Статья International and regional law enforcement practices to ensure independence of the courts. Автор: Sherzod Toshpulatov Shukurovich

Автор: Sherzod Toshpulatov Shukurovich
The work is intended for students, judges, legal advisers and employees of courts and the ministries of Justice. The article illustrates the fundamental aspects of the principle of Independence of courts in international law, discussing the international standards for fair trial, analyzing several ways in order to promote independence of individual judges from national and international law enforcement perspectives. The article also considers the main component of modern jurisprudence, counting the legal regulatory documents which regulate and ensure judicial independence by giving vivid examples and citing judicial cases. It summarizes that independence of courts can be achieved only by providing protection of rights of individual judges.


Автор: Sherzod Toshpulatov Shukurovich

 

Sherzod Shukurovich Toshpulatov

Bachelor’s Degree Student, International Law Faculty,

The University of World Economy and Diplomacy,

Yunosobod 5, 1v/4, St. Moykhurgan,

100093, Tashkent, Uzbekistan,

sherzodtoshpulatov15@gmail.com

 

International and national law enforcement practices to ensure the independence of the courts

Abstract

The work is intended for students, judges, legal advisers and employees of courts and the ministries of Justice. The article illustrates the fundamental aspects of the principle of Independence of courts in international law, discussing the international standards for fair trial, analyzing several ways in order to promote independence of individual judges from national and international law enforcement perspectives. The article also considers the main component of modern jurisprudence, counting the legal regulatory documents which regulate and ensure judicial independence by giving vivid examples and citing judicial cases. It summarizes that independence of courts can be achieved only by providing protection of rights of individual judges.

Keywords: Courts; division of powers; fair trial; international standards; legal regulatory framework; protection of rights; individual judges; conventions; principles; official records; independence; impartiality; law.

 

Шерзод Шукурович Тошпулатов

  Бакалавр, факультет Международного Права,

Университет Мировой Экономики и Дипломатии,

Юнособод 5, 1в / 4, ул. Мойкурган,

100093, Ташкент, Узбекистан,

sherzodtoshpulatov15@gmail.com

 

Международная и национальные правоприменительные практики обеспечения принципа независимости судов

Аннотация

Работа предназначена для студентов, судей, юрисконсультов и работников судов и министерств юстиции. Статья иллюстрирует фундаментальные аспекты принципа независимости судов в международном праве, обсуждая международные стандарты справедливого судебного разбирательства, анализируя несколько способов, чтобы способствовать независимости отдельных судей с точки зрения национальных и международных правоохранительных органов. В статье также рассматривается основная составляющая современной юриспруденции, считая нормативно-правовые документы, которые регулируют и обеспечивают независимость судебной власти, приводя яркие примеры и цитируя судебные дела. В нем резюмируется, что независимость судов может быть достигнута только путем обеспечения защиты прав отдельных судей.

Ключевые слова: суды; разделение властей; справедливый суд; международные стандарты; нормативно-правовая база; защита прав; отдельные судьи; конвенции; принципы; официальные записи; независимость; беспристрастность; право.

 

 

International standards for fair trial determine that the independence of individual judges must be ensured in several ways.

Ensuring the independence of judges in their appointment.

International law does not specify how judges should be appointed, and the Basic Principles do not contain provisions on whether judges should be appointed or elected. However, in accordance with principle 10 of the Basic Principles: “Persons selected for judicial positions should have high moral qualities and abilities, as well as appropriate training and qualifications in the field of law.Any method of selection of judges must guarantee against the appointment of judges for improper reasons. The selection of judges should not discriminate against the person on the basis of race, color, sex, religion, political and other beliefs, national or social origin, property, class or other status; however, the requirement that a candidate for a legal position be a citizen of the country concerned should not be considered discriminatory. In other words, the selection of judges should itself be an important factor of independence and cannot be determined solely at the discretion of the executive or legislative branch. The issue of the lack of “full independence of judges” also arose in connection with the consideration of the situation in Kyrgyzstan, regarding which the Committee noted, in particular, “that the current procedure for attestation of judges, the requirement for judges to pass a special assessment procedure every seven years, the low level of salaries and the lack of clear guarantees of irrevocability can contribute to corruption and bribery.”1

Regarding the election of some judges in the United States of America, the Human Rights Committee noted that it “is concerned about the implications that the election system of judges has in several states for the exercise of rights”, guaranteed in Article 14, and welcomed “the efforts of some states to adopt merit-based selection. ” The committee also recommended revising the system of “appointing judges through elections with a view to replacing it with an appointment system by an independent body, taking into account available merit”.2 The Inter-American Commission on Human Rights recommended that the OAS member states: “take the measures necessary to protect the integrity and independence of judges in the exercise of their judicial functions, and specifically when considering cases of human rights violations; in particular, judges should be free to decide on cases referred to them without outside influence, prompting, pressure, threats or interference, either directly or indirectly, for any reason or from any side ”.3

