Status Of Judges Research Articles

A NEW STAGE OF REFORMS IN THE SPHERE OF JUDICIAL SYSTEM

I made some suggestions and the issues regarding the legal reforms implemented in our republic. Also, the problems on implementation of justice, the rights and freedoms of citizens, the protection of the interests of society and the state, the status of judges, their rights and obligations, the issues related to the strengthening of ensuring the true independence of judges and their inviolability are scientifically analyzed in the article.

LEGAL REGULATION OF INDIVIDUAL INVESTIGATIVE ACTIONS IN RELATION TO JUDGES

Abstract: the article notes that investigative actions are carried out in a special manner with respect to judges. The types of individual investigative actions in relation to judge are investigated. The rules of the Criminal Procedure Code of the Russian Federation and the Federal Law “On the Status of Judges in the Russian Federation” on the procedure for conducting individual investigative actions in relation to judges deprived of immunity, as well as against judges not deprived of immunity, are considered. The provisions of the law on search in relation to these categories of judges are critically evaluated. The necessity of abandoning a special procedure for conducting a search in relation to judges is justified. The conclusion is made about the expediency of simplifying criminal proceedings in relation to judges. Arguments are presented about the need to exclude the inconsistency of the norms of various laws on the procedure for conducting individual investigative actions in relation to judges.

ЗАКОНОДАВЧЕ РЕГУЛЮВАННЯ ДІЯЛЬНОСТІ АДМІНІСТРАТИВНИХ СУДІВ ПІД ЧАС ВОЄННОГО СТАНУ

Purpose. The scientific article is dedicated to the analysis of the peculiarities of the legislative regulation of the activity of administrative courts under martial law. The main goal of the research is to identify legislative changes introduced during the legal regime of martial law in Ukraine in the sphere of functioning of the judiciary and to analyze the content of the relevant regulatory framework to outline the specifics of the legislative regulation of the activity of administrative jurisdiction courts at this time. Accordingly, the article examines the features of legal regulation, analyzes the identified problems and shortcomings, and proposes prospective directions for the development of administrative procedural legislation to ensure the effective protection of the rights, freedoms, and interests of individuals. Methods. The conducted study of the peculiarities of legal regulation of the activity of administrative courts under martial law includes the following logical stages: formulation of the problem and the purpose of the study; literature search and analysis; selection of methods and research approaches; conducting scientific research; formulation of conclusions and recommendations. The chosen research methodology is determined by the purpose and tasks of the scientific article and includes the following methods and research approaches: the dogmatic method, which helped to analyze and systematize legal concepts, terms and principles; the method of system analysis, used to study the content of new legislative provisions, their interrelation and interaction; the analysis of judicial practice facilitated the examination of court practices on this issue and determination of the peculiarities of the court activities in emergencies, etc. The abovementioned, as well as other research methods and scientific approaches, were used separately or in combination, which contributed to obtaining answers to the research problem and achieving the research objective. Results and conclusions. The author concluded that under martial law the procedure of administrative justice is regulated by the current administrative procedural legislation, the updated norms of the Law of Ukraine «On the Judiciary and the Status of Judges», recommendations and explanations of the Supreme Court, the Council of Judges of Ukraine and the State Judicial Administration. Considering the specifics of the situation in a particular region, the courts determine their mode of operation taking into account the need to ensure access to justice and the safety of judges and other participants in the process. The results of the analysis of the peculiarities of the legislative regulation of the activity of courts under martial law, as reflected in the outlined prospective directions of its development, can be used as a basis for further scientific research and in developing specific recommendations for the reform of procedural legislation in general, and administrative procedural legislation in particular.

Challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and termination of their powers in the Russian Federation

The article examines the challenges of holding the presidents of general jurisdiction courts liable to disciplinary measures and issues of terminating their powers. It is shown that the legal status of the presidents of general jurisdiction courts encompasses various elements, such as the procedure for terminating their powers, their liability, the procedure for replacing their post, their competence, and guarantees of independence. Five cases of termination of the powers of the president of a general jurisdiction court were considered: automatic suspension in the event of termination or suspension of powers as a judge, which may be directly tied to disciplinary proceedings, limitation of an office term, voluntary rejection of the position while retaining the powers of a judge, early termination of the court president’s powers while maintaining his/her position as judge for failure to fulfill or inadequately fulfill his/her official duties, commission of an act defaming the honor and dignity of a judge, as well as in any other circumstances specified under federal constitutional law indicating the inability of a judge to perform his/her duties. Significant gaps in matters of early termination of the court presidents’ powers are evident in Russian judicial practice, as demonstrated by numerous examples. The matters concerning the disciplinary liability of the presidents of general jurisdiction courts are analyzed with respect to the procedures, grounds and peculiarities for holding both judges and court presidents liable. A practical view of the modern interpretation of the concept “disciplinary offense of a judge” is shown. Recommendations have been made to improve the Russian legislation that deals with the issues of disciplinary liability of the presidents of general jurisdiction courts and termination of their powers, with a focus on the Law of the Russian Federation on the Status of Judges in the Russian Federation of 1992.

Peculiarities of the work of courts under martial law

The work of the judicial system in wartime is a subject of debate, because, despite the fact that the order of court work is fixed, most often, in the constitutions of countries, there are various precedents and experience of the work of courts in emergency situations. Important factors influencing the work of courts are the safety of judges and other participants in the process due to the occupation of some regions, massive shelling of Ukrainian cities, possible sabotage, etc. In international practice, emergency situations include: state of emergency, state of war, state of siege, state of public danger, state of war, state of tension, state of defense, state of threat, state of readiness. Independent Ukraine applied martial law for the first time in its existence in 2022, after the beginning of open aggression by the Russian Federation. In addition to the Constitution of Ukraine, during the period of martial law, the work of courts is regulated by the Law of Ukraine "On the Legal Regime of Martial Law" and the Law of Ukraine "On Amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" on Changing the Jurisdiction of Courts" No. 2112-IX.The main aspects of the work of the courts in Ukraine during martial law in 2022 were: the work of the courts cannot be stopped; the safety of people is the primary goal; all judicial bodies must develop plans that include: measures to preserve personal files and personal data of judges and employees; lists of court cases to be evacuated, as well as those to be destroyed; the places where such documents will be evacuated and the routes of such movement; issues of information technology evacuation and data preservation; heads of justice bodies are responsible for organizing emergency measures; Parliament should promptly respond to the need for legislative support for the stable functioning of the judicial system; the authorities should ensure the information security of judges and limit public access to registers containing information about them; subjects responsible for the formation of the Supreme Council of Justice to form its composition as soon as possible; an operational headquarters was created at the Council of Judges of Ukraine. The experience of Ukraine and the conclusions made by the authorities regarding the effectiveness of such an algorithm of court work in martial law conditions can be used by European countries.

Eksistensi Lembaga Mahkamah Agung Sebagai Pelaksana Peradilan Yang Independen Dalam Rekrutmen Hakim

The main issue discussed in this study is the extent to which the Supreme Court's power is autonomous in recruiting judges with the status of public officials for judicial organizations under its jurisdiction. Since legislation is the main source of information, this study takes a normative legal approach. The results of the study indicate that the current legal framework is not yet fully capable of regulating, implementing and ensuring the judicial system accurately, as well as the nature and status of judges as public officials. The current system and structure of the recruitment of judges continues to show a lack of transparency and uncertainty regarding the legal rules governing the recruitment of judges with the status of public officials. Existing norms maintain weak legitimacy, as they are not regulated by the Constitution, which establishes an independent judiciary responsible for upholding law and justice. Therefore, in the future it is necessary to adopt new rules and regulations governing the system and procedure for recruiting judges in accordance with the specificity of the position of judges as public officials to ensure the performance and accountability of judicial duties.

