Jun 18, 2021 | News
European Union affairs ministers should put the governments of Hungary and Poland on notice that there is no place for attacks on the rule of law in the EU and step up scrutiny of their human rights-abusive policies, the International Commission of Jurists (ICJ), Amnesty International, Human Rights Watch, the International Federation for Human Rights (FIDH), the Open Society European Policy Institute (OSEPI) and Reporters Without Borders (RSF) said today.
Ministers from EU member states meeting in the General Affairs Council session on June 22, 2021 will discuss the situations in Poland and Hungary under the Article 7 procedure. Article 7 is the mechanism provided for in the EU treaty to hold accountable governments whose actions threaten the bloc’s rule of law, human rights, and democratic principles.
“The EU should respond to the critical situation in Hungary and Poland by using the powers available to it under Article 7 TEU to defend human rights and the rule of law. We hope that EU Ministers will finally send a strong signal to Poland and Hungary next week that undermining these values cannot be accepted,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
Resuming hearings on the situations in Hungary and Poland under Article 7 is a strong signal from the Council that violations of EU principles will not go unnoticed within the Union, the organizations said. But EU ministers have a responsibility to make up for the time lost and show readiness to take further action as the situations in both countries continue to deteriorate.
Read the full statement here: euart7june17-ENG-2021
Further information:
The European Commission invoked Article 7 in December 2017 for the first time since its creation in response to the dramatic erosion of judicial independence in Poland by the Law and Justice (PiS) Party government. But the EU Council, consisting of the member states, has not held a formal hearing regarding the situation since September 2018.
The European Parliament triggered article 7 in September 2018 for Hungary because of the repeated deliberate attacks on democratic institutions and human rights by the Fidesz-led government, but the Council has not convened a hearing on the matter since December 2019. EU officials contended that discussions related to Article 7 could not take place during the Covid-19 pandemic, allegedly because EU ministers could not meet in person during this period.
While EU action has stalled Poland’s government has continued to strengthen its grip on the judiciary. Many judges and prosecutors have faced arbitrary disciplinary proceedings for speaking up against problematic judicial reforms. The government has used a politically compromised Constitutional Tribunal to bypass parliamentary objections to its efforts to undermine independent institutions and erode rights across the board. The concerns over the functioning of the Tribunal include, in particular, mishandling of cases by its president and unlawful change in the composition of the already designated hearing benches.
In October 2020, at the behest of the Polish government, the Constitutional Tribunal severely undermined access to sexual and reproductive rights for women in Poland by extending the existing ban on abortion to include cases of “severe and irreversible fetal defect or incurable illness that threatens the fetus’ life”. In April, the government used the same tribunal to discontinue the mandate of the country’s human rights Ombudsman, despite the delays in the appointment of a successor. The government is also using the Constitutional Tribunal to seek decisions on the validity of the Istanbul Convention on preventing violence against women and to try to undermine the binding nature of decisions by the EU Court of Justice on Polish law.
In Hungary, the government used the Covid-19 pandemic as a pretext to intensify its attacks on the rule of law and public institutions, increase executive power, and limit human rights, including the rights to freedom of expression, information and peaceful assembly. Hungary finally abided by the June 2020 EU Court decision by repealing a 2017 law forcing civil society organizations receiving over 20,000 EUR per year in foreign funds to register as foreign-funded. But at the same time the government introduced a new bill requiring the national State Audit Office to conduct annual financial inspections of civil society organizations that report more than around 55,000 EUR, with the risk that it could create a new method to demonize and obstruct the work of watchdog groups. The draft bill leaves untouched the controversial 2018 law criminalizing groups giving assistance to asylum seekers.
In July 2020, the editor-in-chief of Hungary’s largest online independent daily, Index.hu, was fired as a result of a financial takeover of the company controlling its revenues by a person with close links to the country’s ruling party. In September, the Media Council, a broadcast regulator tied to the executive after controversial changes passed early in the decade, revoked the frequency for the independent Budapest radio station Klubradio, forcing it off the air. On June 9, the European Commission opened a new legal proceeding against Hungary on the basis that the decision to take Klubradio off the air was discriminatory and non-transparent.
Civil society groups in Poland, Hungary and elsewhere in the EU have criticized the European Council and European Commission for failing to uphold the bloc’s founding values of respect for human rights and the rule of law in countries that breach them.
In December, the EU established a new mechanism conditioning EU funding upon respect for the rule of law, but both the European Commission and the Council have succumbed to Hungary and Poland’s blackmailing and announced they would not start enforcing the measure until autumn. On June 10, the European Parliament took the European Commission to Court if it further delays the implementation of the mechanism.
European ministers should continue to convene regular hearings on the situations in Poland and Hungary and take all steps available under Article 7 to hold both governments to account for violating the EU’s core values. These should include adopting specific rule-of-law recommendations that Poland and Hungary’s governments should carry out by a set deadline and, absent any concrete steps toward compliance, work toward the required four-fifth vote to determine that there is a clear risk of a serious breach of the values protected by the EU treaty. Such a determination would open up the possibility of sanctions that the Council could adopt, by unanimity, to react to this breach.
For more information please contact:
Karolína Babická, +32475462067, karolina.babicka@icj.org
Jan 15, 2021 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International have submitted today to the European Court of Human Rights their intervention in the case of Judge Igor Tuleya who alleges that the seven disciplinary proceedings brought against him have affected his reputation as a judge and undermine the authority of the judiciary.
Judge Igor Tuleya contests that the disciplinary proceedings brought against him were in violation of his right to respect for private life and of his right to an effective remedy against violation of human rights.
