Background:
1. At the 2019 annual meeting in Kazakhstan, the IAJ agreed to set up a working party (WP) to explore the practicalities of establishing a mechanism for the IAJ to give assistance to judges who are facing prosecution, disciplinary proceedings or other measures that could undermine judicial independence and integrity contrary to the principles in the IAJ’s Universal Charter of the Judge adopted 2017 Santiago Chile.
2. President Pagone had asked me to chair such a WP with a view to reporting our conclusions to what was planned to be the next IAJ meeting in Costa Rica 2020. Membership of the WP was established in the autumn of 2019 and has recently been confirmed. European members of the WP were able to meet at the EAJ meeting in Porto this April and the EAJ noted and endorsed the proposals sent out in this report. The cancellation of the in person meetings in 2020 and 2021 meant that the full members of the WP have never been able to meet.
3. The present members of the group are:
Chair: Nicholas Blake (UK) nichobla@gmail.com
EAJ: Celine Parisot (France); Eerik Meelis (Estonia); Manuel Soares (Portugal); Bogdan Jeffrys (Poland); Kjartan Bjarni Björgvinsson (Iceland).
IBA: Carlos Salgado (Puerto Rico); Vinicio Palácio (Ecuador).
ANAO: Honorable Cynthia M. Rufe (USA); Mr Justice Clayton J. Conlan (Canada). AFRICA: Daniel Thulare (South Africa); Adel Boufenaya (Algeria).
4. In 2020 the WP produced an opinion on an issue that arose in the context of the Polish governments attempt to discipline judges for applying the law of the European Law as they are bound by both EU law and national law to do. The opinion affirmed the principle that judges cannot be sanctioned for the bona fide exercise of their judicial function in individual cases including making a reference to the European Court of Justice as empowered to do so. Unsurprisingly the Court of Justice rejected the Polish Government’s new disciplinary system as incompatible with the rule of law.
Working with regional groups
5. The EAJ has had for many years a permanent standing committee chaired by Stefan Gass titled ‘Problems in Member States’ that receives reports of hostile measures taken against judges in countries where the IAJ has representation. The problems
may range from the whole sale extra judicial dismissal, prosecution and repression of judges in Turkey, and similar if last draconian measures faced by judges in Poland, Hungary and elsewhere in eastern and central Europe, to concerns about unilateral changes to judicial pay, pensions terms and conditions.
6. I am not aware how far such measures are the routine work of the other regional associations ANAO, Africa and Latin America, but the Central Council is frequently called on to express a view on some country or other although drafting resolutions in hast in the plenary session of the IAJ on the basis of unexplored facts has significant limitations.
7. It has been said many times in IAJ meetings, that a resolution drafted in haste whilst the annual meeting is in progress, is not the best way of addressing that arise in practice in the state in question and have little opportunity to research the facts or the applicable principles.
8. The starting point for the WP is that problems in members states should be raised as quickly as possible with the relevant regional organisation. It would be helpful if each regional organisation established its own group of judges with relevant expertise to advise. Thereafter the matter can be raised with this WP combining the experience across the international spectrum.
9. In May I wrote to all the Presidents of the constituent associations of the IAJ to explain that the aims of the WP are:
i) To encourage each regional association to from its own committee of experts to gather information and work in cooperation with the WP;
ii) To collect and disseminate regional instruments and jurisprudence on the different aspects of judicial independence;
iii) To establish a truly international committee of experts in the four working languages of the IAJ and across the broad range of constitutional traditions that can assist the IAJ Presidency and the Regional groups when invited to do so by giving advice and expert opinions.
10. The WP has started the collection of materials, starting with the extensive jurisprudence from Europe arising particularly out of the crises in Turkey, Hungary and Poland. We hope over the next six months to expand this by reference to the case law of the Inter American and African Courts of Human Rights, decisions of the Human Rights Committee and other decisions of senior national courts.
Conclusions
11. We therefore ask this meeting:
i) to note the activity conducted since the autumn of 2019 to establish the working group and its aims as set out at paragraph 9 above;
ii) to support the continued activity of the WP with its present membership;
iii) to encourage the regional associations to contact the chair of the WP if there are problems that call for action at IAJ level;
iv) to call for a report at the next meeting of the IAJ in Taipei 2023 as to the further activity of the WP and the election of a chair and vice chair.
Nicholas Blake
31 August 2022
ANNEX TO THE REPORT (CIRCULATION TO MEMBERS OF THE WORKIBG PARTY ONLY AT PRESENT)
DRAFT Compendium of recent European and other international Case Law. Introduction
1. In September 2017 the IAJ approved the Universal Charter of the Judge that in its nine Articles sought to synthesise the principles of judicial independence reflected in international practice: including decision of international courts and tribunals, treaties and other international declarations.
