Statement by Diego García-Sayán, Special Rapporteur on the Independence of Judges and Lawyers, at the 38th session of the Human Rights Council

​22 June 2018

Mr. Chair,
Distinguished delegates,
Ladies and gentlemen,

It is my great pleasure and honour to present my second thematic report to the Human Rights Council and my first country report since I assumed the role of special rapporteur in January 2017.

My initial report, presented to the Council in June 2017, provided an overview of the work done in this Rapporteurship since its establishment in 1994. I also identified some specific issues of concern on which I intend to focus during my term. One of these issues is the new threats that represent the impact of corruption and organized crime in the justice system.

Allow me to express my appreciation for the support and good level of cooperation that I have received from Member States in the past year. Several States have expressed their interest in collaborating with my mandate in order to determine the appropriate measures to strengthen judicial independence, the effectiveness of its justice system and facilitate the free exercise of the legal profession.

In October of last year, I made my official visit to Poland at the invitation of the national authorities. This was an excellent opportunity to establish an open and frank dialogue with the government at a crucial time for the Polish judicial system. I must express my gratitude to the Polish authorities for the opportunity they have given me to gather information and to sustain this dialogue on the reform of their judicial system. I return to the subject of this visit in the course of this presentation.

This year I will also hold visits to countries whose governments have extended an invitation. My visit to Morocco will take place in the second semester. The visit scheduled for August to Guatemala, unfortunately, will have to be postponed at the request of the national authorities. I am currently considering other invitations already presented and taking others into account, in hopes of providing equal coverage to the different regions of the world. I am currently waiting for an answer to my request to visit Turkey and Honduras, and hope to have good news soon.

Mr. president,
Distinguished delegations,

In this year's report, I will be focusing on judicial councils. In particular, in the role they can play to guarantee the independence and autonomy of the judiciary. The report shows that the global number of judicial councils has vastly increased in recent decades. It is estimated that, to date, more than 70% of countries have some type of judicial council or equivalent body.
To prepare this report, I called on States, international and regional human rights mechanisms, national human rights institutions, national judicial councils and civil society to contribute information on the existence and functioning of bodies or national mechanisms in charge of guaranteeing and promoting judicial independence. I wish to express my gratitude to the many contributions received.

Regarding these themes,

Firstly, there is no explicit "set" of international rules, defined in the United Nations, on objectives and composition of judicial councils. Second, there is no "ideal model" of a national judicial council, nor can a comprehensive analysis of the effectiveness of each of these institutions be provided in this report. Each body of judicial governance or selection and appointment of magistrates, such as the councils referred to in this report, has its origin in a legal system with different historical, cultural and social roots, and its specific function varies from one country to another.

Mr. president,
Delegates,

In my opinion, the establishment of an independent body to protect and promote the independence of the judiciary constitutes good practice. I would like to encourage States that do not have a judicial council or similar independent institution to consider establishing one, except in those cases where judicial independence is traditionally guaranteed by other means.

A necessary precision: nothing stated suggests that the establishment of an organ of this type is, in itself, sufficient to guarantee judicial independence and promote judicial responsibility.

Mr. president,
Delegates,

To guarantee their independence from political power and ensure effective self-government for the judiciary, judicial councils must be established in accordance with the Constitution or fundamental rules and should provide for adequate human and financial resources as well as providing for the broadest powers for selection, appointment, promotion, training, professional evaluation and discipline of the judges. Additionally, these councils must also have a general responsibility in the administration of the judicial system as well as allocation of budgetary resources to the various courts.

With regard to the composition of the councils, one cannot assume that there is a "single model". There are, however, three basic criteria that should be considered for full guarantee of judicial independence.

First, all the appointment processes of those who integrate the Council must be transparent and participatory in order to avoid and prevent corporatism and the appropriation of the process by groups or de facto powers.

Second, it is appropriate that judicial councils include judges and non-judges among their members. To avoid the risk of corporatism - in reality or in the public perception - it is advisable that the council includes non-judges as lawyers, law professors and citizens of recognized reputation and experience.
 

Third, it is essential that all persons elected or appointed to one of these councils be elected through processes that are independent of political influence.

Mr. president,
Distinguished delegations,

The most widely recognized function of judicial councils is their role in the selection and appointment of judges. To ensure the independence of the judiciary, decisions of this magnitude must be made through a transparent process of the council of the judiciary or an equivalent body. Independent of the legislative and executive powers.
  
The procedure for the selection and appointment of judges should be based, in general, on objective criteria previously established by law or by the competent authority. The decision on the selection and professional career of the judges must be based exclusively on merit, taking into account the qualifications, abilities and abilities of each applicant, as well as their integrity, sense of independence and impartiality.

On a topic other than the appointment and selection of judges, the report shows that there are no uniform parameters and norms with respect to the competences of judicial councils in relation to judicial administration and budgetary control. Only in a limited number of countries have judicial councils been entrusted with general responsibilities in this regard. I believe that entrusting judicial councils with general competences in relation to judicial administration and budgetary control is a useful tool for safeguarding the independence of the judiciary.

Mr. president,
Distinguished delegations,

From October 23 to 27, 2017, I visited Poland at the invitation of the government to evaluate the measures adopted by the State regarding the judicial system. The purpose of my visit was to evaluate the ongoing reform of the judicial system that the government has undertaken since taking office after the political elections in October 2015.

