The Romanian Judges’ Forum Association: Disciplinary investigation of magistrates who hold an office of representation in an association, for a press release issued on behalf of the association, is likely to turn into an action targeted against the entire association, which raises questions in the light of freedom of association and expression

On the occasion of announced disciplinary inquiries on the two Co-Presidents of the Association Initiative for Justice,  prosecutors Sorin Marian Lia  and Bogdan Ciprian Pîrlog, for  simply issuing a press release, the Romanian Judges’ Forum Association brings to the attention of public opinion some essential principles for the free association of magistrates and their freedom of expression.

Thus, the case law of the European Court of Human Rights guarantees the protection of the ideas and opinions expressed by the associative forms, as a collective exercise of freedom of expression,  provided by art. 10 of the Convention (see case Refah Partisi and Others v. Turkey, Decision from 13 February 2003).             

On the other hand, the existence and activity of associations with concerns in the field of justice were and are necessary to increase the efficiency of  legal institutions, their transparency, as well as the quality of  Justice system.

Judicial independence is a value that must be defended both from inside, with the implication of law professionals, and from outside, with the help of civil society.

When democracy and the fundamental freedoms are in danger, the judge’s reserve duty becomes subsidiary to the indignation obligation (Declaration on Judicial Ethics, adopted by the General Assembly of the European Network of Judicial Councils, held in London on June 2-4, 2010).

Consequently, the reactions of the magistrates, through their representatives or through the professional associations they set up, are legitimate and expected.

The Bangalore Principles underline the right of any judge to freedom of expression and opinion, freedom of association and freedom of convictions, with due regard for the dignity of the judicial function, so that neither independence nor impartiality is prejudiced.              

In Europe, in 2008, Spanish magistrates signed a Manifest for a rational debate on criminal policy. The President of the Spanish Council of Justice (CGPJ) has requested for an investigation of judges to determine whether their disciplinary liability may be committed. Subsequently, the file was closed.              

In 1987, the Superior Council of Magistracy from France ruled on a case of a prosecutor who, during the opening session of the judicial year, expressed a trenchant public opinion: preference for prevention instead of conviction in the field of drug abuse. The Council dismissed the disciplinary action brought by the Minister of Justice, given that “if a breach of the reserve duty can lead to abuses or to simply excesses and challenges, they can not be expressed by a nonconformist idea“.              

The opinions expressed by magistrates on the proper functioning of justice, a matter of public interest, are conventionally protected “even if they have political implications, judges can not be prevented from engaging in the debate on these issues.”              

“Fear of sanctions can have a discouraging effect on judges in expressing their views on other public institutions or public policies. This dissuasive effect is at the expense of society as a whole (…) “, as mentioned by the ECHR judges in the reasoning of the Baka v. Hungary Decision.              

The same European Court, in Kudeshkina v. Russia, on the occasion of an analysis of the freedom of expression and  finding of a violation of Article 10 of the Convention:         “82. (…)    Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which … must, however, be construed strictly, and the need for any restrictions must be established convincingly .

86. The Court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10. However, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313). The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V). What is at stake as regards protection of the judiciary’s authority is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large (see, mutatis mutandis, among many other authorities, Fey v. Austria, 24 February 1993, Series A no. 255-A). For this reason the Court has found it incumbent on public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question (see Wille, cited above, § 64).

99. The Court recalls the “chilling effect” that the fear of sanction has on the exercise of freedom of expression (see, mutatis mutandis, Wille, cited above, § 50; Nikula v. Finland, no. 31611/96, § 54, ECHR 2002‑II; Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 114, ECHR 2004‑XI; and Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 714, 13 November 2003). This effect, which works to the detriment of society as a whole, is likewise a factor which concerns the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was undeniably entitled to bring to the public’s attention the matter at issue.. ”       

The Charter of Rome, adopted by Opinion no. 9 (2014) of the Consultative Council of European Prosecutors regarding European Rules and Principles on Prosecutors expressly states that “prosecutors enjoy the right to freedom of expression and association.”              

In the MCV report of 13.11.2018, the European Commission considered that “several problematic changes affect the independence of magistrates and limit the role of the Superior Council of Magistracy, which is the guarantor of the independence of the judiciary, including limitations on freedom of expression and information, which calls into question the ability of magistrates to express themselves on certain issues and legislative changes that affect the functioning of justice, “and it is recommended” to ensure that the Code of Conduct for Members of Parliament, which is being drafted in Parliament,   includes clear provisions on mutual respect between institutions, and it is clearly stated that lawmakers and the parliamentary process must respect the independence of the judiciary. A similar Code of Conduct could be adopted for ministers. “

On 16 May 2019, the Bureau of the Consultative Council of European Prosecutors issued an Opinion on the situation of  prosecutors’ independence in Romania, in the context of amendments to the laws of justice and constant attacks against magistrates in Romania.

Among other things, regarding the creation of a distinct structure of the Public Ministry for the investigation of crimes committed by judges and prosecutors, the CCEP Bureau recommended the complete abandonment of this initiative.

The CCEP Bureau concluded that the new obligation imposed on prosecutors by limiting their freedom of expression is unnecessary, raises many questions, may be  subject to abusive and contradictory interpretations, endangering the independence of the prosecutor, so it is advisable to remove that change. Regarding repeated and unprecedented attacks on prosecutors, the CCEP Bureau has condemned any statements, comments or remarks in Romania that go beyond the boundaries of legitimate criticism, and whose actual purpose is in fact to attack, intimidate, exert any other kind of pressure on prosecutors or their humiliation, by using inappropriate arguments, as well as disregarding in any other way the Public Ministry or the prosecutors individually. As regards the right of prosecutors to protest against policies or actions that could affect their independence and autonomy, the CCEP Office has absolutely confirmed the legitimate right of prosecutors in Romania or elsewhere to protest against these actions in a climate of mutual respect and in a way compatible with the preservation of the independence and impartiality of the prosecutor status. ”              

Therefore, criticism against the organization and functioning of the Section for Investigating the Crimes committed by Magistrates (SIIJ) can be brought to public debate by the Romanian magistrates as a corollary of their independence, as shown both by the Bureau of the Consultative Council of European Prosecutors and by the Council Bureau Consultative Committee of the European Judges, taking into account as well the numerous judicial steps to invoke the illegality, unconstitutionality, breach of European Union law, etc., presented by the Association “Initiative for Justice” in that press release.              

At the same time, as a principle, we can not individually reproach to a magistrate holding a function of representation in an associative form  assuming an opinion embraced unanimiously or by a majority of members, an opinion which, in the light of the democratic rules governing the associative decision quorum, would have been obliged to promote it anyway, even in case of a contrary individual view.              

Moreover, in such a case, the disciplinary investigation of a magistrate who has a leading position in an associative form, for a press release issued on behalf of the association that the magistrate represents, risks to be transformed into an approach against a whole association, which raises questions in connection with the freedom of association and the correlative expression of the associative form.              

It also seems worrying that the two structures of control over the magistrates’ career (SIIJ and the Judicial Inspectorate) have notified each other, through their chiefs, this unique fact has caused a serious debate in the public space on the risk of a lack of impartiality, an essential requirement for the rule of law.               

The Romanian Judges’ Forum Association              

Judge Dragoş Cǎlin, co-president              

Judge Anca Codreanu, co-president

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