scholarly journals JUSTIFICATION OF THE APPLICATION OF DISCRETION AUTHORITIES IN THE ORGANIZATION OF JUSTICE

2020 ◽  
pp. 25-29
Author(s):  
P. D. Huivan

This scientific article is devoted to the study of topical issues of legal certainty and the use of broad discretion in the formation of the national judicial system. Serious attention is paid to the issue of establishing the legislative and substantive limits of the discretionary powers of the subjects of power in the implementation of the tasks assigned to them. The national criteria of guaranteeing the rights of every citizen to protection against arbitrary interference of public authorities in their rights and freedoms and ensuring the possibility for a person to anticipate the actions of these bodies have been studied. It has been established that there is a mechanism in the rule of law to prevent the abuse of discretionary powers. Legislation and practice of its application are analyzed, which are intended to separate the limits of exercising such powers from manifestations of willfulness. The transparency, fairness and fairness of the selection of national judges during the recent competition before the Supreme Court was examined in detail. The virtually unlimited discretion of the judicial administration body in conducting competitive procedures for selecting judges and evaluating them is critically assessed. In the course of the research, it was found that the regulations on competitions for judges were spelled out, there were no specific safeguards against the overly broad discretion of the governing body − the CCSSU, and this allowed the institution to commit significant abuses. The regulatory definition of the limits of real discretion in the actions of the Commission is proposed, which should be carefully spelled out in the legislation. On the basis of specific examples from the current case law, the shortcomings in the legal formulation of substantiated and reasoned verdicts regarding the results of competitions before the Supreme Court are shown. It has been proven that the Governing Body has made an unjustified substitution for the proper motivation of its decisions by the unjustified use of too wide discretion. In this way, in the first place, the selection criteria set by the Law were not respected, and, secondly, the real consequences of the competition were hidden from society. In fact, the statutory motivation of the decision, instead of its purpose to be a measure of the legitimacy of decisions, was effectively reduced to the level of the way of exercising managerial administrative functions, which contradicts the position of the ECtHR on this issue.

2020 ◽  
pp. 46-51
Author(s):  
Yurii Vovk

Problem setting. Article 19 of the Constitution of Ukraine provides: “Public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.” However, quite often this constitutional norm is violated in practice. This forces citizens to apply to the administrative court for protection of the violated right. As a result, the number of citizens’ appeals to the administrative court is constantly increasing. Due to the significant workload, the increase in the number of appeals, the terms of consideration of the administrative case provided in Art. 193 of the Code of Administrative Procedure of Ukraine are often violated by administrative courts and the case is not considered within a reasonable time. At the same time, one of the most problematic categories of disputes in administrative courts are those concerning the discretionary powers of the subject of power. In these disputes, the plaintiff usually asks to recognize the actions (inaction) of the subject of power illegal and oblige to take certain actions. The administrative court usually finds the actions illegal, but does not oblige the subject of power to take certain actions in favor of the plaintiff, referring to the discretionary powers of public authorities and local governments, their officials in making the decision. In the future, citizens are forced to spend a lot of time and money to restore the violated right. Courts in different situations act differently. In addition, the lack of a legislative definition of “discretionary powers” is also a problem. Analysis of recent research and publications. In the modern scientific literature, the works of Belkin L.M., Boychuk M.I., Wenger V.M., Vlasov A.O., Grin A.A., Zolotareva M.K., Magda S.O., Panov G.V., Staryk A.M., Tarasenko T.M., Fedchuk S.I., and others are devoted to the question of discretionary powers of the subject of power. Along with this problematic issue, the institution of discretion of the subject of power, analysis of the case law of the Supreme Court is not given enough attention. The aim of the article is to investigate issues related to discretionary powers, determine the possible limits of court interference in the administrative discretion of the subject of power, based on the case law of the Supreme Court. Results and discussion. In modern conditions, a significant number of cases in administrative courts are related to the discretionary powers of the subject of power. These are mostly social disputes. Given the uncertainty of such a concept as “discretionary powers”, the courts refer in their decisions to the Recommendation NR(80)2 of the Committee of Ministers of the European Council, adopted by the Committee 10 on 11th of March 1980 at its 316th meeting, according to which discretionary powers should be understood as the administrative body, in making decisions, may exercise with a certain discretion. The above means, that such a body may choose from several legally admissible decisions the one, that is considered to be the best in the given circumstances. At the moment, there is a certain case law of the Supreme Court regarding the discretionary powers of the subject of power. Conclusions. The Supreme Court’s case law seeks to fill the gaps in the lack of proper legislative regulation of the issue of discretion and the relationship between the discretion of the court and the discretion of the subject of authority. However, this case law may not always be completely homogeneous. Given the significant number of cases related to discretionary powers and the lack of proper legislative regulation of this issue, it is time for the Verkhovna Rada to adopt a law to comprehensively regulate this issue, defining the concept of “discretionary powers”. This may provide guidance to the authorities and courts on how to act in specific situations and reduce the number of cases in the courts and will help to properly protect the rights and legitimate interests of individuals and legal entities.


