The independence of judges and the judiciary under threat

(Council of Europe) The independence of the judiciary underpins the rule of law and is essential to the functioning of democracy and the observance of human rights. The fundamental right to a ‘fair trial’ by an ‘independent and impartial tribunal established by law’ is enshrined in the European Convention on Human Rights, in the EU’s Charter of Fundamental Rights, and in many national and international legal texts. We have long enjoyed this right without major obstacles, and this remains the case in many Council of Europe member states. However, we are now seeing increasing and worrying attempts by the executive and legislative to use their leverage to influence and instruct the judiciary and undermine judicial independence.

I have been addressing issues relating to the rule of law and the independence of the judiciary since the beginning of my mandate. I tackled these issues in four of the nine countries I have visited so far. In my report on Hungary, after a visit last February, I highlighted concerns about the effects of a number of legislative measures taken in the 2010s on the powers and independence of the judiciary in the country. I stressed the need to observe checks and balances in the administration of the judiciary and warned against the risk of its politicisation. My key recommendation was to strengthen collective judicial self-governance.

In Poland in March, I raised the country’s judicial reform, accompanied by a publicly-financed campaign to discredit judges and negative statements by officials, and concluded that it has had a major impact on the functioning and independence of the country’s justice system, including its constitutional court and council for the judiciary. I also criticised the dismissal, replacement and demotion of hundreds of court presidents and prosecutors, the use of disciplinary proceedings against outspoken judges and prosecutors, and the combination of the powerful functions of Minister of Justice and of Prosecutor-General in the hands of an active politician.

In my report on Romania, published in February, in which I addressed, inter alia, the reform of the judiciary which was hastily conceived, I underlined the importance of maintaining the independence of the judiciary and urged the authorities to give effect to the recommendations of the Venice Commission and GRECO. I drew attention, among several issues of concern, to the establishing of a new section, within the Office of the Prosecutor General of Romania, for the investigation of offences committed within the judiciary, and the restrictions on magistrates’ freedom of expression.

The independence and impartiality of the judiciary was one of the topics I addressed during my recent visit to Turkey. I was concerned that the independence of the Turkish judiciary was seriously eroded during the state of emergency and in its aftermath. I noted in particular constitutional changes regarding the Council of Judges and Prosecutors, which were in clear contradiction with Council of Europe standards, as well as the suspension of ordinary safeguards and procedures for the dismissal, recruitment and appointment of judges and prosecutors during the two-year state of emergency.

Instead of upholding and strengthening judicial independence, impartiality and efficiency, some governments and politicians interfere with the judiciary and even resort to threats against judges.

Most recently, the Italian Minister of Interior verbally attacked three magistrates on social media over some decisions they rendered which he thought challenged the government’s increasingly restrictive immigration policy. The media reported about death threats posted on social media against these judges following the Minister’s attack. Another verbal attack by the same minister against a judge concerning a different issue reportedly prompted the authorities to provide this judge with police protection due to ensuing death threats.

In Serbia, during the parliamentary debate last May on the introduction of life imprisonment without a possibility of conditional release for some of the gravest criminal offences, the Speaker of Parliament, several MPs and the Minister of Justice criticised the judge of the Belgrade Appellate Court, Miodrag Majić, because he had warned that this legislative proposal was incompatible with the European Court of Human Rights’ case-law. The judge was subject to personal attacks and his professional qualifications and the quality of his work were brought into question in the debate because he used his right to freedom of expression to state his opinion about an issue of public interest in the justice field. I also criticised the above legislative proposal for its incompatibility with the European Court’s case-law on Article 3 of the European Convention on Human Rights, in a letter sent to the Serbian authorities prior to the above parliamentary debate.

Council of Europe major principles relating to the independence of the judiciary

The most relevant text relating to the independence of the judiciary is the Council of Europe Committee of Ministers’ Recommendation (2010)12 to member states on judges: independence, efficiency and responsibilities.

Let me recall some of the main principles set out therein.

The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.

The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law. Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts.

The independence of judges and of the judiciary should be enshrined in the constitution or at the highest possible legal level. The structural arrangements foreseen by those fundamental laws should demonstrate a clear division of authority between the executive, the legislature and the judiciary.

The procedures for appointing and promoting judges are key in the protection of the independence of the judiciary. The Council of Europe standards require that not less than half the members of the councils for the judiciary (which are to be established by law or under the constitution) should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary. Decisions about appointments and promotions should be based on objective criteria focused on professional merits and qualifications and not on the government’s political considerations.