Some issues of legal regulation of the termination of the right to use housing

The article has been devoted to the consideration of problematic aspects of the legal regulation of the termination of the right to use housing. It has been found that the legal regulation of the termination of the right to use housing is carried out by the norms of housing and civil law. Special attention has been drawn to the fact that the Housing Code of Ukraine, despite the legislative changes made to it, does not correspond in content to modern social realities in the conditions of harmonization of the legislation of Ukraine with the law of the European Union. Despite this, it is still used in law enforcement, which often gives rise to numerous collisions and problematic situations.
 It has been established that the precedent practice of the Supreme Court, as the highest court in the judicial system of Ukraine, one of the tasks of which, according to the Law of Ukraine "On the Judicial System and the Status of Judges", is to ensure the stability and unity of judicial practice, as well as the uniform application of legal norms by courts of various specializations in the order and manner determined by the procedural law, in the researched sphere of relations is quite diverse.
 The necessity of completely updating the housing legislation of Ukraine and bringing it to modern realities has been proved. It has been established that until this issue is unambiguously and clearly settled by the domestic legislator, in eviction cases, everything will depend on the specific factual circumstances, taking into account the person in respect of whom the issue of termination of the right to use residential premises is being decided. Also the attention has been drawn to the fact that the Civil Code of Ukraine is a codified act of legislation adopted later in time, therefore in modern realities the temporal conflict should be resolved precisely in favor of the norms of the Civil Code of Ukraine.
 Taking into account the legally guaranteed principle of inviolability of property rights, the property owner has the right to demand the removal of obstacles in exercising the right to use and dispose of his property. Therefore, in the opinion of the authors, it is precisely based on such principles that the issue of terminating the right to use housing that is in private ownership should be regulated.

To the Question of the Independence of Judges Through the Prism of the Requirements Imposed on Them

In connection with the 30th anniversary of the adoption of the law of the RF «On the Status of Judges in the Russian Federation», the author presents an assessment of the existing theory and practice of understanding the principle of the independence of judges in criminal court proceedings through the prism of the requirements imposed on judges. Two aspects are stressed - committing actions that diminish the authority of the judicial power (violations of the Judges Code of Ethics) and the conflict of interests. Having analyzed the established work practice of the Judicial Qualification Committees of the subjects of the Russian Federation, the author states that there is no unified approach to proving the violations of the procedural law and their connection with the violation of the Judges Code of Ethics. The section of the article devoted to the necessity of avoiding a conflict of interests highlights that the currently used legal regulation of this issue is non-systemic, and also presents a description of the position of Judicial Qualification Committees regarding the differentiation of approaches to evaluating a conflict of interests for candidates to judges and for acting judges. The conducted research allowed the author to state that if the abovementioned Code provides for an opportunity to disqualify a judge due to violations of ethical prescriptions, then the corresponding clauses should be reflected in the law and should totally exclude multiple interpretations. In its turn, in order to develop a uniform practice of understanding a conflict of interests by Judicial Qualification Committees, it is necessary to provide a legal regulation of the so-called feedback with the goal of providing them with motivated decisions on the appointment of the candidates they approved as judges or the refusal to do so, which will contribute to ensuring the consistency of the law enforcement practice and will give the Committees confidence regarding the correctness of their decisions.

The high court for intellectual property as an element of the judicial system in Ukraine. CONTRA SENTENTIAM

Keywords: intellectual property law, Higher IP Court, judicial system, legal position,fact in issue
 Based on the analysis of the provisions of the Law of Ukraine «On Judicial System and Status of Judges», provisionsof procedural codes, as well as international practices, the author expresses doubts about the expediency of existence in the judicial system of Ukraine of a Higher Intellectual Property Court as a separate judicial institution. The identified proceduraland organizational flaws point to the untenability of the position that introducing such a specialized court into the judicial system would increase the effectiveness of intellectual property protection in Ukraine.There is every reason to assert that the Ukrainian state policy in the matter of the specialized court for this field tends towards ending up with something like a patent court. However, considering the qualification of the candidates for the domestic IPcourt and the first results of the competition, most likely Ukraine is going to end up with a High Court for Intellectual Property Matters composed of regular judges.In view of that, the decision to establish a specialized court for intellectual property matters as a separate element of the judicial system appears to be quite questionable, as it defeats the purpose of its creation. And this means, at the very least, budget wasted on the maintenance of an entire judicial institution.It is also absolutely unclear how the judges of the specialized court will be able to improve the quality of justice in the field of intellectual property law, as they will be effectively unable to bring law enforcement to a new level due to being burdened bythe already existing legal positions of the Supreme Court.The purpose of the article is to demonstrate the importance of the problems that are to be expected as a result of functioning of the Higher IP Court, and to propose an alternative way of ensuring the effectiveness of the protection of exclusive rights.

