Nurboboeva Farangiz Burkhon qizi
Leading consultant at The Research Institute
of Legal Policy under The Ministry
of Justice of the Republic of Uzbekistan
Abstract. This article covers the specifics of international principles based on the important aspects of the fact that judges make an independent decision when considering a court case, do not allow interference in their activities in any way, ensure that all government bodies are completely independent of officials and serve to issue a fair trial.
Keywords: independence of judges, being independence, judgment, international principles.
Judicial bodies are important not only in the domestic national legal system of the country, but also internationally. International courts known all over the world have adopted international principles regarding the independence of judicial bodies and judges, which have been enshrined through international treaties. Below the analysis of several features of being indepent of judges provided.
As the UN General Assembly has repeatedly stated, “the priority of law and the proper implementation of fair trial […] plays a central role in the promotion and protection of human rights” and ” the system for the implementation of fair justice, including law enforcement agencies and prosecution authorities, especially with the addition of independent judicial bodies and law enforcement officers, it is important in the comprehensive and non-discriminatory implementation of human rights with the full application of the templates established in international human rights agreements and is a component of the processes of democracy and sustainable development” .
For a fair solution of the case, the independence of the judge or the court considering this or that case must be ensured. All international human rights instruments provide for the right to fair consideration of the case by “independent and impartial tribunals”. The human rights committee has repeatedly commented on the fact that the right to an independent and impartial court is considered “an absolute right that does not allow any exceptions”.
The right of a person to a fair consideration of a case in court can be observed in the presence of an independent judge, the state, the judicial system violates its international obligations in the absence of an independent branch of power. Therefore, from this point of view, independence will apply personally to the judge, and to the judicial system as a whole.
The basic principles of the UN on the independence of judicial bodies state the necessary aspect of independence as followings:
“The independence of judicial bodies is guaranteed by the state and enshrined in the Constitution or laws of the country. All state and other institutions must respect and comply with the independence of judicial bodies”.
The recommendations of the Council of the European Union regarding the independence of judges stipulate that the independence of judges must be guaranteed through the inclusion of specific rules in the Constitution and other legislative acts, and that “branches of executive power and legislative power must ensure the independence of judges and prevent the adoption of measures that lead to the independence of judges.
The Beijing statement on the principles of independence of judicial institutions in the LAWASIA region in the Asia-Pacific region (“Principles of Beijing”) provides for: “The independence of the judiciary requires that it be resolved on the basis of an impartial assessment of matters by it, and on the basis of a direct or indirect understanding of the law, regardless of where it comes from, without the appropriate impact”.
“The Universal Charter of the Judge” approved by judges from all parts of the world, establishes that “The independence of judges is necessary to carry out impartial fair conviction in accordance with the law. It is indivisible. All national or international institutions and authorities must respect, maintain and protect this Independence.
Taking into account the fact that the peoples of the world express their readiness to create appropriate conditions in the UN Charter that ensure that justice in relation to obligations aimed at promoting and supporting respect for Human Rights and freedoms is in effect, accordingly, first of all, taking into account the need to consider issues regarding the role of judges in the justice system and the importance of their selection, preparation and procedures, governments are required to pay attention and respect within the framework of their national legislation and practice of the following basic principles, formulated in order to assist member-countries in solving the tasks of ensuring and strengthening the independence of judicial bodies, and to notify judges, lawyers, employees of executive and legislative bodies and the general public.
The principles are mainly intended for professional judges, however, if necessary, non-professional judges can also use them equally.
The principles of independence of judicial bodies are determined by the following:
- The independence of judicial bodies is guaranteed by the state and is enshrined in the Constitution or laws of the country. All government bodies and other institutions they must respect and comply with their independence;
- The judicial authorities resolve the cases entrusted to them objectively, on the basis of facts and in accordance with the law, by no party and for no reason, without direct or indirect restrictions, unlawful influences, without incitement, coercion, threats or interference;
- Judicial bodies have powers on all issues in relation to the nature of the court, and they are given the right to make an uninterrupted decision about the entry into their competence, which is established by law by the case transferred to them;
- There should be no unlawful or unauthorized interference in the justice process, and the decisions made by the courts will not be seen again. This principle does not prevent the judgments made by the judiciary from being reconsidered in court in accordance with the law or mitigating punishment;
- Everyone has the right to take the case in court in ordinary courts or tribunals, where the established legal measures are applied. The principle of independence of judicial bodies gives them a number of rights and requires them to carry out the proceedings fairly and comply with the equality of rights of the parties;
- Each member state is obliged to provide the judicial authorities with appropriate tools that allow them to perform their duties at the required level.
Besides that, taking into account the basic principles on the independence of the United Nations judicial system (1985), as well as other international rules and norms on judicial independence and the right to fair trial, each court and tribunal has its own characteristics and functions, and on the basis of the fact that judges are not fully employed in certain instances or the following “Burg-House principles” of international law were developed, taking into account the fact that ad hoc and ad litem act as judges:
- in order to ensure the independence of the judicial system, judges must be independent of the parties to the cases under consideration, the countries in which they are citizens or reside, the host countries in which they serve, the international organization that intercedes for the formation of that court or tribunal;
- the fact that judges must be free from the inappropriate influence of any source;
- judges must provide an unbiased solution of cases based on the evidence of the same case and the applicable law;
- it is necessary that judges do not allow situations in which any conflict of interest can also be recognized as the cause of some kind of conflict of interest;
- judges consider the insistence that they restrain themselves from improper conduct in their court and court-related activities as principles with the power of common influence.
The general principles of the committee of Ministers of the Council of Europe are also adopted for judges of the European Court, which are reflected in:
All measures must be taken to ensure that the independence of judges is respected, protected and enforceable. In particular, the following measures are recommended:
а) The independence of judges should be guaranteed in accordance with the provisions of the Convention and constitutional principles, for example, by introducing specific rules into the Constitution and other legislative acts, or by introducing the provisions of this recommendation into domestic law.
Such rules, taking into account the legal tradition of each state, can mean, for example, the following:
- decisions of judges are not subject to revision in the case other than the complaint procedures provided for by law;
- the term of service of judges and their remuneration are guaranteed by law;
- no body, except the courts themselves, can determine their powers;
- in addition to decisions on amnesty, pardon or similar issues, the government or administration cannot make decisions that cancel court settlement decisions in retroactive order.
1. Resolution 50/181 of December 22, 1995 and resolution 48/137 of December 20, 1993, “human rights in the implementation of fair trial”.
2. The main principles of the United Nations on the independence of judicial bodies (“UN Basic Principles”).
3. European Union, recommendation of the committee of Ministers to member states No. R (94) 12 on the independence, effectiveness and role of judges, October 13, 1994, 2 (b) principle.
4. The Beijing statement on the principles of independence of judicial institutions in the LAWASIA region, adopted in 1995 by the chairmen of the Supreme Courts of the LAWASIA region and other judges in the territory of the Asia-Pacific region, as well as adopted by the LAWASIA Council in 2001, 3.a resolutive paragraph.
5. International principles on the competence, responsibility of judges, lawyers and prosecutors. Practical Guide number 1. www.icj.org.
6. International principles on the competence, responsibility of judges, lawyers and prosecutors. Practical Guide number 1. www.icj.org.