Noticing the fluid and complex situation in Israel, The Romanian Judges’ Forum Association calls the Israeli Responsible Executive and Legislative Authorities to respect the international standards on judicial independence.
The principle of independence of the judiciary requires that the selection of judges is made upon merit and any undue political influence should be excluded. The door to potential political influence is not compatible with modern notions of independence of the judiciary, as the Venice Commission showed in several opinions, as a principle.
Only an independent judiciary is able to render justice impartially on the basis of the law and prevent the abuse of power. It is of vital importance for the rule of law that there is public trust in the proficiency of the judiciary to operate in an independent and impartial manner (see Venice Commission, CDL-AD(2018)028, Opinion on Constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement of Malta).
Undoubtedly, there are democratic states with a long tradition where the appointment of judges is made by the Parliament, but this is a highly contextual system, which has the risk that the balance might be tilted much too far towards the legislative power. This is not without its risks from the point of view of judicial independence, inter alia since judicial appointments may over time be more likely than otherwise to become a subject of party politics. The parliament is undoubtedly much more engrossed in political games and the appointments of judges could result in political bargaining in the Parliament (see Venice Commission, CDL-AD(2002)026, Opinion on the Draft Law on Judicial Power and Corresponding Constitutional Amendments of Latvia).
Finally, the reactions of the judges, through their representatives or through the professional associations they set up, are legitimate and expected.
”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).
Judges certainly have the right to stand against any other policies or actions affecting their independence resulting from new legislation or amendments to the existing one or in the case of discriminatory or selective approaches during the selection or appointment of judges, or political engineering to provide for a decisive role of the dominant political force, for example, during elections/appointment by Parliament, or interference into the judicial administration through executive bodies, for example by the Ministries of Justice, as well as in other cases. The Consultative Council of European Judges has emphasised that “it is not acceptable that reasonable critical comments from the judiciary towards the other powers of the state should be answered by removals from judicial office or other reprisals”. Thus, the CCJE Bureau resolutely confirmed the legitimate right of judges in Romania and elsewhere to stand against any policies or actions affecting their independence in a climate of mutual respect, and in a way which is consistent with maintaining judicial independence or impartiality. (Opinion of the Consultative Council of European Judges CCJE Bureau following a request by the Romanian Judges Forum Association as regards the situation on the independence of the judiciary in Romania, April 25, 2019).
Consequently, The Romanian Judges’ Forum Association calls the Israeli Authorities to abstain from any conduct that may lead to the infringement of the rule of law and the independence of the judiciary.
We support the efforts of our colleagues, judges from Israel, and their associations, for the independence of the judiciary.
The Romanian Judges’ Forum Association
January 13, 2023
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