Unlawful Decisions Research Articles

ЄВРОПЕЙСЬКІ МОДЕЛІ АДМІНІСТРАТИВНОЇ ЮСТИЦІЇ ІЗ ЗАХИСТУ ПРАВ І СВОБОД ОСОБИ

The article deals with European models of administrative justice, which aim to protect the rights and freedoms of individuals in their relationship with public administration. The author provides the notion of administrative justice as a system of authorized judicial and quasi-judicial bodies to resolve and consider administrative disputes by a specially established procedure regarding the legality of decisions, actions, or inactions of public authorities that violate the rights, freedoms, and interests of private individuals in the field of public law relations. The article provides information on different approaches to the classification of models of administrative justice. The study focuses on two main systems: the continental model, typical to the countries like France and Germany, as well as the Anglo-Saxon model, found in the UK and the USA. Every European model of administrative justice has its own historical background, legal traditions, and legislative norms. The author outlines the pros and cons of each model in their purpose, protecting individuals' rights and freedoms against unlawful decisions, actions, or inactions by public administration. Keywords: administrative justice, European models, rights and freedoms, public administration, tribunals, administrative courts

Legislative regulation of criminal liability of judges for passing an unjust or illegal judgement

The article provides an analysis of the legislative regulation of criminal prosecution of judges for making a deliberately unlawful decision or in violation of procedural law. International standards on of criminal liability of judges and judicial immunity, as well as judicial decision, and generalized approaches of legislators of other states to criminalization of rendering an unjust, illegal and/or unreasonable or biased judgement, and for comparison and other acts related to the performance of judicial duties. The article examines the provisions of the Criminal Procedure Code of Ukraine regarding the legality and validity of a court decision. A court decision is based on the principles of the rule of law, it must be made by a court in accordance with the substantive law and in compliance with the procedural law, and must meet the objectives of the relevant legal proceedings, but if it is made on the basis of insufficiently and comprehensively clarified circumstances, then it is an unreasonable court decision that is not deliberately unjust.
 The study was also based on the case law of national and international courts. The issue of interpretation of “criminal liability” was based on the study of the practice of the Constitutional Court of Ukraine. Compliance with the procedural procedure for bringing judges to criminal liability contributes to the observance of guarantees of their inviolability and independence, plays an important role in the resolution of criminal proceedings on the merits and is a prerequisite for observance of the general principles of criminal proceedings and the delivery of a lawful, reasoned and motivated court decision.
 The article highlights that the concepts of “injustice”, “illegality” and “unreasonableness” are not synonymous and have different procedural content.

Environmental Challenges to UK Public Authorities: The Impact of the Judicial Review and Courts Act 2022

Abstract The UK’s Judicial Review and Courts Act 2022 introduced into statute certain remedies for use where unlawfulness had been found on the part of a public authority or decision-maker carrying out public functions. These remedies allow for such unlawfulness to be deemed lawful, including where the courts consider that remedying an unlawful decision would negatively impact third parties or good administration. When this legislation was under consideration in the UK’s Parliament, there was considerable concern from a number of environmental organisations that such remedies would prohibit the obtaining of redress where environmental harm had occurred. This analysis examines the nature of the new remedies introduced by the Act, how domestic courts may use them, and how those involved in environmental or climate litigation against public authorities might adapt their approach in light of these new statutory powers.

The Investigator’s Actions to Compensate for the Harm Caused by the Crime in Determining the Form of Terminating the Preliminary Investigation

Investigations into the termination of preliminary criminal investigations traditionally encompass two forms: closing a criminal case and concluding the preliminary investigation through an indictment for prosecutor transfer. Prior research has examined these processes, emphasizing the importance of procedural correctness and legal compliance. However, existing studies fall short in elucidating the investigator's actions concerning harm compensation during preliminary investigation termination. The purpose of this study was to explore the investigator's actions to ensure compensation for harm caused by a criminally punishable act during the termination of the preliminary investigation. The authors employed a holistic approach, including the general scientific method, systematic analysis, synthesis, and comparative legal analysis. The results revealed that regardless of the form of termination, measures for compensating victims of criminal acts must be taken. These include appealing against unlawful decisions, and preparing claims for rights protection and compensation in civil proceedings. Compensation for harm remains a priority throughout pre-trial proceedings, even after termination.

