Collisions in local lawmaking

The study is devoted to clarifying the problem of existing collisions in local lawmaking, which allowed to substantiate the common understanding of this problem, as well as to identify new theoretical and applied conclusions and positions related to the need to resolve collisions in local lawmaking, their specifics and special characteristics. It is established that the country has adopted and operates a large number of regulations, many of which contradict each other, have internal inconsistencies and inconsistencies. Legal science and practice face the task of in-depth analysis of the causes of municipal legal collisions, finding ways to prevent and resolve them. It is pointed out that the emergence and increasing severity of conflicts in local lawmaking in most cases due to incomplete legal regulation of public relations, violation of the rules of legal technique in the adoption of local acts, insufficiently effective ways to prevent and resolve the latter. In addition, it is established that the method of settling and resolving local conflicts through the prism of legislative establishment of the priority of application of the norm and act is the most clear and effective. In the course of the research the systematic analysis of views on the collisions in law in general is carried out, the basic signs of the conflict in local law-making, its place among the specified categories in the plane are defined; analysis of the process of evolution of the social contradiction into a legal one with the subsequent transformation into a collision and a gap; legal conflict is defined as a subjective-objective phenomenon of legal reality. Among the existing large number of classifications of legal conflicts are local-legal, which are legal contradictions that arise due to subjective and objective reasons and errors in the exercise of powers to resolve the population directly and (or) through local governments, local issues, which is manifested in the adoption of regulations of local governments and their officials. Based on the analysis, the characteristic features of local-legal conflict are determined, which are detailed by the specified provisions on the connection of partial and general, manifestation in various forms and types, depending on the specifics of causes and solutions, local self-government issues of local significance and the emergence of the implementation of powers and the adoption of relevant municipal legal acts of local governments and their officials, with its own specific set of elements of the resolution mechanism.

Sanctions as a legal phenomenon in the law of Ukraine and international standards of their application

The article examines the theoretical and practical issues of application of the Law of Ukraine «On Sanctions» of August 14, 2014 and analyzes the existing views on the legal nature of such «legal phenomenon» as sanctions - special economic, financial and other restrictive measures (sanctions) provided by this Law. The article specifies the main issues facing the researchers of the Institute of Sanctions. The purpose of the article is coverage of the state of legal regulation and legal nature of such a phenomenon as sanctions (economic, financial) in the right to Ukraine. In order to achieve this goal, the author used a set of general and special methods that are characteristic of legal science. The article covers the issue of Ukraine's sovereign right to protection, in particular through the application of economic and other restrictive measures (sanctions) «to protect national interests, national security, sovereignty and territorial integrity of Ukraine, counter terrorist activity, as well as prevention of violations, restoration of violated rights and freedoms and legitimate interests of citizens of Ukraine, society and the state». The range of subjects against which sanctions can be applied has been studied, namely: a) foreign states; b) foreign legal entities; c) legal entities under the control of a foreign legal entity or a non-resident individual, foreigners, stateless persons; d) entities engaged in terrorist activities. Sanctions are defined as legal measures to respond immediately to violations of various rights, from encroachment on state sovereignty to the commission of a crime of an international nature, which are temporary, which are applied primarily through coercive measures, which are implemented using constitutional, financial, administrative, economic, criminal procedural, executive, economic procedural and other branches of law. The issues of the grounds for application of sanctions, their types and criteria for their delimitation, the term of application of sanctions, as well as the range of authorized entities in the field of their application are covered. The main approaches of scholars to the characterization of sanctions as measures of influence are investigated. It is noted that sanctions are measures of influence different from measures of legal responsibility, which may have a "non-criminal" nature. It is stated that sanctions are measures of influence that are applied, albeit in parallel, but in a systematic connection with the criminal prosecution imposed by the state or executed by it as a subject of international cooperation in the fight against crime. Their application is, firstly, due to the decision at the international or regional level on the application of international economic (financial) sanctions, personal sanctions in the course of criminal prosecution for acts of an international crime. However, Ukraine is obliged to adhere to international standards of the legal mechanism for the application of sanctions at the domestic level, to improve the procedural principles of their application, appeal procedures and amendments to the decision. We consider the participation of the Commissioner for Human Rights in the process of reviewing the decision on the application of sanctions and appealing the decisions necessary. Amendments to the Law of Ukraine "On Sanctions" are proposed in order to establish among the necessary grounds for the application of sanctions to individuals the opening of criminal proceedings against them, and for legal entities - the opening of criminal proceedings against related persons, as well as amendments to the Criminal Procedure Code of Ukraine, as it does not contain provisions on such preliminary measures (securing and stopping) as "sanctions". In addition, in general, the sanctions procedure requires greater transparency, and it is concluded that sanctions can be applied to Ukrainian citizens only if they are suspected of involvement in terrorist activities.

