Within the scope of our new project we are publishing interviews with prominent European lawyers, judges, academics and executives of associations of lawyers or judges. Our fifth interview is with José Igreja Matos who is First Vice President of the International Association of Judges (IAJ) and President of the European Association of Judges (EAJ).
Q1: Mr Matos, you are president of President of European Association of Judges and First-Vice President of International Association of Judges? Could you tell us about EAJ and IAJ and their work?
Mr Matos: The International Association of Judges (www.iaj-uim.org ) was founded in Salzburg (Austria) in 1953. It is a professional, non-political, international organisation, bringing together national associations of judges, not individual judges. The International Association of Judges (IAJ) is composed by only one national association or group of judges, the most representative one, for each country.
The main aim of IAJ is to safeguard the independence of the judiciary, which is an essential requirement of the judicial function, guaranteeing human rights and freedom.
The organization currently encompasses 92 national associations or representative groups, from five Continents. IAJ is the largest association of judges in the world, representing directly more than 120.000 judges.
The European Association of Judges (https://www.iaj-uim.org/european-association-of-judges/ ) is a regional branch of the International Association of Judges and represents national associations of 44 countries, practically all the European countries.
Symbolically, YARSAV continues to be our Turkish member despite this association has been dismantled by the Turkish Government after the “coup d’état” of 2016.
Q2: As the executive of very important professional associations, you are dealing with wide-range of issues. The worrisome decline in terms of the independence of the judiciary in the Europe Union is one of those (i.e: Poland, Hungary). What should we do to prevent this decline from spreading to other countries?
Mr Matos: The decline of Rule of Law in different parts of the world is an indisputable fact and Europe is not an exception, quite the opposite.
The European Association of Judges has been working intensively in order to vividly denounce the Rule of Law decay, particularly in Poland and Hungary considering EU countries, and to alert political authorities and civil societies, as a whole, for the crucial importance of an Independent Judiciary.
To have independent judges is not a privilege for judges – in fact, it demands, especially in moments of crisis, an additional burden for judicial activities – but an essential guarantee for citizens.
The main stoppage for the risk of dissemination to other countries, particularly in Eastern Europe, lies precisely on the acute cognizance by each national community, each individual citizen, of the crucial importance for anonymous lives on having impartial courts that decide their judicial cases regardless of the political, social or economic “status” of the litigants.
The “March of the 1000 Robes”, held last January in Poland, was an impressive example of the communion between European legal professions and Polish civil society to assure the protection of our democratic values. Unfortunately, as I try to describe on a speech talking to the thousands of persons assembled in Warsaw, and quoting a phrase of Cicero stated centuries ago: “more is lost by indecision than wrong decision. Indecision is the thief of opportunity.” These words addressed the critical importance, today, that European political authorities listen to the voice, humble but determined, of Polish Judges, of European Judges, about the debacle of judicial independence in the country.
Mr Matos is giving a speech in the March of the 1000 Robes
Q3: Rule of law is one of the values the European Union is founded on. An independent and impartial tribunal is guaranteed by Art. 6 ECHR which all members of Council of Europe are party to. However, legal texts cannot ensure this principle is observed. Support and vigilance of fellow citizens are essential. How can we better explain that the independence of the judiciary and lawyers exists to ensure the right to a fair trial of individuals to fellow citizens and secure their support?
Mr Matos: Perhaps the best way to explain how independent judges are decisive to ensure the right to a fair trial will be by telling a story; a true one.
It happened recently in a European country. The case was voiced to me by a female colleague judge. In a normal work day she was approached by a group of prosecutors. A detention of several citizens – five, as I remember – was underway linked to a criminal investigation about corruption. The prosecutors were very insistent on the importance of having all these citizens arrested immediately. She, calmly, asked for some time to analyse the judicial files and, after long hours of work, she concluded that the evidences were very weak in a clearly political orientated investigation. In the end, she denied the request of the Prosecutorial Services. “My professional career is ruined” – she explained to me, mindful of the massive interference by the current Government on the judiciary. Due to her commitment to judicial independence – a fundamental part of the “genetical code” of judges – she decided impartially to protect those concrete citizens from the unacceptable pressure of political authorities, obstructing an unlawful arrest.