The efficiency of the interim relief institution by suspending an individual or regulatory act

The article analyses the provisions of the Administrative Procedure Code of Ukraine on interim relief through suspension of a regulatory legal act and examines the Supreme Court’s case law with regard to the efficiency of application of this administrative procedure institution. In fulfilling the main tasks of administrative proceedings, the institution of interim relief is of great importance, as it allows the plaintiff to protect his or her rights and interests at the stage of applying to an administrative court by suspending the effect of an unlawful decision of a public authority. In the course of the court practice study, a gap in the current legislation and law enforcement practice has been identified, namely: when an interim relief order is cancelled by an appellate court, the authority believes that during the time its decision was suspended, such a legal act gives rise to rights and obligations for the parties. However, such a position of the authority is inconsistent with the provisions of the Constitution of Ukraine and the decision of the Constitutional Court of Ukraine, but is applied by the Supreme Court. To address this problem, it has been proposed to amend the Code of Administrative Procedure of Ukraine to provide that appellate and cassation courts, when issuing a decision to set aside a ruling on interim relief by suspending the effect of a regulatory act, should determine that the court ruling loses legal force from the date of the court's decision. In this case, the legislation should clearly state that during the time when the court of first instance ruling was in force, the effect of the legal act was suspended and did not give rise to any rights and obligations for the parties to the litigation, and in case the court ruling on interim relief is cancelled, the effect of the legal act does not have retroactive effect. The institution of interim relief should be effective and protect the violated rights of individuals.

Naczelnicy powiatów w Królestwie Polskim w opiniach funkcjonariuszy żandarmerii od 1867 r. do lat osiemdziesiątych XIX w.

Heads of counties in the Kingdom of Poland in the opinion of police officers from 1867 till the 1880s The article is devoted to the activity of individuals serving as heads of counties (poviats) in the Kingdom of Poland between 1867 and the late 1870s. It features assessments of the work of all officials holding the position in 1873 and some from 1874 carried out by officers of the Warsaw Police District on the basis of overt and undercover observations in those years. The assessment reports deal not only with the officials’ professional activities, but also their family life and political attitudes, and point to various factors and phenomena contributing to the shortcomings in their work. In addition, the reports feature a lot of information provided by police officers and concerning unlawful decisions and actions of the county heads. They also mention the scale of the phenomenon and the response of the central and provincial authorities of the Kingdom to various abuses of the heads of this administrative structure. Also featured in the article is information from employees working in the police department about irregularities in the implementation of the Russian policy in the Kingdom of Poland by several of them in their professional activities, as well as about cases of inappropriate cooperation between them and their associates, especially those responsible for police and military matters. In addition, the author of the article demonstrates — from the point of view of the police — the reasons why the heads of counties did not cooperate well with the police, and presents their demands and proposals for improving the work of the county heads. The last two topics addressed in the article concern the response of the authorities of the Kingdom to various lapses and irregularities in the work of county heads and the measures taken by the Warsaw governors to improve the county heads’ professional activities, strengthen their position within the administrative system and increase their remuneration and concessions.

IMPORTANCE OF IMPLEMENTATION AND ENFORCEMENT OF HUMAN RIGHTS IN INDONESIA NOW

There are still many human rights violations in Indonesia, starting from the lightest to the most serious in the implementation of human rights, and there is no mechanism for handling these human rights. From this research using literature review which aims to learn from existing references to understand the meaning of human rights and apply the values of Pancasila which contain the values of civilized human principles because they are the enforcement of human rights in civic life so that students can appreciate it more. the rights of everyone by not violating human rights. This human right has the power of fundamental or fundamental power. Currently, there are violation cases that have occurred because many people still do not understand the violation cases so that it is easier for people to violate the rights of others. Protection and maintenance of human rights within a national institutional framework is established in an institution such as the Indonesian Child Protection Commission (KPAI), the National Commission for Women (Komnas Perempuan), the National Commission on Human Rights (Komnas HAM), and the Truth and Reconciliation Commission (KKR), was dissolved because the KKR might not be responsible and did not carry out its function properly. Currently, human rights law enforcement is carried out specifically through the judiciary, whose Human Rights Courts target serious human rights courts, and which have the authority to test the 1945 Constitution, namely the constitutional court. These rights are largely upheld by the Constitutional Court, and many unlawful decisions have been made. This decision has strategic value, so that it can protect the human rights of citizens.

