Dec 18, 2019 | News
The ICJ called today on the Polish House of Representatives (Sejm) to drop a draft law that would put judges at risk of disciplinary action for their interpretation and application of the law, including EU and international law.
The draft law would also mean that judges would face disciplinary penalties for legitimate criticism of judicial reforms.
“The Polish Parliament should reject these proposals which would place intolerable constraints on judges in interpreting and applying the law and would undermine their freedom to speak out on vital issues of judicial independence,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“Elements of the proposals appear designed to prevent judges from fulfilling their obligation under the EU treaties to apply EU law, which is an attack on the independent exercise of their judicial function” she added.
Under the proposals, judges would face disciplinary action and possible dismissal for refusing to apply a legal provision, unless it had been deemed unconstitutional by the Constitutional Tribunal.
This proposal appears to be a direct reaction to a recent decision of the Labour Chamber of the Supreme Court which, applying a ruling of the Court of Justice of the EU, held that the Supreme Court’s Disciplinary Chamber was not an independent court. The Labour Chamber found that that the Disciplinary Chamber is not independent since its judges are appointed by the National Council of the Judiciary (NCJ). Following a recent constitutional reform, the NCJ is composed predominantly of members elected by Parliament and the executive, contrary to international standards on the independence of the judiciary.
New disciplinary offences for judges under the draft law would also include questioning the status of Polish judges, and “political engagement”. Judges would be prohibited from questioning the status of Polish courts or tribunals or constitutional organs. Futhermore, the draft law would prevent judges’ associations from adopting resolutions “expressing hostility towards other powers of the Republic of Poland and its constitutional organs”.
These provisions would hamper judges’ capacity to criticize reforms which have led to questionable judicial appointments by the NCJ and have seriously damaged the independence of the judiciary as a whole. International human rights law and international standards on the judiciary recognise that judges have a right to freedom of expression and that they have a particularly important role in contributing to discussions on issues of the functioning of the judicial system and the rule of law.
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.”
The UN Basic Principles on the Independence of the Judiciary clarify that all governmental and other institutions must respect and observe the independence of the judiciary (Principle 1), and that judges must decide all matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect (Principle 2). Judges can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).
The UN Basic Principles, also affirm the freedom of expression and association of judges (Principle 8) in line with protections under international human rights law, and their right to form and join associations of judges to represent their interests (Principle 9).
In recent years, the Polish executive and legislative authorities have systematically undermined the independence of the judiciary in the country, including through laws that have sought to force the dismissal of judges by lowering the mandatory retirement age. In addition, they have brought the appointment of judges under political control by re-structuring the National Council of the Judiciary (NCJ), with a majority of its members selected by the Polish Parliament. (see ICJ statement)
This move has also politicized the Disciplinary Chamber of the Supreme Court, whose members are selected by the NCJ, and the disciplinary court of first instance. In October 2019, the European Commission referred Poland to the CJEU on the grounds that the new disciplinary regime for judges undermines their independence.
In June 2019, the Court of Justice of the European Union (CJEU) held that the Polish Law on the Supreme Court lowering the retirement age of judges of the Supreme Court and providing discretionary power to the President to allow a judge to remain in office following the mandatory retirement date was contrary to the principle of effective judicial protection and therefore in violation of EU law. In November 2019, the CJEU held that Poland violated the independence of the judiciary by lowering in 2017 the pension age of Polish judges and giving the power to maintain them in office to the Minister of Justice.
The ICJ has documented, and the UN Special Rapporteur on independence of judges and lawyers has affirmed, that the right of judges to freedom of expression is particularly protected when in situations where the rule of law or constitutional order is under threat, they speak out in defence of the independence of the judiciary.
Contacts:
Róisín Pillay, Director for Europe and Central Asia Proramme, t: +32 2 734 84 46; e: roisin.pillay(a)icj.org
Massimo Frigo, Senior Legal Adviser of the ICJ Europe and Central Asia Programme, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
Dec 16, 2019 | Events, News
On 16 and 17 December, the International Commission of Jurists (ICJ) in cooperation with the Tajikistan Bar Association (Tajikistan Union of Lawyers) and the Legal Policy Research Centre (LPRC) is organising a seminar “The Role of the Bar Association in ensuring security of lawyers”.
During the two-day event, lawyers from across Tajikistan as well as members of the specialised bodies on the rights of lawyers of bar associations Kazakhstan and Ukraine will discuss key main challenges lawyers face in their countries when defending their clients.
Regular attacks on independent lawyers as well as effective ways of addressing cases of harassment, intimidation and other interference by the Bar Association and its specialised bodies will be discussed during the first day of the event. During the second day, the participants will elaborate a strategy of development for protection of lawyers in Tajikistan.
The president of the Bar Association of Tajikistan as well as all members of the Commission on the Professional Rights of Lawyers of the Bar Association of Tajikistan will take part in the event.
The ICJ expresses appreciation to the Ukrainian National Bar Association for the participation in the event.
The agenda of the event here.
Dec 15, 2019 | Advocacy, Non-legal submissions
The ICJ has urged the UN Special Rapporteur on Independence of Judges and Lawyers to ensure that his upcoming report on challenges to the independence of prosecutors, fully addresses abuse of prosecution powers to target human rights defenders, political opponents or others, or giving rise to a more general and systemic lack of fair trial for accused persons, or entrenching impunity of State perpetrators of human rights violations, as among the dominant contemporary challenges to prosecutorial independence globally from a human rights perspective.
The Special Rapporteur has made clear his intention to address challenges to prosecutorial independence arising from transnational corruption and organized crime. While the ICJ certainly agrees that such interference can and does have impacts on human rights, to varying extents around the world, the ICJ submission also highlights and documents that threats to prosecutorial independence emanating from the prosecutor’s own Executive government should be seen to be of at least equal concern from a human rights perspective, globally, and should be fully addressed in any report on “contemporary challenges of prosecutorial independence” from a human rights perspective.
