scholarly journals Establishment of a judicial system and ensuring independence of judges in Lithuania, 1918–1920

Prawo ◽  
2019 ◽  
Vol 327 ◽  
pp. 269-283
Author(s):  
Jevgenij Machovenko ◽  
Haroldas Šinkūnas
Keyword(s):  
Separation Of Powers ◽  
Judicial Independence ◽  
Executive Branch ◽  
Judicial System ◽  
State Council ◽  
Historical Sources ◽  
Research Papers ◽  
Constituent Assembly ◽  
Sensitive Issues ◽  
Severe Shortage

The problems of court relations with the other branches forming the constitutional triad of powers the legislative and the executive as well as judicial independence are among the most sensitive issues, which never lose their relevance. The article deals with the problems by reference to the constitutional and ordinary law of 1918–1920, the circulars of the Ministry of Justice, other legislation, as well as research papers. A retrospective analysis of certain issues is also presented by way of establishing links with the Constitution of 3 May 1791 and other historical sources of law. The co-authors have arrived at the conclusion that, while refl ecting general observance of the principle of separation of powers and the intention to ensure judicial independence, the Founding Principles of 1918 and 1919, adopted by the State Council, and the Interim Constitution of 1920, adopted by the Constituent Assembly, enshrined the legislative and the executive powers explicitly but judicial power only implicitly the texts do not even mention courts and the respective principle is derived from the others. Due to the severe shortage of lawyers in 1918–1920, judges were allowed to serve in the executive branch at the same time. The Ministry of Justice explained the law to judges, while judges assisted the executive such as the police in discharging their functions. All that contradicted the principles of separation of powers and judicial independence but was accepted as an unavoidable and temporary arrangement. The Ministry of Justice tried to avoid abusing its power and harming the dignity of the judicial system’s employees by intrusive oversight, and acted in their regard as discretely as possible. It encouraged judicial independence and activism and demonstrated confi dence in the courts.

scholarly journals Rule of Law and Its Guidelines and Indicators for Judiciary in Human Rights Issues

2016 ◽  
Vol 10 (1) ◽  
pp. 98
Author(s):  
Ebad Rouhi ◽  
Leila Raisi Dezaki ◽  
Mahmoud Jalali Karveh
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Public Law ◽  
Judicial System ◽  
The Rule Of Law ◽  
The Relationship ◽  
Domestic Level ◽  
Rights Issues

The rule of law is one of the very polemical and controversial concepts in the field of public law and political thoughts. This concept has been acclaimed in both international and domestic level and can be observed in the practice of the United Nations and many of states practically. In the light of the principle of the rule of law at the meantime ruling by law can be strengthened and also security and peace, development, democracy and human rights can be protected and promoted. The rule of law and human rights as two concepts with mutually interacting to each other has noteworthy great importance. An independent and impartial judiciary such as linkage has an important role in strengthening both of them.Human rights, separation of powers and judicial independence are regarded as some basis of the rule of law and as well as its consequence. Thus, in this regard rule of law has p very guidelines and indicators which some of them related to the judicial systems of states. In the light of exercise of these guidelines human rights are better protected and promoted.These instructions and guidelines generally are provided in international and regional human rights instruments to enforce in every sector of the state and especially for judges and judicial power to protection and promotion of human rights. This article investigates the relationship between rule of law and judicial system to introduce some measures and indicators of the rule of law to enforce them in the judiciary for better protection and promotion of human rights.

scholarly journals Comparative Study Between the Omani and the British Legal Systems in Terms of Judicial Independence and Separation of Powers

2020 ◽  
Vol 6 (1) ◽  
pp. 69
Author(s):  
Rashid H.S. Al Junaibi
Keyword(s):  
Separation Of Powers ◽  
Middle Eastern ◽  
Judicial Independence ◽  
Executive Branch ◽  
Legal Systems ◽  
Legal Norms ◽  
Eastern State ◽  
Legal Documents ◽  
The Status ◽  
The Uk