Liability of the Holder of a Public Office in an Independent Body for Unlawful Decisions, Using the Example of the Czech Television Council

The aim of this paper is to analyse the appropriateness of the legislative regulation of the protection of a member of an independent administrative body exercising public oversight over a certain agenda or institution in the event that it makes an illegal or factually incorrect decision, in terms of the practical problems that this regulation raises. Put simply, it is a question of who is watching the watchdog. If the gatekeeper is complicit in an illegal decision or maladministration, who will drive him or her to seek justice? And is the protection of the holder of a public office sufficient? The research will be conducted on an illegal decision of the Czech Television Council that has been subject to judicial review by the Czech administrative courts.

PARTICIPATION OF STATE AUTHORITIES IN DELICT OBLIGATION RELATIONS: PROBLEMS AND SOLUTIONS

The article covered the formation of norms on compensation for damage caused by state bodies, the participation of state bodies in delict relations as a "state institution" as well as a "legal entity" and the importance of this. Also, the specific aspects of delict responsibility of public institutions were explained. It was substantiated in which cases the obligation of state bodies to compensate for damage should be paid from the state budget and in which cases at the expense of their own extra-budgetary funds. The opinions of Civilist scientists expressed by officials of state bodies on the issue of compensation for damages caused by unlawful decisions, illegal actions (inaction) were analyzed. From foreign countries, for example, Germany, England, Turkey, Ukraine, the legislation of the Russian Federation and a number of CIS countries has been studied. In our national legislation, proposals and recommendations have been developed to improve the mechanism of compensation for damage caused by state bodies. In the process of exercising the powers of power by state bodies and their officials, it was scientifically substantiated that it is necessary to establish a special fund of the state in order to ensure timely and full compensation for damage to a citizen and legal entity.

Уголовно-правовые пределы выражения своего мнения

In the age of the Internet, the question of defining the limits of expression in the media, in particular on the Internet, is particularly relevant. With the advent of the digital era, more and more attention is paid to crimes occurring not in reality, but in the network, and extremism becomes a phenomenon that steadily pops up in the news feeds. High-profile cases in which law enforcement officials are trying to prosecute for inciting hatred for images, reps and likes demonstrate the need to distinguish between expression and extremism. The main difficult issues of estimation of such crimes are considered: the vague framework of the main «extremist» clauses (280 and 282 of the Criminal Code of the Russian Federation), used as a pretext for restricting the activity of citizens by law enforcement agencies, the actions of which sometimes do not correspond to a potential threat; the difficulties with the definition of extremism itself and, as a consequence, the possibility to place under its concept any material; the subjective nature of linguistic expertise, in which the views of experts may be the opposite. It was noted that, as a result, an unlawful decision can significantly complicate a person’s life, since recognition of the activities as extremist brings a number of additional restrictions: economic, political, labour. In this regard, it is argued that it is necessary to distinguish between mere expression of opinion and actual incitement to hatred. However, it is also noted that a clear legislative distinction is questionable against the background of precedents that have already occurred. It concluded that criminal prosecution for opinions on the Internet should be the exception, not the rule.

De nuevo sobre la responsabilidad patrimonial de la Administración por actos ilegales. A favor de la doctrina del margen de tolerancia

According to the so-called doctrine of the margin of tolerance, public administrationsare not liable for damages caused by their unlawful decisions when these arethe result of a reasonable and reasoned application of the law, i.e., when the relevantpublic administration acted with due care when issuing them. This paper analyzeswhy and to what extent this doctrine is justified, especially in view of the severe criticismit has received in recent years.

Crimes against Justice under the Legislation of the States of the European Union

The countries of the European Union (EU) are united, but above all, each country is autonomous. EU Member States have different legislation on criminal offences. The EU authorities have already suggested the possibility of creating a single system for regulating legal provisions on criminal offences. Studying and comparing the legal systems and responsibilities for crimes against justice in individual countries will facilitate the analysis of the differences in the legislation of the EU countries. The purpose of this paper is to investigate crimes against justice in accordance with the laws of each individual European country. The paper considers the composition of such crimes, as well as the responsibility to which offenders can be brought in case of such crimes. The study uses the methods of analysis and synthesis, analyses legal provisions. General methods of scientific cognition used in this study include dialectical, historical, the Aristotelian method, method of systematic data analysis, formal legal method, method of legal modelling and comparative legal method. The study investigates the legal framework of European countries, in particular criminal codes and laws. This study systematises and groups the received information and data on criminal liability of judges for unlawful decisions. The European practices in punishing those who do not comply with court rulings and judgments are also analysed. A study of the legal system in individual EU countries will help distinguish between positive and negative aspects in the legislation. In addition, this study allows to consider and analyse the most effective laws, provisions, and principles that can be implemented in the current legal system of different countries of the world.

