PROBLEMS OF LEGALITY

11-17

Authors: С. А. Косінов

The article states that the implementation of the ideas of the fundamental values of a democratic state is possible only when there will be a reliable mechanism of control over the power. Such control is a prerequisite not only legitimize public authorities, but also human rights. The author uses the concept of three periods in the historical development of democracy J. Keane (assembly democracy, representative democracy and controlling democracy), stressing that the control mechanisms of democracy provide protection from the tyranny of the majority, responsive to the output power beyond its mandate. It is noted at the required connection control public authority with the rule of law through the institutions of national sovereignty, separation of powers, representative government, limited and responsible governance, constitutional and administrative review. Emphasized that the important factors in the implementation of social control in a democratic state are such elements as elections, referendums, public movements and organizations, political parties, independent media, public opinion, various forms of social protest. The tendency to increase the role of private institutions in the exercise of public power in the modern world is stated.

27-34

Authors: О. О. Сидоренко

The article describes the identifying areas of influence of the European Court on the legal system of Ukraine, as well as the enforcement mechanism of decisions. Analyzes the problems that affect the designated question and points of view of different scholars and practitioners. In Europe there are different documents – convention covenants, charters that provide and ensure the inclusion of a special protection mechanism in case of violation of human rights. These documents Convention on Human Rights and Fundamental Freedoms (Rome, 1950, hereinafter - the Convention), which provides the most effective and real protection mechanism for human rights. Convention not only proclaimed fundamental human rights, but also created a special mechanism to protect them. The key to this mechanism is the European Court of Human Rights. European Court of Human Rights (hereinafter - the Court) located in Strasbourg, France. Its jurisdiction extends to forty-seven European states that are members of the Council of Europe and signatories. Article 9 of the Constitution of Ukraine clearly states that international treaties, ratified by the Verkhovna Rada of Ukraine are part of the national legislation of Ukraine. The Court can not apply the law that governs the legal relationship in question, other than an international agreement. However, international agreements apply if they do not contradict the Constitution of Ukraine. Urgency of the problem by the growth requirements of the rule of law in the judiciary, increasing legal awareness of citizens and their activity to protect their rights and freedoms, the presence of non judicial legislation with international legal acts. Procedural legislation of Ukraine in many aspects not harmonized not only in line with the decisions of the European Court, but also to the current constitution. Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms July 17, 1997. Since then, the citizens of our country have an opportunity to apply for protection of violated rights to the European Court. The Convention, the basic human rights and freedoms, and in performance of work by an international agreement is necessary to consider the interpretation of the Court. It follows from Article 32 of the Convention, according to which the jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and its Protocols. The case-law of the European Court increasingly becoming an important source of law in Ukraine. The European Court is the subject of judicial lawmaking. The high authority of the European Court was obtained by ensuring uniform interpretation and application of the Convention across the entire European continent. Number of appeals to the European Court is growing, and more and more of its decision relating to the interpretation of law, and the problems of its imperfection.Law of Ukraine «On execution of decisions and application of the European Court of Human Rights» dated February 23, 2006 by fundamental for the legal system of Ukraine provisions. The existence of precedents of the European Court as a unique source of law is due, usually gaps in the law or its ambiguous understanding. In terms of reforming legislation of Ukraine, the European Court in its systematic conceptual models provide certain legislative activities. The court is designed to ensure strict adherence to and compliance with the rules of the Convention by the States Parties. It carries out this task through the consideration and resolution of specific cases taken him to the proceedings on the basis of individual complaints filed by an individual, group of individuals or non-governmental organization. It is also possible filing complaints of violations of the Convention by the State - a member of the Council of Europe of another Member State. European court can not reverse the decision rendered by a public authority or national court does not give instructions to the legislator, the abstract does not control the national legislation or judicial practice has no right to order measures with legal consequences. The Court considers only specific complaint in order to establish whether indeed been admitted violation of the Convention. However, the Court has the right to award «just satisfaction claim» in the form of financial compensation for material damage and moral damages and compensation side that won all costs. European Court puts the main purpose of the payment of financial compensation for infringement of the applicant's main task - to draw attention to the fact of violation of the relevant articles of the Convention and provide the applicant all remedies, where he was denied a national legal system

