Pub Date : 2023-01-19DOI: 10.33327/ajee-18-6.1-a000104
Goda Strikaitė-Latušinskaja
Background: Technology promises the provision of public services to be more efficient, transparent, cheaper, and faster, but current issues associated with various technologies, such as, inter alia, discrimination, the ‘black-box’ problem, or cybersecurity issues raise concerns about potential legal risks. Accordingly, the question of whether democracies survive potential threats to legal norms arises. Various EU institutions express the position that we must promote technological applications but, at the same time, ensure adequate protection of human rights. However, sometimes this line is very thin – thus, it is necessary to examine how, and which technological applications should be applied in the public sector in order not to violate human rights requirements. The analysis of the proper assurance of the principle of the rule of law where certain technologies are implemented in the public sector will help to answer the questions of whether the chosen legal regulation in the implementation of these functions of the state is appropriate and whether the chosen method of technology integration complies with the principle of the rule of law. Methods: The following methods were used in the article to research potential modern technology risks to the rule of law principle. The systematic method was useful when interpreting the mutual interaction of legal norms. With the help of this method, systemic connections with other legal norms and other sources of law were assessed. With the help of the teleological method of legal interpretation, the goals and objectives of the rule of law principle were determined. The comparative method was used to study the experience of foreign countries regarding various aspects of technology in the public sector. Results and conclusions: The paper concludes that the supremacy of the rule of law must be ensured when applying any kind of technology in the public sector. The paper also concludes that different rule of law elements might be at risk in certain areas of the public sector where technologies are incorporated, such as automated administrative orders, the risk-assessment tool COMPAS, and robot-judges.
{"title":"The Rule of Law and Technology in the Public Sector","authors":"Goda Strikaitė-Latušinskaja","doi":"10.33327/ajee-18-6.1-a000104","DOIUrl":"https://doi.org/10.33327/ajee-18-6.1-a000104","url":null,"abstract":"Background: Technology promises the provision of public services to be more efficient, transparent, cheaper, and faster, but current issues associated with various technologies, such as, inter alia, discrimination, the ‘black-box’ problem, or cybersecurity issues raise concerns about potential legal risks. Accordingly, the question of whether democracies survive potential threats to legal norms arises. Various EU institutions express the position that we must promote technological applications but, at the same time, ensure adequate protection of human rights. However, sometimes this line is very thin – thus, it is necessary to examine how, and which technological applications should be applied in the public sector in order not to violate human rights requirements. The analysis of the proper assurance of the principle of the rule of law where certain technologies are implemented in the public sector will help to answer the questions of whether the chosen legal regulation in the implementation of these functions of the state is appropriate and whether the chosen method of technology integration complies with the principle of the rule of law. \u0000Methods: The following methods were used in the article to research potential modern technology risks to the rule of law principle. The systematic method was useful when interpreting the mutual interaction of legal norms. With the help of this method, systemic connections with other legal norms and other sources of law were assessed. With the help of the teleological method of legal interpretation, the goals and objectives of the rule of law principle were determined. The comparative method was used to study the experience of foreign countries regarding various aspects of technology in the public sector.\u0000Results and conclusions: The paper concludes that the supremacy of the rule of law must be ensured when applying any kind of technology in the public sector. The paper also concludes that different rule of law elements might be at risk in certain areas of the public sector where technologies are incorporated, such as automated administrative orders, the risk-assessment tool COMPAS, and robot-judges.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43500585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-n000440
Yuliia Hartman
Background: During martial law, the protection of children’s rights is of the utmost importance. One key aspect is the realisation of the right to raise a child in the family, and one of the ways this can be exercised is through adoption. However, martial law adoption has many nuances and pitfalls that require careful research. Methods: In this article, the author carried out a comprehensive study of both the changes in the legislation of Ukraine in terms of adoption in the context of martial law and the alternatives that can be applied to adoption during wartime. In particular, the following issues were considered: reunification of adoptive parents with an adopted child evacuated outside of Ukraine; transfer of child placement processes to a digital format; adoption conditions and registration of children during martial law; peculiarities of registration of candidates for adoptive parents; circle of subjects who can be adoptive parents during martial law; the functioning of the institute of temporary placement of children in Ukraine and the institute of guardianship and care during martial law; peculiarities of the procedure for trial of adoption cases; and existing national control mechanisms for displaced children. The advantages of temporary placement over adoption during martial law and current practice in this regard are also analysed. In addition, the article provides statistical information about children who suffered as a result of a full-scale war, information about family forms of upbringing, information about the number of court proceedings in the category of adoption cases, as well as foreign experience in overcoming the problem of “children of war”. Results and Conclusions: The result of this study is the determination of ways to solve the fate of children who were left without parents as a result of the armed aggression of the Russian Federation, as well as clarification of the mechanisms of their functioning in practice.