The legal system of Oman is a junction of the locally inherent religious legal norms and foreign influence of the French and British legal systems. The legal documents of the country, such as Constitution Articles 60 and 61, may claim the judiciary to be independent, yet the status of Sultan Qaboos as the leader of the executive branch, his role in legislation, and his life demonstrate that the Middle-Eastern state stands in sharp contrast to the UK, where the SOP has been in effect since at least 1701. Considering the cross-branch intervention of the sultan and the resultant cases of rights breaches, Oman may be said to be in urgent need of domestic reforms, including power reform, the creation of a regional prosecutorial body, and the enforcement of international judicial independence and conduct resolutions. Still, as the willingness of the sultan may stand in the way of reforms oriented towards SOP implementation, Oman may require the involvement of foreign institutions.

scholarly journals Teisėjų skyrimas Lietuvoje 1990–1995 metais

Teisė ◽  
2012 ◽  
Vol 82 ◽  
pp. 60-72
Author(s):  
Lina Griškevič
Keyword(s):  
Separation Of Powers ◽  
Judicial Independence ◽  
Judicial System ◽  
Executive Power ◽  
Long Period

Straipsnyje analizuojamas valdžių padalijimo principo skiriant teisėjus įgyvendinimo reformuojant teismų sistemą procesas, atkuriant Lietuvos Respublikos nepriklausomybę (1990–1995 metais). Tiek priimant 1990 m. Laikinąjį pagrindinį įstatymą, tiek rengiant 1992 m. Lietuvos Respublikos Konstituciją stengtasi įtvirtinti skirtingų valdžių dalyvavimą skiriant teisėjus, taip siekiant užtikrinti tiek valdžių atskyrimą bei jų pusiausvyrą, tiek teisėjų nepriklausomumą. Tačiau, nepaisant konstitucinio reguliavimo, vykdomosios valdžios įtakos teismų sistemai ilgai nepavyko išvengti.The process of implementation of separation of powers principle when appointing judges in judicial branch while gaining Lithuanian’s independence (years 1990-1995) is analyzed in the article. In the Temporary main law of 1990, as well as in the Constitution of 1992 the efforts were made towards gathering different branches together while appointing the judges. Such regulation is deemed to help to ensure both the separation of powers and balance and judicial independence. In spite of the constitutional regulations, the influence of executive power on judicial system remained still for quite long period of time.

scholarly journals The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition

2018 ◽  
Vol 19 (7) ◽  
pp. 1839-1870 ◽  
Author(s):  
Anna Śledzińska-Simon
Keyword(s):  
Decision Making ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Executive Branch ◽  
Judicial Reform ◽  
National Council ◽  
Court Administration ◽  
The Supreme Court ◽  
The Impact

AbstractThis article argues that the establishment of the National Council of the Judiciary in 1989 and the empowerment of the general assemblies of court judges gave rise to the idea of judicial self-government in Poland. This very idea of self-government, implying that judges hold important decision-making or veto powers on matters concerning the judiciary, was regarded as a precondition of the separation of powers and judicial independence, neither of which existed under Communist rule. However, the package of laws introduced in 2017 marks the end of judicial self-government as we know it. Not only did it undermine the independence of the National Council of the Judiciary by altering the mode of electing its judicial members, but it also concentrated the power over the judiciary in the hands of the executive branch, allowing for, inter alia, the exchange of key positions in court administration and the reconfiguration of the Supreme Court. This article examines the impact of this “reform” on such values as independence, accountability, and transparency. Investigating the role of judicial self-government in ensuring the principle of separation of powers and democracy, the article concludes with an assessment of the early consequences of the introduced changes for the Polish judiciary.

