Special courtroom as an element of child-friendly justice: organizational and legal aspect

The entry of a child into the sphere of justice, regardless of its status, requires the creation of such conditions that would minimize the possibility of the impact of negative factors in the process of administering justice on the child himself. In this regard, one of the effective and important elements in the child-friendly justice system may be the organization of a special courtroom, which would be adapted to hear cases involving a child, which is not widely used in national practice and does not have the appropriate legal regulation in general. In addition, to date, there are no studies that would reflect the problems of organizing a courtroom, in which it is possible to try different categories of cases with the participation of the child. The article attempts to conduct a theoretical and legal study of existing international standards and national legal regulation of the organization of child-friendly courtrooms, identifying the basic elements for its creation, through which it is possible to formulate basic approaches to the administration of child-friendly justice. The author stressed that international standards refer to the components of child-friendly justice, including the issue of creating the most comfortable conditions for the child in the courtroom and directly during the hearing. To substantiate the conclusions, we analyzed the national case law and the case law of the European Court of Human Rights, which demonstrates cases of violation of children's rights by not creating appropriate conditions for the trial of children, and emphasizes the importance of the situation in which the trial took place. from litigation involving adults. Positive practices of organization of special courtrooms in some courts of Ukraine are given. Based on the analysis, it was found that the issue of arranging a courtroom friendly to children has no legislative and departmental regulations, in connection with which proposed ways to address the legislative gap in this direction and guidelines for organizing a special courtroom, which is positively assessed. Рrovided children who were invited to court and who had the opportunity to compare the general courtroom and the special. Keywords: international standards, children's rights, child-friendly justice, child interview, courtroom.

Electoral disputes in the legal positions of the Supreme Court

The article is devoted to the study of the rulings of the Supreme Court in the field of suffrage protection. The author uses specific examples to illustrate the importance of jurisprudence for the effective protection of the said rights of all participants in the election process in Ukraine. The interpretation of legal regulations by the Supreme Court is designed to ensure the certainty of the legal regulation when applying it to resolve disputes in the court. At the same time, the analysis of jurisprudence demonstrates the low level of legal culture in society, as well as the need for educational measures to ensure the exercise of suffrage and their protection. Particular emphasis has been placed on the universality of the legal conclusions of the Supreme Court. In particular, certain criteria of good governance can be applied when considering administrative cases related to the exercise of powers of state bodies and local self-government bodies, their officials, regardless of the category of cases. The conclusion regarding the conditions for declaring the inaction of the subjects of power illegal is similar. At the same time, the Supreme Court does not always achieve legal certainty in its rulings. An example is the case on the legal nature of the President’s of Ukraine poll, which does not specify the criteria for distinguishing covert agitation from the poll (exit poll). The resolution of procedural issues related to the delimitation of jurisdiction, as well as the issues of consolidation and separation of claims has equal importance. The issue of election cases, including territorial ones, jurisdiction, needs to be resolved, given the reduced deadlines for applying for protection of suffrage. The unity of the practice of application of procedural regulations ensures the equality of participants in the administrative process before the procedural law and the court. The analysis of the case law of the Supreme Court shows its compliance with international standards, in particular, the case law of the European Court of Human Rights. Key words: suffrage, Supreme Court, right to defense, election case.

An anti-corruption value of administrative and legal restrictions of joint work of near persons in justice system

The article focuses on the formulation of an urgent comprehensive scientific thought on the anti-corruption value of the administrative and legal restriction of the closely affiliated persons’ collaboration in the justice system of Ukraine. It is a justified restriction of the citizens’ rights to access professional public service in the justice system, provided by national administrative legislation, to continue public service and to exercise a career in this system, by preventing the conclusion of a service contract, blocking the promotion of persons, if this predetermines about direct subordination to a closely affiliated person; termination of official legal relations with persons who are in a relationship of direct subordination to a closely affiliated person. It is noted that the general anti-corruption essence of the restriction under consideration is manifested in the fact that this restriction appears as a «personnel barrier» for increasing corruption risks in the justice system due to the implementation of personnel policy, as well as a “personnel instrument” for correcting situations when a violation of the corresponding restrictions takes place. Considering the concept and essence of limiting the collaboration of closely affiliated persons in the justice system, the author proves that the anti-corruption value of such a limitation is that it: while restricting the joint work of closely affiliated persons in the justice system, makes it impossible for nepotism as a separate manifestation of corruption to arise in this system; is a real barrier that reduces the dynamics of the spread of corruption and limits its scale (primarily, in the form of nepotism) in the system of public administration subjects in Ukraine in general and in the justice system in particular; contributes to increasing the authority of judges, professional public service in general and the level of respect and trust of society in the judiciary, the state, as well as reducing legal nihilism in society; maximizes positive incentives for lawful behavior of citizens in general and professional public servants in the justice system, in particular; is the actual result of a public demand for a decrease in the level of tolerance to corruption in the public administration system in general and in justice system, in particular. In the conclusions to the article, it is noted that non-compliance with the administrative and legal restrictions on the collaboration of closely affiliated persons in the justice system creates a situation in which the public service bodies in this system are filled with close persons, who may enter into a corruption conspiracy to use the common good and public interest in their own (personal) interests, which is unacceptable because it distorts the purpose of the existence of the state in general and the judicial power, in particular. Keywords: administrative and legal restrictions, anti-corruption value, corruption in the justice system, joint work of closely affiliated persons, justice system, personnel barrier, personnel tool.

