PROBLEMS OF LEGALITY

17-25

Authors: Dreval Yu. D., Hotsuliak S. L.

The article considered the issue that Ukrainian statehood existed in conditions of total political instability. The lack of a Directorate’s clear vision of the prospects for development and a corresponding political program, as the headquarters of the UNR, has become a catalyst for political struggle. The search for the best state model lasted throughout the time of the Ukrainian Revolution of 1917–1921. At first (the beginning of the Ukrainian Central Rada’s work) there were discussed the forms of government that have been already tested in the then advanced countries, such as parliamentary and presidential republics. In conclusions it was indicated that Ukrainian politicians unanimously supported democratic values and parliamentary system at the initial stage of the revolution. Only after a while, under the influence of a number of domestic political and foreign policy factors, an alternative has grown, which, during the period of the Directory, got the character of a tough confrontation. However, even in complicated military-political conditions, it continued to defend the ideas of constitutionalism, parliamentarism and the division of branches of power.

35-43

Authors: Pyrozhenko O. S., Shkurko V. I.

Higher legal education is a necessary component of the legal profession, a guarantee of professional competence of the lawyer. It plays an important role in social development, the environment for the formation of lawyers of the new generation. The analysis of the content of the concept «higher legal education» revealed the existence of serious problems of legal regulation of this category, since the diversity of its interpretations significantly affects the possibility of citizens realizing their rights, in particular labor, which is closely linked to the presence / absence of a certain level of higher education. The current legislation does not contain a single definition of the term «higher legal education». It is mentioned in the Constitution of Ukraine, as well as in several laws of Ukraine. However, his definition in these documents is different, sometimes not very correct, and sometimes not at all. In this regard, some citizens are deprived of the opportunity to realize their constitutional rights, including the right to work. Thus, the absolute majority of regional bar councils refuse to accept documents and register information about assistant attorney to those who have received higher education at the first (bachelor) level of higher education instituted after the Law of Ukraine «On Higher Education» No. 1556-VII of 01.07.2014 entered into force. The above is related to the false interpretation of the notion of «higher legal education» contained in the Law of Ukraine «On Higher Education» No. 2984-III of 17.01.2002. This contradiction, in our opinion, is a disadvantage of lawmaking technique, which should be eliminated by introducing appropriate changes to the existing standard acts of legislation. The necessity of such adjustments, in our opinion, is justified because a clear delineation of qualifying requirements to the person who carries out professional activities regulated by special legislative acts, adds an element of certainty and will clear a guide for seekers of higher education. Summarizing, we note the inexpediency of defining the notion of higher legal education by the names of specialties. More reasonable and appropriate practices leading powers would be the recognition of higher legal education (within the meaning of the Constitution and laws of Ukraine, which contain this term), higher education gained on educational programs, which during the accreditation recognized as providing an education that meets the qualification requirements for the occupation of certain positions. In this case, special conditions of accreditation of such programs may be provided, in particular, taking into account the results of the unified state exam and evaluation programs involving members of the professional community. In the future, after the establishment of the State Register of Qualifications, the conformity of education with the existing requirements for candidates for certain positions can be achieved through the corresponding marks in the register, which will be done on the basis of accreditation of educational programs, which will be assigned these qualifications.

53-60

Authors: Lurye D. A.

The article explores the modern condition of the legal regulation of post-trial access to investigational treatment. The author has determined main arguments concerning the necessity of foreseeing such a right and the problematic issues that arise in case of its implementation. On the one hand, a subject can legitimately expect that s/he will continue to have access to beneficial treatment after the end of trial, for example, if it alleviates the symptoms of a chronic illness, depriving a trial subject from the beneficial post-trial access would defeat the basic principle of medical ethics. At the same time, this provision may have a large financial burden on the sponsor of the trial; it is difficult to control the occurrence of serious adverse reactions; providing post-trial access only to the subjects of the trial and denying others create disparity among patients. The particular attention is paid to international standards and experience of foreign countries in this field. The legal and regulatory acts of Ukraine do not have any provisions on post-trial access to investigational treatment. The main international ethical guidelines, such as Declaration of Helsinki, CIOMS/WHO Guidelines, contain such a right, but they have different formulations and volumes that only intensify professional discussions. The most common norm is as follows: «a responsibility of sponsor to supply details of the plan for treatment or care of subjects once their participation in the trial has ended», which, in contradistinction to the Ukrainian legislation, is not connected with the causing damage to the subject. The author also has researched a unique case of Brazil, where the post-trial drug access program must make the medication available and free of charge to the subjects of the research in the cases of concluding the trial or after the patients’ participation in the study. On this base, the author offered to provide in the legislation of Ukraine requirements to inform in advance subjects about the presence or absence of post-trial access and to evaluate these provisions by ethics committees before and at the end of all trials in order to determine its real need in each individual case. The scope of the right on post-trial access to investigational treatment must be reasonably weighed in order to avoid, on the one hand, becoming an excessive stimulus for the subjects, and, on the other hand, not leading to a situation where on such regulation conducting of clinical trials in the country will no longer be appropriate.

78-92

Authors: Klymosyuk A. S.

