JUDICIAL APPEAL Scientific and practical journal

Transcription

1 JUDICIAL APPEAL Scientific and practical journal Issue 3 (English version) Kyiv 2014

2 2 Editorial board CHERNUSHENKO A.V. KRESINA I.O. SEMCHYK V.I. ABUSHENKO D.B. TYMCHENKO G.P. ALENIN Y.P. VERESCHYNSKA N.O. VLASOV Y.L. KOROLENKO M.P. KOSTENKO O.M. KUZNETSOVA N.S. LUTS V.V. MALYSHEVA N.R. NAGREBELNYJ V.P. NEMYROVSKA O.V. PRYLUTSKYJ S.V. SIRYJ M.I. SHEVCHENKO Y.M. Head of Appeal Court of Kyiv, Candidate of Juridical Science (Senior Editor) Doctor of Political Science, professor (Deputy Chief Editor) Doctor of Juridical Science, professor (Executive Secretary) Doctor of Juridical Science, Ural State Law University, RF Doctor of Juridical Science (Executive Secretary) Doctor of Juridical Science, professor Director of Centre of Judicial Studies Judge of Economic Court, Candidate of Juridical Science Candidate of Juridical Science Doctor of Juridical Science, professor Doctor of Juridical Science, professor Doctor of Juridical Science, professor Doctor of Juridical Science, professor Candidate of Juridical Science Candidate of Juridical Science Doctor of Juridical Science Candidate of Juridical Science Doctor of Political Science, professor

3 Content JUSTICE SYSTEM OF UKRAINE...4 Khotynska-Nor Oksana. About interpretation of justice system term...4 Radchenko Oleg. Assistant judge court of general jurisdiction: by improving legal status...9 CRIMINAL LAW AND CRIMINAL PROCESS...14 Axtyrska Natalia. Consideration by court of a question of reduction of a sentence of court of the foreign state according to the legislation of Ukraine...14 Beznosyuk Andriy. Proof beyond a reasonable doubt and reliability as the standard of proving in criminal proceedings of Ukraine...18 Zhuk Elena. Organization labor of women, sentenced to imprisonment...23 Neznaiko S.V. Сriminalization of deliberate endamagement or destruction of housing and communal services objects for and against...27 Bilous Oleg. Regulation of entering the dwelling or other private property in urgent cases...32 Komarnicka Oksana. A solicitor is on leadthrough of search of habitation or other domain of person: modern state and prospects...36 CIVIL LAW AND CIVIL PROCESS...45 Koroed Sergij. Adversarial principle in civil proceedings and principles of guilt and integrity in the civil law...45 Shershun Sergiy. Systematization of legislation on the impact on the environment...49 Ivanchulynets D. Types of appeal by the subjects of the right to appeal in civil procedure...56 Sanin Bohdan. Consideration of cases related to state registration of acts of civil status in civil and administrative legal proceedings...61 Vereshchinska Iryna. Сontent of the subject of proof in cases of inheritance...65 Fartushok Nazar. The distribution of burden of proof in civil proceedings...68 KolomietsYuliya. Іmplementation of the principle of discretionary during the adjudication of civil cases on the merits...74 Nikitjuk Olena. Legal nature of right on putting an action about distributing of general property of the married couples...79 Zelenyak Artur. The notion and classifications of examination of material evidence as a means of their study in civil process...84 Rodoman Tetiana. The problem of the Contract terms change Definition in the Civil Legislation of Ukraine...91 INTERNATIONAL LAW AND COMPARATIVE JURISPRUDENCE...97 Koruts Ulyana. The problem aspects of harmonization of international and national regulation of the right to a fair trial

4 4 JUSTICE SYSTEM OF UKRAINE Khotynska-Nor Oksana. About interpretation of justice system term The article contains analysis of current scientific and legislation methods of definition of «justice system» term. Based on this, taking to account the science experience of general system theory, it explains the author s understanding of term researching and it is proposed to use it in further process of implementing justice reform in Ukraine. Key words: court, justice system, judicial administration, justice reform. The relevance of an effective judiciary problems caused by the primary task, which relies on it in a legal state - the protection of human rights. Create such judicial power in Ukraine is the task of judicial reform, which lasts for a long time and stages which were not always logical and consistent, and sometimes very controversial. Of course, the success of reform depends on many factors, but above all - the scientific substantiation of steps undertaken and the results of reform. Prominent in this process takes a scientific definition of conceptual and categorical apparatus, which operates the institution of the judiciary, as this is crucial especially for the practice of lawmaking as the basis of any of the public authorities. It is believed that organizational judiciary embodied in the judicial system. However, in law and the doctrine of common understanding of the concept of "judicial system" no. Like the judiciary, the judiciary is not discharged in "justice" of the Constitution of Ukraine and only analytically possible to formulate the basic doctrinal position on its formation, development and functioning as a relatively subsystems examined the structure of the legal system 1. Mostly these concepts identified with a set of hierarchically lined vessels. However, in a further reform of the judiciary and the rule of law actually constructing the said definition greatly enriched and become wider, and therefore there is a need to clarify. The theoretical basis of the test questions were works of such prominent scientists as V.I. Andreytseva, A.F. Izvarina, V. Lebedev, N.A. Kolokolov, R.O. Kuibida, L.M. Moskvich, V.I. Nazarov, V.T. Nor, A. Selivanov, V.V. Serdyuk and others. As the V.I. Nazarov, the views of researchers on the concept of "judicial system" depends on what features or peculiarities of the judicial system are considered as primary. It determines the judicial system as a system of state bodies - courts, which are carriers of the judiciary, designed to meet the need for consideration and resolution of legal disputes with common objectives, principles of organization and activities meet the level of socio-economic development 2. 1 Андрейцев В. І. Судово-правова система в Україні: тектологічні проблеми оптимізації функціонування / В. І. Андрейцев // Вісник Вищої ради юстиції С. 15.

