Analìtično-porìvnâlʹne pravoznavstvo最新文献

{"title":"Protection of personal data in civil legal relations: national legal provision through the prism of the practice of the European Court of Human Rights","authors":"O. Tymoshenko","doi":"10.24144/2788-6018.2023.04.27","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.27","url":null,"abstract":"At the beginning of the 21st century, both in Ukraine and throughout the civilized world, the development of information technologies significantly intensified, there was a transformation of society’s ideas about the value of information, and the degree of state intervention in this sphere changed. The intensity of transmission and processing of information due to continuous technical development has influenced the growth of needs, possibilities of transmission and processing of personal data. More and more spheres of social life require obtaining information about the person from the person in both an overt and unspoken way, and new technologies expand the actual possibilities of satisfying this need. In this regard, issues of personal data protection, the state of its legal protection, the practice of such protection in Ukraine, taking into account the experience of the EU countries, the practice of the ECHR, are becoming relevant.The national legal provision of personal data protection in Ukraine in view of the practice of the European Court of Human Rights was researched in this article, as well as the features of the implementation of personal data protection in modern conditions of martial law. The hierarchy of sources of personal data protection regulation and their presence at all levels of legislation is emphasized. There was characterized the constitutional level of legal protection of personal data, represented by a set of norms of the Constitution (Articles 3, 17, 32, 34, 55, etc.) and decisions of the Constitutional Court of Ukraine as acts of negative law-making in the field of personal data protection. The regulation of personal data protection is characterized by some norms of the Civil Code of Ukraine (Articles 286, 301, 301, etc.) A review of the legal protection of personal data by a special law and other legislative acts, as well as at the sub-legal level, was carried out. The international legal mechanism of personal data protection is briefly described. The features of personal data protection in the conditions of martial law in Ukraine were determined. The description of the practice of the ECtHR as an element of legal protection of personal data is given and the key positions of the ECtHR in this area are highlighted in the cases «Leander v. Sweden», «Rotaru V. Romania», «Catt v. United Kingdom», «S. & Marper v. United Kingdom», GSB v. Switzerland» etc. The main areas of improvement of the existing legal protection of personal data in Ukraine were determined: improvement of the legal definition of the concept of «personal data» in accordance with the General Data Protection Regulation,; consolidation of the principles of personal data protection at the level of a separate norm in the special legislative act; establishment of special requirements for protection, processing of “sensitive data”; regulating the collection of cookies that contain personal data, etc.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Specialized subjects of criminal offence prevention in the field of official activities and professional activities related to provision of public services","authors":"S.R. Tagiev, S.V. Ivashko","doi":"10.24144/2788-6018.2023.04.65","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.65","url":null,"abstract":"The article presents scientific views of criminology scientists on the system of subjects of criminal offence prevention, defines the system of subjects of criminal offence prevention in the field of official activities and professional activities related to provision of public services, and gives its main characteristics, analysis of the content of activities and functional powers of subjects of prevention vested with special powers in the field studied.The system of specialized subjects of criminal offense prevention in the field of official activities and professional activities related to provision of public services is regarded as a set of legal entities and individuals, state and public institutions united by a common goal and scope of tasks aimed at preventing socially dangerous acts, ensuring implementation of the state policy, organization and coordination of preventive activities, performance of functions regarding prevention, direct detection and cession of encroachments, restoration of the rights of victims, as well as elimination of criminogenic phenomena and processes in a certain area of public relations.The analysis of the legislative and regulatory acts regulating activities of relevant public institutions at the special preventive criminology level has resulted in the classification of subjects of preventive activity, outlining the normative and legal basis of activity, giving characteristics of the functional component and the scope of tasks of such subjects.Attention is focused on the fact that despite existing legislative acts and bylaws defining the crime reduction strategy and the anti-corruption strategy, corruption-related crimes still remain at quite high level.Based on the results of the study, the authors come to the general theoretical conclusion about the urgency of developing and adopting a comprehensive legislative act that will determine the grounds, principles, tasks of preventive activities, the system and legal status of subjects of such activities (their rights and obligations), guarantees for their activities, the peculiarities of preventive measures implementation (conditions, procedure, terms, etc.), the responsibility for violation of the requirements of this legislative act, which will create prerequisites for both reducing procedural violations and improving the performance of law enforcement institutions.