However, the Court came to a different conclusion in the Stallinger and Kuso case, in which the experts were included in the regional council and the high council on land reform due to their experience in the field of agronomy, forestry and agriculture: “the participation of experts from among the civil servants negative impact on the adversarial proceedings in these councils ”; therefore, in this case, Article 6, paragraph 1 of the Convention was not violated;4 In the case of the Constitutional Court, the Inter-American Court ruled that the independence of any judge implies an adequate appointment procedure (“un adecuado proceso de nombramiento”) for a term of office (“con una duración en el cargo”) and with guarantees against external pressure (“con una garantia contra presiones externas ”).5

Ensuring the guaranteed tenure of a judge in office.

As noted above, if judges are not in office for a long guaranteed period, there is a serious risk that their independence will be undermined, as they may be subject to undue pressure when making decisions. Therefore, principle 11 of the Basic Principles provides that:

“The term of office of judges, their independence, security, appropriate remuneration, conditions of service, pensions and retirement age must be adequately guaranteed by law.”6 Consequently, the appointment or election of judges without any guarantees with regard to the term of office or only for a short guaranteed term of office is a violation of principles 11 and 12.7

Providing a permanent mandate to judges ensures to the maximum extent the independence of judges, as well as public confidence in the judiciary.

So with regard to the situation in Armenia, the Human Rights Committee noted that the independence of the judiciary in this country is not fully guaranteed, and pointed out, in particular, that “the election of judges by the population for a period of six years is not ensures their independence and impartiality”.8 In some countries, judges are required to undergo a recertification procedure at regular intervals in order to be approved for this position. Faced with this practice in Peru, the Human Rights Committee “notes with concern that the magistrates cease to perform their functions after seven years of service, and that their approval for this position is a prerequisite for a new term.” He believes that this practice, “as a rule, negatively affects the independence of the judiciary, since it does not ensure the stability of the work”.9 Therefore, the Committee recommended that the Government “revise the provisions according to which magistrates are subject to approval in their position, and replace this system with a regime based on work stability and independent judicial control”.10 The issue of re-certification was also raised with regard to Lithuania, and the Committee expressed concern that, “although new provisions have been adopted to ensure the independence of the judiciary, the rule still remains that the judges of district courts should be certified after five years of service for a permanent appointment. ” Therefore, the Committee recommended that “any such certification should concern only the professional competence of the judges and be conducted only by an independent professional body”.11 Consequently, according to the Human Rights Committee, the practice in accordance with which representative bodies re-assess judges is contrary to article 14, paragraph 1, of the International Covenant on Civil and Political Rights.

Ensuring the independence of the courts through financial security.

International and regional treaties do not directly address the issue of financial support for the judiciary and individual judges, but principle 11 of the Basic Principles cited above provides that judges should have appropriate remuneration as well as pensions. The issue of fair and adequate remuneration is important because such remuneration may attract qualified staff to work in court, as well as reduce the likelihood that judges will succumb to the temptation to take bribes and political or other inappropriate pressure. In some countries, the wages of judges are protected from reductions, although their increases may depend on the executive and legislative branches. If the executive and legislative branches control the budget of the judiciary, this may create a potential threat to the independence of the latter. In the case of the Manitoba Provincial Association of Judges v. Manitoba (Minister of Justice), the Supreme Court of Canada must decide “whether, and to what extent, the guarantee of the independence of judges, as provided for in paragraph 11 (d) of the Canadian Charter of Rights and Freedoms, limits the Provincial legislatures can cut the salaries of provincial court judges and the extent to which they can do this. ”12 As part of its plan to reduce the budget deficit, the province adopted the Law on the Reduction of Wages in the Public Sector, which meant a reduction in the wages of judges of provincial courts and other employees who receive wages from the provincial public funds. After such wage cuts, many defendants contested the constitutionality of their cases before the provincial court, arguing that as a result of the wage cuts, the court lost its status as an independent and impartial judicial body. The Supreme Court concluded that wage cuts “as part of a general state economic measure were consistent with Article 11 (d) of the Charter”, because “no evidence was provided that these cuts were introduced to influence or manipulate the judiciary” . However, the violation of the independence of judges was that the Government of Manitoba refused to sign a joint recommendation to the Committee on the payment of compensation to judges, “unless the judges agreed to waive their legitimate right to challenge” the law on the basis of which their salary was reduced. The court found that by doing so the government “put economic pressure on judges to recognize the constitutionality of the planned changes in wages”. In his opinion, “financial security as a component of the independence of judges should include protecting the ability of judges to challenge legislation affecting their own independence, without the well-founded fear that the government will punish them financially for this”.

