Abdurakhmonkhujaev Jamoliddin Khusankhanovich,
Senior science researcher at Tashkent State University of Law
CONSTITUTIONAL GUARANTEES OF INDEPENDENCE OF JUDGES IN
SOME FOREIGN COUNTRIES
According to the
opinion of U.Tukhtasheva , “the constitutional principles of judicial
independence were envisaged and maintained by the guarantees of independence of
judges which have become the necessary conditions for ensuring the functioning
of a democratic legal state” [1]. Also, G.Yermoshin rightly confirms that self-management of judges’
community is characteristic and obligatory constituent institute of the
judicial power. So, the impact level of the organs of judges’ community on the
independence of judicial power in each concrete country is quite different[2]. We believe that the independence of courts is generally the foundation
of judicial power, and the status of judges of foreign countries, in
particular. That’s why in this or that form, the principle of independence of judges is basically
maintained almost in all constitutions. It is true it should be said reservedly
that in each country the constitutional strengthening has its specifics. They
may belong to two main constitutional features.
First, a number
of countries limited themselves only to stating the existence of the judicial
power in the constitutions, presuming, that the notion “judicial power” itself
speaks about the quality of independence since each power, including the
judicial is simply inconceivable without independence. To this type of
constitution belong the Constitutions of the USA (section 1, art.3)[3], France (art.64)[4]. They emphasize the guarantees of independence such as irremovability,
completeness of power, the order of forming the judicial corps.
Second, there are
constitutions which do not only maintain the judicial power as a separate
branch of government, but also disclose substantially its independence. In
particular, the Constitution of Japan says: “All judges are independent and
act, following the voice of their hearts; they are dependent only on this
Constitution and laws”. Such statements are contained in the Constitutions of
Germany (art.97), Italy (art.101) and Spain (par., art. 117).
So, A. Tsarayeva writes that the
inviolability of judges is an important constituent category of judicial
independence[5]. There are a number of guarantees challenged to ensure the independence
of judges. One of such guarantees is the inviolability
expressed in the rule according to which “judges are not responsible for their
decisions with the exception of cases envisaged in laws (the Constitution of
Portugal, art. 218). “The damage caused by a judicial mistake and also those,
which result in wrong action in the administration of justice, shall give the
right to compensation of losses on the account of the state an accord with the
law (art. 121 of the Constitution of Spain) [6].
“The European
Charter on Judges’ Status” provides a special procedure for making judges
responsible. So, paragraph 5.2 states: “The compensation of the damage
illegally caused as a result of the decision or conduct of a judge in the
course of exercising his on-bench obligations, is ensured by the state. The
Status may provide that the state has the opportunity to require the
compensation within a certain time from the judge in case the judge is deeply
and directly unaware of the norms in the frame of which he has realized his
function”.
An exclusive
character of making judges answerable to different types of legal liability is
maintained also in the Basic principles of judicial independence. So, “judges
may be temporarily removed from the bench and fired only for their inability to
perform their obligations. The decision on disciplinary punishment, removal
from position or firing must be the subject to an independent commission”.
The financial and
social security of judges, worthy of their high status, plays a significant
role in ensuring independence of judges[7]. That’s why the financial
guarantee of judges’ independence is a high level of service compensation
to be received by them. “The level of payment should be established in order to
protect a judge from outside pressure, encroachment on independence and impartiality...”.
It is clear that the constitutions of states do not determine the size of this remuneration,
but it is symptomatic that the fact of remuneration itself is mentioned in them
which underlines the importance of this circumstance. For example, the US
constitution established that “the judges … shall, at stated times, receive for
their services a compensation, which shall not be diminished during their
continuance in office” (article III, US constitution) [8].
The
constitutional directions are challenged to emphasize a specific status of
judges, different from that of officials. In this regard they are not
declarative formulations, as it is known, the judicial position in western
countries is one the highest paid jobs. It might seem that the principle of
judicial independence must be established by constitutional orders which
prohibit any interference of other institutions or organs in the consideration
of judicial cases. However, such norms are lacking, as a rule, not only in the
constitutional texts, but also in national laws on the judicial power. It can
be explained, as we think that it is only the inadmissibility of interference in consideration of judicial cases
which presents the real substance of the principle of judicial independence.
[1]
Tukhtasheva U. Independence of the judicial power is a
guarantee for ensuring human rights and freedoms. “Responsibility for application
of torture and other severe, inhuman or degradations treatment and
other forms of punishment// A collection of materials of a scientific-practical
conference. – Ò.: TSLI, 2009.-P.
61.
[2]
Yermashin G.T. Authorities of the organs of judicial community and independent
judges in ensuring the constitutional principles of the independence of
judiciary and independence of judges // Russian judge. 2014. #5. –pp. 12-16.
[3]http://worldconstitutions.ru
[4]
Constitutions of foreign states . – Ì.: Pulishing
hiuse “BEK”, 1997. –P.6.
[5]Tsarayevs
À.À. Inviolability
of a judge as a guarantee of his independence. Summary of PhD dissertation in
Law. – Ì.:
2003. –P.15.
[6]Constitutions of foreign countries //Composed by
Dubrovin B.N. – Ì.: ÎÎÎ Publication: “Yurlitinform”,
2001.-P. 224.
[7]Abdumajidov
G.A. and others. The Judicial Power in Uzbekistan: Time of reforms . – Ò.: Adolat, 2002.-P.
265.