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Karşılaştırmalı hukuk (İNGİLİZCE) : Avrupa ve Amerikan sisteminde yargıç

Old 10-08-2016, 20:20   #1
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Varsayılan Karşılaştırmalı hukuk (İNGİLİZCE) : Avrupa ve Amerikan sisteminde yargıç


Author: Katarina Dandarova

In my paper I would like to introduce the topic of judges in Slovak Republic and also focus on the differences between Slovak judges (civil law system) and judges in USA (common law system).

How to become a judge?

There are few similarities in both systems. As well as in USA also in Slovakia judges start as a lawyers, and they typically practice law for a number of years before being appointed as a judge. In both cases the road to become a judge is really long.
In both systems judges has to fulfill certain requirements. First one in an education. In USA you have to at first obtain bachelor degree from a university. There is no specific requirement from which area this bachelor degree have to be. And then apply for a law school. Law school lasts for 3 years and after completing you will get a Juris Doctor degree (J.D.) Another step is a bar exam. Licensure as a lawyer is required in all states. After exam most future judges work as prosecutors or attorneys. To have a prior legal practice is required for obtaining many state and federal judgeships. And then you have to apply for a judgeship. Generally, becoming nominated for a judgeship requires a strong history of legal practice and support from politicians. Presidents most often appoint judges who are members, or at least generally supportive, of their political party. In Slovakia judge cannot be a member of party, if he is a member of a political party or a political movement, he is obliged to give up the membership in them before taking the oath. After being elected or appointed judges may be required to complete another special training as well as educate themselves during their all career to stay informed about changes to the law.

In Slovakia future judges also have to finish law school. But the educational system is a bit different than in USA. Studies at law faculty are divided into three years of bachelor and two years of master. So in contrast with the American system, you have to spend five years at the university at the law faculty. Right now we have 6 law faculties, from which four are state schools and two are private (they have very bad reputation, students are paying for passing their exams rather then studying). It is really big amount on such a small country. That is why law faculties are producing a lot of unemployed people or people who do not work in their field of study at all. But that is a topic for a longer discussion.

Education at state schools is for free. That is not the same as in US. In Slovakia no one really cares from which university you got a degree (as long as it is not that private one) or which grades are you getting through your studies or from your final state exams. So it is different from USA where people finishing prestigious schools are considered more valuable and are forced to work hard even during their studies to ensure good future jobs. In Slovak law schools you finish with the academic title of Master (Mgr.). But later you can earn an academic degree of Doctor of Law (JUDr.) To obtain it, you must undergo rigorous proceedings in which you are only obliged to make a written doctoral thesis and undergo an oral examination of a selected area of the law. This is not obligatory to become a judge, but in my whole life I never saw a judge without this title as it built more respect toward his person.

Another requirement is that the person has reached the age of at least 30 years on the date of appointment. This age requirement does not exist in USA. People mostly don’t have problems with this condition, more in disfavor is that they are appointed for life. This results into lot of really old judges that don’t want to retire and give their place to young waiting judges. Even the President of Slovak Republic said that he would welcome if there will be constitutional change that would, if judge reaches certain age level be associated with an automatic termination of his position. There is also no age limit in USA, Justices and judges appointed under Article III of the Constitution (Supreme Court justices, appellate and district court judges, and Court of International Trade judges) serve "during good behavior." That means they may keep their jobs unless Congress decides to remove them through a lengthy process called impeachment and conviction. So almost all of these judges hold office for as long as they wish.

Future judge has to pass expert judicial examination and then the selection procedure. Other requirements are: full legal capacity, to be medically fit to perform the duties of a judge, good character and moral qualities that guarantee that person will duly perform the duties of a judge.
Also person who is not citizen of Slovak republic and is not permanently resident in the Slovak Republic cannot be a judge. As far as I found out there is no constitutional requirement that US judges have to be citizens of the United States.
Judges are appointed and removed by the President of the Slovak Republic on a proposal from the Judicial Council of the Slovak Republic. They have to make an oath before the President of the Slovak Republic. Also US judges take an oath. Slovak judges are appointed without time-limit. For example in the USA the federal judges are also appointed by the President of the USA for lifetime tenure. They are confirmed by the Senate. On the other hand magistrate’s judges are appointed by a majority vote of federal district judges of a particular district and only serve 4 of 8 years. We cannot find such division in Slovakia, all the judges are appointed the same way.

What they do?

Here we can see the biggest differences. In civil law countries judges just apply law created by legislature, but also here exist some exceptions. But in general judge’s decision don’t have the force of law. In Slovak Constitution it is written: “Judges are independent in execution of their function and bound solely by the Constitution, constitutional laws, international treaties and laws.” That means that the judges are not bound by previous court decisions and court decisions are valid only for specific case. In common law countries so in this case USA judges makes rulings and sets precedents. That means that whenever the judges are confronted with a dispute for which there is no clear statutory answer, they must render decisions in accordance to their own conceptions of justice. And later judges have to follow these rulings when they are deciding similar cases. A lower court must follow precedent of higher court and the decisions have force of law.

In USA judge is not familiar with the facts before the trial in civil law system he knows before.

In the USA the trial is dominated by the lawyers, they debate and oppose each other and judge is like a “referee” here. In Slovakia judge actively participates in seeking evidence and examining the witnesses. So they have more active role from this perspective, they can even suggest evidence that should be presented, they are examining and asking questions to witnesses, experts, reading statements of witnesses, presenting documentary evidence by reading it. So there are more like directors and examiners here than just referees. In Slovakia judges are the only people that have authority to decide the case. They either rule alone or as panel of judges depending on a case. Panel can have 3 or 6 members out of which one is chairman responsible for directing the proceedings. There is no jury. In USA the jury decides if a person is guilty or not guilty of the offence for which he has been charged and judge makes decisions about all questions of what the law is in relation to the particular case and sentences the defendant. For me personally this system without any jury is way better for the country because I cannot imagine how would easily influenced and most of the time full of prejudice citizens of Slovak Republic decide the case fairly.

How to ensure fairness and impartiality of judges?

To ensure fairness in both countries judges cannot preside over a case in which he or she has any reason to favor one side over the other. For example, a judge must withdraw or recuse himself or herself from any case in which a close relative is a party, or in which he or she has any financial interest, however remote. I saw a lot of cases when this was misused by the judges mostly at the cases which were extensive with lot of participants e.g. inheritance disputes and would require a lot of work. They wanted to pass case to someone else because they for example were friends with father of one of the future heirs. This of course did not passed through hierarchically higher judge who decides if he will give case to some other judge.
In USA each court with more than one judge must determine a procedure for assigning cases to judges. Most district and bankruptcy courts use random assignment, which helps to ensure a fair distribution of cases and also prevents "judge shopping," or parties’ attempts to have their cases heard by the judge who they believe will act most favorably. Another courts assign cases by rotation, subject matter, or geographic division of the court. In courts of appeals, cases are usually assigned by random means to three judges panels. In Slovak republic judges are getting case in accordance to principle of contingency according to the labour schedule of the court. This system should avoid abusing of case distribution in anyone’s favor and maintain fair distribution of cases.

As the conclusion I would like to stress that eventhough these systems are different in many areas they still have some basic principles that are the same and are still becoming closer and closer. They derived from long legal history and work good in the countries where are applied but would not probably work the different way round, Slovak system in USA and US in Slovakia, like I mentioned before in the case of the jury.

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