Of Ukrainian Law

NATIONAL ACADEMY OF LEGAL SCIENCES OF UKRAINE YEARBOOK OF UKRAINIAN LAW

Collection of scientific papers Founded in 2008

№ 9/2017 UDC 340(058)(477) ISSN 2077-4052

Recommended for publication by the Presidium of the National Academy of Legal Sciences of Ukraine (Resolution № 99/5 on 02.12.2016)

Yearbook of Ukrainian law : Coll. of scientific papers / responsible for the issue O. V. Petryshyn. – Khаrkiv : Law, 2017. – № 9. – 330 p.

In the scientific journal «Yearbook of Ukrainian law» the best articles published by scientists of the National Academy of Legal Sciences of Ukraine, other educational and research institutions in the field of law, theory and history of state and law, state-legal sciences and international law, civil-legal sciences, environmental, economic and agricultural law and criminal-legal sciences in 2016, have been gathered.

Founder – National Academy of Legal Sciences of Ukraine Publisher – National Academy of Legal Sciences of Ukraine

Editorial board:

V. Ya. Tatsii (Editor in Chief), Yu. S. Shemshuchenko, O. V. Pet- ryshyn, Yu. V. Baulin, Yu. P. Bytiak, V. I. Borysov, A. P. Het- man, V. D. Honcharenko, V. А. Zhuravel, O. D. Krupchan, V. V. Komarov, N. S. Kuznietsova, V. M. Lytvyn, V. K. Mamu- tov, V. T. Nor, O. P. Orliuk, V. G. Pylypchuk, P. M. Rabinovych, S. G. Seriogina, O. V. Skrypniuk, O. D. Sviatotskyi, V. P. Tykhyi

Responsible for the issue O. V. Petryshyn

Registered by the Ministry of Ukraine for Press and Information (Certificate of State registration of the print media. KV Series number 15596-4068 R from July 9, 2009)

Address of the Editorial Board: 61024, Kharkiv, Pushkinska st., 70, National Academy of Legal Sciences of Ukraine, tel. 707-79-89.

Збірник наукових праць Заснований 2008 року

№ 9/2017 УДК 340(058)(477) ISSN 2077-4052

Рекомендовано до друку президією Національної академії правових наук України (постанова № 99/5 від 02.12.2016 р.)

Щ92 Щорічник українського права : зб. наук. пр. / відп. за вип. О. В. Петри шин. – Харків : Право, 2017. – № 9. – 330 с.

У науковому виданні «Щорічник українського права» зібрані найкращі статті, які були опубліковані у 2016 р. науковцями Національної академії правових наук України, інших навчальних і наукових закладів у галузі правознавства, з проблем теорії та історії держави і права, державно-правових наук і міжнародного права, цивільно-правових наук, екологічного, господарського та аграрного права і кримінально-правових наук.

Засновник — Національна академія правових наук України Видавець — Національна академія правових наук України

Редакційна колегія:

В. Я. Тацій (головний редактор), Ю. С. Шемшученко, О. В. Петришин, Ю. В. Баулін, Ю. П. Битяк, В. І. Борисов, А. П. Гетьман, В. Д. Гончаренко, В. А. Журавель, О. Д. Крупчан, В. В. Комаров, Н. С. Кузнєцова, В. М. Литвин, В. К. Мамутов, В. Т. Нор, О. П. Орлюк, В. Г. Пилипчук, П. М. Рабінович, С. Г. Серьогіна, О. В. Скрипнюк, О. Д. Святоцький, В. П. Тихий

Відповідальний за випуск О. В. Петришин

Зареєстрований Міністерством України у справах преси та інформації (Cвідоцтво про Державну реєстрацію друкованого засобу масової інформації. Серія КВ № 15596-4068 Р від 09.07.2009 р.)

Адреса редакційної колегії: 61024, Харків, вул. Пушкінська, 70, Національна академія правових наук України, тел. 707-79-89.

Introduction...... 11

THEORY AND HISTORY OF STATE AND LAW Goncharenko V. Regulations legislature Ukraine during the Soviet era...... 12 Petryshyn O. Court practice as a source of law in Ukraine: problems of theory...... 22 Ermolaev V. State conception of Ukrainian Hetmans (the middle of the xvii–xviii centuries): substantial aspects...... 30 Rumіantsev V. Serhii Ivanovych Zarudnyi and Judicial Reform 1864...... 44 Streltsov Ie. The main objective of legislation: to govern relations or to regulate governance of relations? Some reflections...... 52 Lukianov D. Religious freedom and freedom of expression: european and Іslamic approaches...... 60 Smorodynskyi V. European legal values and their perception by the legal system of ukraine...... 69 Skuratovych I. A. I. Yakovliv – noted scholar of the Pereyaslav Treaty...... 78

STATE-LEGAL SCIENCES AND INTERNATIONAL LAW Pylypchuk V., Tsymbalyuk V. Historical and legal issues of formation and development of the information sphere and information law in Ukraine (end of ХХ – beginning of ХХІ century)...... 84 Nastiuk V. The democratic control over the safety sector during the fight against terrorism...... 98 Dmytryk o. Procuring the stability of the financial law: problems and prospects...... 103 Kolpakov v. Legal nature of the administrative tort law of ukraine...... 111 Luchenko d. An appeal mechanism in administrative-legal relations: an aspect from the perspective of the Strasbourg Court precedents...... 119

№ 9/2017 5 Pysarenko N. Impact of the resolution of the European court of human rights on formation of the position regarding the application of the separate provisions of the legislation on administrative offences...... 126

CIVIL-LEGAL SCIENCES Kuznetsova N. Invalid transactions and their legal consequences according to the legislation of Ukraine...... 132 Maydanyk R. Relations of property foundations of engaging in commercial activity in Ukrainian law...... 144 Kohanovska O. Value of precedents in the sphere of the right of intellectual property in the USA and practicians of court in Ukraine: certain aspects...... 166 Spasybo-Fatyeyeva I. Regarding the legal entities of public and private law...... 176 Kharytonov Ye., Kharytonova O. Adaptation of law of Ukraine to the EU law in the context of European traditions of private law...... 186 Yarotsk iy V. Realities and prospects of title insurance implementation in the domestic insurance services market...... 196 Kot О. Derivative suit as an instrument to protect corporate rights...... 205

ENVIRONMENTAL, ECONOMIC AND AGRICULTURAL LAW Getman A., Zuiev V. Formation of ecological and legal science: resource aspect and its integration problems...... 211 Andreitsev V. Current challenges of adapting environmental legislation of Ukraine to laws of the EU...... 227 Nosik V. Problems of exercise of the constitutional right to a safe and healthy environment in Ukraine...... 247 Stativka A. Legal framework of state support of agriculture as a means of ensuring food security...... 256 Shulha M., Ihnatenko I. The legal basis of expanding the power of local councils in the sphere of land relations...... 263

6 Yearbook of ukrainian law CRIMINAL-LEGAL SCIENCES Bor ysov V. Concept and types of crimes against occupational safety...... 270 Shepitko V., Shchur B. Neutralization of counteraction to investigation of crimes (judicial proceedings in criminal cases)...... 279 Zhuravel V. Definition and scientific principles of criminalistic diagnostics and criminalistic forecasting...... 291 Gorodovenko V. Separate matters concerning organization of the Judicial System of Ukraine according to principles of territoriality and specialization in the context of the modern constitutional reform...... 300 Loboyko L. The principle of the scientific validity in the formation of the modern criminal procedure of Ukraine...... 311 Shilo O. The problems of the adaptation of the criminal procedural legislation to the European Union law...... 319

№ 9/2017 7 ЗМІСТ

Вступ...... 11

ТЕОРІЯ ТА ІСТОРІЯ ДЕРЖАВИ І ПРАВА Гончаренко В. Регламенти законодавчих органів України за радянських часів...... 12 Петришин О. Судова практика як джерело права: питання теорії...... 22 Єрмолаєв В. Державницька думка гетьманів України (середина ХVII–XVIII ст.)...... 30 Рум’янцев В. Сергій Іванович Зарудний і судова реформа 1864 року...... 44 Стрєльцов Є. Основне завдання законодавства – регулювання чи регламентування регулювання суспiльних вiдносин? Деякi міркування...... 52 Лук’янов Д. Релігійні свободи і свобода слова: європейський та ісламський підходи...... 60 Смородинський В. Європейські правові цінності та їх сприйняття правовою системою України...... 69 Скуратович І. А. Яковлів – визначний дослідник Переяславського договору...... 78

ДЕРЖАВНО-ПРАВОВІ НАУКИ І МІЖНАРОДНЕ ПРАВО Пилипчук В., Цимбалюк В. Історико-правові проблеми становлення і розвитку інформаційної сфери та інформаційного права в Україні...... 84 Настюк В. Демократичний контроль над сектором безпеки в період боротьби з тероризмом...... 98 Дмитрик О. Забезпечення стабільності фінансового права: проблеми та перспективи...... 103 Колпаков В. Правова природа делікту в адміністративному праві України...... 111 Лученко Д. Механізм оскарження в адміністративно-правових відносинах: погляд крізь призму прецедентів Страсбурзького суду...... 119

8 Yearbook of ukrainian law Писаренко Н. Вплив рішень Європейського суду з прав людини на формування позицій з приводу застосування окремих положень законодавства про адміністративні правопорушення...... 126

ЦИВІЛЬНО-ПРАВОВІ НАУКИ Кузнєцова Н. Недійсність правочинів та її правові наслідки за цивільним законодавством України...... 132 Майданик Р. Відносини майнової основи господарювання в праві України...... 144 Кохановська О. Значення прецедентів у сфері права інтелектуальної власності в США і практика суду в Україні: окремі аспекти...... 166 Спасибо-Фатєєва І. Про юридичні особи публічного та приватного права...... 176 Харитонов Є., Харитонова О. Адаптація законодавства України до законодавства ЄС в контексті європейських традицій приватного права...... 186 Яроцький В. Реалії та перспективи здійснення страхування правового титулу на вітчизняному ринку страхових послуг...... 196 Кот О. Похідний позов як засіб захисту корпоративних прав...... 205

ЕКОЛОГІЧНЕ, ГОСПОДАРСЬКЕ ТА АГРАРНЕ ПРАВО Гетьман А., Зуєв В. Формування еколого-правової науки: ресурсний аспект та проблеми його інтеграції...... 211 Андрейцев В. Сучасні проблеми адаптації екологічного законодавства України до законодавства єс...... 227 Носік В. Проблеми здійснення конституційного права на безпечне для життя і здоров’я довкілля в Україні...... 247 Статівка А. Правове регулювання державної підтримки вітчизняних сільськогосподарських виробників як засобу забезпечення продовольчої безпеки...... 256

№ 9/2017 9 Шульга М., Ігнатенко І. Правові аспекти розширення повноважень місцевих рад у галузі земельних відносин...... 263

КРИМІНАЛЬНО-ПРАВОВІ НАУКИ Борисов В. Поняття та види злочинів проти безпеки виробництва...... 270 Шепітько В., Щур Б. Нейтралізація протидії розслідування злочинів (судовий розгляд кримінальних справ)...... 279 Журавель В. Поняття та наукові основи криміналістичної діагностики та криміналістичного прогнозування...... 291 Городовенко А. Окремі питання організації системи судів України за принципами територіальності та спеціалізації в контексті сучасної конституційної реформи в Україні...... 300 Лобойко Л. Принцип наукової обґрунтованості побудови сучасного кримінального процесу України...... 311 Шило О. Проблеми адаптації кримінального процесуального законодавства України до права Європейського Союзу...... 319

10 Yearbook of ukrainian law INTRODUCTION

Nowadays more than a hundred spe- ment of Ukraine as a democratic, social, cialized legal journals and collections law-governed state, the most interesting are annually issued in Ukraine, in which and current ideas, fundamental and pri- thousands of scientific articles from ority issues of jurisprudence are accu- various branches of legal science are mulated. published. Selection of articles is carried out by In 2008 by the decision of the Pre- the branches of the Academy (theory and sidium of the Academy the nationwide history of state and law, state-legal sci- scientific periodical – Yearbook of ences and international law, civil-legal Ukrainian law was founded, in which sciences, environmental, economic and the most important legal articles of aca- agricultural law, criminal-legal scien demicians and corresponding Members ces), which combine leading scientists of the National Academy of Legal Sci- and legal scholars from all over Ukraine. ences of Ukraine and also research as- This is the seventh number of Year- sociates, who work in research institu- book that from now on will be published tions of the National Academy of Legal in English. The main purpose of these Sciences of Ukraine and other leading changes – enable scientists from other research and higher education institu- countries to get acquainted with the tions of Kiev, Kharkiv, Donetsk, Lviv, problems relevant to Ukrainian legal sci- Odessa are published. ence both the general theoretical, so in Yearbook aims to become a kind of different branches of law, modern Ukrai- guide in the field of various scientific nian legislation and practice, to provide information that has already been print- opportunities for international scientific ed in domestic and foreign journals dur- cooperation. ing the previous year. «Yearbook of This periodical will be of interest to Ukrainian law» is a unique legal peri- a wider audience: academic and teaching odical dedicated to the widest range of staff, graduate students, adjutants, stu- legal science’s problems that should be dents of higher educational institutions concentrated source of modern scien- and to all those who are interested in the tific and legal thought on current issues main lines of development of the Ukrai- in the theory and history of state and law, nian legal science. constitutional, criminal, civil, economic, international and other branches of law, that has no analogues in Ukraine. On the Honourable President of the National pages of this journal modern legal con- Academy of Legal Sciences of Ukraine cepts and theories of further develop- V. Ya. Tatsii

№ 9/2017 11 THEORY AND HISTORY OF STATE AND LAW

V. Goncharenko, Doctor of Law, Professor, Head of the Department of History of State and Law of Ukraine and foreign countries Yaroslav Mudryi National Law University

UDC 340.15:94(477)«1921/1991» REGULATIONS LEGISLATURE UKRAINE DURING THE SOVIET ERA

In the history of Ukrainian statehood powers both in management and law. At has significant experience in the organi- the same time, the Constitution provided zation and activities of legislative bodies for the functioning of the country’s par- at different times, especially in the sec- liament (Reichsrat) – a representative ond half of XIX–XX centuries. Thus, the legislature Austria. According to the organization and operation of the central Constitution in 1867, the Austrian Reich- representative of relatively advanced srat was a bicameral legislature and con- forms began to be implemented in the sists of two chambers – the House of second half of the nineteenth century. in lords and Chamber of Deputies. The Western lands, which were part of the Chamber of Deputies is the lower house Austro-Hungarian Empire, which was of the Austrian parliament and the House formed in 1867. At the same time Gali- of lords – the upper house of parliament. cia and Bukovina belonged to Austria, The structure of the Austrian Parliament and Transcarpathian Ukraine – Hungary. elected representatives from Galicia and That is, most of the Western lands were Bukovina, while in which the experience ruled by Austria. gained parliamentary activities, including According to the Constitution of Aus- parliamentary procedure and mastered. tria in 1867 (with some modifications In the scientific literature devoted to the lasted until 1918) the country was head- research organization and operation of ed by the emperor, who had extensive parliaments in different periods of their

12 Yearbook of ukrainian law Regulations legislature Ukraine Goncharenko V. during the Soviet era existence and in different countries, steel of the State and legal views were the is the idea that one of the most important imposed monarchical constitution2. features of Parliament is well developed Widely representative body, which parliamentary procedure enshrined in the was the State Duma of the Russian state regulations. Regulation, or as it is often could not work productively without called, the code of parliamentary proce- having a very clear set of rules necessary dure rules, which are fixed to detail all for the proper functioning of the Duma. procedural rules is the key to productive It is no coincidence «Establishment of Parliament. Had their regulations and the State Duma» section contained seven House of the Austrian Parliament. Thus, «On internal rules in the Duma», which the inner workings of the Chamber of includes articles 62 and 63. Article 62 Deputies regulated by the Decree (the stated: «Details of the internal regula- name had regulations Chamber) of 2 tions of the State Duma, office items and March 1875, and the House of lords – procedures referred to in Article 12 Decree of 25 January 1875 These decrees Meeting and duties of the Office of the were unchanged until the early twentieth Duma, it consented and subordinate en- century. Enough to thoroughly analyze tities determined by the order issued by the contents of the Decree of the Cham- the Duma in the development of the ber of Deputies of the Austrian Reichsrat rules of the institution. This Decree is made his time in his article A. Nolde1. published to the public through the Sen- The author focused on the most signifi- ate». In 1906 and State Duma passed the cant issues of internal order of the institu- first three chapters of the Decree. II State tion. Duma adopted sections Decree 1906 The development of capitalism in the temporary management and entrusted second half of XIX – early XX century, his Decree Commission to review these which included much of the Ukraine, led sections and to process these. That was to some changes in its polity. This pro- done. II State Duma adopted the fourth cess actively took place during the revo- chapter of the Decree and four units of lution of 1905–1907. It is because of the the fifth chapter of the Decree. revolution in Russia was a central repre- Analysis of their contents gives rea- sentative body – State Legislative Coun- son to believe that the document as a cil. The competence and general issues whole meets the requirements of parlia- of organization and activities of the State mentary procedure, which provided the Duma defined above such legal act as opportunity to the functioning of the «Establishment of the State Duma», and State Duma as a legislative body of the a number of articles of the Basic State state. Laws Empire as amended on April 23, Work on preparing the Decree was 1906 justified is the view that the laws held in the third Duma (1907–1912). So

1 Нольде А. Порядок австрийского парла- 2 Смыкалин А. С. Этапы конституционно- мента // Журнал Министерства юстиции. – го строительства в дореволюционной России 1906. – № 3. – С. 233. // Государство и право. – 2004. – № 3. – С. 80.

№ 9/2017 13 Theory and history of state and law in 1908 the Third State Duma adopted is the idea of combating the debate as a some provisions of the new Decree, and «great evil of Duma’s life» because, ac- in June 1909 approved it completely and cording to Commission Decree, created took leadership1. This version of the De- obstruction and verbosity5. L. Nemanov cree was applied during the third State criticized and some other provisions of Duma and the beginning of the fourth the draft Decree of the Fourth State State Duma, and a total of five years Duma, for example, noting that «design (1909–1914). As noted I. Yashunskyy, gives the presidium of the Duma huge III State Duma had «finally produced rights without installing at the same time 6 entirely Decree»2. In his view, «the techno means to deal with its arbitrariness» . nical part of the Decree adopted by the Decreeof the Fourth State Duma had Third State Duma, in some imperfec- approved it in March 1914 and accepted tions, was skillful and successful con- for guidance on April 15, 1914. struction of all previous Duma practice»3. However, with the establishment of The theme of the Decree was in sight the State Duma of Nicholas II made the reorganization of the State Council, and the fourth State Duma (1912–1917). making it a member of the legislative Thus, in 1913, before the dissolution of process. This reform was promulgated a the State Duma on summer vacation, number of legislative acts, namely: the deputies were sent voluminous report of manifesto «On the change of the Office the special committee of the Decree. As of the State Council and the view of the pointed out by the witness of those events Office of the State Council,» the decree L. Nemanov, «available to the Commis- «On reorganization of the Office of the sion was sufficient material to make a State Council» and the new edition of good Decree. Besides regulations West- «The institutions of the State Council,» ern parliaments, the Commission, as the issued February 20, 1906, basic state report used the draft Decree of 1st and laws in the Russian Empire as amended 2nd State Dumas, Decree of 3 th State on April 23, 1906. The above acts have Duma»4. In his article, the author also transformed the state Council in the sec- pointed out that the common thread ond, upper, house of parliament7. The through the contents of the draft Decree rules of procedure contain State Council Order of the State Council, published 1 Демин В. А. Государственная дума Рос- May 12, 19078. сии: механизм функционирования. – М.: Thus, during the stay of Ukrainian РОССПЭН, 1996. – С 87. lands in the second half of XIX – early 2 Яшунский И. Наказ в третьей Государ- ственной думе // Право. – 1909. – № 39. – Стлб. 2065–2070. 5 Ibid (p. 2001–2002) 3 Яшунский И. Наказ в третьей Государ- 6 Ibid (p. 2012) ственной думе // Право. – 1909. – № 40. – 7 Российское законодательство Х–ХХ ве- Стлб. 2122–2126. ков. – М.: Юрид. лит., 1994. – Т. 9. – С. 19. 4 Неманов Л. Проект Наказа четвертой 8 Собрание законов и распоряжений пра- Гос. думы // Право. – 1913. – № 35. – вительства. Отдел первый. – 1907. – № 86. – Стлб. 2001–2002. Ст. 802.

14 Yearbook of ukrainian law Regulations legislature Ukraine Goncharenko V. during the Soviet era

XX century part of the Austro-Hungari- Soviets adopted the following rules: an and Russian empires representatives «Government Report – 2 hours. Speak- from these lands, working in the impe- ers – 1 hour. Co-speaker – 20 minutes. rial parliament, gained experience of The final word speaker – 20 minutes, parliamentary procedures in the func- co-rapporteur – 10 minutes. Speakers in tioning of the legislature. order of discussion papers – have for the Significant experience of legal pro- first time 10 minutes, the second time for cedural rules to ensure the functioning 5 minutes. The word for proposals «for» of the higher representative bodies was and «against» for 5 minutes. A word to accumulated during the Soviet era, when the right – with the minutes. The word there were several models of these bod- of personal questions at the end of the ies. meeting – 3 minutes. Offers are made Thus, in the 1917–1937 representa- only notes. Word beg note. The congress tive bodies of the central government is open from 9 to 2 pm and from 5 pm to were All-Ukrainian Congress of Work- 8 pm»2. Differed little other regulations ers, Peasants and Red Army Deputies, nationwide congresses of the above reg- the All-Ukrainian Central Executive ulation IX Ukrainian Congress of Sovi- Committee of Soviets (VUTSVK), the ets. A small difference was only in the Bureau VUTSVK. amount of time that stood out for speak- Among these the highest power had ers. As you can see, the rules nationwide Ukrainian Congress of Soviets. During congresses contained only minimum the entire period of this constitutional procedural rules governing the proce- body was fourteen Ukrainian Congress dure for meeting the highest authority of of Soviets. The work of each of them the USSR. Unfortunately, the rules con- need appropriate regulation. How said gresses SSR was not arch procedural his time M. Golodnyi, «the functioning rules that would regulate in detail the nationwide congresses are not governed functioning of the National Congress by a specific regulation of the constant councils. Regulations conventions did action. There was not properly fixed pro- not contain answers to a number of procedure for consideration and decision- cedural issues. for example, had to act as making conventions. Certain procedural if the Regulations term in the courtroom rules contained in the regulations that All-Ukrainian Congress of Soviets adopted every Congress and acted only lacked a certain number of delegates had for the Congress. Most of them had no to act and how these missing delegates. documentary form, and there in the form The regulations contained no indication of traditions and customs1». For exam- of who could be the initiator of solving ple, at the IX National Congress of the such important issues as cloture (comp

1 Голодний М. О. Всеукраїнські з’їзд Рад, 2 ІХ Всеукраїнський з’їзд Рад робітничих, їх компетенція та порядок діяльності // Проб селянських та червоноармійських депутатів. леми правознавства. – К., 1971. – Вип. 20. – Стенографічний звіт. – Х.: ВУЦВК, 1925. – С. 49. С. 5.

№ 9/2017 15 Theory and history of state and law lete or incomplete). No regulations gov- the lack of a thorough regulation of the ern in detail the process of debate. They functioning of public authority expressed contain detailed rules on the procedure expert on parliamentary procedure and how to vote in decision making A. Savrasov, who said: «We know that (easy open, roll-call, secret). As regula- where the law declared bogus, where tions were absent rules concerning re- decision-making is carried out by illegal quests and delegates of the members of methods, where decisions are taken the Government of Ukraine, heads of unanimously (or alone) without suffi- other central state bodies of the republic. cient discussion, there is no need to cre- Regulations governing the powers are ate a detailed and well thought-out par- not replicas. M. Golodnyi drawn atten- liamentary procedure»4. This statement tion to this part of the regulations nation- is well suited to national congresses, wide congresses as proposals delegates. including the All-Ukrainian Congress of Thus, the researcher points out that all Soviets. Each of them worked only with- the proposals were amended in writing. in a few days. Draft decisions they took, «However, – said M. Golodnyi – not after preparing the Bureau VUTSVK, required that they be made thoroughly in and at the congress previously sanc- draft form»1. This approach M. Golodny tioned by the Communist faction, which iconsiders it proper, «given the composi- included most of the delegates were sub- tion of the meetings, the lack of bulk ject to party discipline and voted unani- delegates – workers, peasants and Red – mously at a meeting of the faction for the Opportunities perfectly execute their decision, which then were passed at the proposals»2. Supreme position of Ukrai- plenary sessions of the ride. Therefore, nian Congress of Soviets in state bodies delegate nothing to do but to vote unan- of the Republic, logically, required con- imously in an open ballot for the deci- stant, carefully detailed regulations. But sion of the Congress. such regulations for the All-Ukrainian Second after All-Ukrainian Congress Congress of Soviets was not white is of Soviets was the central representative accepted. In this respect you can give body of Ukrainian SSR was the Central some explanation. Thus, according to Executive Committee (VUTSVK). The A. Tadevosyan, no permanent regula- main form of VUTSVK were sessions tions Republican Congress of Soviets that were convened by the Presidium «because obviously short period of his VUTSVK. High status VUTSVK, the work»3. Specious arguments concerning assembly form its operation required

1 Голодний М. О. Всеукраїнські з’їзд Рад, права АН АрмССР. – 1974. – Книга первая. – їх компетенція та порядок діяльності // Про- С. 191. блеми правознавства. – К., 1971. – Вип. 20. – 4 Саврасов А. Ф. Наказ Государственной С. 50. думы (1906–1917 гг.): история создания и 2 Ibid (p. 50). применения: автореф. дис.… канд. истор. 3 История государства и права Советской наук. – Воронеж, Изд. Воронеж. ун-та, 2010. – Армении. – Ереван: Институт философии и С. 1.

16 Yearbook of ukrainian law Regulations legislature Ukraine Goncharenko V. during the Soviet era careful regulation of VUTSVK. So many VUTSVK 12 October 1924 «of the questions, so to speak, a procedural na- Ukraine Central Executive Committee ture governed by a number of regula- of Soviets of Workers, Peasants and tions. Red Army Deputies (VUTSVK)». Pro- One of the first regulations designed visions had 47 articles3. Provisions con- to resolve some issues of work VUTSVK tained a number of procedural rules was the Ukrainian CEC resolution of 26 designed to ensure VUTSVK work. May 1920 «On All-Ukrainian Central Thus, the fundamental question for any Executive Committee». This normative collective body – a decision-making act was determined by the frequency of procedure. This question touches and convening ordinary and extraordinary the Regulation on VUTSVK. Thus, ac- sessions VUTSVK. It established that cording to Art. 13 all the issues dis- the regular session of the Bureau cussed at the sessions VUTSVK, re- VUTSVK VUTSVK convened every solved by open vote and a simple ma- two months, and extraordinary session jority of members VUTSVK. For the convened on the initiative of the Pre- same session of the quorum needed sidium VUTSVK on a proposal RNA VUTSVK presence of at least one third SSR or at the request of one third of the of members VUTSVK. Equally impor- members VUTSVK1. Another piece of tant rule contained cent. 14 Regulation legislation containing rules of proce- on VUTSVK. It was noted that the in- dural nature, was made the second ses- ternal order of the session VUTSVK «is sion of the fifth convocation VUTSVK set in the Rules, produced by the Pre- May 8, 1921 «Regulations on Ukrainian sidium of the All-Ukrainian Central Central Executive Committee»2. This Executive Committee and approved by resolution has the following parts: the session». In the Central State Ar- 1) The rights and duties of VUTSVK; chives of higher authorities of Ukraine 2) VUTSVK plenum session; 3) Regula- (Ukraine TSDAVO) remains «Order on tion VUTSVK plenum meetings. Reso- order of the sessions of the All-Ukrai- lution had many procedural innovations nian Central Executive Committee», that ensure productive work sessions which consists of 78 articles that thor- VUTSVK in general and members oughly regulated without exception the VUTSVK including. functioning VUTSVK sessions4. The A peculiar culmination in the case Regulation first carefully defined legal of legislative regulation of routine pro- status VUTSVK Chairman and Secre- cedures VUTSVK the adoption of the tary VUTSVK from activity which is third session of the eighth convocation largely dependent on the proper functioning of the public authority SSR. 1 СУ УССР. – 1920. – № 11. – Ст. 210. 2 Отчет второй сессии Всеукраинского 3 ЗУ УСРР. – 1924. – № 45. – Ст. 276. Центрального Исполнительного Комитета 4 Центральний державний архів вищих 5-го созыва (5–8 мая 1921 г.). – Х.: ВУЦИК, органів влади України (ЦДАВО України). – 1921. – С. 78–79. Ф. 1. – Оп. 3. – Спр. 56. – Арк. 57–65.

№ 9/2017 17 Theory and history of state and law

In VUTSVK Regulations of 1924 All-Ukrainian Central Executive Com- also contained some provisions that gov- mittee of protests and complaints sub- ern the functioning of the Presidium mitted to it2. VUTSVK. But the more closely the pro- With the adoption in 1937 of the new cedural rules of the Presidium VUTSVK Constitution of the USSR and the elec- first defined the «Mandate of the order tion of 30 June 1938 the Supreme So- of the Presidium of the All-Ukrainian viet legally and practically ceased activ- Central Executive Committee» approved ity congresses of Soviets of USSR Cen- by the VUTSVK on July 30, 19251 Feb- tral Executive Committee of the USSR, ruary 6, 1929 Resolution VUTSVK ap- the Presidium of the CEC of USSR. Ac- proved a new «Decree of the order of the cording to this constitution highest state Presidium of the All-Ukrainian Central authorities declared the Verkhovna Rada Executive the Committee». These «De- of the Ukrainian SSR (Art. 20)3. Under crees» were essentially expanded regula- Article 23 of the Constitution, the Su- tions of the Presidium VUTSVK. For preme Soviet of the USSR was declared example, the «Decree» in 1929 consist- the only legislative body of the USSR. ed of 70 items which are included in the It would be logical to develop and adopt following sections: 1. The composition such a body as the Supreme Soviet of the of the Presidium of the All-Ukrainian USSR as executive, legislative, senior Central Executive Committee. 2. The government issued regulations carefully. agencies, institutions and individuals Especially because in Ukraine and in have the right to submit the case to the foreign countries had accumulated vast Presidium of the All-Ukrainian Central experience in developing and adopting Executive Committee. 3. The procedure appropriate regulations. But the current for bringing a case to the Presidium of practice of the Supreme Soviet went in the All-Ukrainian Central Executive a different way. For many years, the Committee and preparation of the agen- regulations adopted first session of the da of meetings of the Presidium of the Verkhovna Rada of the corresponding All-Ukrainian Central Executive Com- convocation and had a very summary. mittee. 4. The procedure of convening For example, March 4, 1947 deputies and conducting meetings of the Presidi- unanimously voted regulations sessions um of the All-Ukrainian Central Execu- of the Supreme Soviet of the second con- tive Committee. 5. The minutes of meet- vocation. Here is the text of the regula- ings of the Presidium of the All-Ukrai- tions, «Parliament’s session held from nian Central Executive Committee. 11 am to 3 pm and from 6 pm to 10 pm. 6. The execution of resolutions of the Speakers on the agenda of the session of Presidium of the All-Ukrainian Central the Verkhovna Rada approved the Chair- Executive Committee. 7. The procedure for consideration of the Presidium of the 2 ЗУ УСРР. – 1929. – № 8. – С. 347–364. 3 Історія конституційного законодавства України: Зб. док. / упоряд. В. Д. Гончарен- 1 ЗУ УСРР. – 1925. – № 60–61. – Ст. 349. ко. – Х.: Право, 2007. – С. 105.

18 Yearbook of ukrainian law Regulations legislature Ukraine Goncharenko V. during the Soviet era man of the Verkhovna Rada. Each group you can see, the rules adopted without of deputies, which has not less than 50 discussion and open vote by raising dep- people can put their co-rapporteur. uties’ hands. From the above regulations Speakersof available for report 1:00 for had practically no difference in content the final word – 30 minutes; co-rappor- regulations of the Verkhovna Rada of the teur for supporting reports – 30 minutes Ukrainian SSR these third – eighth con- for the final word – for 15 minutes. vocation2. Thus, the rules of meetings speakers provided to first time – 20 min- sessions Parliament Soviet USSR in- utes, in the second – 5 minutes. Person- cluded the minimum number of rules al statements and actual reference shall and left unanswered many questions re- be made in writing and announced by the garding the organization of the highest Chairman of the Verkhovna Rada of im- representative legislative body of the mediate or late meetings regardless of country. This situation was not acciden- their content. Early questions submitted tal because the operation did not involve in writing and announced by the Chair- the Supreme Soviet of the parliamentary man of the Verkhovna Rada imme regime and, in this regard, and the need diately. For words to the agenda given to regulate in detail the activities of the 5 minutes in explanation of vote – Supreme Soviet. As evidenced, for ex- 3 minutes»1. Here is a transcript of the ample, content analysis of verbatim re- session of the Supreme Soviet recorded cord of the Verkhovna Rada of the the procedure a Regulation of the Su- USSR, which reflect the activities of the preme Soviets: «Head. Does any of MPs some other draft regulations? From 2 See: Заседания Верховного Совета Укра- seats. None. инской ССР (Первая сессия). 17–20 апреля 1951 г. Стенографический отчет. – К.: Изд-во Head. Do the deputies who take the полит. лит-ры Украины, 1951. – С. 10–11; За- floor on the draft regulations introduced? сідання Верховної Ради Української РСР From seats. None. четвертого скликання. Перша сесія (29– Head. Let me set the order of voting 31 березня 1955 р.). Стенографічний звіт. – К.: Вид-во пол. літ-ри України, 1955. – С. 8; За- regulations. There is a proposal to vote седанияВерховного Совета Украинской ССР rules in general. Are there any other sug- (Пятого созыва) (Первая сессия, (15–17 апре- gestions? ля 1959 г.). Стенографический отчет. – К.: From seats. None. Изд-во полит. лит-ры Украины, 1959. – С. 8; Засідання Верховної Ради Української РСР Head. Voting. Who for making regu- шостого скликання. Перша сесія (11–12 квіт- lations made by the deputy Shelekh, ня 1963 р.). Стенографічний звіт. – К. : Вид-во please raise a hand. Please drop. Who політ. літ-ри України, 1963. – 8; Засідання against? None. Who abstained? Either. Верховної Ради Української РСР сьомого скликання. Перша сесія (11–12 квітня 1967 Regulations approved unanimously. «As року). Стенографічний звіт. – К.: Вид-во політ. літ-риУкраїни, 1967. – С. 9–10; Засідан- 1 Перша сесія Верховної Ради УРСР. Дру- ня Верховної Ради Української РСР восьмого гого скликання. 4–6 березня 1947 року. Сте- скликання. Перша сесія. (14–15 липня 1971 нографічний звіт. – К. : Укр. вид-во політ. року). – Стенографічний звіт. – К.: Вид-во літ-ри, 1947. – С. 7. політ. літ-ри України, 1971. – С. 9–10.

№ 9/2017 19 Theory and history of state and law

Supreme Councils for the period of the Rada of the Ukrainian SSR. The docu- Constitution of the USSR in 1937 for ment consisted of 17 items that regulate among them 1970’s, all, without excep- issues such as the order convening ses- tion, the vote taking place in Parliament, sions of the Supreme Soviet, the proce- was unanimously «yes». So consider dure for registration of MPs, the proce- carefully regulate the procedure of vot- dure for the invitation to the meeting ing and decision-making was not neces- guests term of the Parliament of agenda, sary. As it was not necessary to do so due election of the Verkhovna Rada proce- to the fact that the session of the Su- dure discussing bills and other docu- preme Soviet continued over the period ments, procedure for the inquiries and or one day or several days, and therefore their form, order coverage of sessions of excluded any complex procedures for the Supreme Soviet3. S. Sas, drawing sessions of the Supreme Soviet. Primi- attention to the fact that for the first time tivism regulations of the Supreme So- to accept the Supreme Soviet regardless viet, which functioned until the mid- of specific regulations convening of this 1970s, S. Sas says several reasons fol- body consisted of only 17 points, rightly lowing lines: «absolute lack of separation observes that «no one has the right to of powers, the dominant role of the name the act primitive». According to Communist Party, no need to resolve the researcher, limited regulation was internal conflicts because of the nonex- not related to the lack of competence of istence of most conflicts»1. Only the first the then legislators, and the fact «that session of the Supreme Soviet of the under the current system of governance, ninth convocation adopted July 4, 1975 those rules have been laid down in the decree «On approval of the Regulations regulations, it was enough for the settle- of the Verkhovna Rada of the Ukrainian ment of the Verkhovna Rada of the SSR», which was approved more or less Ukrainian SSR»4. detailed regulations of the Verkhovna Certain innovations in the legal sta- Rada of the USSR2. A Regulation was tus of the Supreme Soviet of the Ukrai- preceded by a little about the reasons for nian SSR were made to the Constitution drafting regulations and offer MPs to of the USSR in 1978 For almost two adopt this document. As always, mem- years the procedural rules of the Su- bers without debate and unanimously preme Soviet governed by the regula- adopted regulations of the Verkhovna tions of 1975, although Article 114 of the Constitution of the USSR in 1978 noted 1 Сас С. В. Парламентська процедура Вер- that the order of the Supreme Soviet and ховної Ради Української Радянської Соціалі- стичної Республіки та її відмінність від кла- it was determined of the Rules of the сичної моделі // Наше право. – 2004. – № 2 Supreme Soviet and other laws of the (1 ч.). – С. 12. Ukrainian SSR, which were issued on 2 Засідання Верховної Ради Українсь- кої РСР дев’ятого скликання. Перша сесія (4 липня 1975 року). Стенографічний звіт. – 3 Ibid (p. 43–46). К.: Вид. політ. літ-ри України, 1975. – С. 39–42. 4 Ibid (p. 13).

20 Yearbook of ukrainian law Regulations legislature Ukraine Goncharenko V. during the Soviet era the basis of the Constitution of the USSR. of the legislature Ukrainian SSR. How- Therefore, following the requirements of ever, it is largely inferior to the classic Article 114 of the Constitution, the Su- parliaments regulations civilized coun- preme Soviet of the USSR adopted tries. A different and could not be, since March 25, 1980 the Verkhovna Rada of the Supreme Soviet of the USSR was the Ukrainian Soviet Socialist Republic. one of the components of the Soviet Regulation consisted of 12 chapters, model of representative bodies of state which contained 65 articles and which power, far from parliamentarism. The for the first time in the entire previous next step in the development of the reg- history of the functioning of the Supreme ulatory procedures of the Supreme So- Soviet carefully defined work order of viet was the adoption by the VR May 22, the highest organ of state power of the 1990 the Provisional Regulations of the USSR1. A report on the draft regulations Parliament of Ukraine twelfth convoca- at a meeting of the Supreme Soviet was tion. For this document has been charac- the Deputy Chairman of the Presidium terized by some features classic parlia- of the Supreme Soviet deputy V. Shev ments3. Thus, the supposed secret ballot chenko. The speaker focused attention on election of the Verkhovna Rada of on the content of the draft regulations of Ukraine. the Verkhovna Rada, highlighing, as she The above gives reason to believe said, «on the main provisions of the draft that in the history of Ukrainian state has regulations»2. Deputies who participated accumulated vast experience of legisla- in the discussion of regulations of the tive regulation of routine procedures in Supreme Soviet, positively rated con- the operation of the high representative tent. Regulation was unanimously voted government bodies. This experience can by show of hands of deputies of the Su- be fully taken into account in the search preme Soviet. Rules of the Supreme So- for the optimal model regulations Ukrai- viet in 1980 was undoubtedly a signifi- nian parliament. cant milestone in the process of legislative support for the internal organization Published: Вісник Національної академії правових наук України. – 2016. – № 1 (84). – 1 Відомості Верховної Ради УРСР. – С. 30–42. 1980. – № 15. – Ст. 268. Докладніше про зміст нового регламенту дивись: Сас О. Верховна Рада Української РСР – безпосередня попе- редниця сучасного українського парламенту // Віче. – 2011. – № 12. – С. 21–22; Сас С. В. Парламентська процедура Верховної Ради Української Радянської Соціалістичної Рес публіки та її відмінність від класичної мо- делі // Наше право. – 2004. – № 2. – С. 14–16. 2 Перша сесія Верховної Ради Українсь- 3 Тимчасовий регламент засідань Верхов- кої РСР (Десяте скликання). 25–26 березня ної Ради дванадцятого скликання / Поста 1980 року. Стенографічний звіт. – К.: Вид-во нова Верховної Ради Української РСР від політ. літ-ри України, 1980. – С. 24. 22 травня 1990 р., № 6-ХІІ. – 1990. – 15 с.

№ 9/2017 21 O. Petryshyn, President of the National Academy of Law Sciences of Ukraine, head of the theory of state and law department Yaroslav Mudryi National Law University, doctor of sciences

UDC 340.114 COURT PRACTICE AS A SOURCE OF LAW IN UKRAINE: PROBLEMS OF THEORY

The judiciary, operating under legal From the legal mechanisms stand- democratic state is increasingly taking point the issue is in providing authorita- on the characteristics of the guarantor tive «transfer» of the contents of certain and protector of rights while performing rules of behavior into the realm of social important tasks on elimination of pos- reality with all the specific features. This sible conflict in social relations caused approach should be kept within the legal by a variety of factors – economic, po- framework with regard to the profes- litical, cultural and others. Per se, the sional legal criteria and through trans- legal instructions in today’s society of parent competitive procedures. A court, conflicting interests are not able to fulfil an institution closest to the law, has the the aim of regulation – the rule of law prerogative and the final decision on le- and conflict resolution. Accordingly, the gal disputes and conflicts. judicial system that functions properly, The most significant feature of courts serves an important function of society in society, especially in the difficult and, at the same time – a prerequisite and times of reforms is consistent provision component of a modern democratic of human rights as the driving force of state1. any social change. Under these conditions, the courts are primarily entitled to 1 Winkelmann Justice Helen. ADR and The serve as a secure tool for human rights, Civil Justice System / H. Winkelmann // AMINZ to create a legal space in which interests Conference. 2011. – Taking Charge of the Future of different social groups are to be ex- (6 August 2011) [Elektronnyi resurs]. – rezhym pressed, based on the fundamental prin- dostupu : http://www.courtsofnz.govt.nz/ speechpapers/ADR%20and%20the%20Civil ciple of democracy for the recognition %20Justice%20System.pdf of man as the highest social value.

22 Yearbook of Ukrainian law Court practice as a source of law Petryshyn O. in Ukraine: problems of theory

That is why judges in modern society based concept that by definition requires play an increasingly important role and a broader interpretation. In addition, are often subjected to more criticism, a court is often forced to supplement and face much more complex issues than laws, that is, figuratively speaking, to ever before. Today’s society considers a engage in «completion» of law when the court as an institution that is able to re- application of the law features several solve the dispute, even in those areas of possible options of its interpretation. social life, which until recently were far The text of the formal sources of law beyond the jurisdiction1. These general cannot ensure the completeness of legal trends are reflected in the legal basis for regulation. There may be situations that the organization and administration of are not covered by the effect of existing justice in Ukraine, in particular – the legal requirements, but are in need of thesis of the Part 2 of Article 124 setting regulation, thus, formalized source of jurisdiction of the courts to «any dispute law should always leave an appropriate and any criminal charges». autonomous space, an «area of freedom» All this leads to a particular interest in which the participants can indepen- of general theoretical science to the pro- dently determine the relationship pat- visions, enacted by the courts in specific terns of its behavior. Yet all disputable cases soon to become samples of appli- situations are to be resolved by the court. cation and interpretation of the law in The value of judicial practice as a solving similar disputes in the future, source of law is particularly noticeable exposing the issue of judicial practice as in the legal regulation of relations that a source of law. are not clear, incomplete or contradic- It is commonly recognized in legal tory normalized on legislative level, and doctrine that one of the most important in the application of legal principles and features of law is its general nature, and norms of human rights and fundamental therefore a legal norm usually does not freedoms in courts. take into account the diversity of spe- Also, consider that formal law: cific situations that may become subject a) must be subjected to critical eval- to its regulation. No legal provision re- uation, primarily by judges, in light of quiring compliance from a particular the relevant objective limits of legal group to recognize their legitimate be- regulation, the principles of law and hu- havior can be clearly formulated. A law, man rights; regulating corresponding social relations b) may be subjected to dynamic in- usually involves a level of abstractness, terpretation, if the public relations re- and therefore requires a legal assess- quire different behaviors because of their ment. Note also that a significant amount relative development; of legislation uses the so-called value- c) the state, represented by the judicial authorities may authorize the norms 1 Paul G. Kauper. The Supreme Court and established by the civil society, granting the Rule of Law / G. Kauper Paul // Michigan Law Review. – Vol. 59. them the official legal status.

№ 9/2017 23 Theory and history of state and law

This creates an objective basis for the (4) fills a gap in the legal regulation recognition of judicial practice (jurispru- and offers behaviors in situations where dence) as a source of law, in other words the legislator deliberately left space for as an official form (way) of external ex- independent regulation, yet the frequen- pression and consolidation of rules, self- cy of disputes determined the urge to reference of which verifies their exis- develop well-established behaviors. tence. With its main objective set to per- The importance of jurisprudence for form these important tasks, jurispru- the legal regulation of public relations is dence contributes to the establishment widely acknowledged by the practitio- and maintenance of public confidence in ners. Their work is based around a state- the court and ensures its credibility and ment that a huge amount of adopted ju- effectiveness. dicial acts contains generalized experi- Generally, judicial practice (juris- ence matched to determine the main prudence) is formally considered as a directions of jurisprudence on a particu- secondary source of law. It can provide lar issue, the dynamics in the application a convincing justification for the judg- of a particular law, and its quality char- ment, but a reference to judicial prac- acteristics in terms of «operability». Ju- tice only in not a solid enough state- risprudence produces basic approaches ment. It must be combined with refer- that serve as a benchmark when consid- ence to a relevant legal act, legal or ering specific cases. other formal agreement. The situation To determine the main directions of may differ if the state clearly indicates the regulatory impact of judicial practice binding conclusions set out in the rel- in certain aggregated form, it: evant legal acts. (1) affects the formation of uniform In Ukraine, the judicial practice was rules of decision making in similar fac- not officially recognized as a source of tual situations that provide a common law for a long time, but lower courts judicial practice, eliminates the situation have always tried to follow the practice where the same category of cases some- of higher courts in dealing with similar times is considered by courts in different cases, because otherwise their decisions ways, and therefore contributes to legal could be reversed on appeal or cassation. certainty as one of the important require- In Soviet times the resolutions issued by ments of the rule law; the Plenum of the Supreme Courts of the (2) specifies the provisions of regula- USSR and the Federal Republics served tions where their abstraction allows sev- as a specific benchmark for court en- eral options for regulation; forcement, later recognized on doctrinal (3) creates a uniform understanding level and implemented in a theory of of the laws that are vaguely formulated «legal provisions»1. Consequently, the or ones which are inconsistent to the 1 moral values of society, and therefore Details of the scientific debate on law- making role of jurisprudence in domestic need a dynamic interpretation; science see: Шевчук С. В. Судова правотвор-

24 Yearbook of ukrainian law Court practice as a source of law Petryshyn O. in Ukraine: problems of theory judicial practice of the higher courts know, the text of the Convention on Hu- have always acted as a guide for lower man Rights and Fundamental Freedoms, courts and other law enforcement agen- which forms the basis of common stan- cies. dards of human rights, which are recog- The legal system in Ukraine, which nized as one of the three pillars of the aspires to be based on the rule of law and European system of values (along with respect for human rights can no longer democracy and the rule of law), is quite be single-channel («mono-source»), concise. The content and meaning of the while jurisprudence under these condi- requirements is largely disclosed in the tions naturally becomes binding and, practice of the European Court of Hu- ultimately, receives the status of a source man Rights thus creating the term «Eu- of law. Only under the recognition of ropean Conventional law» (or «the Con- professional opportunities for judicial 2 protection and justice, participation in ventional law») . the lawmaking, determining the direc- Participating states should take into tion and nature of legal regulation of account not only the judicial practice of social relations will it be possible to ad- the European Court of Human Rights vance towards an effective system of regarding their particular state, but the justice, protection and human rights. decisions, targeted at third-party coun- The recognition of jurisprudence as tries because they can teach them how a source of law contributes to solving to avoid similar violations in the future many of the more general theory of law and accordingly change their own legal issues in the direction of modernization and law enforcement system3. The and convergence into the «European Court’s decision should be an incentive thinking». First – its refinement towards for member states to change their laws a broader social base of law and improv- and enforcement practices to ensure that ing the efficiency of legal regulation, these countries will not breach human implementation of the law’s practical rights in the future4. functions and tasks. Moreover, the Plenum of the Su- Thus, Article 17 of the Law of preme Court of Ukraine in its resolution Ukraine «On the enforcement and application of the practice of the European 2 Harris D. J. Law of the European Convention Court of Human Rights» of 23 February on Human Rights / D. J. Harris, M. O’Boyle, 2006 r. 3477-IV1 expressly states that C. Warbrick. – 3-d ed-n. – Oxford: Oxford Ukrainian courts may apply the judicial University Press, 2014. – 1080 p. 3 practice of the European Court of Hu- Беляневич О. А. Про застосування пра- ктики Європейського суду з прав людини // man Rights as a source of law. As you Вісник КНУ ім. Тараса Шевченка. Серія Юридичні науки. – 2009. – № 81. – С. 32–38. чість: світовий досвід і перспективи в 4 Юдківська Х. Ю. Еволюція ролі Євро- Україні. – К.: Реферат, 2007. – 640 с. пейського суду на шляху до процедуралізації 1 http://zakon5.rada.gov.ua/laws/show/ фундаментальних прав // Вісник Верховного 3477-15 Суду України. – 2011. – № 7. – С. 19–22.

№ 9/2017 25 Theory and history of state and law

«On judgment in a civil case» clearly er). The court granted the petition, citing emphasized that «the reasoning of each the decision of the ECHR in the case decision ... if necessary, should contain «C. Markin against the Russian Federa- a reference to the Convention and the tion», which, among other things, stated correspondent European Court of Hu- that «gender stereotypes that dictate the man Rights judicial practice which are, perception of women as the person who pursuant to the Law Of Ukraine on Feb- mostly takes care of the children and the ruary 23, 2006 № 3477-IV «On the en- husband as breadwinner alone may not forcement and application of the practice be sufficient justification for the differ- of the European Court of Human Rights» ence in treatment also like other stereo- regarded as a source of law to be applied types related to race, origin, color or in this case»1. sexual orientation». The court also relied Analysis of judicial practice shows on the principle of gender equality en- that Ukrainian courts sometimes refer to shrined in the Constitution of Ukraine. the decisions of the ECHR as a source This allowed the Court to justify the con- of law, including the cases where it is clusion that the order of the Law of necessary to renounce the use of legal Ukraine «On social and legal protection prescription that contradicts with the in- of servicemen and their families» con- ternational obligations of Ukraine in the tradicts international acts and the Con- field of human rights. For example, in stitution of Ukraine, and therefore should one of the cases a man appealed to the not be used2. court to recognize the actions of the We also note that all procedural State Border Service of Ukraine (USBS) codes of Ukraine (at that time the Crim- unlawful. The plaintiff worked under inal Procedure Code of Ukraine, Civil contract with USBS as a senior officer. Procedure Code of Ukraine, the Com- From 13.10.2014 to 28.09.2015, he was mercial Procedure Code of Ukraine, the on leave to care for a child under the age Code of Administrative Procedure of of three. On 24 of September 2015, he Ukraine) were complemented with pro- asked for a leave until the child reaches visions specifying the judgments of the six years because the child was in need Supreme Court of Ukraine as obligatory of a special health conditions. pursuant to the Law of Ukraine «On the The defendant refused to grant such Judicial System and Status of Judges» of leave, referring to the Law of Ukraine July 7, 2010 r. Number 2453-VI. «On Social and Legal Protection of Ser- Thus, in accordance with Art. 360-7 vicemen and Their Families», which of the Civil Procedural Code of Ukraine guarantees the right to take such leave of 18 March 2004 r. #1618-IV the judg- only to females (this rule is still in pow- ment of the Supreme Court of Ukraine, adopted on the consideration of the ap- 1 Постанова Пленуму Верховного Суду plication for revision of a judgment on України від 18.12. 2009 р. № 14 «Про судове рішення у цивільній справі» // Вісник Вер- 2 http://www.reyestr.court.gov.ua/Review/ ховного Суду України. – 2010. – № 1. – С. 4. 52810098

26 Yearbook of ukrainian law Court practice as a source of law Petryshyn O. in Ukraine: problems of theory the grounds of unequal application of the edents, the court can actually deviate court (courts) of cassation of the same from such a legal position if he proves substantive law in similar cases is man- that the factual circumstances of the case datory for all government entities, which in question, differ from the case on utilize the legal act containing the said which the Supreme Court had made the rule of law, and all courts of Ukraine. appropriate position, or set situation is Courts are required to bring their judicial proved to be absolutely exceptional, practice into line with the Supreme Court pointing to significant changes in social of Ukraine. Such judgments of the Su- values and standards of society. preme Court of Ukraine shall be pub- For example, the Law of Ukraine lished on the official website of the Su- «On Enforcement Proceedings» estab- preme Court of Ukraine no later than 15 lishes a three-month window for the days after their adoption. claim of bankruptcy proceedings. How- Later (Act of 12.2.2015 #192-VIII) ever, this does not account for a situation formulation of the article was changed where after the opening of the enforce- slightly: «The conclusion of the Supreme ment proceedings the reorganization of Court of Ukraine on the application of the debtor takes place. The result proved the law, as set out in its resolution ad- to be a controversial practice: some opted on the results of the proceedings courts have considered that the period on the grounds of unequal application of should be calculated from the date of the the court (courts) of cassation the same enforcement proceedings, others – after rules of substantive or procedural law is replacing the debtor in the proceedings mandatory for all government entities, because of the reorganization. Since the which utilize the legal act containing the legal position of the Supreme Court of said rule of law. Ukraine states that the term is calculated Opinion on the application of the law from the opening of the proceedings, all set out in the decision of the Supreme contrary judgments usually get canceled Court of Ukraine should be considered (e.g., the decision of the Supreme Eco- by other courts of general jurisdiction in nomic Court of Ukraine on June 4, 2015 the application of the law. «The court has in case № 924/159/14)1. the right to retreat from the legal position The status of a source of law in set out in the conclusions of the Supreme Ukraine must also be recognized with a Court of Ukraine, while providing the resolution of the Constitutional Court of relevant reasons». The last sentence on Ukraine. We should distinguish between the possibility to back down from the the CCU decisions formulated as «un- legal position of the Supreme Court of constitutional as a whole» or «in part» Ukraine was wrongly perceived by many of certain normative act and resolution as an argument in favor of such legal positions not serving as a source of law. 1 http://www.reyestr.court.gov.ua/Review/ In this case, similar to the judicial prec- 44674985

№ 9/2017 27 Theory and history of state and law on the official interpretation. The deci- ments, but also acts on any subject of sion to abolish the law or other legal act public authority1. (separate provision) has the highest legal The conclusion, made by the Consti- force in relation to the canceled act. This tutional Court was in fact based on a decision is binding and final. It does not general principle of the inadmissibility require publication of additional legal of the negative impact of the abolition of acts of legislative and executive power; administrative act on citizens’ rights, is compulsory, normative and leads to a implementation of which has been rec- significant change in the legal regulation ognized or supported with an act which of the relevant areas of public relations. had spread to all acts of public authori- The judgment on the unconstitutionality ties as local governments and public au- of legal acts gained a characterization of negative lawmaking in the doctrine. thorities, unless as prescribed those deci- Such acts have the status of a source of sions having legal relations connected law, but not as jurisprudence, but as a with the implementation of certain sub- separate kind of legal act. jective rights and legal interests. The As for the judgments of the Consti- Constitutional Court of Ukraine also tutional Court on the official interpreta- bases its legal position on the general tion, they are covered by the notion of constitutional provisions under which jurisprudence as rulings in individual the rights and freedoms and their guar- cases containing samples of uniform antees determine the content and direc- legal and repeated application and inter- tion of the state, being responsible before pretation of the law. For example, the the people of the said state (Article 3 of judgement of the Constitutional Court the Constitution of Ukraine). In addition, of Ukraine on 16 April 2009 on the con- the overbearing nature of the powers of stitutional provision of Kharkiv city council concerning the official interpre- local governments and public authorities tation of the provisions of Article 19, in making their individual decisions on Article 144 of the Constitution of which there are legal relations connected Ukraine, Article 25 (p. 14) Article 46, with the implementation of certain sub- Part One, ten of Article 59 of the Law jective rights and legal interests are iden- of Ukraine «On Local Self-Government tical and based on the public nature of In Ukraine» (the right to cancel the acts of local authorities), the reasoning part 1 This conclusion is confirmed by numerous indicates that non-normative acts of the decisions of courts of Ukraine, based on the local self-government are acts of a sin- conclusions of the Constitutional Court (See., Eg, the ruling Supreme Administrative Court of gle application, so they cannot be can- Ukraine on 27 October 2015 in the case celed or modified by the local self-gov- К/800/42228/15 (http://www.reyestr.court.gov. ernment after their implementation. The ua/Review/52952886), decision of the High above legal position acquired the status Specialized Court of Ukraine for Civil and of a source of law to which you can refer Criminal Cases of 17 February 2016 (http:// www.reyestr.court.gov.ua/Review/56517555) in terms of not only acts of local govern- etc.

28 Yearbook of ukrainian law Court practice as a source of law Petryshyn O. in Ukraine: problems of theory their powers. Accordingly, any public state), Supreme Court of Ukraine in de- body may not revoke or amend its previ- cisions on unequal application of sub- ous decision, if there exist legal relations stantive and / or procedural law and the connected with the implementation of Constitutional Court of Ukraine in cases certain subjective rights and legal inter- of official interpretation. Judgments of ests or there are legal entities opposed to other courts (including high specialized its modification or termination. courts of Ukraine) containing samples of Based on the above, we can con- uniform legal and repeated application clude, that in modern Ukraine the status and interpretation of law, may acquire of a source of law (in judicial practice) the status of source of law yet not man- is granted to the obligatory conclusions datory, but convincing (authoritative). in specific cases of the European Court of Human Rights, some of the UN Com- Published: Право України. – 2016. – mittees (ones recognized the by our № 10. – С. 20–27.

№ 9/2017 29 V. Ermolaev, Doctor of Law, Professor of Department of State and Law of Ukraine and Foreign Countries History of Yaroslav Mudryi National Law University, Corre- sponding Member respondents National Academy of Law Sciences of Ukraine

UDC 340.15:94(477)«1648/179» STATE CONCEPTION OF UKRAINIAN HETMANS (THE MIDDLE OF THE XVII–XVIII CENTURIES): SUBSTANTIAL ASPECTS

In historical and legal science a state meaningful aspects of state conceptions conception of the era of Hetmanshchyna of the Hetmans of Cossack State. was studied in the context of the history After the victory of the National of the Cossack state, biographies of its Revolution of 1648 Cossack ideals and creators – in the works of M. Kostoma- norms of life spread quickly and took rov, V. Antonovych, M. Hrushevsky, roots in consciousness of the Ukrainian D. Doroshenko, and contemporary re- population, which sought to defend their searchers: V. Smoliy, V. Stepankova, right to freedom, to own statehood. The A. Myronenko, A. Kozachenko, etc. The main and, of course, the prevailing idea monograph of the author was no excep- of that time was the formation of the tion1. Meanwhile, studies of state con- Cossack State. The most prominent role ceptions of the era of Hetmanshchyna in development of the state conception, enriches our knowledge of state experi- development of formation state prog- ence of Hetmans, its logic and challeng- ram undoubtedly belonged to Bohdan es, circumstances in which the state con- Khmelnytsky (1595–1657). In his «Call- cepts were developed. This article ating Universals» he promised «our land... tempts to explore briefly some to make the blessed», called for a decisive battle with the Poles who marked as «the aim of thier policy to conquer our 1 Єрмолаєв В. М. Вищі представницькі органи влади в Україні (історико-правове system of self-governance and choice...». дослідження). – Х.: Право, 2005. – 272 с. As you can see, the last one was the ba-

30 Yearbook of Ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)... sis and continuation of the state forma- we ... more sterpily not of bondage»3. tion for Hetman. «As for me, I shall Cossacks oppression and clergy were spare neither life nor strength, ready for discussed in the. «Points and instructions any danger, everything will be given given to Cossack ambassadors», in «The away only for the common freedom and Terms sent to Warsaw», so that there peace, and my soul will rejoice soon till were Polish troops on the Cossack terri- I get your fruit that I desire put»1. It was tory and the Hetman was granted elder- a national liberation uprising that Khmel- ship, Cossacks were given freedom of nytsky estimated as a continuation of the access to the sea, so they sued right and previous Cossack uprisings. It rose for noble, and were ruled by the king di- the «pious faith and integrity of our rectly, «had its hetman elected Cos Motherland», «for the honor of our gen- sacks»4. Cossack requirements did not try, which is being despised, destroyed, mention withdrawal from the Polish- highly ridiculed and trampled». There- Lithuanian Commonwealth, but they fore, the task of defending the «ancient demanded establishment of national- rights and liberties of Zaporizhia army» territorial autonomy. This program of from their neglect and gross violations Hetman and Cossack was supplemented of the Polish magnates, gentry, Catholic in the «Points of Cossack Requirements and Uniate clergy2 was declared as the for King Jan Kazimierz and the Polish next goal. Government» on February 24, 1649, The success of the National Libera- where, in particular, establishment of tion War provided the determination to autonomous Cossack state in the Senate Hetman’s political plans, i.e. obtaining was discussed «at least three senators»5. political autonomy for Ukraine as part Brilliant victories of the Cossack and of the Polish-Lithuanian Common- peasant troops approached Zborowski wealth, representative government and contract, which made political autonomy the Ukrainian Orthodox metropole in the of reclaimed Ukrainian lands constitui- Senate. In a letter to the Polish King onal. However, the failure of the Polish Wladyslaw IV, B. Hmelnitskiy, empha- Parliament in the ratification of the Trea- sizing his allegiance to the King stresses ty, the abolition of the conditions of the grievances «lords chiefs and Ukrainian Union of Brest dispelled the hopes of the statesmen,» asked to allow to «order to Hetman for Ukraine’s representation in keep us in the ancient rights and liberties the Polish Sejm and Senate, changed his and that it [warned] us his holy face, for plans6. In early February 1649 he clearly stated to Commissars of the Polish King 1 Тисяча років української суспільно- about his intentions to create an indepen- політичної думки. У 9 т. Т. 3. Кн. 1 – К.: Дніпро, 2001. – С. 176–178. 3 Ibid. – С. 80, 81. 2 Документи Богдана Хмельницького. 4 Ibid. – С. 80–85. 1648–1657. Упор. І. Крип’якевич та І. Бутич / 5 Ibid. С. 126–131. АН УРСР. – К.: Вид-во АН УРСР, 1961. – 6 Універсали Богдана Хмельницького. С. 33–39. 1648–1657. – К., 1998. – С. 47–98.

№ 9/2017 31 Theory and history of state and law dent Ukrainian state: «I will knock out «we are now the poles again to obey of the Polish captivity all Russian peo- should not be»2. ple. ...And having stood up the Vistula Geopolitical field of contemporary river, I will say further to the Poles: «Sit Europe was made up exclusively of down, be quiet, Poles! All of your mag- monarchy, where the monarchs – kings, nates, princes I will herd there, and if emperors, tsars represented the national they shout over the Vistula, I will find sovereignty, entered the only actors in them there probably...»1. Therefore, international relations. This circum- B. Khmelnytsky sought the release of all stance was taken into account, obvious- the ethnic lands of Ukraine from foreign ly, Getman, calling themselves in the domination, its national unity, restora- diplomatic correspondence «edinovert- tion of the glory and the Western borders sami and autocrat Russian»3. Such a of Kievan Rus – «as possessed by the «slotiterator» – evidence of the desire of pious and great dukes». Thus, for the Hetman connect the ideas of the Cossack first time in the history of national social republicanism and catholicity with the and political thought, the Hetman formu- traditions of old Ukrainian-Russian state, lated a national state idea, i.e. creation to strengthen personal power for success of an independent state within the ethnic of the state in conditions of almost con- boundaries of Ukraine. tinuous war, the complex geopolitical The defeat at Berestechko and the situation of Ukraine. Khmelnitsky op- Bila Tserkva Agreement of 1651 had posed to monarchical institutions, and restricted it geographically, however, not once publicly condemned them. So, did not stop the productive state forma- in their state plans and actions of the tion processes in Ukraine. They used the Hetman was forced to weigh in an ex- experience of the original Cossack Re- tremely complex geopolitical and do- publican organization of government in mestic circumstances that forced him to Zaporizhzhya Sich, tested by practice of sacrifice some democratic procedures military-administrative, regimental- (regular convening of the General of the hundredth control system of the Cos- Cossack councils, sometimes, violations sacks led by the Hetman, the rule of the of election of regimental and hundredth government of Common (General), of the elders), changing diplomatic pri- regimental, hundred boards, election of orities, the configuration of military- public authorities at all levels, devel- political alliances. oped by the local self-government. De- The idea of the international orienta- spite the new threat of war with Poland, tion policy of the Cossack state was for- B. Khmelnytsky expressed confidence: 2 Тисяча років української суспільно- 1 Грушевський М. С. Історія України з політичної думки. У 9 т. – Т. 3. Кн. 1 – К.: ілюстраціями і документами. – Донецьк: Дніпро, 2001. – С. 255. ТОВ «ВКФ «Бао», 2009. – С. 217; Смолій В., 3 Смолій В., Степанков В. Богдан Хмель- Степанков В. Богдан Хмельницький. – К.: ницький. – К.: Вид. дім «Альтернативи», Вид. дім «Альтернативи», 2003. – С. 180. 2003. – С. 190.

32 Yearbook of ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)... mulated. Khmelnytsky considering the Poland. In «the March articles», letters external threat, the creation of favorable to the Tsar of Muscovy Would conditions for the state. He proposes be.’nyts’kyi defended the inviolability «loyalty and citizenship to the Russian of public order of Ukraine, «all rights Tsar, tries to log to the patronage of and liberties in the wells and the courts, Turkish Ports by offering «our friend- no magistrates, no Lord or steward of the ship», enters into Alliance with Semigra- courts of the troop stood up, and from dia, noting that the agreement between the older to the society they were judged, the two countries should be «not without where three people of the Cossacks, benefit to the king’s Majesty and without there are two third must judge» (Art. 1), harm to the Swedish side»1. the Agree- «...to Zaporozhye army, what exactly ment with the same terms was signed elected Hetman...» (Art. 6). «Rights with Moldavia and Wallachia. In a letter granted from centuries of princes and to the Swedish king in July 1656 Hetman kings, both spiritual and secular people, formulates a foreign-policy doctrine: so nothing was violated» (Art. 13), «...to «we used not harm anyone, but rather to the privileges of his Imperial Majesty to compete in goodwill with those who us on the charters gave written, to eternal treat us prailno»; «no come on no one on time was inviolable» (Art. 17)3. The the offensive, but with God’s help I will «Charter» Polski sample were called continue to protect as we can, faith, will «Constitutions». Khmelnytsky and had and our borders»2. Maintains an active legal force for nearly a century, have diplomatic negotiations on the establish- been referred to by all subsequent het- ment of the international anti-Polish mans, the Royal power. For Ukraine coalition. A real alternative to Hetman «Article Khmelnytskyi» was really an considered the project of creating a Con- act of constitutional significance, which federation of three States – Poland, legally confirms the achievements of the Lithuania and Ukraine. However, these state on the basis of the Republican sys- intentions B. Khmelnytsky did not coin- tem, rule of the General of the Cossack cide with the Polish. Hetman councils and government. The Pereyaslav Treaty in 1654 and Death B. Khmelnitsky Hetman Ivan «the March article of B. Khmelnitsky» Vyhovsky (net. – 1664) in response to in the opinion of the Hetman had to le- the flagrant violation «of Articles Khmel- gally sign an agreement on military- nytsky» by the tsarist government, reviv- political Alliance with tsarist Russia, ing the idea of a Russian Grand Duchy. constituate it the sovereignty of the In September 1658 the Hetman signed Ukrainian state and the independence of with the Polish commissioners «Gady-

1 Універсали Богдана Хмельницького. 1648–1657. – К., 1998. – С. 91–102. 3 Універсали Богдана Хмельницького. 2 Тисяча років української суспільно- 1648–1657. – К., 1998. – С. 64–67; Тисяча років політичної думки. У 9 т. – Т. 3. Кн. 1 – К.: української суспільно-політичної думки. Дніпро, С. 71–72; 243–244; 248–249; 268–269. У 9 т. – Т. 1. Кн. 1 – К.: Дніпро, С. 262–267.

№ 9/2017 33 Theory and history of state and law ach treatise»1. Тhe signing of the treatise possibility of the inheritance of the Het- occurs in secret, because Vyhovsky man’s power, his brothers. The most doubted the possibility of its approval complete political program of the Het- both by the Sejm and Cossacks. It was man were outlined in the «List of items, about the establishment of the Ukrainian and submissive requests Ivan Vyhovsky territory of the Russian Grand Duchy, Polish king and Polish-Lithuanian Com- which along with Poland and Grand monwealth», made 16592. They provid- Duchy of Lithuania will be part of the ed for the abolition of the Union, acces- Commonwealth. «The entire Common- sion to the Duchy of the Russian prov- wealth of the people of Poland and the inces of the Russian, Podolsk, Volyn, Grand Duchy Litovskoj and Russian, – sovereignty of the Hetman in these lands, was stated in the treatise, – let it be re- his right to the appointment of members stored to personbut as it was before the of the government, the allocation of seats war, that is, that these people within their in the Sejm and the Senate for ambas- and cobalah were undisturbed... and sadors and senators from the Kiev prov- rights described in the councils, in the ince, meet the private interests of the courts and the free choice of its sover- Ukrainian gentry, approving all of the eigns and Grand Dukes of Lithuania and ancient rights of Zaporozhye», the return the Russian...». Regarding the Supreme of property and churches of the Ortho- power in the Grand Duchy of the Rus- dox Church, etc. So, he wrote an exten- sian, the Treaty provides for certain ter- sive programme of reform of the Ukrai- nian public life and exaltation of the ritorial and jurisdictional limitations: power of the Hetman to the level of a «And for the best of these covenants limited monarchy, which is not consis- (contracts) approval and loyalty to the tent with the law of the Cossack cus- Hetman troops Rusko from now on toms. Plans propolish gentry did not should be to end the life of their Hetman satisfy the Cossacks, Polish-Lithuanian Rusko and the first Senator, and after his Commonwealth and the Cossack officers death it should be a full election of the on the Pro-Russian orientation. The civ- Hetman, that is elect four [candidates] il war began, strife, Destruction. select the state... provinces, one of which Successor Ivan Vyhovsky Yuri Hmel- his Royal Highness will approve without nitski (near 1640–1685) denied such alienating from rank brothers the noble plans, the reform of the Cossack state. Hetman Russian». His political program at the beginning of Thus, the General Cossack Council the Hetmanate was quite constructive to as the principal organ of popular rule take into account the previous experi- were deprived of their powers at the ence of the state came mainly from the choice of the Hetman. Treatise fixed life points of the March articles.Khmel- status of the Hetmanate.Vygovsky, the nytskyi3. However, the «Articles, or 1 Тисяча років української суспільно- політичної думки. У 9 т. – Т. 3. Кн. 1 – К.: 2 Ibid. – С. 332–344. Дніпро, С. 309–316. 3 Ibid. – С. 345–348.

34 Yearbook of ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)...

Pereyaslavl of the Constitution given by and the Tatar troops came to the right the king in electing as Hetman Yuri Bank, to serve him «as ddocname Khmelnitsky» 1659. grossly violated the sovereign»1. So his actions Patriotic legal status of Ukraine and its powers are statesmen have created favorable condi- the Supreme authorities. «Articles» is tions for the Treaty of Andrusovo (1667), now «the great Emperor... udarowa the and later «eternal peace» between Po- behest to do in the Zaporozhian army» land and Russia, which cemented the General Parliament for the choice of the division of Ukraine, the destruction of Hetman, which was read «Articles». the Cossack state. Khmelnytsky is sworn to the king, the Such a policy aroused the indigna- newly elected Hetman and all Board tion of even.Bryukhovetsky: he raises members «to the eternal and faithful the Left anti-Moscow uprising, returns citizenship». the titles of «the Hetman of Zaporizhia Statist thought later Hetman of army loyal», declaring the unification of Ukraine was forced to reckon with in- both parts of Ukraine – «with the breth- creasingly humiliating conditions limit ren of our party to inflict us with the the Moscow government, the legal status desired consent»2. However, to the au- of the Cossack state, the authority of the thority of the Cossack masses could not General councils of the Cossack, Het- and was killed. I Miusov, opposition man, the Hetman government. Ivan Bri- among the Cossack on the external pri- ukhovetsky (1623–1668), who was orities change or destroy state plans Het- elected Hetman of left-Bank Ukraine in man, creative processes. 1663, in the Moscow papers (1666) has Right Bank Hetman Petro Dorosh- stated that it is not the Hetman, and the enko (1627–1698) first tried to continue king of the God-sent ruler in Ukraine, the state-line I. Vygovsky, was forced, in and its status as «full and true gosudarst spite of the Polish agreement with the citizenship», agreed all taxes and levies Tatars, promising in October 1667 «full direct to the Royal Treasury, asked the and true allegiance to his Royal grace king to send «in the little Russian town and Richie the Commonwealth»3. Het- gosudarstva Governor» to make Kiev the man renounced rights on the interna- Governor Keeper of the Hetman klei tional relations with other States, has nods. The Hetman himself refused the agreed to the return of the rights of the right of the Cossack state sciatica with Cossacks to the level of the bila Tserkva other States. Such zeal was rewarded by agreements. This necessary step does not the tsarist government boyar image of coincide with the true intentions of Do- the Hetman. roshenko and the following year he paid In turn, the right Bank Hetman Pav- lo Teteria in the «universal grass-roots 1 Тисяча років української суспільно- troops Zaporizhzhya» in November політичної думки. У 9 т. – Т. 3. Кн. 1 – К.: 1663. called on the Cossacks to support Дніпро, С. 403–404. 2 Ibid. – С. 454–455. the king of Poland, which Polish army 3 Ibid. – С. 442–443.

№ 9/2017 35 Theory and history of state and law articles-requests to the Turkish Sultan: Doroshenko win M over.Khanenko in «For the Treaty and the establishment, October 1669, supported by Poland, did which was at the time of Bohdan Khmel- not stop the destructive processes and nytsky, the Hetman, the same wants and internecine competition. Petro Doroshenko, Hetman...»1. In the In its political program, announced, articles we talked about the independent in particular, in the «Order articles am- existence of the Cossack state, the reuni- bassadors to Moscow» from 1 January fication of Ukrainian lands, the liberation 1669, Demian Mnohohrishny (ad and of the population from paying tribute to see unknown) retreated from the idea of the life of the election of Hetman the unity of Ukraine on both sides of the autonomy of the Church under the Patri- Dnieper river, placed their hopes on arch of Constantinople and others. This Moscow’s patronage. Getman acknowl- project was approved by the expanded edged allegiance «to the lower servants» petty Parliament at Korsun in 1669 State of the king’s, asked the king to restore program Doroshenko was proclaimed and confirm the power of the «Articles». and expanded the Russian Ambassador. Khmelnytsky as a legal basis for the TEPCO, in particular, is preservation preservation of Cossack rights and liber- and inviolability of all Cossack liberties, ties, pre-existing system in Ukraine3. the right to elect the Hetman of the entire Нave Proposed the withdrawal of Rus- Cossack «Cossacks of nature», «live sian Governor with military people from bredolab * and unbroken pricelist... with the Ukrainian cities through the robber- the Moscow peoples» and the like2 so, ies, murders and fires «and all sorts of Hetman set ourselves the goal of creat- tortures to people», asked leave of the ing a free Ukraine on the basis of friend- king of Kiev, to release the prisoners in ly relations with all surrounding States, Ukraine, people. On Glukhovsky Parlia- with the exception of its vassal status. ment 1669. in the election of the Hetman By the way, as an independent state, of left-Bank Ukraine D. mnohohrishny Ukraine has seen Peter sukhovey (1645- was vasimalai Imperial will «darwati of net), which «Appeal to the Ukrainian the Hetman and the whole army this side people» in October, 1668. opposed Mos- of the Dnieper rights and liberties is still cow and the Polish patronage, for the their right, and their rights and liberties connection of the people «both sides of in no will be broken»4. But article 3 pro- the Dnieper», for public diplomacy. In vides for the continuation of the Russian practice, however, conceded these plans bail in Kiev, Pereyaslav, Nizhyn, Cherni- and began an internecine struggle Doro- hiv, regular levies, article 19 established shenko, invaded by the Tatars on the the procedure of informing the Hetman, right Bank. Their defeat of the Cossacks, article 20 has defined a new procedure

1 Тисяча років української суспільно- 3 Тисяча років української суспільно- політичної думки. У 9 т. – Т. 3. Кн. 1 – К.: політичної думки. У 9 т. – Т. 3. Кн. 2. – К.: Дніпро, С. 464–468. Дніпро. – С. 7–12. 2 Ibid. – С. 445–451. 4 Ibid. – С. 27–52.

36 Yearbook of ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)... for change of the Hetman for his crime, remain whole?» In other words, can contrary to the «Articles». Khmel- there be a state without its own borders? nytskyi. Hetman at Glukhovsky the Par- The old Hetman «own Breasts, brave liament with the elders and Cossacks, hearts, their blood had defended and pro- gathered Voight and ricami hoped for an tected her.» And through left Bank «of end to strife and civil war, and in the end, the rebels and ambaw» – M. Gunner, and Ruins. Unlike Poland, Moscow also J. Somka, I. Samoilovych – «little Russia recognized Cossack autonomy, certain went bankrupt on both sides of the concessions, although far from «Arti- Dnieper river and a very short military cles».Khmelnytskyi. people through many terrible competi- The new left Bank Hetman Ivan tion». In fact Doroshenko, obviously, Samoilovich (net.-1690) should start a saw the main cause of the Devastation. Board for the more difficult conditions Shares his thoughts: «during the current of Konotop (1672) and Pereyaslavl decline and lyadsky powerlessness we (1674) articles which restricted and reg- could liberate them, poles, Podolsky, ulated the powers of the General coun- Volyn Polesie and Lithuanian cities and cils of the Cossack, Hetman and his gov- our Russian land», which means «to ernment1.Samoilovich was forced to take make something that gave the commem- part together with the Cossacks and Rus- orative intent and my predecessor, Bo- sian troops in the war against Dorosh- hdan Khmelnytsky, and return them... enko, with the power to turn his citizen- starovo freedom.» Thus, in the program ship ten regiments of the right Bank part of the Hetman of the Ukrainian state on of the officers. So, at that time the only all its land, overcoming its division «into one who really wanted to adopt Ukrai- two and three». nian people most fully in his rights and About the same vision of the Cos- liberties, preserve democratic institu- sack state and the reasons for Ruins was tions, and achievements of the Cossack at the Zaporozhye Cossack Ivan Sirko state, remained Doroshenko. Their views (to the net.-1681). In «Letter to I. Samoi on the state of Ukraine it is stated in the lovych» in September, 1678, he is also a «Letter to the Cossacks» in March 16762. model of the state Would be considered. In his opinion, «snames Samoylovich Khmelnytsky, «Hetman of our good and preserve the integrity of its ramenta from genuinely titlepage his own country...»3. the Tatar Nachod complete ruin of the However, after he «began to occur fre- remnants of this side of Ukraine, our quent and irregular hetmans and roskana homeland...» Came to the conclusion: nezichov through the engagement of the «Where there is a host to a raft obligasi neighboring monarchs... our poor Fa- your moggie was sure that his sheep will therland, a single little Russia, two parts». Nezichov to Ukraine he had the 1 Тисяча років української суспільно- poles and Muscovites, which led to her політичної думки. У 9 т. – Т. 3. Кн. 2. – К.: Дніпро. – С. 94–98; 118–129. 2 Ibid. С. 133–135. 3 Ibid. – С. 159–162.

