or even more so, criminal proceedings against a judge, could not be ignored. (d) Amnesty International and the International Commission of Jurists 193. The interveners submitted that judges had the right and duty to speak out in defence of the rule of law. Any assessment of the necessity and proportionality of restrictions on the right to freedom of expression of judges had to be seen in light of the role of the judiciary under the principle of separation of powers and the judiciary’s “mission to guarantee the very existence of the rule of law”. They noted that international standards recognised that each judge was “responsible for promoting and protecting judicial independence”. As the maintenance of judicial independence could on occasion require a judge to exercise his or her right to freedom of expression, the possibility of effectively exercising this right in the light of a correlated duty had to be guaranteed. If judges feared that they would face sanctions for speaking in defence of judicial independence, the threat of sanction would inevitably have a “chilling effect” that would stand in direct contradiction to the duties and responsibilities of judges to uphold judicial independence. In any assessment of whether an interference with a judge’s freedom of expression was necessary in a democratic society and proportionate to a legitimate aim, the responsibility of the judge to uphold judicial independence should be a significant consideration. 194. The possible scope for limitations on the right to freedom of expression had to, when applied to judges, be interpreted in the light of the specific role of the judiciary as an independent branch of State power, in accordance with the principles of the separation of powers and the rule of law. Any restriction on the right to freedom of expression must not impair the right and duty of the judges to protect and enforce, without fear or favour, their independence. This right became an imperative when judges spoke from a position where they had a duty to voice certain concerns, such as where they were designated as a representative or spokesperson for a judicial institution. Provided that the dignity of judicial office was upheld and the appearance of independence and impartiality of the judiciary was not undermined, the executive had to respect and protect the right and duty of judges to express their opinions, particularly on matters concerning the administration of justice and the protection of judicial independence and the rule of law. (e) Judges for Judges Foundation and Professor L. Pech 195. The interveners submitted that under EU law freedom of expression was a fundamental but not absolute right; limitations on its exercise had to be provided for by law, while respecting the essence of that right and the principle of proportionality. 196. In their view, it was well-established that judges were under a professional duty to speak up in defence of the rule of law, with reference to the 2013 Sofia Declaration of the ENCJ. They further referred to the recently revised Compendium of the Judiciary’s Ethical Obligations of the French High Council for the Judiciary, which made it clear that judges were under a duty to “defend the independence of the judicial authority”. They submitted that limitations on judges’ freedom of expression should be subjected to the strictest scrutiny when these limitations sought to formally prevent or informally intimidate judges from speaking up in a situation where the independence and/or quality of their national judicial systems was undermined by legislative changes. 197. The interveners maintained that account should be taken of the judgment of 5 October 2015 of the Inter-American Court of Human Rights in López Lone et al. v. Honduras, where that court had stated that “at times of grave democratic crises ... the norms that ordinarily restrict the right of judges to participate in politics [were] not applicable to their actions in defence of the democratic order. Thus, it would be contrary to the independence inherent in the branches of State ... that judges could not speak out against a coup d’état”. 198. In a context where legislative changes had led to the activation of exceptional monitoring mechanisms such as the EU’s Article 7 TEU procedure and the Council of Europe’s full monitoring procedure due to concerns about the existence of a systemic threat to the rule of law in Poland, any limitation on judges’ freedom of expression had to be presumed to violate this fundamental right where judges spoke out on matters that affected the judiciary. At the same time, judges had to be considered to be under a professional duty to state clearly their opposition to any measure undermining judicial independence or targeting judges for their defence of the rule of law. 199. The interveners referred to the European Parliament’s resolution of 17 September 2020, in which that body had denounced “the smear campaign against Polish judges and the involvement of public officials therein”. One particularly disturbing aspect of the smear campaign, which had been ongoing for many years, was the