Status Of Judges Research Articles

ІМУНІТЕТ СУДДІВ ТА ЇХ ВІДПОВІДАЛЬНІСТЬ В УКРАЇНІ

The article analyzes the institute of immunity of judges in Ukraine and reveals the features of bringing to legal responsibility. It has been established that the legal foundations of the immunity of a judge are governed by the provisions of the Constitution of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges», the Code of Ukraine on Administrative Offenses, the Civil Code of Ukraine. It has been determined that the immunity of judges is a special component of their legal status, and also serves as a guarantee of ensuring the proper level of performance of their official duties. It was found that the immunity of a judge is aimed at reducing the influence of professional risks in the context of his administration of justice. It has been established that the principle of the independence of a judge is composed of two main components of independence, namely, the functional independence of the judiciary and the institutional independence of the judiciary. It is determined that the immunity of judges is a special type of violation of the principle defined in the Constitution of Ukraine regarding the equality of all without exception before the law and the court. It has been proved that material and legal immunity, indemnity, and procedural immunity are the components of the integral system of judicial immunities. It is proposed that today in Ukraine it is necessary to improve the legislative framework regarding the immunity of judges in the direction of defining the framework for the need to provide protection to judges as officials performing the state functions assigned to them, and to prevent judges from impunity in cases of their committing offenses (misconduct, crimes). It is noted that the prospect of further research in this direction is the study and improvement of the mechanism for bringing judges to legal responsibility in Ukraine.

ПРОФЕСІОНАЛІЗМ СУДДІВ ЯК ПЕРЕДУМОВА ПОБУДОВИ ЕФЕКТИВНОЇ СУДОВОЇ СИСТЕМИ В УКРАЇНІ

The article reveals questions regarding the professionalism of judges as an important prerequisite for efficiency (building an effective) judicial system in Ukraine. It has been established that today the main documents that regulate the legal foundations of professionalism of judges in Ukraine are the Law of Ukraine «On the Judicial System and the Status of Judges», the Concept of National Standards for Judicial Education in Ukraine, the Regulation on the Training and Periodic Study of Judges at the National School of Judges of Ukraine, as well as the Strategy development of judicial education in Ukraine for 2021–2025. It is determined that the professionalism of judges is based on the results of obtaining judicial education, which is aimed at acquiring the ability of judges to understand and behave fairly, authority and communication, the effectiveness of professional activity, personal qualities, and intellectual qualities. It was found that primary judicial education plays an important role in increasing the professionalism of judges, in particular, the training of candidates applying for the position of judges. It has been proven that in order to improve the professionalism of judges, it is also necessary to apply the latest forms and methods of training. It has been established that in order to improve professionalism in the administration of justice, judges must undergo special training to maintain their qualifications at the proper level. It was determined that for the purpose of professional development of judges, the National School of Judges of Ukraine has developed and operates various standardized training programs. It has been established that the main principles of training judges at the National School of Judges of Ukraine are the principle of versatility, comprehensiveness and focus on obtaining all the necessary skills and abilities, the principle of frequency, the principle of obtaining a more subjective vision of international practices in the administration of justice, the principle of uniformity, the principle of practical focus, the principle of high quality and scientific substantiation, the principle of modernity of training, the principle of initiative and interest of judges in improving their professional level, the principle of coordinating the activities of the elements of the training program, the principle of using modern innovative technologies in the training process, the principle of continuous education, that is, lifelong learning. It is noted that the prospects for further research in this direction are the study of the peculiarities of the formation of the corps of professional judges in Ukraine.

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.

