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In the functioning of the Judiciary as a separate independent branch of power, it is important that the guarantees of its independence are established at the level of law. Consequently, the main purpose of enshrining in the Constitution the norms ensuring the independence of the Judiciary is to practically guarantee the right of citizens to justice and to ensure the rule of law and justice in society, writes Dilshod Aripov.
The determination of the Judiciary as a separate branch of power in the basic law is also fully consistent with the norms of international law, indicating that a particular state has a legal-democratic state system, and human rights and freedoms are guaranteed by the state. The fundamental principles of the United Nations regarding the independence of judicial bodies stipulate that the independence of the Judiciary must be strengthened in the constitutions or laws of each state.
Legal guarantees of judicial independence are understood to mean the independence of the Judiciary and judges in the organisation and conduct of judicial proceedings as established by the Constitution, laws and byelaws. In particular, the basic guarantee of the independence of the Judiciary is first and foremost enshrined in the Constitution of Uzbekistan, which establishes that the judicial power in the Republic of Uzbekistan is independent of the legislative and executive powers, political parties and other institutions of civil society. This constitutional provision shows that the independence of the Judiciary lies in its status as a separate branch of government, a special competent authority protecting the rights and freedoms of citizens.
In the Constitution of the Republic of Uzbekistan, the norms on judicial power are defined in a separate chapter and the words “Court” and “Judge” have been used more than 60 times. In particular, in our Constitution, the Judiciary is defined as a separate state authority (Articles 11, 98, 130-140); there is a guarantee ensuring the inviolability of constitutional rights and freedoms of citizens (Article 20), a special body that decides justice in society and which enforces Justice (Articles 27-31), and a guarantee of human rights and freedoms (Article 55). For example, the fact that Article 131 of the Constitution establishes the rule that the formation of emergency courts is not allowed, is a guarantee that justice is carried out only by competent courts established by the Constitution. This guarantees both the institutional and the functional independence of the Judiciary.
Based on the constitutional functions of the Judiciary, it can be distinguished by its two main characteristics.
Firstly, the judicial power, which is a separate subject of constitutional management, is a component of state power and its separate branch. This is the main legal guarantee of the independence of the Judiciary.
In particular, the foundations of the institutional independence of the Judiciary are reflected in Article 131 of the Constitution. It provides that the Judiciary has a certain system, the organization of courts is carried out according to territoriality (republic, province, district, city) and the category of court cases (constitutional, civil, criminal, administrative, economic, military).
The legal status of the Constitutional Court and the Supreme Court of the Republic of Uzbekistan, the procedure and powers of its organisation are separately established in the Constitution. In particular, it is noted that the Constitutional Court of the Republic of Uzbekistan shall hear cases on the conformity of legislative and executive acts to the Constitution (Article 133), and the Supreme Court of the Republic of Uzbekistan shall be considered as the supreme body of the Judiciary in the field of civil, criminal, economic and administrative judicial proceedings (Article 134).
Article 132 of the Constitution states that the Constitutional Court shall be elected by the Senate of the Oliy Majlis of the Republic of Uzbekistan upon the submission of the President of the Republic of Uzbekistan from among specialists in the sphere of politics and law, recommended by the Supreme Judicial Council of the Republic of Uzbekistan, including the representative of the Republic of Karakalpakstan, and also states that the procedure for the organisation of courts and their functioning is established by law (Article 131).
The fact that the Constitution assigns to the Judiciary, as its primary function and exclusive competence, the task of protecting the constitutional rights and freedoms of citizens through the exercise of justice determines its functional independence.
In this regard, the constitutional principle of the independence of judges means that they are subject solely to the law is important, since a decision of a fair court can only be made by a judge whose all-round independence is ensured. Article 136 of the Constitution of the Republic of Uzbekistan stipulates the important norms such as independence of judges and their subordination to the law. It is not allowed to interfere in any way in the activities of a judge in administering justice; such interference causes liability in accordance with the law.
The independence of the Judiciary is also guaranteed by the fact that its decisions are not subject to revision by other bodies, as well as their mandatory enforcement. In particular, Article 134 of the Constitution states that the acts adopted by the Supreme Court of the Republic of Uzbekistan shall be final and binding on the entire territory of the Republic of Uzbekistan. Article 138 states that the court verdicts shall be binding on all state bodies, organisations, officials and citizens.
The organisation, management and control of the activities of the courts by the judicial community is considered to be one of the main guarantees of the practical provision of the independence of the Judiciary. The bodies of the judicial community, representing the interests of judges, are an important institution for the independence of judges, after all, the judicial community actively influences the organisation and functioning of courts through its bodies. Recommendations of the Committee of Ministers of the European Union CM Rec (2010) No. 12 and the Advisory Council of European Judges No. 10 also state that the main purpose of establishing the bodies of the judicial community is to ensure the independence of the courts and individual judges, thereby promoting the effective functioning of the judicial system.
