ANALYSIS OF INDEPENDENCE OF JUDICIAL SYSTEM OF THE USA. POSSIBILITY OF BORROWING FOR UKRAINE
18.05.2010 20:24
Автор: Aksyonova Irené, student of the Economic-legal faculty of The Odessa National Academy of Law in Simferopol
[Теория и история государства и права. История политических и правовых учений. Философия права]
Ensurance of the real independence of the judicial system is an urgent issue for Ukraine. Quite often bodies of executive power try to control activity of judicial bodies. They make decisions which are obligate courts to strengthen a fight against criminality, to generalize judicial practice. There’re attempts of legislative and executive power agents in intervention into the solution of concrete cases. There’re cases of pressure on judges by threatening, blackmailing, application of violence in connection with realization of justice. There’re also some examples of stealing of cases. We will make an effort to resolve to resolve this problem through the study of experience of Occidents namely the United States of America and to decide, whether this measure is applicable to our country.
The judicial system of the USA is divided into two parts: the federal judicial system and the judicial system of the states. The structure of the judicial power is not determined in the Constitution. The Supreme Court is the only court that was created by the Constitution. Federal judges are appointed for life or until voluntary retirement on condition that their service is flawless. Thus they acquire certain immunity against pressure from the side of state authorities. [1]
In the USA independence of the judicial system was embodied in a number of institutions. They guarantee, that judges pass verdict in law. Five components of independence of a courts are: constitutional legal remedies; independent judicial management; disciplinary plenary authorities of courts if judges act unlawfully; mechanism of overcoming the conflicts of interests; providing effective judicial decisions. [3]
The judges’ lengthy term in office provides them with decision-making freedom. It is incredibly difficult to remove judges from office in the USA (it especially concerns judges - elite of the judicial system of the USA). They can only be removed from office through the process of impeachment and trial in the Congress. The following data can be used to prove this fact: from the moment of creation of the USA only 12 (!) judges were inflicted to the procedure of impeachment and only 5 ones were actually condemned.
It’s obviously, it this system is transferred to Ukraine, the growth of corruption in judicial bodies will become the main problem. Americans fight against corruption using the following methods: firstly there is a judges’ code of behavior which includes 2 main points: judges don’t have any personal interest in case in point and they are prohibited to be involved in any political activity. Secondary, there is a severe system of selection and estimation of future judges in the USA. The biography of the judges is checked up, since the childhood, and any, even, minor misdemeanour may become a reason to refuse in office (the documentarily confirmed facts are known when even fines for parking violations turned up to be an obstacle to the judicial career). Thirdly, all judges of the United States annually fill out financial independence of judges is of great importance too. In 2009 the salary of the chairman of the supreme court of the USA was $217.400. [2]
But the examined system is perfect only at first sight. There are some peculiarities which may fully level the possible positive effect of the reform of the judicial system in Ukraine.
The Code of judges’ professional ethics adopted by the Vth Convention of judges of Ukraine in 2000 turned up ineffective. As the Code has rather recommendatory, than imperative character, it was not able to obtain the main purpose to protect the unity and independence of the juridical system. [4] Thought the Code is thought to be the regulator of judges’ activity and, original guarantee from abuses, in fact it doesn’t foresee legally important consequences of the violation of its statements which can really prevent these violations. It is the main drawback: of this document. It is difficult to accept these consequences in the form of different “reprimands” and “warnings” because judges’ independence as the result of the given reform is increasing, but the corresponding growth of their responsibility doesn’t take place.
Today some deputies, taking Code for basis, raise a question about revision and passing a proper act, regulating a professional conduct and ethics of judge. In their opinion, it’s an effective remedy for the improvement of quality of justice.
In the USA only federal judges can be elected for life. It also must be taken into consideration that actual volume of cases dealt with by federal judges is from 5 to 10 per cent from the total number. Obviously, the thoughtless copying of the American standard isn’t correlated with our realities. In resent years, even in the USA, this statement is criticized. There’s no doubt that increase of judges’ terms in office considerably impede the fight against arbitrary behaviour. [2]
Nobody can guarantee that the growth of money maintenance of Ukrainian judges will encourage increase of their responsibility and impartiality and will lend to reduction of corruption. The mentality of Ukrainian citizens is not ready to such changes.
Besides all institutional guarantees the organized society, executive mechanisms and the habit to be subject to courts are the necessary elements of the system in which there is court’s independence. [3] Certainly the Ukrainian legal proceeding is far from being perfect and needs reformation. However it must be reformed only with taken into consideration today’s reality and the experience of Western countries must be applied only after detailed consideration of the problems existing in these countries.[2]
Literature:
1. Judicial authority in the USA. Supreme court. Civil and criminal cases. Power in the states and local authority. - http://uadream.com
2. E. Esimkhanov. Reformation of the judicial system in the USA and countries of the CIS. Lawyer. - 2005 - № 2.
3. Independence of court in the USA. 2006 - http://usinfo.state.gov/
4. V. Frolov. The Code of judges ethics. «Legal practice» - http://www.yurpraktika.com/
e-mail: bagira.iaa@gmail.com
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