{"title":"ADOPTION DURING THE WAR IN UKRAINE: HOW NOT TO LOSE A CHILD","authors":"Yuliia Hartman","doi":"10.33327/ajee-18-5.4-n000440","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-n000440","url":null,"abstract":"Background: During martial law, the protection of children’s rights is of the utmost importance. One key aspect is the realisation of the right to raise a child in the family, and one of the ways this can be exercised is through adoption. However, martial law adoption has many nuances and pitfalls that require careful research.\u0000Methods: In this article, the author carried out a comprehensive study of both the changes in the legislation of Ukraine in terms of adoption in the context of martial law and the alternatives that can be applied to adoption during wartime. In particular, the following issues were considered: reunification of adoptive parents with an adopted child evacuated outside of Ukraine; transfer of child placement processes to a digital format; adoption conditions and registration of children during martial law; peculiarities of registration of candidates for adoptive parents; circle of subjects who can be adoptive parents during martial law; the functioning of the institute of temporary placement of children in Ukraine and the institute of guardianship and care during martial law; peculiarities of the procedure for trial of adoption cases; and existing national control mechanisms for displaced children. The advantages of temporary placement over adoption during martial law and current practice in this regard are also analysed. In addition, the article provides statistical information about children who suffered as a result of a full-scale war, information about family forms of upbringing, information about the number of court proceedings in the category of adoption cases, as well as foreign experience in overcoming the problem of “children of war”.\u0000Results and Conclusions: The result of this study is the determination of ways to solve the fate of children who were left without parents as a result of the armed aggression of the Russian Federation, as well as clarification of the mechanisms of their functioning in practice.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47809561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-n000447
Hryhorii Berchenko, T. Slinko, Oleh Horai
Background: Unamendable constitutional provisions arose with the appearance of the first constitutions in the USA and Norway, but did not become widespread. The unamendability of a republican form of government, included in the Constitution of France in 1885, continued this tradition. Such provisions became more widespread after the Second World War. Countries that gained independence began to include a mention of territorial integrity in such provisions. Ukraine belongs to such countries (the Constitution of 1996). Since 2014, Ukraine has faced encroachment on its territorial integrity by an aggressor state − its eastern neighbor. Given these circumstances, the study of the nature and meaning of unamendable provisions of a constitution has particular relevance. Methods: The following methods were used in the work to research the main approaches to the unamendable provisions of the constitution. The system-structural method was useful when providing a structural characterisation of the concept of unamendable provisions, as well as its varieties, establishing a relationship with other concepts (multilevel constitutional design). The logical-legal method made it possible to discover the positions of scientists regarding an optimal list of unamendable provisions, the possible violation of such provisions in the situation of a constitutional revolution, and the positions of the Constitutional Court of Ukraine regarding the protection of territorial integrity in Ukraine. The comparative method was used to study the experience of foreign countries. Results and Conclusions: The paper analysed the legal consequences of violation of territorial integrity, concluding that military aggression, occupation and unacknowledged annexation of part of Ukrainian territory by Russia is not a reason to refuse territorial integrity as an unamendable provision of the Constitution of Ukraine. On the contrary, the protection of this provision should be strengthened.
