Jun 4, 2020 | News
The ICJ today raised concern at the threat of criminal proceedings against Judge Igor Tuleya on charges arising from the judge’s independent exercise of his judicial functions. The ICJ called on the Disciplinary Chamber of the Supreme Court not to lift his immunity at its 9th June hearing.
Judge Tuleya faces prosecution for having allowed the presence of media in a sensitive case concerning the investigations on the 2017 budget vote in the Polish House of Representatives (Sejm) that took place without the presence of the opposition.
He has been charged with ‘failing to comply with his official duties and overstepping his powers’ for having allegedly disclosed a secret of the investigation to ‘unauthorized parties’.
The accusations stem from the initiative of the judge to allow media and the public in the courtroom while issuing his ruling. Usually rulings on investigations are issued behind closed doors in Poland but the criminal procedure code allows judges to make the hearing public “in the interest of justice”.
“Judge Tuleya should not face any criminal proceedings to begin with for his actions in delivering his ruling in public, which is in accordance with national law”, said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme. “His immunity must be maintained and the ‘Muzzle Act’ that allowed for these abusive prosecutions should be immediately scrapped.”
These proceedings are the first case of implementation the draconian Act amending the Law on the Common Courts, the Law on the Supreme Court and Some Other Laws, signed into law on 4 February and widely known as the ‘Muzzle Act’, which gave competence to waive judicial immunity to the Disciplinary Chamber of the Supreme Court.
“As highlighted by the recent ruling of the EU Court of Justice, the Disciplinary Chamber of the Supreme Court is not independent and is open to undue influence or interference by political authorities. It should therefore not rule on issues pertaining to the disciplinary or criminal responsibility of judges, including a waiver of their immunity,” Massimo Frigo added.
Background
On 19 November, the Court of Justice of the European Union (CJEU) delivered a ruling in the case A.K. and others (C-585/18, C-624/18, C-625/18), on a preliminary question by the Supreme Court of Poland. The preliminary question asked whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court could be considered to be independent.
The CJEU ruled that a court cannot be considered independent “where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law.”
Based on this ruling, the Labour, Criminal and Civil Chambers of the Supreme Court declared that the Disciplinary and Extraordinary Chambers of the Supreme Court were not properly constituted and independent.
According to the UN Basic Principles on the Independence of the Judiciary, judges are entitled to a fair hearing in all disciplinary proceedings (principle 17). In order for such a hearing to be fair, the decision-maker must be independent and impartial.
International and European standards on the independence of the judiciary provide that judges should have immunity from criminal prosecution for decisions taken in connection with their judicial functions in the absence of proof of malice, and any procedure for removing immunity must itself be independent (see for instance, UN Special Rapporteur on the Independence of Judges and Lawyers, paras 65-67 and 98; Council of Europe Committee of Ministers, para 68; Consultative Council of European Judges, para 20; ICJ Practitioners Guide no 13, pp. 27-30).
On 26 February 2020, the Polish Prosecutor’s Office requested a waiver of Judge Tuleya’s immunity in order to press criminal charges which might lead to imprisonment. The waiver will be examined on the 9 June 2020 by the Disciplinary Chamber of the Supreme Court appointed by the government.
In an open letter of 5 February 2020, 44 ICJ Commissioners and Honorary Members denounced the recent legislative changes adopted by the Polish government threatening the role and the rights of judges and denouncing the risks faced by legal practitioners when fighting for the rule of law. Two weeks later, the risks highlighted by the letter have become reality for an increasing number of Polish judges, including Judge Tuleya.
Contact:
Massimo Frigo, Senior Legal Adviser, Europe and Central Asia Programme, e: massimo.frigo(a)icj.org, t: +41 22 979 38 00
Jun 2, 2020 | News
The ICJ has called on the Russian authorities to institute a prompt, independent and thorough investigation into the recent use of physical force against lawyers Natalia Magova, Diana Sipinova and Liudmila Kochesokova and detention of Diana Sipinova by officers of the Ministry of Interior in the Kabardino-Balkaria Republic.