Current trends in ensuring the best interests of the child in child support cases

The article is sanctified to the application of the principle of ensuring the best interests of the child in the cases of recovery of alimony at the present stage of development of Ukrainian society. It is determined that the regulation of family relations with the participation of the child is increasingly focused on ensuring the best interests of the child. This principle also includes an element of the child's material security, which should be understood as the child's right to protection and care, which are necessary to provide material needs. The obligation of material support of the child is the responsibility of the state, which independently chooses the measures that will be used to achieve this goal.In Ukraine, the main responsibility for the child's financial support lies with the parents. The obligation to maintain the child is fulfilled by the parents voluntarily or compulsorily (by paying alimony). Alimony is accrued within the financial means of the parents, considering the living conditions necessary for the child's development. After analyzing the latest updates in the legislation of Ukraine, the author found that the legislator is taking active measures to properly regulate the issue of alimony. However, the quality of the introduced norms is not always at the proper level, which leads to conflicts in their application. By interpreting the principle of ensuring the best interests of the child in some cases, the court has the opportunity to close such gaps. However, in other cases, such efforts by the court are futile, as a result conflicts arising from the application of such rules do not find an effective solution. It only hinders the solution of the issue of providing the child with the necessary material support In opinion of author, the legislator should work to eliminate the problems listed in the article, and further improve the quality of the proposed rules in family law. Such norms should have not only a legitimate purpose, which is to ensure the interests of the child, but also an effective implementation mechanism. Otherwise, it will not bring the desired benefits and generate ambiguous case law, which is harmful. Keywords:the principle of ensuring the best interests of the child, alimony, family law relations.

Application of law vs «improvement of legislation» (some considerations on current legal practice)

Relevant problems of the practice of application of law and permanent process of improvement of the Ukrainian legislation are examined in this article. In particular authors stress on contradiction between process of the permanent improvement of the legislation and sustainability, predictability and legal certainty as principles of legal system. On the one hand, constant reforming of the legislation of Ukraine does not give possibility for subjects of law to create stable legal relations, which are regulated in a predictable way. On the other hand, legislation of Ukraine must be actual and even few “step ahead” the actual situation in Ukraine. It must give necessary methods, tools and legal instruments, which regulate relations between subjects of law. Described judicial and notarial practical cases show in what way flexibility of the legislation could be provided in conditions of the ongoing changes. Authors consider that qualified and high-quality application of the current legislation by the subjects of application of law gives possibility to provide flexibility of the legislation. Such application of law is done by subjects applying the law, although their actions are not directly provided for by the legislation, but they are not prohibited either. Essential principle of such application of law must be the whole tendency to create those legal consequences of the application of law which will not lead to the direct infringement of somebodies rights and interests within the process of application of law. Illustrated lawsuit and case of notarial practice show how exactly interpretative mechanism and analogy as a tool of the subject applying the law help to avoid infringements of rights and interests of heirs of the deceased person. Keywords: application of law, improvement of the legislation, notary, judge, court and notarial practice.

Legislative regulation of the powers of intelligence agencies: a comparative analysis