{"title":"UNAMENDABLE PROVISIONS OF THE CONSTITUTION AND THE TERRITORIAL INTEGRITY OF UKRAINE","authors":"Hryhorii Berchenko, T. Slinko, Oleh Horai","doi":"10.33327/ajee-18-5.4-n000447","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-n000447","url":null,"abstract":"Background: Unamendable constitutional provisions arose with the appearance of the first constitutions in the USA and Norway, but did not become widespread. The unamendability of a republican form of government, included in the Constitution of France in 1885, continued this tradition. Such provisions became more widespread after the Second World War. Countries that gained independence began to include a mention of territorial integrity in such provisions. Ukraine belongs to such countries (the Constitution of 1996). Since 2014, Ukraine has faced encroachment on its territorial integrity by an aggressor state − its eastern neighbor. Given these circumstances, the study of the nature and meaning of unamendable provisions of a constitution has particular relevance.\u0000Methods: The following methods were used in the work to research the main approaches to the unamendable provisions of the constitution. The system-structural method was useful when providing a structural characterisation of the concept of unamendable provisions, as well as its varieties, establishing a relationship with other concepts (multilevel constitutional design). The logical-legal method made it possible to discover the positions of scientists regarding an optimal list of unamendable provisions, the possible violation of such provisions in the situation of a constitutional revolution, and the positions of the Constitutional Court of Ukraine regarding the protection of territorial integrity in Ukraine. The comparative method was used to study the experience of foreign countries.\u0000Results and Conclusions: The paper analysed the legal consequences of violation of territorial integrity, concluding that military aggression, occupation and unacknowledged annexation of part of Ukrainian territory by Russia is not a reason to refuse territorial integrity as an unamendable provision of the Constitution of Ukraine. On the contrary, the protection of this provision should be strengthened.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45367363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-a000446
I. Izarova
In this issue, we have collected articles and notes written by authors on various topics related to the war in Ukraine. Among the research articles, we have a few contributions on the most requested issues. Our authors studied topical questions and tried to find solutions where they found a lack of proper regulations, gaps, and insufficient information on the reality of the war in Ukraine, using the experience of other war conflicts, modern doctrines, and approaches to argue for their conclusions and recommendations. I would like to express my endless thank to my colleagues, scholars from Ukraine who are working amid the war on topics that are important for all – for the protection of human rights and to develop Ukrainian law and mechanisms for its implementation. I thank all our international authors for their valuable contributions to this discussion. I truly believe that all the conclusions will be useful for further reforms and the main goal – to help prevent war and minimise losses in ongoing conflicts. I am also happy to have the opportunity to announce a joint discussion with the participation of our authors and our audience – we would be happy to share results and exchange opinions with all who are interested. Please see the announcement on our website. Slava Ukraini!