The case takes place in the context of the “reform” of the judiciary in Poland, involving policy measures and legislative changes approved between late 2015 and 2020, which have seriously compromised the independence of the judiciary.
The intervention focuses on three main issues:
- The scope of application of Article 8 and Article 13 in cases relating to disciplinary proceedings against judges, in light of international standards on disciplinary proceedings and measures and effective domestic remedies; of the Court’s Convention jurisprudence; and of general principles on the rule of law and the role and independence of the judiciary.
- The situation of the independence of the judiciary in Poland as the context in which to assess the application of Articles 8 and 13.
- The scope of Article 10 as applied to judges, including those engaged in the administration of the judiciary.
ECtHR-AmicusBrief-Tuleya_v_Poland-Advocacy-Legal-Submission-2020-ENG (download the third party intervention)
Nov 17, 2020 | News
The ICJ today denounced the renewed threat of criminal proceedings by prosecutorial authorities against Judge Igor Tuleya on charges arising from the judge’s independent exercise of his judicial functions, as his case is appealed before a panel of the Supreme Court Disciplinary Chamber.
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’s immunity should be maintained. Actually he should not face any criminal proceedings to begin with as its decisions were in accordance with the law and the principles of transparency and public trials,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme.
“His case is a further demonstration of the relentless attacks against the independence of judges ongoing in Poland.”
The Disciplinary Chamber, in a single-judge formation, upheld Judge Tuleya’s immunity on 9 July but the prosecution appealed the ruling that will be now decided by the same Chamber before a three-judge panel, Tomasz Przelawski, Slawomis Niedzielak and Jaroslaw Sobutka.
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 has given competence to waive judicial immunity to the Disciplinary Chamber of the Supreme Court.
“Immunity claims against a judge should be decided only by an independent body,” Massimo Frigo added.
“As EU Court of Justice held, 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 this case.”
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 was rejected on 9 June 2020 by the Disciplinary Chamber of the Supreme Court appointed by the government, in a single-judge formation. The Prosecutor’s Office appealed the ruling. The case will be now considered by the same Disciplinary Chamber in a three-judge formation. A first hearing was scheduled for 5 October 2020 but was postponed. It will take place on 18 November.
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 797499949
Nov 16, 2020 | Advocacy
On 15 October 2020, Polish lawyer Roman Giertych was detained by the Central Anticorruption Bureau (CBA) on accusations of money laundering. His house and office were searched and prosecutors imposed preventive measures, including suspension of his right to practice law.
Lawyers for Lawyers, the ICJ and the Amsterdam Bar Association are concerned that the manner in which these measures were taken is inconsistent with international standards on the independence of the legal profession.
Roman Giertych has worked on a series of high-profile cases against the governing Law and Justice party. He has also represented various prominent opposition figures, including Donald Tusk, the former Polish prime minister and head of the Civic Platform opposition party, and former president of the European Council.
Mr. Giertych’s arrest happened one day before the scheduled detention hearing in another politically significant high-profile case, concerning Leszek Czarnecki, in which Roman Giertych was appointed as defence counsel.
According to the information available to Lawyers for Lawyers (L4L), the ICJ and the Amsterdam Bar Association, Mr. Giertych was arrested merely to serve him with charges. He was not given a chance to appear voluntarily.
On 22 October 2020, Mr Giertych’s defense lawyers filed four complaints with the court about the actions of the Poznań prosecutor’s office relating to his arrest and the search of his home and office.
Professional lawyers’ associations such as the National Council of Attorneys-at Law, the Association of Attorneys-At-Law “Defensor Iurius”, the Polish Bar Council and the Council of the Warsaw Bar Association of Advocates have expressed “great concern” about Mr. Giertych’s detention, the search of his house and office, and the preventive measures that were taken against Mr. Giertych.
Lawyers for Lawyers, the ICJ and the Amsterdam Bar Association are concerned about the circumstances of Mr. Giertych’s arrest, in particular the fact that the arrest seems to have only been made in order to present him with charges.
L4L, ICJ and the Amsterdam Bar Association are also concerned by the fact that the searches of his house and office were conducted without proper safeguards of attorney-client privilege and by the suspension of Mr. Giertych’s right to practice his legal profession by a public prosecutor. We will continue to monitor the case of Mr. Giertych closely.
Download
Poland-Roman Giertych-Advocacy-2020-ENG (full statement with additional information, in PDF)
Nov 2, 2020 | Advocacy, Cases, Legal submissions
The ICJ submitted today a third party intervention to the European Court of Human Rights in a key case challenging the independence of the Disciplinary and Extraordinary Chambers of Poland’s Supreme Court.
In the case of Reczkowicz and Others v. Poland, the European Court of Human Rights will consider whether the recently established Disciplinary and Extraordinary Chambers of the Supreme Court of Poland may be considered an “independent and impartial tribunal” in order to satisfy the requirements of the right to a fair trial under article 6 of the European Convention on Human Rights (ECHR).
In its third party intervention, the International Commission of Jurists has submitted that a court cannot be considered as independent whenever the body that has appointed its members lacks guarantees of independence from the executive and legislative powers as enshrined in standards of the Council of Europe and the United Nations, including that at least half of its members be judges elected by their peers.
It further concluded that a court composed by judges appointed by a non-independent body or via a non-independent procedure will not be capable of constituting an independent and impartial tribunal under article 6 ECHR.
Poland- ECtHR-Reczkowicz and Others v Poland – TPI – ICJ – 2020 -ENG (download the third party intervention)