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International legal mechanism for the protection of the environmental rights of indigenous peoples","authors":"I. Voyevodin","doi":"10.24144/2788-6018.2023.04.89","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.89","url":null,"abstract":"The article explores the peculiarities of the international legal mechanism for the protection of the environmental rights of indigenous peoples at the international level. Attention is focused on the special vulnerability of indigenous peoples and communities to environmental degradation and climate change due to their close connection with the environment, land and natural resources. A number of universal international legal acts that directly relate to the protection of the environmental rights of indigenous peoples are analyzed, such as the ILO Convention No. 107 on Indigenous and Tribal Populations of 1957, the ILO Convention No. 169 on Indigenous and Tribal Peoples of 1989, the UN Declaration on the Rights of Indigenous Peoples of 2007, etc. The activities of such bodies and special procedures of the UN as the Human Rights Committee, the International Law Commission, the Permanent Forum on Indigenous Issues, the Special Rapporteur on Human Rights and the Environment, the Special Rapporteur on the Rights of Indigenous Peoples regarding the promotion and protection of the rights of indigenous peoples in the environmental sphere are highlighted.Attention is paid to regional systems of protection of environmental rights of indigenous peoples. The provisions of a number of relevant regional international legal acts were analyzed: the American Convention on Human Rights of 1969, the Resolution of the Organization of American States “On Special Protection for Indigenous Populations. Action to Combat Racism and Racial Discrimination” of 1972, the American Declaration on the Rights of Indigenous Peoples of 2016, the Inter-American Commission on Human Rights Resolution No. 3/21 “Climate Emergency: Scope of Inter-American human rights obligations” of 2021, the African Charter on Human and Peoples’ Rights of 1981, the Resolution “On the Rights of Indigenous Peoples’ Communities in Africa” of 2000, the Resolution of the Parliamentary Assembly of the Council of Europe 2400 “Combating inequalities in the right to a safe, healthy and clean environment” of 2021, etc. The features of the institutional mechanism are characterized and the relevant precedent practice of the African and Inter-American human rights protection systems regarding the safeguarding of violated environmental rights of indigenous peoples is highlighted. In accordance with the problems specified, appropriate conclusions and recommendations were made.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The main elements of bar self-government, as one of the types of regulation of the bar in Ukraine","authors":"I.I. Gabani","doi":"10.24144/2788-6018.2023.04.84","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.84","url":null,"abstract":"The article is devoted to the consideration of the main elements of the self-government of the bar in the context of the regulation of the bar in Ukraine. Lawyer self-governance is an important mechanism that allows lawyers to independently solve issues of organization and regulation of their professional activities. Key elements of bar self-governance include bar self-governance bodies, bar councils, bar assemblies, bar disciplinary commissions, and the collegial decision-making process.Bar self-governing bodies are key structures responsible for the regulation and supervision of legal practice. Bar councils perform important functions, providing representation and protection of the interests of lawyers, as well as considering ethical issues and regulating disciplinary cases. Bar meetings are a forum for discussing important issues of the bar community and solving collegial problems.An important aspect of lawyer self-governance is the self-regulation of lawyer activity, which ensures compliance with professional ethical standards and ensures the quality of legal aid.Bar self-government is an important element of the regulation of the bar in Ukraine. The effective work of the self-governing bodies of the bar, such as councils, meetings and commissions, contributes to ensuring professional ethics, self-regulation and the quality of the bar’s activity. An important component of bar self-governance is the adoption of collegial decisions that reflect the opinion and interests of the bar community.However, there are certain challenges and aspects that require attention in the context of self-government of lawyers in Ukraine. For example, the problem may be the issue of financing the legal profession and attracting budget funds. The transfer of powers to administer the system of free legal aid to the self-government of the bar may affect its financial independence and violate the legal status of the bar as an independent self-governing institution.