Statement of the President of the European Association of Judge

Statement

President of the European Association of Judges

In an unprecedented initiative, last January 30^th, the President of the European Association of Judges joined the President of the Network of the Presidents of the Supreme Judicial Courts of the European Union, Mr. Jean-Claude Wiwinius, President of the Supreme Court of Luxembourg, and the President of the European Network of Councils for the Judiciary, Mr. Kees Sterk, member of the Netherlands Council for the Judiciary, for two separate meetings with the Vice President of the European Commission for Values and Transparency, Mrs. Věra Jourová, and the Commissioner for Justice, Mr. Didier Reynders.

The meetings took place on European Commission headquarters in Brussels.

The simple circumstance of the three major representatives of the European Networks of Judges in Europe assembled for these meetings with members of the College of Commissioners shows the grave concern, deeply shared by European Judges, regarding the debacle of Judicial Independence in some Member States of European Union with the recent terrible example of Poland.

The meetings with the Commissioners represented an excellent occasion for an open discussion, in a very friendly atmosphere, on the crisis of Rule of Law and on the ways to inverse this deplorable situation. It was transmitted by the representatives of the European Commission their own-shared concerns on this crucial topic and their commitment to uphold the basic principles enshrined by Article 2 of the Treaty of the European Union.

Regarding the future it was agreed on strengthening the cooperation between the European Commission and our three Networks coordinated as one, in order to concretely safeguard an independent judiciary in all Member States of EU.

The European Association of Judges reaffirms its compromise to uphold Rule of Law in the present difficult moment and clearly states that a European Union without Judicial Independence will cease to exist as such.

José Igreja Matos

(President of the European Association of Judges)

The European Association of Judges (EAJ) having observer status with the Consultative Council of European Judges (CCJE) is pleased to report about some of the problems which EAJ identified in Council of Europe´s member states during the last year.

EAJ wishes to formally acknowledge the essential work provided, since 2000 - year of its creation -, by the Consultative Council of European Judges in protecting and consolidating the independence of the judiciary as a paramount factor for the affirmation of rule of law, the protection of human rights and for a well functioning democracy. Its Opinions form a standard to guarantee the rule of law in Europe and are also regularly used as reference documents by the EAJ. EAJ thanks for the opportunity to deliver this report of its own experiences and the experiences of its 44 member associations. It is available for any future co-operation, which the CCJE may see as useful.

• General observations:

• In our perspective, the problems regarding the Independence of judges as a whole are very serious and worrisome in several European countries. But as a general observation there is not seen a strong commitment of member states to strengthen the rule of law; in some member states it is even the opposite.

The International Association of Judges (IAJ), one of which´s four Regional Groups is exactly the EAJ, undertook a monitoring of its 85 members worldwide on the situation of the judiciary in these 85 countries. One question to be answered was: "Has the situation regarding the judiciary in your country improved, worsened or remained the same during the last 5 years ?" Associations of five European countries answered with "improved", of 18 other European countries with "remained the same" but the other 18 European countries with "worsened". As the main areas of concern budgetary restrains and excessive workload followed by undue pressures from politicians were named. Further problems were identified as lack of confidence and problems with internal judicial independence.

• The role of the European Court of Human Rights:

The developments regarding the role of the European Court of Human rights are ambiguous. There is a strong contribution of the jurisprudence of the Court to effectively implement the fundamental rights, which are guaranteed in the Convention. This got increasing awareness of NGOs and people in general in the member states, which brings floods of incoming cases to the court. At the other hand governments are lesser and lesser willing to follow the court´s jurisprudence. Some judgments are unduly criticized by politicians and media and the list of non-enforced judgments gets longer and longer. This weakens the trust in the judiciary as such. There is a common opinion of everyone that the flood of incoming cases has to be reduced in order to reduce the workload and the backlogs and get quicker responses to the underlying legal problems. But it has to be assured that such reduction of the court´s input may not lead to an infringement of the possibility of citizens to have there cases solved according to the fundamental rights which the Convention provides to them. The means, which are proposed and partly already introduced in the debate of a reform of the Court and its procedure, go in the right direction. One of the means, which already exists, is Article 31/1 of the Convention. Here EAJ observes a misuse of certain member states. It is in line with the intentions of the reform process and highly welcomed, if member states provide effective, fair and independent means to put persons within the state in a position as the would have been when the Strasbourg Court had dealt with their case. But if such additional remedies are provided only in order to prolong the exhaustion of remedies and especially if this additional remedies is unlikely to provide protection in the sense of the Convention and the jurisprudence of the Court it is a misuse.

Such an example was recently given by Turkey. In the cases Catal versus Turkey (No 2873/17) and Koksal versus Turkey (No 70478/16) the Court ruled that the applicants had to challenge the decisions of the Turkish authorities at first at the commission which was established under Emergency Decree 685, then appeal to the administrative courts and after that challenge the court´s decision at the Constitutional Court. If one reads between the lines of the reasoning of the decisions it may be understood that the Court has doubts that the decision of the Turkish authority, which the applicant challenged, is not in conflict with the fundamental rights of the Convention, because the Court underlines that the burden of proof will be on Turkey. Nevertheless the Court decided that it had to reject the motion due to the fact that the national remedies were not exhausted. EAJ sees the misuse of Article 31/1 by Turkey in the fact that the composition of the new commission is totally dependent on the government. The requirement that the national means will be exhausted is, therefore, very much doubtful in the case of the new Turkish commission. EAJ proposes therefore that Article 31/1 should be amended accordingly to avoid such "mock institutions" which only delay, in an inadequate manner, the way to Strasbourg.

