Court Of Ukraine Research Articles

Typical and exemplary cases in administrative proceedings: features and special aspects of consideration

Currently, the institute of typical and exemplary cases is represented by the norms of only one of the national procedural laws, namely, the norms of the Code of Administrative Proceedings of Ukraine. This is completely justified because the probability of similar legal disputes between individuals and subjects of authoritative powers is extremely high. Subjects of authoritative powers apply the same rules of law to a wide range of persons. Such application may be based on misunderstanding of general mandatory rules resulting in violation of the rights of individuals or restriction of these rights implementation. Besides, in most cases, the legal disputes to be considered under the rules of administrative proceedings need to be decided as soon as possible. Referring to the institute of typical and exemplary cases makes it possible to ensure the necessary rapid decision-making: the decision at exemplary case gives reference points in considering typical cases. In other words, the judge in fact receives a "competent recommendation" according to which he is obliged to decide a case characterized by typical features. Taking this into account the authors consider that according to the national legislator, the institute of typical and exemplary cases is aimed, inter alia, at ensuring the unity of judicial practice. The paper presents the analysis of the provisions of procedural law, the study of corresponding court decisions. Taking this into consideration an attempt is made to identify to what extent the implementation of the institute of typical and exemplary cases has influenced the unification of Ukrainian courts judging the public-legal disputes that can be considered the most common.

Court building or palace of justice? (View from the standpoint of judicial symbolism)

Analysis of symbolic dimension of a court building in the general sense of its social vocation is carried out in the article. From the standpoint of judicial symbolism, the authors describe some well-known court buildings in various European countries, in particular, in Ukraine. The authors point out that since its inception, the court as one of the most important social institutions has been marked by a special attitude to the place or building where its sessions took place. In ancient Rome, in accordance with the notion of the need to sanctify space, where important actions and processes took place, the trial was held at a forum or in sacred premises, which often coincided with temples. In medieval Europe, trials were also held in the most privileged premises – palaces of rulers, temples, in the main squares. In the city magistrates, the courtrooms were one of the most solemn, and their interiors were decorated with works of art relating to justice. To this day, where possible, court buildings are erected with the intention of emphasizing the high social significance of justice. This is expressed in architectural forms (in particular, the imitation of classical examples of architecture, which were often common to public, temple and palace buildings as the most important in the local community or country). It is also expressed in modern conceptual solutions of architects, which successfully emphasize the dominant principles of justice – transparency, equality. The court buildings expressed in their appearance and interior design that the justice exercised here is one of the constituent foundations of society. The buildings of the courts, in addition to a purely utilitarian purpose and practicality, had a clear symbolic dimension, conveying the value of the category of justice. Some modern Ukrainian courts also fit into the general European tradition of emphasizing the importance of this institution with majestic buildings. At the same time, these buildings appear as architectural pearls of cities. A special role in the symbolism of the court building as a judicial symbol is played by stairs, which symbolically express the elevation of a person to the halls where justice is realized and the most important legal decisions are made.

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Today, the concept of law and order is reproduced through close attention in the scientific literature. This integrated interest, first of all, requires a precise definition of this category in the theory of law, its detailed and comprehensive review and determination according to practical necessity. Law and order is a necessary condition for the functioning of all social services, the stabilization of sociopolitical processes and the formation of true democracy. Legal order is a complex formation, its research should be carried out using a system of methods. In this case, the analysis of law cannot be limited to the �legal method� developed by analytical jurisprudence, which consists of a dogmatic in nature qualification of legally significant situations. The study of the problem of law and order, their unambiguous interpretation is extremely important due to the fact that all without exception, the branch of legal sciences, within which various aspects of law and law enforcement process are studied with its provision. The legal culture of the population is manifested in respect laws, their knowledge, observance and implementation. It provides citizens with the ability to defend their rights and be accountable for their responsibilities. The relevance of the study is due to the fact that today there are virtually no scientifically sound mechanisms for automatic extrapolation of constitutional and legal knowledge into the content of legal norms. In view of this, it is necessary to scientifically comprehend and generalize the practice of the Constitutional Court of Ukraine, which is the legal basis for developing mechanisms of constitutionalization. The modern interpretation of the rule of law is a combination of the provisions of the theory of legal positivism and the ideology of natural law. The legal order in the general context is considered, first of all, as a reflection of legal existence, one of the means of functioning and reproduction of the existing law. The phenomenon of constitutionalization is the most important means of ensuring the rule of law and is a characteristic (condition, requirement) of activities related to lawmaking, due to the formation of the domestic socio-normative system. It is expedient to consider the rule of law as a supra-sectoral (inter-sectoral) phenomenon that cements the leading branches of national law. The problems raised are quite complex, multifaceted and cannot be studied within a single scientific investigation and require further scientific research, which will result in new scientific knowledge about the rule of law and the process of its constitutionalization. The vast majority of these problems were outlined by the author of the article in a single monograph. However, the declared provisions may be the subject of new scientific discussions, contribute to qualitative changes in general theoretical jurisprudence and constitutional law, and thus be a guide in the constitutional, judicial and other reforms currently underway in Ukraine.

