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Judiciary independence- gurantee

of justice

The complex phenomenon state power is the subject regulation of


the constitutional right. And the rule of law and democracy are basedon a
number of constitutional principles, including the separation of powers.
Separation of powers represents a major principle of modern
democracy, under which power is distributed between thee branches of
government- legislative, executive and judicial power. Each power is located in a
separate institution , and those who apply are selected by different procedures
have different terms and are independent from each other.
The separation of powers does not mean their isolation. Each branch
of power participates in the functioning of the other, this way balancing the
power between them through a system of mutual checks, a fact also stipulated in
article 6 of the Supreme Law of the Republic of Moldova.
The demarches are more pronounced by citizens towards the justice
system on defending their legitimate rights, violated, including by state
authorities. This shows the growing role of the judiciary power, the courts
involved in the commission of justice in building in consequnce the rule of law
and democracy, ensuring repsect for human dignity, rights and freedom of
human personality as supreme values guaranteed by the state, fact stipulated in
article 1 and 3 of the Supreme Law.
Ensuring the supremacy of law represents a cardinal point in the
democratic society. In this respect, the fundamental role lies on the third power,
the judiciary, today we find it expressed by various phrases: judiciary, judicial
power, judicial authority
So,for example, in article 6 of the Constitution, we find the expression judicial
power and the Chapter IX, title II of the Constitution is entitled judicial
authority
This proves that the judiciary power is a guarantee of the rule of law, and the
justice administration and insuring protection of your rights lies on the judges,
procecutors and lawyers.
For them to fullfill their responsibilities properly and , especially, to
investigate and judge authorities and public officials suspected of corruption and
serious human right violations, they should get special status and guarantees. In
the case of judges these requirements are independence and impartiality.
In relation to the role of judges and the independence of justice, there is
already a wide range of international instruments which we can say that belong
to a Corpus Iuris international justice. They also reflect various intergovernmental
or non-governmental organizations be it global or regional, their made to

strengthen the role of the judiciary power. These legal instruments, binding or
not, based a set of international legal standards that can lead to reinforcement of
the judiciary from the executive, legislative or to other groups or persons acting
with or without state approval.

Understood as a judicial institution, justice is defined by the rules of its internal


operation and its relations with sovereign political power. In particular, there is no
question of its independence from the executive and legislative branches of
government to, on the one hand to the delimitation of competences and their
organizational structures and, on the other hand to ensure the achievement and
protection of rights and freedoms. As a general rule, independence of the
judiciary should be regulated at the constitutional or legal arrangements, so the
Moldovan legislation in Article 1 of Law no. 54 of 06.07.1995 on Judicial
Organization stipulates: The judiciary is independent, separate from the
legislative and executive power, has its own power, exercised by the courts in
accordance with the principles and provisions of the Constitution and other laws.
As the draft amendment and complementary of the Constitution article 121
by the Supreme Council of Magistracy, judicial independence is the guarantor of
judicial authorities, these representatives and its role SCM is the guarantor of
judicial independence
The need for an independent justice system is the cornerstone of any
democratic society, finally being a fundamental human right. But to ensure these
constitutional principles requires a well-developed society in economic terms. It is
known that judicial and legal reforms can only be effective with a strong
economic support. It is the duty of the State to ensure adequate working
conditions and resources, enabling the judiciary to operate and perform their
duties effectively and appropriately.
One of the conditions of the judicial
independence is the financial stability of the courts in general and judges in
particular. The Judicial Council of the European courtstates that the financial
stability means: the right to a salary and pension under the law.
The relation with the legislature
The presence of legislative power in the spectrum of law occurs necessarily
through laws that stipulate the organization and functioning of the judiciary
system, on the one hand, and development of normative acts to be applied to
restore and preserve the rule of law on the other hand. This explains that judges
are subject to the law, which does not affect the principle of independence of the
judge so that the law only creates the legal framework in which the judge
operates.
But beyond its legislative power, the legislature can not censure a judge,
issue directions to them, nor replace him. The legislative authority can not
arrogate to itself the jurisdiction to deal with any process, to adopt a law

retroactive, which directly or indirectly calls into question the stability of legal
relations, including and especially those sanctioned by court order, to amend a
judgment given by the court, to issue an interpretive law whose sole purpose
would be to provide the solution to a process in progress, to issue a law in
connection with a process determined in course of the proceedings
On the other hand judges can not subsitute the legislator. The mission of
the judge is to judge, that is, to resolve disputes under the law, he should not
contribute to the regulation itself. This is the purpose of another justicial power,
the legislative.

If practitioners participate in the elaboration of laws and texts results are


discussed and criticized politicians will tend to exculpate arguing that the
judiciary representatives were also consulted. Most times, this consultation is
purely formal, becouse the political factor is imposing their point of view.
Therefore, judges should avoid their engagement in such activities.
The courts do not have the absolute independence to legislator because they
can not refuse to apply a law issued by it, relying on their independence. The only
exception could be in some national systems, the refusal to apply a law contrary
to of a constitutional nature provisions. In this context it should be mentioned
that the judge, through the possibility that one has to raise from ex officio the
exception of unconstitutionality of a law or ordinance comes basically in
controlling the constitutionality of laws made by the Constitutional Court, which
although not part of the system courts covered in Title V.
The relationship with the executive
Executive authority can not solve itself, definitive or irrevocable, no trial,
during the trial to prevent or oppose enforcement of court decisions. As a result,
the relationship with the executive includes the following requirements:

Members of panel of judges can not be subordinated to the executive


The executive can not interfere in the work of of the courts
The Government can not prevent the execution of judgments

Relationship with political parties or the pressure groups


The judge can not be influenced by the pressure groups, political parties,
trade unions, religious associations, media. The independence of the magistrate
subsist in relation to any outside influence he can not exercise an electoral
mandate or a professional activity in private.

Magistrates political militarism endangers the image of independence that


justice must always keep, the more politically engaged they are, the more they
can not claim to unconditional protection against attacks by the press. Also any
financial or relationship support given by a political party to a magistrate, in order
to gain political or professional advantages, could lead to the creation of so
called moral obligations. On the other hand a possible political affiliation of a
magistrate could create the impression that he owes his professional ascent to
the political party or the perception that decisions made by the judge or
prosecutor can not be affected by political influences which by itself strengthens
and maintains public trust in the justice system.

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