Law-Making Activity in the Case Law of the Constitutional Court of Ukraine (original) (raw)
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This study will put present a preliminary methodological approach which could help solve this crucial theoretical and practical problem. The proposed approach is based on philosophy and theory of law, and focuses on the distinction between ‘sources’ and ‘forms’ of law in criminal procedure. In our view, the correlation between both may be useful to determine what constitutes case law in Ukrainian criminal procedure. The author takes the approach that the categories of ‘source’ and ‘form’ of law are not identical. Consequently, a ‘source of law’ is a certain legal phenomenon (in general) and as such, which creates regulation (ideas, conditions, circumstances, etc.). In turn, a ‘form of law’ is a concrete regulation of legal relations as a special type of social relations. The paper states that the case law is a source of law, and its form is specific court decisions that contain legal positions (new rule or interpretation). Thus, the source is case law as a legal phenomenon in general, while the form consists in the legal position contained in a particular court decision. In the author's opinion, in Ukrainian criminal procedure, only the practice of the Supreme Court can be a source of law (as a legal phenomenon in general), and the form is specific decisions of the Supreme Court, which contain legal positions (i.e., the conclusion on the application of a certain rule or even a new rule of settlement).
Часопис Київського університету права • 2020/2, 2020
I. Introduction or what modern civil law owes to the past Civil law, in terms of its content and form established in the 19th-21st centuries, is a phenomenon of Continental law. Herewith, the content of law for Continental law is thought of as a set of permissions, prohibitions, obligations, rewards and recommendations that legal order recognizes as necessary to approve, put into effect and protect in a society existing in a specific historical dimension. The law of states that experienced in the 20th century the powerful influence of the totalitarian socialism practices and legal doctrines justifying such practices has adjoined to Continental law. These were, certainly, post-Soviet countries including Ukraine, which are currently in the process of seeking a legal self-identification. The difficulty of legal reforms are predetermined in these jurisdictions, on the one hand, by the intention to find civilizational grounds in the bowels of Continental law for building national legal systems, and on the other hand, by the obvious need to take into account the current experience of convergence as being established in the nuclei of legal orders united by the Western legal tradition common for Continental and Anglo-American law. At the same time, even a cursory glance at the law of these states suggests a growing trend towards the formation of more "technocratic law": legal acts here are increasingly being developed in the technical documentation style, rather than as the legislation designed for implementation in the context of the legal equality for the legal communication participants. This trend, according to William Elliott Butler, is largely motivated by the "lack of a clear doctrine and principle on the inadmissibility of state intervention in the sphere of social life 1. The mentioned tendency is taking place against the backdrop of technological changes which in turn lead to a weakening role and importance of a free scientific discussion and an increase of normative texts. It should be noted that these trends are particular for Ukraine, and this requires special research. It seems the fair point that "Ukraine is one of the technocratic legal systems" 2. Western legal tradition arose as a result of autonomous socio-cultural processes that had had a revolutionary character characteristic only of European culture. Initially, the Western legal tradition was based on a synthesis of reformed Roman law (Ius commune), ancient philosophy and Christian theology 3. Assessing critically the components of the Western legal tradition "matrix" (in the version of Usus Modernus Pandectarum), we note first of all that the content, being considered close to reality, and the spirit of Roman law are not really revealed "at the stage of the pandectists". And it is by no means in the jurisprudence of concepts that one should see "the reproduction of the positive content of Roman law" and, even more, "the way of thinking of Roman lawyers" 4. On the contrary, the evolution of Roman law, its ideas became understandable only after the practical implementation of working-out of pandectists who had rejected the glossators and commentators' ideas in Civil codes of the New Age (first of all, on the permissibility of sharing legal dominance between personally dependent individuals). In other words, only the termination of Roman law (before this it had undergone three stages of revival) in almost all jurisdictions relating to the Western legal tradition, its ideas could be understood and used, but, as a rule, only as an introduction to modern private law. This is in the best case: there were extremely few knowledge holders of Roman law tradition on the continent. Thus, we should agree with the Reinhardt Zimmermann's view that "… the high hopes and expectation entertained at the time of the Enlightenment have not been fulfilled: neither have the codifications made the learned lawyer redundant, nor have they led to a lasting consolidation (ossification) of private law" 5. II. Is the codification of civil law the only true way of the law genesis and law-making? In this regard, the codifications of the 19th-20th centuries being guidance for the Eastern European states should be characterized as anti-feudal law rather than promising "bourgeois law". Especially since modern law must comply with the basic parameters of a post-industrial society. Moreover, historical Roman law with its "casuistic nature of court decisions, the origin of principles and rules of law from cases, the use of the technique of analogies" 6 was much closer to modern case law than to Continental law. The strong idea by Oliver Wendell Holmes that "the life of the law has not been logic: it has been an experience" 7 , turns out that Roman law to be much closer to modern case law than to Continental law. There is also no trace of the Stoics in the modern civil law doctrines: the current worldview and the prevailing private-law political and legal approach are based on utilitarianism and, accordingly, sees in the law by no means a Oleg Khalabudenko. A critical look at the policy of law in the context of the reform of the civil code of Ukraine… 259 Часопис Київського університету права • 2020/2 © O. Khalabudenko, 2020 * Олег Анатолійович Халабуденко, кандидат юридичних наук, доцент, доцент Київського національного університету будівництва і архітектури