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Direct objects of illegal obstruction with the organization or conduct of assemblies, meetings, marches and demonstrations (article 340 of the Criminal Code of Ukraine)","authors":"O. Khramtsov","doi":"10.24144/2788-6018.2023.04.70","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.70","url":null,"abstract":"The article examines the specifics of the direct objects of the criminal offense provided for in Art. 340 of the Criminal Code of Ukraine “Illegal obstruction with the organization or conduct of assemblies, meetings, marches and demonstrations”.The author adheres to the approach of recognizing social relations as the object of criminal offenses. He does not support the position regarding the optional definition of the object of the criminal offense.It is emphasized that the composition of the criminal offense provided for in Art. 340 of the Criminal Code of Ukraine in the system of the Special Part of the Criminal Code does not correspond to its generic object. It is proposed to place this norm in Chapter V of the Special Part of the legislation on criminal responsibility. Social relations that ensure election, labor and other personal rights and freedoms of a person and a citizen should be recognized as the generic object of these offenses. The right protected by Art. 340 of the Criminal Code of Ukraine is a political right to carry out legal activities of organizing or holding of assemblies, meetings, marches and demonstrations, which is guaranteed by the Constitution of Ukraine.An additional direct object of this criminal offense is also investigated, which, in the opinion of the author, are social relations that arise in connection with the protection of the physical integrity of a person who suffers as a result of the use of physical violence against the victim. Its author’s definition is given.It is proposed to recognize mental violence as a method of committing this criminal offense, which, in turn, gives grounds to recognize social relations that arise in connection with the protection of the mental integrity of a person as an additional optional object. The author’s definition of such an object of a criminal offense is given.It is noted that mental violence is not limited to various threats. It is pointed out that the use of the term “mental violence” allows to take into account other types of mental influences, which can be specific manifestations of this method of committing a criminal offense, which is provided for in Art. 340 of the Criminal Code of Ukraine.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal mechanisms for the restoration of the right to peaceful enjoyment of possessions violated as a result of the armed aggression of the Russian Federation against the sovereignty and territorial integrity of Ukraine from 2014 to the full-scale invasion","authors":"H.O. Iordek","doi":"10.24144/2788-6018.2023.04.86","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.86","url":null,"abstract":"The issue of the Russian Federation’s armed aggression against Ukraine’s sovereignty and territorial integrity is perhaps the most pressing on the agenda of not only Ukraine but the entire world. And one of the most practical aspects, which is also a challenge, is the issue of compensation for damages caused by Russia’s armed aggression. At the same time, it is important to consider the issue of such compensation not only in the context of the full-scale invasion of the Russian Federation on the 24th of February 2022, but also taking into account Russia’s territorial encroachment on the territory of Donbas and the territory of the Autonomous Republic of Crimea since 2014.Therefore, the article is devoted to the analysis of the mechanisms for protecting and restoring the right to peaceful enjoyment of possessions in Ukrainian legislation developed in response to the violation of this right by the Russian Federation as part of its armed aggression starting from 2014 and until the 24th of February 2022.The author analyzes in detail the existing regulatory framework for the mechanism of compensation for damages since 2014 and compares it with the international law basis. In particular, the article discusses the disadvantages and advantages of the Decree of the Cabinet of Ministers of Ukraine “On the Payment of Financial Compensation to Victims Whose Residential Buildings (Apartments) were Destroyed as a Result of a Military Emergency Caused by the Armed Aggression of the Russian Federation” No. 767 of the 2 September 2020, as well as the Draft Law of Ukraine “On Protection of Property Rights and Other Proprietary Rights of Persons Affected by Armed Aggression”.In the context of legal regulation of the restoration of the right to peaceful enjoyment of property violated since 2014, the author highlights the issues of the subjects, type of property, requirements for its territorial location for compensation, types of damages, feasibility of compensation amounts, the process of compensation, as well as the problem of non-extension of the envisaged regulation to the case of the Autonomous Republic of Crimea, taking into account only damages in the territory of Donetsk and Luhansk regions.The author draws special attention to the international legal aspects of the problem of restoration of the right to peaceful enjoyment of possessions, in particular, to the incorrect terminology in national regulation which, by its effect, lies in the plane of international humanitarian law, the need for compensation by the Russian Federation as the aggressor who caused the damage, and not only by Ukraine as a State seeking to ensure the basic needs of its citizens grossly violated as a result of Russia’s territorial encroachment, and the need to include damages incurred since 2014 in the general compensation mechanism being developed to restore the right to peaceful enjoyment of possessions violated as a result of the full-scale invasion in 2022.