2. Since then, many of those principles have come under attack by authoritarian regimes in many parts of the world but notably states purportedly bound by the case law and decision of the Court of Justice of the European Union and the broader membership of the Council of Europe membership of which requires accession to the European Court of Human Rights determining complaints under the European Convention on Human Rights 1950.
3. One function of the Working Party on Judicial Assistance is to disseminate important decisions of UN Committees and regional and national constitutional jurisprudence from Africa Asia the Americas and Europe so we can keep up to date with developments.
4. Such a dissemination should inform debate in each of our jurisdictions as to both what judicial independence means and why it is important. In states governed by both democratic accountability and respect for the rule of law, experience suggests that it is public confidence in the work of the judiciary rather than specific constitutional enactments (always capable of amendment and repeal if found inconvenient) that ultimately ensures that the executive respects these principles.
5. There is a paradox that it is well recognised that to ensure public confidence the judiciary must refrain from political statements or statements that are perceived as such, but to keep the public informed about threats to judicial independence judges may be under a moral duty to speak out albeit in sober language about specialists issues within their knowledge.
6. In 1962 in Baker v Carr 369 US 186, the Supreme Court Justice Frankfurter said:
“The Court’s authority …possessed of neither the purse not the sword …ultimately rests on sustained public confidence in its moral sanction. Such a feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglement and by abstention from injecting itself into the clash of political forces in political settlements”.
7. In 1997, the distinguished British Court of Appeal judge Sir Henry Brooke published an important and informative article about the developments in specifically English history in the seventeenth century that led to the principles of judicial independence “The Fragile Bastion: Judicial Independence in the Nineties and Beyond” (Republished in European Human Rights Law Review (2015) vol 5 at 446). Ironically but perceptively, he prefaced his narrative with these words:
“Today both Russia and Poland boast an impressive array of constitutional provisions designed to underpin the independence of the judiciary, but in each lace, I counselled that clauses in a constitution were not enough. For the rule of law to be really secure, there has to be a widespread understanding among the people of a country, of the reasons why it is so important that the judges should be truly independent of the state. And this is what this essay is all about…”
8. It is of some significance therefore that in June 2022 a Chamber of the Strasbourg Court in Zurek v Poland (2022) 485 found that the summary termination in 2017 of Judge Zurek’s appointment to the National Judicial Council and his removal as spokesman on public affairs for his regional court was materially connected with his previous criticisms of reforms to the Constitutional Court, Supreme Court and National Judicial Council of Poland since 2015 (subsequently found to be in breach of European law) and applying the jurisprudence of the Grand Chamber in Baka v Hungary (2016) found that Poland had breached both the fair trial rights of the judge as there was no court to which he could apply to vindicate his rights but also his free speech rights. It concluded at 221-2:
“The Court attaches particular importance to the office held by the applicant, whose functions and duties included expressing his views on the legislative reforms which were to have an impact on the judiciary and its independence. It notes also the extensive scope of the reforms which affected practically every segment of the judiciary (see paragraph 210 above). It refers in this connection to the Council of Europe instruments which recognise that each judge is responsible for promoting and protecting judicial independence (see paragraph 3 of the Magna Carta of Judges) and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their status and, more generally, the functioning of the judicial system (see paragraph 34 of Opinion no. 3 (2002) of the CCJE and paragraph 9 of the Magna Carta of Judges, cited above, paragraphs 109-110 above).
In the present case, the Court is assessing the situation of an applicant who was not only a judge, but also a member of a judicial council and its spokesperson. However, the Court would note that a similar approach would be applicable to any judge who exercises his freedom of expression - in conformity with the principles referred to in paragraph 219 above - with a view to defending the rule of law, judicial independence or other similar values falling within the debate on issues of general interest. When a judge makes such statements not only in his or her personal capacity, but also on behalf of a judicial council, judicial association or other representative body of the judiciary, the protection afforded to that judge will be heightened.
Furthermore, the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat. This duty has been recognised, inter alia, by the CCJE (see paragraph 41 of its Opinion no. 18 (2015) on the position of the judiciary and its relation with the other powers of state in a modern democracy, cited in paragraph 111 above), the UN Special Rapporteur on the independence of judges and lawyers (see paragraph 102 of his 2019 Report on freedom of expression, association and peaceful assembly of judges, cited in paragraph 103 above) and the General Assembly of the ENCJ (see paragraph (vii) of its 2013 Sofia Declaration, cited in paragraph 112 above.”