Based on the comparison of the Law of Ukraine "On Intelligence" with the legislative acts of some countries, the content, direction and completeness of the powers defined for the intelligence agencies have been clarified. The quality of legal regulations on the rights and responsibilities of intelligence agencies, their proximity to European standards has been studied. This is especially true of the problems of guaranteeing and respecting the constitutional rights of man and citizen during the implementation of intelligence measures against them within the defined powers. It is proved that the state, represented by the legislator, transfers to the intelligence body as one of the subjects of the intelligence sphere a certain set of rights and responsibilities to dispose of them to achieve goals, solve tasks and perform the functions specified by law. Peculiarities of the Ukrainian legislation concerning definition of powers of intelligence bodies are investigated. It is noted that all the rights granted by the domestic legislature to intelligence agencies can be divided into four groups, among which only one group reflects the functionality of intelligence. The peculiarities of the legislative acts of Georgia, the Republic of Croatia, the Russian Federation, the Republic of Belarus and the Republic of Lithuania regarding the powers of the intelligence agencies have been determined. It is proposed considerthe positive experience of these countries to improve domestic legislation, namely: it is desirable to define separately in the law the rights and responsibilities of intelligence agencies; responsibilities should be formulated in such a way that they correspond to the rights of other intelligence actors; the rights and responsibilities of the heads of intelligence agencies should not be defined in the general sense, as for the heads of other state bodies, but in accordance with their special functionality; it is advisable to formulate the rights and responsibilities of intelligence officials to perform a specific task, function or to conduct a separate intelligence event. Keywords: national security, intelligence, intelligence agencies, legislative regulation of the powers of intelligence agencies.

Mechanisms of attaining the objectives of criminal procedure on preservation of victims’ rights, freedoms and legitimate interests and prevention of secondary victimization in pre-trial investigation

The study is devoted to the issue of legal mechanism of attaining the objectives of criminal procedure on preservation of victims’ rights, freedoms and legitimate interests and prevention of secondary victimization in pre-trial proceedings (initiation of criminal proceedings and pre-trial investigation). This mechanism is composed of the procedure of legal entitlement of a harmed person with procedural status of victim, which provides the opportunity to participate sub actively in criminal process and to take advantages from corresponding legal guarantees in the process; the procedure for providing victims with a written acknowledgement of their formal complaint by criminal justice system officials that ensures that victim’s claim on the assumption that he or she has suffered some sort of harm as a direct result of criminal offense had been committed, is considered as true and simultaneously is examined by providing pre-trial investigation; ensuring that victims have been provided with the opportunity to receive preservation and protection of their violated procedural rights, in particular by providing access to challenge in court in pre-trial investigation processdecisions, actions or actions of investigator, inquirer, prosecutor or investigating judge. The author states that the Criminal Procedural Code of Ukraine prescribe that entitling of a harmed person with victim status is made through autodynamic procedure and that the Code purposely does not lie the burden of proof for attest suffered harm on the victim, which he or she proclaimed in a complaint. The common legal Presumption of Integrity and good faith of the person is embodied in mentioned legal provision and, as the author pointed out, have led to the obligation of competent officers to use an Anticipatory Trust Doctrine in resolving the issue of deprivation of the procedural status of the victim. The burden of proof for absence of harm is lied on investigator or prosecutor according to the author’s interpretation of Part 5 Art. 55 of the Criminal Procedural Code of Ukraine. The Code purposely does not provide the procedure for deprivation of the procedural status of victim in the stage of Trial too. Court order of investigating judge on the cancellation of the prosecutor's decision on deprivation of the procedural status of victim, ipso facto, entitling the complainant with victim status, as it restores the normative provision of first paragraph of Part 2 Art. 55 of the Criminal Procedural Code of Ukraine. The author analyzed nationwide statistic of court orders of investigating judge in two-last-years period and concluded that, on the one hand, the harmed persons often believe that their procedural rights are violated or ignored in pre-trial proceedings (at the initiation of criminal proceedings and in pre-trial investigation), which is leading to increased risks of secondary victimization; on the other hand, the rates of satisfaction of victims' complaints by the investigating judge are high, which proves the effectiveness of the institution of challenging in correcting mistakes that were committed earlier. Keywords: secondary victimization, objectives of criminal procedure, victim, harmed person, anticipatory trust doctrine, presumption of victims’ integrity, preservation of rights, freedoms and legitimate interests of victims, legal entitlement with status of the victim, acquisition of the status of the victim, deprivation of the procedural status of victim, refusal to recognize the victim, challenging in pre-trial investigation.