№ 9/2017 37 Theory and history of state and law first two, and then three of the Hetman. Samoilovych to liberate Ukraine from This brought, according to.Sulfur, the the yoke of Moscow, his acute dissatis- decline of homeland and «her final des- faction with the «Eternal peace» between olation.» Mishka is silent is the role of Russia and Poland that divided Ukraine Zaporizhia, which contributed to the intend to create a «Little Principality». split in their support of the rebellion, Kolomaksky article 1687. accused M. Pushkar, Vivienne P. I. Briuk- the Hetman of treason», and the terms of hovetsky and dry Winds. Ivan Sirko, the the election of Ivan Mazepa Hetman of letter expresses, obviously, the opinion the new article even more narrowed the of Zaporozhye: «it Seems to us that it legal status of the Cossack state, the would be better for both of you on both rights and freedoms of its people, the sides of the Dnieper to the Hetman to powers of the Hetman: to be «persistent live as brothers among ourselves in love in eternal allegiance»2. Нhe Cossacks and odnodumtsev, for which their ene- got the right to choose and dismiss the mies you would be a terrible and always Hetman, but only with the Royal decree, smagumelis in korista for yourself and it was forbidden relations with other the little Russian of the Common- States, although the Cossacks again wealth». We are talking about the feasi- asked to confirm their old right. The bility of friendly coexistence at this capital was declared Baturyn, where the stage, two Autonomous entities of the king was said to be under Hetman «for Cossack state under the two protectors. the protection and security of his» Mos- Thus, the state thought I. Sulfur were cow regiment. So, Hetman not so much superior to their patrioticly, pragmatism citizens, how many became hostage of and variation in the political programs the regiment. of the successors Khmelnytskyi. Like his predecessors, Ivan Mazepa That I. Samoylovych was not zealous in his domestic policy, little heed to the muscophiles harm Ukraine wanted to be constraints of a signed «Articles» with «snowlady Governor» shall certify «the the tsarist government, continued state- Petition to the General foreman against policy, conducted secret diplomacy. the Hetman.Samoilovych» dated July 7, Events of the Northern war pushed the 16871. In the denunciation include alle- Hetman to the secret relations with Po- gations of Hetman in the desire to be land and Sweden. In his «Speech to the independent in foreign policy, «arbitrari- officials civil and military Cossack ly to own the Ukraine, and «people of Ukraine on the eve of the break with the military orders, that he, and not the Moscow 1708» he justified his change monarchs have served». Despite the bi- of geopolitical priorities»3. We are now, ased content of the denunciation, he brethren, between the two abysses, ready identifies, it seems, And aspiration. 2 Ibid. – С. 297-316. 1 Тисяча років української суспільно- 3 Вивід прав України / М. Грушевський, політичної думки. У 9 т. – Т. 3. Кн. 2. – К.: І. Франко, М. Костомаров та ін. – Львів: МП Дніпро. – С. 287–295. «Слово», 1991. – С. 42–44.

38 Yearbook of ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)... to devour us when we choose the path standing», apparently referring to Yaro- for myself reliable to get around them». slav the Wise and.Khmelnytskyi. Thus, Its discretion Hetman osnovu alternative the political program of I. Mazepa dur- choice for Ukraine: when the victorious ing the height of the Northern war in- Swedish king will overcome the Russian volved the preservation of the Cossack king, according to the will of the winner, state, protection of its autonomy and we «inevitably will be ranked as Poland independence under the protectorate of and given into slavery to the poles... and the Swedish king. However, two main already here and there will not be treaties reasons prevented its implementation: about our rights and privileges...». «How the precaution Hetman of their plans and to allow the Russian Tsar to withdraw diplomacy, which deprived him of the the winner, then distress the hour will support of the officers and Cossacks; the come to us from the king himself...» so, defeat of the Swedish army at Poltava in which of the visible evils choose the 1709. lesser, raises the question Hetman in his The failure of the uprising of Speech, «to our descendants, thrown into I. Mazepa and its transition with the part the slavery of our necrocest, their com- of the officers and Cossacks on the plaints and curses we are not burdened». Swedish forces from joining them on the Assured Hetman officials and in his territory of Ukraine had Ukraine fatal good intentions: he managed to convince consequences, accelerating the attack of the Polish and Swedish kings about «pa- tsarism on Ukrainian autonomy. Peter tronage and the mercy of our Father- rejected the candidacy of the next Het- land.», and the Tsar of great Russia – man – Chernihiv Colonel Paul Polubot- «jewels neutrality, that is, must not fight ko proposed by the Cossacks, in favor of we nor the Swedes nor the poles, nor Ivan Skoropadsky. The king was insti- velikorodny, and shall, together with the tuted and established the procedure for military forces of our own, to stand in adoption by the General Cossack Rada their proper places and to protect their «Articles», the terms of which the Het- own Motherland...». After the future man had received authority to Peter, And pacification of the warring States, only promised the preservation and con- Ukraine receives the status of an inde- firmation of all «liberties» of the Cos- pendent Principality, «with its natural sack. «Reshetylivs’ke pleading articles» riches and, with all the same rights and I. Skoropadsky asked to give legal force privileges as a free nation means». Hard- to the articles, the data predecessors of ly believe the officials on the agreement the king to the former Hetman of Zapor- of Peter i And his boyars on Ukraine’s izhia army. First of all, it was about neutrality, the guarantee of its legal sta- maintaining the powers of the Hetman tus France and Germany. It is, rather, the of the Cossacks «control yourself», to Hetman of the project than the actual personally Royal decrees, without interaction. Referring to agreement with vention of Russian generals and officers, Sweden as a «continuation of long- not to violate the rights of the Cossacks,

№ 9/2017 39 Theory and history of state and law the return of the Zaporozhian host of the colonels, with their officers and cap- artillery, taken by the king of Baturin, tains were elected General councilors the limitation of the power of the Gov- from each of the regiment «a few no- ernor and reducing the number of the table veterans, experienced and highly Russian pledge, the oppression of the distinguished men, to enter the public Cossacks and the like1. So loyal to the Council», the ambassadors from the king Hetman is trying to preserve the grassroots of the Zaporozhye Cossacks. remnants of the autonomy of Ukraine, In this part of the General Parliament state institutions, law and their powers, had the status and importance of the curses I. Mazepa and calls him a traitor. Supreme representative body of the However, the king did not intend to ful- Cossack state, would be a kind of «Cos- fill his promise and the more recent pres- sack Parliament». The convening of the ervation of the rights of the Hetman. «black» tips article of the Constitution Radical revival of the Cossack Re- does not provide, thereby constituional public was celebrated reflections and single legislature in the future restored projects ally Ivan Mazepa Pylyp Orlyk Republic. (1672–1742), who was elected by the Analyzed the article took into ac- Cossacks in Bender Hetman. We are count the negative effects of the second talking in particular about his «Pacts fault of the Board.Mazeppa: the re- and Constitution of laws and liberties stored virtue of the rules of Cossack Zaporizhia army» (1710) and «Conclu- customary law, and most importantly – sion rights of Ukraine» (1712) – sights the trust between the Hetman and the of statist ideas of the eighteenth cen- General foreman by calling and broad tury2. In the «Pacts and constitutions» powers of the General officers ‘ happy. provided that the renewal of the powers In its composition should contain se- of the General Cossack Council and lected in the General Cossack Council Petty officers of the Council in the sys- of the General officers, colonels, inclu- tem of bodies of power and administra- sive, of the General councilors. Parlia- tion of the Zaporizhzhya army. St.6 ment is convened by the Hetman be- enormobowl of convening General tween «sessions» Cossack Parliament, councils in the Cossack Hetman’s resi- in case of need decisions or performing dence three times a year – at Christmas, any urgent matters», the advice of the Easter and holiday Cover. On these tips, Hetman or, in the case of receiving «with a pre-defined duration», on the emails from foreign countries and draft- orders of the Hetman had to meet the ing responses to them, «that there was a secret correspondence» and «damage 1 Тисяча років української суспільно-по the integrity of the Motherland and the літичної думки. У 9 т. Т. 4. Кн. 1. – К.: Дніпро, common good». Glad petty was as- 2001. – С. 191–194. signed to a delegated Supervisory au- 2 Вивід прав України / М. Грушевський, thority over the actions of the Hetman: І. Франко, М. Костомаров та ін. – Львів: МП «Слово», 1991. – C. 45–49. if he does «the opposite of justice that

40 Yearbook of ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)... deviates from the law or harm the liber- after which «without exception, should ties and the threat to the homeland», the be with a clear conscience, rejecting his advisors are entitled to «full freedom of and others’ private interests, without the voice» and to Express reproach Hetman wicked envy and thirst for revenge, to «private», or, in case of necessity – pub- make the right decision...». Hetman «is lic (General) happy «requiring a report endowed with a certain freedom of on the violation of the laws and liberties power and influence», brings «the set of the Motherland.» oath» at the General Council, limited in Another limitation of the Hetman’s his thinking and actions of the General power under article taking into account officers and General councillors: «With- the previous negative experience was out their prior decisions and consent, in the deprivation of the right of the Het- its sole discretion (Hetman) should nei- man to Hetman’s court: guilty (inten- ther begin nor resolved, nor to be». A tional or unintentional) crimes against counterbalance to their power provided the Hetman of honor from among the for the preparation of counselors «for General councilors, or elders, other of- publicly accepted form of corporal oath ficials and ordinary Cossacks shall be of allegiance to the Motherland, honest subject to review by the General court loyalty to the Hetman...». General (Art.7). The following articles of the councilors had the right to demand a Constitution contained extensive recov- report of the Hetman, «but without the ery program in state and public life of profanity and without the slightest harm Republican principles, and management high Hetman’s honor». They them- at all levels, the establishment of mea- selves must «firmly follow the proce- sures of administrative and criminal dure guided by the General regulations responsibility of officials, regulation of (General) Council, and resolutely to income and expenditure of the state oppose any attempts to offend or in- Treasury, the eradication of corruption, fringe upon the weights of the common anti-people fiscal policy, various duties, people.., are required to adhere to the the introduction of a system of effective relevant law, and to show every cour- social protection, and the like. tesy...» to the Hetman. In turn, he «be- Noteworthy under the constitution- longs to their mutually respect, having al mechanisms of checks and balances for military companions, not slaves and in the system of the Supreme bodies of count their assistants...». state power. Thus, the convening of the Thus, the authors of the Constitution General Council is to be granted only sought to strengthen at the constitution- by order of the Hetman to a pre-deter- al level, the restoration of the Cossack mined time, obviously, to avoid ille- state, its full sovereignty, the Republican gitimate «black» Cossack tips with un- form of government within the boundar- predictable solutions. The draft deci- ies recognized during the Khmelnytsky sions of the Council invites the Hetman, with the restoration of the jurisdiction of

№ 9/2017 41 Theory and history of state and law the Zaporozhye Cossacks on all the from the time when «brave Hetman lands that belonged to them. The arti- Khmelnitsky was released from the Pol- cles enshrine the principle of separation ish Cormega suppressed the Cossack of powers into legislative, Executive nation». To the European readers can and judicial, the system of «checks» understand, he writes about the Cossack and «balances». The legislature, the state as a Principality, where his condi- General Cossack Council had a repre- tion and the death of Hetman chose to sentative character, was elected Het- further their princes». «...Cossack na- man, Hetman government, General tion and Ukraine was free», she con- foreman, must come together and work cluded treaties of perpetual peace with according to tradition and procedure. the Turkish Sultan, the Crimean Khan Executive power is personified and was and the Swedish king. And the strongest headed by the Hetman, the Hetman proof of the sovereignty of Ukraine, government, accountable to the Gen- according to P. Orlyk, was a solemn eral Council, on the ground regulatory Union Treaty with the Russian Tsar in and management functions was carried 1654, who, it seemed, was to always out by the regimental and company ad- find balance, freedom and order in ministration. The judiciary veverkova Ukraine. To «the king as faithfully per- General court. Such constitutional pro- formed it, as it was believed by the Cos- visions provided for a comprehensive sacks.» So now there were only «a system of state bodies. The form of shadow of sovereignty» – «vopya injus- government of the Cossack power had tice» oppressors of the Cossacks. «... signs of parliamentary-Hetman of the The Moscow violence... do not give any Republic. The implementation of the legal rights of Muscovites on Ukraine. «Pacts and constitutions» provided that On the contrary, the Cossacks have the «after the happy conclusion of the war». right the right human and natural, one In the «Manifesto» of April 4, 1712, of the main principles of which is: peo- P. Orlik «lets you know the kings, ple always have the right to protest princes, republics and other Christian against oppression and to attract the use States» on the causes of the war against of their ancient rights, when it is the the king of Moscow, the Union with the right time». Swedish king and his goal: to act in ac- Interesting for our contemporaries, cordance with justice and right, allow- the story about the danger to Europe ing each to protect its own business and from Russia in the «Conclusion rights its own target»1. In the «Conclusion of Ukraine»: «for Those that care about rights of Ukraine», the author briefly the interest of the whole of Europe and outlined the history of the Cossack state every state in particular, it is easy to understand the danger to free Europe from this aggressive state». They can 1 Тисяча років української суспільно- політичної думки. У 9 т. Т. 4. Кн. 1. – К.: judge this not only from the examples Дніпро, 2001. – С. 237–239. of history, but also thanks to the ac-

42 Yearbook of ukrainian law State сonception of Ukrainian Hetmans Ermolaev V. (the middle of the xvii–xviii centuries)... quired experience in European diplo- century a valuable source on the history macy. And this was written long before of the Russian state, which reflects their Russia will become «the gendarme of political programs, decisions, and reac- Europe». The Empire remained (the tions to domestic and geopolitical chal- last!) Empire for 300 years... lenges. Thus, the historical sights of statist Published: Вісник Національної академії ideas of Ukrainian hetmans of the sec- правових наук України. – 2016. – № 1 (84). – ond half of XVII – beginning of XVIII С. 43–56.

№ 9/2017 43 V. Rumiantsev, Doctor of Law, Professor of Yaroslav Mudryi National Law University, Corresponding member National Academy Legal Science of Ukraine

UDC 340.15:343.195 SERHII IVANOVYCH ZARUDNYI AND JUDICIAL REFORM 1864

In preparation for the judicial reform gan to prepare for admission to the Uni- 1864 the role of Serhii Ivanovych Zarud- versity, sometimes experiencing signifi- nyi is difficult to evaluate. According to cant financial difficulties, which did not the famous researcher of the reform leave him during his studies. Dzhanshyiev H. A., S. I. Zarudnyi was However, in spite of the difficulties, «the most staunch leader, an ardent in- in 1842 Serhii Ivanovych graduated spirator and a tireless worker, in short, a from the Kharkiv University with the true luminary»1. degree of candidate of mathematics. Serhii Ivanovych Zarudnyi was born The same 1842 year, he arrived in on 17th March 1821 in Kupiansk county Petersburg with the intention of taking Kharkiv province. He came from an old over as astronomer at the Pulkovo Obser- but impoverished Ukrainian noble fa vatory, but the destiny had other plans for mily. him, and instead of the Observato- Since childhood S. I. Zarudnyi stood ry S. I. Zarudnyi was in the Ministry of out for his exceptional abilities, espe- justice. And on 24th April 1843, he was cially in mathematics, diligence, accu- appointed senior assistant to the head racy, strength of character, seriousness clerk, officially becoming a departmental and curiosity. officer. But alive and talented nature of Since he was fourteen years old being Serhii Ivanovych warned him against the all alone, living in a strange city, Kharkiv, danger of becoming a bureaucrat, and S. I. Zarudnyi without any assistance be- vice versa, is closely connected with the creative reform of the judicial system. The first S. I. Zarudnyi collision with 1 Джаншиев Г. А. Эпоха великих реформ. Т. 2 / Г. А. Джаншиев. – М. : Территория бу- the reform of the judicial system took дущего, 2008. – С. 17. place in 1843, thanks to the circular of

44 Yearbook of Ukrainian law Serhii ivanovych Zarudnyi Rumiantsev V. and Judicial Reform 1864 the Ministry of justice on the collection law, separate incidents sought to reduce and compilation of the chiefs of courts to General principles of law, fragmented and prosecutors’ opinions about the practices of law enforcement have made weaknesses of the existing civil proce- the unity, and can say that was one of the dural laws in connection with the pro- originators of the Russian school of posed conversion. Working with docu- practical jurisprudence. Soon he ac- ments sent from the places, Serhii Iva- quired such authority, that the chief pros- novych became interested in new views ecutors and senators began to consult on judicial-legal life, that opened before with him. him all its diversity and complexity, Active creative position of Serhii which brought him a huge advantage in Ivanovych provided him with access to further work to reform the judicial sys- active participation in the work of the tem and legal proceedings. «this was my forthcoming reform of the judicial sys- school, – wrote in his memoirs S. I. Za- tem which began in 1843. Although rudnyi, – I was interested in the question work in this area proceeded very slowly of the imperfection of our laws: and ex- due to conservative position of the Min- actly out of these disadvantages, I began ister of justice, the earl V. N. Panin, who the study of the laws themselves»1. believed even the very moderate propos- It was very important school for als by the chief manager of the II Depart- S. I. Zarudnyi and incomparably more ment of his Imperial Majesty’s Chancel- fruitful than the then University law lery of the earl D. N. Bludov are over- school, which was engaged in comment- bold and even radical. After a long and ing on the existing legislation, erecting fruitless confrontation between Panin into a dogma of almost every article of and Bludov in 1852 at the II Department the Laws, not even daring to think about of the Office was formed the Committee their critical analysis2. Working on the to draft civil proceedings, and Serhii Iva- generalization of the reviews, S. I. Za- novych was appointed as its clerk. De- rudnyi at the same time acquainted with spite the modest title, S. I. Zarudnyi sig- foreign legislation, comparing it with nificantly influenced the work of the national laws, travelled abroad, and for Committee and tried to bring in the example, during a trip to Paris he ac- civil process are all possible, for that tively studied French jurisprudence. time, innovations and improvements. Already at that time the activity of A huge help in the quest of S. I. Za- S. I. Zarudnyi is characterized not mere- rudnyi to reform the judicial system and ly as a legal practitioner, but as a legal legal proceedings was his direct acquain- author. He tried to use the historical tance with the situation on the ground as method to understand the essence of the the clerk of the Committee, headed by the prince V. I. Vasylchykov and estab- 1 Сборник Правоведения. ІІІ. – С. 3. lished to investigate the abuses commis- 2 Джаншиев Г. А. Эпоха великих реформ. sariats during the Crimean War. The im- Т. 2 / Г. А. Джаншиев. – М. : Территория бу- дущего, 2008. – С. 238. mediate awareness of the situation in the

№ 9/2017 45 Theory and history of state and law

South of Russia showed S. I. Zarudnyi such revolutionary innovations as pub- the ugly picture of what the huge size licity and verbalness of the process. reached embezzlement and bribery in the However, by the end of the reign of military, and what a terrible state has the Mykola I a project of reforms of civil court and the office during the domina- procedure were prepared. Although the tion of administrative arbitrariness and overall judicial policy of Mykola I, can silence society. All this strengthened the be characterized as pre-reform3. determination of the S. I. Zarudnyi to Despite the coming to power of the work towards the reform of the judicial liberal Alexander II, the mood in ruling system1. circles of that time were vague, often With support of the State Secre- walked in the footsteps of Mykola’s re- tary V. P. Butkov S. I. Zarudnyi was gime and was not always progressive. As appointed as an assistant Secretary of a consequence, the discussion of the the State Council in April 1857. mentioned draft civil proceedings com- V. P. Butkov realizing the inevitability menced on 15 November 1857 from of judicial reform sought to update the reading a Supreme decree by which the state of the office with young, new- State Board was forbidden to arise ques- minded staff and, therefore, invited Ser- tions about the jury, legal profession and gey Ivanovych as a connoisseur of publicity of the process. civil procedure, a draft of which was In this situation the developers of the made with his active participation and reform remained nothing but be content has already entered the discussion of with palliative measures of a purely the State Council. From this point technical nature, and wait for the judicial S. I. Zarudnyi became even closer to the reform in democratic and rational prin- case of judicial reform, becoming its ciples of better times that came only with driving force and leader2. the abolition of serfdom. Despite his modest position, S. I. Za- Being an ardent supporter of reform- rudnyi actively participated in the work ing the judicial system, S. I. Zarudnyi of the Committee and significantly af- avoided extremes in its development. So, fected its activity and tried to introduce he acted as an opponent of prince all possible improvements, which were D. A. Obolenskyi, who was proposed in line with the spirit of the time, to the during the reform proceedings to take all civil process, but because of the opposi- French proceedings, which was in force tion V. Panin he could not implement in the Kingdom of Poland. Serhii Iva- novych strongly objected to such bor- 1 Зарудный С. И. Письмо опытного чинов- rowing, and his position affected mem- ника сороковых годов младшему брату, по- bers of the State Council, making them ступающему на службу / С. И. Зарудный // look deeper at the problem and put the Русская старина. – 1899. – No 12. 2 Джаншиев Г. А. Эпоха великих реформ. 3 Захаров В. В. Судебная политика Нико- Т. 2 / Г. А. Джаншиев. – М. : Территория бу- лая І / В. В. Захаров // История государства и дущего, 2008. – С. 242. права. – 2012. – No 3. – С. 46–47.

46 Yearbook of ukrainian law Serhii ivanovych Zarudnyi Rumiantsev V. and Judicial Reform 1864 question of judicial reform more broad- administrative authority and police func- ly. In the result, it was decided not blind- tions peculiar to the judiciary, defended ly adopt foreign models, and to first de- the principle of adversarial process as velop the basic principles of reform, the conditions of its implementation, the taking into account national and foreign introduction of the legal profession. experience, and receive to them a pre- S. I. Zarudnyi stood for the unity of the liminary finding of the State Council and appeal as the event, which contributed then referred to the local judicial institu- to a uniform understanding of laws and tions. According to this approach in re- elimination of judicial arbitrariness. forming the court took part the public, to The fundamental position of the what S. I. Zarudnyi attached great im- S. I. Zarudnyy in reforming the judicial portance. He was the initiator that the system in Russia was closely connected comments received from the places have with the necessity of drastic reform of to be printed and distributed to the mem- the social structure of society in general. bers of the State Council. In addition, According to S. I. Zarudnyi, without a such mailings were made to scientists- radical solution of the peasant question lawyers and specialists, which greatly could not be made rational judicial re- expanded public participation in judicial form. In his opinion, serfdom had not reforms. This approach to the reform of need in a fair court. These judges were the judicial system was gradually infil- only landowners. Over the peasants trated by elements of the publicity of the reigned Supreme arbitrary court. The trial, legal profession, separation of the situations of the February 19, 1861 broke judicial government from administrative these rules. Then in Russia there was an government etc. urgent need in the fast and fair court. Despite all these efforts of S. I. Za- And to summarize nearly two decades rudnyi work on judicial reform during of experience in the implementation of 1857–1861 was conducted slowly and the judicial reform, in 1885 Serhii Iva- hesitantly. But the achievements made novych wrote: «if in 1861 did not place at that time, was not in vain. Exactly at the liberation of the peasants with land, that time Serhii Ivanovych paid much in any case would not have been issued attention to the generalization of the Eu- legal statutes in the form in which they ropean experience. In these years he appeared on November 20, 1864»1. made several trips abroad to study the In 1861 S. I. Zarudnyi finally got a experience of the European judicial sys- real opportunity to implement his plan tem and legal proceedings, and has pre- for serious judicial reform in Russia, pared for publication a number of special built on a rational basis. Serhii Iva- works on the process. At that S. I. Zarud- novych seeing the need in Russia’s lib- nyi continued to speak out against the eral transformation, in a hurry to «strike blind copying of foreign experience. In while the iron is hot» and to liberate the his works, Serhii Ivanovych played a passionate champion of deprivation the 1 Русская старина. – 1885. – No 5.

№ 9/2017 47 Theory and history of state and law judicial system from faults, which its provisions on civil and criminal proceed- has, and put in it innovative rational ings». Among the basic principles that democratic principles. were the basis for judicial reform were: In October 1861 S. I. Zarudnyi pre- complete separation of the judicial au- pared for D. Bludov a report analysing thority from the legislative and the ex- the difficulties that have arisen in the ecutive, the irremovability of judges, consideration of his own, Earl D. Bludov independence of the legal profession, the and projects, compiled at different times decision of criminal cases, including po- and inconsistent among themselves. On litical, jury etc. Serhii Ivanovych has 24th of October 1861 came in a Supreme specifically supported the proposals of decree of establishment at the State Of- the Committee member D. Rovinskyi to fice the special Committee headed by replace dumb estates jurors with jury for I. Zarudnyi and attached to it famous decision on the question of guilt, besides legal authors and practitioners1 to extract were given a detailed historical sketch from D. Bludov’s drafts «major basic of trial by jury in Europe with in-depth principles». At the end of 1861 the Com- analysis of the arguments for and against mittee completed this work, which made this institution in relation to the Russian it obvious that those «basic principles» realities. Among the works that have is not sufficient to carry out a compre- been prepared by S. I. Zarudnyi of these hensive judicial reform. Prince P. Haha- problems, it is important to point out: rin, who replaced D. Bludov on a post of «General considerations on the composi- the Chairman of the State Council, in tion of the criminal court and a special 1862 received the command of Alexan- jury for a particular kind of Affairs in der II, who proposed to outline the con- England, France and Italy». Such atten- siderations of the State Office about the tion S. I. Zarudnyi to the jury is not ac- main principles, according to which the cidental. The fact that the issue of the judicial system has to be converted tak- jury was perceived ambiguously at that ing into account studies of science and time in Russia. On the one hand, there experience of European States. This act were allegations that the Russian people removes the prohibition on implementa- have no living sense and consciousness tion in Russia of certain institutions of of the right that they confuse the law the European judicial law, such as trial with the orders of his superiors, often by jury, and was able to compile a coher- associate the offender with the poor and ent and rational plan for the transforma- because of that Russian society is not yet tion of the court. The Committee, the ready for the introduction of trial by jury. soul of which was S. I. Zarudnyi, within On the other hand, there was a view that six months had completed the work and the jury is contrary to the autocratic sys- presented «Considerations and Basic tem of Russia, as it is an interfering of the society in the Affairs of government. 1 История российского правосудия / под S. I. Zarudnyi was the enemy of both ред. Н. А. Колоколова. – М. : Закон и право, 2009. – С. 238. these biases. He developed a theory on

48 Yearbook of ukrainian law Serhii ivanovych Zarudnyi Rumiantsev V. and Judicial Reform 1864 the basis of which there is a border be- reform Earl D. Bludov and resistance tween despotism where everything is from the Minister of justice Earl V. Panin, dominated by the will of the ruler, and S. Zarudnyi in the shortest possible monarchy, which although is adminis- time – two or three months – managed tered by the will, but on the basis of to turn things around so that in 1862 it properly and permanently the existing was put on a rational basis. From that laws. Based on this, Serhii Ivanovych moment the fate of the future transfor- and his associates argued that the jury mation of the judicial system was solved and other key institutions of the judi- and has opened access to all the major ciary, such as publicity, separation of institutions of the European judicial law court from administration, although they for Russia. have a definite political character, but Considerations of State Office was they limit the arbitrary of the administra- notified by S. I. Zarudnyi to State Coun- tion and it is compatible with a monar- cil and the royally approved on 22nd of chical form of government where the September 18622, after which it was sent law is respected1. to academic lawyers and practitioners All of these efforts of S. I. Zarudnyi and published in the Collection of legal- were not in vain, they achieved two im- izations and orders. Their content both portant objectives: first, the D. Bludov’s in Russia and abroad was perceived drafts change into legislative material definitely – Russia is on the verge of the and became the basis for the prepara- introduction of judicial institutions that tion of new drafts in a single compre- will not concede to the European. hensive plan, and secondly, from the After that the problem moved to the management job was eliminated elder- practical level. For drafting legal regula- ly Earl D. Bludov, who began to incline tions in accordance with the «Basic pro- to some liberal ideas, but could not lead visions» under the State Office was such a large and important business. formed a new Committee. It was com- Because of this, the Committee, which posed of three departments: civil justice, was carried out by S. Zarudnyi, at the criminal justice and judicial system. end of 1861 had completed its work. Technically, its head was appointed But it was obvious that not enough V. Butkov, and under the headship of the drafts for a comprehensive and a deep S. Zarudnyi was a branch of civil pro- reform of the judicial system. Skillfully ceedings, but Serhii Ivanovych worked playing on the contradictions between with tireless energy in all departments the indecision of the initiator of judicial and especially in General assemblies and was the life and soul of the Committee. 1 Памятники российского права : в 35 т. Serhii Ivanovych tried to get the Т. 13: Судебная реформа 1864 года в Россий- Committee all progressive that was de- ской империи / под общ. ред. д-ра юрид. наук, проф. Р. Л. Хачатурова ; д-ра юрид. 2 История российского правосудия / под наук, проф. А. А. Демичева. – М. : Юрлитин- ред. Н. А. Колоколова. – М. : Закон и право, форм, 2015. – С. 87–88. 2009. – С. 238.

№ 9/2017 49 Theory and history of state and law veloped by the legal science and practice tions on the introduction of legal regula- at the time. He repeatedly subjected to tions. processing of the drafted articles, pas- And here the role of Serhii Ivanovych sionately arguing and trying to explain was very significant. The fact that the ma- the matter from all sides. Working with jority of the members of the Committee the proofs he strived to perfect each ar- inclined to the view of the Ministry of jus- ticle. tice, which proposed to open a new judicial Less than a year the Committtee institution not at once and everywhere, but drew up a draft legal regulations, adding gradually, citing practical difficulties. to them the large scientifically motivated Fearing typical for Russia of rapid explanatory notes (18 000 pages). Draft cooling to reform S. I. Zarudnyi sup- legal regulations were sent to ministries ported by members of the Commit- and judicial institutions to give their tee M. A. Butskovskyi and O. I. Kvist feedback to and the comments received strongly insisted on the introduction of from them were given by S. I. Zarudnyi Statutes in all provinces. to State Council, which accepted them, Finishing work on judicial reform and on 20th of November 1864 Judicial S. I. Zarudnyi has regulated the prepara- Statutes were signed by Alexander II. tory material, «the Case of the transfor- The contribution of S. I. Zarudnyi in mation of the judiciary in Russia», divid- the development of the judicial reform ing it into 74 volumes. In addition, he symbolically was evaluated by the rendered a great service to the Russian legal science and judicial practice and to Chairman of the Committee the Earl the Russian social development in gen- V. Butkov, who on 22nd of November eral, having issued the classic work «the 1864 sent to S. I. Zarudnyi first printed Judicial Statutes of the 20th of November copy of the Judicial Statutes, with a note: 1864 and the arguments on which they «the first printed copy of Judicial Stat- are based» in 18662. utes is awarded to Serhii Ivanovych Za- Shortly after the introduction of legal rudnyi as to the person to whom the Ju- regulations came as a result of the reac- dicial reform in Russia is most of all 1 tion, unfavorable times for both the new owes its existence» . court and its chief reformer S. I. Zarud- After the approval of legal regula- nyi because of the replacement of tions S. I. Zarudnyi was finally appoint- D. M. Zamiatin on a post of the Minister ed by the Secretary of the State Council, of justice by K. I. Palen, who was hostile took an active part in the drafting of ad- to the Basis of Legal Regulations. ditional laws to them and became part of S. I. Zarudnyi as a faithful guardian of the State created under the office of the the «basic principles» of judicial reform new Commission for drafting the regula- 2 Судебные уставы 20 ноября 1864 года 1 Джаншиев Г. А. Эпоха великих реформ. с изложением рассуждений, на коих они ос Т. 2 / Г. А. Джаншиев. – М. : Территория бу- нованы : в 2 ч. – СПб. : Изд. Гос. Канцелярии, дущего, 2008. – С. 248. 1866.

50 Yearbook of ukrainian law Serhii ivanovych Zarudnyi Rumiantsev V. and Judicial Reform 1864 and as state Secretary of the Department Fear of the authority of S. I. Zarud- of law had a possible opposition to the nyi was so large that he up to the end of reactionary intentions of the new Minis- his life never had the opportunity to par- ter. Due to the authority that Serhii Iva- ticipate in the activities of the Supreme novych has by members of the State regulator of the new court, the creation Council, the proposals were positively of which he took such a hot and fruitful received, and this further increased his participation. reputation as a «liberal», which he had However, loving a great thing of along with other staunch defenders of publicity of court, S. I. Zarudnyi could judicial reform. not resist the desire at least indirectly to January 1, 1869. with the help of ef- penetrate into the temple of a new trial, forts of the reaction S. I. Zarudnyi was to which the new leaders have closed removed from the legislative work and access to him. He ran for honorary mag- appointed as a Senator, and not to the istrate in Kupiansk district, Kharkiv Cassation Department, where he more province at the location of his family than anyone had a right to be because of estate. Here he spent his usual summer his past experience and where his knowl- vacation, during which carefully attend- edge would be the most useful for reason- ed meetings Kupiansk Congress of mag- able interpretations of Legal Regulations, istracy. but in the old Department – boundary. Sending S. I. Zarudnyi away from the State Office aroused sympathy Published: Вісник Національної академії among the many members of the State правових наук України. – 2016. – № 1 (84). – Council. С. 57–65.

№ 9/2017 51 Ie. Streltsov, Doctor of Juridical Sciences, Doctor of Theology Professor, Correspond- ing Member of the National Academy of Legal Sciences of Ukraine, Honored scientific worker of Ukraine, Scientific Secretary Southern Regional Center National Acade- my of Legal Sciences of Ukraine, Head of Criminal Law Chair National University «Odessa Law Academy»

UDC 340.132.8 THE MAIN OBJECTIVE OF LEGISLATION: TO GOVERN RELATIONS OR TO REGULATE GOVERNANCE OF RELATIONS? SOME REFLECTIONS

Problem statement. In the legal lit- lation» and others are used virtually in erature and practice, very oftenfor the the same sense. The difficulty with this determination of a nature and character- approach is that it may allow different istics of legal systematization of social interpretations: these concepts may be relations, the concept «legal gover- explained as synonymous, as parallel nance» is used1. Mechanism of legal concepts, as antonyms, and even some- governance is considered as a logically what paradoxical componentsof each consistent, dynamic system of unified other etc.3 Such tendency can be traced legal means necessary and sufficient to on all levels: ingeneral theory, in inter- ensure effective legal governance of so- branch and in branch sectors. It is worth cial relations 2. adding that not with standing the schol- At the same time fairly similar con- arly relevance of the discussion its so- cepts such as «legal effect», «legal regu- called «exaggeration» may have com-

1 Теорія держави і права: підручю для 3 Наприклад, вважається, що «правовий студю юрид. вищ. навч.закл. [Текст] / вплив» та «правове регулювання» є сторо- О. В. Петришин, С. П. Погребняк, В. С. Смо- нами так званого виразу процесу правової родинський та інш.; за ред. О. В. Петриши- регламентації. Див.: Махаев Р. Е. Правовые на. – Х. : Право, 2014. – 134 с. – 368 с. основы Российского государства: учебник 2 Общетеоретическая юриспруденция: для студентов вузов, обучающихся по спе- учебный курс: учебник [Текст]/ под ред. циальности «Государственное и муници- Ю. Н. Оборотова. – О. : Феникс, 2011. – пальное управление» [Текст]/ Р. Е. Махаев. – С. 37. – 436 с. М.: ЮНИТИ-ДАНА, 2007. – С. 188. – 315 с.

52 Yearbook of Ukrainian law The main objective of legislation: to govern Streltsov Ie. relations or to regulate governance... plex implications for other important tivities the legal effect is primarily based aspects of legal life, including: law-mak- oneconomic, political, ideological, cul- ing processes, practical application of tural and other conditions of a society- law etc. development1. The latter statement needs Thepurpose of this paper isto de- to be noted since it will be referred to fine and systematize these concepts, toi- further in this paper while providing an dentify their content, toshow their influ- analysis of the essence of law. Whereas, ence on the content of legislation, as well the legal governance is a process of or- as to provide a description of peculiar ganizational and legal systematization, properties of the employment of the con- development and protection of public cepts on different levels. relations. Analysis of previous research into The initial differentiation of both the topic. Generally, to date there has concepts will allow not solely to system- been sufficient research into the issue of atize them, but through comparison to legal governance conducted by Ukrai- identify more specifically their content. nian scholars. Among them are: The investigation into the issue should A. V. Zaichuk, N. M. Onishchenko, start with the philological (linguistic) Y. M. Oborotov, O. V. Petryshyn, explanation of theconcepts. In a general P. M. Rabinovich, V. S. Smorodinsky sense, the word «effect» meansa result and others. Howeverthere is still a need or consequence of an action or other in a broader research and a greater atten- cause.While the term «governance» tion to particular aspects of the topic stands for a system for arranging, orga- such as characterization, differentiation nizing and setting up something. The pur- and systematization of the concepts «le- pose of the governance is to place some- gal governance», «legal regulation», thing in a certain framework, relevant «legal effect». boundaries.In short, effect is a result, and Paper main body. Overall the topic governance is a process, a tool etc. in question is complex and multifaceted; From law perspectives the legal ef- therefore this paper focuses on itssome fectis seen as effective organizational particular points. and legal action of rules regarding to public relations, which is carried out by It should be pointed out that most legal means (law norms, acts of law ap- frequently the concepts «legal gover- plication), and other legal phenomena nance» and «legal effect» are considered (legal consciousness, legal culture, law- as having different meanings. The legal making process, etc.).In contrast, legal effect is commonly recognized as a com- governance is the arrangement of public plex process of the law impacton public relations; their legal management, pro- life, consciousness and people’s behavior through direct and indirect legal 1 Юридический научно-практический means. Being a traditional constituent словарь-справочник (основные термины и element of the social governance and понятия) [Текст]/О. Ф. Скакун, Д. А. Бонда- рева; под ред. О. Ф. Скакун. – Харьков: Эспа- one of the pivotal parts of a state’s ac- да, 2007. – С. 267–268.

№ 9/2017 53 Theory and history of state and law tection, development etc. that is provid- Considering the legal effect and the ed by government equipped with law legal governance, and furthermore other and a collection of legalmeans. It should components of social governance, one be emphasized that government ensures should draw special attention to the im- the vital functions of societyas a system, portant essential factor that characterizes through the use of power, and law – law in a particular state, in a group of through the normative governance1. similar states or, in other words, helps While legal governance is always associ- more clearly understand the nature of a ated with the establishment of specific specific law (national law system). rights and obligations of subjects, the Awareness of the fact of conformity implementation of legal norms etc., the of essence of law in a particular state legal effect is characterized by another (group of states) with its social system2 attributes. For example, the legal effect, allows to identify more clearly, at least relatively speaking, unlike the legal gov- on the expert level, the interests of what ernance, is not always associated with particular group, social class, specific 3 the establishment of rights and obliga- class the whole population law protects, tions, not always works through legal or in other words, according to the mod- relations etc. Legal governance is to a ern definition – in what way the law con- certain extent a specific effect, which is siders the existing real social stratifica- 4 carried out by a special normative regu- tion . Exploration of this aspectmust lator (normative governor) – law, where- reveal who, figuratively speaking, «cre- as legal effect is a more general social, ates» law in a particular state and to spiritual andideological influence of law whom, accordingly, it should serve. In on social processes taking place in the this regard one should take into account country.When it comes to legal gover- that the dominant group of citizens virtu- nance, relations between subjects ac- ally in any developed society always quire legal forms within which the state indicates measures of the required be- 2 Лейст О. Э. Сущность права. Пробле- havior. In this regard, legal governance мы теории и философии права [Текст] / О. Э. Лейст. – М. : ИКД «Зеркало-М», 2002. – is considered specific and such as being С. 153. – 288 с. focused on the enforcement of legal 3 Стрельцов Є. Л. Відповідальність за спе- rules. куляцію при капіталізмі: міф або реальність! In summary, there is a number of fea- [Текст]/ Е. Л. Стрельцов// Юридичний вісник України. – 2016, 26 серпня – 1 вересня. – № 34 tures that allow making a distinction be- (1102). tween the concepts «legal effect» and 4 Наприклад, у сучасній соціології кажуть «legal governance». про існуючі в суспільстві певні класи як про сукупність людей, які мають схожі життеві можливості, опосередковані доходом, пре- 1 Теорія держави і права. Академічний стижем і владою. Див.: Типы и виды страти- курс: Підручник [Текст] / за ред. О. В. Зай- фикации [Электронный ресурс] – Режим чука, Н. М. Оніщенко. – К. : Юрінком Інтер, доступа: www.grandars.ru/college/sociologiya/ 2006. – С. 292–295. tipy-stratifikacii.html – Название с экрана.

54 Yearbook of ukrainian law The main objective of legislation: to govern Streltsov Ie. relations or to regulate governance... seeksto maintain (acquire) the economic vided by the state3.Such approach makes and political power1. This state of affairs it possible to consider this issue in detail. allows not solely taking into account The initial phase of the study allows con- external factors, but understanding the sideringthat legal regulation «deserves» essence and trends of legal effect in its a broader definition, especially on inter- broader sense. branch and in branch levels. It is be- Related to the analysis is the concept lieved that legal regulation is not always of «legal regulation» which requires de- the process of normative support. Under- finingin terms of the strict sense and in standing the legal regulation in a broad- comparison with the term «legal gover- er sense allows not onlyanalyzing the nance». Moreover, the complexity of legislation, but also identifying the exist- such a definition is not just «confusion» ing or credible approaches to creation, with the use of the term, which was not- or cancellation, or amendment the legis- ed earlier in the paper. Thedifficulties are lation, revealing the correlation of exist- added by the fact that to date there has ing laws and legal doctrines or existing been little research into the concept of practice. This also allows to compare «legal regulation», its essence and fea- legislation in force (the normative basis) tures. to the law (the normative basis) of for- Some researchers have offered solid eign countries. Analysis of legal regula- «tips»regarding the concept of «legal tion may provide with the evidence of regulation». For instance, it is suggested interaction between provisions of na- that, based on the provisions of the gen- tional legislations (the normative basis) eral theory of law, legal regulation is the and international instruments. Further- so-called consolidation ofobjective law2. morethe study may support in identify- Objective law is a system of formally ing problems and contradictions that binding common rules of conduct that exist in the current legislation. Overall, have been established or sanctioned by this approach may contribute to formula- the state; that express the will of the tion of more qualitative proposals for the dominant part of the socially inhomoge- law improvements in broad terms. neous society; are aimed to regulate so- Understanding legal regulation in cial relations in accordance with the will this way allows focusing attentionon and general social needs, and are pro- some very important points. It is assumed that regarding the certain group of «specific» public relations it is irrel- 1 Рабинович П. М. Социалистическое пра- evant to employ the concept of «legal во как ценность [Текст]. Издание 2-е, стере- отипное. / П. М. Рабинович. – Одеса: «Юри- governance», for example, when ad- дична література», 2006. – С. 58. – 168 с. dressing international and intrastate- 2 Теорія держави і права: підручник для студ. юрид. вищ. навч. закл. [Текст] / 3 Рабінович П. М. Основи загальної теорії О. В. Петришин, С. П. Погребняк, В. С. Смо- права та держави. Навч. посібник [Текст]. родинський та ін.; за ред. О. В. Петришина. – Вид. 9-е, зі змінами. /П. М. Рабінович. – Х. : Право, 2014. – С. 135. – 368 с. Львів : Край, 2007. – С. 87. – 192 с.

№ 9/2017 55 Theory and history of state and law armed conflicts. Undoubtedly, law plays theoretical level the Constitution of a pivotal role in such cases, however one Ukraine is viewedas the legal base (high- should be careful with overestimating lighted by E. S.) for the adoption of potentials of law in managing difficult, other laws and forthe governance of nu even tragic events. Many other instru- merous social relations (highlighted by ments may address these challenges, and E. S.) which are based on the system of law creates only the necessary legal base the state power organization, including for it. For that reason in this and other those arising between public authorities similar cases, the law should take a role and a society,an individual and a citizen1. of legal regulation. In more general terms, it is claimed that A special reference to the action of the Constitutional provisions, in contrast law on a branchlevel, allows more pre- to norms of other branches of law, go cise study of other provisions that are vern (highlighted by E. S.) a specific considered traditional while recognizing sphere of social relations2, and protect the fundamental problems of legal regu- (highlighted by E. S.) the most important lation and tasks of legislation. Explora- and general political and legal public tion of this topic reveals some proble- relations3. maticissues. Amongst them are, for in- Similarly, substantive branches of stance, lack of unity in identification of laws that are subordinate to the Consti tasks of thesectoral legislation, of a role tution employ the same general ap- of a particular area of legislation in car- proachwith regard to appropriate social rying out these tasks etc. Evidently, each relations. For instance, Civil Code of branch of law has its tasks, however a Ukraine, as a «representative» of private common methodological approach to the law legislation, in provision «Relations identification of objectives of a particu- governed by civil legislation» (art. 1) lar area of law, challenges of the entire states, in paragraph 1, that the civil leg- system of national legislation should be islation governs (highlighted by E. S.) uniform in essence, since it facilitates individual nonproprietary and proprie- improvement of a system of the national legislation and its single elements. 1 Конституція України та її розвиток. In this regard, turning to the Ukrai- Поняття. Предмет і структура Конституції [Електронний ресурс] – Режим доступу: nian national legislation one should con- http://pidruchniki.com/1281041946859/pravo/ sider provisions of the Constitution of konstitutsiya_ukrayini_rozvitok. – Назва Ukraine stating, for example, that the з екрану. state (government): «ensures protection 2 Конституційне право України [Текст]: Підруч. для студ. вищ. навч. закл./ за ред. (highlighted by E. S) of rights of all В. П. Колесніка та Ю. Г. Барабаша. – Х.: Пра- property rights holders and economic во, 2008. – С. 5. operators» (Article 13);ensures environ- 3 Задорожня Г. В. Конституційне право mental safety and maintenance of eco- України [Текст]: підручник / Г. В. Задорожня, logical balance» (highlighted by E. S.) Ю. А. Задорожний, І. М. Сопілко. – К.: Вид- во Нац. авіац. ун-ту «НАУ – друк», 2010. – (Article 16) etc. At the same time, on the С. 9.

56 Yearbook of ukrainian law The main objective of legislation: to govern Streltsov Ie. relations or to regulate governance... tary relations (civil relations), which are Article 1 «Relations governed by the based on the legal equality, free will and Budget Code of Ukraine» of the Budget property independence ofsubjects1. Code of Ukraine stipulates that the Code At the same time, Family Code of governs (highlighted by E. S.) relations Ukraine in Article 1entitled «The task of arising in the process of drafting, review, the Family Code of Ukraine» states that approval, execution of budgets, report- the Code «defines(highlighted by E. S.) ing on their implementation and control principles of marriage, individual nonpro- over compliance with budget legislation prietary and proprietary rights and obliga- and issues of liability for infringement tions of spouses, grounds for the emer- (highlighted by E. S.) of budget legisla- gence and the content of individual non- tion. The Code also sets forthlegal basis proprietary and proprietary rights and (highlighted by E. S.) for formation and responsibilities of parents and children, payment of state and local debt4. adoptive parents and adopted children, Code of Ukraine on Administrative other family members and relatives»2. Offences in its Article 1 stipulates that Analysis of the laws in the sphere one of the objectives of the Code is pro ofpublic law system also shows the lack tection (highlighted by E. S.) of rights of uniformity in the declaration of chal- and freedoms of citizens, property, con- lenges set forth in the laws. Article 1 of stitutional system of Ukraine, the rights the Economic Code of Ukraine «Subject and interests of enterprises, institutions of governance» reads as follows: «Code and organizations, the established law 5 sets forcebasic principles (highlighted order, rule of law . by E. S.) of economic activity in Ukraine Article 1 of the Tax Code of Ukraine, and governs (highlighted by E. S.) eco- entitled «Scope (highlighted by E. S.) of nomic relations arising between eco- the Tax Code of Ukraine» stipulates that nomic entities, these entities and other the Code governs relations arising in the participants of economic relations in the process of organization and carrying out № 18, № 19–20, № 21–22, ст. 144), у ред. від of economic activities3. 01.08.2016 [Електронний ресурс] – Режим доступу: http://zakon4.rada.gov.ua/laws/show/ 436-15 – Назва з екрану. 1 Цивільний кодекс України (Відомості 4 Бюджетний кодекс України (Відомості Верховної Ради України (ВВР), 2003, № 40– Верховної Ради України (ВВР), 2010, № 50– 44, ст. 356), в ред.11.06. 2016 р. [Електронний 51, ст.572), у ред. від 11.06. 2016 [Електронний ресурс] – Режим доступу: http://zakon4. ресурс] – Режим доступу: http://zakon4. rada.gov.ua/laws/show/435-15 – Назва з екрану. rada.gov.ua/laws/show/2456-17. – Назва з ек- 2 Сімейний кодекс України (Відомості рану. Верховної Ради України (ВВР), 2002, № 21- 5 Кодекс України про адміністративні 22, ст.135), у ред. від 08. 06. 2016 р. [Елект правопорушення (Відомості Верховної Ради ронний ресурс] – Режим доступу: http://za- Української РСР (ВВР), 1984, додаток до kon4.rada.gov.ua/laws/show/2947-14. – Назва № 51, ст. 1122), в ред. від 27. 07. 2016 [Елект з екрану. ронний ресурс] – Режим доступу: http://za- 3 Господарський кодекс України (Відомо- kon4.rada.gov.ua/laws/show/80731-10. – Назва сті Верховної Ради України (ВВР), 2003, з екрану.

№ 9/2017 57 Theory and history of state and law collection of taxes and fees, including an tives, although is an element of the ge exhaustive list of taxes and duties im- neral system of national legislation. posed in Ukraine and the procedure of Hence, laws in a given national system their administration, taxpayers and du- should posses at least common coordi- ties, their rights and duties, competence nated goals and objectives. Second, de- of regulatory authorities, powers and spite the differences in definition of ob- duties of its officers in the performance jectives of legislation the term «legal of tax control and liability for violation governance» is set forth as a sole or one of tax laws.This Code defines the func- of the objectives virtually in all the laws, tions and the legal framework of regula- which, we believe, is burdensome for the tory bodies specified in paragraph 41.1 laws. of Article 41 of the Code»1. Recent discussions on issues of legal Part 1 of Article 1 of the Criminal governance more and more frequently Code of Ukraine «Objectives of the have concerned about the «political Criminal Code of Ukraine» states the will» aspect. This is explained by the Code’s task asa legal support for the fact that, notwithstanding the qualitative protection of the rights and freedoms of legislation, legal governance in many a individual and a citizen, public order respects depends on the implementation and public safety, the environment, the of laws. It worth emphasizing that the constitutional system of Ukraine from laws create«solely» necessary legal base, criminal attacks; providing peace and the legal «prerequisite» for exercising security and prevention ofcrimes2 [21]. the governance. In this regard, the legis- It should be noted that solely this Code lation represents a legal form, or rather mentions the legal support as the objec- the legal regulation of legal governance, tive of criminal laws. which operates on this basis. The preliminary exploration of the Summing up, it should beunderlined topic has allowed making important that, criminal legislation seems to be findings. First, each of the branches of more closely connected with these con- laws that have been analyzed, has its, siderations. In particular, Part 1 of Arti- figuratively speaking, «personal» objec- cle 1 of the Criminal Code of Ukraine identifies its objective as «legal support» 1 Податковий кодекс України (Відомості or, in another words, a legal regulation. Верховної Ради України (ВВР), 2011, № 13–14, All other substantive branches of laws № 15 – 16, № 17, ст. 112), в ред. від 01. 08. 2016 are viewed as not being precise enough [Електронний ресурс] – Режим доступу: about their objectives. http://zakon4.rada.gov.ua/laws/show/2755-17. – Назва з екрану. Conclusion. Concepts «legal effect», 2 Кримінальний кодекс України (Відомо- «legal governance», and «legal regula- сті Верховної Ради України (ВВР), 2001, tion» are constituent elements of a single № 25–26, ст. 131), в ред. від 01.05.2016 [Елект «chain» of social governance. At the ронний ресурс]. – Режим доступу: same time, each of them has its meaning, http://zakon2.rada.gov.ua/laws/show/2341-14. – Назва з екрану. definition, characteristics, mission etc.

58 Yearbook of ukrainian law The main objective of legislation: to govern Streltsov Ie. relations or to regulate governance...

However, differences between these tive) framework for the organization of concepts should break neither the exist- the legal process, which leads to a cer- ing relationship between them nor the tain result. Based on this consideration subordination. It is offered to put these in the process of making law and im- types of concepts in the «chain» in the proving existing laws, it is possible to following order: «legal effect» as the establish certain uniformity in defining most general concept which aims to objectives of Ukrainian legislation, «achieve» a certain result; followed by which in its turn will facilitate its im- «legal governance» – the process of provement. achieving an appropriate (precise) Published: Вісник Південного регіональ result;then comes «legal regulation» – ного центру НАПрН України. – 2016. – № 9. – creation of the necessary legal (legisla- С. 8–15.

№ 9/2017 59 D. Lukianov, Head of the Department of planning and coordination of legal research of the National Academy of Law Sciences of Ukraine, Doctor of Juridical Sciences (LL.D.), associate professor

UDC 340:34.05

RELIGIOUS FREEDOM AND FREEDOM OF EXPRESSION: EUROPEAN AND ISLAMIC APPROACHES

The connection between modern Eu- its elements – law, developed jurispru- ropean law and the Christian tradition is dence, judicial staff training, judicial and generally recognized. In scientific papers executive bodies and officials, who ap- of many scholars is reasonably proven, plied and stood for the law with the ob- that Christianity, inter alia, the canon servance of the specified procedures. In law is one of the pillar, on which the the course of time, as pointed out H. Ber- Romano-Germanic law and, accord- man, the system of canon law and the ingly, the legal systems of some Euro- control system were adopted by the pean countries are built. Harold J. Ber- states, which were forming in the future man in his work «Law and revolution. periods2. H. Patrick Glenn also stated The Formation of the Western Legal that the canon law with the Roman law Tradition» noted that in the 12th century had the most impact on the formation of the canon law became the first modern the European legal systems3. Western legal system. For the first time However, at the end of the twentieth the church itself was regarded as a legal century and at the beginning of the 21st system, law-governed state with a com- century the world globalization process- plex control system1. es changed the familiar world for us. The Catholic Church formed not A considerable population migration has only a set of certain rules of conduct, but led to a significant change in the struc- also a full-fledged legal system with all 2 Ibid. – С. 521. 1 Berman H. Law and Revolution. The 3 Glen P. Legal Traditions of the World. Formation of the Western Legal Tradition. Oxford University Press Inc: New York. 2004. Harvard University Press. – 1997. – С. 530. P. 133. (401)

60 Yearbook of Ukrainian law Religious freedom and freedom of expression: Lukianov D. european and islamic approaches ture of national and religious communi- coming decades. Thus, according to the ties in Europe. The most rapidly in all forecast of The Pew Research Center, the European countries is increasing the Muslim community in Europe by 2030 number of Muslim community. Accord- will have increased to 58 million people, ing to various estimates, the number of that will have already accounted for 8 % Muslims in Europe has exceeded 44 mil- of the population, and in 2050 will have lion people, that is 6 % of the population. accounted for 10 % of the population3. According to the global research data of Philip Jenkins from the University of The Pew Research Center in 2010 in Pennsylvania predicts that by 2100, the France this community accounted for Muslims will have already accounted about 4, 7 million, in the Federal Repub- 25 % of Europe’s population4. Therefore, lic of Germany – 4, 8 million, in Alba- the problem of coexistence in the Euro- nia – 2, 5 million, in Kosovo – 2 million, pean countries of different religious in the United Kingdom – 3 million, in communities won’t only disappear by Bosnia and Herzegovina – 1, 7 million, itself, but will become more difficult in Bulgaria – 1 million, in Macedonia – with time. How exactly these demo- 0,8 million.1 Not only the number of the graphic changes will affect the various Muslim population in absolute figures social processes in Europe it’s difficult grows, but also their part in the general to predict, but most scientists believe, population of these countries is growing, that the influence of Islam on the social accordingly, too. For instance, in France relations will be more and more tangible. the Muslim community makes up 6 % of Well-known futurists Alvin and Hei- population, in the Federal Republic of di Toffler suggest that centers of Chris- Germany – 5 %, in Albania – 80 %, in tianity will gradually shifted to Latin Kosovo – 90 %, in the United Kingdom – America, and the influence of Islam in 2, 7 %, in Bosnia and Herzegovina – Europe will be ever more appreciable on 40 %, in Bulgaria – 12 %, in Macedonia – all spheres of life – politics, economics, 33 %2. culture etc.5 Philip Jenkins, the author of According to sociological predic- the paper «Christianity of the future», tions, the tendency to increase the num- has also recognized, that in the second ber of the Muslim population and their part in the society will continue in the 3 The Future of World Religions: Population Growth Projections, 2010-2050 (последнее available at (last visited Apr. 23, 2012) посещение – 19 января 2015 г.). (по- 4 Comment / Richard Dawkins foundation следнее посещение – 19 января 2015 г.). 2 The Future of the Global Muslim Population (последнее посещение – 19 января 2015 г.). available at (Last visited Apr. 23, 2012) 5 O’Rorke C. General discussions message (по- (последнее посе- следнее посещение – 19 января 2015 г.). щение – 19 января 2015 г.).

№ 9/2017 61 Theory and history of state and law half of the twentieth century the main One of the first in this series was the centers of the Christian world shifted conflict that erupted after the publication decisively to Africa, Latin America and of 12 caricatures of Mohammed in the Asia1. Danish newspaper Jyllands-Posten on The last decades show the growing the 20th of September 2005, on which number and scale of social conflicts be- was depicted the Prophet with a bomb tween Muslim and other communities in on his head. Many European newspapers Europe. The Islamic community increas- reprinted the cartoons on their pages, ingly requires the observance of their leading to an even greater escalation of traditional cultural and religious rules in the conflict. As a result, the conflict has Europe. So, in late 2004 to early 2005, acquired an international dimension and the conflict gained considerable sharp- has caused numerous casualties, the eco- ness in France associated with the right nomic and political losses for many Eu- of Muslim women to wear the hijab – a ropean countries. traditional scarf covering the head and In 2007, Swedish artist Lars Vilks neck, except for the face. In February drew several cartoons depicting the 2005 the law that banned in government Prophet Muhammad with a dog’s head. offices and educational institutions to It has led to protests, two bombings in wear any signs, which showed the reli- Stockholm and repeated attempts to kill gious affiliation of a person, including the author, who lives under constant po- the hijab, was adopted. This led to mass lice protection. In February 2015 sev- demonstrations of Muslims who claimed eral people were killed and wounded in the restriction on their rights. In 2009 in Copenhagen during the attack on the Switzerland was held the referendum, in lecture of the artist, who in a month re- which the construction of new minarets ceived a prize for courage from the Dan- was prohibited. ish Free Press Society in the Danish par- Towards a new round of tensions be- liament in Copenhagen. tween European and Muslim communi- In early 2015 there was a tragedy in ties resulted in the so-called «cartoon a French satirical magazine Charlie Heb- scandal», when a set of editions pub- do, when 12 people were killed by shots of Islamists, including leading journal- lished a series of caricatures of Islam, ists and cartoonists of the edition. The Muslims and the Prophet Muhammad. reason for the attack was repeated pub- This conflict caused a huge resonance lication on the pages of the edition the and gave rise to a new discussion on the caricatures of Islam, Muslims and the correlation of freedom of speech and Prophet Muhammad. Tens of thousands religious freedom in the European and of people all over Europe went to the Islamic culture. rallies of solidarity with the journalists and to support the freedom of speech 1 Jenkins Ph. Demographics, Religion, and with the slogan – «I am Charlie». Only the Future of Europe, Orbis // A Journal of World Affairs. 2006. Vol. 50. No. 3. – P. 533. a few Europeans expressed doubts about

62 Yearbook of ukrainian law Religious freedom and freedom of expression: Lukianov D. european and islamic approaches the accuracy of journalists’ position in other fields have laid the foundation of the question of correlation between free- a modern European and world science. dom of speech and the protection of re- Admissibility of different opinions is ligious feelings of believers. recognized even in matters of theology For an objective consideration of the and Sharia, resulting in the division into problem of correlation between freedom Sunnis and Shiites, as well as numerous of speech and religious freedoms it is religious-legal schools (mazhabs)2. necessary to analyze the features of the However, it is supposed that given Islamic conception about which the Eu- the limited human abilities, Allah him- ropean reader hardly has known any- self stated some of the verities, self- thing. The Islamic concept of freedom knowledge of which, from the point of of thought and expression is quite differ- view of Islam, is outside the human mind ent from the European concept that and thought. These tenets set forth in the causes misunderstanding and confronta- Quran and Sunnah and are the subject of tion between representatives of corre- faith, but not the subject to human sub- sponding cultures. In Islam, the concept jective evaluation. of human rights is based on the belief Accordingly, for a law-abiding Mus- that only God is the author of the law and lim the issues defined in the Sharia as a the source of all human rights1. Human taboo don’t need a rational understand- rights, bestowed by Allah, can’t by virtue ing and proof. At the same time, in the of their divine origin be reduced or elim- doctrine Islamic theology tries to explain inated by the state, society or individu- existing prohibitions. In Islam is extend- als. Nobody has the right to change them ed the requirement for a person to use at their own discretion. the freedom of speech and thought where Freedom of thought and speech are it brings benefits to a person itself. And considered as one of the fundamental where these freedoms are harmful to a rights of a Muslim. Islam considers man person, the ban comes into force. as a being endowed with intellect by From the point of view of the legal God, which is required to find the truth. consequences all actions of a Muslim Freedom of thought and freedom of ex- can be divided into five categories: pression are essential tools in this way. obligatory, recommended (approval), From this point of view it’s absolutely permitted (indifferent), censured (not incorrect the consideration, that Islam is punishable) and illegal (punishable)3. an antagonistic to the knowledge, sci- The picture of living beings (in the ence, discussions and art religion. The form of animated images or sculptures) achievements of Islamic science in refers to prohibited acts, which are one mathematics, astronomy, medicine and

2 Бехруз Х. Исламские традиции права. – 1 Сюкияйнен Л. Р. Ислам и права челове- Одесса, 2006. – С. 61–70. ка в диалоге культур и религий. – М., 2014. – 3 Массэ А. Ислам: Очерки истории: Пер. С. 17. с фр. – М., 2007. – С. 98.

№ 9/2017 63 Theory and history of state and law of the 76 major sins in Islam1. This pro- right to issue fatwas have justified the hibition is not directly expressed in the permissibility of photos with certain re- Quran, but it is come from the hadiths of strictions. Thus, according to the fatwa the Prophet. So, in the book of hadiths of one of the most respected Islamic of al-Bukhari it is reported that once scholars of our time, the president of the a man came to Abdullah ibn Abbas and International Union of Muslim Scholars said: «Oh, Abu Abbas really – I’m a man Yusuf al-Qaradawi, photography is not and I do for a living with these hands, an act of creation, which is forbidden in making these pictures». Ibn Abbas said: the hadiths, but only a reflection, a mir- «I will tell you what I’ve heard from the ror image of reality. Thereafter, the sci- Messenger of Allah, and he said: a per- entist has concluded, that the photo- son, who creates any image of something graphic process doesn’t fall under the that has a living spirit, Allah will expose category of works performed by sculp- to the tortures, until he will have inspired tors and artists3. with him, but he’ll never be able to do A similar situation exists with respect it». Hearing these words, a man deeply to the depiction of the Prophet Moham- grieved. Then Ibn Abbas said to him: med. For most Muslims, the ban is ab- «Woe to you, if you are doing this, but solute: the picture of Muhammad and all if you want to continue doing so, then other prophets in Islam is expressly for- you should paint the trees and everything bidden and considered as idolatry. that doesn’t have the spirit» (994 Prophet Muhammad and all other proph- (2225))2. ets are considered as perfect and sinless- Islamic theology explains the origin ness figures, and therefore can not be of this rule by prohibition on likening subject to any artistic interpretation, es- Allah, who has created every existing pecially if it can lead to disrespect or thing, as well as by ban on the worship affront to the Prophet. of idols and other gods, which almost An important element in understand- always have the specific artistic external ing the angry Muslim reaction to the image. Later, in some countries, mainly cartoons of the Prophet is the sense of in a Shiite environment, the prohibition the role and limitations in the Islamic of human and animal image ceased to be humor. Islam welcomes the believer strict. brings joy to other people using the hu- Ambiguous interpretation of these mor and fun, but at the same time it is rules existed in respect of photographic prohibited to go beyond the boundaries pictures of living creatures. In recent defined by God – a joke must be truthful; years, Islamic theologians who have the it is not allowed to make up the tales or scare another person; one shouldn’t joke 1 Имам Захаби 76 Больших Греков: Пер. with older people, teachers, academics, с турецк. – М., 2010. – С. 120–121. 2 Аль-Бухари С. Мухтасар: Пер.с араб. 3 Аль-Карадави Ю. Современные фатвы: В. А. Нирш. – М., 2003. – С. 378. Пер. с араб. Я. Расулов. М., 2004. С. 228.

64 Yearbook of ukrainian law Religious freedom and freedom of expression: Lukianov D. european and islamic approaches leaders, with someone, who doesn’t un- The main causes of such conflicts are derstand jokes, unfamiliar with each quite different ideologies and cultural other men and women; joke must be traditions of the Muslim world and smart, adequate for the situation, intel- mainly Christian Europe. On the basis of ligible to others, not offensive, not de- this ideology a quite different scale of grade a person or his family; one can’t values that each society attempts to joke about forbidden topics, tell vulgar maintain and protect is formed. Thus, the stories, reveal intimate details, use blas- situation with the cartoons is a conflict phemy and slander1. on which value takes priority – freedom It should be understood that the car- of expression or religious freedom. Eu- toon by Lars Vilks, depicting the Proph- ropean and Islamic traditions give dif- et Muhammad with a dog’s head, was ferent answers to this question. assessed by Muslims as particularly An important issue is to avoid such cynical, since the dog is considered an tragedies in the future. The media, being unclean animal in Islam, contact with a powerful instrument of influence on which is undesirable. the society, should pursue responsible Thus, we can conclude that the car- editorial policy, and a State must per- toons of the Prophet Mohammed broke form regulatory and control functions a lot of taboos which exist in Islam and effectively. affected the deep and important for the In this regard, I would like to exi- believers feelings. Faith and religious mine Charlie Hebdo’s editorial policy shrines for Muslims are at the top of the for several decades. Satirical weekly hierarchy of values that are protected Charlie Hebdo edition has been pub- under Islam. All other values that Islam lished since 1970 and emerged on the defends – life, mind, procreation, prop- basis of another magazine – «Hara-Ki- erty2, occupy a subordinate position re- ri», which had been closed earlier that lated to the principal value. The nature year after the coarse joke about the death and extent of the negative reaction of of Charles de Gaulle. The editorial pol- Muslims to this situation is also ex- icy has always been based on the fact plained by Islamic provisions. From the that there are no taboo subjects for jokes. point of view of Islam, it requires a per- Cartoon heroes, often very offensive and son to defend their faith and beliefs, to painful have become the leaders of dif- use, if necessary, the force of arms. ferent states, politicians, celebrities and even the Pope. The magazine has repeat- 1 Рамазанов К. Юмор с точки зрения Ис- edly published caricatures of Christians, лама first cartoon conflict broke out, the peri- (последнее посещение – 19 января 2015 г.). odical edition took a tough stance on the 2 Джассер Ауда Цели шариата (руковод- protection of freedom of speech and the ство для начинающих). М. 2015. С. 113; Му- хаммад Садик Мухаммад Йусуф Права че- impossibility of its self-restriction. On ловека в исламе. СПб., 2008. С. 13. issues of interaction of European and

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Muslim culture the magazine has started washed up on the shore near the Turkish to carry out the policy of incitement to Bodrum city. In the words of survivors, Islamophobia. in a failed crossing were died at least 12 So, March 1, 2006 the magazine pub- people, including four children and a lished so-called «Manifesto of the woman. 5-year-old brother of the boy is twelve», in which urged all Europeans also presumed dead. The photograph of to fight against the Islamic threat. Islam the deceased child shocked Europe and has been put on a par with fascism, Na- made us think about the fate of the forced zism, and Stalinism, as the totalitarian immigrants. threat to Europe1. A week after the event shocked the In the second half of 2015 Europe whole of Europe, Charlie Hebdo pub- was faced with a new problem of the lished a regular magazine in which mass migration of illegal refugees, most mocked the death of Muslim children. In of whom left the war-ridden Syria, Af- the published cartoon under the inscrip- ghanistan, Sudan. According to esti- tion «So close to the goal» Ailana lying mates by the UN Refugee Agency and on the sand is depicted. Above it hung the International Organization for Mi- the cafe advertisement with the inscrip- gration, about 1 million of regugees have tion: «Two children’s menu for the price moved to Europe for a year2, most of of one». Another cartoon depicts Jesus whom belong to the atypical for Europe walking on water, next to the drowned national, cultural and religious groups. boy. The picture has the caption: «Proof It is predicted a significant increase in that Europe is Christian. Christians walk the proportion of the Muslim population. on water – Muslim children sink». What A new migration of peoples, as it is feelings can evoke such publication for called by journalists, is accompanied by the child’s parents, the Syrians and Mus- numerous tragedies. According to the lims in general in relation to the Europe- UN information, on the way to Europe ans? What actions must take the state in several thousand refugees have died, such a situation? Recall that the attack most of whom drowned while crossing on the editor of Charlie Hebdo happened the Mediterranean Sea. The greatest after Muslim organizations had repeat- resonance was the case of the death of edly sued upon the publishing for the 3-year-old child Ailana Kurds from the insults and incitement to religious ha- Syrian city of Cobán, whose body was tred, but the courts repeatedly justified the journalists. 1 Manifeste des douze (послед- нее посещение – 19 января 2015 г.). conflict, after the publication of three 2 Совместный пресс релиз Агентства cartoons of the Prophet, several Muslim ООН по делам беженцев и Международной organizations – the Great Mosque of организации по миграции (по- следнее посещение – 19 января 2015 г.). World League accused the editorial

66 Yearbook of ukrainian law Religious freedom and freedom of expression: Lukianov D. european and islamic approaches board of inciting ethnic hatred and filed expressed ideas and views are purely of the claim with the court against it. The a general nature and aren’t directed to a plaintiffs argued that the weekly had in- specific person. The main thrust of the sulted the feelings of Muslims, causing committed actions – is to spread between an affront to a group of persons because people of different nationalities, races, of their religious affiliation. French law religions the mutual distrust, to evolve provides for this violation six months in the alienation, suspicion, transforming jail and a fine of more than EUR 22 000. into persistent hostility. The humiliation During the hearing of this case the mag- of national honor and dignity or the in- azine received the support of prominent sult of citizens’ feelings in connection political figures of the country – Nicolas with their religious beliefs have the pur- Sarkozy, François Bayrou and François pose – to humiliate, insult, that is, to Hollande, who publicly advocated the show the inferiority, narrow-mindedness edition. The trial ended a year later with of the people of a particular nationality a judgement of acquittal for the maga- or religion. It can be expressed in differ- zine. ent forms of bullying of the citizens: If we extrapolate this situation to our slander, mockery of the culture, religious reality, it could be concluded that such rites, customs1. actions fall under Article 161 of the The Criminal Code of the Russian Criminal Code, which envisages punish- Federation contains a similar corpus de ment for deliberate actions aimed at in- licti. Article 282 of the Criminal Code citing ethnic, racial or religious enmity «Inciting hatred or hostility, as well as and hatred, humiliation of national hon- abasement of human dignity» establish- or and dignity or insult the feelings of es liability for actions aimed at the in- citizens in connection with their reli- citement of hatred or enmity, as well as gious beliefs. abasement of dignity of a person or Scientific-practical commentary to group of persons on the basis of sex, the Criminal Code of Ukraine explains race, nationality, language, origin, atti- that under the incitement to national, tude to religion, as well as affiliation to racial or religious enmity and hatred any social group, if these acts have been should be understood the dissemination commited in public or with the use of of any ideas and views, which under- mass media or telecommunication net- mine trust and respect of a particular works, including the «Internet»2. nationality, race or religious denomina- tion, as well as cause disregard or hatred 1 Кримінальний кодекс України: Науково- against traditions, culture, lifestyle, reli- практичний коментар / Ю. В. Баулін, В. І. Бо- gious practices of the citizens of a certain рисов, С. Б. Гавриш та ін. за заг. ред. В. В. Ста- nationality or religion. It can also be the шиса, В. Я. Тація. Вид. 4-те, доп. Харків, spread of various appeals, fabrications 2008. С. 464. 2 that form in people a sense of anger, Уголовный кодекс Российской Федера- ции от 13 июня 1996 г. № 63-ФЗ // Собрание alienation and evoke enmity. At that, the законодательства РФ. 1996. № 25. Ст. 2954.

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As we can see, the legislation of Thus, we can conclude that the inef- Ukraine and the Russian Federation is ficient and untimely actions of public close enough on this issue to the laws authorities contributed to the evolution of other European countries, in particu- of the conflict with the Muslim commu- lar France, and allows the government nity in Europe. An adequate judgment to restrict the freedom of expression on the initial stage of the conflict would when it encroaches on other societal have contributed to its peaceful settle- values. The practice of the European ment, would have saved human lives and Court of Human Rights has also af- would not have allowed a considerable firmed this right of a state. So, in the alienation of the Muslim community «Otto-Preminger Institut v. Austria» from the European community. case, the Court acknowledged the legal- Conflicts and misunderstandings of ity of the Austrian authorities’ actions, their underlying causes are the result of which had seized the film screening and significant cultural differences between forfeited it, in which Jesus entered into the European and Muslim civilization. an agreement with the devil to punish Given that Muslims and Europeans will mankind with syphilis. In the case of have to coexist in a common Europe, it «Wingrove v. the United Kingdom» the is necessary to study and understand Court made a similar decision con- these cultural differences. And in those cerned with the ban on the movie’s re- areas where it’s possible the rise of sig- lease, the basic plot of which – sexual nificant religious conflicts, it is necessary fantasies on the topic of Jesus. And in to use the appropriate legal regulators, the «I. A. v. Turkey» judgment, the including the prohibited tools. Court qualified the story with blasphe- mous comments about the Prophet Mu- Published: Вестник Университета имени hammad «an aggressive attack on the О. Е. Кутафина (МГЮА). – 2016. – № 3 (19). – Islamic prophet»1. С. 158–166.

1 Свобода релігії і свобода слова після Charlie Hebdo: збірка есе до круглого столу Харківського юридичного товариства 25 лю- того 2015 року / Упорядники Д. Вовк, О. Ува- рова. Харків, 2015. – С. 75.

68 Yearbook of ukrainian law V. Smorodynskyi, PhD, Associate Profes- sor of the Department of Theory of State and Law of Yaroslav the Wise National Law University

UDC 340.1 EUROPEAN LEGAL VALUES AND THEIR PERCEPTION BY THE LEGAL SYSTEM OF UKRAINE

The category of «European values» as a system of recognized by these soci- is not normative, it can be defined as a eties mandatory rules of human and their system of universal Humanist princi- associations’ behavior, the institutional- ples (ideas and demands for social reg- ization and effective implementation of ulation), which are shared by the major- which are provided by a public political ity of members of the civilized Euro- authority, primarily, by a state. pean community and recognized by The rule of law over a state arbitrari- them as significant and morally justi- ness is the legal foundation of national fied. These values include legal (rule of legal systems of modern civilized Eu- law, human rights), political (prima rope, the cornerstone of a single Euro- facie democracy), common ideological pean legal system that unites them. The (secularism, rationality, tolerance, etc.) principles which form the conceptual values. It is clear that such division is juridical construction of the rule of law comparative (e.g, democracy should be and are derived from it, are formulated also considered as legal and at the same mainly in the decisions of the European time ideological value, the same in the national constitutional courts and the broad sense we can say about the rule European Court of Human Rights, and of law), and the list of values is inex- the European legal doctrine of the rule haustible. of law are constituted. However, in this research paper we According to this doctrine the con- will examine the rule of law and human cept of the rule of law means the obser- rights just as legal values, i.e those that vance of a number of basic requirements are the foundation of the legal systems (principles) by a public authority of a of the European Societies and their law modern civilization-state.