If we have a country where judges cannot adjudicate submitted only to the Law and their conscience, the inevitable cost will be severely paid by all the citizens that, for some reason, lost the favour of those really in charge; judges should not be named as judges anymore, only as public officers obeying to orders.
Q4: Title of one of your recent articles was ‘A “Marshall Plan” for Rule of Law in Europe’? Could you explain this idea for our readers?
Mr Matos: The article was written for “Verfassungblog” and can be read here: https://verfassungsblog.de/a-marshall-plan-for-rule-of-law-in-europe/.
The proposal of a “Marshall Plan” for Rule of Law in Europe derives from the total absence of dialogue by autocratic politicians.
Thus, the execution of European Arrest Warrants or other demands on the context of judicial cooperation put forward by Member States, such as Poland or Hungary, is likely to prove an unbearable decision for national courts in European Union countries; “mutual trust” cannot survive without judicial independence. Mentioning an impressive statement by the President of European Commission, in the context of the present pandemic crisis, that powerfully appealed to a “massive investment in the form of a Marshall Plan for Europe”, I emphasised that European judges would like to perceive the same “Marshall Plan” levels of determination to solve economic problems being employed for the crucial topic of Judicial Independence.
In a historic common statement subscribed by the President of European Network of Presidents of Supreme Courts, the president of the European Network of Councils for the Judiciary and the President of the European Association of Judges addressed precisely to the President of the European Commission, we conveyed a message that could not be more unequivocal:
“We firmly believe that without an independent judiciary in all Member States, the Union will eventually cease to exist as a common space for Democracy and the Rule of Law”.
Q5: You said ‘The ongoing Rule of Law catastrophe, has been, unsurprisingly, aggravated in recent weeks by some urgent legal measures enforced by some countries after the pandemic.’ Do you think measures adopted during COVID19 outbreak can turn into permanent restrictions?
Mr Matos: There is a concrete and real danger that the restriction measures adopted because of the pandemic will become permanent, particularly in the populistic times we are living.
One of the main points we always tried to highlight was the temporary nature of the measures taken in the context of fighting Covid19. An emergency bill, or any other legal measure, aiming to contain the spread of the coronavirus, is obliged, in all cases, to comply with the principles of Rule of Law such as those of necessity, proportionality, democratic scrutiny, reviewability, equal protection of the law and transparency of information.
But besides all these requirements is essential that those measures are restricted in time with the imposition of temporarily short “sunset clauses” and directed only to struggle a wealth problem. Freedom of expression, for instance, must be permanently ensured.
Q6: Our next questions are about the Council of Europe / The European Court of Human Rights and Turkey. We have enjoyed the incredible solidarity offered by EAJ and IAJ which has shown great interest in the problems of arrested judges, prosecutors and lawyers in Turkey. You have great insight into the human rights situation in Turkey, especially relating to the legal profession as a whole, what would you like to say to our European colleagues as to how they could help their Turkish colleagues?
Mr Matos: The suffering of our Turkish colleagues since 2016 has been horrific and remains to this very day unspeakably painful for all of us; following the detention of several thousands of judges and prosecutors, including the Vaclav Havel Prize winner, Murat Arslan, President of Yarsav, the Turkish member of IAJ/EAJ, the same autocratic government decided, because of the pandemic, to release thousands of prisoners, including the most violent ones, refusing ruthlessly to discharge judges, prosecutors, lawyers or any others human rights defenders.
The very recent passing of lawyer Ebru Timtik, aged 42, is yet another very sad illustration of the unacceptable ordeal of the Turkish judiciary.
But, for us, European Judges, the persecuted Turkish colleagues, fighting for their daily survival along with their families, will never be forgotten. Make no mistake about it!