(Emphasis supplied)
9. What follows is work in progress that is submitted to the members of the working party for comment and suggestions as to how it can be improved. If we can establish a base line of the summer of 2022, maintaining such a document annually as will be necessary if it to serve any purpose, will be somewhat less daunting.
Independence: General principles
10. Article 19(1) Treaty on European Union requires the independent judges of member states to apply Union law when applicable. In case C-619/18 Independence of the SC citation the CJEU identified two aspects of judicial independence at [72] to [74]
“The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, paragraph 44 and the case-law cited).
The second aspect, which is internal in nature, is for its part linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited).
Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 19 September 2006, Wilson, C-506/04, EU:C:2006:587, paragraph 53 and the case-law cited, and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited).”
11. Decisions of the Strasbourg Court are not of direct effect in the national legal system. There are no special rules about judicial independence in the European Convention and its Protocols. Case law about independence has evolved when either a litigant complains there has been bias or some other infringement if a right to a fair trial protected by Article 6 or when a judge or other public official alleges that disciplinary proceedings against them have been defective.
12. In its recent decision in, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 196, and ECtHR, 9 March 2021, the Strasbourg Court reiterated its jurisprudence on the general approach [144] to [149]:
“In order to establish whether a tribunal can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia , to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see Findlay v. the United Kingdom , 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I, and Tsanova-Gecheva , cited above, § 106, 15 September 2015). The Court observes that the notion of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002- IV). However, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 193, ECHR 2003-VI).
The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009).
In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef , cited above, § 95, and Morice v. France [GC], no. 29369/10 , § 75, 2 3 April 2015 ). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou , cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996-III).
As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is
whether this fear can be held to be objectively justified (see Micallef, cited above, § 96, and Morice, cited above, § 76).
The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (see Micallef, cited above, § 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, § 38).
In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII, and Micallef, cited above, § 98).
The concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France , no. 65411/01, § 62, ECHR 2006-XIII).
Change of retirement age for serving judges
13. The first approach adopted by the executive in both Hungary and Poland was to seek to ger rid of senior judges in the constitutional or supreme courts whose views were discordant with that of the government of the day, by reducing retirement age and applying the new age limit to serving judges without transitional provisions excluding them.
14. The CJEU had no difficulty in finding this approach unlawful without prejudice to the general proposition that a state has discretion in fixing the terms of appointment and retirement. In the independence of the Supreme Court case noted at [10] above the Court concluded at [76]
“The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus, it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed.
In that latter respect, it is apparent, more specifically, from the Court’s case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the
disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU, EU:C:2018:586, paragraph 67).”
15. In its decision in Baka v Hungary (2016) ECHR 568 23 June 2016, the Grand Chamber of the Strasbourg Court found that the premature decision to retire the President of the Supreme Court was contrary to the fair trial provisions of Art 6 ECHR. Although there was no right to hold judicial office, disciplinary proceedings or disputes as to termination of office engaged the scope of Article 6 as it related to the determination of a civil right and obligation.
Reduction of judicial salaries/ changes to pension regime
16. On the other hand, a temporary general reduction in public salaries or pension benefits, including those of judges, did not undermine judicial independence if it was not discriminatory and reflected genuine economic necessity. See the CJEU judgment of 27 February 2018, Associação Sindical dos Juízes
Portugueses (C-64/16, EU:C:2018:117.
17. The position would be different if judges generally a fortiori a particular judge were targeted for salary reduction. Discrimination on one of the prohibited grounds including age may found the basis of a challenge. In the United Kingdom, in 2018 the Court of Appeal upheld the decision of the Employment Appeal Tribunal that applying fiscally disadvantageous changes to the scheme for judicial pensions to serving judges was discriminatory on the grounds of age (Lord Chancellor v V McCloud and N Mostyn and others [2018 EWCA Civ 2844). The Government decided not to appeal further and in 2022 introduced a new judicial; pension scheme that removed the contentious tax provisions for all judges. However, discrimination challenges may result in an equality of misery for all, if this is considered politically acceptable.
Disciplinary Bodies
18. The CJEU developed its case law on judicial independence when considering the new disciplinary chambers adopted in Poland in C-791/19 Commission v Poland (disciplinary Regime for Judges) 15 July 2021 at [61]
“As regards specifically the rules governing the disciplinary regime applicable to judges, the requirement of independence derived from EU law, and, in particular, from the second subparagraph of Article 19(1) TEU, means that, in accordance with settled case-law, that regime must provide the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. Rules which define, in particular, both forms of conduct amounting to disciplinary offences and the penalties actually applicable, provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others, paragraph 198 and the case-law cited).”