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The first of these is the requirement 1948: «All human beings are born free of strict observance, accurate and uni- and equal in dignity and rights»). These form implementation and the correct ap- rights are inalienable, that is considered plication of legislation by all subjects of as an integral part of individual, without law, especially by public authorities and which a person is not only deprived of their officials. This requirement is well- rights in a legal sense, but also can not known to the national legal doctrine as exist and develop normally in a social the «principle of legality» and is embod- sense, can’t be a person, because he or ied in Art. 19 of the Constitution of she doesn’t have opportunities to meet Ukraine: «The legal order in Ukraine is his/her needs and interests. So, without based on the principles according to these rights neither society nor a state which no one shall be forced to do what can not evolve normally. Since a state is not envisaged by legislation. Bodies does not give them a person, then it can’t of state power and bodies of local self- take the rights away. Herewith, human government and their officials are rights are inalienable – for the reasons obliged to act only on the grounds, with- mentioned above, a man even on his own in the limits of authority, and in the man- conscious volition can not relinquish ner envisaged by the Constitution and these rights, exchange them for some the laws of Ukraine». tangible benefits, pledge, lend or borrow, The second is the requirement for etc. public authorities to be bound by human Human rights are universal, i.e. ap- rights, which is the sense, a kind of an- ply to all people regardless of their na- thropological foundation of formation tionality, ethnicity, race, gender. How- and effective functioning of the modern ever, this feature is denied or corrected legal system of Europe and national le- by a number of scientists because of gal systems of civilized countries, which natural differences of people (national, are its members. Human rights are fun- cultural, sexual, and so on). damental (basic) – this is the list of gen- Human rights are egalitarian (equal) – erally recognized key standards, which belong to everyone equally and ensure have been historically developed, are a the right to equal treatment of all people reflection of the level of modern human regardless of race, sex, age and other civilization and have been enshrined in differences. However, this characteris- a number of sources of public interna- tics also provides for the extra power of tional law («human rights catalogue»). mechanisms to ensure minority rights. In philosophical and legal terms, hu- They are categorical (uncondition- man rights are natural, as emanating al) – their recognition, guaranteeing and from human nature itself, but not from securing (ensuring) is a categorical re- arbitrary discretion of a state or other quirement for any state as fundamental public institutions (see Art. 1 of the Uni- purposes of its establishment (let us re- versal Declaration of Human Rights member social contract theory). Thus, a

70 Yearbook of ukrainian law European legal values and their perception Smorodynskyi V. by the legal system of ukraine state, which does not ensure human Ukraine). This commitment is a system rights, is a priori illegitimate, unjust, and of three main types of state’s obligations: its citizens have a natural right to rein- 1) an obligation to respect human stall (reset) such a state by any means. rights, that requires the representatives Human rights are legal – clear legal of a state to abstain from their infringe- rules and at the same time effective legal ments; mechanisms, are recognized and guaran- 2) an obligation to protect human teed by a state by their fastening in the rights, that provides a state’s duty to pro- constitution and other legislative acts, as tect bearers of rights from unlawful in- well as by acceding a state to the relevant terference in the process of their imple- international agreements, which consti- mentation and to punish offenders; tute the «international law of human 3) an obligation to secure the exer- rights». Strengthening, ensuring and pro- cise of human rights, that requires a state tection of human rights are the primary to take active actions (measures) to pro- legal obligation of a modern civilized mote the realization of human rights. state. However, these rights are moral, The European Court of Human that is based on the non-judicial internal Rights at its interpretation and applica- needs, views and value orientations of tion of the Convention uses the doctrine people; the obligation of public authori- of negative and positive obligations of a ties to recognize, guarantee and protect state. The negative obligations require a them is moral, categorical regardless of state to refrain from interference with their institutionalization and the attitude enjoyment of human rights. So, the vio- of authority to them1. lation of human rights occurs in conse- To human rights corresponds the ob- quence of either an existence of active ligation of a state of non-interference in state barriers to their realization, or its the sphere of individual freedom, on re- disproportionate interference with such spect for human rights, their guarantee- realization. Positive obligations require ing, protection and contribution to their a state to actively interfere with the ex- realization (UN Charter, Art. 1 of the ercise of human rights; violations of European Convention for the Protection these rights occur in consequence of the of Human Rights and Fundamental Free- lack of appropriate active state actions. doms, Art. 3 of the Constitution of From the above mentioned, in turn derives the requirement for public authorities to use all adopted (reasonable) 1 Права людини: Концепції, підходи, ре- алізація / За ред. Б. Зізік ; пер. з англ. – К. : and the appropriate measures to protect вид-во «Ай Бі», 2003. – 263 с.; Філософія прав human rights. Such measures may be людини / За ред. Ш. Госепата, Г. Ломанна ; legal (in particular legislative enshrine- пер. з нім. – К. : Ніка-Центр, 2008. – 320 с.; ment of human rights, establishing cer- Рабінович П. М. Основи загальної теорії пра- ва та держави. Навч. посібник. Вид. 10-е, tain legal procedures, requirements, etc.) доп. – Львів : Край, 2007. – 224 с. – С. 16–21. or practical (e.g. taking appropriate mea-

№ 9/2017 71 Theory and history of state and law sures to prevent convicted persons from for the realization of human rights, or the causing bodily harm)1. restoration of this right, or the prevention Ukraine has the duty to ensure con- or stop its violation. Accordingly, a hu- formity of its national legislation with man right to public judicial protection of international legal obligations. This ob- human rights ... – is the right to carry out ligation must be fulfilled by a system of in the course of a jurisdictional law en- regular and effective measures, includ- forcement activity the measures for di- ing: incorporation of international norms rect fulfillment of an obligation required in the field of human rights into national for the realization of human right, or to legislation or their direct application restore such right or for the prevention within the domestic legal system of or to stop its violation»3. Ukraine; implementation and taking the The fundamental national guarantee necessary legal procedures to ensure un- of human rights and at the same time der fair conditions effective and prompt the demand for the rule of law is inde- access to justice; provision of adequate pendent, impartial and uncorrupted ju- operative means of protection and resto- diciary, including administrative jus- ration of rights, inter alia, compensation tice. for damages; establishing effective guar- The third requirement of the rule of antees for ensuring the same level of law for a public authority is the demand protection for victims of violations of for the compliance with the fundamental international human rights norms and principles of law (freedom, justice, standards provided by international law, equality, humanism) in law-making and etc.2 law enforcement activities, in particular As noted by T. Pashuk, «under public the prohibition of negative discrimina- judicial protection of human rights it tion – an unjustified human restriction of should be understood a jurisdictional law individual rights on any grounds (nation- enforcement activity of national compe- ality, race, gender, property status, etc.). tent authorities directed either at the en- In general, considering the coordinate forcement of legal obligation necessary system of the rule of law and the state in this system it should be understood that the axes of the system are freedom, jus- 1 Теорія держави і права : посібник для підготовки до державних іспитів / Д. В. Лук’я tice and equality as fundamental prin- нов, С. П. Погребняк, В. С. Смородинський, ciples of law. Г. О. Христова ; за заг. ред. О. В. Петриши- на. – 5-тє вид., допов. і змінене. – Х. : Право, 2016. – 208 с. – С. 178–179. 3 Пашук Т. І. Право людини на ефектив- 2 Дослідження практики Європейського ний державний захист її прав та свобод. – суду з прав людини для визначення Націо- Праці Львівської лабораторії прав людини і нальних стандартів компенсацій порушення громадянина НДІ державного будівництва державою прав людини : [інформаційно- та місцевого самоврядування АПрНУ / Ред- аналітичний звіт] / М. Гнатовський, А. Фе- кол. П. М. Рабінович (голов. ред.) та ін. – дорова, К. Красовський, О. Власенкова]. – Серія І. Дослідження та реферати. Вип. 15. – К. : Атіка, 2011. – 184 с. – С. 7–9. Львів: Край, 2007. – 220 с. – С. 177.

72 Yearbook of ukrainian law European legal values and their perception Smorodynskyi V. by the legal system of ukraine

The fourth is the requirement of legal A key principle of a modern civilized certainty (predictability, foreseeability state in accordance with Art. 6 of the and «legitimate expectation»). The rel- Convention is the proper administration evant requirements of law-making and of justice. Given the fact that the right to law enforcement at one time were for- a fair trial as a part of the rule of law is mulated by professor Lon L. Fuller of one of the primary places in the system Harvard Law School using the example of global values of a democratic society, of unsuccessful law-making activity of the European Court of Human Rights King Rex and are constituted the so- has always offered a quite broad inter- called «internal morality of law»: laws pretation of it2. must be general; laws should be promul- Thus, in the case of «Delcourt v. Bel gated, that citizens might know the stan- gium», the Court stated that «in a demo- dards to which they are being held; ret- cratic society within the meaning of the roactive rule-making and application Convention, the right to a fair adminis- should be minimized; laws should be tration of justice holds such a prominent understandable; laws should not be con- place that a restrictive interpretation of tradictory; laws should not require con- article 6 (1) would not correspond to the duct beyond the abilities of those af- aim and the purpose of that provision». fected; laws should remain relatively In the «Bellet v. France» judgment the constant through time; and there should Court pointed out that «Article 6 (1) con- be a congruence between the laws as tains guarantees of a fair trial, of which announced and their actual administra- access to a court is one aspect. The de- tion1. gree of access afforded by the national It is known that in many countries of legislation must be sufficient to secure Romano-Germanic legal family (to the individual’s right to a court, having which tends and tries to join also the regard to the principle of the rule of law Ukrainian national legal system) is rec- in a democratic society. For the right of ognized the theory of «stable laws» that access to be effective, an individual must requires the courts to follow constant have a clear, practical opportunity to jurisprudence as an important factor of challenge an act that is an interference the unity of judicial system and a na- with his rights». tional legal system as a whole. As illustrates the position of the Cour In addition, for Ukraine the demand in many cases, the main component of for the meticulous and rapid execution the right to a court is the right of access of judgments as a necessary condition for legal certainty and the rule of law in 2 Де Сальвиа М. Прецеденты Европейско- general (the European Court of Human го суда по правам человека. Руководящие Rights repeatedly pointed out to Ukraine принципы судебной практики, относящейся on this) is of current importance. к Европейской конвенции о защите прав человека и основных свобод. Судебная пра- ктика с 1960 по 2002 г. ; пер. с фр. – СПб. : 1 Фуллер Л. Л. Мораль права ; пер. з англ. – Издательство «Юридический центр Пресс», К. : Сфера, 1999. – 232 с. – С. 43. 2004. – 1072 с. – С. 277–512.

№ 9/2017 73 Theory and history of state and law to a court — in the sense that a person these laws is reasonobly acknowledged must be granted the opportunity to apply by scholars as a «very radical step, as a for a court to resolve a particular prob- result of which a certain, currently not lem, and that a state should not legally specifically defined scope of the Court or practically impede the realization of practice has been proclaimed as the this right. source of law in Ukraine»2. The Convention and its Protocols are The practice of the Court in respect a part of the national legislation of of Ukraine regarding the guarantees en- Ukraine, binding sources of its law, that shrined in Art. 6 § 1 of the Convention is recognized by the national legal sys- is reflected in cases concerning the right tem of Ukraine sources containing man- of access to a court and to a fair trial. datory legal rules and from which they Thus, in the case of «Tregubenko v. are taken for the purpose of legal regula- Ukraine», the Court concluded that by tion of the social relations. By ratifying applying the supervisory review process the Convention and the Protocols there- to cancel the judgment in favor of the to, Ukraine pledged primarily to secure applicant, the Plenum of the Supreme to everyone within its jurisdiction the Court of Ukraine violated the principle rights set out in these acts. According to of legal certainty and the applicant’s para. 1 (1) of the Law of Ukraine «On right of access to a court guaranteed by Ratification of the European Convention Art. 6 § 1 of the Convention. The Court on Human Rights 1950, First Protocol reached a similar conclusion with re- and protocols № 2, 4, 7 and 11» of 17 spect to the revocation of the final judg- July 1997, Ukraine generally recognized ment in the «Naumenko v Ukraine», the operation of Article 46 of the Euro- «Poltorachenko v. Ukraine», «Timoti pean Convention on Human Rights 1950 yevich v. Ukraine» cases. The Court on its territory concerning the recogni- found that in those cases, in which there tion of compulsory and without special was the revocation of the judgments, agreement jurisdiction of the European which became final and binding, there Court of Human Rights in all matters had been a violation of Art. 6 § 1 of the regarding the interpretation and applica- Convention. In the «Ivanov v. Ukraine» tion of the Convention. According to Art. judgment, the Court stated that the right 17 of the Law of Ukraine «On Enforce- ment of Judgments and Application of посібник для суддів. – 2-ге вид., виправ., Practice of the European Court of Hu- допов. – К., 2015. – 208 с. – С. 6. man Rights» dated 23.02.2006, the 2 Рабінович П. М., Соловйов О. В. За Ukrainian courts apply by considering стосування Європейської конвенції з прав all cases the Convention and the case- людини та практики Стразбурзького суду 1 в Україні. – Праці Львівської лабораторії law as a source of law . The adoption of прав людини і громадянина НДІ державного будівництва та місцевого самоврядування 1 Фулей Т. І. Застосування практики Єв- НАПрНУ / Редкол. П. М. Рабінович (голов. ропейського суду з прав людини при здій- ред.) та ін. – Серія І. Дослідження та рефера- сненні правосуддя: Науково-методичний ти. Вип. 28. – К., 2014. – 208 с. – С. 152.

74 Yearbook of ukrainian law European legal values and their perception Smorodynskyi V. by the legal system of ukraine to a court «would be illusory if a Con- sions of public authorities and their of- tracting State’s domestic legal system ficials must be carried out by using the allowed a final, binding judicial deci- «proportionality test» by criteria such as: sion to remain inoperative to the detri- 1) the feasibility – means, aimed at the ment of one party». «A state, – stated in attainment of the particular purpose by the decision – can’t cite lack of funds public authority, which must be fit for as an excuse for not honouring a judg- the purpose; 2) the necessity – from all ment against it or against entities or appropriate means it should be selected companies owned or controlled by by a public authority that, which is the state». This follows directly from the least restrictive the rights of individuals; requirements of the Convention. The 3) the balance of interests (proportional- Court concluded that «the reason for ity in the narrow sense, or the principle delayed enforcement of final domestic of balance) – damage caused to an indi- decisions is the existence of variety of vidual by the restriction of the rights dysfunctions in the Ukrainian legal sys- must be proportionate to the public ben- tem», which «has failed so far actually efit from the achieving the purposes of to put into effect any measures aimed such restriction1. at improving the situation, despite the The sixth fundamental requirement Court’s substantial and consistent case- of the rule of law for public authorities law on the matter». of a modern civilized state is a require- The fifth requirement of the rule of ment of good faith of these authorities, law provides for the embedding in ac- that is conscious exercise by public au- tivities of public (prima facie judicial) thorities of their powers. The main ob- authorities the principle of proportional- stacle to implementing the rule of law in ity, i.e reaching for the balance of inter- public life is the corruption and other ests of a person, other individuals and abuses of public power. With certain res- society in lawmaking and law enforce- ervations we can agree with researchers ment processes. Public authorities can’t who believe corruption is an informal impose on citizens the obligations, which factor of integrity and stability of some exceeded a social necessity. The ana- so-called «strong» states, «states of nat- logue of proportionality is the American ural law» with «closed societies» (to judicial doctrine of the «weighing of in- which the authors reasonably refer also terests» that provides by considering Ukraine)2. However, total corruption as cases the weighing of common (national, 1 public) and personal interests, resulting Коэт-Элия М., Порат И. Американский метод взвешивания интересов и немецкий тест in taking under judicial protection one на пропорциональность: исторические корни ; of them, which has the greater weight, пер. с англ. // Сравнительное конституционное i.e social value. обозрение. – 2011. – № 3. – С. 59–81. In accordance with the principle of 2 Дарден К. Целостность коррумпирован- proportionality, legal (first of all, judi- ных государств: взяточничество как нефор- мальный институт управления ; пер. с англ. cial) evaluation of actions, acts and deci- // Прогнозис. – 2010. – № 1. – С. 109–134; Уэй-

№ 9/2017 75 Theory and history of state and law a stable defect of public authorities func- Ukrainian society and the state must tioning in these countries, especially law realize that the choice between the rule enforcement agencies and courts, pre- of law and the rule of the arbitrary state vents the implementation of the rule of is difficult, but is obvious civilizational law, smashes it to pieces, as is clearly choice of the state, which claims the sta- incompatible with most of its require- tus of the European and intends to take ments. Herewith, a state loses a reliable a worthy place on the map of modern guidance and coordinates of the rule of Europe. As pointed out in his book «The law, that weakens it, tears away from State in the Third Millennium» the reign- modern civilization, inevitably sooner or ing Prince of Liechtenstein Hans-Adam later leads to its political and economic II, «one area, except for international decline. Consequently, the integrity and relations, in which a state ... still has a the «power» of such states are actually competitive advantage over private com- temporary, and economic and political panies, local communities and commu- prospects in the absence of significant nity unions – is the rule of law. For the systemic changes towards a return the majority of people the most important coordinates of the rule of law — is clear- task of a state is to provide legal protec- ly pessimistic. And there are enough tion, law and order... The fact that the confirmations of this on the political map rule of law still exists in many demo- of the world. cratic countries is worth to be called a It should be noted that by a legal doc- small miracle... What is the use of a trine, including domestic, the list of re- democratic law-governed state, which quirements of the rule of law is constant- has built up the most complicated social ly supplemented and specified. So, system or is conducting a sophisticated M. Koziubra refers to the main compo- cultural policy, while the main pillar of nents of the rule of law the respect for a constitutional state — is the rule of human rights and freedoms, the suprem- law – has collapsed and a state is not able acy of the constitution, the principle of to provide its citizens with a worthy of separation of powers, legality, limitation legal protection?»2. of discretionary powers, the principle of A huge responsibility for the Ukrai- equality of rights and equality before the nian choice for the European civilized law, the principle of legal certainty, the way, its justification and legal security principle of protection of confidence, the relies on scholars and judges (primarily principle of proportionality, the indepen- on the judges of the Constitutional Court dence of judiciary (court and judges)1. of Ukraine) – on all those whom society has entrusted a mission of implanting нгаст Б. Р. Почему развивающиеся страны into national legal system both the prin- так сопротивляются верховенству закона? : ciple of the rule of law, and in its modern пер. с англ. // Прогнозис. – 2010. – № 1. – С. 135–162. 1 Загальна теорія права : Підручник / За 2 Ханс-Адам ІІ, князь. Государство в тре- заг. ред. М. І. Козюбри. – К. : Вате, 2016. – тьем тысячелетии ; пер. с англ. – М. : Инфо- 392 с. – С. 358–379. тропик Медиа, 2012. – 320 с. – С. 141–143.

76 Yearbook of ukrainian law European legal values and their perception Smorodynskyi V. by the legal system of ukraine interpretation (taking into account the Published: Конституційна реформа legal positions set out in the judgments в Україні в сфері місцевого самоврядування: уроки від країн Вишеградської четвірки : of the European Court of Human Rights) тези доп. та наук. повідомл. учасн. наук.- and the fundamental legal requirements, практ. конф. (м. Харків, 21–22 жовтня which are its integral part. 2016 р.). – Х. : Право, 2016. – С. 184–194.

№ 9/2017 77 I. Skuratovych, PhD. Legal Science, Yaro- slav Mudryi National Law University

UDC (477)340.15«16»-047.37 A. I. YAKOVLIV – NOTED SCHOLAR OF THE PEREYASLAV TREATY

The people’s liberation war of supporters of the «reunification of Uk Ukraine against Poland, the figure of raine with Russia». Bohdan Khmelnytsky and the Pereyaslav The state of the Ukraine-Russia rela- Treaty in 1654 aroused the interest of tions at the present stage determines the many generations of domestic and for- particular relevance of the main provi- eign scientists. sions of the monograph of A. I. Yakovliv Among the historical and legal re- and his other works, provides new argu- searches from the first half of XX cen- ments for refuting the Russian position tury from the problems of the Ukrainian regarding the Ukrainian statehood. and Moscow treaties of XVII–XVIII cen- Therefore, acquaintance of a mass audi- turies and the Pereyaslav Treaty, in par- ence with the author and his ideas, de- ticular, the work of Andrii Yakovliv bunking apologetics of the «Russian «Ukrainian-Moscow Treaties in XVII– World» is the purpose of this Article. XVIII» stands out. This monograph was Both the work and its author were published in Warsaw in 1934, but the unknown in Soviet times not only to the Ukrainian reader could review it only general reading audience, but also to the after 60 years due to the efforts of specialists in the USSR, although his V. A. Smoliy and V. M. Rychka, who research on different problems in the prepared it for the Ukrainian Historical history of the Ukrainian law was pub- Journal». And although the Ukrainian lished in Germany, Czechoslovakia, Po- scientists (historians, lawyers) currently land, and USA. The reasons for such an have got access to the ideas and conclu- attitude of the Soviet authorities to the sions of A. I. Yakovliv, they have not famous scientist lie largely in his biog- reached the public because of the au- raphy. thorities’ negative attitude, represented A. I. Yakovliv was born on 12.11.1872 by the Minister Tabachnyk and other in Chyhyryn, in a large family of the

78 Yearbook of Ukrainian law A. I. Yakovliv – noted scholar Skuratovych I. of the Pereyaslav Treaty provincial official. In 1890–1894 he was the diplomatic mission in Belgium and studying at the Kiev Theological Semi- Holland with the powers to conclude a nary and graduated brilliantly, and then treaty between the UPR and the Bank of 4 years worked as a teacher in Cherkasy. Amsterdam1. In 1898 he entered the Dorpat Univer- When the Soviet authority won in sity to the Law Faculty. Already in stu- Ukraine, A. I. Yakovliv was abroad. Re- dent years he started to research the his- turn to Ukraine was dangerous for him, tory of the Ukrainian law under the he became an immigrant. In 1921 the guardianship of the professor M. A. Dya- Ukrainian immigrants with the permis- konov. His thesis was so successful that sion of the Czechoslovakia government he received an offer to stay at the uni formed the Ukrainian Free University in versity to prepare for a professorship. Prague, where A. I. Yakovliv worked for But because of the life circumstances many years. In 1923 he was admitted to A. I. Yakovliv refused from that offer. the Faculty of Law and Social Sciences Coming back to Kyiv, A. I. Yakovliv as an assistant professor of civil proce- passes his state examinations and re- dure, and in 1926 the scientist received ceives a diploma of St. Vladimir Kiev the title of extraordinary professor for University. Working in the public service the scientific work «Civil Procedure». In (in the courts, in the Treasury Chamber), 1930-1931 and in 1945 he was elected in Law, A. I. Yakovliv does not leave the as a rector of the university, from 1935 science. He is a member of the Ukrai- he headed the department of civil law at nian Scientific Society and a member of the same time was a law professor of the the council of Kyiv Enlightenment, the Ukrainian Economic Academy in Podeb- teacher of the bases of law and legisla- rady. From 1937 till 1940 A. I. Yakovliv tion in the Kyiv educational establish- lived and worked in Warsaw, where he ments. fulfilled the obligations of the director of In 1917 the active social and political the Ukrainian Research Institute, was activity of A. I. Yakovliv was activated. secretary at the Mohyla Mazepa Ukrai- He created the Association of Ukrainian nian Academy of Sciences. At the same lawyers, was one of the founders of the time the scientist worked in public orga- Ukrainian Law Society, a delegate of the nizations, was the chairman of the Ukrai- All-Ukrainian National Congress, where nian Academic Committee of the Inter- he was elected a member of the Central national Commission for Intellectual Council, where he fulfilled the obliga- Cooperation at the League of Nations in tions of the director of the office, was the Geneva, Chairman and Permanent Rep- UPR ambassador to Austria-Hungary. In resentative of the Ukrainian Society of the Ukrainian State Hetman P. Skoro- padsky A. I. Yakovliv headed the depart- 1 Смолій В. А., Ричка В. М. Угоди гетьман ment at the Ministry of Foreign Affairs; ського уряду України, з Московською дер- during the Directory times he was an жавою (1654–1764 рр.) очима правознавця// Смолій В. А., Ричка В. М. //Український іс extraordinary minister and the head of торичний журнал. – 1993. – № 4–6. – С. 94.

№ 9/2017 79 Theory and history of state and law the League of Nations, a founding mem- The first article of A. I. Yakovliv ber and later chairman of the Museum of «Treaty of the Hetman Bohdan Khmel- the liberation struggle of Ukraine, mem- nytsky with Moscow 1654» was pub- ber of the historical and philological So- lished in 1927 in the «Jubilee Collection ciety in Prague1. of the All-Ukrainian Academy of Sci- At the time of the Second World ences in honor of the Academi- War A. I. Yakovliv returned to Prague, cian D. I. Bahaliy», and the next in 1928 after the war he lived in West Germany, in the «Jubilee Collection of the All- Belgium, and from 1952 lived in the vil- Ukrainian Academy of Sciences in hon- lage, where he continued research. The or of the Academician M. Hrushevsky» scientist died in 1955 in New York, appeared his second work «Articles of where he was buried. Bohdan Khmelnytsky» as amended in The scientific heritage of the scientist 1659. Soon the scientist published an- is large and varied. But the scientist’s other work on this problem – «Moscow most attention was paid to the problems drafts of the contracting paragraphs with of the history of Ukrainian law and the the Hetman Ivan Vyhovsky» (1933). The Ukrainian state. He explores the history main provisions and conclusions of these of dig courts, influence of the old Check studies have been deepened and devel- law on the Ukrainian law in XV-CXVO, oped in the fundamental research of the problem of the Magdeburg Law in A. I. Yakovliv «Ukrainian-Moscow Ukraine in XVI-XVIII centuries, cus- Treaties in XVII–XVIII»2. tomary law, and the codification of law The latest work of A. I. Yakovliv – in Ukraine in XVIII. His work «Funda- «Treaty of the Hetman Bohdan Khmel- mentals of the UNR Constitution (New nytsky with the Moscow Tsar Oleksiy York, 1964)» was already published af- Mikhailovich 1654: Historical and Legal ter the death of the scientist. As a par- Studio on Award of the 300th Anniver- ticipant in the trial over the killer of sary of the Treaty (1654–1954)»3. In it S. Petliura he knew the investigation the author mainly remains in the same materials, and it gave him the opportu- position on the legal nature and content nity to express his own opinion about the of the Treaty in 1634, as in the aforemen- tragic death of the former chief of the tioned monograph. The assessment of UNR. Among the other historical and the value of the Treaty in the history of legal problems a special attention of Ukraine as an act that «has started a new A. I. Yakovliv was paid to the issue of era – Ukraine’s coexistence with the the Pereyaslav Treaty and other Ukrai- Moscow state under certain conditions, nian-Moscow Treaties of XVII–XVIII, which continued 110 years (1654–1764) to which he devoted a number of papers. 2 Яковлів А. Українсько-московські дого- 1 Плецький С. Ф. Яковлів Андрій / Плець- вори в XVII–XVIII віках / Яковлів Андрій / кий С. Ф. // Українське козацтво. Мала енци- УІЖ. – 1993. – № 9. – С. 122–128. клопедія. – Київ – Запоріжжя. – 2002. – 3 Переяславська Рада 1654 р. (Історіогра- С. 563. фія та дослідження). – К., 2003. – С. 91–155.

80 Yearbook of ukrainian law A. I. Yakovliv – noted scholar Skuratovych I. of the Pereyaslav Treaty has not changed and resulted in the de- or with some comments: offers from privation of Ukraine from the rights and B. Khmelnitsky dated 17.02.1654 in the liberties, guaranteed by the Treaty, and quantity of 23 articles are quite exhaust- its full incorporation. Both Parties re- ed with 11 articles as amended on March ferred to this Treaty as to the act that 27 and by Letter Patent of decrees con- authoritatively and conclusively estab- tained in the articles. Taken together, lished the rights and obligations of the they represent the full text of the Treaty Parties1. in 16542.Yakovliv refutes the view of Based on this basic conclusion as to some authors (Karpov, Kulish, Odynets), the meaning of the Pereyaslav Treaty, who believed that there was no Treaty, A. I. Yakovliv holds in his monograph a that the king as an absolute monarch just deep analysis of all available sources felt «pity» for the Zaporizhzhia Army, that directly or indirectly related to the having approved some old Cossack Treaty, as well as the political and mili- rights and privileges. He gives quite con- tary situation in which Ukraine was the vincing evidence that the form of the day before drafting the Treaty, rightly Treaty is not related to its content, that noting that this situation also had some by the content the act 1654 was a bilat- influence on the terms and conditions of eral Treaty between B. Zaporizkyi and the Treaty. The results of this analysis Moscow king, according to the Treaty have allowed the scientist to establish both parties considered in the official the exact list of acts by which the acts. The author quotes all of these acts Pereyaslav Treaty was executed and the with reference3. text of this Treaty. The work has the During the legal analysis of the Trea- greater significance that many original ty in 1654 A. I. Yakovliv refers to the documents, including such important as historical method. He noted that in XVII the Articles of Bohdan Khmelnytsky (ac- century there were quite different politi- tual draft Treaty), March Articles with cal ideas and legal concepts that in the royal decrees under Articles, etc. (An- political acts of XVII century «legal re- swer of Moscow to the project of Khmel- lations between the states were imagined nitsky) has not been preserved. as relations between the persons of mon- Comparing the content of the Arti- archs, and not as the relations between cles of Bohdan Khmelnytsky with the the individual states». In terms of the March Articles of the royal decrees and Treaty 1654 the legal relations, which letters, A. I. Yakovliv convincingly es- arose as a consequence of this Treaty tablished that all the terms and condi- connect Hetman B. Khmelnytsky, who tions, proposed by B. Khmelnitsky and personifies Ukraine, and Tsar Alexei V. Zaporizkyi, were considered by the Mykhaylovych, who personifies the tsars and nobles and accepted as a whole 2 Ibid. (С. 116). 1 Яковлів А. Українсько-московські до 3 Яковлів А. Українсько-московські до говори / Яковлів А. //УІЖ. – 1993. – № 4–6. – говори / Яковлів А. //УІЖ. – 1993. – № 7–8. – С. 97. С. 118.

№ 9/2017 81 Theory and history of state and law

Moscow state. Personification as a way participation of Ukraine and against its to present abstract ideas about the rights wishes, B. Khmelnitsky believed that of the state in any sphere of government Moscow had violated the terms and con- is used everywhere in the Treaty so the ditions of the Treaty 1654, and now ruled analysis cannot be interpreted literally, Ukraine quite independently, although as do some authors1. Thus, the formula formally remained in the contractual re- «where three human Cossacks shall lations with Moscow3. judge two the third one» only symboli- Other terms and conditions of the cally meant that the Zaporizhia Army Treaty, aimed at the restriction of the was not completely dependent on Mos- state independence of Ukraine, including cow in the court sphere2. the law of the international relations, According to the formal content of have been implemented from the very the Treaty the rights of the Moscow Tsar beginning. B. Khmelnytsky acted as the regarding Ukraine were limited to get- supreme master of the independent state, ting the tribute money and control over making active and passive right to rela- the relations of Ukraine with foreign tions with foreign states, concluding states, and then only in certain cases. In agreements of the international nature all other areas Ukraine was independent, without the consent of Moscow. Treaty with elected Hetman, who had full pow- 1654 was an ordinary alliance and de- ers and authority on the internal affairs. fense protection treaty for him that had A. I. Yakovliv considered the Treaty not to «knit» Zaporizhzhia Army in its 1654 public-political by nature. For its relations with other states and interna- legal assessment, according to the scien- tional politics. tist’s opinion, it is important to know not At first Moscow also shared the over- only its formal sense, but also to find out whelming view of that time to such whether the Treaty was actually imple- «protective» treaties. Moscow consid- mented and to what extent. Analyzing ered Ukraine a separate state the rela- the main directions of the Ukrainian- tions with which after the Pereyaslav Moscow relations, governed by the Trea- Treaty were carried out through the Am- ty, the author came to important conclu- bassador’s commandment in charge of sions, which are crucial to ascertaining diplomatic affairs of the Moscow reign. the true legal nature of the Treaty. In The state border and customs agencies particular, he believed that the military separated Ukraine from Moscow. And conditions were generally implemented, already in the state list of the nobleman namely the war with Poland was made Buturlin there started to appear the idea by joint forces of Ukraine and Moscow. of union with Moscow of «parent torn And after the Vienna Settlement Agree- away, Kyiv», which then found its justi- ment, which was concluded without the fication in the works of the Russian scientists, historians and lawyers. Disagree- 1 Ibid. (С. 119). 2 Ibid. (С. 123.) 3 Ibid. (С. 124).

82 Yearbook of ukrainian law A. I. Yakovliv – noted scholar Skuratovych I. of the Pereyaslav Treaty ing with them, A. I. Yakovliv gives suf- monarchs saw Hetman Bohdan Khmel- ficiently convincing arguments to refute nytsky as the supreme authority of an the idea and definition of the legal nature independent state, and Treaty 1654 was of the Treaty («Incorporation», «Auton- deemed the agreement of alliance, omy», «Personal Union», etc.), which peace, or «protection» in that under- arose on its basis1. standing, just purely nominal protection «The relations between Ukraine and that did not prevent from keeping dip- Moscow by the literal meaning of the lomatic relations with Ukraine as with Treaty 1654, – concluded by A. I. Ya- the fully legitimate subject of the inter- kovliv, are – very close to the nominal national law. vassal relations or protectorate». And it Such a conclusion of the scientist did is not the terms and conditions that af- not coincide with the idea of «reunifica- fected the relations between them, but tion» of Ukraine and Russia that was the real life and the real forces of both dominant in the Soviet historiography. states. The nominal vassal dependence, It closed the way of his works to the which de jure agreement established Ukrainian readers for a long time. For- de facto, did not exist. In fact, Ukraine tunately, not for ever. was a state, independent from Moscow. That outside world acknowledged Published: Форум права. – 2016. – № 2. – Ukraine as the same. Foreign states and С. 208–211.

1 Ibid. (С. 126).

№ 9/2017 83 STATE-LEGAL SCIENCES AND INTERNATIONAL LAW

V. Pyly pchuk, Doctor of Law, professor, Corresponding Member of the National Academy of Legal Sciences of Ukraine, Director of the Research Institute of Infor- matics and Law of the National Academy of Legal Sciences of Ukraine

V. Tsymbalyuk, Doctor of Law, senior research fellow, chief research scientist of the Research Institute of Informatics and Law of the National Academy of Legal Sciences of Ukraine

UDC 001.92+002.6:316.324.8 HISTORICAL AND LEGAL ISSUES OF FORMATION AND DEVELOPMENT OF THE INFORMATION SPHERE AND INFORMATION LAW IN UKRAINE (end of ХХ – beginning of ХХІ century)

Articulation of issue. In the estab- current period of development of culture lishment and development of the infor- and civilization is characterized by a mation society, national and global in- new step in the evolution of social pro- formation space all the spheres of human cesses and is distinctive due to pursu- life, society, the state and the interna- ance of developed industrial society to tional community are directly related to improve their social structures and insti- information and conditioned by it. The tutions. Today humanity has to deal with

84 Yearbook of Ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere... the new factors of social and economic foreign scientists, particularly in the fol- development – namely, the factors of lowing areas: Philosophy and History of information development. The key fac- Science (N. Viner, V. O. Danilyan, tors that shape and direct processes of O. P. Dzyoban, P. Draker, Y. V. Kanygin, the information progress involve deliber- D. Robertson, E. Toffler), Economics ate and purposeful use of artificial intel- (I. B. Zhylyaev, V. L. Inozemtsev, ligence and information and communi- M. Kastels, P. V. Melnyk, V. I. Munti- cation technologies in the economic and yan, M. Y. Shvets), Political Science and social practices. The leading and largely Sociology (V. M. Bebik, D. V. Dubov, symbolic feature of the modern world is O. V. Lytvynenko, M. A. Ozhevan, forming global information industry, O. V. Sosnin), State Management which transforms the role of information (M. V. Ga-man, V. I. Gurkovskiy, A. I. Se and knowledge in the socio-economic menchenko, V. O. Shamray) and many sphere1. others. However, the important issue is un- Recent theoretical, legal and applied derstanding the nature and characteris- problems related to regulation of social tics of the impact of information and relations, particularly in the information communication technologies on the sector, and to the development of infor- changes in the traditional activity sys- mation law were covered by such scien- tem, social and interpersonal communi- tists as: V. B. Averyanov, O. F. Andriyko, cation, due to the need of information I. V. Aristova, O. A. Baranov, K. I. Be- law, which is the regulatory framework lyakov, V. M. Bryzhko, G. V. Vynogra- for a new way of life. It is impossible to dova, O. O. Zolotar, R. A. Kalyuzhnyi, find the answer to modern information O. L. Kopylenko, B. A. Kormych, and legal issues without a thorough study T. A. Kostetska, O. V. Kokhanovska, of the relevant historical experience. Un- I. Y. Kregul, N. V. Kushakova, der these conditions, research of histori- G. M. Krasnostup, V. M. Lozovyi, cal and legal issues of formation and A. I. Marushchak, N. M. Myronenko, development of social relations in the V. Y. Nastyuk, N. B. Novytska, sphere of information and learning his- A. M. Novytskyi, N. R. Nyzhnyk, tory of the information law presents an O. P. Orlyuk, O. V. Petryshyn, V. M. Pe- actual scientific problem that requires trenko, V. F. Sirenko, V. Y. Tatsiy, complex processing. V. P. Tykhyi, I. O. Trubin, M. O. Teply- Analysis of recent studies. Intersec- uk, O. G. Frolova, V. M. Furashev, toral nature of social relations in the in- Y. S. Shemshuchenko and others. formation sphere is reflected in the pub- Constitutional and legal nature of the lications of a number of domestic and information sphere was studied by scientists, such as: V. F. Pogorilko, 1 Пилипчук В. Г., Дзьобань О. П. Інфор- T. A. Kostetska, I. O. Kresina, A. V. Ko маційне суспільство: філософсько-правовий lodyuk, A. O. Selivanov and others. Is- вимір: Монографія / Пилипчук В. Г., Дзьо- бань О. П. – Ужгород : TOB «IBA», 2014. – С.5 sues of the legal provision for national

№ 9/2017 85 State-legal sciences and international law and information security were studied by The main material. Historical analy- V. V. Belevtseva, M. V. Belanyuk, sis and genesis of the scientific research M. O. Budakov, V. D. Gavlovskyi, shows that the information sphere and O. D. Dovgan, V. V. Krutov, public information relations existed V. V. Kostytskyi, A. I. Marushchak, since the origin of mankind. In the con- V. Y. Nastyuk, D. M. Prokofieva, text of the above, there are noteworthy N. A. Sa-vinova, E. D. Skulysh, conclusions made by renowned scientist M. P. Strelbytskyi, V. I. Tymoshenko, in the field of history of science, Y. M. Ka O. M. Yurchenko and others. Actual nygin, which, in particular, noted: «In problems of legal informatics and legal formatics is something new – even for modeling were studied by D. V. Lande, us… Information has become the subject V. M. Furashev, S. M. Braichevskyi, of study only recently… But now it turns I. F. Korzh, O. V. Gladkivska, S. V. Lyk- out that the basic elements of informatics hostup, M. Y. Shvets and other scientists. (including information theory and ma At the same time, only a few publica- chines for its processing) existed in pre- tions was devoted to historical and legal antique times! ... In Plato’s dialogues aspects of the formation and develop- «Timaeus» we can find a detailed expla ment of information sphere, public in- nation of coding issues («core» of infor formation relations and information mation theory), the value of which is law1. growing rapidly in our time. …Analysis of traditional Buddhist techniques of 1 Пилипчук В. Г., Беланюк М. В. Історич- meditation training reveals its striking ні аспекти розробки і впровадження наукової спеціальності 12.00.13 – «Інформаційне resemblance to algorithms defined by право; право інтелектуальної власності» / contemporary artificial intelligence re В. Г. Пилипчук, М. В. Беланюк // Інформація searchers (5th generation computers)»2. і право, 2016. – № 2 (17). – С. 5–14.; Бриж- Similar estimates were expressed in ко В. М., Гладківська О. В., Швець М. Я. На- writings of G. V. Vasilieva, L. Oppen- уково-дослідний центр правової інформати- ки Академії правових наук України (станов- heym and other researchers of ancient лення та результати) : Науково-популярне civilizations. видання / В. Брижко, за ред. М. Швеця, That is, the study of the history of О. Гладківської. – К.: НДЦПІ АПрН України, information sphere and regulation of in- 2009. – 16 с.; Швець М. Я., Брижко В. М., Гладківська О. В. Наукова діяльність Науко- во-дослідного центру правової інформатики ництво ТОВ «ПанТот», 2010. – 32 с.; Пилип- Національної академії правових наук Украї- чук В. Г., Фурашев В. М., Гладківська О. В. ни: довідник (2001–2010 рр.) / упорядники: Історія Науково-дослідного інституту інфор- В. М. Брижко, О. В. Гладківська, за ред. матики і права НАПрН України та розвитку М. Я. Швеця. – К.: ТОВ «Пан-Тот», 2010. – правової науки в інформаційній сфері / Пи- 70 с.; Микола Якович Швець (до 75-річчя від липчук В. Г., Фурашев В. М., Гладківсь- дня народження та 45-річчя науково-дослід- ка О. В. // Вісник НАПрН України. – Харків : ної, науково-педагогічної і громадської «Право». –№ 2(73). – 2013. – С. 290–300. діяльності) : Біографія і бібліографія вчених 2 Каныгин Ю. М. Путь ариев: Украина Національної академії правових наук Украї- в духовной истории человечества. – К. : Изд- ни. – НДЦПІ НАПрН України. – К. : Видав- во А. С. К., 2003. – С. 136–139.

86 Yearbook of ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere... formation relations will contribute to until the second half of the twentieth more effective solution of current legal century); issues of the information activities, in – industrial society (began to emerge particular, in the following areas: elec in the XVIII century and was formed in tronic governance, e-Parliament and e- the second half of the twentieth century); government; provision of administrative – information society (began to emer- services and access to public informa ge in the end of the twentieth century). tion; telecommunications, communica Each of these periods had its char- tions and informatization; media, Inter acteristic features of social relations in net, advertising; publishing, libraries, different spheres of life and their appro- archives and museums; state statistics, priate adjustment (at the level of cus- document management, digital signa toms, traditions, religion or law). The ture; information activities in the fields main difference between the modern of education and science, culture and process of information society formation arts, in economic, financial, banking and is the rapid change of social relations in other sectors. all spheres of human life, society and the Information globalization naturally state, which requires a radical revision raises a number of philosophical and of the role of modern legal science. legal questions, understanding of which Systemic historical and legal prob- requires to apply to the nature of the in- lem is the lack of a common understand- formation sphere, information society, ing of the nature of information as a key information and ideas about it as a phe- component of the information society nomenon of modern civilization. and the global information space. Today Ukraine and the world is actually we have somewhat simplified approach undergoing quite difficult transition to the definition of «information» con- from an industrial to an information cept at the legislative level, which boils society. A historical analysis conducted, down to the synonymous terms «infor- and application of studies logic of mation» or «data». E. Toffler allow to distinguish the fol- However, as the history of science lowing major historical periods of de- shows, we deal with information in man- velopment of society and public rela- agement and communication systems, tions in Ukraine1: information technologies, languages and – agrarian society (began to form biological systems, information systems about 7,500 years ago, since the devel- in living cells etc. Therefore, taking into oped agrarian civilization – the so-called account doctrines of K. Tsiolkovskyi, «culture of Tripoli» and actually existed V. Vernadskyi, O. Chizhevskyi, N. Viner, V. Gitt and other scientists, the «infor- 1 Пилипчук В. Г., Дзьобань О. П. Інфор- mation» term, along with terms «ener маційне суспільство : філософсько-правовий gy» and «matter» must be referred to the вимір : Монографія / Пилипчук В. Г., Дзьо- fundamental values that form the basis бань О. П. – Ужгород : TOB «IBA», 2014. – С. 247. of the universe and are the basis for mod-

№ 9/2017 87 State-legal sciences and international law ern science1. The process of scientific of their technological implementation understanding of the role and value of became apparent. information can be divided into three Since the mid 50-ies of XX century periods: pre-cybernetic, cybernetic and began the so-called cybernetic period of post-cybernetic2. the information understanding. 50’s and Pre-cybernetic period is associated 60’s of last century were marked by the with traditional (on a philosophical lev- flowering of cybernetics and electronics. el) understanding of the preconditions Representatives of these sciences created for the existence of information ex- the first and further generations of elec- change itself. It started in the days of the tronic computers, including personal Hellenic and post-Hellenic civilization computers. In that period basic informa- and was completed by the period of in- tion theories were formed and rapidly developed. The theoretical legacy of that dustrial revolution of the late XIX cen- time still is the main basis for science in tury. Information right also arose under the study of information problems. these conditions3. As an example, we can The period of cybernetic understand- mention facial right (originated from ing of the role and value of information fas – self), which regulated access to the continued until 1990, that is before the information within the divine will. mass informatization, when the stage of The beginning of the XX century PC introducing, digital information was linked to fundamental discoveries transmission lines and creating a new of modern scientific paradigm: probabil- class of information technology has be- ity theory and quantum mechanics. They gun. High-speed information transmis- created the basic preconditions for sci- sion, as well as its high-tech processing, entific and technological progress in its storage and use have created a new lev- modern vision. But these discoveries el of understanding of the nature and began to be implemented on a technical importance of the information in society. level in the mid XX century, when paths So-called post-cybernetic period began in 1990s and exists till now – the 1 Каныгин Ю. М. Путь ариев: Украина period of mass development of high-tech в духовной истории человечества. – К. : Изд- information and communications sys- во А. С. К., 2003. – С. 136–139. 2 Пилипчук В. Г., Дзьобань О. П. Феномен tems, information technologies, resourc- інформації: історико-правові та філософські es, products and services and their im- аспекти / В. Г. Пилипчук, О. П. Дзьобань // plementation in all areas of human life, Інформація і право. К., 2015. – № 1 (13). – society, state and international commu- С. 5–14. nity. 3 Зарипова З. Н. Правовое регулирование образовательной реформы в России второй During the abovementioned post- половины ХVІІІ века: автореф. Дис. …канд. cybernetic period at the end of the XX – юрид. наук : 12.00.01 «Теория государства и beginning of XXI century, information права. История государства и права. История revolution took place in Ukraine and политических и правовых учений» / З. Н. За- рипова. – Н. Новгород, 2000. – 21 с. worldwide, one of the key features of

88 Yearbook of ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere... which is the rapid development of infor- ber of the legal professional scientists, mation technologies and growing impor- including the directions of contemporary tance of information that led to the for- scientific expertise in public law and ad- mation of information society. According ministration, administrative law. to the definition provided by the Euro- A positive historical experience and pean Commission in 1993, an informa- a classic example of a combination of tion society is a society in which human science and production seems to have activities are carried out through the use been the fact that new areas of science of services provided through information and technology development in Ukraine and communication technologies. were then maintained at the level of state Historical analysis shows that the policy, and academic institutions re- question of building components of the ceived adequate financial, logistical and information society and the legal regula- other resource provision. Accordingly, tion of information relations have been based on comprehensive scientific re- actively processed in the leading coun- search, research and production facilities tries of the world only in the second half were established and industrial produc- of the twentieth century. In 1970s in tion developed. Thereafter, positive na- Ukraine famous scientists Glush- tional experience in shaping and imple- kov V. M. and Amosov M. M. first in the menting public policy in science and world raised a number of fundamental technology areas and relevant scientific problems in this area, but their further and production potential were largely comprehensive development was main- lost. In the course of comparison, we ly carried out by scientists from Western may note that these negative trends in Europe, USA and Japan. scientific and technical sphere develop- It should be noted that in Ukraine in ment continue today. the 70s of last century cybernetic science Processes of informatization that oc- and computer science began to take ac- curred throughout the civilized world, tive development, and scientific achieve- could not remain unnoticed by the lead- ments were applied in complex process- ership of a sovereign Ukrainian state. ing of organizational and legal problems But in the early 1990s, this work was carried out fairly piecewise. The situa- of development of automated control tion began to change dramatically with systems, data-processing centers and the formation of the National Agency their implementation in national and de- For Informatization under the President partmental management systems etc. of Ukraine, according to the Decree of Along with the development of Cyber- the President of Ukraine dated March 13, netics Center of the Academy of Sci- 1995 № 206/95. ences of the Ukrainian SSR and other The beginning of systematic work in technical research institutions, socio- the field of information can be consid- legal research in this area at that time ered the adoption in February 1998 (for involved the Institute of State and Law the first time in the post-soviet territory) named after V. M. Koretskyi, and a num- of the Laws of Ukraine «On the Concept

№ 9/2017 89 State-legal sciences and international law of the National Informatization Pro of the Verkhovna Rada of Ukraine «On gram» and «On the National Informati the Development of the package of draft zation Program», which were developed laws on issues of informatization and with the participation of Cybernetic Cen- information protection»1, according to ter of National Academy of Sciences of which the Cabinet of Ministers of Uk Ukraine, the National Agency for infor- raine was instructed to develop and sub- matization under the President of mit to the Verkhovna Rada of Ukraine Ukraine, the Cabinet of Ministers of package of draft laws on issues of in- Ukraine and the Secretariat of the Verk- formation and data protection, informa- hovna Rada of Ukraine. tion support economic and social devel- Further system work in the field of opment, protection of human rights in information and consolidation of inter- terms of information, state and com- ests of the public and private sectors mercial secrets, responsibility for viola- were enhanced by the activities of the tions in the operation of information, State Commission on prevention and document management reform, infor- elimination of possible negative conse- mation resources export control, access quences of computer crisis of 2000 and to information, etc. before September 1, the Government Commission on the in- 1992. formation and analytical support of ex- As a result, according to the esti- ecutive bodies set up by Decrees of mates made by scientists of the Research Cabinet of Ministers of Ukraine dated Institute Of Informatics And Law of Na- 16.02.1999 № 218 and № 777 dated tional Academy of Legal Sciences of 7.05.2000, respectively. Ukraine (NDIIP NAPrN of Ukraine), in In the same period in the Ukraine the late 90ies of the last century informa- started the active formation of information legislation already contained signifi- tion legislation, which now contains cant array of regulations (over 260 laws, about 4 thousand laws and other legal 295 Resolutions of the Verkhovna Rada acts regulating modern information rela- of Ukraine, 470 decrees and orders of tions and creating the legal conditions President of Ukraine, 1 370 decisions and for the development of the functional orders of the Cabinet of Ministers of areas of information activities. Ukraine, and over 1 500 acts of ministries In terms of the chronology of legisla- and agencies)2. tive activity in Ukraine in the late XX – early XXI century we may identify the 1 Про розробку пакету проектів законів following main stages of formation of з проблем інформатизації та захисту інфор- the national information legislation: мації : Постанова Президії Верховної Ради 1) creating legal bases of formation України від 24.03.1992 р. № 2212-XII // Ві домості Верховної Ради України (ВВР). – and development of information sphere 1992. – № 26. – Ст. 368. [Електронний ре- in Ukraine. The key act for the imple- сурс]. – Режим доступу: http://zakon.rada. mentation of the above was the adop- gov.ua/laws/show/2212-12. tion of the Resolution of the Presidium 2 Швець М. Я., Цимбалюк В. С. та ін. Ін- формаційне законодавство України: концеп-

90 Yearbook of ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere...

A positive feature of the first stage of – Governmental Commission on In- the formation of a national information formation And Analytical Support Of legislation, according to our estimates, Executive Bodies (2000), supported by was development of a basic regulations the Scientific and Technical Council the that contributed to the development of State Committee on the Communication the information sector and laid the foun- and Informatization of Ukraine, adopt- dation for the development of informa- ed the decision to support and take as a tion society in Ukraine. However, a sig- basis the draft Concept of reforming the nificant drawback was the permanent legislation of Ukraine in the area of adoption of a large number of legislative public information relations with rec- acts, in which provisions are often not ommendation on inclusion for comple- consistent with each other, which cretion and filing as a regulatory act for the ated significant problems in the law en- National Informatization Program of forcement activity; Ukraine. 2) legal support for formation and Basis of the Concept, developed by implementation of government policy on scientists at the initiative of the National Academy of Legal Sciences of Ukraine, informatization and policy on develop National Academy of Internal Affairs of ment of national information legislation. Ukraine and the Interdepartmental Cen- The main events at this stage in terms of ter for combating organized crime at history are: NSDC of Ukraine, was the complex of – adoption of the Concept of Nation- 1 organizational and legal measures, inal Informatization Program , according cluding those designed for the develop- to which, in particular, as a basis for the ment of the Information Code of state policy based on a combination of Ukraine2. Analysis of the Concept con- the principles of centralization and de- tent also showed dynamic development centralization, self development etc. of Ukrainian legal science in the infor- government regulation was supposed to mation sector; be used, which would ensure consis- – definition by National Informatiza- tency, coherence and integrated develop- tion Program for 2000–20023 of the goal ment of the country; to prepare the Concept of creation of regulatory basis in the field of informa- туальні основи формування / М. Я. Швець, В. С. Цимбалюк, В. Д. Гавловський, Р. А. Ка- 2 Тацій В., Лисицький В. До питання ре- люжний // Право України. – 2001. – № 7. – формування законодавства України у сфері С. 81–88. 1 суспільних інформаційних відносин / В. Та- Концепція Національної програми ін- цій, В. Лисицький // Вісник Академії право- форматизації : Схвалено Законом України вих наук України. – 2000. – № 4. – С. 298–302. «Про Концепцію Національної програми 3 Завдання Національної програми інфор- інформатизації» від 4 лютого 1998 року матизації на 2000–2002 роки : Додаток до № 75/98-ВР // ВВР. – 1998. – № 27–28. – Постанови Верховної Ради України від Ст. 182. [Електронний ресурс]. – Режим до- 06.07.2000 р. № 1851-III [Електронний ре- ступу: http://zakon.rada.gov.ua/laws/show/ сурс]. – Режим доступу: http://zakon.rada. 75/98-вр. gov.ua/laws/show/1851-14.

№ 9/2017 91 State-legal sciences and international law tion; as well asadoption of decision of the information society in Ukraine in 2007– NSDC of Ukraine dated 31.10.2001. «On 2015 years were approved legally3 and measures to improve state information order was issued by the Cabinet of Min- policy and ensure information security in isters of Ukraine «On approval of a plan Ukraine», which instructed the Cabinet of measures to implement the tasks of Ministers of Ukraine to develop a pro- stipulated by the Law of Ukraine «On posal for codification of legislation on the Basic principles of information so- 1 ciety development in Ukraine in 2007– information relations ; 4 – introducing legal mechanisms to 2015» . It is noteworthy that these documents ensure interaction between science and determined the need to take actions on practice of state management in the List codification of information legislation, of tasks (projects) of the National Infor- improving the efficiency of the informa- matization Program for 2002, their state tion society development and the cre- customers and funding2. In particular, ation of an integrated system of legisla- this List instructed the State Committee tion harmonized with international law. on Communication of Ukraine to orga- That plan also provided for the develop- nize research on reforming legislation in ment in 2009 of the draft Information the field of public information relations Code of Ukraine. and identified the expected results, in- The feature of the second phase was cluding preparing comparative assess- the adoption of a number of decisions ment of legislation of developed coun- and legislation acts necessary for the tries for informatization and working formation and implementation of state materials to the draft Code of Informa- information policy, policy of ensuring information security of Ukraine, and the tion Law in Ukraine; introduction of complex measures to the – determination of the strategy of development of the information society development of information society in and information law in Ukraine. How- Ukraine, for what basic principles of ever, much of these decisions remained unimplemented. 1 Указ Президента України від 6 грудня 2001 року № 1193/2001 «Про рішення Ради 3 Основні засади розвитку інформаційно- національної безпеки і оборони України від го суспільства в Україні на 2007–2015 роки, 31 жовтня 2001 року «Про заходи щодо вдо затверджені Законом України від 09 січня сконалення державної інформаційної політи- 2007 року № 537-V [Електронний ресурс на ки та забезпечення інформаційної безпеки DVD] // Бібліотека баз даних і знань в галузі України»: [Електронний ресурс]. – Режим держави і права. – К. : НДЦПІ НАПрН Украї- доступу: http://www.raga.gov.ua. ни. – 12.02.2011. 2 Перелік завдань (проектів) Національної 4 Розпорядження Кабінету Міністрів Ук програми інформатизації на 2002 рік, їх дер- раїни від 15.08.2007 р. № 653-р. «Про План жавні замовники та обсяги фінансування, заходів з виконання завдань, передбачених затверджений розпорядженням Кабінету Законом України «Про Основні засади роз- Міністрів України від 13.06.2002 р. № 323-р. витку інформаційного суспільства в Україні [Електронний ресурс]. – Режим доступу: на 2007–2015 роки»: [Електронний ресурс]. – http://zakon4.rada.gov.ua/laws/show/323- Режим доступу: http://zakon.rada.gov.ua/laws/ 2002-р. show/653-2007-р.

92 Yearbook of ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere...

The results obtained from studies1 – the legislation on protection of make it possible to isolate certain his- personal data require considerable elab- torical features, trends and systemic oration and harmonization with EU reg- problems of formation of national in- ulations, developing and introducing formation law (end of XX – beginning legal mechanisms for implementation of of XXI century), which need further the human right of ownership to their complex processing, including: personal data; – standard-setting activities in the – proper attention wasn’t paid to information sphere were often carried legislative regulation of one of the main out in the absence of national consis- functions of the state – provision of in- tency, by fragmented solving existing formation security of Ukraine. problems in some laws and other regula- It should be noted that in recent years tory acts. There are significant differ- the above-mentioned issues were supple- ences in the understanding of a system mented with other negative trends, in- of information legislation and approach- cluding those related to the protection es to its formation; of rights, freedoms and human secu- – various laws and regulations gov- rity in the information sector, access to erning public information relations for public information, legal regulation 20 years were adopted without sufficient and protection of information of public coordination in conceptual and categor- electronic registers etc2. ical apparatus and used a number of To address these systemic problems, terms that are not correct and ambigu- we should listen to the advice of EU ously perceived by participants of infor- experts on the need for more active in- mation activities; volvement of the experts and scientists – the legislative process in the infor- of scientific institutions and education- mation sector was often carried out without proper coordination with interna- al institutions of Ukraine by central ex- tional information law regulations and ecutive bodies and local authorities to provisions of legal acts of the European study the existing problems. Now, as Union. A large number of legal rules the analysis shows, these suggestions governing information relations is scat- Проблеми становлення і розвитку інформа- tered in different laws and other legal ційного законодавства в контексті євроінте acts, which complicates their practical грації України / Пилипчук В. Г., Брижко В. М. application; // Інформація і право : науковий журнал. – К. : НДЦПІ НАПрН України, 2011. – № 1 (1). – 1 Пилипчук В. Г., Баранов О. А., Цимба- С. 11–19. люк В. С. Концептуальні основи кодифікації 2 Пилипчук В. Г. Актуальні питання захи- інформаційного законодавства України : сту прав, свобод і безпеки людини в сучасно- [підрозд. 5.2] / В. Г. Пилипчук, О. А. Баранов, му інформаційному суспільстві / Проблеми В. С. Цимбалюк // Правова доктрина Украї- захисту прав людини в інформаційному су- ни : У 5 т. / Нац. акад. прав. наук України; спільстві: Збірник матеріалів науково-пра- редкол. В. Я. Тацій [та ін.]. – Х. : Право, 2013. – ктичної конференції / Упорядн. Фура- Т. 2: Публічно-правова доктрина України. – шев В. М., Петряев С. Ю. – К. : Вид-во «Полі- С. 780–805; Пилипчук В. Г., Брижко В. М. техніка», 2016. – С. 6–8.

№ 9/2017 93 State-legal sciences and international law are usually followed by the Ukrainian For the sake of comparison, we parliament. Although, for the sake of should take into account the presenta- historical justice, it should be noted that tions of representatives of Germany and in the late twentieth and early years of the UK during that round table. In par- the twenty-first century public authori- ticular, an expert on information law in ties paid more attention to scientific and Germany Matthias Rossi said that in legal provision of the information Germany information law includes con- sphere development. stitutional right to information, interna- Another reason that restrained the tional information law, information development of the information sphere, civil law, information criminal law, and information law and information legisla- information public (state and adminis- tion, according to our estimates, were trative) law. The right to data protec- significant differences between special- tion, the right to protection of privacy, ists, experts and scientists on priorities the right of access to information, tele- and ways of their development. communication law, postal law, elec- As an example in the context of the tronic information services law, the above, we can mention the attempt of right of broadcasting, right of the press the Center for Political and Legal Re- are considered as separate institutions. forms to clarify and summarize the idea Instead, according to the expert presen- of the information right in the course of tations, in the UK media law examines the round table held in 2004 «Informa- all issues related to the collection and tion right: status and prospects of de- dissemination of information, and tele- velopment in Ukraine»1. As it turned communication right investigates and out, the views of various experts with regulates the means of disseminating regard to information law at that time information. varied considerably. Those who have Some solutions to this problem, dealt with the media, believed that the given the achievements of various information law is their area, this is the branches of science, including philo- right of media. Similar statements, but sophical, sociological, political, psy- in their favor, were made by experts in chological, educational, technical, have communications, telecommunications, been proposed in the 2012–2016 years informatization, informatics and cyber- by scientists from the Research Institute netics. The most heated debates were Of Informatics And Law of National related to determining the place of the Academy of Legal Sciences of Ukraine, information law in the legal system of which has now become one of the lead- Ukraine. ing research institutions in the field of information law and information secu- 1 Т. Шевченко «Інформаційне право: для rity, particularly in developed draft журналістів чи для програмістів?» [Елект Concept of codification of information ронний ресурс]. – Режим доступу: http:// legislation of Ukraine (2012), prepared medialaw.org.ua/analytics/informatsijne-pravo- dlya-zhurnalistiv-chy-dlya-programistiv. by the Research Institute Of Informatics

94 Yearbook of ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere...

And Law of National Academy of Legal Another area of information law and Sciences of Ukraine together with the information society, as evidenced by re- Research Institute of Intellectual Prop- cent history, was the introduction of sci- erty of National Academy of Legal Sci- entific achievements in scientific and ences of Ukraine and supported by educational activities. To this end, a MES of Ukraine (2014) proposals on number of scientists since the late 90s of the implementation of scientific spe last century began teaching disciplines cialty 12.00.13. – «information law; on problems of regulation of social rela- intellectual property right» and other tions in the information sphere in higher works1. educational institutions of Ukraine. Development of information law and Among the first, we can mention teach- information sphere in Ukraine was sig- ing in 1998–1999 years of discipline nificantly stimulated by the decision of «Information Law» in the Kiev Institute the General Meeting of National Acad- of Economics, Management and Com- emy of Legal Sciences of Ukraine, which mercial Law3. approved the priorities for the develop- A good example of integrating re- ment of legal science in the information search and education in the field of in- sector in 2011–2015 and 2016–2020 formation law was the creation of com- years developed by scientists of the Re- mon Educational and Scientific Center search Institute Of Informatics And Law of Information Law and Legal Issues of of National Academy of Legal Sciences Information Technology in 2013 by SRI of Ukraine. More important in the con- of Informatics and Law of National text of the above, in our view, should be Academy of Legal Sciences of Ukraine the role of a set of measures proposed and National Technical University of during parliamentary hearings held by Ukraine «KPI». One of the main objec- the Verkhovna Rada of Ukraine, in par- tives of the Center was determined as the ticular: «Society, media, government: development and implementation in the freedom of speech and censorship in learning process of necessary scientific Ukraine» (2003), «Legislative support and methodological materials for new for the development of information soci ety in Ukraine» (2014) etc.2 масової інформації, влада: свобода слова і цензура в Україні». – [Електронний ре- сурс]. – Режим доступу: www.raga.gov.ua; 1 Концепція кодифікації інформаційного Постанова Верховної Ради України «Про законодавства України // Інформація і право : затвердження рекомендацій парламентських науковий журнал. – К. : НДЦПІ НАПрН слухань на тему: «Законодавче забезпечення України, 2012. – № 1 (4). – С. 1–6; Наказ розвитку інформаційного суспільства в Міністерства освіти і науки, молоді та спор- Україні» від 3 липня 2014 року № 1565-VII / ту України від 14.09.2014 р. № 1057 [Елект Відомості Верховної Ради (ВВР), 2014, № 33, ронний ресурс]. – Режим доступу: http:// ст. 1163. zakon5.rada.gov.ua/laws/show/z1133-11. 3 Цимбалюк В. С., Гавловський В. Д. Ін- 2 Постанова Верховної Ради України від формаційне право. Навчально-методичний 16.01.2003 р. № 441-IV «Про підсумки парла- комплекс. – К. : Інститут економіки управ- ментських слухань «Суспільство, засоби ління та господарського права. 1999. – 183 с.

№ 9/2017 95 State-legal sciences and international law courses. As a result, in 2014–2015 years and public relations in Ukraine (agrar scientists of the Research Institute of ian society, industrial society, informa Informatics and Law of National Acad- tion society). Each of these societies has emy of Legal Sciences of Ukraine and been characterized with certain informa- National Technical University of Ukraine tion relations and features of regulation «KPI» prepared and provided with all of information activities at the level of the necessary learning and teaching ma- customs, religion, law, requiring com- terials teaching a number of courses on prehensive scientific study. This will fa- specialty «Information Law», in par- cilitate the identification of historic fea- ticular: «Information Society And Law», tures, patterns and trends, as well as «Fundamentals Of Information Law,» identification of further areas of develop- «Fundamentals Of Information Securi ment of information sphere and informa- ty», «International Information Law», tion rights in the modern world. «Information And Social and Legal 2. Systemic historical and legal Modeling», «Modern Methods Of Infor problem is the lack of a common un- mation And Social And Legal Model derstanding of the nature of informa- ing», «Legal Issues of Information And tion as a key component of the infor- Communication Technologies», «Infor mation society and the global informa- mation Resources» etc.1 tion space. Today we have somewhat In general, consideration of the ac- simplified approach to the definition of tual historical and legal problems of for- «information» concept, which boils mation and development of the informa- down to the synonymous terms «infor- tion sector, information society and in- mation» or «data». However, as the formation law in Ukraine at the end of history of science shows, we deal with the XX–XXI century makes it possible information in management and com- to reach the following main conclusions munication systems, information tech- and proposals: nologies, languages and biological 1. Genesis of the scientific research systems, information systems in living shows that the information sphere ex- cells etc. Therefore, taking into ac- isted since the origin of mankind and count current scientific achievements, public relations. A historical analysis the «information» term, along with conducted makes it possible to deter- terms «energy» and «matter» must be mine periods of development of society referred to the fundamental values that form the basis of the universe and are 1 Пилипчук В. Г., Фурашев В. М. Тран- the basis for modern science, including сформація центру правової інформатики в legal. Науково-дослідний інститут інформатики і права: становлення, здобутки, пріорите- 3. The actual scientific problem in ти (2011–2015 рр.): Науково-інформацій- the present conditions is studying mod- ний огляд / В. Г. Пилипчук, В. М. Фурашев, ern history of formation and develop- за інформаційно-технічної підтримки ment of public relations in the informa- В. М. Брижка, В. В. Поперечнюк, О. Г. Рад- зієвської. – К. : ТОВ «ПанТот», 2016. – С. 29. tion sphere. It seems expedient to in-

96 Yearbook of ukrainian law Historical and legal issues of formation Pylypchuk V., Tsymbalyuk V. and development of the information sphere... clude the following in the priority areas society, the state and the international of historical and legal research on this community; issue: – studying the historical and legal – genesis of scientific thought to issues of ensuring the information secu- protect the rights, freedoms and human rity, countering the information terror- security in the information sector and ism, cybercrime and other offenses, the finding the balance between human development of national and interna- rights and the need to protect the legiti- tional security systems in the informa- mate interests of society and the state in tion sphere. the information sphere; In general, historical and legal prob- – studying the history of socio-polit- lems of formation and development of ical and legal doctrines on the establish- social information relations in times of ment and development of the information modern history and in different histori- sector and the information society, public cal periods in Ukraine and abroad re- policy and public administration in the quire further reflection and comprehen- information sector, information law and sive scientific study to facilitate the information legislation; establishment of a modern information – Analysis of historical and legal society and innovative development of problems of informatization, develop- Ukraine. ment and implementation of information Published: Вісник Національної академії technology, resources, products and ser- правових наук України. – 2016. – № 4 (87). – vices in various spheres of human life, С. 29–44.

№ 9/2017 97 V. Nastiuk, Doctor of Legal Sciences, Pro- fessor, Head of the Department of Admin- istrative Law and Administrative Activities Yaroslav Mudryі National Law University

UDC 342.951:351.82

The Democratic control over the Safety Sector during the fight against terrorism

There is no formally recognized in- mines terrorism by fight against terror- ternational legal definition of terrorism1. ism of the USA (February, 2003) as: The national strategy of safety deter- «the deliberate, politically motivated violence aimed against non-belligerent 1 During a meeting in Bern, Switzerland, in the framework of «Partnership for Peace», persons from marginal groups or secret 22 April 2002 Colonel Nick Pratt (retired) said agents». Magnus Norrell, the Swedish that there are 109 academic definitions of the counterterrorism expert, gives the fol- term ‘terrorism’. April 2, 2002 Islamic states lowing working definition: «systematic were unable to reach a common definition of «terrorism» at a meeting of the Organization of use of the illegal violence from non- the Islamic Conference (OIC) in Malaysia. The state or sub public authorities which is different views on the nature of the Palestinian especially aimed on non-belligerent struggle against Israel – the «struggle for and/or civilians for achievement of freedom» or «terrorism» were the obstacle definite purposes. These purposes can (Financial Times, April 3, 2002). Prof. Dr. Kemal Beyglou, an American expert on counter- be political, social or religious depend- espionage, September 16, 2002 emphasized ing on what group is meant. Terrorism during his lecture at the Atlantic Club in Sofia, becomes international when it is carried that the best concise definition of the term out beyond the borders of the country – «terrorism» is a «politically motivated attack on unarmed civilian people.» Chris Donnelly of a source of formation of group or when NATO regards terrorism as «tactics» (Donnelly he is directed to foreign citizens within / CND / 2002/090 / Spain / 26/04/2002 / – C. 5); the country – a source of formation of Trofimov S. A. considers terrorism as criminal group»2. activities of a terrorist directions (Правове ре- гулювання антитерористичної діяльності в Україні: монографія / С. А. Трофімов. – Х. : 2 Magnus Norrel, The Role of the Military Право. – 2012. – С. 12–64.). and Intelligence in Combating Terrorism,

98 Yearbook of Ukrainian law The democratic control over the safety Nastiuk V. sector during the fight against terrorism

In addition it is possible to tell that fanaticism, religiousness and policy of today terrorism is the global phenome- violence; non: terrorists are organized in network h) the use of weapons of mass defeat and can carry out activity from every is the mad, but direct purpose of terrorist spot on the globe. Neutralization of one or proponents threat. segment of the organization doesn’t Well, any state with democratic so- mean the end of existence of all net- ciety or being in process of democratiza- works. Besides, we deal with terrorists tion shouldn’t remain away from attempt who are guided by extremely religious to deprive terrorism of his ability to motivation to action doing them even blackmail and degradation of society. more fanatical and ready to work, with- People expect that fight against terrorism out doing distinctions. Disposal of all will end with a victory, and they will be «incorrect», not excepting uses nuclear able to continue a normal and free way or weapons of mass destruction, is an of life which they conducted earlier, ap- essential part of thinking of new terror- plicable Ukraine till February, 2014. ists. The deep satisfaction of leaders of However, it is only one of concepts of the Islamic State with a large number of how democracy has to react to terrorism. the victims as a result of fighting in Syr- Other concept which isn’t deprived of ia and other countries acts and extends common sense reflects other approach terrorists worldwide. In the working pur- which doesn’t exclude the terrorism phe- poses we mark out the following key nomenon, but, in view of constant pres- features and prospects of the phenome- ence of terrorism at public life, adapts to non of terrorism: him. An essence of this thinking is that a) the terrorism causes death to the the democratic countries with their open innocent and not involved in the con- societies, the rights and civil liberties flicts people; will be always vulnerable in the face of b) the terrorism is tool/tactics of war- the terrorism. These societies will never fare (hybrid) action; be capable to protect all purposes, al- c) the terrorism has the indistinct ter- ways, against all possible attacks that ritorial and legal framework of activity; mean that terrorism will be always at- d) the terrorism becomes more and tractive to enemies of democracy and more dangerous; progress. Though vigilance of society e) the terrorism shows the large-scale and individuals always on call in the «force of suicide», putting into the ques- democratic state fighting against the ter- tion the traditional rational approaches rorism, expectations from this fight have to application of military and other vio- to remain realistic, it concerns also re- lence; duction of vulnerability of democrati- f) the terrorism carries global scale; cally dug out society. g) the terrorism is motivated with Both concepts offer the legitimate arguments and exits caused by this di- Romanian Journal of International Affairs 8:4 (2002). – Р. 42. lemma of democracy fighting against the

№ 9/2017 99 State-legal sciences and international law terrorism, consisting the next parallel non-Islamists, who have undertaken ob- behavioral ways: ligation to an executive government, and Firstly, despite necessary restrictions there is also a need for a diplomatic proof some rights and freedoms of the dem- cess to establish a credible framework ocratic society during fight against the for delegitimizing terrorism. terrorism, protection of basic principles Certainly, determination and work- of the democracy and preservation of all ing upon these ambitious purposes and measures directed against the terrorism implementation of them require the cre- in the established framework of the dem- ation of civil society with proper respect ocratic procedures, is obligatory for any for pluralism in Muslim countries of the democratic state. Preservation of balance world. Muslims learning the introduc- between the principles and interests isn’t tion of democracy in Muslim society a simple task, but it is the only way of emphasize the key role of Muslim intel- overcoming tension or crisis in fight of lectuals in transformation of public at- the democratic society with itself and at titude and help to get rid of medieval the same time in fight against terrorism. model, which is supported by some Mus- It is known of inadmissibility of use of lim clerics. It is on behalf of Islam and a campaign against the terrorism as way other religions to help Islam to upgrade of suppression of lawful disagreement or internal organization of religion by cre- as way of suppression of the people ex- ation and intensification of supranation- pressing the opinion to the government. al leadership and governing structures. If we want to prevail over terrorism, we However, the depolicitization of ad- have to carry out it, respecting human aptation difficulties of Islamic funda- dignity and human rights. The sphere in mentalism to globalization requirements which the democratic governments and has to be the fundamental strategic target societies risk to fail is the sphere with of Muslim and non-Muslim intellectuals. excessive concentration of the power in The adaptation to the needs of global any body. There is very fair question international situation becomes the key concerning democracy: Should NATO content of most countries’ policy over countries to reconsider their faith in the the last decade. Other countries per- system of checks and balances under the ceived new tendencies to establishing of influence of terrorism? global world as a threat for their exis- Secondly, it should be applied to ef- tence. Hiding behind the existing differ- forts to democratize Islam and prevent ences between religion and culture of that Islamic clerical parties contributed Near East countries that are poorer the to prolonging the process. The main is- Western Countries, the supporters of sue in the debate is the fact that Muslims, radical Islam decided to attack. For in- as such, are not a problem, the problem stance, the goal of terroristic act on Sep- is radical Muslims. On this basis, we can tember 22nd, 2001 was to give political agree that the key to a sustainable future definition of collision format between is a coalition of moderate Islamists and radical Islam and approaching econom-

100 Yearbook of ukrainian law The democratic control over the safety Nastiuk V. sector during the fight against terrorism ic, political and cultural globalization. The first – long-term and wider: 1) to Collision form «suffering Islam» against conquer hearts and minds of potential «world Americanization» was the most globalization victims; 2) to prove them, successful. The idea of «the collision of that terrorism is not the exit way from civilizations», poverty in Muslim world, difficulties and negative consequences failed countries, especially Muslim are of humanitarian progress; 3) to deprive tendencies that are used by the terrorists. the terroristic nets of access to poor, de- The readiness of separate Muslims all spaired people; 4) to prove that global- over the world to accept the globaliza- ization provides civilized way out of tion idea as opportunity to improve their difficult situation, prevailing in the pe- life conditions with lots of chances for riod of adaptation to new economic, choice is the key disappointment of radical Islam. This readiness of Muslims to technological and informational situa- accept the globalization and get rid of tion. conservative Islam fundamental habits The second – medium-term: 1) the and relations possibly overbalance those, help frustrated countries in achieving who are interested in manipulation of prosperity. East Europe region is the consciousness of believers. most important whose success will be The globalization and democracy stimulus for positive processes in Black success is the result of the victory in the and Caspian Seas region; 2) the involv- fight for democratic rights in non-West ing of Islam in civil society, the separa- countries and the fact of that national tion of religion from country and con- boundaries and sovereignty cannot save struction of democracy, impacting on people who go against social, political religious reforms, that would demotivate and technological progress. One more fanatical terrorism; 3) the upgrading of reason is the creation of more and more cooperation and coordination of the effective forms and institutes of global main centers in their antiterrorist and management. The attack and dissuasion counterterrorist actions. of those, who support these tendencies The third – short-term: 1) the preven- as well as the attack on the global man- tion of realization of terrorist actions agement centers by developing social with weapons of mass destruction ap- processes considered as way to preservation of Islamic fundamentalism and its plication; 2) the creation of instruments, extremist and aggressive embodiment. institutes and individuals training who The destruction of everything that glob- are able to effectively realize all opera- ally remain the only way for main de- tive actions of antiterrorist and counter- fenders of fundamental traditions – ex- terrorist fight on the terrorist controlled cessively radical embodiment of social, territories. religious and political life. The successful fight against terrorism There are three concentric and at the inevitably accelerates international sys- time strategic way for eradication of ter- tems’ constructive tendencies, globaliza- rorism. tion and positive social and economic ef-

№ 9/2017 101 State-legal sciences and international law fects of globalization. The progress of the The special measures must be taken fight provides the worlds’ religions with for the public awareness’ rising of vig- possibility to cooperate more humanly. ilance’s importance by society during Taking adequate measures with help war against the terrorism. These mea- of democratic procedures can narrow the sures have to be parallel to the similar field for terroristic groups’ maneuver on steps that are undertaken for improving the legal way. The adherence to the dem- of transparency, accountability and ocratic way means finding of adequate maintaining of the level of effectiveness standards for private life and safety at of counter-terrorism by security cen- the same time. Strict definitions already ters’ institutions. Similar requirements tightly connected both external and in- should be put toward the international ternal safety must be found. Internation- parliamentary forums that monitor al organizations’ safety potential must be counter-terrorism activities. The result focused on this problem in connection should be to create an atmosphere of with antiterrorist fight. trust in both national and international The institutional and legal formula levels between people and the relevant of close and integrated armed forces’ institutions of the volunteer movement work with police and intelligence is im- that engage the fight against transna- portant in purposes of eradication of ter- tional terrorism. rorism basis inside the country. There is a need in constructive decision and anti- Publshed: Bezpieczeństwo i zarządzanie terrorist thinking for the achievement of kryzysowe – bezpieczeństwo i obronność państwa (21-22 сентября 2016 г., г. Лодзь, agreement of special services and law Республика Польша). – Społeczna Akademia enforcement authorities’ cooperation of Nauk, Tom XVII, Zeszyt 5, Część 3. – С. 257– anti-terrorist countries. 264.

102 Yearbook of ukrainian law O. Dmytryk, Doctor in Law, Professor, professor of the Financial Law Department of Yaroslav Mudryi National Law University

UDC 347.73 PROCURING THE STABILITY OF THE FINANCIAL LAW: PROBLEMS AND PROSPECTS

Recently the problem of ensuring of only possible in the presence of favor- stability of the financial legislation gets able investment climate, one of the es- the particular relevance. sential components of which is precisely The fact is, that how stable will be the stable financial legislation1 . the financial law, will largely depend on Stability of the Financial Law pro- the effectiveness of financial and legal vides the operation of rules for a long regulation, the impact of it’s actions, time period, the absence of significant successful implementation of tasks to changes in its content. «This contributes perform which was created this legal act. to improve the management efficiency, Especially important open problem is because the appropriate body has enough due to the necessity for certainty tax ob- of time to examine in depth the actual ligation increased tendencies to attract targets and specialize in their practical investors for major projects and produc- implementation» 2. tion development programs. It is significant that on the existence It is no coincidence scientists empha- of issues related to ensuring the stabi- sized that the flow of both foreign and lity of the law, scientists focused in pre- domestic investment that contribute to 1 the development of infrastructure, utili- Козырин А. Н. Публичные финансы: взаимодействие государства и общества / ties, energetics, the improving competi- А. Н. Козырин. – М. : Статут, 2002. – С. 7. tiveness of the private sector of the econ- 2 Законность, правопорядок и правовая omy and improvement of information культура : материалы 3-ей межвузовской на- and communication technologies, etc., учно-практической конференции адъюнктов и аспирантов, (Москва, 20–22 мая 1974 г.). – to the country with a market economy is М. : Академия МВД СССР, 1974. – С. 39.

