确保司法机构独立性的措施

Nazar Hdanskyi
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In addition, the content of Articles 128, 129-1, 130, 130-1, 131 of the Basic Law of Ukraine gives the scientist grounds for the conclusion that the institutional independence of the judiciary is also guaranteed by the independent procedure for appointing a judge to a position determined at the constitutional level, the binding nature of a court decision , ensuring the proper financial maintenance of judges and financing of the judicial system, independent mechanisms for selecting judges and bringing them to disciplinary responsibility, independence of judicial self-government and governance. The above constitutional guarantees of the independence of the judiciary are specified at the legislative level - first of all, in the Law of Ukraine \"On the Judiciary and the Status of Judges\", most of the articles of which to one degree or another are related to the principle of independence of judges, in addition, Article 6 of the Law is separately devoted to this issue. 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Specific factors that someone will leave out of consideration (for example, statements, comments of colleagues, publications, etc.), for another can have a decisive influence on the formation of an attitude towards a certain person or a certain situation, therefore, the lack of moral maturity of a person who administers justice can nullify the constitutional and legally established guarantees of judge independence. Let us emphasize that internal independence in the context described above is the personal duty of every holder of judicial power - a judge, which originates from the moral and ethical qualities of a specific person and determines the corresponding results of his activity. The external factor that ensures the review and decision of the case by an independent judge is the independence of the judiciary as one of the main values of a modern democratic state, as a sign of the relationship of a judge (a specific holder of judicial power during the performance of his official duties) with any subjects. It is argued that the institutional independence of the judiciary is a complex and multifaceted phenomenon, since it should be considered as the prevention of any undue external influence on the judiciary, its full autonomy from other branches of government, which not only means non-interference in the function of justice, but also involves compliance judicial independence in all its aspects, manifestations, guarantees of independence and inviolability of judges in full. Such independence is universal in the constitutional and legal dimension due to its significance as an essential requirement of the principle of separation of powers, the rule of law and the right to judicial protection. Today, as the analysis of the latest trends in the practice of the Court regarding the protection of judicial independence convinces, it is not individual guarantees of judicial independence that are violated, but an intervention in the institutional independence of the judicial branch of government in Ukraine as an independent arbiter from among other branches of government through the implementation of a set of legislative changes regarding the national judiciary. systems that encroached on its constitutionally defined structure and key guarantees of the independence of judges (the principle of immutability of judges, their proper financial maintenance, ensuring the independence of judicial governance). This testifies to the presence of signs of a crisis in the relationship between the legislative and judicial branches of power, which undermines public trust in the latter, contradicts the constitutional principles of separation of powers, the rule of law, nullifies the right to judicial protection, weakening the constitutional legal order in general.","PeriodicalId":421282,"journal":{"name":"Visnik Nacional’nogo universitetu «Lvivska politehnika». Seria: Uridicni nauki","volume":" 22","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2023-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Measures to ensure the institutional independence of the judiciary\",\"authors\":\"Nazar Hdanskyi\",\"doi\":\"10.23939/law2023.40.283\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Abstract. In accordance with international legal standards in Ukraine, the independence of judges is guaranteed by the Constitution (part one of Article 126). It is prohibited to influence the judge in any way (part two of Article 126 of the Constitution of Ukraine). Also, the first part of Article 129 of the Basic Law of Ukraine states that a judge, when administering justice, is independent and governed by the rule of law. The institutional independence of the judiciary is implicitly embodied at the level of the text of the Constitution of Ukraine, in addition to the above-mentioned norms, also in part one of article 6 (state power in Ukraine is exercised on the basis of its division into legislative, executive and judicial), parts one and two of article 8 (in Ukraine the principle of the rule of law is recognized and applied. 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引用次数: 0