{"title":"ABOUT THE SPECIAL ISSUE ON ACCESS TO JUSTICE IN UKRAINE AMID WAR","authors":"I. Izarova","doi":"10.33327/ajee-18-5.4-a000446","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-a000446","url":null,"abstract":"In this issue, we have collected articles and notes written by authors on various topics related to the war in Ukraine. \u0000\u0000Among the research articles, we have a few contributions on the most requested issues. Our authors studied topical questions and tried to find solutions where they found a lack of proper regulations, gaps, and insufficient information on the reality of the war in Ukraine, using the experience of other war conflicts, modern doctrines, and approaches to argue for their conclusions and recommendations. \u0000I would like to express my endless thank to my colleagues, scholars from Ukraine who are working amid the war on topics that are important for all – for the protection of human rights and to develop Ukrainian law and mechanisms for its implementation. I thank all our international authors for their valuable contributions to this discussion. I truly believe that all the conclusions will be useful for further reforms and the main goal – to help prevent war and minimise losses in ongoing conflicts. \u0000I am also happy to have the opportunity to announce a joint discussion with the participation of our authors and our audience – we would be happy to share results and exchange opinions with all who are interested. Please see the announcement on our website.\u0000Slava Ukraini!","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49498117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-a000466
Oleg M. Yaroshenko, O. Lutsenko
Background: Maintaining labour regulations and the quality of working conditions is a considerable challenge during wartime and martial law. This paper outlines the changes that have affected the working life of employees who continued in employment, both inside and outside Ukraine, under martial law in 2022. Using a qualitative analysis of Ukrainian labour regulations, ILO and Ukrainian government statistics, and direct observation, we show how the legal regulation of labour relations and working conditions has changed under the influence of active hostilities. During the war in Ukraine, many employees started to work remotely, and some companies have relocated their production facilities to areas where there are no active hostilities and continue to operate. At the same time, the legal regulation and nature of labour relations and the quality of working conditions have changed significantly - yet regulations have failed to keep up with the levels of flexibility and timeliness required to respond effectively in the ongoing crisis. Methods: In order to achieve objective scientific results, the authors used such methods as analysis and synthesis to understand and build a logical chain of ideas. The authors used the statistical method to emphasise their positions with real data regarding the situation that developed in practice. Results and Conclusions: We draw conclusions regarding the problems of employees implementing their labour rights during wartime, identify applied aspects of labour law in wartime conditions, and propose ways to improve the situation regarding the implementation of labour rights.
{"title":"WORKING IN WAR: THE MAIN CHANGES IN LABOUR RELATIONS AND WORKING CONDITIONS UNDER MARTIAL LAW IN UKRAINE","authors":"Oleg M. Yaroshenko, O. Lutsenko","doi":"10.33327/ajee-18-5.4-a000466","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-a000466","url":null,"abstract":"Background: Maintaining labour regulations and the quality of working conditions is a considerable challenge during wartime and martial law. This paper outlines the changes that have affected the working life of employees who continued in employment, both inside and outside Ukraine, under martial law in 2022. Using a qualitative analysis of Ukrainian labour regulations, ILO and Ukrainian government statistics, and direct observation, we show how the legal regulation of labour relations and working conditions has changed under the influence of active hostilities. During the war in Ukraine, many employees started to work remotely, and some companies have relocated their production facilities to areas where there are no active hostilities and continue to operate. At the same time, the legal regulation and nature of labour relations and the quality of working conditions have changed significantly - yet regulations have failed to keep up with the levels of flexibility and timeliness required to respond effectively in the ongoing crisis.\u0000Methods: In order to achieve objective scientific results, the authors used such methods as analysis and synthesis to understand and build a logical chain of ideas. The authors used the statistical method to emphasise their positions with real data regarding the situation that developed in practice.\u0000Results and Conclusions: We draw conclusions regarding the problems of employees implementing their labour rights during wartime, identify applied aspects of labour law in wartime conditions, and propose ways to improve the situation regarding the implementation of labour rights.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42948487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-n000431
Maya Khater
Background: Sexual violence is a significant issue that violates human rights and is a source of increasing concern for women during international and local armed conflicts. It has widespread impacts on civilian communities and on women in particular, with grave and long-lasting health, psychological, and social impacts. The descriptive analytical method was used to investigate and analyse laws prohibiting sexual assault against women, focusing on the role of international law in addressing these crimes. It was found that multiple international laws are in place to address this violence, but the enforcement of these laws requires work. Methods: The descriptive-analytical method is used to investigate and analyse legal provisions prohibiting sexual violence against women. A set of recommendations is derived for how to limit and avoid the deterioration of such phenomena and to deal with it at legal, social, political, health, and other levels. Results and Conclusions: Due to its consequences, which include physical, psychological, social, and economic complications, sexual assault is regarded as one of the most serious violations of human rights. The scarcity of judicial trials and prosecutions against perpetrators of this violence is considered to be a driving force behind these crimes.