5 This approach to the determination of the judicial system as a combination courts dominates academia 3 and used in the legislation. Thus, in accordance with Art. 3 of the Law of Ukraine "On the Judicial System" judicial system of Ukraine are courts of general jurisdiction and the court of constitutional jurisdiction. Therefore, the court considered the only members of the judiciary. But whether this perception investigated concepts present conditions? According L.M. Moskvich, lack of consideration of the above approach is the only internal organizational structure in the functional aspect. Under such conditions that category should be replaced by "court system" because it more accurately describes the elements of the system as a set of organizations that perform functions required by law. The judicial system should not be limited only to the totality of the courts. Therefore, this approach considers L.M. Moskvich too narrow, as relates to the concept of "system" only establishment directly involved in forensic imperious activity, leaving aside the very activities as well as agencies and individuals who directly provide the functions system - organs of self-government, judicial administration, judiciary and others 4. We fully support this position. The above understanding of the concept of "judicial system" and its element is dominant in the scientific community, but there are other views on the content of the definition 5.. Thus, A.V. Nikitin believes that the composition of the judiciary are: Principles of the judiciary; controls the judiciary; bodies of the judges; judiciary in a broad sense, which consists of judges as holders of judicial power, retired judges, lay assessors; set of different connections and relationships between data elements. Supporting this position, A. Malko, D.S. Semikin, A.V. Lyukina additionally offered to recognize members of the judiciary judiciary, judicial law and legal culture 6. Different views on the content of the studied concepts can be assigned as the interpretation of the definition of "judicial system" in the narrow and broad sense. In our opinion, this is due primarily to the fact that the philosophy and general systems theory, there are several dozen definitions of "system" as the context requires, the scope of knowledge and research objectives. The primary factor that influences the determination is that the use of "system" there is duality: on the one hand, it is used to determine the objective phenomena, on the other - as a method of studying and presenting phenomena, ie as sub 'model of objective reality 7. An example of the first is the definition of a set of elements that are in certain relations to each other and the 5 2 Назаров В.І. Судові системи країн Європейського Союзу та України: порівняльно-правовий аналіз : автореф. дис. на здобуття наук. ступеня док. юрид. наук / В.І. Назаров. Х., С Лебедев В. М. Судебная власть в современной России: проблемы становления и развития / Лебедев В.М. СПб. : Санкт-Петербургский государственный университет, юридический факультет, 2001; Издательство «Лань», С Москвич Л. М. Ефективність судової системи: концептуальний аналіз : монографія / Москвич Л.М. Х.: Видавництво «ФІНН», С Никитина А. В. Единство судебной системы Российской Федерации (конституционно-правовое исследование) : автореф. дис. на соискание научн. степени канд. юрид. наук / А.В. Никитина. Омск, С Малько А. В. Судебное право как важнейший элемент судебной системы / А. В. Малько, Д. С. Семикин, О. В. Люкина // Российская юстиция С Кориков А. М. Теория систем и системный анализ : учеб. пособие / А.М. Кориков, С.Н. Павлов. Томск : Томск. гос. ун-т систем управления и радиоэлектроники, с.

