President of the European Association of Judges: The recent law reforms in Poland will annihilate the independence of the judiciary
President of the European Association of Judges, José Igreja Matos, explains why he and other judges will join his Polish colleagues in a silent protest in Warsaw on 11 January against the planned curbs on judicial independence. “The decay of the rule of law in Europe is demanding a more public intervention from us, from European judges”
Anna Wójcik: You will be present with a very large delegation from the European Association of Judges to publicly show your solidarity with the Polish Judges on 11 January in Warsaw. Is it unprecedented that the Association’s members have decided to travel to another country to express their solidarity with their colleagues? How many delegates can we expect?
In recent years, it is, in fact, unprecedented that the Association’s members decided to travel to another country to express solidarity with their colleagues.
We have already confirmed the presence of delegates (judges) from, at least, fifteen countries, namely Austria, Bulgaria, Croatia, Denmark, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, The Netherlands, Norway, Portugal and Romania. But, certainly, several more countries will participate in the march or support the march. It could be said that European judges from democratic countries are unanimously supporting the struggle of our Polish colleagues to defend the rule of law.
In any case, we are expecting several dozen judges from different parts of Europe to attend.
What is inspiring you as an organization and you personally to come to Warsaw for the march?
Judicial independence is essential for any judge regardless of the country where he or she lives. It represents our ‘genetic code’.
To be defined as such, a judge must be impartial; his judgments must be passed without fear or favour.
The recent reforms of the law in Poland will annihilate the independence of the judiciary.
On a personal level, given my experience of working for several international organizations in various parts of the world, I have been monitoring and denouncing the dangerous path of Poland’s political authorities for several years; step by step, it is clear, in my opinion, that the final goal is to dismantle the principle of separation of powers and to have a judicial system controlled by the ruling government of the time and which is dependent of external forces.
As for the European Association of Judges (EAJ), a regional branch of the International Association of Judges (IAJ), our motto is precisely to promote an independent judiciary worldwide. As Justice Tony Pagone, a colleague from Australia and the current President of the International Association of Judges, wrote in an open letter about the situation in Poland: “Justice is not a private commodity owned by judges or lawyers for their own benefit. It belongs to the people who judges and lawyers serve.”
How does the situation of judges in Poland affect you as a judge and as an EU citizen?
EU Members are bound to a set of norms related to rule of law that constitute the very essence of our Union.
Consequently, in a landmark decision of February 2018, the European Court of Justice stated that Member States must ensure that courts meet the requirements of effective judicial independence in the areas covered by EU law.
To interpret the concept of independence, the Court held that an independent court is one that exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint and without taking orders from anyone, enjoying protection against any external interventions and pressures. In a effort that must be much welcomed, the ECJ is presenting concrete examples of these external pressures that, in the end, endangered judicial independence in a way that clearly contradict EU law.
Just to quote a recent case of 4 November (Case C-192/18 – Commission v Poland), the ECJ clarified that Poland has failed to fulfil its obligations under EU law by conferring on the Minister for Justice the power to extend the period of active service of judges of the ordinary courts.
Therefore, all countries now have a specific guide on how to substantiate judicial independence. To compel judicial decisions through disciplinary procedures, hierarchical instructions or (in)formal pressures emanated from politically appointed bodies are practices condemned by the ECJ and undisputed violations of the founding Treaties of the European Union.
The Member States are obliged to respect judicial independence in order to maintain judicial cooperation among them.
For instance, if a judge from a Member State is extraditing someone to another Member State, he or she must be confident that independent judges serve the other Member State. If there are serious doubts about this prerequisite the extradition should not take place so as to protect the fundamental right of any citizen to a fair trial.
How did the Association react to the situation of judges in Turkey? What are the concrete measures that the Association can take, aside from very important symbolic ones and lobbying?
The level of injustice suffered by our Turkish colleagues, judges and prosecutors, which was characterized by thousands of detentions, cruel treatment if not persistent torture, the seizure of assets in a way that puts the simple survival of their families at risk, is, until this very day, so devastating that the involvement of the main European international institutions of the judiciary was inescapable in order to specifically defend a culture of respect for human rights.
The major challenge for the EAJ since the beginning has remained unchanged to this day: to ensure that the terrible situation in Turkey is not trivialized.
The proposal headed by EAJ/IAJ presenting Mr. Murat Arslan, former President of YARSAV, the Turkish Association of Judges, member of EAJ/IAJ, to the Vaclav Havel Prize was totally successful and represents, perhaps, the most vehement sign of the opposition of the European authorities to the debacle of the rule of law witnessed in Turkey. However, Mr. Arslan is still in prison to this day.
Around 53 (!) public statements were produced by IAJ/EAJ, or shared in our website, expressing an unbreakable solidarity to our Turkish colleagues in the past few years.
The tragic situation in Turkey has encouraged all four European associations of judges – the Association of European Administrative Judges (AEAJ), the European Association of Judges (EAJ), Judges for Judges (J4J) and “Magistrats Européens pour la Démocratie et les Libertés” (MEDEL) – to join together in their activities and form a platform, called Platform for an Independent Judiciary in Turkey.
But perhaps the most concrete measure taken by the EAJ was the establishment of a fund with donations from national associations of judges or any other institutions or individual donors that will be provided to our Turkish colleagues and their families providing only the amount necessary to provisionally satisfy basic needs as food or urgent medication (no more than 900 Euros). Families with children are always our priority in the case of such financial assistance.
The Fund has already helped numerous families as a result of the generosity of our institutional and individual donors. Just a few days ago the Fund Committee, consisting of six judges from different countries, approved a new set of donations to four families in desperate conditions at the amount of 500 or 900 euros.
What problems with judicial independence do you see in other European countries? How is the Association reacting to them? How is Poland’s situation exceptional in this light?
The situation of the European judiciary regarding judicial independence is deeply worrying. The march in Warsaw is an eloquent example of the exceptional moment Europe is now experiencing.
Let’s look once again at the Polish background. In my opinion, it is clear that the judicial reform in Poland is unacceptable for a democratic State, a member of the EU. However the final stages of this reform are underway and – what is gloomier – it seems as if the European Commission is now complacent with these grave infringements of fundamental standards of the rule of law.
For the EAJ, this passivity is totally inexplicable.
On the contrary, the arrival of populist regimes demands a firm commitment by those who defend democracy and rule of law. Obviously, the risk of autocratic policies spreading across several European countries is undeniable.
As Marcus Tullius Cicerus stated centuries ago: “more is lost by indecision than wrong decision. Indecision is the thief of opportunity.”
EAJ is a totally apolitical organization and our approach is always institutional, discrete and moderate; our mission is solely to defend judicial independence without any involvement in the political arena.
However, the decay of the rule of law in Europe is demanding a more public intervention from us, from European Judges – so be it!
Whatever happens, the Polish judges can always count on the solidarity of EAJ in this struggle to preserve the independence of the judiciary.