Constitutional court procedure and constitutional control in the field of lustration

The article considers the constitutional court procedure and constitutional control in the field of lustration. These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice. It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release. It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools. For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

Human trafficking and surrogate motherhood: challenges

Owing to modern scientific advances prospective parents, among other opportunities, enjoy the opportunity, which has not been available before. It consists in giving birth to a child by using another woman’s reproductive capacity when the situation seems hardly improvable. The paper examines surrogate motherhood as one of the reproductive methods through the prism of human trafficking. It aims at studying and differentiating such legal phenomena as the sale of human beings and surrogate motherhood, which is provided primarily on a paid-for basis, whose consequences (transferring irrevocably a child from one person to another), are externally similar. The comparative legal and formal legal methods have been employed to provide a general description of international experience in regulating surrogate motherhood. Examples of absolutely opposite ways of pursuing state policy on the legalization of this type of reproductive methods in foreign countries are suggested: from a complete ban to legislative approval and even further simplification of the applying procedure. It has been proved that there is no connection between acknowledgement of the legality of this procedure and the geographical location of states, the level of their economic development, the specifics of the legal system, and the like. It has been stated that none of the countries can be considered a universal example of solving these issues. Based on the example of Ukrainian legislation, the author suggests distinguishing between the objective aspect of selling human beings and surrogate motherhood, which is provided, first of all, for a fee. It is emphasized that due to the peculiarities of reproductive technologies only a child should be the object of trade, not a person’s gametes, zygote, embryo or fetus. When a child is sold, in view of the objective aspect, the child is illegally transferred from one person to another. In legal surrogate motherhood agreements the object of the agreement concluded between the surrogate mother and the future parents is not the child, but the service related to embryo implantation, pregnancy and childbirth, id est, a long process. Based on criminal law, there have been modelled the peculiarities of surrogate motherhood and its assessment used in determining the signs of human trafficking largely depending on genetic relationship between a child and customers (potential parents), as well as a child and a surrogate mother. The mental element making the distinction between surrogacy and the trafficking of newborns is described. It is emphasized that qualifying as «trafficking in human beings» necessitates the proof of direct intent to unlawfully «transfer» a child, primarily in return for a fee. It has been concluded that the legal regulation of surrogacy requires further improvement and consolidation at the legislative level. Investigators and prosecutors should investigate all the circumstances that were associated with the surrogacy methods applied in order to establish whether child trafficking occurred in each specific case.

Principles and procedure for forming temporary investigation commissions of the Verkhovna Rada of Ukraine