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This work is a continuation of the article in the previous issue of the journal. Referendums held in foreign countries over the past six months are considered. On the agenda of the referendum in Switzerland on September 27, 2020, five bills were put: on relations with the EU, on amendments to the law �On Hunting�, on the introduction of paid parental leave for parents, on reducing the tax burden on families, with children, on the allocation of credit for the purchase of a new generation of fighters for the needs of the national air force. On October 4, 2020, the people of New Caledonia again voted to remain part of France. More than half of New Zealanders supported the law, which stipulates that terminally ill people will have a chance to euthanize with the consent of two doctors. Regarding the topical issue of the referendum in Ukraine, the President of Ukraine in his video address confirmed his desire to know the views of citizens on various issues. On June 9, 2020, the draft Law of Ukraine �On Democracy through an All-Ukrainian Referendum� was registered under �3612. One of the initiators of the bill is the President of Ukraine. The explanatory note to the bill states that it is designed to regulate legal relations related to the initiation, appointment (proclamation), preparation, conduct, establishment of results and legal consequences of the all-Ukrainian referendum. The draft law provides for the following types of all-Ukrainian referendum: approval of the law on amendments to sections I, III, XIII of the Constitution of Ukraine; solving issues of national importance; change of the territory of Ukraine; repeal of the law of Ukraine or its separate provisions. A key innovation of the bill, which distinguishes it from other bills, is to determine the possibility of introducing electronic procedures during the organization and conduct of an all-Ukrainian referendum, including electronic voting. On October 9, 2020, the European Commission published the conclusions of the Ukrainian bill �3612. She recommended clarifying the connection between the referendum of national initiatives to repeal laws and the referendum on issues of national importance, to extend the period of collecting signatures for referendums. In June, the Verkhovna Rada supported in the first reading the presidential bill on the all-Ukrainian referendum, provided that it needs to be finalized before the second reading for consideration this fall. In the process of working on the bill, the draft laws on the all-Ukrainian referendum registered in the Verkhovna Rada of Ukraine of the eighth and ninth convocations, the relevant legal positions of the Constitutional Court of Ukraine, as well as international standards and recommendations of international institutions were taken into account national level (2001), Referendums: Towards Good Practice in Europe (2005), On the Code of Good Practice on Referendums (2007) and others.

«SUCCESS FEE» AS AN IMPORTANT COMPONENT OF ENSURING THE CONSTITUTIONAL RIGHT OF A PERSON TO PROFESSIONAL LEGAL ASSISTANCE

The purpose of this article is to study the legal essence of such a method of calculating the lawyer's fee as «success fee», disclosing its positive and negative features, as well as the experience of the European Court of Human Rights and the experience of foreign countries in its application.
 In the context of disclosing the subject of research, both to achieve the goal of scientific work and to ensure the completeness, objectivity, reliability and persuasiveness of the results, the author used a set of general and special methods that are characteristic of legal science. In particular, the origin and long historical path of development of this legal institution were studied with the help of the historical method. The system-structural method made it possible to formulate the general structure of the study, and the dialectical one – to analyze first of all legislative provisions and jurisprudence on the possibility of using the «success fee» as a way to calculate the lawyer's fee. Using a comparative legal method, the legislation of foreign countries was analyzed, which provided an opportunity to use their positive experience in terms of calculating the amount of attorney's fees.
 This article discloses the scientific approaches of researchers to determine the nature of the expenses on legal assistance primarily concerning the nature of the «success fee», its positive and negative features, as well as analyzes the provisions of domestic and foreign legislators on the possibility of consolidating in the contract for legal assistance a condition that indicates such a way of calculating the amount of wages of a lawyer as a «fee for success». Significant part of the work is devoted to the analysis of the law enforcement practice of Ukrainian courts and the European Court of Human Rights, both in general as to the possibility and expediency of the existence of certain criteria for limiting its size.
 It is noted that a significant number of foreign countries do not prohibit the possibility of using the «success fee», taking into account the existence of certain restrictions concerning the categories of cases, or the perception of it as an additional reward.
 This article discloses the scientific approaches of researchers to determine the nature of the expenses on legal assistance primarily concerning the nature of the «success fee», its positive and negative features, as well as analyzes the provisions of domestic and foreign legislators on the possibility of consolidating in the contract for legal assistance a condition that indicates such a way of calculating the amount of wages of a lawyer as a «fee for success». Significant part of the work is devoted to the analysis of the law enforcement practice of Ukrainian courts and the European Court of Human Rights, both in general as to the possibility and expediency of the existence of certain criteria for limiting its size. It is noted that a significant number of foreign countries do not prohibit the possibility of using the «success fee», taking into account the existence of certain restrictions concerning the categories of cases, or the perception of it as an additional reward.