Author(s):  
S.M. Ivanov

The scientific article is devoted to the coverage of the court procedure for appealing against decisions, actions or omissions of public administration entities regarding the provision of public services in the field of migration and citizenship. It has been established that an administrative appeal, despite the optionality, is an important step in the provision of public services in the field of migration and citizenship. On the one hand, the appeal is intended to identify and eliminate shortcomings in the practical procedural activities of public authorities in the field of migration; on the other hand, contributes to the improvement of the procedural model of resolving individual cases in the research area, identifying its defects and weaknesses.Emphasis is placed, the legislative consolidation of the possibility of appeal in court and administratively re-quires two forms of appeal - administrative-procedural and administrative-procedural, which together create a guar-antee tool to protect the rights of individuals to citizenship and freedom of movement and free choice of residence.It is established that the presence in the Register of the subject of the claim and the requirements of the plaintiffs - №№ 820/4847/17, 815/2412/14, 820/4393/17, 495/8188/16-a, etc. - allows us to consider the analyzed case as a typical example. Again, based on the results of the case study, it can be concluded that in the activities of LCA units it is common to make administrative decisions on the basis of discretion, rather than legal requirements; Violations committed by public authorities in administrative and procedural activities turn into a threat of loss of legal status and rights for individuals from whom no violations have been committed. This situation cannot be considered an effective example of law enforcement in the field of administrative and procedural support in the field of migration.Given the importance of protecting the rights and freedoms of individuals as a party to public relations in the study area, the possibility of appealing against decisions, actions or omissions of public authorities in this area should be recognized as an important guarantee of preservation and restoration of individual rights. In these exam-ples, the judiciary has performed this protective function; to strengthen this trend, it would be rational to use the tool of an exemplary administrative case, which has become one of the most anticipated novelties in the reform of administrative justice. According to Part 22 of Art. 4 CAS of Ukraine an exemplary case is a typical administrative case accepted for proceedings by the Supreme Court as a court of first instance to issue a model decision; in other words, with the help of an exemplary case, an effective procedural mechanism of consideration of cases similar in scope and specifics of legal relations in which the conflict arose, composition of the parties and legal norms by which they are regulated, following the example of the Supreme Court decision in one such case, that is, in an exemplary case.


2017 ◽  
Vol 22 (4) ◽  
pp. 12-13
Author(s):  
LuAnn Haley ◽  
Marjorie Eskay-Auerbach

Abstract Pennsylvania adopted the impairment rating provisions described in the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) in 1996 as an exposure cap for employers seeking predictability and cost control in workers’ compensation claims. In 2017, the Supreme Court of Pennsylvania handed down the Protz decision, which held that requiring physicians to apply the methodology set forth in the most recent edition of the AMA Guides reflected an unconstitutional delegation of legislative power to the American Medical Association. The decision eliminates the impairment-rating evaluation (IRE) mechanism under which claimants were assigned an impairment rating under the most recent edition of the AMA Guides. The AMA Guides periodically are revised to include the most recent scientific evidence regarding impairment ratings, and the AMA Guides, Sixth Edition, acknowledges that impairment is a complex concept that is not yet defined in a way that readily permits an evidence-based definition of assessment. The AMA Guides should not be considered standards frozen in time simply to withstand future scrutiny by the courts; instead, workers’ compensation acts could state that when a new edition of the AMA Guides is published, the legislature shall review and consider adopting the new edition. It appears unlikely that the Protz decision will be followed in other jurisdictions: Challenges to using the AMA Guides in assessing workers’ compensation claims have been attempted in three states, and all attempts failed.


Author(s):  
Volodina N.A. ◽  
Murzina I.A. ◽  
Retinskaya V.N.