ГАРАНТІЇ ЯК ЕЛЕМЕНТ ПРАВОВОГО СТАТУСУ СУДДІ

The article is devoted to the study of guarantees as an element of the legal status of a judge. The article considers the effectiveness of justice by the judiciary as an independent branch of state power, which is entrusted with the function of protecting the rights and legitimate interests of persons in the state. It is argued that the right to judicial protection can be properly realized only if there is an effective mechanism of judicial protection, which becomes real if there are guarantees for the activity of a judge. The independence and independence of the judiciary is due to the constitutional principle of separation of powers, proclaimed in the Constitution of Ukraine. However, it is in democracies that this principle acquires special significance, because we are talking about legally enshrined guarantees and effective mechanisms of «containment and balances» in the organization and activities of various branches of government. Each of the branches of government – legislative, executive and judicial, independently performs only its inherent functions, not obeying each other. Decisions are made by the judiciary due to their independence, because no additional approval by the bodies of other branches of government is required. The most important prerequisite for this is the protection of the judiciary from unlawful influence or interference from other actors. Only an independent judiciary can become the guarantor of the rule of law, the implementation of effective and accessible justice and a fair judicial decision of cases in the state. The guarantees of the judge's activity in the administration of justice are divided into three groups: guarantees of the procedural activity of the judge as the bearer of judicial power, the subject of the process; organizational and legal guarantees for the activity of a judge as a person holding a public office and is a member of the judicial community; social and legal guarantees of a judge as a citizen with a special legal status, limited in civil rights by legislation on the status of judges and occupying a separate position in society.

ПОРЯДОК ЗДІЙСНЕННЯ ДОБОРУ ТА ПРИЗНАЧЕННЯ ПРОФЕСІЙНИХ СУДДІВ УКРАЇНИ У КОНТЕКСТІ КОНСТИТУЦІЙНО-ПРАВОВИХ ВИМОГ ДО КАНДИДАТІВ

The article reveals the peculiarities of the selection and appointment of professional judges of Ukraine in the context of constitutional and legal requirements for candidates. It has been established that the specifics of the selection and appointment of professional judges in the context of constitutional and legal requirements for candidates are regulated by: the provisions and norms of the Constitution of Ukraine, the Law of Ukraine «On the Judicial System and the Status of Judges»; the Regulations on the procedure for considering issues and preparing materials for the selection of candidates for the position of a judge for the first time, the Regulations on holding a competition for the vacant position of a judge, approved by the Decisions of the High Qualification Commission of Judges of Ukraine; the Kiev recommendations on the independence of the judiciary in Eastern Europe, the South Caucasus and Central Asia. It is determined that the main stages of the procedure of selection and appointment of professional judges are 14 stages, which can be systematized and recommended in such as: announcement of a competition for the selection of candidates for relevant positions; submission of documents by persons who intend to become professional judges, and their admission to the procedure for selecting candidates applying for the position of judges; the process of organizing the procedure for conducting inspections, as well as collecting information about candidates applying for the position of judges; passing anonymous testing (exam) by candidates applying for the position of judges and sending them to undergo special training; drawing up a qualification exam by candidates applying for the position of judges; drawing up by candidates applying for the position of judges of a re-qualification exam (if the qualification exam was not drawn up successfully the first time, then the candidate applying for the position of a judge can draw it up again, but not earlier than one year later); determination of the rating of candidates applying for positions of judges; the formation and assignment of candidates applying for the positions of judges to the reserve for their replacement of vacant positions of the judge in the future; passing a competition to fill a vacant position of a judge. It is noted that the prospects for further research in this direction are the study of the peculiarities of the procedure for the selection and appointment of candidates for the posts of judges of the Supreme Court.

The importance of law practice in achieving legal certainty regarding the grounds for disciplinary liability of a judge

In order to overcome the relevant problem, the Law of Ukraine «On the Judiciary and the Status of Judges» significantly changed both the grounds for bringing a judge to disciplinary responsibility and the grounds for applying the most severe measure of such responsibility – dismissal of a judge. The level of detailing of such grounds is quite high, both in terms of the certainty of such grounds, and in terms of proportionality between the type of disciplinary misconduct and the type of penalty to be applied for it. At the same time, the results of the analysis of the relevant legal provisions shows that they are not devoid of evaluative, vague concepts, such as «gross disregard for the duties of a judge», «gross violation of the law», «gross negligence», «significant negative consequences». Thus, the question arises whether the problem of uncertainty of the grounds for disciplinary liability of a judge has been conceptually resolved, or whether the relevant problem continues to exist despite significant legislative detail of the relevant grounds. Resolving this issue is the purpose of this article. The existence of wording in the legislation that does not meet the requirements of legal certainty, such as «gross negligence», «gross violation of the law» carries certain risks to the independence of judges, but the existence of such risks can not be considered a reason for the law refused to use them. This is due to the objective impossibility of formulating in the law an absolutely exhaustive list of grounds for disciplinary liability in general and grounds for dismissal of a judge in particular. Critical is the issue of forming a consistent practice of the disciplinary body, which would, firstly, form the criteria for understanding vague concepts, and secondly, would not allow different approaches to responding to the same misconduct of a judge. Keywords: disciplinary liability of a judge, grounds for disciplinary liability, legal certainty, evaluation concepts.