secret establishment of a “troll farm” hosted within the Ministry of Justice. The large-scale propaganda against the judiciary in Poland had also been criticised by the UN Special Rapporteur on the independence of judges and lawyers. (f) Polish Judges’ Association Iustitia 200. The intervener maintained that the measures taken by the authorities with regard to the applicant had been aimed at creating a chilling effect on him and other judges who expressed criticism of the Government’s legislative reforms and had been prompted by the applicant’s public activity. The Court’s assessment (a) Whether there has been an interference (i) General principles 201. The Court has recognised in its case-law the applicability of Article 10 to civil servants in general (see Vogt v. Germany, 26 September 1995, § 53, Series A no. 323, and Guja v. Moldova [GC], no. 14277/04, § 52, ECHR 2008), and members of the judiciary (see, among many others, Wille, cited above, §§ 41-42; Harabin v. Slovakia (dec.), no. 62584/00, ECHR 2004 ‑ VI (“ Harabin (dec.), 2004”); and Baka, cited above, § 140). In cases concerning disciplinary proceedings against judges or their removal or appointment, the Court has had to ascertain first whether the measure complained of amounted to an interference with the exercise of the applicant’s freedom of expression – in the form of a “formality, condition, restriction or penalty” – or whether the impugned measure merely affected the exercise of the right to hold a public post in the administration of justice, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see Wille, cited above, §§ 42 ‑ 43; Harabin (dec.), 2004, cited above; Kayasu v. Turkey, nos. 64119/00 and 76292/01, §§ 77-79, 13 November 2008; Kudeshkina, cited above, § 79; Poyraz v. Turkey, no. 15966/06, §§ 55-57, 7 December 2010; Harabin v. Slovakia, no. 58688/11, 20 November 2012; Baka, cited above, § 140; and Miroslava Todorova v. Bulgaria, no. 40072/13, § 153, 19 October 2021). 202. Where the Court has found that the measures complained of were exclusively or principally the result of the exercise by an applicant of his or her freedom of expression, it has taken the view that there was an interference with the right under Article 10 of the Convention (see Baka, cited above, § 151; Kayasu, cited above, § 80; Kudeshkina, cited above, §§ 79-80; and Cimperšek v. Slovenia, no. 58512/16, § 58, 30 June 2020). In cases where it has, by contrast, considered that the measures were mainly related to the applicant’s capacity to perform his or her duties, it found that there had been no interference under Article 10 (see Harabin, judgment cited above, § 151; Köseoğlu v. Turkey (dec.), no. 24067/05, §§ 25-26, 10 April 2018; Simić v. Bosnia ‑ Herzegovina (dec.), no. 75255/10, § 35, 15 November 2016; Harabin (dec.) 2004, cited above; and Miroslava Todorova, cited above, § 154). 203. To that end the Court takes account of the reasons relied upon by the authorities to justify the measures in question (see, for example, Harabin (dec.), 2004, cited above; Kövesi v. Romania, no. 3594/19, §§ 184-187, 5 May 2020; and Goryaynova v. Ukraine, no. 41752/09, § 54, 8 October 2020) together with, if appropriate, any arguments submitted in the context of subsequent appeal proceedings (see Kudeshkina, cited above, § 79; Köseoğlu, cited above, § 25; and, mutatis mutandis, Nenkova-Lalova v. Bulgaria, no. 35745/05, § 51, 11 December 2012). It must nevertheless carry out an independent assessment of all the evidence, including any inferences to be drawn from the facts as a whole and from the parties’ submissions (see Baka, cited above, § 143). It must in particular take account of the sequence of relevant events in their entirety, rather than as separate and distinct incidents (ibid., § 148; see also Kövesi, § 188 and Miroslava Todorova, § 155, both cited above). 204. Moreover, in so far as there is any prima facie evidence supporting the version of events submitted by the applicant and indicating the existence of a causal link between the measures complained of and freedom of expression, it will be for the Government to prove that the measures at issue were taken for other reasons (see Baka, §§ 149-151; Kövesi, § 189; and Miroslava Todorova, § 156, all cited above). (ii) Application of the general principles to the present case 205. As stated above, in order to ascertain whether the measures complained of amounted to an interference with the applicant’s exercise of freedom of expression, the scope of those measures must be determined by placing them in the context of the facts of the case and of the relevant legislation (see Wille, cited above, § 43, and Baka, cited above, § 143). 206. The Court notes that the applicant, in his professional capacity as the NCJ’s spokesperson, in the period between December 2015 and March 2018, publicly expressed his views or commented in the media on various legislative reforms affecting the Constitutional Court, the NCJ, the Supreme Court and ordinary courts. He criticised those various proposals for their incompatibility with the Constitution and pointed to threats to the rule of law and judicial independence stemming from them (see paragraphs 41-47 above). 