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.