Features of determining the territorial jurisdiction of court cases under martial law

The article is devoted to the peculiarities of determining the territorial jurisdiction of martial law, because on February 24, 2022 the Law of Ukraine “On Approval of the Decree of the President of Ukraine” On martial law in Ukraine “in connection with the military aggression of the Russian Federation against Ukraine was imposed martial law, which continues today. The issues of determining the territorial jurisdiction of court cases were covered in the works of G. Shershenevich, I. Pobirchenko, V. Shcherbina, V. Belyanevich, D. Prityka, V. Chernadchuk, M. Smokovich, V. Sukhonos, V. Nagrebelny, O. Kharitonova, I. Balyuk, but in the context of martial law, they acquired a new meaning. The purpose of the article is to highlight the peculiarities of determining the territorial jurisdiction of court cases under martial law. Research methods: the following methods are applied. Formal-logical – for the formation of new concepts, their classification; eliminating inaccuracies and contradictions, etc. Formal dogmatic, or legal method, based on the use of rules of formal logic for knowledge of law, is a traditional, inherent in legal science, since it proceeds from its nature. Its essence is in the formulation and disclosure of legal concepts, the construction of legal structures, and clarification of the actual content of the law. At all stages of scientific research the dialectical method is used. This method determines the paths of any scientific study. It helps to explore all the phenomena in the relationship, interdependence. Comparative method involves comparing single-order legal concepts, phenomena and processes to establish similarities and account for differences between them. The article analyzes the provisions of current legislation, the main scientific approaches to defining the concept of jurisdiction of court cases, as well as case law in this area. In addition, bills №7315 on amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” on martial law or state of emergency and №7316 on amendments to the Code of Administrative Procedure of Ukraine, the Civil Procedure Code of Ukraine and the Commercial Procedure Code of Ukraine are considered (concerning the administration of justice in a state of war or emergency). As a result, it is concluded that digitalization issues related to determining the territorial jurisdiction of martial law are relevant and practical, as they promote the implementation and protection of citizens’ rights and establish effective mechanisms for wartime justice. Because the courts are objects of critical infrastructure, and therefore the implementation of justice in our country does not stop and the right of citizens to judicial protection can not be limited. Key words: court proceedings, territorial jurisdiction, martial law

Efficiency of civil and procedural regulation of certain judicial procedures in connection with the martial law and temporary occupation

Summary: The article determines the effectiveness of civil procedural regulation of certain court procedures in martial law and temporary occupation on the basis of scientific and practical analysis of the procedure for changing territorial jurisdiction due to the termination of the court hearing of case and the mechanism for resuming lost proceedings. These procedures will in many cases be used in combination and have become key to ensuring that citizens exercise their constitutional right on access to justice. The urgency of the application of these procedures today is due to the imposition of martial law, in connection with which the courts in some areas have stopped working. A description of the procedure for transferring the case to another court on this basis is given. An overview of the provisions of the Laws “On the Legal Regime of Martial Law” and “On the Judiciary and the Status of Judges”, which defines the mechanism for changing the territorial jurisdiction of cases considered by courts in the territory where martial law is imposed. It is considered a situation when the case materials in paper form cannot be transferred for objective reasons (the court that stopped working is in the temporarily occupied territory or the territory of hostilities, or the case materials were destroyed or lost during the transfer). It turns out that this does not preclude the transfer of the case as a procedure for changing jurisdiction, as the case is transferred as a relevant legal dispute or other legal issue on which civil proceedings have been initiated with a single unique number. It is argued the conclusion that the transfer of case under jurisdiction will be considered completed from the moment the new court accepts such a case for proceedings, and not from the moment of the decision to change jurisdiction. It is justified, if in connection with the change of jurisdiction the unfinished case was not transferred to another court and (or) was not accepted by the new court for proceedings to continue its consideration, then after the restoration of jurisdiction such case should be continued by the court whose work was resumed. It is noted that during transfer of the case under jurisdiction it may also be addressed the issue of resumption of lost proceedings in connection with the loss of case materials. It is emphasized that in contrast to the goal of restoring lost “completed” court proceedings, which pursues individual procedural goals, the goal of restoring lost yet unfinished court proceedings will be to provide a real opportunity to exercise all components of the constitutional right to justice, including access to justice and the whole set of procedural rights that arose to the parties of the case in connection with the filing of a lawsuit and the opening of proceedings in a case reviewed by a court whose territorial jurisdiction has changed. It is substantiated the feasibility of introducing a mechanism for resuming lost but still unfinished court proceedings in order to ensure the continuation of consideration of a previously initiated case by a new court. Key words: civil proceedings, court, civil case, jurisdiction, lost proceedings, martial law, temporary occupation