44-52

Authors: А. Л. Крутько

National legislative initiative is a new instrument of popular wills demonstration as compared to different forms of direct democracy. In most of developed democracies this institution regulated at the constitutional/ legislative level. But in the modern Ukraine its constitutional legal regulation is absent, due disregard of its possibilities and lack of understanding of its essence. Paper objective. This article an aim is to analyze in details the definition of «national legislative initiative» and determinate its basic types according to theoretical insights and foreign current law. Recent research and publications analysis. The domestic and foreign scholars works on scientific research of national legislative initiative institution such as V.N. Rudenko, O.M. Mudra, V.M. Shapoval, V.F. Nesterovich, J. F. Zimmerman and etc. Their works were foundational at the time of writing. Paper main body. With the help of big definition dictionary and new encyclopedic dictionary it was found the etymology of the concept «initiative» which is characterized as the basis, also found meaning of «legislative initiative», «national initiative» and «national legislative initiative». It was argued impossibility an identification of «national initiative» with «national legislative initiative». The current definitions of the national legislative initiative were analyzed in the article. It was noted that suggested terms were limited only by identification of institute’s apparent indicator and withhold essence. This is precisely why four types of the national legislative initiative’s realization are briefly examined for the complex determination of the definition. These types depending on what role the legislator are assigning to citizen, who are the main actors of initiative. And on the basis of this analysis the author provided his own definition of «the national legislative initiative». The author had notes that the proposed definition was not general, because the institute of national legislative initiative had many types. On the basis of the foreign current law and the scholar’s works were separated 6 criteria whereby the national legislative initiative can divided into certain types. Conclusions of the research. On the basis of foreign laws and scientific literature, the author concludes that national legislative initiative is the complicate institute. The content of which is that the number of citizen who are define by law can initiate the creation or ready to propose a bill through incorporation it to representative body. This bill must be considering on a mandatory basis or referendum. The result of which can weigh with the decision of the adoption or rejection of the bill.

61-71

Authors: В. Д. Остапенко

Problem settings. The right to peaceful assembly is a basic system of political rights of citizens of Ukraine as a means, and, unfortunately, sometimes, and the last real opportunity to convey their views or influence the activities of the public authorities, the judicial protection in practice it turns out one of the main guarantees of their implementation. Recent research and publications analysis. To the analysis judicial guarantees the right to peaceful assembly, in particular, such researchers applied as Barabash Y., Shevchuk S., Severin S.Paper main body. In the article the problem of protecting the right to peaceful assembly by means of constitutional justice, courts of law and practice of the European Court of Human Rights on the implementation of this law. The conclusion is that since this right is a basic system of political rights of citizens of Ukraine as a means, and, unfortunately, sometimes, and the last real opportunity to convey their views or influence the activities of the public authorities, the judicial protection in practice it turns out one of the main guarantees of their implementation. It is reported that currently in Ukraine a special law that regulates social relations in the field of freedom of assembly in our legislation today is not that the main obstacle to the free exercise their right to peaceful assembly in practice and the existence of controversial judicial practice protection of constitutional law. It is in this legal act must be resolved problems in terms of notification of peaceful assembly, their shape, mass, time and place of the meeting. Conclusions of the research. The main problem that must be solved by law - it dates subject of the public authorities to hold a peaceful assembly. Another problem in the regulation of relations in the sphere of peaceful assembly is a clear definition of grounds and rules limiting the realization of political freedom.

81-88

Authors: В. В. Надьон

Problem setting. In accordance with the Civil Code of Ukraine guardianship and trusteeship are established to provide personal non-property and property rights and interests of minors, and adult persons who for health reasons can not independently exercise their rights and responsibilities (article 55 of the Civil Code). The main difference between guardianship and trusteeship is in the volume of civillaw responsibilities which the law imposes on Trustees and Guardians, based on the volume capacity and the health status of their wards. Thus, the trustee is appointed over the minor and persons wichare incapasitated individual, the trustee, the guardian is appointed over minors and individuals that have limited civil capacity. The Civil Code of Ukraine pays considerabl attention to the guardian's responsibilities, which include: 1) to care for a ward, about his education, training and development, to create the necessary living conditions; 2) to provide that minors and persons limited civil capacity of care and treatment; 3) to provide the necessary conditions for obtaining a General secondary education; 4) to take measures to protect civil rights and interests; 5) once a year to carry out a full medical examination; 6) to determine the place of residence of the ward person. To the rights of the Guardian in the legislation: 1) to demand in court the return of his child under his guardianship from any person who illegally hold on to it; 2) live together with the ward and can be registered on a residential square, the latter for the period of their responsibilities execution; 3) to manage the assets of the ward; 5) may be voluntarily released from fulfillment of the assumed obligations

