关于要求法官对其通过的司法裁决负责的问题

Nazar Hdanskyi
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In the absence of objective and reliable information about the level of trust in the judiciary and the impact of legislative changes on it, such persons, guided by their own reputational interests, form a false impression in society about the activities of the courts. This, in particular, concerns the expediency of using evaluative concepts in the regulation of the grounds for bringing judges to disciplinary responsibility and their correct interpretation. The Law of God was not chosen as an epigraph to the article by chance, because it was constructed precisely with the use of evaluative concepts, the key ones of which are \"love\" and \"neighbor\". And if the Lord Himself resorted to evaluative concepts in order to write the New Testament (agreement) with man, then it is useless to think that we, people, will be able to do without using this technique of legal technique. In Ukraine, as a democratic state, legislation must meet the criteria and principles defined by the Constitution of Ukraine. These are, in particular, the principled rule of law. The requirement of the rule of law, as established by the Constitutional Court of Ukraine, is compliance with the principle of legal certainty. This principle presupposes the uniform application of the rule of law, as well as the impossibility of its arbitrary interpretation. Legal certainty of the rule of law is a key condition for providing everyone with effective judicial protection by an independent court. According to the decision of the Constitutional Court of Ukraine (No. 6-r/2019 dated June 20, 2019), legal certainty includes such components as clarity, comprehensibility, and unambiguity of legal norms. According to this decision, \"the legislator must strive for clarity and comprehensibility in the presentation of legal norms. Each person, in accordance with the specific circumstances, must orientate himself on which rule of law applies in a certain case, and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relationship, taking into account the reasonable and foreseeable stability of the rules of law\" (paragraphs 5, 6 sub. 4.1 clause 4 of the motivational part). And according to the decision of the Constitutional Court of Ukraine (from February 26, 2019 No. 1-р/2019), it is especially important to adhere to the clarity and unambiguity of the norms that determine criminal responsibility, taking into account the specifics of the criminal law and the consequences of bringing to criminal responsibility, \"because bringing to such type of legal responsibility is associated with possible significant limitations of human rights and freedoms\" (par. 7, item 3 of the motivational part). It should be noted that in the decision in the case \"Novik v. Ukraine\" (Novik v. Ukraine) dated December 18, 2008 (application No. 48068/06), the European Court of Human Rights stated: \"...when it comes to deprivation of liberty, it is extremely important ensuring the general principle of legal certainty. The requirement of \"quality of legal prescriptions\" within the meaning of clause 1 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 means that if a national law allows the possibility of deprivation of liberty, such law must be sufficiently accessible, clearly formulated and foreseen in application to exclude any risk of arbitrariness\" (§ 19). The Constitutional Court of Ukraine proceeds from the fact that the Criminal Code of Ukraine (Article 375) does not provide criteria by which it would be possible to determine which sentence, decision, resolution or resolution of a judge (judges) is \"unjust\", as well as the meaning of the expression \"knowingly unjust\" has not been disclosed. This leads to an ambiguous understanding of the composition of the crime, which is qualified according to the specified norm. According to the Constitutional Court of Ukraine, the wording of the provision of Art. 375 of the Criminal Code of Ukraine allows for the possibility of its abuse in the event that the authorities of the pre-trial investigation commit actions, the consequence of which is the bringing to criminal responsibility of the judge who issued a court decision that, in the opinion of the investigator, prosecutor or any other person, is \"unjust\" (in particular , disagreement with the decision). The decision emphasizes that the criminal law must be legally defined, clear, unambiguous and predictable. This