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
Mar 23, 2020 | News
The ICJ called today on the Parliament of Hungary not to approve a Government bill that would extend indefinitely the emergency powers of the executive to counter the Covid-19 pandemic.
The proposed legislation would enable executive rule by decree, without parliamentary approval, and would impose harsh restrictions on freedom of expression.
“States of emergency, whatever the reason to invoke them, must never be allowed to become permanent,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“Emergency measures that restrict human rights must be constantly reassessed to ensure that they remain necessary and proportionate. And even where measures are temporarily necessary, they should be subject to a “sunset clause” that ensure that it can be reviewed and will lapse if no longer justified ”.
The Hungarian emergency legislation includes offences of publishing false or distorted facts that interfere with protection of the public or cause public alarm – offences which have the potential to significantly and unduly restrict freedom of expression.
International human rights law requires that any interference with freedom of expression must be in sufficiently clear terms to be adequately prescribed by law and must be necessary and proportionate to the legitimate aim that it serves.
“This legislation is particularly worrying in a context where the Hungarian government has systematically undermined the rule of law and protection of human rights, including freedom of the media and civil society, and the independence of the judiciary in recent years,” Róisín Pillay added.
“The emergency powers are therefore particularly open to arbitrary or abusive application, without effective scrutiny by parliament or an independent judiciary.”
Background
The Bill on Protection against the Coronavirus (Bill T/9790) in the form of tabled by the Government will extend the state of danger that it had ordered by government decree from 11 March 2020.
The ICJ understands that the Bill will allow the government to rule by decree without Parliamentary scrutiny. The legislation would make it a criminal offence, punishable by imprisonment, to publish false or distorted facts that interfere with protection of the public or that alarm or agitate the public, or to interfere with a quarantine or isolation order.
Under international treaties to which Hungary is a party, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights, States may take emergency measures to derogate from their international human rights law obligations in times of crisis, only the extent strictly necessary to protect the life of the nation. Derogating measures may only limit the scope of certain rights to the extent strictly necessary to meet a threat to the life of the nation, but they do not entirely suspend the applicability of any right in its entirety.
This necessity must be continually re-assessed so that the derogating measures apply for the shortest time possible. Certain human rights, including the right to life, the prohibition of torture or ill-treatment, and the essential elements of arbitrary deprivation of liberty and to a fair trial and the right to an effective remedy can never be restricted even in a state of emergency.
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.”
Jul 3, 2019 | Advocacy, Non-legal submissions
The ICJ today highlighted rising threats to the rule of law in Europe, specifically mentioning Poland, Hungary, Turkey, and Kazakhstan in a statement to the UN Human Rights Council in Geneva.
The statement read as follows:
“The International Commission of Jurists (ICJ) adopted a Declaration on Reinforcing the Rule of Law last March at its 19th World Congress in Tunis.
The Tunis Declaration (link) stresses that not only are human rights and the Rule of Law indispensable to the betterment of the human condition, but to address such contemporary challenges as catastrophic climate change and the effects of digital technology.
Against these standards, however, the ICJ is concerned at the increasing and serious threats to the Rule of Law and those who defend it around the world, including across Europe.
In Poland, the attacks on the judiciary continue under the guise of disciplinary proceedings against judges who took recourse to EU institutions to defend the Rule of Law.
Hungarian authorities, while pausing their reforms of administrative courts, have not abandoned unjustified restrictions on the judiciary’s independence and on civil society.
Finally, in Turkey, the judiciary continues to have no guarantees in law to guarantee its independent functioning.
Across Central Asia, lawyers may face disciplinary or criminal persecution for discharging their profession independently. For example, in Kazakhstan, Sergey Sizintsev was disbarred on arbitrary grounds for criticizing a problematic reform of the legal profession.
The ICJ urges the Council to give attention to these developments of extreme concern.
Jun 24, 2019 | Advocacy, Non-legal submissions
At the UN, the ICJ today highlighted the rights and duties of judges and prosecutors to exercise their freedoms of expression, assembly and association to defend the rule of law and human rights.
The oral statement was delivered in a Clustered Interactive Dialogue with the Independent Expert on Sexual Orientation and Gender Identity and the Special Rapporteur on the Independence of Judges and Lawyers, at the UN Human Rights Council in Geneva.
It read as follows:
“The International Commission of Jurists (ICJ) welcomes the report of the Special Rapporteur on the Independence of Judges and Lawyers on freedom of expression, association and peaceful assembly of judges and prosecutors.[1]
As the report acknowledges, exercise of these rights can be subject to restrictions arising from the fundamental need for judges and prosecutors to be perceived as independent and impartial. At the same time, as the report also emphasizes, any such restrictions must be provided by law and be demonstrably necessary to such legitimate aims, which in turn crucially requires proportionality.[2] These standards have been recognized both globally and in all regions of the world.[3] Any such restrictions on judges should be adopted and enforced by the judiciary itself.
We particularly welcome the recognition in the report that in situations where democracy and the rule of law are under threat, judges and prosecutors have not only the right, but potentially a duty, to speak out and organize in defence of democracy, the rule of law, and human rights, and that this can include participating in peaceful public demonstrations.[4]
Far too often in the ICJ’s work around the world, we see Executive and Legislative bodies, as well as compromised judicial hierarchies, arbitrarily or selectively targeting judges and prosecutors for removal, demotion or other disciplinary measures, precisely for exercising these rights to defend against threats to the rule of law. Examples highlighted in our submission to your study included Egypt, Morocco, Honduras, Hungary and Bulgaria.[5]
Mr. Rapporteur, how can judiciaries, governments, and civil society organisations (including international or regional legal professional associations) act internationally to support judges and prosecutors who are facing such abuse in another country?
The ICJ also welcomes the reports of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. We urge all States to strongly support the renewal of this essential mandate at the current session.
Thank you.”
[1] ICJ’s detailed submission to the Special Rapporteur’s consultation is available at: https://www.icj.org/judgesexpression2019/
[2] Paragraphs 39, 45, 46, 89.
[3] In addition to the global and European, Asian, and American standards cited in the report, see the African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2005), paras A(4)(s) and (t), and F(d) and (e).
[4] Paragraphs 61, 69, 90, 102.
[5] See for further information: https://www.icj.org/judgesexpression2019/
