Jul 12, 2017 | News
The ICJ is alarmed at ongoing attacks on the rule of law in Poland.
On 12 July 2017, the Government tabled in Parliament draft bill no. 1727, that, if approved, would automatically dismiss all judges of the Supreme Court and let the Minister of Justice decide which judges are to be reinstated or newly appointed.
“This draft law is a direct blow to the principle of separation of powers, the bedrock of the rule of law,” said Massimo Frigo, Legal Adviser with the ICJ Europe Programme.
“The security of tenure and conditions of service of individual judges are essential to judicial independence,” he added.
Draft bill no. 1727 follows another piece of legislation, recently approved by Parliament, by which the Parliament empowered itself to appoint the majority of the members of the National Council of the Judiciary, the body which selects and governs the judiciary.
That law gives political powers in the Polish legislature and executive, which have increasingly demonstrated deep disregard for human rights and the rule of law, undue influence over the judiciary.
Such deficiencies were also highlighted by the Office for Democratic Institutions and Human Rights of the OSCE in May 2017.
“These series of legislative attacks to the independence of the judiciary in Poland must stop. These actions are inconsistent with the international obligations of Poland to ensure the independence of judges,” said Massimo Frigo.
“The European Union must intervene. A EU Member State that directly undermines the checks and balances of its own legal system threatens the founding values of the EU of the rule of law and respect for human rights,” he added.
Contact
Massimo Frigo, ICJ Legal Adviser, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
International standards
Particularly in a context like present day Poland, mass removal of all judges from a court, by another branch of government, without a fair and evidence-based individual process for each judge, is incompatible with international standards such as the UN Basic Principles on the Independence of the Judiciary (See, ICJ Practitioners Guide no 13 on Judicial Accountability, pp. 99-104). The UN Basic Principles affirm, among other things, that:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide 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, from any quarter or for any reason.
10. …Any method of judicial selection shall safeguard against judicial appointments for improper motives. …
12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
Similar mass removals with politicization of the procedure for reinstatement and new appointments have been condemned as violations of States’ international human rights obligations by, for instance, the UN Human Rights Committee acting under the International Covenant on Civil and Political Rights, to which Poland is also party (see Busyo, Wongodi, Matubaka et al v. Democratic Republic of the Congo, UN Doc CCPR/C/7878/D/933/2000 (2003), and the Inter-American Court of Human Rights (see e.g. Supreme Court of Justice (Quintana Coelle et al) v. Ecuador, Series C No. 266 (2013) and Constitutional Tribunal (Camba Campos et al) v. Ecuador, Series C No. 268 (2013).
Council of Europe standards, in the form of Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, provide among other things as follows:
26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.
27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.
44. Decisions concerning the selection and career of judges should be based on objective criteria pre-established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.
45. There should be no discrimination against judges or candidates for judicial office on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, disability, birth, sexual orientation or other status. A requirement that a judge or a candidate for judicial office must be a national of the state concerned should not be considered discriminatory.
46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.
47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice.
48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.
49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists.
50. The terms of office of judges should be established by law. A permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions. Early retirement should be possible only at the request of the judge concerned or on medical grounds.
69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
Sep 20, 2016 | News
The ICJ expresses its deep concern at recent developments in Botswana in respect of impeachment proceedings initiated against four judges and their suspension from office pending a disciplinary hearing.
The four judges, constituting one-third of the 12 Member High Court of Botswana, Justices Key Dingake, Modiri Letsididi, Ranier Busang and Mercy Garekwe, were suspended under section 97 of the Botswana Constitution on allegations of misconduct and bringing the name of the judiciary into disrepute.
The ICJ calls on all involved judicial and executive authorities to scrupulously respect the principles governing the independence of the judiciary in their conduct in addressing this serious situation, including in their actions throughout the course of any impeachment and disciplinary proceedings.
On 28 August 2015, the President of Botswana, Ian Khama, suspended the four judges after they, along with the other eight members of the Court, signed a petition directed to the Chief Justice.
The petition had objected, among other things, to alleged poor conditions of service, as well as disparaging comments the Chief Justice was said have made about another judge’s ethnicity and defamatory statements related to corruption.
The petition also advocated for the Chief Justice’s impeachment and was copied to all judges of the High Court.
The Chief Justice and the President took issue with the contents and tone of the petition, alleging it to be disrespectful of the Chief Justice and causing disrepute of the judiciary in the eyes of members of the public.
On the 4th of September 2015, the Law Society of Botswana (LSB) issued a statement in which it condemned the actions taken by the Chief Justice and President against the four judges.
The LSB considered that the case ought to have been resolved administratively rather than through what it said was “selective” impeachment of only four out of the 12 judges, particularly as no prima facie evidence existed that a crime had been committed.
The LSB alleged that “the selective approach in suspending and subjecting to a Tribunal only four (4) of the twelve (12) Judges who had signed the Petition, supported the widely held view that the action was a witch-hunt intended to remove certain Judges and ensure a more Executive Minded Bench.”