{"title":"SEXUAL VIOLENCE AGAINST WOMEN DURING ARMED CONFLICTS: RUSSIAN AGGRESSION AGAINST UKRAINE AS AN EXAMPLE","authors":"Maya Khater","doi":"10.33327/ajee-18-5.4-n000431","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-n000431","url":null,"abstract":"Background: Sexual violence is a significant issue that violates human rights and is a source of increasing concern for women during international and local armed conflicts. It has widespread impacts on civilian communities and on women in particular, with grave and long-lasting health, psychological, and social impacts. The descriptive analytical method was used to investigate and analyse laws prohibiting sexual assault against women, focusing on the role of international law in addressing these crimes. It was found that multiple international laws are in place to address this violence, but the enforcement of these laws requires work.\u0000Methods: The descriptive-analytical method is used to investigate and analyse legal provisions prohibiting sexual violence against women. A set of recommendations is derived for how to limit and avoid the deterioration of such phenomena and to deal with it at legal, social, political, health, and other levels.\u0000Results and Conclusions: Due to its consequences, which include physical, psychological, social, and economic complications, sexual assault is regarded as one of the most serious violations of human rights. The scarcity of judicial trials and prosecutions against perpetrators of this violence is considered to be a driving force behind these crimes.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43563529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-n000467
M. Stefanchuk
Background: Currently in Ukraine, a significant objective is to promote the construction of a peaceable and open society, ensuring access to justice for all. Such a system must be effective, accountable, and based on the broad participation of institutions at all levels. This article highlights some of the priority steps in the recovery of the justice system in Ukraine. Special attention is given to the priority goals and problematic aspects of the functioning of the institutions of the national justice system, given the declared aim of forming a sustainable justice system. Current challenges in the field of national justice, priority goals and appropriate measures for their achievement have all been analysed. Methods: To achieve the goals of the research, general and special scientific research methods were applied, such as comparative-legal and semantic-structural methods and the method of grouping, analysis, synthesis, and generalisation. Results and Conclusions: It has been established that the first priority goal of ensuring proper functioning of the judiciary is structural modernisation and optimisation of judicial authorities, including a comprehensive audit of the powers of bodies and institutions of the justice system in order to eliminate duplication of functions and ensure procedures for the effective use of resources. The following were substantiated as risks for achieving such a goal: controversial recognition of the impossibility of the state to be solely responsible for the duration of processes for updating the authorised composition of judicial governance bodies; proposals for the transformation of the system of professional training and professional development of judges; the lack of objective justification for the determination of judicial jurisdiction for the consideration of certain categories of cases; and proposals for recognising the long-term consideration in the parliament of the Draft Law on abolition of the Bar monopoly. Current trends in the development of functions of advocacy in Ukraine have been highlighted, including selective and inconsistent implementation of bar monopoly on representation of another person in court; restriction of the rights of the Bar self-government bodies in the field of forming judicial corps, extension of the state's control powers advocacy; and the search for an optimal model of governance of the advocacy profession. The key challenges of the prosecutor's office, and priority goals and measures for their achievement, have been highlighted. The possible risks of further reform of this institution due to the disputed constitutionality of its personnel, which were reset as a result of previous priority reform measures, have been emphasised, which may call into question the legitimacy of the new staff of the prosecutor's office and does not allow the assertion of the final completion of these processes.
