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)
Oct 27, 2020 | Advocacy, Cases, Legal submissions
The ICJ and Amnesty International have presented today a third party intervention before the European Court of Human Rights in the case of the premature dismissal of Judge Waldemar Zurek from his position in the National Judicial Council.
In the case Zurek v. Poland, the ICJ and Amnesty International presented submissions on the scope of application of the right to a fair trial under Article 6.1 of the European Convention on Human Rights (ECHR) in cases relating to the role of an independent judiciary and its members through self-governance mechanisms (such as the National Council of the Judiciary) in light of international standards on judicial councils, judicial appointments, the judicial career and security of tenure; of the Court’s Convention jurisprudence; and of general principles on the rule of law and the role and independence of the judiciary.
They further submitted obervations on the scope of the right to freedom of expression under Article 10 ECHR as applied to judges, including those engaged in the administration of the judiciary.
ECtHR-AmicusBrief-Zurek_v_Poland-Advocacy-Legal-Submission-2020-ENG (download the third party intervention)
Oct 21, 2020 | News
The ICJ condemned the dismissal of eight judges and three prosecutors by Turkey’s Council of Judges and Prosecutors (CJP) on 14 October 2020, for alleged membership of or connections with the Gülenist movement as a violation their right to a fair trial.
The ICJ calls on the CJP to revoke its order. In case any further is to be taken, the cases should be re-examined under the ordinary dismissal procedures. The ICJ also urges the Turkish Government and Parliament to modify the constitutional rules on the CJP to ensure its full independence.
“This decision not only affects the rights of the judges and prosecutors at stake, but also the Turkish population as whole, which damages the functioning of a fair and independent justice system bound by the rule of law,” said Massimo Frigo, Senior Legal Adviser with the ICJ Europe and Central Asia Programme.
The decision by the Council of Judges and Prosecutors (CJP) is particularly problematic because it was not accompanied by any reasoning on the individual situation of each judge and prosecutor.
International law provides that judges may be dismissed only through a fair hearing before an independent authority. The lack of individual reasoning in dismissal decisions strikes at the heart of the right to a fair hearing.
As the ICJ demonstrated in the 2018 report Justice Suspended, within the current constitutional framework, the Council of Judges and Prosecutors (CJP) is itself not provided with the guarantees necessary to ensure its institutional independence.
Despite the state of emergency having been lifted since July 2018, extraordinary powers given to the Council of Judges and Prosecutors to dismiss judges and prosecutors during the State of Emergency still apply, having been extended for three years by Law no. 7145.
“It is unacceptable in a State governed by the rule of law that judges and prosecutors – whatever charges may be against them – be dismissed without a fair procedure, in disregard of international law,” added Massimo Frigo.
Background
On 14 October the Council of Judges and Prosecutors made use of special powers to dismiss judges and prosecutors without complying with the ordinary procedure, invoking extraordinary powers enacted by Law No 7145 of 31.07.2018. The decision was issued in the Official Gazette on 30 October 2020. This legislation inserted into ordinary law several powers that had previously applied under the state of emergency legislation. More than 30 judges have so far been dismissed under this procedure since the end of the state of emergency.
One of the amendments made by Law No 7145 of 31.07.2018 was to the Decree Law No 375 dated 1989. A Temporary Article (Article 35) was added to the Decree. On the basis of this article, the General Assembly of the Constitutional Court, the Presidency Councils of Court of Appeal, the Council of State, the General Assembly of the Council of Judges and Prosecutors, a Commission set up by the Ministry of National Security, and the Presidency of the Court of Audit, were each authorized to take dismissal decisions for public officials/judges and prosecutors under their mandate for three years from the date of the endorsement of the law No 7145
The decision to dismiss the nine judges and two prosecutors was made on 14 October 2020 and published in the Official Gazette on 20 October 2020. After recalling Law no 7145 that enables the dismissal of judges and prosecutors by the Board, the decision states that all defendants have asked to submit their written defences. The decision also indicates that this is not a criminal conviction. The decision is based on complaints received and refers to investigations on their social environment, criminal investigations and prosecutors conducted by judicial authorities in general on the Gülenist organisation/FETÖ, minutes of hearings, contents of the communication app Bylock, statements by witnesses and suspects. However, the decision does not include any reasoning relating to the individual situation of each judge or prosecutor.
International law and standards provide that disciplinary 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.
The UN Basic Principles on the independence of the judiciary set out international standards for discipline, suspension and removal of judges, including in order to ensure impartiality and independence of courts and tribunals as required by international law, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The Basic Principles state that 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.”
The Consultative Council of European Judges (CCJE) adds that “a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.”
Contact
Massimo Frigo, ICJ Senior Legal Adviser for the Europe and Central Asia Programme, t: +41 22 979 3805, e: massimo.frigo(a)icj.org
Sep 29, 2020 | Advocacy, Non-legal submissions
The ICJ and IHOP today put the spotlight the lack of independence of the judiciary and the abuse of criminal and anti-terrorism laws in Turkey, speaking at the UN Human Rights Council in Geneva.
