Dec 6, 2019 | News
The ICJ calls on the Polish authorities to put an immediate end to unjustified disciplinary proceedings initiated against judges, including Krystian Markiewicz, Chairperson of the Polish Judges’ Association “Iustitia”.
The ICJ considers that the disciplinary action against Judge Markiewicz’ was initiated because of his questioning of the Polish government’s “reforms” that have severely eroded the independence of the judiciary in Poland.
“The disciplinary action taken against Judge Markiewicz for his criticism of the government’s attack on judicial independence violates international standards on the independence of the judiciary and should be ended immediately”, said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“Judges have a right to freedom of expression and to form and take part in associations of judges. They have a particularly important role in speaking up to defend the rule of law and the independence of the judiciary, which is undermined by arbitrary disciplinary proceedings such as those against Judge Markiewicz”, she added.
By order of the Deputy Disciplinary Commissioner of the ordinary court judges, on 4 December, disciplinary proceedings alleging 55 instances of misconduct were initiated against Judge Krystian Markiewicz. These include: inciting disrespect for Poland’s legal order by questioning the independence and legality of the National Council of the Judiciary (NCJ), and the constitutionality of the Disciplinary Chamber of the Supreme Court; and calling for appeals to the Disciplinary Chamber to be suspended.
The disciplinary action against Judge Markiewicz comes within a week of the decision to suspend with immediate effect district Judge Paweł Juszczyszyn, who, in presiding over an appeal, questioned the impartiality of the judge who had delivered the original verdict as a result of being elected by the National Council for the Judiciary. On 1 December 2019, the Polish Judges’ Association Iustitia organized rallies in support of Judge Juszczyszyn.
The ICJ stresses that such actions taken against judges are inconsistent with the duties of all branches of the State to respect and protect the independence of the judiciary. The ICJ calls for Judge Juszczyszyn to be immediately re-instated in his post.
On 4 December 2019, the labour law chamber of the Supreme Court, in implementation of a recent ruling of the Court of Justice of the UE, held that the NCJ is not an impartial and independent body, and that the disciplinary chamber of the Supreme Court is not a “court” under EU or Polish law, thereby confirming the concerns raised by both Judge Juszczyszyn and Judge Markiewicz.
Background
The UN Basic Principles on the Independence of the Judiciary clarify that all governmental and other institutions must respect and observe the independence of the judiciary (Principle 1), and that judges must decide all matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect (Principle 2). Judges can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).
In recent years, the Polish executive and legislative authorities have systematically undermined the independence of the judiciary in the country, including through laws that have sought to force the dismissal of judges by lowering the mandatory retirement age. In addition, they have brought the appointment of judges under political control by re-structuring the National Council of the Judiciary (NCJ), with a majority of its members selected by the Polish Parliament. (see ICJ statement)
This move has also politicized the Disciplinary Chamber of the Supreme Court, whose members are selected by the NCJ, and the disciplinary court of first instance. In October 2019, the European Commission referred Poland to the CJEU on the grounds that the new disciplinary regime for judges undermines their independence.
In June 2019, the Court of Justice of the European Union (CJEU) held that the Polish Law on the Supreme Court lowering the retirement age of judges of the Supreme Court and providing discretionary power to the President to allow a judge to remain in office following the mandatory retirement date was contrary to the principle of effective judicial protection and therefore in violation of EU law. In November 2019, the CJEU held that Poland violated the independence of the judiciary by lowering in 2017 the pension age of Polish judges and giving the power to maintain them in office to the Minister of Justice.
Dec 3, 2019 | Agendas, Events, News
Today, the ICJ together with Scuola Universitaria Sant’Anna and Scuola Superiore de la Magistratura hold a training seminar on access to the asylum procedure and the right to an effective remedy in Pisa, Italy.
The training seminar brings together 65 Italian judges and lawyers specialized in access to international protection. During the two days of training, experts from the CJEU, Italian judiciary and academics, UNHCR and ICJ will deliver the training, bringing international human rights and EU law perspectives to the discussion on Italian law and practice.
Among the issues discussed during the training seminar will be access to the asylum procedure in international and EU law, access to the asylum procedure and accelerated procedures in light of the right to an effective remedy, appeal, legal assistance and legal aid, and interpretation. Further issues including the burden of proof in international protection cases and duties of cooperation with the asylum authority will be examined from the perspectives of judges, of territorial Commissions and lawyers as well as from the international and EU law perspective. Finally, working groups on burden of proof, credibility assessment of asylum seekers and countries of origin of asylum seekers will take place.
See the full agenda here.
This training is a part of FAIR PLUS project. It was carried out with the financial support of the European Union. Its contents are the sole responsibility of ICJ and do not necessarily reflect the views of the European Union.
Nov 29, 2019 | Agendas, Events, News
Today, in Brussels, the ICJ held a roundtable discussion on the impact of counter-terrorism laws on specific groups, including children, and ethnic and religious groups.
The roundtable brought together 34 judges, lawyers, NGOs and other experts from countries including Germany, France, Italy, the Netherlands, Poland, Belgium, Portugal, Romania, and Spain to discuss how the rights of children and of ethnic and religious minorities can be best protected in applying counter-terrorism legislation in the courts, especially in light of the EU Directive 2017/541 on Combatting Terrorism.
This was the last of four roundtables held by the ICJ and its partner organizations between April and November 2019 in the framework of the EU funded project “Judges Uniting to Stop Terrorism with International, Constitutional and European law (JUSTICE).”
The discussion in the first session of the roundtable addressed the disproportionate impact of counterterrorism laws on ethnic and religious groups. It focused on compliance with the principle of non-discrimination, through safeguards in legislation, in the judicial application of counter-terrorism laws, and in investigation and evidence gathering.
