Oct 25, 2018
In a memorandum published today, the ICJ called on the Lebanese authorities to introduce comprehensive reforms to enhance the independence and impartiality of the administrative courts system, in particular by divesting the executive of any role in the selection, appointment and disciplining of administrative judges.
“The Lebanese authorities must set out transparent procedures for the selection and appointment of administrative judges, including in senior judicial positions,” said Said Benarbia, ICJ MENA Director.
“While such appointments should in principle seek to reflect the diversity of the Lebanese society as a whole, including its various religious groups, they must be based on objective criteria, including legal qualifications, skills, experience and integrity,” he added.
The power to take decisions relating to the management of judges’ careers, including promotions, transfers, and disciplinary proceedings, should be exclusively reserved to the State Council Bureau once the framework governing its composition and mandate is reformed.
The Lebanese authorities should ensure that the State Council Bureau is independent and consists of a majority of judges who are elected by their peers from the State Council and, once they are established, from first instance administrative courts.
The membership of the State Council Bureau should also reflect a gender balance.
The Lebanese authorities should also amend the Statute of the State Council with a view to enhancing the individual independence of administrative judges.
“The conditions for the transfer, assignment or secondment of administrative judges should be clearly defined in the law and the entire process must not compromise judges’ individual independence, including through the use of secondment as a reward for judges,” Benarbia said.
The ICJ is also concerned that the disciplinary system does not fully conform to international standards and has the potential to compromise judges’ individual independence.
The Lebanese authorities must rescind the powers of the Ministry of Justice in relation to the disciplinary procedure, including the authority to initiate disciplinary investigations and to refer matters to the Disciplinary Council.
“Disciplinary offences must be clearly and precisely defined within the law and related procedures must guarantee judges’ rights to a fair hearing before an independent and impartial body, including the right to have decisions and sanctions reviewed by a higher judicial body,” Benarbia added.
Contact:
Said Benarbia, Director of ICJ’s Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Lebanon-Memo re Court Reform-Advocacy-Analysis Brief-2018-ENG (Memo in English, PDF)
Lebanon-Memo Courts System launch-New-2018-ARA (Story in Arabic, PDF)
Lebanon-Memo Court Reform-Advocacy-Analysis Brief-2018-ARA (Memo in Arabic, PDF)
Oct 19, 2018 | News
The ICJ welcomes the interim measures prescribed today by the Court of Justice of the EU as a necessary step in stemming the evident erosion of the rule of law in Poland.
The Court provisionally ordered Poland to preserve the composition of its Supreme Court of 3 April 2018, before a law forcing into retirement a third of the Court’s members entered into force.
The ICJ urges the Polish authorities to comply with the EU Court order by maintaining in office the Supreme Court judges .
“In accordance with today’s court’s order, Polish authorities should immediately rescind all measures taken since April 2018 that modify the composition of the Supreme Court. They are obliged to do this under EU law as it is binding on Polish authorities and by the fundamental principle of the rule of law that decisions of the judiciary must be respected and implemented.” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
On 10 October, President Andrzej Duda appointed 27 judges to the Supreme Court in place of those forcibly “retired” last July. The ICJ condemned this act of the President of Poland because it contravened an order of the Supreme Court suspending the law under which these appointments were made, pending a decision by the EU Court. Critically, the mass and forced retirement of sitting judges before the end of the established terms of tenure undermines their security of tenure, a key principle regarding the independence of the judiciary.
Background
The independence of the judiciary in Poland has been systematically undermined by the Polish executive and legislative authorities.
Earlier this year Poland issued a new law on the Supreme Court that attempts to force the “retirement” of one third of the Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65. This measure clearly contravenes international human rights law and standards.
The European Commission has launched an infringement procedure for lack of compliance of this law with EU law.
In the absence of satisfactory reforms by Poland, on 24 September, the Commission referred Poland to the Court of Justice of the European Union (CJEU) and asked for interim measures to restore Poland’s Supreme Court to its situation before 3 April 2018. Today’s decision by the Court of Justice granted this interim measures request.
At the same time, the Supreme Court of Poland submitted a preliminary ruling request to the CJEU seeking its interpretation on the compliance of the legislation on retirement ages of judges with EU law, in particular with the prohibition of discrimination on grounds of age under Directive 2008/78.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Oct 11, 2018 | News
The ICJ today condemned the appointment by President Andrzej Duda of 27 judges to the Supreme Court in place of those forcibly “retired” last July.