The subject of this article covers the ratio of diversion and terrorist act, which includes: 1) a comparative analysis of the Criminal Law provisions defined in the Article 113 and Article 258 of the Criminal Code of Ukraine; 2) study of competition issues of these norms and separation from a similar set of such crimes. It is substantiated that the difference in the elements of crimes provided defined in Article 113 and Article 258 of the Criminal Code of Ukraine, above all, consists in the discrepancy between their mandatory signs of the object of the crime, the objective and subjective elements of the crime. Therefore, with the possible coincidence of some legal features of these crime elements, one or more of such distinctive features may be crucial for separation between a diversion and a terrorist act. During the investigating of the punishability for these crimes, it was found that in some cases the actual infliction of harm by a s diversion causes the necessity for additional qualifications by Part 2 of Art. 115 or Part 3 of Art. 258 of the Criminal Code of Ukraine. It is proved that the norm of diversion can be competed with the norm of a terrorist act as a whole (Article 113 of the Criminal Code of Ukraine) and as part of the whole (Article 258 of the Criminal Code of Ukraine), and in such cases the preference in enforcement should be qualified as a diversion. Examples given in this article are an illustrations of an ideal and actual set of diversion e and terrorist act.

104-120

Authors: Kaluzhna O. M.

The main aim of the article is to encourage the reader to reflect on the advantages and disadvantages of a public expert monopoly in conducting forensic expertise. In such article the obvious advantages of conducting forensic expertise by public expert institutions are stated in order to get scientifically substantiated and based on modern data of science and technology practice of conducting forensic expertise. The practice includes developed network of public expert institutions in the regions, a wide range of forensic expertise being conducted, research departments of state expert institutions, system of advancement of forensic experts; system of development of new and improvement of existing expert methods; informational records and collections in the DNDEKTS and NDECTS system at the head offices of the NP in the regions and in the city of Kyiv; state financing and provision of technical tools and materials with expert research etc. At the same time, the disadvantages of such a model of the organization of judicial expert justice’s support are stated: the lack of competition among court experts; the abuse in the form of giving deliberately false conclusions to cover up someone’s misuse or concealing crimes; the limitation of the parties of the court proceedings in the dispositive right to provide evidences at one’s one discretion; the artificial limitation of possibilities to discover the circumstances of the proceedings (using of all possibilities to establish the truth in the case). It is concluded that the model of judicial expert support of legal proceedings in Ukraine, that is established by «judicial reform» (Law No. 2147-VIII in the wording that will come into force on March 18, 2018) is a milestone in its historical development, which certainly should be modified depending on its effectiveness and the demand of the society, public, professional and state institutions. So public forensic expert monopoly is not an ideal model of forensic expert support of justice because of corporate and political interests, corruption component, abuse of forensic experts etc. Therefore, it will undergo a review and transformation.

131-143

Authors: Yakoviyk Ivan Vasylovych, Okladna Marina Georgievna,Orlovskyy Roman Ruslanovich

The focus of this article is the research of the questions, related to the development of separatism in Europe. The prerequisites for the development of the separatist movement within the European integration are analysed, as well as the forms of its realization. The EU’s role in settling the separatist conflicts of the member states is explained. The author is proving the conclusion that in future, within the United Europe, the demands for self-determination will be reviewed by the European Union’s institutions more and more often. Those events will be happening on the background of the mounting tensions between the EU, its member states and their regions.

154-165

Authors: Usmanov Y. I.

The article is devoted to the actual topic of international mechanisms for the protection of the right to life in international and non-international armed conflicts. The increase in the number of armed conflicts in the world and, with them, violations of the right to life of the people, necessitates a generalization of the normative theory and practice of international bodies that promote and protect the fundamental right to life. That is why the article reveals, compares and generalizes the normative, theoretical and practical tools within the international mechanisms of protecting the right to life in conditions of military confrontation. The regulatory framework of the article is based on the IHL, in particular: the Geneva Conventions (1949) and the two Additional Protocols thereto, the Hague Conventions (1907), customary norms, etc., as well as international human rights instruments, in particular: the Universal Declaration of Human Rights (1948), The International Covenant on Civil and Political Rights (1966) and the two Optional Protocols thereto, and regional acts: the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1969), the African Charter on Human and Peoples’ Rights (1981), the Arab Charter on Human Rights (2008), etc. The most problematic issues in the article that arise during armed conflicts and which relate to the lawful use of force against warriors, the lawfulness of the deaths of civilians during an attack on military purposes (collateral damage), precautionary measures, which must be taken by States using lethal force, the obligation of States to investigate every death case, etc. will be considered in the light of the activities of the UN Human Rights Committee, the African Commission on Human and Peoples’ Rights, the InterAmerican Court of Human Rights and European Court of Human Rights, whose practice in this area is represented the most versatile, widely and thoroughly.

175-182

Authors: Nugroho Hibnu

Corruption becomes the greatest enemy most countries face including Indonesia. Commitment to eradicate corruption significantly increases yet it would be meaningless if it is not supported by adequate legislation to implement the law effectively. Reversal burden of proof essentially aims to facilitate law enforcers to seek and disclose assets a suspect owns allegedly as corruption crime. The principle of reversal burden of proof was originated from Anglo-Saxon countries and this still applies to certain cases such as bribery-related gratifications as Malaysia and Singapore implement. In Indonesia, provisions on the principle of reversal burden of proof have been long recognized even since 1960 on the first law on corruption crimes. Nevertheless, for more than a half of century, the provision on reversal burden of proof has never been implemented. It occurs since articles which govern the issues barely provide clear regulation. It only mentions the principle yet never issues an implemented regulation to support the principle. In regards to this, the research is aimed at investigating, seeking and analyzing the weaknesses in implementing the principle of reversal burden of proof in corruption crimes recently as well as discussing obstacles in law enforcement