207. The applicant alleged that a set of measures taken against him by the authorities in response to his critical statements on the Government’s reorganisation of the judiciary amounted to an interference with his freedom of expression (see paragraph 155 above; compare and contrast earlier cases where a single measure constituted such interference, for example, Baka (the premature termination of the applicant’s term of office as President of the Supreme Court), Kövesi (the applicant’s removal from her position as chief prosecutor) and Miroslava Todorova (disciplinary proceedings and sanctions against the President of the judges’ association)). 208. Among the measures constitutive of interference in his case, the applicant referred to the audit of his financial declarations carried out by the CBA between November 2016 and April 2018 (see paragraphs 48-69 above), the inspection of his work at the Cracow Regional Court ordered by the Ministry of Justice in April 2017 (see paragraphs 70-77 above), his dismissal from his position as spokesperson of the Cracow Regional Court in January 2018 (see paragraphs 78-83 above) and the declassification of his financial declaration ordered by the Minister of Justice on June 2018 (see paragraph 85 above). The Court notes at this juncture that the fact of being dismissed from the position of court spokesperson does not in itself entail an interference with freedom of expression as there is no right to hold such a position. However, this fact is part of the sequence of events and needs to be seen in the context of the accumulation of all the above-mentioned measures taken in respect of the applicant (see paragraph 211 below). 209. The applicant further referred to the premature termination of his term of office as a judicial member of the NCJ on the basis of the 2017 Amending Act, as a result of which he had ceased to act as the NCJ’s spokesperson. With regard to this measure, the Court observes that the 2017 Amending Act terminated the terms of office of all fifteen elected judicial members of the NCJ and did not concern solely the applicant. It has already found that the main objective of the 2017 Amending Act was for the legislative and the executive powers to achieve a decisive influence on the composition of the NCJ which, in turn, enabled those powers to interfere directly or indirectly in the judicial appointment procedure (see Advance Pharma sp. z o.o., § 344, and Grzęda, § 322, both cited above). In the light of the objective pursued by the authorities in the 2017 Amending Act, the Court considers that the termination of the applicant’s term of office as a judicial member of the NCJ entailing the loss of his position as the spokesperson of that body was to some extent connected with the exercise of his freedom of expression, but it was not primarily motivated by that factor. For those reasons, when analysing whether the authorities’ actions amounted to an interference with the exercise of the applicant’s freedom of expression, the Court will focus on the measures referred to in paragraph 208 above. 210. The impugned measures have to be seen in the context of the facts of the case. In Grzęda, the Court noted that the whole sequence of events in Poland vividly demonstrated that successive judicial reforms had been aimed at weakening judicial independence, starting with the grave irregularities in the election of judges of the Constitutional Court in December 2015, then, in particular, the remodelling of the NCJ and the setting-up of new chambers in the Supreme Court, while extending the Minister of Justice’s control over the courts and increasing his role in matters of judicial discipline (see Grzęda, cited above, § 348). The Grand Chamber went on to observe that as a result of the successive reforms, the judiciary – an autonomous branch of State power – was exposed to interference by the executive and legislative powers and thus substantially weakened (ibid.). 211. Taking account of the above-mentioned context and having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, the Court considers that there is prima facie evidence of a causal link between the applicant’s exercise of his freedom of expression and the impugned measures taken by the authorities in his case (see paragraph 208 above). To begin with, all those measures followed the applicant’s successive statements. The audit began in November 2016, following a series of interviews given by the applicant and an article published in May-September 2016 in which he consistently and in strong terms referred to various perceived defects in the proposed reform of the NCJ and the judiciary (see paragraphs 41-43 above). The inspection of the applicant’s work as a judge was initiated in April 2017, shortly after his further critical comments on the reform published on the NCJ’s YouTube channel and in other media in January-March 2017 (see paragraphs 44-46 above). The two remaining measures, i.e. the dismissal from his position as spokesperson of the Cracow Regional Court in January 2018 and the declassification