is what can guarantee the administration of justice by the judge on the basis of the rule of law and the effective implementation of everyone's constitutional right to judicial protection. On the basis of the above, the Constitutional Court of Ukraine concludes that Art. 375 of the Criminal Code of Ukraine contradicts the Constitution of Ukraine, in particular, Part 1 of Art. 8. At the same time, in accordance with the Constitution of Ukraine (Part 4, Article 126), a judge cannot be held accountable for a court decision passed by him, except in the case when the judge committed a crime or a disciplinary offense.","PeriodicalId":421282,"journal":{"name":"Visnik Nacional’nogo universitetu «Lvivska politehnika». Seria: Uridicni nauki","volume":"12 5","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2023-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"On the question of holding a judge to responsibility for a judicial decision adopted by him\",\"authors\":\"Nazar Hdanskyi\",\"doi\":\"10.23939/law2023.40.272\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Abstract. Titan of labor Ivan Franko and Metropolitan Andrey Sheptytskyi wrote: \\\"Love Ukraine not with a stream of loud and noisy phrases, but with quiet and tireless work. Loud, phraseological and, to a greater extent, insincere, because patriotism not supported by deeds must give way to respectable, silent, but deeply felt patriotism, which manifests itself not in words, but in work.\\\" Under the influence of information and political campaigns, society often uncritically accepts as its own the populist and dangerous words of public figures who, not knowing the true state of affairs in the judicial system of Ukraine and having never worked there for a single day, call themselves \\\"experts\\\" and undertake its \\\"reform\\\". In the absence of objective and reliable information about the level of trust in the judiciary and the impact of legislative changes on it, such persons, guided by their own reputational interests, form a false impression in society about the activities of the courts. This, in particular, concerns the expediency of using evaluative concepts in the regulation of the grounds for bringing judges to disciplinary responsibility and their correct interpretation. The Law of God was not chosen as an epigraph to the article by chance, because it was constructed precisely with the use of evaluative concepts, the key ones of which are \\\"love\\\" and \\\"neighbor\\\". And if the Lord Himself resorted to evaluative concepts in order to write the New Testament (agreement) with man, then it is useless to think that we, people, will be able to do without using this technique of legal technique. In Ukraine, as a democratic state, legislation must meet the criteria and principles defined by the Constitution of Ukraine. These are, in particular, the principled rule of law. The requirement of the rule of law, as established by the Constitutional Court of Ukraine, is compliance with the principle of legal certainty. This principle presupposes the uniform application of the rule of law, as well as the impossibility of its arbitrary interpretation. Legal certainty of the rule of law is a key condition for providing everyone with effective judicial protection by an independent court. According to the decision of the Constitutional Court of Ukraine (No. 6-r/2019 dated June 20, 2019), legal certainty includes such components as clarity, comprehensibility, and unambiguity of legal norms. According to this decision, \\\"the legislator must strive for clarity and comprehensibility in the presentation of legal norms. Each person, in accordance with the specific circumstances, must orientate himself on which rule of law applies in a certain case, and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relationship, taking into account the reasonable and foreseeable stability of the rules of law\\\" (paragraphs 5, 6 sub. 4.1 clause 4 of the motivational part). And according to the decision of the Constitutional Court of Ukraine (from February 26, 2019 No. 1-р/2019), it is especially important to adhere to the clarity and unambiguity of the norms that determine criminal responsibility, taking into account the specifics of the criminal law and the consequences of bringing to criminal responsibility, \\\"because bringing to such type of legal responsibility is associated with possible significant limitations of human rights and freedoms\\\" (par. 7, item 3 of the