The Importance and Guarantees of the Judiciary Independence

The article deals with the standards of judicial independence, institutional and individual independence, their interrelationships, their role and importance for the existence of democracy and the rule of law, the article discusses the elements of individual independence of the judiciary, existing and expected external and internal threats to judicial independence. The article analyzes and outlines the courts, both external and internal forces, the dangers of impact, such as the legislative and executive branches of government, political parties, society, the press, the judiciary itself, and sets out standards for what both judicial and judicial independence standards must meet. The article also offers readers the ways to solve the problems that arise.


INSTITUTIONAL INDEPENDENCE OF THE JUDICIARY
Judicial independence implies the independence of judges, both individually and institutionally. The independence of a judge should be seen as, on the one hand, a system of orientation for the judge himself, a system of his professional beliefs, and, on the other hand, as a set of institutional and operational measures designed to ensure that independence. 1 Institutional independence means the separation of the judiciary from the executive and legislative branches of the institution as a set of institutional and operational measures designed to ensure that independence, including individual independence. It defi nes the relationship between the judiciary and those branches of government independence, as well as their perception of society as such. 2 It is carried out with the self-government and incompatibility of the court. Self-government is exercised by the Conference of Judges of Georgia, the 1 Bangalore Principles of Judicial Conduct and its Comments, Tbilisi 2015 p.66. 2 Bangalore Principles of Judicial Conduct and its Comments, Tbilisi 2015, p.67. main function of which is to strengthen the independence of the judiciary, public confi dence and trust in the courts, and the authority of judges.
Constitution, the judiciary is exercised by the courts, which means that the exercise of this power is entirely entrusted to judges. The following articles of the Constitution already set out the basic principles by which a judge should be guided in the performance of his or her activities. Therefore, the independence of the judge is considered, the judge's orientation system itself, a kind of system of his professional beliefs It is the individual independence that specifi cally concerns the judge directly. It consists of subjective and personal (persönliche) independence and is therefore subjective and personal in nature.
A) Subject matter; B) Personal; C) Internal independence.

SUBJECTIVE INDEPENDENCE
The guarantee of independence is enjoyed by all persons exercising judicial power in accordance with the Constitution and the law (judges, jury). The source of threat to the independence of judges can be: state authorities, parties or public groups.

INDEPENDENCE FROM THE EXECUTIVE BRANCH
Ensuring the independence of judges is an essential element of the independence of the judiciary from the executive branch. It is inadmissible for the executive to give any directives to the court, to issue any act, which will interfere in the activities of the court. Article 63 of the Constitution explicitly states that all acts restricting the independence of a judge are void. Judges may not be depend on the instructions of the executive branch. The executive branch has no right to issue any act or give separate instructions that will affect the activities of the court.
Pursuant to Article 8 of the Law on Common Courts, state and local self-government bodies, institutions and offi cials are prohibited from violating the independence of the judiciary, infl uencing a judge or interfering in his/her activities while making a decision. 4

INDEPENDENCE FROM THE LEGISLATURE
The court's obedience to the law and the constitution is given directly in the fi rst paragraph of Article 63 of the Constitution.
But obedience to the law does not mean obedience to the letters of the norm or coercion to obey the literal meaning of the norm, but rather, the judge has the right to interpret the norm according to the system of law, its essence and purposes. The legislator has no right to interfere in the activities of the court during the consideration of specifi c cases in the court and to have any infl uence on it. Interference measures include both decisions of Parliament and individual laws.

INDEPENDENCE OF JUDGES FROM THE JUDICIARY ITSELF
The substantive independence of judges means independence not only from the executive and the legislature, but also from the judiciary.
The judge acts independently of other judges. The task of hearing and deciding a case from a judge who remains face to face with his or her conscience. Requires some autonomy. Thus, the independence of a judge requires not only the independence of the judiciary as an institution from other branches of government, but it also requires the independence of judges from each other. In other words, the independence of a judge is conditioned not only by the absence of unlawful outside infl uence, but also by the absence of the unlawful infl uence that may result from the actions or position of other judges. Although a judge sometimes fi nds it helpful to "get ideas" to colleagues in a hypothetical case, each judge is personally responsible for the decision, including the judges on the appellate panels. 5

CERTAIN CASES ESTABLISHED BY THE CODE OF PROCEDURE FOR RESTRICTION OF INDEPENDENT DECISION-MAKING BY A JUDGE
In cases defi ned by the Code of Procedure, the judge is deprived of the opportunity to make an independent decision on a number of issues. It obeys these restrictions established by law. The judge can-not make a decision independently, as this issue has already been regulated and resolved by the Code of Procedure. This does not violate the principle of the independence of judges, as the restriction on the free decision of a judge is set by the Code of Procedure itself. For example, the court has no right to go beyond the scope of the accusation in terms of aggravation, or to establish new factual circumstances radically different from the factual circumstances established by the parties, and after the judgment enters into force, the court cannot change the verdict. The court has no right to assess the silence of the accused against him or to use only the confession of the accused as a basis for the verdict.

PARTY INDEPENDENCE
The judges are not allowed to be a member of any political part. It is a constitutional principle. It is given in paragraph 4 of Article 63 of the Constitution of Georgia, according to which a judge may not be a member of a political party, participate in political activities.
The judge should make a decision in accordance with the Constitution and the law and not in the purpose and interests of any political party. The law requires the complete political neutralization of a judge and prohibits activities in any political party. 6

JUDICIAL INDEPENDENCE FROM THE PUBLIC
Court decision can and should be criticized. Criticism of the press during the trial is permissible. But at the same time, the independence of the judiciary must be protected by law from the infl uence of both the press and individuals, interested organizations, and part of the public.
The substantive Criminal Code ensures the protection of the judiciary from criminal activity. Forcing a judge to make a decision that is desirable for someone is punishable under criminal law (Article 365 of the Criminal Code, threats or violence in connection with the conduct of an trail or investigation), and contempt of court is punished accordingly.

