Functioning principles of the High Council of Justice

Abstract

In the article, on the basis of a systematic analysis of international standards, norms of the current legislation of Ukraine, and modern doctrinal sources, certain principles of the functioning of the High Council of Justice are investigated. It is noted that the absence of a direct and clear norm or indication of one or another principle of functioning of the High Council of Justice in the Constitution of Ukraine and the Law of Ukraine «On the High Council of Justice» does not deny its existence, as it may be indirectly established in the content of other provisions of the law. Thus, in the author’s opinion, in the system of principles of functioning of the High Council of Justice, such universal principles are of primary importance, the influence of which extends both to the organizational component and to all areas of its activity without exception. These include: independence and autonomy, legitimacy, transparency, accountability. Independence and autonomy as a principle follows from the legally defined status and purpose of the High Council of Justice - ensuring the independence of the judiciary. Accordingly, this body itself must be independent and autonomous in the sense of the absence of control, interference, pressure and any influence both from representatives of other segments of state power (executive and legislative), and directly from representatives of the judiciary, as well as civil society. The expediency of using the very phrase «independence and autonomy» is substantiated, the latter demonstrates the subject’s ability to independently regulate its activities, to resolve issues related to it without any agreement with others. Independence is an «outer shell» that characterizes the state of the subject’s external communications, its existence in a certain system of relationships and interaction with other subjects, and the possibility of influence. Legitimacy as a principle of functioning of the High Council of Justice covers two sections: constitutional consolidation of key provisions of its legal status and public trust in its actions and decisions. It is argued that public trust in the court and the system of judicial protection of the rights and freedoms of individuals in the state depends on how well and effectively the High Council of Justice performs its functions, with a special emphasis on personnel and disciplinary functions, and how much society trusts its decisions in these matters. The legitimacy of the High Council of Justice, on the one hand, is a component of the legitimacy of the judiciary, and on the other, it is an additional source. The legitimacy of the High Council of Justice depends on the implementation of other principles - transparency and accountability of the High Council of Justice. Transparency implies openness, transparency, publicity of the High Council of Justice, its decisions, procedures and activities. It requires active communication of the High Council of Justice with various subjects, demonstration of the results of its activities, publication of a wide range of information that is the product of such activities. Accountability of the High Council of Justice is a principle that ensures its systemic interrelationships and serves as a safeguard against arbitrariness and usurpation of power vested in this body, given the concentration of a wide range of powers in it. It is noted that, according to international standards, there are three ways in which the accountability of the High Council of Justice is implemented, which determines the existence of its three types: judicial, punitive and explanatory accountability.