{"title":"THE RECOVERY OF UKRAINE IN THE FIELD OF JUSTICE: CHALLENGES AND PRIORITY GOALS","authors":"M. Stefanchuk","doi":"10.33327/ajee-18-5.4-n000467","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-n000467","url":null,"abstract":"Background: Currently in Ukraine, a significant objective is to promote the construction of a peaceable and open society, ensuring access to justice for all. Such a system must be effective, accountable, and based on the broad participation of institutions at all levels. This article highlights some of the priority steps in the recovery of the justice system in Ukraine. Special attention is given to the priority goals and problematic aspects of the functioning of the institutions of the national justice system, given the declared aim of forming a sustainable justice system. Current challenges in the field of national justice, priority goals and appropriate measures for their achievement have all been analysed.\u0000Methods: To achieve the goals of the research, general and special scientific research methods were applied, such as comparative-legal and semantic-structural methods and the method of grouping, analysis, synthesis, and generalisation.\u0000Results and Conclusions: It has been established that the first priority goal of ensuring proper functioning of the judiciary is structural modernisation and optimisation of judicial authorities, including a comprehensive audit of the powers of bodies and institutions of the justice system in order to eliminate duplication of functions and ensure procedures for the effective use of resources.\u0000The following were substantiated as risks for achieving such a goal: controversial recognition of the impossibility of the state to be solely responsible for the duration of processes for updating the authorised composition of judicial governance bodies; proposals for the transformation of the system of professional training and professional development of judges; the lack of objective justification for the determination of judicial jurisdiction for the consideration of certain categories of cases; and proposals for recognising the long-term consideration in the parliament of the Draft Law on abolition of the Bar monopoly.\u0000Current trends in the development of functions of advocacy in Ukraine have been highlighted, including selective and inconsistent implementation of bar monopoly on representation of another person in court; restriction of the rights of the Bar self-government bodies in the field of forming judicial corps, extension of the state's control powers advocacy; and the search for an optimal model of governance of the advocacy profession. The key challenges of the prosecutor's office, and priority goals and measures for their achievement, have been highlighted. The possible risks of further reform of this institution due to the disputed constitutionality of its personnel, which were reset as a result of previous priority reform measures, have been emphasised, which may call into question the legitimacy of the new staff of the prosecutor's office and does not allow the assertion of the final completion of these processes.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47289077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-a000456
B. Fisher
This article offers a trans-disciplinary legal analysis of the Russian Federation’s total invasion of Ukraine from the perspective of Malign Legal Operations (MALOPs). Known colloquially as lawfare, the notion of MALOPs in this article is defined as ‘the exploitation of legal systems by employing disinformation to shape perceptions of legitimacy, justify violations, escape legal obligations, contain adversaries, or to advantageously revise the rule of law’. Unlike the bumper-sticker term lawfare, MALOPs offers a theoretical approach to conceptualise, identify, and ultimately disrupt the practice of legal exploitation, particularly as it relates to international security. This article asserts that Russian MALOPs provided a nearcertain indication of attack in the months leading up to Russia’s total invasion of Ukraine. Furthermore, this research suggests that MALOPs are a principal tool for revisionist states like the Russian Federation and the People’s Republic of China to pursue legal asymmetries in pursuit of geopolitical objectives. Finally, this research recommends a novel approach for responding to this behaviour in the form of the Counter-MALOPs Toolkit: Identify; Disrupt; and Defend.