ВИМОГИ ЩОДО НЕСУМІСНОСТІ ПОСАДИ СУДДІ З ІНШИМИ ВИДАМИ ДІЯЛЬНОСТІ: ПОРІВНЯЛЬНИЙ КОНСТИТУЦІЙНО-ПРАВОВИЙ АСПЕКТ

The article reveals the requirements for the incompatibility of the position of a judge with other activities in the comparative constitutional and legal aspect. It is determined that the requirements for incompatibility of a judge's position with other activities in Ukraine are regulated by the Constitution of Ukraine, the Law of Ukraine «On the Judiciary and the Status of Judges», the Law of Ukraine «On Purification of Power», the Convention for the Protection of Human Rights and Fundamental Freedoms, Rules of Court adopted by the Council of Europe and the European Court of Human Rights, the Rome Statute of the International Criminal Court, the General (Universal) Charter of Judges. It is established that the legislative and constitutional requirements for judges stipulate that judges must meet high moral, ethical and professional standards. It has been established that persons may not engage in administrative, political or professional activities during their tenure as judges, which is incompatible with their impartiality, independence or the requirements for permanent performance of their duties. It is determined that while in the position of a judge, it is not allowed to engage in other activities, in particular, to carry out activities in other public authorities, local governments or activities related to the representative mandate. It has been proved that a judge cannot combine the activities defined by the position of a judge with advocacy and business activities. It was found that judges are prohibited by law from holding paid positions and performing paid work, except for teaching, research or creative work. It is established that a judge has no right to be a member of the governing of the body or supervisory board of an enterprise or organization whose main purpose is to make a profit. It is determined that a judge has no right to belong to a political party or trade union, as well as to show support for such a party or union. It has been proven that judges are prohibited from participating in election campaigns, political rallies, rallies or strikes. It was found that the judge is obliged to comply with the requirements for incompatibility established by the legislation of Ukraine in the direction of preventing and combating corruption. It is determined that a judge has the right to activities related to the administration of justice, to participate in judicial self-government, to membership in national or international associations, as well as in other organizations that operate to protect the interests of judges, increase the authority of the judiciary, in society or for the development of legal science and profession, for the formation of public associations, as well as for participation in the activities of such associations in order to protect their rights and interests, as well as to improve the level of professionalism and skills. It is proposed, in the future of the following studies, to reveal the grounds for dismissing a judge from office in a comparative constitutional and legal aspect.