Regarding this topic, allow me to specify two of the many initiatives of IAJ/EAJ devoted to assist the Turkish judiciary.
The terrible situation of Turkish judges has induced all four European Associations of Judges – the Association of European Administrative Judges (AEAJ), the European Association of Judges (EAJ), the Judges for Judges (J4J) and the “Magistrats Européens pour la Démocratie et les Libertés” (MEDEL) – to join together in their activities and form a network: the Platform for an Independent Judiciary in Turkey.
The numerous documents issued and activities done by the Platform can be consulted here: https://www.iaj-uim.org/platform-for-an-independent-judiciary-in-turkey/.
But the most important instrument created by IAJ/EAJ was a Provident Fund to assist financially our Turkish Colleagues in terms of humanitarian assistance.
Several reasons show the relevance of this Fund. The first – and most important – is related with our Turkish Colleagues and their expectations. It is very clear that the mere existence of a Fund managed by an international association of judges is a permanent symbol – perhaps the more concrete and effective one – of European solidarity towards the torment of Turkish judges. In the same context, the psychological part of the support (showing the victims that there are still many people around the world who care about them) plays a significant role. This assessment is confirmed by the multiple reactions that always state how grateful our Turkish Colleagues are for our modest efforts.
Since the establishment of the Fund until last April 2020, 209 applications were approved and about 160,000 Euros were spent. Due to pandemic, the number of requests has increased considerably in recent months and just this year the Fund has already decided to give more than 30.000 Euros.
The contributions to the Fund are accessible to the public in general although the immense majority of contributors have been national associations of judges and individual judges.
The contributions can be easily made through a transfer to the Bank account identified in the following link: https://www.iaj-uim.org/news/bank-account-for-the-provident-fund-of-the-iaj-on-turkey-and-other-emergency-situations-affecting-the-judiciary-in-europe/
Q7: Since 2016, Turkish judiciary started to establish relations with Russia, China and Venezuela. Turkish judges were sent to China for training. Turkey’s High Election Board which is a high court signed a cooperation protocol with its Russian counterpart. Recently, President of Turkish Court of Cassation held a meeting with his Venezuelan counterpart. Do you think COE/ECtHR correctly see and understand these signs?
Mr Matos: This question must be addressed to COE/ECtHR. However, it is clear that autocratic regimes are always in close communication; in this sense, it would be critical that those who defend Democracy and Rule of Law work together in a more strong and meaningful manner.
Q8: In the cases of Alparslan Altan and Hakan Bas the ECtHR decided that detention of judges without respecting procedural steps laid in the Law on Judges and Prosecutors infringes the principle of judicial independence. However, the Court of Cassation and the TCC in their recent judgments refused to comply with these decisions. And his recent letter Alparslan Altan who has been in solitary confinement for four years says “I can’t breathe anymore; do you hear me?”. In your opinion, should the ECtHR cease to consider the TCC as a source of effective remedy?
Mr Matos: In my opinion, the answer is plain and simple: yes. The actuation of TCC over the last long years eloquently speak by itself.
Q9: December,2019, the European Council adopted a human rights sanction regime. Can it produce accountability, to some extent, for those responsible for gross human rights violations, and help to improve the situation in Turkey?
Mr Matos: All those who defend Human Rights and Rule of Law can only expect that this new human rights mechanism will improve the situation in regimes unmoved to essential values that defines us as societies and, particularly, as human beings.
The deterioration of Human Rights is a major setback in several Member States of Council of Europe and has worsened in recent years. On the other hand, the temptation of “dystopian” policies emulated by the present pandemic is now evident and not only in repressive regimes.
The hard times we live in make the protection of fundamental principles of democracy and rule of law more urgent and bolder.
However, there is no other way to progress and move forward.
Otherwise, regrettably, the fundamental duties that explain long-established international institutions risk to lose their own “raison d’être”.