Realization an investigation by temporary investigative commissions of the Verkhovna Rada of Ukraine is one of the leading forms of parliamentary control in Ukraine. Nevertheless, their legal framework still needs to be improved, and parliamentary investigations are relatively infrequent with insufficient efficiency. In this regard, there is a need to study the current legal framework for the formation of temporary investigative commissions. The purpose of the work is an in-depth analysis of the principles and procedure for forming temporary investigative commissions of the Verkhovna Rada of Ukraine, determination their essence and features, as well as substantiation the priority directions for improving the constitutional and legal framework of their organization and activities. Methods. To solve the problems of the research, a number of methods of scientific knowledge were used, including formal-legal method, which determined the current state and problems of legal regulation of the formation of temporary investigative commissions. System-structural method – the unity and interrelation of the procedure of formation and termination of powers of temporary investigative commissions, staffing of their personnel are characterized; logical-semantic method – the essence of the grounds for the formation of temporary investigative commissions is revealed. Results. It is established that the formation of temporary investigative commissions for investigation certain «issues of public interest» allows to take into account the variability of such public interest and the objective impossibility of its exhaustive legal definition. However, this does not preclude the abuse of the right to form temporary investigative commissions in the absence of established parliamentary practice, traditions and political culture. The formation of the staff of the temporary investigative commissions based on proportional representation of each parliamentary faction (group) provides a majority in the temporary investigative commissions to the parliamentary coalition, which may be disinterested in conducting a thorough parliamentary investigation. Conclusions. It is substantiated that the development of constitutional and legal bases for the formation of temporary investigative commissions of the Verkhovna Rada of Ukraine should include expansion of constitutional guarantees for the formation of temporary investigative commissions and clarification of issues that cannot be the subject of parliamentary investigation. Other measures should be bringing the rules of procedure of the parliament in line with the relevant Law of Ukraine, taking into account the modern parliamentary practice of Ukraine and the experience of democratic countries, as well as application of disciplinary measures to members of the temporary investigative commission in case it fails to submit a report. It is also advisable prohibition of conducting parliamentary investigations into issues pending before the court, guaranteeing the opposition at least half of the seats in the temporary investigative commission, as well as legislative establishment of its minimum and maximum quantitative composition. The following measures should be establishing requirements for the professionalism and competence of the members of the temporary investigative commission and prohibition of combining senior positions in temporary commissions and committees of parliament.

Issues of implementation of equality of arms principle in case of declaring the applied law unconstitutional

The Article considers the issue of ensuring the constitutional principle of equality of litigants before the law and the court during review of the judgement in view of the exceptional circumstances after consideration of the case by the Constitutional Court. Based on the study of legal nature of such consequences of nullity of the law as pro futuro, ex nunc, ex tunc, the risks of violation of the constitutional right of a person to judicial protection shall be established. The aim of the Article is to detect the objective demonstration of the constitutional principle of equality of litigants before the law and the court. The methods of the study: system, dialectical, integrative, interdisciplinary and scientific methods applied to detect the interrelation between the constitutional principle of equality of arms and its practical demonstration in litigation process. The main results of the study. Two components affecting the efficiency of protection of such right have been established: future effect of the judgement of the Constitutional Court of Ukraine and impossibility to consider the application in view of exceptional circumstances if before appeal to the Constitutional Court of Ukraine a person’s claim was dismissed in full under the applicable laws and was further declared unconstitutional by the Constitutional Court. The erroneous legal position of the supreme court in the system of the judiciary of Ukraine was proved in terms of the impossibility of initiating proceeding in exceptional circumstances after delivery of the judgement of the Constitutional Court of Ukraine due to the fact that the person’s claim had previously been dismissed and such a judgement does not provide for its enforcement. This conclusion deprives a person of the right to a final trial at the national level in accordance with the procedure of applying to the court (Articles 8, 24, 55, paragraph 1 Part 2 of Article 129 of the Constitution of Ukraine). It is proposed to develop a special law establishing the grounds and procedure for compensation by the state of moral and financial damages caused by the law recognized as the unconstitutional one.