Problematic aspects of the application of ECHR practice by the courts of Ukraine

Introduction. Ukraine signed Convention for the Protection of Human Rights and Fundamental Freedoms many years ago to provide effective protection of fundamental rights for every human that stands out on its' territory. This document is interpreted by the European Court of Human Rights. Practice of this Court must be used by national courts of Ukraine to match international human rights' standards. However, according to results of statistical research, application of that legal positions by national judges aren’t correct enough. The purpose of the paper is to identify and analyze problematic issues of application of the case law of the European Court of Human Rights by national courts of Ukraine. The authors also wanted to investigate the national practice of using the ECHR' legal positions and to provide recommendations to address shortcomings in such application. Results. The paper considers the issue of application of the case law of the European Court of Human Rights by the national courts of Ukraine. The legal nature of ECHR decisions' is studied. Authors are stick to the idea that judgments of ECHR aren’t classic precedent. There are authors' opinions about the problem of applying the practice of the European Court of Human Rights, which has no official translation. They think that judges need to be taught professional English and French. So that they will be able to understand original text of judgments correct. There is also a thought about necessity of creating special database with Ukrainian translation of some judgments. Authors have also revealed problematic aspects of the application such as: erroneous, manipulative, formal references. There are some decisions of Ukrainian courts that have been analyzed by the authors. Erroneous references to decisions of the European Court of Human Rights in such cases have been determined. Authors stated that the reason of those defects is insufficient awareness of judges about the specifics of application legal positions of ECHR. Conclusion. According to the results of the work, the importance of education and training of future judges is stated. In addition, authors emphasized on necessity of further observations of this question.

Reforms in the field of law, judicial proceedings and justice as a factor in the formation of a political association between Ukraine and the EU

Reforms in the field of law, judicial proceedings and justice as a factor in the formation of a political association between Ukraine and the EU

Unconstitutionality of articles 366-1, 368-2 of the criminal code of Ukraine: irony of fate or defects of the legislative process

The fight against corruption in Ukraine is giving rise to new ways of combating this phenomenon, new anti-corruption legislation is often being adopted and improved. Thus, among other things, in 2011 the Ukrainian parliament introduced criminal liability for illegal enrichment, and in 2014 – for declaring questionable information, supplementing the Criminal Code in accordance with Art. 368-2 and Art.366-1. However, despite their long-term duration in the structure of the criminal law mechanism for combating corruption, they have not become effective tools of anti-corruption struggle. Problems of application of Articles 366-1, 368-2 have been admitted from the very moment of their introduction in action as some serious defects in the construction of these norms were placed in the course of legislative process. In the end, based on the decision of the Constitutional Court of Ukraine, these articles expired. Given that the purpose of the article is to investigate the process of legislation and to establish the reasons for the adoption of deliberately ineffective rules on the declaration of inaccurate information and illicit enrichment. 
 The scientific novelty is that the study indicates the inability of the Verkhovna Rada of Ukraine, which includes the Institute of legislation, scientific and expert management, legal management, the department of relations with the judiciary, the control department and other units, to ensure quality at the appropriate level of results of legislative work. These "precautionary institutions" were unable to prevent the development, adoption of imperfect and knowingly unconstitutional laws, as evidenced by examples of the introduction of liability under Articles 366-1, 368-2 of the Criminal Code and the introduction of repeated manipulative changes, after the entry into force.