{"title":"RUSSIA’S INVASION OF UKRAINE AND THE DOCTRINE OF MALIGN LEGAL OPERATIONS","authors":"B. Fisher","doi":"10.33327/ajee-18-5.4-a000456","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-a000456","url":null,"abstract":"This article offers a trans-disciplinary legal analysis of the Russian Federation’s total invasion of Ukraine from the perspective of Malign Legal Operations (MALOPs). Known colloquially as lawfare, the notion of MALOPs in this article is defined as ‘the exploitation of legal systems by employing disinformation to shape perceptions of legitimacy, justify violations, escape legal obligations, contain adversaries, or to advantageously revise the rule of law’. Unlike the bumper-sticker term lawfare, MALOPs offers a theoretical approach to conceptualise, identify, and ultimately disrupt the practice of legal exploitation, particularly as it relates to international security. \u0000This article asserts that Russian MALOPs provided a nearcertain indication of attack in the months leading up to Russia’s total invasion of Ukraine. Furthermore, this research suggests that MALOPs are a principal tool for revisionist states like the Russian Federation and the People’s Republic of China to pursue legal asymmetries in pursuit of geopolitical objectives. Finally, this research recommends a novel approach for responding to this behaviour in the form of the Counter-MALOPs Toolkit: Identify; Disrupt; and Defend.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42747031","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-n000432
Luiza Romanadze
Background: This article addresses the challenges of developing mediation in Ukraine, the lack of effective coordination between courts and mediators, and issues of low awareness in Ukrainian society about mediation. It is argued that Ukrainian courts and mediation in Ukraine are going concurrent ways so that mediation is not integrated into or reinforcing the court-based litigation system. Meanwhile, the national mediation community must mature through the organization of high-quality interaction with the judicial system. Moreover, the war and post-war period will cause a new workload of civil and commercial disputes that are generally suitable for mediation, especially when the disputants residing in different regions after fleeing from war. This article is aimed at finding sustainable and fast solutions for raising awareness of mediation in Ukrainian society and effective coordination between courts and mediators based on the progress already achieved. Methodology: This article used doctrinal legal research to evaluate the options of cooperation between courts and mediation, empirical analysis to examine judicial system performance and the mediation community status quo, analyse options for closer cooperation of courts and mediators, and find sustainable solutions for promoting mediation. Results and Conclusions: Courts and the mediation community must work together to break the general reliance on traditional litigation; courts should actively promote mediation through sustainable means, and the mediation community should improve the quality control of mediation services, develop a complaint-handling procedure, and further progress with online platforms for choosing a mediator.
{"title":"MEDIATION IN POST-WAR RESTORATION IN UKRAINE","authors":"Luiza Romanadze","doi":"10.33327/ajee-18-5.4-n000432","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-n000432","url":null,"abstract":"Background: This article addresses the challenges of developing mediation in Ukraine, the lack of effective coordination between courts and mediators, and issues of low awareness in Ukrainian society about mediation. It is argued that Ukrainian courts and mediation in Ukraine are going concurrent ways so that mediation is not integrated into or reinforcing the court-based litigation system. Meanwhile, the national mediation community must mature through the organization of high-quality interaction with the judicial system. Moreover, the war and post-war period will cause a new workload of civil and commercial disputes that are generally suitable for mediation, especially when the disputants residing in different regions after fleeing from war. This article is aimed at finding sustainable and fast solutions for raising awareness of mediation in Ukrainian society and effective coordination between courts and mediators based on the progress already achieved.\u0000Methodology: This article used doctrinal legal research to evaluate the options of cooperation between courts and mediation, empirical analysis to examine judicial system performance and the mediation community status quo, analyse options for closer cooperation of courts and mediators, and find sustainable solutions for promoting mediation.\u0000Results and Conclusions: Courts and the mediation community must work together to break the general reliance on traditional litigation; courts should actively promote mediation through sustainable means, and the mediation community should improve the quality control of mediation services, develop a complaint-handling procedure, and further progress with online platforms for choosing a mediator.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43392687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-13DOI: 10.33327/ajee-18-5.4-a000438
O. Kaplina