I wish to reiterate what I expressed publicly at the end of my official visit to Warsaw: the government of Poland, like any other government, has the right to reform the judicial system to strengthen its effectiveness and accountability. However, I cannot fail to restate what I already advanced on that occasion: the measures adopted are not appropriate to achieve the stated objectives and are severely affecting judicial independence.

Since taking office, the government has launched a series of coordinated actions that have affected the independence of the Constitutional Court, as well as the composition, organization and functions of the ordinary courts, the Supreme Court and the National Council of the Judiciary.

The first 'victim' has been the Constitutional Court. Today, the Tribunal remains in place and its functions, as established in the Constitution, have not formally changed. However, its legitimacy and independence have been seriously undermined by severe political interference in its composition. The Court cannot guarantee, at present, an independent and effective review of the constitutionality of the legislative acts adopted by the legislator and the defence of human rights and fundamental freedoms.

After having successfully "sterilized" the Constitutional Court, the government has promoted three steps that introduce broad changes in the composition and operation of the ordinary courts, the Supreme Court and the National Council of the Judiciary. In my report, I raise a series of concerns about these actions and how they affect international standards.

In addition, the implementation of this reform has been accompanied by a vast propaganda campaign against the judges, who have been portrayed as members of a "caste", a "state within the state", an autonomous organization that only looks at the protection of its personal interests and is not accountable to its citizens.

 The cumulative effect of all these measures has been to lock the constitutionally protected principle of judicial independence and allow the legislative and executive branches to put the judicial system under their control. That is why I have concluded my report by saying that today, the independence of justice and the institutional checks and balances of a democratic system are under threat in Poland.

In the report, I have included a series of recommendations on how to ensure that the reform underway is corrected and strengthened - not undermined - the independence of the judiciary. I would like to comment now on some of the recently adopted measures on three issues in response to the concerns expressed by this mandate, as well as by a wide range of international and regional organizations.

First, the law on the organizations of the ordinary courts. In my report, I recommended the adoption of a series of amendments in order to reflect the Constitution and international standards.

I am pleased that the law has been amended to eliminate the discretionary power of the justice minister to remove presidents from the courts. The new procedure establishes that they can only be dismissed with the consent of the whole court and, if this is denied, with the approval of the National Council of the Judiciary. Nevertheless, the amendment does not provide a remedy for the arbitrary dismissal of presidents and vice-presidents of the courts that took place between August 2017 and February 2018. According to the information received, approximately 150 presidents and vice-presidents of courts have been dismissed previous to the modification of this provision.

 Second, the law of the National Council of the Judiciary. In the report, I came to the conclusion that the provisions regarding the new appointment procedure of the members judges of the Council and the early termination of the terms of the current justice members were not in accordance with the Constitution and international standards related to the independence of the judiciary and the separation of powers.

The amendments introduced in April 2018 do not correct these problematic and arbitrary provisions. The application of the current law has led to the arbitrary dismissal of the current fifteen judges, members of the Council, who had been appointed by their colleagues.

Third, the law on the Supreme Court through which large authority is transferred to the president of the republic, head of the executive power. The new law, without any support and against the international currents on retirement, reduces the mandatory retirement age for the members of the Supreme Court from 70 to 65 years; It gives the president of the republic discretionary power to prolong the mandate of a judge who is approaching or has passed retirement age, placing this judge, in the words of the European Commission, "at the mercy" of the decision of the president of the republic.

As a result of the new law, approximately 40% of the members of the Supreme Court, including the president of the court, could be forced to retire after July 3, 2018, before the end of their legal terms. This constitutes a serious setback to the principle of judicial independence and a flagrant violation of the principle of irremovability of judges.

Judges who leave the court as a result of lowering the retirement age will be replaced by new judges, appointed by the president of the republic on the recommendation of the National Council of the Judiciary that will be largely dominated by political power. In particular, the president will be authorised to almost completely determine the composition of the new and powerful chambers in the Supreme Court.

To conclude, Mr. President, the situation is complex, I appreciate the willingness of the Polish government to invite me and listen to the concerns that I, together with other international and regional institutions, have raised in relation to their judicial reform. Their continuous participation in a bidirectional dialogue is, in the midst of the complexity of the context, testimony of their fidelity to international principles.

Mr. president,
Dear delegations.

I must finish my presentation without first referring to the Basic Principles on the Independence of the Judiciary, adopted by the General Assembly in 1985. These have been a fundamental conceptual safeguard in international standards on the subject. However, it is visible that, at this point, they need to be enriched and updated. They do not include these principles adopted more than three decades ago, for example, no provision devoted to judicial councils or a series of new threats to judicial independence such as corruption or organized crime.
I would like to invite the States here to consider promoting the updating and development of the 1985 Basic Principles, taking into account, among other aspects, other important developments such as the Bangalore Principles of 2001 on judicial conduct and that may incorporate provisions on judicial councils or on the best ways to defend judicial independence against attacks of corruption or from organized crime.

I offer my collaboration to the States that are interested in starting to promote a broad, transparent and creative debate in this regard. I also invite national human rights institutions. civil society, judges and their representative organizations to contribute with their experience.

I look forward to the interactive dialogue and will do my best to answer any questions.

Thanks for your attention.