№ 9/2017 103 State-legal sciences and international law revolutionary’1917 times, as it was be- ability to meet the needs of society, due lieved that frequent changes in laws to the high quality, level of the develop- undermines respect for them1. Thus, ment technique and the language of the scientists insisted that means ensuring legal act3. stability can be: the passage of the law Based on these links, with a certain defined the procedure for adoption; es- conventionality can be characterized by tablishment of special, complicated stability decisions and conclusions of rules for adoption and making changes the Constitutional Court of Ukraine as of the most important laws (such as the a source of financial law, and that’s be- Basic Laws); development of the theo- cause the current legislation does not ry of «free jurisprudence», the essence provide for a procedure of changing of which is the full development of ju- previously adopted such acts. Analysis dicial discretion and case law2. of the current regulatory and legal acts, The scientific literature indicates which are ordering the public financial that the stability of the law – is a char- activities, including financial laws, in- acteristic of normative legal act adopted dicates about the presence of multiple, by the supreme authority of the State or unsystematic changes made to their by the nation in a special legislative content. For example, to the Tax Code procedure, which has supreme legal of Ukraine, (which was adopted De- force and regulates the most important cember 2, 2010 and entered into force public relations. According to this, the on January, 1, 2011, so – in violation of legal act is characterized by social con- the principle of stability), from Decem- ditioning; stable efficiency of the regu- ber 2010 till December 2016 were lation of relations, manifested in suffi- amended by more than 100 laws. And cient or satisfactory resolution of the at the same time, in twenty-one days challenges facing the development of after its adoption, i.e. before the intro- the legal act; absence of conflicts that duction of the Code, its provisions have could lead to the cancellation or partial been modified. During the year 2011, change of the legal act; set of essential amendments were made by sixteen features that reflect sufficient qualities laws, during the year 2012 – by thirteen of the legal act and which determine its laws, during the year 2013 – by nine, during the year 2014 – by twenty-six, during the year 2015 – by twenty-six, 1 Капустин М. Н. Теория права. Общая догматика / Капустин М. Н. – М. : Типогра- during the year 2016 – by five. To the фия Московского ун-та, 1868. – Т. 1. – С. 155. contents of the Budget Code of Ukraine, 2 Энциклопедичекий словарь русского which was adopted in the new edition библиографического института Гранат: в 58 т. / [ред. Ю. С. Гамбаров и др.]. – М., 1907. – Т. 30. – С. 467; Гредескул Н. А. Общая 3 Концепция стабильности закона (серия теория права / Н. А. Гредескул. – Санкт-Пе- «Конфликт закона и общества») / отв. ред. тербург: Типолитография И. Трофимова, В. П. Казимирчук. – М. : Проспект, 2000. – 1909. – С. 223. С. 59, 60.

104 Yearbook of ukrainian law Procuring the stability of the financial law: Dmytryk O. problems and prospects in 2010, on the end of 2016 was amend- communication as in the content of such ed by more than sixty laws1. acts, as with other financial and legal Historical excursus proves quite the acts and acts of other branches of law same sad statistics. As follows, during does not occurs. ten years of its existence the Law of In our opinion, this situation is high- Ukraine «On the order of repayment ob- ly undesirable not only from the legal, ligations of taxpayers to budgets and but especially from the economic point state trust funds», which was adopted on of view. It is well known that the sustain- 21 December 2000, was changed almost able development of economic relations by thirty laws. On the period of the be- in the country can be achieved that time, ginning of 2010 the Law of Ukraine «On when taxpayers could clearly identify income tax», which was adopted May the tax burden, enterprises can actually 22, 2003, was amended by more than get some transfers from the budgets to thirty laws. The Law of Ukraine «On ensure the development of production taxation of corporate profits» as of the and so on. In other circumstances there year 2010, was changed by more than is impossible to calculate the amount of one hundred ten laws, and the Law of tax revenues and fees clearly, even mak- Ukraine «On Value Added Tax» – almost ing scientifically substantiated planning; by one hundred fifty laws2. These facts enterprises that need support from the indicate that the financial, and particu- state, will not function properly. There- larly tax legislation does not systemati- fore, lack of stable financial law becomes cally developing in our country, but an obstacle not only to the economic rather spontaneously: arise the necessity development of the country. To this we in the settlement of certain relation- add that the opposite trend is available ships – and then, often quickly, with a very often: the content of regulations lot of shortcomings, appears appropriate that include financial and legal norms, financial legal act. Because of this rule- does not meet the nature and the devel- making in the financial sector can hard- opment of financial relations regulated ly be called effective: because neither by them. This means that changes are not proper training nor monitoring of system made to the financial laws where necessary. However it is clear that to some 1 Податковий кодекс України ; Бюджет- extent the performance of the revenue ний кодекс України (Tax Code of Ukraine ; and expenditure parts of public funds Budget Code of Ukraine) // [Електрон. ресурс] depends on how the content of regula- [Electron. resource]. – Верхов. Рада України (офіц. сайт). Verkhovna Rada of Ukraine tions will meet the nature of regulated (official web portal) – Режим доступу (Access relations. mode): http://zakon.rada.gov.ua/ Of course, this practice has a nega- 2 [Електрон. ресурс] [Electron. resource]. – tive impact. This ultimately prevents the Верхов. Рада України (офіц. сайт). Verkhovna Rada of Ukraine (official web portal) – Режим objectives and the tasks of public finan- доступу (Access mode): http://zakon.rada.gov.ua cial activities, and violates the rights of

№ 9/2017 105 State-legal sciences and international law subjects of financial relations. Certainly, conditions in the country the financial in current situation is possible to appeal law must be changed because of the to the fact that the laws governing finan- necessity to adapt it to new economic cial relations, cannot exist for long in the conditions. In other words, the financial economic crisis of the country’s de facto law is inextricably linked with the so- under martial law. The idea of L. K. Vo- cial relations that it regulates. But it’s ronova is fair about this. She states that, change must not take place after the as a rule, the law indicated by stable na- slightest changes in the financial (eco- ture and prolonged time of existence, but nomic) relations. If this happening, it is the laws governing financial relations first of all testifies about the shortcom- cannot exist for long. Financial laws, ings of the law, and then about the dy- which express the economic and social namics of public relations. In our opin- interests in concentrated form, change ion, the legislator has a number of mea- very often1. A. P. Orlyuk also speaks sures, including legislative technique, about the constant dynamic development of financial legislation that allows the for during the adoption of any law, in- state to respond to rapid economic cluding financial one, the development changes. 2. Indeed, the financial legisla- of public relations would be taken into tion must change due to the difficult eco- account. nomic situation, and sometimes changed In view of described above, construc- rules can stimulate the economic devel- tive is the consideration of D. A. Mo opment. nastyrsky, stating that there are two These provisions indicate that the areas in the comprehension of stability content of financial law should be flex- of law: first, as the immutability of the ible, able to adapt to the specific finan- law (unchangeable law – stable law) cial needs of the state and respond to the and, secondly, as a sustainability ap- changing of the situation by adjusting proach to the regulation of public rela- the respective financial and legal norms tions with the possibility of systemic, that will let to balance the public and evolutionary changes in legislation (Act private interests. And now it is necessary may change, while remaining stable). to talk about the combination of such With this, the scientist rightly points out financial law qualities as stability, flex- that the second version of the under- ibility and dynamism. standing of the stability of law is more Of course, stability must not be the reasonable3. Significantly, that the legist end in itself. While changing economic then rightly poses the question: what 1 Воронова Л. К. Фінансове право: підруч. / Л. К. Воронова/ – К. : Прецедент; Моя кни- 3 Монастирський Д. А. Стабільність зако- га, 2006. – С. 52. ну: поняття, сутність та фактори забезпечен- 2 Орлюк О. П. Фінансове право: академіч- ня: автореф. дис. … канд. юрид. наук: спец. ний курс: [підруч.] / О. П. Орлюк. – К. : 12.00.01 / Д. А. Монастирський. – К., 2009. – Юрінком Інтер, 2010. – С. 113. С. 5.

106 Yearbook of ukrainian law Procuring the stability of the financial law: Dmytryk O. problems and prospects changes the law will strengthen the sta- of the year preceding the planned, must bility to go «in the fairway» of stability be enacted until the beginning of the and what changes will harm stability? budget period following the planned2. To determine this, obviously, it is nec- Therefore, despite the objective need to essary to define criteria by which the adopt the State Budget Law annually separation will take place. Scilicet there and, in certain circumstances, review- is necessary to define concerning what ing the legal mechanism of taxes that one change of the law will promote sta- let to respond to changes better in the bility and others – to break it. implementation of socio-economic and To our opinion, the answer to this financial policies, the foundations of question is contained right in the finan- legal regulation of public finance must cial legislation. The analysis of the fi- be stable, but not invariable. Under- nancial legislation suggests two quite standing of the financial law stability as formed approaches to determining the it’s invariability, is contradicts to the content of stability of the financial law. gist of financial relations, which are Firstly, the Art. 4 of the Tax Code of intended to regulate such a law, because Ukraine provides for that tax legislation indicated public relations are in con- is based including, the principle of sta- stant development. The dynamism of bility. It means that changes of any ele- the financial law can be considered as ments of taxes and fees cannot be made «it’s ability to be adequate to public later than six months before the begin- relations. Adequacy is expressed by the ning of the fiscal period in which there ability to respond quickly to changing will be new rules and rates. Taxes and of social conditions and the presence of fees, their rates, as well as tax relief a genuine need for change»3. However, cannot be changed during the budget the financial law may be changed with year1. the mandatory compliance of provi- Secondly, in the Art. 27 of the Bud- sions of Art. 4 of the Tax Code of get Code of Ukraine stipulates that the Ukraine and Art. 27 of the Budget Code laws of Ukraine or their individual proof Ukraine. visions that affect the performance of It should be noted that in many coun- the budget (reduce income budget and tries, like Ukraine, amendments to tax / or increase the cost of the budget) and laws and other acts of financial le- will be adopted not later than 15th of gislation tied to the adoption of the bud- July of the year preceding the planned, must be enacted until the beginning of 2 Бюджетний кодекс України від 8 лип. the plan budget period; after 15th of July 2010 р. // Голос України. – 2010. – № 143. Budget Code of Ukraine of July 8, 2010 // Golos Ukrainy. – 2010. – № 143. 1 Податковий кодекс України від 2 груд. 3 Баскова И. В. Стабильность и динамизм 2010 р. // Голос України. – 2010. – № 229–230. советского уголовного закона : автореф. дис. Tax Code of Ukraine of December 2, 2010 // … канд. юрид. наук : спец. 12.00.08 / И. В. Ба- Golos Ukrainy. – 2010. – № 229–230. скова. – М., 1989. – С. 8.

№ 9/2017 107 State-legal sciences and international law get for the current year. For example, the the content of financial law should be issue of servicing the public debt can not flexible, able to adapt to the specific be considered separately from the budget financial needs of the state and respond process, because the amounts provided to the changing of the situation by cor- for servicing and repayment of public recting the respective financial and debt, affecting on the performance of the legal norms that will let to balance the state budget of the current year, and they public interest with private ones. As must be taken into account in the imple- the example, referring to the tax sys- mentation of the budgets of future years. tem is unequivocal seen that a stable, This approach allows to evaluate all permanent tax will lead to imbalances. planned in the current year changes of As it is supposed, to ensure the sta- financial law rules in terms of balancing bility of the financial law in our coun- public revenues and expenditures. As an try present real opportunities that are example, in France the set tax each year «not the invention of something new must be confirmed by the current finan- in the theory of law». It primarily for cial laws (budget). A similar provision is ensuring of high quality in the law- contained in the legislative Acts of Den- making professional activities of the mark, Luxembourg and other countries. relevant legislative body. It is clear In Norway, in addition to annual confir- that we are talking about improving the mation of each tax collection provided working quality of both parliament and mandatory procedure for revising tax other bodies empowered to issue of the relevant regulations governing the laws after the expiry of the parliament1. implementation of public financial ac- Not by chance in the Ukrainian leg- tivities. However, to achieve this – it islation is reflected provisions under is not an easy task. This is especially which any law affecting the reduction concerns the Ukrainian parliament, of income and / or increasing budget which is formed on democratic prin- expenditures this year, can not be ac- ciples. cepted in whole by Verkhovna Rada Moreover, as rightly indicates (The Supreme Council) if simultane- D. A. Monastyrskiy, among illegal fac- ously with its adoption will not be made tors influencing the legislative process relevant amendments to the law on the in Ukraine greatest role plays political State Budget of Ukraine for the same factor, which is expressed in the form year (Art. 160 of the Rules of Procedure of uncivil («shadow») lobbying, a man- 2 of Verkhovna Rada of Ukraine) . Thus, ifestation of which, in particular are: 1 Козырин А. Н. Публичные финансы: failure to comply the procedure for sub- взаимодействие государства и общества / mitting the bill; unjustified accelerating А. Н. Козырин. – М. : Статут, 2002. – 37 с. the procedure of consideration of the 2 Див.: Про Регламент Верховної Ради bill; ignoring the findings of the Main України: Закон України від 10 лют. 2010 р. // ScientificE xpert and the Legal depart- Відом. Верхов. Ради України – 2010. – № 14– 15, № 16–17. – Ст. 133. ments of the Verkhovna Rada of

108 Yearbook of ukrainian law Procuring the stability of the financial law: Dmytryk O. problems and prospects

Ukraine, the Institute of Legislation of raine recommendations, suggestions the Verkhovna Rada of Ukraine; re- and observations of scientists, almost duced procedure of consideration of overlooked by the legislative authority the bill – which leads the emergence in the development of financial laws3. of unstable laws1. However, it is clear that any legislation Significantly, that some countries to should be based on strong scientific overcome this problem, chooses a path to base, and then we can talk about the maximally attract professionals to legisla- actual implementation of the slogan: tive activities. We mean the practice, «the law must be adopted not when it when all of parliamentarians select for a can be adopted, but when it can’t be not specific drafting an individual who has adopted». deep knowledge and largest experience Once again we emphasize that any in the area, which aims to regulate spe- changes to financial legislation should cific regulatory legal act. For example, in be carefully and properly grounded. the United Kingdom specially creating Therefore, such characteristic as stabil- committees, which carefully consider ity complies to flexibility and dyna- separate projects. Herewith, these com- mism of financial legislation. Summing mittees are created each time for a par- up the above considerations, the finan- ticular bill and after its task are dissolved. cial stability of the law can be defined The same problem can be resolved as its ability over long time regulate and by other means, such as increasing effectively and efficiently a wide range the professionalism of staff working in of financial relationships without re- Ukrainian parliament. So, when prepar- quiring significant changes in the rules ing a given project analyzed not only that it contains4. Herewith one of the legal, but also economic, social and po- main principles on which the stability litical factors that influence the need for of the financial law is based, there is a its adoption and implementation conse- system of interests, which is not only quences of normative legal act. Here- with in the case of necessity specialized 3 Див.: Воротина Н. В. Проблемы исполь- experts and scholars are involved. It is зования результатов научных исследований very true that the conclusions of such в процессе усовершенствования бюджетного законодательства Украины / Н. В. Воротина experts should always be discussed in // Системообразующие категории в финан- the legislature2. Unfortunately, in Uk совом праве: состояние и перспективы тран- сформации: материалы междунар. науч.- 1 Монастирський Д. А. Стабільність зако- практ. конф., г. Харьков, 15–16 апреля 2010 г. ну: поняття, сутність та фактори забезпечен- / редкол.: В. Я. Таций, Ю. П. Битяк, Л. К. Во- ня: автореф. дис. … канд.. юрид. наук: спец. ронова и др. – Х.: НИИ гос. стр-ва и местн. 12.00.01 / Д. А. Монастирський. – К., 2009. – самоуправления, 2010. – С. 34–35. С. 7. 4 Див.: Монастирський Д. А. Поняття та 2 Сравнительное конституционное право природа стабільності закону / Д. А. Мона- / под ред. В. Е. Чиркина. – М.: Манускрипт, стирський // Університет. наук. записки. – 1996. – С. 547. 2005. – № 1–2 (13–14). – С. 65.

№ 9/2017 109 State-legal sciences and international law consistent at such a statute, but makes designated in this article is very topical its position as an act of higher legal issue and requires further scientific de- force, in which the validity of the law bate about its understanding and theo- should be determined primarily by as it retical and practical reasoning. We is perceived by financial law, as it re- agree that the problem of ensuring of flects their requirements and needs. The stability of the financial law is quite credibility of financial law is measured complicated to solve, but definitely, it primarily by how accurately it reflects must be solved because it affects the the vital problems of every citizen and efficiency and rationality of legal regu- society as a whole, how effectively pro- lation of relations in the sphere of pub- tects their interests1. We believe that is lic financial activities in general.

Published: Вісник Академії правових наук України. – 2012. – № 4 (71). – С. 253–262.

1 Концепция стабильности закона (серия «Конфликт закона и общества»)/ отв. ред. В. П. Казимирчук. – М.: Проспект, 2000. – С. 62.

110 Yearbook of ukrainian law V. Kolpakov, Doctor of Law, Professor, Za- porizhzhya National University, Depart- ment of Administrative and Economic Law

UDC 342.9 LEGAL NATURE OF THE ADMINISTRATIVE TORT LAW OF UKRAINE

A understanding branch of law gives formation of the rule of law and civil the knowledge of the characteristics of society. social relations, that the industry is regu- In the Soviet period the of the subject lated. The action legal norm transforms branch of administrative law officially the social relations in the legal relation- recognized relationship in the field of ship. The totality of these relations con- public administration. The evolution of stitutes the subject branch of law. administrative law in Ukraine under the Present-day Ukrainian administra- influence of the standards of the Euro- tive law fundamentally requires defini- pean administrative space formed the tion of its subject-matter. Bringing it to subject of a new concept of administra- correspondence with up-to-date realties tive law1. will be-come an important step towards Subject-matter of administrative reformation of administrative-legal in- law includes four types of relations. stitutions and bringing white light to First, it is relations of public adminis- their role in evolution of the processes tration that involves the whole aggre- of formation of law-bound state and de- gate of administerial relations. Second, velopment of civil society. it is relations occurring in the process For the modern Ukrainian adminis- of delivery of justice in the form of trative law correctness of the subject branch of law is of fundamental impor- 1 Колпаков В. К. Роль конвергенції у фор- tance. Its establishment in line with mod- муванні стандартів європейського адмі ern realities is an important step towards ністративного простору / В. К. Колпаков // the reconstruction of the administrative Сучасна адміністративно-правова доктрина захисту прав людини : тези доп. та наук. по- and legal institutions and objective cov- відомл. наук.-практ. конф. м. Харьків 17– erage of their role in the evolution of the 18 квіт. 2015 року – Х. : Право, 2015. – C. 13–17.

№ 9/2017 111 State-legal sciences and international law administrative legal proceedings. of science of administrative law.Funda- These are relations of authority carri- mental theoretical research has differen- ers’ responsibility for wrong acts. tiated attributes of administrative tort on Third, it is relations of responsibility a posteriori and a priori. for violation of rules in effect, or rela- Posteriori signs are fixed by law. tions of administrative responsibility These features – the truth of facts. They (administrative-delict relations). are the same for any behavioral act. Fourth, it is relations occurring in the A priori characterize the individual be- result of individual addresses to public havioral act. They are the result of the administration bodies for the purpose analysis of a particular behavioral act. of realization of individuals’ rights (re- These features – the truth of logic. They lations of administrative service). allow to characterize behavioral act as Fifth, it is relations of indirect author- an administrative tort. ity (occurring in the result of mutual The doctrine of the attributes of an observance of administrative rules by administrative tort has important theo- subjects who are not bound by powers retical and practical significance.Firstly, and authority)1. it facilitates identification and classifica- This article examines the legal nature tion of the most significant features of of the third kind of relationship: the re- antisocial acts, helps in establishment of lationship of administrative responsibil- fair sanctions; secondly, it assists law ity (administrative and tort relations). enforcement authorities to properly qual- The doctrine of administrative of- ify offenses, thus setting adequate influ- fense is a major component in the con- ence measures; thirdly, makes possible cept of an administrative tort law.Princi- to understand the law, support training pal importance for determining the role of lawyers, and promotes legal erudition of an administrative offense in aggregate of citizens3. of all the actions prohibited by law, de- Generally, the combination of ele- termines the fact of fixation in the Con- ments is the description of act in the stitution of Ukraine legal liability for law. Description of an action not yet such acts2.Accordingly, the study of ad- committed, but only possible or sup- ministrative offenses is an important task posed. In practice, only legally significant features characterizing act as an 1 Kolpakov V. Subject matter of Ukrainian offense, goes down for such a descrip- administrative law: the concept evolution / Vale- tion. They have been named the struc- rii Kolpakov // Scientific Letters of Academic tural features. The main source of this Society of Michal Baludansky. – Slovakia, Košice : Academic Society of Michal Baludan- description is the Code of Ukraine on sky, 2014. – No 2. – P. 66–68. 2 Адміністративно-правове регулювання 3 Коломоєць Т. О.,Колпаков В. К. Вступ публічного адміністрування в Україні : навч. до навчального курсу «Адміністративне посіб. / [О. Г. Бондар, Т. О. Коломоєць, право України»: навч. лекція / Т. О. Коло- В. К. Колпаков та ін.] – За-поріжжя : ЗНУ, моєць, В. К. Колпаков. – К. : Ін Юре, 2014. – 2014. – 204 с. 240 с.

112 Yearbook of ukrainian law Legal nature of the administrative Kolpakov V. tort law of Ukraine

Administrative Offences (hereinafter forcement officials consideration. the CAO)1. Elements features may be Therefore, theoretical studies play an permanent and variable. important role in revealing of their con- Permanent features received general tent. Such features, as «gross violation» recognition in legislation, legal theory, (Articles 85, 108), «Arbitrariness» (Ar- and social practice. For example, «age ticle 186), «emergency situation» (Ar- of administrative responsibility», «wit- ticles 127, 140), «provision of necessary ness», «vehicle», «pedestrian», «fire- conditions ащк living, training and edu- arm», «afforestation», «intellectual pro- cation» (Article 184), «prodigal expen- perty», «building», «official» and so on. diture» (Articles 60, 98), «mismanage- Variable features can change their ment maintenance» (Article 150), «mis- meaning quite often. By rule, these fea- management» (Art. 1642), «devices tures are contained in regulations. similar to markings», «objects that con- For example, the law established the tribute crowded birds hazardous to air- responsibility for violation of infringe- craft flight «(Art. 111),»insulting moles- 2 ment of sanitary rules (Art. 42) . In- tation to citizens», «similar actions» fringement of rules of trade by alcoholic (Article 173) states that «offends human drinks (Art. 156), public welfare (article. dignity and public morality «(Article 152), holding dogs and cats (Art. 154), 178), «persistent disobedience» (Article health facilities and lines of communica- 185), «willful evasion» (Articles 1853, tion (Art. 147) and so on. These rules can 1854), «reasonable excuses» (Article be set, changed, canceled by the relevant 210) and so on. authority, what results in changes of the Features could be distinguished by respective compositions. the degree of generalization. In this case, Assessment features are widely used it is referred to the following features: a) in description of essential elements. The general; b) generic or specific; d) spe- content of such features in statute is not clearly defined, thus the question of their cific or individual. presence or absence is under law en- Common characteristics for all essential elements (illegality, sanity, fault etc.). 1 Кодекс України про адміністративні Generic (specific) are typical for the правопорушення : Введений в дію Постано- вою Верховної Ради Української РСР від group of elements. For example, essen- 07.12.1984 // Відомості Верховної Ради Ук tial elements, that describes violations in раїнської РСР – 1984. – додаток до № 51. – the field of standardization, product Ст. 1122. quality, metrology and certification. So- 2 Колпаков В. К. Адміністративна делік- тація поняття і критерії / В. К. Колпаков // cial relationships that develop in this Людина, суспільство, держава : правовий area are the specific object of encroach- вимір в сучасному світі : Матеріали IV Між- ments in this case. народної науково-практичної конференції, м. Київ, Національній авіаційний універси- Specific (individual) describes sepa- тет, 27 лютого 2014 р. – С. 184–186. rate specific elements «expansion of in-

№ 9/2017 113 State-legal sciences and international law veracious hearings» (Art. 173), «stow- 1. Basic and qualifying elements away travel» (Art. 135), «prostitution» Recognizing this, or that act as an (Art. 1811), «silence in public places» administrative offense and imposing (Art. 182), «narcotic substances in small sanctions for violation, the legislator sizes» (Art. 44),» organization of street considers that the degree of public dan- procession «(Art. 1851),» contempt of ger of similar offences may be different. court» (Art. 1853). Thus, infringement by drivers of ve- The Code of Ukraine on Administra- hicles of railway crossings rules charac- tive Offences: Official Bulletin of the terized by greater public danger while Verkhovna Rada of Ukrainian SSR, providing services for passengers or dan- 1984, annex to No. 51, Article 1122 gerous cargo transportation (Art. 123). (Brought into force by Resolution of the Due to this fact in some cases legisla- Verkhovna Rada of Ukrainian RSR, tor, considers several essential elements 1984, annex to No. 51, Article 1122. of administrative offenses, belong the The source of these articles is the same type of actions. These elements Code of Ukraine on Administrative Of- vary the degree of public danger. Any fences, unless otherwise is noted. additional features called qualifying are Essential elements of administra- indicating a higher degree of danger. tive offenses classifies depending on: Thus, features may be basic, such as 1) the degree of public danger – on occur in every case of commitment of basic and qualified; 2) the nature of offence and qualifying, such as supple- damage – on material and formal; ments the basic features. 3) the subject of an offense – on pri- Basic features in their turn form the vate and official (service); 4) the struc- so-called general essential element of an ture – on alternative and definite; 5) the offence. If necessary, legislator comple- design features – on descriptive and ments essential elements with qualifying blanket (referential)1. features, thus an act can be qualified un- Let’s examine characteristics of each der another article that imposes stricter type of essential elements of administra- punishment. Essential elements, with tive offenses2. such features are named qualifying. In the Code it often appear such a 1 Колпаков В. К. Теорія адміністративно- го проступку : Монографія / В. К. Колпаков, qualifying feature as replication (Artic 2 В. В. Гордєєв. – Х.: Харків юридичний, les 44 , 95, 104), an emergency situation 2016. – 344 с. (Articles 122, 127, 140), the presence or 2 Kolpakov V. Essential elements of an ad- possibility of harmful material conse- ministrative offense: concept and types [elec- quences (Articles 1281, 140), state of tronic resource] / Valery Kolpakov // Journal of High Qualifications Commission of Judges drunkenness (Art. 127), leaving of a of Ukraine, 2014. – Access mode: http:// place of road traffic accident (Art. 1224), www.vkksu.gov.ua/ua/about/visnik-vishoi-kval- a gross violation of rules (Art. 85), act ifikatsiynoi-komisii-suddiv-ukraini/essential- committed by official (Articles 93, 951, elements-of-an-administrative-offense-concept- 1 and-types/. 107 ).

114 Yearbook of ukrainian law Legal nature of the administrative Kolpakov V. tort law of Ukraine

2. Material and formal elements recognition of crime with such essential Material essential elements contain elements requires only the establishment such features, as A) occurrence of harm- that the committed act is prohibited by ful material consequences caused by the law. These crimes include, for ex- committed act. For example, forest dam- ample, illegal possession of firearms. age by sewage, caused its shrinkage 3. Service and private elements (Art. 72), infringement of requirements Essential elements of administrative of fire safety in woods (Art. 77), abduc- offenses are divided into private and ser- tion of other’s property (Art. 51); B) de- vice (civil), depending on the subject of scribes action that necessarily leads to the offense, whether is he/she a civilian harmful effects, despite they are not citizen or an official (Articles 93, 96, identified by the law: breach of law of a 99). The main characteristic of service state ownership on bowels (Art. 47); ex- offence is that the unlawful act should cess of limits and specifications of use be committed through the service ac- of natural resources (Art. 912); prodigal tion1. According to the Article 14 of the expenditure of fuel and energy resources CAO, officials are subject to administra- (Art. 98); sale of products in violation of tive responsibility for noncompliance the requirements for health warnings on with established rules, resulting from the tobacco products (Article 1682). performance of his/her official duties. To the formal (conditional term) be- Thus, according to the Article 1852 (Cre- longs such elements that have no fea- ation of conditions for the organization tures of harmful material consequences. and conduct with infringement of the For example, residing without registra- established order of assembly, meetings, tion of location (Art. 197), infringement street campaigns or demonstrations) es- of a frontier regime (Art. 202), illegal tablishes administrative liability for of- withdrawal of passports in mortgage ficials if they provide premises, trans- (Art. 201). port, facilities for conduct with infringe- Completing the description of mate- ment of the established order of rial and formal essential elements of ad- assembly, meetings, street campaigns or ministrative offenses is important to demonstrations. note, that the criminal law concludes 4. Definite and alternative elements slightly different meaning in their con- Division of essential elements on cepts. Under the material elements here- definite and alternative has a great prac- in understands those in which the end of tical value. Definite elements describe crime is associated with the occurrence features of one act within the frame- of socially dangerous consequences (a person can be attracted for murder only 1 Kolpakov V. K. A priori determinants of if in result of his actions someone’s death administrative tort / V. K. Kolpakov // Вісник occurred); formal elements are those, Запорізького національного університету: where the occurrence of socially danger- Збірник наукових статей. Юридичні науки. – Запоріжжя: Запорізький національний уні- ous consequences is not a feature, i.e. верситет, 2014. – № 3. – С. 130–136.

№ 9/2017 115 State-legal sciences and international law works of one article of a regulation. For the falsified alcoholic drinks or tobacco example, finishing of a minor to a state products», 186-3» Infringement of the of intoxication (Art. 180), minor hooli- order of representation or use of the ganism (Art. 173), prostitution (Art. given State statistical supervision» 1892 1811), and trade from hands in unstated «’Infringement of rules of manufactur- places (Art.160). ing and the order of the account and stor- Alternative elements describe sev- age of seals and stamps, and as manu- eral actions within the frameworks of facturing, import, realization and uses of one Article of regulation. Herewith, an self-type-setting press» and others. act considered as an offence if one, sev- Thus, in such cases essential ele- eral (or even all) actions have been comments are the commitment of various mitted. For example, Art. 1891 of the actions, named in the law. At the same CAO stipulates that a breach of earlier time, for performance of essential ele- approved: – norms of extraction, – an ments it doesn’t matter if one, two, or all established accounting procedure, as actions together have been committed. well as failure of proper storage condi- It is important to note, that a person is tions of extracted precious metals and not committing a new offense if he/she precious stones, precious stones of or- consistently performs all actions named ganogenic origin and semi-precious in the law, for example, initially illegal stones, established account procedure as purchase, than storage and transfer of well as violation of all specified above narcotic substances (Art. 44 of the by the extraction subject should be con- CAO). If a citizen drinks alcohol bever- sidered as an offence. ages in public place and after appears in As a separate offence it should be public place in a state of intoxication, considered separately a breach of the that offends human dignity and public established account procedure, violation morality, in this case he/she commits of the established order of registration, one, but not two offenses (Art. 178 of the failure to provide proper storage condi- CAO). Separate actions of the same per- tions for extracted precious metals, and son, both manufacturing and selling of violation of all the specified procedures the forbidden instruments of getting ob- together. Additionally, in this article we jects of animal or flora, compose essen- find an alternative offence items: it refers tial elements of one offence (Art. 851 of to rules concerning precious metals, pre- the CAO). cious stones, stones of organogenic ori- Thus, if the definite essential ele- gin, semi-precious stones. ments name those common features they Alternative elements are contained consist of, then instead the alternative in Articles 171 «Infringement of rules of elements have several features variants. manufacture, repair, sale and hire of Frequently this characteristic of features means of technical equipment», 1732 description is caused by the desire of «violence over family default of the pro- legislator to avoid general formulation, tective instruction» 1772 «Manufactur- as well as to reveal the content of these ing, purchase, storage or realization of features and specify it. And in some

116 Yearbook of ukrainian law Legal nature of the administrative Kolpakov V. tort law of Ukraine cases, the design of the alternative fea- covered by Article 16414, could be im- tures is linked to the desire of authorities posed within three months, from the day to save normative material and, instead it was first detected Art. 38; small-sized of several articles creation, to create a vessels in the first, third, fourth and fifth single, but broader in its scope. paragraphs of an Article 116, second 5. Descriptive and blanket (referen- paragraph of an Article 1161, third para- tial) elements graph of Article 116-2, first paragraph of Descriptive essential elements that an Article 117, third paragraph of Article reveal the content and nature of an act in 118, paragraph three of Article 129, the full scope are recognized as an ad- paragraph five of Article 130 of this ministrative offense. For example, minor Code should be understood as a self- hooliganism (Art. 173), drinking beer, propelled vessels with the main engines alcohol, alcoholic beverages on manu- power less than 75 hp (Art.116); Sate facturing (Art. 179), an inveracious call inspectors of Agriculture sphere have the of special services (Art. 183), intention- right to constitute reports on administra- al damage of passport (Art. 198). Article tive violations, within the jurisdiction of with the descriptive essential elements the authorities referred to in Articles contains all of the three elements of legal 222–24419 (Art. 255); things and docu- norms (hypothesis, disposition and sanc- ments which are tools or direct object of tion). In this case, the logical structure an offense and items that were found of standards of law coincides with struc- during detention, personal inspection or ture of an article of a legal act. The main required inspection, subject to withdraw- purpose of such a development of nor- al by officials specified in articles 2341, mative materials is to promote individu- 2342, 2444, 262 and 264 (Art. 265); in the als that apply for a provision with the circumstances referred to in paragraphs possibility to find in appropriate article 5, 6 і 9 Art. 247, agency (official) that all necessary structural elements. ordered the imposition of administrative Blanket (or referential) elements penalties, terminates its execution (Art. contain a reference to related regulatory 302). act that is necessary for establishment, if Second, it refers to another regula- there is a lack of corpus delicti in actions tion. For example, infringement of rules or not. There are three types of such ref- of protection of electric networks (Art. erences known. 99); excess by drivers of vehicles of First, it refers to a specific article of speed of movement, default of signals of the same regulation, containing missing regulation of traffic, infringement of data of legal norms. For example, con- rules of transportation of people and sidering nature of committed offense and other traffic rules (Art. 122); infringe- offender’s personality to specified per- ment of Rules of protection of the main sons (except persons who committed an pipelines (Art. 138); failure of chief and offense under Article 185 measures of other officials of State authorities, insti- influence defined by Article 13 of CAO tutions and organizations, including the can be applied; penalties for an offense branches of the National Bank of

№ 9/2017 117 State-legal sciences and international law

Ukraine, commercial banks and other all these acts, as one offense. The basis financial and credit institutions, the legal of this approach is the likeness of these requirements of officials of the income acts, so they are identical and have one and charges referred to in sub-paragraphs and the same legal features of an essen- 20.1.3, 20.1.24, 20.130, 1/20/31 of para- tial element. graph 20.1 of Art. 20 of the Tax Code of It should be also noted, that in one Ukraine (Art. 163-3); violation by indi- blanket construction of an essential ele- vidual of statutory restrictions on busi- ment of an offence, a number of different ness or other paid activities (Art. 1724); references types could be combined. As violation of the rules of administrative an example Article 125 «Other infringe- supervision (Art. 187). ments of traffic rules», establishes viola- Third, it refers to several different tions of traffic rules, except foreseen by regulations. For instance, infringement Articles 121–128, part first and part sec- of conditions and rules of realization of ond of Art. 129, Articles 139, 140 of the the international automobile transporta- CAO. Article 21210, establishes restriction of passengers and cargo (Art. 1332); tions on campaigning: campaigning per- infringement of rules, norms and stan- son, whose participation in the election dards at the maintenance of highways campaign is prohibited by law, cam- and roads (Art. 140); infringement of paigning beyond the terms established rules of an accomplishment of territories by law, or in places prohibited by law, of cities and other settlements (Art. 152); campaigning in ways and means that are infringement of the legislation of bud- contrary to the Constitution and Laws of getary system of Ukraine, purchase in Ukraine, or other breach of statutory re- advance of the goods, works and ser- strictions on campaigning, except fore- vices for public funds (Art. 16412); re- seen by Articles 2129, 21213 and 21214 of lease and realization of production which the Code. does not meet the requirements of stan- In addition to these, the classification dards, non-standard production, certifi- base of essential elements of administra- cates of compliance, regulations and tive offences could be amended with samples (standards) for safety, quality, other criteria. According to this feature completeness and packaging (Art. 167). of the subjective side, as a form of fault, In such cases, essential elements are offenses can be divided into intentional «collected» from several different inde- and reckless, and on the basis of motives pendent offences. This is the violation of into acquisitive and altruistic etc. various acts, regulations and require- The foregoing gives rise to the con- ments. Using formal approach in this clusion that the legal nature of adminis- case it is not difficult to indicate several trative delicts (administrative tort, ad- offenses. For example, the infringement ministrative offenses) in the administra- of the established rules and mode of op- tive law of Ukraine is the criminal law. eration of installations and manufactures from processing and recycling of waste Published: Адміністративне право і (Art. 82). Moreover, legislator considers процес. – 2016. – № 1(15). – С. 74–82.

118 Yearbook of ukrainian law D. Luchenko, Candidate of Legal Sciences, Associate Professor of the Department of Administrative Law of Yaroslav Mudryi National Law University

UDC 342.92 AN APPEAL MECHANISM IN ADMINISTRATIVE-LEGAL RELATIONS: AN ASPECT FROM THE PERSPECTIVE OF THE STRASBOURG COURT PRECEDENTS

European Court of Human Rights ing the legal regulation (Zh. Marku indi- practice is essential for understanding cates that the practice of the European European standards of administrative- Court significantly influenced the French legal appeal. We recall that according to law on administrative procedure, includ- Art. 17 of the Law of Ukraine «On En- ing the settlement of differences, which forcement and Application of the Euro- is the sphere of administrative appeal)2, pean Court of Human Rights Decisions»1 but subject to immediate use by judges in courts, while examining the case in a the handling of cases and therefore influ- trial, apply the Convention for the Protec- ences the practice of bodies carrying out tion of Human Rights and Fundamental public administration. Freedoms and the case-law as a source of Administrative and legal problems are law. Also, Article 8 of the Code of Admin- encountered in the practice of the court, istrative Procedure of Ukraine requires to which is connected with many articles of consider understanding of the rule of law the Convention on Human Rights and in the practice of the European Court. Fundamental Freedoms3. We focus main- This means that an analysis of court deci- ly on the analysis of cases of violations of sions does not have only doctrinal significance and serves as a basis for improv- 2 Административные процедуры и контр- оль в свете европейского опыта : кол. моног- 1 Закон України «Про виконання рішень рафия [текст] / под. ред. Т. Я. Хабриевой. – та застосування практики Європейського М. : Статут, 2011. – 320 с. – С. 60. суду з прав людини» 23.02.06 3477-IV [текст] 3 Конвенція про захист прав людини і // Відомості Верховної Ради України. – основних свобод // Офіційний вісник Украї- 2006. – № 30. – Ст. 260 (з наст. змін. і доп.). ни. – 2006. – № 32 (23.08.2006). – Ст. 2371.

№ 9/2017 119 State-legal sciences and international law

Articles 6, 13 of the Convention, and Art. tion of the trunk road M04)2 and at this 1 of Protocol1. According to Art. 6 of the point this practice is important for pur- Convention, everyone is entitled to a fair poses of our research. and public hearing within a reasonable Extension of requirements of Art. 6 time by an independent and impartial tri- of the Convention in cases of administra- bunal established by law, which settles tive jurisdiction demands additional ex- dispute as for the determination of his planation. During the development and civil rights and obligations or of any crim- adoption of the Convention, as it follows inal charges brought against him. Accord- from the literal understanding of provi- ing to Art. 13 of the Convention, every- sions of this Article, it was provided that one, whose rights and freedoms set forth it extends namely to cases heard in the in this Convention were violated, shall course of criminal and civil proceedings, have an effective remedy before a na- while administrative proceedings were tional authority notwithstanding that the not discussed3. However, later the court violation has been committed by persons gradually started to expand its under- acting in an official capacity. So, the prac- standing of Art. 6. In the case of «Zim- tice of the European Court of Human mermann and Steiner v. Switzerland,» Rights for these Articles is directly re- which dealt with a judicial review of a lated to issues of judicial and extrajudicial decision of an administrative agency protection of rights and legal interests of (evaluation commission) to determine individuals. the size of state compensation to the ap- Article 1 of Protocol provides that plicants, the Court pointed out that in any natural or legal person is entitled to this case the applicants’ rights are cov- the peaceful enjoyment of his posses- ered by Art. 6 because these rights are sions. No one shall be deprived of his essentially private4. Other similar cases possessions except in the public interest and subject to the conditions provided by law and by the general principles of 2 Європейський суд з прав людини : Рі- international law. The Court examined шення у справі «Гримковська проти Украї- many cases concerning deprivation of ни» від 21.07.11 // Ліга : Закон: комп’ютер.- прав. система / Всеукр. мережа розповсюд- property or restrictions on the possession ження прав. инф. – [Електр. прогр.]. – Версія of property that was caused by adoption 8.2.3. – К. , 2012. – Заг. з вказів. для користу- of an administrative act or recovery of вачів. – Щоден. оновлення. damages caused by decisions in public 3 Адміністративна юстиція України: про- administration (for example, the case блеми теорії і практики : настіл. кн. судді / за заг. ред. О. М. Пасенюка. – К. : Істина, «Hrymkovska v. Ukraine», which was 2007. – 608 с. – С. 421. concerned with administrative decisions 4 Європейський суд з прав людини : Рі- regarding damage caused by the opera- шення у справі «Цимерман і Штайнер проти Швейцарії» від 20.06.83 р. // Ліга : Закон: 1 Перший Протокол к Конвенції про за- комп’ютер.-прав. система / Всеукр. мережа хист прав людини і основних свобод від розповсюдження прав. инф. – [Електр. про- 20.03.52 р. // Офіційний вісник України. – гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. 2006. – № 32. – Ст. 2372. для користувачів. – Щоден. оновлення.

120 Yearbook of ukrainian law An appeal mechanism in administrative-legal Luchenko D. relations: an aspect from the perspective... can be mentioned: «OVR v. the Russian criminal sanction of disqualification of Federation»1 on matters of legal entities driving in it, since this right is very use- of public law – professional associations ful in daily life4. based on mandatory membership; case Confiscation of property is criminal «Feldebryuhhe v. the Netherlands» – to by nature in vision of the Court (e.g. in stop providing social benefits in medi- the case of economic activities without cine; right» Havrylenko v. the Russian a license, violation of customs regula- Federation» – regarding the calculation tions), used as an additional penalty, es- and indexation of social benefits2. pecially when the cost of such property In matters relating to administrative stands in stark contrast to a fine as the responsibility (and, therefore, appealing main penalty (for example, the case decisions on imposing administrative «Nadtochii v. Ukraine»5 the case «Iar- penalties), the Court pointed out that in mola v. Ukraine»6, «Plakhtieiev and some cases these matters may be cov- Plakhtieieva v. Ukraine»7). ered by Art. 6, if the offenses defined in In this case, the Court considers that national legislation as administrative, are according to the general rule, tax dis- criminal by nature or the character of the putes (including those related to the use encumbrances imposed on the person is of tax penalties) as stated in Art. 6 of so serious, that one can say that he is 4 Європейський суд з прав людини : Рі- actually prosecuted. Thus, in the case of шення у справі «Маліге проти Франції» від «Engel and Others v. the Netherlands» 23.09.98 р. // Ліга : Закон: комп’ютер.-прав. ECHR pointed out that sanctions, which система / Всеукр. мережа розповсюдження include imprisonment of persons are прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – 3 К. , 2012. – Заг. з вказів. для користувачів. – criminal . One can also recall a case Щоден. оновлення. «Malihe v. France». The Court found the 5 Європейський суд з прав людини : Рішен- ня у справі «Надточій проти України» від 1 Європейський суд з прав людини : Рі- 15.05.2008 р. // Ліга від 15.05.08 // Ліга : Закон: шення у справі «OVR проти Російської Фе- комп’ютер.-прав. система / Всеукр. мережа дерації» від 20.06.2000 р. // Ліга : Закон: розповсюдження прав. инф. – [Електр. про- комп’ютер.-прав. система / Всеукр. мережа гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. розповсюдження прав. инф. – [Електр. про- для користувачів. – Щоден. оновлення. гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. 6 Європейський суд з прав людини : Рі- для користувачів. – Щоден. оновлення. шення у справі «Ярмола проти України» від 2 Європейський суд з прав людини : Рі- 16.04.2009 р. // Ліга : Закон: комп’ютер.-прав. шення у справі «Гавриленко проти Російсь- система / Всеукр. мережа розповсюдження кої Федерації» [електронний ресурс]. – Ре- прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – жим доступу: http://www1.umn.edu/humanrts/ К. , 2012. – Заг. з вказів. для користувачів. – ru-ssian/euro/Rgavrilenkocase.html. Щоден. оновлення. 3 Європейський суд з прав людини : Рішен- 7 Європейський суд з прав людини : Рі- ня у справі «Енгель та інші проти Нідерлан- шення у справі «Плахтєєв та Плахтєєва про- дів» від 08.06.76 р. // Ліга : Закон: комп’ютер.- ти України» від 21.03.2009 р. // Ліга : Закон: прав. система / Всеукр. мережа розповсю- комп’ютер.-прав. система / Всеукр. мережа дження прав. инф. – [Електр. прогр.]. – Версія розповсюдження прав. инф. – [Електр. про- 8.2.3. – К. , 2012. – Заг. з вказів. для користу- гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. вачів. – Щоден. оновлення. для користувачів. – Щоден. оновлення.

№ 9/2017 121 State-legal sciences and international law the Convention are not protected (for as criminal ones, Art. 2 of Protocol 7 of example, the case «Ferradzini v. the Convention is applied in such cases, Italy»1). However, if tax penalties are according to which everyone who is con- very burdensome and intended to pun- victed of a criminal offense has the right ish the person who actually converts to revision of a conviction or sentence them into a criminal sanction, in this given to him by a higher tribunal. In such case a reference to violation of Art. 6 is cases the individual’s right to appeal possible. In the case of «Vestbjerg Taxi should always be guaranteed. In the case Company v. Sweden», the Court pointed out that the current tax penalties are of «Luchaninova v. Ukraine», the Court not a means of financial compensation pointed out that the review of the case of expenses, which could be caused by by the Chairman of the Supreme Court behavior of a taxpayer. After all, the cannot be considered as an independent main purpose of the relevant provisions guarantee of the right to appeal3 because of the legislation is to encourage the that person is not involved in reviewing taxpayer to carry out his legal duties either formally or virtually. In other and punish for evading them. Therefore, words, this right should have immediate such penalties are punitive and preven- nature, its implementation should not be tive in nature. The latter is usually a limited by discretion authority or official sign of criminal punishment. Proceed- as for solution to a question of whether ing from this the Court concluded that a particular revision of a judgment (as it the general nature of the legal rules is in a case in supervisory review). This governing tax penalties and objective of a penalty, which is both preventive includes cases in which a decision on the and punitive in nature, clearly indicate application of administrative sanctions that, for the purposes of Article 6, the is taken by the competent administrative applicants were accused of a criminal authority. In the case of «Štefánek offense2. against the Czech Republic» the court Due to the fact that administrative said that «although the reliance on ad- penalties in some cases may be regarded ministrative authorities function to investigate and punish offenses ... is not 1 Європейський суд з прав людини : Рі- шення у справі «Феррадзіні проти Італії» // contrary to the provisions of the Conven- Ліга : Закон: комп’ютер.-прав. система / Все- tion, the person who puts forward such укр. мережа розповсюдження прав. инф. – allegations must, due to the decision ad- [Електр. прогр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. для користувачів. – Щоден. opted in his favor, be able to apply to the оновлення. 2 Європейський суд з прав людини : Рішен- 3 Європейський суд з прав людини : Рі- ня у справі «Компанія Вестберга таксі проти шення у справі «Лучанінова проти України» Швеції» від 27.07.2002 р. // Ліга : Закон: від 09.06.2011 р. // Ліга : Закон: комп’ютер.- комп’ютер.-прав. система / Всеукр. мережа прав. система / Всеукр. мережа розповсюд- розповсюдження прав. инф. – [Електр. про- ження прав. инф. – [Електр. прогр.]. – Версія гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. 8.2.3. – К. , 2012. – Заг. з вказів. для користу- для користувачів. – Щоден. оновлення. вачів. – Щоден. оновлення.

122 Yearbook of ukrainian law An appeal mechanism in administrative-legal Luchenko D. relations: an aspect from the perspective... authority that can verify the legitimacy local court), it is a violation of Art . 2 of the decision in compliance with the Protocol 7 of the Convention (cases « procedural guarantees of Article 6 Hurepka v. Ukraine»2, «Dmytrii Plakhov (Convention)»1. v. Ukraine»3, «Khrystov v. Ukraine»4, In the case «Luchaninova v. Uk Peretiaka and Sheremetiev v. Ukraine»5). raine», the Court also noted that the right It should also be noted that in the Guide- to appeal is not absolute. Since there lines opinion on expert evaluation of may be some exceptions, particularly for normative acts (of projects) to the Euro- minor offenses. Accordingly, absence of pean Convention on Human Rights, ap- a mechanism for appeal in the case of the proved by the Government Agent for the imposition of minor administrative sanc- European Court of Human Rights of tions (e.g., warning or petty fine) is not 15.08.20066, it is indicated that the pres- considered by the Court as such that violates the spirit and letter of the Con- 2 Європейський суд з прав людини : Рі- vention and the law on administrative шення у справі «Гурепка проти України» від offenses, which provides similar institu- 09.06.2011 р. [електронний ресурс]. – Режим tions, is not the one that automatically доступу: http://www.khpg.org-/ru/index.php? contradicts European standards. It should id=1157025974 3 Європейський суд з прав людини : Рі- be considered when deciding an issue of шення у справі «Дмитрій Анатолійович reasonability of, for example, the right Плахов проти України» від 27.03.2012 р. // to appeal on rulings on administrative Ліга : Закон: комп’ютер.-прав. система / Все- offenses that are not related to the impo- укр. мережа розповсюдження прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – К. , 2012. – sition of administrative penalties. In the Заг. з вказів. для користувачів. – Щоден. event when a negative result, which is a оновлення. result of a ruling in the case on an ad- 4 Європейський суд з прав людини : Рі- ministrative offense, is insignificant, ab- шення у справі «Христов проти України» від sence of opportunity to challenge the 19.02.2009 р. // Ліга : Закон: комп’ютер.-прав. система / Всеукр. мережа розповсюдження resolution could be justified. When this прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – result is relevant, but the state did not К. , 2012. – Заг. з вказів. для користувачів. – provide a proper appeal mechanism of Щоден. оновлення. 5 such order either to the Court (if the Європейський суд з прав людини : Рі- шення у справі «Перетяка і Шереметьєв про- resolution adopted by an administrative ти України» від 21.12.2010 р. // Ліга : Закон: authority), or to a higher court (if a sub- комп’ютер.-прав. система / Всеукр. мережа ject of an imposition of a penalty is the розповсюдження прав. инф. – [Електр. про- гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. для користувачів. – Щоден. оновлення. 1 Європейський суд з прав людини : Рі- 6 Урядовий уповноважений у справах шення у справі «Штефанек проти Чеської Європейського суду з прав людини : Мето- Республіки» від 18.07.2006 р. // Ліга : Закон: дичні рекомендації щодо здійснення експер- комп’ютер.-прав. система / Всеукр. мережа тизи нормативно-правових актів (їх проек- розповсюдження прав. инф. – [Електр. про- тів) на відповідність Конвенції про захист гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. прав людини і основоположних свобод від для користувачів. – Щоден. оновлення. 15.08.2006 р.

№ 9/2017 123 State-legal sciences and international law ence of the right to appeal is a part of the further pause extradition in a given case. analysis of regulations for compliance This logic (as shown in the judgment with Art. 13. «Baisakov v. Ukraine»2) returns us to the Another important point, which the Recommendation (2003) 16, which con- European Court of Human Rights insists tains similar provisions on the need to on, is a requirement of efficiency of ap- allow the suspension of an administra- peal, which applies to judicial and ad- tive act due to its being appealed. More- ministrative proceedings, since Art. 13 over, non-use of domestic remedies by of the Convention does not focus solely an individual (including an appeal to the on issues of appeal in court. In the case administrative court) cannot be regarded of «Kadykis v. Latvia», the Court found as a breach of appeal to the Court if these a violation of Art. 13 in the absence of tools are clearly ineffective and ineffi- an effective mechanism to appeal on an cient (case «Prince of Liechtenstein administrative detention1. In the case of Hans-Adam II v. Germany»3). «Soldatenko v. Ukraine» the Court, in The right to a fair trial guaranteed by the context of an appeal on a court deci- Art. 6 of the Convention also provides for sion to extradite, pointed out that the a clear definition of the powers of the mere securing of the right to appeal to courts that review decisions of the courts court decisions, acts or omissions of a of the first instance, and, most impor- subject of authority (Art. 55 of the Con- tantly, a clear and consistent implementa- stitution of Ukraine, Art. 2 of the Code tion of these powers in practice. At the of Administrative Procedure of Ukraine) time, the European Court of Human does not mean having an effective mech- Rights rendered a range of rulings versus anism for the protection of rights. In the Ukraine on appeals of persons, who were Court’s view, these provisions are poten- not properly guaranteed a right to a cas- tially capable of providing an effective sation by contradictory laws and law en- remedy in respect of complaints, that the forcement practices that took place im- decision on extradition would constitute mediately after the Code of Administra- a violation of Article 3 of the Conven- 2 Європейський суд з прав людини : Рі- tion, but on condition that they provide шення у справі «Байсаков проти України» sufficient guarantees. Such guarantees від 18.02.2010 р. // Ліга : Закон: комп’ютер.- could be found, for example, in the прав. система / Всеукр. мережа розповсюд- courts jurisdiction to consider the extra- ження прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. для користу- dition in accordance with Article 3, and вачів. – Щоден. оновлення. 3 Європейський суд з прав людини : Рі- 1 Європейський суд з прав людини : Рі- шення у справі «Принц Лихтенштейну Ганс- шення у справі «Кадикіс проти Латвії» від Адам ІІ проти Німеччини» від 12.07.2001 р. 04.05.2006 р. // Ліга : Закон: комп’ютер.-прав. // Ліга : Закон: комп’ютер.-прав. система / система / Всеукр. мережа розповсюдження Всеукр. мережа розповсюдження прав. прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – инф. – [Електр. прогр.]. – Версія 8.2.3. – К. , К. , 2012. – Заг. з вказів. для користувачів. – 2012. – Заг. з вказів. для користувачів. – Що- Щоден. оновлення. ден. оновлення.

124 Yearbook of ukrainian law An appeal mechanism in administrative-legal Luchenko D. relations: an aspect from the perspective... tive Procedure of Ukraine entry into In the case of «Hornsby v. Greece» force. In the case of «Bulanov and Kup- the Court drew attention to the issue of chik v. Ukraine» it was noted that the implementation of decisions taken Court does not consider it necessary to against the administrative authorities. investigate under the existing circum- The Court noted that the decision made stances, whether the Supreme Court or by the court should be seen as part of the the Supreme Administrative Court had «trial» under Article 6; the importance the jurisdiction to decide on the merits of of this principle in the context of admin- the applicants. It is important that appli- istrative proceedings is the duty of ad- cants did not solve their complaints be- ministrative authorities to implement the cause the Supreme Administrative Court decision of the highest administrative refused to follow the rulings of the Su- court of the state. Accordingly, the ap- preme Court, which determined the juris- peal must be effective only when satis- diction of these cases. Such denial did not faction of the complainant ends with a only deprived the applicants of access to quick and full implementation of the the courts, but also questioned the author- adopted decision in its favor4. ity of the judiciary. After receiving the In summary, we note that consider- final decision of the Supreme Court, ation of the legal positions of the Stras- which is the highest judicial authority bourg Court is not only a matter of rule- according to a constitutional status and making, direction of legal regulation of provides clarification on the application redress mechanisms used by members of of the law, the applicants had legitimate administrative and legal relations in order expectations that these decisions could 1 to protect their rights and interests. Prec- not be challenged . A similar motivation edents of the Court are acting law that was given for «Andriievska v. Ukraine»2, 3 should find expression in law enforce- «Vasyliv v. Ukraine» and others. ment activities, primarily the practice of administrative courts, which consider 1 Європейський суд з прав людини : Рі- шення у справі «Буланов і Купчик проти complaints against decisions, actions or України» від 09.12.2010 р. // Ліга : Закон: omission to act by government agencies. комп’ютер.-прав. система / Всеукр. мережа розповсюдження прав. инф. – [Електр. про- Published: Державне будівництво та гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. місцеве самоврядування: зб. наук. пр. / для користувачів. – Щоден. оновлення. редкол.: Ю. Г. Барабаш та ін. – Х. : Право, 2 Європейський суд з прав людини : Рі- 2014. – Вип. 28. – С. 116–128. шення у справі «Андрієвська проти Украї- ни» від 01.12.2011 р. // Ліга : Закон: комп’ютер.-прав. система / Всеукр. мережа прав. инф. – [Електр. прогр.]. – Версія 8.2.3. – розповсюдження прав. инф. – [Електр. про- К. , 2012. – Заг. з вказів. для користувачів. – гр.]. – Версія 8.2.3. – К. , 2012. – Заг. з вказів. Щоден. оновлення. для користувачів. – Щоден. оновлення. 4 Європейський суд з прав людини : Рі- 3 Європейський суд з прав людини : Рі- шення у справі «Горнсбі проти Греції» від шення у справі «Василів проти України» від 19.03.97 р. [електронний ресурс]. – Режим 20.01.2011 р. // Ліга : Закон: комп’ютер.-прав. доступу: http://zakon2.rada.gov.ua/laws/ система / Всеукр. мережа розповсюдження show/980_079.

№ 9/2017 125 N. Pysarenko, Candidate of Legal Sciences, Associate Professor, Associate Professor of the Administrative Law Department of the Yaroslaw Mudryi National Law University

UDC 342.95.341.231.14 IMPACT OF THE RESOLUTION OF THE EUROPEAN COURT OF HUMAN RIGHTS ON FORMATION OF THE POSITION REGARDING THE APPLICATION OF THE SEPARATE PROVISIONS OF THE LEGISLATION ON ADMINISTRATIVE OFFENCES

Lately the European Court of Human We would like to emphasize that the Rights (hereinafter – the Court) has ap- majority of the resolutions of the Court proved a lot of resolutions in the cases in the proceedings against Ukraine have against Ukraine which state the violation received the status of the final ones. It of the Convention for the Protection of has given a possibility to the applicants Human Rights and Fundamental Free- of the proceeding to raise a question con- doms 1950 (hereinafter – the Conven- cerning the review by the Supreme Court tion). The content of some of them stip- if Ukraine of the resolutions of national ulated that these violations have been courts taken with the violation by committed due to the fact that the Ukrai- Ukraine of the international obligations. nian courts applying some norms of ad- The analysis of the Court resolutions ministrative law (in particular, the regu- as well as the provisions of the Supreme lations of the Code of Ukraine on admin- Court of Ukraine in the proceedings istrative offence (hereinafter – CUAO)) where the legitimacy of bringing of the do not consider the obligatory character persons to the administrative responsi- of the convention provisions which de- bility is evaluated, gives the possibility termine the principles, which resolve the to formulate a number of the conclu- issues on legal responsibility of the sions. In our opinion the court practice physical persons. should be formed as well as the norms

126 Yearbook of Ukrainian law Impact of the resolution of the European court Pysarenko N. of human rights on formation of the position... of CUAO should be improved consider- note to the Protocol No. 7 of the Conven- ing these conclusions. tion. The explanatory note specified that 1. Proceeding in the cases on admin the main criteria is whether the offence istrative offences, in the result of which is castigated with imprisonment. Speci- a resolution on application of the most fying this explanation, the Court in the strict penalty – administrative arrest can resolution in the case «Gurepka against be taken and it is considered criminal Ukraine» demonstrates a point of view according to its content that is such that which totally coincides with the one demands the provision of all the guaran stated in the case «Kornev and Karpen tees of the article 6 of the Convention. ko against Ukraine»: the applicant The resolutions in the proceedings Gurepka was brought to responsibility «Gurepka against Ukraine» and «Ko under the part 1 of the article 1853 of rnev and Karpenko against Ukraine» CUAO which stipulated the possibility can serve as the samples of the resolu- of application of the administrative ar- tions in which the Court demonstrates rest to 15 days; presence in the sanction the specified positions. The last one de- of the main penalty in the form of im- termines that the applicant Karpenko due prisonments makes it impossible to con- to committing the administrative offence sider the offence as an insignificant one2. specified in the part 1 of the article 1853 2. Bringing of a person to adminis CUAO has been punished by means of trative responsibility for the order viola imposition of fine. However, the sanction which is not duly established by the tion of the specified article at the mo- national legislation is incompatible with ment when the applicant had been the provisions of the Convention, in par brought to the responsibility, defined the ticular art. 7 of the international law act. possibility of application of the admin- This conclusion was formulated in istrative arrest. Thus, the offence speci- the Court resolution in the case «Veren fied is not significant and the proceeding zov against Ukraine». In the application on consideration of the cases on bringing to the Court, Verenzov complained about to the responsibility for its commitments the fact that he was declared to be guilty should take place on the basis similar to in the violation of the order of manifesta- those which are used for the consider- tion realization despite such order is not ation of the criminal case1. duly determined in the legislation. Moreover, the questions regarding Having investigated the internation- the criteria, according to which the of- al acts, the Ukrainian legislation, having fences can be considered an insignificant analyzed the court practice regarding one, was specified in the explanatory realization of the right for peaceful meet-

1 Рішення Європейського суду з прав 2 Рішення Європейського суду з прав людини у справі «Корнєв і Карпенко проти людини у справі «Гурепка проти України» України» від 21 жовт. 2010 р. // Практика від 8 квіт. 2010 р. // Практика Європейського Європейського суду з прав людини. Рішення. суду з прав людини. Рішення. Коментарі. – Коментарі. – 2011. – № 4. – С. 87–106. 2011. – № 3. – С. 191–201.

№ 9/2017 127 State-legal sciences and international law ings, the Court specified that the appli- the other one – the applicant Verenzov cant was brought to responsibility for under the article 185 and part 1 article disobedience to legal orders of the police 1851 of the CUAO. representatives and for violation of the The article 277 of CUAO determines order of the demonstrations holding. The that the cases regarding administrative last one of the specified violations is offences stipulated by article 185 and stated in the article 1851 of the CUAO. part 1 article 1853 are considered by the Nevertheless, its ground, in other words court within one day and article 1851 – the order of the demonstration holding, within three days. is not duly specified in the legislation. In both specified resolutions the Due to this reason, the Court has summed Court reminded that the subparagraph b up that due to absence of the rules of part 3 article 6 of the Convection guar- holding a peaceful demonstration, the antees for the accused one «adequate applicant’s penalty for the violation of time and possibilities necessary for the the non-existing order is a violation of preparation of his defense». The accused the convention norms1. one should have a possibility to organize 3. Fixing in CUAO of too short time his defense in a due way, to present with- period for the examination of the case out any obstacles to the court, which regarding administrative offence leads investigates the case, all necessary de- to the violation of the person’s right for fense arguments and in such way influ- time and possibility for preparation of ence on the proceeding result. In addi- his defense as well as the right for legal tion, the means which are accessible to assistance at his own option. all, who is accused of offence commit- The above specified laws are guaran- ment, should include the possibility to teed by the paragraphs 1 and 3, article 6 get acquainted with the results of the of the Convection. Their violation is de- investigation which took place during termined in the resolutions of the Court the whole proceeding in order to prepare in the cases «Kornev and Karpenko his defense. The issue of the time period against Ukraine» and «Verenzov against adequacy and the means given to the Ukraine». accused one should be evaluated taking We would specify that in the first into account the circumstances of each case the Court investigated the issue of certain case. responsibility to convention provisions In the case of Karpenko and in the of the procedures of bringing the appli- case of Verenzov, the Court specified cant Karpenko to responsibility under that despite the absence of a certain stat- the part 1 article 1853 of CUAO and in ing a certain time period between drawing up of the acts on administrative of- 1 Рішення Європейського суду з прав лю- fences and examination of the cases re- дини у справі «Вєрєнцов проти України» від garding the applicants, it’s obvious that 11 квіт. 2013 р. // Практика Європейського it did not exceed several hours. Even if суду з прав людини. Рішення. Коментарі. – 2013. – № 3. – С. 73–104. to presume that these cases were not

128 Yearbook of ukrainian law Impact of the resolution of the European court Pysarenko N. of human rights on formation of the position... complicated, the Court expresses it guarantees his right for the defender not- doubt that the circumstances under withstanding his own legal knowledge. which they have been considered, had Refusal of the national bodies to satisfy been such that gave the applicants a pos- such petition on legal representation is sibility to get duly acquainted with the illegal and self-willed. accusation and proves against them, to In the other case the claimant evaluate them and elaborate an effective Karpenko affirmed that still she didn’t legal strategy of their defense. The fur- apply for the provision of the legal rep- ther appellation claim which took place resentation of her interest, she should not in the case of Verenzov, in opinion of the be blamed for that because as it was said Court, could not change the situation earlier, she didn’t have any time to eval- taking into account the fact that at the uate the situation and understand the moment when the appellation court in- necessity and importance of such peti- vestigated the applicant’s claim, he has tion for the examination of her case. already completed the time of the admin- Thus, the Court has come to a conclusion istrative arrest. Thus, in the specified that the inactivity of the claimant does cases the Court has come to a conclusion not release the country from the respon- that the applicant had not had adequate sibility for the violation of her proce- time and means for the preparation of dural rights. their defense. 4. Review by the appellation court of Regarding the right for the legal as- the resolution regarding administrative sistance on his own choice, the Court has arrest after full completion of the pen also defined that it was violated in both alty is a violation of the appellation right considered cases. Whereas in the resolu- specified in the article 2 of the Act No. 7 tions for both cases, it it described a dif- to the Convention. ferent demonstration of such violation. Such resolution was taken by the So in the case of Verenzov, the national Court after having examined the case court refused the applicant to satisfy his «Shvidka against Ukraine». The claim- claim regarding the presentation of his ant in this case was brought to the re- interests by the attorney at his own sponsibility under the court resolution choice under the reason that the claimant dd 30 August 2011 under the article 173 was a human rights activist. of CUAO with the imposition of the pen- Expressing critics to such argumen- alty in the form of the administrative tation, the Court indicated that not each arrest of 10 days. The defender of Sh- human right activist is an attorney and if vidka presented an appeal on her behalf even when such person is an attorney, it in the day of the resolution approval does not mean that he was not vulnerable which was considered by the appellation or did not needed the assistance in his court in 21 September 2011. At that time procedural status of a suspect one. If a Shvidka has already completed her full person considers that he need legal as- penalty and for this reason in her claim sistance and the national legislations to the Court, she specified that at the

№ 9/2017 129 State-legal sciences and international law moment of the appeal consideration, it state, which has a person before viola was not important to her whether the tion of the Convention, in respect to appellation court cancels the resolution which the question of brining to admin of the court of first instance or leaves it istrative responsibility was solved. without any changes. According to this article if the Su- Having certified in this case the vio- preme Court of Ukraine has come to a lation of the appellation right, the Court conclusion about complete or partial re- specified that under the CUAO, the ap- vision of the resolution in the case on pellation claim does not terminate the administrative offence due to the defini- execution of the court resolution on im- tion of the violation by Ukraine of the posing the administrative arrest. Thus, international obligations, it has the right the review by the appellation court of the a) to cancel the resolution and terminate resolution on imposing the arrest shall the proceeding, b) cancel the resolution be executed afterwards when the person and send the case to a new examination brought to responsibility, has completed to the court, which has delivered the her penalty. Due to this reason the Court judgment subject to appellation. mentioned that such review cannot ef- We would like to underline that fectively correct the deficiencies of the Verenzov and Shvydka in their claims to resolution of the court of lower instance the Court specified that their bringing to as it (reviw) «serves to no aim anymore». administrative responsibility formed the The Court has also mentioned the violation of the rights which are pro- fact that if the appellation court has can- tected by the Convention. So, Verenzov celled the resolution of the court of first complained about the intervention in his instance, than the claimant would be able right of peaceful meetings (article 11 of to demand on this basis the payment of the Convention) and Shvydka – about material and moral damages. Neverthe- violation of the rights of free expression less, in the Court’s opinion, such retro- of opinion (article 10 of the Convention). spective and exclusively compensation In other words, both claimants affirmed method of legal defense cannot be con- that their actions were not illegal and for sidered as a replacement of law for revi- this reason, the enforcement measures sion as the Contention is aimed to guar- cannot be applied to them. The Court in antee not the illusion rights but the its resolutions supported the positions of rights, which are effective in practice1. Verenzov and Shvydka stating the viola- 5. The powers of the Supreme Court tion of the specified articles of the Con- of Ukraine specified in the article 29710 vention. CUAO completely guarantee the ade The Supreme Court of Ukraine, hav- quate possibilities to reach the juridical ing investigated the relevant claims of Verenzov and Shvydka, cancelled the 1 Рішення Європейського суду з прав лю- resolutions of national court on bringing дини у справі «Швидка проти України» від of these persons to responsibility, and 30 жовт. 2014 р. // Офіц. вісн. України. – 2015. – № 22. – Ст. 625. terminated the proceeding in these cases

130 Yearbook of ukrainian law Impact of the resolution of the European court Pysarenko N. of human rights on formation of the position... due to the lack of content of administra- guilty in committing an offence stipu- tive offences1. lated by the part 1 of the article 185 – 3 Karpenko in the claim to the Court of CUAO3. We consider that the desir- indicated the violation of the part 3 of able for the claimant reason for the pro- the article 6 of the Convention, e.g. the ceeding termination which would com- non-provision of the time and possibili- pletely rehabilitate her, would have been ties required for preparation of her de- the determination by the court at new fense. So, the claimant has not com- consideration of the case, of the absence plained about bringing her to responsi- in her action of the offence content due bility due to the absence in her actions to not proving the guilt in committing of the offense content, she mentioned the offense. that she had not has fair judicial exami- The decision of the appellation court nation due to violation of the procedural regarding bringing of Karpenko to re- guarantees stipulated by the Convention. sponsibility is not included into the Uni- For this reason the Supreme Court of fied register of court decisions. We sup- Ukraine has partly satisfied the Karpen- pose that the claimant has not used her ko claim on review of the resolution of right to appeal the court resolution ac- her bringing to responsibility, cancelled cording to which she was declared guilty. the resolution of the court of first in- Whereas under the article 294 of the stance and the case was directed to new CUAO she could have appealed the res- review2. olution of the court of first instance de- The proceeding in the case regarding clared in the result of new consideration Karpenko was terminated by the resolu- of the case and ask the appellation court tion of the judge of Chervonozavodskiy to terminate the proceeding under the district court in Kharkiv city. By the mo- rehabilitation reason. ment of its new review, the term of administrative penalty has finished. In this Published: Адміністративне право і resolution Karpenko was proclaimed процес. – 2016. – № 2 (12). – С. 16–22.

1 Постанова Верховного Суду України від 3 берез. 2014 р., № 37908429 [Електрон. ре- сурс]. – Режим доступу: http://www.reyestr.court.gov.ua/Review/37908429 та поста- нова Верховного Суду України від 27 квіт. 2015 р., № 44293205 [Електрон. ресурс]. – Ре- жим доступу: http://www.reyestr.court.gov.ua/ Review/44293205. 3 Постанова Червонозаводського район- 2 Постанова Верховного Суду України від ного суду м. Харкова від 29 груд.2012 р., 9 лип. 2012 р., № 25300167 [Електрон. ре- № 28420109 [Електрон. ресурс]. – Режим сурс]. – Режим доступу: http://www.re- доступу: http://www.reyestr.court.gov.ua/ yestr.court.gov.ua/Review/25300167. Review/28420109.

№ 9/2017 131 CIVIL-LEGAL SCIENCES

N. Kuznetsova, Doctor of Law, Professor, Academic of the National Academy of Legal Sciences ofUkraine, Honoured worker of science and technology of Ukraine, Profes- sor of the civil law department of Taras Shevchenko National University of Kyiv

UDC 347.441.83(094.5)(477) INVALID TRANSACTIONS AND THEIR LEGAL CONSEQUENCES ACCORDING TO THE LEGISLATION OF UKRAINE

Transactions are one of the most immoral principles of the society; the per- portant legal phenomena that are sup- son who performs transaction shall have posed to be an efficient instrument to the required amount of relevance, the regulate public relations. It is enough to willingness of which shall be free and say that the vast majority of civil rela- correspond with the inner intent; the tions appear exactly from the transac- transaction shall be performed in the tions. way stipulated by the law, the transaction Considering this role of transactions shall be aimed at achieving real legal as legal facts of civil law, Article 203 of consequences stipulated by it. the Civil Code of Ukraine stipulates gen- Exactly following these requirements eral provisions that are necessary to fol- determines transaction as «sound» legal low in order to make the transaction fact. It makes the mechanism of civil valid, in other words, to make the re- regulation functioning, namely it trans- spective actions of natural persons or fersthe civil rights and responsibilities legal entities as to become grounds for from regulatory field in the field of real civil rights and responsibilities to appear, civil relations, the essence of which are to change or to terminate. These require- civil rights and responsibilities that nat- ments are reducedas follows: the essence ural persons and legal entities enjoy. of the transaction shall not violate the If any requirements stipulated by Ar- provisions of the Civil Code of Ukraine, ticle 203 of the Civil Code of Ukraine other acts of civil legislation as well as are violated, the actions of natural per-

132 Yearbook of Ukrainian law Invalid transactions and their legal consequences Kuznetsova N. according to the legislation of Ukraine sons and legal entities only relatively can entirely the ones related to stating (rec- be considered as transaction and, respec- ognizing) transaction asnull and void. tively, shall not perform the function of Considering these conditions, there legal fact. is an absolutely reasonable question, According to part 1 of Article 216 of whether it is appropriate (including and the Civil Code of Ukraine, invalid trans- first of all from the terminological point action does not create any other legal con- of view) to name actions that violate the sequences, except ones, appeared at the requirements of Article 203 of the Civil result of its invalidity. In legal literature Code of Ukraine if not invalid but still the issue related to the invalidity of trans- transactions. action as well as related to their legal con- In due time this fact attracted atten- sequences is still a subject of lively dis- tion of M. M. Agarkov. He emphasized cussions.In practice this issue is a ground that the term «transaction» should be for a number of questions to arise. used to name only actions that led to the The literature stipulates fairly that intended legal effect. Those actions that although institute of invalid transactions did not lead to the intended legal effect in legislation was used quite a long time or led to the wrong legal effect should be ago, even now the legal science does not named «willingness» and here we should have a common point of view related to talk about invalid willingness but not the definition of invalid transaction. In about invalid transaction. addition to this, the important issue re- As M. M. Agarkov noticed, the translated to the essence of invalid transaction action is always valid and it includes and how this notion corresponds with the willingness that is considered to be al- notion of transaction invalidity has not ways valid. Thus, valid or invalid can be been uncovered fully yet.1 only willingness.2 There are no doubts that transaction But, as we can see, during the latest (or if to be more precise – actions that codification in Ukraine as well as in includes features of transactions) that do other CIS countries, the law maker did not comply with the requirements stipu- not amend the terminological approach lated by Article 203 of the Civil Code of to define actions that do not correspond Ukraine is impossible to be considered as with the stipulated requirements of Ar- appropriate (efficient, acting) legal fact ticle 203 of the Civil Code of Ukraine. and thus to create, to change or to termi- He keeps naming them as invalid trans- nate legal rights and responsibilities. actions. As it was stipulated, the consequenc- At the same time, in our opinion, de- es of performing such actions may be fining nature of legal transactions, there is lack of grounds to consider them as 1 Гутников О. В. К вопросу о понятии не- действительных сделок. В кн.: Недействи- тельность сделок в гражданском праве: про- 2 Агарков М. М. Понятие сделки по совет- блемы, тенденции, практика. – М. : Статут, скому гражданскому праву // Советское госу 2006. – С. 58. дарство и право. – 1946. – № 3–4. – С. 47–48.

№ 9/2017 133 Civil-legal sciences legal facts that independently belong to Code and that took place at the moment legal phenomenon and that are valid, but of performing such an action. Invalid they do not create those legal conse- transaction as a legal fact is possible to quences that were intended. be legal as well as illegal action».3 In addition to this, this point of view O. V. Gutnikovconsiders that while provokes certain objections. Thus, in estimating transaction on the subject of Russian literature O. V. Gutnikov exits legitimacy, it is necessary to conduct pressed opinion that invalid transaction a review in order to find out whether the itself is also a legal fact. He divides two transaction violates the mandatory regu- notions: transaction-fact and transac- lations of the law, or not. If such violation-legal relations and considers that tion is uncovered, the transaction is con- there are neither theoretical, no regula- sidered to be invalid. If the transaction tory grounds to connect transaction violates the prohibition, it is considered with legal consequences occurrence on to be illegal, in other words it is consid- which the willingness of the parties was ered to be a violation of law. aimed at.1 In Ukrainian civil law this point of The author believes that legal conse- view is supported by I. V. Spasibo-Fatee- quences are out of the transaction con- va. She also believes that invalid transac- cept as legal phenomenon and belong to tion is impossible to be legally indifferent transaction-legal relations concept, but fact because having performed the transac- not to the concept of transaction-fact. tion the parties appear to have certain cir- Due to the fact that invalidity itself cumstances according to the law (although belongs to the legal consequences (in not those on which they were aimed at)4. other words to transaction-legal relations Such point of view on the essence of concept, but not to transaction-fact con- the invalid transaction is hardly can be cept), the author supposes incorrectly to supported. The exact scheme of legal say that invalid transaction is not a legal facts that determines the dynamics of fact2. civil legal relations (their appearance, Invalid transaction as legal fact is changing, termination) and, thus, civil «action of natural persons or legal enti- transactions in general stipulates the place ties aimed at creating, changing or ter- in such transaction system, first of all re- minating legal rights and responsibilities lying on their «constitutional» character- according to which the law does not rec- istics: legitimacy, character of a strong ognize legal consequences on which the will, focus to achieve certain result. willingness of the parties was aimed at Exactly these characteristics have on the grounds stipulated by the Civil influence on general characteristic of

1 Гутников О. В. Недействительность 3 Гутников О. В. Вказ. Робота, С. 93–94. сделки в гражданском праве (теория и пра- 4 Спасибо-Фатеева И. В. Недействитель- ктика оспаривания). М.: Статут, 2007. – С. 30. ные сделки и проблемы применения рести- 2 Гутников О. В. К вопросу о понятии не- туции // Ежегодник украинского права. – действительных сделок. – С. 69. 2009. – № 1. – С. 150.