The ICJ’s submission can be downloaded in PDF format here: UN-Advocacy-SRIJLProsecutors-2019
Dec 10, 2019 | News
The ICJ mourns the loss of Professor Pedro Nikken, former President and Commissioner of the ICJ. Prof Nikken was elected ICJ President in January 2011, succeeding Mary Robinson (2008-2010) and followed by Nigel Rodley (2012-2017).
“Pedro Nikken left a tremendous legacy of respect for the rule of law and defense of human rights in his homeland of Venezuela, across Latin America and around the world,” said Prof Robert Goldman, the ICJ’s President.
“ Like so many others, I have lost a cherished friend and mentor whose company I will greatly miss,” he added.
Prof Nikken was a former Judge (1979-1989) and President (1983-1985) of the Inter-American Court of Human Rights. He served as UN Independent Expert on El Salvador from 1992 to 1995 and from 1990-1992 he served as Legal Adviser to the UN Secretary-General on El Salvador’s peace process.
In 1995 he served as Special Envoy of the UN Secretary-General to Burundi. He is former Dean and Professor (emeritus) at the Law School of the Universidad Central de Venezuela.
He was also former President and Permanent Counselor of the InterAmerican Institute of Human Rights. He was a Member (Chair N° 9) of the Venezuelan National Academy of Political and Social Sciences.
“Prof Nikken helped drive the ICJ’s work in pursuit of justice and accountability, particularly through regional human rights systems such as the Inter American Court of Human Rights, even as various governments tried to weaken the process and evade responsibility,” said Sam Zarifi, ICJ Secretary General.
“Pedro was indefatigable as a human rights defender and unsurpassed in the quality of his legal analysis, a rare combination of qualities that made him a role model for several generations of human rights lawyers around the world,” he added.
Pedro Nikken was born in Caracas, Venezuela in 1945. He graduated in 1968 from the Andres Bello Catholic University and obtained a diploma of higher studies in law at the Pentheon-Assas University (Paris II) and a doctorate in law from the University of Carabobo.
Dec 6, 2019 | News
The ICJ calls on the Polish authorities to put an immediate end to unjustified disciplinary proceedings initiated against judges, including Krystian Markiewicz, Chairperson of the Polish Judges’ Association “Iustitia”.
The ICJ considers that the disciplinary action against Judge Markiewicz’ was initiated because of his questioning of the Polish government’s “reforms” that have severely eroded the independence of the judiciary in Poland.
“The disciplinary action taken against Judge Markiewicz for his criticism of the government’s attack on judicial independence violates international standards on the independence of the judiciary and should be ended immediately”, said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
“Judges have a right to freedom of expression and to form and take part in associations of judges. They have a particularly important role in speaking up to defend the rule of law and the independence of the judiciary, which is undermined by arbitrary disciplinary proceedings such as those against Judge Markiewicz”, she added.
By order of the Deputy Disciplinary Commissioner of the ordinary court judges, on 4 December, disciplinary proceedings alleging 55 instances of misconduct were initiated against Judge Krystian Markiewicz. These include: inciting disrespect for Poland’s legal order by questioning the independence and legality of the National Council of the Judiciary (NCJ), and the constitutionality of the Disciplinary Chamber of the Supreme Court; and calling for appeals to the Disciplinary Chamber to be suspended.
The disciplinary action against Judge Markiewicz comes within a week of the decision to suspend with immediate effect district Judge Paweł Juszczyszyn, who, in presiding over an appeal, questioned the impartiality of the judge who had delivered the original verdict as a result of being elected by the National Council for the Judiciary. On 1 December 2019, the Polish Judges’ Association Iustitia organized rallies in support of Judge Juszczyszyn.
The ICJ stresses that such actions taken against judges are inconsistent with the duties of all branches of the State to respect and protect the independence of the judiciary. The ICJ calls for Judge Juszczyszyn to be immediately re-instated in his post.
On 4 December 2019, the labour law chamber of the Supreme Court, in implementation of a recent ruling of the Court of Justice of the UE, held that the NCJ is not an impartial and independent body, and that the disciplinary chamber of the Supreme Court is not a “court” under EU or Polish law, thereby confirming the concerns raised by both Judge Juszczyszyn and Judge Markiewicz.
Background
The UN Basic Principles on the Independence of the Judiciary clarify that all governmental and other institutions must respect and observe the independence of the judiciary (Principle 1), and that judges must decide all matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect (Principle 2). Judges can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).
In recent years, the Polish executive and legislative authorities have systematically undermined the independence of the judiciary in the country, including through laws that have sought to force the dismissal of judges by lowering the mandatory retirement age. In addition, they have brought the appointment of judges under political control by re-structuring the National Council of the Judiciary (NCJ), with a majority of its members selected by the Polish Parliament. (see ICJ statement)
This move has also politicized the Disciplinary Chamber of the Supreme Court, whose members are selected by the NCJ, and the disciplinary court of first instance. In October 2019, the European Commission referred Poland to the CJEU on the grounds that the new disciplinary regime for judges undermines their independence.
In June 2019, the Court of Justice of the European Union (CJEU) held that the Polish Law on the Supreme Court lowering the retirement age of judges of the Supreme Court and providing discretionary power to the President to allow a judge to remain in office following the mandatory retirement date was contrary to the principle of effective judicial protection and therefore in violation of EU law. In November 2019, the CJEU held that Poland violated the independence of the judiciary by lowering in 2017 the pension age of Polish judges and giving the power to maintain them in office to the Minister of Justice.