THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY

Abstract

The article is devoted to the definition of the essence of institutional administrative and legal guarantees for a judge immunity, on this basis the definition of promising areas in current administrative and legal legislation development. There is used an approach that administrative and legal guarantees are a specific concept of legal means, methods and conditions which, being applied, allow to ensure a certain state of public relations. Being in their “potential” state also has a protective effect, which can be described as preventive. In the course of the research, institutional administrative and legal guarantees of a judge’s inviolability were identified: impossibility to detain or to be kept in detention or arrest a judge without the consent of the High Council of Justice (paragraph 1, part 1, Article 49 of the Law of Ukraine “On Judiciary and Status of Judges”); impossibility to bring a judge to legal responsibility for the adopted decision (paragraph 2, part 1 of Article 49 of the said Law); the impossibility of using a pretext or forcible delivery to a judge, except for the pretext or bringing it to court (Part 3 of Article 49 of this Law); the presence of a special subject of notification of suspicion of committing a criminal offense – only the Prosecutor General of Ukraine or his deputy (Part 4 of Article 49 of this Law); establishment of exhaustive terms of removal of a judge from the administration of justice in connection with criminal prosecution (Part 5 of Article 49 of the said Law); establishment of a special subject of an application for obtaining a court permit to carry out operativesearch or investigative actions against a judge – the Prosecutor General of Ukraine or his deputy, the head of the regional prosecutor’s office or his deputy (Part 9 of Article 49 of this Law); establishment of special rules of jurisdiction of consideration of cases concerning accusation, application of operative-search or investigative actions, precautionary measures against a judge (part 10 of Article 49 of the said Law); determination of a special subject of liability for damage caused by a court – the state (Part 11 of Article 49 of this Law). It is substantiated that the implementation of institutional guarantees of the immunity of a judge is a necessary condition for the proper implementation of all institutional principles of the judiciary. Regarding some principles, these guarantees are a direct factor in their implementation (including the principles of independence, impartiality, justice, rule of law). It is proved that the institutional administrative and legal guarantees of a judge immunity do not have the features of a legal institution in full sense, and therefore they cannot be characterized as a legal institution. However, they have a certain integrity and specificity, as well as a relationship. The legal relations arising in connection with the implementation of these guarantees are characterized by a certain homogeneity, in particular with regard to their object – ensuring the inviolability of a judge. Therefore, the complex nature of institutional administrative and legal guarantees of judges immunity, of guarantees as a separate legal phenomenon is pointed out.