134 Yearbook of ukrainian law Invalid transactions and their legal consequences Kuznetsova N. according to the legislation of Ukraine transactions as legal facts and define D. O. Tuzovtakes more categorical their relations with other legal facts in- position: «Invalid transaction does not cluding legal acts, legal actions, civil refer to the regulatory scheme provided violations of law (delicts). for it and in this respect it does not exist Lack of even one of such character- for the law because it does not give a istics confirms the «defectiveness» of legal effect that refers to its type. Due to such action as legal fact. Such circum- the fact that the notion of legal fact is stance was rather categorically empha- immanently connected with the legal sized by M. M. Agarkov. He stated that effect, it is necessary to recognize that such action in general is impossible to invalid transaction as such (exactly like be considered as transaction and needs transaction) is not a legal fact. This is an another term. action that is indifferent to the law. It is On the basis thereof, he offered «to not prohibited but it is not allowed by the subjective right, it does not take it under hold back» from using the term «invalid 2 transaction», replacing it with another its protection» . one, namely «invalid declaration of will» As it is possible to see, the old discussion on legal nature of invalid trans- taking into account lack of required fea- actions appeared in Russian civil law tures of transaction as legal fact. before the revolution. It continued dur- Modern scientists who study invalid ing the soviet times and even nowadays transactions, their legal consequences it provokes lively interest in legal sci- share traditional views on defining in- ence. To a certain extent it is caused by valid transactions as legal phenomenon the lack of fundamental civil and theo- that does not belong to the system of legal retical studies devoted to the institute of facts. This point of view was demonstrat- legal facts not only in Ukraine but in ed in the works of M. M. Agarkov and other post-soviet countries as well. O. A. Krasavchikov, F. S. Heyfets and The last decade offers the works of other civil law scholars of soviet times. M. A. Rozhkova3 and A. V. Kostruba4 Rejecting the possibility and reason- that uncover certain problems of legal ability to qualify invalid transactions as facts system in the civil law. legal facts sui generis, A. A. Kot speci- праве: проблемы, тенденции, практика. М.: fies that there are all grounds to say that Статут, 2006. С. 114–115. the existing system of legal facts has no 2 Тузов Д. О. Теория недействительности place for invalid transactions. Such con- сделок. Опыт российского права в контексте clusion mostly on the lack of legal con- европейской правовой традиции. М.: Статут, sequences that invalid transactions have 2007. – С. 134–135. 3 Рожкова М. А. Юридические факты гра- and only indirectly is proved by the fail- жданского и процессуального права. М.: ure «to add» invalid transaction in this Статут, 2009. 332 с. or that group (type) of legal facts1. 4 Коструба А. В. Юридичні факти в ме- ханізмі право припинення цивільних відно- 1 Кот А. А. Природа недействительных син. Київ: Видавничий дім «Ін Юре», 2014. сделок // Недействительность в гражданском 370 с.

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At the same time, it is possible to say the result of such transaction was in- without any exaggerations that the insti- curred from them as income of the state tute of invalid transactions has similarly and if the transaction was performed by important and similarly controversial one of the parties, another party had to both theoretical and practical sides. give everything received back as well as As it was emphasized before, the le- everything owned to transfer to the first gal consequences of the invalid transac- party instead of the received. tion itself provoke interests of scientists If only one of the parties had intent, and experts. everything that was received by it ac- The look-back study of the civil law cording to the transaction was given proves that the Civil Code of the Ukrai- back to another party, and everything nian SSR as well as codified acts of that was received by another party or civil law of other republics of the former everything that belonged to it instead of USSR, the main legal consequence of performed ones was incurred in favor of legal transaction in most cases was mu- the state. tual restitution application. Taking into account the character of Thus, Article 48 of the Civil Code of such circumstances, they were named the Ukrainian SSR stipulated that the civil confiscation and in educational ma- invalid transaction made each party re- terials they also were named as «preven- sponsible to give back to another party tion of restitution»1. everything that was received at the result It should be noted that application of of such transaction, and if it is impossi- the consequences stipulated in Article 49 ble to give the received back in kind – to of the Civil Code of the Ukrainian SSR compensate the damage with the help of (civil confiscation) even in soviet times money if other consequences were not was performed quite seldom. It is even stipulated by the law. possible to say that it was performed In certain cases, except mutual resti- only in exceptional cases. One of them tution, as an exception, it was allowed to was provided by the Plenum of the Su- compensate damages incurred by the preme Court of the USSR as of October «offended» party (if the transaction was 6, 1970 «On application of the legisla- performed by the infant or incompetent tion by the courts while resolving dis- person and another party knew or had to putes where one of the parties is kolk- know about that). hoz». The courts were recommended to Special legal consequences the law recognize the agreements as null and maker stipulated for such called «antiso- void in which the ownership right of the cial» transactions that were performed state on the land (purchase and sell, with the aim that intentionally contra- pledge, lease etc.) was violated directly dicted the interests of the socialist state and society. If two parties had certain 1 Советское гражданское право. Том 1. intent and the transaction was performed Под ред. В. А. Рясенцева. М.: Юридическая by them, everything gained by them at литература, 1975. С. 212–215.

136 Yearbook of ukrainian law Invalid transactions and their legal consequences Kuznetsova N. according to the legislation of Ukraine or in a hidden way and to apply exactly founders that did not exist by having those circumstances stipulated in Article their lost or stolen documents that did 49 of the Civil Code of the Ukrainian not do business in reality), through court SSR (the similar regulation were includ- proceedings procedure they recognized ed into other civil codes including the their foundational documents as null and Civil Code of the RSFSR). void and respectively annulled their state Such position was based on the un- registration as a legal entity. Later, hav- derstanding that according to Article 90 ing studied economic and financial op- of the Civil Code of the Ukrainian SSR erations performed by the participation the land, its subsoil, waters and forests of such «fake» legal entity, the tax au- were owned exclusively by the state and thorities applied to the court with a claim were given to other subjects just into to recognize all transactions performed usage. Therefore, hidden transactions of with their participation as null and void land plots from the position of the civil on the grounds stipulated in Article of legislation were considered as «antiso- the Civil Code of Ukraine of 1963. cial» and those that discredited constitu- Furthermore, all negative circum- tional principles of the socialistic way of stances fell on the shoulders of the fair life. opposite party of the contract because at As the practice proves, when the the moment of settling the case the fake state tax service system was established, enterprise, as a rule, terminated its activ- Article 49 of the Civil Code of the Ukrai- ity a long time ago leaving no chances nian SSR received «a new life». In order to the creditors. to provide state budget replenishment Such situation caused controversial and to make unfair tax payer to pay pen- reaction within the business society. It alties, the tax authorities started to initi- destabilized the court practice because ate actively claims to recognize transac- considering the case a lot of state au- tion performed by the natural persons or thorities, such as general courts, eco- legal entities as null and void on the nomic courts, bodies that enforce the grounds stipulated by Article 49 of the court decisions and others were engaged. Civil Code of the Ukrainian SSR (later – The state of things essentially chan the Civil Code of Ukraine of 1963). ged when in 2003 the new Civil Code of The study of the resolving disputes Ukraine was adopted. It excluded the practice related to recognition of transac- regulation that was identical to the one tions as null and void by the economic that Article 49 of the Civil Code of courts showed the «demand» for the Ar- Ukraine of 1963 included. As possible ticle 49 of the Civil Code of Ukraine of consequences to recognize the transac- 1963 exactly on fiscal purposes. The tax tion as null and void it did not stipulate authorities used a very easy scheme. Dis- civil confiscation (prevention of restitu- covering during the audit of the enter- tion) application. prise’s activity so called «fake» enter- The key innovation of the Civil Code prises (as a rule, established by the of Ukraine of 2003 involved that the law

№ 9/2017 137 Civil-legal sciences maker, defining the legal consequences it was stated by M. M. Agarkov) of legal of invalid transactions, refused from fact status. That is why returning the confiscation consequences at all. Pursu- parties to their primary proprietary status ant to the paragraph 2 of part 1 of Article (mutual restitution) in such a case it is 216 of the Civil Code of Ukraine, in case possible to be considered as the most of invalid transaction, each of the parties significant sound consequence. is obliged to give back in kind to an- Speaking about the possibility to re- other party everything it gained to per- cover the damages and/or nonmaterial form such a transaction. If it is impos- damage caused by the transaction, pursu- sible to give everything back, in particu- ant to the general regulations of Article lar, when those that was received is the 22 of the Civil Code of Ukraine of 2003 use of property, or performed work, or the person who suffers the damages at provided service, another party is obliged the result of its civil right violation en- to compensate all damages at the prices joys the right to recover them. that exist at the moment of such compen- Similarly, Article 23 of the Civil sation. Code of Ukraine stipulates the right of The Civil Code of Ukraine of 2003 any person to recover all nonmaterial has another approach to solve the issue damages that he suffered at the result of related to compensation of the damages violation of its civil right. caused by the invalid transaction. As a Therefore, stipulated by Article 216 general rule, the provision according to of the Civil Code of Ukraine legal con- which if another party or the third party sequences to recognize transactions as suffered damages or nonmaterial dam- null and void are possible to be consid- age by the invalid transaction, such dam- ered as absolutely balanced measures ages should be recovered by the party provided by the law maker if the terms that was guilty in such invalid transac- of validity of transactions stipulated in tion (part 2 of Article 216 of the Civil Article 203 of the Civil Code of Ukraine Code of Ukraine of 2003) was fixed. are violated. Analyzing the stated innovation of At the same time this logic according the current Civil Code of Ukraine, it is to which the depth of the conceptual ap- possible to say that they are logically fit proach was determined before defining into the concept of private method to the consequences of invalid transactions regulate property and personal non- was ruined completely by Articles 207, property relations based on legal equal- 208 of the Civil Code of Ukraine. They ity of the parties and their autonomy of stipulated the possibility to recognize will. invalid the economic responsibilities As it was stipulated before, the viola- that did not follow the requirements of tion of the terms of the validity of trans- the law or that was performed with the action does not make this action being a aim that intentionally violated the inter- violation of the law itself. It deprives ests of the society and the state or was such an action («declaration of will» as executed by the participant of economic

138 Yearbook of ukrainian law Invalid transactions and their legal consequences Kuznetsova N. according to the legislation of Ukraine relations with violation at least one of The comments to the stated article economic competence (social legal ca- describes that due to the different reasons, pacity) on the request of one of the par- such as difficulties to prove circumstanc- ties or the respective state authority. es required to apply this article, uncertain- At the result of recognition of eco- ties of the notion «public order and moral- nomic responsibilities as null and void ity», carefulness of the judges to apply the Civil Code allows to apply confisca- such a norm, taking into account the cru- tion procedures (mutual or one-sided elty of consequences provided by it, so- restitution avoidance). cial and economic changes that take place So, the study of the content of Arti- in the country that cause the rethinking of cles 207 and 208 of the Civil Code of many values, it is applicable in court prac- Ukraine (if to not take into account all tice as well as Article 49 of the Civil Code «inappropriate» wordings that were crit- of the RSFSR very seldom. icized heavily in legal literature)1, gives The Russian court practice devel- a ground to reach a conclusion that in oped general list of antisocial transac- fact the mechanism of Article 49 of the tions. Having certain precautions and Civil Code of Ukraine of 1963 remains additional conditions it is possible to the same, although the authors of the name them as follows: a) the majority of current Civil Code of Ukraine refused transactions that includes the compo- from it as a matter of principle. nents of the criminal offense or harsh Taking into account the stated above, administrative violation of law; b) the it is interesting to analyze the experience transactions aimed at tax avoidance; of the Russian legislation related to this c) the transactions that violate significant- issue. It is necessary to note that the ly the currency legislation; d) the transac- Civil Code of the Russian Federation tions the performance of which creates life includes «antisocial transactions» al- and health hazard of citizens as well as though this notion was modified in a cause harm to environment; e) the transac- certain way. tions aimed at derogation of national secu- Thus, pursuant to Article 169 of the rity and safety; f) the transactions deal with Civil Code of the Russian Federation, drug industry, pornography spreading, the transaction is considered as null and radioactive materials etc.2 void if it was performed with the aim As it is possible to see, the ground to that intentionally violates the interests of recognize the antisocial transaction as public order or morality. null and void, the Russian law maker The consequences of such transaction defines as violation of public order and performance are application of one-sided morality by the actions of the partici- restitution or mutual civil confiscation. pants of the transaction.

2 Комментарий к Гражданскому кодексу 1 Цивільне право України. Загальна ча- Российской Федерации. Часть первая / под стина. К.: Юрінком Інтер, 2010. С. 541 (автор ред. А. П. Сергеева. М.: Проспект, 2010. відповідної глави О. В. Дзера). С. 450–451.

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There is a great number of transac- freedoms of the person and the citizen, tions that directly or indirectly relate to destruction, damaging of the property of the public field if to take into account the natural person, state, the Autono- this classification. mous Republic of Crimea, territorial It should be reminded that the previ- communities, its acquisition. ous civil codes of the union republics in The study of this definition gives this group of invalid transactions defined grounds to make a few conclusions and as follows: the ones that really violated thoughts to appear. It should be men- the law (the law was considered in its tioned, that the category «public order» broad sense: acts of the current legisla- is not typical for civil law. Traditionally, tion), the ones that were performed with it is applied in international private law the aim that intentionally violated the and includes a specific content. It defines interests of the society and the state, in by its main function, namely, to restrict other words, the ones that included sub- foreign law application. jective element (the aim and the intent). Using the notion public order Article In our opinion, defining the grounds 228 of the Civil Code of Ukraine, the to violate the public order and morality law maker determined its extent within (preserving the subject element – the aim the invalid transaction institute. The no- and the intent), Article 169 of the Civil tion of public order was reduced on its Code of the Russian Federation signifi- maximum by specifying the following cantly broads the possibility of legal dis- characteristics, namely: cretion to qualify the transaction accord- a) violations of constitutional rights ing to hereof. and freedoms of a person and a citizen; Turning back to the Ukrainian legis- b) destruction, damaging of the lation, it should be noted that Article 228 property of the natural person and state of the Civil Code of Ukraine in its previ- formations (the state, the Autonomous ous wording (the Civil Code of Ukraine Republic of Crimea, territorial commu- of 2003) in general was aimed at replac- nities). ing Articles 48 and 49 of the Civil Code The list of these characteristics, be- of the Ukrainian SSR. At the same time ing defined as complete, lead to the situ- it significantly innovated the general ap- ation in which a lot of transactions were proaches to regulate illegal transactions. left behind Article 228 of the Civil Code Pursuant to Article 228 of the Civil of Ukraine although previously they Code of Ukraine the invalid transaction were covered by Articles 48 and 49 of was considered as one that violated the the Civil Code of Ukrainian SSR. public order, the essence of which was If to compare the content of Article described in part 1 of Article 228 of the 169 of the Civil Code of the Russian Civil Code of Ukraine, namely, the Federation and Article 228 of the Civil transaction was considered as such that Code of Ukraine it is very easy to un- violated the public order, if it was aimed cover that the circle of the invalid trans- at violation of constitutional rights and actions the characteristics of which are

140 Yearbook of ukrainian law Invalid transactions and their legal consequences Kuznetsova N. according to the legislation of Ukraine regulated by Article 228 of the Civil the transaction – everything that was Code of Ukraine is considerably nar- gained by them according to the transac- rower than the one provided by Article tion is charged in favor of the state; if the 169 of the Civil Code of the Russian transaction was performed by one party, Federation. according to the decision of the court Obviously, even employing more ex- another party is obliged to recover ev- tensive interpretation, it is practically erything that was received and that be- impossible to apply the category of pub- longed to it from the first party to re- lic order (in the context of Article 228 of cover the received. If only one of the the Civil Code of Ukraine) in tax prac- parties has an intent everything obtained tice to implement fiscal aims by the tax by it according to the transaction shall authorities. be returned to another party, and every- At the same time applying the Arti- thing that was received by another party cles 207 and 208 of the Economic Code or that was owned by it, has to be recov- of Ukraine that we mentioned above, the ered from it according to the decision of tax authorities used the «repressive the court in the favor of the state». mechanism» that these articles included Therefore, the new version of Article successfully. 228 of the Civil Code of Ukraine re- As it was said, the civil law scholars moved the contradictions with Articles criticized the contradictions between the 207 and 208 of the Economic Code of Economic Code of Ukraine and the Civ- Ukraine in the favor of the position of il Code of Ukraine in this part many the Economic Code of Ukraine. times. The scientists who studied the Such amendment of Article 228 of economic law found specific grounds. the Civil Code of Ukraine gives grounds The degree of discussion has never been to consider the new version of the article decreased. as critics to Article 49 of the Civil Code In such situation the amendment as of the Ukrainian SSR. of December, 2010 to Article 228 of the A. V. Dzera specified many times Civil Code of Ukraine wasin a certain that Article 49 of the Civil Code of the sense unexpected. It said: «If the transac- Ukrainian SSR is impossible to consider tion violates the requirements related to as successful due to the lack of certain the correspondence of this transaction to criteria to treat transaction as null and the interests of the state and the society, void and to apply legal consequences its moral values, such a transaction is provided by it. The court practice also possible to be recognized as null and did not give a certain interpretation that void. If the recognized transaction is per- is why the courts even in soviet times formed with the aim that intentionally recognized transaction as null and void contradicts the interests of the state and very rarely according to the regulations the society and two parties have such of Article 49 of the Civil Code of Ukrai- intent – in case if two parties performed nian SSR. They applied sanctions pro-

№ 9/2017 141 Civil-legal sciences vided by it only when the actions of the possible to be recognized by the courts participant of the transaction included asinvalid as it follows from the wording the features of crime1. of the stated regulation. At the same time, as it was stipulat- In such context it is possible to make ed, the tax authorities using actively the a conclusion that except those transac- Articles 207 and 208 of the Economic tions the invalidity of which is stipulated Court of Ukraine resolves fiscal disputes by the law and fact of their performance ignoring largely all those circumstances and the court only defines the conse- that on scientists’ point of view generate quences of such invalidity, a new type of challenges to apply Article 49 of the invalid transactions appeared, namely Civil Code of the Ukrainian SSR or Ar- when such transactions are possible to ticles 208, 209 of the Economic Code of be recognized as null and void by the Ukraine. court in case if they contradict the inter- Turning back to amendments of Ar- ests of the state and society. It should be ticle 228 of the Civil Code of Ukraine it noted that these transactions are impos- is impossible to not mention that making sible to be referred to the category of amendments by the third part, its content challenged ones because the resolving of startedto suffer certain contradiction. issue related to their invalidity does not That happened due to the mechanical depend on the declaration of intent of blending of two regulations: the previous certain group of interested persons. version of Article 228 of the Civil Code Thus, amendments to Article 228 of of Ukraine that consisted of two parts, the Civil Code of Ukraine introduce cer- the analysis of which was described ear- tain corrections into invalid transaction lier in this article and «reanimated» Ar- classification. It is possible to define three ticle 49 of the Civil Code of Ukrainian groups of transactions that are impossible SSR with the part three. to be considered as fully legal facts: The contradiction appeared due to 1) void transactions, the invalidity the fact that the transactions that violate of which is determined by the law; public order (part 1 of Article 228 of the 2) invalid transactions, the invalid- Civil Code of Ukraine) according to the ity of which isdetermined by the court part 2 of this article are void, in other in cases stipulated by the law; words they are invalid and in such case 3) challenged transactions, the in- the law maker calls to recognize them validity of which is not determined di- invalid separately through the court pro- rectly by the law but one of the parties ceedings procedure. or another interested party challenges its Speaking about transactions that vio- validity on the grounds stipulated by the late the interests of the state and the so- law. ciety stipulated by part 3 of Article 228 At the same time, in our opinion, any of the Civil Code of Ukraine, they are thoughtful theoretical ground to detach a separate group of transactions that con- 1 Цивільне право України. Загальна ча- стина. С. 541. tradict the interests of the state and the

142 Yearbook of ukrainian law Invalid transactions and their legal consequences Kuznetsova N. according to the legislation of Ukraine society is more likely impossible. If the Code of Ukraine caused serious objec- law maker considers such list of transactions not only for its concept but from tions to be reasonably added into the the position of legal drafting. system of invalid transactions,it surely can be «joined» to the void transactions. But such conclusion should correspond the wording of part 3 of Article Published: Спогади про Людину, Вченого 228 of the Civil Code of Ukraine. Вчителя (до 60‑річчя від Дня народження професора Ірини Миколаївни Кучеренко) / за The presented facts prove that заг. ред. Р. О. Стефанчука. – К.: АртЕк, amendments to Article 228 of the Civil 2016. – С. 135–151.

№ 9/2017 143 R. Maydanyk, Doctor of Laws, Professor, Member of the National Academy of Law Sciencesof Ukraine, Head of the Civil Law Department of Taras Shevchenko National University of Kyiv

UDC 347.22(477)

Relations of property foundations of engaging in commercial activity in Ukrainian law

1. Basic elements of commercial ordinary citizens for the legal thinking legal order of Ukraine of a civil society which guarantees equal Formation of traditions of economic opportunities and respect for human dig- analysis of law in the area of commercial nity in relations of engaging in commer- relations representing methodology of cial activity are becoming more topical. economic theories of state legal regula- Due to his egoistic nature, both man tion of a capitalist economy in various and collective formations created by him market conditions – both during reces- in many respects on an intuitive basis sion and growth is observed in present study and measure the state and society jurisprudence of Ukraine. in general on «mine or another’s» prin- In this regard, questions of systemic ciple as an intrinsic and determining mo- understanding and criteria of efficiency tive for most ideas and actions of society. of legal regulation of relations of engag- It is egoistic nature of ownership that pre- ing in commercial activity, ensuring determines the origin and content of basic feedback between rule-making and law legal and other social constructions in the enforcement, reliability of subjective state and society that form commercial rights, easiness of fixation and transfer legal order. Any substantial deviation of rights to property objects, role of the from this rule sooner or later causes in- state, law, and civil society in the rela- stability of relations of engaging in com- tions of engaging in relations of engag- mercial activity and necessity of restoring ing in commercialactivity, market prin- the balance in one of three directions – ciples of the system of property rights, mainly in public interest, in private inter- preparation of political scientists and est or through their balanced joining.

144 Yearbook of Ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law

Temporary or even relatively long- sures legal authority over property and term stability, which can be reached by non-property values as an integral part the first two ways, leads to social explo- of a civil society. sions, application of «pointed sanc- Economic relations that involve re- tions» that reduce but not eliminate lations of ownership, commercial turn- substantial disproportions of the private over, etc. constitute an objective basis or public interest, respectively, that of a civil society. The performance of brings in disrespect for human dignity, this function is not facilitated by the violation of other basic rights of prop- dualism in understanding relations aris- ertyless members of society and their ing in economics that has emerged in resulting sustainable development in- the modern doctrine of law and eco- ability. nomics. However, the stability of commercial In jurisprudence property relations legal order on the principles of self-re- are mostly regarded as volitional rela- birth, sustainable development is possible tions, legal relations that emerge in the on the principles of equal access to prop- economy but not as economic rela- erty, respect for human dignity, legal tions. safety, proportionality between the pri- In economic theory, on the contrary, vate law and its limitations, presumption economic or production relations are of legal equality of all participants of viewed as objective material relations property relations of commercial activity. arising independently of the will and The basic elements of commercial consciousness of people and, therefore, legal order of any state and society that they are, sort of, not directly influenced guarantee equal opportunities in society by the law. and respect for human dignity are the Indeed, relations of ownership and of right of ownership, property relations, economic turnover are objectively mate- and commercial turnover, functioning rial in their nature, since people are forced among themselves in a balanced man- to enter into these relations in order for ner. them and for the society to exist. Only under the conditions of invio- Property relations are determined not lability of property relations, balance by the will of their participants, but by (proportionality) of limitations of owner- objective regularities, conditions of vital ship right by public interest, stable exis- activity of society that actually influence tence of property and non-property rela- the formation of rules of law and legal tions, on the principles of the rule of law system at large. and justice is possible. However, in modern society, prop- 2. Ownership right as a basic ele- erty relations other than legal, material- ment of civil society and commercial ized through volitional subjective activ- legal order ity of people, cannot exist. The right of ownership, which is one Accordingly, any mechanisms of of the most important human rights, en- regulation of economic relations must be

№ 9/2017 145 Civil-legal sciences protected legally or otherwise (with the The methodology of this approach is help of morale, religion, etc.), which, in predetermined by the neoclassic political general, excludes the possibility of «… economy of self-regulated and generat- creation of only economic or only legal ing progress and wellbeing markets that mechanisms of regulation1 which, in became the godmother of programs of fact, are interconnected as two sides of structural reforms for which the state a single social phenomenon. was something dubious and the law was 3. Concepts relating the role of the important only as a neutral instrument3. state on in regulating property relations The ideology of Washington Consen- of engaging in commercial activity sus is notable for simplification of tasks Unity of the economic and legal as- of economic politics and for its reduction pect of property relations determines to four postulates: 1) liberalization (of various approaches to the question of the trade, financial markets, international role and influence of the state on an en- payment and financial operations); 2) de- trepreneur, correlation of the state and regulation of activity of commercial en- law in regulating property relations of terprises while protecting private prop- engaging in commercial activity. erty; 3) privatization of enterprises and Economic science distinguishes 4) stabilization through tough formal mainly two basic approaches to the role planning of money supply (monetary of the state in regulating property rela- policy of «neutrality» of money) and tions of engaging in commercial activi- fiscal «discipline» achieved by concen- ty – liberal-monetarist and national-state. trating on few priority functions of the Liberal-monetarist approach pro- state and made possible owing to reduc- vides for the transition to the modern tion of state revenues and expenditures4. western economic system and for the formation of a modern market economy [See: YasinE.G. Russianeconomy. The origins and (so called the Washington Consensus the panorama of market reforms. – Course of 2 lectures . – M., 2003; Gaidar E. T. Fall of the doctrine) . Empire. LessonsformodernRussia. – M., 2007.] 3 Книппер, Рольф Основные проблем пра- 1 Пушкин А. А. Правове поле і економіка вового сотрудничества // Актуальные про- громадянського суспільства в Україні // Ко- блемы частного права. Liberamicorum в честь дифікація приватного (цивільного) права академика М. К. Сулейменова / Сост. Е. Б. України / За ред. проф. А. Довгерта. – К.: Жусупов, А. Е. Дуйсенова. – Алматы: Юри- Український центр правничих студій, 2000. – дическая фирма «Зангер», НИИ частного (336 с.). – С. 54–55.) [Pushkin A. A. Legal права, 2011. – (544 с.). – (С. 3–29). – С. 6. framework and the economy of civil society in [Knipper, Rolf Basic problems of legal Ukraine // Codification of private (civil) law cooperation // Topical problems of private law. Ukraine / Ed. prof. A. Dovhert. – K.: Ukrainian Liber amicorum in honor of academician Centre for Legal Studies, 2000. – (336 pp.). – M. K. Suleimenov / Comp. E. B. Zhusupov, P.54 –55.] A. E. Duysenova. – Almaty: Law firm «Zanger» 2 См.:Ясин Е. Г. Российская экономика. Scientific Research Institute of Private Law, Истоки и панорама рыночных реформ. – Курс 2011. – (544 pp.). – (P. 3–29). – P. 6.] лекций. – М., 2003; Гайдар Е. Т. Гибель импе- 4 О Вашингтонском консенсусе, прежде рии. Уроки для современной России. – М, 2007. всего: J. Williamson.What Washington means

146 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law

In general, this policy is aimed at Rapid implementation of the market limiting the role of the state as an active economy through macroeconomic stabi- subject of economic influence and at lization, liberalization and privatization limiting its functions through control of of enterprises was predominantly so- dynamics of indices of money supply1. cially, economically and politically ex- The implementation of structural re- tremely ruinous for the former Soviet forms based on this doctrine and fi- republics. nanced mainly by The IMF, the World The Bretton Woods Institutions Bank and the US Treasury basically abandoned «minimalist approach to the brought in a «shock therapy» which was State» and assured that «stateless devel- expected to push the dissolved Soviet opment» failed and that without an ef- Union on the path of market economy ficient and effective state there is no and growth in a short time by means of sustainable development and that, there- massive privatization and liquidation of fore, it is necessary to improve the abil- state structures2. ity of states to maintain reliable and pre- The programs of reformation of for- dictable public institutions. Thus, statute, mer Soviet republics in general failed. law and justice inevitably attracted general interest3. by Policy Reform. Latin Adjustment, Wa During the implementation of neo- shigton D. C., 1990; V. Hooper. The Wasington classical economics in the post-Soviet Consensus and Emerging Economies. Work space the fundamental belief, which was ingPaper, 2002. – Sidney; Книппер, Рольф considered axiomatic, that individuals Указ. соч. – C. 3–29. [About the Washington Consensus, foremost: J. Williamson.What are more than the state focused on the Washington means by Policy Reform. Latin organization of production chains, be- Adjustment, Washigton D. C., 1990; V. Hooper. cause such chains promise profitability, The Wasington Consensus and Emerging was refuted. Economies. Working Paper, 2002. – Sidney; Lack of restrictions and incentives to Knipper Rolf Mentioned work. – P. 3–29.] 1 Дойников В. Кризис гражданско-право- organise production of consumer goods вой доктрины и современный этап кодифи- after dissolution of the Soviet Union re- кации российского законодательства / sulted in that the predominant aim of В. Дойников / Юридичний вісник України. – private individuals was not making val- 2009. – 16–22 травня. – № 20 (724). – С. 5. [Doynikov V. The crisis of civil doctrine and the ue, but maximizing profits. For this pur- current stage of codification of Russian law / pose they organize reliable production V. Doynikov / Law Journal of Ukraine. 2009. – chains only if other, more lucrative, 16–22 May. – № 20 (724). – P. 5.] easier, and associated with a lower risk 2 See: J. Sachs, D. Lipton. Prospects for Rus- sian Economic Reforms. – B.: Brooking Papers on Economic Activity. – Washington D. C., 3 See:The World Bank, The State in a Chang- 1992. – P. 213; Книпер, РольфУказ. соч. – С. 7. ing World, Washington D. C., 1997; Книпер, [See: J. Sachs, D. Lipton. Prospects for Russian РольфУказ. соч. – С. 9. [See: The World Bank, Economic Reforms. – B.: Brooking Papers on The State in a Changing World, Washing- Economic Activity. – Washington D. C., 1992. – ton D. C., 1997; Knipper Rolf Mentioned work. – P. 213; Knipper Rolf Mentioned work. – P. 7.] P. 9.]

№ 9/2017 147 Civil-legal sciences ways are closed to them by institutions ceed from the fact that the legislation of and law. In practice, as an alternative 90th, built on liberal philosophy of econ- way other methods of maximizing prof- omy, did not lead to and could not lead its, for example, asset-striping of pro- to economic public order. In this case duction units were rationally considered economic order is understood as a pre- and used. In this situation it is easier for dominant in society way of material pro- a private individual to get profit by duction based on provisions of constitu- «skimming the cream» rather than by tion, rules of law, moral principles, busi- making value. Since institutions and law ness rules and customs approved by the were not created, the former Soviet re- supreme legislative authorities in strate- publics did not see an expected rise of gic economic decisions ensuring harmo- entrepreneurial activity in the first 10 nization of private and public interests, years of reforms, but rather went through creating partnership and good faith rela- «amassivestrippingofassets»1. tions in commercial activity2. In this regard, common in post-Sovi- Some authors consider that threats to et economic science thesis that «when it national security of a state cannot be comes to the transition to the market, removed based on liberal-civil views in from the scientific point of view this legal science that hinder the develop- means the replacement of a planned ment of productive forces of society3. management of economy with its spon- Supporters of this approach consider taneous regulation…. that ensuring national strategy of eco- This emphasizes the distinction be- nomic security of a state corresponds to tween spontaneous economies in the a modern conception of commercial (en- West and planned ones in the USSR». trepreneurial) law (V. V. Laptev, In fact, the point of view consisting V. K. Mamutov) which constitutes a ba- in replacement of the planned manage- sis for …Commercial Code…4. ment of the economy with a balanced 2 Хозяйственное право Украины: Учебник self-regulation and imperative state in- / В. К. Мамутов, Г. Л. Знаменский, В. В. Хаху- fluence on the economy proved to be лин и др. / Под ред. В. К. Мамутова. – К.: more scientific. Юринком Интер, 2002. – 618 с. [Com Nevertheless, it should not be con- mercialLawofUkraine: Textbook / V. K. Mamutov, G. L. Znamenskii, V. V. Khakhulin, etal. / Ed. V. K. sidered as a basis for the return to a Mamutov. –K.: YurinkomInter, 2002. – 618 p. planned economy within the meaning of 3 Бизнес. Менеджмент. Право. Тема номера the conception of commercial law «Систематизация предпринимательского за- grounded in the science of commercial конодательства». – 2006. – № № 3, 4. [Business. Management. Law. IssueTopic «Systematisation law in the post-Soviet space. ofbusinesslaw.» – 2006. – № № 3, 4.] Supporters of the conservative-state 4 Правовое регулирование предпринима- conception in the regulation of relations тельской деятельности в рыночной экономи- of engaging in commercial activity pro- ке. Сб. статей под ред. Губина Е. П. – М., 2008. [Legalregulationofentrepreneurialactivit 1 Haff, Stiglitz. The Transition from Com- yinmarketeconomy. Collection of articles ed. munism. The World Bank, May 2004. – P. 2. Gubin E. P. – М., 2008.]

148 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law

Aforesaid approaches regarding booms. This is how Neo-Keynesian the- methodology of commercial legal order ory of economic dynamics and growth and economic analysis of law are gener- emerges1. ally based on a somewhat simplified un- Manifestation of this trend in Neo- derstanding of modern economy in var- Keynesianіsm is developed by its repre- ious market conditions – both in the sentative «theory of markets with asym- conditions of growth and recession de- metric information» (J. Stinlitz, G. Ak- termined by peculiarities of markets with erlof, M. Spence) for which its authors asymmetric information. received Nobel Prize in Economics in One of the most recognized in the 2001. modern world theories of the capitalist The basis of this theory is a mathe- economy in the conditions of dynamics matical model of a market in which a and growth is a Neo-Keynesian macro- situation can be seen where one repre- economic theory. sentative has incomplete information Neo-Keynesianіsm is a theory of a about the agent of interaction (represen- state-legal regulation of the capitalist tative of the other party) which can be- economy suggesting rather imperative come apparent in hidden features of such external influence on economic process- relations that can, for example, result in es in a given state. unfavourable selection. The fundamental postulate of this An example of such selection is a theory is a statement that in modern con- rather conventional situation: concealing ditions capitalism has lost spontaneous by an owner of information about bad restoration of economic balance and that, quality of his car when purchasing insur- therefore, state regulation of the econo- ance policy or an attempt by a new em- my is necessary. ployee to hide his incompetence from Special feature of Neo-Keynesianіsm the employer. consists in that it, in fact, reflects a more All this, in its turn, on a more gen- mature degree of development of state- eral level, allows us to analyse how it can affect the level of prices and qual- monopolist capital, supports systematic 2 and indirect, but not sporadic and indi- ity . rect as in Keynes’ theory, effect of a 1 Стрельцов Є. Грецька криза: її уроки bourgeois state on the capitalist econo- для України // Юридичний вісник України. – my. 18–24 липня 2015. – № 28 (1045). – (С. 6–7). – Neo-Keynesian theory reasons forms С. 6. [Streltsov Y. Greek crisis: its lessons for of economic regulation of the economy Ukraine // Law Journal of Ukraine – 18 – 24 July 2015. – № 28 (1045). – (P. 6–7). – P. 6.] in different market conditions – both in 2 Стрельцов Є. Грецька криза: її уроки the conditions of recession and growth, – для України // Юридичний вісник України. – explains, on the one hand, steady pace 18–24 липня 2015. – № 28 (1045). – (С. 6–7). – С. 6. [Streltsov Y. Greek crisis: its lessons for of economic growth and, on the other Ukraine // Law Journal of Ukraine – 18 – 24 July hand – economic crises and inflationary 2015. – № 28 (1045). – (P. 6–7). – P. 6.]

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4. Property relations in the area of property basis in the capacity of the sub- engaging in commercial activity and ject of property relations on the princi- legal property titles ples established for legal entities. TheaboveconceptualideasofNeo- This rule is reflected in the intro- Keynesianisminevitably «balance» on duced to the Commercial Code of the border between economics and law, Ukraine Chapter «Legal forms of par- as state regulation of the economy is ticipation of the State, the Autonomous impossible without law, which brings it Republic of Crimea, local communities closer to the jurisprudence and to law- in civil relations» (Art. 167) which yers’ ideas of the economy of civil soci- states: «1. The state acts in civil relations ety, commercial legal order and legal on an equal footing with other partici- forms of property appropriation. pants of these relations. 2. The State may Economic or property relations that establish legal entities of public law must be built on the principles of equal- (state-owned enterprises, educational ity of the participants, regardless of who institutions, etc.) in the cases and in the they are – a natural or legal person, a manner prescribed by the Constitution state or local community, constitute the of Ukraine and law.3. The State may essence of economic foundations of establish legal entities of private law civil society. (companies and so on. etc.), take part in In this sense, it is legally unaccept- their activities on a common basis, unable to divide the economy in civil soci- less otherwise provided by law». ety into individual sectors – private, At the same time, Art. 170 of the public, cooperative, collective, and so Commercial Code of Ukraine stipulates on – and to establish a special legal re- that the state acquires and exercises civ- gime for each of them. il rights and obligations through public An inviolable rule of civil society is authorities within their competence es- the principle of legal equality of subjects tablished by the law. of property relations that provides for Thus, the law ranks the state and le- such a system of property relations and gal entities created by the state with such volitional form of their manifesta- natural and legal persons endowing them tion and consolidation in the law that is with features of the subject of property based on equal legal basis for the par- relations governed by civil law. ticipants of these relations – both natural Property and personal non-property (citizens) and legal persons as well as relations arising between mentioned sub- other participants. jects are free from the forms of admin- The application of the principle of istrative-command influence on them legal equality of the regime of property that existed in the past and still exist to relations to all participants of these rela- some extent nowadays due to the insti- tions also concerns public formations tutes of commercial management and of having legal personality – the state and operational administration provided by local communities that have certain the Commercial Code of Ukraine.

150 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law

In this regard, rules provided by the These institutes reflect the old idea Commercial Code of Ukraine in Chapter of commercial law which consists in the III «Property foundations of engaging in uniting of horizontal and vertical regula- commercial activity» regarding vesting tion of economy where administrative unitary state and communal enterprises influence on the sphere of economy pre- with real title of «commercial law» and vails. «operational administration» (articles This is a disguised form of adminis- 136, 137 of the Commercial Code of trative-command system based on the Ukraine) are incompatible with the prin- determination of the state influence on ciple of legal equality since this makes an entrepreneur from a position of a to- it impossible for legal persons of public talitarian state rather than from legal po- law to have title of ownership held by sition. any natural or legal person of private Such inequality of legal regimes is a law. feature of societies of non-civil type (to- Said institutes (right of commercial talitarian, transition economies, etc.) management and right of operational whose law is made by the will of states administration) deprive legal persons of rather than in the process of carrying out public law of the right to be the owner property, other social relations. of the property assigned to them or ac- The formation and functioning of quired by them. Thereby such legal per- civil society implies equal for all its par- sons turn into a kind of legal fiction sub- ticipants and independent of each other stantially limited in performing the func- state. State exercising its public-legal tions of a full-fledged subject of functions in no case means precedence property relations and not able to be li- (priority) of the state over law; law is not able under its obligations due to lack of a direct result of activity of the state; it its own property, which is owned under is embedded in civil society. the law by another person (subject) – the True origins of law lie in the system state. of actually existing social relations with The application of real legal insti- ownership relations in the core of them. tutes with features of administrative- The role of a lawmaker, other persons command influence in the Ukrainian law engaged in the area of law is not to in- reflects common in the national doctrine vent rules of law, but to derive them and state law distorted idea of correla- from actually existing relations provid- tion of the state, law and society exclud- ing for their possible development. ing the formation and functioning of In this regard, A. Pushkin correctly civil society in the conditions of legal noted: «The fact that the establishment and actual inequality between the state, of rules of law is mediated by the will of legal persons created thereby on the one the legislator or of someone else does hand and other subjects of property rela- not mean that this will itself is law. It is tions (subjects of private law) on the only the means of objectification of law other. which in real life grows out of material

№ 9/2017 151 Civil-legal sciences and other needs of people in the process laws based on public rather than private of their communication»1. principles (registration, licensing, certi- Thus, the law that satisfies the de- fication, regulations, bans, guidelines)2. mands of civil society may be derived Private law based on recognition not only from the developed system of mar- only of equality of all subjects, but also ket economic, in other words property of diversity and equality of all forms of relations. And over time, rules of this ownership must constitute the legal basis law must be officially fixed in laws, oth- of a civil society. Accordingly, there er regulatory acts. must be diverse forms of entrepreneurial At the same time, the state is meant activity; principles of freedom and safe- only to ensure law, that is, the normal ty of ownership, personal freedom, free- functioning of civil society relations dom of contract must be secured. through the law-making and law-en- Private law is designed to regulate forcement. social relations between members of so- In turn, laws must be based on prin- ciety. A crucial role is assigned to prop- ciples of law, and not only on the prin- erty and personal non-property relations ciple of legality, and they must reflect between members of society irrespective real life that is developing under objec- of the area of life in which they emerge. tive economic laws. Relations between members of society Property relations in civil society are serve as a legal foundation; they define interconnected with economic and legal the limits of possible and necessary be- relations, dualism of law and principles haviour of state bodies towards members of private law. of society. Market economy must constitute the Literature draws attention to the fact economic basis of civil society. In a so- that civil law governs mainly relations ciety having market economy the law is in the sphere of exchange, whereas en- divided into private and public. trepreneurial (commercial) law – in the Public law in property relations is sphere of production, distribution and designed to ensure state establishment of exchange. Mainly macroeconomic rela- rules of the game which must be ob- tions (investment, pricing, monopolistic served by members of this relations. Public function, in fact, consists in limit- 2 Яковлев В. Ф. Гражданский кодекс. За- ing subjective rights of private persons, метки из истории подготовки проекта. Заме- in particular by applying enforcement чания о содержании кодекса, его значение и measures necessary for legal protection судьбе // в книге Гражданский кодекс Рос- of members of property relations. сии. Проблемы. Теория. Практика: Сборник / Отв. ред. А. Л. Маковский. – С. 58–66. In this regard literature rightly pays [Yakovlev V. F. Civil Code. Notes from the attention to the fact that most of com- history of project preparation. Remarks on the mercial relations are regulated by special content of the Code, its meaning and fate // in the book The Civil Code of Russia. Problems. 1 Пушкин А. А. Указ. соч. – С. 55. [Push Theory. Practice: Digest / Ed. A. L. Makovsky. – kin A. A. Mentioned work. – P.55.] P. 58 – 66.]

152 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law activities, etc.) constitute the subject of 5. Concept and system of property commercial law. relations in civil law It should be noted that all the rules of Аll system of property relations, in- legislative acts, including in the area of cluding in the area of engaging in com- commercial activity, may also be consid- mercial activity, predetermines оwner ered as two major subsystems: rules of ship right, which constitutes the root of private law and rules of public law. The subjective rights. former govern the relations in which hu- Property relations constitute social man rights are exercised irrespective of relations expressed in a legal form that whether a person is a member of a state, have as their object property values. the later govern human rights of a person In turn, property is the whole avail- as a citizen, i.e. they are connected with able bundle of rights and duties which person being a member of a state1. belong to a particular person. Formation of civil society implies According to part 1 of Art.190 of the formation of ownership relations and Commercial Code of Ukraine property commercial turnover through application means individual thing, aggregate of of title to property, which is not a dis- things, as well as property rights and guised form of an administrative-com- obligations. mand system, based on the determina- Legal science of civil law countries tion of state influence on an entrepreneur regards property as a special legal form not from the position of a totalitarian of material values belonging to an indi- state, but from the legal position. vidual person in the form of a bundle of In addition, property relations in property rights and obligations belong- civil society constitute a basic element ing to particular natural and legal per- of society of equal opportunities, respect sons (that can be measured in terms of for human dignity and legal security. money), viewed as a sum of active and Civil society must have at its dis- passive valuables that are closely inter- posal the union of public persons – po- linked2. litical scientists thinking not in old terms of the state as an all-embracing and om- 2 See:Цивільне право України. Загальна nipotent force, but in terms of the state частина : підручник / підручник / за ред. О. В. Дзери, Н. С. Кузнєцової, Р. А. Майдани- designed not to stand above society but ка. – 3-тє вид., перероб. і доп. – К. : Юрінком to serve it, the state which has as its Інтер, 2010. – (976 с.). – С. 228–229; Халабу- foundation public agreement in the form денко, О. А. Имущественные права. Книга 1. of constitution reflecting and fixing pos- Вещное право / О. А. Халабуденко; Между- sible and necessary behaviour of all state нар. независимый ун-т Молдовы. – К.: Ме- ждунар. независимый ун-т Молдовы, 2011. – bodies dictated by the objective role and (306 с.). – С. 34;Суханов Е. А. Понятие иму- place of the state in the structure of so- щества // Российское гражданское право: ciety. Учебник: В 2 т. Т. I: Общая часть. Вещное право. Наследственное право. Интеллекту- 1 Пушкин А. А. Указ. соч. – С. 57. [Push альные права. Личные неимущественные kin A. A. Mentioned work. – P.57.] права / Отв. ред. Е. А. Суханов. – М.: Статут,

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Property is a polysemantic concept Conducted analysis provides a basis that can be viewed as (a) a collective for concluding that property relations concept (set of things, as well as prop- constitute a property component of civil erty rights and obligations belonging to legal relations which have as their object a person) or (b) available property (that particular things (real rights) and sepa- is an asset in the form of things and prop- rate property rights (obligatory, corpo- erty rights) or (c) only things belonging rate, exclusive intellectual property to a particular person (when recovering rights). property from unlawful possession). 6. Concept and peculiarities of le- Therefore, it is necessary to always clar- gal regulation of property relations in ify the meaning of this term through in- the area of engaging in commercial terpretation in each particular legal rule. activity It is characteristic that there is no The concept and system of property uniform approach to the issue of the le- relations in the area of engaging in com- gal regime of property in civil law coun- mercial activity are doctrinally substan- tries. In particular, civil law of Ukraine tiated in the science of commercial law regards property as a special object (Part and legislatively reflected in chapters III 1 of Art. 190 of the Commercial Code of «Property foundations of engaging in Ukraine). commercial activity» and IV «Commer- However, under Russian civil law cial obligations» of the Commercial property is not recognized as an indepen- Code of Ukraine (the CoC of Ukraine). dent object of civil rights but is regarded Conceptually the CoC of Ukraine as a set of different in terms of their legal proceeds from the division of property regime objects of civil rights (things and relations in the area of engaging in com- separate property rights – obligatory, mercial activity into two groups: corporate, exclusive)1. (a) property relations that constitute property foundation of engaging in commer- 2010. – (958 с.). – С. 301–303. [See: Civil law of cial activity; (b) commercial obligations. Ukraine. General part: textbook/ textbook/ ed. Provided by the CoC of Ukraine sys- O. V. Dzera, N. S. Kuznietsova, R. A. Maidanyk. – tem of property relations that represent 3rd ed., revised and supplemented. – K. Yurinkom property foundation of engaging in com- Inter, 2010. – (976 p.). – P. 228–229; Halabudenko, O. A. Property rights. Book 1. Real Law / mercial activity is made of real legal O. A. Halabudenko; International Independent relations (of ownership, of commercial University of Moldova. – K.: Internat. management and of operational admin- International Independent University of Moldova istration) of use of natural resources, of 2011. – (306 p.). – P. 34;Sukhanov E. A. The intellectual property in commercial ac- concept of property // Russian civil law: textbook: in 2 v. V. I:. Generalities. Real Law. tivity, corporate relations. Inheritance Law. Intellectual property rights. Moral rights / Ed. E. A. Sukhanov. – М.:Statut, Учебник. – М., 1996. – С. 124. [See: 2010. – (958 p.). – P. 301–303. ] Sukhanov E. A. Mentioned work. – P.303; 1 См.: Суханов Е. А. Указ. соч. – С. 303; Khvostov V. M. System of Roman law. Хвостов В. М. Система римского права. Textbook. – M., 1996. – P.124.]

154 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law

According to the CoC of Ukraine In the first case, dominance applies commercial obligations involve: proper- to every act of use or disposal unless it ty-commercial, organizational- commer- is limited by the law or rights of others cial, social-communal obligations of in a thing (property). In the second case, subjects of engaging in commercial ac- dominance may be complete or almost tivity (undertakings), public obligations complete with respect to use; whereas of undertakings, organizational- com- disposal is excluded or limited to a cer- mercial contracts. tain type of use (in particular servitudes) 7. Real rights as property founda- or to a certain type of disposal1 (security tion of engaging in commercial acti rights, right of operational administra- vity Subjective civil rights held by under- tion, right ofcommercial management). takings constitute the content of prop- The CoC of Ukraine governs the erty relations in the area of engaging in most important and widespread real right commercial activity. in the area of engaging in commercial The system of property legal rela- activity. tions in the area of engaging in commer- The right of ownership and other real cial activity is predetermined by a con- rights, in particular the right of commer- ventional in civil law and statutorily cial management and the right of opera- fixed classification of civil rights that tional administration constitute the basis provides for separation of, first of all, of a legal regime of property of under- real and relative rights. takings. Commercial activity may also Real rights imply fixing the right of be conducted on the basis of other real a person in a thing (ownership right and rights (right of possession, right of use, limited real rights). Relative property etc.) provided by the CoC of Ukraine rights provide their holder with the right (Art. 133 of the CoC). of claim against another person – oblig- CoC of Ukraine provides for the pos- atory (contractual and non-contractual), corporate, etc. property rights. sibility of fixing the property of under- Real right constitutes a legally pro- takings under another right in accor- tected possibility of direct influence over dance with the terms of a contract with a thing which is an object of a respective an owner of property (Part 2 of Art. 133 right. of the CoC of Ukraine). The holder of a real right gets exclu- Said rule of the CoC of Ukraine sive dominance over a thing. Dominance gives us certain grounds to consider over a thing means authority to exercise that an undertaking may own property influence over a thing or to exclude oth- under another real right provided by ers from exercising such influence. Dominance provided by this authority is 1 Основные институты гражданского пра- either complete (i.e. absolute right, for ва зарубежных стран / отв. ред. В. В. Залес- example right of ownership) or limited ский. – М. : Норма, 2009. – (1184 с.). – С. 157, with regards to disposal of a thing (rights 165. [Main institutes of civil law of foreign countries / Ed. V. Zalesskii. – M. : Norma, in another’s things). 2009. – (1184 p.). – P. 157, 165.]

№ 9/2017 155 Civil-legal sciences the terms of a contract with an owner Consequently, there are two grounds of property. on which an undertaking may acquire In this context, said article of the the right of commercial management CoC of Ukraine is contrary to the gener- and the right of operational administra- ally accepted rule that the list of real tion: rights is exhaustive and that such list (1) As a result of authorised state may be established by the law and not bodies/ bodies of local self-govern- by the contact. This implies the impos- ment conferring property on unitary sibility of fixing property of undertak- states/ communal enterprises (part 2 of ings under another real legal title based Art. 74, Part 4 of Art.76 of the CoC of on a contract with an owner of property, Ukraine), or except for those specified in Part 1 of (2) As a result of provision by an un- Art.133 of the CoC of Ukraine. dertaking which is not a legal person of The CoC of Ukraine regards the right public law. of ownership as a main real right in the In addition, it follows from Part 1 of area of engaging in commercial activity. Art.134 of the CoC of Ukraine that it is According to Part 1 of Art.134 of the possible for the undertakings that are not CoC of Ukraine an undertaking engag- legal persons of public law (i.e. for natu- ing in commercial activity on the basis ral persons-entrepreneurs, legal persons of the right of ownership, …has the right of private law) to provide property to to provide property to other undertakings other undertakings (apparently to any for the use of such property under the natural or legal person without limita- right of ownership, the right of commer- tion) under the right of commercial man- cial management, the right of operation- agement and the right of operational al administration… . administration. The analysis of said rule in a sys- It therefore means that, for example temic connection with Art.55 of the CoC a joint-stock company has the right to of Ukraine («Concept of an undertak- transfer (to sell, to give) property owned ing») makes it possible for us to con- under the right of ownership to a natural clude that it is possible for an undertak- person-entrepreneur or to another legal ing engaging in commercial activity on person of private law for use under the the basis of the right of ownership (i.e. right of commercial management or un- for undertakings that are neither unitary der the right of operational administra- states nor communal enterprises) to pro- tion. vide property to other subjects (includ- Such prospect seems at least strange ing unitary states, legal persons of pri- and, in fact, this rule is aimed at desta- vate law and natural persons-entrepre- bilizing civil turnover as a result of in- neurs) under the right of commercial troducing unknown and harmful to pri- management or the right of operational vate legal relations quasi-real legal titles administration. which were initially and exclusively

156 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law designed for legal persons of public law, ally complex model of the right of own- not for subjects of private law. ership» where there are two owners of Provided by the CoC of Ukraine the the same property: the state (municipal- right of commercial management (Art. ity) and the enterprise itself,2 or to rec- 136 of the CoC) and the right of opera- ognize state enterprises as owners of all tional administration (Art. 137 of the or of part of property they were entrust- CoC) are defined as real rights of an au- ed with,3 which, in fact, made possible thorised undertaking which possesses, the existence of bisected ownership uses and disposes of property conferred where the state acts as a «supreme man- on this undertaking by the owner with ager» deprived of actual powers of an limitations prescribed by the CoC and owner4. other laws. However, such offers, which were The main difference between these substantiated in the period of the Soviet two institutes consists in different pos- Union, were not accepted by legislator, sibilities of exercising powers (mainly since it would entail legal confirmation the possibility of disposal), grounds for of a structure of «dual» («split») owner- establishment, social purpose and area ship of the same property. Such approach of application. is inherent in Anglo-American law that It is observed in literature that men- regards ownership right as a set of pow- tioned rights in their content are maxi- ers minimally necessary for legal control mally close to the content of the right of over a thing. Therefore, different in their ownership. However, the state or local substance and scope titles may be estab- community does not act, as a rule, as an lished with regard to the same property. ordinary owner and does not directly A classic example of a split ownership exercise known «triad» – possession, is an Anglo-American institute of trust use, and disposal. They carry out gen- where both the trustee and beneficiary eral management of property. It is, how- are owners of property comprised in a ever, a legal person of public law (in trust fund but with different powers (the particular, unitary state enterprise), trustee exercises «triad» of powers in the which is not the real owner, that actually interests of another person, while the exercises powers of possession, use, and 1 disposal . 2 Мозолин В. П. Право собственности в In this regard, a group of authors of- Российской Федерации в период перехода к fered to apply to such property «structur- рыночной экономике. – М.: Изд-во ИГиП РАН, 1992. – С. 153. [Mozolin V. P. The right of ownership in the Russian Federation in the 1 Калмыков Ю. Х. Общенародная собст- period of transition to the market economy. –M.: венность и трудовой коллектив // Хозяйство Publishing House of ISL of RAS, 1992. – P. 153.] и право. – 1988. – № 12. – С. 56–60. 3 Мозолин В. П. Указ. соч. – С. 153. [Kalmykov Yu. Kh. Public property and work [Mozolin V. P. Mentiond work. – P. 153.] collective // Khoziaistvo i parvo. – 1988. – 4 Калмыков Ю. Х. Указ. соч. – С. 57–58. № 12. – P. 56–60.] [Kalmykov Yu. Kh. Mentioned work. – P.57–58.]

№ 9/2017 157 Civil-legal sciences beneficiary has the right to profit and importance since other laws of Ukraine control)1. do not provide for conferring property The conception of «split» ownership under the right of ownership on legal is inadmissible for legal orders of conti- persons of public law prescribed by nental (i.e. civil) law. Continental tradi- Art.81 of the CC of Ukraine. According tion of ownership right proceeds from to this Article a legal person of public the rule that: one thing may not be owned law is set up by an executive act of the by two owners; holders of real rights – President of Ukraine, of thestate author- non-owners of property are not recog- ity of the Autonomous Republic of nized as direct owners of property pro- Crimea or of the local self-government vided to them or conferred on them2. body. The order of setting up and the As a whole, this approach should be status of legal persons of public law are agreed with since the right of ownership established by the Constitution of in continental legal orders is based on a Ukraine and other laws. These legal per- time-tested conception of a single owner sons first of all involve ministries, com- and so far there are no sufficient grounds mittees, other central executive bodies, to change it. budgetary institutions which according However, the question as to the pos- to the effective law, as a rule, own prop- sibility of legal persons of public law erty conferred on them under the right of being declared as single owners of prop- operational administration. erty, as it is prescribed by provisions of As it has been previously stated, the Art. 329 of the CC of Ukraine, remains CoC of Ukraine provides for property topical. being conferred on state unitary enter- According to Part 1 of said article of prises under the right of commercial the CC of Ukraine, a legal person of pub- management or under the right of opera- lic law acquires ownership right in prop- tional administration (Articles 73–76 of erty transferred into its ownership and in the CoC of Ukraine), on communal com- property acquired into its ownership on mercial enterprises – under the right of grounds nor prohibited by law. commercial management, on communal At present provisions of Art. 329 of non-commercial enterprises – under the the CC of Ukraine are not applied and right of operational administration their content is mainly of a prospective (Art.78 of the CoC). Since mentioned rules of the CoC of Ukraine establishing legal forms of 1 Ласк Г. Гражданское право США (право property of state unitary enterprises are гражданского оборота). – М.: Иностранная литература, 1961. – С. 512–515. [Lask H. Civil special in comparison to the rule of Art. law of the USA (civil turnover law). – M.: 323 of the CC of Ukraine, legal persons Innostrannaia literature, 1961. – P. 512–515.] of public law may acquire property 2 Ахметьянова З. А. Вещное право: Учеб- which belongs to them under the right of ник. – М. : Статут, 2011. – (360 с.). – С. 24. [Ahmetianova Z. A. Real law: Textbook. – M. : commercial management or under the Statut, 2011. – (360 p.). – P. 24.] right of operational administration and

158 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law which simultaneously becomes state or settlor and the beneficiary are the sub- communal property subjects of which jects of obligatory rights; neither the set- are the state, the ARC, and the territorial tlor nor the beneficiary has ownership community respectively1. rights in property transferred into the In our opinion, a promising direction trust. of resolving the issue of recognizing le- Secondly, the trustee is under the gal persons of public law as owners of duty to act only in the interests of the property is recognizing them as trustees settlor or of the beneficiary. All property on the basis of Art.316 of the CC of in trust ownership (transferred and sub- Ukraine. sequently acquired) enters the trust, is According to Part 2 of said Article of recorded in a separate (independent) bal- the CC of Ukraine, the right of trust ance of the trustee separately from such ownership that arises out of law or prop- manager’s own property. erty management contract is a special Under the general rule, creditors of type of ownership right. the trustee may not foreclose on prop- Provisions of Chapter 70 «Adminis- erty comprised in a trust fund. More- tration of property» of the CC of Ukraine over, the trustee has the right to receive (Articles 1028–1045) apply to trust rela- remuneration for his administration tions. services in the order and on the terms Provided by the CC of Ukraine struc- specified by the property management ture of the right of trust has two impor- contract. tant advantages whichin combination In fact, such model of trust can be make it possible to regard this real legal viewed as an advantageous for the state title as an effective substitute for the in- and for territorial communities alterna- stitutes of the right of commercial man- tive to unitary state and communal en- agement and of operational administra- terprises (at least for commercial). There tion. is no need in altering Charters of state Firstly, «Ukrainian» right of trust enterprises to reflect the amount of in- does not have an effect of «split» owner- come to be contributed to the state bud- ship – the only owner is the trustee; the get, resolving the issues of removal of surpluses of unused property or finding 1 Науково-практичний коментар Цивіль- formal (plausible) pretexts for liquida- ного кодексу України: У 2 т. – 3-тє вид., пе- tion of a state enterprise with «valuable» рероб. і доп. / За ред. О. В. Дзери (кер. авт. assets that are under the threat of being кол.), Н. С. Кузнєцової, В. В. Луця. – К.: commercialized. Юрінком Інтер, 2008. – Т. I. – (832 с.). – С.549–550. [ Scientific and Practical Comment And most importantly, the use of of the Civil Code of Ukraine. In 2 v. – 3rd ed. trusts for the purposes of administration revised and supplemented / Ed. O. V. Dzera of state property will make it possible to (head of collective of authors), N. S. Kuznetso- entirely or partly stop applying unknown va, V. V. Luts. – K.: Yurinkom Inter, 2008. – V. I. – (832p.). – P. 549–550.] to modern civilized legal orders quasi-

№ 9/2017 159 Civil-legal sciences real rights of commercial management Thus, the principle of proportional- and of operational administration, and, ity allows the possibility of the imposi- as a matter of fact, such legal forms of tion by the state of a burden on a subjec- legal persons as unitary state and com- tive right of a person provided, however, munal enterprises. that such burden does not have as its 8. Principle of proportionality in effect an individual and excessive bur- property relations of engaging in com- den since such influence turns title of an mercial activity owner or another subjective right into a One of the determinative principles good which is disadvantageous to its of property relations is the principle of holder. proportionality between objectives and The principle of proportionality is limitations of rights. This principle de- implemented through fair application of termines the criterion of permissible in- civil legal structures of real legal and terference (influence) of the state with obligatory legal nature. the exercise of subjective rights by pri- In reallaw this principle is manifest- vate individuals. ed in the fair balance test applied by the In this context, note should be taken European Court of Human Rights as a of a rule formulated by the European criterion of assessing proportionality Court of Human Rights according to when considering ownership right dis- which observance of the principle of putes. This criterion is applied by the proportionality requires a fair balance court whenever the dispute is connected between general interests of society and with conflict of public and private inter- requirements of the protection of the in- ests, providing for the search of a fair dividual’s fundamental rights. If as a balance between public interests and result of application of measures «an protection of fundamental rights of indi- individual and excessive burden» is viduals2. placed, it is considered that the fair bal- In fact, this methodologic approach ance of interests has not been kept. was applied in the decision of the Con- Therefore, measures taken must be ef- stitutional Court of Ukraine in a case fective from the standpoint of resolving regarding conformity to the Constitution problems of society and, at the same of Ukraine (constitutionality) of the pro- time, proportional with regard to the visions of the Law of Ukraine «On trans- rights of private individuals1. fer of collection of visual arts of Joint-

1 Федорчук Д., Брєдова Г. Особливості Donetsk university. – 2005. – № 2 (14). – P. 41.] захисту прав інвесторів у практиці Євро- 2 Манукян В. И. Европейский суд по пра- пейського Суду з прав людини // Правничий вам человека: право, прецеденты, коммента- часопис донецького університету. – 2005. – рии: Научно-практическое пособие. – К.: № 2 (14). – С. 41.[Fedorchuk D., Истина. – 2006. – С. 254–256.[Manukian V. I. Briedova H. Peculiarities of protection of European Court of Human Rights: law, case law, investor rights in the practice of the European comments: Scientific and practical guide. – K.: Court of Human Rights // Legal journal of Istyna. – 2006. – P. 254–256]

160 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law stock company «Gradobank» into own- sideration. Such contract will be binding ership of the state» 1881-IV of 24 June even if the consideration provided by 2004 and of the Resolution of the Verk- one party is a peppercorn in comparison hovna Rada of Ukraine «On declaring to the consideration provided by the collection of visual arts national heritage other party2. of Ukraine» No.2434- III of 24 May In the doctrine of European countries 2001 (case concerning collection of vi- adequacy оf consideration is viewed as sual arts of JSCB «Gradobank»). a general requirement of mutual fairness The decision of the CC of Ukraine of (justicia commutativa) non-compliance 23 October 2008 held that the provisions with which results in invalidity of a con- of regulatory acts providing for the tract not due to «excessive damage being transfer of the collection into the owner- caused to the suffered party («laesio ship of the state and for its placement in enormis»)»3, but only provided that there the Museum of the city of Kyiv were is a substantial imbalance, obvious im- unconstitutional. The Court also consid- balance of considerations under the con- ered general interest when resolving the tract as a result of use of «lack of experi- case. The Court declared the collection ence, great distress, other cases of foist- to be the object of national cultural her- ing a contract in a situation where a itage for people to have access to it. This suffered party is deprived of possibility is a legal status of the collection that to make a considered decision»4.. does not deprive its owner of ownership Such imbalance usually arises as a right. The owner has the right to use, result of volitional defect experienced by dispose of the collection to the extent the suffered party to the contract which is permitted by law. It may not be exported principle in nature in the form of misrep- from Ukraine except for the case when resentation, duress, etc. Substantial im- its owner leaves1. balance of considerations may be caused Obligatory law implements the prin- by unlawful actions which in essence are ciple of fair balance through the rule of not connected with volitional defect (i. e. adequacy оf consideration which con- according to procedural fairness). cerns substantive fairness of a contract, 2 but has no connection with and, there- Цвайгерт К., Кетц Х. Введение в срав- нительное правоведение в сфере частного fore, does not contravene the require- права: В 2-х т. – Т. 2. – Пер. с нем. – М.: ments of procedural fairness. A contract Междунар. отношения, 2000. – С. 12.[Tsvay may be considered invalid only in the gert K., Ketts Kh. Introduction to comparative latter case and does not entail invalidity law in the field of private law: In 2 v. – V.2. – Trans. from German. – M.: Mezhdunar. only due to unfairness of the substance Otnosheniia, 2000. – P. 12. ] or non-equivalence (imbalance) of con- 3 Цвайгерт К., Кетц Х. Указ. соч. – С. 13. [Tsvaygert K., Ketts Kh. Mentioned work. – 1 Мистецтво знову без народу // Україна P.13.] молода. – 2008. – 24 жовтня. – С. 3. [Artagain 4 Цвайгерт К., Кетц Х. Указ. соч. – С. 13. withoutpeople // Ukrainamoloda. – 2008. – [Tsvaygert K., Ketts Kh. Mentioned work. – 24 October. – P. 3.] P. 13.]

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However, such actions «are regarded person to the peaceful enjoyment of his as unfair due to imbalance of consider- possessions, Art. 1 of Protocol No.1 to ations in conjunction with other facts the Convention, in fact, guarantees the relevant to the case»1 provided that they right of ownership. are qualified as violation of public order According to the practice of the or of good morals (in particular, it con- Court, Art.1 of Protocol No.1 to the Con- cerns the right of a consumer to renounce vention encompasses three rules. First, within a specified time limit without any general rule asserts the principle of re- specific reason a contract concluded in a spect for the right of ownership. It is situation where a consumer was deprived manifested in the first sentence of the of possibility to make a considered first paragraph of Art. 1. The second rule decision)2. concerns deprivation of property and In this context, imbalance of consid- makes such deprivation conditional on erations under gambling and betting con- certain circumstances. It is contained in tracts does not negate their validity. Such the second sentence of the same para- deals may be held invalid only if they graph. The third rule recognizes that the contravene a direct provision of law or states-signatories to the Convention have if they are held to be contrary to public the right to control the use of property in order and good morals. accordance with the interests of society 9. International standards of legal by passing such laws as they deem nec- regulation of property relations of en- essary for that purpose. It is contained in gaging in commercial activity in the the second paragraph. Before consider- practice of the European Court of Hu- ing whether the first rule has been com- man Rights plied with, the Court has to decide The practice of the European Court whether the first two rules have been of Human Rights (hereinafter – ECHR, applied. That means that the second and the Court) with regard to Art.1 of Proto- the third rules that regard certain cases col No.1 to the Convention which guar- of interference with the right to respect antees every person property right (right for property must be construed in the of ownership) is of great importance for light of the general first rule3. the understanding of international stan- The right to dispose of one’s prop- dards in the area of property relations of erty is a common and fundamental as- engaging in commercial activity. As a pect of the right of ownership. matter of fact the text of this rule does The concept of the right of ownership not directly state this right; however, the is of autonomous significance in the prac- practice of the ECHR has established tice of the ECHR that does not depend on that by recognizing the right of every 3 Дудаш Т. І. Практика Європейського 1 Цвайгерт К., Кетц Х. Указ. соч. – С. 13. суду з прав людини: навч-практ. посіб. / [Tsvaygert K., Ketts Kh. Mentioned work. – Т. І. Дудаш. – К.: Алерта, 2013. – (368 с.) – P. 13.] С. 308. [Dudash T. I. Practice of the European 2 Цвайгерт К., Кетц Х. Указ. соч. – С. 11– Court of Human Rights: scientific and practical 12. [Tsvaygert K., Ketts Kh. Mentioned work. – guide. / T. I. Dudash. – K.: Alerta, 2013. – P. 11–12.] (368 p.) – P.308.]

162 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law formal qualifications from internal law. mercial activity grants its holder the Under the general rule, it applies only to right, guaranteed by Art.1 of Proto- existing possessions. Accordingly, Art.1 col No.1 to the Convention, depends on of Protocol No.1 to the Convention does whether a licence can be viewed as one not guarantee the right to acquire prop- giving rise to reasonable expectations of erty, in particular through inheritance or its holder with regard to the term of the gift. The concept of ownership concerns, licence and the possibility of generating in the first place, material things (plots of income from activity specified in the land and immovable), as well as non- licence. However, the holder may not material property (shares and bonds). have reasonable and legitimate hopes for Claims, both specific and those that continuation of his activity if conditions can be fulfilled, just as well as permit for connected with the licence are no longer engaging in certain types of commercial met or if the licence was withdrawn in activity are also considered to be prop- accordance with the law effective at the erty in the meaning of Art.1 of Proto- time of issuance of the licence. Future col No.1 to the Convention. Thus, the income may be regarded as possessions right of ownership is not limited to the only if it can be received or if it consti- right of ownership of physical things: tutes the subject of certain claim. some other rights and benefits creating Property value in commercial busi- property may be viewed as «ownership ness which for an entrepreneur consists rights» and, therefore, as property for the in clientele formed as a result of his ac- purposes of Art.1 of Protocol No.1 to the tivity is regarded as possessions. Convention. The latter extends to prop- Possessions also involve monies erty values comprising the right of claim awarded to an interested person by a fi- under which an applicant can seek at nal and binding decision of the court least a legitimate expectation to get an which have been proved to be collect- effective exercise of his ownership right. able. In particular, such monies involve However, the hope for preservation of a long-term non-payment of debt granted prior ownership right that cannot be ef- by a final court decision which entered fectively exercised for a long time may into force. Deficit of money is not an not be viewed as «possessions» within excuse for the state in the event of failure the meaning of Art.1 of Protocol No.1 to by the state to fulfil the court decision or the Convention. This also applies to con- in the event of considerable delay in ful- ditional right of claim which has not filment of a decision since it breaks a fair been cleared off due to non-occurrence balance between general interest and the of a condition. Claims for recovery of right of an applicant to resect for his pos- property damages are also covered by sessions1. Art.1 of Protocol No.1 to the Conven- tion. 1 См., например: решения Европейского The question as to whether a licence суда по защите прав человека в делах «Bezuglyiv. Ukraine»от 22.12.2005 г., for engaging in certain types of com- «Abramovv. Ukraine»от 10.07.2008 г. // Ду-

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Interference with the right to dispose only when the interference in question of property by the state authorities must complies with applicable rules estab- be carried out within certain limits. To lished by law. It does not appear either determine whether in a particular case from the case-file materials or from the interference with the right of ownership Government’s observations that the mu- by limiting or depriving of such right nicipality was in any way precluded complied with the Convention, the from obtaining the consent for the recon- ECHR applies the criteria of proportion- struction either directly from the attic ality and effectiveness. co-owners or by way of a court order The principle of proportionality of before entering into the investment con- interference requires a fair balance be- tract. Further, it does not follow from the tween the demands of the general interest available materials that any provision of of the community and the rules adopted domestic law authorized the municipal- for the protection of fundamental rights. ity to enter into the contract without such Thus, there must be a reasonable a consent or, in the event of a dispute, connection between measures taken and without its judicial resolution. The con- their aim. This requirement will not be clusion of the investment contract con- met if an interested person is made to stituted therefore interference, which bear «an individual and excessive bur- was not in accordance with the law. Ar- den». The proportionality test used by ticle 1 of Protocol No. 1 was accord- the ECHR to establish existence or lack ingly breached in this regard. of violation of the Convention consists The principle of effectiveness of own- of traditional questions: was there an ership right consists in that it must be as- interference with the conventional right, certained whether the encumbered prop- was it provided by the law, was its aim erty could be subject to expropriation. The legitimate, was it necessary in a demo- practice of the ECHR clarifies that it is cratic society, were the measures taken necessary to take into account consequenc- proportionally to the aim set. For ex- es and to assess the situations with due ample, in its judgement in case Seryavi account taken of all its components. nandOthersv. Ukraine of 10 February In the area of property use the state 2011 the ECHR noted that for the pur- has broad discretionary powers regard- poses of Article 1 of Protocol No.1 the ing the choice of order of realizing limi- fairness analysis becomes appropriate tations and regarding the assessment of justifiability of their consequences with даш Т. І. Практика Європейського суду з regard to public interests, aim sought to прав людини: навч-практ. посіб. / Т. І. Ду- даш. – К.: Алерта, 2013. – (368 с.) – С. 308. be achieved by the law. Therefore, the [See, e.g.: judgement of the European Court of states-signatories to the Convention Human Rights in cases «Bezuglyiv. Ukraine» must assess the necessity of such inter- of 22.12.2005, «Abramovv. Ukraine» ference. We are talking about limitations of10.07.2008 // Dudash T. I. Practice of the of ownership right that are less severe European Court of Human Rights: scientific and practical guide. / T. I. Dudash. – K.: Alerta, than expropriation which entails owner- 2013. – (368 p.) – P. 308.] ship right passing to another subject.

164 Yearbook of ukrainian law Relations of property foundations of engaging Maydanyk R. in commercial activity in Ukrainian law

The Convention defines the control text of practice of the ECHR, which over the use of property as measures that makes broad interpretation of sphere of may in some way partly affect the content private law in the area of engaging in of ownership right. This control must be commercial activity possible. exercised with the aim to guarantee public In the practice of application of Art.6 interest or to secure the payment of fines or of the Convention for the Protection of Hu- other payments. Such interference must be man Rights and Fundamental Freedoms, made in compliance with a fair balance the ECHR noted that the concept of «civil between the requirements of interests of right and obligations» is an autonomous society and necessity to protect fundamen- conception and it may not be construed tal human rights. Thus, there must be pro- solely by reference to the domestic law of portionality between the aim and measures. the respondent State. Thus, in the case The states-signatories to the Convention Ringeisen v Austria, the ECHR held that in have discretionary powers as to the imposi- analogous situations it is not important tion of control over the use of property, in whether an official body acted as a holder particular to confiscate with the objective of civil rights or as a public authority. When to subsequently destroy things the use of determining whether the outcome of a court which has been declared illegal or danger- proceeding is of conclusive importance for ous for the interests of society. In this case civil rights and obligations. preventive measures may be taken regard- Article 6 of the Convention extends ing property such as seizure and confisca- to the right to engage in commercial activity. In this area, the cases heard by the tion of property discovered as a result of Court concerned such issues as: with- illegal activity to the prejudice of society. drawal of a licence to sell alcoholic bev- The states have the right to enact laws erages, withdrawal of permit for private necessary for securing payment of income. medical practice or ban on setting up a Discretionary powers of the states apply to private school. the granting of a right to financial institu- Thus, the right to engage in private tions to determine sums of money subject practice, in particular medical or legal, to tax as specified by the taxpayer. The also falls within the scope of Article 6 of possibility of imposing taxes on property the Convention2. which is, in fact, in the possession of a debtor, but is nominally property of a third Published: Розвиток приватного права person is applied in order to strengthen the України: монографія. – К.: Aлерта, 2016. – position of creditor in the course of its C. 167–186. implementation is in compliance with Pro- 2 tocol No.1 to the Convention1. Льошенко А. Цивільні права і обов’язки в контексті практики Європейського суду з Attention should be paid to the au- прав людини / А. Льошенко / Юридичний tonomous approach to the interpretation журнал. – 2007. – № 11 (65). – С. 117–118. of civil right and obligations in the con- [Loshenko A. Civil rights and obligations in the context of practice of the European Court of 1 Дудаш Т. І. Указ. соч. – С. 310. Human Rights / A. Loshenko / Legal journal. – [Dudash T. I. Mentioned work. – P.310]. 2007. – № 11 (65). – P. 117–118.]

№ 9/2017 165 O. Kohanovska, Doctor of jurisprudence, Professor, Corresponding member of NALS of Ukraine, Professor of department of civil law of Taras Shevchenko National Univer- sity of Kyiv

UDC 347.77/.78(73)(477) VALUE OF PRECEDENTS IN THE SPHERE OF THE RIGHT OF INTELLECTUAL PROPERTY IN THE USA AND PRACTICIANS OF COURT IN UKRAINE: CERTAIN ASPECTS

Circulation to substantial filling of able variety. Difficulties appear also at protection and protection of intellectual application of rates as substantive right, property rights in the USA and Ukraine and procedural law positions. Exclusive gives the chance to reveal a number of specificity accompanies also all process common features and the features inher- of carrying out of necessary judicial ex- ent in each country in this sphere, and aminations. Considering dispute in intel- also to find out separate aspects of value lectual property right sphere, the judge, of precedents in intellectual property along with the decision especially to right sphere in the United States and legal questions about availability or ab- court practice in Ukraine. sence of the right, the fact of an offence, Not a secret that disputes in intel- the size of the caused harm, should re- lectual property sphere are considered as search also a number of the technical one of the most difficult both in Ukraine, aspects concerning a subject of proof, and in others, including such developed namely: Application of set of essential countries, as the USA. The decisions, signs of the industrial sample, question accepted are quite often cancelled by of similarity of disputed designations courts of the highest authorities as their and so forth. For the decision of similar consideration is performed not always questions it is necessary to appoint judi- qualitatively and in time. It is influenced cial examination of objects of intellec- also by specificity of disputes in the tual property. However, conclusions of specified area, court practice in which such examination are not always un- relation is characterized by a consider- equivocal. We will add to it that possibil-

166 Yearbook of Ukrainian law Value of precedents in the sphere of the right Kohanovska О. of intellectual property in the USA... ity of application of analogy in consid- execution, public display and general eration of the disputes following from data. In a general view it is possible to other civil relations extremely for dis- assert that the author’s right in the Unit- putes in sphere of intellectual property ed States is considered in the set as spe- is limited, or is impossible. cific pattern of ownership which the au- All aforesaid testifiesto an urgency thor can create and use in commercial of a theme of the given publication objectives, as well as any other property. about finding-out of questions value of Thus, the basic emphasis here becomes precedents in intellectual property right traditionally in property the rights of the sphere in the USA and court practice in author, which ultimate goal of activity – Ukraine. improvement of public welfare and in- The purpose of the given publica- crease in economic values, motivation tion thus, are mainly civil – legal analy- of creative activity of authors and inven- sis of the maintenance of precedents in tors. intellectual property right sphere in the As to Ukraine it is the country of USA and court practice in Ukraine by continental legal tradition which is called circulation to dispute resolution prob- also as based on the Roman right, or lems in sphere of intellectual property, Roman-German in which the key role is characteristic for such countries, as played by the concept droit d’auteur that Ukraine and the USA, with accounting is literally translated from French as au- in some cases a cardinal difference be- thor’s rights. According to this concept tween objects of intellectual property author’s right it is considered from two right, adjustment of author’s, patent and positions: as having lines of the prop- other relations, methods of protection erty are protected also property by the and protection of the rights. maintenance of this property, and also First of all, we will remember that protects the personal non-property rights origin of two various concepts – Copy- of the author, considering the natural right and droit d’autеur, for example, in right concept according to which product author’s right, speaks an accessory of the is considered actually by continuation of states of the world to various systems of the person of the author. Last from the law. In the countries with English – the mentioned concepts (droit d’auteur) was American legal traditions («соmmon taken for a basis by preparation of the law») author’s right name «соpyright» Bern convention. It explains that fact that is literally translated as «the right to that the USA, having joined this conven- copies» and understood as possibility to tion further has been forced not only to perform author’s right by reproduction soften the position in understanding of of the created products. Thus it is neces- author’s rights, but also to approach the sary to notice that the maintenance legislation with the legislation of the соpyright in the American law is under- countries of continental Europe. How- stood more widely than its simplified ever, it is necessary to notice thus that name and includes the right of public the Law on an entering order in conven-

№ 9/2017 167 Civil-legal sciences tion action prohibits to courts of the tences of the author – as personal and United States to refer to its rates directly. property character – are displays of the Therefore actually unique source of the unitary right which in aggregate provide American right connected with the Bern observance of intellectual and economic convention, the Law on entering in ac- interests of the author. Supporters of du- tion of its positions is. In 1989 the Unit- alistic interpretation talk about two cated States have made concessions, recog- egories of the rights, whose legal destiny nizing the personal non-property right of different: to laws of estate the principle authors of art visual products to author- of estrangement is applied, they are lim- ship and inviolability of product. ited in time, and the personal non-prop- In turn, the basis of the legislation of erty (moral) rights, on the contrary, sub- Ukraine about intellectual property is mit to principles not alienability, impos- constituted by positions of the Constitu- sibility of application of prescriptive tion of Ukraine1 which item 41 fixes the limit and to eternity.3 right of everyone to own, use and dis- As it is known, any state of the world pose of results of the intellectual creative does not give today such value to intel- activity. Ukraine is the participant of lectual property protection as the USA. almost all major international conven- Considering also achievements in ИТ – tions in intellectual property sphere. Be- technologies which have confidently led sides, important rules of law of intellec- this country to the advanced positions in tual property have found the fastening in world economy, becomes clear that it a number of codes of Ukraine. Thus the could occur only thanks to assistance of basic system act of the legislation since all state policy and support of creativity 2003 considers the Civil code of Ukraine and creative activity by all society. In the (further Cc Ukraine)2, the Book the Constitution of the USA 1787 (p. 1) ne- fourth which unites the rates, concerning cessity to protect interests of authors of protection of the rights to various results inventions, scientists at once has been of creative intellectual activity. provided and art,4 is thus indicative that The various understanding of es- Thomas Jefferson became the first chair- sence of author’s right in system of com- man of Patent authority. Thus, hierarchy mon law and the continental right has of the federal legislation the Constitution caused occurrence monistic and dualistic of the USA which is the basic law of the doctrine concerning the author’s right country and determines laws which con- maintenance. So, representatives of monistic doctrines prove that all compe- 3 Липцик Д. Авторское право и смежные права / Пер. с фр.; предисловие М. Федотова. М.: Ладомир; Издательство ЮНЕСКО, 1 Конституція України: Закон від 28.06.1996 2002. – С. 131–134. №254к/96 – ВР. – Відомості Верховної Ради 4 Конституция Соединенных Штатов України ВВР), 1996, № 30, ст.141. Америки в переводе О. А. Жидкова. – ст.1, 2 Цивільний кодекс України. – Закон від розд.1, параграф 8.// Електронный ресурс. 16.01.2003р. № 435 – ІУ// Відомості Верховної Режим доступу: http://www.hist.msu.ru/ER/ Ради України (ВВР), 2003, №№ 40–44, ст. 356. Etext/cnstUS.htm.

