scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

scholarly journals Towards Modern Challenges in Financing the Judiciary: Between Independence and Autonomy

2020 ◽  
Vol 3 (2-3) ◽  
pp. 134-147
Keyword(s):  
Rule Of Law ◽  
Access To Justice ◽  
Modern Approach ◽  
The Rule Of Law ◽  
Financial Autonomy ◽  
National Courts ◽  
Independent Judiciary ◽  
Democratic State ◽  
Administration Of Justice ◽  
The Right

An independent judiciary is the guarantor of a democratic state governed by the rule of law, which we strive to build in Ukraine. This independence is ensured, among other things, by a stable and sufficient funding of the national courts, which has become a significant challenge. The resolution of such issues has been sought in recent decades, but the problem of court financing has become especially acute in the context of the economic crisis and the coronavirus pandemic, which occurred in 2020. This has led to somewhat hopeless feelings about the chosen way of forming the policy of Ukrainian courts financing and its implementation. Our study attempts to analyze certain aspects of the existing mechanism of financing the judiciary in Ukraine, in particular, through the prism of financial support for judges and assistant judges during the coronavirus pandemic. The functions which they perform can be attributed to the main ones during the administration of justice. The authors propose the analysis of the case on the protection of the right of assistant judges to a decent salary, which lasted for years in all courts of the state. In connection with the coronavirus pandemic in Ukraine, a law was passed reducing the salaries of judges, which is also analyzed in the article. The search for a new, more modern approach to resolving the issue of a stable financial independence of the judiciary will help to solve urgent problems and ensure a real rule of law in Ukraine. In particular, our proposed approach to the formation of financial autonomy of the judiciary in Ukraine is suggested in this study. Key words: judiciary, access to justice during pandemic, COVID Justice, financing of the judiciary, independence of the judiciary, financial autonomy of the courts.

Italian Experience of the Administrative Justice Functioning

2020 ◽  
Vol 27 (2) ◽  
pp. 27-46
Author(s):  
Anton Monaienko
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Legal System ◽  
Public Law ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
Italian Experience ◽  
Foreign Countries ◽  
Administrative Courts ◽  
Administrative Justice

The development of administrative legal proceedings in Ukraine determines the search for optimal ways to improve the system. Each country has its own strategy for the functioning of administrative justice, which depends on cultural, historical, national, integration processes, as well as the gradual formation of the legal system of a particular state. The main purpose of the study is to analyse the Italian experience of the administrative justice functioning. To achieve this goal, various theoretical methods are used. The method of legal forecasting allowed to identify areas for improvement of administrative justice in Ukraine. The author presents the concept and features of administrative justice operation in Italy in matters of protection of violated rights, freedoms and interests of individual and citizen by decisions, actions and omissions of the authorities; analyses the system and structure of administrative justice in Italy, its specialisation; features of some categories of public law disputes and delimitation of jurisdiction of administrative courts and general courts in resolving certain categories of administrative cases, features of their reading in administrative courts of Italy of first and appellate instance; powers of the Italian State Council in resolving public law disputes, and powers of quasi-judicial tribunals of Italy, which perform the functions of justice. It is revealed that the administrative courts of Italy are empowered with the rights to assess the activities of public administration. Based on the experience of other countries, including Italy, we can conclude that a well-built system of administrative justice can help protect the rights of Ukrainian citizens and the rule of law. But it is important not only to focus on foreign countries, but also to take into account the peculiarities of the legal system of Ukraine

scholarly journals Ensuring the principles of the rule of law and legality in the activities of public administration: terminological analysis

2020 ◽  
Vol 45 (2) ◽  
pp. 91-98
Author(s):  
Iryna Shumliaieva
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Social Relations ◽  
Scientific Article ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Stage Of Development ◽  
Close Relationship ◽  
Scientific Papers ◽  
Definition Of