Background. This article is devoted to the relevant issue of the creation of appropriate normative regulation of criminal prosecution of prisoners of war who were captured during the armed conflict in Ukraine and their exchange. Despite the positive dynamics of destabilisation processes taking place all over the world, and in some places connected with the outbreak of military conflicts of an international nature, insufficient attention is paid to the issue of legitimising the process of exchange of prisoners of war in national legal systems. Methods: The problem is complicated by the need to coordinate national legal mechanisms with the norms of international humanitarian and human rights laws, which cannot be competitive, but instead should have an integrative effect on national legal systems. Relying on the norms of international humanitarian law, the author concludes that prisoners of war, as legal participants in an armed conflict, due to the immunity (privilege) of the combatant, do not bear individual responsibility for the initiation of an aggressive war or participation in it and must be repatriated after its end, with the exception of cases where they committed so-called ‘general criminal’ crimes or violated the laws and customs of war. Moreover, the author’s position is illustrated by a concrete practical example of the first sentence of the Ukrainian court against a combatant. Given that until July 2022, the Ukrainian criminal procedural law lacked a proper mechanism aimed at the exchange of prisoners of war, it is quite logical to direct the legal policy of the state to the development of the relevant procedural legislation. Results: Considering the significant dangerous challenges that Ukraine has faced, and the amendment of the legislation, the author refer to the analysis of the factors that determined the special normative regulation of the procedural order of prisoners of war; analyse the criminal procedural status of the suspect-prisoner of war; and point to the differentiation of the procedural orders of such an exchange, the key criterion for the division of which is the procedural status of the person. Using the example of the first sentence in Ukraine to a Russian prisoner of war and relying on the norms of international humanitarian and national law, the author illustrate the specifics of the criminal liability of combatants. Evaluating the procedure of exchange of prisoners of war and criminal proceedings in absentia which were positively introduced in the legislation of Ukraine, it was concluded that the exchange is not an act of forgiveness, but an opportunity to return Ukrainian citizens, which is of the utmost importance in the hierarchy of values for the state.
{"title":"PRISONER OF WAR: SPECIAL STATUS IN THE CRIMINAL PROCEEDINGS OF UKRAINE AND THE RIGHT TO EXCHANGE","authors":"O. Kaplina","doi":"10.33327/ajee-18-5.4-a000438","DOIUrl":"https://doi.org/10.33327/ajee-18-5.4-a000438","url":null,"abstract":"Background. This article is devoted to the relevant issue of the creation of appropriate normative regulation of criminal prosecution of prisoners of war who were captured during the armed conflict in Ukraine and their exchange. Despite the positive dynamics of destabilisation processes taking place all over the world, and in some places connected with the outbreak of military conflicts of an international nature, insufficient attention is paid to the issue of legitimising the process of exchange of prisoners of war in national legal systems.\u0000Methods: The problem is complicated by the need to coordinate national legal mechanisms with the norms of international humanitarian and human rights laws, which cannot be competitive, but instead should have an integrative effect on national legal systems. Relying on the norms of international humanitarian law, the author concludes that prisoners of war, as legal participants in an armed conflict, due to the immunity (privilege) of the combatant, do not bear individual responsibility for the initiation of an aggressive war or participation in it and must be repatriated after its end, with the exception of cases where they committed so-called ‘general criminal’ crimes or violated the laws and customs of war. Moreover, the author’s position is illustrated by a concrete practical example of the first sentence of the Ukrainian court against a combatant.\u0000Given that until July 2022, the Ukrainian criminal procedural law lacked a proper mechanism aimed at the exchange of prisoners of war, it is quite logical to direct the legal policy of the state to the development of the relevant procedural legislation.\u0000Results: Considering the significant dangerous challenges that Ukraine has faced, and the amendment of the legislation, the author refer to the analysis of the factors that determined the special normative regulation of the procedural order of prisoners of war; analyse the criminal procedural status of the suspect-prisoner of war; and point to the differentiation of the procedural orders of such an exchange, the key criterion for the division of which is the procedural status of the person. Using the example of the first sentence in Ukraine to a Russian prisoner of war and relying on the norms of international humanitarian and national law, the author illustrate the specifics of the criminal liability of combatants. Evaluating the procedure of exchange of prisoners of war and criminal proceedings in absentia which were positively introduced in the legislation of Ukraine, it was concluded that the exchange is not an act of forgiveness, but an opportunity to return Ukrainian citizens, which is of the utmost importance in the hierarchy of values for the state.","PeriodicalId":40329,"journal":{"name":"Access to Justice in Eastern Europe","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42937668","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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