Judicial Specialisation Through the Prism of the Principle of a “Natural Court”: A Comparative Analysis
Summary: 1. Introduction. – 2. The Legal Content of the Principle of a Natural Court. – 3. The Principle of a Natural Court and ‘Extraordinary’ Judicial Specialisation. – 4. The Anti-corruption Court in Ukraine: ‘Specialised’ or ‘Special’? – 5. Concluding Remarks.
Abstract
Background: In the current conditions of the intensive development of public relations and the complication of their legal regulation, more and more states are turning to the specialisation of the judiciary and judicial exercise. Thus, in Ukraine, it is established at the constitutional level that the judicial system in Ukraine is built on the principles of territoriality and specialisation, and higher specialised courts may operate in accordance with the law. In addition, the Constitution of Ukraine states that the establishment of extraordinary and special courts is not allowed. Art. 31 of the Law of Ukraine ‘On the Judiciary and the Status of Judges’ (2016) states that in the judicial system, there are higher specialised courts, such as courts of first instance for certain categories of cases. This category of court now includes the High Court of Intellectual Property and the High Anti-Corruption Court.
However, there has been a heated debate in Ukrainian political circles about the constitutionality of the anti-corruption court, and accordingly, the subject of the constitutional petition questioned the number of provisions of the Law on the High Anti-Corruption Court and appealed to the Constitutional Court to declare the law unconstitutional. The Constitutional Court of Ukraine has initiated constitutional proceedings on this issue. Acquaintance with the legal position of the subject of the constitutional petition indicates that the key issue of this constitutional proceeding concerns the presence of signs of a ‘special court’ (within the meaning of Part 6 of Art. 125 of the Constitution of Ukraine) in the mechanism of legislative regulation of the High Anti- Corruption Court.
Methods: To find an objective answer to the existing conflict, it was necessary to clarify the legal nature of judicial specialisation and identify key features of the ‘special court’. To solve this problem, the authors turned to the theoretical and applied provisions of the principle of a natural court, which became the basis of the subject of this work.
Results and Conclusions: In conclusion, this article argues for the idea of the unity and integrity of the judiciary. Common goals and tasks are assigned to the courts, regardless of their place in the judiciary and jurisdictional specialisation. Therefore, courts that are endowed with special goals and objectives, different from those of general courts, were assessed as special courts.
About Authors
Prylutskyi Serhii
Dr.Sc. (Law), Prof. at the Law School, Taras Shevchenko National University of Kyiv, Ukraine
priluckiys77@gmail.com
https://orcid.org/0000-0002-5275-7836
Corresponding author, responsible for responsible for methodology, the exploration of sources and their analysis and interpretation.
Competing interests: Any competing interests should be included here.
Disclaimer: The author should declare that his opinion and views expressed in this manuscript are free of any impact of any organizations.
Strieltsova Olha
Dr.Sc. (Law), Head of the Department of International and Comparative Law, Faculty of International Relations, National Aviation University, Ukraine
olha.streltsova@npp.nau.edu.ua
https://orcid. org/0000-0002-0907-2049
Co-author, responsible for responsible for conceptualization, the exploration of sources and their analysis and interpretation, writing, the content of the paper and data curation.
Competing interests: Any competing interests should be included here.
Disclaimer: The author should declare that her opinion and views expressed in this manuscript are free of any impact of any organizations.
Nurullaiev Ilkin
Dr.Sc. (Law), Prof. of Department of International Law and Comparative Law, Faculty of International Relations, National Aviation University, Ukraine
lkin.nurullaev@npp.nau.edu.ua
https://orcid.org/0000-0002-9658-9432
Co-author, responsible for editing the content of paper.
Competing interests: Any competing interests should be included here.
Disclaimer: The author should declare that his opinion and views expressed in this manuscript are free of any impact of any organizations.
Managing editor – Dr Olena Terekh. English Editor – Dr Sarah White.
Copyright: © 2022 S Prylutskyi, O Strieltsova, I Nurullaiev. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
References
Judicial systems of Europe. The efficiency and quality of the justice system. Study CEPEJ no 23/2016 г. (data 2014) p. 39.
Shevchenko O, History of the state and law of foreign countries (Ventura 1995) 65.
Constitution of France 1791 <http://www.hist.msu.ru/ER/Etext/cnst1791.htm> accessed 7 December 2021.
European Commission Report ‘For Democracy through Law’ (Venice Commission) on the independence of the judiciary (Venice, 12-13 March 2010 ) <https://newjustice.org.ua/wp- content/uploads/2018/05/EU_Standarts_book_web-1.pdf> accessed 10 December 2021.
European and international standards in the field of justice (Kyiv 2015) 103.
Basic Principles of Judicial Independence (1985) <https://zakon.rada.gov.ua/laws/ show/995_201#Text> accessed 10 December 2021.
International principles concerning the independence and accountability of judges, lawyers and prosecutors. Practical Guide 1 (International Commission of Jurists 2007) 8-9.
Arap Yalgin and Others v Turkey <https://hudoc.echr.coe.int/eng?i=001-59674> accessed 10 Dec 2021.
Ergín v Turkey (2006) <https://hudoc.echr.coe.int/eng?i=001-75327> accessed 10 December 2021.
McBride Jeremy, European Convention on Human Rights and criminal process (2nd ed KIC 2019) 230-231.
Opinion No 15 (2012) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the specialisation of judges.
Opinion No 8 (2006) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on ‘the role of judges in the protection of the rule of law and human rights in the context of terrorism’.
Opinion No 15 (2012) of the Consultative Council of European Judges to the attention of the Committee of Ministers of the Council of Europe on the specialisation of judges.
Stevenson Matthew K, Schutte Sophie A, ‘Specialized anti-corruption courts – Comparative cartography’ (2017) 5 U4 Issue Chr. Michelsen Institute 26.
Expert discussion of the best international practices of establishing specialised anti- corruption courts took place – <http://www.vru.gov.ua/news/2067> accessed 10 December 2021.
Sliusar Andrew, ‘Anti-corruption court in Ukraine: preconditions for formation and guarantees of efficiency’<https://ti-ukraine.org/news/2175/> accessed 10 December 2021.
‘International Anti-Corruption Court: Utopian Concept or Real Perspective?’ <https://www. radiosvoboda.org/a/28583748.html> accessed 10 December 2021.
Kuz Ivanna Yana, Stevenson Matthew K, ‘Supreme Anti-Corruption Court of Ukraine. Innovations for Impartial Justice’ (2020) 4 (5) BRIEF 2.
Constitutional submission (no 04-02 / 6-339 of 22 July 2020) on the compliance of the Constitution of Ukraine (constitutionality) with the Law of Ukraine ‘On the Supreme Anti-Corruption Court’ of 7 June 2018 no 2447-VIII <https://ccu.gov.ua/sites/default/ files/3_349_2020.pdf> 6 September 2021.
Tatsiy VYa (ed), Constitution of Ukraine. Scientific and practical commentary (2nd edn, reworked and add., Pravo 2011) 873.
Law of Ukraine‘On the Judiciary and the Status of Judges’, Scientific and practical commentary (Kyiv: Alerta 2019) 21-22.
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S Prylutskyi, O Strieltsova, I Nurullaiev ‘Judicial Specialisation Through the Prism of the Principle of a “Natural Court”: A Comparative Analysis’ 2022 1(13) Access to Justice in Eastern Europe 100-115. DOI: https://doi.org/10.33327/AJEE-18-5.1-n000103