Proving Corruption in the Investigative and Judicial Practice of Ukraine: Problems and Solutions

The work is based on the analysis of the scientific literature, criminal and criminal procedural legislation of Ukraine, which regulates public relations associated with the identification, detection, investigation and judicial review of cases of illegal benefit by officials, on the precedents of the European Court of Human Rights on this issue, as well as the study and summarizing the materials of 200 criminal cases on illegal benefits considered by the courts of Ukraine in 2015-2019. It has been established that proof of corruption offences in criminal proceedings is the activity of the subjects of criminal proceedings, which consists of collecting, assessing and verifying factual data in order to establish circumstances relevant to the investigation. At the same time, procedural and tactical mistakes, as well as abuses on the part of prosecution agents, which lead to deficiencies in the process of proving the guilt of officials who commit corruption offences, are very common in the practice of the Ukrainian law enforcement agencies in this area.

Problematic issues of application of terms of appeal to court in the consideration of labor disputes on remuneration

The articles explore the practical problems of the application of procedural deadlines in the consideration of labor disputes relating to remuneration, their application. The article proclaims the practical problem of choosing the terms proposed in Article 233 of the Labor Code of Ukraine. Thus, it is determined that when applying the terms proposed in Part 2 of Article 233 of the Labor Code of Ukraine, does not necessarily expand the understanding of the category of “wages” and “wages”. Pay attention to the solution of this issue in the articles on all developed cooperation, the concept of “wages” and “wages”, which is used in Part 2 of Article 233 of the Labor Code of Ukraine, the relevant decision of the Constitutional Court of Ukraine is analyzed. By solving the problems of the legal nature of the payments involved to employees for recovery, which can be applied to Part 2 of Article 233 of the Labor Code of Ukraine, the author conducted a study and analysis of recent case law and examples of court decisions, namely the rulings of the Supreme Court and decisions of the Constitutional Court of Ukraine, in this court with the formation of clear legal provisions governing the legal nature of payments. this can be used Part 2 of Article 233 of the Labor Code of Ukraine. Also the question of structure of a salary, its basic elements, the analysis of provisions of the basic regulatory legal acts, both laws, and by-laws regulating the certain questions is investigated. The article concludes that the concepts of “wages” and “wages”, which are used in Part 2 of Article 233 of the Labor Code of Ukraine are identified. To this notion of “wages” it is proposed to create an extensive structure of payments. The criterion for canceling the payment to the structure of wages is the founder of the connection of such payment with the performance of duties of employees and its functional orientation (from the creation and incentives). In view of this, the author supports the view that Part 2 of Article 233 of the Labor Code of Ukraine can not join the dispute over the recovery of these amounts, the right to quality applies to employees as a result of breach of their obligations by employers (Articles 117, 235, 236, 237-1 of the Labor Code of Ukraine)

Jehovah's Witnesses in the Modern World and Ukraine

This article highlights the history of Jehovah's Witnesses as a Christian religion in Ukraine from its occurrence on the territory of Ukraine in the early 20th century to the present day. The response of the Witnesses to the massive attempts of the Nazi and Soviet regimes to marginalize and suppress their religious manifestations is described separately. In particular, the biblical nature and confessional content of one of the fundamental teachings of the Witnesses – neutrality – is analyzed and explained. It includes the information about what it means and what it does not mean for believers. This makes it possible to better understand the current display of the neutrality of the denomination members when it comes to compliance with certain requirements of the local government. 
 The growth statistics of the denomination members throughout history are given, which indicate the failed attempts of the totalitarian governments repressive system to eradicate the faith in the controlled territories. 
 For the first time, information is published from the memoirs of Witnesses who tried to obtain state registration in 1949 when under the communist regime and the reaction of the government officials to believers’ attempts to be recognized by the state and society. 
 There is a link between the recognition of the state through state registration and the increase of confessional activity, by which the Witnesses actually disprove the myths and labels produced and imposed on society by totalitarian regimes for decades. Emphasis is placed on the Witnesses’ current activities, which gives an idea of their attitude towards Ukrainian society and their role in strengthening and affirming Christian values among fellow citizens. Their publishing activity, evangelization work, religious and family values, public worship, educational programs, charitable and social work, attitude to representatives of other religions are analyzed. 
 The view of health care is particularly examined. It describes the principles of a reasonable balance that Witnesses follow between the right to make informed treatment choices (including the refusal to use blood) and the attitude toward life and health as one of the highest human values. The significant contribution of Jehovah's Witnesses to the development of alternative nonblood treatments in world medicine is acknowledged. 
 Therein are recorded the conclusions from numerous religious studies of Ukrainian and European institutions regarding the social and pedagogical value of materials published and distributed by Jehovah's Witnesses through their periodicals and official online resources.
 The involvement of Jehovah's Witnesses in providing charitable assistance to civilians during the conflict in Donbas is highlighted. The activities of Jehovah's Witnesses in the context of their attitude to the culture, history, and traditions of the local people are considered. In particular, the part of the tourist program for fellow believers, who come from abroad to join in the ministry or assemblies, is to get familiar with Ukrainian monuments and the historical heritage. Witnesses publish and distribute Bible publications in 14 languages spoken by small indigenous communities in Ukraine.
 The social significance of biblical teaching, which is meant to meet the spiritual needs of Ukrainians with hearing and visual impairments as well as those who currently remain in places of correctional centers is outlined. 
 For the first time, significant decisions of higher courts in Ukraine and other countries regarding Jehovah's Witnesses are considered. In recent years, the issues of military service and the right for alternative (non-military) service have been considered in higher domestic and foreign courts; denomination’s compliance with the requirements for the provision of state subsidies guaranteed to recognized religions; the right to build and use their places of worship, and proper assessment of religious hate crimes against Jehovah's Witnesses by law enforcement agencies. The decisions of the courts in the above-mentioned cases show that states consider Jehovah's Witnesses to be a recognized religion with the right to exercise freedom of conscience and religion.

