Dec 16, 2019 | Agendas, Events, News
Today begins in Ankara (Turkey) a one-day workshop for lawyers and CSO practitioners to discuss and brainstorm on an alternative Justice Reform Strategy.
This event is organized by ICJ, in cooperation with its partners Kapasite Geliştirme Derneği and Human Rights Joint Platform, as part of a EU co-financed project Rebuilding and Ensuring Access to justice with civil society in Turkey.
The workshop aims at discussing the key reforms proposed by the Government of Turkey in its Judicial Reform Strategy and provide with an assessment and an alternative plan for reform based on international standards and jurisprudence on access to justice and the independence of the judiciary.
The workshop will provide presentations on international standards on the judiciary as well as on access to justice for human rights violations. It will produce a ten point strategy document to propose reforms that will uphold the independence of the judiciary and access to justice in Turkey.
The project is funded by the European Instrument for Democracy and Human Rights (EIDHR) of the European Union.
Turkey-Workshop-Agenda-AltJRS-Ankara-2019-eng (download the agenda)
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 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.
Nov 27, 2019
Tunisian authorities must ensure that the process of developing and adopting a Judicial Code of Ethics and Judicial Conduct in the country is inclusive and transparent, said the ICJ in a briefing paper released today in Tunis.
The Code must also align with international standards and be effectively and independently implemented to secure judicial independence and accountability, the memo Tunisia: Judicial Conduct and the Development of a Code of Ethics in Light of International Standards (available in English and Arabic), adds.
In the paper, the ICJ recommends the adoption of a clear, transparent and inclusive procedure for developing and adopting the Judicial Code, and for its content to conform to the UN-endorsed Bangalore Principles of Judicial Conduct.
“Adopting a Code of Ethics and Judicial Conduct is a unique opportunity for Tunisian authorities to bolster judicial independence and restore public confidence in judicial institutions,” said Saïd Benarbia, Director of the Middle East and North Africa Programme at the ICJ.
“The authorities should get both the process and the content right, and ensure that such a code provides detailed guidance to judges on what kind of conduct is expected of them,” he added.
The adoption of a Code of Ethics has the potential to remedy the shortcomings of the current legal framework on judicial independence and accountability.
Organic Law No. 67-29 on the Judiciary, the High Judicial Council and the Statute for Judges, even as modified by Organic Law No. 2013-13, does not adequately or sufficiently provide for the guarantees to uphold judicial individual independence, the criteria and procedures for recusal or disqualification, or the need to avoid use of one’s office for private gain.
This is particularly problematic given that the current disciplinary procedures are inconsistent with international standards and best practices for judicial independence and impartiality, including because of the role of the Minister of Justice in initiating such procedures.
Against this background, the ICJ calls on the Tunisian authorities to:
- Ensure that the Judicial Code is established in law as the basis on which judges will be held to account professionally;
- Ensure that the principles of independence, impartiality, integrity, propriety, equality, competence and diligence are clearly incorporated in the Judicial Code of Ethics in accordance with the Bangalore Principles and other relevant international standards;
- Amend Organic Law No. 67-29 to ensure that judges in Tunisia enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions; instead, in appropriate cases, persons who suffer losses as a result of such improper acts or omissions should be able to make a claim for compensation against the State itself;
- Ensure that the law and the Judicial Code clearly and precisely define the forms of misconduct that may lead to a judge’s discipline;
- Provide, in a manner consistent with independence of the judiciary, for individual judges to be held responsible, through disciplinary or criminal proceedings or both as appropriate, for perpetration of or complicity in violations of human rights, international humanitarian law and for judicial corruption; in this regard clearly prescribe the offences that could give rise to disciplinary liability for such acts or omissions, in line with international law and standards; and
- Ensure, in defining grounds for disciplinary action, that the fundamental rights and freedoms of judges are upheld and respected.
Contact
Saïd Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41.22.979.3817, e: said.benarbia(a)icj.org
Additional information
ICJ Commissioner Martine Comte led the delegation that met with different Tunisian authorities and justice actors this week in Tunis in order to present ICJ’s memo and discuss its findings and recommendations. The ICJ delegation met with Mr. Youssef Bouzeker, President of the Tunisian High Judicial Council, and other senior officials of the Tunisian Ministry of Justice and of the Tunisia Bar Association.
Tunisia-Code of Ethics-Advocacy-Analysis Brief-2016-ENG (full paper, in PDF)
Tunisia-judicial code-news-press release-2019-ARA (full story, Arabic version, in PDF)
Tunisia-Code of Ethics-Advocacy-Analysis Brief-2016-ARA (full paper, Arabic version, in PDF)
Nov 18, 2019
Today, the ICJ and the Human Rights Joint Platform (IHOP) published the briefing paper assessing the reforms proposed in the Judicial Reform Strategy to promote judicial independence.
The briefing paper concludes that any judicial reform will be meaningless if implemented in the context of a judiciary which has been taken control of by the executive.
The lack of institutional independence of the judiciary, and the chilling effect of the mass dismissals of judges in the last years are serious threats to the rule of law. These factors clearly undermine the capacity of the judiciary as a whole to provide an effective remedy for human rights violations, both in regard to measures taken under the state of emergency, and in general.
The new Judicial Reform Strategy should be read against this background. Considering that problems relating to the independence of judiciary in Turkey are structural and that the situation has even further deteriorated due to recent amendments, the ICJ considers that the new Strategy will not be able to achieve its stated objectives unless it is amended or supplemented to address these structural problems.
In their briefing paper, the ICJ and IHOP note the commitment of the Turkish authorities to reform the systems of discipline, transfer, accession, promotion and ethics of judges and prosecutors in line with international standards.
However, these measures are deemed insufficient to restore judicial independence in Turkey without essential further reforms:
- reform of the Council of Judges and Prosecutors,
- reform of the Criminal Peace Judgeships system and
- repeal of Law no. 7145 that still allows for arbitrary dismissals of judges and prosecutors, among other civil servants
- introduction of judicial review for all decisions of the CJP
- introduction of a transparent and fair process of selection and appointment of judges and prosecutors ensuring the independence of the committee and process from the executive.
The briefing paper is a comment on the chapter of the Judicial Reform Strategy on judicial independence and it does not provide a full assessment of the situation of Turkish judiciary for which reference should be had to the ICJ reports Justice Suspended and Justice in Peril.
Download
Turkey-Justice Reform Strat-Advocacy-Analysis brief-2019-ENG (PDF, English)
Turkey-Justice Reform Strat-Advocacy-Analysis brief-2019-TUR (PDF, Turkish)