Those responsible should be held accountable, the ICJ stressed.
According to the lawyers and as corroborated by video recordings available online, they arrived in the Department of the Ministry of Interior in the Kabardino-Balkaria Republic to represent their client Ratmir Jilokov, another lawyer who was detained on 20 May 2020, also following alleged violence against him by the police.
Despite the lawyers’ requests to have access to their client, they were not allowed to meet him. Instead, they were removed from the building of the Department of the Ministry of Interior with the use of physical force by several officers, which resulted in an altercation.
Moreover, Diana Sipinova was detained in the building of the Department for several hours. Both she and Ratmir Jilokov were later released.
“The use of physical force against the lawyers to prevent their meeting their client was clearly contrary to international human rights law and standards, including those on the role of lawyers,” said Temur Shakirov, Senior Legal Adviser of the ICJ Europe and Central Asia Programme.
The ICJ also raised concerns at the criminal proceedings against lawyer Diana Sipinova, following the incident of 21 May 2020, and Ratmir Jilokov, who was detained on 20 May 2020 apparently in connection with having tried to defend a client’s premises from what he considered to be an unlawful search by the authorities.
Both are accused of having used violence against police officers.
Reportedly, the criminal proceedings against Diana Sipinova and Ratmir Jilokov were instituted following their complaints of being subjected to physical attack by the officers of the Ministry of Interior of the Kabardino-Balkaria Republic.
The ICJ highlights that as provided by the UN Principles on the Role of Lawyers, States must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference and that they do not suffer, or be threatened with prosecution for any action taken in accordance with recognized professional duties, standards and ethics.
International human rights law further guarantees the right of a person deprived of liberty to meet with his or her lawyer.
The authorities should take effective measures to prevent such acts against lawyers in the future, and to ensure that lawyers are not prevented from representing their clients in accordance with law, the ICJ said.
The ICJ furthermore calls on the authorities to terminate the criminal investigations against the lawyers in connection with their attempts to meet with and defend their clients’ interests, and for any other action they have taken in relation to the representation of their clients that was in accordance with their professional duties, standards and ethics.
Background information:
Natalia Magova, Diana Sipinova and Liudmila Kochesokova are lawyers based in Kabardino-Balkaria Republic in the North Caucasus part of the Russian Federation.
According to the official website of the Investigative Department of the Investigative Committee of Kabardino-Balkaria, Diana Sipinova and Ratmir Jikolov are charged with the criminal offence provided for by Article 318.1 (use of violence which does not endanger life or health against the public officials in connection with the performance of their duties) of the Criminal Code of the Russian Federation.
In particular, Diana Sipinova is charged with having used violence against officers of the department of the Ministry of Interior of Kabardino-Balkaria Republic when she requested access to her client on 21 May 2020. Ratmir Jilokov is charged with having used violence against the police officers who arrived in the office of his client to conduct a search on 20 May 2020.
On 30 May 2020, the first instance court imposed the preventive measure for Diana Sipinova of prohibition of certain activities for two months.
Lawyer Ratmir Jilokov, who was detained on 20 May and released on 21 May 2020, claims that the officers who arrived in his client’s office for a search failed to provide him with any legal grounds or the document authorising the search, and that he was subjected to violence when he had challenged the unlawfulness of the officers’ actions. The first instance court imposed the preventive measure of prohibition of certain activities for two months in respect of him.
The Federal Chamber of Lawyers of Russian Federation expressed their support to the lawyers and criticized the interference with their professional functions and actively participated in the defence of the lawyers.
The ICJ has previously raised concerns at violence and intimidation against Russian lawyers.
May 15, 2020 | Agendas, Events, News
Kazakhstan National University (KazNU) Human Rights Institute in cooperation with the ICJ, the European Association of Lawyers and other partners will hold an online international conference “Law and human rights during the pandemic”.
