Judicial independence and the rule of law

Author:Elena Constatin
Position:Phd candidate
Phd candidate Elena CONSTATIN1
„The independence of justice is one of the indissoluble elements of the rule of law. It is important
that this independence remains incapable of being placed in a strictly declarative framework,
indifferent of daily realities, precisely in order not to divert the rule of law, which guarantees that no
one is above the law, whatever the social position of those addressed.”
Keywords: independence of justice, rule of law, state, power, Constitution.
The research theme proposed here, though not a new one, can be revalued in
the internal and international context dominated by Romania's membership of the
European Union. These new landmarks in the Romanian geopolitical positioning
must bring about significant changes in the way to create and organize the right at
national level2. The proposed theme is a topical one, and through a brief initial
treatment of previous research in the field and an analysis of the realities of the
present can be reached the promotion of solutions which will serve as future steps
to improve the already existing framework3. The general objective of the scientific
research in this paper is to improve the level of knowledge in the subject matter
under analysis and to show some good practice references.
The state, as an entity, emerged through the evolution of non-state communities,
such as gint, tribe, etc., with the objective of organizing the community and protecting
its general interests in a complex form, and by delimiting the territory, population
and state power, identity of the state was born. By becoming a unitary one, this form
of organization, the state, acquires discretionary power, takes on its strength to
provide the indispensable tools for achieving and defending the general interests of
society. The general interests of society turn into the interest of the state. In the
modern age the rule of law is recognized even in relation to the state, becoming the
fundamental principle of the latter, namely the principle of legality. The consistency
of this supremacy is grounded in the fact that every state understands to exist and to
organize itself on the basis of a fundamental law called the Constitution.
1 National University of Political Studies and Public Administration
2 Pierre Pescatore, L`application du droit communautaire dans les états membres, Luxemburg, 1976, p. 6.
3 Emil Blan, Gabriela Varia, Fragmentare Оi interdisciplinaritate în cercetarea fenomenelor juridice,
Revista Dreptul, Ed. Uniunea Juriştilor din România, nr. 4/2017.
Law Review vol. III, Special issue 2017, pp. 18-21
Judicial independence and the rule of law 19
The quintessence of the state is the very fundamental law that it creates
through and in the interest of the will of the people and of its own. A set of
individual rights and freedoms, the sovereignty of the people, the separation of
powers in the state, etc., are created not only at the declarative level, but they are
guaranteed by the preeminence of the right. Nowadays, the superiority of law
takes on an even wider form compared to the modern age, because the quality and
capacity of the subjects of law are expanding, the scope of recognition of individual
rights and liberties, the question of the rule of law etc.4
The separation of powers5 in the state is a fundamental principle of the rule of
law and implies a distribution of power to different, independent courts, endowed
with leadership attributes and prerogatives. The purpose of separating powers in
the state is to prevent the accumulation, possession or absolute exercise of power.
Judicial power is exercised by the Judicial Courts in charge of observing the laws6.
The separation of the three powers, Parliament, Government, Judicial Courts,
although having their own organization, specific functions and attributions, does
not mean their isolation, but interdependence and mutual control. According to
this principle none of the three powers prevail over the other, do not subordinate
each other and do not assume specific prerogatives to the other. There is no hierarchy
between them.The Constitution used this principle to prevent those who would
like the concentration of power in the hands of a small group or a single man,
which would lead to the establishment of a totalitarian regime.When the power of
the authorities is limited, the power of those who are led is greater. Altough, the
power is a unique phenomenon its legitime owner are the people.
The independence of justice is enshrined in international documents such as
the Universal Declaration of Human Rights, the O.U.N. on Civil and Political
Rights, the European Convention on Human Rights or the Fundamental Principles
on the Independence of the Magistracy, adopted in Milan in 19857.
The independence of the judiciary vis-à-vis the other state powers is not explicitly
enshrined in the Romanian Constitution, but art.124 paragraph 3 provides for the
independence of judges and the fact that they are subject only to the law. It is the
principle that the constitutional provisions refer both to the courts as a whole and to
the individual judges. This also results from Article 133 of the Constitution8, which
defines the Superior Council of Magistracy as the guarantor of the independence of
the judiciary. These are complemented by the provisions of the Law no. 304/2004 on
4 Geoffrey Marshall, The Rule of Law: its Meaning, Scope and problems, vol. L’État de droit, „Cahiers
de philosophie politique et juridique”, 1993, nr. 21, Presses Universitaires de Caen, pp. 46, 47.
5 Montesquieu, Despre spiritul legilor, vol. I, Ed. Нtiinific, Bucureşti, 1964, pp.195-196.
6 Pierre Pescatore, La Séparation des pou-voirs et l’office du juge de Montesquieu à Portalis, Luxembourg,
Institut grandducal. Section des sciences morales et politiques (Bruxelles, Bruylant), 2009, pp. 20-27.
7 Irina Moroianu Zltescu, Adrian Bulgaru, Organizaii europene Оi euroatlantice, Ed. Pro Universitaria,
2016, p. 15 şi urm.
8 https://www.ccr.ro/constitutia-romaniei-2003.
the organization of the judiciary and in the Law no. 303/2004 on the status of judges
and prosecutors.
An adequate protection against arbitrariness is an obligation for any state
wishing to consecrate the „rule of law”9. This is, therefore, the protection that the
European Convention on Human Rights aims to ensure, not only by censuring any
interference that would not be legitimate or would not be based on pertinent and
sufficient elements, and therefore would not be necessary in a democratic society,
but also watching those legal situations in which subjective rights are at stake,
whose state of uncertainty could, at some point, hit the substance of rights itself.