General principles of organization and activityof judges in Ukraine

In the conditions of active development and improvement of the system of public administration in the world, the role of public service as a defining feature of a democratic and legal state is strengthening. Since the signing of the Association Agreement with the European Union by Ukraine, it has become necessary to introduce and enshrine in national legislation such an institution as a public service. This became a lever that launched the process of reforming the government system in the country and determined the right vector for the development of public service in Ukraine. Given the current indicators of public confidence in the judiciary, it can be argued that the institution of public service in the judiciary is purely formal, and therefore this issue is relevant and needs to be addressed as soon as possible. In view of this, we believe that the introduction of the new Concept, which will consolidate the legal status of a judge as a public servant of a court of general jurisdiction, will be the beginning of the real functioning of a judge of a court of general jurisdiction on the basis of public administration. The study revealed the general principles of organization and activity of judges of general jurisdiction courts in Ukraine. The legal status of judges is outlined and the key features of such status are identified. The existence of the “judge-public servant” model is substantiated. The study emphasizes that judges of courts of general jurisdiction directly implement the basic functions of justice, and the level of their legal status depends on the authority of the judiciary and the efficiency of justice in Ukraine. Courts of general jurisdiction are the main link of specialized courts for civil, administrative and criminal cases and are the closest to the population, and therefore, a clear definition of their legal status is now essential. It is suggested that under the public service in the judiciary of Ukraine, first of all, one should see politically neutral, professional activity of a judge in courts, judicial authorities and other state bodies of the justice system and institutions for organizing and ensuring the activities of courts and judges.

PROBLEMS OF COURT CONSIDERATION OF CASES OF DEPRIVATION OF PARENTAL RIGHTS

The articles define and analyze the international and national legal regulations that should be applied by the courts of Ukraine in resolving disputes involving the involvement of family legal relations on the invitation of parental rights. It is proposed to define the deprivation of parental rights as an institution of family law, which provides for judicial protection of the rights and interests of the child and the degree of family liability of parents (amplifiers) who do not participate in all individual parental communities imposed by the Family Code and other legislation in the form of exceptional comprehensive measures to influence the perpetrators. The grounds for deprivation of parental rights, which are presented in Part 1 of Art. 164 of the Criminal Code of Ukraine, and it is stated that this list is exhaustive, he wants to use evaluative concepts – “important reasons”, “evade”, “cruel”, which must be assessed by the court. However, no other circumstances, such as immoral behavior of the mother or father, or abuse of rights, or others, can lead to deprivation of parental rights. One of the proposed grounds is enough to welcome parental rights, wanting the practical possibilities of combining several grounds. If prior notification of parental rights is proposed on several grounds, they should be reviewed and substantiated in the decision of each of them. Assessment that currently there are no available textbooks for the allocation of family liability as an independent type of legal liability, in fact, there are no legal sanctions that are not protected from administrative, criminal, civil liability. Therefore, parents in the release of their parental rights are administrative, criminal, civil liability. It is proposed to supplement the Central Committee of Ukraine with Article 1183-1 in the wording that provides for the cooperation of parents to reimburse the school, to provide for the child, because they were invited by parental law, when their actions were expressed in use of their child-rearing needs, a child, in work with children, forced to beg and wander, when convicted of a general criminal offense against a child, as well as in other cases where schools have been established.

