HAKİMLERİN ÖZNEL BAĞIMSIZLIĞI: HAKİMLİK TEMİNATI
Abstract
Yargının bağımsız olması hukuk devleti ilkesinin bir gereği ve adil yargılanmanın temel güvencesidir. Temel hak ve özgürlüklerin güvence altına alınması bakımından bireylerin adalete olan güveninin tesisinde yargının bağımsız olması zorunludur. Yargının bağımsızlığının sağlanabilmesi için hâkimlerin bağımsız ve teminatlı olmaları gerekir. Yargı bağımsızlığı ve hâkimlik teminatı birbirinin tamamlayıcısı olan unsurlardır. Hâkimlerin yargısal görevlerini icra ederken herhangi bir etki ve baskı altında olduğunu hissetmeden, korkmadan, endişe etmeden hukuka uygun vicdani kanaatlerine göre karar verebilmeleri gerekir. Bunu sağlamanın yolu anayasal veya yasal boyutuyla hâkimlere çeşitli teminatların tanınmasıdır. Hâkimlik teminatının sağladığı güvence ülkeler arasında farklılık göstermekle birlikte genel olarak benimsenmiş bazı standart güvenceler bulunmaktadır. Bu çalışma bu güvencelerin yoğunluk derecesi arasındaki farklılıkları bazı örnek ülkeler üzerinden incelemeyi amaçlamaktadır.
Keywords
Subjectıve Independence of Judges: The Guarantee of Judgeship
Abstract
In democratic legal systems, the judicial power is one of the three basic components of the state. The quasi-judicial power must be a separate and independent structure from the other components, namely the legislative and executive powers. This is because the judiciary is the mechanism that will supervise the legislative and executive powers to fulfil their duties and powers in accordance with the constitution. The independent and impartial identity of the judiciary is at the basis of individuals' trust in the state. Otherwise, the loss of independence of the judiciary causes the society to lose faith in justice and to seek justice through extra-legal means. Therefore, it is not possible to say that rights and freedoms are secured in political systems where the inde-pendence of the judiciary cannot be ensured. In such a system, the principle of the rule of law will lose its importance and meaning.
Although ensuring the independence of the judiciary is so important and necessary, how to ensure independence is also an important issue. The prerequisite for ensuring the independence of the judiciary is institutional independence. Institutional independence means that the judiciary has equal power and value vis-à-vis the other branches of the state, that there is no hierarchical relationship between them, and that they are not subject to any interference or pressure from other branches. Institutional independence of the judiciary can be realised by ensuring the independence of the judiciary as a whole from the legislature, the executive, the press, the parties to the case and the judiciary itself. Institutional independence is necessary but not sufficient to ensure judicial independence. In this sense, ensuring individual independence is also very important. It is possible for judges not to be subjected to any individual pressure and interference by ensuring individual independence. In order to ensure judicial independence, a number of guarantees have been introduced to ensure the independence of individual judges. Although these guarantees differ in scope between countries, it is generally seen that certain standard professional guarantees are introduced for judges. The prohibition of impeachment is one of the most important of these professional guarantees characterised as the guarantee of judgeship. In the constitutions of almost all democratic countries, judges are prevented from being dismissed without a legal and legitimate reason. It is highly probable that a judge who thinks that he/she will be dismissed due to his/her decision will not be able to make an independent and impartial decision and will be open to pressure and interference. For this reason, it is an important guarantee for judges that they cannot be dismissed or be subjected to mobbing in such a way that they are unable to perform their duties. Another important professional guarantee for judges is the inability to be ex officio retired. Judges should not be able to be ex officio retired by law or administrative action against their own will before the retirement period expires. Constitutions or laws stipulate a certain term of office for judges. This period is the retirement age. Although the retirement age varies from country to country, it is common for this age limit to be in the range of 65-70 years. The general tendency is to increase these age limits. The justification for this is that it is very important to utilise the experience of judges with significant legal and judicial experience for a longer period of time.
Although the guarantees of prohibition of impeachment and ex of-ficio retirement for judges are regulated in a secure manner, it is clear that they are not sufficient on their own. Because leaving the salaries, allowances and other financial rights of judges open to interference would jeopardise the independence of judges. The use of the financial rights of judges as a means of threat to their decisions will also create a very dangerous situation for the independence of the judiciary. For this reason, it is very important that financial security, which is an important element of independence, is recognised for judges. Situations such as the abolition of a court or a cadre, or the relocation of a judge should not be seen as a reason for depriving judges of their financial rights. Adequate salaries and allowances of judges are also within the scope of financial security. Providing judges with a welfare level of living and determining their salary levels in line with economic developments will strengthen the independence of judges as a requirement of their duties and responsibilities.
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