The role of the principles of administrative justice in protecting the rights of foreigners and stateless persons

The article analyzes the principles of administrative justice in Ukraine, the main function of which is to promote domestic justice to ensure the realization of citizens' rights and freedoms, as well as the responsibilities imposed on participants in the trial. The existing concepts of principles existing in the special legal literature are considered in fragments. The important role of the principles of administrative justice in protecting the rights and legitimate interests of foreigners and stateless persons is noted. The principles of administrative justice established by the Constitution of Ukraine, the Law of Ukraine «On the Judiciary and the Status of Judges» and the Code of Administrative Procedure of Ukraine are analyzed. Attention is paid to the problematic aspects of ensuring the principle of using the native language in court proceedings and the principle of free legal aid in resolving cases in the administrative court.
 It is noted that at present, when considering cases in court with the participation of foreigners and stateless persons, the state does not fully ensure compliance with the principle of using the native language in court proceedings. This principle, along with the principle of free legal aid in resolving cases in the administrative court, are of paramount importance. However, the state is not yet able to fully ensure the implementation of these principles in litigation involving foreigners and stateless persons. Despite the existing problematic issues, during the consideration of an administrative case it is necessary to adhere to these principles, the implementation of which gives legitimacy to court decisions, and ignoring them leads to a violation of the rights of the individual to judicial protection.

РЕФОРМУВАННЯ СУДОВОЇ ВЛАДИ В УКРАЇНІ: ПРОБЛЕМИ ТА ПЕРСПЕКТИВИ

The article considers the following areas of reforming the judicial system of Ukraine: strengthening the independence of the judiciary from other branches of government and officials; establishing a reliable mechanism for bringing judges to justice for unjust decisions; establishing a balanced relationship between the judiciary and law enforcement; as well as improving the system of execution of court decisions with the formation of proposals for improving the judicial system of Ukraine. The current law “On the Judiciary and the Status of Judges” contains provisions on the possibility of prosecuting judges for corruption offenses and for violations of procedural law. The following conclusions and suggestions were made: The President of Ukraine and other branches of government must be completely removed from the formation of the judiciary. Judges should be responsible not only for crimes, but also for disciplinary action for unjust decisions, including those ones that do not comply with or contradict substantive law. For the Prosecutor’s Office to be impartial, it must be independent from the President and other authorities and formed on a competitive basis. The Attorney General in our legal system should be appointed by the parliamentary opposition, which will create a balance of interests in this area. The system of execution of court decisions in Ukraine is characterized by its inaction and insolvency. Creating an effective executive service is an important task of the state. Stimulation of efficiency of activity of state executors can be carried out by material stimulation, granting of certain essential bonuses depending on coefficient of efficiency of the executed court decisions. Key words. judicial system of Ukraine, judicial branch of government, judicial reform, courts, judges, court decisions

ЩОДО ДІЇ НОРМ ПРО РОЗМІРИ ПОСАДОВИХ ОКЛАДІВ ВИКЛАДАЧІВ, НАУКОВЦІВ ТА ПОСАДОВИХ ОСІБ ВИКОНАВЧОЇ І СУДОВОЇ ГІЛОК ВЛАДИ (У КОНТЕКСТІ РІВНОСТІ ЛЮДЕЙ ЗА СТАТТЕЮ 21 КОНСТИТУЦІЇ УКРАЇНИ)