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"358 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Treaty Establishing a Constitution for Europe as a stage in deepening the integration of the European Union member states","authors":"I.Yu. Dir","doi":"10.24144/2788-6018.2023.04.85","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.85","url":null,"abstract":"The article generally analyses the prerequisites for the creation of the Constitution of the European Union. In particular, the factors contributing to its development were considered. Thus, it was found that following the results of the summit, at which a decision was made to develop a draft Constitution, the European Convention was formed, the creation of which provided for the completion of the institutional reform, the main purpose of which was to determine the future of Europe: the distribution of powers between the member states, the review of the EU treaties, the role of national parliaments, as well as the status of the Charter of Fundamental Rights. In addition, the article summarizes the structure of the Constitution. The Treaty on the Creation of the Constitution of Europe, which was supposed to become the basis of the future Constitution, was also analysed. It was determined that the future Constitution consisted of a preamble, four parts, protocols, and annexes. The article also explored that the Treaty was signed on behalf of the states mainly by the plenipotentiaries of the state, among whom the vast majority were prime ministers or foreign ministers. In addition, it was determined that the process of ratification of the Treaty was thorny. It was analysed that the European Parliament voted to support the implementation of the Constitution. Most of the parliaments of the member states, in accordance with the treaty ratification procedure adopted in the state, ratified the Treaty at the level of voting in the state parliament. The main prerequisites that stood in the way of the adoption of the Constitution were also investigated the main states that decided to hold a referendum on the ratification of the Treaty were identified. In addition, it was determined the states in which the citizens voted against the adoption of the Constitution because of the referendum, as well as those states where the citizens spoke in favour. It was also analysed that after the results of the referendum in France and the Netherlands, the leaders of the European Union decided to take a break and created a working group that will develop the next steps regarding the adoption of the Constitution. The article also determined that based on the results of the activity, it was decided to create a new agreement based on the Agreement on the Creation of the Constitution.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"171 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Peculiarities of a court decision in criminal proceedings involving persons suffering from mental disorders","authors":"O.I. Tyshchenko","doi":"10.24144/2788-6018.2023.04.79","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.79","url":null,"abstract":"The article, based on the analysis of the provisions of criminal and criminal procedural law and relevant judicial practice, reveals the peculiarities of the court decision in which compulsory medical measures are applied to persons with limited criminal convictions. Such peculiarities include: the adoption of a court decision regarding defendants with limited convictions in the form of a sentence; the regulatory limitation of the variability of compulsory medical measures only by the provision of outpatient psychiatric care on a compulsory basis; inconsistency in the terms of the prescribed punishment and the use of compulsory medical measures. The latter determines the logic of the question regarding the need for the simultaneous application of two criminal-legal measures of a different nature. It is noted that the procedure for applying compulsory medical measures to persons with a limited criminal record is related to criminal proceedings regarding the application of compulsory medical measures (Chapter 39 of the CPC).In the context of the problems considered, the issue of the possibility of concluding and approving an agreement in criminal proceedings involving persons suffering from mental disorders is investigated. Both court decisions that approved such an agreement and court verdicts that refused to approve the agreement are analyzed from the point of view of argumentation. In terms of three key aspects (the subject of criminal procedural consensus; voluntariness as one of the manifestations of criminal procedural capacity; prospects for fulfilling the terms of the concluded agreement), the position is expressed regarding the expediency of enshrining at the legislative level the impossibility of concluding and approving an agreement with the participation of a suspect, an accused person who has a limited criminal record. It is proposed to extend a similar approach to the victim suffering from mental disorders and to determine that it is impossible to conclude a reconciliation agreement with their participation.