Poland: ICJ and Amnesty International intervene before European Court against arbitrary disciplinary proceedings of Judge Igor Tuleya

Poland: ICJ and Amnesty International intervene before European Court against arbitrary disciplinary proceedings of Judge Igor Tuleya

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)

Poland: prosecution must stop arbitrary proceedings against Judge Igor Tuleya

Poland: prosecution must stop arbitrary proceedings against Judge Igor Tuleya

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

 

Poland: treatment of lawyer Roman Giertych undermines independence of legal profession

Poland: treatment of lawyer Roman Giertych undermines independence of legal profession

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)

Poland: ICJ intervenes before European Court in case on Supreme Court’s independence

Poland: ICJ intervenes before European Court in case on Supreme Court’s independence

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)

 

Poland: ICJ and Amnesty International intervene in case of removal from National Judicial Council

Poland: ICJ and Amnesty International intervene in case of removal from National Judicial Council

The ICJ and Amnesty International have presented today a third party intervention before the European Court of Human Rights in the case of the premature dismissal of Judge Waldemar Zurek from his position in the National Judicial Council.

In the case Zurek v. Poland, the ICJ and Amnesty International presented submissions on the scope of application of the right to a fair trial under Article 6.1 of the European Convention on Human Rights (ECHR) in cases relating to the role of an independent judiciary and its members through self-governance mechanisms (such as the National Council of the Judiciary) in light of international standards on judicial councils, judicial appointments, the judicial career and security of tenure; of the Court’s Convention jurisprudence; and of general principles on the rule of law and the role and independence of the judiciary.

They further submitted obervations on the scope of  the right to freedom of expression under Article 10 ECHR as applied to judges, including those engaged in the administration of the judiciary.

ECtHR-AmicusBrief-Zurek_v_Poland-Advocacy-Legal-Submission-2020-ENG (download the third party intervention)

Translate »