ПРОБЛЕМИ ЦИВІЛЬНО-ПРАВОВОЇ ОХОРОНИ ТА ЗАХИСТУ ДІЛОВОЇ РЕПУТАЦІЇ ЮРИДИЧНОЇ ОСОБИ В УКРАЇНІ

The article considers topical issues related to civil law protection and protection of the business reputation of a legal entity in Ukraine. The right to business reputation belongs to a special group of civil relations, which requires scientific study and analysis, given that there is still no legislative enshrinement of the concept of business reputation of a legal entity in the Civil Code of Ukraine. And in the time of constant socio-economic development, the relevance of the definition and legal regulation of civil relations in the field of business reputation of legal entities is significant and important because business reputation is a certain assessment of the legal entity, based on conclusions about business qualities and moral personality, which are closely related to the activities of the business entity and their compliance with the requirements of the law and the proper performance of contractual obligations to partners. The purpose of the article is to analyze, compare and study the foreign experience of the European Union to determine the optimal concept of business reputation, and provide suggestions on how to solve existing problems of protection of business reputation in violation of the Internet in our country. During the study of the issue, the basic concepts of business reputation contained in the regulations of Ukraine were analyzed. It is established that the civil legislation does not contain a definition of the term «business reputation of a legal entity», which in turn complicates the process of legal protection and protection of the business reputation of business entities. Equally important is the issue of protection against damage to business reputation on the Internet, which now affects almost every aspect of modern society. Protecting business reputation on the Internet is significantly complicated by the lag in the development of Ukrainian legislation from the realities of information technology development. If there are more or less clear ways to protect the infringed personal non-property right in traditional print media, television, then there is virtually no special regulation of relations and protection of the law on the Internet. In conclusion, we note that at the legislative level, namely in the Civil Code of Ukraine there is no legal regulation of protection and protection against violations of the business reputation of legal entities on the Internet. The problem of implementing the mechanism of protection of business reputation of a legal entity in the courts of Ukraine is relevant and unresolved and as a result requires further scientific study.

THE USE OF POSSIBILITIES OF LINGUISTIC EXPERTISE TO ESTABLISH SIGNS OF PROVOCATION

The article discusses topical issues of the use of evidence obtained as a result of covert (investigative) search actions (hereinafter - CISA), in particular, control over the commission of a crime. An analysis of the investigative and judicial practice testifies to the ambiguous interpretation of the tactics of the CISA, which leads to the ruling of acquittals by the courts, since signs of provocation are established in the actions of law enforcement officials. The judicial practice has not developed a unified approach to assessing the actual circumstances of control over the commission of a crime. Different interpretations are allowed by the courts of first instance and appeal. International convention standards provide for the possibility of such measures that are effective in the fight against corruption. The European Court of Human Rights (hereinafter - the ECHR) also recognizes the legality of covert operations in the fight against organized crime and corruption. At the same time, the ECHR points to a number of signs that allow determining the legality of such actions. In particular, the ECHR identifies two groups of criteria: substantive and procedural. Some relate to the nature of the actions of both parties themselves, while others allow the court to assess and verify the procedural grounds and the procedure for conducting the operation. Despite the fact that the Decisions of the European Court of Human Rights are considered a source of law and the courts of Ukraine are obliged to use them in legal proceedings, in practice a number of unresolved questions arise when assessing evidence. That is, whether they are reliable and proper. Alternatively, is there a provocation, that is, a criminal offense, excluding person’s accusation? The general criteria for provocation is the repeated offer by the agent to commit any illegal actions; verbal, organizational, psychological acts aimed at provoking, an attempt to evoke compassion, pity; use of friendly ties. The very fact of expressing “abstract readiness” (to hand over an unlawful benefit) on the part of law enforcement agencies is not a provocation. A new direction in expert practice, linguistic expertise, which solves questions of speech and law, is used in Ukraine in this category of criminal proceedings extremely rarely. Since the operational purchase, test purchase, special investigative experiment are carried out in conditions of direct establishment of interpersonal communication, the content of communication should be considered from the point of view of tactical characteristics (psychological, organizational, speech), for the presence of a call to commit illegal actions by insisting, persuasion: – the use of nihilistic culture, the prevailing illegal practice (“Everybody does it”, “You have to live”), – willingness to pay (“I collected money”), – involvement in the subject’s problems, which he/she can solve with the help of illegal benefits. Using the example of a specific criminal proceeding, the author reveals the mistakes of the investigating authorities and justifies the advisability of raising the level of awareness regarding the use of the possibilities of linguistic expertise to establish signs of provocation, indicating passive corruption or the exclusion of charges.