The Push for Precedent in Russia's Judicial System

2012 ◽  
Vol 37 (1) ◽  
pp. 1-30 ◽  
Author(s):  
Max Gutbrod ◽  
William Pomeranz
Keyword(s):  
Separation Of Powers ◽  
Civil Law ◽  
Judicial Independence ◽  
Judicial System ◽  
Court Decisions ◽  
Law System ◽  
Practical Standpoint ◽  
Anglo American ◽  
Civil Law System

AbstractRussia is currently undergoing a spirited public debate over the role of precedent in a civil-law system. This article examines this debate from a theoretical and practical standpoint, exploring the nature of Russian court decisions and the extent to which they correspond to the Anglo-American theory of precedent. The article further analyzes how the Russian Higher Arbitrazh Court has carved out a narrow right to issue binding precedent and how this authority could impact Russia's civil-law understanding of such concepts as separation of powers and judicial independence.

scholarly journals Comparative Study Between the Omani and the British Legal Systems in Terms of Judicial Independence and Separation of Powers

2020 ◽  
Vol 6 (1) ◽  
pp. 51
Author(s):  
Rashid H.S. Al Junaibi
Keyword(s):  
Separation Of Powers ◽  
Middle Eastern ◽  
Judicial Independence ◽  
Executive Branch ◽  
Legal Systems ◽  
Legal Norms ◽  
Eastern State ◽  
Legal Documents ◽  
The Status ◽  
The Uk

The legal system of Oman is a junction of the locally inherent religious legal norms and foreign influence of the French and British legal systems. The legal documents of the country, such as Constitution Articles 60 and 61, may claim the judiciary to be independent, yet the status of Sultan Qaboos as the leader of the executive branch, his role in legislation, and his life demonstrate that the Middle-Eastern state stands in sharp contrast to the UK, where the SOP has been in effect since at least 1701. Considering the cross-branch intervention of the sultan and the resultant cases of rights breaches, Oman may be said to be in urgent need of domestic reforms, including power reform, the creation of a regional prosecutorial body, and the enforcement of international judicial independence and conduct resolutions. Still, as the willingness of the sultan may stand in the way of reforms oriented towards SOP implementation, Oman may require the involvement of foreign institutions.

scholarly journals Judiciary Saga in Poland: an Affair Torn Between European Standards and ECtHR Criteria

2020 ◽  
Vol 9 (2) ◽  
pp. 39-79
Author(s):  
Matteo Mastracci
Keyword(s):  
Separation Of Powers ◽  
Judicial Independence ◽  
Executive Branch ◽  
Minor Role ◽  
Constitutional Court ◽  
Parliamentary Election ◽  
National Council ◽  
Court Of Justice ◽  
European Court ◽  
Polish Government

Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.

theoretical and legal analysis of the position of the prosecutor’s office in the system of separation of powers

2021 ◽  
Author(s):  
Vladislav Topilin ◽  
Roman Fedorov
Keyword(s):  
Scientific Knowledge ◽  
Legal Status ◽  
Separation Of Powers ◽  
Executive Branch ◽  
The State ◽  
Legal Analysis ◽  
State Structure ◽  
Independent State ◽  
State Apparatus

The article is devoted to the problems of the legal status of the prosecutor’s office in the system of separation of powers. In the study, the author uses grammatical (philological, linguistic) logical, systematic and other methods of scientific knowledge. The author proposes to separate the prosecutor’s office into a separate (supervisory) branch of government, which will not belong to either the executive branch or the judicial branch, as a result of which the state will receive an independent state structure that will be able to exercise its supervisory functions independently of anyone, which will allow for better and faster suppression of possible violations by any branch of government, as well as improve the work of the state apparatus as a whole.

scholarly journals Judicial Independence, Judges’ Incentives and Efficiency

2015 ◽  
Vol 11 (2) ◽  
Author(s):  
Alessandro Melcarne ◽  
Giovanni B. Ramello
Keyword(s):  
Economic Theory ◽  
Institutional Environment ◽  
Judicial Independence ◽  
Judicial System ◽  
Innovative Approach ◽  
The Ideal ◽  
Court Performance

AbstractAlthough often assumed by economic theory, the idea of an efficient judicial system often sounds like an oxymoron. In this work, we suggest an innovative approach to investigating the determinants of court performance. Our focus is on determining the ideal institutional environment for fostering the appropriate set of incentives for judges to operate efficiently. In this setting, we find evidence that greater independence enjoyed by the judiciary from politics induces more competition among judges to obtain professional upgrades. Such an environment will incentivize ambitious individuals to be more efficient, thus positively affecting the aggregate performance of the judiciary.

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