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 16, 2020 | Advocacy, News
Today, the ICJ calls on the Ukrainian authorities to abandon a draft law which would dismiss the judges of the Constitutional Court of Ukraine, as a means of retaliation for a decision adopted by the Court and in order to circumvent the decision.
The authorities should also refrain from any other actions, including harassment of judges, which undermine the independence of the Constitutional Court.
“This draft law constitutes a direct attack on the ability of the judiciary to exercise its functions independently. It is incompatible with basic principles of the rule of law and the separation of powers, and with international standards on the independence of the judiciary,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“By the nature of their role, the judiciary, and especially constitutional courts may be required to decide on controversial matters. It is however essential that particularly in such cases, courts are able to operate without fear of retaliation or repression for the decisions they take,” she added.
The draft law on Restoring Public Confidence in the Constitutional Court, submitted by President Zelensky to the Ukrainian Parliament (Verkhovna Rada), aims to pronounce a decision of the Constitutional Court on anti-corruption legislation “void” and without legal consequences.
This runs contrary to the Ukrainian Constitution according to which “[d]ecisions and opinions adopted by the Constitutional Court of Ukraine shall be binding, final and may not be challenged” (Article 151-2).
The draft law would terminate the mandate of the judges of the Constitutional Court, in contravention of the Constitution of Ukraine as well as basic principles of independence of the judiciary, governing appointments, dismissal and security of tenure of judges.
The draft law provides that the powers of the Constitutional Court of Ukraine in force at the time of the decision on the anti-corruption law would be terminated from the date of entry into force of the law.
According to the explanatory note to the Draft Law, one reason the adoption of the law would be justified is because there had not been a “proper substantiation” of its judgment on the anti-corruption law. The note alleges that Court’s decision was adopted in the private interests of judges of the Constitutional Court of Ukraine, that its proper substantiation was not provided and that it contradicts the principle of the rule of law and denies the European and Euro-Atlantic choice of the Ukrainian people. The ICJ considers these allegations are inappropriate as they directly interfere with the judicial function of the Constitutional Court of Ukraine, contrary to the national legislation and international law on the independence of the judiciary.
On 2 November 2020, Oleksandr Tupitsky, the President of the Constitutional Court was summoned for interrogation by the State Investigation Bureau in connection with allegations against him of committing crimes as part of an organized group. The ICJ fears that this may be a form of pressure in relation to the Constitution Court’s decision.
Following these incidents, the Constitutional Court has stopped working as four of the judges refuse to take part in its sessions. The Court therefore lacks the necessary quorum to operate.
The ICJ calls on Ukraine to withdraw the draft law, and to refrain from any further reprisals against judges for their decisions.
Download
Ukraine-draft law constitutional court-News-ENG-2020 (full statement with background information)
Nov 12, 2020 | News
The ICJ, the Cairo Institute for Human Rights Studies (CIHRS), the Defender Center for Human Rights (DCHR), Lawyers for Justice in Libya (LFJL) and the Libyan Women’s Platform for Peace (LWPP) have issued today a joint statement on the assassination of lawyer and political activist Hanan al-Barassi .
The undersigned human rights groups are appalled by the assassination of lawyer and political activist Hanan al-Barassi in Benghazi on 10 November 2020, and call on the competent authorities to launch an independent, impartial and effective investigation into the killing and bring those responsible to justice through fair trials.
On 10 November, a group of unknown armed men shot al-Barassi in Benghazi city centre in broad daylight. Al-Barassi was known for her political engagement and criticism of the human rights violations and abuses and corruption allegedly committed by authorities in Eastern Libya and their affiliated militias. Al-Barassi was active on social media, and often posted videos on Facebook in which she criticised the Libyan Arab Armed Forces (LAAF). Her last video was posted a few hours before her killing.
Al-Barassi’s murder follows a disturbing pattern in recent years of violent attacks against prominent women activists who are critical of the authorities and affiliated militias. In June 2014, gunmen assassinated prominent human rights activist and lawyer Salwa Bugaighis. This was followed by the killing of former Derna Congress member Fariha Al-Berkawi on 17 July 2014, and human rights activist Entisar El Hassari on 24 February 2015. Women’s rights defender and member of the Tobruk-based House of Representatives Seham Sergiwa was abducted from her home by armed men on 17 July 2019, and her whereabouts remains unknown.
The failure of Libyan authorities to effectively investigate these attacks, despite public commitments to do so, has created an environment of impunity, in which women are frequently targeted, both online and offline, with threats, smear campaigns and violence for their political or human rights views. Al-Barassi’s assassination is also a stark demonstration of how online violence against women can carry over to have lethal consequences on the ground.
Such atrocities are prevalent in Libya today. The pattern of violence including enforced disappearances and assassinations of activists, human rights defenders, judges and journalists across the country is alarming, and will only continue in the absence of any effective, independent and impartial investigations. Addressing these crimes by holding the perpetrators to account must be a priority, including within any political process.
Al-Barassi’s killing has taken place as the Libyan Political Dialogue Forum (LPDF) continues talks aimed at ending the conflict and preparing for national elections, underscoring the importance of ensuring accountability and justice in the country. There can be no meaningful democratic transition in Libya until the basic security and human rights of the population are guaranteed.
Given the absence of any real commitment to effectively investigating ongoing crimes under international law being committed in Libya, the newly established Independent Fact-Finding Mission (FFM) on Libya must be urgently provided with the necessary resources to begin its investigations and preserve evidence without delay. We urge the Libyan authorities to fully cooperate with the FFM, and UN Member States to swiftly provide the needed support and adequate resources.
Signatories
- International Commission of Jurists (ICJ)
- Cairo Institute for Human Rights Studies (CIHRS)
- Defender Center for Human Rights (DCHR)
- Lawyers for Justice in Libya (LFJL)
- Libyan Women’s Platform for Peace (LWPP)
Find the Joint Statement in Arabic and English here:
Lybia-Hanan_Albarassi -JointStatement-2020-ARA
Lybia-Hanan_Albarassi -JointStatement-2020-ENG
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)