On the issues of judicial control over the discretion of the authority

Purpose: The purpose of the article is to define the concept of «discretionary powers», to formulate conclusions on the limits of discretionary powers of government authorities, to analyze the limits of judicial control over discretionary powers, the correlation between court procedural discretion and public administration discretion. Methods: The theoretical and methodological basis of the study are modern general scientific and special legal methods of scientific knowledge. The formal-logical method and the method of analysis and synthesis are used in the study of doctrinal provisions on the concept of «discretionary powers». The method of comparative legal analysis is used in the study of foreign models of judicial control over the exercise of discretionary powers. Results: The article defines the concept of «discretionary powers», considers the types of administrative discretion, approaches to the scope of judicial control over the implementation of discretionary powers in different European countries, givthe criteria for effective judicial control over the exercise of discretionary powers. Conclusions: The attribute of effective judicial protection against illegal activity in the exercise of discretionary powers is the issuance of a court decision that makes it impossible to re-apply to the administrative body or re-resolve the same issue. Based on this, it is concluded that in Ukraine it is appropriate to apply the model of full judicial control, and the recognition of the disputed decision as illegal with the obligation to re-adopt the administrative decision is contrary to the rule of law principle, except the situations when: - there was no real consideration of the issue as such (non-compliance with the decision-making procedure, decision-making by an inappropriate subject); - there is an exclusive competence of the relevant body to make a specific decision (assign a rank, military rank, etc.). Keywords: rule of law, administrative discretion, procedural discretion, judicial control, remedies.

Regarding the possibility of postponing or deferring the execution of the decision of the international commercial arbitration court: legal regulation and case law

The article deals with problematic issues related to the postponement or postponement of the execution of the decision of the International Commercial Arbitration Court. The analysis of the norms contained in Chapter 3 "Recognition and granting permission to enforce the decision of international commercial arbitration" of Chapter 9 of the CPC of Ukraine shows that the legislator imperatively regulates the powers of the court when considering applications for recognition and granting permission to enforce international commercial arbitration. However, in this chapter there is no rule that would allow the court to decide on the postponement or installment of the execution of the decision of international commercial arbitration in the case of granting permission to execute it. However, Article 435 of the CPC of Ukraine, which is placed in Section 6 of the CPC of Ukraine "Procedural issues related to the execution of court decisions in civil cases and decisions of other bodies (officials)", the rules of which are applied at the stage of execution of court decisions in civil cases and decisions of other bodies (officials), establishes the possibility of deciding on the postponement or installment of execution, but the powers in this regard are vested only in the court that considered the case as a court of first instance. The norm identical in content is enshrined in Article 33 of the Law of Ukraine "On Enforcement Proceedings". In this regard, in practice, the question arises: can the court that considered the application for recognition and permission to enforce the decision of international commercial arbitration, be considered a court that considered the case as a court of first instance, and, accordingly, decide on adjournment or deferral of execution of the decision of the international commercial arbitration court? Keywords: postponement of execution of the decision, international commercial arbitration, court practice.

Freedom of movement in terms of justification in a democratic society: ECtHR approaches

The article is devoted to the right to freedom of movement, guaranteed by the Article 2 of the Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms and compliance with the requirement of «necessity in a democratic society» while restricting freedom of movement. The article mentions the implementation of Article 2 of Protocol 4 to the Convention and the case law of the ECtHR by national courts in practice. In particular, it is stated that Article 2 of Protocol 4 to the Convention is most often applied in decisions of the courts of civil jurisdiction (507), less so in cases of the administrative courts (47), although namely administrative justice must protect human rights from arbitrary state interference. Article 2 of Protocol 4 to the Convention is most frequently applied by administrative courts in numerous and uncomplicated cases concerning the registration of a person's place of residence. It is noted that freedom of movement includes 3 aspects: free movement, freedom to choose residence and the right to leave any country freely, including one's own. It is emphasized that freedom of movement, even though it is a fundamental freedom, is not absolute and may be restricted under the conditions set out in Article 2 of the Protocol. Restrictions on freedom of movement must be necessary in a democratic society. Proportionality is an indirect requirement of necessity in a democratic society. The concept of «necessity in a democratic society» is the most unusual for national jurisprudence. A study of the ECtHR case law on Article 2 of Protocol 4 shows that freedom of movement is most often violated because the imposed restrictions are not justified in a democratic society. Using the ECtHR case law (judgements «Garib v. The Netherlands», «Soltysyak v. Russia», «Stamose v. Bulgaria», «Bartik v. Russia») revealed (named, described) key aspects (factors) taken into account by the ECtHR when verifying compliance with the criterion of «necessity in a democratic society» and proportionality in the consideration of complaints concerning the restriction of the right to freedom of movement. It is appropriate to take into account the following factors: the private situation of the person whose right is restricted, the severity of the measure, the duration of restrictions, the availability of judicial review. The circumstances that exist in the state at the time when the restrictions are applied are important. Restrictive measures must be appropriate to the purpose pursued throughout the duration of the restrictions. To determine whether the restriction was proportionate, it is necessary to take into account the dynamic approach to the interpretation of the ECHR, according to which the Convention is a «living" instrument and should be interpreted in the current context. Key words: freedom of movement, Protocol № 4 to the Convention, ECtHR practice, restrictions, administrative jurisdiction, necessity in a democratic society, proportionality.