НЕЗАЛЕЖНІСТЬ ПРОФЕСІЙНИХ СУДДІВ ЯК КОНСТИТУЦІЙНА ЗАСАДА ЇХ ПРАВОВОГО СТАТУСУ

The article reveals the main aspects of the independence of professional judges as a constitutional basis of their legal status. It is established that the main aspects of the independence of judges as the constitutional basis of their legal status in Ukraine are regulated by the provisions of the Constitution of Ukraine, the Law of Ukraine «On the Judiciary and the Status of Judges», the Law of Ukraine «On the High Council of Justice», the Law of Ukraine «On Ensuring the Right to a Fair Court», the Law of Ukraine «On Restoring Confidence in the Judiciary in Ukraine», the Law of Ukraine «On Purification of Power». It is determined that the independence of the judiciary is guaranteed by the state and acts as a constitutional and legal basis for the functioning and activity of the judiciary. It was found that the independence of judges is a key element of the professional status of judges. It has been determined that a judge, in administering justice, must be independent of influence, pressure or interference from unlawful sources. It was noted that state authorities and local self-government bodies, as well as their officials and officials, individuals and legal entities, are obliged to respect the independence of judges, as well as not to encroach on it. It has been established that a judge in the context of administering justice is independent, therefore, taking measures to ensure the independence of judges is one of the main responsibilities of the High Council of Justice. It has been established that every year the number of violations by offenders on the independence of judges in the context of their administration of justice is increasing. It was determined that most often encroachment on the independence of judges in Ukraine occurs on the part of law enforcement agencies, people's deputies, deputies of local councils, other representatives of state authorities and local self-government bodies, lawyers, as well as in cases of violation of law and order in a court session, disruption of court hearings, blocking courts, making various threats to judges, committing physical pressure on judges or members of their families, damaging their property, as well as the property of courts, disseminating inaccurate information in relation to judges. It was found that the low level of guarantees for the independence of judges has an indirect effect on reducing the possibilities of exercising the right to exercise judicial protection. It is noted that the prospects for further research in this direction are the study of the legal foundations of the procedure for the selection and appointment of professional judges in the context of constitutional and legal requirements for candidates.

Judicial assistant: current state of legal regulation and review of court practice

Patronage service(executive support service)is a type of service and employment relations that arise, change and terminate to ensure effective, proper and quality performance of their duties by officials who are legally entitled to have a patronage servant. The term “patronage” comes from “patronatus” in Latin- the state or rights of the patron. In the national legislation, the patronage service is a quite new category and was first introduced in 1993 with the adoption of the Law on Civil Service, and therefore has no old traditions. The change in the status of the patronage service in Ukraine indirectly indicates its formation. There is no single approach to the principles of patronage service in foreign countries, for example, in Italy and Germany patronage service does not stand out as a separate concept, but such kind relationships are included in the public service, while in Australia, Britain, Georgia, Canada, Lithuania and Poland patronage service conceptually stands out as a category of public service with a number of special rules. The establishment of a patronage service in Ukraine was an objective necessity and today it operates in the system of legislative, executive and judicial branches. The labor functions of patronage service employees are directly correlated with the labor functions of public law official to whom they are assigned (subordinated). The patronage service includes advisers, assistants, commissioners, press-secretaries of the President of Ukraine, employees of the secretariats of the Chairman, First Deputy Chairman and Deputy Chairman of the Verkhovna Rada of Ukraine, employees of patronage services of the Prime Minister of Ukraine and other members of the Cabinet of Ministers of Ukraine, advising assistants of People's Deputies of Ukraine, judicial assistants and scientific advisers to judges of the Constitutional Court of Ukraine, judicial assistants, advisers to the Chairman of the Supreme Court and chairmen of cassation courts, as well as positions of patronage servants in other state bodies. At the same time as for judiciary, part 4 of Article 92 of the Civil Service Law (2015) states that the specifics of patronage service in courts, bodies and institutions of the judicial system are determined by the legislation on the judiciary and the status of judges. Judicial assistants are an integral part of the judiciary. Despite their legal status, whether civil or patronage servants, the lion's share of work is performed by judicial assistants. It can be concluded, directly or indirectly, that effective work of a court or a judge is not possible without the effective work of judicial assistants (judges' offices) and this interdependency is obvious. It should also be noted that a significant number of assistants later become judges, or if we take a look at the biographies of judges of all levels we can find out that many of them took their first steps in the legal profession as judicial assistants. This might lead to the conclusion that “judicial assistants environment” is a kind of a personnel reserve of the judiciary.

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.

THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

The article is devoted to the principle of the rule of law, implemented through the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. (Convention) by the European Court of Human Rights (ECHR). The relevance of studying this principle is due to the new approach formed by the Court that the rule of law is “inherent in all articles of the Convention.” We can see its application in the current case-law of the Court as one of the fundamental elements of the independence of national courts. Thus, the author aims to identify the theoretical and practical aspects of the ECHR’s approach to the problem of judicial independence and legal application of the rule of law principle, to study the relevant Court practice. The rule of law and the independence of the judiciary as the basic elements of the convention system are an integral part of the institution of the “European public order” developed by the ECHR, therefore it is necessary to trace their interconnection. The case-law of the ECHR served as the material for the study, which allowed us to identify all stages of the formation of the rule of law principle and its actual “content”. Analyzing judicial practice, along with using doctrinal approaches, we managed to identify the limits of permissible application of national laws, the powers of bodies and officials of various branches of government, bodies of the judicial community to the given problem, new aspects of the status of judges seen as one of the democratic values of society. To achieve this, the author used methods specific to studies of law and general scientific (traditional) research methods, with an emphasis on comparative and general legal methods, and the method of induction during the analysis of judicial practice. The paper examines the normative sources of law and judicial practice of the ECHR, allowing to reveal the principle of the rule of law, its correlation with the principle of judicial independence, the specifics of its impact on the domestic national judicial system and the functioning of the state apparatus, to determine the role of the principle in the convention mechanism of the protection of human rights.

The Importance of Law Practice in Achieving Legal Certainty Regarding the Grounds for Disciplinary Liability of a Judge

In order to overcome the relevant problem, the Law of Ukraine “On the Judiciary and the Status of Judges” significantly changed both the grounds for bringing a judge to disciplinary responsibility and the grounds for applying the most severe measure of such responsibility — dismissal of a judge. The level of detailing of such grounds is quite high, both in terms of the certainty of such grounds, and in terms of proportionality between the type of disciplinary misconduct and the type of penalty to be applied for it. At the same time, the results of the analysis of the relevant legal provisions shows that they are not devoid of evaluative, vague concepts, such as «gross disregard for the duties of a judge», «gross violation of the law», «gross negligence», «significant negative consequences». Thus, the question arises whether the problem of uncertainty of the grounds for disciplinary liability of a judge has been conceptually resolved, or whether the relevant problem continues to exist despite significant legislative detail of the relevant grounds. Resolving this issue is the purpose of this article. The existence of wording in the legislation that does not meet the requirements of legal certainty, such as «gross negligence», «gross violation of the law» carries certain risks to the independence of judges, but the existence of such risks can not be considered a reason for the law refused to use them. This is due to the objective impossibility of formulating in the law an absolutely exhaustive list of grounds for disciplinary liability in general and grounds for dismissal of a judge in particular. Critical is the issue of forming a consistent practice of the disciplinary body, which would, firstly, form the criteria for understanding vague concepts, and secondly, would not allow different approaches to responding to the same misconduct of a judge.

On the Issue of Judges’ Salary as an Element of the Constitutional and Legal Status of Judges

The article focuses on the use of the categories of «permanent population» and «existing population» while applying the regional coefficients in determining the basic amount of salary of a judge, since the judge’s salary guarantees the independence of the judge and is an integral part of his constitutional legal status. Attention is drawn to the fact that, since the judge’s salary can be determined only by the Law of Ukraine «On Judicial System and Status of Judges» the issue of the uniqueness of the application of regional coefficients requires an additional focus of scholars and practitioners, which, in turn, is related to the uncertainty of the provisions of paragraphs 2, 3, 4, Part 4 of the Art. 135 of the above mentioned Law. Determination of the regional coefficient for the calculation of the judge’s salary substantiates the feasibility of applying regional coefficients in practice based on the data, in particular, the basic indicators of the effectiveness of the courts of settlements, population of which exceed 1 million and total population of which is less than 100 thousand. Relevant comparative data on the burden on judges of such courts is provided. Based on the obtained empirical data, it is concluded that there are ambiguities in the use of the categories «existing population» and «permanent population» by the State Judicial Administration of Ukraine while approving staffing of courts in the period of 2017-2020 on the example of Odesa City, despite the relatively constant number of permanent and existing population in the city during this period. The necessity to apply the category of «existing population» in determining the basic salary of a judge is argued, as well as the advisability of amending the paragraphs 2-4 of Part 4 of the Art. 135 of the Law of Ukraine «On Judicial System and Status of Judges» in regard to the need for uniform application of this rule in practice and ensuring that the social guarantees of judicial independence are respected.