PERSONAL INDEPENDENCE OF JUDGES
Paragraph 5 of Article 63 of the Constitution of Georgia (Part 2 of Article 7 of the Organic Law on Common Courts) ensures the personal independence of a judge appointed in accordance with the law. The removal of a judge from the hearing, his/her dismissal or transfer to another position, or his/her retirement shall be allowed only if there are preconditions provided by law.
The personal independence of a judge includes fi rst of all the following elements: 1. Inadmissibility of removal from the trial of a judge; 2. Inadmissibility of his early dismissal from offi ce, early termination of his authority; 3. Inadmissibility of transfer to another position; 4. Retirement before the expiration of his/her judicial activity, except in cases provided by law. This is the principle of immovability. The principle of immovability is a guarantee of both personal and substantive independence of judges. Judges who have been appointed in accordance with the law may not be dismissed, removed from offi ce, transferred to another position, or retired before the expiration of their term as a judge. It is inadmissible to apply measures to judges by which judges practically retain their positions but are in fact unable to carry out judicial activities, For example, when the law on the distribution of court cases in common courts and the imposition of powers on other judges is violated. If the rule of distribution of cases is violated and the particular judge fails to get the particular case, that he was subject to the judge under the law, not only the principle of a lawful judge is violated, but also the personal independence of the judge, as he is practically excluded from the case.
The appointment of a judge to another court is allowed only with his/her consent (Article 44 1 of the Common Courts Law). The law provides for the dismissal of judges in the event of the liquidation of the court. It is true that the dismissal of judges on the basis of court liquidation is written in and restricts the personal independence of judges, but it does not violate the personal independence of judges, since according to the law the court is liquidated by the judiciary and not the executive, it does not violate the personal independence of judges.
The grounds for dismissal against the will of a judge are given in the Organic Law on Common Courts (Articles 44 and 45 of the Organic Law on Common Courts), as well as in the Law on Disciplinary Liability and Disciplinary Proceedings of Judges of Common Courts.
Judges must be guaranteed personal independence. Judges may be removed from offi ce or suspended from offi ce only in cases provided for by law, on lawful grounds and in accordance with the procedure laid down by law.

INTERNAL INDEPENDENCE OF JUDGES
Any judge must make a decision based on internal independence and personal responsibility. The internal independence of a judge requires the internal freedom of a judge. He must make a decision only in accordance with the Constitution and the law and he is not liable to any third party.
Internal independence is not guaranteed by law or the constitution, but rather it is a task facing him personally to be free from infl uence. The judge is not fi ghting for internal independence, but he must own it. The judge must make his or her own decisions, both without free of internally and externally impact.
Such infl uences may arise from political parties, especially ruling parties, which are also legally involved in the appointment of judges to some extent (for example, the rule of appointment of Supreme Court judges). Also due to the nature of media statements, comments, TV shows and can exert some pressure, this pressure can be intensifi ed if politicians support the opinion spread by the media. There is no legal leverage against such infl uence, especially since the function of the media is to criticize court decisions. The internal independence of judges means independence from third parties. The judge must make a decision freely, without the infl uence of others, in accordance with the law.

GUARANTEES OF INDEPENDENCE OF THE COURT AND THE JUDGE
One of the most important guarantees for the independence of a judge is his/her unlimited appointment, which is envisaged by the Constitution of Georgia.
The Organic Law on Common Courts strictly regulates the rule of communication with judges of common courts, which ensures the protection of the judge's independence from outside interference.
The irreplaceability of a judge is guaranteed by organic law. Reorganization or liquidation of the court may not be a ground for dismissal of a judge appointed for life.
It should also be noted that since the Rose Revolution till today, the common court system came under political control. The reorganization and liquidation of the courts was the main tool that enabled the then government to remove undesirable judges from the system and to establish the judiciary in accordance with the subjective political interests. (It is the court with subjective political interests that continues to function today unfortunately).
An important guarantee of the independence of the judiciary is the immunity of judges. The judge is inviolable. It is inadmissible to prosecute, detain or arrest the judge, to search his residence or workplace, car or personal, without informing the High Council of Justice or in the case of a judge of the Constitutional Court -without the consent of the Constitutional Court. The exception is the case of witnessing a crime, which must be reported immediately to the High Council of Justice or the Constitutional Court, respectively. If, accordingly, the High Council of Justice or the Constitutional Court does not give its consent, the judge deprived of liberty shall be dismissed immediately.

SUMMARY
The key to fostering and establishing the 'rule of law' is to ensure that the judiciary is not only independent but appears to be independent, in order to gain the confi dence of the public 7 The greatest danger to independence comes from the interference of-perceived or otherwise-government institutions or political parties.
The relationship between the three branches of power should be built on mutual respect and recognition of the respective roles of the other two of them. This is necessary because the judiciary plays an important role in relation to the other two branches of the state. The judiciary must ensure that the government and administrative bodies are accountable for their actions; with regard to the legislature, the judiciary must ensure the proper application of adopted and enacted laws, as well as their compliance with the national constitution and, if necessary, regional and international treaties that are part of domestic law.
For the free, unrestricted exercise of their functions and the exercise of independent judicial decision-making powers, judicial authorities must exclude unlawful relations with other branches of state, as well as their infl uence. Thus, independence is a guarantee of impartiality and objectivity The relation of these two aspects of independence can be interpreted as follows: a judge may be independent in his or her views and reasoning, but if the court in which he or she hears cases is not independent of other branches of government in matters relevant to his or her proper functioning, the judge cannot be considered independent.