motivational part). It should be noted that in the decision in the case \\\"Novik v. Ukraine\\\" (Novik v. Ukraine) dated December 18, 2008 (application No. 48068/06), the European Court of Human Rights stated: \\\"...when it comes to deprivation of liberty, it is extremely important ensuring the general principle of legal certainty. The requirement of \\\"quality of legal prescriptions\\\" within the meaning of clause 1 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 means that if a national law allows the possibility of deprivation of liberty, such law must be sufficiently accessible, clearly formulated and foreseen in application to exclude any risk of arbitrariness\\\" (§ 19). The Constitutional Court of Ukraine proceeds from the fact that the Criminal Code of Ukraine (Article 375) does not provide criteria by which it would be possible to determine which sentence, decision, resolution or resolution of a judge (judges) is \\\"unjust\\\", as well as the meaning of the expression \\\"knowingly unjust\\\" has not been disclosed. This leads to an ambiguous understanding of the composition of the crime, which is qualified according to the specified norm. According to the Constitutional Court of Ukraine, the wording of the provision of Art. 375 of the Criminal Code of Ukraine allows for the possibility of its abuse in the event that the authorities of the pre-trial investigation commit actions, the consequence of which is the bringing to criminal responsibility of the judge who issued a court decision that, in the opinion of the investigator, prosecutor or any other person, is \\\"unjust\\\" (in particular , disagreement with the decision). 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引用次数: 0

摘要

摘要劳动泰斗伊万-弗兰科和都主教安德烈-谢普蒂茨基写道:"爱乌克兰不是用喧闹的语言,而是用默默无闻、不知疲倦的工作。喧闹、措辞,在更大程度上是不真诚的,因为没有行动支持的爱国主义必须让位于可敬的、沉默的、但深有感触的爱国主义,这种爱国主义不是表现在言语上,而是表现在劳动中"。在信息和政治运动的影响下,社会往往不加批判地接受公众人物的民粹主义和危险言论,他们不了解乌克兰司法系统的真实状况,也从未在那里工作过一天,却自称为 "专家 "并进行 "改革"。在缺乏关于司法机构信任度和立法改革对司法机构影响的客观可靠信息的情况下,这些人在自身声誉利益的引导下,在社会上形成了对法院活动的错误印象。这尤其涉及在规定法官承担纪律责任的理由时使用评价性概念的权宜之计及其正确解释。选择《神的律法》作为本文的题记并非偶然,因为《神的律法》正是使用评价性概念构建的,其中的关键概念是 "爱 "和 "邻居"。如果说上帝在与人类签订《新约》(协议)时使用了评价性概念,那么认为我们这些人可以不使用这种法律技巧也是毫无用处的。在乌克兰,作为一个民主国家,立法必须符合《乌克兰宪法》规定的标准和原则。其中尤其包括有原则的法治。乌克兰宪法法院确定的法治要求是遵守法律确定性原则。这一原则的前提是统一适用法律规则,以及不可能对其进行任意解释。法治的法律确定性是独立法院为每个人提供有效司法保护的关键条件。根据乌克兰宪法法院的决定(2019 年 6 月 20 日第 6-r/2019 号),法律确定性包括法律规范的清晰度、可理解性和明确性等组成部分。根据该决定,"立法者必须努力使法律规范的表述清晰易懂。每个人都必须根据具体情况,确定在某一案件中适用哪种法律规则,并清楚地了解在相关法律关系中发生的具体法律后果,同时考虑到法律规则合理且可预见的稳定性"(动机部分第 5、6 段,第 4.1 款第 4 小节)。而根据乌克兰宪法法院的决定(2019 年 2 月 26 日第 1-р/2019 号),考虑到刑法的特殊性和承担刑事责任的后果,坚持确定刑事责任的规范的清晰和明确性尤为重要,"因为承担此类法律责任可能会对人权和自由造成重大限制"(动机部分第 7 段第 3 项)。应当指出的是,欧洲人权法院在 2008 年 12 月 18 日 "诺维克诉乌克兰 "案(第 48068/06 号申请)的裁决中指出:"......当涉及剥夺自由时,确保法律确定性的一般原则极为重要。根据《保护所有人免遭强迫失踪国际公约》第 5 条第 1 款的含义,"法律规定的质量 "是一项要求。1950 年《保护人权与基本自由公约》第 5 条第 1 款意义上的 "法律规定的质量 "要求意味着,如果国家法律允许剥夺自由的可能 性,则该法律必须足够易懂、明确制定并预见适用,以排除任何任意性风险"(第 19 节)。乌克兰宪法法院从以下事实出发:《乌克兰刑法典》(第 375 条)没有提供可据以确定法官(法官)的判决、决定、决议或决议 "不公正 "的标准,也没有披露 "故意不公正 "这一表述的含义。这就导致了对犯罪构成的模糊理解,而犯罪构成是根据特定规范进行定性的。乌克兰宪法法院认为,《乌克兰宪法》第 11 条规定的措辞 "不公正"。
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On the question of holding a judge to responsibility for a judicial decision adopted by him
Abstract. Titan of labor Ivan Franko and Metropolitan Andrey Sheptytskyi wrote: "Love Ukraine not with a stream of loud and noisy phrases, but with quiet and tireless work. Loud, phraseological and, to a greater extent, insincere, because patriotism not supported by deeds must give way to respectable, silent, but deeply felt patriotism, which manifests itself not in words, but in work." Under the influence of information and political campaigns, society often uncritically accepts as its own the populist and dangerous words of public figures who, not knowing the true state of affairs in the judicial system of Ukraine and having never worked there for a single day, call themselves "experts" and undertake its "reform". In the absence of objective and reliable information about the level of trust in the judiciary and the impact of legislative changes on it, such persons, guided by their own reputational interests, form a false impression in society about the activities of the courts. This, in particular, concerns the expediency of using evaluative concepts in the regulation of the grounds for bringing judges to disciplinary responsibility and their correct interpretation. The Law of God was not chosen as an epigraph to the article by chance, because it was constructed precisely