Oct 19, 2018 | News
The ICJ welcomes the interim measures prescribed today by the Court of Justice of the EU as a necessary step in stemming the evident erosion of the rule of law in Poland.
The Court provisionally ordered Poland to preserve the composition of its Supreme Court of 3 April 2018, before a law forcing into retirement a third of the Court’s members entered into force.
The ICJ urges the Polish authorities to comply with the EU Court order by maintaining in office the Supreme Court judges .
“In accordance with today’s court’s order, Polish authorities should immediately rescind all measures taken since April 2018 that modify the composition of the Supreme Court. They are obliged to do this under EU law as it is binding on Polish authorities and by the fundamental principle of the rule of law that decisions of the judiciary must be respected and implemented.” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
On 10 October, President Andrzej Duda appointed 27 judges to the Supreme Court in place of those forcibly “retired” last July. The ICJ condemned this act of the President of Poland because it contravened an order of the Supreme Court suspending the law under which these appointments were made, pending a decision by the EU Court. Critically, the mass and forced retirement of sitting judges before the end of the established terms of tenure undermines their security of tenure, a key principle regarding the independence of the judiciary.
Background
The independence of the judiciary in Poland has been systematically undermined by the Polish executive and legislative authorities.
Earlier this year Poland issued a new law on the Supreme Court that attempts to force the “retirement” of one third of the Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65. This measure clearly contravenes international human rights law and standards.
The European Commission has launched an infringement procedure for lack of compliance of this law with EU law.
In the absence of satisfactory reforms by Poland, on 24 September, the Commission referred Poland to the Court of Justice of the European Union (CJEU) and asked for interim measures to restore Poland’s Supreme Court to its situation before 3 April 2018. Today’s decision by the Court of Justice granted this interim measures request.
At the same time, the Supreme Court of Poland submitted a preliminary ruling request to the CJEU seeking its interpretation on the compliance of the legislation on retirement ages of judges with EU law, in particular with the prohibition of discrimination on grounds of age under Directive 2008/78.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Oct 11, 2018 | News
The ICJ today condemned the appointment by President Andrzej Duda of 27 judges to the Supreme Court in place of those forcibly “retired” last July.
“These appointments are patently illegitimate and deal a severe blow to the rule of law in Poland,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
The new appointments purport to replace the Supreme Court Justices including President of the Supreme Court Małgorzata Gersdorf, whose forced “retirement” is in clear violations of international standards on the security of tenure and independence of judges.
The decision of the President is even more concerning since it contravenes an order of the Supreme Court suspending the law under which these appointments were made, pending a decision by the Court of Justice of the European Union.
It is a fundamental tenet of the rule of law and principles on the independence of the judiciary that the executive respect decisions duly made by the judiciary.
“In announcing these appointments now, while cases on the forced retirement of Supreme Court judges are still pending at the EU Court, President Duda has disregarded the proceedings of the EU’s apex judicial body,” Róisín Pillay added.
The ICJ considers that the legality of the appointments of the new judges is further compromised by the role played by the now politicized National Council for the Judiciary, whose independence and impartiality has been seriously compromised following recent legislative amendments.
The ICJ urges the Polish authorities to cease all interference with the Supreme Court in carrying out its legitimate functions, and to reverse the measures taken to force the retirement of Supreme Court judges.
Background
This attack against the actions of the Supreme Court occurs amid a systematic undermining of the independence of the judiciary in Poland by the Polish executive and legislative authorities, which attempt to increase political influence in the judiciary and which the ICJ has repeatedly condemned.
Earlier this year Poland issued a new law on the Supreme Court that attempts to force the “retirement” of one third of the Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65. This measure clearly contravenes international human rights law and standards.
The European Commission has launched an infringement procedure for lack of compliance of this law with EU law.
In the absence of satisfactory reforms by Poland, on 24 September, the Commission referred Poland to the Court of Justice of the European Union (CJEU) and asked for interim measures to restore Poland’s Supreme Court to its situation before 3 April 2018.