Independence of Russian Judges in Conditions of Irremovability of Judges

The paper has become the fourth work in a cycle of studies carried out by the author to investigate the independence of the judiciary. It is devoted to the implementation of the principle of irremovability of judges as one of the declared guarantees of their independence. The paper analyzes the institutional and individual independence of courts and judges, concludes that it is individual independence of judges that plays the special role in ensuring the independence of the judiciary in general. Within the framework of the study, the reader’s attention is drawn to the components of the irremovability of judges: the period of granting the status of federal judges and the special procedure for suspending and terminating their powers. The author criticizes various age limits established by the legislator, upon which judges’ powers are terminated. Such a differentiated approach, in his opinion, conflicts with the general legal principle of equality and a sectoral principle of the unity of the status of judges. As a consequence, the leadership of the highest courts, given the possibility of reassigning them repeatedly, falls into a harmful dependence on the person entitled to nominate them for the positions of the President and Vice-Presidents of the relevant court. The author provides discouraging forecasts concerning the implementation of the constitutional amendment extending the powers of the President to deprive the status of judges of the Constitutional, Supreme Courts, Cassation and Appeal Courts of the Russian Federation. The work elaborates on the procedure for bringing judges to disciplinary responsibility, which is designed to protect their independence, but in view of the existing shortcomings allowing the use of this mechanism in order to monitor and pressure judges. In this regard, the author substantiates and proposes an impressive list of measures aimed at changing the situation. These measures include changing the composition of the qualification panels of judges, restricting the participation of judicial leadership and higher courts, their expansion by the judges of the Constitutional Court and the strengthening of their public participation, the establishment of the possibility of challenging the decisions of the qualification panels of judges by applicants.

The Peculiarities of Bringing Judges to Administrative Responsibility

The article presents the peculiarities of bringing judges to administrative responsibility. It has been established that in Ukraine bringing judges to administrative responsibility is regulated by the provisions of such legislative and regulatory documents as the Code of Ukraine on Administrative Offenses, the Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine to Strengthen the Guarantees of Judges’ Independence», the Law of Ukraine «On Ensuring the Right to a Fair Trial», the Law of Ukraine «On the Judiciary and the Status of Judges». It has been found out that judges are not included in the structure of subjects of administrative offenses. It has been determined that the administrative responsibility of judges is a kind of legal responsibility, which is mostly considered on a theoretical basis, but in practice, the administrative responsibility of judges is not structured at all. It has been proved that the main obstacles to bringing judges to administrative responsibility are, first of all, the ethical impossibility of imposing administrative penalties on them, as they have a fairly high legal status, and the urgent priority of establishing special procedures and bodies to bring judges to administrative responsibility. It has been established that bringing judges to administrative responsibility and imposing administrative penalties on them contradicts, first of all, the legal status of judges. It has been proved that the inviolability of judges, defined by the provisions of the law, is primarily aimed at protecting them from outside influence, which in the long run will create the appropriate conditions for the administration of fair justice by a judge. It has been found that the procedure of bringing a judge to administrative responsibility is one of the elements of control over the quality of professional activity of judges as officials.

Interpretation of Legal Liability of Judges in Ukraine

The article presents the conceptual principles of interpretation of the legal liability of judges in Ukraine. Based on the conducted research, it has been revealed that by the provisions of the Constitution of Ukraine and the Law of Ukraine “On the Judicial System and the Status of Judges” judicial power in Ukraine is entrusted to judges. It has been proven that judges are guided by the superiority of law and are independent in administering justice. Based on the provisions of the law, it has been established that without the consent of the Supreme Council of Justice a judge can not be taken and kept under arrest until the moment when the court passes the corresponding sentence, except for serious and extremely serious crimes. It has been established that a judge can be prosecuted for a court decision, except in cases of a crime or disciplinary action. It is determined that the key feature of the legal responsibility of judges is the directly negative nature which it bears for the offender. At the same time, the insufficiently high level of conscientious performance of official duties, which are defined by legal norms, and the low level of self-awareness are considered to be the manifestation of the legal responsibility of judges. It has been found out that there is no reason to distinguish procedural responsibility as an independent type of legal responsibility of judges because the consequences of procedural activities of judges in resolving court cases are manifestations of their legal position and personal convictions. It is established that the essence of the legal responsibility of judges is aimed at 1) promoting the legality and objectivity of the trial and making a court decision on this basis by the law; 2) creation of a holistic legal consciousness of judges of the judicature; 3) prevention of offences that are committed and may be committed by judges; 4) ensuring a high level of independence of judges; 5) strengthening the authority of the court and raising the level of citizens to the court; 6) lustration of the judicature within the framework of the provisions defined by the law, according to which the judicature will include only fair and dedicated judges.

