EAST SIBERIAN BRANCH
FEDERAL STATE EDUCATIONAL INSTITUTION OF HIGHER EDUCATION
“RUSSIAN STATE UNIVERSITY OF JUSTICE”
Faculty of Continuing Education for the Training of Specialists
for the judiciary
in the discipline “Civil process of the Russian Federation”
THE PRINCIPLE OF THE INDEPENDENCE OF JUDGES AND THEIR GUARANTEES
4th year student
Popov Innokenty Vladimirovich
Associate Professor GSP
Aksamentova Vera Gennadievna
Date of submission of the work The work is protected
« » 2014 « » 2014
TABLE OF CONTENTS
INTRODUCTION ………………………………………….. …………………………………………. ……………….3
CHAPTER 1. PRINCIPLE OF INDEPENDENCE OF JUDGES………..……………………….……5
1.1 The concept of the principle of independence of judges…………………………………….….5
1.2 Classification of guarantees for the independence of judges…………………………………12
Chapter 2. The principle of independence of judges at the present stage ……………………………………. ………………………………… … 16
2.1 Development of the principle of independence of judges……………………………………….16
2.2 Main directions of development of guarantees for the independence of judges……………..17
LIST OF USED LITERATURE………………..………………….24
The creation of a civil society and the building of a democratic state based on the rule of law urgently require the improvement and strengthening of a strong, independent and accessible judiciary.
According to the fundamental law of our country, the Constitution of the Russian Federation, adopted by popular vote on December 12, 1993, justice in the Russian Federation is administered only by the courts. The Constitution of the Russian Federation also enshrined fundamental provisions, according to which judges are independent, irremovable and inviolable, and are subject only to the Constitution and federal law.
Among the constitutional principles of the organization and activities of the judiciary, it is necessary to highlight the most important, the implementation of which is largely capable of ensuring the effectiveness of justice – the exclusion of extraneous influence on judges in the administration of justice. This is the principle of judicial independence. It is also worth paying attention to their guarantees.
The principle of the independence of the judiciary is one of the most important principles of any democratic state, since it is this principle that ensures the existence of a real Constitution and the implementation of the idea of the rule of law.
It must also be said that the principle of the independence of judges and their subordination only to the law is considered not only within the state. Its significance is so great that the guarantee of effective protection of the rights and freedoms of citizens has become the subject of special discussion in the United Nations. On December 13, 1985, the UN General Assembly adopted a special document “Basic principles of the independence of the judiciary”, which binds in inseparable unity the institutional and organizational independence or independence of judicial institutions and individual judges in relation to other state and public bodies, expressed in the formation of a self-governing and a separate judicial system or systems, and prohibiting other state bodies from carrying out judicial activities or interfering in it (clauses 1, 3-5, 7 of the Basic Principles). Such a provision should ensure the independence of the judiciary and its bearers in the essential meaning of this concept, i.e. impartiality and submission during the administration of justice only to the Law. Also, the question for the legislative bodies of the Russian Federation about a set of guarantees aimed at ensuring the implementation of the constitutional principle of the independence of judges will not be unimportant.
The purpose of this course work is to study the principle of independence of judges and consideration of their guarantees
PRINCIPLE OF INDEPENDENCE OF JUDGES
1.1 The concept of the principle of judicial independence The independence of judges is the most important principle of justice.
The significance of this principle of justice lies in the creation of conditions for judges to carry out their activities, under which they could consider cases and make decisions on them on the basis of the Constitution and other federal laws, guided solely by their inner conviction. Such a situation can be ensured if the court is protected from any influence, pressure on it from outside. Only in this case can there be real independence of the judiciary in the administration of justice, which is clearly mentioned in Article 10 of the Constitution of the Russian Federation.
The independence of judges is an indispensable condition for the administration of justice. Independence is the exclusion of any influence on judges by other persons and organizations when considering specific cases by the court. When considering cases, the court is not bound by the opinion of the participants in the process. In each case, when making a decision, the court is guided by the law, legal consciousness, its inner conviction, based on consideration of all the circumstances of the case in the aggregate.
The court, having established during the consideration of the case that the act of a state or other body does not comply with the law, makes a decision in accordance with the law. Failure to comply with this principle is a significant violation of the procedural law, entailing the annulment of the court decision. The principle of independence of judges established by the Constitution of the Russian Federation and their subordination only to the law obliges the courts to stop any attempts to interfere in the resolution of specific cases. The courts should raise the issue of holding such officials accountable before the relevant authorities.
At the same time, for the first time elected people’s assessors, it is necessary to explain the goals and objectives of justice, its democratic principles, the specifics of the performance of their duties by assessors, and the requirements for judges. Otherwise, it is difficult to ensure the resolution of the case on the basis of the law.