The second session of the roundtable addressed the particular impact of counter-terrorism legislation on children, including the challenges involved in protecting the human rights of children of “foreign fighters” and ensuring the primacy of their best interests in decisions on their return to EU countries. Participants also discussed protection of the human rights of returned children of “foreign fighters” both as victims of terrorism and where they are accused of crimes of terrorism.
See the agenda here.
This workshop was carried out with the financial support of the European Union and the Open Society Foundations. Its contents are the sole responsibility of ICJ and do not necessarily reflect the views of the European Union or the Open Society Foundations.
Nov 28, 2019 | Cases, News
The ICJ and Amnesty International have submitted a joint third party intervention before the European Court of Human Rights in the case of Judge Jan Grzęda.
Judge Grzęda’s mandate as a member of the Polish National Council of the Judiciary (NCJ) was prematurely terminated by legislation that entered into force in 2018. Under this law, the mandates of the judicial members of the NCJ appointed under previous legislation were automatically brought to an end once new members were appointed.
Judge Grzęda applied to the European Court of Human Rights alleging that he had been denied access to a tribunal to challenge the termination of his mandate and had been denied an effective remedy for the violations of his rights.
In their third party intervention, the ICJ and Amnesty International analyze international standards on judicial independence and self-governance, including as regards the role national councils for the judiciary, and the consequences of these standards for the right of access to court under Article 6.1 ECHR. The intervention also analyses the role of the NCJ in safeguarding judicial independence in Poland, and recent legislative and policy developments that have seriously undermined the independence of the Polish judiciary.
Read the full intervention text here.
Nov 18, 2019 | News
The ICJ today called on the Hungarian authorities to desist from instigating disciplinary proceedings threatened against Judge Csaba Vasvári, a judge of the Central District Court of Pest and a member of the Hungarian National Judicial Council.
The imminent threat of disciplinary action is a consequence of a preliminary reference Judge Vasvári made to the Court of Justice of the European Union.
“Judge Vasvári faces disciplinary action as a direct result of his request for a preliminary ruling of the Court of Justice of the EU on the very question of judicial independence in Hungary. This is an extremely concerning attempt to interfere with the independence of a judge in discharging his judicial function which, if it proceeds any further, will set a dangerous precedent.” said Róisín Pillay, Director of the ICJ’s Europe and Central Asia programme.
A motion to begin disciplinary proceedings against Judge Vasvári was brought by the Acting President of the Budapest Regional Court in October, following Judge Vasvári’s request in criminal proceedings before him last July, for a preliminary ruling the Court of Justice of the EU (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU).
In the request to the CJEU, Judge Vasvári raised questions regarding compliance with the principle of judicial independence under Article 19.1 of the Treaty of the European Union (TEU), in particular the appointment procedures for court presidents, and remuneration for judges, as well as questions regarding the right to interpretation in court.
Following a decision of the Hungarian Supreme Court in September that the reference was contrary to Hungarian law since it was irrelevant to the case, disciplinary action against judge Vasvári was sought on the grounds that in making the reference, he violated the requirement to conduct himself with dignity and refrain from action which would undermine the dignity of the judiciary.
The motion for disciplinary proceedings is now expected to be considered by a panel of the Service Court, which will decide if disciplinary proceedings will commence.
“The actions of Judge Vasvári in making a preliminary reference to the CJEU were an entirely legitimate exercise of his judicial functions in accordance with EU law. It is essential that judges are able to use all appropriate judicial avenues to address and uphold the rule of law, including to protect the right to a fair trial and the independence of the judiciary” said Róisín Pillay. “It is also necessary for the proper application of EU law, that judges are able refer questions to the CJEU under Article 267 of the Treaty without undue hindrance.”
The ICJ recalls that under international standards on the independence of the judiciary, judges must decide matters before them impartially, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (Principle 2, UN Basic Principles on the Independence of the Judiciary). Council of Europe Recommendation CM/Rec (2010) 12 of the Committee of Ministers specifies that “the interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.”
The UN Basic Principles on the Independence of Judiciary (principle 8) also affirm that “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.”
Nov 5, 2019 | News
The ICJ welcomed today’s ruling of the Court of Justice of the European Union finding that Poland violated the independence of the judiciary by lowering in 2017 the pension age of Polish judges and giving the power to maintain them in office to the Minister of Justice.
The Court also found that the new law creating widely disparate retirement ages between women and men who are ordinary court judges or prosecutors – 60 and 65 respectively – constituted unlawful discrimination
“The Court of Justice has upheld the cardinal principle of the rule of law that the terms of judges cannot be determined controlled on an ad hoc basis by political powers,” said Massimo Frigo, Senior Legal Adviser of the ICJ Europe and Central Asia Programme.
“This judgment confirms that these retirement laws were a direct blow to the principle of separation of powers, the bedrock of the rule of law,” he added.
The Court of Justice held as contrary to the principle of independence of the judiciary under article 19 of the Treaty on the Functioning of the EU as series of laws lowering the age of retirement for ordinary judges, prosecutors and Supreme Court judges from 70 to 65 years for men and 65 to 60 for women. These laws allowed the Minister of Justice to decide which judges are to be reinstated.
“Poland should scrap these laws entirely and reinstate fully the situation of the judiciary prior to their enactment,” Frigo said.
“These laws were but a part of the systemic attack to the independence of the judiciary that the Polish government should stop,” he added.
The ICJ also called on Poland to bring the retirement ages of men and women back into parity.
The case was brought by the European Commission in an infringement proceeding against Poland for violation of the obligation to provide access to justice for EU law violations under article 19 TFEU.
Contact:
Massimo Frigo, Senior Legal Adviser of the ICJ Europe and Central Asia Programme, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
More information on Massimo Frigo’s blog