In the context of the development of home public administration, the implementation of research in terms of providing a meaningful description of the principles of the rule of law and legality in order to comply with them and ensure the activities of public authorities is becoming relevant. Therefore, the purpose of the scientific article is to implement a terminological analysis of the principles of the rule of law and legality in the activities of public administration, as an important condition for the development of public administration. The article considers terminological issues related to the definition of the essence of the concepts «rule of law», «legality», «public administration», by analyzing scientific papers and legal documents. Particular attention is paid to the definitions contained in the norms of international and European acts concerning the definition of the content of the principles of the rule of law and legality, which allowed distinguishing the relevant international and European understanding of the conceptual foundations of these concepts. It is established that at the present stage of development of the institution of public administration in the European doctrine the principle of the rule of law prevails, which is not identified with the principle of legality, as it is included in the list of relevant requirements for the implementation of the first one. The relationship between the rule of law and the rule of legality is shown, given their close relationship, formed in the process of evolution at different times during the development of social relations. As a result of research of scientific literature and normative-legal sources, it is offered to consider legality in activity of public administration in a wide public-administrative context through a prism of regulation of the state-authoritative influence on society for the purpose of its ordering. Since the vector of the rule of law and legality is aimed at both public authorities and society, it is assumed that the adoption of these principles in society involves the implementation of the requirements set out in the article to ensure compliance with public administration.

scholarly journals The slow and hidden road to serfdom

2021 ◽  
pp. 201-237
Author(s):  
Peter Bernholz
Keyword(s):  
Immanuel Kant ◽  
Rule Of Law ◽  
Alexis De Tocqueville ◽  
Individual Freedom ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
General Rules ◽  
The Law ◽  
The Right ◽  
Discretionary Powers

Without the rule of law limiting the discretionary powers of government agencies, but also of other organizations and in-dividuals no individual freedom is possible. If government re-presentatives or private persons can order at their discretion individuals to behave in certain ways, no individual liberty is guaranteed. As Immanuel Kant expressed it «man is free if he needs to obey no person but solely the law.» And even if indi-viduals are only obliged to follow the law, their freedom is al-ways threatened if these laws can be changed arbitrarily by any individuals or government authorities. This is even true for de-mocracies in which duly elected parliamentary majorities (that is minorities) are allowed to introduce new laws or change old ones relating to any sphere of human activities. The problem has been clearly stated by Alexis de Tocqueville (1945, vol. I, p.270): When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws. Similar ideas are expressed by Friedrich v. Hayek (1944, p. 62): The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people, or at enabling anybody to use the coercive power of the state for the purpose of such discrimination.

Legal State is the Goal of the Rule of Law

2020 ◽  
Vol 2 (4) ◽  
pp. 109-130
Author(s):  
V.V. Ershov ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Positivism ◽  
The Rule Of Law ◽  
Word Combination ◽  
History Of Development ◽  
History Of ◽  
Definition Of ◽  
The Right ◽  
Legal Understanding

Introduction. The term “legal state” can be found in numerous international and national legal instruments, as well as in the works of contemporary scholars and scholars of previous generations. This word combination is widely used by politicians and lawyers. Its various applications dictate the need for a definition of the essence of the “rule of law” and its manifestations. Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which only principles and norms of law contained in a single, multilevel and developing system of national and international law forms implemented in the state, the article concludes that it is theoretically debatable that in the special literature, international and national legal documents and legal acts two separate concepts of “rule of law” and “legal state” exist. Results. The notion of the rule of law has a long history of development. In the relevant context, the concept appeared as early as in the writings of Plato and Aristotle. At present, there are also many scientific works devoted to the study of this issue, which is still relevant. The article analyses the notion of the “rule of law” from the perspective of legal positivism as well as the scientifically grounded and scientifically debatable concept of integrative legal understanding. Based on the results of the study, the author concludes that the concept of “the rule of law” has evolved in different historical epochs under the influence of social, economic factors, emerging scientific views, but is still incomplete. From the perspective of the scientifically based concept of an integrative legal understanding, the author believes that it is theoretically more reasonable to view the rule of law as the goal of regulating legal relations in a legal state, self-limited not only by “internal” law, but also limited by “external” law. Discussion and Conclusion. Concepts of the rule of law according to the types of legal understanding of the researchers can be classified into concepts developed on the basis of: legal positivism (‘thin’ concepts; scientifically debatable concepts of integrative legal understanding, arguably synthesising both the right and the wrong); scientifically substantiated concepts of integrative legal understanding. According to the latter approach, a valid legal state is not only self-limited by “internal” law, but is also limited by “external” law, and theoretically more precisely by the principles and norms of law contained in a single, evolving and multilevel system of national and international law forms.