of his financial declaration in June 2018 were also taken subsequently to his publicly expressed criticism of the Government’s contemplated policies in respect of the judiciary. Secondly, the impugned measures were taken by the CBA, a governmental agency, the Minister of Justice or the president of the court appointed by the latter on the basis of transitional powers (see paragraph 78 above), i.e. authorities controlled or appointed by the executive. Thirdly, those measures, in particular the audit of the applicant’s financial declarations by the CBA and the immediate inspection of his work ordered by the Ministry of Justice on the basis of an anonymous letter (see paragraphs 70-72 above), do not appear to have been triggered by any substantiated specific irregularity on the applicant’s part. In contrast, the anonymous letter – which prompted the inspection of the applicant’s work in the Cracow Regional Court, merely one day after its receipt at the Ministry, was clearly and directly related to the applicant’s public statements concerning the reform of the judiciary and his activity in the media, implying that this in itself was sufficient to compromise his performance as a judge (see also paragraph 226 below). The above conclusion is further corroborated by the numerous documents submitted by the applicant which refer to the widespread perception that such a causal link existed. These include not only articles published in the Polish press, but also the reports adopted by the Monitoring Committee and the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (see paragraphs 105-106 above), as well as the report of the Council of Europe Commissioner for Human Rights following her visit to Poland (see paragraph 107 above). The Court would also refer to the report of Amnesty International (see paragraph 91 above) and the report of the Polish Judges’ Association Iustitia (see paragraph 92 above). In this connection, it further attaches importance to the resolution adopted on 26 February 2018 by the Assembly of Judges of the Cracow Regional Court (see paragraph 84 above). 212. The Government argued that the impugned measures were unconnected with the applicant’s exercise of freedom of expression or constituted neutral measures that were applied to all judges (see paragraphs 172 and 176-177 above). However, having regard to the entire context of the case, the Court does not find those reasons convincing or supported by specific evidence. Accordingly, it agrees with the applicant that the impugned measures referred to in paragraph 208 above were prompted by the views and criticisms that he had publicly expressed in his professional capacity. 213. In view of the above, the Court concludes that the impugned measures constituted an interference with the exercise of the applicant’s right to freedom of expression, as guaranteed by Article 10 of the Convention (see, mutatis mutandis, Wille, § 51; Kudeshkina, § 80; and Baka, § 152, all cited above). It remains therefore to be examined whether the interference was justified under Article 10 § 2. (b) Whether the interference was justified (i) “Prescribed by law” 214. The applicant pointed to the controversy surrounding his removal from the position of spokesperson of the Cracow Regional Court. With regard to the measures taken by the CBA and other authorities, he argued that they should be regarded as abusive, even though they had had some formal basis (see paragraph 165 above). The Government maintained that the impugned measures had been in accordance with the domestic law (see paragraphs 176 and 179 above). 215. The Court notes that the CBA’s audit of the applicant’s financial declarations, the inspection of his work and the declassification of his financial declaration seem to have been provided for by the domestic law. On the other hand, it appears that the relevant rules were not duly respected as regards the decision of the President of the Cracow Regional Court to dismiss the applicant from the position of spokesperson of that court. However, the Court will proceed on the assumption that the interference was “prescribed by law” for the purposes of paragraph 2 of Article 10, as the impugned interference breaches Article 10 for other reasons (see paragraph 228 below). (ii) Legitimate aim 216. The applicant maintained that the interference at issue had not pursued any legitimate aim within the meaning of Article 10 § 2 of the Convention (see paragraph 166 above). The Government did not put forward any arguments on this point. 217. Having regard to the overall context of the present case, the Court has serious doubts as to whether the interference complained of pursued any of the legitimate aims provided for in Article 10 § 2. However, it is not required to reach a final conclusion on this question since, in view of the reasons stated below (see paragraphs 220-228 below), the impugned interference cannot in any event be considered to have been “necessary in a democratic society” for the purposes of this provision (see Döner and Others v. Turkey, no. 29994/02, § 95, 7 March 2017). (iii) “Necessary in a democratic society” (α) General principles on freedom of expression 218. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court, were restated, inter alia, in Baka (ibid., § 158-61). (β) General principles on freedom of expression of judges 219. The general principles concerning the freedom of expression of judges were summarised by the Court in its judgment in Baka (ibid., §§ 163 ‑ 167) as follows: “163. Given the prominent place among State organs that the judiciary occupies in a democratic society, the Court reiterates that this approach also applies in the event of restrictions on the freedom of expression of a judge in connection with the performance of his or her functions, albeit [that] the judiciary is not part of the ordinary civil service ... 164. The Court has recognised that it can be expected of public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called in question ...The dissemination of even accurate information must be carried out with moderation and propriety ... The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties ... It is for this reason that judicial authorities, in so far as concerns the exercise of their adjudicatory function, are required to exercise maximum discretion with regard to the cases with which they deal in order to preserve their image as impartial judges ... 165. At the same time, the Court has also stressed that having regard in particular to the growing importance attached to the separation of powers and the importance of safeguarding the independence of the judiciary, any interference with the freedom of expression of a judge in a position such as the applicant’s calls for close scrutiny on the part of the Court ... Furthermore, questions concerning the functioning of the justice system fall within the public interest, the debate of which generally enjoys a high degree of protection under Article 10 ... Even if an issue under debate has political implications, this is not in itself sufficient to prevent a judge from making a statement on the matter ... Issues relating to the separation of powers can involve very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate ... 166. In the context of Article 10 of the Convention, the Court must take account of the circumstances and overall background against which the statements in question were made ... It must look at the impugned interference in the light of the case as a whole ..., attaching particular importance to the office held by the applicant, his statements and the context in which they were made. 167. Finally, [one must not overlook the] ‘chilling effect’ that the fear of sanction has on the exercise of freedom of expression, in particular on other judges wishing to participate in the public debate on issues related to the administration of justice and the judiciary ... This effect, which works to the detriment of society as a whole, is also a factor that concerns the proportionality of the sanction or punitive measure imposed ...” (γ) Application of those principles to the present case 220. The Court reiterates its finding (see paragraph 213 above) that the impugned interference was prompted by the views and criticisms that the applicant had publicly expressed in exercising his right to freedom of expression. It observes in this regard that the applicant expressed his views on the legislative reforms in issue in his professional capacity as a judicial member of the NCJ and the spokesperson of this body. It notes that the NCJ is constitutionally mandated to safeguard the independence of the courts and judges (Article 186 § 1 of the Constitution; see Grzęda, cited above, § 304), so it is evident that the applicant, acting as its spokesperson, had the right and duty to express his opinions on legislative reform affecting the judiciary. 221. The Court attaches particular importance to the office held by the applicant, whose functions and duties included expressing his views on the legislative reforms which were to have an impact on the judiciary and its independence. It notes also the extensive scope of the reforms which affected practically every segment of the judiciary (see paragraph 210 above). It refers in this connection to the Council of Europe instruments which recognise that each judge is responsible for promoting and protecting judicial independence (see paragraph 3 of the Magna Carta of Judges) and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their status and, more generally, the functioning of the judicial system (see paragraph 34 of Opinion no. 3 (2002) of the CCJE and paragraph 9 of the Magna Carta of Judges, cited above, paragraphs 109-110 above). 