The experience gained by our state over the entire period of administration of justice suggests that the court is one of such state institutions, the decisions of which are in the field of view of other state bodies, officials of various levels and ordinary citizens, one way or another interested in the results of the proceedings of specific cases. Hence the variety of ways and methods used to influence the courts, which have been developed over many years of practice. Up to the present day, many things belong to this kind of methods and methods: from promises and bribery to threats and physical reprisals against judges. The further, the more sophisticated these methods and methods become. In other words, it can be said that independence implies a certain framework of behavior in the legal field, without influence (pressure) from any bodies, organizations, officials and citizens.
In this regard, considerable attention is paid to the development and implementation of guarantees for the independence of judges, jurors, people’s and arbitration assessors. Efforts in this direction have been made for a long time. A very noticeable step was taken on June 26, 1992, when the Supreme Soviet of the Russian Federation adopted the Law on the Status of Judges.
By creating conditions that exclude a threat to independence from the outside, the problem posed is not fully resolved. Of course, there is the problem of protecting the court from outside influence, from outsiders. But there is a danger of influence or pressure on judges from the presiding judge or other judges included in the panel of judges.
The secrecy rule applies both to professional judges and to people’s assessors and jurors.
The protection of the court from the penetration of outside influence does not yet solve, as noted, the problems of ensuring the secrecy of the meeting of judges. Therefore, the law prohibits judges from divulging judgments that took place during deliberations. Compliance with these requirements is ensured by the fact that the violation of the secrecy of the meeting of judges is recognized as a circumstance entailing the mandatory annulment of the sentence.
The independence of judges and their subordination only to the law is not a slogan, it is a provision ensured by the existence of certain guarantees enshrined in Articles 9-16 of the Law on the Status of Judges that this procedural principle can be implemented. These are the following:
requirements for a judge, a candidate for a judge and the procedure for his appointment;
• the legally prescribed procedure for the administration of justice;
· prohibition, under the threat of liability, of anyone’s interference in the administration of justice;
· the established procedure for the suspension and termination of the powers of a judge;
the right of a judge to retire;
the inviolability of the judge;
The system of bodies of the judiciary;
providing the judge at the expense of the state with material and social security corresponding to his high status;
the obligation of the internal affairs bodies to take the necessary measures to ensure the safety of the judge, members of his family, the safety of their property, if the judge receives an appropriate application;
· the right of a judge to keep and carry service firearms.
One of the main guarantees for ensuring the independence of judges in the administration of justice is the principle of separation of powers enshrined in the Constitution of the Russian Federation, according to which the judiciary is independent and acts independently of the legislative and executive branches.
The requirements for a judge, a candidate for a judge and the procedure for appointing a candidate for a position of a judge are as follows. According to Article 4 of the Law on the Status of Judges, a judge can be:
a) a citizen of the Russian Federation;
b) over 25 years old;
c) having a higher legal education;
d) work experience in the legal profession for at least five years;
e) who has not committed acts discrediting him;
e) who has passed the qualifying examination and
g) who has received a recommendation from the Qualification Board of Judges.
At the same time, a citizen of the Russian Federation who has reached 30 years of age can be a judge of a higher court, and a judge of the Supreme Court of the Russian Federation – who has reached 35 years of age and has at least ten years of experience in the field of jurisprudence. A judge of the Constitutional Court of the Russian Federation may be a citizen who has reached the age of 40 and has at least 15 years of experience in the legal profession.
The age limit for serving as a judge is 70 years. For judges of constitutional (charter) courts of constituent entities of the Russian Federation, the laws of the relevant constituent entities of the Russian Federation may establish a different age limit for holding office as a judge of these courts.
As a general rule, the powers of a judge in the Russian Federation are not limited to a specific period. There are two exceptions to this rule. Justices of the peace are elected for a term of five years by the people of the district over which they have jurisdiction. Judges of district (city) courts, judges of district (naval, garrison) military courts are appointed for the first time for a period of three years, after which they can be appointed without limiting the term of their powers.
Chairmen of courts of general jurisdiction and arbitration courts in case of violation of the principle of independence and inviolability of judges, threats of physical pressure on them and their family members, encroachment on their property must take the measures provided for by Federal Law No. , officials of law enforcement and regulatory bodies”, immediately inform the relevant authorities, as well as the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation about these circumstances.
No one has the right to interfere in the activities of the court in the administration of justice. However, this rule does not apply to inspections of courts by state bodies, which do not affect the essence of decisions taken by arbitration courts. For example, state tax inspectorates can check the correctness of the calculation by the courts of the amount of the state fee and the completeness of its receipt in the budget in order to prevent errors on these issues.
The law strictly defines the list of grounds for suspension and termination of the powers of a judge.
The powers of a judge are suspended by the decision of the Qualification Board of Judges in the following cases:
1) recognition of a judge as missing by a court decision that has entered into legal force;
2) the consent of the Qualification Board of Judges to bring the judge to criminal responsibility or take him into custody;
3) the participation of a judge in an election campaign as a candidate for a legislative (representative) authority of the Russian Federation or a legislative (representative) authority of a constituent entity of the Russian Federation;
4) election of a judge to a body of legislative (representative) power of the Russian Federation or a body of legislative (representative) power of a constituent entity of the Russian Federation.