6 environment. An example of the second is the definition of a combination of elements in their interaction organized to achieve one or more goals. Studying the evolution of the concept of the system, E.B. Ahoshkova and B.V. Ahlibininskyy cause inconsistency and multiplicity of definitions of the term "system" sees that some authors are developing it in the ontological sense, the second - in epistemological, and in different aspects of epistemology, and others - in methodology. These scientists could reasonably argue that different levels of formal epistemological notion different that generates definitions set system. Therefore, different system concepts should not oppose, they only reveal new aspects of "system", thus acquiring heuristic value 8. Extrapolating this approach within the scope of our study, we see that we are above interpretation of the judiciary do not contradict each other, and only reveal its contents at different levels of scientific knowledge. However, it is believed, according to which the term "judicial system" is the property of the totalitarian Soviet regime and now lost relevance and evolved into the broader concept of "judicial system". However, the judicial system, by definition, MA St. Thomas is a set of rules that define the basic principles of organization and activities, tasks, internal structure and jurisdiction of courts and similar bodies (courts of arbitration, arbitration) and direct system of courts and the state of the system created to service the system 9. While agreeing with the statement only studied the evolution of definitions to support this view can not. First, the idea of not using the phrase "judicial system" unacceptable, because the scientists and legislators, in our opinion, should operate with terms that were commonly used in the theory and practice as well as incorporating a special meaning of certain words. As the A.V. Poshyvaylova, scientific concepts - a means of understanding reality base, on the basis of which the process of science and practice. They should be treated with caution, use only according to their true value 10. Secondly, the term "judicial system" as defined by different authors in different ways, and therefore does not sustainable. Therefore, to analyze the evolution of the concept of "judicial system" in the "Judiciary" and, therefore, can not argue the appropriate conclusions. Most Judiciary interpreted as: 1) a set of rules that define the objectives, principles and activities of the organization, structure and jurisdiction of courts; 2) the judiciary system (judiciary) 11. Or as an academic discipline, which is the object of study of the organization and structure of courts, members of the state judicial system, and bodies that promote their activities, and other courts located in the State Агошкова Е. Б. Эволюция понятия системы / Е. Б. Агошкова, Б. В. Ахлибининский // Вопросы философии С Фоміна М. А. До питання розмежування понять «судова система» та «судоустрій» / М. А. Фоміна // Часопис Київського університету права С Пошивайлова А. В. Место административной юстиции в правовой материи / А. В. Пошивайлова // Право и политика С Юридичні терміни. Тлумачний словник / В. Г. Гончаренко, П. П. Андрушко, Т. П. Базова та ін..; за ред. В. Г. Гончаренка. К.: Либідь, С Бибило В.Н. Судоустройство : учебник / Бибило В.Н.. Минск: Издательство «Право и экономика», С. 7. 6

7 In the scientific literature, the term "judicial system" was criticized V.M. Sawicki with the position that subject, in the center of which must have information about the organization of the court, more acceptable name "judicial power" 13. However, writes M.I. Kleandrova, concerned discipline (but you can argue with such a name because the emphasis should be on forms and methods of implementation by the courts of their authority), and for scientific problem can serve as the foundation, in particular, the range of scientific disciplines 14. Etymologically, the term "judicial system" has two components: adjective trial, which derives from the word "court" and the noun system, which, in turn, be construed as an established social order, the system of something; system 15. Therefore, we consider incorrect interpretation of the term "judicial system" as a set of rules. Moreover, at the level of doctrine set of rules and principles of law traditionally is a system of law. The following definition is logically viewed in two ways: in terms of the court order - then we will talk about the internal organization of the court as a public authority, and in terms of the structure of the courts. In the latter case, discussed the organization (build) the judiciary in its narrow sense. Returning to the interpretation of the term "judicial system" in the narrow sense, is to not talk about the system of courts of inherent constraints and characteristics of the system and the judiciary. We consider the following system characteristics and properties that are developed by scientists 16 to focus on the subject composition system. Why the courts, not only the courts constitute the judicial system? If you come to the determination of judicial authorities are exercising the judicial function of the state (the judiciary), it is clear that such bodies as the High Judicial Council, the High Qualifications Commission of Judges of Ukraine, State Judicial Administration of Ukraine, National School of Judges of Ukraine, implementing powers to ensure (personnel, organizational, financial, etc.) of court, an integral part of a unified system because of them depends courts exercise their exclusive powers - justice. Noting the presence of the judicial system Ukraine a number of "service", "infrastructure" of the state and various, including self-institutions that rely on no judicial power and auxiliary power, V.I. Andreytseva suggests formation of a system of justice based on the interpretation of the term "justice" as a category that indicates the totality of judicial institutions and their activities in the administration of justice, including judicial office. Thus its logical part the author considers the Ministry of Justice of Ukraine 17. However, we share the opinion of A. Selivanov: Chapter VIII of the Constitution of Ukraine stipulates two forms of the judiciary - judicial system and the 7 13 Савицкий В. М. Организация судебной власти в Российской Федерации : учебн. пособ. для вузов / Савицкий В.М. М. : Изд-во БЕК, С Клеандров М. И. Очерки российского судопроизводства: Проблемы настоящего и будущее / Клеандров М.И. Новосибирск.: Наука. Сиб. предприятие РАН, С Словник української мови [Електронний ресурс]. Режим доступу : 16 Москвич Л. Гносеологічні ознаки судової системи. / Л. Москвич // Вісник Академії правових наук України. 10/ С Андрейцев В. І. Судово-правова система в Україні: тектологічні проблеми оптимізації функціонування / В. І. Андрейцев // Вісник Вищої ради юстиції С