On the 23rd of September 2015, the LSB issued another statement following reports that three of the 12 judges had withdrawn their signatures to the petition after the judges had been “offered an ‘amnesty’ against any possible action being taken against them if they retract their association and / or apologise”.
The LSB went on to criticize an amnesty “made only to a select few of the Judges and not all” the 12 judges who signed the petition.
On 24 September 2015, the LSB issued a further statement calling on the Chief Justice to resign or face impeachment after the JSC offered amnesty to three other judges, who had signed or associated themselves with the petition.
The amnesty extended to any possible action being taken against them if they retracted their association and / or apologized. The offer of amnesty was not made to all 12 judges that had signed the petition, and in particular, it was not made to the four suspended judges.
On 28 September 2015, the Impeachment tribunal was to have commenced hearing of the matter, but the four concerned judges instituted litigation against appointment of the Tribunal and their suspension, which litigation is still pending.
Since then, the courts have been irregularly issuing instructions, contrary to proper procedure, through the Registrar of the High Court in the pending litigation, and given that the Registrar is party to the litigation, this creates an inherent conflict of interest.
These developments surrounding this case have raised serious concerns over the independence of the judiciary generally but more specifically the prospects for an independent, impartial and fair hearing for the suspended judges.
Read mor
botswana-impeachment-judges-news-web-stories-2016-eng (full text in PDF)
Jul 18, 2016 | News
At a critical moment for Turkish democracy, the ICJ today urged the government to uphold the rule of law and respect Turkey’s obligations under international human rights law.
The ICJ condemns what appears to be a wholesale attack on the judiciary, implemented within hours of the failed coup attempt of 15 and 16 July.
“At such moments of crisis, it is crucial that the independence and security of tenure of judges is respected, so that public confidence can be maintained in the fairness of the justice system,” said Wilder Tayler, ICJ Secretary General.
“Purging the judiciary now endangers the deepest foundations of the separation of powers and the rule of law. An independent judiciary will be critical to ensure a functioning administration of justice for all people in Turkey as the country emerges from the crisis,” he added.
Reports indicate that on 16 July 2,745 judges were suspended by the High Council for Judges and Prosecutors (HSYK). Arrest warrants were issued for more than a hundred judges.
Two judges of the Constitutional Court, and ten members the HSYK itself, are reportedly among those detained. The ICJ fears that many of these detentions may be arbitrary.
Allegations that the judges concerned were linked to the attempted coup have not been supported by evidence, and it defies credulity that such a high number of judicial authorities could have been involved in the planning or execution of the military coup d’etat.
According to the ICJ, the measures are arbitrary, and contrary to fundamental rule of law principles.
In June, an ICJ report, Turkey: the judicial system in peril, analysed the increasing government control of the Turkish judiciary, including the HSYK, and arrests and dismissals judges, in violation of international standards.
“This weekend’s mass suspensions and arrests of judges represent a dramatic escalation of an attack on judicial independence that was already underway,” said Tayler.
“Disciplinary proceedings against judges should not proceed until it is clear that they will be heard by a body that is fully independent of the executive, and in accordance with the right to a fair hearing,” he added.
The ICJ is also deeply concerned at suggestions by the government that the death penalty may be introduced for those involved in the failed coup.
Re-introduction of the death penalty would violate Turkey’s obligations under Protocol 13 to the European Convention on Human Rights, and would amount to inhuman and degrading treatment in breach of Article 3 of the Convention.
The ICJ considers the death penalty to constitute in all circumstances a violation of the right to life and the prohibition on cruel, inhuman or degrading punishment.
Contact:
Róisín Pillay, Director, ICJ Europe Programme, t: +32 476 974263 ; e: roisin.pillay(a)icj.org
Additional information:
Under international standards on the independence of the judiciary, judges should be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
The ICJ recently published its Practitioners’ Guide N°13 on Judicial Accountability, a major study on international law and standards on the accountability of judges.
Further guidance on relevant international law and standards can be found in the ICJ Legal Commentary to the Geneva Declaration on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis.
Jun 23, 2016 | News
The ICJ welcomes today’s judgment of the European Court of Human Rights that the removal from office of Hungarian Supreme Court President András Baka violated the European Convention on Human Rights (ECHR).
The Court found that the pre-mature termination of his appointment deprived him of a fair process and was based on public statements he made that were critical of certain justice system reforms.
The ICJ intervened as third party in this case. The judgment is expected to be influential around the world in cases involving judicial independence and expression.
“Today’s judgment is a vindication for the security of tenure and freedom of expression of judges not only in Hungary, but around the world,” said Massimo Frigo, ICJ Europe Programme Legal Adviser.
“Judges should never be precluded from exercising their right and duty to speak out in protection of judicial independence,” he added.