168 Yearbook of ukrainian law Value of precedents in the sphere of the right Kohanovska О. of intellectual property in the USA... tain conflict positions of the Constitution tion of the goods and services under can be declared court void. However, it known trademarks and so forth. is not necessary to forget that legal acts From here there is clear a hard line are a general basis of the federal legisla- of this country in relation to so-called tion and are published in Meeting of «piracy» and the countries in which it is laws, codified in USC – the Code of laws extended, including Ukraine. of the USA. The international contracts It is important to underline commu- ratified by the senate, are considered as nication of fundamental science of the a hierarchical equivalent of legal acts USA with production and the market as and consequently courts try to interpret positive feature. Venture projects as the the internal right of the country so that it states, and the private capital are extend- corresponded to the international obliga- ed. As venture activity is directed on tions, considering simultaneously and a search of technological innovations in- role of judges according to common law. ventors and authors – founders receive In case of the rigid contradiction of trea- thanks to such projects the world’s larg- ty stipulations with legal acts, that was est possibilities for creativity, and quan- accepted later, is considered the law, is tity wishing to enclose means in perspec- applied by courts of the USA. tive technologies constantly grows. To it The described system as we see, has testify indirectly and the sums of claims affected positively all further develop- which generate modern «patent wars». ment of system of protection of intel- For example, company Apple submitted lectual property rights in sphere author’s, claims to Samsung twice and their initial a patent right, the rights to trademarks sum in 2011 has constituted 4,5 billion and a diligent competition. dollars. In 2012 the court has come to a In the literature the attention that the conclusion that Samsung has broken six great value has in the United States is patents Аpple, including what concerned paid, as before, compromise search be- design elements. In patent war which tween the rights of the author and inter- proceeded until recently a number of the est of a society, covers a wide range of high technologies of the companies most questions, including the rights of the known in sphere supported Samsung. First amendment (the right to a freedom Among them – Google, Facebook, of speech) and the Fourteenth amend- eBay.2 The companies have sent the so- ment (the right to a privacy) Constitu- called letter «a companion of court» – tions of the USA.1 So, authors affirms the independent party, gives consulta- that today the greatest profits of the USA receive from sale of author’s rights and 2 Google, Facebook, e-Bay поддержали the goods protected by them, products of Samsung в патентной войне против Apple. high technologies, licenses for produc- Информационное агентство УНІАН, 22.07.2015 //Електронний ресурс. Режим до- 1 Hughes J. Recording Intellectual Property ступу: http://www.unian.net/science/1103393- and Overlooked Audience Interests // Texas Law google-facebook-ebay-podderjali-samsung-v- Review. – 1999. – Vol. 77, No. 4. – P. 929. patentnoy-voyne-protiv-apple.html

№ 9/2017 169 Civil-legal sciences tions on case in point. In particular, they relevant jurisdiction judgments are valid asked the judge to review the decision the law. Thus, references to judicial leg- which obliged Samsung to list incomes islation are an integral part of the Amer- of sale of devices which have broken ican legal practice. Thus value of the law patents. « The decision will lead to ab- communicates as with precedent, and the surd results and will provoke negative doctrine stare decisis («to stand on effect to the companies which spend bil- solved»). According to the resulted prin- lion dollars annually for researches and ciples, courts of the lowest level should development of difficult technologies consider decisions of the courts of the and other components »- have noted the highest level and, at absence is immu- companies1. They consider that such the table arguments against it, to act the decision will lead to a flow of claims in same as and in the previous decisions. patent sphere among IT – developers. As to separate states on consideration Recognizing a number of patents Аpple of laws in important spheres, such as void, the court named technologies, by contracts and trademarks, it is possible them are protected «obvious» that con- to see considerable freedom of judges firms availability of one more problem here again. It speaks observance of com- in a patent right of the USA which is mon law traditions and this level. The connected with such active patenting of federal usual common law similar such, results of technical creativity that inven- which is accepted states, no. In – the first tors complain of complexities of check because the federal Constitution limits of the achievements, impossibility to law-making of the federal government orient in enormous quantity of the pat- only to the spheres set forth above and, ented objects and fears to break the right in – the second, law-making powers are of other founders, in the course of fasten- delegated only the Congress2. Such ing of the rights. spheres in which it is standard – the legal Without stopping on the known data base of a situation irrespective of legisla- about the form of government in the tive decisions, for example, antitrust USA which should be considered at re- acts3. Simultaneously take place. search of features of system of law of As the legislation in the USA is sub- this country, it is necessary to notice that ordinated the federal Constitution, in the federal government as well as all case of origin of any conflict, we will states, except Louisiana, use legal com- apply the federal act will be considered mon law tradition, therefore within a priority before the state statute. How- ever, for states the decision of the Su- preme Court is obligatory only, and deci- 1 Google, Facebook, e-Bay поддержали Samsung в патентной войне против Apple. sions of federal intermediate courts of Информационное агентство УНІАН, 22.07.2015 //Електронний ресурс. Режим до- 2 Erie Railroad Co. v. Tompkins, 304 U. S. ступу: http://www.unian.net/science/1103393- 64 (1938) google-facebook-ebay-podderjali-samsung-v- 3 Leegin Creative Leather Prod., Inc., v. patentnoy-voyne-protiv-apple.html PSKS, Inc., 551 U. S. 877, 888 (2007)

170 Yearbook of ukrainian law Value of precedents in the sphere of the right Kohanovska О. of intellectual property in the USA... appeal are obligatory only for federal clusions that system of intellectual prop- circuit courts within corresponding re- erty of the USA in whole and corre- gion, but (items 3 [4]) are not obligatory sponding laws in particular: for courts of states. In turn, courts of 1. The constitution of the USA al- states have the right to listen to the lows to solve intellectual property ques- claims shown on the basis of the federal tions Federal to the legislation of the legislation, and federal courts – claims USA directly in spheres of author’s right on the basis of the legislation of states, and patents; taking into account a number of general 2. On trademarks and other kinds of terms. It is a question of cases, when the intellectual property, the federal govern- parties in legal procedure – from differ- ment has the right to publish laws only ent states. thanking its competence to regulate All normative acts which are accept- sphere of trade and only on purpose «to ed by federal departments according to promote their development»; the Law on administrative production 3. Proceeding from the previous po- have legal force. A condition is that they sition, it is possible to assert that the should correspond to the Constitution American right in intellectual property and the authorized right. Attracts atten- sphere is based on idea of assistance to tion and that fact that judicial bodies distribution of the economic blessings accept reasonable interpretation by the and increase in volume of innovations governmental department of any legal and results of creativity of people; act which is in its competence, answers 4. Despite active actions of the fed- so-called to «the doctrine of Shevron»1. eral government in sphere of intellectual Normative acts are published in the Fed- property and to assistance of creative eral register and codified in Meeting of process as it is provided by the Constitu- federal normative acts-CFR. In turn, the tion, value of laws of states are not less judicial legislation has legal force which important for intellectual property right, changes depending on court which therefore researching the rights and ob- makes decisions, and is published in na- ligations in sphere of intellectual cre- tional, regional «meetings of judgments» ative activity in the United States, it is or in «meetings» of states, representing not necessary to forget both about the volumes of the judgments collected to- federal legislation, and about the legisla- gether. It is not necessary to forget, tion of states. whether those courts of the lowest level In Ukraine the system of judicial pro- publish all decisions, hence, value of tection of intellectual property rights has precedent is received only by those from started to be formed in the early nineties them which are published. of the last century. Disputes in intellec- Considering the aforesaid, it is pos- tual property sphere on jurisdiction were sible to draw certain intermediate con- considered in courts of law and economic courts. The last within the jurisdiction 1 Chevron U. S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) considered cases about existence of in-

№ 9/2017 171 Civil-legal sciences tellectual property rights, about infringe- and generalization of practice of applica- ment of the rights. In turn, general courts, tion of the current legislation is provided. according to civil legal proceedings af- In general, the judicial system is charac- fairs under the claim of physical persons terized by relative simplicity of construc- concerning authorship or acknowledge- tion, a step of links, unity of main prin- ment void law-enforcement documents, ciples of forming and activity. It is neces- as a rule, solve. sary to notice thus that the basic criterion A number of positive processes in of differentiation of a competence of the our country among which – development courts of the general jurisdiction and eco- of market relations, attraction of foreign nomic courts, first of all, a subject railroad investments, export increase – promoted train of participants of this or that dispute: increase in quantity of the given out pat- If such participants are subjects of manag- ents and certificates in Ukraine. In paral- ing (the juridical person or the physical lel with it number of judicial disputes person – the businessman) dispute subor- has increased in intellectual property dinated to economic courts and is consid- sphere also. Gradually there was clear a ered according to rates of the Economic necessity of allocation from among judg- procedural code of Ukraine. In case either es of specialists who could specialize on participants of dispute are physical per- consideration of difficult and demanding sons, or, as one of the process parties the profound knowledge, affairs in intellec- physical person dispute is subject to the tual property sphere. In result, as a part permission general court according to rules of the Code of civil procedure of of the Higher economic court of Ukraine Ukraine acts. the Appellate court on disposal of legal In the resolution of 17 October 2012 proceeding in the economic disputes № 12 «About some questions of practice connected with protection of the right to of the dispute resolution, the intellectual objects of intellectual property has been property rights connected with protec- created, and in system of economic tion» Plenum of the Higher economic courts – boards of judges of correspond- court of Ukraine notices that in a circle ing specialization have been generated. subordinated the economic court of dis- Today the domestic system of law is putes should carry and the disputes con- based on unity and specialization princi- nected with acknowledgement void ples at which separate categories of dis- documents, certificating the right to ob- putes consider specialized courts – eco- jects of intellectual property (the certifi- nomic, administrative. The courts of law, cate, patents), concern property points of authorized to consider all civil and crim- law on corresponding objects and in inal cases, except what are carried by the character are civil-law or economic-le- legislation to jurisdiction of specialized gal, are not among public disputes.1 The courts function also. The judicial system is headed by the Supreme Court of 1 Постанова Пленуму Вищого господар- Ukraine with which coordination, stream- ського суду України № 12 від 17.10.2012 р. «Про деякі питання практики вирішення lining of judicial system, and also unity спорів, пов'язаних із захистом прав інтелек-

172 Yearbook of ukrainian law Value of precedents in the sphere of the right Kohanovska О. of intellectual property in the USA... system of administrative legal proceed- Kinko’s Graphics Corp3; Princeton Uni- ings from the moment of its origin has versity v. Michigan Document Services, generated a question of jurisdiction of Inc4; American Geophysical v. Texa- disputes on intellectual property protec- co Inc.5; New Era Publications v. Henry tion. In it and for today there are active Holt and Co.6; v. Random House7; v. discussions both in circles of theorists, Acuff-Rose Music8 and many other and among experts. things. Not the superfluous will notice All as is discussed also a question on that on the statistician, the majority of creation of specialized judicial body on private disputes between owners of intel- consideration of disputes in intellectual lectual property rights and persons who property sphere. It causes of the further break their rights, attracting compulsory detailed research of legal grounds and actions in intellectual property ques- features of creation of court under the tions. decision of disputes in intellectual prop- CONCLUSIONS: erty sphere (patent court) with determi- For today it is possible to assert that nation in domestic judicial system, find- the global system of the protection of ing-out of specificity of consideration intellectual property right in the world is competent to it of disputes. already created. Ukraine as well as the Considering the leading part of judg- USA, develops in this direction, adapt- ments in the American system of the ing for world community requirements. legal justification, for accurate under- Economy of the countries, does not fol- standing of American federal legislation low world tendencies of intellectual, in- and the legislation of states it is neces- formation, social and economic and sary to analyze court practice. It will technological development, are not ca- allow understanding, why and how judg- pable to provide stable development of es explained the law relevant provision. the states. The USA have considerable Among the disputes most known and experience of protection and protection, influencing decisions in intellectual first of all, laws of estate of intellectual property sphere in the USA, and also are property, and last year make consider- analyzed in Ukraine, it is necessary to name Cases: Feist Publications. Inc v. 3 Basic Books v. Kinko’s Graphics Corp., 758 Rural Telephone Service Company, F. Supp. 1522 (S. D. N. Y. 1991) Inc.1; Bridgeman Art Library. 4 Princeton University Press v. Michigan Ltd V. Corel Corporation2; Basic v. Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) туальної власності» // Електронний ресурс. 5 American Geophysical Union v. Texaco Inc., Режим доступу – vgsu.arbitr.gov.ua/files/ 60 F.3d 913 (2d Cir. 1994) pages/22102012_12.pdf. 6 New Era Publications International v. 1 Feist Publications. Inc. v. Rural Telephone Henry Holt and Co., 873 F.2d 576 (2d Cir. 1989) Service Company, Inc. 499 U. S. 340 (1991) 7 Salinger v. Random House, 811 F.2d 90 (2d 2 Bridgeman Art Library. Ltd. V. Corel Cir. 1987) Corporation, 36 F. Supp. 2d 191 (S. D. N. Y. 8 Campbell v. Acuff-Rose Music, Inc., 510 1998) U. S. 569 (1994)

№ 9/2017 173 Civil-legal sciences able efforts for integration of all coun- maintenance of this property; and, em- tries into uniform effective system of bodying the natural right concept (prod- protection of intellectual property rights. uct is continuation of the person of the For years of independence of Ukraine author), protects the personal non-prop- also considerably made active occur- erty rights of the author. As the concept rence process in the world structures droit d’auteur has been embodied in regulating the relations in sphere of in- Bern conventions, the USA as the coun- tellectual property, leaning mainly try, has joined, has been forced to soften against the European experience and the position and to approach the current aspiring to divide values of the Euro- legislation with the legislation of the pean Union. countries of continental Europe. The difference in a greater degree The intellectual property right is a attention which is given to those or oth- sphere, in which practice of court the er questions of intellectual property important role which from right systems rights in the different countries of the the country did not concern initially be- world speaks origin during far times of longs. However, in the USA the federal various legal concepts which have been government as well as states, use legal taken as a principle protection of intel- common law tradition, in communica- lectual creative activity. For example, tion, with what within the limits of a concepts copyright and droit d’autеur in relevant jurisdiction judgments are val- author’s right. From here the author’s id the law. The reference to judicial leg- right in the United States is considered islation – an obligatory part of the traditionally and mainly as specific pat- American legal practice, and value of tern of ownership which the author can the law contacts precedent and the doc- create and which can be used in com- trine stare decisis that mean «to stand on mercial objectives, as well as any other solved». According to the resulted prin- property. The basic emphasis here be- ciples, courts of the lowest level should comes on laws of estate of the author. It consider decisions of the courts of the answers also to an ultimate goal – to highest level and act the same as and in improvement of public welfare and in- the previous decisions, at absence is im- crease in economic values from the point mutable arguments against it. For of view of the American right,. Ukraine Ukraine last years process of strengthen- which concerns the countries of the con- ing of a role and value of judicial law- tinental legal tradition, which else name making is more and more accurately Latin or based on the Roman right, or traced. In the conditions of harmoniza- Romano-German, has in a greater degree tion of the legislation of our country apprehended the concept droit d’auteur with EU right in Ukraine has grown and which is literally translated from French the role of the Supreme Court which as author’s rights. According to this con- analyzes has amplified and makes use cept author’s right it is considered in two of experience of the decision of many planes: such that protects the property affairs, including, in intellectual prop-

174 Yearbook of ukrainian law Value of precedents in the sphere of the right Kohanovska О. of intellectual property in the USA... erty sphere, focusing judicial bodies on tual property sphere, but also for more true application of the current legisla- understanding between Ukraine and the tion in this important sphere. Resolu- USA in these questions. tions and determinations of judicial Considering that in one clause it is boards on civil and to criminal cases of impossible to pay attention to all insti- the Supreme Court on concrete affairs tutes of intellectual property right in a also serve today as reference points for cut of the declared theme, the further court practice in which find reflation analysis of a role of precedents in the important, basic questions for the prac- right of the USA and court practice in tice, arising at application of precepts of Ukraine is reasonable for conducting on law. Such resolutions and decisions on separate institutes that will allow to use concrete affairs have already obtained more actively materials of practice of in practice acknowledgement as original both states and to draw more detailed precedents of interpretation of the pre- conclusions. cept of law, matters not only for strengthening of protection of the rights Published: Право України. – 2016. – № 7. – of participants of relations in intellec- С. 104–113.

№ 9/2017 175 I. Spasybo-Fatyeyeva, Doctor of Juridical Science, Corresponding Member of the Na- tional Academy of Legal Sciences of Ukraine, Full Professor of the Department of Civil Law № 1, Yaroslav Mudryi Nation- al Law University

UDC 347.72.01 REGARDING THE LEGAL ENTITIES OF PUBLIC AND PRIVATE LAW

Dividing legal entities into the ones In the meantime, while the Com- that belong to public or private law re- mercial Code of Ukraine has over- spectively has been foreseen by the pro- whelmed in complex business legal visions of Art. 81 of the Civil Code of framework, anyhow, it did not percept Ukraine, which also should have pro- nor developed the position of the Civil vided the relevant criteria for this di- Code on dividing the legal entities. This chotomy. Part 1 of the above mentione- is not the only drawback of the men- dArt.indicates as such the procedure, tioned Code, but it has brought adverse and Part 2 – the grounds for establish consequences for administering the for- ment of legal entities. mal status of legal entities in the scope Furthermore, the Civil Code does not of public law. For instance, the Com- contain any legal consequences for this mercial Code uses the notion of «the division, e. g., defining the special fea- commercial entities of the public sector tures of public law legal entities, com- industries», thus indicating entities pared to private law legal entities. This which are based only on public prop- could be partially explained by the pur- erty, along with the entities, where the pose of the Civil Code framework for state equity interest equals 50 % or private law, subsequently the legal enti- more, or otherwise constitutes a number ties of public law have dropped out of its which guarantees the crucial impact of coverage, except for the clause that their the state on its business decision-mak- participation in civil relations is also ing (Art. 22 Part 2 of the Commercial subject to the Civil Code coverage, un- Code). Public and private enterprises less otherwise noted (Art. 82 of the Civ- are also missing on the list of legal en- il Code). There is no similar code in the tities analogues (Art. 63 of the Com- scope of public law. mercial Code), although the framework

176 Yearbook of Ukrainian law Regarding the legal entities of public Spasybo-Fatyeyeva I. and private law for the private enterprise has been fore- in particular laws. For instances, these seen in Art. 113 of the Commercial definitions can be as follows: «enter- Code. prises, establishments, organizations and There is no denying that even a su- their unions, which are intended to meet perficial overview of the current legal state or community needs», «the manag- framework of legal entities classification ers, beneficiaries of public funds», «the in the two codes demonstrates the mis- public equity interest constitutes 50 % or conceptions, determined by applying the more of the authorized capital stock» indicated terms in the Civil Code. Be- (Law «On public procurement», Art. 1 sides, confusion is being also caused due Part 1 para. 1). to introducing the term «public joint- Therefore, the legislator means that stock company» (Art. 152 Part 2 of the the criteria of dividing legal entities in Civil Code): the fact that it does not be- the public sector industries (not naming long to the legal entities of public law is them the legal entities of public law) are: not perceived well. Even more problems state property; public funds; state equity have derived from the activities of na- interest in the authorized capital stock. tional joint-stock companies (NJSC), It is also possible to find a notice that foreseen by the Law «On joint-stock the indicated enterprises are the legal companies» (Art. 1 part 2), considering entities of public law in the provisions, the special features, provided for by spe- set for the status, organization, compe- cific laws. It appears therefore, firstly, tence and operations mode of particular that the legal status of NSC parallels the public authorities (e. g., Regulation on status of any SC as a legal entity of pri- the Ministry of Finance of Ukraine, para. vate law; secondly, this Law does not 13, Regulation on the Ministry of Inte- refer NSC to the legal entities of public rior Affairs, para. 15). Nevertheless, law; thirdly, NSC is special compared to theindicated legal entities, being the pub- common SC. lic authorities, have no connection to the According to the Law «On state reg- commercial sphere. istration of legal entities, individual busi- The above-mentioned ambiguity of nessmen and public organizations» (Art. the criterion for dividing the legal enti- 9 part 2 para 6), legal entity of public law ties of private and public law, as pro- is the one which is under effective con- vided by the Art. 81 of the Civil Code of trol of central or local government. If Ukraine, whether it is the procedure(Part such state or local authority «executes 1) or the grounds for establishment (Part corporate governance in a relevant legal 2), boosts a range of misunderstandings. entity», such entity is not defined as a The constituent instrument is the grounds legal entity of public law. Law «On pre- for creating legal entities. That said, a venting corruption» also states about the legal entity of private law is created legal persons of public law (Art. 49). based on constituent documents, accord- The legislator, anyhow, is using var- ing to Art. 87 of the Civil Code. A legal ious terms with regard to these entities entity of public law is established ac-

№ 9/2017 177 Civil-legal sciences cording to anadministrative act of the stituent documents are present in both President of Ukraine, a public authority, cases, when submitted for the state reg- public authority of Autonomous Repub- istration of a legal entity, and only few lic of Crimea or a local government. legal entities of public law do not pos- This rule contains internal contradic- sess such (Art. 17 part 2 of the above tions, as, firstly, the availability of con- mentioned Law). As usual, these are stituent documents or anadministrative public authorities. All the commercial act is not the procedure of establishment: legal entities obtain constituent docu- the procedure for legal entities establishments, submitted for the relevant state ment implies for a certain procedure; registration. secondly, the constituent documents If getting into «establishing» as a areof little importance in this proce- criterion for dividing legal entities (with dure – only their confirmation and sub- regard to commercial entities instead of mission; thirdly, legal entities both of the types, provided by Art. 81 of the private and public law fulfill their ac- Civil Code), it has been mentioned in the tivities based on constituent documents. Commercial Code (Art. 55 part 2), ac- If it is believed that the specific type cording to which commercial entities of a constituent act is the criterion for could be divided into (a) legal entities, dividing legal entities, then this act is the established according to the Civil Code; decision of founders, incorporated in a (b) state, community and other enter- constitutive agreement, (Art. 153 part 2 prises, established according to the Com- of the Civil Code, Art. 9 part 3 of the mercial Code; (c) and other legal enti- Law «On joint-stock companies»), ties, which make business and have been which embodies the will of the found- registered in a proper way. Considering ers – for legal entities of private law, or the last case, it’s necessary to believe anadministrative act of the state, repre- that these are the ones, the establishment sented by relevant authorities, issued as of which is foreseen neither by the Civ- a regulatory act – for legal entities of il Code, nor by the Commercial Code public law, rather than a constituent doc- (e. g., other than enterprises legal enti- ument. ties – political parties, community orga- Thus, the legal entities can be cre- nizations, associated with legal entity ated based on a proper constituent docu- status). ment (Art. 17 part 1 para. 5 of the Law Anyhow, Art. 56-58 of the Commer- «On state registration of legal entities, cial Code, which state about the estab individual businessmen and public orga- lishment of commercial entities, do not nizations»), model charter, or without contain any specific features, compared the indicated documents. to the Civil Code. Perhaps, the types of Thereby, the presence or absence of enterprises were meant (Art. 63 of the a constituent documentcannot be consid- Commercial Code), along with the spe- ered a criterion for dividing legal entities cific features of the methods for thees into private and public. Commonly, con- tablishment (foundation) and developing

178 Yearbook of ukrainian law Regarding the legal entities of public Spasybo-Fatyeyeva I. and private law their stock capital, based on which the be understood as state unitary commer- enterprises are divided into unitary and cial enterprise). Meanwhile part 7 of this corporate (Art. 63 part 3 of the Com- Art.contains the term «conversion», it mercial Code). Inanycase, thiswhatso- appears therefore that thereby the change ever has nothing in common with divid- of legal entity’s organizational form has ing the legal entities into the fields of taken place (Art. 108 part 1 of the Civil private and public law. Code). Meanwhile, the Commercial Code That is to say, a joint-stock company brings additional complexities into will not already be considered as a state solving the problems of legal entities enterprise, because these are different classification. For instance, Art. 67 part organizational forms of legal entities. 4 of the Code states about «state enter- Besides, if a state enterprise has con- prises, including commercial compa- verted into a joint-stock company, the nies (except for the banks), where the provisions of Art. 74, parts 1-2 of the state equity interest equals 50 % or Commercial Code become inapplicable, more». Hence, in this case the legisla as joint-stock company has to be the pro- tor makes an equation between the state prietor, and the state – the shareholder. enterprises and commercial companies, A state enterprise cannot obtain private though Chapter 9 of the Commercial property rights, given the right of com- Code does not already contain this ter- mercial management instead. minology, using instead «a commercial The fact that according to Art. 167 of company, where the state equity interest the Civil Code the state is empowered to in the stock capital is over 50 %» phra establish legal entities both of public sing. (state enterprises, educational organiza- The legislator is similarly contradictions) and private law (enterprising com- tive in the scope of administering the panies) increases imbalances in the activities of state commercial enterprises scope of understanding the types of legal (Art. 74 of the Commercial Code), the entities (private or public law). At the unitary ones ore those which can be same time, firstly, all the enterprising turned into joint-stock companies, where companies, consequently, including the state equity interest constitutes 100 %. joint-stock companies, irrespectively of The ruling itself is made up in a way that state equity interest presence – are prevents equalizing «state enterprise» named legal entities of private law with- and «joint-stock company», due to the out any exceptions; secondly, both types fact that the latter is a corporate enter- of these legal entities possess constituent prise (according to the terminology of documents, therefore their establishment Art. 63 part 5 of the Commercial Code). takes place based on the relevant con- At the same time, the first six parts of stituent documents. Art. 74, on the contrary, stated about the Meanwhile anadministrative act may state commercial enterprise and only also take place, by means of which the part 7 mentions about a unitary one (to state establishes not only the legal enti-

№ 9/2017 179 Civil-legal sciences ties of public law, but the legal entities Thus, Ukrainian legislation provides of private law as well. Hence, if a joint- for various procedures of establishing stock company is being established, a the legal entities of private and public regulation of a relevant public authority law. Nevertheless, all the cases are gov- is issued. Examples are the establish- erned by the rule: a legal entity (accord- ment of National joint-stock company ing to the Civil Code) / commercial en- «NaftogazUkrainy», with the corre- tity – commercial organization (accord- sponding Procedure of the President of ing to the Commercial Code) can be Ukraine of February, 25th, 1998, № 151 established based on the decision of the «On the reform of oil and gas complex proprietor (proprietors) or an entitled of Ukraine» and the Regulation of the authority. Considering the fact that if the Cabinet of Ministers of May, 25th, 1998, state is the owner of property, the deci- № 747; the establishment of open joint- sions are made by the authorities, based stock company «State joint-stock com- on public legislation. If private persons pany «Automobile roads of Ukraine» – act as proprietors, the decisions are made the Procedure of the President of Ukraine according to the Civil Code. of November, 8th, 2001 «On improving I. e., public legislation is applied the efficiency of road economy of only considering the procedure of devel- Ukraine management» and the Regula- oping these decisions, which cannot af- tion of the Cabinet of Ministers of Feb- fect the status of a legal entity, obtained ruary, 28th, 2002 № 221; State joint-stock after all the relevant public legal rela- company «KhlibUkrainy» – the Regula- tions. That is why the procedure of legal tion of Cabinet of Ministers of Ukraine entities establishment as a whole or an- of August, 22nd, 1996 № 1000 etc. administrative act or constituent docu- Art. 73 part 1 of the Commercial ments (their presence or absence) in par- Code states that a state unitary enterprise ticular cannot be considered as a crite- is established by an authorized authority rion for dividing legal entities into in an administrative procedure. Art. 74 public and private law.Notall the legal does not contain a similar provision for entities, established by the state, are the a state commercial enterprise. Therefore ones of public law, though all of them there is no clarity for establishing the have been founded through administra- later in an administrative or other way. tive procedure. Anyhow, Art. 74 part 7 of the Commer- It is also worth being mentioned that cial Code refers to an procedure, for con- the status of legal entities, established by version of a state unitary commercial the state, can be consequently converted enterprise into a state joint-stock com- without amending their organizational pany with a 100 % state equity interest. form. E. G, if a state has established a This procedure has been approved by the joint-stock company and owned it com- Regulation of the Cabinet of Ministers pletely, and subsequently the privatiza- of August, 29th, 2012 № 802 and is in- tion took place through selling a part of deed an administrative one. stock capital to private persons; this does

180 Yearbook of ukrainian law Regarding the legal entities of public Spasybo-Fatyeyeva I. and private law not make any impact on the organizations of these legal entities and does not tional form of such a legal entity (it con- imply for any relevant legal consequenc- tinues being a joint-stock company). es at all1. Anyhow, public participation Anyhow, it does not provide an an- in these legal entities is sometimes cru- swer to the question on whether the type cial for particular legal frameworks. of legal entity has changed. If, suppos- E. g., (a) only particular legal entities are edly, before the privatization, a joint- entitled to fulfill certain types of activi- stock company used to be a legal entity ties; (b) only particular types of legal of public law, and eventually became a entities are required to meet some crite- legal entity of private, thus we shall con- ria in order to maintain their activities, clude that, firstly, in order to change the e.g., making agreements, fulfilling cer- status of these legal entities the amend- tain tasks on demand of the state, em- ment of their constituent documents is bodied in certain authorities; (c) state not necessary; secondly, the joint-stock enterprises are required to be under spe- companies can belong either to of pri- cific control while making loans, issuing vate or public law. Perhaps, these con- guarantees orbailment (Art. 67 part 3 of clusions make the status of a joint-stock the Commercial Code), making other company blurred and deprives the above agreements (Art. 79 part 5 of the Com- mentioned division of any sense. mercial Code). In comparison: any changes of a le- Based on the preceding assumptions, gal entity’s status result into inevitable it can be concluded that the literal inter- amendments to the State Registrar, ex- pretation of Art. 81 and 167 of the Civil cept for conversion (Art. 108 of the Code, the provisions of the Commercial Civil Code), though even the change of Code and other legal Acts of Ukraine joint-stock company type from private proves internal contradictions of ap- into public is not considered a conver- proaches towards dividing the legal enti- sion (Art. 5 part 2 of the Law «On joint- ties into the ones which belong to public stock companies»). The indication of or private law, the lack of clear criteria legal entities’ organizational form is re- for this purpose. quired in their constituent documents Doctrinal interpretation of Art. 81 (Art. 90, part 1; Art. 152 part 3 of the and 167 of the Civil Code of Ukraine for Civil Code), instead there is no obliga- developing the grounds of dividing legal tion to include the type of a legal entity entities into types should be based on the (of private or public law). criteria of dividing the law into private The outlaid analysis of legislation and public spheres (or the conception of determines a question on what is the sens latter as composed of these two spheres). of dividing legal entities into types. It is complicated to give an unequivocal an- 1 The only exception is the Law of Ukraine swer, because, usually, Ukrainian legis- «On preventing corruption», where Article 3 lation (except for the Civil Code of part 1 para. 2 contains a list of certain consequences, though their nature is not civil and does Ukraine) does not operate with the no- not refer to the legal entity itself.

№ 9/2017 181 Civil-legal sciences

This approach, basically, cannot deter- entities of private law – universities and mine any objections. other educational organizations (irre- There has already been expressed a spective of property rights), research, wide range of opinions on that issue healthcare and cultural institutions, po- since the times of Ancient Rome, any- litical parties, religious communities etc. how, we will highlight the principal un- This is already enough to be sure of doubtable approaches. These are (a) the the fact that the criterion of interest is interest, put as a corner stone of legal itself not sufficient to serve as a basis framework, i.e., in whose interest does for division of legal entities into types. the person join the legal relations; (b) the Furthermore it is true, when these legal method (imperative or dispositive) ap- entities are commercial organizations, as plied to the problem under consideration; all the commercial companies are aimed (c) the relations of power and subjection, to receive profit. At the same time, there if speaking of legal entities, it’s also nec- is no reason to state that if the equity of essary to state about (d) property rights a joint-stock company belongs to state and (e) liability. (partially or completely), it’s activities The interest. It is well known and are carried out for public interest. widely accepted, that public law admin- The method (imperative or dispos- isters the relations between the public itive).With regard to legal entities this authorities, between them and private approach is reflected, primarily, in the persons, aimed to protect the interests of legal framework for relations between the society. Private law builds legal the legal entity and/or its founder/-s framework for the relations between pri- (participants). If the principal legisla- vate persons (individuals and legal enti- tive provisions have clearly defined the ties) and ensures their private interests. circle of legal entity’s authorities, which Given the above mentioned issues, if is attributive for the public sphere, it is a legal entity has been established for a legal entity of public law, and vice undertaking activities in the scope of its versa. founders’ interests, the participants The legislation is quite strictly defin- (company) or beneficiaries (e. g., a pri- ing the legal status, competence and ad- vate charity), it is a legal entity of private ministration of public law legal entities, law. If a legal entity has been established for which purposes they do not even for the sake of public interests, as it takes need a constituent document. Consider- place while carrying out the authorities ing the legal entities of private law, the in the scope of state management (the legislator admits different legal frame- state authorities and local self-govern- works for through constituent and inter- ment, National Bank of Ukraine etc.), it nal documentation. If all the legal enti- is a legal entity of public law. ties of private law had constituent docu- Anyhow, there is quite a lot of legal ments, while the legal entities of public entities, which act in public interests, but law did not, this criterion would be ef- meanwhile are considered to be legal ficient. Anyhow, when many legal enti-

182 Yearbook of ukrainian law Regarding the legal entities of public Spasybo-Fatyeyeva I. and private law ties of public law possess constituent field of legal framework with a limited documents, this criterion itself also does number of persons (stock market, etc.1). not allow divide the legal entities into It’s also necessary to take into con- public and private. sideration that, firstly, if public law sub- Speaking of the joint-stock compa- jects participate in civil legal relations, nies, whose equity belongs to the state they act as legal entities of private law (irrespective of its proportions), it is (Art. 1, 2, 82 of the Civil Code), main- entitled to define the list of opportuni- taining the legal status in the public ties, available for its structural branch- scope. Secondly, there are legal entities es – it could be more longer or shorter, with specific types of corporate admin- but still these norms are not imperative. istration, intrinsically linked to power Sometimes legal acts even state direct- and subjection relations (e. g., holdings, ly the inadmissibility of interference concerns etc.). and obstruction of national joint-stock Thus, power and subjection relations companies business activities on behalf constitute a circumstance, which also of public authorities, their executive opposes to the division of legal entities officers and representatives (para. 3 of into public and private. the Regulation of the Cabinet of Minis- Property rights.The legal entities of ters of 2015, № 1002 «Particular issues private law, according to the principal of improving corporate management of approach of the Civil Code, own their public joint-stock company «National property. It is commonly believed that joint-stock company «Naftoga- the legal entities of public law do not zUkrainy»). possess their assets. This point of view Power and subjection relations. was barely influenced by the provisions This determines the principal differenc- of Art. 329 of the Civil Code, which re- es of public and private legal spheres: mains unexplored almost all the time of the first one contains vertical framework the Civil Code enforcement, due to the for power and subjection; the access of fact that the priority in the legal frame- the relevant subjects to power. On the work for public law legal entities has contrary, the private sphere is associated been given to the Commercial Code, more with horizontal relations between which did not share similar approach. equal subjects,provided separately with According to the provisions, developed property rights. in Soviet times and adopted by modern Above all, the legal entities of pub- Ukrainian law, the proprietors of public lic law are typically entitled with au- law legal entities assets is the state (Art. thorities, executing the particular public 73 part 3 of the Commercial Code) or the functions. Commonly, the legal entities of private law are usually deprived of 1 Філатова Н. Ю. Саморегулівні органі- these opportunities, though they can be зації як суб’єкти цивільного права [Текст] : empowered with special functions in монографія / Н. Ю. Філатова ; Нац. юрид. ун-т ім. Ярослава Мудрого. – Харків : Право, particular occasions, for instance, in the 2016. – 240 с.

№ 9/2017 183 Civil-legal sciences local community. The legal entity itself tained in Art. 73 part 1 of the Commer- owns the indicated property on the basis cial Code, which provides the liability of of commercial administration or opera- a state commercial enterprise with all the tional management. property, acquired on the rights of com- With regard to national joint-stock mercial management, for the results of companies, according to the Art. 85 of its activities. the Commercial Code it is the owner of It appears therefore, that even if a property as a commercial enterprise. joint-stock company owns a property, Otherwise it cannot be stated for all the which does not belong to the latter as an joint-stock companies without any ex- object of private property, but is still kept ceptions, irrespective of the owner and in public property instead – a joint-stock the size of public equity interest. Any- company is liable with all its assets, ir- how, there also hybrid joint-stock com- respective of property legal regime. Any- panies in Ukraine, where a part of assets how, there are some exceptions. Nation- belongs them as private property, an- al joint-stock company «Naftogaz» is other – as an object of commercial man- not liable with property, which does not agement (para. 25, 26 of National joint- belong to the latter as a private property stock company «NaftogazUkrainy» object and cannot be declared bankrupt Charter). From the other hand, the state (para. 12, 13 of the Charter). as a stakeholder is not entitled to manage Among the legal entities of private the property (para. 11, 12 of the indi- law there are some, the liability of which cated Charter). The mentioned proprietal has special features, but with regard to regime is paradoxical, results in an ex- complete reimbursement for the persons traordinary mess and does not contribute which interact with them – these are full to the clarity of referring to these joint- companies, limited partnershipsor ad- stock companies as to public or private ditional liability companies. The law law legal entities. provides additional liability for the par- Therefore, given the legal regime of ticipants of these companies. legal entity’s property (private property, The situation with the responsibility commercial management) it is also im- of some subjects, which are traditionally possible to define its type (public or pri- considered to be the legal entities of pub- vate). lic law is quite opposite, as some of the Liability.The feature of liability in (e. g., state institutions) are not liable the civil doctrine originates from prop- with all their assets. As for commercial erty separation (the belonging of an ob- subjects (state enterprises), the law does ject to a specific person, based on a par- not imply any limits. ticular right). According to the common The highlighted issues of civil law rule (Art. 96 of the Civil Code), a legal doctrine, the same as the analysis of leg- entity (private law) is responsible with islation, prove the absence of properly all the available assets (owned as private developed mechanisms for dividing the property). A similar provision is con- legal entities into types and to prove the

184 Yearbook of ukrainian law Regarding the legal entities of public Spasybo-Fatyeyeva I. and private law appropriateness of this division at all. lic law through implementing another When any dispute around the status of a criterion (if there is any sense in main- legal entity arises, the court is pushed at taining this approach), but also to har- settling it, based solely on the principles monize the vast body of relevant legisla- of reasonableness and justice. It is our tion, along with developing clear and profound conviction, that the indicated unambiguous legal framework for the situation is not only unjustified, but also status of these legal entities and the legal places the judges in jeopardy of being regime of their property. convicted of abuse, especially given the current complexities. It is moreover real, when considering the legal assessment Published: Спогади про Людину, Вченого Вчителя (до 60-річчя від Дня народження of state economy. Thus, there are reasons професора Ірини Миколаївни Кучеренко) / за not only to review the division of legal заг. ред. Р. О. Стефанчука. – К.: АртЕк, entities into the fields of private and pub- 2016. – С. 176–190.

№ 9/2017 185 Ye. Kharytonov, Doctor of Legal Sciences, Professor, Corresponding Member of NALS of Ukraine, Head of Civil Law Department at National University «Odessa Law Acad- emy»

O. Kharytonova, Doctor of Legal Sciences, Professor, Corresponding Member of NALS of Ukraine, Head of the Department of In- tellectual Property Law and Law of Corpo- rations at National University «Odessa Law Academy»

UDC 347.1/7(477):341.174(4).001.8 ADAPTATION OF LAW OF UKRAINE TO THE EU LAW IN THE CONTEXT OF EUROPEAN TRADITIONS OF PRIVATE LAW

With the ratification of the Agree- The viewpoint according to which the ment between Ukraine and the EU on European Law is regarded as a system of 16th of September 2014, the issue of legal tenets, created in the course of for- adaptation of the Ukrainian law to the mation and functioning of European European law (EU Law) has become far Communities and the European Union, more topical. This fact stipulates future which were applied within their compe- research in the field of the Law of Eu- tence on the basis and in accordance with rope as a phenomenon of the European their founding agreements and general civilization with the purpose to inquire principles of law seems to be appropri- 1 into the methodological grounds of cor- ate. Let us pay attention to the final part relation of legal systems in the sphere. of this definition, where they consider To begin with, it is necessary to elic- general principles of law according to it the essence of the concept «European 1 European law. Course book / Under the Law». editorship of L. M. Entin. – М., 2000. – P. 43.

186 Yearbook of Ukrainian law Adaptation of law of Ukraine to the EU law Kharytonov Ye., Kharytonova O. in the context of European traditions... which (along with founding agree- tions of law, and traditions of private law ments) the provisions of the European in particular, within its boundaries. Their Law function are applied, article F of existence is induced by the presence of Agreement of 1992 envisages that «the relatively independent (though relat- Union respects the main individual rights ed) sub-civilizations within the Euro- as they are ensured by the European Con- pean civilization. Based on the statement vention for the Protection of Human that law is an element of civilization, it Rights and Fundamental Freedoms and is assumed that certain peculiarities of as they appear from general constitution- sub-civilizations influence the features al traditions of member-states to be fun- of legal traditions that exist in Europe. damental principles of law of the Com- Herewith, it is reasonable to take into munity». Therefore, it should be taken consideration the division of all Euro- into consideration that the backbone of pean civilization into «Eastern» and the fundamental principles of the EU is «Western» sub-civilizations, which is based on the priority of individual rights based on regarding characteristics of two recognized in the European Convention types of historical, social and cultural as well as on constitutional traditions of development. In this context, it is neces- the European states. The same traditions sary to specify that, while speaking determine further development of the na- about «East» and «West», the division is tional law of the states, which are mem- not made by geographical criteria but bers of European communities. according to differences in set of mind, On this basis, we can characterize the outlook, material existence, culture etc. European Law as a system of principles, Many scholars consider religion to legal tenets that are created due to the be the main factor of assigning the soci- formation and functioning of European ety to a particular civilization. With such Communities and the European Union an approach the division of Christian basing on and in accordance with the Church into Eastern and Western founding agreements and fundamental Churches which was caused by the bor- principles of law. derline which appeared between parts of We should add that the basis of the the Roman Empire and within the course definition of the European Law should be of time transformed into the differentia- consideration of the essence of law as the tion of Eastern and Western civilizations, only European concept, which is grounded corresponds to the European system on the idea of the European unity itself. «East – West». Regarding this head-note, Foremost it concerns the concept of private some researchers draw the main «dif- law, which is based on European civiliza- ferentiation line» in Europe in a way that tion values and acts as their embodiment divides Ukraine and Belarus into two in European legal consciousness. parts separating Orthodox Ukrainians However, the conclusion about the and Belarusians from Catholics.1 Other uniformity of the European law cannot 1 Huntington S. The Clash of Civilizations // leave out the issue of existence of tradi- Polis. – 1994. – № 1. – P. 38–48.

№ 9/2017 187 Civil-legal sciences authors judge the mentioned above cri- The features of the Western type of terion with a critical mind and instead of civilization development are: «religious» classification factor they 1) sovereignty of a private person suggest other criterion («universal, fun- (recognition of the central place of a per- damental, inherent to all civilizations») – son in the system of social relations); recognized by each individual who is 2) developed institution of private a member of a civilization, which is di- and corporate property that plays a key chotomy «we» and «they», «we are dif- role in the economic life of society; ferent from them», «insiders» and 3) liberalism as the philosophical «outsiders».1 ground for social life; In our view, in modern conditions, 4) social-political pluralism, which the civilization-religion criterion does is reflected in the division of functions not work, as it became the topic of po- of different branches of power and giv- litical speculations due to its penetration ing power to self-government etc; into the general canvas of geopolitical 5) beliefs (religion etc.) which have interests and global ambitions. Besides, the features of absolute inherent value or we cannot but mention such factors as strive at such understanding. the absence of one-hundred percent be- Formed on such grounds the Western lief of the countries’ populations in God, legal tradition has such characteristics: presence of several religious confessions 1) distinct differentiation between in the majority of European countries, legal and other institutions. Although contradiction of such criterion with rath- politics and morality can determine law er popular ideas of ecumenism, etc. but they are not understood as the law Without dwelling on the issue in de- itself; tails, we should admit that we consider 2) administration of legal institutions it reasonable to differentiate not by one is delegated to a special circle of people criterion but according to a total of the who gain legal education with this pur- main features characteristic for the type pose; of civilization (sub-civilization). Among 3) legal thought has an impact on them, the crucial factors are attitude to legal institutions: it analyzes and system- people, determining their place in the izes law acting as a factor which helps Universe, environment and society. to create other legal categories; Herewith, we take into consideration that 4) law is conceived in society as mainstream Western and Eastern types a consensual unit, a unified formed sys- of civilization development do not coin- tem; cide with geographical division and can 5) law is conceived as an integral be present to some extent in different system, «organism» which develops civilizations in different parts of the through generations; world. 6) feasibility of law system is based on the society’s conviction in long last- 1 Orlova I. B. Euro-Asian Civilization. – М., 1998. – P. 25 ing character of law;

188 Yearbook of ukrainian law Adaptation of law of Ukraine to the EU law Kharytonov Ye., Kharytonova O. in the context of European traditions...

7) development of law proves that it 2) tendency to understanding law as does not only last but has its history; a total of legal acts which were inspired 8) historicity of law is connected by the needs of society that are better with the understanding of its supremacy known to the state; over political power; 3) arranging and conducting law 9) confidence in historicity of law is making, codification, research and other associated with the faith in its suprema- kinds of activity in the sphere of law by cy over political power. It is believed the «initiative from above»; that law to some degree is superior to 4) weakness of creative research politics and places an obligation on the which results in the loss of authority and state. Formally, it looks like the convic- significance of law; tion in the opportunity for the existence 5) tendency to limitation of private- of civil society and law-bound state; legal type of regulation, desire to ensure 10) different jurisdictions exist and maximum control and interference into compete inside the society which makes the relations of private persons. As a re- the supremacy of law necessary and pos- sult, private law appears to be «mixed» sible.1 with public-legal tenets; Characteristic features of the Eastern 6) vague distinction between legal type of civilization development are: institutions on the one side and state (ad- 1) predominance of collective, public ministrative, managerial) institutions on and state interests over individual ones; the other side; 2) significant governmentalization of 7) absence of theoretically grounded economic life, weakness and imperfec- and recognized concept of succession of tion of private property institutions law. As a result, such phenomena as re- («Asian mode of manufacture»); ception, transplantation, adaptation of 3) tendency to authoritarian (tyran- law often take place in latent forms, have nical) type of power; limited and inconsequent character; 4) equalizing social ethics; 8) emphasis mainly not only on the 5) ethical-normative function of re- rights but on duties of participants of ligion, resulting in the situation when civil-legal relations2. religious principles practically acquire Therefore, in reference to Europe, the the features of authority of law. «Western Legal Tradition» is those val- Formed on such ground the Eastern ues, concepts, categories and institutions, tradition of European Law has such which are characteristic for the Western characteristic features: European sub-civilizations and based on 1) limitation of paradigm of law by the worldview, culture and mindset of the Christian teaching in its Orthodox inter- Western world, which originates from pretation; Greek and Roman ancient world.

1 Berman H. J. Western Legal Tradition: the 2 Kharytonov Ye. О. History of Private Law Formation / Transl. from Engl. – М., 1998. – P. of Europe: the Eastern Tradition. – Odessa, 41–42. 2000. – P. 8–9.

№ 9/2017 189 Civil-legal sciences

The tradition of private law as a con- framework that existed in the country. cept inseparably connected with the Still, more time is needed before ideas Western European civilization is formed in the field of private law can spread on and functions on the basis of the Western the group of legal systems etc. tradition. To consider differences in the rates Herewith, as every long-term process of development of political history, that the formation of the Western tradition is public and private law, it is reasonable (concept) of private law can be reason- to distinguish periods (changes in ably divided into gradations that charac- time) and stages (qualitative changes of terize the main stages of development. legal systems). In this case, preserving The easiest way to conduct such divi- the division of history of Europe into sion would be orientation on the estab- Ancient World, Middle Ages and Mod- lished division of history of Europe into ern Period we have grounds for distin- periods: Ancient World, Middle Ages, guishing several stages in the develop- Modern Period. Nevertheless, such divi- ment of law in the West, which are con- sion only roughly reflects changes that nected with the consideration of crucial took place in the history of the Western moments in the development of law in European World. Besides, it is insuffi- general, and private law in particular. cient for identifying the stages of devel- H. Berman explains the presence of opment of certain elements of civiliza- such «destructions» by the characteristic tion, each of which has its own rhythm. for the Western legal tradition discrep- Imbalance of the rhythms of the state ancy between its ideals and reality, and law (political history and elements which from time to time led to forced of culture) is especially noticeable in the elimination of legal frameworks by field of private law. While the change of revolutions,1 of which he counted six. In political regime soon causes the change his view, they are: 1) the Papal revolu- of public-legal tenets, which are closely tion of 1075–1122, 2) Lutheran reform connected with public authority, and is in Germany in the ХVІ century, 3) the its continuation, their impact on private English revolution of the ХVІІ century, law is less obvious and more distant in 4) the American revolution of 1776, time. 5) the French revolution of 1789, 6) the Drastic solutions are certainly pos- Russian revolution of 1917. Each of sible in this sphere. Such an example is them created a new legal framework, cancelling the right of private property which embodied some of the main tasks by the Soviet power. However, non-rec- of the revolution and changed the legal ognition or introduction of this or that institution, especially in a certain coun- 1 Herewith, revolutions are understood as try, is not the change of legal framework powerful explosions that took place when the yet. It is more political than legal deci- legal system froze and could not adapt to new sion and requires many years of work on conditions and therefore it was accepted as that which does not correspond its ultimate goal and elimination and transformation of legal task.

190 Yearbook of ukrainian law Adaptation of law of Ukraine to the EU law Kharytonov Ye., Kharytonova O. in the context of European traditions... tradition but finally remained within this distinguishing the American Revolution tradition. Therefore, as a whole, the legal as a factor of its formation is hardly vi- tradition preserved and in fact renewed able. in the course of the revolutions.1 The second drawback of the concept Agreeing with the conclusion regard- is the erroneous thesis that Russia, ing the necessity of considering the im- Greece, Spain first were out of the influ- portance of revolutions for the formation ence of the Western legal tradition but and reforming of law, attention should later they became part of the West (as be paid to significant drawbacks of such well as North and South America).4 Des- approach that place in question resil- ignation of Russia to the West has al- iency of the suggested concept as ways been controversial and now is de- a whole. nied by its leaders who insist on the The first one lies in the excessive distinctiveness of «Euro-Asian civiliza- spreading of the concept «West» and tion». Therefore, this statement can be therefore erosion of criteria of category regarded as worthy only for those parts the «Western Legal Tradition» and loss of the Russian Empire, and then – the of certainty of factors that influenced its USSR, that chose the course for Euro development. For example, it is possible integration (Baltic countries, Georgia, to agree that the American Revolution Moldova, Ukraine). influenced the development of certain We should not mix phenomena of institutions of Western law.2 However, it different forms such as the Pope Revolu- was not crucial for the development of tion and subsequent religious, bourgeois the Western legal tradition.3 That is why and other revolutions. The Pope Revolu- tion determines the boundary between 1 Berman H. J. Western Legal Tradition: the European chronological civilizations of Formation. – М., 1998. – P. 43. early and late Middle Ages. It is a line 2 Alexis de Tocqueville. Democracy in between the period of constitutionaliza- America / Transl. from French. – К., 1999. – P. 341. tion of the Western legal tradition which 3 It is surprising that the main supporters of began in 1054 with the official recogni- the American ideas in the field of law were so- tion of the Christian Church division and called «economic lawyers» of the post-Soviet completed with recognizing the indepen- territory. (e.g. MamutovV.I. Again About General Civil Law Approach // Law of dence of temporal and religious power Ukraine. – 2000. – № 4. – P. 93. For counter which further became a significant fea- arguments refer to: Kharytonov Ye. O. Anti- ture of exactly the Western legal tradi- Civil Law or Seven Misstatements of So-Called tion and had an impact on the develop- Economic Approach // Law of Ukraine. – ment of traditions of private law. As re- 2000. – № 9.-P.90.). It may be connected with the similarity of the situations: attempts of the state gards other mentioned above revolutions, to overcome the chaos that arose with the change they all had particular, clearly expressed of economic relations in the conditions of impropriety of the law concept which existed 4 Berman H. J. Western Legal Tradition: before and not understanding of their belonging the Formation / Transl. from Engl. – М., to a particular civilization. 1998. – P. 20.

№ 9/2017 191 Civil-legal sciences national character. They were national peculiarities of its development in par- not in their orientation at achieving a na- ticular conditions of place and time. tional goal but in their reflecting contra- In our view, the significance of this dictions of national character, peculiari- stage in the development of the Western ties of historical development of a cer- tradition of private law and completion tain ethnic group, nation, group of of the formation of the private law con- nations as well as specific features of cept should be especially emphasized. national (ethnic) approach to solving While since the beginning of the forma- problems which generated in the society. tion of Western law till that time, the Therefore, we cannot agree with the idea tradition of private law either had been that the loss of unity and solidarity of the only arising (law of early Middle aim by the Western civilization and Ages) or had stayed on the stage of thor- transformation of relations of the race, ough understanding and creating con- religion, family, class, neighbourhood, cepts, the formation of certain institu- cooperation into «superficial national- tions etc., after the cluster of revolutions ism» happened in the XX century and a «breakthrough» in this field took place therefore caused disintegration of the and primacy of rights of a private person Western legal tradition.1 became a distinguishing factor in estab- There are reasons to state that the lishing the main vector of the develop- national influence on the integrated ment of law. One can say that laying the Western legal tradition started much ear- foundation of modern (and perspec- lier – with reference to the formation of tive) vision of the private law concept, the European worldview of the Modern as it is, took place. Period and related to the consequent pro- Taking into account the mentioned cess of transformations of cultures.2 It factors, the following stages in the de- resulted in the cluster of the mentioned velopment of the Western tradition of above revolutions that caused the transi- private law should be differentiated: tion to a new stage of development of the І) Stage of «personal» (pre-pri- Western legal tradition. Its characteristic vate) law. The formation of the Western feature is the formation within the West- legal tradition as such goes on. This is ern legal tradition of relatively indepen- the period from the decline of Western dent legal systems which reflected both Rome to the Pope revolution of 1075– the features which were common for the 1122; Western legal tradition as a whole and 2) Stage of «personal jurisdiction» (proto-private law). The beginning of the 1 Berman H. J. Western Legal Tradition: the formation of the Western tradition of Formation / Transl. from Engl. – М., 1998. – private law. It covers the period from the P.16. Pope revolution until the Reformation of 2 Ferguson believes that these factors already the middle of the ХVІ century. functioned in Ancient World. Adam Ferguson, 3) Stage of «egalitarian person-cen- An Essay on the History of Civil Society /Transl. from Engl. – М. : 2000. – P. 205–207, 307–327. tralism of courts of justice». Establish-

192 Yearbook of ukrainian law Adaptation of law of Ukraine to the EU law Kharytonov Ye., Kharytonova O. in the context of European traditions... ment of the Western tradition of private or baron’s rule and establishing a strong law. The period from bourgeois revolu- pope monarchy in Western Church. The tions of the ХVІ – ХVІІІ centuries till first European university was founded in World War I. It marks the completion of Bologna to train lawyers and create legal the formation of private law concept and science as well as separate canon and transition of the development of the temporal law, church and secular legal Western tradition of private law into institutions. a new quality. On this stage a concept of law as an On the first of these stages, the tran- integrated and coordinated system is sition from the Ancient law to the idea formed, confidence in eternal nature of of the formation of the Western Euro- law, its ability to grow from generation pean law takes place. Such feature of the to generation is stated; «growth» of law Western tradition as relative indepen- in the West acquires certain inner logic: dence of law is formed. The chaotic bor- the changes are not just adaptation of the rowing of the Roman law tenets goes on old to the new but they become a part of and their implementation into the collec- a particular model of changes,1 confi- tion of Barbarian laws takes place. dence in supremacy of law over political Therewith, the Barbarian law is closely power is formed; different jurisdictions connected with the political and reli- and different legal systems compete in gious life, customs and moral values. the same society. Private law begins its Church does not have its own system- formation as a concept, in particular, due atized law-creative instruments and de- to the ideas of High Renaissance, devel- veloped law until XI century. Canon law opment of crafts and trade, canon law is inseparably connected with theology etc. The study of principles of the Ro- and even the expression jus canonicum man law and the reception of its tenets is used not very often. The main princi- take place. ple that functions in the sphere of regula- The main principle of regulation of tions of private relations is subjection to relationships in the private sphere is «personal law» which is, first of all, de- «personal jurisdiction» – legal tenets are termined by the feature of allegiance applied to a particular group of subjects: (citizenship). the decisive factor is not citizenship, On the second stage the formation of race, gender etc. but their social back- specific features of the Western legal ground. tradition begins, the interest to private On the third stage, the formation of law appears and formation of its charac- the fundamentals of the Western tradi- teristic features starts. These changes tion of private law takes place under the take place during the Pope revolution influence of ideas of «natural law»: es- (Gregorian reforms) of 1075–1122 tablishing the independent status of which laid the foundation for the discov- 1 ery of Justinian’s Roman texts exempt- Berman H. J. Faith and Order: the Reconciliation of Law and Religion. – М., ing the clergy from the emperor’s, king’s 1999. – P. 42.

№ 9/2017 193 Civil-legal sciences a private person, recognition of a com- tions which are characteristic for the plex of his or her personal or property Eastern European sub-civilization rights, introduction of principle of con- founded on the outlook, culture and tractual freedom etc. A characteristic mindset of nations, ethnic groups that feature is the reception of the Roman were part of so called «Byzantine Com- private law as a universal tool of ensur- monwealth of Nations» or now are suc- ing the rights of a private person. cessors of «Byzantine Spirit» expressed On the other hand, the enrichment in the principles of Orthodox Christian of the Western tradition of private law religion. takes place due to national bourgeois In the Eastern European legal tradi- revolutions aimed at overcoming the tion the Eastern European concept of contradictions of internal state and so- private law is formed under the Western cial-cultural development. In particular, influence but it does not lead to the rise the Lutheran concept of Christian con- of an independent tradition of private science to some extent facilitates the law. It is explained by the absence of development and creation of the system independent philosophic basis, specific of protecting the private contracts and character of relationships «person – property rights in many Western coun- state» and other similar factors. tries. The English Puritanism promotes Due to the fact that Ukraine was the development of independent court formed and continuously developed in procedure, jury trial and strengthens line with the Eastern European legal tra- human rights not only in England but dition, a theoretically and practically also in other countries of Western Eu- significant question arises as to deter- rope. Codification of civil law in France mining the grounds for its correlation induces new codifications in the whole with the law of the EU, in particular, the Europe and on other continents. The opportunities and the level of consider- formation of «legal systems» takes ation of Ukrainian mindset, peculiarities place and within their framework the of legal consciousness etc. formation of civil-legal systems as well, In our view, the issue of choice which effects the development of the does not exist any longer as Ukraine, Western tradition of private law. The like any other state that strives to be latter loses «personal jurisdiction» and a member of the European Commu- becomes a clearer complex. However, nity, has already made its choice. And along with this, it differentiates accord- this choice is the European one. That ing to mindset, mental outlook and na- is why the methodological ground for tional traditions, and now develops si- correlation of Ukraine’s law with the multaneously not only in chronological law of the EU in the field of private but in geographical positions. law is the consideration of the fact that As for the «Eastern European Legal the concept of private law developed Tradition», it is understood as legal val- and formed in the context of develop- ues, concepts, categories and institu- ment of the Western tradition of Euro-

194 Yearbook of ukrainian law Adaptation of law of Ukraine to the EU law Kharytonov Ye., Kharytonova O. in the context of European traditions... pean law. Therefore, the adaptation of dom, respect of other person’s rights Ukraine’s law to the EU law depends, etc.) without these factors the real first of all, on the readiness and ability movement towards this aim is impos- of the Ukrainian society to conceive sible. the Western European basic civilization values (liberalism, human rights, Published: Studia Prawnicze: Rozprawy private property right, contractual free- i Materiały. – 2016. – Nr 1 (18). – S. 39–50.

№ 9/2017 195 V. Yarotskiy, Doctor of Laws, Professor, Corresponding member of National Acad- emy Of Law Sciences of Ukraine, Head of the Department of Civil Law number 2 at Yaroslav Mudriy National Law University

UDC 347.44:368(477)

REALITIES AND PROSPECTS OF TITLE INSURANCE IMPLEMENTATION IN THE DOMESTIC INSURANCE SERVICES MARKET

Further development of civil circula- V. V. Kushchenko, R. A. Maidanyk, tion, considering the introduction of new S. O. Slipchenko, I. V. Spasybo-Fateeva, legal mechanisms of creation, transfer D. V. Terehov, V. V. Us, T. V. Tsvigun, and termination of the subjective rights Y. M. Shevchenko, V. P. Yanyshen etc. of individuals and legal entities, deter- In a modern world, there is an active mines the need for the development of development of new legal constructions reliable protection tools for its members. in the insurance field, which is a direct One of such protective instruments in the consequence of the evolution of existing domestic legal system may be the insur- legal mechanisms of minimization or ance of the legal title (title insurance), even complete avoidance of the risks which gained considerable popularity in that accompany the creation, transfer and the USA and the EU countries, but is not termination of subjective civil rights. In widely used in our country nowadays. this connection, the category of «insur- The above mentioned actualizes the con- ance protection»1 is prompted to enter sideration of the problem of implementa- the legal usage in cases where it comes tion of the title insurance practice in the to insurance of various kinds of prop- insurance services market of Ukraine. erty turnover objects (things, liability, The insurance legal relations and the financial risks, investments, etc.). Insur- features of a civil contract that serves as ance allows to minimize the negative the basis of their origin were investigated effect of various events and even prevent by many domestic and foreign lawyers, or completely eliminate their adverse such as D. G. Amanzhaev, A. S. Ame- 1 lina, V. I. Borysova, I. V. Venediktova, Цвігун Т. Теоретичні аспекти визначен- ня сутності страхового захисту [Текст] / O. V. Hryschenko, O. V. Kohanovska, Т. Цвігун // Ринок цінних паперів України. – T. D. Kryvoshlyk, N. S. Kusnetsova, 2012. – № 3–4. – С. 91.

196 Yearbook of Ukrainian law Realities and prospects of title insurance Yarotskiy V. implementation in the domestic insurance... effects1, and therefore is aimed at com- velopment of mechanism for protecting plete or partial restoration of property the rights and legal interests of its mem- status of the victim (insured) when the bers as well as by the presence of the insured event happens. The specified negative experience of the investment purpose of insurance institution gener- component functioning. For example, it ally corresponds to the purpose of pro- is worth mentioning a well-known reso- tection of the subjective civil rights jus- nance scam involving a violation of le- tifying the appropriateness of the use of gitimate rights and interests of investors the category «insurance protection». All from the heads of the company «Elita- available, in domestic property turnover, Center» in Kyiv, there exist cases when constructions serve as the legal means of the property developer issued to different providing the insurance protection. One persons two or more documents that are of these legal means is the construction the legal title to one and the same apart- of title insurance. ment in the multi-unit apartment building, Historically, title insurance firstly or the sale of real estate units to different found its spread in the turnover of the real people by unauthorized persons under the property. In this regard, the experts of the forged documents etc. Unfortunately, insurance field have repeatedly stated that such property losses have not been ex- title insurance has a very narrow scope, cluded at the real estate market of Ukraine which is the secondary real estate market. yet. The presence of these and other pos- They justified this conclusion by stating sible property risks determines the need that title insurance, when implementing for widespread introduction of title insur- the primary mechanisms of the estate of ance not only at the secondary but also at freehold creation, is inefficient, because the primary real estate market. Disap- in this sphere of property turnover the pointing are also the results of the analy- rights to real estate are often acquired sis of existing insurance risks level in through investment. The absence of pre- other segments of the domestic civil cir- vious transactions on the real estate unit culation, particularly in the vehicles mar- in this case, virtually eliminates the risk ket. The literature states that the title in- of the title illegitimacy. However, this surance of movable things (like cars) has conclusion is valid only for countries with found its spread due to the fact that such a high level of legal protection of the real transactions are associated with minimum estate market participants. The domestic risks2. It is difficult to agree with this con- real estate market, unfortunately, is char- clusion, considering the realities that have acterized by insufficient level of the de- 2 Секрети і «підводні камені» страховки прав власності на нерухомість [Електронний 1 Грищенко О. В. Правове регулювання ресурс]. – Режим доступу: договору майнового страхування у новому http://www.bankchart.com.ua/finansoviy_gid/ цивільному законодавстві України [Текст] / strahuvannya/statti/sekreti_i_pidvodni_ О. В. Грищенко // Вісн. Хмельницьк. ін-ту kameni_strahovki_prav_vlasnosti_na_ регіон. управління та права. – 2002. – № 2. – neruhomist. – (Веб-сайт «Bankchart» рейтин- С. 160. ги банківських послуг).

№ 9/2017 197 Civil-legal sciences been formed in the domestic vehicle mar- of the EU countries checking of real es- ket, because the scope of their turnover tate unit before committing each subse- and documentary registration can hardly quent transaction can take up to two be considered as the minimum risky. months, despite the fact that this market The appearance and implementation is quite «old» and legally established 4. of the title insurance construction in the The current civil legislation of world is associated with the spread of the Ukraine does not explicitly enshrine the practice of invalidation the contracts re- title insurance construction, and does not garding the transfer of real estate prop- limit the ability of real estate market par- erty right in the nineteenth century. The ticipants to use this tool of insurance validity of many transactions was dis- protection. Taking into account the inex- puted on the basis of illegality of acquir- haustibility of the list of voluntary insur- ing the property rights to real estate, in ance, enshrined in the provisions of the connection with which the procedure of Article 6 of the Law of Ukraine «On transfer of rights required new means of insurance», and, designated by the law, protecting its members. In that period the ability of the insurer to choose the types practice of research of the «title history» of voluntary insurance, the studied kind became quite common, that was check- of insurance activity can be easily imple- ing of real estate title documents as for mented in domestic practice 5. the law «purity» and thus the legitimacy Keeping the traditional specifics of of the previously committed transac- insurance relations, title insurance stands tions. This service was provided by no- out by its subject and, as stated earlier, taries, archivists and other people, who by its scope. having access to archival records and In legal literature, a common view is documents, expressed their opinion that title insurance is carried out in case about the «purity of the title»1. of property loss as a result of termina- At the present time the practice of tion of property right to it6, that means implementation of mechanisms of the that it is directly related to the risks of creation, transfer and termination of real rights to real estate in the USA has pro- 4 vided the definition of legal purity of the Ус В. В. Титульное страхование – дей- ственный механізм защиты прав участников title and its insurance with the meaning рынка недвижимости [Текст] / В. В. Ус // 2 3 of their integral part , .No less attention Имущественные отношения в Российской to this issue is paid in Europe, as in most Федерации. – 2010. – № 3 (102). – С. 57. 5 Про страхування : Закон України від 07 1 Терехов Д. В. Понятие титульного березня 1996 р. № 85/96‑ВР // Відом. Верхов. страхования[Текст] / Д. В. Терехов // Омск. Ради України. – 1996. – № 18. – Ст. 78 (зі змі- науч. вестник. – 2009. – № 2 (76). – С. 103. нами). 2 Ibid. – С. 104 6 Ус В. В. Титульное страхование – дей- 3 Аманжаєв Д. Г. Страхування іпотеки як ственный механізм защиты прав участников спосіб мінімізації фінансових ризиків [Текст] рынка недвижимости [Текст] / В. В. Ус // / Д. Г. Аманжаєв // Економіка та держава. – Имущественные отношения в Российской 2011. – № 4. – С. 62. Федерации. – 2010. – № 4 (103). – С. 27.

198 Yearbook of ukrainian law Realities and prospects of title insurance Yarotskiy V. implementation in the domestic insurance... loss of property rights 1,2,3.Some law- mining factor. It is supposed that title yers expressed the view that the object insurance mainly covers the cases of of insurance in this case is the property wrong acts of third persons that arise, in right, based on the identification of such particular, when committing invalid right with the legal title 4, and taking transactions. The lawyer himself, by the into account the peculiarities of the in- way, agrees with this 6.No less interest- surance object. Particularly, V. V. Kush- ing is his position on the object of insur- chenko in the analysis of the title insurance. The recognition of the transaction ance specifically notes that the insurance invalidity leads to bilateral restitution, of property rights is carried out to pro- and invalid transactions, as we know, do tect the rights of the acquirer against the not create legal consequences, which the illegal encroachments of third persons parties tried to achieve, creating just the to real estate object5. However, this po- consequences associated with their in- sition has vulnerabilities, and it is ex- validity. This should mean that no real plained by analyzing the consequences rights of the acquirer as for the transac- of the invalidity of the transaction. The tion occur, and therefore at the moment insurance «against the illegal encroach- of entering the insurance contract the ments» does not include all possible subject of insurance cannot exist as risks of the studied legal relations. The well. It is also obvious that that the in- wrongfulness in this case is not a deter- surance contract itself may not cause any legal consequences in this situation, 1 Терехов Д. В. Понятие титульного and therefore the insurer does not have страхования[Текст] / Д. В. Терехов // Омск. науч. вестник. – 2009. – № 2 (76). – С. 104. to fulfill its obligations to the insured in 2 Аманжаєв Д. Г. Страхування іпотеки як the part of making payments when the спосіб мінімізації фінансових ризиків [Текст] insured event happens. One gets the / Д. Г. Аманжаєв // Економіка та держава. – false impression that the lack of legiti- 2011. – № 4. – С. 62. macy of acquiring the subjective right, 3 Кривошлик Т. Д. Види страхування в іпотечному кредитуванні в Україні [Текст] determined by the recognition of the / Т. Д. Кривошлик // Фінансово-кредитний transaction invalid, leads to the absence механізм активізації інвестиційного процесу of the insurance subject, and the title : зб. тез ІІ Міжнар. наук.‑практ. конф. до 15‑ї insurance contract itself is unreasonable. річниці створення каф. банк. інвестицій, (Київ. 3 лист. 2011 р.) / М-во освіти і науки The difficulty of defining the insurance України, ДВНЗ «Київ. нац. екон. ун-т. ім. subject in case of committing null trans- Вадима Гетьмана». – К. : КНЕУ, 2011. – С. action is associated with the conse- 268. quences of its nullity, and, at the same 4 Мельниченко А. Проблеми розвитку титульного страхування в Україні [Текст] / time, the presence of the insurance sub- А. Мельниченко // Вісник Київ. нац. ject in respect to disputed transactions торг.‑екон. ун-ту. – 2009. – № 5 (67). – С. 92. is explained by the presumption of le- 5 Кущенко В. В. Страхование сделок gality of the property right acquisition с недвижимостью[Текст] / В. В. Кущенко // Имущественные отношения в Российской Федерации. – 2005. – № 6 (45). – С. 55. 6 Ibid. – С. 57

№ 9/2017 199 Civil-legal sciences

(chapter 2, Article 328 of the Civil Code that there are no financial risks in case of Ukraine)1. when the transaction is free of charge, The subject of the title insurance such as under the contract of gift or when contract is determined by the specifics inheriting. Furthermore, given that the of the insurance risk, which is one of the consequence of transaction invalidity is key categories of insurance. It refers to a bilateral restitution, in some cases, it a certain event, in case of which the in- eliminates the possibility of any direct surance is carried out and which has fea- financial losses, and therefore the risks tures of probability and chance of occur- associated with them. Exactly this aspect rence2. is not taken into account by the lawyers, Given that invalid transactions do not who attribute the risks under the title give rise to legal consequences, which insurance to financial ones5. their participants tried to achieve, the In addition, the indicated conclusions false impression might be given that title are not confirmed by practice in the field insurance is carried out against financial of insurance services provision. For ex- risks 3, like potential losses, damages, ample, the National Joint Stock Insur- loss of profits4 . If we consider the insurance Company «Oranta» considers, as ance risks with title insurance in this an insurance risk under the title insur- sense, they cannot be equated with direct ance contract, the possibility of terminat- property losses incurred by, for example, ing the property right, based on the court the buyer under the contract, who re- decision that has entered into force on mains with nothing in case of vindica- the invalidity of the transaction regard- tion of its property. This should mean ing the acquisition of property right as a result of circumstances (events) which 1 Цивільний кодекс України : за станом arose (occurred) before entering into or на 8 лист. 2016 р. // Відом. Верхов. Ради during the term of the contract and were України – 2003. – №№ 40–44. – Ст. 356 (зі unknown to the insured at the time of змінами). 6 2 Цивільне право : підруч. у 2 т. [Текст] / making the insurance contract . Taking [Борисова В. І. (кер. авт. кол.), Баранова Л. М., this into consideration, it would be rea- Бєгова Т. І. та ін.] ; за ред. В. І. Борисової, sonable to distinguish such title risks as І. В. Спасибо-Фатєєвої, В. Л. Яроцького. – Х. : Право, 2011 – . – Т.2. – 2011. – С. 518. 3 Тлуста Г. Ю. Титульне страхування 5 Тлуста Г. Ю. Титульне страхування в Україні: механізм функціонування та пер- в Україні: механізм функціонування та пер- спективи розвитку [Електронний ресурс] / спективи розвитку [Електронний ресурс] / Г. Ю. Тлуста // Наук. записки Нац. ун-ту Г. Ю. Тлуста // Наук. записки Нац. ун-ту «Острозька академія». Серія Економіка. – «Острозька академія». Серія Економіка. – 2011. – Вип. 16. – С. 563–568. – Режим досту- 2011. – Вип. 16. – С. 563–568. – Режим досту- пу до журн.: http://nbuv.gov.ua/UJRN/ пу до журн.: http://nbuv.gov.ua/UJRN/ Nznuoa_2011_16_76. Nznuoa_2011_16_76. 4 Фурман В. М. Ризики в інвестиційній та 6 Титульне страхування [Електронний фінансовій діяльності страховика [Текст] / ресурс]. – Режим доступу: http://oranta.ua/ukr/ В. М. Фурман // Фінанси України. – 2008. – title_insurance.php. – (Веб-сайт Національної № 2. – С. 107. акціонерної страхової компанії «ОРАНТА»).

200 Yearbook of ukrainian law Realities and prospects of title insurance Yarotskiy V. implementation in the domestic insurance... vindicatory and restitutionary1, which action of a person, aimed at the acquisi- should be considered as the most com- tion, change or termination of civil rights mon in judicial practice and practice of and obligations (Article 202 of the Civ- law enforcement in general. il Code of Ukraine)3. Obviously, title insurance is carried The analysis of the specifics of title out to protect the property interests of insurance construction gave the lawyers the insured in case of illegitimate the reason for the classification of prop- grounds of property rights to arise. Such erty insurance into two separate types: ground is the title, which means the cor- 1) own property; 2) title4. Property insur- responding transaction, the commission ance is carried out in case of damage or of which should lead to creation of sub- destruction of a thing. As a compulsory jective civil rights, and which, due to one, the property insurance in this sense objective reasons, can acquire features is provided by, for example, Article 24 of of invalidity. Eventually, the Roman the Law of Ukraine «On lease of state and lawyers understood exactly the creation municipal property», in the context of the of rights as a title2. This may explain the facility lease insurance against risk of efficacy of the title insurance construc- accidental loss or damage 5; and Article 8 tion in case of its nullity or contestabil- of the Law of Ukraine «On mortgage», as ity as a transaction. the insurance against the risks of acciden- Title insurance is carried out in case tal destruction, accidental damage or of possible losses associated with the damage to the subject of the contract6. lack of desirable for the parties (sides) le- Meanwhile, title insurance is carried gal consequences of the committed out against the legal risks of loss of transaction that could potentially be in- a thing, of property right to it7 or of an validated. The subject of insurance is not the property right, but the ground (trans- 3 Цивільний кодекс України : за станом на 8 лист. 2016 р. // Відом. Верхов. Ради action) that should cause its creation, України – 2003. – №№ 40–44. – Ст. 356 (зі that is why the invalidity of ground of змінами). subjective property right acquisition 4 Кущенко В. В. Страхование сделок с не- (change, termination) serves as the insur- движимостью [Текст] / В. В. Кущенко // Иму- ance risk. This explanation of specifics щественные отношения в Российской Феде- рации. – 2005. – № 6 (45). – С. 55. of the title insurance subject is based on 5 Про оренду державного та комунально- determination of the transaction as the го майна : Закон України від 10 квіт. 1992 р. № 2269‑ХІІ // Відом. Верхов. Ради України. – 1 Мельниченко А. Проблеми розвитку 1992. – № 30. – Ст. 416 (зі змінами) титульного страхування в Україні [Текст] / 6 Про іпотеку : Закон України від 5 черв. А. Мельниченко // Вісник Київ. нац. 2003 р. № 898- IV // Відом. Верхов. Ради торг.‑екон. ун-ту. – 2009. – № 5 (67). – С. 92. України. – 2003. – № 38. – Ст. 313 (зі змінами). 2 Дождев Д. В. Римское частное право: 7 Ус В. В. Титульное страхование – дей- учебник для вузов [Текст] / подобщ. ред. ственный механізм защиты прав участников акад. РАН, д.ю.н., проф. В. С. Нерсесянца. – рынка недвижимости [Текст] / В. В. Ус // [2‑е изд., изм. и доп.] / Дождев Д. В. – М.: Имущественные отношения в Российской Норма, 2006. – С. 405. Федерации. – 2010. – № 4 (103). – С. 27.