СУДОВА ОХОРОНА ЯК ОДНА ІЗ ГАРАНТІЙ ДІЯЛЬНОСТІ СУДІВ В УКРАЇНІ

The article reveals the features of judicial protection as one of the key guarantees of the activities of courts in Ukraine. It has been established that the peculiarities of judicial protection as one of the key guarantees of the activities of courts in Ukraine are regulated by the Constitution of Ukraine, the Law of Ukraine «On state protection of employees of the court and law enforcement agencies», the Law of Ukraine «On the National Police», the Law of Ukraine «On the judicial system and the status of judges», by the decision of the High Council of Justice «On approval of the Regulations on the Judicial Protection Service», by the Decision of the Council of Judges of Ukraine «On measures to ensure the safety of courts and judges, the protection of courts and persons involved in the implementation of legal proceedings». It was determined that, in addition to the Judicial Protection Service, security functions are performed by units of the National Police of Ukraine and units of the National Guard of Ukraine. It was found that the Judicial Protection Service is a state body that functions in the justice system and whose main task is to ensure the protection and maintenance of proper order in the courts. It has been established that the Judicial Protection Service is subordinate to the High Council of Justice, and the State Judicial Administration of Ukraine controls the activities of the Judicial Protection Service. It was determined that the procedure for the passage of service by employees of the Judicial Protection Service is established in accordance with the procedure approved by the High Council of Justice, moreover, on the proposal of the Head of the Judicial Protection Service and in agreement with the State Judicial Administration of Ukraine. It was found that the safety of judges, as well as the protection of court buildings, is one of the main guarantees of the independence of judges and the justice system as a whole. It has been established that in order to increase the effectiveness of judicial protection, initiated cooperation has been established with the Ukrainian-Canadian Judicial Reform Support Project, as well as have been developed and implemented the Ukrainian-Canadian Judicial Reform Support Project and the European Union «Law-Justice» Project . It is noted that the structure of the Judicial Protection Service consists of the central governing body and territorial offices of the Service. It is proposed in the perspective of further research to reveal the legal features of the procedure for admission to the position of candidates for service in the Judicial Protection Service.

ПРИНЦИП ПРИРОДНОГО СУДУ: АКТУАЛЬНІ ПРОБЛЕМИ ПРАВОРОЗУМІННЯ ТА ПРАВОЗАСТОСУВАННЯ В УКРАЇНІ

In 2016, a provision appeared in Article 125 of the Basic Law, which stipulated that higher specialized courts may operate in accordance with the law. Filling the content of this wording in, Article 31 of the Law "On the Judiciary and the Status of Judges" (2016) establishes that in the judicial system there are higher specialized courts as courts of first instance to consider certain categories of cases. This category of courts today includes the High Court of Intellectual Property and the High Anti-Corruption Court, activities of which are initiated by the relevant legislation. However, in political circles there was a discussion about the constitutionality of this court and, accordingly, the subject of the right to a constitutional petition questioned a number of provisions of the Law "On the Supreme Anti-Corruption Court" and appealed to the Constitutional Court of Ukraine to declare this law unconstitutional. In turn, the Constitutional Court of Ukraine initiated constitutional proceedings on this issue. Familiarization with the legal position of the subject of the constitutional petition indicates that the key issue of this constitutional proceeding concerns the presence of signs of a "special court" (within the meaning of Part 6 of Article 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the Supreme Anti-Corruption Court. In order to find an objective answer to the existing conflict, it is necessary to abstractly identify the main features of a "special" court. To solve such an applied problem, the author of the article turned to the theory and applied provisions of the principle of natural judgment, which was the subject of this study. As a result of the study, the author argues that by giving the Supreme Anti-Corruption Court exclusive jurisdiction over the system of general courts, the legislator has significantly deviated from the permissible limits of constitutional legality. The author singled out and grouped the key features of a special court, which included: 1) Separation of a judicial institution with a separate system of instances for consideration of certain categories of cases selected from the general array (special jurisdiction) or in respect to a separate category of persons. 2) The court, which is entrusted with special, different from other general courts, the purpose and objectives of the activity. 3) A court formed to expedite the resolution of certain categories of cases specific to a certain period; 4) A court in which judges have a special legal status (special tasks in the administration of justice; special professional qualifications (requirements, selection criteria); a special (extraordinary) procedure for the formation of the judiciary, etc. It is seen that the principle of natural judgment – is a fundamental constitutional and legal heritage of civilized humanity, which is designed to protect people, their rights and freedoms from the arbitrariness of the state, and from the use of courts as an instrument of terror and wrongful persecution.