Problems of creation of the High Qualifications Commission of Judges of Ukraine in the Conditions of New Judicial Reform

Analyzing the provisions of Article 131 of the Constitution of Ukraine, it can be concluded that the constitutional powers to ensure the selection of judges, their professional training and evaluation are within the competence of the High Qualifications Commission of Judges of Ukraine. At the same time, the legal status of an authority that is vested with constitutional powers to form a judicial branch does not have the legal position of the Constitution of Ukraine, which creates legal uncertainty in the status of such an authority. According to the authors, the authority of the High Qualifications Commission of Judges of Ukraine and the High Council of Justice to make a submission (recommendation) on the appointment of a judge is duplicate. Such a procedure demonstrates the excessive formalization of the process of appointment to the position of judge and requires the constitutional separation of the functions of the High Council of Justice and the High Qualifications Commission of Judges of Ukraine, reflecting the respective powers in the relevant legislation (Laws of Ukraine "On the High Judicial Council" and Law of Ukraine "On Judiciary and Status of Judges" ). A special place in the article is given to the procedure of formation of the High Qualification Commission of Judges of Ukraine and the imperfection of such procedure, stipulated by the current legislation of Ukraine. In particular, in the opinion of the authors, the formation of state agency whose competence is assigned to constitutional functions is the right to participate in the management of public affairs and, accordingly, is a constitutional right that effectively integrates the political rights of the citizen, guaranteed by the Constitution and laws of Ukraine. Such shortcomings threaten the formation of both the High Qualifications Commission of Judges of Ukraine in particular and the formation of the judicial branch in general. Keywords: High Qualifications Commission of Judges, High Council of Justice, staffing, judicial reform.

Визначення шляхів удосконалення адміністративно-правового регулювання організації діяльності апарату суду

У статті проаналізовано проблемні аспекти в адміні-стративно-правовому регулюванні організації діяльно-сті апарату суду. Визначено авторське бачення пропо-зицій у частині удосконалення понятійного апарату та внесення змін до законодавства в досліджуваній сфері. Визначено перелік кваліфікаційних вимог до претен-дентів на посади в апараті суду, які запропоновано чіт-ко прописати в Законі України «Про судоустрій і статус суддів». Зроблено висновок, що основними недоліка-ми чинного законодавства, що регулює організаційну діяльність апарату суду, є такі: 1) на законодавчому рівні недостатньо визначено та врегульовано питання правового статусу апарату суду, що ускладнює визна-чення складових елементів його правового статусу; 2) законодавчо практично не розкривається право-вий статус працівників апарату суду, він врегульова-ний переважно на рівні підзаконних актів і, знову ж таки, не в повному обсязі; 3) потребує законодавчого врегулювання ситуація з подвійним підпорядкуван-ням деяких категорій працівників апарату суду го-лові суду, судді та керівнику апарату суду; 4) чинне законодавство не визначає кваліфікаційні вимоги до претендентів на посади в апараті суду; 5) не врегу-льовано статус помічника судді, умови його прийнят-тя на роботу та звільнення не узгоджуються з нормами законодавства в галузі праці; 6) норми законодавства у сфері судоустрою взагалі не визначають статус се-кретаря судового засідання і його складові елементи; 7) недосконало регламентується питання підпорядку-вання судових розпорядників керівнику апарату суду, що ускладнює процедуру управлінсько-організацій-них відносин між ними; 8) потребує перегляду проце-дура погодження та затвердження штатного розпису та чисельності апарату суду; 9) потребують узгодже-ності норми законів України «Про судоустрій і статус суддів» від 02.06.2016 р. № 1402-VIII та «Про дер-жавну службу» від 10.12.2015 р. № 889-VIII з питань проведення конкурсів для призначення на посади дер-жавних службовців у судах; 10) не адаптовано норми законодавства щодо визначення категорій державних службовців, які займають посади державної служби в судових органах.