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Correction and resocialization of juvenile prisoners as a criterion for the effectiveness of measures of incentives and penalties applied to them","authors":"T.V. Burdina","doi":"10.24144/2788-6018.2023.04.51","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.51","url":null,"abstract":"The article is devoted to the analysis of the understanding of the essence of the correction and resocialization of convicts, which is common in the doctrine of criminal executive law, as well as to the clarification of the influence of the measures of incentives and penalties applied to juvenile prisoners on their correction and resocialization, and so, to the justification of the value of correction and resocialization as a criterion of effectiveness such measures.The author highlighted the provisions of a number of normative legal acts in the field of criminal enforcement law in general and juvenile justice in particular, which emphasize that the purpose of execution of punishments should be the correction and resocialization of convicts. And in addition, it was found that the international legal standards for the execution of punishment in the form of deprivation of liberty in the matter of correction and resocialization of convicts are primarily focused on the development of socially useful professional skills and personal abilities of prisoners; and it was established that the Ukrainian legislator also provided for the formation of life skills in juvenile prisoners.The article concludes about the existence of degrees of correction and examines their definition in a number of Methodological recommendations of the State Department of Ukraine on issues of execution of punishments, as well as discloses the criteria and indicators for assessing the degree of correction of a convict in the disciplinary practice of institutions for the execution of punishments.At the same time, the author asserted that the main means of correction and resocialization are, in particular, the regime, and the system of measures of incentives and penalties is one of its main elements, one of the means of its provision, and therefore is one of the main means of correction and resocialization of juvenile prisoners, directly serving the purpose of their correction and resocialization.And so, it has been proven that the degree of correction of the convict testifies to the effectiveness of the measures of disciplinary influence applied to him. Moreover, the author considers as a criterion for the effectiveness of the measures of incentives and penalties applied to a juvenile prisoner his legal correction, not psychological, as well as penitentiary resocialization, which is a continuation of the process of his correction in the context of internal psychological, not social factors, as opposed to penitentiary resocialization.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134914012","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal mechanism of dismissal and termination of judge authorities: problem aspects","authors":"I. Khomyshyn","doi":"10.24144/2788-6018.2023.04.101","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.101","url":null,"abstract":"The article identifies the problems of the legal mechanism for the dismissal and termination of a judge’s powers, formulates directions for improving the legislation of Ukraine, which regulates the dismissal of a judge from office and the termination of his official powers. The following problems of the legal mechanism for the dismissal and termination of a judge’s powers have been identified: 1) constant changes in the legislation lead to the presence of a number of transitional provisions, differentiation of the grounds and mechanism for the termination of a judge’s legal status; 2) the unequal scope of rights and opportunities of a judge when implementing such a legal guarantee upon dismissal as a lifetime financial support for a retired judge, depending on the facts of passing a qualification assessment, being appointed to a position after September 30, 2016, and having worked as a judge for at least three years after that date, as well as the rules for calculating judicial seniority depending on the date of election to the position; 3) establishment of a judge’s non-compliance with the qualification evaluation criteria is an additional ground for the judge’s dismissal from office, which is not provided for by the Constitution of Ukraine; 4) the imperfection of the legislative changes to the list of grounds for terminating the legal status of a judge, in particular in the part of not taking into account the fact of the expiration of the five-year term of appointment of a large number of judges and the impossibility of terminating the legal status of a judge on this basis, created uncertainty in the status of employees; 5) the evaluative nature of the categories of materiality, rudeness, bias, intent in the judge’s actions leads to different perceptions of the presence or absence of grounds for dismissal as a disciplinary sanction; 6) differentiation of the statute of limitations for bringing to disciplinary responsibility depending on the time of illegal actions; 7) the absence of such grounds as the reinstatement of an employee who previously performed this work among the constitutional grounds for terminating the legal status of a judge, which makes it difficult to implement court decisions on the reinstatement of a judge; 8) the alternative of the norm on the possibility of stopping the consideration of an application for voluntary dismissal or resignation during the consideration of a complaint or application within the framework of disciplinary proceedings; 9) actual removal from the circle of persons who may be held administratively liable under Art. 172-6 of the Code of Administrative Offenses, judges, in respect of whom a decision was made to dismiss them from office due to deficiencies in the legislative technique of legal regulation of the mechanism for dismissing a judge from office; 10) reflection of the widespread in society phenomena of legal nihilism, low level of legal culture and on the members of the Supreme Council of Justi","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134914014","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}