EIN Civil Society Briefing September 2024 – Poland, Hungary and Portugal

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On the 6th of September 2024, EIN held in Strasbourg the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1507th Committee of Ministers Human Rights Meeting which will be held between 17th – 19th September 2024.

The briefing focused on the following cases:

Reczkowicz v. Poland and Xero Flor w Polsce SP. Z O.O. v. Poland

 

The Reczkowicz v. Poland and Xero Flor w Polsce SP. Z O.O. v. Poland cases concern the violation of the right to a tribunal established by law under Article 6 § 1 of the European Convention on Human Rights on account of procedurally flawed judicial appointments, undermining the independence and legality of the judicial bodies involved in deciding the applicants' cases.

In the Reczkowicz group, the judges of the various chambers in the Supreme Court (SC) that dealt with the applicants’ cases were appointed “in an inherently deficient procedure” on the motion of the National Council of the Judiciary (NCJ), which lacked independence from the legislature and the executive (violation of Article 6 § 1).

In Xero Flor w Polsce SP. Z O.O. v. Poland, the Court found grave procedural breaches in the appointment of one of the judges on the Constitutional Court panel that rejected the applicant company’s complaint, the appointment having breached the fundamental rule of Polish law.

Recommendations for the implementation of the Reczkowicz v. Poland group of cases

The Helsinki Foundation for Human Rights (HFHR) formulated the following recommendations for the implementation of the Reczkowicz v. Poland group of cases, requesting the Committee of Ministers to: 

  • Restore the independence of the National Council of the Judiciary by reforming the election procedure for judicial members of the NCJ and terminating the term of office for unlawfully elected NCJ members;

  • Ensure that the new law addresses the status of judges appointed at the request of the NCJ after 2017, in line with European standards, by introducing a fair procedure for individual verification of appointments before an independent NCJ, with a right of appeal to court;

  • Ensure that the new law regulates the effects of rulings by judges appointed post-2017, balancing the right to an independent tribunal established by law with the need for legal certainty and stability of the justice system;

  • Explicitly exclude by law the possibility of judges’ disciplinary liability for examining the appointments, independence, and impartiality of other judges;

  • Refrain from questioning the validity of the Court's rulings.

Recommendations for the implementation of the Xero Flor w Polsce SP. Z O.O. v. Poland case

Concerning instead the implementation of the Xero Flor w Polsce SP. Z O.O. v. Poland case, the Helsinki Foundation for Human Rights (HFHR) formulated the following recommendations, requesting the Committee of Ministers to:

  • Prevent unlawfully elected persons from adjudicating in the Constitutional Tribunal (CT), by prohibiting all three unlawfully elected judges from adjudicating, on both judgments on the merits and procedural decisions; 

  • Address these adjudication issues in cases other than those initiated by constitutional complaints, as they may also cause problems; 

  • Refrain from questioning the validity of the Court’s rulings; 

  • As regards individual measures, introduce a procedure to reopen proceedings initiated by constitutional complaints that were discontinued by the CT in an unlawful composition; 

  • Regulate the status of CT rulings issued in an unlawful composition, balancing legal certainty with the right to an independent court established by law (see also ODIHR’s 24 August 2024 opinion on two bills on CT, which suggests reconsidering the nullification of all judgments rendered with the involvement of "persons not entitled to adjudicate"); 

  • Implement legislative measures to prevent external undue influence on the appointment of judges. 

Relevant Documents:

The László Magyar v. Hungary group of cases concerns the violations of the prohibition against torture and inhuman or degrading treatment or punishment, due to the applicants receiving life sentences without the possibility of parole (“whole life sentences”) and without an adequate review mechanism, or life sentences with parole eligibility (“simple life sentences”) only after serving 30 to 40 years (Article 3).

 

Recommendations for the implementation of the László Magyar v. Hungary group of cases

The Hungarian Helsinki Committee formulated the following recommendations for the implementation of the László Magyar v. Hungary group of cases, requesting the Committee of Ministers to:

  • Continue examining the execution of the judgments in the László Magyar v. Hungary group of cases under the enhanced procedure.

  • Issue an interim resolution in the group of cases as foreshadowed by the CM’s September 2023 decision if “no tangible progress” is achieved in the implementation of the group of cases.

And to ask the Hungarian authorities to:

  • Abolish the institution of life imprisonment without the possibility of parole from both the respective laws and the Fundamental Law of Hungary.

  • Establish, without further delay and in accordance with a clear timetable, a review system for those already sentenced to whole life imprisonment which complies with the standards set by the Court with respect to the decision-making process, applicable procedural safeguards and its timing, and which provides a real prospect of release.

  • Ensure, without further delay and in accordance with a clear timetable, that a review complying with the standards set by the Court takes place no later than 25 years after the imposition of every life sentence, with further periodic reviews thereafter.

  • Collect and make publicly accessible relevant data.

  • Ensure that the rights violations suffered by the applicants in the László Magyar v. Hungary group of cases are fully remedied and that they are eligible for parole in accordance with the guidance of the Court and the Committee of Ministers; and provide information to the Committee of Ministers on the individual situation of each applicant.

Relevant Documents:

The Petrescu v. Portugal case involves the inhuman and degrading treatment of the applicant due to overcrowding and poor conditions in prisons, in violation of Article 3. The Court noted a structural issue of overcrowding affecting over half of Portugal's prisons and found that none of the remedies suggested by the Government were effective in addressing the applicant's detention conditions. It recommended that Portugal adopt general measures to ensure detention conditions comply with Article 3 and provide a remedy for prisoners to prevent continued violations or improve their conditions.

Recommendations for the implementation of the Petrescu v. Portugal case

The European Prison Litigation Network and Forum Penal formulated the following recommendations for the implementation of the Petrescu v. Portugal case, requesting the Committee of Ministers to: 

  • Underline the need for political commitment to tackle structural overcrowding and poor prison conditions.

  • Reaffirm the need to “adopt a comprehensive strategy aimed at identifying and tackling the root causes of prison overcrowding” (CM/Del/Dec(2023)1475/H46-25), in consultation with all stakeholders, including civil society.

  • Recommend in particular to address the root causes of long prison sentences and lack of access to sentences adjustment in Portugal.

  • Reiterate the need to establish an effective judicial preventive remedy as well as a judicial compensatory remedy capable of providing timely compensation for inadequate detention conditions, and to ensure that prisoners can make effective use of these remedies, including through effective access to legal information, a lawyer and legal aid.

  • Recommend substantial investment in social services to support prisoners’ reintegration and access to early release schemes.