Judicial specialisation through the prism of the principle of a 'natural court': a comparative analysis
Specialization of the judiciary and judicial activities. Principles of the arrangement of courts in Ukraine. Constitutional regulation of the activities of higher specialized courts. High Court of Intellectual Property and High Anti-Corruption Court.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 10.05.2022 |
| Размер файла | 28,4 K |
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The task of the High Anti-Corruption Court is to administer justice in accordance with the principles and procedures of justice provided by law in order to protect individuals, society and the state from corruption and related criminal offenses and judicial control over pre-trial investigation of these criminal offenses, observance of the rights, freedoms and interests of persons in criminal proceedings, as well as resolving the issue of recognizing unfounded assets and their recovery into state revenue in cases provided by law, in civil proceedings.
The SACC is tasked with combating corruption, which has an accusatory bias. The `newest' task of resolving the issue of declaring assets unfounded and collecting them into state revenue in cases provided by law in civil proceedings, which is, in fact, `civil' confiscation, is also of concern. Thus, the SACC has special, `extraordinary' tasks, which currently contradicts both the letter and the spirit of the Basic Law of Ukraine.
CONCLUDING REMARKS
The judiciary in the state must be unified and integral. Such unity and integrity are ensured by a single common goal and tasks assigned to the courts, regardless of their place in the judiciary and jurisdictional specialisation. Therefore, courts that are endowed with special, different from the general courts, goals, and objectives are special courts.
International and foreign experience indicates the permissible limits of judicial specialisation in order to ensure equal and fair judicial protection. However, there are countries whose judiciary has failed to achieve the required level of independence. To overcome this crisis of the judiciary, states are forced to resort to extraordinary judicial specialisation. In fact, the existence of separate anti-corruption courts (judges) indicates that other judges are potentially dependent, and therefore cannot be trusted to hear certain categories of criminal proceedings. However, the existence of such judicial specialisation should be a temporary measure, as all judges should be equal in their independence and have an appropriate level of legitimacy.
Given the current situation in Ukraine, it is crucial to strike a reasonable balance between national sovereignty and constitutional legitimacy on the one hand and the external influences of international and foreign actors trying to administer the legal system on the other.
This theoretical analysis also provides grounds to single out the features of a `special court' in the context of Art. 125 of the Constitution of Ukraine, in particular:
1) A separate judicial institution with a separate system of instances for consideration of certain categories of cases selected from the general array (special jurisdiction) or in respect of a separate category of persons.
2) A court that is entrusted with a special purpose and objectives, different from other general courts.
3) A court that is formed to expedite the resolution of certain categories of cases or cases that are special for a certain period.
4) A court in which judges have a special legal status (special tasks in the case of judicial proceedings; special professional qualifications (requirements, selection criteria); special (extraordinary) procedure for forming the judiciary, etc.).
At the same time, the establishment of the principle of natural justice is a fundamental constitutional and legal heritage of civilised humanity, which is designed to protect people and their rights and freedoms from arbitrariness and the use of justice as an instrument of terror and wrongful persecution.
REFERENCES
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4. European Commission Report 'For Democracy through Law' (Venice Commission) on the independence of the judiciary (Venice, 12-13 March 2010 )<https://newjustice.org.ua/wp- content/uploads/2018/05/EU_Standarts_book_web-1.pdf> accessed 10 December 2021.
5. European and international standards in the field of justice (Kyiv 2015) 103.
6. Basic Principles of Judicial Independence (1985) <https://zakon.rada.gov.ua/laws/ show/995_201#Text> accessed 10 December 2021.
7. International principles concerning the independence and accountability of judges, lawyers and prosecutors. Practical Guide 1 (International Commission of Jurists 2007) 8-9.
8. ArapYalgin and Others v Turkey<https://hudoc.echr.coe.int/eng?i=001-59674> accessed 10 Dec 2021.
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11. Opinion No 15 (2012) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the specialisation of judges.
12. Opinion No 8 (2006) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on 'the role of judges in the protection of the rule of law and human rights in the context of terrorism'.
13. Opinion No 15 (2012) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the specialisation of judges.
14. Stevenson Matthew K, Schutte Sophie A, 'Specialized anti-corruption courts - Comparative cartography' (2017) 5 U4 Issue Chr. Michelsen Institute 26.
15. Expert discussion of the best international practices of establishing specialisedanticorruption courts took place - <http://www.vru.gov.ua/news/2067> accessed 10 December 2021.
16. Sliusar Andrew, 'Anti-corruption court in Ukraine: preconditions for formation and guarantees of efficiency' <https://ti-ukraine.org/news/2175/> accessed 10 December 2021.
17. 'International Anti-Corruption Court: Utopian Concept or Real Perspective?' <https://www. radiosvoboda.org/a/28583748.html> accessed 10 December 2021.
18. Kuz Ivanna Yana, Stevenson Matthew K, 'Supreme Anti-Corruption Court of Ukraine. Innovations for Impartial Justice' (2020) 4 (5) BRIEF 2.
19. Constitutional submission (no 04-02 / 6-339 of 22 July 2020) on the compliance of the Constitution of Ukraine (constitutionality) with the Law of Ukraine 'On the Supreme Anti-Corruption Court' of 7 June 2018 no 2447-VIII <https://ccu.gov.ua/sites/default/ files/3_349_2020.pdf> 6 September 2021.
20. TatsiyVYa (ed), Constitution of Ukraine. Scientific and practical commentary (2nd edn, reworked and add., Pravo 2011) 873.
21. Law of Ukraine'On the Judiciary and the Status of Judges', Scientific and practical commentary (Kyiv: Alerta 2019) 21-22.
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