The event will assemble leading legal experts and practitioners from Central Asia and other countries who will discuss the most pertinent issues for ensuring human rights and access to justice in times of pandemic.
The topics will include sections on human rights during quarantine and emergency situations, and administration of justice during the pandemic.
The event is open for participation upon online registration.
The working language of the event is Russian. The conference will start at 11.00 Nur-Sultan time (GMT +5).
Links
Website of the conference
Agenda in Russian
Agenda in English
Apr 22, 2020 | News
In a joint letter to EU Member States, the ICJ and other human rights NGOs have urged them to recognize the grave implications for human rights and the rule of law, of the Hungarian government’s recent emergency measures.
Ahead of the Council of the EU videoconference of EU Affairs Ministers to discuss the response to COVID-19, Amnesty International, International Federation for Human Rights (FIDH), Human Rights Watch, the ICJ, Open Society European Policy Institute and Reporters Without Borders (RSF) urged the Council to take immediate steps to protect the principles enshrined in Article 2 of the Treaty on European Union (TEU), and the rights enshrined in the EU Charter of Fundamental Rights. This is particularly needed in light of the already deteriorated state of the rule of law and human rights in Hungary, which warranted the activation, in September 2018, of the procedure laid down in Article 7.1 TEU.
The organisations urged the member states of the European Union to:
- include in the agenda of the upcoming session of the EU General Affairs Council an Article 7.1 TEU hearing on the situation in Hungary, including recent developments in relation to the COVID-19 outbreak, and address to the government of Hungary, as a matter of urgency, concrete recommendations to safeguard respect for the rule of law and human rights in the country, that the Hungarian government must implement by a set deadline;
- commit to assessing the implementation of the recommendations in a timely manner in order to reach a determination under Article 7.1 TEU and, should conditions warrant it, move forward under Article 7.2 TEU.
- ensure enhanced monitoring of the Hungarian government’s use of EU funding, including funds aimed at supporting member states during the public health crisis.
The organisations urged both the Council and the Commission to cooperate with each other, and with the European Parliament and national parliaments, to ensure a coordinated, consistent and effective response to the situation.
The full letter is available here: CSO Letter to GAC -rule of law in Hungary April 2020
Apr 14, 2020 | Advocacy, News
The ICJ and 108 other organizations are deeply concerned by relentless attempts to roll back sexual and reproductive rights in Poland.
On 15 and 16 April Poland’s Parliament will again debate two draft bills that would severely limit access to safe abortion care and would criminalize the provision of sexuality education.
If enacted into law these bills would place women’s and adolescents’ health and well-being at risk and violate Poland’s international human rights obligations.
Full statement, in PDF: Poland-COVID-19 Abortion bill-Advocacy-2020-ENG)
Apr 9, 2020 | Advocacy, News
A joint statement signed by the ICJ and 102 other organizations.
The COVID-19 pandemic and public health crisis is presenting grave challenges for health care systems across Europe.
As European countries work to address the pandemic, protect their populations, and meet the increased demand on health care workers and health care facilities it is vital that they adopt measures to safeguard the health, human dignity, physical and mental integrity, and reproductive autonomy of women and girls in the region.
In many countries the lack of government measures to guarantee individuals’ safe and timely access to essential sexual and reproductive health services, goods, and information during the pandemic is of particular concern.
Women and girls – this statement refers to women and girls, as the majority of individuals who are needing abortion care identify as such but it equally applies to all individuals who may become pregnant and need abortion care or other sexual and reproductive health care – are facing significant restrictions in safely accessing essential sexual and reproductive health services, particularly timely abortion care, post abortion care, and emergency contraception.
Such restrictions disproportionately impact individuals belonging to marginalized groups, including women living in poverty, women with disabilities, Roma women, undocumented migrant women, adolescents, and women at risk or who are survivors of domestic and sexual violence.
