Issue: № 10, 2024
Doi: https://doi.org/10.37634/efp.2024.10.12
The paper is devoted to the problem of legal regulation of the principle of independence of the judge. The main problem is insufficient regulation at the legislative level of issues that directly affect the ability of the justice system to function correctly, as a result of which not only the judicial system suffers, but also citizens who expect justice in the courts. The purpose of this paper is to study the current problems of regulating the principle of independence of the judge and ways to solve them. The paper examined the problematic issues of the High Council of Justice and determined the need to change the list of subjects appointed to this constitutional state body. The financial aspect of providing judges, which directly affects their independence, was also separately investigated. A violation by the legislator towards the justice system and judges due to the establishment of a subsistence minimum for determining the official salary of a judge, which is not provided for by normative legal acts, has been singled out and recorded. The norms of international documents and the practice of the Constitutional Court of Ukraine were analyzed for the need to ensure the proper functioning of the justice system and give it the highest priority. Summing up, it can be established that due to the coronavirus pandemic, the war on the territory of Ukraine and the complete inertness of the lawmaker to issues related to the proper provision of the justice system, quite a lot of unresolved issues have accumulated over the past five years. The issue of legislative review of destination subjects has become such that it needs to be resolved at the global level. The judicial branch of government cannot function at the proper level, which causes a rather strong staffing imbalance and global instability in state matters that the judiciary takes care of.
Keywords : normative and legal regulation, justice system, judicial branch of government, judge, principle of independence of a judge
References:
1. Bases of constitutional law of Ukraine / ed. V.V. Kopeichykov. Kyiv, 1999. 288 p. [in Ukrainian].
2. Constitutional law of Ukraine / ed. V.F. Pohorilko. Kyiv, 2002. 732 p. [in Ukrainian].
3. Vasylevych М.V. Constitutional and Legal Guarantees of Independence of Judicial Power: Theory and Practice of Implementation: abstract thesis … PhD in legal sciences: 12.00.02. Kyiv, 2010. 16 p. Kyiv [in Ukrainian].
4. Koziubra М., Sviatotskii О. The judiciary in Ukraine. Law of Ukraine. 2009. № 12. pp. 47-63. [in Ukrainian].
5. Polianskyi Y.Y. Judge’s independence – legal and social value. Research Papers of National University “Odesa Law Academy”. 2011. Vol. 10. pp. 80-90. [in Ukrainian].
6. Shulhach N.М. The concept and essence of the principle of independence of judges. Scientific notes Lviv University of Business and Law. 2011. Issue. 6. pp. 227-231. [in Ukrainian].
7. On amendments to the Constitution of Ukraine (regarding justice): Law of Ukraine dated June 2, 2016, URL: https://zakon.rada.gov.ua/laws/show/1401-19#Text [in Ukrainian].
8. Opinion on the Proposed Amendments to the Constitution of Ukraine regarding the Judiciary as approved by the Constitutional Commission on 4 September 2015 adopted by the Venice Commission at its 104th Plenary Session (Venice, 23-24 October 2015) [in Ukrainian].
9. Preliminary Opinion on the proposed constitutional amendments regarding the judiciary of Ukraine (adopted by the Venice Commission on July 24, 2015) [in Ukrainian].
10. On the judiciary and the status of judges: Law of Ukraine dated June 2, 2016, with the following changes URL: https://zakon.rada.gov.ua/laws/show/1402-19#Text0 [in Ukrainian].
11. On the State Budget of Ukraine for 2020: Law of Ukraine dated November 14, 2019, with the following changes URL: https://zakon.rada.gov.ua/laws/show/294-20#Text [in Ukrainian].
12. On the State Budget of Ukraine for 2021: Law of Ukraine dated December 15, 2020, with the following changes URL: https://zakon.rada.gov.ua/laws/show/1082-20#Text [in Ukrainian].
13. On the State Budget of Ukraine for 2022: Law of Ukraine dated December 2, 2021, with the following changes URL: https://zakon.rada.gov.ua/laws/show/1928-20#Text [in Ukrainian].
14. On the State Budget of Ukraine for 2023: Law of Ukraine dated November 3, 2022, with the following changes URL: https://zakon.rada.gov.ua/laws/show/2710-20#Text [in Ukrainian].
15. On the State Budget of Ukraine for 2024: Law of Ukraine dated November 9, 2023, with the following changes URL: https://zakon.rada.gov.ua/laws/show/3460-20#Text [in Ukrainian].
16. On maintaining martial law in Ukraine: Decree of the President of Ukraine dated February 24, 2022, with the following changes URL: https://zakon.rada.gov.ua/laws/show/64/2022#Text [in Ukrainian].
17. On providing an advisory opinion on draft law No. 10000: Decision of the High Council of Justice dated September 25, 2023 No. 908/0/15-23 URL: https://hcj.gov.ua/doc/doc/40951 [in Ukrainian].
18. Decision of the Constitutional Court of Ukraine in the case based on the constitutional submission of the Supreme Court of Ukraine on the official interpretation of the provisions of the first and second parts of Article 126 of the Constitution of Ukraine and the second part of Article 13 of the Law of Ukraine "On the Status of Judges" (the case on the independence of judges as a component of their status) dated 1 December 2004 No. 19-рп/2004 URL: https://zakon.rada.gov.ua/laws/show/v019p710-04#Text [in Ukrainian].
19. The decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance with the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of Clause 2 of Section II "Final and Transitional Provisions" of the Law of Ukraine "On Measures for Legislative Support of Reforming the Pension System" , Article 138 of the Law of Ukraine "On the Judiciary and the Status of Judges" (the case regarding changes to the conditions for the payment of pensions and the monthly lifelong stipend of retired judges) dated June 3, 2013 No. 3-рп/2013 URL: https://zakon.rada.gov.ua/laws/show/v003p710-13#Text [in Ukrainian].
20. Decision of the Constitutional Court of Ukraine in the case based on the constitutional submission of 47 People's Deputies of Ukraine regarding compliance with the Constitution of Ukraine (constitutionality) of certain provisions of the Law of Ukraine "On Prevention of Corruption", Criminal Code of Ukraine dated October 27, 2020 No. 13-р/2020 URL: https://zakon.rada.gov.ua/laws/show/v013p710-20#Text [in Ukrainian].
21. On Amendments to the Law of Ukraine "On the State Budget of Ukraine for 2020": Law of Ukraine dated April 13, 2020, with the following changes URL: https://zakon.rada.gov.ua/laws/show/553-20#Text [in Ukrainian].