This article is devoted to the study of the image of Executive authorities in modern Russia. The relevance of the chosen topic of the scientific article is emphasized for the present time, when society and the state are developing methods of countering the coronavirus pandemic – not only in the medical, but, no less important, in the socio-psychological aspect. In this perspective, the consolidating potential of a positive image of government bodies and civil servants is noted. Attention is focused on the terminological apparatus of the problem. Based on the analysis of relevant scientific works, the article provides the author's definition of the image of public authorities. The author notes the peculiarity of the image of Executive authorities, which consists in the presence of two inextricably linked equivalent components – the image of the authority and the image of a civil servant. Image formation of government bodies is considered as a multi-factor interaction of three main subjects: government bodies, the population, and the mass media. The main method of implementation is still the mass communication media, which provide a permanent presence of Executive authorities in the information and communication space. It is noted that the basis for the formation of a positive image of the Executive authority and bureaucracy is their effective functioning. At the same time, the perception of citizens, their attitude to the activities of Executive authorities, the level of trust in them is considered as the main indicator of the modality of the image. Based on the analysis of data from sociological studies, the conclusion about a positive trend in the perception of public authorities and officials by Russians is substantiated. However, there is a negative impact on their image of the lack of these changes and, in General, a low level of openness of public authorities.


Author(s):  
Michael Tsele

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       


2012 ◽  
Vol 50 (1) ◽  
pp. 157
Author(s):  
Lewis N. Klar, Q.C.

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.


2020 ◽  
Vol 89 (2) ◽  
pp. 250-257
Author(s):  
V. V. Chumak

The role and place of higher specialized courts in the judicial system of Ukraine have been studied and determined. The author has studied such main categories as “judicial system of Ukraine”, “judiciary”, “judicial system” and “judicial power”. The judicial system of Ukraine has been established. The normative and legal base of functioning of highest specialized courts of Ukraine has been characterized. The author has provided own definition of the categories “judicial system of Ukraine” and “judicial power of Ukraine”. The author has offered to understand the category of “judicial system of Ukraine” as the totality of all hierarchically structured elements of the system (courts), which are endowed with exclusive competence to administer justice, built on the principles of territoriality and specialization, are defined by law and united by general principles of their organization and activity. In turn, the concept of “judicial power of Ukraine” is defined as the activity of courts (judicial system) to administer justice and to perform their professional duties within the limits and in the manner prescribed by the Constitution and laws of Ukraine in accordance with international and legal documents. It has been determined that highest specialized courts in the judicial system of Ukraine are the Supreme Court on Intellectual Property Issues and the Supreme Anti-Corruption Court. It has been concluded that highest specialized courts in the judicial system of Ukraine play an important role in the holistic mechanism of the entire judicial system, since they are endowed with exclusive competence to consider and decide cases on the merits of certain categories, and their activities are determined at the level of a separate regulatory act, which determines their legal status, and hence their place in the judicial system of Ukraine.


Author(s):  
Valeriya Smorchkova

We consider such category as defamation, which is widespread in many foreign countries. Defamation is the dissemination of damaging information, which, however, is true. This concept has become widespread in the last century, many states have adopted special legislation that mediates relations in this area. For example, the United Kingdom has the “Defamation Act 1996” and Singapore has the “Defamation Ordinance 1960”. We emphasize that in the same 1960s in our country “the system of defamation seemed absolutely unacceptable and contrary to the spirit of society”. In the course of study, comparative legal methods are used to analyze the legislation of states with the Anglo-Saxon and Romano-Germanic legal system. Based on the study of the doctrinal points of view of scientists and the positions of higher courts, the definition of this category is formed from the position of civil tort. The following definition is proposed: “Defamation is a violation of civil legislation, which consists in the dissemination of false information damaging the honor, dignity and business reputation of a person and also the dissemination of truthful personal information, the disclosure of which violates the conservation law are listed in the intangible benefits of the citizens”. We analyze the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 24, 2005 no. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities”. We conclude that the Supreme Court of the Russian Federation borrowed advanced provisions from the judgments of the European Court of Human Rights.


Author(s):  
Shira Tarrant

What Is the Definition of Pornography? In 1964, the Supreme Court of the United States faced a controversy over whether Louis Malle’s French film The Lovers violated the First Amendment prohibition against obscene speech. In determining what exactly distinguishes pornography from obscenity,...


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