At the same time Supreme Court of Poland submitted a preliminary ruling request to the CJEU seeking its interpretation on the compliance of the legislation on retirement ages of judges with EU law, in particular with the prohibition of discrimination on grounds of age under Directive 2008/78.
Following the jurisprudence of the CJEU, the Supreme Court suspended the effect of national law on the forcible retirement of the judges.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Oct 3, 2018 | News
Today, the ICJ expressed concern at ongoing criminal proceedings against Mikhail Benyash, a lawyer practicing in Russia, who is charged with use of force against the police and impeding justice.
The lawyer has been detained until 23 November. The ICJ called on the responsible authorities to drop any criminal charge relating to his conduct of professional duties in the courtroom, and to ensure that the lawyer’s rights are protected and that allegations of his ill-treatment are fully investigated.
Benyash alleges that following his apprehension by the police on 9 September, the police beat him up in the car. According to the police report he inflicted the injuries on himself, contrary to demands of the police that he stop doing so.
He was charged with disobedience to the police, which according to the police report was due to “the fact that the police asked Benyash not to injure himself, but he continued self-beating”. Benyash was convicted and sentenced to 14 days of imprisonment and 40 hours of correctional works.
On 23 September, the day of his release, Benyash was arrested again. He was charged with two further offences: violence against a representative of authority (Criminal Code Article 318(1)) based on an allegation, seemingly not raised at the time of his earlier charge and conviction in relation to the same incident, that in the course of his arrest on 9 September he allegedly bit a police officer and hit another.
On 23 September he was also charged with obstruction of justice (Criminal Code Article 294(1)), reportedly on the basis of an allegation that in a court hearing on 6 May 2018, Benyash had “repeatedly interrupted, gave instructions and objections to the decisions of the judge” and after he had been removed from the courtroom “continued unlawful behaviour”.
According to the lawyer, he was taken out of the courtroom by force due to his motions to allow certain members of the public to be present at the open hearing.
The ICJ is concerned that the criminal obstruction charge against Mikhail Benyash appears to relate at least in part to statements he made in court in the course of carrying out his professional duties of representation of his clients.
The fact that this charge was only laid following his recent arrest, some five months after the alleged incident occurred, also raises questions as to the motivation for bringing the charge forward now.
“Benyash is currently charged on account of his alleged attack on a police officer and obstruction of justice. While the first charge requires an impartial and independent inquiry, the second charge should be of concern to the entire lawyers’ community”, said Karinna Moskalenko, ICJ honorary member. “We fear that this may lead to lawyers in Russia being charged with obstruction of justice simply for actively expressing their position and objections in accordance with the procedure prescribed by law”, she added.
Furthermore, the ICJ emphasises that under international human rights law, states have obligations to investigate allegations of treatment that may amount to torture or inhuman or degrading in violation of Article 3 of the European Convention on Human Rights, as well as other international law norms binding on the Russian Federation.
The investigative authorities have duty to investigate allegations of ill-treatment of the lawyer by police following his arrest on 9 September promptly, effectively and impartially and any persons responsible should be brought to justice.
Read the ICJ’s full statement here: Russia-Statement on Benyash-News-Web Story-2018-ENG
Sep 21, 2018 | Advocacy, News, Non-legal submissions
The ICJ wrote today to the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, to request action against the decision by Turkish authorities to ban entrance to Galatasaray square in Istanbul (Turkey) to a collective of mothers of disappeared persons called “Saturday Mothers”.
On 25 August 2018 , the Sub-Governorship of Beyoğlu District of İstanbul announced the prohibition of gatherings for assembly of any type of demonstrations in Galatasaray Square in Istanbul, the square where the Saturday Mothers have gathered every Saturday since 1995 to 1998 and since 2009 until 2018.
On the 700th week of their peaceful protests, the Saturday Mothers and their supporters congregated in Galatasaray Square at midday to once again raise awareness of the need for those responsible to be held accountable for the extrajudicial killings and enforced disappearances following their time in State custody in the 1990s. The police used tear gas to stop the protest and arrested 47 people. All were released by Saturday evening.
