CSM's Judges' section: Regulating judge-minister incompatibility, national legislator's option

Regulating incompatibility between the office of judge and that of minister of justice depends on the option of the national legislator and not on the standards established by the Venice Commission, the Judges' Section of the Supreme Council of Magistracy (CSM) explained on Friday. The explanation came in the context in which President Klaus Iohannis on Thursday pointed out, in reply to the stand of the Superior Council of Magistracy (CSM) regarding Dana Girbovan, that "the opinion of the CSM judges' section represented "a clear attack to Justice's independence and prestige" and it was "worrying" and meant "to make vulnerable, through itself, the independence and prestige of the statute of judge, as it induces the idea that a judge can fill in a minister position. He also said that, before sending that release, the members of the section should have read the recommendations of the Venice Commission, according to which a judge should resign before competing for a public office, because, even if he/she is not appointed in the end, he/she will be thought to have a certain political colour, which will affect her/his independence. The Section for judges claims, in a release sent to AGERPRES on Friday, that the recommendations of the Venice Commission, mentioned by President Klaus Iohannis, refer to the laws in Kyrgyzstan, which regulated the candidacy of a magistrate for a public office by participating in elections, which implies that the respective judge needs to make a campaign. According to the Section for judges, the law analyzed by the Venice Commission says that the judge is appointed again in office as soon as the state of incompatibility disappears, while this fact won't affect his/her independence from that point on. "Regulating incompatibility between the office of a judge and that of a minister of justice depends on the option of the national legislator and not on the standards established by the Venice Commission," said the CSM Judges' Section. In respect to the Romanian laws, the magistrates mentioned the Decision no. 45/2018, by which the Constitutional Court showed that the office of a judge or prosecutor is incompatible with any other public office, and that this incompatibility remains valid even in the case of the suspension from office of the respective judge. "However, there is nothing in the decision of the Constitutional Court that could lead to the conclusion that if a judge accepts to be proposed for the office of minister of justice it doesn't mean, de plano, that he/she is involved in a political activity. A conclusion like this can only be drawn if we interpret the decision of the Constitutional Court of a distorted manner and contrary to the legal reasoning included in its considerations," mention the CSM judges. According to them, in what concerns the actual incompatibility, this appears the moment when two offices are held simultaneously, which is not the case when some just accepts a proposal for appointment. "The analysis of the legal texts and their interpretation, in the letter and spirit of these provisions, besides serious legal knowledge, implies rigor and their interpretation in accordance with the purpose for which they were edicted. When the status of a judge is discussed, specifically, this analysis must be carried out completely independently, without political or other interests. For this reason, all issues regarding the status of judges, including the incompatibilities regime, are the exclusive competence of the Judges' Section of the Superior Council of Magistracy and not of the President of Romania," reads the release. According to it, the transmission by President Klaus Iohannis, in categorical terms, of "directives" to the judges' section on how to interpret and apply the rules regarding the status of judges is "unacceptable". "The judges' section does not accept orders from any other power in the state, especially from a president who is currently involved in an electoral campaign and who wants to involve Justice in the political battle," the CSM Judges' Section said in a statement. AGERPRES (RO - author: Mihai Stoica, editor: Claudia Stanescu; EN - author: Cristina Zaharia, editor: Adina Panaitescu)