The powers of a judge are terminated on the following grounds:
1) a written application of the judge for resignation;
2) inability for health reasons or other valid reasons to exercise the powers of a judge;
3) a written application of the judge on the termination of his powers in connection with the transfer to another job or for other reasons;
4) achievement by a judge of the age limit for tenure as a judge or expiration of the term of office of a judge, if they were limited to a certain period;
5) termination of citizenship of the Russian Federation, acquisition of citizenship of a foreign state or obtaining a residence permit or other document confirming the right of permanent residence of a citizen of the Russian Federation in the territory of a foreign state;
5.1) violation by the judge, his wife (husband) and minor children of the prohibition to open and have accounts (deposits), keep cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments;
6) engaging in activities incompatible with the position of a judge;
6.1) election of a judge by the President of the Russian Federation, a deputy of the State Duma of the Federal Assembly of the Russian Federation, a legislative (representative) body of state power of a subject of the Russian Federation, a representative body of a municipality, as well as the head of a municipality or an elected official of local self-government;
7) the entry into legal force of a judgment of conviction against a judge or a court decision on the application of compulsory medical measures to him;
8) the entry into force of a court decision on limiting the legal capacity of a judge or on declaring him or her incompetent;
9) the death of a judge or the entry into force of a court decision declaring him dead;
10) refusal of a judge to transfer to another court in connection with the abolition or reorganization of the court, as well as if the judge turns out to be in close relationship or property (husband (wife), parents, children, siblings, grandfathers, grandmothers, grandchildren, and also parents, children, siblings of the spouses) with the chairman or deputy chairman of the same court;
11) commission by a judge of a disciplinary offense for which a disciplinary sanction was imposed on the judge in the form of early termination of the judge’s powers by the decision of the Qualification Board of Judges. The judge is inviolable. The inviolability of a judge also extends to his home and office, transport and means of communication used by him, his correspondence, property and documents belonging to him.
The immunity of a judge is guaranteed by the following legal provisions:
1) a judge cannot be held administratively or disciplinaryly liable. A judge cannot be held liable in any way for the opinion expressed by him in the administration of justice and the decision taken, unless his guilt in criminal abuse is established by a court verdict that has entered into legal force;
2) a criminal case against a judge may be initiated only by the Prosecutor General of the Russian Federation or by a person acting as such, subject to the consent of the relevant qualification board of judges;
3) a judge cannot be held criminally liable, taken into custody, or brought in without the consent of the relevant qualification board of judges. The conclusion of a judge in custody is allowed only with the sanction of the Prosecutor General of the Russian Federation or a person acting in his capacity, or by a court decision;
4) a judge cannot be detained in any case, as well as forcibly delivered to any state body in the procedure for proceedings on cases of administrative offenses. A judge detained on suspicion of having committed a crime, detained or brought to an internal affairs body, another state body in the course of proceedings on cases of administrative offenses, upon establishing his identity, must be immediately released;
5) entry into the dwelling or office premises of a judge, into a personal or used transport, carrying out searches, searches or seizures there, wiretapping of his telephone conversations, personal searches and personal searches of a judge, as well as searches, seizures and seizures of his correspondence, property belonging to him and documents are produced in compliance with the Constitution of the Russian Federation, federal laws and only in connection with the criminal proceedings against this judge;
6) the criminal case against the judge, at his request, stated before the start of the trial, must be considered only by the Supreme Court of the Russian Federation. The High Qualification Board of Judges of the Russian Federation, considering the appeal of the Prosecutor General of the Russian Federation on the issue of bringing a judge to criminal responsibility, is authorized to resolve this issue on the merits. As noted above, in accordance with paragraph 5 of Article 12 of the Regulations on Qualification Boards of Judges, approved by the Resolution of the Supreme Council of the Russian Federation of May 13, 1993, the Qualification Board of Judges of a constituent entity of the Russian Federation, in accordance with Article 16 of the Law on the Status of Judges, decides on issues related to the initiation of a criminal case against a judge, bringing him to criminal liability, detention or bringing a judge. The decision of the qualification board of judges of a constituent entity of the Russian Federation on these issues is not final, because in case of its refusal, the Prosecutor General of the Russian Federation may apply to the High Qualification Board of Judges of the Russian Federation in accordance with paragraph 7 of Article 13 of the Regulations on Qualification Boards of Judges. The powers of the Higher Qualification Board of the Russian Federation are not limited. It is obliged to consider the appeal of the Prosecutor General of the Russian Federation on the merits and has the right to satisfy it.
Some proceduralists refer to this principle as “the independence of courts, the independence of judges, jurors and people’s assessors, and their subordination only to the law.” It is assumed that guarantees of independence allow the court to independently make decisions provided for by law. The expanded name of this principle also aims to specifically draw attention to the fact that in the administration of justice, not only professional judges are independent, but also jurors and people’s assessors, respectively.