“These appointments are patently illegitimate and deal a severe blow to the rule of law in Poland,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
The new appointments purport to replace the Supreme Court Justices including President of the Supreme Court Małgorzata Gersdorf, whose forced “retirement” is in clear violations of international standards on the security of tenure and independence of judges.
The decision of the President is even more concerning since it contravenes an order of the Supreme Court suspending the law under which these appointments were made, pending a decision by the Court of Justice of the European Union.
It is a fundamental tenet of the rule of law and principles on the independence of the judiciary that the executive respect decisions duly made by the judiciary.
“In announcing these appointments now, while cases on the forced retirement of Supreme Court judges are still pending at the EU Court, President Duda has disregarded the proceedings of the EU’s apex judicial body,” Róisín Pillay added.
The ICJ considers that the legality of the appointments of the new judges is further compromised by the role played by the now politicized National Council for the Judiciary, whose independence and impartiality has been seriously compromised following recent legislative amendments.
The ICJ urges the Polish authorities to cease all interference with the Supreme Court in carrying out its legitimate functions, and to reverse the measures taken to force the retirement of Supreme Court judges.
Background
This attack against the actions of the Supreme Court occurs amid a systematic undermining of the independence of the judiciary in Poland by the Polish executive and legislative authorities, which attempt to increase political influence in the judiciary and which the ICJ has repeatedly condemned.
Earlier this year Poland issued a new law on the Supreme Court that attempts to force the “retirement” of one third of the Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65. This measure clearly contravenes international human rights law and standards.
The European Commission has launched an infringement procedure for lack of compliance of this law with EU law.
In the absence of satisfactory reforms by Poland, on 24 September, the Commission referred Poland to the Court of Justice of the European Union (CJEU) and asked for interim measures to restore Poland’s Supreme Court to its situation before 3 April 2018.
At the same time Supreme Court of Poland submitted a preliminary ruling request to the CJEU seeking its interpretation on the compliance of the legislation on retirement ages of judges with EU law, in particular with the prohibition of discrimination on grounds of age under Directive 2008/78.
Following the jurisprudence of the CJEU, the Supreme Court suspended the effect of national law on the forcible retirement of the judges.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Oct 11, 2018 | Nouvelles
La CIJ a condamné aujourd’hui la nomination par le président Andrzej Duda de 27 juges à la Cour suprême en remplacement de ceux qui ont été mis «à la retraite forcée» en juillet dernier.
«Ces nominations sont manifestement illégitimes et portent gravement atteinte à l’état de droit en Pologne», a déclaré Róisín Pillay, directrice de programme de la CIJ pour l’Europe et l’Asie centrale.
Les nouvelles nominations visent à remplacer les juges de la Cour suprême, y compris la présidente de la Cour suprême, Małgorzata Gersdorf, dont la «retraite forcée» constitue une violation flagrante des normes internationales relatives à la sécurité du mandat et à l’indépendance des juges.
La décision du président est d’autant plus préoccupante qu’elle enfreint une décision de la Cour suprême suspendant la loi en vertu de laquelle ces nominations ont été faites, dans l’attente d’une décision de la Cour de justice de l’Union européenne.
L’un des principes fondamentaux de l’état de droit et des principes relatifs à l’indépendance du pouvoir judiciaire est que l’exécutif respecte les décisions dûment prises par le pouvoir judiciaire.
«En annonçant ces nominations maintenant, alors que des cas relatifs à la retraite forcée de juges de la Cour suprême sont toujours pendants à la Cour européenne, le président Duda a ignoré les procédures de l’instance judiciaire suprême de l’Union européenne», a ajouté Róisín Pillay.
La CIJ considère que la légalité de la nomination des nouveaux juges est d’avantage compromise par le rôle joué par le Conseil national de la magistrature, désormais politisé, dont l’indépendance et l’impartialité ont été gravement compromises par les récentes modifications législatives.
La CIJ exhorte les autorités polonaises à cesser toute ingérence envers la Cour suprême dans l’exercice de ses fonctions légitimes, et à inverser les mesures prises de contraindre les membres de la Cour suprême à prendre leur retraite.
Contexte
Cette offensive contre les agissements de la Cour suprême a lieu dans le cadre d’un travail de sape systématique de l’indépendance du pouvoir judiciaire en Pologne par les autorités exécutives et législatives polonaises, dans le but d’accroître leur influence politique sur le pouvoir judiciaire, ce que la CIJ a maintes fois condamné.
