The Romanian Judges’ Forum Association and the Association “Initiative for Justice” ask Romanian President to respect the independence of justice, as well as the separation of powers, and not to accept the proposal of the Romanian Government to appoint a judge in the position of minister of justice

Regarding the possibility of appointing judges to the position of minister of justice or other appointed public dignity, the Venice Commission has consistently ruled that “judges may not be members of political parties or participate in political activities” [CDL-AD(2005)003-e Joint Opinion on a Proposal for a Constitutional Law on Changes and Amendments to the Constitution of Georgia by the Venice Commission and OSCE/ODIHR endorsed by the Commission at its 61st Plenary Session, para.104 [1]]. “Moreover, judges should not put themselves into a position where their independence or impartiality may be questioned. This justifies national rules on the incompatibility of judicial office with other functions and is also a reason why many states restrict political activities of judges.”[CDL-AD(2010)004-e, Report on the Independence of the Judicial System Part I: The Independence of Judges adopted by the Venice Commission at its 82nd Plenary Session (Venice, 12-13 March 2010), para. 62 [2]]]. Also, the Venice Commission has stated that “(…) the judge should first resign before being able to contest political office, because if a judge is a candidate and fails to be elected, he or she is nonetheless identified with a political tendency to the detriment of judicial independence” [CDL-AD(2008)039, Opinion on the draft amendments to the Constitutional Law on the status of judges in Kyrgyzstan, para. 45 [3]].

In this context, including the Romanian Constitutional Court, in Decision no.45/2018, it held that “as long as the person holds the position of judge or prosecutor, he/she can only perform the activities specific to these functions. The appointment or detachment in positions of public dignity, regardless of their name, cannot be accepted in the light of the provisions of the Constitution, as there is inevitably a change in the kind of work they perform, which, in reality, justifies the rights and obligations related to their status. Moreover, the entire statute of the judge / prosecutor, axiomatically, focuses on their constitutional role, as defined in art. 124 and 125, respectively art. 131 and 132 of the Constitution. However, assuming, through various mechanisms [appointment / detachment], a role different from that of carrying out justice and / or defending the general interests of the society, the order of law, as well as the rights and freedoms of citizens, is violating, on the one hand, the principle of the independence of judge, the principle of separation of powers and the provisions regarding the role and incompatibilities of judges [art. 1 paragraph (4), art. 124 and art. 125 paragraph (3) of the Constitution], and, on the other hand, the constitutional provisions regarding the role and incompatibilities that accompany the status of the prosecutor [art. 131 and 132 of the Constitution]. ” 

As a consequence, the Romanian Constitutional Court has found that “the position of minister of justice is incompatible with that of judge / prosecutor, being unable to cumulate these two qualities neither according to the Constitution, nor to the Law no. 303/2004 “. In this context, the Government’s proposal to the President of Romania to appoint an acting magistrate, judge in the Cluj Court of Appeal, ignores flagrantly and inexcusably the provisions of the Romanian Constitution, as well as the principle recommendations of the international organizations. 

Moreover, there are indications that, by publicly accepting this candidacy, the acting judge violates the same constitutional provisions (including the indicated Constitutional Court decision), questioning the independence of the judiciary as a whole, as well as the separation of powers, as held the Romanian Constitutional Court, constituting disciplinary misconduct, based on art.99 of Law no.303/2004 regarding the status of judges and prosecutors, both “d) carrying public activities of political character or manifesting political convictions in the exercise of the duties of service”, and “ş) non-observance of the decisions of the Constitutional Court or of the decisions given by the High Court of Cassation and Justice in appeals in the interest of the law”, aspects to which the Superior Council of Magistracy and the Judicial Inspection have the constitutional obligation to self-assert and take the measures required for respecting the Constitution of Romania. 

We are highlighting the context in which this “nomination” occurred, respectively during of an essentially political dispute, of an internal struggle for the ruling party’s removal of a member from his position of minister, without consistent explanations regarding this acute state of things. Under such conditions,  the mere acceptance by a judge of the inclusion of his name in the political dispute, in order to determine the taking over of the portfolio by political decision, can create for an external and objective observer the perception of participating in power games, from which a magistrate independent and impartial must maintain a reasonable distance. 

At the same time, this political nomination, accepted by the judge in question, president of the National Union of Judges in Romania, can be regarded by the  public as a reward for the effervescent activity of the association in question (together with the Romanian Magistrates’ Association) in supporting some harmful changes, in the last three years, by the political power of the laws of justice, contrary to the rule of law, vehemently challenged by all relevant international organizations (Venice Commission, Consultative Council of European Judges, Consultative Council of European Prosecutors, European Commission, European Parliament, GRECO etc.), by Superior Council of Magistracy in Romania, by the large majority of courts and prosecutor’s offices in Romania, but also, by thousands of Romanian judges and prosecutors (especially the creation of the Section for investigating criminal offenses, proposed and firmly supported by the candidate judge for the position of minister in  “Iordache Commission” [4] ).

Against these associations of judges and prosecutors (the National Union of Judges in Romania and the Romanian Magistrates’ Association), over 2000 magistrates have individually delimited during 2018, considering that the positions expressed in the legislative process were inadequate for the evolution of the judiciary. Also, some branches of these associations dissolved, and many members resigned, for the same reasons.

Last but not least, the appointment in a political government of a judge, president of a professional association, can be regarded as irredeemably diminishing its activity, and perceived at public level as being eminently related to the political factor and its leaders from a certain moment, having serious consequences on the image of the entire Romanian justice system and the magistrates’ body.

Romanian JudgesForum Association

judge Dragoș Călin, co-president

judge Anamaria Lucia Zaharia, co-president

Association “Initiative for Justice”         

prosecutor Bogdan Pîrlog, co-president

prosecutor Sorin Lia, co-president

prosecutor Ionuț Marcu, co-president

 

[1] see web page http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)003-e [last accessed on 23.08.2019].

[2] see web page http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)004-e  [last accessed on 23.08.2019].

[3] see web page http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2008)039-e   [last accessed on 23.08.2019].

[4] see web page https://www.cotidianul.ro/argumentele-judecatoarei-dana-girbovan/ [last accessed on 23.08.2019].

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