8 judicial system. Only direct subjects of the judicial system (all courts) constitute judicial system, is convinced the scientist, the other actors point to the judicial system 18. We believe that it is this concept deserves attention because most accurately reflects the content of the analyzed concepts and avoids their substitution, which is crucial for the practice of law-making. Using it, we can say that in Ukraine the judicial system, in terms of its subject composition (in its narrow sense), consists of two subsystems: the judicial system, which determines the organization of courts and judicial system, which determines the organization of the judiciary interim functions, which currently include the High Council of Justice, the High Qualifications Commission of Judges of Ukraine, State Judicial Administration of Ukraine and the National School of Judges of Ukraine. In broad terms the judicial system - a coherent set of legal institutions, which lacks expression of the judiciary, and their relationships. In this approach, its elements are the principles of the judiciary, the judiciary, judicial authorities, the judiciary, prosecutors and advocacy. Attribution of recent judicial system has to discussion. However, we support the position S. Good Friday: philosophical and legal nature of "justice" triune. It is the relationship (struggle and unity) prosecution, protection and final judgments (decisions) and expressed in a logical formula (thesis antithesis = synthesis or charge protection = judgment / decision /). Absence, neglect, absorption or substitution of one element, mechanism prevents an objective and impartial judgment. Thus the adversarial nature of proceedings creates the conditions and rules under which the active work of the prosecution and defense parties delegated process - the prosecutor (the victim) and defender (the accused). Judges, prosecutors, lawyers act as independent institutions of justice, with separate (independent) procedural functions, but approximate uniform or harmonized principles and status. The judicial power "comes alive" only in the proceedings, when entering into force all its key players. In the system of adversarial proceedings themselves judges, courts, the judicial system as a whole is "powerless" and unable to exercise judicial power 19. Although institutions prosecution and advocacy-specific antagonism, the result of their legal nature (first embodied in the government, the second - non-self-governing institution) in their relationship, making accusation and defense, they ensure the implementation of the judiciary. Thus, the above understanding of the judicial system will allow to put an end to the debate about the place of prosecution in the mechanism of separation of powers and can become a basis for further reform of the national courts, prosecution and advocacy, which should be integrated. And the beginning of this process should be appropriate amendments to the Constitution of Ukraine. For example, as suggested by V.I. Andreytseva by consolidation of the relevant rules in a single chapter "The judicial system of Ukraine". 18 Селіванов А. Реформування конституційних засад організації судової влади в Україні / А. Селіванов // Право України С Прилуцький С. В. Вступ до теорії судової влади (Суспільство. Правосуддя. Держава) : монографія / Прилуцький С.В. К.: Інститут держави і права ім. В. М. Корецького НАН України, С

9 9 Radchenko Oleg. Assistant judge court of general jurisdiction: by improving legal status The article reveals the inconsistency legislative framework that defines the legal status of assistant judges of courts of general jurisdiction. Solution based on the experience of the An Appeal Court of Kyiv City justify their own vision of the role and place of assistant judge in the judicial system of Ukraine. Key words: judge, assistant judges, the legal status, judiciary. Position assistant judges in courts of law is, of course, extremely important, since it allows for higher quality and more efficient to provide the work of judges, and hence the quality of justice in Ukraine. Nevertheless, its legal status and place in the judicial system, in our opinion, is not given due attention. In world practice of judicial power judicial assistants have a different status. In the USA, some European Union assistant judge, in fact, is his personal assistant. The judge has the right to choose their helper and offer him a job change with the judge. In Poland assistant judges are not judges PA. It works in the office of the court and helps several judges; drafting judgments and other documents, collect information needed to judge the case, supervises the work of secretaries and others. In general courts of Ukraine as Assistant Judge was introduced under the Law of Ukraine "On the Judicial System of Ukraine" in Need to introduce an institution in the Ukrainian courts should be the result of so-called "small judicial reform" in 2001, which resulted in a significant increase in load courts in general and judges in particular. The main purpose of establishing the position of assistant judges in Ukrainian courts were unloading a judge to perform routine technical work during the preparation and the consideration of cases. However, despite the introduction of the post of assistant legal status of general jurisdiction judges in law was not actually defined. By July 2010 as an assistant judge only mentioned in the law on the judiciary and the legal status actually been settled at the order of the State Judicial Administration of Ukraine of 20 July 2005 р. 86, which claimed Typical job description assistant judge among court staff positions 21. The role and place of assistant judges of courts of general jurisdiction, its legal status in the course of judicial reform in Ukraine amounted to only actually need to give judges the right to choose his assistants. Other aspects of the assistant judges were not considered. 20 Закон України «Про судоустрій України» [Електронний ресурс]. Режим доступу: 21 Наказ Державної судової адміністрації України «Про затвердження Типових посадових інструкцій працівників апарату місцевого загального суду» 86 від р. // [Електронний ресурс]. Режим доступу:

10 In the research questions of judicial assistants considered only in the context of the court staff. The role and functions of judicial assistants in the office of the court dedicated their works D.M. Prytyka 22, V.E. Telipko 23, S.G. Shotohun 24 and others. The Law of Ukraine "On the Judicial System" on July 7, 2010 was the century. 151 "assistant general court judges", which established the right of every judge of the court of law to have an assistant, partially settled the legal status of assistant judges in law and set qualifications for candidates for the position of assistant judges and the procedure for the selection, appointment, defined accountability Assistant judges and the general order of its human resources and financial support 25. But this article is not fully settled the legal status of assistant judge. In addition, the provisions of Article need additional interpretation and resolution of procedural issues, such as the procedures for the selection of assistant judges, appointment and dismissal from office, subordination manager of the court, the order of the Civil Service and more. Under Part of the Law of Ukraine "On the Judicial System" on judicial assistants covered by the Law of Ukraine "On State Service", because they are considered employees working in the court, but not part of a court 26. In ch. 9 c. 149 of the Act, which contains a list of members to the court staff in addition to staff offices and relevant departments, judicial assistants are not mentioned. In ch states that only helps "attached to personnel and financial services to the staff of the respective court." Assistants also installed and a special selection procedure, which is performed by a judge, while the selection of a court employees on a competitive basis. This procedure civil service that is set for judicial assistants under h of the Law of Ukraine "On State Service": President of Ukraine, the Verkhovna Rada of Ukraine, Ukraine government members, heads of local administrations have the right to adopt and take people to post their assistants, the spokesperson, advisers and secretaries according to the staff list and category corresponding position (Patronage Service). The order of the civil service of persons established by relevant authorities. Although judges are not mentioned in the text of the article, in fact, the order of selection assistants and conditions of service for all signs comply with the terms of the support service. In this case, a specific legal conflict between the Law of Ukraine "On State Service" and the Law of Ukraine "On the Judicial System": it provides a second order patronage appointment and military service, and the first does not extend to the judges the right to patronage service. The Statute of the assistant judge of the court of general jurisdiction, which is approved by the Judicial Council of Ukraine of 25 March 2011 р. 14, interpreted Притика Д.М. Правові засади організації і діяльності органів господарської юрисдикції та шляхи їх удосконалення / Притика Д.М. К. : Ін Юре, С Теліпко В.Е. Закон України «Про судоустрій і статус суддів». Науково- практичний коментар / Теліпко В.Е. / за ред. Молдована В.В. К. : Центр учбової літератури, с. 24 Штогун С.Г. Організація діяльності місцевих загальних судів в Україні. : навч. посіб. / Штогун С.Г. Острог : Вид-во НаУ «Острозька академія», С Закон України «Про судоустрій і статус суддів» [Електронний ресурс]. Режим доступу : 26 Закон України «Про державну службу» [Електронний ресурс]. Режим доступу :

11 the legal status assistant judges under the new law on the Judiciary 27. There are the same qualification requirements for candidates for the post of assistant judges of courts of general jurisdiction are set ch. 2, Art. 151 of the Law "On the Judicial System." Under the provisions of this article assistant judge shall be a citizen of Ukraine who has a law degree and is fluent in the state language. Assistants of the Supreme Court of Ukraine has established an additional requirement - the presence of professional experience in the field of law for at least three years. That local deputy judge, appellate and high specialized courts are not required to have experience in the field of law. His features a selection procedure assistant judge is different from the one that existed before the new law on the Judiciary. Selection of candidates for the post of assistant judge shall direct the judge himself. Competition for judicial assistants provided, while the selection of a court employees on a competitive basis. Assistant judges appointed to judge the performance of office of a judge of the respective court. This procedure of recruitment and appointment raises a number of contradictions. On the one hand, the selection assistant judge spends his time searching and evaluating the person he wants to be his assistant, assesses the knowledge and skills that he believes should be his assistant. The judge may also pay attention to the personal and psychological characteristics of a person for the office assistant. Later, however, responsible for the quality of work is the assistant manager of the court, which, according to ch. 2, Art. 149 of the Law of Ukraine "On the Judicial System" be responsible for the proper organizational support of the court, judges and legal process, and therefore, by judicial assistants. In fact influence their destination chief of staff in accordance with laws and regulations can not. The Regulation states only that the Chief of Staff judge may refuse a request for appointment as assistant judge in the case where the applicant does not meet the requirements of ch. 2, Art. 151 of the Law of Ukraine "On the Judicial System", p. 12 of the Law of Ukraine "On State Service" and Mr. 6 Position of Assistant Judge of the court of general jurisdiction. In addition, according to the Law of Ukraine "On State Service" assistants have to pass an annual evaluation and certification, and so they should be subordinated to the head unit. After all perform an annual assessment and certification is chief of staff. However, issues related to the preparation of cases for trial, Assistant accountable only to the judge. Therefore, the quality of the evaluation exercise assistant and performance of duty manager of the court somewhat illogical. As for human resources and financial support assistant judge attached to the court staff, the Chief of Staff may actually affect the financial and human resources assistant (it is the holidays, bonuses, assigning rank civil servant, etc.). Another problematic issue is resolving the fate of assistant judge who resigns or otherwise leaves the court. In fact, if you follow the principle of support service, the assistant may be released along with the judge, as referred to in para. 8 of the civil service staff support service members of the Cabinet of Ministers of Ukraine and Про затвердження Положення про помічника судді суду загальної юрисдикції: рішення Ради суддів України від 25 березня 2011 року [Електронний ресурс]. Режим доступу :