THE PRINCIPLE OF THE RULE OF LAW IN THE JUDICIAL PRACTICE OF UKRAINE

2021 ◽  
Author(s):  
Ruslan Skrynkovskyy ◽  
◽  
Yaroslav Skoromnyy ◽  
Yuriy Mazur ◽  
Valentyn Serdiuk ◽  
...  
Keyword(s):  
Rule Of Law ◽  
Limit State ◽  
Transitional Period ◽  
Complex Nature ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
The Status ◽  
The Law ◽  
The Right

The article reveals the peculiarities of the observance and implementation of the principle of the rule of law in the judicial practice of Ukraine. It was established that the implementation of the rule of law is regulated by the Resolution of the Plenum of the Supreme Court of Ukraine «On a Court Decision in a Civil Case», the Law of Ukraine «On the Judiciary and the Status of Judges» and the Constitution of Ukraine. It has been established that the principle of the rule of law is one of the main principles of a democratic society. It has been established that the problem of observance of the principle of the rule of law in the judicial practice of Ukraine is of a complex nature, and it can be solved only through the implementation of a comprehensive judicial and legal reform. It has been established that in the context of observing the rule of law in Ukraine, the experience of the European Court of Human Rights should be implemented. It has been established that the implementation of the principle of the rule of law occurs through the implementation of the principle of legal certainty, the principle of juridical certainty, the principle of justice, the principle of equality, the principle of clarity and unambiguity of the legal norm, the principle of proportionality, the principle of predictability. It has been proven that in the context of the administration of justice, the court must comply with the principle of the rule of law, as well as ensure the right of everyone to a fair trial, to ensure respect for everyone, as well as other rights and freedoms defined by legislative and regulatory documents. It has been established that one of the main principles for the implementation of the principle of the rule of law is the implementation of changes in legislation in order to establish an appropriate transitional period (that is, a reasonable period between the date of the official promulgation of the law and the date of entry into force of the law). It was determined that the implementation of the principle of the rule of law indicates the limited nature of public authorities in actions, primarily those regulated by law, and the main goal of the principle of the rule of law is to limit state power over everyone, as a result of which the rights of everyone should be properly ensured against arbitrary (and at the same time inappropriate) interference of the state or public authorities, in particular, in the relevant spheres of life of everyone. It is noted that the prospects for further research in this direction are the study of the legal foundations of other principles that guide the activities of the judicial authorities of Ukraine.

Implementation problems and development trends of the principle of powers separation

2020 ◽  
pp. 180-186
Author(s):  
Laura Turkaeva
Keyword(s):  
Rule Of Law ◽  
State Structure ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Constitutional Principle ◽  
Fundamental Part ◽  
Legal Nature ◽  
Points Of View ◽  
Definition Of ◽  
Implementation Problems

An integral component of the rule of law, which acts as an important attribute of the functioning of Russian constitutionalism institution, is the presence of public authorities, which provides a mechanism for stable gov-ernance. The modern model of the state structure of our country is based on many principles, a special place among which is given to the principle of powers separation, which became a novel of the Constitution of 1993. The operation of this principle is reduced to a triad of the following functions: en-actment of laws, monitoring their implementation, and guaranteeing protec-tion in case of violation. All three branches of government belong to the rele-vant public authorities, and are implemented independently and equally. Un-fortunately, today there is no single concept regarding the ideological and po-litical essence of this theory, although scientific ideology is in search of the primacy definition of one of three branches of government. The relevance and novelty of the problem under consideration is based on objective histori-cal data, which are a fundamental part in the formation of the national legal system. We consider the legal basis of the principle of powers separation, various author’s points of view in determining its essence, including as a constitutional principle. The legal nature of the constitutional principle is ex-plained by the legislative regulation of power between various public authori-ties and officials, as well as general powers exercised within certain areas of state activity.