Ensuring the independence of judges when they are promoted and brought to justice.

Although the need for disciplinary responsibility of judges does not cause controversy, the question arises of how to decide on possible penalties in case of misconduct, who should make these decisions, and what the penalties themselves should be. It is extremely important that judges are not subject to disciplinary sanctions because of protest on the merits of the case or cases in which the judge has ruled. So with regard to Belarus, the Human Rights Committee expressed concern about “statements that the two judges had been removed by the president on the grounds that they refused to establish and impose a fine, which the executive bodies demanded.”13 The Committee also expressed concern about the fact that the Cambodian Supreme Judicial Council “is not independent of the influence of the government” and that the Committee “does not have the opportunity to examine allegations of incompetence and unethical behavior”. Given the Committee’s concerns about, inter alia, that the Ministry of Justice issued circulars binding on judges, he stated that the State party “should take urgent measures to strengthen the judiciary and guarantee their independence, as well as ensure prompt consideration of all allegations of corruption or undue pressure on the judiciary. ”14 Thus, it appears that the Human Rights Committee considers the term “independent” in paragraph 1 of article 14 of the Covenant to mean that the issue of unethical professional conduct should be considered by a body completely independent of government influence.

The case against the Constitutional Court of Peru, which was being considered by the Inter-American Court of Human Rights, concerned the impeachment and the final dismissal of three judges from the Constitutional Court on the basis of the decisions of the legislature of 28 May 1997. These decisions were the result of a complex process that began in 1992 when President Fujimori annulled the constitutional guarantees of both the Congress and the Court. In 1996, the new Constitutional Court submitted to the question of the constitutionality of the law, which interpreted article 112 of the Peruvian Constitution regarding the re-election of the president. After five of the seven members of the Constitutional Court recognized that this law was “not applicable”, although they did not declare it unconstitutional, the majority judges began to be subjected to pressure, threats and harassment. As noted by the Inter-American Court, the dismissal of the above three judges was the result of the application of sanctions by the legislature in a political trial (“juicio pol n tico”), and the Court unanimously ruled that Articles 8 and 25 of the American Convention on Human Rights were violated in respect of three former judges of the Constitutional Court. The time given to them to prepare their defense was also “extremely short” (“extremadamente corto”).15 Finally, they were not allowed to question witnesses, whose testimony served as the basis for the decision of members of Congress to begin the impeachment procedure and their final decision to dismiss three judges.

Summarizing, in general, it can be argued that, in accordance with international law, judges subject to disciplinary sanctions should have guarantees of due process of law, carried out by a competent, independent and impartial body, which must be independent of the executive or supervised by authorities. However, it appears that, at least in accordance with the American Convention on Human Rights, disciplinary proceedings against judges of constitutional courts can be carried out by the legislature, provided that the body establishing the validity of the charges strictly adheres to the principles of independence and impartiality. appropriate legal safeguards set forth in Article 8 of the Convention.

Ensuring the independence of judges in freedom of expression and association.

The rights of judges to free expression and association are essential in a democratic society where the rule of law is respected and human rights are respected. Having the freedom to form associations, judges have more opportunities to protect their independence and other professional interests.

Ensuring the independence of judges in their training.

Professional training and continuing education of judges in the field of national and international human rights standards are very important for the actual application of these standards within the country. Without such training, the exercise of human rights law will remain illusory. The Human Rights Committee has repeatedly stressed the importance of training judges, other lawyers and law enforcement officials in the field of human rights protection.16 In addition, the Committee recommended that the Republic of the Congo pay special attention to “training judges, their recruitment system and monitoring their work in order to protect them from political, financial and other pressure, ensure their tenure during their tenure of office and create conditions for the prompt and impartial administration of justice ”; accordingly, he suggested that the State party “implement effective measures for this purpose and take appropriate steps to ensure that more judges are properly trained”.17 However, a debate has arisen in Canada on whether or not training programs, such as “learning the social context”, should be made mandatory for judges, and, if so, how judges will be responsible for refusing to participate in such programs. In this regard, an important aspect should be noted: in any case, the judiciary itself or independent associations of judges should ultimately be responsible for providing appropriate training and / or training (cf. Principle 9 of the Basic Principles).

Ensuring the independence of the courts by granting the right to a fair trial and making biased decisions.