• Trust in the judiciary is the most important element to guarantee the effective implementation of the rule of law. It is foremost in the accountability of the judges themselves by delivering a unbalanced, impartial justice on a high level of quality in reasonable time. Nevertheless trust could very easily be hampered or even destroyed by undue critics. Recommendation 2010/12 of the Committee of Ministers underlines that "the executive and legislative powers should avoid criticism that would undermine the impendence of or public confidence in the judiciary. They should also avoid actions, which may into question their willingness to abide by judges decisions". EAJ once again experienced in the last year that in several member states this recommendation is not followed. EAJ expresses its particular concern about corrosive commentary by politicians or the media, seeking to influence the determination of cases.

To provide concrete examples, we have the "enemies of the people" remark by a British tabloid newspaper following the UK High Court's decision in the Brexit case; the allegation by a senior British parliamentarian that "unelected judges" on the UK Supreme Court were "meddling" with the running of a democratically elected parliament; the President Trump reference to a "so-called judge" ; the recent suggestion by an Irish government Minister on a TV current affairs program that senior judges should not be involved in the judicial appointments process "because they will just appoint their friends" and the constants Turkish government's suggestion that the Greek Supreme Court has been "encouraging the impunity of criminals" and "providing shelter and protection to putschists". Also the comments of the Polish prime minister, some of the Polish ministers and foremost the chair of the government party are far beyond fair criticism.

1. B) Problems of the judiciary in individual member states:

As mentioned under A 1) there are problems in several member states. In the following only the most serious infringements are listed, which does not mean that these are the only problems in Europe´s judiciaries.

1.) Turkey

The situation in Turkey that should be qualified as desperate concerning the continuous infringement of the most basic European Standards concerning the Rule of Law.

To summarize the basic facts since 15th July 2016 and after the state of emergency then established in Turkey more than 4,000 Turkish judges and prosecutors, a quarter of the total, have been dismissed by decree since last summer. The vast majority are held in - overcrowded – prisons and some of them are even held in solitary confinement. Only a fraction has heard formal charges so far mostly for vague and abstract reasons. Several basic fundamental rights guaranteed under Art. 5 and 6 of ECHR are being clearly ignored. The abolishment of Rule of Law in the country has been constantly highlighted by several organizations in Europe and worldwide.

The Platform, created by the four European judges organizations Association of European Administrative Judges (AEAJ), EAJ, Judges for Judges and Magistrats Européens pour la Democratie et les Libertés (MEDEL) to assist the Turkish judiciary, has urged very recently the Turkish authorities, namely, to make possible the observation of the court hearings by international observers, to guarantee that the European Prison Rules are obeyed in all detention centre and, finally, to release the unduly detained judges and prosecutors and to return the unduly seized assets to these persons.

Also the Council of Europe and the European Union were pleaded to convince the Turkish authorities to fulfil the requirements based on common and basic European values and, in any case, to establish mechanisms and support initiatives which make international trial-observations possible.

2.) Poland:

Poland is another country that deserves a very concrete and strong reference from EAJ.

In a public statement from our organization it was pointed out "the present situation in Polish Judiciary represents a methodical demolishing of the fundamental right to an independent court in a manner never seen in any democratic country belonging to the European Union and governed by the Rule of Law."

Although President of the Republic Mr. Adrzej Duda vetoed two of the three laws to reform the national judiciary it remains that the promulgated law concerning first instance courts is contradictory to the Constitution of the Republic of Poland, violates the principle of a tripartite system of government and compromises the independence of judges leading to politicization of the judiciary. This is an issue to be followed with particular concern and awareness by Council of Europe and their bodies.

3.) Bulgaria:

In Bulgaria it was brought to EAJ’s attention the created requirement for a judge to make a declaration to the Supreme Judicial Council of all activities including membership of a professional organization. As internationally recognized the right of judges to join professional associations is designed to support the independence of the judges and is recognized by international legal principles including Article 25 of CCM/Rec 2012/12 Council of Europe and similar recommendations of the United Nations. Therefore this new requirement to register membership in professional organizations within the Superior Council of the Judiciary, responsible for recommending the promotion and career development of judges, has a chilling effect deterring the exercise of this right. Moreover there is no apparent purpose in including membership of a judicial association since such membership is confined to judges, and involves no conflict with the judicial function in an individual case. The introduction of an obligation to register membership of judicial association is inconsistent with the policy agreed in Sofia of strengthening judicial associations rather than undermining them. Following that «Sofia Policy» is a matter of principle, not least because of the declaration, adopted by the Ministers of Justice of all Member States of the Council of Europe, along with the Action Plan for Independence of the Judiciary, at the meeting held on 21 April 2016 in Sofia.

4.) Greece, Portugal and others:

The lack of resources for the proper functioning of the judiciary with a large impact on the continuing deterioration of the remuneration status of judges to inacceptable levels was reported from associations of several member states especially from Southern Europe, like Portugal and Greece. This is another area of strong concern for EAJ.