12 heads of local state administrations 28. However, the head of a court its decision not to release assistant judges in this case, and to offer him another position in court if there is a vacancy. Deputy judge functionally performs highly intellectual tasks related to analysis, research and study cases, legislation is constantly changing, tracking documents related to the proceedings. These positions are people with a certain level of education and years of good work acquired considerable experience and skills in legal matters. The provisions of assistant judge of the court of law limiting the right of civil servants as assistant judge for promotion, guaranteed hundred. 27 of the Law "On Public Service", and his term of office defined the term of a judge, the submission of which he was hired. Share the view I.M. Osyka, who believes that the post of assistant judge should have further legislative development with the expansion of its powers as proposed EU project "Transparency and efficiency of the judicial system of Ukraine: Civil Service Component". 29 According to the recommendations of this project, the institution of judicial assistants must obtain procedural consolidation arising from those features that actually performs the assistant referee. Experts project assistant judge should be procedural figure should be its place and role in the trial, set the volume of his procedural rights and obligations to facilitate the administration of justice, and relieve judges perform non-core functions. Thus, the institute judicial assistants as part litigation requires legal regulation. Considers it appropriate to deprive rights of judges chosen his assistants personally. Instead, the formation of the institute assistant judges in courts of law must deal with the head of a court. He must ensure selection of candidates for the post of assistant judges check their compliance with the requirements set by the laws on the judiciary and the civil service (citizenship, education, criminal record, etc.), the same procedure that applies to employees of a court - civil servants. Number judicial assistants must match the number of judges in courts of general yurydyktsiyi. Helpers judges should be combined into a separate department to court staff and subordinate to the head of a court in matters of civil service and the organization of the court. Deputy judge considering the opinion of a judge must be secured for him the whole time the powers of a judge and on the preparation of cases for examination accountable only to the judge. Also, it is advisable assistant judges legislate advantage over other candidates for judges because they, being in office, acquire relevant knowledge and skills, familiar with such work within, actually are trained as a judge. It is necessary to legislatively establish the mechanism by which the assistant judges could be presented as a conscientious worker and after a certain period of work on that as recommended for a judge under the simplified procedure. It really qualified and 28 Постанова Кабінету Міністрів України від 19 травня 1999 р. 851 «Про затвердження Порядку перебування на державній службі працівників патронатної служби членів Кабінету Міністрів України та голів місцевих державних адміністрацій» [Електронний ресурс]. Режим доступу : %D0%BF. 29 Осика І.М. Статус помічника судді місцевого загального суду у світлі положень нового Закону України «Про судоустрій і статус суддів» / І.М. Осика // Вісник Вищої ради юстиції С

13 experienced judicial assistants is objectively the best candidates for the post of judge. Institute assistant general court judges must be delegated the powers of judges, helpers should be procedural side, and therefore, should determine their position in the judicial process, to establish the extent of their procedural rights and obligations, which further deprive judges of their non-core functions. The implementation of these proposals, we believe, will remove conflicts concerning the legal status of assistant judge adds stability judiciary, will increase confidence in the courts. 13

14 14 CRIMINAL LAW AND CRIMINAL PROCESS Axtyrska Natalia. Consideration by court of a question of reduction of a sentence of court of the foreign state according to the legislation of Ukraine. Generalization and the analysis of jurisprudence of application of the legislation on reduction of a sentence of court of the foreign state according to the current legislation of Ukraine is made.the bases for cancellation of definitions of courts of the first instance, the reason of ambiguous interpretation of standards of the criminal procedural legislation are established, justification of differentiation of institute of consideration by court of a question of execution of a sentence of court of the foreign state and institute of its reduction in compliance is offered. Key words: sentence execution; the international cooperation, criminal proceedings. The procedure for the transfer of sentence citizens of one country convicted by the courts of other states, regulated by the UN Convention "On the transfer of persons sentenced to imprisonment, to serve their sentences in the country of which they are the" 30 Council of Europe Convention on the Transfer of Sentenced Persons 31, the European Convention on international Validity of criminal Judgments 32, etc. The law stipulated functions of the Ministry of Justice of Ukraine to review the request (petition) on the transfer of a citizen of Ukraine convicted by a court of a foreign country to serve his sentence. A special role in the matter of international cooperation belongs to the court which decides whether to bring the verdict of a foreign state in accordance with the legislation of Ukraine. The issue of international cooperation, in terms of recognition of judgments of foreign countries and bring them into conformity with the legislation of Ukraine, considered V.M. Filatov and Z. Bortnovska 33. However, changes in legislation have caused the need for generalization practice. Prior to the adoption of the Criminal Procedure Code of Ukraine in Separate order not vrehulovuvavsya review proceedings that category, resulting in significant differences in solving courts on issues such as determining jurisdiction, the trial court collectively or individually, determination of procedural rights and procedural convicted of proceedings. The difficulty of the court due to a number of 30 Конвенція ООН «Про передачу осіб, засуджених до позбавлення волі, для відбування покарання у державі, громадянами якої вони є»від р. [Електронний ресурс]. Режим доступу: www. zakon.rada.gov.ua laws/show/995_ Конвенція ООН «Про передачу осіб, засуджених до позбавлення волі, для відбування покарання у державі, громадянами якої вони є»від р. [Електронний ресурс]. Режим доступу: www. zakon.rada.gov.ua laws/show/995_ Європейська конвенція про міжнародну дійсність кримінальних вироків 28 мая 1970р. [Електронний ресурс]. Режим доступу: 33 Європейська конвенція про міжнародну дійсність кримінальних вироків 28 мая 1970р. [Електронний ресурс]. Режим доступу:

15 factors. First, the courts should be guided by the requirements of the treaty and international treaties of Ukraine, which creates certain problems must be considered as the date of entry into force of the agreement not only with respect to Ukraine, but the sentencing State. Second, the court must take into account the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms 34. Art. 5 of the Convention prohibited any deprivation of her liberty, with a few exceptions, notably when the lawful detention of a person after conviction by a competent court. From this position, it follows that in order to serve a person convicted foreign court, sentence in Ukraine should be a legal framework for the recognition of the foreign court judgment derzhavy.vodnochas said Convention allow denial of individual rights which it guaranteed, if such waiver is expressed in a clear way and not forced (judgment "against France Puatrimol» (Poitrimol v. France) on November 23, 1993, application 14032/88, p. 31) 35. The request of the Ministry of Justice of Ukraine on bringing the verdict of a foreign country to that of the Ukraine, according to ch. 3st. 609 of the Criminal Code of Ukraine, the trial court considers the last known place of residence of the person sentenced in Ukraine or the location of the Ministry of Justice of Ukraine within one month of its receipt. The trial is carried out with the participation of the public prosecutor (ch. 1, Art. 610). To request the Ministry of Justice of Ukraine shall submit to the court the following documents: 1) a copy of the judgment together with a document confirming entry into force; 2) The text of the articles of the criminal law of a foreign country in which the judgment is based, and 3) a document on the length of the sentence be served, including information on any pre-trial detention, impunity and any other circumstances of the execution and 4) a statement of the convicted person's consent to transfer it to serve their sentence in Ukraine, as in the case of an international treaty, ratified by the Verkhovna Rada of Ukraine, lawful representatives convicted, 5) information on the health and behavior convict. In considering the request of the Ministry of Justice of Ukraine court determines article (of items) of the Law of Ukraine on criminal liability, which provides for liability for criminal offenses committed by prisoners citizen of Ukraine, and the term of imprisonment, determined on the basis of the verdict foreign derzhavy.pry determining the sentence in imprisonment to be serving under the verdict of a foreign state, the court follows the intended duration of such punishment sentence in the following cases: 1) if the law of Ukraine on criminal liability for criminal offenses the maximum term of imprisonment less than appointed by a court verdict of a foreign state, the court determines the maximum term of confinement under the criminal law of Ukraine, 2) if the sentence, the sentence of the court appointed a foreign state, less than the minimum period prescribed by the relevant article of the Criminal Code of Ukraine on the appropriate criminal court follows the period specified foreign state court sentence. In accordance with the request of the Ministry of Justice of Ukraine, the court may also consider implementing additional punishment imposed by a court verdict of Там само. 35 Філатов В.М., Бортновська З.П. Цит. праця.

16 a foreign state. Unexecuted additional penalty imposed by a court verdict of a foreign state shall be enforceable if a punishment for the commission of a criminal offense provided by law Ukraine. It is done within and in the manner provided by law Ukraine. Pry considering the execution of the sentence, the court may simultaneously decide on the execution of the sentence of the court of the foreign country in a civil action and procedural costs in the case of the corresponding application. Analysis of judicial practice gives reason to believe that the whole law is clearly defined procedure for resolving these issues paved the way for its proper application by the courts and unambiguous. However, isolated cases indicate a violation of the law. Among the reasons why the courts of appeals and complaints satisfied canceled decisions of courts of first instance, called such. First, the most common exit trial courts beyond the issues that are resolved in court with a sentence of a foreign state in accordance with the legislation of Ukraine. Thus, according to ch Code of Ukraine during consideration of the application of the Ministry of Justice of Ukraine court determines articles (articles of) the Law of Ukraine on criminal liability, which provides for criminal liability for offenses committed by prisoners citizen of Ukraine, and the term of imprisonment, determined on the basis of the verdict of a foreign state. One of the appeals filed with the Court of Appeal by the Ministry of Justice of Ukraine on the decision of the trial court, which was denied a petition to bring the verdict of a foreign country to that of the Ukraine, it was stated that "the court wrongly failed to assess actions of the Ministry Justice related to the transfer of sentenced persons. " 36.It is obvious move beyond issues that should be considered by the court. Second, the trial courts insist on verifying consent to the transfer of sentenced persons. According to ch. 2, Art. 4 of the European Convention on the Transfer of Sentenced Persons if the convicted person has expressed the sentencing State in being transferred, such State shall inform the State of enforcement in yaknaykorotshi time since the decision will be sent to the Ministry of Justice ostatochnym. Zapyty state applicant for, Ministry of Justice of the State of the requested (ch. 2, Art. 5). Therefore, the request of a foreign state on transfer comes only consent to the transfer. As stated in Art. 7 of the Convention, the sentencing State shall ensure that the person who has to give consent to the transfer in accordance done so voluntarily and with full knowledge of the legal consequences of such an agreement. The procedure for such an agreement is governed by the law of passing vyroku.derzhava sentence gives the administering State the opportunity to test using consul or other official nominees agreed upon with the administering State, whether the agreement on transfer of sentenced persons given voluntarily. Thus, the test voluntarily consent to the transfer is not subject to judicial review when a sentence to that of the Ukraine, because this issue is resolved by the Ministry of Justice before going to court. In addition, the Additional Protocol to the European Convention on the Transfer of Sentenced Persons distinguishes two situations: 1) when the "national parties, subject to the penalty imposed in another Party as part of a final judgment, trying to avoid the execution or further execution of the sentence in the sentencing State by 36 Єдиний державний реєстр судових рішень [Електронний ресурс]. Режим доступу : 16