КОНСТИТУЦІЙНО-ПРАВОВИЙ СТАТУС ВЕРХОВНОГО СУДУ ЯК СУДУ ПРАВА В УКРАЇНІ

The article reveals the features of the constitutional and legal status of the Supreme Court as a court of law in Ukraine. It has been established that the constitutional and legal status of the Supreme Court is regulated by the provisions of the Constitution of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges» and the Code of Administrative Procedure of Ukraine. Analysis of the legislation allows us to note that the Supreme Court is the highest court in the judicial system in Ukraine. The composition of the Supreme Court is formed by the Grand Chamber of the Supreme Court, the Administrative Cassation Court, the Criminal Cassation Court and the Civil Cassation Court. It has been established that the President of the Supreme Court is elected to office, and also dismissed from office based on the results of a secret ballot held by the Plenum of the Supreme Court. The constitutional and legal status of the Supreme Court makes it possible to single out such basic functions of the Supreme Court as: the function of administering justice, during which the Supreme Court acts as a court of cassation; the function of analyzing judicial statistics, as well as summarizing judicial practice; the function of providing conclusions on draft legislative acts directly related to the judicial system; the function of providing an opinion on the presence or absence of signs of committing high treason or other crime in the acts for which charges are brought against the President of Ukraine, for committing high treason or other crime; the function of providing appellate and local courts with proper methodological information on law enforcement issues, etc. It has been determined that the professional activity of the Supreme Court contributes to ensuring the observance of the principle of equality of all before the law and requires ensuring at the same time the achievement of the unity of judicial practice. It is noted that the prospects for further research in this direction are the study of the legal status of the Constitutional Court of Ukraine as a body of constitutional jurisdiction, the main function of which is to ensure the supremacy of the Constitution of Ukraine.

ЮРИДИЧНА ДОКТРИНА ЯК ДЖЕРЕЛО КРИМІНАЛЬНОГО ПРОЦЕСУАЛЬНОГО ПРАВА УКРАЇНИ: ЗАГАЛЬНЕ ГНОСЕОЛОГІЧНЕ (ЕПІСТЕМІОЛОГІЧНЕ) ДОСЛІДЖЕННЯ (ЧАСТИНА ДРУГА)

In this scientific article, the continuation of the gnoseological (epistemological) research of legal doctrine as a source of criminal proceedings is carried out. In this scientific work, theoretical perception of scientific concepts of Ukrainian and foreign legal scholars in the field of legal doctrine as a source of law (in general), taking into account the legal significance of legal doctrine as a source of criminal procedural law (in particular) is carried out. In this scientific work, the attention is paid to the research of the fundamental and systemic relationship of legal doctrine with other sources of criminal proceedings (in particular, with the Decision of the Constitutional Court of Ukraine on a particular constitutional and judicial case). The text of this scientific article studies, inter alia, the fundamental and systemic relationship of Legal Doctrine with Separate Opinion of the Judge of the Constitutional Court of Ukraine (in a particular constitutional and judicial case), as sources of criminal procedural law of Ukraine. At the same time, the peculiarities of constitutional and judicial legal regulation in the field of criminal proceedings and in combination with the study of theoretical and legal and philosophical and legal bases (foundations) of the abovementioned two sources of criminal process in Ukraine are taken into account. The scientific knowledge of the theoretical and legal and philosophical and legal relationship of the Legal Doctrine with the Separate Opinion of the Judge of the Constitutional Court of Ukraine (as sources of criminal procedural law of Ukraine) is carried out with consideration of the scientific and theoretical features, specified in the text of Separate Opinion of the Judge of the Constitutional Court of Ukraine of legal (in particular, philosophical and legal, doctrinal and legal, general and legal, criminal and procedural) definitions. In the text of this scientific article, the attention is paid to the humanistic legal doctrine on which the acts of international law in the field of human rights (in particular, human rights in the field of criminal procedure) are based. In this scientific article, the attention is paid to legal doctrine as a manifestation of a person's ability to learn (including knowledge of the sphere of criminal process).

ПРИНЦИП ВЕРХОВЕНСТВА ПРАВА В СУДОВІЙ ПРАКТИЦІ УКРАЇНИ

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.