The article’s purpose is to develop and propose a mechanism for partial implementation of the provisions of the legislation on financial support for the educational and scientific sphere and an increase in the prestige of scientific and pedagogical work. It is possible to achieve the article’s purpose through general research methods and special methods for studying legal phenomena and processes. The authors used the methods of analysis and synthesis, historical-legal and comparativelegal, formal-logical, and system-structural, etc. According to Article 21 of the Constitution of Ukraine, “all people are free and equal in their dignity and rights”. This does not mean that a lecturer, scientist, official, judge, military serviceman, or law enforcement officer should receive the same salary when performing tasks under martial law. This rule shows that the state should treat the economic rights of all people equally and treat them based on the same principles. The article presents analyzing the rules of part 2 of Article 61 Remuneration of Pedagogical and Scientific-Pedagogical Personnel of the Law of Ukraine “On Education”, paragraph I of part 2 of Article 36 Payment and Stimulation of Work (Training) of Scientists of the Law of Ukraine “On Scientific and Scientific-Technical Activities”, paragraph I of part 4 of Article 20 Money Support and Remuneration of Employees of the State Bureau of Investigation of the Law of Ukraine “On the State Bureau of Investigation”, part III of Article 135 Remuneration for Judges of the Law of Ukraine “On the Judiciary and the Status of Judges”, and other legal acts Ukraine. The provisions of the first two laws have been postponed until January 1 2023, and these provisions of the last two laws are being implemented. This indicates the existing discrimination of people on professional grounds in the state. It is proposed to amend the Law of Ukraine “On the State Budget of Ukraine for 2022” by the example of the rule from Part III of Article 64 Priority of Satisfaction of Creditors’ Claims of the Code of Ukraine on Bankruptcy Procedures: in the case of a budget deficit, the provisions of the legislation on the remuneration of employees of budgetary institutions, enterprises and organizations should be implemented for all such employees in proportion to the size of their salaries, depending on the available amount of budget expenditures for these items of expenditure. It is indicated that it is unacceptable for the legislator to postpone the deadline for the entry into force (January 1 2023) of the provisions of part 2 of Article 61 of the Law of Ukraine “On Education” and paragraph 1 of part 2 of Article 36 of the Law of Ukraine “On Scientific and Scientific-Technical Activities”. It is also proposed to correct the inappropriateness in paragraph I of part 2 of Article 36 Payment and Incentives for Work (Training) of Scientists of the Law of Ukraine “On Scientific and Scientific-Technical Activities” by a proposal to replace the last words of this rule “2020” by the phrase “calendar year”.

European standards of the judiciary and the status of judges

The main goal of Ukraine in the direction of integration into the European Union is the adaptation of Ukrainian legislation to the legislation of the European Union, the gradual adoption and implementation of regulations of Ukraine, developed taking into account the legislation of the European Union. The state policy of Ukraine on the adaptation of legislation is formed as an integral part of legal reform in Ukraine and is aimed at ensuring common approaches to rule-making, mandatory consideration of European Union legislation in rule-making, etc.
 The purpose of the article is to determine the content of the concept and system of European standards of the judiciary and the status of judges, which can be applied in the legislation of Ukraine, taking into account the peculiarities of the judicial system.
 The article deals with the legal nature of standards, so the following definition is formulated: a legal standard is a set of rules of conduct of entities in a particular area, established by regulations.
 When applying European standards in the field of the judiciary and the status of judges, the following must be taken into account: the standard must be regulated by international law and enshrined in Ukrainian law; may be mandatory or recommended; a single approach to the content of this standard will ensure the unity of case law.
 The article proposes a system of European standards of the judiciary and the status of judges, which consists of two groups: 1) generally accepted European standards, mandatory European standards; 2) special European standards in the field of the judiciary and the status of judges, those of a recommendatory nature.
 The importance of adhering to European standards in the field of the judiciary and the status of judges, as well as their impact on judicial practice in democracies, is difficult to overestimate. Their comprehensive implementation in the judiciary is relevant, as it ensures the democratic development of Ukraine and the rule of law. The existence of a unified approach to defining the content of the concept, the system of European standards, their enshrinement in international and European legal acts will ensure the unity of case law.