95-104

Authors: Т. Цувіна

Problem setting. European Convention of Human Rights (ECHR) guarantees right to a fair trial within a reasonable time for everyone (par. 1 art. 6 ECHR). Reasonable time of the trial is an element of the right to a fair trial. One of the main directions for development of civil procedure in Ukraine is the implementation of international standards of fair trial, in particular standards of reasonable time of the trial. Recent research and publications analyses. Foreign and Ukrainian scientists such as Komarov V. V., Neshataeva T. M., Sakara N. U. and others in their works paid attention to different aspects of problems connected with the right to a fair trial within a reasonable time, but a comprehensive study devoted to a features of calculation of reasonable time of the trial taking into account the practice of the ECHR on this issue wasn’t conducted. Paper objective. Main objective of the article is to study decisions of the ECHR concerning the interpretation of Par. 1, Art. 6 ECHR and analyze features of calculation of reasonable time of the trial to make recommendations on implementation of such national level. Paper main body. As a rule, according to a practice of ECHR reasonable time of civil proceedings begins on the date on which the case is referred to a judicial authority. Thus ECHR can take as the starting point the date of a preliminary application to an administrative authority, especially when this is a prerequisite for commencement of proceedings. The end of reasonable time of the trial connected with the moment when the court decision become final or its execution. Conclusions of the research. Calculation of reasonable time of the trial in civil cases in circumstances when an application to the court was preceded by a seeking for protection from the authorities and public servants of executive power has features. In such situations a calculation of reasonable time of the trial doesn’t begin from the moment of seeking for protection from any authority or public servant of executive power, provided by art. 17 of Civil Code of Ukraine. The calculation begins from this moment only if such authority provides guarantee of a “court” according to the practice of ECHR or this is a prerequisite for commencement of proceedings.

113-121

Authors: Ю. Остапенко

Problem setting. Dynamics of structural changes in the real economy is a basic factor in the dynamics of structural change in the subject of economic law and primarily - law. Hence, the structural development of the Ukrainian economy, including its manufacturing sector requires a thorough analysis in the context of the structural balance of proportions and involvement of the legislative regulation of mechanisms for sustainable development, the opposition of destabilizing external negative influences, increased competitive industrial complex in the world market. Recent research and publications analysis. An important achievement in the analysis of the nature of economic relations, the need for legal support for the implementation of these relations and the role system, globalization and integration processes on sources of economic law did Russian scientists, namely V. Bezbakh, M. Kuznetsov, M. Masevich, V. Ulyanischev more. Regarding the analysis of research on the territory of Ukraine is involved in this issues outstanding scientists, business executives such as: V. Mamutov, O. Vinnyk, D. Zadyhaylo, G. Znamenskii. Also involved in the analysis of science P. Skrypnyck, V. Volodya and more. But these scientists have not paid sufficient attention is systemic view on forming nature of economic relations and developing strategies to ensure the formation of modern legal relations of the economic system according to the specific nature of the system is economic relations. Paper objective. The article is an analysis on the contents system elements of economic relations and legislative activity in each segment in the field of economic law and different approaches to regulation at both the national economy and in the globalization context. Paper main body. The scope of management, which are purely market mechanisms combined with the requirement of social direction of the economy requires structural analysis and installation of the latest legal regulation of economic relations that can ensure a harmonized development of the national economy and regulate private and public interests. Thus, the structuring of the national economy based on major theoretical and methodological principles of economics, namely the sectoral structure theory, initiated K. Clark [14], which interpreted the division into three sectors - primary (agriculture), secondary (industry), tertiary (Service Industries); and later in the dynamic evolutionary changes in the economy has five or more sectors. Indeed, the structure of the national economy, which reflects the macroeconomic proportions in economic development, and evolve dynamically modified. Second, Ukraine has made replacing one system to another, and from some in some structural subdivisions and destroyed at the national level closed-loop manufacturing system - development or mining, processing or manufacturing, to final product; and, consequently, traffic from one technological way to another, and with it the movement of national economic system to a postindustrial society. Consequently, there are a number of problems related to the structuring of the economy and legislative support to its legal function. Thus, the dynamic structural changes in the real economy is a basic factor in the dynamics of structural change in the subject of economic law and primarily – law. Hence, the current structural development of the Ukrainian economy, including its manufacturing sector requires a thorough analysis in the context of the structural balance of proportions and involvement of the legislative regulation of mechanisms for sustainable development, the opposition of destabilizing external negative influences, increased competitive industrial complex in the world market. Conclusions. Problems structuring of the economy, the formation of a market economy and the movement towards a post-industrial society in Ukraine should develop a strategy for the development, special prudent economic concept in law given theoretical and practical achievements that have passed the test of time, history and experience. Ignoring basic principles and laws of structuring national economy leads to deep structural deformities that hinder economic development and causing considerable social losses. In summary, it should be emphasized that the dynamics of structural changes in the real economy is a factor in structural changes in the subject of business law and legislation.