Measures to counter the COVID-19 pandemic and the permissibility of human rights restrictions

Following the declaration of a pandemic caused by the SARS-CoV-2 virus, the EU and Ukraine have taken various measures to prevent infection and protect the health of citizens, including: mandatory obervation (most countries); introduction of the rules of responsibitity for violation of quarantine restrictions (usually administrative, but criminal liability is also possible); closure of educational and entertainment facilities, as well as public catering establishments (remote operation of educational facilities is allowed, as well as operation of public catering establishments with food delivery); obligation to wear masks; prohibition of movement of groups of persons; maximum transfer of employees to remote work; ban on operation of most companies (introduced by Italy and Spain); closing borders; curfew (introduced in Italy, Spain and Georgia); self-isolation of persons belonging to risk groups. Ukraine has implemented all these measures, except for curfew and closure of all enterprises. Implemented measures in most countries have restricted: freedom of movement and peaceful assembly of citizens; the right to private and family life; protection of personal data; freedom of religion (most European countries and Ukraine have banned services and other religious ceremonies with gatherings); the right to medical care (in many countries, citizens have limited access to non-life-saving medical services, including dental, preventive medical services, non-urgent operations, etc.) and others. In the context of the fight against the COVID-19 pandemic, states relied on various types of measures, which allowed us to distinguish three models: "hard" model (USA and most European countries and Ukraine); the "minimum intervention" model (introduced in South Korea); the "maximum public awareness" model (in Sweden). The question of the proportionality of measures taken by the state to counter the COVID-19 pandemic may be considered by the ECtHR regardless of whether the state has made a declaration of derogation, and the establishment of a violation of a particular right will depend on the specific situation in the country, scope and length of applied measures, as well as their feasibility and effectiveness.

The concept and content of the constitutional principle of justice

The purpose of the article is to study the concept and content of the constitutional principle of justice, its impact on constitutional relations, identifying problems that arose during the implementation of this principle during quarantine restrictions due to the pandemic of COVID-19. This goal was achieved through the use of such methods as analysis of comparative law and formal law method. The study found that the principle of justice, although not enshrined in the Basic Law of Ukraine, but it goes through the Constitution of Ukraine and procedural codes. The problematic issue is that there is no legislative definition of «justice». The practice of the Constitutional Court of Ukraine on the application of the principle of justice in its decisions is analyzed. It is substantiated that justice is a concept much broader than law and is a criterion for the legitimation of state power. The problems of realization of the constitutional principle of justice are investigated. It was found that the principles of law, which are enshrined in the Constitution of Ukraine and current legislation of Ukraine, are not properly implemented in our country. The reason for this is the mentality of Ukrainians, which is characterized by low legal and political culture, violation of the law, distrust to the authorities, devaluation of moral and spiritual values. On the part of officials, it is a misuse of office positions. It is justified that justice requires equal application of the law for all. However, everyone has his/her own understanding and vision of justice. This led to problems during the coronavirus pandemic. Violations such as the violation of the constitutional right to education have been identified, namely distance learning leads to a violation of the principles of justice and equality. Restrictions on small and medium-sized businesses during the COVID-19 pandemic discriminated against entrepreneurs compared to large businesses. As a result of the study, it was concluded that justice is a legal value and a fundamental principle of law, which permeates both the Constitution of Ukraine and current legislation. The realization of justice can be done only by observing the law. In Ukraine, it is quite difficult to implement this principle, because the laws are often unfair. During the quarantine restrictions, violations of constitutional human rights were revealed. Overcoming corruption and raising the legal culture and legal awareness of Ukrainians should be a necessary step for the effective implementation of the principle of justice.

Development of theoretical and legal approaches to understanding the essence of somatic human rights in the process of biomedical research