Unconditional grounds for challenges to judges in criminal proceedings of Ukraine and ECtHR standards

The proper resolution of applications for challenge (self-challenge) of a judge (investigative judge, court) is important for further criminal proceedings, as a judicial error in this matter may result in the violation of a person’s right to ‘lawful composition of the court’ or the right to defence, which is grounds for the cancellation of the court decision in the case and its referral to a new trial (Art. 412 of the CrPC), the violation of the principles of reasonable time terms, and the legal certainty (finality) of court decisions as part of the rule of law. In judicial practice, proceedings on challenges belong to separate common proceedings, which usually end with a refusal to satisfy the challenge. Lawyers assess the institute of criminal proceedings of Ukraine as ineffective. The purpose of the present study is to examine the grounds for challenge using the comparative method, so that views on their understanding are consistent in the professional environment and in judicial practice. The article outlines the list of grounds for challenge of a judge (investigative judge, court) under the CrPC of Ukraine and presents their classification as unconditional and evaluative, which is crucial for the selection of methods of proof. The correlation between the national classification of grounds for challenge and the criteria for determining the impartiality of the court in the case law of the European Court of Human Rights (ECtHR) is shown. The main focus is on the analysis of unconditional grounds for challenge according to the national classification, and their content is revealed in relation to the positions of the ECtHR. It is substantiated that the grounds for challenge are not only circumstances that cast doubt on the impartiality of a judge (investigating judge, court) found in para. 6 of Chapter 3 of the CrPC of Ukraine ‘Challenge’, but also circumstances that indicate that the judge does not meet the requirements of ‘legal composition of the court’ (Part 2 of Art. 412 of the CrPC) or ‘Court established by law’ (in the wording of part 1 of Art. 6 of the ECHR) found in various structural parts of the CrPC and in the Law ‘On the Judiciary and the Status of Judges’. It is substantiated that the wording of Part 1 of Art. 76 of the CrPC of 14 January 2021 is not consistent with the principle of access to justice by an impartial court (Art. 21 of the CrPC) since the right to an impartial tribunal (part 1 of Art. 6 of the ECHR) creates a conflict with Chapter 18 of the CrPC on the procedure for election, change of precautionary measures, does not meet the requirements of legal certainty, and may be grounds for complaints to the ECtHR.

Judicial Specialisation Through the Prism of the Principle of a “Natural Court”: A Comparative Analysis

Background: In the current conditions of the intensive development of public relations and the complication of their legal regulation, more and more states are turning to the specialisation of the judiciary and judicial exercise. Thus, in Ukraine, it is established at the constitutional level that the judicial system in Ukraine is built on the principles of territoriality and specialisation, and higher specialised courts may operate in accordance with the law. In addition, the Constitution of Ukraine states that the establishment of extraordinary and special courts is not allowed. Art. 31 of the Law of Ukraine ‘On the Judiciary and the Status of Judges’ (2016) states that in the judicial system, there are higher specialised courts, such as courts of first instance for certain categories of cases. This category of court now includes the High Court of Intellectual Property and the High Anti-Corruption Court. However, there has been a heated debate in Ukrainian political circles about the constitutionality of the anti-corruption court, and accordingly, the subject of the constitutional petition questioned the number of provisions of the Law on the High Anti-Corruption Court and appealed to the Constitutional Court to declare the law unconstitutional. The Constitutional Court of Ukraine has initiated constitutional proceedings on this issue. Acquaintance 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 Art. 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the High Anti- Corruption Court. Methods: To find an objective answer to the existing conflict, it was necessary to clarify the legal nature of judicial specialisation and identify key features of the ‘special court’. To solve this problem, the authors turned to the theoretical and applied provisions of the principle of a natural court, which became the basis of the subject of this work. Results and Conclusions: In conclusion, this article argues for the idea of the unity and integrity of the judiciary. Common goals and tasks are assigned to the courts, regardless of their place in the judiciary and jurisdictional specialisation. Therefore, courts that are endowed with special goals and objectives, different from those of general courts, were assessed as special courts.