In its ruling, the Grand Chamber of the European Court of Human Rights ruled that, by ending his prescribed term in office pre-maturely through a targeted legislative reform because of his public criticism, Hungary had violated his right to freedom of expression, under article 10 of the European Convention on Human Rights.
The Court held that expressing statements on the reform of the judiciary and other legislation was not only Judge Baka’s right, but also his duty.
The Court further ruled that former Supreme Court President András Baka had enjoyed a right to access courts to challenge his dismissal, and that his removal from office by a law that precluded such challenges violated article 6 of the ECHR on the right to a fair hearing.
In its judgment, the European Court cited a wide range of United Nations, European, Inter-American, and other international instruments and standards on judicial independence and freedom of expression.
The International Commission of Jurists anticipates that the Court’s ruling and reasons will have an important influence on cases concerning judicial independence and expression around the world.
Background:
Judge András Baka, former judge of the European Court of Human Rights from 1991 to 2008, had been appointed as President of the Supreme Court of Hungary on 22 June 2009.
His term in office, which was on his appointment guaranteed by law to continue until 22 June 2015, was prematurely terminated on 1 January 2012 following the entry into force of the Transitional Provisions of the new Hungarian Constitution.
This rule modified the eligibility requirements for the position of President of the Supreme Court, effectively excluding judge András Baka from the position.
Judge András Baka was also President of the National Council of Justice, and had publicly expressed criticism concerning various legal reforms brought on by the Hungarian Government that he considered to undermine the independence of the judiciary.
The judgment can be downloaded in PDF format.
Read also:
ICJ third party intervention
The ICJ also recently published a comprehensive analysis of relevant global standards in its Practitioners Guide No. 13 on judicial accountability.
An online compilation of global and regional standards on independence and accountability of judges, lawyers and prosecutors is also available here.
Contact
Massimo Frigo, Legal Adviser, ICJ Europe Programme, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org
Mar 28, 2016 | News
The ICJ today calls for the reversal of the Supreme Disciplinary Board’s decisions to force into retirement 47 judges following two separate, mass proceedings known as the “July 2013 Statement Case” and the “Judges for Egypt Case”, which concern over 60 judges.
Today’s final decision in the “July 2013 Statement Case” forcibly removed 32 judges from their offices.
It comes after all of the 15 judges referred to disciplinary proceedings in the “Judges for Egypt” were forcibly removed from their offices last Monday.
In a third case on 7 March 2016, the Disciplinary Board removed from office Zakaria Abdel Aziz, a former President of the Judges Club (Egypt’s representative body of judges) and a leading advocate of judicial independence.
“The intensity of Egypt’s attacks against individual judges is reaching a frightening level,” said Said Benarbia.
“By removing judges from the office following mass, arbitrary and unfair disciplinary proceedings, the authorities are purging from the judiciary the very voices that have promoted its independence, and sending a chilling message to others who might challenge the ongoing crackdown on fundamental rights and freedoms in Egypt,” he added.
The ICJ had previously raised concerns about fairness of these proceedings as well as the nature of the charges against the concerned judges.
In the “July 2013 Statement Case” and the “Judges for Egypt Case,” the Disciplinary Board found that the judges had been involved in politics and were therefore “unfit” to carry out their functions.
Article 73 of Egypt’s Judicial Authority Law prohibits judges from engaging in “political activity”.
This prohibition was interpreted by the Disciplinary Board to include “discussing or commenting on legislative and governmental decisions as long as it does not pertain to a case that he [the judge] is looking into as part of his judicial function”.
The ICJ considers that the interpretation by the Disciplinary Board could result in arbitrary limitations to the judges’ right to freedom of expression, assembly and association, well beyond any restrictions that could possibly be justified as necessary to preserve the dignity of their office and the impartiality and independence of the judiciary.
Furthermore, these disciplinary proceedings have failed to meet international standards of fairness, the ICJ says.
The Geneva-based organization previously highlighted procedural flaws in the proceedings against the judges such as failure to be notified properly, to be represented before the Board and to be provided with adequate time and facility to prepare a defense.
“The Egyptian authorities must reinstate all judges that have been removed from their office as a result of unfair and arbitrary proceedings”, said Benarbia.
“Furthermore, they must amend the Judicial Authority Law to ensure that disciplinary offences are clearly and precisely defined within the law; that the exercise of the rights to freedom of expression, association and assembly in a manner consistent with the dignity of the office and the impartiality and independence of the judiciary does not constitute a disciplinary offence; and that the disciplinary procedure is fair and does not undermine the independence and impartiality of the judiciary,” he added.
Contact:
Nader Diab, Associate Legal Adviser of the ICJ Middle East and North Africa Programme, t: +216 51727023; e: nader.diab(a)icj.org
Background
The UN Basic Principles on the Independence of the Judiciary, which were adopted by the UN in 1985 and elaborate on states’ obligations under international law, include the following provisions:
- In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.
- Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence. (…)
- A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
- Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
- All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
- Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
Egypt- removal of judges-press release-2016-ARA (full text, Arabic, in PDF)