SOME ISSUES OF CONSTITUTIONAL JUSTICE IN UKRAINE
H Berchenko, A Maryniv, S Fedchyshyn ‘Some Issues of Constitutional Justice in Ukraine’ 2021 2(10) Access to Justice in Eastern Europe 128–145. , 2021
The article identifies trends in the development of and access to constitutional justice in Ukraine at the current stage. It is alleged that on the one hand, there are attacks on the judicial status of the Constitutional Court of Ukraine, which intensified after the 2016 constitutional reform and the position of the Supreme Court. On the other hand, the effectiveness of a constitutional complaint as a human rights mechanism, i.e. for the formulation of the rights and responsibilities of the individual, is still insignificant. This is due both to the model of the constitutional complaint itself (being exclusively normative) and to the practice that is being formed. The reason for inefficiency can also be called doctrinal unpreparedness for the implementation of a constitutional complaint, because, in fact, despite the large number of studies on the subject, the practical aspect was not well thought out. Both the institutional component and the regulatory framework of the Constitutional Court of Ukraine itself need to be significantly improved. We refer specifically to the Law ‘On the Constitutional Court of Ukraine’ in terms of the interim provisional and protective measure, the implementation of decisions of the Constitutional Court of Ukraine, their actions in time, and specific mechanisms for the restoration of individual rights. In pursuance of the Constitution of Ukraine, a legislative mechanism for compensation for damage caused by unconstitutional acts of public authorities needs to be developed. The provisions of procedural law regarding the review of court decisions in exceptional circumstances as a result of declaring laws unconstitutional need to be adjusted. Key words: constitutional proceedings, constitutional complaint, legitimacy, right to a fair trial, exceptional circumstances
Judicial decisions as a source of law
Cuestiones Políticas, 2022
The article deals with the question of the legal nature and essence of the judicial acts of the Ukrainian courts as a source of law. It also analyzes the notion and characteristics of the sources of law according to academics. Particular attention is paid to the investigation into whether the decisions of the Ukrainian courts can be defined as a precedent and whether they have, in turn, binding force for all people. Therefore, the analysis of the legal nature of the decisions of the European Court of Human Rights, the Constitutional Court of Ukraine, the Supreme Court, and the administrative courts was of interest. The study used general and special scientific methods, the basis of which is the application of the results of theoretical research and other generalized information on the sources of law in Ukraine. The authors conclude that these decisions have a different nature than the judgments of the common law system. Although some judicial decisions of Ukrainian courts tend to po...
SUPREME COURTS’ CASE LAW AS A SOURCE OF LAW IN EUROPE: A COMPARATIVE STUDY IN UKRAINIAN PERSPECTIVE
Juridical scientific and electronic journal, 2023
Case law is not recognised as an official source of law in Ukraine, as it is in most countries in the Romano-Germanic legal family, but the application of the law demonstrates the reverse. The aim of this scientific paper is to discover an acceptable mechanism for legal regulation and enforcement of Supreme Court case law as a source of law in the context of Ukraine’s eventual European Union membership. To achieve this, the experiences of member states such as Belgium, the Netherlands, and the Czech Republic, all of which are part of the same legal family as Ukraine, were reviewed. The paper also focused on the Cour de Cassation / Hof van Cassatie in Belgium, the Hoge Raad in the Netherlands, and the Nejvy Soud in the Czech Republic in order to select the most acceptable approach for enhancing the national Supreme Court. The review of the legislation of all the countries that were chosen validated the concept that the supreme courts, in addition to dealing with justice, also universalise the country’s case law. However, the legal instruments in the possession of supreme court justices vary greatly depending on the peculiarities of each state’s domestic legislation. Following the study, the implementation of the Belgian experience appears to be difficult to apply in Ukraine, given the internal and unique features of its legal system, as opposed to the Czech Republic and the Netherlands, whose approaches have particular advantages and can thus serve as a guide in developing Ukraine’s own model on their basis. In the author’s view, the Supreme Court’s case law is a source of law as a phenomenon, but not all of its decisions should be regarded as such. It is vital to distinguish the most important decisions from the others and publish them separately (for example, in a special journal, as in the Czech Republic or the Netherlands). This way, it would become clear which Supreme Court decisions are a source of the law. Furthermore, this approach will assure that they have such status legally.
Principles of administrative judiciary in Ukraine
DIXI, 2021
Purpose: This article is devoted to scientific and theoretical research of modern system of principles for ad-ministrative procedural law in updated conditions of the Ukrainian state development, based on the needs of qualitative provision and realization of legal rights, freedoms and interests of natural and legal persons, in the sphere of public and legal relations. Main content: The author analyzed the administrative law regulations, and the doctrine of administrative proce-dural law as for determining nature and significance of the basic principles, which define the nature, structure, social orientation, and basic properties of legal regulation of this branch of law, and which on the other side create appropriate organizational and functional conditions for administrative procedural activities. Methodology: Materials and methods for research were based on the analysis of documentary sources. The basis is the dialectical method of cognition of the facts of social reality, on whic...