Editorial of October 2018

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 by Vlad Jurje, PhD candidate and Lecturer at Universidad Rey Juan Carlos


Poland v. Fundamental Rights?

A new episode concerning to the Rule of Law in Poland has recently taken place and the European Commission is very concerned. After the recent reform of the National Council of the Judiciary[i], the Polish Parliament has the capacity to decide when to appoint the member judges that compose it. A fact that seriously undermines the norms and international standards on which the independence of the judicial power in Europe is regulated.

We also highlight the instability that has arisen from the reform of the Constitutional Court in Poland because the interference that the Executive and the Legislative branches have committed put at risk the independence of the judicial power. According to the new law which has come into force, out of the 72 current members that form part of the Supreme Court 27 could be forced to retire, since the retirement age was changed: instead of retiring at 70, the new law would remove men at 65 and women at 60.
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A Union based on the rule of law beyond the scope of EU law – the guarantees essential to judicial independence in Associação Sindical dos Juízes Portugueses

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor


On 27 February 2018, the European Court of Justice (ECJ) delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16), a judgment which, for its relevance for effective judicial protection and the rule of law in the EU, is already compared with Les Verts (here).

At the origin of the request for a preliminary ruling is a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). These measures were adopted on the basis of a Portuguese law of 2014 putting in place mechanisms for the temporary reduction of remuneration (and the conditions governing their reversibility) of a series of office holders and employees performing duties in the public sector, including members of the judiciary. As the Advocate General Saugmandsgaard Øe pointed out (here), the ECJ was in essence asked to “determine whether there is a general principle of EU law that the authorities of the Member States are required to respect the independence of the national judges and, more particularly – in the light of the circumstances of the main proceedings – to maintain their remuneration at a constant level that is sufficient for them to be able to perform their duties freely.”

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Editorial of February 2018

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 by José Igreja Matos, President of the European Association of Judges/Vice-President of the International Association of Judges

Populism and Judiciary

Judicial independence faces today, particularly in Europe, new threats emerging from populist political regimes.

Accepting the fundamental axiom that in a State based upon the Rule of Law, it is always up to the Courts to guarantee the effectiveness of human rights, and there is a strong operative connexion between the exercise of human rights – or the correspondent imposition of duties – and the mission conducted by the judicial systems.

This detected closeness explains the present decline of judicial independence in different regions, particularly within EU geographical space.

One the most interesting findings when analysing those countries deriving to populist and authoritarian policies is the immediate option, since the very early stages, for an vigorous attack on the independence of the judiciary propelled by surgical legislative reforms in the area of Justice. Recently in Poland, for instance, three different laws discussed in Parliament focused in nuclear foundations of judicial careers – Supreme Court, High Judicial Council and Presidents of First Instance Courts.
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European Union and Turkey: judicial independence at a crossroads

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by José Igreja Matos, President of the European Association of Judges

“In the little world in which children have their existence”, says Pip in Charles Dickens’s Great Expectations, “there is nothing so finely perceived and finely felt, as injustice.” (…) But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough is not the realization that the world falls short of being completely just – which few of us expect – but that there are clearly remediable injustices around us which we want to eliminate.” – Amartya Sen, “The idea of Justice” (preface).

As V. Skouris [former President of the Court of Justice of the European Union (CJEU)] brilliantly explained in his speech at the conference Assises de la Justice (November 21, 2013), when analysing matters related to judicial independence, there is a traditional distinction between personal independence and substantive or functional independence. The former essentially refers to the personal qualities of the judge and is destined to ensure that in the discharge of his or her judicial function, a judge is subject to nothing but the law and the command of his or her conscience. The latter of this is the functional independence which refers also to the judicial institution as a whole; it means that the terms and conditions of judicial service are adequately secured by law so as to ensure that individual judges are not subject to any executive control. Judicial independence within the European Union legal order concerns not only the CJEU but also national courts at all levels, since national judges are also what we call in French “juges de l’Union du droit commun“.

Unfortunately, the situation in Turkey is characterized by an affront towards basic standards of judicial independence. Turkey was one of the first countries, in 1959, to seek close cooperation with the then very recent European Economic Community. This cooperation was realised in the framework of an “Association Agreement”, known as the Ankara Agreement, which was signed on September 12, 1963. The CJUE was already called to focus precisely on this Association Agreement for instance in relation to the issue of their limits (Judgement Dereci and others v Bundesministerium für Inneres, Case C-256/11, EU: C:2011:734). This associative status implies that European Union naturally concerns about matters involving Turkey, and what happens with the Turkish citizens concerns the EU citizens. However, the idea “a judge is subject to nothing but the law and the command of his or her conscience” – to use the language of V. Skouris – is today completely marginalized in Turkey as pointed out by different European entities. Some concrete examples can be provided in this regard:

I) In December 8, 2016 the European Network of Councils of Judiciary (ENCJ) decided, in General Assembly, to suspend, with no Council voting against, the observer status of the Turkish Judicial Council (HSYK). Thus the HSYK is now excluded from participation in ENCJ activities. The reasoning of the ENCJ was impressive: “it is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice. (…) taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.” Security of tenure of office is a core element of the independence of a judge and the dismissal of judges should be used only in case of misuse of the exercise of office (e.g. UN Basic principles on the Independence of Judiciary, Opinion para 95, 92, 63, Rec para 49 and 50). However, HSYK adopted a decision with only 62 pages of reasoning sufficient to dismiss thousands of judges. The decision is totally inadequate when the criminal investigations used as motive to sack those judges are still in a pre-trial stage; the principle of the presumption of innocence, which is enshrined in Article 5 of the European Convention for Human Rights (ECHR), was consequently completely ignored, if not violated.

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