These restrictions also create unnecessary risks of exposure to COVID-19 for women and girls and their families as well as for health care providers.
Particularly grave barriers are arising for women and girls living in European countries where abortion care is illegal or severely restricted, and where as a result they must travel to other countries to access legal care or must obtain abortion medication from outside their own jurisdiction.
These issues can also arise in those European countries where individuals are forced to go through burdensome or harmful administrative processes to access abortion care or where they may have difficulty finding doctors in their country willing to provide care.
We applaud those governments that have moved swiftly to safeguard access to essential time- sensitive sexual and reproductive health care during this time, in particular through ensuring access to telehealth and early medical abortion from home.
We call on all other European governments to follow suit and to follow the guidance of medical and public health experts.
We call on the six European countries (Andorra, Liechtenstein, Malta, Monaco, Poland and San Marino) where abortion is illegal or severely restricted to urgently reform these laws, which place women’s health and lives at risk.
Limitations on travel and transport now compound the impact of these highly restrictive laws. Individuals in these countries may no longer be able to travel abroad or to obtain medication for abortion sent by post from medical providers in other countries. As a result, they face heightened risks to their health and wellbeing.
We call on those countries where abortion is legal but where clinical services are unavailable or difficult to access due to a range of barriers, including medically unnecessary requirements that oblige individuals to take multiple or unneeded trips to health care facilities or undergo mandatory hospitalization, to urgently eradicate those barriers and ensure access to services.
Urgent steps should also be taken to ensure that refusals of care because of private beliefs by doctors do not jeopardize timely access to legal abortion care.
In accordance with human rights obligations3 and the recommendations of medical experts4 the following measures should be adopted, and at a minimum remain in place for the duration of the COVID-19 pandemic:
- Ensure that abortion is treated as essential and time-sensitive health care and guarantee access to care in a timely manner.
- Authorize and make available in a timely manner telehealth consultations for anyone who is seeking abortion care or information. Specific measures should be adopted to ensure that telehealth consultations are free or low cost and easily accessible for marginalized groups.
- Guarantee timely access to early medical abortion throughout each jurisdiction and allow doctors to prescribe the necessary medication via telehealth consultation.
- Allow individuals to take all abortion medication at home. Requirements in some European countries that one pill must be taken in the physical presence of a doctor or in a health care facility should be removed.
- Remove mandatory waiting periods prior to abortion as well as mandatory counselling requirements or ensure counselling can be conducted through telehealth consultation.
- Authorize primary care doctors and midwives to provide early medical abortion.
- Adopt health system safeguards to guarantee access to care in cases where early medical abortion is not possible or is contraindicated, for individuals who need abortion care later in pregnancy or post-abortion care, or who may need to visit a health care facility for other reasons. Travel in such cases should be deemed essential and permitted even where governments have otherwise restricted free movement.
- Where a doctor’s authorization is required, this should be limited to one doctor. Requirements for multiple doctors’ approval of an abortion should be removed.
- Guarantee timely access to prenatal testing and psychosocial support where requested.
- Guarantee an adequate number of providers willing and able to provide abortion care throughout the country and widely publicize information on how women can identify health care professionals willing and available to provide abortion care. Urgently ensure that refusals of care by doctors do not jeopardize access to abortion care in a time of crisis.
- Widely disseminate information on those changes to SRHR policies and health care services that are being made in the context of COVID-19 responses.
- Ensure access to contraception including emergency contraception, including through authorizing telehealth consultations and provision of emergency contraception over the counter in pharmacies without a prescription.
Finally, we call on all policy makers across the European region to reject proposals that purport to restrict access to safe abortion care during the COVID-19 pandemic. These disingenuous proposals simply serve to exacerbate the current public health crisis and have negative effects on the health, lives, and wellbeing of women and girls.
Download the full statement with additional information and the list of signatories