PARTICIPATION OF STATE AUTHORITIES AND JUDICIAL SELF-GOVERNMENT IN THE LEGISLATIVE PROCEEDING: INTERNATIONAL EXPERIENCE

It has been established that the implementation of constitutional reform in Ukraine leads to the formation of scientific proposals to increase the number of subjects of legislative initiative. In particular, it has been offered to include judicial authorities to such subjects. Analysis of European practice demonstrates that this classification is uncommon in order to avoid politicization of the judicial authorities’ activities and to ensure their independence. It has been clarified that the Law of Ukraine “On the High Council of Justice” enshrined the provision of mandatory advisory opinions on draft laws regarding the issues of the establishment, reorganization or liquidation of courts, the judiciary and the status of judges, summarizing the proposals of courts, agencies and institutions of justice related to the legislation on their status and functioning, judicial system and the status of judges. Agencies similar to the High Council of Justice under the legislation of most countries, mainly perform the functions for ensuring the independence of justice, management of the judiciary. It has been determined that the High Council of Justice is now actively involved in the legislative proceeding by providing advisory opinions on draft laws that are binding for parliamentary revision. However, they are usually not supported in the Parliament. Taking into account international experience in regard to the participation of similar agencies in the legislative proceeding with the High Council of Justice, it has been emphasized that the High Council of Justice activity related to the legislative proceeding can be ensured by involving it as an initiator of a draft law initiative (i.e. submitting suggestions to the subject of legislative initiative on the establishment, reorganization or liquidation of courts, judiciary and the status of judges), active participation in the expert examination of draft laws on the mentioned i ssues. To accomplish this the author has offered to ensure the consolidation of relevant provisions in the current legislation (for example, to specify the provisions of the Procedure Rules of the Verkhovna Rada of Ukraine).

РЕАЛІЗАЦІЯ ПРАВА НА СУДОВИЙ ЗАХИСТ В УМОВАХ ВОЄННОГО СТАНУ В УКРАЇНІ

The article is devoted to the issue of exercising the right to judicial protection in martial law in Ukraine. This question is revealed through the prism of finding out how legal it is to restrict rights during emergencies. It is emphasized that any restriction on human rights and freedoms must meet the requirements of legality, necessity, expediency and proportionality of the aim pursued. The provisions of international acts that establish the permissible limit in the restrictions of rights and freedoms, in particular those provisions relating to the right to judicial protection, are studied. The provisions of the Constitution of Ukraine, Ukrainian legislation and the European Convention on Human Rights on the scope of guarantees provided by them under different conditions are analyzed. The possibility of including the right to a fair trial in the list of guarantees in international human rightsinstruments assuch, which is notsubject to restrictions under any circumstances, is considered separately. The possibility of exercising the right to judicial protection is especially important during the introduction of special administrative and legal regimes, when public authorities are given the right to additionally apply administrative measures aimed at restricting rights and freedoms to ensure security in the state. Different positions are considered on the need for active judicial control in the context of empowerment of the executive branch, in order to prevent possible abuse or imposition of excessive burdens. The article examines the current state of the judicial system and the precautionary measures taken to prevent its suspension, including amendments to the Law of Ukraine "On the Judiciary and the Status of Judges", changing the territorial jurisdiction of cases. The potential difficulties that may await the judiciary due to such changes have been analyzed. The importance of distinguishing the categories of cases to be considered as a matter of priority was emphasized.

ПРИНЦИП СУДОВОЇ СПЕЦІАЛІЗАЦІЇ ЧЕРЕЗ ПРИЗМУ КОНЦЕПТУ ПРИРОДНОГО СУДУ

In the current conditions of intensive development of public relations and the complication of their legal regulation more and more states are turning to the institute of specialization of the judiciary organization and judiciary exercise. Thus, in Ukraine, it is established at the constitutional level that the judicial system of Ukraine is built on the principles of territoriality and specialization, additionally, higher specialized courts may operate in accordance with the law. Moreover, the Constitution of Ukraine states that the establishment of extraordinary and special courts is not allowed. In Art. 31 of the Law of Ukraine "On the Judiciary and the Status of Judges" (2016) it is stated that in the judicial system the higher specialized courts function as first instance courts for certain categories of cases. This category of courts currently includes the High Court of Intellectual Property and the High Anti-Corruption Court. However, a fierce debate evolved in Ukrainian political circles concerning the constitutionality of the anti-corruption court, and, accordingly, the subject of the constitutional petition questioned the number of provisions of the Law on the High Anti-Corruption Court and referred to the Constitutional Court to declare the law unconstitutional. The Constitutional Court of Ukraine has initiated the constitutional proceedings on this issue. The 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 High Anti-Corruption Court. In order to find an objective answer to the existing conflict, there appeared a necessity to clarify the legal nature of judicial specialization and to identify key features of the "special court". To solve such an applied issue, the author turned to the theoretical and applied provisions of the principle of natural court, that provided the grounds for the subject of this work.