17 fleeing the territory of the former Party before serving the sentence, the sentencing State may request the other Party to and has assumed the execution of punishment "(Part 1 of Art. 2). In this case, according to ch "for the transfer of punishment consent of the sentenced person is required" because she voluntarily came into its territory; 2) when the judgment is an order of deportation or expulsion, or any other event that results in the fact that such person will no longer be allowed to remain in the sentencing State after she is released from v'yaznytsi. Derzhava execution of the sentence does not consent to the taking into account opinions osoby. Derzhava sentenced sentencing State shall provide the administering statement containing the opinion convicted of his proposed transfer. The above feature because sentenced osobamozhe be a citizen of several States, or be able to be deported after serving their sentence in another state than the state of his nationality. " 37 Thirdly, the courts refuse the request for a sentence in line, refer to the fact that the actual transfer of sentenced persons should be preceded by judicial proceedings, and in some cases, courts require mandatory participation in the trial of the person convicted by a court of a foreign state. These reasons can not be considered legitimate, since according to ch Code of Ukraine in case the request Ministry of Justice of Ukraine directs state court which passed the sentence about it along with a copy of the court after consideration of the petition. This confirms the priority trial, which precedes the actual transmission. Under Part. 1, Art. 610 CCP Ukraine trial conducted with the participation of the prosecutor, therefore, part of the sentenced person is not required. Finally, the Criminal Procedure Code of Ukraine does not allow denial of a sentence of a foreign state in accordance with the legislation of Ukraine on the basis of the request of the Ministry of Justice of Ukraine, submitted in accordance with Article. 609 Code of Ukraine, as this refusal violates the right person sentenced under the Convention on the Transfer of Sentenced Persons. The decision to bring the verdict of a foreign country to that of the Ukraine happens indication of "sending a copy of the decision to the Ministry of Justice of Ukraine to report to the Ministry of Justice of the Russian Federation and the adoption of the convict in Ukraine." The above formulation has administrative and administrative nature, which is incompatible with the procedural requirements that apply to such decisions. Without alternative legislator has determined that a copy of the court is directed to the Ministry of Justice of Ukraine and the central executive authority in the field of Corrections in Ukraine (p. 8 c. 610 CCP Ukraine). At the same time it is necessary to distinguish court proceedings on bringing the verdict of a foreign state in accordance with the legislation of Ukraine court proceedings on the execution of the sentence of the court of a foreign state, a procedure which is regulated by Art. 603 Code of Ukraine. In this case, the date of the court session notify the person against whom the judgment passed if it is in Ukraine. Such a person is entitled to have the assistance of counsel. The trial is carried out with the participation of the public prosecutor. Court determines how much punishment can be performed in Ukraine, following the provisions of the Там само.

18 Criminal Code of Ukraine, which provide criminal penalties for the offense for which the sentence passed, and decides a preventive measure to entry into the final. As perceived from the criminal proceedings, prosecutors challenged dismiss the request for execution of sentence on the grounds that the court did not establish the time when the person came to punishment, making it impossible to use p. 3 ch. 1, Art. 80 Criminal Code of Ukraine, as not clarified the issue of the statute of limitations. Cases of failure in execution of the sentence of the court of a foreign country for the following reasons can not be considered legitimate, since according to ch Code of Ukraine in case of need for additional verification court may decree to postpone consideration and more materialiv. Bez setting specified circumstances not fully reviewed the materials of the proceedings, the court may prematurely conclude lapse execution. Justify- its decision, the court in its decision should make reference to existing legislation and international instruments. However, as seen from the case law, the courts justify their position with reference to the textbook of criminal law as the rule of law that is unreasonable and unacceptable. Recognition and enforcement of a foreign state sentence in absentia in Ukraine without providing the person the right to a fair trial on the merits of the charges is a violation of Art. 6 European Convention on Human Rights. Said treaty provisions incorporated into the legislation of Ukraine. According to ch. 7, Art. 602 Code of Ukraine are not enforceable in Ukraine sentences of courts of foreign countries, adopted in absentia (inabsentia), ie without a person in criminal proceedings, unless the condemned person was handed a copy of the sentence and the opportunity to challenge it. It should be stressed that international cooperation in criminal proceedings is one of the activities that form the overall paradigm of international relations. The thoroughness of the implementation of commitments not only promotes a positive image of the state, but also provides adequate protection of the rights and freedoms of citizens of Ukraine convicted by the courts of foreign countries. Courts also be aware that ignoring the findings of foreign courts to sentence without objective justification, clearly enumerated in the Convention in 1983, leading to the collapse practice transfer of sentenced citizens of Ukraine with other countries to serve their sentences at home and thus harm the citizens of Ukraine. 18 Beznosyuk Andriy. Proof beyond a reasonable doubt and reliability as the standard of proving in criminal proceedings of Ukraine It is reviewed the features of the understanding of proof beyond a reasonable doubt and reliability in the context of the standards of proving in criminal proceedings of Ukraine. Based on the case-law of the courts of foreign countries of common law and of the European Court of Human Rights concluded that the search for the ideal and legally correct definition of the standard of proving beyond