Porządek 38 posiedzenia Rady Praw człowieka przy ONZ, które rozpoczęło się 25 czerwca w Genewie obejmuje sprawozdanie specjalnego wysłannika RPC do Polski Diego García-Sayána. Przedstawiamy informację z komunikatu prasowego Rady – w języku angielskim:

Human Rights Council discusses human rights and transnational corporations, and the independence of judges and lawyers

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25 June 2018

MORNING

GENEVA (25 June 2018) – The Human Rights Council this morning held a clustered interactive dialogue with Anita Ramasastry, Chair of the Working Group on the issue of human rights and transnational corporations and other business enterprises, and with Diego García-Sayán, the Special Rapporteur on the independence of judges and lawyers.

Ms. Ramasastry said the thematic report examined how States could incentivise corporate respect for human rights, especially in trade promotion and finance, the so-called economic diplomacy, and urged States to use their leverage by requiring companies to demonstrate a commitment to the Guiding Principles on Business and Human Rights as a precondition for receiving Government support. She spoke about the Working Group’s visits to Canada and Peru.

In the presentation of his thematic report on the role of judicial councils, Mr. García-Sayán noted that establishing an independent body tasked with the protection of the independence of the judiciary was a good practice, and urged States to consider establishing national judicial councils or any other body that would ensure judicial independence. He spoke about his visit to Poland.

Canada, Peru and Poland spoke as concerned countries. The Commissioner for Human Rights of Poland also spoke, as a national human rights institution from a concerned country.
[…] The Council has before it the Report of the Special Rapporteur on the independence of judges and lawyers (A/HRC/38/38).

The Council has before it an addendum to the Report of the – mission to Poland (A/HRC/38/38/Add.1).

The Council has before it an addendum to the Report of the – comments by Poland (A/HRC/38/38/Add.1).
[…] DIEGO GARCÍA-SAYÁN, Special Rapporteur on the independence of judges and lawyers, introducing his reports to the Council, said that his thematic report this year focused on the role of judicial councils, noting that presently, there was no set of internationally agreed rules on the composition of such bodies, nor did there exist an ideal model of a judicial council, which hampered the analysis of their efficiency. Nevertheless, establishing an independent body tasked with the protection of the independence of the judiciary was a good practice, said the Special Rapporteur, and urged States to consider establishing such a body, or any other body that would ensure judicial independence. One of the most important roles of a judicial council was the selection and appointment of judges, which must be done on the basis of merit alone, and consider the integrity and professionalism of appointees. Further, the judicial councils should be composed both of judges and non-judicial staff, such as lawyers, law professors or reputable and experienced citizens.

On his mission to Poland, the Special Rapporteur said that the Government of Poland, like any other sovereign State, had the right to reform the judiciary to strengthen its efficiency and accountability. However, the measures adopted by Poland were not sufficient to realize the stated objectives, and severely affected judicial independence. Poland had taken a number of steps which had affected the independence of the Constitutional Court, as well as the composition, organization and functioning of ordinary courts, the Supreme Court and the National Judicial Council. The first “victim” of the reforms was the Constitutional Court, undermined by a severe political interference in its composition. The Court today could not guarantee an independent and efficient review of the constitutionality of legislative acts adopted by the legislature and the defense of human rights and fundamental freedoms. The Special Rapporteur also expressed concern about the measures which had changed the composition and functioning of ordinary tribunals, the Supreme Court and the National Judiciary Council, and that the reform was being accompanied with a vast propaganda campaign against the judges, portrayed as an “autonomous organization that only looks after its own interests and is not responsible to the society”.

The cumulative effect of those measures was to affect constitutionally protected principles, and the independence of the judiciary; the legislative was placing the judiciary under its control, putting democracy in Poland at risk, said the Special Rapporteur, noting with concern the complex situation in Poland. In closing, Mr. García-Sayán commended the willingness of the Government to receive his visit and called on it to continue bilateral discussions on the matter; appealed to all States to uphold the basic principles of 1989 on judicial independence; and invited national human rights institutions, civil society organizations, judges and others, to also contribute their experiences.
[…] Poland, speaking as a concerned country, said the Special Rapporteur’s report was characterized by inconsistencies. A fair and independent judicial system was in the interest of all Polish people. The analysis of judicial reform required multi-dimensional approaches, something that was missing from the report. Unreliable and biased information was used in its formulation. Poland was strongly convinced that recent political and judicial developments must be accounted for, such as legislation regarding the Supreme Court. These developments would improve the Polish judicial system. A number of competencies vested solely within the Ministry of Justice were now shared with the President and National Judiciary Council. Poland voiced regret that the report did not mention such legislative developments nor the Government’s will to address concerns raised by international organizations.

Commissioner for Human Rights of Poland, was highly concerned about the rule of law standards in Poland. In 2017, the Government had started the process of undermining the constitutional position of the judiciary through public statements and smear campaigns. The National Judiciary Council had been elected by Parliament in a non-transparent manner. Lowering of the retirement age for Supreme Court judges now meant that judges would be removed before their constitutional terms ended. Reforms enacted by the Government created a threat to judicial independence. Judges could be subjects of disciplinary proceedings, arbitrary removals and other forms of harassment. For these reasons, in 2017 the Polish people had participated in intensive political protests across some 200 cities in the country.
[…] DIEGO GARCÍA-SAYÁN, Special Rapporteur on the independence of judges and lawyers, said that countries that already had national judicial councils in place must work to strengthen those institutions as a means to strengthen the independence of the judiciary. Countries without such councils in place must contemplate establishing them. National associations of judges could enrich efforts to create judicial councils. Turning to the independence of judges, he reiterated his position on the importance of cooperating with States in order to give impetus to the debate. In response to Poland, the Special Rapporteur reiterated his gratitude for the invitation to visit the country. The balance of powers was critical, he stressed. In Poland, the executive branch was taking up roles of the judiciary.
[…] Concluding Remarks by the Chair of the Working Group on the Issue of Human Rights and Transnational Corporations and the Special Rapporteur on the Independence of Judges and Lawyers
[…] DIEGO GARCÍA-SAYÁN, Special Rapporteur on the independence of judges and lawyers, said he was pursuing a visit to Turkey and an official request had been made. On Poland, he once again expressed his willingness to work with that Government and said dialogue on the matter could take place in several multi-governmental venues. The Special Rapporteur had received information on the situation of lawyers in Azerbaijan and relevant information could be found on the mandate’s website. The Special Rapporteur was pleased that States were reporting that national judicial councils now existed in their systems. The number of States with such bodies had doubled over the last 10 years. Preventing the politicization of national judicial councils was crucial.