Article title Judicial Elections as Implementation of the Principle of Democracy
Authors

Doctor of political science, Professor, Associate, National Academy of Legal Science, Honored Scientist of Ukraine, Chief of Legal Issues of Political Science Department Volodymyr Koretskyi Institute of State and Law, National Academy of Science of Ukraine (Kyiv, Ukraine) i.kresina@icloud.com

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 10/2019
Сторінки [142-157]
DOI https://doi.org/10.33498/louu-2019-10-142
Annotation

Numerous attempts to reform Ukraine’s judicial system are intrinsically based on the intention of certain political forces which came to power to subordinate the judiciary to their own interests, to make a judge dependent on the will not of the people but of the political class and of those vested with power, so that a judge could be a convenient tool in the redistribution of public wealth. Election is being replaced with appointment of judges by the bodies and officials who turn to be more and more corrupt that the preceding ones and this is legitimized by respective amendments to the Constitution of Ukraine, by adoption of respective legislation, European integration requirements and standards, contests and “bona fide” commissions etc.

The purpose of the article is to show the advantages of election as compared with appointment of judges – with a view to making the principles of democracy and the rule of law firmly consolidated in Ukraine as a democratic, welfare and rule-of-law state.

It is possible to restore confidence in the government and the judiciary by switching to election of judges. At the same time, it is necessary to proceed from the fundamental “presumption” – the right of the people to elect the government, to control and change it if it does not justify such confidence.

Scientific papers demonstrate two diametrically opposite points of view regarding election of judges – “for” and “against”. Arguments “against” are confined to: 1) inability of citizens to assess the professionalism of judges; 2) elections mean that a respective propaganda campaign should be carried out and its financing can raise questions.

The benefits of election are as follows: 1) implementation of the principle according to which no branch of government may and should appoint any other branch; 2) independence of a judge is enhanced; 3) a judge becomes closer to the people; 4) it prevents social injustice, isolation of judges from citizens, aloofness, corporatism, turning of judges into the untouchables; 5) responsibility and accountability of judges to citizens is increased. Furthermore, magistrate judges as an institution have proved to be an efficient tool of out-of-court dispute resolution which removes an excessive load from courts. Besides, in a corrupt judicial system appointment of judges means legalization of usurpation. A revocable mandate is an important mechanism of control.

Thus, the principle of election should be applied to judges of all jurisdictions. The Electoral Code should define clear mechanisms and procedures for election of judges, as well as their recall. Elections are a reliable guarantee that the judiciary is selected honestly and transparently. The more so since political parties will be deprived of the right to nominate their candidates for judges. At the same time, there is a need to toughen criminal liability for offenses in this area and amend the Criminal Code of Ukraine with a view to making impossible any attempts of bribery, pressure, fraud etc. by creating a set of safeguarding mechanisms.

 

Keywords judge; guarantees of independence; appointment of judges; election of judges
References

Bibliography

Authored books

1. Moskvych L, Efektyvnist sudovoi vlady: kontseptualnyi analiz [Efficiency of the Judiciary: A Conceptual Analysis] (FINN 2011) (in Ukrainian).

 

Edited books

2. ‘Pakty y Konstytutsii zakoniv ta volnostei Viiska Zaporozkoho (1710) (Konstytutsiia Pylypa Orlyka)’ [‘Pacts and Constitutions of Rights and Freedoms of the Zaporizhian Host (1710) (Pylyp Orlyk’s Constitution)’] v Konstytutsii i konstytutsiini akty Ukrainy. Istoriia i suchasnist: zbirnyk [Constitutions and Constitutional Acts of Ukraine. History and the Present Time: Collection] (Kresina I uporiad, Shemshuchenko Yu vidp red, In-t derzhavy i prava im V M Koretskoho NAN Ukrainy 2001) (in Ukrainian).

3. Derzhava i hromadianske suspilstvo v Ukraini: problemy vzaiemodii [The State and Civil Society in Ukraine: Interaction Challenges] (Kresina I red, Lohos 2007) (in Ukrainian).

4. Prylutskyi S ta Kresina I, ‘Priami vybory suddiv v Ukraini: anakhronizm chy shliakh vykhodu z politychnoi kryzy?’ [‘Direct Election of Judges in Ukraine: An Anachronism or a Way Out of the Political Crisis?’] v Vyborche pravo Ukrainy v konteksti yevropeiskykh demokratychnykh standartiv: tezy dopovidei na mizhnarodnii naukovo-praktychnii konferentsii [Electoral Law of Ukraine in the Context of the European Democratic Standards: Theses of Reports at the International Scientific and Practical Conference] (Instytut vyborchoho prava 2016) (in Ukrainian).

5. Sudova vlada v Ukraini: istorychni vytoky, zakonomirnosti, osoblyvosti rozvytku [The Judiciary in Ukraine: Historical Origins, Patterns, Specific Features of Development] (Usenko I red, Naukova dumka 2014) (in Ukrainian).

 

Journal articles

6. Koliukh V, ‘Depolityzatsiia sudovoi vlady yak skladova reformy sudoustroiu v Ukraini’ [‘Depoliticization of the Judiciary as a Component of the Judicial Reform in Ukraine’] (2016) 71 Derzhava i pravo 105-7 (in Ukrainian).

7. Koroied S ta Kresina I ta Prylutskyi S, ‘Kontseptsiia reformuvannia sudovoi vlady Ukrainy’ [‘The Concept of Reforms of the Judiciary in Ukraine’] (2015) 3 Sudova apeliatsiia 6-34 (in Ukrainian).

8. Shadrin D, ‘Vybornost’ sudej kak al’ternativa ih naznacheniju’ [‘Electability of Judges as an Alternative to Their Appointment’] (2016) 3 Voprosy rossijskogo i mezhdunarodnogo prava 229-30 (in Russian).

9. Shemshuchenko Yu, ‘Teoretychni problemy sudovoi vlady’ [‘Theoretical Problems of the Judiciary’] (2009) 1 Chasopys Kyivskoho universytetu prava 308-9 (in Ukrainian).