222. In the present case, the Court is assessing the situation of an applicant who was not only a judge, but also a member of a judicial council and its spokesperson. However, the Court would note that a similar approach would be applicable to any judge who exercises his freedom of expression – in conformity with the principles referred to in paragraph 219 above – with a view to defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest. When a judge makes such statements not only in his or her personal capacity, but also on behalf of a judicial council, judicial association or other representative body of the judiciary, the protection afforded to that judge will be heightened. Furthermore, the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat. This duty has been recognised, inter alia, by the CCJE (see paragraph 41 of its Opinion no. 18 (2015) on the position of the judiciary and its relation with the other powers of state in a modern democracy, cited in paragraph 111 above), the UN Special Rapporteur on the independence of judges and lawyers (see paragraph 102 of his 2019 Report on freedom of expression, association and peaceful assembly of judges, cited in paragraph 103 above) and the General Assembly of the ENCJ (see paragraph (vii) of its 2013 Sofia Declaration, cited in paragraph 112 above). 223. The present case should also be distinguished from other cases in which the issue at stake was public confidence in the judiciary and the need to protect such confidence against destructive attacks (see Di Giovanni, § 81, and Kudeshkina, § 86, both cited above). The views and statements publicly expressed by the applicant did not contain any attacks against other members of the judiciary (compare Di Giovanni, cited above); nor did they concern criticisms with regard to the conduct of the judiciary dealing with pending proceedings (see Kudeshkina, cited above, § 94). 224. On the contrary, the applicant expressed his views and criticisms on legislative reforms related to the functioning of the judicial system, the status of the NCJ, the independence and irremovability of judges, and the lowering of the retirement age for judges, all of which are questions of public interest (see, Baka, cited above, § 171). His statements did not go beyond mere criticism from a strictly professional perspective. Accordingly, the Court considers that the applicant’s position and statements, which clearly fell within the context of a debate on matters of great public interest, called for a high degree of protection for his freedom of expression and strict scrutiny of any interference, with a correspondingly narrow margin of appreciation being afforded to the authorities of the respondent State (ibid.). It reiterates in this regard that given the prominent place that the judiciary occupies among State organs in a democratic society and the importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 196, 6 November 2018, with further references), the Court must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy (see Bilgen v. Turkey, no. 1571/07, § 58, 9 March 2021, and Grzęda, cited above, § 302). 225. In this connection, the Court must scrutinise the measures taken by the authorities in the applicant’s case. As regards the auditing of his financial declarations carried out by the CBA between November 2016 and April 2018, the Government submitted that it had been prompted by uncertainty as to their accuracy and had been of a routine nature. However, the Court notes that the impugned audit, which was triggered by some unspecified irregularity and lasted for a considerable period of time, i.e. seventeen months, appears not to have yielded any concrete results. According to the Government, the CBA submitted to the prosecuting authorities a report on irregularities that had been established in the applicant’s declarations. Nonetheless, they did not inform the Court about the nature of those irregularities, which in any event led to no further action on the part of the authorities. Furthermore, the Court has certain doubts about the legality of the CBA officers’ action in entering the premises of the NCJ in order to serve on the applicant a decision authorising an audit of his declarations, as the Government have not indicated a specific legal provision which required that the initiation of an audit required the relevant decision to be served on the person concerned by CBA officers. 226. With regard to the inspection of the applicant’s work at the Cracow Regional Court ordered by the Ministry of Justice, the Court observes that, as noted above, this inspection was initiated merely one day after receipt of the anonymous letter, which mostly concerned the applicant’s critical comments on the reform of the judiciary and his presence in the media, rather than any alleged misconduct on his part or his ability to exercise judicial functions (see paragraphs 70-72 and 211 above). The Court thus finds it striking that the Ministry should resort, in those circumstances, to initiating an inquiry into the discharge of the applicant’s judicial duties. As regards the applicant’s dismissal from his position as spokesperson of the Cracow Regional Court, the Court notes that, while it was in a court president’s power, at any time, to appoint or dismiss a spokesperson, the decision of the President of the Cracow Regional Court was taken without obtaining an opinion of the Board of that court, as required under section 31(1)(1) of the Act on the Organisation of Ordinary Courts (see paragraphs 80, 83-84 and 101 above). It further observes that the President of the Cracow Regional Court, Ms D.P.