135-144

Authors: Д. М. Мікулин

Problem setting. Today the institute of legal responsibility functionates inefficiently, which can be explained by a weak theoretical development problems of this institution in particular legal sciences (including the environmental law); legislative gaps; low level of skills of the executive officers in the field of environmental protection, rational use, restoration and protection of natural resources. These provisions completely relate as well to the problems of applying legal responsibility for violations in the field of long-term temporary use of forests. Recent research and publications analysis. Issues of legal responsibility for offenses in the sphere of forest usage were considered in the scientific works of B. Boreiko, S. Kravchenko, O. Shumilo, O. Storchous etc. Anyhow, the legal precedents in the scope of offenses in the sphere of long-term temporary usage of forests in Ukraine remains not studied. Paper objective is the analysis of the most typical recent legal cases in the scope of long-term temporary usage of forests that demonstrate the roots for conflicts between the forest users, local public authorities and the public. Paper main body. Based the an analysis of cited precedents, it can be unequivocally concluded that the forest legislation doesn’t regulate efficiently the liability for violations in the field of long-term temporary usage of forests in Ukraine. Forest users often fail to comply with the contract terms of using forests in the part of veto on business activity, as well as constructing fences, that impedes the access of local residents to natural resources. The procedure for receiving forest lands in temporary usage is extremely corrupt, and citizens have to go to court to bring regional administrations to administrative responsibility for unjustified refusal to provide forest lands in the long-term temporary usage. Conclusions of the research. Author believes that the effective solution of modern problems is not to increase fines for administrative and other offenses, but in enhancing the transparency and openness of the permit system, limiting corrupt practices in providing forest lands in temporary usage

155-161

Authors: В. Ф. Оболенцев

Тhe article describes the basic facts of the system analysis of crime prevention. Substantiates the methodology and system properties of this activity. The article presents the results of a systematic analysis of the formal procedures prevent crime in Ukraine. The purpose of crime prevention as an artificial system is defined as the absence of crime – penal violations of existing social relations, preservation of the latter. Purpose of the system of crime prevention – keeping people from violating the legitimate social relations, blockades or start a potential criminal activity. For a system of crime prevention functions can be considered a means of keeping the population from criminal acts and termination initiated criminal attacks. The problem of crime prevention system – inconsistency functions, parameters and structure of the system to its destination. Context of the system of crime prevention – a modern Ukrainian society. Virtual border crime prevention system it is advisable to consider virtual demarcation between the subjects of crime prevention and social relations protected The external environment for the system to prevent crime in our opinion are protected social relations. The purpose of system analysis system to prevent crime we mean to the improvement of its efficiency, building generalizing the content model of interaction with social relationships (legitimate and criminal) in modern conditions Ukrainian society. Objective analysis of the system of crime prevention – identifying ways to improve the effectiveness of the system in achieving its goal, to provide advice on compliance functions, parameters and structure of the system to its destination.