Administrative and legal status of decisions of the supreme court through the prism of the development of case law in Ukraine

In recent years’ modernization and reform of the judiciary has become one of Ukraine’s key tasks. The events of 2013-2014, called the Revolution of Dignity, exacerbated the existing problems of judicial and legal reform, as well as slowed down effective reform measures in this area. Under such conditions, the executive and legislative bodies had to act in the direction of reforming and adapting the judicial system to generally accepted European norms and standards. Since 2014, a number of progressive laws on the functioning of the judiciary and the administration of justice in the state have been approved. And in 2016, the judicial system in Ukraine was reformed: the Supreme Court of Ukraine, the Supreme Administrative Court of Ukraine, the Supreme Economic Court of Ukraine, and the High Specialized Court of Ukraine for Civil and Criminal Cases were terminated and subsequently liquidated. Instead, all functions, tasks and powers to consider the case as a court of cassation were assigned to the newly created Supreme Court. One of the preconditions for judicial reform in Ukraine was the overburdening of the Supreme Court of Ukraine and higher specialized courts, which violates the right to a fair trial within a reasonable time, which is enshrined and guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. In accordance with Art. 17 of the Law of Ukraine “On the Judiciary and the Status of Judges”, the judicial system in Ukraine consists of the Supreme Court, appellate courts, local courts. At the same time, the highest court in this system is the Supreme Court. Along with such innovations in the structural and functional characteristics of the judiciary in Ukraine, there is a tendency to the possibility of future recognition of decisions of the Supreme Court – the official source of law in the country.
 The article reveals the issue of determining the administrative and legal status of decisions of the Supreme Court in Ukraine, outlining key theoretical and practical conclusions over the years of judicial reform. Emphasis is placed on the development of the peculiarities of the Anglo-Saxon legal system in the state and the development of case law.

ПРАВОВИЙ СТАТУС ПРАЦІВНИКІВ АПАРАТУ СУДУ

У науковій статті аналізуються положення чин-ного законодавства в частині реалізації закріплених Конституцією України та Законом України «Про дер-жавну службу» положень, що стосуються визначен-ня статусу працівників апарату суду. Розглядаються положення нового та перспективного законодавства про державну службу, положення Закону України «Про судоустрій і статус суддів» у контексті урегульо-ваності та визначеності статусу працівників апарату суду. Досліджено особливості організації роботи, під-порядкування та фінансової забезпеченості працівни-ків апарату суду.
 Адміністративно-правовий статус керівника апа-рату суду – це сукупність його повноважень, зобов’я-зань, прав та обов’язків щодо організації забезпечення суддям умов для здійснення судочинства, організації матеріальних, технічних, охоронних та інших забезпе-чувальних функцій у суді. Адміністративно-правовий статус помічника судді – це сукупність його повнова-жень, завдань, зобов’язань і прав щодо допомоги судді в підготовці судових справ до розгляду, виконання ін-ших законних доручень судді і керівника апарату суду в поєднанні з професійними обмеженнями та спеціаль-ною дисциплінарною відповідальністю.
 Правовий статус державного службовця в судовій системі розглядається як сукупність встановлених законодавчими нормами функцій, повноважень, прав і обов’язків, правових обмежень, етичних стандартів в сукупності з підставами, порядком виникнення їх-ньої службової правосуб’єктності та юридичної відпові-дальності в аналізованій сфері. Важливість зазначеної проблеми зумовлена тим, що на державних службовців судової системи покладено низку зобов’язань у сфері державної політики, основна мета яких – забезпечен-ня справедливості, а саме правового захисту прав, сво-бод і законних інтересів фізичних і юридичних осіб, адже боротьба за справедливість нині відбувається майже в усіх основоположних сферах життєдіяльнос-ті суспільства. Запобігання порушенням і припинення порушень прав і свобод громадян, а також їх відновлен-ня є важливим актуальним чинником, який допоможе у формуванні правової свідомості громадян.