JOINED STATEMENT
We, Asociația “Forumul Judecătorilor din România” (“Romanian Judges’ Forum Association”), professional association of Romanian judges, and Asociația “Inițiativa pentru Justiție” (“Initiative for Justice” Association), professional association of Romanian prosecutors, hereby wish to express our concern about the situation of Polish Judges which are subject to disciplinary proceedings as a consequence of exercising their freedom of expression by opposing political measures contrary to the rule of law, among them being prof. UŚ dr hab. Krystian Markiewicz, President of Stowarzyszenie Sędziów Polskich „Iustitia” (Polish Judges’ Association „Iustitia”).
We hereby remind that 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.
“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 European Court of Human Rights in its judgment of 23 June 2016, Baka v. Hungary.
The same European Court, in Kudeshkina v. Russia, 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. The Court recalls the “chilling effect” that the fear of sanction has on the exercise of freedom of expression. ”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 was undeniably entitled to bring to the public’s attention the matter at issue.”
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”. 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 confirms 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).
We express our moral support for the Polish colleagues in these difficult times for democracy in Poland and, hoping that the rule of law will prevail, we call on the European institutions with responsibilities in the field of ensuring the independence of justice to do everything in their power so that no judge can be subject to disciplinary proceedings for his opinions on matters of fundamental rights and freedoms, no matter under what pretext of the national authorities.
Bucharest, 12.11.2019
Asociația “Forumul Judecătorilor din România” (“Romanian Judges’ Forum Association”)
Judge Dragoş Cǎlin, co-president
Judge Lucia Zaharia, co-president
Asociația “Inițiativa pentru Justiție” (“Initiative for Justice” Association)
Prosecutor Bogdan-Ciprian Pîrlog, co-president
Prosecutor Sorin Marian Lia, co-president
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