scholarly journals RULE OF LAW IMPLEMENTATION INTO THE ADMINISTRATIVE PROCESS IN UKRAINE

2021 ◽  
Vol 1 ◽  
pp. 73-80
Author(s):  
Іnnа Pozigun
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Practice ◽  
Public Authorities ◽  
Administrative Process ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Systematic Training ◽  
Western Law

The relevance of the study is stipulated by the necessity to determine the directions of the rule of law implementation (as a fundamental value of Western law culture) into the national law system. The statistics of the European Court of Human Rights, the study of the rule of law index in the world, the decisions of national courts as to the rule of law principle implementation are analyzed, some decisions of the European Court of Human Rights as to the rule of law are processed. Emphasis is placed on the impossibility of adequate study of the rule of law within the normative understanding of law. The rule of law can function only if the provisions of the natural and law understanding of law are implemented. Only by realizing what the rule of law is can it be implemented into legal practice. It is noted that the analysis of national courts’ judgments allowed experts to draw a number of conclusions about the inappropriate level of the rule of law principle application by domestic judges, which is usually brought to quoting individual judgments of the European Court of Human Rights (mostly the same) or references to articles of the Convention on Human Rights and Fundamental Freedoms (the implicit content of the human rights enshrined in these articles is not disclosed). The following areas of the rule of law implementation are noted and characterized. First, the ideological direction: given that the principle of the rule of law is inherent in Western tradition of law based on a natural understanding of law, and is incompatible with the normative school of law, to which indicates the lack of understanding of the content of this principle by a number of judges, then without changing the legal paradigm further implementation of the rule of law principle has no sense. Only by realizing what the rule of law is, it can it be implemented into legal practice. This direction involves radical changes in the system of national law, which can occur only due to involvement of public authorities in legal values. Secondly, the scientific and practical direction: if within the first direction the emphasis is on future employees of public authorities, this direction concerns those persons who implement the state policy in life today. A prerequisite for holding a position in public authorities should be a systematic training, an integral part of which should be mastering the subject within which employees will learn about the understanding of human rights, their implicit nature, the rule of law principle, study the practice of the European Court of Human Rights. Third, the normative and legal direction: the necessity of adoption of the legal act which will systematically define the order of realization of administrative process is proved.

scholarly journals European standards in the field of civil proceedings: scientific problem formulation

2021 ◽  
pp. 305-314
Author(s):  
Hennadii Tymchenko
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Problem Formulation ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
Civil Proceedings ◽  
European Standards ◽  
Judicial Procedures ◽  
The Right ◽  
Judicial Protection