19. After a lengthy review of the manifest defects of the Polish system enabling the executive and legislature undue influence over the composition of a new disciplinary chamber the Court found violations of the core principles of independence concluding
“Having regard to all the foregoing considerations, it must be held that:
- by failing to guarantee the independence and impartiality of the Disciplinary Chamber, which is responsible for reviewing decisions issued in disciplinary proceedings against judges (Article 3(5), Article 27 and Article 73 § 1 of the new Law on the Supreme Court, read in conjunction with Article 9a of the Law on the KRS);
- by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts (Article 107 § 1 of the Law on the ordinary courts and Article 97 §§ 1 and 3 of the new Law on the Supreme Court);
- by conferring on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts (Article 110 § 3 and Article 114 § 7 of the Law on the ordinary courts) and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal ‘established by law’; and
- by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time (second sentence of Article 112b § 5 of the Law on the ordinary courts), and by providing that actions relating to the appointment of defence counsel and the taking up of the defence by that counsel do not have a suspensory effect on the course of the disciplinary proceedings (Article 113a of that law) and that the disciplinary tribunal is to conduct the proceedings despite the justified absence of the notified accused judge or his or her defence counsel (Article 115a § 3 of the same law) and, therefore, by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.”
20. The Polish rules were particularly gross violations of judicial independence as they exposed the judge to a risk of disciplinary proceedings for:
i) the bona fide exercise of the judicial discretion to make a reference to the CJEU for clarification of the meaning of EU law, and
ii) ordering disclosure of documents as to how the legislature selected certain judges to serve on the disciplinary bodies.
The mere fact that judges could be investigated for such matters whether or not any sanctions were imposed was enough to constitute an interference with the exercise of judicial discretion.
21. Securing the effective implementation of this decision and ensuring that Polish judges who have been suspended on half pay by disciplinary bodies that did not comply with EU rules are properly compensated is still the subject of ongoing litigation and disputes.
Freedom of expression by Judges:
22. The decision of the Grand Chamber in Baka v Hungary (above) reviewed the case law and materials to establish that adverse decisions relating to a judge’s security of tenure or position of responsibility within the judiciary could be an interference with the right of freedom of expression if the Court’s own scrutiny revealed some link between a judge’s statements out of court on the current legal controversies and the measure in question. Where there was an interference the justification for it fell on the state. The state would need to show a reason for interference compatible with Article 10, and that the interference responded to a pressing social need was proportionate and a fair balance as between competing interests.
23. The recent decision in Zurek v Poland confirms the importance given to responsible judicial commentary on current legal issues, and thus the difficulty that the state will have of justifying such decisions.
Developing the data base
24. We are aware of other important individual decisions of Courts outside the European context, but have not yet had the requisite resources to undertake a full analysis of what is already available. For example, our attention has been drawn to the case of Martinez Esquivia v Columba a decision of the IACHR 6 October 2020 (Spanish text https://www.corteidh.or.cr/docs/casos/articulos/seriec_412_esp.pdf
25. The Court that found that Columbia violated the rights of a prosecutor whose appointment was terminated before the end of her term for what the Court considered were arbitrary reasons. It considered UN, European and African principles in extending the principle of judicial security of tenure to prosecutors. The French commentary on this decision is as follows:
« La Cour commence par rappeler les garanties dont bénéficient les juges au titre de l’indépendance de la justice, à savoir le droit de bénéficier d’une procédure objective de nomination, l’inamovibilité et la protection contre d’éventuelles pressions extérieures. Au regard des fonctions qu’ils exercent, la Cour estime que cette indépendance est fondamentale et constitue une exigence de la séparation des pouvoirs qui doit être pleinement garantie. Une telle protection doit être octroyée non seulement aux juges, mais également aux Procureurs puisqu’à défaut des mêmes garanties, leur indépendance et leur objectivité seraient mises en danger. Dans cet arrêt, la Cour insiste notamment sur l’exigence d’inamovibilité qui permet de protéger les Procureurs, comme les juges, de potentielles représailles dont ils pourraient faire l’objet en raison des décisions qu’ils rendent. Cela implique plusieurs conséquences : tout d’abord, seules des raisons précises doivent permettre de mettre un terme à leurs fonctions, au moyen d’une procédure conforme aux garanties judiciaires ou parce que leur contrat arrive à échéance ; ensuite, une révocation n’est possible qu’en cas de faute disciplinaire grave ou d’incompétence ; enfin, toute procédure engagée à l’encontre d’un Procureur doit être juste, objective et impartiale. »
26. There is much work to be done to expand this database but I hope with the assistance of all of the members we can improve this document in its scope; add hyperlinks to the cases available on line in English, French Spanish and Portuguese, and translate the English text into these languages in due course.