The independence of the court is a prerequisite for a fair trial in both criminal and civil cases. As provided for in principle 6 of the Basic Principles: “The principle of independence of the judiciary gives the judiciary the right and requires them to ensure a fair trial and respect for the rights of the parties”. As the right to a fair, independent trial becomes apparent, judges must decide on the cases transferred to them in accordance with the law, protect individual rights and freedoms, and invariably observe various procedural rights that exist under domestic and international law. In addition, this important task should be carried out without any undue or unauthorized interference with the justice process (principle 4 of the Basic Principles).

Summing up, we note that international standards of fair trial determine that the independence of courts is ensured through the guaranteed protection of the rights and interests of individual judges. In a democratic state, the principles of judicial independence are ensured by ensuring: the independence of judges in appointing them; guaranteed tenure of a judge in office; independence of the courts through financial security; independence in raising judges in office; independence in bringing judges to justice; the independence of judges in freedom of expression and association; independence of judges in their professional training; independence of the courts by granting the right to a fair trial and making informed decisions.

 

 

References:

United Nations Documents, Official Records of the General Assembly, A / 55/40 (Vol. I).

United Nations documents, Official Records of the General Assembly, A / 50/4.

Eur. Court HR,

Incal

judgment of 9 June 1998, Reports 1998-IV.

Eur. Court HR, Case of

Stallinger

and

Kuso

v. Austria, judgment of 18 March 1997, Reports 1997—II.

Inter-American Court

of

Human Rights, Constitutional Court Case (Aguirre Roca, Rey Terry and

Revorado

Marsano

v. Peru), judgment of 31 January 2001, paragraph 75 of the text of the judgment in Spanish, published on the Court's website at http: // www. corteidh.or.cr/

seriec

/C_71_ESP.html

Recommendation I.3 of the Council of Europe Recommendation ¹ R (94) 12 is identical to principle 12.

United Nations Document E / CN.4 / 2000/61 / Add.1, Mission Report to Guatemala.

United Nations Documents, Official Records of the General Assembly, A / 54/40 (Volume I).

United Nations Documents, Official Records of the Gener

al Assembly, A / 51/40.

United Nations Documents, Official Records of the General Assembly, A / 53/40 (Volume I).

 

 


United Nations Documents, Official Records of the General Assembly, A / 55/40 (Vol. I), para. 405.

United Nations documents, Official Records of the General Assembly, A / 50/4, paras. 288 and 301.

Eur. Court HR, Incal judgment of 9 June 1998, Reports 1998-IV, pp. 1572-1573, para.

See. Eur. Court HR, Case of Stallinger and Kuso v. Austria, judgment of 18 March 1997, Reports 1997--II, p. 677, para.

IA Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru), judgment of 31 January 2001, paragraph 75 of the text of the judgment in Spanish, published on the Court's website at http: // www. corteidh.or.cr/serie_c/C_71_ESP.html.

Recommendation I.3 of the Council of Europe Recommendation ¹ R (94) 12 is identical to principle 12.

The Special Rapporteur on the independence of judges and lawyers stated that “although an appointment for a fixed term may not raise objections or contradict the principle of independence of the judiciary, the five-year term is too short to provide a guarantee against unreasonable dismissal.” In his opinion, “it would be reasonable to talk about a ten-year term”; see United Nations Document E / CN.4 / 2000/61 / Add.1, Mission Report to Guatemala, para. 169 (c).

United Nations Documents, Official Records of the General Assembly, A / 54/40 (Volume I), para. 104.

United Nations Documents, Official Records of the General Assembly, A / 51/40, para. 352.

Ibid., Paragraph 364.

United Nations Documents, Official Records of the General Assembly, A / 53/40 (Volume I), para. 173

(1997) 3 S.C.R. Manitoba Provincial Judges Assn. v. Manitoba (Minister of Judges) 3, at http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol3/html/1997scr3_0003.html at p. 5.

United Nations Documents, Official Records of the General Assembly, A / 53/40 (Vol. I), para. 149.

United Nations Documents, Official Records of the General Assembly, A / 53/40 (Vol. I), para. 299-300

I-A Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru), judgment of 31 January 2001, see paragraph 67 of the judgment in Spanish.

See, for the Libyan Arab Jamahiriya, United Nations documents, Official Records of the General Assembly, A / 54/40 (Vol. I), para. 134, and for the Sudan - United Nations Documents, Official Records of the General Assembly, A / 53/40 ( Volume I), paragraph 132.

United Nations Documents, Official Records of the General Assembly, A / 55/40 (Volume I), para. 280. See the presentation of the Chief Judge of Canada, a member of the Privy Council, the Honorable Antonio Lamera, “The Tension Between Judicial Accountability and Judicial Independence: A Canadian Perspective ”(Singapore Academy of Law Annual Lecture, 1996); published on the website: www.sal.org.sg/lect96.html; discussion, pp. 8–9.

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