№ 9/2017 201 Civil-legal sciences actual possession of a thing when it mechanisms, such as withdrawal of real comes to the consequences of invalid estate from the entity or individual, transaction. Besides, in the context of based on a court decision or under fore- analysis of the title insurance contract, it closure on it during the enforcement pro- appears that not only the ground of prop- ceedings. There are no grounds for lim- erty right creation, but also the ground iting the scope of such an effective in- of derivative real rights can serve as the strument of insurance protection. subject of insurance. Recognition of in- Moreover, in these and similar cases, validity of the transaction regarding the there may be more risks due to the con- transfer of property right to the thing fusion of the situation that in turn deter- causes the invalidity of derivative trans- mines the need in applying for insurance actions, including loan agreements, leas- at all. es etc. In this regard, each potential car- The insured, under the title insurance rier of property rights can alone insure contract, shall be entitled to payment of the ground of its creation under the title insurance compensation subject to estab- insurance contract. lishing the fact of invalidity of the trans- The peculiarity of the title insurance action (exactly the establishment, be- is the ratio of the circumstance that gives cause the entry into legal force is impor- rise to the insured event and the case tant only in the context of analyzing the itself. The relevant circumstance takes content of the title insurance contract), place before the conclusion of the con- which is the ground for creation (trans- tract, meaning that it exists in the his- fer, acquisition) of rights for the relevant tory of property right transfers, and due thing by insured. Moreover, the commis- to various circumstances, may not al- sion of such transaction has the nature of ways be detected or evaluated properly. a legal fact, characterized by only a prob- However, the insured event itself occurs ability of its occurrence. In view of this, already after making the corresponding the most effective are the following two transaction1. models of making the title insurance The scope of the title insurance struc- contract: 1) making the insurance con- ture cannot only involve the contractual tract using the construction of the pre- relations that arise as a result of the con- liminary contract; 2) making the insur- clusion of contracts, aimed at the transfer ance contract after committing a transac- of property right: sales, exchange, gift, tion that is the ground for creation of life maintenance etc. It is possible to property right to a certain thing by in- insure the title in case when the property sured. As a possible model, the conclu- right arises in way of inheritance or even sion of the title insurance contract, with as a result of the enforcement of legal a condition of its entry into legal force simultaneously with the moment of oc- 1 Кущенко В. В. Страхование сделок currence of the ground for acquiring the с недвижимостью[Текст] / В. В. Кущенко // property right for a certain thing by in- Имущественные отношения в Российской Федерации. – 2005. – № 6 (45). – С. 57. surer, can be also considered.

202 Yearbook of ukrainian law Realities and prospects of title insurance Yarotskiy V. implementation in the domestic insurance...

The risks associated with unfair ac- creating favorable conditions only for tions of property turn over participants itself. The provisions of acts of appli- play an important role in the investi- cable civil legislation of Ukraine, which gated legal relations. It is necessary to could somehow balance the legitimate keep in mind that the acquirer’s aware- rights and interests of both parties of the ness about the circumstances, laid in the contract, are currently not available. foundation of the insured event, is rec- Therefore, the consumers of insurance ognized in the insurance contract condi- services, in the part of the title insur- tions as a ground that relieves the in- ance contract formation, can rely only surer from the obligation to carry out the on the good faith of the insurers. In con- insurance payments. At the same time, nection with this, it is suggested to en- this condition is applied in practice and shrine the title insurance contract con- is not enshrined at the level of the regu- struction at the level of the provisions latory provisions of applicable civil leg- of the Law of Ukraine «On insurance» islation of Ukraine. Nevertheless, a pre- with determination of its essential con- requisite for signing the title insurance ditions. contract is the research, carried out by The domestic real estate market, un- the specialists, of legally significant cir- fortunately, is characterized by «con- cumstances that determine the insurance fusing stories» concerning the facts of risks, despite the chosen by the parties’ state fixation of creation, transfer and legal scheme of signing the contract. termination of rights to certain real es- Such condition is the result of the con- tate units and commission of transac- struction development of the title insur- tions on real estate. Since the beginning ance relations. of the development of Ukraine as an Conclusion. Despite the perspective independent state, of course, using tried of application of the title insurance con- and tested in Soviet period mechanisms struction and its appeal to the members of fixation of real estate rights and of civil relations, who are mainly the transactions on them, a new, modern acquirers of property rights to real es- electronic system of state registration tate, this means of insurance protection of rights transfer in this, without exag- of their legitimate rights and interests geration, important area of property still remains rare in the domestic prop- turnover has been gradually forming. erty turnover. The main reason we Despite the fact that now the rights to should recognize here, is the lack of all types of real estate are registered in legislative consolidation of the title in- the State Register of real rights to real surance construction in the domestic estate, there is a «layer» of objects, legislation. The situation is for the ben- which history includes «dark spots» and efit of the insurer, who, taking care of information of which is only on paper, its own interests, has the ability to mod- and their authenticity can be put under el the title insurance contract under the doubt. The mentioned risks should not scheme of the contract of adhesion, negatively affect further development

№ 9/2017 203 Civil-legal sciences of the real estate market in Ukraine and nues of the civil relations participants, should, at least partly, be compensated forcing them to save on insurance pro- by the national insurance system of the tection of their rights and legitimate relevant risks. interests. During the implementation of the Considering the abovementioned, title insurance contract construction in the title insurance contract construc- practice, the level of a legal culture of tion is very promising in terms of the the participants of the domestic prop- possibilities of its application in the erty turnover, should be taken into ac- property turnover of Ukraine. As the count, which, combined with the eco- main priority of its quick and wide nomic crisis situation in our country, implementation in the domestic insur- creates some problems. Non-regulation ance services market, an immediate of the investigated relations leads to consolidation of the legislative provi- the use of illegal schemes on the pri- sions, defining the basic principles of mary and secondary real estate mar- legal regulation of this important kets, which would have intensified the sphere of insurance relations, should use of insurance protection instru- be considered. ments. At the same time, this does not happen, because of the caused by the Published: Право і суспільство. – 2016. – crisis decrease in the growth of reve- № 6. – C. 55–61.

204 Yearbook of ukrainian law O. Kot, Managing Partner of Antika Law Firm, Member of the Judicial Reform Coun- cil, Member of the Scientific and Advisory Council of the Supreme Court of Ukraine, Member of the Scientific and Advisory Council of the Higher Economic Court of Ukraine, PhD (Law)

UDC 347.122 Derivative suit as an instrument to protect corporate rights

Starting from May 2016, a new instru- shareholders to represent legal entity in ment to protect owners of corporate rights legal proceedings in order to give them from illegal actions and/or lack of actions an opportunity to sue on its behalf, de- of company’s authorities has appeared in spite the company’s authorities and its Ukrainian law. The essence of such in- majority shareholders unwillingness or strument is to authorize participants their resistance. Minority shareholders (shareholders) that own small stock of are able to cope with this role better than interests (shares) in the charter capital of others are. If authorities of legal entity the company (minority shareholders) to commit violations with the consent of bring a suit on behalf of the company majority shareholders or even on their against its management that is usually initiative, minority shareholders are in- controlled by majority shareholders and terested in and have «interest» to termi- acts in their interests. The problem when nate such violations and to overcome management and the company’s majority their negative consequences1. shareholders abuse their rights caused the The «place» of origin of the so-called necessity to develop respective legal «derivative suit» is traditionally consid- mechanisms to provide respect for minor- ered by the scientists as countries with ity shareholders’ rights as well as respec- common law. The establishment of such tive instruments of procedural influence institute is connected with the process of on company, the willpower of which, as dividing shares among a huge number of a rule, is identified with the willpower of shareholders when a single owner of the management appointed by the majority 1 shareholders. Попов Ю. Похідні (непрямі) позови: іно- земний досвід та українські перспективи. – As it is stated in juridical literature, Українське комерційне право. – 2012. – it is necessary to authorize minority № 12. – С.55–65.

№ 9/2017 205 Civil-legal sciences company disappears and the management Indus. Loan Corp.4 gave another very is concentrated in the hands of managers fitting phrase according to which the par- who from time to time act in their own ticipant who brings a derivative suit, interests, but not in the interests of share- «steps into corporation’s shoes». holders who appointed them.1 From the time when the institute of Thus, in 1855 the United States Su- derivative suit first appeared and until preme Court in its decision related to the today, it serves as an effective mecha- case Dodge V. Woolsey2 stipulated that nism to fight against management and «it is now no longer doubted, either in majority shareholders who violate inter- England or the United States, that courts ests of legal entity in countries such as of equity, in both, have a jurisdiction the USA, Great Britain and in most over corporations, at the instance of one countries of the European Union. In or- or more of their members;… if acts (ac der to support such conclusion, it is nec- tions of authorities – A. K.), intended to essary to analyze the latest court cases be done, create what the law denominate according to which the companies were as a breach of trust». As stated by the forced to pay shareholders significant decision, the notion «shareholder’s de- amounts of money in order to settle cas- rivative action» or «derivative suit» was es initiated by the minority shareholders not mentioned. This notion appeared against the company’s management. much later. In October 2011, the shareholders of According to the very fitting phrase Southern Peru Copper Corporation re- cieved 1,263 billion dollars from the com- of one of the leading American lawyers pany due to the fact that in 2005 it acquired in the field of corporate law Magnu- mining company Minerva México on son R. J., addressing the derivative suit – terms that the court considered as unfair.5 «abused minority received the mantle of In another particular suit brought by the company in order to fix violation shareholders to the Head of New Corp. caused by those who temporary control 3 in 2013, the court approved a settlement the fortune of the company». At the agreement according to which the com- same time, the case Cohen v. Beneficial pany agreed to pay compensation for 6 1 Follow the link http://lawmix.ru/ 139 million US dollars to the plaintiffs. commlaw/380/ // Журбин Б. А. Групповые и производные иски в судебно-арбитражной 4 Cohen v. Beneficial Indus. Loan Corp., 337 практике. U. S. 541, 548 (1949). 2 Dodge v. Woolsey, 59 U. S. 331 (1855) 5 Follow the linkhttps://www.lexisnexis.com/ http://caselaw.lp.findlaw.com/scripts/getcase.pl? legalnewsroom/corporate/b/blog/ navby=case&court=us&vol=59&invol=331 archive/2011/10/17/delaware-chancery-court- 3 Magnuson R. J. Shareholder Litigation. – enters-1–263‑billion-shareholders-derivative- 1992. § 8.01. Цитується за: Swanson C. Juggling suit-award.aspx?Redirected=true Shareholder Rights and Strike Suits in Derivative 6 Follow the link http://www.dandodiary.com Litigation: The ALI Drops the Ball. // MINN. /2013/04/articles/shareholders-derivative- L. REV. – 1993. – v. 77. – P.1339–1392 litigation/do-insurance-to-fund-entire-largest- (At P.1344) http://law.hamline.edu/workarea/ ever-139‑million-news-corp-derivative-suit- downloadasset.aspx?id=1533&libID=1537 settlement/

206 Yearbook of ukrainian law Derivative suit as an instrument Kot О. to protect corporate rights

In 2015, the Federal Judge of California and legally protected interests of the (the USA) approved a settlement agreement company that cannot be considered as for a case initiated by the derivative suit identical to the complex of individual brought by the shareholders of Hewlett legally protected interests of its share- Packard against management of the com- holders is stipulated by the law. In the pany. It was based on the unsuccessful ac- view of this, there was no definite an- quisition of British computer company Au- swer related to the right to apply to the tonomy Corp. As the result, Hewlett Pack- court with a derivative suit. ard agreed to pay compensation for 100 Later, court practice demonstrated million US dollars to the plaintiffs.1 different positions on this topic and the Speaking about Ukraine, the grounds abovementioned decision of the Consti- and trends to introduce legal mechanism tutional Court of Ukraine did not have for derivative suit have existed a long definite interpretation. For instance, p. time before the Law of Ukraine «On 11 of the Resolution of the Plenary As- Amendments to Certain Legislative Acts sembly of the Supreme Court of Ukraine of Ukraine Related to Investors’ Rights «On Court Practice of Corporate Dis- Protection» as of April, 7, 2015 No. putes Consideration» as of October 24, 289‑VIII (hereinafter – The Law On 2008, No. 13 states that the law does not Investors’ Rights Protection) was provide the right of the shareholder to drafted. It came into force on May 1, apply to the court to protect rights of the 2016, allowing the use of derivative suit. company, the court should define wheth The Decision of the Constitutional Court er the applicant enjoy the subjective sub of Ukraine No.18‑рп/2004 as of Decem- stantive right or legally protected inter ber 1, 2004 (case on the interest pro- est for protection of which the applica tected by law) can be illustrative in this tion was made, as well as to discover the regard. The findings state that theshare existence or absence of the fact of their holder may protect his right and legally infringement or challenging.3 protected interests through application Lack of legal regulation and unique to the court in case if they have been legal position on the issue made it im- infringed, challenged, unrecognized by possible for Ukraine to develop such an the company he is a member of, author effective mechanism to protect rights of ities or other shareholders of this com minority shareholders as derivative suit. pany.2 The same decision stated that the Thus, introduction of such institute in procedure of legal protection initiated by terms of legislation is considered by the anyone, including third persons, of rights business society as a positive step in the field of corporate relations protection. 1 Follow the link http://www.law360.com/ articles/665398/hp-reaches-100 m-securities- 3 Follow the link http://zakon3.rada.gov.ua/ settlement-over-autonomy-buy laws/show/v0013700–08 / Resolution of the 2 Follow the link http://zakon2.rada.gov.ua/ Plenary Assembly of the Supreme Court of laws/show/v018p710–04 /Decision of the Ukraine «On Court Practice of Corporate Constitutional Court of Ukraine No.18‑рп/2004 Disputes Consideration» as of October 24, 2008, as of December 1, 2004 No. 13

№ 9/2017 207 Civil-legal sciences

At the same time, there are many con- such a group, have a possibility to change ditions still not fully regulated or regulated their decision to be its member after the partially. This can potentially restrain the derivative suit has been initiated or when development of such progressive mecha- the decision to choose/appoint the repre- nism to protect rights of participants in sentative has been made etc. corporate relations and in some cases even Unfortunately, Article 28 of the EPC create conditions for abuse. of Ukraine remains silent on this. It only For instance, nowadays issues related provides certain rules for cases, when to the status of parties of the legal proceed- one company in legal proceedings has ings initiated by the derivative suit strives a few representatives, determining con for better regulation. According to the Law sensus omnium principle as an obliga- on Investors’ Rights Protection, the par- tory condition to exercise the right of the ticipant (shareholder) on behalf of the economic proceedings’ participant, company that according to its procedural namely, to withdraw from the suit, to status is a plaintiff applies the derivative reduce the amount of demands under the suit. The law stipulates certain restrictions suit, to amend the subject or the ground related to the range of participants (share- of the case, to enter into settlement holders) that enjoy the right to apply to the agreement, to refuse from appeal claim economic court on behalf of the company or cassation. Herewith, such joint agree- with derivative suit to compensate damage ment between the participants should be caused by illegal actions or lack of actions put in black and white. of the authorities of such company. The It is necessary to mention that estab- law grants such a right only to a partici lishing certain criteria and requirements pant (shareholder) of the company who to the owners of corporate rights that owns 10 and more percent of its charter enjoy the right to apply a derivative suit capital (ordinary shares). against authorities of the company is In addition to this, the Law on Inves- relatively widespread practice in other tors’ Rights Protection and the Econom- countries as well. For instance, in Aus- ic Procedure Code of Ukraine (hereinaf- tria, Bulgaria, Hungary, Sweden like in ter – the «EPC of Ukraine») do not Ukraine, the participant (shareholder) of reference the fact whether the group of the company who owns 10 % of the char- participants (shareholders) of the com- ter capital enjoys the right to apply to the pany who only jointly own 10 and more court with derivative suit. In Czech Re- percent of its charter capital (shares), public, Italy and Spain this census is enjoy the right to apply a derivative suit. equal to 5 %, in Germany the owner of Other questions remain unclear as the corporate rights who owns at least well, namely, how a group of such par- 1 % of the charter capital or part, the ticipants (shareholders) of the company nominal value of which is equal to should appoint their representative, how 100 000 euro enjoys the right to apply to his powers should be proved, whether the court with derivative suit against the participants (shareholders), who formed management of the company. In Japan,

208 Yearbook of ukrainian law Derivative suit as an instrument Kot О. to protect corporate rights it is necessary to own one share in order term that is not less than six months. In to do this. However, there is a minimum Germany, the interests (shares) should term for its ownership that is equal to six be purchased before the participant months. At the same time, Great Britain found out about infringement of his does not provide any requirements to rights. Unfortunately, in Ukraine the minimum amount of interests lawmaker did not provide protection (shares) that the participant (sharehold- mechanisms, except minimal amount of er) should own, thus, any participant shares in the charter capital of the com- (shareholder) of the company may initi- pany to own. Therefore, there is a chance ate such a suit. that institute of the derivative suit may Establishing certain criteria and re- be used with unfair purposes. quirements to the participants (share- Another not less interesting peculiar- holders) who enjoy the right to apply ity of Ukrainian legislation that needs with a derivative suit against the author- better regulation by the Law on Inves- ities of the company is aimed at provid- tors’ Rights Protection and EPC of ing management and majority owners Ukraine is the issue related to the defen- (shareholders) of the company with cer- dant in cases initiated based on deriva- tain guarantees to be protected from tive suits. abuse by unfair minority owners (share- According to the Law, the defendant holders) of the company who initiate in this category of cases is the authority derivative suit in order to achieve unlaw- (including the terminated ones) the suit ful enrichment. Such practice of legal on compensation of damages caused to blackmail is quite widespread in the the company by its actions or lack of world. It is commonly referred to as actions was brought up against. In addi- «strike suits». The main aim pursued by tion to this, such an authority is unable the participants (shareholders) of the to represent the company and to appoint company, applying with the derivative the representative to take part in the case suit against its management, is not the on behalf of the company (p.10 of Arti- restoration of rights and/or compensa- cle 28 of the EPC of Ukraine). tion of damages to the company, but re- At the same time, for the reasons un- ceiving bailout from the legal entity to kwown the lawmaker left without atten- terminate legal proceedings. There are tion a range of key issues that have influ- even categories of such «moneymakers» ence on financial and procedural essence deliberately purchasing shares of the of claim against the authority. In particu- company in order blackmail it if they see lar, the law does not provide against the ground for such an unlawful action. which authorities of collegiate authority Different legal systems provide dif- of the company exactly (supervisory ferent mechanisms to prevent such abus- board, board of directors, head office es. For instance, in Japan, the sharehold- etc.) the suit to compensate damages er who applies derivative suit should caused by the certain decision of such own shares of the company during the collegiate authority should be brought.

№ 9/2017 209 Civil-legal sciences

There is particularly topical and difficult It is fully understandable that the issue in cases when the decision was tak- lawmaker kept in mind the location of en by the collegiate authority and the vot- respective company on behalf of which ing occurred without unanimous consent. the suit is applied. But, the version of the From the practical point of view, there legal norm itself (p.7 of Article 16 of the is another important peculiarity, namely EPC of Ukraine) does not stipulate the providing legal evaluation of the situation possibility of certain conflict to appear when the suit was addressed to the author- while defining jurisdiction in case when ity that acted to perform decision of an- a participant (shareholder) who was au- other body of the company (for instance, thorized to do this and who is intent to when suit to compensate damages was apply with a suit on behalf of the com- brought to the Chairman of the Board of pany is also a legal entity. the company who signed agreement to It is necessary to mention that neither execute the respective decision for the Law on Investors’ Rights Protection nor Supervisory Board of the company etc.). the EPC of Ukraine stipulates the proce- Another issue that is worth paying dural status of other participants (share- attention to is one related to the subject holders) of the company who do not sup- of the derivative suit. According to the port the suit of the participant (share- legislation, it can be a claim to compen- holder) of the company who applied it sate damages caused by the illegal ac- against its authority. tions or lack of actions of the authorities. Therefore, taking all the aforesaid Taking into account all the above men- into consideration, it is safe to say that tioned, it is obvious that in cases initi- Ukraine made only its first real legal ated at the result of the derivative suit all steps to recognize mechanism of right four components of the civil violation on derivative suit making restrictions to are subject to be proved: illegal actions, the circle of participants (sharehold- guilt, negative consequence (damag- ers) who enjoy the right to bring a de- es) and casual relations between illegal- rivative suit against the company’s au- ity and damages. thority that caused damages to it. Nev- Moreover, the law does not regulate ertheless, the stated facts do not prove definitely the court competency of cases that eventually such range and the sub- initiated at the result of the derivative ject of the suit cannot be amended sig- suits. Thus, according to the provisions nificantly widening it. If this issue will of Article 12 of the EPC of Ukraine, the get regulated legislatively this will em- disputes between the company and its phasize the practical importance and authorities are under jurisdiction of eco- value of similar way to protect interests nomic courts. Moreover, according to of the participants of corporate rela- Article 16 of the EPC of Ukraine such category of disputes determines exclu- tions. sive jurisdiction – according to the loca- Published: Вісник Вищого господарського tion of the legal entity. суду України. – № 5. – 2016.

210 Yearbook of ukrainian law ENVIRONMENTAL, ECONOMIC AND AGRICULTURAL LAW

A. Getman, Doct. Sci. (Law), Prof., Vice- Rector for Scientific Work, Yaroslav Mudryi National Law University

V. Zuiev, Cand. Sci. (Law), Assoc. Prof., Head of civil law department, University of Customs and Finance

UDC 349.6 FORMATION OF ECOLOGICAL AND LEGAL SCIENCE: RESOURCE ASPECT AND ITS INTEGRATION PROBLEMS

A general problem statement. The ing and differentiation, while on the current stage of environmental law elab- other hand – to respond adequately to the oration is characterized by two opposite, changing social and economic factors, although interrelated, trends: the science emergence of new legal regulation ob- of environmental law perceives the need, jects and their impacting factors, fulfill- on the one hand, to stop expansive de- ment of environmental policy objectives velopment and provide internal structur- of different levels (international, state,

№ 9/2017 211 Environmental, economic and agricultural law public, industrial) and orientation (inter- vironmental safety. In this sense, envi- nal or external). Nonetheless, being in- ronmental legal science as a component clined to consistency, the environmental of judicial science is of great impor- law science cannot but be sensitive to tance to the public life. present challenges and is evolving in Recent research and publications accordance with the needs of the society analysis regarding formation of environ- and the call of the times, involving an mental and natural resources laws, their increasing number of new phenomena in place in the system of environmental its sphere of influence. legal science and systemic structural As researchers emphasize, from time links is a matter for perpetual scientific to time any science reaches the level inquiry. The prospects and areas of fur- where it has to rethink its own essence ther development of environmental legal in order to continue its evolution. This science are constantly in the focus of the rethinking should be based, primarily, on leading research and educational judicial a critical evaluation of a science’s fun- centers of our state and individual re- damental principles and validation of its searchers, in particular А. Getman2, methodological efficiency. Where this is 2 the case, relevant changes of its content Гетьман А. П. Витоки науки екологічно- 1 го права України / А. П. Гетьман // Проблеми may be expected . законності. – 2009. – Вип. 100. – С. 165–175; The European democratic commu- Ґенеза науки екологічного права: історичний nity presents Ukraine with a necessity аспект // Збірник наукових праць за резуль- to fulfill a broad range of political, so- татами Міжнародної науково-практичної конференції «Актуальні проблеми реформу- cio-economic, cultural and educational, вання земельних, екологічних, аграрних та and other kinds of «home tasks»; bring- господарських правовідносин в Україні». – ing the national legislation require- Хмельницький : Вид-во Хмельниц. ун-ту ments in line with international stan- упр. та права, 2010. – С. 196–198; dards; and conducting scientific, in Гетьман А. П. Ретроспектива розвитку еко- логічної правової науки / А. П. Гетьман // particular legal, research in various Держава і право у світлі сучасної юридичної social spheres. The research in question думки : зб. наук. праць на пошану акад. includes considerable scientific efforts Ю. С. Шемшученка. – К. : Юрид. думка, made in environmental law with ac- 2010. – С. 342–347; Гетьман А. П. Витоки еко- логічного законодавства в наукових працях count of domestic approaches to rule- учених-юристів / А. П. Гетьман // Бюлетень making and foreign practices of regulat- Міністерства юстиції України. – 2012. – ing relations in the sphere of natural № 11 (133). – С. 38–43; Гетьман А. П. Доктри- resource utilization and reproduction, на науки екологічного права: ґенеза теоре- environment protection, promoting en- тичних досліджень еколого-правових про- блем у ХХ ст. / А. П. Гетьман // Право Украї- ни. – 2014. – № 12. – С. 143–154; 1 Миколенко О. І. Суб’єктивні фактори, Getman A. Environmental and legal science: які негативно впливають на розвиток науки current state and prospects of development / адміністративного права / О. І. Миколенко // A. Getman // Yearbook of Ukrainian law : coll. Актуальні проблеми держави і права. – of scientific papers / responsible for the issue 2012. – № 68. – С. 453–458. – С. 455. O. V. Petryshyn. – 2016. – № 8. – P. 259–267.

212 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems

Е. Оrendarets1 and other scientists. In the while justifying new legal phenomena, aspect of forming an empiric foundation are squeezing them into the ready-made for the problem range study, it is neces- parameters of legal ideas and approach- sary to mention systemic works by such es without a cardinal transformation of scholars as V. Аndreitsev, V. Yermolen- their methodological and worldview ko, М. Кrasnova, N. Маlysheva, component. This situation results in le- М. Shulha and others. However, despite gal thought stagnation, immobilization, numerous research works, the said prob- conservative-regressive opinions and lem issues largely remain debatable. conclusions, the so-called «rope-pull- In light of the foregoing, the main ing» between the branches of law. It paper objective is a theoretical analysis makes sense that a famous British re- of the current state of environmental law searcher of legal philosophy Dennis development, formation of the next stage Lloyd emphasized the changeability, of natural resource relations, their expan- dynamic nature of legal thought, con- sion and transformation into environ- cluding that it is difficult to quarrel with mental resource management with the the statement that the idea of law made aim to respond adequately to differen- an invaluable contribution into the hu- tiation and complication of structural man culture. The author believed that and systemic links. political instability of the contemporary The discussion of the material. world made it clear that the humanity The evolution and dynamics of environ- civilization’s survival would depend mental legislation, natural resource largely on its ability to respond ade- laws is largely determined by the glob- quately to new growing demands made al and European processes and requires on the essential concepts. He was sure a continuous revision and upgrading in that the agenda of the day should in- order to cover gaps, respond timely and clude the idea of a more creative ap- adequately to modern challenges and proach to law than ever before2. value paradigms change etc. One of the On the other hand, one has to agree problems is development of traditional that the changing worldview approaches branches of law and lines of scientific require certain revision of traditional research, which in turn raises an issue areas of research, in particular natural of the content and structural-systemic resources law. It is no coincidence that links of these legal branches. It should the passport of the scientific discipline be noted that some research works are 12.00.06, among the research areas in marked by a scientific dissonance, when the field of natural resources law, lays an researchers, unable to withdraw from emphasis on objective and subjective the conventional rules and standards prerequisites for forming, developing,

1 Орендарець О. О. Розвиток науки еколо- 2 Ллойд Д. Идея права / Деннис Ллойд ; гічного права : автореф. дис. … канд. юрид. пер. с англ. М. А. Юмашева ; науч. ред. наук : 12.00.06 / Орендарець Олена Олексан- Ю. М. Юмашев. – Изд. 5‑е. – М. : Книгодел, дрівна. – К., 2015. – 16 с. 2009. – 376 с. – C. 349.

№ 9/2017 213 Environmental, economic and agricultural law and functioning of natural resources law in these branches. According to the au- as an independent branch of the national thor, difficulty of defining the subject of legal system of Ukraine and such sub- energy law lies exactly in the fact that the branches as: energy law, land resource Russian system of law already contains law, forestry law, water resource law, primary and specialized branches of law, mineral resources utilization law1. Al- formed as its elements, which comprise though referring energy law to the block the most significant and well- structured of natural-resource branches is still de- spheres of the social reality2. However, as batable, it demonstrates a trend of ex- opposed to the approach established in the panding the scientific cognition subject Ukrainian legal science, О. Gorodov of natural resources law, which is to not maintains a position, according to which only regulate a rational use of certain the subject matter of energy law pertains natural objects, but also provide incen- to the topics of scientific discipline tives for their preservation, restoration, 12.00.07, and this point of view is quite replacement etc. common for the Russian legal system. In this case, an energy law example One might jump to a conclusion that will be most illustrative for demonstration including the area of energy law into the of contradictions occurring in the course passport of discipline 12.00.06 in of the Ukrainian science evolution. Thus, Ukraine became a clear-cut solution, first of all, it is worthwhile to agree with which would improve the standard and the opinion of a Russian researcher orientation of scientific research works, О. Gorodov who stresses that determining their implementation, methods of teach- the domain of any branch of law, espe- ing academic disciplines and so on; how- cially a complex one, is always a product ever, in practice this does not reflect the of long discussion in judicial science and actual situation. Thus, at the faculty of never produces an absolute unity of opin- law of Taras Shevchenko National Uni- ion as to understanding of hierarchical versity of Kyiv, the Master training pro- links between the subjects of various gram includes the course of «Enegry branches of law within the legal system Law», which is structurally divided as a whole. The unity of opinion is baffled among three departments of: environ- by numerous factors, including existence mental law, administrative law, and eco- of priority branches of law such as civil nomic law, with the department of envi- and administrative law. They are built ronmental law delivering a module of according to a model of well-defined do- «Environmental legal problems in pow- mains and a finite set of methods of legal er engineering»3. The situation is some- impact on social relations, incorporated 2 Городов О. А. Введение в энергетическое 1 Паспорти спеціальностей : затв. поста- право : [ учеб. пособие ] / О. А. Городов. – М. : новою президії ВАК України від 8 жовт. Проспект, 2015. – 224 c. – C. 7. 2008 р. № 45–06/7 / Атестаційний процес: 3 Балюк Г. І. Енергетичне право України. нормативна база // Бюлетень ВАК України. – Модуль 1: Енергетичне право України. Еко- 2009. – № 1. – С. 6–19. лого-правові проблеми в енергетиці : робоча

214 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems what different in the National Mining It is noteworthy that despite a high University, where the said discipline is standard of research carried out in a va- taught at the department of civil and eco- riety of scientific domains, and a tribute nomic law. In particular, the developed to scientists who have formed scientific educational and methodological materi- and methodological basis for their sci- als for the discipline of «Energy Law»1 entific disciplines, the activity of experts specify that the course involves a study in various sciences leaves its stamp on of the following subjects: a system of the their approaches to solving scientific energy law of Ukraine; energy law prin- problems, sometimes provoking one- ciples; organizational-legal framework sidedness. Nevertheless, attempts to in- of power engineering activity; public clude environmental legal relations into administration, supervision, and legal a system of administrative, civil, or eco- regulation of fuel-power complex func- nomic law are forlorn. tioning; general provisions of alternative As an illustration of the above men- fuels legislation; while its basic courses tioned, one can cite, for instance, a thesis include the theory of state and law; con- from a doctoral dissertation defended in stitutional law of Ukraine; administra- 2010 by R. Melnyk who, in the course tive law; civil law; and economic law. of his research, concluded that relations Moreover, it is explicitly stated that, de- developing in the sphere of environmen- pending on the dominating legal rela- tal protection are mostly of public-legal tions, energy law can be regarded as nature. That is why their security and a sub-branch of business law. Yet the protection is performed by a special topic of «System of sources» does not group of public administration entities, even mention any regulatory acts of the the activity of which in the sphere is environmental legal field. regulated by the norms of general ad- Therefore, the cited example testifies ministrative law and legal standards of to the fact that a delay in creation of the sub-branch of special administrative theoretical-methodological and scientif- law i.e. environmental law. The content ic-legal foundation for the new legal of this law, considering a principal dif- phenomena within the framework of the ference between the objects of environ- science of environmental law paves the mental relations, can be divided into sub- way for scientific expansion with regard branches of law of the second level: land to studying not only these phenomena, law, water law, forestry law, faunal law, but also the established system of law atmospheric law, waste management and its division into branches. law, landscape law, environmental safe- 2 навч. програма / Г. І. Балюк, Т. Г. Ковальчук, ty law . О. В. Сушик. – К. : Київ. нац. ун-т ім. Тараса Шевченка, 2012. – 47 с. 2 Мельник Р. С. Система адміністратив- 1 Кострюков С. В. Навчально-методичне ного права України : дис. … д-ра юрид. наук : забезпечення дисципліни «Енергетичне пра- 12.00.07 / Роман Сергійович Мельник. – Х. : во» / С. В. Кострюков. – Д. : НГУ, 2015. – Харк. нац. ун-т внутр. справ, 2010. – 417 c. – 213 с. – C. 6. C. 348.

№ 9/2017 215 Environmental, economic and agricultural law

In fact, the author negates almost in revision of the existing paradigm of a hundred-year history of separating legal legislation development is ecolo- from the relations of both private- and gization of laws on ecological use of public-law nature of special relations, natural resources»2. At the same time, which were determined by their legal she is reasoning that «ecologization of regulation subject – first, natural resourc- laws on economical use of natural re- es relations, and then environment man- sources should be carried out not with- agement ones – with their internal trans- in the present resource-oriented ap- formation and complication, and further proach, which is based on disintegration development on their basis of environ- of legal standards by including them mental law in its diversity of kinds and into specialized codes (Water, Land, internal differentiation. Forest etc.), nor by arranging them in Similar trends are observed in eco- separate codified acts, oriented mostly nomic law. Thus, G. Dzhumageldiieva in to provide environmental protection, her monograph «Legal regulation of nat- but rather by «coming out in a unified ural resources economical use» points front», basing on the unified principles out: «Narrow» codes (legislation), includ- and approaches, included in the Eco- ing natural-resource ones, were formed in nomic Code of Ukraine»3. In fact, pro- the absence of an economic code and visions of the Economic Code of economic law of Ukraine. Impossibility Ukraine are virtually ignored, specifi- of their inclusion into the then formulated cally its paragraph 3, Part 1, Article 4, branch-related codes rendered natural- which states clearly that relations per- resources legislation an air of indepen- taining to land, mining, forestry, and dence and self-sufficiency, which was water laws, relations concerning the use reflected in study programs for training and protection of plant and animal lawyers. With adoption of the Economic world, territories and objects of nature Code of Ukraine the situation changed: conservation reserve, and atmospheric there appeared an opportunity to incorpo- air, do not pertain to the subject of the rate into economic law, which includes said Code regulation. That is to say, the Code, a considerable array of natural- another attempt is made to extend arti- resource legal standards, in the first in- ficially, idiomatically speaking, by hook stance those regulating natural resource or by crook, the subject of regulation, utilization in economic activity»1. and to intervene into the related branch- Although in summation, the author es of law. Still less convincing an «edu- is more reserved in her statements, re- cational effort» is a training guide titled marking that «one of the major trends «Administrative land law of Ukraine»4.

1 Джумагельдієва Г. Д. Правове регулю- 2 Ibid. – C. 178. вання господарського використання природ- 3 Ibid. – C. 178–179. них ресурсів : [монографія ] / Г. Д. Джума- 4 Бевзенко В. М. Адміністративно-зе- гельдієва. – К. : Юрид. думка, 2014. – 202 с. – мельне право України : навч. посіб. / C. 58. В. М. Бевзенко. – К. : Алерта, 2015. – 180 с.

216 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems

The said guide attempts to introduce mental relations, the structure of soci- into the study process and the language ety-nature interaction, and permanent of science such terms as ’administra- differentiation of a legal regulation ob- tive-land law’; ’relationship at admin- ject. On the other hand, despite the fact istrative-land law’; object of adminis- that environmental law is a relatively trative-land legal relations’; ’adminis- new legal branch, connected largely trative discretion in administrative-land with economic, social, and technologi- legal relations’ and the like. Thus, the cal changes and being very sensitive to author of the training guide, in particu- them, its drawing new relations into its lar points out that in fact administrative orbit sometimes induces criticism in law as if «penetrates» other branches of legal science, which in turn results in law, «putting in action» such legal attempts to squeeze the emerging rela- branches as civil law, economic law, tions into the Procrustean bed of «tra- environmental law, land law, financial ditional» categories of administrative, law, criminal law, criminal procedure civil, or economic science instead of law etc.1. To our mind, after this kind of giving them independence, thus provid- «penetration», the legal science space ing an impetus to their acquiring a new may be deprived of the very mentioning qualitative coloring. of most of its law and legislation An example illustrative enough is branches, except the administrative one. a proposal to impose an atmospheric In fairness, it must be said that re- precipitation tax, which was put for- searchers of environmental legal do- ward by V. Yureskul, who believes that main also provide grounds for that kind introduction of a tax on rain precipita- of interference by disputing incessantly tion would provide for a more effective about interrelation of environmental, planning of rainwater treatment and land, and natural resource law, instead utilization. The author in particular re- of forming a well-built system for regu- marks that skeptics refer this tax to lating environmental legal relations, a category of «taxation marasmus» their hierarchical structure and group- mockingly suggesting that alongside ing. On the one hand, this is an objec- with the rain tax, taxes on clean air, tive process, a response to new legal wind, and also dumplings, pork fat and phenomena and challenges, which over other taxes should be imposed. How- the recent decades has come into the ever, such an economic tool of rain wa- focus of attention of the entire human- ter management already exists and is ity and our state in particular. Conse- increasingly applied, for example, in quently, expansion of the sphere of en- Great Britain, Canada, Lithuania, Ger- vironmental law regulation becomes an many, Poland, the USA, Sweden and imperative of the time and the result of other countries. Its application stimu- evolution and complication of environ- lates introduction of elements of the so-called ’green infrastructure’, which 1 Бевзенко В. М. Адміністративно-зе- мельне право України. – С. 5. imitates natural hydrological processes,

№ 9/2017 217 Environmental, economic and agricultural law including rain gardens, green roofs, with other components of the life sphere parks, bio-marshlands, porous side- (biosphere), provided all problems of walks, and rain water collection for fu- sustainable development are solved2. ture use1. However, he was critical about an ap- Without going into further debate on proach when the literature on natural feasibility, purposefulness and timeli- resources law is focused solely on ana- ness of the above-mentioned proposal, lyzing resource codes and laws, as well one cannot but mention that it can serve as processes of elaborating natural re- as an explicit trend towards expansion sources legislation based on traditional of the subject of regulation of environ- natural objects, while ignoring the new mental relations and their transforma- ones, which are increasingly involved tion. Another, even more convincing, into the sphere of environmental legal proof of the said trend relevancy and regulation, taking biological and genetic urgency was obtained during the round- natural resources as an example. table discussion «Natural resources law The need for expanding environmen- within the legal system of Ukraine: his- tal legal regulation was emphasized by tory, modernity, prospects», held on Oc- N. Маlysheva who in her report «Natural tober 30–31, 2015 at the National Acad- resource law must finally grow wings» emy of Legal Sciences of Ukraine. stated that in the long run the natural- As V. Andreitsev, for instance, pointed resource potential of the planet of Earth out, to speak about the independent na- will be depleted and the humanity will ture of natural resources law means, as have to look for new sources of energy, a matter of fact, to distort the objects of drinking water, food and the like. It means that we should look ahead, pre- that law which is likely to result in break- dicting future challenges proactively. ing their dialectic unity with landscapes New opportunities, although understud- and ecosystems, violation of safe condi- ied yet, are opened by outer space and tions for conservation and protection, its resources, which tentatively speaking including prevention of negative impact can be called potential natural resources on the human vital environment. The as distinct from actual natural resources scholar further argues that the strongest that are well explored by man and lay the social, economic, and environmental ef- foundation for the human vital activity3. fects can be achieved in case of harmoni- ous combination of natural resources 2 Андрейцев В. І. Перспективи розвитку природноресурсового права в системі еколо- 1 Юрескул В. О. Щодо податку на атмос- гічного права України / В. І. Андрейцев // ферні опади / В. О. Юрескул // Правове жит- Природноресурсне право в системі права тя сучасної України : матеріали Міжнар. України: історія, сьогодення, перспективи : наук.‑практ. конф., присвяченої ювілею зб. матеріалів круглого столу, 30–31 жовт. акад. С. В. Ківалова (16–17 трав. 2014 р., 2015 р. / за заг. ред. М. В. Шульги. – Х. : Обе- м. Одеса) : у 2 т. Т. 2 / відп. ред. В. М. Дрь- ріг, 2015. – С. 8–12. – С. 9. омін. – О. : Юрид. л-ра, 2014. – С. 511–513. – 3 Малишева Н. Р. У природоресурсного С. 511. права мають нарешті з’явитись крила /

218 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems

In conclusion the researcher makes in 2005. The scholar believes that mod- a point that environmental issues of ern natural resources law is character- space activity, specifically those related ized by a number of specific and unique to environmental aspects of exploration principles of legal regulation that testify of other celestial bodies’ resources, to its independence3. should be placed in the focus of legisla- At the same time, P. Kulynych stress- tors’ attention in the course of the initiate es that the fact of natural resources law systematizing of an appropriate branch formation has not been proved, as long of law. as there is no proof of forming the sub- In this context, one should keep in ject of natural resources law as a sepa- mind the fact that the present situation is rate branch of the Ukrainian legislation. complicated by an ardent scientific de- He also emphasizes that in practice land, bate on the independence and place of water, forestry, mining and other indi- natural resources law both in the legal vidual-resource relations are established, science as a whole and its environmental their legal regulation being provided in legal part. For example, V. Yermolenko full by the relevant individual-resource considers that complication of the mod- branches of law. Whreas in case of rela- ern system of natural-resource relations, tions arising in connection with ecosys- each individual resource sphere of which tem structures their legal regulation is is based on a separate codified act, causes provided by the environmental law methodological difficulties of combining branch4. land, water, mining and other indepen- M. Krasnova also expresses her stand- dent branches of law even within natural point in relation to natural resources law resource law, to say nothing of environ- objects, stating that sometimes researchers, mental law1. Similar positions are also for no good reasons, refer to the sphere of maintained by I. Каrakash, under whose natural resources law such natural objects editorship virtually a single manual of as forests, flora and fauna, atmospheric air, the country’s independence period, titled «Natural resources law»2, was published бекова, Л. О. Бондар, Н. С. Гавриш та ін. ; за ред. І. І. Каракаш. – К. : Істина, 2005. – 374 с. Н. Р. Малишева // Природноресурсне право 3 Каракаш І. І. Щодо принципів сучасно- в системі права України: історія, сьогодення, го природноресурсового права України / перспективи : зб. матеріалів круглого столу, І. І. Каракаш // Природноресурсне право в си- 30–31 жовт. 2015 р. / за заг. ред. М. В. Шуль- стемі права України: історія, сьогодення, ги. – Х. : Оберіг, 2015. – С. 132–134. – С. 132. перспективи : зб. матеріалів круглого столу, 1 Єрмоленко В. М. Природноресурсне 30–31 жовт. 2015 р. / за заг. ред. М. В. Шуль- право в системі права України / В. М. Єрмо- ги. – Х. : Оберіг, 2015. – С. 79–82. ленко // Природноресурсне право в системі 4 Кулинич П. Ф. Природноресурсне право права України: історія, сьогодення, перспек- як юридичний феномен: полемічні аспекти / тиви : зб. матеріалів круглого столу, 30–31 П. Ф. Кулинич // Природноресурсне право жовт. 2015 р. / за заг. ред. М. В. Шульги. – Х. : в системі права України: історія, сьогодення, Оберіг, 2015. – С. 65–67. – С. 65. перспективи : зб. матеріалів круглого столу, 2 Природноресурсове право України : 30–31 жовт. 2015 р. / за заг. ред. М. В. Шуль- [навч. посіб. для вищ. навч. закл.] / Е. А. Бав- ги. – Х. : Оберіг, 2015. – С. 111–113. – С. 113.

№ 9/2017 219 Environmental, economic and agricultural law natural conservation reserve, recreational, It seems likely that one of the main health and leisure areas, as well as the eco- reasons for the scientific discussion was logical network, biological diversity, ozone provided by a paper, written by N. Ka- layer, climate, which in fact are natural zantsev, under the title of «Natural re- complexes, ecological free goods, which sources law and its bounds of an inte- in accordance with regulatory require- grated branch of law», in which the sci- ments are to be protected and reproduced entist substantiates the ideas of separation in the first place. This approach is accept- of natural resources law as a complex able only on condition that natural resourc- legal branch having a composite structure es law is integrated into environmental that incorporates such independent law, despite the fact that the system of legal branches of law as land, water, mining, standards, meant to protect and reproduce forestry and other individual-resource natural resources and ecosystems, forms laws3. This viewpoint was met with con- environmental law1. siderable degree of approval in the legal A direct evolutionary connection, in- circles of the time because it facilitated terrelation and continuity of natural-reunification of approaches to utilization of source and environmental relations were various resources, standardizing them, also noted by М. Shulga and L. Leiba, and bringing individual branches of natu- who indicate that the formation of natural resource legislation to a different lev- ral resources law dates back to the 1980s, el – that of an integrated branch of law – when the standards of that law used to which opened up new scientific horizons. regulate the then emerging environmen- However, emphasizing the method- tal relations as well. The completeness ological significance of the paper in of that branch of law was not doubted by question, it is hard to recognize the fact anyone, being regarded as an indepen- that for about 50 years the situation has dent sphere. Later on (in the 1990s), an remained unchanged, and that the forma- advantage was given to environmental tion of environmental legal science law, which became a priority, encom- should be based on the same principles passing natural resource relations too2. as those at the time of the publication. The said standpoint was characteristic of 1 Краснова М. В. Сучасні реалії природ- a certain methodological stage of legal норесурсного права України / М. В. Красно- ва // Природноресурсне право в системі пра- thought evolution. It has played an im- ва України: історія, сьогодення, перспективи portant part; however today it does not : зб. матеріалів круглого столу, 30–31 жовт. comply with the modern worldview con- 2015 р. / за заг. ред. М. В. Шульги. – Х. : Обе- cepts and legal reality, having lost its ріг, 2015. – С. 105–106. strategic role in development of science. 2 Шульга М. В. До питання про природ- норесурсове право / М. В. Шульга, Л. В. Лей- ба // Природноресурсне право в системі пра- 3 Казанцев Н. Д. Природноресурсовое ва України: історія, сьогодення, перспекти- право и его пределы как интегрированной ви : зб. матеріалів круглого столу, 30–31 отрасли права / Н. Д. Казанцев // Вестник жовт. 2015 р. / за заг. ред. М. В. Шульги. – Х. : Московского университета. Серия 10 «Пра- Оберіг, 2015. – С. 208–211. – С. 209. во». – 1967. – № 6. – С. 3–9.

220 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems

The same concepts have been main- its ranking low in development strategy. tained by both N. Маlysheva and On the contrary, environmental factors V. Nepyivoda who held that in fact there should affect the economy’s structuring is every reason to regard the natural-re- and modernization»2. source approach as an attempt to con- It is these factors, which justify, for sider legal regulation of social relations instance, entrenchment of the environ- by taking to pieces the object of these mental legal nature of the abovemen- relations i.e. the environment. The ap- tioned energy law. Obviously, a further proach fitted the level of knowledge of transformation of natural resources law those days, providing a certain standard into resource one is promising, its task for legal regulation of relations concern- being regulation of relations pertaining ing separate parts of the whole (indi- to natural objects, products of their uti- vidual natural resources). Yet, the effi- lization, and natural phenomena; setting cacy of the natural-resource approach, requirements for resource economy; in- which overemphasizes the difference troduction of per unit cost of resources between the integral parts of the environ- and other measures. Presently, a similar ment, cannot go beyond the limits set by situation is observed in subsoil legisla- a globalized anthropogenic impact, or tion that regulates the use of technogen- environmental changes. In other words, ic deposits of mineral resources, which, it is unable to offer adequate means of in effect, have lost their status of natural affecting certain properties of the whole objects, but still possess a value to be (in this context – global environmental preserved. The same is true for the waste problems), since it is impossible to at- treatment sphere, where wastes are in- tribute them to mere qualities of compo- creasingly frequently seen exactly as nent parts of the whole or their interrela- a potential source of resource and nature tion1. preservation. It makes sense that А. Getman, while Using the term of ’resource con- analyzing the concept of environmental sumption’ as a synonym of ’environmen- law and legislation development, indi- tal management’ is gaining currency in cated that: «Considering the environ- legal literature. Thus, for instance, mental policy contents from a perspec- a Russian lawyer I. Kalinin in his work tive of specific results of the declared «Legal regulation of resource consump- actions implementation, it is sad to rec- tion» makes it clear that the two notions ognize that nature-consuming, energy- correlate, specifying that the book is and raw-material-intensive type of the country’s current economy determines 2 Гетьман А. П. Концепція розвитку еко- логічного права та законодавства як переду- 1 Малышева Н. Соотношение природоре- мова забезпечення національної екологічної сурсного права и права окружающей среды: політики / А. П. Гетьман // Вісник Південно- новый взгляд на старую проблему / Н. Ма- го регіонального центру Національної ака- лышева, В. Непыйвода // Государство и пра- демії правових наук України. – 2014. – № 1. – во. – 2007. – № 9. – С. 31–40. – С. 38. С. 107–114. – С. 111.

№ 9/2017 221 Environmental, economic and agricultural law a continuation of his work on a study of are environmental resources, and we the characteristic features of legal regu- put environmental meaning into their lation of relations pertaining to resource understanding – that the natural envi- consumption. An attempt is made to de- ronment as an environmental resource termine both systemic nature and speci- possesses its integrality and self-regu- ficity of legal mediation of social rela- lation2. tions that make the subject of natural Consequently, the researcher in fact resources law and standards. While his makes the point that environmental rela- first book (Natural resources law. Con- tions should include not only issues of ceptual issues. – Тоmsk, 2000) was de- determining the natural resource status, voted to general issues – the subject, procedure and conditions of their exploi- method, principles and other basic no- tation, but also a number of related pro- tions and legal phenomena of the natural cesses, in the first place, energy and ma- resources law domain, the cited paper terial, associated with the processes of highlights the specific features of regula- consumption and economic manage- tory controls over relations pertaining to ment. exploitation of individual natural re- In the Ukrainian environmental legal sources1. science, the abovementioned viewpoint Therefore, with regard to the afore- was supported by professor М. Кrasnova said, one may state that at the current in the context of defining natural re- stage, environmental legal thought sources law and argumentation of inter- needs new models and approaches to related and interdependent character on determining the system of environmen- nature-protection, nature-resource, and tal law, its subject matter and system- anthropo-protection relations within the forming principles. In that respect, it is framework of the unified system of en- worthwhile to cite the work «New Ap- vironmental law3. proach to Environmental Law» by It should be noted that the idea of a Chinese researcher Lu Zhongmei who extending the ’resource’ category is suggests quite an interesting idea, argu- not new in itself. Thus, a fairly well ing that natural resources, from the eco- known fundamental work by N. Re- logical perspective, are an indispens- imers «Ecology (theory, laws, rules, able condition for the human existence principles and hypotheses)» contains and development. Due to energy, mate- a special chapter titled «Resourcolo- rial, and information exchange, they form an ecological system of co-exis- 2 Цит. по: Хунянь Л. Концепт и взгляды на природу в экологическом праве / Лю Ху- tence and co-wellbeing with the human- нянь // Государство и право. – 2010. – № 3. – ity. Considering this, natural resources С. 90–99. 3 Краснова М.vВ. Методологічні засади 1 Калинин И. Б. Правовое регулирование сучасного екологічного права / М. В. Крас- ресурсопользования : [ учеб. пособие] / нова // Вісник Київського національного уні- И. Б. Калинин. – Томск : Изд-во науч.‑тех. верситету імені Тараса Шевченка. Юридич- лит., 2001. – 314 c. – С. 8. ні науки. – 2012. – № 92. – С. 5–8. – С. 7.

222 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems gy», which analyzes the matters of bal- and tasks. Thus, implementation of the ancing the nature, economy, natural said provisions has led to the situation resources, and the restrictions on their when the Law of Ukraine «On Environ- use1. mental Protection» in its Part IX «Regu- Economic literature substantiates the lation of the Utilization of Natural Re- existence of resource economy as a sci- sources» contains only three articles ence that forms a functional mechanism (38-40), namely: «General and Special in the system of social sciences, func- Utilization of Natural Resources», «Nat- tions and interacts with economics, ecol- ural Resources of National and Local ogy, resourcology etc., providing re- Significance», and «Compliance with search, organization, and control of ex- Environmental Requirements in Utiliza- ploitation of all kinds of resources. It has tion of Natural Resources». Most re- been observed that the current stage of searchers regard this Law as a central, Ukraine’s transformation, which also systemically important act of the envi- shows elements of crisis recovery, re- ronmental legislation, around which its quires an active development and imple- source framework is built, the provisions mentation of resource utilization direct- thereof being critical for the potential ly at production units. As for scientific codification of environmental law. research on resource economy, for the At the same time, the Economic time being there are some unsolved Code of Ukraine devotes six articles problems, and namely: an ill-defined (148–153) of its Chapter 15 «The Use of system of economic categories in the Natural Resources in the Sphere of Eco- field of resource economy; lack of works nomic Activity» to regulation of natural that explore an economic mechanism of resource management by economic enti- resource saving in a transition economy ties, specifically: «Peculiarities of Legal and its place in the structure of the eco- Treatment of the Use of Natural Re- nomic mechanism; underdeveloped sources in the Sphere of Economic Ac- strategy of economic mechanism forma- tivity», «Use of Natural Resources by tion; and the institutional-legal basis for Business Entities», «Use of Natural Re- resource utilization needs further im- sources on the Ownership Right», «Use provement too2. of Natural Resources on the Right of Economic categories are reflected in User», «Rights of Business Entities as to legal regulation, although in a somewhat the Use of Land Resources», «Obliga- distorted form in terms of its objectives tions of Business Entities Pertinent to the Use of Natural Resources». 1 Реймерс Н. Ф. Экология (теории, законы, правила, принципы и гипотезы) / Н. Ф. Рей- It should be emphasized that with an мерс. – М. : Журнал «Россия Молодая», 1994– approach, when it is the business entity 367 с. – С. 196. and its activity that is taken as a basis for 2 Ресурсономіка: теоретичні та прикладні legal regulation, without considering the аспекти / Б. М. Андрушків, Ю. Я. Вовк, regulation objective, its value and world- І. П. Вовк та ін. – Тернопіль : Терно-граф, 2012. – 456 с. – С. 9. view component is lost, affecting nega-

№ 9/2017 223 Environmental, economic and agricultural law tively the legal regulation quality. It natural ones in the land use context. It should also be noticed that in many was noted that in terms of land use, nat- cases limitations of that kind are caused ural resources are commonly regarded by artificial internal constraints to the to be plots of land or surface climatic innovativeness within the environmental conditions used by local residents for legal science, stipulated by application economic purposes; soil and landscape of such traditional notions as ’natural elements condition; freshwater settings; resource management’, ’natural resourc- as well as the state of flora and fauna, es’, ’natural objects’. This necessitates since they supply production. an urgent revision of the terms, and To a large extent, these resources can broadening of the notions, which they be assessed in economic terms. It can be denote. One of the ways should be done regardless of their location (inter- a more active application of the terms of nal value) or according to a degree of ’resource management’, ecomanage- their vicinity to populated areas (situa- ment’, ’resources’, ’ecological resourc- tional value). es’, ’ecological objects’ etc. It is commonly accepted that by eco- The need for going beyond the scope logical resources we mean those compo- of the conventional terminology, em- nents of land, which possess their own bracing new phenomena and including internal value or are valued for their them into an environmental economic long-term use by man on a local, region- system, has already been reflected in the al, or global scale. They include: biodi- related sciences and research, especially versity of plant and animal populations; economic and natural: the notion of scenic, educational, or scientific and re- ’ecological resources’ is penetrating search significance of landscapes; im- gradually the working documents of in- portance of vegetation for protection of ternational organizations; for example, soil and water resources in a local or in 2004, a reference book «Greenhouse a wider context; vegetation functions of Gases as Global Environmental Re- a local or regional regulator of climate source» was published1. The regulation as a state of the atmosphere; water and prepared by the UN Food and Agricul- soil conditions as regulators of nutrient ture Organization in 1995 on the imple- turnover (C, N, P, K, S), as factors affect- mentation of Chapter 10 of Agenda 21 ing human health, and as long-term stor- «Planning for Sustainable Use of Land ages countering extreme weather events; Resources Towards a New Approach» factors of human and animal disease applied the term of ’ecological resourc- vectors (mosquitos, tsetse flies, gnats es’ and introduced an interesting separa- etc.). tion of ecological resources from the Ecological resources are mostly «nonmaterial» from the purely econom- 1 Парниковые газы – глобальный эколо- ic perspective. Within the framework of гический ресурс : справочник / под ред. a comprehensive, holistic approach to А. О. Кокорина. – М. : WWF Россия, 2004. – 136 с. land use planning, the division under

224 Yearbook of ukrainian law Formation of ecological and legal science: Getman A., Zuiev V. resource aspect and its integration problems discussion seems somewhat artificial, that the key problem, specifically in de- since ecological resources form a part of veloping countries, lies in upgrading the the natural resource complex. Neverthe- collection, handling, analysis and ex- less, it still serves the purpose of delinea- change of reliable environmental data tion of material components from non- within the framework of the countries’ material ones, and of dividing the com- innovative cost-effective approaches to ponents of a human vital activity system efficient environmental resource man- into those yielding immediate benefit at agement and participation in interna- the local level and indirect-effect ones. tional environmental assessments. In the context of Chapter 10, equal at- Therefore, it is clear that partnership tention should be paid to both the programs should not be limited to as- groups1. sessments, but are to cover a wider scope The ’ecological resources’ concept is of actions, related to monitoring of en- also used in the report made by the Ex- vironmental situation3. The document ecutive Director of the Board of Direc- uses the concepts of ’water resources’, tors of UNEP «State of Environment and ’natural resources’, ’energy resources’ Contribution of the United Nations En- etc. Consequently, the point at issue is vironment Programme to Solution of not about synonymy, but rather about Main Environmental Problems», which broadening of traditional terms meaning, was prepared for the Global Forum on even without interpretation, and their Environment held on the ministerial gradual introduction into business con- level (February 21–25, 2005, Nairobi). duct. In particular, it is emphasized that in Conclusions of the research and order to render information and data net- prospects for further surveys. Thus, in work structures active, the Intergovern- summation, a conclusion can be made mental consultative meeting called for that the stage of relatively independent strengthening of the national potentials existence of natural resources law with to allow a more rational use of national its autonomy beyond the complex envi- ecological resources and productive par- ronmental science is over. Presently, it ticipation in international environmental becomes destructive for development of assessments2. In addition, it was stressed both the entire field and its components, hindering their methodological progress 1 Planning for sustainable use of land and paving the way for expansion of resources: towards a new approach // Land and water bulletin of the Food and Agriculture Наций по окружающей среде : документ Organization of the United Nations. – 1995. – UNEP/GC.23/3 [Электронный ресурс] / Ор- № 2. – 60 p. – Р. 6. ганизация Объединенных Наций. – Режим 2 Состояние окружающей среды и вклад доступа : http://www.unep.org/GC/GC23/ Программы Организации Объединенных documents/GC23-3‑Russian.pdf. – 21 c. (дата Наций по окружающей среде в решение ос- обращения 15.02.2016). – С. 19. новных экологических проблем : доклад Ди- 3 Состояние окружающей среды и вклад ректора-исполнителя Совета управляющих Программы Организации Объединенных Программы Организации Объединенных Наций по окружающей среде. – С. 11.

№ 9/2017 225 Environmental, economic and agricultural law researchers from other branches of law vative approaches to the essence of en- who use the internal environmental-legal vironmental law relations, their exten- debates and contradictions to prove their sion and diffusion within a unified meth- own conclusions about fictitious, synthe- odological approach and legal doctrine, sized nature of environmental law, con- with underlying environmental legal trivedness of its scientific problems etc. science goals i.e. environmental protec- One of the ways to integrate and coordi- tion, use of ecological resources, and nate the natural resource component ensuring environmental safety of the hu- within the environmental law framework manity. The areas in question have al- consists in switching its orientation from ready been reflected in works by scien- exclusively traditional natural objects to tists of more or less related subject mat- a more progressive and promising theo- ter, specifically, wastes management1. ry of resource or ecological-resource law that is able to combine harmoniously Published: Проблеми законності. – both traditional (established) and inno- 2016. – Вип. 132. – С. 104–123.

1 Зуєв В. А. Правовое регулирование об- ращения с отходами // Управление устойчи- вым развитием в условиях переходной эко- номики : [монография] / ред. М. Шмидт, Б. Хансманн, Д. А. Палехов, Г. Г. Пивняк, Ю. С. Шемшученко, А. Ф. Павленко, А. Г. Шапарь, В. Я. Швец, Л. Л. Палехова. – Днепропетровск-Коттбус : НГУ – БТУ, 2015. – C. 118–128; Зуев В. А. Правовые про- блемы формирования права обращения с от- ходами и направления систематизации зако- нодательства в данной сфере в националь- ном законодательстве / В. А. Зуев // Legea si Viata. – 2014. – Septembrie. – C. 50–53; Зуєв В. А. Від природоресурсного до ресур- сного права: оцінка перспектив та потенціа- лу // Природноресурсне право в системі пра- ва України: історія, сьогодення, перспективи : зб. матеріалів круглого столу, 30–31 жовтня 2015 р. / за заг. ред. М. В. Шульги. – Х. : Вид- во ТОВ «Оберіг», 2015.

226 Yearbook of ukrainian law V. Andreitsev, Doctor of Legal Sciences, Professor, Head of Department of Civil, Economic and Environmental Law at The National Mining University, Academician Of the National Academy of Legal Sciences of Ukraine, Third Class State Judicial Coun- selor, Honored Lawyer of Ukraine

UDC 349.6 CURRENT CHALLENGES OF ADAPTING ENVIRONMENTAL LEGISLATION OF UKRAINE TO LAWS OF THE EU

A general problem statement. bodies of Ukraine, in particular as re- A course set by Ukraine for adaptation gards realization and protection of sub- of the Ukrainian legislation to the laws jective environmental human and civil of the European Union, and the actual rights in the territory of the state. It is the practice of implementing environmental science of environmental law that is to legal standards of international legal aim the vector of its attention onto the documents in the environmental legisla- said aspect of the mechanism for legal tion of Ukraine have created an unprec- regulation of the implemented in Ukraine edented legal phenomenon in regulation environmental law prescripts, character- of environmental legal relations by ize their specific features from the edu- means of conventions and other forms cational, training, scientific, method- of international agreements implemented ological, and law-enforcement perspec- in Ukraine as direct effect norms, which tives, and to determine the degree of its make up a relatively independent unit of efficiency under the actual conditions of implemented environmental legislation meeting environmental challenges and and sources of modern environmental their impact on forming the national en- law of the sovereign Ukraine. vironmental policy and other related Currently and in the long view, the policies of Ukraine. science of environmental law should de- At the same time, it should be men- scribe objectively the specific features of tioned that the said aspects of the mech- this variety of environmental law sourc- anism for environmental legal regulation es, the specificity of their application in of environmental relations have not yet the actual practice of the jurisdictional been elucidated in full in the textbooks,

№ 9/2017 227 Environmental, economic and agricultural law manuals, training and specialized cours- environmental law scholars1, which is es that are delivered at law schools which obviously not enough to raise the aware- does not contribute to improvement of ness of the urgency of this field of law, legal education quality, specifically that its understanding and practical solution of Master programs for training of high- of environmental problems in the sover- ly qualified specialists. eign Ukraine of today. The academic methodological docu- In this aspect, the National Pro- mentation in the domain is at a low lev- gramme for Adaptation of Ukraine’s el, in the first place, lacking adequate Legislation to the EU Law, adopted by study programs and experts able to com- the Law of Ukraine dating March 18, petently produce and evaluate the knowl- 20042, is of fundamental significance. edge of the Ukrainian HEI graduates. According to the said Law, the adapta- The relevant research sphere of en- tion of legislation is regarded as a pro- vironmental legal science is not abound cess of bringing the Ukrainian laws and in monographs, collective research other regulatory acts in line with acquis works, trained PhDs, or doctoral theses communautaire i.e. the legal system of in the scientific specialization of «Envi- the European Union, which includes the ronmental Law». EU legal acts adopted within the Euro- It may be said without exaggeration pean Community framework, in compli- that in the meantime a constitutional re- ance with its common foreign policy, quirement to the force of Ukraine’s in- security policy and cooperation in justice ternational agreements that are part of its and internal affairs. national legislation recognized by the The sources of the acquis commu- Verkhovna Rada as binding (Article 9 of nautaire system are considered to be the Constitution of Ukraine) is not satis- its primary and subsidiary legislation, fied effectively, particularly with regard to the implemented Ukrainian environ- 1 Малышева Н. Р. Гармонизация экологи- mental legislation. ческого законодательства в Европе / Н. Р. Ма- Without doubt, the processes, which лышева. – К.: Фірма «КІТ», 1996. – 233С.; have stipulated the formation of a har- Андрейцев В. І. Гармонізація як форма оп- monized and implemented environmen- тимізації українського законодавства: про- блеми методології (еколого-правовий кон- tal legislation, are closely connected текст) / В. І. Андрейцев // Вісник. Юридичні with adaptation of the Ukrainian law to науки. Вип. 38. – К.: Держав. ун-т ім. the legislation of the European Union in Т. Г. Шевченка, 2000. – С. 4–14; Малыше- the context of the country’s initiative of ва Н. Р. Проблемы правового и организаци- онного обеспечения развития системы эко- entering the EU as an associated mem- логического законодательства Украины / ber. Н. Р. Малышева // Право Украины, 2012, Recent research and publications № 7–8. – С. 268–290 та ін. analysis. The environmental legal prob- 2 Відомості Верховної Ради України. – lem range in question is explored in 2004. – № 29. – Ст. 367; 2009. – № 23. – Ст. 280; 2011. – № 29. – Ст. 272; 2012. – № 12– a limited number of research works by 13. – С. 82.

228 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU decisions made, actions and stand- as well as the following sources: points, provisions, and official publica- a) common strategy in the sphere of tions of the European Union, which foreign policy and security policy ac- acquire a binding force in the course cording to Article 13 of the Treaty on the of adaptation of environmental laws in European Union; particular. b) joint actions within the framework The category of the primary legisla- of common foreign policy and security tion among other things includes the fol- policy; lowing constituent instruments: c) a unified position as to common a) Treaty on establishing the foreign policy and security policy; European Economic Community of d) a framework decision on harmo- 1957; Treaty establishing the European nization of legislation in the context of Union of 1993; Treaty establishing the the provisions of the Treaty on the Eu- European Atomic Energy Community of ropean Union as regards cooperation of 1987 with amendments introduced by law-enforcement and judicial bodies on the Treaty of Maastricht (on the Euro- criminal cases (Article 34); pean Union) of 1992, the Amsterdam e) a unified position in the context of Treaty of 1997 and the Treaty of Nice of the provisions of the Treaty on the Eu- 2001; other association acts; ropean Union as regards cooperation of b) Treaty on European Union of 1992 law-enforcement and judicial bodies on with amendments introduced by the Am- criminal cases (Article 34); sterdam Treaty of 1997 and the Treaty of f) decisions in the context of the pro- Nice of 2001 «On Association»; visions of the Treaty on the European c) The Merger Treaty of 1965; Union as regards cooperation of law- d) acts on accession of new member enforcement and judicial bodies on crim- states. inal cases (Article 34); In accordance with the above-men- g) a general provision or principle in tioned National Programme for Adapta- the sphere of foreign policy or security tion of Ukraine’s Legislation to the EU policy. Law, the subsidiary legislation incorpo- The following publications also fall rates: into the category of the subsidiary legis- a) directives; lation of the European Union: b) regulations; a) Official Journal of the European c) decisions; Communities; d) recommendations or conclusions; b) European Court Reports. e) legal sources in the form of inter- The fore quoted outlines clearly national agreements; Ukraine’s position that is stated official- f) the general legal principle of the ly in the Fundamental Principles (Strat- European Community – the rule of law; egy) of State Environmental Policy for g) judgments of the European Court the Period up to 2020, approved by the of Justice; Law of Ukraine of December 21, 2010

№ 9/2017 229 Environmental, economic and agricultural law

No 28181 «On Harmonization of tional environmental policy in terms of Ukraine’s Environmental Legislation its realization i.e. state, regional, local, with Some Provisions of Acquis Com- and object (with regard to danger sourc- munautaire», that is legal requirements es and zones) regulation; and mechanism (primary and subsidiary) of the Euro- for tectologic, structural, instrumental, pean Union, lest the said legislation run economic, and information support in counter to the EU standards but rather normal situations and emergencies. harmonized dialectically with them both The point is that Ukraine has not ad- at the stage of the EU creation and that opted any specialized framework law as of law enforcement in all spheres, espe- to development and implementation of cially in activities, which are environ- its state environmental policy; therefore mentally detrimental and hazardous for in this respect only some provisions of environmental conditions, people’s the Law of Ukraine «On Environmental health and life. Protection» of June 25, 19912, notably, Therefore, in keeping with the above its Preamble, paragraph «а» of Article mentioned National Programme, a par- 13; paragraph «c» of Article 14; para- ticular importance is attached to the pro- graph «а» of Article 15 , paragraph «а» cess of bringing the system of environ- of Article 17 etc., and other regulatory mental laws in compliance with the re- acts of Ukraine3, which differ essentially quirements of the EU legal system in its in their form, structure, and content and domain of environmental legal relations have different effect within the hierarchy regulation. of the environmental legislation of The discussion of the material and Ukraine. prospects for further surveys. To cer- However, the Ukrainian environmen- tain extent, priority adaptation measures tal policy results from internal and ex- in the field of legislative regulation un- ternal environmental functions of the der the current conditions are determined state and is binding for any corporate by the Fundamental Principles (Strate- entity in the territory of Ukraine. Elabo- gy) of State Environmental Policy for ration of basic and priority guidelines, the Period up to 2020, the analysis of particularly in ensuring environmental which allows ranging them into several safety and maintaining ecological bal- priority groups: In the sphere of ensuring a continu- 2 Відомості Верховної Ради України. – ous state environmental policy, its coor- 1991. – № 41. – Ст. 546 dination with the policy of the state, 3 Див. Основні напрями державної політи- branch (sector), regional, and local de- ки України у галузі охорони довкілля, вико- ристання природних ресурсів та забезпечен- velopment. To our mind, it means a fur- ня екологічної безпеки // Відомості Верхов- ther improvement of the legislative basis ної Ради України. – 1998. – № 38–39. – Ст. 248; for making and implementing the na- Основні засади (Стратегія) державної еколо- гічної політики України на період до 2020 1 Офіційний вісник України. – 2011. – року // Офіційний вісник України. – 2011. – № 3. – Ст. 150. № 3. – Ст. 150.

230 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU ance, coping with the Chornobyl catas- Ukraine «On Environmental Protec- trophe aftermath, genetic preservation of tion» – in that case it would have had the the Ukrainian nation is a constitutional title «On the Fundamental Principles of duty of the state (Article 16 of the Con- the Environmental Policy of Ukraine». stitution of Ukraine). Or else there should be a special Law of Setting the guidelines of the state en- Ukraine titled «On the Fundamentals of vironmental policy is a prerogative of the Environmental Policy of Ukraine», the Verkhovna Rada of Ukraine (Article or the appropriate regulations could be 13 of the Law of Ukraine «On Environ- collected in the Environmental Code of mental Protection» of June 25, 1991), Ukraine, the norms (articles) of which while the authority in implementing the should make a separate section «Envi- environmental policy of Ukraine is vest- ronmental Policy of Ukraine». ed with the Verkhovna Rada of the Au- However, considering the facts of tonomous Republic of the Crimea, local today’s life as to impossibility to pass councils of Ukraine of different levels, a relevant consolidated or codified law, the Cabinet of Ministers of Ukraine. it is necessary to proceed from the provi- Under these conditions, it is expedi- sions of the above mentioned Strategy ent to regulate legislatively the legal re- that enacted environmental policy into lations, which emerge in the course of law up to 2020, providing adaptation of forming the state environmental policy; the Ukrainian environmental legislation to define the basic requirements to the to the EU acquis communautaire stan- policy directions, their nature, mecha- dards. The more so, because the Strategy, nisms for regulating legalization and approved by the Law of Ukraine dating implementation, in particular with re- December 21, 2010, has the force of gard to enforcement of environmental a law that furthers the provisions of the rights of citizens; to realize other com- Law of Ukraine «On Environmental Pro- ponents of environmental policy, spe- tection» for the specified period – at least cifically those pertaining to institutional, it does not run counter to the Law as information, financial, scientific, techno- concerns legal relations regulation in the logical, and supervisory support; sphere of state environmental policy achievement of basic quality and safety implementation. parameters of the environmental condi- To some extent, this complies with tions per period of implementation; to the requirements of Article 2 of the Law create a system of incentive and motivat- of Ukraine «On Environmental Protec- ing measures and legal liability of public tion» stating that the environmental legal officials and other subjects for failure to relations in Ukraine are regulated by the comply with the requirements of the en- said Law and «other special legal acts». vironmental policy of Ukraine at differ- Which prompts suggestions that the Fun- ent levels of implementation. These and damental Principles (Strategy) of State other legal support mechanisms should Environmental Policy for the Period up have been formulated in the Law of to 2020, approved by the Law of Ukraine

№ 9/2017 231 Environmental, economic and agricultural law of December 21, 2010, No 2818, that can for state monitoring of the environment, be referred to other special acts in the forecasting its changes and elaboration system of environmental legal relations of scientifically substantiated recom- regulation with regard to the expediency mendations for making effective admin- of Ukraine’s integration into the Euro- istrative decisions. Monitoring of the pean Union, specifically the country’s environmental conditions was laid by the fulfillment of its obligations as to adapta- Law upon a specialized central body of tion of the environmental laws to the executive power authorized to deal with system of the legislative acts of the EU environmental and natural-resource is- acquis communautaire. sues, other authorized agencies, as well Provision of a consistent environ- as enterprises, establishments and orga- mental policy of Ukraine equally presup- nizations, the activity of which causes or poses compliance with all the require- may cause deterioration in the condition ments and principles of the international of the environment. These legal entities convention Rio-92, so that the policy are obligated to submit to the competent should become a factor of the country’s authorities free of charge the analytical socio-economic development, meeting materials on their monitoring results. the urgent needs of the Ukrainian society The authorized public agencies to- and individual citizens and helping cre- gether with the appropriate research in- ate adequate living standards and well- stitutions provide short- and long-term being of the society in a stable high- forecasting of the environmental condi- quality ecologically-safe natural and tion, which should be taken into account social environment of people, their life- when preparing and implementing pro- sustaining activity. grams and actions on environmental pro- The next direction of the environ- tection, utilization and restoration of mental law adaptation is considered to natural resources, and ensuring environ- be monitoring and evaluation of the at- mental safety. Monitoring in the sphere mospheric air quality, particularly in of atmospheric air protection is envis- terms of widespread contaminants, zon- aged by a special Law of Ukraine «On ing of the Ukrainian territory, plans for Atmospheric Air Protection» of October improving the quality of the atmospher- 16, 1992, with amendments2. ic air in zones and agglomerations, con- The said monitoring is carried out trol of sulfur content in fuels etc. with the aim of collection, storing, and The legislative framework for moni- analysis of data on pollutants release and toring of the country’s natural environ- air pollution level, evaluation and fore- ment is determined by the Law of casting its change and hazard rate in or- Ukraine «On Environmental Protection» der to develop scientifically substanti- of June 25, 1991 (Article 29)1. In particular, it envisages creation of a system 2 Відомості Верховної Ради України. – 1992. – № 50. – Ст. 678; 1995. – № 19. – Ст. 85; 1 Відомості Верховної Ради України. – 2001. – № 48. – Ст. 252; 2004. – № 36. – Ст. 434 1991. – № 41. – Ст. 546. та ін.