Another essential principle is that judges should have security of tenure until a mandatory retirement age – and even more crucially – that they should not have to fear dismissal for rulings which may not please those who are in power.

Each judge is responsible for promoting and protecting judicial independence. Judges and the judiciary should be consulted and involved in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system.

If commenting on judges’ decisions, the executive and legislative powers should avoid both criticism that would undermine the independence of or public confidence in the judiciary and actions which may call into question their willingness to abide by judges’ decisions (other than stating their intention to appeal).

Efforts at European level to protect the rule of law and judicial independence

There have been efforts at European level to address serious intrusions on judicial independence more systematically in some member states in recent years.

In 2016 the European Court rendered a judgement in the case of Baka v. Hungary relating to the premature removal of the applicant from the position of president of the Hungarian Supreme Court and the National Council of Justice, because in his professional capacity he criticised the legislative reform in Hungary affecting the judiciary. The Court found, inter alia, a violation of the applicant’s right to freedom of expression underlining that each judge is responsible for promoting and protecting judicial independence and that judges and the judiciary should be consulted and involved in the preparation of legislation concerning their statute and, more generally, the functioning of the judicial system.

The Council of Europe Parliamentary Assembly has addressed rule of law issues, including the independence of the judiciary, in its resolutions including the 2017 resolution on New threats to the rule of law in Council of Europe member states, with a special focus on the rule of law in Bulgaria, the Republic of Moldova, Poland, Romania and Turkey. Most recently, in a 2019 resolution concerning the assassination of Daphne Caruana Galizia and the rule of law in Malta, the Assembly was concerned, inter alia, that judges and magistrates are appointed by the Prime Minister and called for a reform of the justice system which would uphold the independence of the judiciary.

In many of its opinions, the Venice Commission has assessed the compliance of member states’ legislation with the relevant standards on the rule of law and the independence of the judiciary. In respect of Hungary alone, since 2011 the Venice Commission has adopted seven opinions relating to the rule of law, including judicial independence. It has also tackled these issues in its opinions on Bulgaria (2016), Poland (two in 2016 and two in 2017), Turkey (two in 2017), Romania (2018 and 2019), Malta (2018) and Serbia (2018). The Venice Commission’s opinions and its Rule of Law Checklist have been widely used and referred to in the infringement proceedings initiated by the European Commission against several member states mentioned below in this text.

The Group of States against Corruption (GRECO) has also been preoccupied with the impact of threats to the independence of the judiciary on the Council of Europe anti-corruption standards. For example, in respect of Romania, GRECO was deeply concerned about new legislation which included amendments “relating to the appointments and dismissals of senior prosecutors, functional independence of prosecutors, personal liability of judges and prosecutors, which, taken together, represent serious threats to the independence of the judiciary”. GRECO reached similar conclusions in respect of Poland, finding that the cumulative effect of the various elements of the reform significantly weakened the independence of the country’s judiciary, and Turkey, where it found that fundamental structural changes weakened judicial independence and led the judiciary to appear even less independent from the executive and political powers than before.

European Union institutions have also been addressing these issues and have taken some unprecedented steps in defence of the rule of law, democracy and fundamental rights. In 2018 the European Parliament, for the first time ever, called on the Council to determine a clear risk of a serious breach by Hungary of the EU’s founding values. Among the Parliament’s key concerns were threats to judicial independence. The Parliament has also been concerned about the situation of the rule of law and the independence of the judiciary in Romania in a resolution on the rule of law in this country adopted in November 2018. The European Commission has used infringement procedures against Hungary and Poland with reference to legislation undermining the independence of the judiciary.

The way forward

These developments show that European institutions have not been complacent in this field, however some of the aforementioned steps were long overdue.

We should be stronger, more resolute and more vocal in defending the rule of law and the independence of the judiciary. By defending these principles, we are defending human rights. As noted by the Venice Commission “the Rule of Law would just be an empty shell without permitting access to human rights”.

Council of Europe member states need to fully comply with the European standards in this field and uphold the independence of the judiciary.

Scrutiny of the rule of law in Council of Europe member states against the relevant Council of Europe standards should be carried out more systematically.

Judges need to be involved and consulted in the preparation of legislation which concerns them and about the functioning of the judicial system.

Judges should enjoy security of tenure and protection from undue early removal from office or involuntary transfers.

The right of judges to express their views on matters of public interest should be safeguarded.

European citizens must hold their governments to account when the government’s actions undermine the rule of law, democracy and human rights.

When the rule of law and the independence of judges are undermined, human rights are undermined.

Dunja Mijatović