Senior officers of the Turkish authorities have even issued statements accusing the Saturday Mothers of being abused by or in collusion with terrorist organisations.
The ICJ wrote to the European Commissioner for Human Rights, that it “considers this situation to be at odds with Turkey’s obligations under international human rights law, in particular of the right to peaceful assembly under article 11 of the European Convention on Human Rights and article 21 of the International Covenant on Civil and Political Rights.”
The ICJ further added that “given the consistent record and presence of the Saturday Mothers in Galatasaray Square throughout the years, it is hard to see how the restriction on their right to peaceful assembly could in any way be necessary and proportionate to a legitimate purpose. It is clear that no prior warning for the gathering was needed for security reasons in light of its regular occurrence at least since its resumption in 2009, i.e. nine years ago. Furthermore, the demonstration took place on a pedestrian area where cars are not allowed.”
ICJ-Letter-SaturdayMothers-CoEComm-Turkey-2018-ENG (download the letter)
Sep 14, 2018 | News
The ICJ met this week in Warsaw with the First President of the Polish Supreme Court, Małgorzata Gersdorf.
Róisín Pillay, Director of the ICJ Europe and Central Asia Programme, met with President Gersdorf to convey the support of the ICJ for the Court’s defence of the rule of law and the independence of the judiciary in Poland, in the face of government attacks.
The ICJ emphasized that a new law on the Supreme Court that attempts to force the “retirement” of 27 of the 72 Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65 years, contravenes international human rights law and standards, including the right to a fair hearing.
The measure is contrary to the principle of the security of tenure of judges and therefore to the independence of the judiciary, as expressed in the UN Basic Principles on the Independence of the Judiciary.
In August, the Supreme Court submitted a preliminary ruling request to the Court of Justice of the EU (CJEU) seeking its interpretation on the compliance of the measure with EU law. The Supreme Court has suspended implementation of the law pending the proceedings before the CJEU.
The European Commission has recognized the current situation as undermining “the principle of judicial independence, including the irremovability of judges” and has triggered a procedure under Article 7 of the Treaty of the European Union that could ultimately lead to suspension of Poland’s EU voting rights.
The Commission has also launched infringement proceedings against Poland in respect of the law on the Supreme Court.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Sep 10, 2018 | Advocacy, News
The ICJ today called on all MEPs to vote in favour of the draft resolution and report by rapporteur Judith Sargentini MEP, before the European Parliament, which would activate Article 7 of the Treaty of the European Union in respect of Hungary.
A vote for the resolution would mean that, under Article 7.1, the Council would determine whether there is a clear risk of serious breach by Hungary of the founding values of the EU.
Ultimately, if the situation persists, this would allow the Council to take more robust measures, including suspension of voting rights, to address the situation.
The vote, scheduled for 12 September, is crucial for the rule of law in Hungary and throughout the European Union.
The Parliament will vote on whether to activate the process under Article 7, by calling on the Council to identify a risk of serious breach by Hungary of the EU’s founding values, including the rule of law and respect for human rights.
The ICJ considers that the measures put in place by the Hungarian government since 2011 have led to a severe deterioration of the rule of law and human rights, by weakening Constitutional rights protection, limiting judicial independence, suppressing independent media, civil society and academic institutions, and imposing arbitrary laws that violate the human rights of marginalized sections of society.
Cumulatively, these measures pose a grave, systemic threat to the protection of the human rights of all people in Hungary.
“The European Parliament should respond to the critical situation in Hungary by using the powers available to it under Article 7 TEU to defend human rights and the rule of law. Not to do so would be to abandon Hungary to an increasingly dangerous path, and would set a damaging precedent for all of Europe,” said Róisín Pillay, Director of the ICJ Europe Programme.
Read the full statement and key concerns here: Hungary-triggering Art 7-Advocacy-2018-ENG (in PDF)