The body of the judicial community in the Republic of Uzbekistan is recognised as the Supreme Judicial Council of the Republic of Uzbekistan and given the status of the constituent body, which helps to ensure compliance with the constitutional principle of independence of the Judiciary. The role of the Supreme Judicial Council in ensuring the independence of the Judiciary is directly related to the fact that it is established on democratic principles that guarantee the independent conduct of its activities. It is important that the necessary legal guarantees for the impartial implementation of the activities of the Supreme Judicial Council, ensuring the independence of its members are established by law. Article 135 of the Constitution of the Republic of Uzbekistan stipulates that the Supreme Judicial Council of the Republic of Uzbekistan is an independent body of the judicial community, ensuring the formation of the Judiciary and compliance with the constitutional principle of judicial independence.
The Law of the Republic of Uzbekistan No. 717 of September 20, 2021 makes amendments to the Law “On the Supreme Judicial Council of the Republic of Uzbekistan” and establishes important norms aimed at further strengthening its independence and improving its activities. In particular, the law abolished the norm that representatives of law enforcement agencies can be approved in the structure of the Council, a Judicial Inspectorate was formed in the structure of the Council to ensure the immunity of judges and prevent corruption. The Council has been entrusted with tasks such as the duty to take measures to ensure openness and transparency in the activities of the Council and the Judiciary, to select suitable judicial personnel for managerial positions, to be proactive in the matter of their incentives and bonuses, to resolve the issue of extending the age limit for holding the position of judges to determine the procedure, also tasks such as the approval of criteria for evaluating the performance of judges based on an open and transparent electronic rating program.
Whether or not the institutional independence of the Judiciary is ensured, not every individual case can be sufficient to ensure a fair and lawful trial. When judges lack personal independence in making appropriate decisions in judicial proceedings, their right to administer justice is violated. Therefore, it is considered an important condition that the Judiciary has institutional independence and judges have guarantees of personal independence, both internal and external, and the combination of the two becomes the basis for ensuring legitimate and impartial justice.
The purpose of ensuring the independence of judges is above all to guarantee the protection of the rights and freedoms of citizens through the administration of justice, to protect them from unfair and arbitrary judicial proceedings and to ensure the legality of judicial activities. Consequently, the independence of judges is a social necessity and serves the interests of the state and society. Accordingly, an important task of the state is to establish the necessary legal guarantees to protect judges from external and internal influences, to support the work of the courts, and to ensure their respect by all bodies and citizens. Such guarantees provide for special procedures for the appointment of judges to judicial position, transfer to another court, occupation of a judicial position, immunity, liability, dismissal and promotion.
In particular, Article 136 of the Constitution of Uzbekistan establishes the basic guarantees of the independence of judges, according to which judges are subject only to the Constitution and the law, that no interference with their activities in the administration of justice is permitted in any way and that such interference entails liability in accordance with the law, that judges are not responsible for certain cases, that judges are inviolable, that transfer to another post may be permitted only in accordance with the procedure and grounds established by law, and that reorganisation of the Judiciary may only be carried out in accordance with the procedure and grounds established by law.
In addition, according to the Law of Uzbekistan “On Courts”, the independence of judges is ensured through their election (appointment) and dismissal from office, immunity, strict observance in the administration of justice, preservation of the confidentiality of judges’ deliberations and prohibition to demand their disclosure, prosecution for contempt of court or interference in judicial affairs, for violation of the inviolability of judges, provision of decent material and social security to judges.
Another of the factors ensuring the independence of the Judiciary is financial independence. Material, and technical support plays an important role in reducing external influence on the activity of the courts, impartial administration of justice, prevention of corruption in the Judiciary, formation of a corps of qualified and educated judges, increasing the prestige of the Judiciary and strengthening public confidence in the courts. In this regard, the financial independence of the Judiciary provides for the possession of sufficient funds for its own needs, their independent use, material-technical and social security, the dignified status of judges, as well as the establishment of these guarantees by law. Even in the procedure for the effective implementation of the basic principles of judicial independence, states are obliged to allocate appropriate resources for the effective functioning of the Judiciary, to provide the necessary technical staff and equipment, and to ensure that judges have adequate personal security, salaries, benefits.
Thus, the establishment of the necessary legal basis for the financial independence of the Judiciary in the Constitution of Uzbekistan provides the basis for a legal guarantee of the independence of the courts in this area. In particular, in accordance with Article 140 of the Constitution of Uzbekistan, the financing of the activities of the courts shall be provided only from the state budget of the Republic of Uzbekistan, and this must ensure the possibility of full and independent administration of justice.
In conclusion, the peculiarity of the organisation of Uzbek statehood provided by the Constitution is the main basis for the independence of the Judiciary. Indeed, the definition in the Constitution of the necessary guarantees ensuring the independence of the Judiciary guarantees the free and independent functioning of the Judiciary from other state bodies and the lawful and fair administration of justice.
The Author, Dilshod Aripov, is an Advisor to the Director of the Supreme School of Judges under the Supreme Judicial Council of the Republic of Uzbekistan for scientific and information analytical work