The statement, made during the consideration of the Universal Periodic Review (UPR) of Turkey, reads as follows:
The International Commission of Jurists (ICJ) and the Human Rights Joint Platform (IHOP) welcome the acceptance by Turkey of recommendations to ensure the independence of the judiciary (recommendations 45.112, 45.113, 45.114, 45.115, 45.118, 45.120, 45.121, 45.124, 45.125, 45.126, 45.127, 45.128, 45.129, 45.132, 45.133).
The ICJ and IHOP however regret to report that, based on their research and experience, the statements by the Turkish Government that the recommendations on the independence of the judiciary have already been implemented is simply not correct.
On the contrary, during the state of emergency more than 4000 judges and prosecutors were dismissed, more than 2000 judges and prosecutors were detained, through arbitrary processes that did not meet international standards.
The judiciary in Turkey does not enjoy basic guarantees of institutional independence because its Council of Judges and Prosecutors is fully appointed by the Legislative and Executive powers contrary to international standards on judicial independence.
The ICJ and IHOP further regret that Turkey only noted and did not explicitly support the recommendations to reform its penal and counter-terrorism legislation in line with international standards on freedom of expression (recommendations 45.90, 45.91, 45.92, 45.93, 45.94, 45.95, 45.96, 45.97, 45.98, 45.99, 45.100, 45.101, 45.102, 45.103, 45.104, 45.148, 45.158).
The statement by the Government that “legal amendments have already been adopted” and that these laws are in line with international standards is also fundamentally incorrect.
Anti-terrorism laws and other criminal offences continue to be abused to unjustifiably prosecute political opposition members, judges, lawyers, prosecutors and human rights defenders.
To actually implement the recommendations accepted by Turkey, ICJ calls on Turkish authorities to
- radically reform the governance of the judiciary to restore its independence in line with international standards;
- promptly finalize all criminal and administrative cases concerning former judges and prosecutors, respecting international standards of judicial independence;
- truly reform the country’s anti-terrorism law, and
- stop all arbitrary prosecution of human rights defenders, lawyers, judges, prosecutors and academics.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser, e: massimo.frigo(a)icj.org, t: +41797499949
Sep 14, 2020 | News
The Sri Lankan parliament should reject the Sri Lankan Government’s efforts to amend the country’s constitution to provide unfettered powers to the President while encroaching on the powers of the legislature and infringing upon the independence of the judiciary, said the ICJ today.
“The proposed 20th Amendment, which bestows an already powerful executive president with additional powers with no effective checks on him, essentially placing him above the law,” said Sam Zarifi, ICJ’s Secretary General. “These amendments would tilt the balance of State power heavily on the side of the executive and in particular on a single person.”
The proposed 20th Amendment to the Constitution bill rolls back most of the reforms brought about by the 19th Amendment to the Constitution, the passage of which the UN Human Rights Council welcomed as “promoting democratic governance and oversight of key institutions”.
The 19th amendment, adopted in 2015, had imposed certain limits to the Executive President’s authority and powers, including in respect of terms of the office of President, the capacity to dissolve Parliament and to fast-track legislation. It also removed the blanket immunity the President enjoyed from legal proceedings. Critically, it had established a Constitutional Council which restrained the President’s discretion in appointing key governmental actors including in the judiciary, the Attorney General and the Inspector General of Police.
The ICJ notes that the 20th amendment appears to reproduce much of the regressive features of the old 18th amendment, which the 19th amendment had been brought about to correct.
“Sri Lanka’s Executive branch has a poor record of respecting human rights and the rule of law, and the 19th Amendment was an effort to impose the checks and balances necessary for the rule of law,” said Sam Zarifi. “The constitutional changes being proposed would take the country back to the dark days of Executive impunity.”
“We are particularly concerned that these changes would undermine the independence of the judiciary, as the President would have unfettered discretion to appoint the superior judiciary, including the Chief Justice, the President and Judges of the Court of the Appeal, and to control the Judicial Service Commission,” said Sam Zarifi.
The JSC is the body entrusted with the power to appoint, promote, transfer exercise disciplinary control and dismiss judicial officers of the subordinate courts. The changes would also grant the President the power to nominate members of the Judicial Service Commission (JSC) other than its Chairman which is ex officio, the Chief Justice.
The UN Basic Principles on the Independence of the Judiciary states that “Any method of judicial selection shall safeguard against judicial appointments for improper motives.”
Under international standards and recommendations of the UN Special Rapporteur on the Independence of the Judiciary, appointments to the judiciary should not be vested solely with the executive.
A judicial appointment process which gives the President full discretion would inevitably result in the significant erosion of the independence and impartiality of the Sri Lankan judiciary.
Moreover, several checks placed on the President’s powers by the 19th Amendment have also been removed while giving him greater legal immunity. The President would also be granted sole power to appoint the cabinet, assign to himself any cabinet portfolio and been given unfettered discretion in relation to the appointment and dismissal of the Prime Minister. The President would also retain the power to dissolve the Parliament within one year.
Contact
For questions and clarifications: Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org