with the use of evaluative concepts, the key ones of which are "love" and "neighbor". And if the Lord Himself resorted to evaluative concepts in order to write the New Testament (agreement) with man, then it is useless to think that we, people, will be able to do without using this technique of legal technique. In Ukraine, as a democratic state, legislation must meet the criteria and principles defined by the Constitution of Ukraine. These are, in particular, the principled rule of law. The requirement of the rule of law, as established by the Constitutional Court of Ukraine, is compliance with the principle of legal certainty. This principle presupposes the uniform application of the rule of law, as well as the impossibility of its arbitrary interpretation. Legal certainty of the rule of law is a key condition for providing everyone with effective judicial protection by an independent court. According to the decision of the Constitutional Court of Ukraine (No. 6-r/2019 dated June 20, 2019), legal certainty includes such components as clarity, comprehensibility, and unambiguity of legal norms. According to this decision, "the legislator must strive for clarity and comprehensibility in the presentation of legal norms. Each person, in accordance with the specific circumstances, must orientate himself on which rule of law applies in a certain case, and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relationship, taking into account the reasonable and foreseeable stability of the rules of law" (paragraphs 5, 6 sub. 4.1 clause 4 of the motivational part). And according to the decision of the Constitutional Court of Ukraine (from February 26, 2019 No. 1-р/2019), it is especially important to adhere to the clarity and unambiguity of the norms that determine criminal responsibility, taking into account the specifics of the criminal law and the consequences of bringing to criminal responsibility, "because bringing to such type of legal responsibility is associated with possible significant limitations of human rights and freedoms" (par. 7, item 3 of the motivational part). It should be noted that in the decision in the case "Novik v. Ukraine" (Novik v. Ukraine) dated December 18, 2008 (application No. 48068/06), the European Court of Human Rights stated: "...when it comes to deprivation of liberty, it is extremely important ensuring the general principle of legal certainty. The requirement of "quality of legal prescriptions" within the meaning of clause 1 of Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 means that if a national law allows the possibility of deprivation of liberty, such law must be sufficiently accessible, clearly formulated and foreseen in application to exclude any risk of arbitrariness" (§ 19). The Constitutional Court of Ukraine proceeds from the fact that the Criminal Code of Ukraine (Article 375) does not provide criteria by which it would be possible to determine which sentence, decision, resolution or resolution of a judge (judges) is "unjust", as well as the meaning of the expression "knowingly unjust" has not been disclosed. This leads to an ambiguous understanding of the composition of the crime, which is qualified according to the specified norm. According to the Constitutional Court of Ukraine, the wording of the provision of Art. 375 of the Criminal Code of Ukraine allows for the possibility of its abuse in the event that the authorities of the pre-trial investigation commit actions, the consequence of which is the bringing to criminal responsibility of the judge who issued a court decision that, in the opinion of the investigator, prosecutor or any other person, is "unjust" (in particular , disagreement with the decision). The decision emphasizes that the criminal law must be legally defined, clear, unambiguous and predictable. This is what can guarantee the administration of justice by the judge on the basis of the rule of law and the effective implementation of everyone's constitutional right to judicial protection. On the basis of the above, the Constitutional Court of Ukraine concludes that Art. 375 of the Criminal Code of Ukraine contradicts the Constitution of Ukraine, in particular, Part 1 of Art. 8. At the same time, in accordance with the Constitution of Ukraine (Part 4, Article 126), a judge cannot be held accountable for a court decision passed by him, except in the case when the judge committed a crime or a disciplinary offense.
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