It is pointed out that theoretical ideas about the relationship between man and the field of biomedical research inevitably affect the coverage of aspects that are not reduced to the subjects of constitutional and legal regulation. Accordingly, it was methodologically unjustified to limit the idea of realization of somatic rights of citizens only to the analysis of the norms of constitutions. The essence of the implementation of somatic rights of citizens in the process of biomedical research as effective elements in the development of society and in accordance with one category of constitutional law determines the need to review them from the standpoint of ontology, epistemology and axiology of rights. Thus, studies of these complex relationships do not take into account that they determine approaches to their knowledge, explore the order and principles of their implementation and protection, socio-legal "existence", analyze the value of political and legal image. Certainly, in order to create a reliable modern scientific foundation for understanding the essence of somatic human rights in the process of biomedical research, it is advisable to influence historical excursions in the specialty that studies a particular legal issue, constitutional and legal foundations of individual somatic rights, , on the basis of and formulated previously existing and current legislation. This will exclude certain trends in the development of both legal doctrine and rule-making activities, the results of which are a thorough improvement of current legislation of Ukraine, including codified content, solve certain problems while opening ways to solve them in different historical periods to avoid in the future. negative and borrow positive experiences. The authors argue, based on the analysis of theorists of state and rights, constitutionalists, natives who are involved in the study of somatic human rights, religious scholars who can achieve the result that the historiography of somatic human rights in biomedical research in the broad scientific field of knowledge development of constitutional and legal science and its regularities; in the narrow sense, it is a set of works on various problems of the history of modern constitutionalism, human rights, the influence of religion on human rights and the mechanism of their implementation and protection in a certain historical period. At the same time, the aim of the work is to study the constitutional and legal principles and the influence of various factors on the mechanism of realization of somatic rights in the process of biomedical research. The methodological basis of the study was the worldview dialectical, general scientific and specific scientific methods of cognition of the phenomena of state and legal reality. Thus, in particular, formal-logical methods of analysis and synthesis allowed to reveal the content of the concepts that make up the subject of research, to classify them, as well as to formulate intermediate and general conclusions. The systematic method allowed to study the role and significance of somatic human rights among other human and civil rights and freedoms. Using the historical method, the doctrinal basis of the study was analyzed, and the main stages of the formation of biomedical research with human participation were identified. The structural-functional method allowed to clarify the internal structure of the mechanism of constitutional and legal support of somatic rights and freedoms of man and citizen in the process of biomedical research, as well as to determine the functional purpose of each element of this mechanism. The content of legal regulations governing social relations, within which the organization and functioning of the mechanism of protection of somatic human rights in the process of biomedical research, was revealed using a special legal method of cognition. The comparative method made it possible to identify similar features and differences in the constitutional and legal regulation of the mechanism of protection of somatic human rights in the process of conducting biomedical research.

Conventional and constitutional regulations of lawful detention of a person without a court decision: criminal procedure aspect

The article compares the requirements for the lawful application of detention without a court decision as a criminal procedure established in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms and in the second sentence of Article 29 part 3 of the Constitution of Ukraine. In particular, the content of the concept of "detention" of a person is studied, the list of subjects who have the right to detain a person without a court decision and the legal content and list of legitimate grounds for detention of a person without a court decision as a criminal procedure are studied and compared. Conventional, constitutional and criminal-procedural norms are also studied, as well as the necessity of mandatory further judicial review of the legality of the detention of a person, including the terms of such review. Based on a detailed analysis of these provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, relevant decisions of the European Court of Human Rights and the Criminal Procedure Code of Ukraine, it is established that the grounds for the detention of a person by a general entity, defined by paragraph 2 of Article 207 of the Criminal Procedure Code of Ukraine, and a special entity, defined by subparagraphs 1 and 2 (except subparagraph 3) of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine, in general, correspond to the grounds for lawful detention of a person enshrined in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, it cannot be qualified as unlawful interference with the human right to liberty and security of person. At the same time, proposals are formulated to make changes and additions to subparagraph 3 of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine. It is also proved that the provisions of paragraph 2 of Article 12 and Articles 209 and 211 of the Criminal Procedure Code of Ukraine are critical provisions of the current legislation of Ukraine regarding the lawful application of detention of a person without a court decision. These provisions actually eliminate some shortcomings and establish the necessary legal and procedural grounds for the clarified application of the provision of the second sentence of part 3 of Article 29 of the Constitution of Ukraine, in accordance with the provisions of paragraph 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of their application developed by the European Court of Human Rights.