Article title Attributes of the Judiciary: Constitutional and Legal Aspects
Authors
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 4/2018
Сторінки [251-260]
DOI https://doi.org/10.33498/louu-2018-04-251
Annotation

Since the next stage of the judicial reform aims at ensuring the functioning of the judiciary which would be focused on legal values reflected in international human rights standards, the foundations of a fundamental respect for the authority and status of the judiciary should be laid drawing upon the attributes of the judiciary as their basis. The author of the article notes that the range of challenging issues pertaining to the judiciary in general and its attributes in particular has always been in the center of scientific research and heated discussions of scholars and practitioners. Scholars consistently investigate certain aspects of the judicial system and judicial proceedings paying attention to certain attributes of the judiciary as well. However, there is no comprehensive scientific research so far. The purpose of the article is to study the nature of entrenchment of the judiciary’s general attributes at the constitutional level; and to analyze these attributes with reference to respective articles of the Fundamental Law of Ukraine. As noted in the article, the legal science has no clear definition for the concept of the attributes of the judiciary; moreover, there is no consensus in respect of the approaches to determining their contents, and in respect of their classifications. In particular, the contents of this category have not been legislatively defined, with just some attributes of the judiciary having been entrenched. The analysis of the provisions of the Ukrainian Constitution allows asserting that the term “attributes of the judiciary” has not received a broad application in it. Given the specifics of the institute of the judiciary, scholars note that it is generally accepted to classify the attributes of the judiciary into the general and special ones (the author of the article prefers this classification). All these attributes in their entirety, complementing each other, allow defining the concept of the judiciary, taking into account that power is its essence. The general attributes of the judiciary are the attributes characteristic of government in general and inherent in the judiciary as its part, in particular. Their analysis allows finding out the essence and manifestations of the power nature of practices and competences of the court. However, each attribute of government as a whole in the context of the judiciary, of course, acquires certain specifics. The article closely examines the following general attributes of the judiciary: 1) social nature of power; 2) structure of power relations; 3) purposeful nature of power; 4) will as a component of power; 5) regulatory and organizational purpose of power; 6) forced nature of power. For each of the attributes, the author provides a detailed analysis of a certain specific consolidation in the Constitution of Ukraine with reference to respective provisions of the Fundamental Law. At the end of the article it is emphasized that the judiciary is characterized by general attributes making it capable of performing the function of consideration and resolution of legal conflicts, ensuring the operation of the rule of law principle, maintaining the stability of legal relations, making an organizational and regulatory influence when necessary, and ensuring the observance of human and civil rights and freedoms at the appropriate level. When the contents of respective activities are determined, all these mechanisms should choose, as the priority, the guarantees of the rule of human rights and freedoms, independence in the exercise of powers, observance of the procedural order applicable to case consideration and review, as well as the efficiency of judicial protection in general.

 

Keywords court; judicial system; the judiciary; attributes of the judiciary; general attributes of the judiciary
References

List of legal documents

 

Legislation

1. Konstytutsiia Ukrainy [The Constitution of Ukraine]: Zakon Ukrainy [the Law of Ukraine] vid 28 chervnia 1996 r. № 254k/96-VR. URL: http://zakon2.rada.gov.ua/laws/ show/254%D0%BA/96%D0%B2%D1%80 (accessed: 10.03.2018) (in Ukrainian).

2. Pro sudoustrii i status suddiv [On the Judicial System and the Status of Judges]: Zakon Ukrainy [the Law of Ukraine] vid 2 chervnia 2016 r. № 1402-VIII. URL: http://zakon3. rada.gov.ua/laws/show/1402-19 (accessed: 10.03.2018) (in Ukrainian).

 

Bibliography

Edited books

3. Marоchkin I ta inshi, Orhanizatsiia sudovykh ta pravookhoronnykh orhaniv: pidruchnyk dlia studentiv yurydychnykh spetsializovanykh vyshchykh navchalnykh zakladiv [Organization of Judicial and Law Enforcement Agencies: a Textbook for Students of Legal Specialist Higher Educational Institutions] (I Marochkin ta N Sibilova za red, Odissei 2007) (in Ukrainian).

 

Journal articles

4. Turkina I, ‘Konstytutsiini zasady sudovoi vlady v Ukraini: teoretychnyi analiz’ [‘Constitutional Principles of Judiciary in Ukraine: Theoretical Analysis’] (2011) 2 Visnyk Akademii mytnoi sluzhby Ukrainy 41 (іn Ukrainian).

 

Thesis abstracts

5. Barutenko Roman, ‘Obespechenie edinogo pravovogo prostranstva Rossii organami ispolnitel’noj vlasti Rossijskoj Federacii (konstitucionno-pravovoj aspekt)’ [‘Provision of a Single Legal Space of Russia by Executive Authorities of the Russian Federation (Constitutional and Legal Aspect)’] (dis kand yurid nauk, Akademiya upravleniya MVD Rossii 2003) (in Russian).