摘要

摘要根据乌克兰的国际法律标准,《宪法》保障法官的独立性(第 126 条第一部分)。禁止以任何方式影响法官(《乌克兰宪法》第 126 条第二部分)。此外,《乌克兰基本法》第 129 条第一部分规定,法官在执行司法时是独立的,并受法治支配。此外,《乌克兰基本法》第 128 条、第 129-1 条、第 130 条、第 130-1 条、第 131 条的内容使科学家有理由得出结论,司法机构的体制独立性还受到以下方面的保 障:任命法官担任宪法规定职位的独立程序、法院判决的约束力、确保法官的适当 财政维持和司法系统的资金筹措、遴选法官并使其承担纪律责任的独立机制、司法 自治和治理的独立性。上述对司法独立的宪法保障在立法层面有明确规定--首先,在乌克兰《司法机构和法官地位法》中,大部分条款都或多或少地与法官独立原则有关,此外,该法第 6 条还专门对这一问题进行了规定。我们必须强调,司法独立是文明社会的必要基础,而真正实现司法独立又是建设法制民主国家的必要条件--在现代社会,这是一个无需额外论证的公理。我们认为,司法独立是一种由内部和外部因素造成的现象。独立法院的内部因素可以有很多,但首先是基于特定的人--法官的道德原则和道德规范。在这里,独立的概念与公正、不偏不倚和正义等范畴非常紧密地交织在一起,最终表示一种特定的思维方式。毕竟,很明显,每个人都会通过自己对世界的看法的棱镜来单独看待相同的情况。一个人不考虑的具体因素(如同事的言论、评论、出版物等),对另一个人来说,可能会对其形成对某个人或某种情况的态度产生决定性影响,因此,司法人员缺乏道德成熟度,可能会使宪法和法律规定的法官独立性保障失效。我们要强调的是,在上述情况下,内部独立性是每个司法权力拥有者--法官的个人职责,它源于特定个人的道德和伦理素养,并决定其活动的相应结果。确保独立法官审查和裁决案件的外部因素是作为现代民主国家主要价值观之一的司法独立,它是法官(在履行公务期间司法权的具体持有者)与任何主体之间关系的标志。有人认为,司法机构的体制独立是一个复杂和多层面的现象,因为它应被视为防止对司法机构施加任何不当的外部影响,司法机构完全独立于政府其他部门,这不仅意味着不干涉司法职能,还涉及遵守司法独立的所有方面、表现形式、独立性保障和法官的完全不可侵犯性。这种独立性在宪法和法律层面具有普遍性,因为它是三权分立原则、法治和司法保护权的基本要求。今天,正如对法院保护司法独立实践的最新趋势的分析所证明的那样,受到侵犯的不是个别的司法独立保障,而是通过实施一系列有关国家司法机构的立法改革,对乌克兰政府司法部门作为政府其他部门中的独立仲裁者的体制独立性的干预。
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Measures to ensure the institutional independence of the judiciary
Abstract. In accordance with international legal standards in Ukraine, the independence of judges is guaranteed by the Constitution (part one of Article 126). It is prohibited to influence the judge in any way (part two of Article 126 of the Constitution of Ukraine). Also, the first part of Article 129 of the Basic Law of Ukraine states that a judge, when administering justice, is independent and governed by the rule of law. The institutional independence of the judiciary is implicitly embodied at the level of the text of the Constitution of Ukraine, in addition to the above-mentioned norms, also in part one of article 6 (state power in Ukraine is exercised on the basis of its division into legislative, executive and judicial), parts one and two of article 8 (in Ukraine the principle of the rule of law is recognized and applied. In addition, the content of Articles 128, 129-1, 130, 130-1, 131 of the Basic Law of Ukraine gives the scientist grounds for the conclusion that the institutional independence of the judiciary is also guaranteed by the independent procedure for appointing a judge to a position determined at the constitutional level, the binding nature of a court decision , ensuring the proper financial maintenance of judges and financing of the judicial system, independent mechanisms for selecting judges and bringing them to disciplinary responsibility, independence of judicial self-government and governance. The above constitutional guarantees of the independence of the judiciary are specified at the legislative level - first of all, in the Law of Ukraine "On the Judiciary and the Status of Judges", most of the articles of which to one degree or another are related to the principle of independence of judges, in addition, Article 6 of the Law is separately devoted to this issue. We must emphasize that the independence of the judiciary is a necessary basis of a civilized society, the real provision of which is, in turn, a mandatory condition for building a legal democratic state - in the modern world, it is an axiom that does not need any additional argumentation. We consider the independence of the judiciary as a phenomenon caused by internal and external factors. The internal aspect of an independent court can have many components, but, first of all, it is based on the moral principles and ethical norms of a specific person - a judge. Here, the concept of independence is very closely intertwined with such categories as impartiality, impartiality and justice, ultimately denoting a certain way of thinking. After all, it is obvious that each person perceives the same circumstances individually, through the prism of their own ideas about the world. Specific factors that someone will leave out of consideration (for example, statements, comments of colleagues, publications, etc.), for another can have a decisive influence on the formation of an attitude towards a certain person or a certain situation, therefore, the lack of moral maturity of a person who administers justice can nullify the constitutional and legally established guarantees of judge independence. Let us emphasize that internal independence in the context described above is the personal duty of every holder of judicial power - a judge, which originates from the moral and ethical qualities of a specific person and determines the corresponding results of his activity. The external factor that ensures the review and decision of the case by an independent judge is the independence of the judiciary as one of the main values of a modern democratic state, as a sign of the relationship of a judge (a specific holder of judicial power during the performance of his official duties) with any subjects. It is argued that the institutional independence of the judiciary is a complex and multifaceted phenomenon, since it should be considered as the prevention of any undue external influence on the judiciary, its full autonomy from other branches of government, which not only means non-interference in the function of justice, but also involves compliance judicial independence in all its aspects, manifestations, guarantees of independence and inviolability of judges in full. Such independence is universal in the constitutional and legal dimension due to its significance as an essential requirement of the principle of separation of powers, the rule of law and the right to judicial protection. Today, as the analysis of the latest trends in the practice of the Court regarding the protection of judicial independence convinces, it is not individual guarantees of judicial independence that are violated, but an intervention in the institutional independence of the judicial branch of government in Ukraine as an independent arbiter from among other branches of government through the implementation of a set of legislative changes regarding the national judiciary. systems that encroached on its constitutionally defined structure and key guarantees of the independence of judges (the principle of immutability of judges, their proper financial maintenance, ensuring the independence of judicial governance). This testifies to the presence of signs of a crisis in the relationship between the legislative and judicial branches of power, which undermines public trust in the latter, contradicts the constitutional principles of separation of powers, the rule of law, nullifies the right to judicial protection, weakening the constitutional legal order in general.
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