The Cooperation and Verification Mechanism is a process of regularly verifying
the progress Romania and Bulgaria have in reforming the judiciary, corruption and
organized crime. Romania has applied for membership of the Cooperation and
Verification Mechanism10. In order to help the two countries resolve these important
issues, the European Union has decided to establish a special „cooperation and
verification mechanism” to ensure a smooth accession process and at the same time
to protect European policies and institutions. In December 2006, the European
Commission set a series of benchmarks („benchmarks”) to assess progress in these
areas. On January 1, 2007, when Bulgaria and Romania became European Union
countries, the two countries still had some goals related to reforming the judiciary,
reducing corruption in state institutions and putting organized crime under control.
In the MCV report of January 2017, the ten-year perspective since the mechanism
was established has shown that Romania has made major progress towards meeting
the benchmarks11 set by MCV. A number of key institutions have been created and
very important pieces of legislation have been adopted. The reform of the Criminal
Code and the Civil Code was nearing completion. The report confirmed that the
Romanian judiciary has undergone a profound reform process and has repeatedly
demonstrated its professionalism, independence and accountability. It has also been
noticed the existence of a series of internal safeguards against possible inadvertent
deterioration of the progress achieved. The twelve main recommendations in the
January 2017 report were drafted to address the remaining weaknesses that had
been identified. Most of them focus on the accountability and precondition required
by the Romanian authorities and the internal guarantees necessary to ensure the
irreversible nature of the results.
However, despite the Government's commitment to try to complete MCV as soon
as possible, progress towards addressing MCV recommendations in January 2017 has
been affected by the political situation. Within nine months of the January 2017
9 David Boucher, Paul Kelly, Mari gânditori politici: de la Socrate pân astzi, Editura All, 2008,
pp. 204-205.
10 https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/rule-law/
11 The objectives set by MCV refer to the independence and reform of the judiciary, the integrity
framework and the National Integrity Agency, the fight against corruption.
Judicial independence and the rule of law 21
report, two governments succeeded in Romania, while increasing tensions between
state powers (the Parliament, the Government and the judiciary) were making
cooperation between them more and more difficult. The Commission remains of the
view that, through loyal cooperation between state institutions, through a political
orientation that firmly maintains past achievements and respect for the independence
of the judiciary, Romania will be able, in the near future, to implement the
outstanding MCV recommendations.
Pressures on justice exist and will still exist. We can include in this chapter the
pressures of social nature (of public opinion), but also those coming from the
sphere of politics, both of which are present in every community. Independence
means responsibility, and therefore the duty of magistrates, besides being subject
only to the law, is to sanction, by public disclosure, any attempt to intervene in the
act of justice. In the absence of a political dominance of a democratic type that would
actually valorize the rule of law and sanction any deviation from its principles, the
temporary holders of public functions (within the three powers) will be tempted to
act often to the limit of the law12.
The rule of law designates that structure in which the state and law are in a
complementary relationship. On the one hand, the right can not exist outside the
state, because only the latter can confer certain rules on the character of legality
and compulsion whose application and observance can be imposed by coercive
methods. On the other hand, the right (legal norms) limits the state, imposing a
certain type of action on state agents. Therefore, the state can not exist outside the
law. As nothing exists beyond the state, no one is above the law. Which leads to the
conclusion that the state itself must obey its own rules, self-limiting itself13.
Promoting the rule of law and the independence of the judiciary14, fighting
corruption, ensuring integrity in public functions and dignities are constitutional
values that can not be negotiated, restricted or eliminated.
12 http://infopolitic.ro/studii/teoria-si-practica-separatiei-puterilor-in-stat-3.html.
13 https://cristidanilet.wordpress.com/2009/12/30/justitia-putere-publica-in-statul-de-drept/.
14 Tratatutul Universal al Judectorilor (Uniunea Internaional a Magistrailor, 1999), Convenia
European a Drepturilor Omului (CoE, Roma, 1950), Carta European a Judectorilor (Asociaia Euro-
pean a Magistrailor, 1987), Declaraia de la Palermo privind elementele unui statut european al magis-
traturii (MEDEL, 1993), Declaraia de la Beirut privind independena justiiei (Conferina Arab a Justiiei,
1999), Declaraia de Independen a Justiiei de la Cairo (Conferina Arab a Justiiei, 2003), Avizul nr. 1
referitor la standardele privind independena puterii judectoreşti şi inamovibilitatea judectorilor şi
Avizul nr. 2 privind finanarea şi administrarea instanelor, cu referire la eficiena sistemului judiciar şi la
articolul 6 al Conveniei europene privind drepturile şi libertile fundamentale ale omului (Consiliul
Consultativ al Judecatorilor Europeni, 2001), Cartea European privind Statutul Judectorilor (Consiliul
Europei, 1998), Recomandarea (94)12 privind independena, eficiena şi rolul judectorilor, Declaraia de
la Beijing cu privire la Principiile de Independena a Justiiei în Regiunea LAWASIA (Asociaia de Drept
pentru Asia şi Pacific, 1995), Principiile commonwealth asupra responsabilitilor şi relaiei dintre cele trei
puteri (Nigeria, 2003), Declaraia de la Caracas (Summit-ul Iberoamerican al Preşedinilor de Instane, 1999),
Standardele Minime de Independena a Justiiei (Standardele New Delhi, International Bar Association,
1982), Declaraia de la Suva asupra Principiilor de Independena şi Acces la Justiie (INTERIGHTS-the Fiji
Human Rights Commission-Fiji Judiciary, 2004), Principiile de la Bangalore asupra Deontologiei Judiciare
(ONU, Grupul Judiciar pentru Intrirea Integritii, 2001) etc.