The Rebirth of the Dictatorship: its Charm and Disappointment

The article focuses on the question whether the dictatorial populist governments, today appealing to multiple sectors of citizens, have really the power to solve social problems that the democratic rule of law governments seem unable to manage and solve. It describes the main characteristics of populisms of dictatorial nature and, particularly, emphasizes their decision of making exception of laws and of citizen’s rights and liberties as well, in order to rebuild the rule of law and the social policies effectiveness of the democratic regime and reinstate the social order. Since the populist authoritarian position claims to be more effective than the democratic government, producing the social results demanded by people, the question of its effectiveness is crucial. In societies crushed by any sort of needs and privations, the populism is likely to be an appraised and desirable government, but the negative effects of its unlawful decisions, subjection of public powers, harassment of dissenters and foreseeable insufficiency of resources to perform a solution of the needs, poverty and inequalities make the citizens to reassess the tradeoff they made between their liberty and submissiveness to the populist leader as long as getting a relief of its needs. The collapse of the populist authoritarian governance is its foreseeable ineffectiveness, linked to the resurgence of liberties.

MA’MURIY SUD ISH YURITUVINING О‘ZIGA XOS XUSUSIYATLARI VA UNING TASHKILIY-HUQUQIY ASOSLARI

In this article on the basis analisys of the legal norms Code of administrative proceedings provides author’s definition of the concept of administrative proceedings. Also, based on realized reform, views of legal scholars in this direction and essence of administrative proceedings enumerate specific features and organizational-legal basics of this legal institution. In particular, the main goal and task of administrative proceedings is to protect the rights, freedoms and legal interests of private persons from unlawful decisions, public authorities and organizations, actions (inaction) of public officers. In addition, it is noted that there is a separate composition of subjects in administrative proceedings – private persons and persons of public law. It is also indicated that in administrative proceedings administrative cases are considered in accordance with a separate procedural order and in accordance with the basic rules and principles of justice. As the organizational-legal basics of administrative proceedings it is necessary to understand the administrative courts that are authorized to carry out these activities, as well as legal documents and other comprehensive measures governing their organization, powers and activities.

Die Präventionswirkung des Staatshaftungsrechts

This contribution addresses the question of whether and to what extent state liability law has a preventive effect. The question focuses on whether the (mere) existence of claims under state liability law creates an incentive to prevent unlawful actions against citizens. Cases in which an incentive is created for an individual public official (individual preventive effect) are differentiated from those in which an incentive is created for the state as an organisation (organisational preventive effect). Based on an economic analysis of law, the article demonstrates – in abstract terms and detached from concrete bases for claims – that both effects can occur: On the one hand, liability claims can prevent public officials from deliberately making unlawful decisions and as well as increase the diligence and so the probability of a lawful decision. On the other hand, liability claims can influence an organisation in the state sector in such a way that those responsible strive to ensure lawful decisions by means of the improved structuring and scrutiny of the decision-making process. To establish the specific preventive effect of an individual claim under (German) state liability law, it is necessary to consider its specific structure. The allocation of liability and the possibility of an internal recourse determine whether the preventive effect achieved is (more) an individual or an organisational one. The decisive criteria for the intensity of the preventive effect include the type, extent, degree of collectivisation, and limitations of the liability claim as well as its enforceability. Regardless of the necessary differentiation, it may be concluded that the claims of German state liability law emphasise an organisational preventive effect. While they implement the preventive effect to some extent overall, they do not fully do so. There are viable reasons for this restraint, considering the at times contrary objective of an efficiently acting administration. As a result, as this contribution concludes, from a legal policy perspective, a preventive effect also depends on considering additions and alternatives to state liability law.