Problem formulation. The article analyzes European standards in the field of civil proceedings. The need to change traditional approaches within the framework of civil procedural science, covering its conceptual and categorical framework, the methodology of studying law, and research subjects is substantiated. This need is due to, first of all, the growing influence of the concept of human rights and freedoms on the contemporary legal systems, as well as the models of procedural activity. Purpose and objectives of the study. The purpose of the article is to analyze the essence of the category of European standards in civil proceedings. Research methods. The methodological basis of the study is a set of general scientific and general legal methods and means of cognition of civil procedural law. It is argued that the system of European standards began to acquire serious shape and a certain completeness in the global dimension only in the middle of the 20th century as a result of the historical development of states. Having passed the path of its development within the framework of three generations of human rights, the concept of human rights has brought the problem of their ensuring to a qualitatively new level in terms of appropriate procedures and protection mechanisms. The natural result was the possibility of enshrining the minimum necessary list of human rights in the field of judicial protection in international legal instruments for the first time. In this sense, the very emergence of the term “standards in the field of ensuring the right to judicial protection” as a quite new phenomenon of legal doctrine and legislation was a logical extension of this movement, given the need for a global assessment of respect for human rights and freedoms and of national laws in terms of their compliance with the ideas of the rule of law. The correct use of the terms “procedure”, “legal proceedings”, “civil proceedings”, “judicial procedures”, “defense of a right” in relation to the standards under consideration is also important in the theoretical and applied context. We can speak of the possibility of their use only in the sense that they are all aimed at the cognition of the same phenomenon. Not all standards may have a fundamental character for legal proceedings, be within the scope of normative regulation, cover structurally all stages and proceedings, individualize procedural activities and determine the necessary scope of rights and obligations of its participants and the procedural position of the court. The issues of the content of standards in the field of ensuring the right to judicial protection in civil proceedings are considered. It is noted that the trend in the activities of the European judicial institution, especially given the unique perception of the Convention as a “living instrument”, will be the expansion of the methodology for understanding the rule of law and the formation of new approaches to its normative regulation, including such its aspects as related to ensuring the right to judicial protection and a fair trial. The vector of development of both national procedural legislation and deepening of legal and, first of all, procedural integration will be of no small importance. The approximation of the legislations of different states in order to achieve a certain degree of their consistency will also determine the emergence of new standards in the field of ensuring the right to judicial protection in civil proceedings. The standards in the field of civil proceedings may include the following: an independent and impartial tribunal with appropriate jurisdictional powers; procedural equality of the parties and the adversarial form of the proceedings; the right to legal aid; due notice and the right to be heard; language of legal proceedings; reasonable time frames for judicial procedures; autonomy of the parties; judicial administration of the proceedings; conciliation procedures; institutional and procedural accessibility of justice; public trial; responsibility for non-compliance with procedural obligations; burden of proof and obligations of the court and the parties in determining the elements of fact and law; the judgment and its reasoning; the immediate execution of judgements; appeal; and a number of others. Research conclusions. European standards in the field of civil proceedings should be considered as conceptual ideas reflecting the global context of the development and impact of the doctrine of human rights and recognized by the European community as inherent, determining the methodology for understanding their essence, including from the standpoint of the Convention and its interpretative results, as well as a model of ensuring these rights in terms of the requirements for legal proceedings as judicial procedures.

scholarly journals INTERNATIONAL STANDARDS FOR ENSURING THE RIGHT OF ACCESS TO COURT FOR PARTICIPANTS OF ECONOMIC RELATIONS

2020 ◽  
pp. 34-42
Author(s):  
V.O. Koverznev ◽  
◽  
◽  
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Fundamental Rights ◽  
International Standards ◽  
Access To Justice ◽  
Court Decisions ◽  
The Rule Of Law ◽  
Economic Relations ◽  
Administration Of Justice ◽  
The Right

Transformation and sustainable development of modern countries is not possible without providing all participants in economic relations with equal access to justice, which should be based on respect for fundamental rights, the Rule of Law, transparent courts and the effective administration of justice, guaranteeing public access to information about activity of commercial courts. The term "access to court" is a complex legal category based on several basic criteria, the simultaneous provision of which guarantees the actual observance of a person's right to access to justice, in particular: 1) financial, which provides for the obligation of the state to establish such an algorithm for determining the amount of court costs, which takes into account the property of the party and does not create obstacles to the exercise of the right to go to court, while acting as a safeguard against abuse of the right to go to; 2) territorial, which provides that the system of courts of general jurisdiction should be built taking into account the territorial structure of the state, with local courts, which consider all cases as courts of first instance, should be territorially as close as possible to the person; 3) organizational — provides for the optimal organization of the judicial system, which should be simple and, at the same time, clear and effective, in the context of access to court and the procedure for protection of individual rights. In addition, both the system of general courts as a whole and each individual court of general jurisdiction must be established and carry out their procedural activities in strict accordance with national law; 4) informational, according to which each state must legislate to inform its citizens and business entities about the procedure for going to court, about the conditions of providing certain categories of socially vulnerable citizens engaged in business activities, professional legal assistance provided by lawyers at the expense of the state, as well as the cur rent procedural rules; 5) procedural, which guarantees the administration of justice on the basis of the Rule of Law, as well as impartiality and impartiality of the court and judges, reasonable timeliness of court proceedings, publicity of proceedings and promulgation of court decisions, proper motivation and justification of court decisions, ensuring effective execution of court decisions and respect for final court decision; 6) quality of legislation, which imposes on the state the obligation to adopt legislation that meets the requirements of accessibility and predictability, so that each person has the opportunity to obtain adequate information about the circumstances of the application of legal norms in a particular case.

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