169-179

Authors: В. І. Алєксєйчук

Problem setting. Understanding of criminalistic methods exceeded now the boundaries of traditional points of view - as a methods of crimes investigation. An attention is drawn to the fact that the process of proof in criminal proceedings is not completed with a pre-court investigation, on the contrary, it is being continued even more actively during the court hearing. In this regard a need for providing of subjects of court hearings of criminal cases (judges, prosecuting attorneys, defense lawyers) with criminalistic methods is emphasized. At the same time the stated ideas have not been sufficiently developed in Ukrainian doctrine. Special papers devoted to particular criminalistic methods of court hearing of criminal cases are not present. This problem cannot be settled without preliminary solving of issues of more general theoretical meaning, especially, definition of essence and goals of particular criminalistic methods of court hearing in criminal proceedings. Recent research and publications analysis. Research of general-theoretical basic concepts of criminalistic methods was made by the domestic and foreign scientists (Yu. P. Alenin, O. Ya. Bayev, R. S. Byelkin, О. М. Vasylyev, І. О. Vozgrin, V. К. Gavlo, V. А. Zhuravel, А. V. Ishchenko, О. N. Kolesnichenko, V. V. Tishchenko, S. М. Churilov, А. V. Shmonin, B. V. Shchur, М. P. Yablokov and others). Issues of providing of criminalistic tools for court hearing in criminal proceedings are covered in the papers of the following scientists: L.Yu. Аrotsker, V. М. Bozrov, М. Y. Vilgushunsky, G. А. Vorobyov, V. К. Gavlo, S. L. Kyslenko, D. V. Kim, І. І. Kogutych, Yu. V. Korenevsky, О. Yu. Korchagin, S. P. Sukhov, О. О. Sychova, А. L. Tsypkin, Т. B. Chedzhemov, V. Yu. Shepitko and others. The authors of papers published in Ukraine in recent years, studying conceptual problems of providing with criminalistic methods of court proceeding in criminal process are: V.А. Zhuravel, І. І. Kogutych, І. І. Kotyuk, V. Т. Nor, B. V. Shchur. At the same time the scientists have not paid enough attention to the research of essence of particular criminalistic methods of court hearing of criminal cases and to the definition of its goals. Paper objective is an emphasizing and grounding of specific nature of goals of particular criminalistic methods of court hearing in criminal proceeding, definition of its essence. Paper main body. An essence of particular criminalistic methods of crimes investigation are scientific and practical guidelines which concern specific actions sequence, specific methods, techniques, ways and means of their implementation during investigation of a certain type (category) of a crime, intended for use in specific typical situations. The court hearing of criminal proceedings is actually a continuation of a process of learning an event which took place, it is of crucial importance, therefore it requires scientific and practical guidelines concerning its providing. The differences in the content of such guidelines are connected with diversity in some tasks of pre-court and court proceeding and goals of corresponding particular criminalistic methods concerning their providing. In this regard, definition of goals of particular criminalistic methods of court hearing in criminal proceeding should be based on an analysis of tasks of criminalistic methods in general as a section of criminalistics, goals of criminal proceedings and essence of proof. At the same time, goals of particular criminalistic methods (of investigation as well as of court hearing of criminal cases) have to disclose practical destination of the last one - as a system of guidelines developed for direct use in specific typical situations. The structure of such system of guidelines is determined by components of proof process which cover the following: collecting, recording, research, estimation аnd using of evidences. It should be taken into consideration that the stated elements are being implemented to different extents during pre-court investigation of a crime and during hearing of a case in court. So it is reasonable to make a preliminary analysis of particular criminalistic methods of a crime investigation, to determine differences in the conditions of implementing of the first and the second type of particular methods, as well as proportion between goals of court proceeding (court hearing) in criminal proceedings. Specific conditions of cognitive activity in the course of court hearing are: a) informational clearness and completeness of the evidences collected; b) larger degree of criminal event knowledge; c) larger distance in time from the criminal event; d) completeness of familiarity of the parties about the whole complex of the available evidences, their quality and thoroughness; e) extended scope of participants; f) availability of substantiated versions of parties; g) special (stressed) psychological atmosphere of activity; h) proneness to conflicts; i) restrictions in tactical means. Taken into consideration the stated differences in circumstances in which the court hearing takes place (in comparison with the crime investigation), and the aim and goals of court hearing, the proportion in tasks of relevant types of particular criminalistic methods can be followed. Conclusions of the research. The goals of particular criminalistic methods of court hearing in criminal proceedings are: 1) maintenance of activity of the representatives of criminal proceedings parties (prosecutor, defense lawyer) and of the court in the process of court hearing according to the particular types (categories) of crimes by the systems of scientific concepts and practical guidelines; 2) coordination of cognitive, constructive, communicative and organizational activities of corresponding subjects by providing typical actions programs regarding typical situations of court hearing; 3) contribution to an effective research, evaluation and correct interpretation of information provided by the parties and obtained during the court hearing; 4) providing of high-quality verifying of evidences (including identifying of disadvantages, mistakes, violations while collecting, their unreliability); 5) facilitating of analysis of the provided versions (prosecution and defense) and formulation (and checking) of court versions; 6) promoting of determination (proof) of guilt (or innocence) of an accused person and imposition of a fair and optimal penalty for a guilty person; 7) promoting of finding out the cause of changing situations of court investigation and taking them into account while using of typical actions programs. Particular criminalistic methods of court hearing in criminal proceeding can be defined as a system of scientific concepts and scientific and practical guidelines for maintenance of activity of the parties of criminal proceedings and the court during the court hearing according to the certain types (categories) of crimes aimed at research, checking and estimation of provided evidences, finding out the causes of differences in available information, determination (proof) of guilt (or innocence) of an accused person and imposition of a fair and optimal penalty for a guilty person. Definition of specific nature of particular criminalistic methods of court hearing of criminal cases is one of the arguments in grounding of need of their development as an individual complex of means of criminalistic tools and a step to creation of unified approaches in their formation.