Judicial Review and the Digital Welfare State in the UK and Australia

This article focuses on a central aspect of the digital welfare state: automated social security systems. Two recent judicial reviews in the UK—Johnson and Pantellerisco—invalidated elements of the UK Government’s automated system for calculating universal credit payments. Similar issues came before the Federal Court of Australia in late 2019 in Amato, a successful judicial review of the Australian Government’s ‘robodebt’ programme. These decisions starkly illustrate how automated social security systems can lead to poor and unlawful decisions, particularly where government relies solely on data that is ill-suited for the task at hand, and how administrative law can be a powerful tool for reining in the worst excesses of these systems.

СУЧАСНИЙ СТАН ПРАВОВОГО РЕГУЛЮВАННЯ БДЖІЛЬНИЦТВА В УКРАЇНІ

Стаття присвячена розгляду сучасного стану правового регулювання бджільництва. Аналіз чинного законодавства, практики діяльності регуляторних органів та наукових досліджень показав відсутність єдиної спеціалізованої системи державного управління в галузі бджільництва й недостатню ефективність державного контролю. Здійснена спроба привернути увагу до відсутності органів (посадових осіб) уповноважених розглядати справи про адміністративні правопорушення в галузі бджільництва; невизначеності підвідомчості справ про адміністративні правопорушення в галузі бджільництва; відсутності правових норм щодо визначення осіб, які мають право складати протоколи про адміністративні правопорушення в галузі бджільництва. Запропоновано включити до положень Державних будівельних норм України наступну вимогу: «На ділянці пасіки вулики мають бути розміщені таким чином: на відстані не менш ніж 3 м від сусідніх садових (дачних) ділянок льотками, які направлені від них; на відстані не менше ніж 5 м від межі ділянки пасіки з боку вулиці».

ВІДШКОДУВАННЯ МОРАЛЬНОЇ ШКОДИ, ЗАВДАНОЇ НЕЗАКОННИМИ РІШЕННЯМ, ДІЯМИ (БЕЗДІЯЛЬНІСТЮ) СУДУ (СУДДІВ)

Автором здійснено спробу обґрунтувати запровадження в цивільному законодавстві презумпції завдання моральної шкоди особі, яка постраждала від незаконного рішення, дії (бездіяльності) суду (суддів). Такий підхід спрямований на зміцнення базових цінностей демократичного суспільства – відповідальності держави й удосконалення інституту захисту прав, свобод та інтересів особи, розширення регулятивного потенціалу цивільно-правової відповідальності як різновиду юридичної відповідальності. Об’єктивну необхідність потрібно шукати в площині значення юридичної відповідальності в суспільстві, її пов’язаності з правами та свободами людини.

The Definition And Special Features Of The Considering The Unlawful Acts Of The Tax Authorities Invalid

The article discusses the special features of considering the unlawful acts adopted by official of tax authorities invalid by courts and makes distinction between different ways (methods) of protection of the rights of the business entities against unlawful decisions of tax authorities

Ways of committing crime in tourist industry

It has been emphasized that, in connection with the development of tourism, cases of offenses related to tourism activity or committed under the guise of tourism have increased. At the same time, criminal activities in the field of tourist activity can be committed both by the real subjects of tourist activity, as well as by fictitious enterprises, as well as by persons who accompany the agreements on tourist services. Without knowledge of law enforcement agencies about the main means by which crimes of this kind are committed, success is not always possible, since investigation under such conditions is carried out in conditions of information failure. The article deals with research of scientists' views on the concept and structural elements of ways of committing a crime, considering the forensically significant features of ways of committing crimes in the sphere of tourist activity. The author proves that the ways of committing crimes in the sphere of tourist activity have a complete structure and consist of actions for preparation, direct commission and concealment aimed at achieving a single result. The author has emphasized that, in order to create the conditions necessary for the smooth open-ing of the tourist business, the subjects of tourist activity often go against the law, violating a number of criminal laws, involving in this chain the lawlessness of officials and persons who provide public services, which capable of making unlawful decisions and facilitating unlawful acts. The fttention has been paid to description of ways, to find out their peculiarities, to determine the factors that influence their formation, on the basis of which they are systematized. All types of criminal activities perpetrated in the sphere of tourist activity are divided into three groups: 1) methods of action related to creating the conditions necessary for the smooth opening of the tourist business; 2) unlawful actions related to the pursuit of the successful operation of tourism activities and the acquisition of surplus profits; 3) actions taken under the guise of tourism.