-W. took this decision merely six days after her appointment to this position by the Minister of Justice. Lastly, with regard to the applicant’s financial declaration, the Court observes that the Minister of Justice reversed, without providing any reasons, the earlier decision of the President of the Court of Appeal to grant confidential status to that declaration (see paragraph 85 above). 227. Against this background and having regard to the accumulation of measures taken by the authorities, it appears that they 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. On the material before it, the Court finds that no other plausible motive for the impugned measures has been advanced or can be discerned. It notes that the applicant is one of the most emblematic representatives of the judicial community in Poland who has steadily defended the rule of law and independence of the judiciary. The Court considers that the impugned measures undoubtedly had a “chilling effect” in that they must have discouraged not only him 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 (see Baka, § 173, and Kövesi, § 209, both cited above). 228. On the basis of the above arguments, and keeping in mind the paramount importance of freedom of expression on matters of general interest, the Court is of the opinion that the impugned measures taken against the applicant were not “necessary in a democratic society” within the meaning of that provision. 229. Accordingly, the Court concludes that there has been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 230. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 231. The applicant claimed 100,000 euros (EUR) in respect of non ‑ pecuniary damage for suffering and distress caused by the violation of his rights. He referred to the early termination of his office and the lack of any possibility of having that measure judicially reviewed. The applicant regarded the early termination of his term of office as a form of political repression and as preventing him from fulfilling his obligations related to the protection of judicial independence arising from his seat on the NCJ. 232. The applicant further claimed to have suffered significant distress owing to, and in the course of, the actions taken against him by the State authorities, including the CBA, tax authorities and the prosecution service. Those actions of the authorities had been widely commented upon by public officials and the applicant regarded this as a deliberate encroachment into his private life. He argued that the measures complained of had completely disrupted his family and professional life. The number of controls, investigations, inquiries, press comments, disciplinary proceedings and attacks on his good name had forced him to devote a great amount of his time and resources to defending himself. The applicant was apprehensive of another possible “attack” by the authorities under any trivial pretext. 233. The authorities’ actions targeting the applicant had taken their toll on his wife who had been forced to undergo therapy as well as on the applicant, who suffered from mental and physical ailments. In addition, it was painful for the applicant to encounter supporters of the ruling majority, who repeated allegations against him which were relayed as part of the smear campaign against him carried out by the public media. As a result, he had received numerous threats and insults of which he submitted a sample. 234. The Government asked the Court to reject the applicant’s claims, since in their opinion the application was inadmissible and, in any event, no violation of the Convention had occurred. Furthermore, the sum claimed was extremely exorbitant and unjustified in the light of the Court’s case-law. Were the Court to award any compensation to the applicant, the Government submitted that it should be reasonable and in line with the case-law in similar cases against Poland or other countries enjoying a similar economic level. 235. Making an assessment on an equitable basis and having regard to its finding of a violation of Article 10 of the Convention, the Court considers it reasonable to award the applicant EUR 15,000 in respect of non-pecuniary damage. Costs and expenses 236. The applicant also claimed EUR 20,000, inclusive of VAT, for the costs and expenses incurred before the Court. He submitted a copy of the legal services agreement between him and the Pietrzak Sidor and Partners Law Firm of 31 July 2018 together with a pro-forma invoice of 29 January 2021. 237. The Government argued that the amount claimed did not meet the requirements of adequacy and necessity. 238. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 239. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 6 § 1 and a violation of Article 10 (freedom of expression) of the Convention in the present case. Following the same reasoning as in the case Grzęda v. Poland (see above), it found that the lack of judicial review of the decision to remove the applicant from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against the applicant – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland.