The judicial community learned of the final wording of the amendments to the Judicial Code primarily from discussions held in the National Assembly.
“The draft amendments to the Code concerning the Ethics and Disciplinary Committee of the General Assembly of Judges (hereinafter also referred to as the Committee) contain significant risks of infringing on the independence of judges from the perspective of the Constitution and international best practice standards and do not ensure the preservation of the necessary mechanisms to protect independence, as defined by the Venice Commission (CDL-AD(2023)045 and CDL-AD(2024)031).
Therefore:
1. The independence of judges is a paramount value.
The Venice Commission has clearly and consistently emphasized that the primary objective of the amendments to the Judicial Code is to protect the independence of the judiciary, and any alleged concerns or justifications regarding “judicial corporatism” cannot prevail over the state’s positive obligation to guarantee the independence of the judiciary.
The proposed amendments allow disciplinary proceedings to be initiated only with the participation of non-judges, which contradicts the standards and mechanisms previously proposed by the Commission, which ensure bilateral or simultaneous participation (of both judicial and non-judicial members). Establishing and applying such a low threshold for initiating disciplinary proceedings against judges would in itself limit guarantees of their external independence, increasing the potential for external interference.
2. The compatibility of maintaining the powers of the Minister of Justice and expanding the powers of non-judicial members of the Commission.
The executive branch’s authority to initiate disciplinary proceedings. The Venice Commission views the Minister’s powers as transitional and conditional, acceptable only in the absence of sufficient internal counterbalances within the judiciary and within the Commission. Therefore, in a situation where the Commission’s composition is being changed in favor of non-judicial members with the aim of reducing the influence or participation of judges (to neutralize “judicial corporatism”), a balanced approach would also exclude or limit the executive branch’s powers to initiate disciplinary proceedings. Otherwise, the balance proposed by the Venice Commission, in accordance with the Constitution, would be disrupted, to the detriment of judicial independence.
3. The issue of the law’s retroactivity, which worsens the individual’s position.
The Union of Judges also considers the law’s retroactivity with respect to non-judges extremely troubling from a constitutional perspective, as it threatens the principle of legal certainty. Even more troubling is that this was not initially envisaged in the legislative amendment package, and this approach evolved as a result of further discussions.
In effect, non-judges elected by the general meeting of the judicial self-governing body will be deprived of their legitimate expectations: they will be subject to restrictions not envisaged at the time of their election, which is also extremely problematic.
It should also be noted that the current wording of the amendments was not discussed with judges, nor were the positions of professional communities solicited. Therefore, we propose postponing the adoption of this package, engaging a broad range of professional circles and/or contacting the Venice Commission to obtain a position on the final wording.
Under the law’s adoption, disciplinary proceedings initiated due to the low threshold and lack of guarantees will be vulnerable, and the proceedings themselves will be vulnerable due to the lack of guarantees.
The Union of Judges will also take steps to obtain the opinion of reputable international partners, including the Venice Commission, on the final wording,” the Union of Judges reports.