Plus tôt cette année, la Pologne a adopté une nouvelle loi sur la Cour suprême qui tente de contraindre un tiers des juges à la Cour suprême « à prendre leur retraite », y compris son Premier président, en abaissant l’âge de la retraite obligatoire de ses juges de 70 à 65 ans. Cette mesure contrevient clairement au droit et aux standards internationaux relatifs aux droits de l’Homme.
La Commission européenne a lancé une procédure d’infraction pour non-conformité de cette loi avec le droit européen.
En l’absence de réformes satisfaisantes de la part de la Pologne, la Commission a saisi la Cour de justice de l’Union européenne (CJUE) le 24 septembre et a demandé des mesures provisoires pour rétablir la Cour suprême de ce pays dans sa situation antérieure au 3 avril 2018.
Au même moment, la Cour suprême de Pologne a adressé à la CJUE une demande de décision préliminaire visant à obtenir son interprétation sur la conformité de sa législation sur l’âge de la retraite des juges au regard du droit européen, en particulier en ce qui concerne l’interdiction de la discrimination basée sur l’âge, et ce en vertu de la Directive 2008/78. .
Conformément à la jurisprudence de la CJUE, la Cour suprême a suspendu l’application du droit national sur la retraite forcée des juges.
Une lettre de la CIJ du 11 juillet 2018 (uniquement disponible en anglais), signée par 22 hauts magistrats de toutes les régions du monde, a exhorté le gouvernement polonais à agir immédiatement pour réintégrer les juges mis de force à la retraite.
Oct 3, 2018 | News
Today, the ICJ expressed concern at ongoing criminal proceedings against Mikhail Benyash, a lawyer practicing in Russia, who is charged with use of force against the police and impeding justice.
The lawyer has been detained until 23 November. The ICJ called on the responsible authorities to drop any criminal charge relating to his conduct of professional duties in the courtroom, and to ensure that the lawyer’s rights are protected and that allegations of his ill-treatment are fully investigated.
Benyash alleges that following his apprehension by the police on 9 September, the police beat him up in the car. According to the police report he inflicted the injuries on himself, contrary to demands of the police that he stop doing so.
He was charged with disobedience to the police, which according to the police report was due to “the fact that the police asked Benyash not to injure himself, but he continued self-beating”. Benyash was convicted and sentenced to 14 days of imprisonment and 40 hours of correctional works.
On 23 September, the day of his release, Benyash was arrested again. He was charged with two further offences: violence against a representative of authority (Criminal Code Article 318(1)) based on an allegation, seemingly not raised at the time of his earlier charge and conviction in relation to the same incident, that in the course of his arrest on 9 September he allegedly bit a police officer and hit another.
On 23 September he was also charged with obstruction of justice (Criminal Code Article 294(1)), reportedly on the basis of an allegation that in a court hearing on 6 May 2018, Benyash had “repeatedly interrupted, gave instructions and objections to the decisions of the judge” and after he had been removed from the courtroom “continued unlawful behaviour”.
According to the lawyer, he was taken out of the courtroom by force due to his motions to allow certain members of the public to be present at the open hearing.
The ICJ is concerned that the criminal obstruction charge against Mikhail Benyash appears to relate at least in part to statements he made in court in the course of carrying out his professional duties of representation of his clients.
The fact that this charge was only laid following his recent arrest, some five months after the alleged incident occurred, also raises questions as to the motivation for bringing the charge forward now.
“Benyash is currently charged on account of his alleged attack on a police officer and obstruction of justice. While the first charge requires an impartial and independent inquiry, the second charge should be of concern to the entire lawyers’ community”, said Karinna Moskalenko, ICJ honorary member. “We fear that this may lead to lawyers in Russia being charged with obstruction of justice simply for actively expressing their position and objections in accordance with the procedure prescribed by law”, she added.
Furthermore, the ICJ emphasises that under international human rights law, states have obligations to investigate allegations of treatment that may amount to torture or inhuman or degrading in violation of Article 3 of the European Convention on Human Rights, as well as other international law norms binding on the Russian Federation.
The investigative authorities have duty to investigate allegations of ill-treatment of the lawyer by police following his arrest on 9 September promptly, effectively and impartially and any persons responsible should be brought to justice.
Read the ICJ’s full statement here: Russia-Statement on Benyash-News-Web Story-2018-ENG
