ROMANIA, DECEMBER 2017: MAGISTRATES CAN PROTEST. MAGISTRATES SHOULD PROTEST / AMICUS CURIAE BRIEF FOR THE CONSTITUTIONAL COURT OF ROMANIA
ROMANIA, DECEMBER 2017: MAGISTRATES CAN PROTEST. MAGISTRATES SHOULD PROTEST
Romania, December 2017. Exactly a week before Christmas, hundreds of Romanian judges, prosecutors, and trainee magistrates silently protested in front of their institutions, holding their robes or the Constitution, but most of them showing printed versions of the common oath they took when sworn into office at the beginning of their career: “I swear to obey the Constitution and the laws of the country, to defend the fundamental rights and liberties of people, to fulfill my duties with honour, conscience, and without prejudice. So help me God!”
In essence, the protests came after the Parliament adopted the so-called “justice laws”, consisting in substantial changes in the three main laws affecting the organization and the statute of the judiciary without taking into consideration the firm opposition of more than half of the judiciary. Moreover, the silent protests concerned the announced changes in the criminal codes which would dramatically limit the investigation powers of police and prosecutors, as well as the possibility to protect the victims and identify criminals, no matter the nature of the crime (murder, theft, rape, corruption etc.).
Bucharest, Cluj, Constanţa, Timişoara, Iaşi, Galaţi, Craiova, Piteşti, Braşov, Bacău, Baia Mare, Suceava, Botoşani, Brăila, Satu Mare, Oradea, Călăraşi, Miercurea Ciuc, Zalău, Slatina, Târgovişte, Târgu Mureş, Tulcea, Piatra Neamţ. These are the main cities where magistrates protested against the actions of the Parliament.
During and after these protests, there where some voices in the news that challenged our right to protest, saying that the law forbids magistrates to protest in any way. This text sets forth to prove that not only can magistrates protest, but also that there are causes and situations where their very oath calls on them to do so. To begin with, aiming to settle the first issue, whether the law actually forbids any form of
protest, we must say that the law only forbids political reunions by magistrates, not any sort of public reunion and gathering. Therefore, art. 9 from the Statute of Judges and Prosecutors states that judges and prosecutors cannot be members of political parties, nor carry out or participate in political activities, being also forbidden to publicly state or in any way show their political preferences. What is essential in understanding the prohibition of political activities, but not any type of public activity (e.g. silent public protest), is the distinction between “politics” and “policies”. Politics, defined very simply as the activity concerning governance, is – without a doubt – beyond the scope of a magistrate’s activity, falling under the interdiction stated above.
Ironically, the changes made in the laws allow a magistrate to be a member of the executive branch (Government) and then resume his or her position as a magistrate. Although this is not the purpose of this short paper, it is worth mentioning that the most vocal critics of the magistrates’ right to protest voted that magistrates can be ministers in the Government; in simpler words, they are saying magistrates cannot criticize laws now, but they can pass laws in the future.
Policies, on the other hand, explained very shortly as a course of principle of action adopted or proposed by an organization or individual, should be debated, discussed, and – if the case – protested against by all the stakeholders involved by the policies. Romanian magistrates did not protest against a political party or another (an activity strictly forbidden without a doubt), but against public policies adopted in the field of justice, affecting them directly as main stakeholders, along with each and every citizen or resident of the country.
Therefore, the question is not whether they can, but rather why and when magistrates absolutely should protest.
AMICUS CURIAE BRIEF FOR THE CONSTITUTIONAL COURT OF ROMANIA
The Romanian Judges’ Forum Association hereby requests the approval to submit the following arguments in connection to the constitutional objections on the provisions of the Law regarding the amendment of Law no. 303/2004, the Law regarding the amendment of Law no. 304/2004 and the Law regarding the amendment of Law no. 317/2004, raised by the High Court of Cassation and Justice, the Parliamentary group of the National Liberal Party of the Romanian Chamber of Deputies (52 deputies) and the Parliamentary group of the National Liberal Party of the Romanian Senate (29 senators).
The undersigned Romanian Judges’ Forum Association, an independent, nonprofit, non-governmental and apolitical association of Romanian judges, having legal personality established by the Slatina District Court’s decision no. 671/08.06.2007, is aware of the fact that, from a procedural perspective, it does not have the status of intervenient (party) in these constitutional procedures.
Therefore, we submit the present amicus curiae, a legal institution that distinguishes itself from an intervention, recognised as such by the common law system Courts, including the European Court of Human Rights. The amicus curiae allows persons who are qualified in a particular field to participate in the procedure, their observations being meant to support the correct solution in the case. Throughout the Constitutional Court’s jurisprudence, the amicus curiae briefs were received and examined together with the requests of the parties, for example: Decision no. 780 of 17 November 2015 on the constitutional challenge of the provisions of Article 1 of Law no. 41/1994 regarding the organisation and operation of the Romanian Radio-Broadcasting Corporation and of the Romanian Television Corporation, published in the
Official Gazette of Romania, Part I, no. 108 of 11 February 2016 – amicus curiae by the Romanian Transparency Association; Decision no. 308 of 28 March 2012 on the constitutional challenge of the provisions of Article 1, letter g) of the Lustration Law regarding the temporary limitation of access to certain public positions and titles for people who were part of the power structures and the repressive apparatus of the communist regime during the 6 March 1945-22 December 1989 period, published in the Official Gazette of Romania, Part I, no. 309 of 9 May 2012 – amicus curiae by the Romanian Ombudsman and
the Association of Romanian Prosecutors’ Board of Directors, Decision no. 887 of 15 December 2015 on the constitutional challenge of the provisions of Article 38 point 2, Article 38 point 3 para. (1), (3) and (5), Article 38 point 9, Article 41 point 1 and Article 41 point 2 of the Urgent Government Ordinance no. 77/2014 regarding national procedures in the field of state aid, as well as for the amendment of the Competition Law no. 21/1996, as well as of the provisions of Article II of the Law no. 20/2015 regarding the approval of this Urgent Government Ordinance, published in the Official Gazette of Romania, Part I, no. 191 of 15
March 2016 – amicus curiae by the European Commission; Decision no. 637 of 13 October 2015 on the constitutional challenge of the provisions of Article 26 para. (3) of the Law no. 360/2002 regarding the status of the policeman, published in the Official Gazette of Romania, Part I, no. 906 of 8 December 2015 – amicus curiae by the Romanian Police Officers Union “The diamond”, Emil Florin Dinca, Armin Marian Gherman and the National Union of Police and Customs Officers Pro Lex; Decision no. 56 of 5 February 2014 on the constitutional challenge of the provisions of the Law regarding the modification and the
amendment of the Government Ordinance no. 26/2000 on associations and foundations, published in the Official Gazette of Romania, Part I, no. 179 of 13 March 2014 – amicus curiae by the Association for the Defense of Human Rights in Romania – Helsinki Committee; Decision no. 75 of 26 February 2015 on the constitutional challenge of the provisions of Article 19 para. (1) and (3) of the Law regarding political parties no. 14/2003, published in the Official Gazette of Romania, Part I, no. 265 of 21 April 2015 – amicus curiae by the Association for Pertinent Minds AMPER from Târgu Mureş; Decision no. 462 of 17
september 2014 on the the constitutional challenge of the provisions of Article 12 para. (2), Article 83 para. (3) and Article 486 para. (3) of the Civil Procedure Code, published in the Official Gazette of Romania, Part I, no. 775 of 24 October 2014 – amicus curiae by the National Association of Romanian Bars; Decision no. 283 of 21 May 2014 on the constitutional objection on the provisions of Article 39 para. (6), Article 42 para. (1) and (10), Article 43 para. (2), Article 48 para. (1) and (8), Article 51 para. (6), Article 57 para. (6), Article 59 para. (6), Article 62 para. (2), Article 75 para. (4), Article 77 para. (4), Article 111 para. (2) and Article 160 para. (5) of the Law regarding the procedures of insolvency prevention and of insolvency, as well as the provision of the law as a whole, published in the Official Gazette of Romania, Part I, no. 454 of 20 June 2014 – amicus curiae by the Romanian National Association of Practitioners in Insolvency; Decision no. 447 of 29 October 2013 on the the constitutional challenge of the provisions of the Urgent Government Ordinance no. 91/2013 regarding the procedures of insolvency prevention and of insolvency, published in the Official Gazette of Romania, Part I, no. 674 of 1 November 2013 – amicus curiae by the Association for the Defense of Human Rights in Romania – Helsinki Committee).