232 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU ated recommendations as to making lution rate in a certain territory over decisions on air protection. a specified period of time, summarized This kind of monitoring is part of the data on composition and volume of pol- state system for monitoring the environ- lutants release. Evaluation of contamina- ment. The procedure of its organization tion level and degree of danger for the and carrying out is established by the environment and life-sustaining activity Resolution of the Cabinet of Ministers of people, composition and amount of of March 9, 1999, No 343 with amend- released pollutants is carried out. During ments1. the monitoring, it is compulsory to detect According to this procedure, the ob- the presence of widespread contaminants jects of atmospheric air monitoring are in the atmospheric air. Values and ingre- as follows: dients of atmospheric precipitation are a) atmospheric air, including atmo- determined, based on the index of sub- spheric precipitation; stances provided in the Appendix to the b) emissions of pollutants into the above mentioned Regulation of the Cab- atmosphere. inet of Ministers of Ukraine, and name- The subjects of atmospheric air monly: dust, sulfur dioxide, carbon monox- itoring are assigned to be the Ministry ide, nitrogen dioxide, lead and its inor- for Environmental Protection and Nucle- ganic compounds, benzopyrene, ar Safety of Ukraine, Hydro-meteorolog- formaldehyde, a list of radioactive sub- ical Committee, State Sanitary and Epi- stances etc. demiological Service, their local bodies In the present context, a special em- and companies, institutions, organiza- phasis is laid on reduction of anthropo- tions, the activity of which causes or genic impact on the climate and ozone may cause deterioration of the atmo- layer protection. The point at issue is spheric air condition. This monitoring is adaptation of the environmental laws, in carried out by the Ministry for Environ- accordance with Directive 2003/87/EC, mental Protection and Nuclear Safety of on adoption of a scheme to reduce green- Ukraine jointly with other subjects in house gas emissions while doing busi- accordance with the Program of moni- ness within the European Community, toring the atmospheric air in Ukraine and and on introduction of amendments into the relevant regional (local) programs. Council Directive 96/61/EC, supple- Subsequent to the results of monitor- mented by Directive 2004/104/EC2. ing the atmospheric air, the above mentioned subjects receive initial emission 2 Див.: Пропозиції до Базового плану research data and observations over pol- адаптації екологічного законодавства до за- конодавства Європейського Союзу (Юри- lution, and also summarized data on pol- дичні аспекти), підготовлені групою експер- тів України та ЄС за підтримки Шведського 1 Див.: Екологічне законодавство України. агентства з охорони навколишнього середо- В 4‑х книгах. Кн.: 2. За загальною редакцією вища відповідно до Угоди про асоціацію між та вступною статтею акад. В. І. Андрейце- Україною та ЄС, згідно з Прогресивним пла- ва. – К., Слово. – 2007. – С. 543–546. ном адаптації законодавства України до за-

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In this domain, it is proposed to pre- Ukraine on establishing the procedure pare a draft Law of Ukraine on the fun- for the use of emission reduction indices damentals of the state policy to control by aircraft operators and their certifica- the negative anthropogenic impact on tion; and setting the allowable emissions the climate. It is suggested to obligate of greenhouse gases for the functioning the applicants to carry out monitoring and potential objects (sources of danger). and report on greenhouse gas emissions; In compliance with Regulation vest an authorized body with full powers (EU) No 842/2006 on fluoride green- to revise, no less frequently than once house gases, it is supposed to adopt every five years, the appropriate permits regulatory acts that would help create and established procedures for introduc- a procedure of making incentives for ing changes to such permits; procedures prevention of fluoride greenhouse gas for an auction sale of quotas for indus- emissions, which are not controlled by trial gas emissions within the borders of the Montreal Protocol on substances de- Ukraine for stationary emission sources pleting the ozone layer, and requirements (sources of enhanced environmental haz- to quick (immediate) elimination of any ard); adoption of a partial auction proce- detected emission of those gases; to es- dure for sale of industrial gas emissions tablish a procedure for disposal of fluo- quotas for aircraft operators, and grant- ride greenhouse gases, which are not ing other free quotas; formalizing in leg- controlled by the Montreal Protocol, and islation the procedure for allocating their recovery; to fix a procedure for the funds from auctioning quotas; regulation operation of a system of marking hazard- of the procedure for making amend- ous substances and preparations, prod- ments in emission permits by entities ucts and equipment that contain fluoride that terminated the use of polluting fa- greenhouse gases, which are not con- cilities; working out regulations for do- trolled by the said Protocol, and a pro- mestic trade in greenhouse gas emission cedure for control of the use of fluoride quotas, pursuant to Directive 2003/97/ greenhouse gases, which are not con- EC on adoption of a scheme for reducing trolled by the Montreal Protocol on sub- greenhouse gas emissions1. stances depleting the ozone layer2. The Ministry of Natural Environ- In this regard, it is deemed necessary ment Protection of Ukraine was sug- to establish a procedure for placement of gested to be the principal law drafter. products and equipment, which contain Additionally, it was proposed to fluoride greenhouse gases, or the func- elaborate and adopt the relevant resolu- tioning of which is dependent on the tions of the Cabinet of Ministers of gases that are not controlled by the Mon- treal Protocol on substances depleting конодавства Європейського Союзу, схвале- the ozone layer, listed in the Appendix ного на засіданні Координаційної Ради II to Regulation (EU) No 842/2006; з адаптації законодавства України до зако- нодавства ЄС 9 березня 2010 р. – 41 с. 1 Вказ. документ. – С. 31. 2 Вказ. документ. – С. 32–33.

234 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU a procedure for reduction of emissions ing substances, carbon-tetrachlorides, and use of fluoride greenhouse gases, trichlorethanes, hydro-bromofluorocar- which are not controlled by the said Pro- bons, control over the use of chlorofluo- tocol; a procedure for marking and dis- rocarbons in aerosols and as solvents, posal of wastes from the equipment that cooling liquids, chemicals for manufac- contains fluoride greenhouse gases, ture of various foams, carrier gases for which are not controlled by the Mon- sterilizing agents in closed systems, and treal Protocol, and marking that equip- for other purposes, and also determining ment and products; a procedure for re- their possible uses. cycling of fluoride greenhouse gases, Regulatory acts of that kind should which are not controlled by the Mon- establish return procedures for repro- treal Protocol, and a procedure for ar- cessing, recuperation of the controlled rangement of a reporting system to ob- substances during repair and operation, tain data on fluoride greenhouse gases disassembly and removal of equipment; emissions, which are not controlled by providing monitoring and checking of the said Protocol. running out and emission of the con- It is necessary to provide education trolled substances; outlining measures to and certification of personnel whose prevent the controlled substances re- work is connected with the use of fluo- lease; annual reporting of enterprises on ride greenhouse gases, which are not the controlled substances production, controlled by the Montreal Protocol. use, export and import. There is a need to adapt regulatory Certain adaptation of the environ- acts of Ukraine in furtherance of Regula- mental laws of Ukraine is expedient with tion (EU) 2017/2000 on substances de- regard to regulating the use of geneti- pleting the ozone layer with amendments cally modified organisms in order to and additions of Regulations bring the legislation in line with Direc- (EU) 2038/2000; 2039/2000; 1804/2003; tive 2001/18/EC on deliberate release of 2077/2004; 29/2006; 1366/2006; GMO into the environment, which re- 1784/2006; 1791/2006; 899/2007; peals Council Directive 904/220/EU 473/2008 and others1. with amendments and additions, intro- As regards establishing a procedure duced by Commission Decision for arrangement of the record of ozone- 2002/623/EU, Regulation (EU) No depleting substances level of output, 1829/2033 and 1830/20032, specifically, a procedure for gradual replacement of by way of making changes in the Law of those substances, a procedure for func- Ukraine «On the State System of Bio- tioning of a monitoring system for man- safety in Creation, Testing, Transporting, agement of ozone-depleting substances and Use of GMO» of May 31, 2007 No regulating bans on production, supply, 11033. and complete usage of halogen-contain- 2 Вказ. документ. – С. 35. 3 Відомості Верховної Ради України. – 1 Вказ. документ. – С. 34. 2007. – № 35. – Ст. 484.

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This concerns, first and foremost, the ing GMO, which introduce changes to terminology of the said Directive re- Directive 2001/18/EC1. quirements, notably, a univocal interpre- In particular, it is suggested to amend tation of the term of ’placement in the the Law of Ukraine «On the State Sys- market’ [underlined by the author], har- tem of Biosafety in Creation, Testing, monizing the procedure of state sanitary Transporting, and Use of GMO» of May and epidemiological expert survey and 31, 2007 No 1103 as to tracking and pos- entering GMO and products produced sibility of using the requirements of the with their use on the survey list for eval- said Regulation. uation of their hazard for the environ- Secondly, it is proposed to redraft the ment, human health and life. Resolution of the Cabinet of Ministers It is also intended to harmonize the «On the procedures of labeling (mark- procedure of placing GMO in the coming) foods that contain genetically mod- modity market; to adapt a list of infor- ified organisms or produced with their mation items and documents that have use and put in circulation» of May 19, to be submitted together with a request 2009 No 468, so that its provisions medi- during the registration procedure provi- ated placement in the market of all prod- sioned by the said Directive; to fix ucts produced with the use of GMO. a clear-cut procedure for post-registra- In order to introduce an effective lation monitoring of GMO release; to beling mechanism, a possibility is con- specify provisions that relate to confi- sidered to use the unique ID-numbers, dential information as per Article 25 of applied in the EU, in the Ukrainian the Directive, and provide an effective goods marking and labeling system. mechanism of access to that information There is also a task of harmonization and public participation in making deci- of the practice of checking (inspec- sions on genetically modified organisms tion) and control in the said sphere with release into the environment and their the requirements of Article 9 of Regula- placement in the market according to tion 1830/2003, in particular, as to adopt- Articles 9, 15, 23, 24 of the Directive ing the current mechanism of liability for with specification of authorized govern- violation of laws on consumer rights ment bodies. protection, and analyzing application of It is proposed to introduce the rele- other provisions of the Regulation for vant changes to subordinate legislation the purpose of making changes in sub- with the aim of the Directive transposi- ordinate legislation of Ukraine. tion, and to revise and clarify the Ukrai- In this aspect, a special importance nian translation of the Directive in view is attached to adaptation of the Ukrai- of adoption of new laws. nian legislation as regards its approxima- The next point relates to adapting the tion to the legal framework of Regula- provisions of Regulations 1829/2003 tion 1946/2003 «On Transboundary and 1830/2003 on tracking and marking GMO, foods and feeding stuffs contain- 1 Вказ. документ. – С. 36.

236 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU

Movements of GMOs» by way of mak- ganisms» stipulates introduction of the ing amendments in the Law of Ukraine appropriate changes into the Law of «On the State System of Biosafety in Ukraine «On the State System of Bio- Creation, Testing, Transporting, and Use safety in Creation, Testing, Transporting, of GMO» of May 31, 2007 No 11031 as and Use of GMO» of May 31, 2007 No to establishing a subsystem for notifica- 1103 as to regulation of the use of GMO tion and information about GMOs trans- in a closed system from the perspective portation, movement, procedures of their of protection of human health and the export from the customs territory of environment, classification of geneti- Ukraine, and measures to prevent uncon- cally modified organisms, measures for trolled transborder movement of GMO2. their maintenance, modification meth- Another proposal is to make and ods, principles of an adequate microbio- implement a separate subordinate legal logical practice, occupational safety and act determining the procedure of GMO health4. export from the customs territory of With these considerations in mind, Ukraine in compliance with the said pursuant to the Directive requirements, Regulation. it is planned to develop and adopt the Based on the above considerations, Procedure for licensing genetic-engi- the Ministry of Ecology and Natural Re- neering activity and handling of GMO sources of Ukraine is proposed to de- (GMM) in a closed system, or alterna- velop and adopt a departmental regula- tively, to introduce amendments and ad- tory act concerning Ukraine’s participa- ditions into the Law of Ukraine «On tion in the international procedure for Licensing of Certain Types of Economic providing information according to the Activity» of June 1, 2000 No 1775‑ІІІ, provisions of the Cartagena Protocol on and accordingly, to supplement the reso- Biosafety and the Convention on Bio- lution of the Cabinet of Ministers «On logical Diversity, signed by Ukraine on Approval of the List of Documents to be June 11, 1992 and ratified by the Law of Attached to the Application on Issuance Ukraine of November 29, 19943. of License for Certain Types of Eco- However, to our opinion, such sup- nomic Activity» of July 7, 2001 No 756 plements to the environmental legisla- with a clearly defined range of entities tion should not appear in the form of whose activity is subject to licensing. a subordinate law, but rather as an addi- When making the above changes tion to the law of Ukraine «On Environ- and additions, it is advisable to take into mental Protection» of June 25, 1991. account the provisions of Directive Directive 2009/41/EC «On the Con- 2009/41/EC5 as to evaluation (Article 4 tained Use of Genetically Modified Or- Appendix ІІІ) and enactment of procedures for informing competent bodies 1 Вказ. документ. – С. 37. (Articles 6–9 and the relevant Appen- 2 Вказ. документ. – С. 38. 3 Відомості Верховної Ради України. – 4 Вказ. документ. – С. 39. 1994. – № 49. – Ст. 433. 5 Вказ. документ. – С. 39–40.

№ 9/2017 237 Environmental, economic and agricultural law dices to the Directive), an emergency In addition, there are other issues re- plan (Article 18), information and requiring enactment, namely: management sponse in emergencies (Articles 14–15), of byproducts with criteria for their clas- and confidentiality of information (Ar- sification; legal regime indices or groups ticle 18). of indices, and legal regime termination, At present, it is expedient to amend in particular, passing of byproducts into and clarify the Resolution of the Cabinet the category of recyclable material (re- of Ministers «On Approval of Provision- source) etc.; measures to prevent waste al Safety Criteria for Handling Geneti- generation, and introduction of strict li- cally Modified Organisms and Realiza- ability of producers for unreasonable tion of Genetic-engineering Activity in generation of waste; product design con- Closed Systems» of October 16, 2008 siderations reducing a negative impact No 922, and to consider the need for on the environment during manufacture revision of the branch-specific legisla- and use. tion of Ukraine in the context of the Di- Under the current conditions, a spe- rective regulatory requirements. cial practical importance is attached to Also, it is deemed expedient to intro- approximation of the environmental duce amendments related to the above laws, especially those on waste, to the regulatory acts, taking into account the requirements of Directive 2008/98/EC Directive provisions (Appendix І), and by making a new codified legal act, or to make a stricter translation of the Di- amending the effective Law of Ukraine rective into Ukrainian. «On Waste» of March 5, 1998 No 187. Adaptation of the environmental leg- Certain terminological corrections islation of Ukraine presupposes im- are proposed in line with the require- provement of legal regulation and man- ments of the said Directive, among oth- agement of waste in accordance with er things, in regard to types of wastes, Directive 2008/98/EC1, specifically, by waste management operations, a list of means of drafting a law on waste or management subjects, introduction of amending the Law of Ukraine «On «waste dealer» and «waste broker» cat- Waste» of March 5, 1998 No 1872 with egories etc. changes and additions, aiming to agree Another point at issue is formalizing on terminology and recognize it legisla- in the Ukrainian environmental legislatively, to classify wastes, operations with tion of the principal approaches to intro- wastes, application of a five-step waste duction of the five-step waste manage- management hierarchy, especially when ment hierarchy for addressing waste dealing with wastes that are highly dan- management issues; standards of man- gerous for human health and life, and the agement, which would regulate byprod- environment. ucts specification and their differentiation criteria; setting indices for the waste 1 Вказ. документ. – С. 9. regime; measures to prevent waste for- 2 Відомості Верховної Ради України. – 1998. – № 36–37. – Ст. 242. mation and introduction of strict liabil-

238 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU ity of producers for unreasonable gen- Council Directive 1999/31/EC of April eration of waste; drawing plans of waste 26, 1999 «On Waste Burial», notably management and programs for preven- with regard to financial guarantees of an tion of waste formation; product design applicant in obtaining a burial permit, considerations reducing a negative im- ban on burial of certain types of waste, pact on the environment during manu- regulation of the procedure of taking facture and use; measures to stimulate wastes for burial, planning measures development, production, and marketing aimed at control and monitoring during of reusable, technically durable products operation, burial costs, procedure of qualified for adequate and safe reclama- sealing wastes and implementing a se- tion after they enter into the state of ries of measures as to sealed waste buri- waste, disposal of which does not harm al sites, bringing such sites in compli- the environment and human health. ance with the requirements of the Direc- Classification of wastes, criteria and tive, or their inactivation1. list of dangerous wastes, elaboration of It is important to make provisions in new regulatory acts or additions to the the Ukrainian legislation – both the ef- effective laws on utilization of certain fective Law and new draft laws – for types of wastes (biowaste, waste oils, classification of disposal burial grounds; used car tires etc.) also need legal clari- to adapt the existing terminology de- fication. scribing this type of managing waste, in Other matters subject to revision are particular highly dangerous, and to make legal regulation of a system of permits the relevant changes in the subordinate and registration of waste management legislation of Ukraine, standards, norms, subjects, and amendments in the legal and rules (sanitary). acts of Ukraine that regulate the said A draft law on management of ex- procedures. traction industry wastes is of special sig- Drafting and adoption of a regula- nificance necessitating harmonization tory act on keeping public registers of all with the requirements of Directive business entities managing waste (ship- 2006/21/EC of March 15, 2006 on man- pers, waste recovery operators, produc- aging wastes of extracting enterprises, ers, their dealers and brokers in waste which introduced changes to Directive management) is topical too. 2004/35/EC2. Appendices to the Directive require In the first place, it concerns the revi- a special revision and analysis in order sion of an authorization procedure for to make alterations and additions in rela- waste treatment facilities’ location and tion to inclusion of innovations into the functioning with account of possible effective environmental legislation, and transborder impact, an information sys- correction of the Directive translation tem and forms of public participation in into the Ukrainian language. the sphere, with a special emphasis laid The time has come to adapt the en- 1 Вказ. документ. – С. 12. vironmental legislation of Ukraine to the 2 Вказ. документ. – С. 12–13.

№ 9/2017 239 Environmental, economic and agricultural law on classification of waste treatment fa- ment of water resources with authoriza- cilities (as per Appendix ІІІ to the Direc- tion of nominated managing bodies to tive) and professional scrutinizing of the perform the functions set by the Direc- said act. tive. Currently important issues are For the purpose of adequate intro- amendments to the Code of Ukraine «On duction of the watershed management, Mineral Resources» of July 27, 19941, it is advisable to recognize legislatively Mining Law of Ukraine of October 6, the zoning of the Ukrainian territory on 1999 No 1127‑XIV2, the Law of Ukraine the above principle; to identify the units «On Waste» of March 5, 1998 No 1873 of the hydro-geographic zoning of proper, and related to it subordinate legal Ukraine based on location of rivers; to acts on managing extraction industry provide a relevant institutional structure waste, aiming to transpose the Directive of water resource management with ac- and harmonize with it terminologically. count of the existing water bodies; to It is supposed that there will be an develop and fix legislatively criteria for essential approximation of other laws evaluation of river basins condition; to and subordinate legal acts of natural- introduce a regulation on river basin resource block of the environmental leg- management spheres and methods of islation, in particular, adaptation of the their preparation, as well as programs Water Code of Ukraine4 to Directive and measures set by Article 11 of the 2000/601/EC in the water policy sphere Directive. with amendments and additions, intro- In an effort to work out in detail the duced by Decision 2455/2001/EC. approximation of legal regulation, it is The pivotal issues of implementing intended to draw plans of river basin the water policy of Ukraine still remain management, focusing on raising public watershed management and authoriza- awareness, as required by Article 14 of tion in this view of a competent body to the Directive. manage watersheds, bringing «Surface Yet, a further expert study and evalu- Waters» and «Ground Waters» sections ation are needed to class waters into cat- of the State Water Cadastre in compli- egories with the aim of implementing ance with the Directive requirements. this Directive; and likewise the provi- It is also suggested to draft and adopt sions of Appendices ІІ-V, VIII and X to a relevant regulatory act in the form of the Directive need further consideration the Regulation on watershed manage- by subject matter experts. The requirements set in Article 10.2 and the Direc- 1 Відомості Верховної Ради України. – tive Appendices VI and IX should also 1994. – № 36. – Ст. 340. be studied more profoundly in order to 2 Відомості Верховної Ради України. – consider them for use in the effective 1999. – № 50. – Ст. 433. water legislation of Ukraine. 3 Відомості Верховної Ради України. – A focus in adapting Ukraine’s laws 1998. – № 36–37. – Ст. 242. 4 Вказ. документ. – С. 14. is placed on the provisions of Directive

240 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU

2007/60/EC concerning evaluation and exchange at the regional (watershed) lev- management of flooding risks, aiming to el, and those of working with the central make changes and supplements to the executive authorities. Decree of the President of Ukraine «On An issue is raised as to preparation measures for effective forecasting of and approval of the methodology of floods and post-disaster relief», dating drawing long-term integrated plans for March 15, 2002 No 243, and the Resolu- risk management, specifically, as regards tion of the Cabinet of Ministers «On the their correlation with river basin man- procedure for land use in potential flood agement plans. zones» of January 31, 2001 No 871. It is deemed important to create It is meant to develop and formalize a mechanism and establish at the inter- in legislation a system for evaluating national level a procedure for exchange risks of emergency situations occurrence of data on flood forecasting and relief of on water bodies, which should be based consequences between the involved on the analysis of climate change impact competent bodies of Ukraine and the as a result of flood formation. That is relevant structures of the neighboring why documentation on flood risk evalu- states, the activity of which is extended ation must contain analysis (descrip- to transboundary river basins (with an tion) of floods, which took place in the adequate level of detail), which is impor- past and affected negatively people’s tant for the national mechanisms and health, the environment, cultural and procedures, stipulating amendments and natural heritage, economic activity, es- additions to subordinate legislation, aim- pecially if there is a probability of re- ing to transpose the said Directive and peated calamities. laws adopted on its basis. Therefore, it is planned to develop Logically, the issue of adaptation of maps of flood risks with listing of all natural resource laws is brought up to sorts of data about flood hazards and date, with an emphasis on its compo- risks in accordance with the above men- nent – the water legislation of Ukraine tioned Directive, and draw long-term in accordance with Directive 2008/56/ integrated plans for flood risk manage- EC on activity of the European Com- ment, which should be approved with munity in the sphere of marine environ- due regard to the Directive requirements. ment policy (Marine Strategy Frame- It is meant to elaborate principal pro- work Directive)2. visions for regulation of inter-agency In this sphere, it is necessary to har- coordination and cooperation on the is- monize the regulatory requirements to sues of managing flood risks, and lay legal acts terminological equivalence, down detailed procedures for stakehold- and to fix strategic directions, objective ers’ participation. Also, it is necessary to and tasks of the state policy of protection establish procedures for information and restoration of the Azov and Black

1 Вказ. документ. – С. 16. 2 Вказ. документ. – С. 28.

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Seas natural environment, with due re- of sewage before discharge in the pre- gard to the EU Lyon strategy provisions scribed zones; setting a ban on discharge and achievement of greater efficiency of of sludge to surface waters from ships, program documents fulfillment. pipelines, or otherwise; establishing A normative-legal demarcation of the a procedure for treatment of food pro- sea basins as objects of state-legal regu- cessing waste waters. lation and management, criteria for qual- Appreciable innovations are aimed ity assessment of the marine environ- at revision of the Guidelines for urban ment in compliance with the European water supply and sewage systems in approaches and actual practice, develop- Ukraine of July 5, 1995 No 30, particu- ment of complex measures aimed at larly those pertaining to prescripts on a gradual pollution abatement in the their application in mountain settle- Azov and Black Seas, and a dramatic ments. improvement of their environmental Introduction of particular provisions condition are on a pressing agenda of of the said Directive presupposes ap- today. proval of technical and investment pro- This would be facilitated by approx- grams, commitment of water and sewage imation of the legal regulation of envi- companies to give and make public their ronmental laws to the European Union regular reports on discharge of waste legislation relating to carrying the re- water and sludge in the regions under quirements of Directive 91/271/CEE their responsibility. concerning urban waste water treatment, Next in turn is harmonization of the supplemented by Directive 98/15/EC, prescriptions of the state water monitor- and Regulations (EC) No 1882/2003 and ing system and its environmental moni- No 1137/20081, which stipulates the in- toring components as to the requirements troduction of changes to the Regulations of Part D of Appendix І of the Regula- on collection of industrial waste water in tion, Appendix І (Tables 1 and 2) and the public and departmental sewage systems relevant correction of other legal acts. of populated localities of Ukraine, ap- The matters of adapting the water proved by the Order of the State Com- legislation in terms of Directive 98/83 mittee of Ukraine for Construction, Ar- EC2 on the quality of water intended for chitecture and Housing dating Febru- human consumption (with amendments ary19, 2002 No 37 that would consolidate and additions introduced by Regulation the state commitment of providing all (EC) 1882/2003, and in compliance with cities and urban-type settlements with Directive 91/76 EC concerning protec- sewage systems; fixing a list of environ- tion of waters against pollution caused mentally sensitive areas according to the by nitrates from agricultural sources criteria of Appendix ІІ to the Directive; (with amendments and additions intro- promoting the idea of afterpurification duced by Regulations (EC) 1882/2003

1 Вказ. документ. – С. 18. 2 Вказ. документ. – С. 20.

242 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU and 1137/20081) are gaining topicality. The observance of a procedure for An integral part of adapting the en- environment impact assessment and vironmental legislation to the EU laws other permitting procedures is to ensure is deemed to be coordination of legisla- taking into account of data obtained tive and normative-legal regulation of from the assessment, when making deci- other environmental elements, notably sions on issuing or denial of environ- regulatory acts on protection and conser- mental permit for conducting an envi- vation of wildlife and flora objects as per ronmentally dangerous activity. Council Directive 92/43 EЕС of May 21, Formation of permit conditions 1992 on the conservation of natural hab- should follow a certain order, notably in itats and of wild fauna and flora2. relation to monitoring of pollutants dis- Particularly topical becomes the en- charge into water bodies, measures to be vironmental legislation adaptation in taken in case of violation of regular func- the sphere of technogenic (industri- tioning of an object of dangerous dis- al) safety in the context of Directive charge, emergence of increased environ- 2008/1 EC concerning integrated pol- mental risk i.e. extreme conditions. lution prevention and control, aimed to The permit is to contain information upgrade the effective permitting system on a competent body’s awareness of in the economic sphere, specifically as available advanced technologies, and regards the submission procedure and should obligate that body to monitor the list of information items to be supplied process of adopting such technologies. together with an application for an in- A compulsory condition for issuing tegrated environmental permit, regula- environmental permits is an operator’s tion of the permit terms (authorizing duty to notify the competent body of competent public bodies to supervise any scheduled changes in functioning the applicants’ fulfillment of all the of increased danger sources or a change mandatory actions in accordance with of economic activity, which requires Articles 3–10 of the Directive, guaran- obtaining an integrated environmental teeing compliance of permit terms with permit, and also regulation of the pro- the requirements as to greenhouse gas- cedure for introducing changes, issuing es emission values3. or denial of environmental permit in Application of an integrated ap- case of an essential change in equip- proach to issuing environmental permits ment operation (danger sources), on for conducting the most dangerous kinds which the applicant is to report and of activity, and improvement of the sys- which should be reflected in a compe- tem of monitoring compliance with the tent body’s decision on issuing an envi- permits terms is to ensure an adequate ronmental permit, regulation of the pro- legality standard in the sphere. cedure and change of conditions of the integrated permit, carrying out inspec- 1 Вказ. праця. – С. 21. tions of sources (facilities) that create 2 Вказ. документ. – С. 22. 3 Вказ. документ. – С. 23. danger.

№ 9/2017 243 Environmental, economic and agricultural law

An important direction in regulation fur dioxin emissions, and standards for of the procedure for issuing environmen- alternative use of two or more types of tal permits is account of the outcome of fuel. consultations with the public; setting These legal acts should fix a permit- requirements to competent bodies as to ting procedure for operation of combus- public access to results of discharge and tion plants located in areas of under- emission monitoring, in compliance with ground storage of dioxide carbon; set the permit conditions; establishing the the emission rates for cases of increased procedure for raising public awareness capacity of such plants; implement of specific features of operation of envi- a system for monitoring emissions form ronmentally dangerous installations the said installations; make rules for (heightened environmental danger combustion plant operators’ reporting sources); legislative formalizing of to competent government bodies on the guides for competent bodies as to public results of continuous testing, inspec- access to decisions on issuing permits, tions of testing equipment, individual and the grounds, on which particular tests, necessary to fulfill the require- decisions are made, including the results ments to pollutant emissions from the of public participation. said plants. In this respect, the environmental Pertinent to legal requirements, the legislation needs harmonization with normative-legal acts should envisage Directive 2001/80/EC «On limitation of a procedure for calculation of allowable emissions of certain pollutants into the limiting values of pollutant emissions air from large combustion plants»1 in from combustion plants, and, taking into the form of drafting and adoption of account the research data on application legislative and subordinate normative- of allowed emission rates for waste- legal acts regulating the operations pro- burning plants, develop a plan of reduc- cedure of combustion installations as ing hazardous emissions into the atmo- sources of increased danger; implemen- sphere for the existing sources of pollu- tation of a legal procedure for issuing tion; determine total annual emissions of permits for combustion plants opera- pollutants as per Part С of Appendix VIII tion, which includes the requirement to of the said Directive and the practice of conduct research of environmental and applying technological standards of al- technical capacity, combined heat and lowable pollutant emissions from the energy generation; establishing a pro- heat-power plants, the rated heating ca- cedure for restriction of operation of the pacity of which exceeds 50 MW, and above installations in case of malfunc- ensure their compliance with the require- tioning or breakdown of their units or ments of Part В of Appendices ІІІ – VIII assemblies; setting emission rates for of the Directive «On sulfur dioxin, nitro- multi-fuel units, the limit values of sul- gen oxide and dust». A special significance for the adap- 1 Вказ. документ. – С. 26. tation of the Ukrainian environmental

244 Yearbook of ukrainian law Current challenges of adapting environmental Andreitsev V. legislation of Ukraine to laws of the EU legislation is attached to Directive vised or renewed with participation of 96/82/EC of January 9, 1996 On the the public. control of major-accident hazards in- Another pressing issue is establish- volving dangerous substances1, a char- ment of procedures for the above men- acteristic of which is given in the sec- tioned plans update and implementa- ond part of the present work concerning tion, interaction of emergency manage- instruments and mechanisms of secur- ment organizations; a system of ing safety for human health and life, the information about emergencies; exer- natural environment and other material, cising and improving state control of spiritual, and cultural values and expe- informing the public; making inspec- diency of further regulation of issues of tions of the status of the population and public participation in making decisions territory protection against emergencies on planning urban locations of in- as applicable by law; and a regular creased danger sources; legal fixing of opening to public of a list of produced a procedure for provision of the appro- chemicals, according to Article 9 priate information in the event of ac- (2) Directive 96/82/EC. cidents at increased danger sources, the The process of adaptation of the en- order of information exchange between vironmental laws of Ukraine to the EU state executive bodies and an operator, legislation presupposes introduction of and between operators; making more precise the safety declaration so that it amendments to the Law of Ukraine «On include the requirements of Article 9.2 Environmental Protection» of June 25, and Appendix ІІ of the said Directive; 1991 as to the procedure for assessment establishing a strict procedure for revi- of impact on the environment, its coor- sion and renewal of safety declaration, dination with the rules for issuing envi- specifying the grounds for that renewal ronmental permits, specifically those and the need for updating technical in- concerning environmentally dangerous formation on safety. activities, a list of sources and objects In the context of the said Directive, of increased danger, and conducting it is reasonable to establish procedures their state and public environmental for correction of the system for manag- expertise. ing increased danger sources in case Against this background, it is im- there appear changes that can cause an perative to implement the relevant ref- accident; revision of an inner plan of an ormation and create a strict system of increased danger enterprise; elaboration integrated environmental management and legalizing plans for emergency in the sphere of natural and biological management, in particular those devel- resource use, landscape conservation, oped with staff participation, and exter- high environmental quality and eco- nal emergency management plans de- logical safety, to enhance the anthropo- protective function of the state as to 1 Вказ. документ. – С. 28. environmental rights, in particular, the

№ 9/2017 245 Environmental, economic and agricultural law human and civil right to the environ- ments of the environmental legislation ment that is safe for life and health, to of the EU. make allowance for additional legal guarantees of those rights by the cited Published: Actual Problems of Convergence of Environmental Legislation of Ukraine with Law of Ukraine, which, to our mind, EU Laws : Materials of All-Ukrainian scientific would better be titled «On the Funda- and practical round-table conference, Oct.28, mentals of the Environmental Legisla- 2016, the city of Dripro / Editorial Board: V. І. Andreitsev [et al.]; Ministry of Education tion» after filling it with innovative and Science of Ukraine, The National Mining prescripts, arising from adaptation of University; Eurasian Association of Law Schools the environmental laws to the require- and Lawyers. – Dnipro : NMU, 2016. – P. 40–59.

246 Yearbook of ukrainian law V. Nosik, Doctor of Juridical Science, Pro- fessor at the Department of Land and Agri- cultural Law at the Taras Shevchenko Na- tional University of Kyiv, Professor, Associ- ate Member of the National Academy of Legal Sciences of Ukraine

UDC 349.6:342.7(477) PROBLEMS OF EXERCISE OF THE CONSTITUTIONAL RIGHT TO A SAFE AND HEALTHY ENVIRONMENT IN UKRAINE

In accordance with Part 1 Art. 3 of tees thereof shall determine the essence the Constitution of Ukraine an individ- and course of activities of the State being ual, his life and health, honour and dig- responsible to the individual for its ac- nity, inviolability and security shall be tivities, whereby affirming and ensuring recognised in Ukraine as the highest so- human rights and freedoms shall be the cial value. Biological and social sub- main duty of the State. stance of a human being as the highest Therefore, the State of Ukraine rep- social value expressed in the above men- resented by legislative, executive and tioned rule of the Fundamental Law of judicial authorities, as well as local gov- the State is substantially a methodologi- ernment authorities within the scope of cal framework for development, imple- regulatory and protective functions and mentation and entrenchment in Ukrai- powers provided by law shall ensure for nian society of the effective scientifi- every person the exercise and jurisdic- cally based legal model of state and legal tional protection of human and citizen protection of the right of every person rights, freedoms and duties affirmed in and citizen to life, health, safe environ- the rules of Title II of the Constitution of ment pursuant to the Universal Declara- Ukraine, including the right of everyone tion of Human Rights of 1948, the Eu- to an environment that is safe for life and ropean Convention on Human Rights of health, affirmed in the rule of Art. 50 of 1950, other international legal enact- the Constitution of Ukraine. ments on human rights and environment. Provided that such right of an indi- For this reason Part 2 Art. 3 of the Con- vidual to an environment that is safe for stitution of Ukraine provides for that life and health is violated and is not re- human rights and freedoms, and guaran- instated and is not fairly compensated by

№ 9/2017 247 Environmental, economic and agricultural law national legal remedies available in the right to an environment that is safe for State, then the State shall be responsible life and health, and to compensation for to the individual for violation of such damages caused by violation of this right for the purposes of imperative pro- right. visions of Part 2 Art. 3, Part 1 Art. 50, as In its substance and functional pur- well as Art. 16 of the Constitution of pose the rule of Part 1 Art. 50 of the Fun- Ukraine, pursuant to which ensuring en- damental Law of the State contains im- vironmental safety and maintaining eco- perative provisions which shall be bind- logical balance in the territory of ing and shall be observed, complied with Ukraine, overcoming the aftermath of and applied by all subjects of legal rela- the Chornobyl catastrophe – the catas- tions in view of recognition and effect in trophe of a global scale – and preserving Ukraine of the principle of the rule of the gene pool of the Ukrainian people, law, as well as the principle of direct ef- shall be the duty of the State. Responsi- fect of norms of the Constitution of bility of the State to the citizens of Ukraine affirmed in the norm of Part 2 Ukraine for violation of requirements of Art. 8 of the Constitution of Ukraine, the legislation on environmental safety according to which recourse to the court and the exercise by everyone of his/her for protection of constitutional rights and right to an environment that is safe for freedoms of an individual and citizen life and health, as well as protection of directly on basis of the Constitution of such right is confirmed by decisions of Ukraine shall be guaranteed. the European Court of Human Rights in It means that the State shall ensure few cases of the citizens of Ukraine for everyone equal opportunities for the against Ukraine, other citizens against exercise and legal protection of the right their states regarding protection of the to an environment that is safe for life and right to an environment that is safe for health solely based on the norms of life and health in conjunction with pro- Art. 8, 16, 50 and other norms of the tection of ecological, property and non- Constitution of Ukraine as the law of property rights from the perspective of superior legal effect and international judicial defence of rights to life, respect treaties ratified by the Verkhovna Rada for private and family life etc. of Ukraine, affirming human and citizen In this connection, the exercise by rights and freedoms for assurance and citizens of the constitutional right to an protection of life and health, honour, dig- environment that is safe for life and nity, inviolability and security, whereby health, as well as ensuring by the State taking into account also decisions of the of jurisdictional protection of such right European Court of Human Rights in becomes possible subject to correct un- cases on complaints concerning viola- derstanding, as well as an explanation tion and protection of legal rights con- and application of the rule of Part 1 Art. nected with environment as sources of 50 of the Constitution of Ukraine, ac- law. However, for the purpose of ensur- cording to which everyone shall have the ing implementation of the principle of

248 Yearbook of ukrainian law Problems of exercise of the constitutional right Nosik V. to a safe and healthy environment in Ukraine legality in enforcement and judicial pro- affirmation of the right to an environ- tection of the constitutional right to an ment that is safe for life and health is environment that is safe for life and aimed, firstly, to ensuring for every per- health, adoption of laws and other regu- son the right to life and protection of latory legal acts based on the Constitu- health, secondly, to ensuring rational use tion of Ukraine, which laws and acts and protection of environmental facili- shall conform to it, is not excluded. ties, thirdly, to creation of social condi- Therefore, application of such regu- tions which are safe and favourable to lation of Art. 50 of the Fundamental Law life and health of society. of the State in judicial practice requires, Pursuant to Art. 27 of the Constitu- firstly, explanation of legal nature of the tion of Ukraine «every person shall have right of everyone to an environment that the inalienable right to life. Protection of is safe for life and health; secondly, de- human life shall be the duty of the State». termination of the substance and nature Where by the notion «life» in the gen- of legal relations arising in connection eral theory of law and branch legal sci- with the exercise of such right; thirdly, ences is considered as physical, spiritual choice of legislative and regulatory and social existence of a human being as framework necessary for regulating legal a complex biological and social organ- relations; fourthly, determination of no- ism. tion and type of damage inflicted, as well In accordance with Art. 49 of the as legal grounds, conditions, methods of Constitution of Ukraine everyone shall compensation for damage caused by have the right to health protection, med- violation of such right. ical care and medical insurance. Accord- The right to an environment that is ing to the Constitution of the WHO safe for life and health affirmed in Art. dated July 22, 1946, the notion of 50 of the Constitution of Ukraine may «health» is defined as a state of complete not be considered as abstract or illusory, physical, mental and social well-being. as it is real and has particular legal con- Pursuant to Art. 6 of the Law of Ukraine tent, is characterized by such essential «On Fundamentals of the Legislation of features which enable considering it as Ukraine on Health Care» the right to an independent legal category and ex- health protection shall comprise not only plain its substance in objective and sub- the living standard necessary for main- jective meaning, is enforceable and tenance of human health, but also envi- therefore is subject to jurisdictional pro- ronment that is safe for life and health, tection in case of violation of such right. sanitary and epidemiological welfare of In objective meaning, the right to the territory and the population centers everyone to an environment that is safe in which the person resides, safe and for life and health is determined by the healthy working, learning, living and natural human right to life and full-value recreational conditionsetc. health since birth until death of an indi- In accordance with Clause 1. Art. 9 vidual. For this reason, constitutional of the Law of Ukraine «On Environmen-

№ 9/2017 249 Environmental, economic and agricultural law tal Protection» dated June 25, 1991 (as of Ukraine it is provided for that the right amended from time to time), the right to of everyone to an environment that is an environment that is safe for life and safe for life and health shall be consid- health in one of varieties of ecological ered in the theory of law and in admin- rights of the citizens of Ukraine, which istration of law as an independent com- shall be exercised and protected accord- plex social, state and legal phenomenon ing to the above mentioned and other which objectively exists in society, is laws of Ukraine. guaranteed by the Fundamental Law of In accordance with Art. 270 of the the State, has its own structure, content Civil Code of Ukraine the constitutional and functional purpose. right to an environment that is safe for The foregoing is confirmed by the life and health is affirmed as personal following arguments. Firstly, according non-property right among other non- to the Constitution of Ukraine solely in- property rights ensuring natural exis- dividuals shall be subjects of the exer- tence of an individual, in particular: right cise of such right. Secondly, environ- to life, right to health protection, right to ment as a complex natural, man-made freedom and personal inviolability, right and social formation shall serve as an to inviolability of personal and family object of the exercise of such right. life, right to respect for honour and dig- Thirdly, the content of such right com- nity etc. prises opportunities provided legisla- Therefore, in structured system tively for everyone not to create for one- terms, the right to an environment that is self and other people environmental safe for life and health as social value conditions dangerous to life and health, may be considered, firstly, as one of es- to demand from others to avoid actions sential features or one of elements of or omission creating environmental con- content of the human absolute right to ditions dangerous to human life and life guaranteed by the Constitution; sec- health. At the same time, the content of ondly, as an essential feature or one of such right comprises also the duties of elements of the right of an individual to the State, individuals and legal entities health protection; thirdly, as a variety of not to create environmental conditions ecological rights of citizens affirmed in dangerous to life and health, to prevent Art. 13, 16 of the Constitution of Ukraine occurrence of them or minimize risks of and in Art.9 of the Law of Ukraine «On their adverse effect on a human being. Environmental Protection» (hereinafter The right to an environment that is referred to as the Law «On EP»); fourth- safe for life and health objectified in the ly, as a separate type of personal non- Constitution of Ukraine shall be consid- property rights ensuring natural exis- ered from the perspective of the degree tence of an individual, affirmed in of freedom, equality and justice deter- Art. 293 of the Civil Code of Ukraine. mined legislatively, which shall be en- However, based on the meaning of sured by the State in social relations aris- the norm of Art. 50 of the Constitution ing, changing and discontinuing in con-

250 Yearbook of ukrainian law Problems of exercise of the constitutional right Nosik V. to a safe and healthy environment in Ukraine nection with the exercise by individuals destruction, deterioration, pollution of of the right to natural, man-made and environment shall be illegal; thirdly, ev- social environment which shall be safe eryone shall be entitled to demand ces- for human life and health. sation of such activity; fourthly, activity In subjective meaning, the right to an of an individual and a legal entity caus- environment that is safe for life and ing environmental damage may be health shall be considered as an oppor- ceased by court decision; fifthly, an in- tunity provided for legislatively for ev- dividual shall have the right to safe com- eryone to live or stay permanently or modities (foodstuffs and consumer temporarily in such natural, man-made goods); sixthly, an individual shall have and social environment which does no the right to proper, safe and healthy harm to health, allows using natural and working, living, learning conditions etc. other resources, excludes, prevents or As compared to the rules of the Civ- minimizes occurrence of negative risks il Code of Ukraine set out above, the of biological, ecological, economic, de- applicable ecological legislation does mographic and other nature. not explain ecological and legal content Whereas the right to an environment of the right to an environment that is safe that is safe for life and health affirmed in for life and health. For this reason eco- Part 1 Art. 50 of the Constitution of logical and legal substance of such right Ukraine is objectively determined by the is rather fully clarified in Ukrainian and inalienable natural human right to life foreign science of the ecological law and health, in the theory of civil law such from the perspective of implementation law is assigned to the absolute personal of constitutional and legislative guaran- non-property right ensuring natural ex- tees of the exercise of such right in the istence of an individual. General legal area of rational use, preservation,recovery, features of the personal non-property protection of natural resources, legal re- right are affirmed in Art. 269 of the Civ- sponsibility for violation of ecological il Code of Ukraine. legislation, compensation for damage However, the content of the personal according to the ecological legislation non-property right to an environment etc. that is safe for life and health is ex- The Fundamentals of the legislation plained in Art. 293 of the Civil Code of of Ukraine on health protection, the ex- Ukraine in the following constituents: ercise of the constitutional right to an firstly, an individual shall have the right environment that is safe for life and to an environment that is safe for life and health provides for ensuring sanitary and health, the right to receive valid informa- epidemiological welfare of territories tion about the environmental situation, and population centers (Art. 27), cre- the quality of foodstuffs and consumer ation of safe and healthy working, learn- goods, as well as the right to disseminate ing, living and recreational conditions such information; secondly, activity of (ст.28), preservation of the gene pool of an individual and a legal entity causing the Ukrainian people (Art. 29), preven-

№ 9/2017 251 Environmental, economic and agricultural law tion of infectious diseases dangerous for or remote positive or negative effect on population (Art. 30). a man, his health and life. In the same The Constitutional right to an envi- way, a man by his actions may influence ronment that is safe for life and health is the environment. For this reason, it is affirmed and represented in other acts of important for researching legal nature of the national legislation of Ukraine. How- the right to an environment that is safe ever, the notion of «safe environment» for life and health to take into consider- as a legal category is explained neither ation the continuous system of such rela- in constitutional, nor in civil, nor in eco- tions as «man-environment», «man-life- logical legislation. environment» and «man-health-environ- Explanatory dictionaries of modern ment». Ukrainian language interpret the term The above-mentioned etymological «environment» in several meanings, in meanings of the term «environment» are particular as follows: а) «surrounding explained in the applicable ecological environment with regard to an individu- legislation, in particular, Art. 9 of the al or a group of individuals being in it»; Law «On EP» refers to natural environ- b) natural environment, the aggregate of ment the substance of which is deter- all living and non-living objects being mined in Art. 5 of the above mentioned present in a particular region without Law as the aggregate of natural and human influence; c) people surrounding natural and social conditions and pro- an individual; d) surrounding area; cesses, natural resources involved in e) outlying districts. economic turnover as well as not used in As we can see, the etymology of the economics at present (land, resources, word «environment» is explained waters, atmosphere air, forest and other through the notion «surrounding» and vegetation, animal world), landscapes relates to human life in space and time and other natural complexes. Further- in surrounding natural environment, that more, the law assigns to natural environ- is in the biosphere as the external shell ment territories and objects of nature of the Earth embracing the part of the reserve fund of Ukraine and other terri- atmosphere, hydrosphere and the upper tories and objects determined according part of the lithosphere, as well as in en- to the legislation of Ukraine. vironment formed as a result of anthro- The applicable land, urban planning, pogenic effect on the biosphere, that is civil, sanitary and epidemiological, la- in the technosphere, as well as being in bour, medical and other legislation of social environment in which a human Ukraine explains the notion «surround- being lives and acts. Human life cycle in ings» in the meaning of territories, pop- environment goes on in continuous ulation centers, urban planning objects, «man-environment» interrelation in places of employment, residence, recre- which man’s environment may from ation which may be assigned to the no- time to time in the presence of particular tion «man-made environment» or «tech- factors have direct or indirect, immediate nospere».

252 Yearbook of ukrainian law Problems of exercise of the constitutional right Nosik V. to a safe and healthy environment in Ukraine

Based on analysis of regulations of the main criteria of quality or safety of the applicable constitutional, administra- natural environment. tive legislation the etymological mean- Ecological normative standards es- ing of the term of environment from tablish maximum allowable emissions a legal perspective may be interpreted as and discharges into environment of pol- a certain social community comprising luting chemical agents, levels of permis- separate or joined territorial communi- sible harmful impact of physical and ties, administrative-territorial entities, biological factors on it. The legislation territories with special legal status etc. of Ukraine may establish normative Therefore, within the legal meaning standards of use of natural resources and the notion «environment» is a complex other ecological normative standards. legal category comprising natural envi- Ecological normative standards shall be ronment (biosphere), man-made envi- established taking into account the re- ronment (technosphere), and social en- quirements of sanitary and hygienic, vironment (social life sphere) which sanitary and anti-epidemic rules and under the Constitution of Ukraine shall standards, hygienic regulations. Norma- be safe for human life and health. tive standards of maximum allowable The applicable legislation of Ukraine concentrations of polluting agents in does not explain the notion «safe» envi- natural environment and levels of harm- ronment in the context of Art. 50 of the ful physical and biological impact on it Constitution of Ukraine. Furthermore, shall be uniform for the whole territory the applicable legislation does not deter- of Ukraine. mine criteria of environment that is safe In accordance with Art. 1 of the Law for life and health. For this reason, it is of Ukraine «On Ensuring Sanitary and understood that the main criterion for Epidemiologic Welfare of Population» determination of the notion «safe» shall state sanitary normative standards and mean absence of danger for a man that rules, sanitary and hygienic, sanitary and may be created by certain dangerous en- anti-epidemic rules and standards, sani- vironmental factors, or minimization of tary and epidemiological rules and stan- occurrence of risks dangerous to life and dards, anti-epidemic rules and standards, health from dangerous natural, man- hygienic and anti-epidemic rules and made or social environmental factors. standards, state sanitary and epidemio- Pursuant to Art. 50 of the Law of logical standards, sanitary regulations Ukraine «On EP» the condition of natu- (hereinafter referred to as the «sanitary ral environment shall be recognized as standards») shall be binding. ecologically dangerous, where preven- In accordance with Art. 2 of the Law tion of environmental deterioration and of Ukraine «On Fundamentals of Urban occurrence of danger to human health is Planning» one of the main directions of ensured. Pursuant to such Law, ecologi- urban planning is protection of inhabit- cal standards and regulations (Art. 31–33 able and natural environment against of the Law «On EP») shall be considered harmful impact of man-made and social

№ 9/2017 253 Environmental, economic and agricultural law factors, hazardous natural phenomena, hygienic requirements for human health preservation of cultural heritage. protection, implementation of measures The above mentioned Law shall in for neutralization, disposal, destruction the course of carrying out urban plan- or recycling of all hazardous substances ning activities provide for development and waste, established by environmental of urban planning documentation, de- legislation. signs of particular facilities according to Criteria of environmental safety af- initial data for designing, in compliance firmed in the applicable legislation may with state standards, regulations and be considered by their legal nature as rules, layout and construction of facili- qualifying features, according to which ties pursuant to urban planning docu- the facts of violation of everyone’s right mentation and designs of such facilities to an environment that is safe for life and approved according to the established health shall be established according to procedure, rational use of lands and ter- the procedure established by law, and ritories according to land legislation etc. according to which the grounds, forms, (Art. 5 of the Law). methods, the procedure of protection of Whereby construction regulations, such right shall be determined, including state standards, regulations and rules es- compensation for damage caused by tablish a complex of qualitative and such violation of right, as provided by quantitative indicators and requirements Part 1 Art. 50 of the Constitution of regulating development and implemen- Ukraine. tation of urban planning documentation, Scientific and theoretical analysis of designs of particular facilities taking into content of the rule of Art. 50 of the Con- account social, natural and climatic, hy- stitution of Ukraine shows that every- drogeological, ecological and other con- one’s right to an environment that is safe ditions and are aimed at ensuring forma- for life and health and to compensation tion of full-value inhabitable environ- for damage caused by violation of such ment and the best conditions of human right affirmed therein shall be considered activities (Art.16). as social value of a man and as a state Pursuant to Art. 19 of the above legal phenomenon which shall be recog- mentioned Law, in the course of devel- nized in society and shall be enforced by opment and implementation of urban the State by means of legislative affirma- planning documentation, the subjects tion of guaranties of the exercise by in- of urban planning activities shall com- dividuals of such right and justiciability ply with basic tasks and measures for in case of violation of it with compensa- ensuring stable development of population for moral and financial damage. tion centers and environmental safety Subjects of the exercise of such right of territories, that is compliance with shall comprise all individuals to whom requirements for protection of natural the Constitution of Ukraine guarantees environment, preservation and rational equal opportunities for everyone to be in use of natural resources, sanitary and to an environment that is safe for life and

254 Yearbook of ukrainian law Problems of exercise of the constitutional right Nosik V. to a safe and healthy environment in Ukraine health, to demand first of all from the In its content the subjective right to an State, as well as from other individuals environment that is safe for life and health and legal entities not to cause harm di- provides for implementation of such op- rectly to human life and health, to fa- portunities stipulated by law: firstly, per- cilities of natural environment, other manent or temporary stay or residence in environmental facilities, by their actions favourable environment safe for human or omission not to create a threat to hu- life and health; secondly, to demand from man life and health, to demand compen- the State, individuals and legal entities sation for property, ecological damage removal of any obstacles in exercising inflicted, as well as compensation for such right according to law; thirdly, to moral damage caused by violation of the demand from individuals and legal enti- right of everyone to an environment that ties cessation of activities causing de- is safe for life and health. struction, deterioration, pollution of envi- Objects of the exercise of such right ronment; fourthly, access to information shall comprise environment, that is con- about the environmental situation, the stituent elements of natural environment quality of foodstuffs and consumer goods; fifthly, jurisdictional protection of the (biosphere – atmosphere, hydrosphere, violated right for the purpose of its re- lithosphere), technosphere (regions of newal (reinstatement); sixthly, defence of cities, industrial areas, production and the violated right by means of compensa- living environment) and social environ- tion for property and ecological damage, ment the impact of which on a man shall as well as compensation for non-property conform to natural, as well as technical, (moral) damage. ecological and other terms of safety of man’s being in environment established Published: Соціологя права. – 2016. – by law. № 1–2 (16–17). – С. 84–90.

№ 9/2017 255 A. Stativka, Doctor of Law, Professor Yaro- slav Mudryi National Law University, Cor- responding Member of the National Acad- emy of Legal Sciences of Ukraine

UDC 349.42 Legal framework of state support of agriculture as a means of ensuring food security

After joining the World Trade Orga- tion of the financial, credit, insurance, nization (hereinafter – the WTO) Ukraine tax and budget policy, sustainable intra- has taken a number of commitments, and inter-economic relations. such as – to bring the domestic govern- Domestic legislation does not define ment support for agricultural producers the state support of agricultural produc- in accordance with the requirements of ers, which is crucial for its realization. the Agreement on Agriculture, which Analysis of current agricultural legisla- provided for a gradual restriction mea- tion, the current state of agriculture and sures that have a direct impact on trade other factors gives I. P. Safonov the abil- and production (actions of the so-called ity to determine state support of agricul- «amber box»). The analysis of national ture as a variety of purposeful activity of legislation on state support of agricul- the state: firstly, the establishment and functioning of agricultural producers; tural producers plays a key role in the secondly, the adoption of relevant laws process of establishment of an efficient and regulations; thirdly, the creation of agricultural production and food secu- a system and the determination of the rity, making it possible to identify ways tasks, functions, jurisdiction of state au- of improvement in order to bring it in thorities obliged to provide support to line with international standards. the agriculture1. One of the main priorities of the However, in modern terms the nature state agrarian policy is government sup- of state support for domestic agricul- port of agricultural producers, made possible by focusing public resources on 1 Сафонов І. Правові проблеми державної priority areas of development, facilita- підтримки сільськогосподарських виробни- ків // Право України. – 2005. – № 6. – С. 56.

256 Yearbook of Ukrainian law Legal framework of state support of agriculture Stativka A. as a means of ensuring food security tural producers resides in the need to e) the relationship of state agencies, local create conditions for effective stimula- governments, NGOs and individuals; tion of the functioning of agricultural f) legitimacy, etc. producers, the production of high-qual- The possible measures of the state ity agricultural products and raw materi- support for the domestic agricultural als, satisfy the needs of the population producers are the subject of a separate and processing industry in its products, study. Here it is appropriate to focus only the high motivation of agricultural work- on the certain types of such support in ers establishment of farm structure, pric- the aspect of the completeness and effi- ing, financial and credit relations, forma- ciency of its legal regulation. It is neces- tion of material-technical base of agri- sary to assume that forms of state sup- culture, market relations in agriculture, port of the agricultural producers can rural social problems etc. 1 and should be filled with the different Legal regulation of state support for content depending on the needs of the domestic agricultural producers is aimed particular type of such support.2 State at implementing two major functions. support is provided by both the state and The first is to ensure food security. This local budgets. is understood as providing people with An important form of government food from their own resources. Second, support is proper pricing of agricultural is to create guarantees for employment products. In relation to the method of in agriculture considering its specifics formation in the economic theory, prices related to seasonality, dependence on are divided into competitive, monopo- weather and climate, the high cost of the listic and regulated. Regulated prices necessary industrial infrastructure and constitute a system of state regulation of processes supporting land (as a means of prices, which has economic and admin- production) compared to the cost of final istrative means. Economic instruments product. include the introduction of price support, State support for agricultural produc- they are widely used in the economy ers is based on a set of predefined prin- overall. A prolonged time period is re- ciples. Among the others, they include: quired for a price to react to the introduc- a) the recognition, observance and pro- tion of indicative (regulated prices tection of agricultural producers and ru- formed on the basis of the agreement of ral population; b) professionalism in the the parties, may not exceed or be below exercise of state support for agricultural a certain level specified by the compe- producers; c) the sustainable develop- tent public authority) and imperative ment of agricultural production; d) sci- (fixed prices are final version of the price entifically grounded combination of eco- and not the seller nor the buyer is not nomic and environmental interests; 2 Козырь М. И. Аграрное право России: 1 Сафонов І. Правові проблеми державної состояние, проблемы и тенденции развития підтримки сільськогосподарських виробни- ( М. И. Козырь. – 2‑е изд., перераб и доп. – ків // Право України. – 2005. – № 6. – С. 54–55. М.: Норма, 2008. – С. 140.

№ 9/2017 257 Environmental, economic and agricultural law entitled to deviate from them) price reg- 4. The boundaries of the implementa- ulation, their use is limited, the application of state price regulation is an orga- tion of these affect the prices immedi- nized market of agricultural products, ately. the market exchange trading; 5. Objects The economic means of the state of state regulation are clearly defined in regulation of prices for the agricultural legislation types of agricultural prod- products include interventional opera- ucts – hard wheat, soft wheat, grain tions, compensation, application of the mixture of wheat and rye (meslin), corn, mechanism of subsidies and conces- barley, winter rye, spring rye, peas, sional lending. Administrative tools, pro- buckwheat, millet, oats, soybeans, sun- vided for in article 191 of the Civil code flower seeds, rapeseeds, flax seeds, hop of Ukraine,1 include the establishment of cones, sugar (beet), flour of wheat, rye state and utility fixed prices, the bound- flour, meat and offal of slaughter ani- ary levels of prices, limits of trade allow- mals and poultry, milk powder, butter ances, limit norms of profitability or by and sunflower oil. introducing the mandatory declaration The Law of Ukraine «On state sup- of price changes. port of agriculture of Ukraine» defines In the legislation of Ukraine, the a complex mechanism of the state regu- state regulation of pricing for agricul- lation of prices for the agricultural prod- tural products is economic and adminis- ucts through consistent implementation trative ways is provided in a mixed form, of such regulations: setting minimum because there is no clear distinction be- and maximum intervention prices; to use tween them and independent order of of the commodity and financial interven- application. tions; to establishment of a temporary According to article 3 of the Law of administrative regulation of prices; to Ukraine «On state support of agricul- use of the budgetary subsidies. The min- ture of Ukraine» the main provisions of imum and maximum purchase prices the state price regulation are as follows: isn’t an independent means of regula- 1. The state regulation shall be subject tion, it is a tool application intervention only to wholesale prices, it is performed operations, a temporary administrative in the sphere of retail trade; 2. The regulation, the temporary budget subsi- mechanisms of the regulation is to es- dies. These elements constitute a single tablish minimum and maximum inter- mechanism and must be used only in the vention prices, the application of other sequence specified in the Law. measures envisaged by legislation; 3. The substantial state support of the The condition of realization is compli- agricultural producers is a subsidy. The ance with the Antimonopoly legislation; grant (from lat. – a gift, a donation) is non-repayable cash assistance that is 1 Господарський кодекс України: від 16 provided from the state budget organiza- січня 2003 року // [Електронний ресурс]. – tions, enterprises, local authorities, pri- Режим доступу : http://zakon4.rada.gov.ua/ laws/show/436–15. vate entities to cover losses, compensa-

258 Yearbook of ukrainian law Legal framework of state support of agriculture Stativka A. as a means of ensuring food security tion of losses, balancing local budget and whole milk extra, premium, the first and others targets.1 second grades (aren’t subjected to any In Ukraine are subsidized, generally handling, processing or packaging for inefficient productions, which are impor- the requirements of further sale); shorn tant for the national economy. The con- wool; the cocoons of the silkworm; hon- cept of «subsidies for agricultural pro- ey natural. The objects of the special duction» there is in the legislation. Laws budget grants there are cattle large regulate subsidies to agricultural produc- horned dairy, the large horned cattle of ers in Ukraine «On state budget of meat, the young cattle of different ages; Ukraine» and «On state support of agri- the horses; the sheep; the pigs. culture of Ukraine». The law on State The objects of the special budget budget determines only the amount of grants are also bee family defined as funds that will be allocated to finance the such in accordance with the Law of industry, and the Cabinet of Ministers Ukraine «On beekeeping» of February establishes the utilization of budgetary 22, 2000 and the products of sericulture. funds. A direct manufacturer of the object of In article 15 of the Law of Ukraine such grant is either the subject (recipi- «On state support of agriculture of ent) budget grants or special budget Ukraine»2 states the following: the Cab- grants. inet of Ministers of Ukraine, when plan- Special budgetary subsidy is avail- ning the expenditures of the state budget able only upon animals that have passed for the next year, provides for expendi- registration and identification in accor- ture on the provision of subsidies to live- dance with the Law, subject to full im- stock producers (hereinafter referred to plementation of the system of subse- as – budgetary subsidies). Budgetary quent control over target use of budget- subsidies are given in order to support ary funds provided for these needs. The the level of effective demand of the Cabinet of Ministers of Ukraine annu- Ukrainian consumers of animal products ally adopts the resolution on regulations and preventing loss of the Ukrainian for the provision of budget grants and manufacturers such products. special budget grants, based on the stan- The objects of the budget grants ac- dards of this article; upon submission of cording to this article there are cattle; the central executive body on agrarian pigs; sheep; horses; poultry; rabbits; policy sets minimum acceptable level of prices for livestock products, which is 1 Райзбер Б. А., Лозовський Л. Ш., Старо- used as the basis for calculation of sub- дубцева Е. Б. Современный экономический словарь. – 2‑е изд., исправ. – М.: ИНФА – sidies, as well as for pricing, when pur- М. – 1999. – 495с. chasing animal products directly from 2 Про державну підтримку сільського the manufacturer. господарства України: Закон України від 24 That is, agricultural producers in червня 2004 р. № 1877‑IV [Електронний ре- Ukraine can receive budgetary livestock сурс]. – Режим доступу : http://zakon4. rada.gov.ua/laws/show/1877–15. subsidies (hereinafter referred to as –

№ 9/2017 259 Environmental, economic and agricultural law subsidy budget). It is at the expense of one family breeding a bee, that was in the State budget of Ukraine only for do- the ownership of the subject of subsidies mestic livestock producers and aims at the beginning of the next fiscal year; are:1 keeping the level of solvent demand based on the increase in the number of of Ukrainian consumers of animal prod- heads purebred (thoroughbred) breeding ucts; preventing an average loss of animals and breeding of bee colonies, Ukrainian producers of livestock prod- which were owned by the subject of bud- ucts. getary subsidies at the end of the next The Law contains provisions regard- fiscal year. The increase is relative to ing the objects and subjects of the bud- their number at the beginning of the re- getary cattle-breeding subsidy. The ob- spective fiscal year. jects like grants are distributed for two The budgetary livestock subsidies types. The Law also defined the objects and special budgetary livestock subsi- of budgetary livestock subsidies and spe- dies differ (in animal products). The special budgetary livestock subsidies. The cial budgetary subsidies in article 15, subject (recipient of budgetary subsidies paragraph 15.9 of the Act stipulates, that (including special) is a direct manufac- it is only available on animals that have turer of animal products, which is re- passed registration and identification in lated to such grants. The entity, what accordance with the law. The legal re- providing the subsidy budget, there is the gime of the special budgetary grant is Agrarian Fund. Like the subsidy is pro- also characterized by the presence of vided to the last in order defined by the a system of subsequent control over tar- Cabinet of Ministry of Ukraine. get use of budgetary funds, are provided The same for the budget and specifi- as subsidies. cally the budget subsidies is that, their The Cabinet of Ministers of Ukraine size is set at fixed amounts per head of determines the mode of use of budget object subsidies (farm animal), which grant and special budget grant for the were in the ownership of the subject relevant fiscal year. The calculation of grants at the beginning of the next fiscal the amount of subsidy for the relevant year. Additionally, the size of budgetary year must be provided as an addition to subsidies established by the Cabinet of the draft Law of Ukraine on State budget Ministers of Ukraine in fixed amounts of Ukraine for the next year. based on: a metric unit of live weight In Ukraine there is also plant grant- sold (realized) object subsidies or metric ing alongside with cattle-breeding grant- unit of weight the sale of milk and wool; ing. According to the legislation there are the following characteristics subsi- 1 Науково-практичний коментар до За- dies in agricultural production: the grant кону України «Про державну підтримку is non-repayable cash assistance; the сільського господарства України / За заг. ред. grant is from the state budget; the amount А. М. Статівки // Бюлетень законодавства of subsidy is set in fixed amounts; the і юридичної практики України. – 2005. – № 10. – С. 115–121. grant is in the order determined by the

260 Yearbook of ukrainian law Legal framework of state support of agriculture Stativka A. as a means of ensuring food security

Cabinet of Ministers of Ukraine; subject production is of strategic importance and (recipient) budgetary subsidies (includ- is the main function of the state, because ing special) is a direct manufacturer of it affects not only food, but also the na- animal products, which refers to objects tional security of the country1. such grants, namely, it is provided in We can agree with the reasoning of accordance with the legislation of pro- P. F. Kulinich, that the regulation of the cessing enterprises of all ownership economy, the policy of resource provi- forms, which have their own or rented sion of agriculture has certain disadvan- processing facilities, agricultural pro- tages. First, it is related to the problems ducers, regardless of the form of owner- subsidiaries industries.2 Therefore, there ship and management, including main- are two alternatives: either to subsidize taining a personal country economy; the the production of resources for agricul- entity, that providing the subsidy budget, ture or to raise prices for agricultural there is Agrarian Fund; the purpose of products. providing subsidies is to maintain the From the perspective of society, sub- level of solvent demand of Ukrainian sidizing of production resources for ag- consumers of animal products and pre- riculture is more appropriate than the vent the average unprofitability of Ukrai- maintenance of prices for agricultural nian producers of agricultural products. products. This subsidy makes it possible Based on the characteristic, subsidies to reduce production costs of agricul- in agricultural production is a non re- tural enterprises and not to raise the fundable cash assistance from the state prices of agricultural commodities in budget, in the order determined by the terms of increasing its production. This Cabinet of Ministers of Ukraine, the pro- would benefit all society, not only man- cessing enterprises of all forms of own- ufacturers and industry resources for ership and management, including main- agriculture. The subsidies for the pro- taining the personal peasant economy, in duction of resources for agriculture have the cases provided by law, to support the several disadvantages, like any effect in level of effective demand of Ukrainian the economy regarding the regulation of consumers of animal products and pre- market mechanism. vent the average unprofitability of Ukrai- First, the difference between low nian producers of agricultural products. domestic prices of resources due to sub- The problems of food security in dif- sidies and high world prices for such ferent countries have both common fea- resources is not efficient from the point tures and significant differences that 1 Верзун А. А. Основні напрями держав- relate to the mentality of the inhabitants, ної фінансової підтримки сільського госпо- national traditions, level of development дарства // Науковий вісник Національного of productive forces and production rela- аграрного університету. – № 44. – С. 237. tions, the place occupied by the country 2 Кулинич П. Ф. Організаційно-правове in world politics. The reliable food sup- засади розвитку аграрного і земельного рин- ків в Україні. – К.: Юрид. думка, 2006. – ply of population at the expense of own С. 215.

№ 9/2017 261 Environmental, economic and agricultural law of view of the whole economy. Conse- Thus, directions of state regulation quently, there is inefficient allocation of of agro-industrial market in many coun- resources between different sectors tries of the world, despite the level of within the country, as producers use their development, are aimed at support- distorted price information, resulting in ing farmers’ incomes. Developed states financial and material resources flow use various instruments of state support into less efficient industries, which los- of the industry (government assistance es all society. program for agricultural producers, ex- Secondly, it is a problem of control port subsidies, quotas, tariffs etc.). All of over the use of subsidies and rising pro- them are members of the WTO. There- duction costs. This refers to the trend of fore, membership in this organization growth of production costs in the condi- puts Ukraine in front of the problem of tions of the grant. This applies to any development and realization of such di- sector of the economy. In terms of sub- rections of an agrarian policy, which sidy, the manufacturer disappear stimuli would not only provide the necessary to rational use of resources and, conse- level of food security, but also conform quently, to the reduction of production to the requirements of the trade, carry costs. out in the framework of the WTO. Thirdly, there is the problem of compensation of expenses on subsidies from Published: Актуальні проблеми правового the state budget. забезпечення продовольчої безпеки України: монографія / О. М. Батигіна, В. М. Корнієнко And, fourthly, it is a problem of inef- та ін. за ред. В. Ю. Уркевича та ficient use of cheap resources in agricul- М. В. Шульги. – Х.: «ОП Шевченко С. О.», ture. 2013. – С. 85–120.

262 Yearbook of ukrainian law M. Shulha, Doctor of Law, Professor, Head of the department of land and agrarian law Yaroslav Mudryi National Law University, Corresponding member of NALS of Ukraine

I. Ihnatenko, PhD in law, assistant at the Department of Land and Agrarian Law Yaroslav Mudryi National Law University

UDC 349.41 THE LEGAL BASIS OF EXPANDING THE POWER OF LOCAL COUNCILS IN THE SPHERE OF LAND RELATIONS

All the innovations that occur at the with the further distribution of proved legislative level require study and analy- options. The most problematic issue un- sis to ensure the correct implementation der present conditions is the realization of the relevant provisions in practice, of powers of local government in land especially given the ambiguity of the management. legal practice that has developed in the The theoretical basis of this re- land legislation. Now, there are many search consists of works of legal schol- frequent cases when the same legal rules ars: V. I. Andreytsev, V. P. Balezin, are applied differently in consideration Y. O. Vovk, B. V. Erofeev, I. I. Kara- of similar issues. This, in turn, encour- kash, N. V. Krasnov, P. F. Kulinich, ages specialists to search for optimal A. M. Miroshnychenko, V. V. Nosik, solutions for solving contentious issues Y. S. Shemshuchenko and others.

№ 9/2017 263 Environmental, economic and agricultural law

The purpose of the article is a com- sphere of land relations. Such a need is prehensive analysis of the legislation on caused by the adoption of the Land Code the expansion of the powers of local of Ukraine on 25.10.2001, so as adoption government in land relations. of a number of regulations on its devel- It is known that the 90‑ies were opment. marked with the launch of the land re- According to art. 5; 10 of the Law of form, which is associated with the adop- Ukraine «On local government in tion of the Resolution of Supreme So- Ukraine» village, town and city councils viet of USSR «On land reform» on are recognized as local authorities rep- 18.12.1990. The exclusive state owner- resenting the respective municipalities ship of land has played the role of foun- and carrying out on their behalf and in dation of the land order in the state for their interest functions and powers of more than half a century. Then, the dif- local government according to the Con- ferentiation of public land ownership has stitution of Ukraine and laws of Ukraine. been proposed. Municipal and private The competence of local govern- property were declared along with state ments is not any question of public life, ownership of land. Moreover, all these but only questions of local importance. forms of land ownership were declared The list of such issues is defined in the equal by the law. In the future, land (land Constitution of Ukraine and the Law of plots) was pronounced as real estate and Ukraine «On local government in was included in the civil circulation ac- Ukraine». In particular, according to the cording to the Civil Code of Ukraine. law local issues include regulation of However, the Constitution of Ukraine land relations by village, city councils. (Art. 13) declared the land as an object Land issues are solved exclusively of the right of property of the Ukrainian by the relevant local council at its ple- people. Bodies of state power and bodies nary sessions. According to Article 46 of of local self-government within the lim- the Law of Ukraine «On local govern- its determined by this Constitution exer- ment in Ukraine» village, town, city, city cise ownership rights on behalf of the district (if established), district, regional Ukrainian people. council carries out its work sessions. In Ukraine, the land reform in settle- Paragraph 34 of Article 26 of abovemen- ments has not been completed yet. The tioned law establishes that the decisions implementation of land-reform measures on the regulation of land relations are should transform the land within cities appointed exclusively in plenary ses- and villages into the basic resource of sions of village, town or city council. the sustainable social and economic de- According to Article 59 of the Law velopment of local communities. of Ukraine «On local government in It should be noted that it is necessary Ukraine» a Council within its authority to clarify some fundamental provisions adopts regulations and other acts in the of legislation of Ukraine, which define form of solutions. It is known that there the powers of local authorities in the are normative acts that establish, modify

264 Yearbook of ukrainian law The legal basis of expanding the power Shulha M., Ihnatenko I. of local councils in the sphere of land relations or suspend legal norms, which are local town and city councils. Article 33 of this in nature, related to a wide range of peo- Law defines in more detail the powers of ple and used repeatedly. Non-normative village, town and city councils of both acts also include specific regulations ad- their own and delegated by executive dressed to a single subject or a legal per- bodies. They include the preparation and son characterized as one of a single use. submission to the Council of proposals This conclusion is consistent with the for withdrawal (redemption) and provid- legal positions of the Constitutional ing for building on or other uses for Court of Ukraine, summarized in the lands owned by local communities; for judgment on December 27, 2001 the establishment of land tax rates; mon- № 20‑rp / 2001 (the first paragraph, i. 6 itoring the observance of land legisla- of the reasoning part) and of 23 June tion, land use and protection; registration 1997 № 2 (Paragraph four of p. 1 of the of land use and lease agreements for reasoning part)1. land. The local council has no right to Article 12 of the Land Code of make a decision on the transfer to any Ukraine defines the powers of village, other local authority (or the executive town and city councils in the sphere of authority, municipal enterprise, organi- land relations more clearly, namely: zation) of their powers to regulate land a) disposal of lands of local communi- relations. This requirement is enshrined ties; b) transfer of municipal land to in Article 19 of the Constitution of property of citizens and legal entities in Ukraine – Bodies of state power and accordance with this Code; c) provision bodies of local self-government and their of land in the land use of municipal prop- officials are obliged to act only on the erty; d) withdrawal of land plots mu- grounds, within the limits of authority, nicipal property; e) purchase of land for and in the manner envisaged by the Con- public needs of the local communities of stitution and the laws of Ukraine. In ad- villages, towns and cities; f) land man- dition, one should keep in mind that no agement organization; g) coordination of law provides the right of local councils activities of local land resources; to transfer their exclusive powers to an- h) monitoring the use and protection of other body. lands of municipal property, land and Thus, according to Art. 26 of the Law compliance with environmental legisla- of Ukraine «On Local Government in tion; i) preparation of conclusions on Ukraine» the right to resolve issues on withdrawal (redemption) and the provi- the regulation of land relations belongs sion of land; j) establishing and changing to the exclusive competence of village, the boundaries of districts in cities with district division; k) informing the public 1 Рішення Конституційного Суду України about withdrawal (redemption) of land від 16.04.2009 р. № 7‑рп/2009 // База даних plots; l) submitting proposals to the dis- «Законодавство України»/ВР України. URL: trict council on establishing and chang- http://zakon2.rada.gov.ua/laws/show/ v007p710-09/conv. ing boundaries of villages, towns and

№ 9/2017 265 Environmental, economic and agricultural law cities; m) resolving land disputes; n) oth- at all levels of administrative and territo- er issues in the sphere of land relations rial structure of the state. according to the law. Тhe following The essence of the decentralization powers gain wider detalization in other is the transfer of significant powers and norms of the Land Code of Ukraine and budgets of state agencies to local gov- some other laws of Ukraine. ernments. The process of decentraliza- The Constitutional Court of Ukraine tion of power has not gone round the on this issue underlines that powers regulation of division of powers on land specified in paragraphs «a», «b», «c», issues, in particular relations of posses- «d» of the article (Art. 12 LC Ukraine) are sion, use and disposition of land. referred to the term «other issues of local According to the Concept of reform- importance» (Art. 143 of the Constitu- ing the local government and territorial tion of Ukraine) and therefore the vil- organization of power in Ukraine2 ad- lage, town and city councils act as agents ministrative reform of decentralization of authorities that implement regulatory of power, including in the sphere of land and other functions1. relations, is provided by: 1) determining A systematic analysis of the Law of of reasonable territorial basis for the ac- Ukraine «On local government in tivities of local authorities and executive Ukraine» (namely Article 10, Arti- bodies that can provide availability and cles 16, 17, 18, 25, 26, etc.) shows that quality of public services provided by local governments in matters of local such authorities and necessary for this importance assigned by the Constitution resource base; 2) the creation of appro- of Ukraine and laws of Ukraine, act as priate material, financial and organiza- public authorities that perform power tional conditions for providing by local management functions, including nor- authorities their own and delegated pow- mative, coordinating, licensing, registra- ers; 3) separation of powers in the sys- tion, prescribing. As subjects of power, tem of local authorities and executive local governments have the final say bodies at various levels of administrative within the law issues in land relations. and territorial structure on the principle Modern Ukraine is in the process of of subsidiarity; 4) separation of powers the administrative reform of decentral- between the executive bodies and local ization. Establishment of such a rule was authorities on the basis of decentraliza- caused by a number of economic and tion of power; 5) implementation of the political conditions for the establishment mechanism of state control over the of stable and effective system of public 2 administration in Ukraine as a whole and Про схвалення Концепції реформування місцевого самоврядування та територіальної організації влади в Україні : Розпорядження 1 Рішення Конституційного Суду України Кабінету Міністрів України від 01.04.2014 р. від 1.04.2010 р. № 10‑рп/2010 // База даних № 333‑р. // База даних «Законодавство Украї- «Законодавство України»/ВР України. URL: ни»/ВР України. URL: http://zakon3.rada.gov.ua/laws/show/ http://zakon2.rada.gov.ua/laws/show/333– v010p710–10. 2014‑р.

266 Yearbook of ukrainian law The legal basis of expanding the power Shulha M., Ihnatenko I. of local councils in the sphere of land relations compliance of the Constitution and laws of local governments regarding disposal of Ukraine, decisions of local govern- of lands only within settlements reduces ments and provision of quality public the financial basis of local government, services; 6) maximum involvement of which was a precondition for decentral- people in decision-making, promoting ization reform and legislative consolida- forms of direct democracy; 7) improve- tion. ment of the mechanism of coordination Thus, paragraph 213 of the Action of local authorities. Plan for the implementation of Program In the process of local government of the Cabinet of Ministers of Ukraine reform for regulation of land relations in and the Strategy of Sustainable Develop- Ukraine public authorities and local gov- ment «Ukraine – 2020» in 20151, ex- ernments are given a number of powers tends the list of land relations that are and they must provide services that en- managed by the local authorities. It pro- sure the appropriate regulation of land vides the legal regulation of issues relat- relations in the following areas: land ing to the transfer to municipal property ownership; relations regarding legal land of state-owned land located outside rights derived from ownership; legal re- settlements except those on which ob- lations arising in connection with the jects of state property were built. rights of public land; relations in the Today there is a draft of the Law of sphere of use and protection of lands; attributing state owned lands outside the legal security of land etc. settlements to municipal property of A process of changing the govern- combined local communities2. It offers ment, redistribution of functions of state to transfer all state-owned lands which and local governments by granting the located outside settlements to municipal local governments’ greater importance property of local communities of vil- and more powers comparing to previous lages, towns, cities, united under the years is based on this reform. Law of Ukraine «On voluntary amalga- The process of transfer of power to the local level and implementation of the 1 Про затвердження плану заходів з вико- wide structure of executive power at the нання Програми діяльності Кабінету local level are provided. Several draft Міністрів України та Стратегії сталого роз- витку «Україна – 2020» в 2015 році: Розпо- laws are registered in the parliament to- рядження Кабінету Міністрів України від day. According to them powers of local 04.03.2015 р. № 213‑р. // База даних «Законо- government can be significantly expand- давство України»/ВР України. URL: ed in the future including the sphere of http://zakon5.rada.gov.ua/laws/show/213– land relations. 2015‑р#n9. 2 Про віднесення земель державної вла- For example, today the local councils сності за межами населених пунктів до ко- cannot manage lands outside the settle- мунальної власності об’єднаних територіаль- ments. This creates barriers for the de- них громад: Проект Закону від 24.11.2015 р. velopment of rural and urban areas. № 3510 // База даних «Законодавство Украї- ни» / ВР України. URL: http://w1.c1.rada.gov.ua/ Regulations on limitation of jurisdiction pls/zweb2/webproc4_1?pf3511=57179.

№ 9/2017 267 Environmental, economic and agricultural law mation of local communities», except: trol of use and protection of lands»1 has 1) lands of defense; 2) lands of exclusion been developed. The adoption of this law and unconditional (obligatory) resettle- will allow to consolidate regulatory pro- ment, contaminated by the Chernobyl visions on decentralization of powers in catastrophe; 3) land plots related to the the sphere of land relations. buildings, structures and other immov- It proposes to amend Art. 12 of Land able property of the state; 4) land plots Code of Ukraine. If it is adopted, village, which are in permanent use of state au- town and city councils will receive the thorities, public enterprises, institutions following powers: disposal of lands of and organizations of the National Acad- state and municipal property in the area emy of Sciences of Ukraine, state spe- of village, town or city council according cialized academies etc. It is assumed that to the laws; transfer of land plots of state limits of the united territorial commu- and municipal property to the ownership nity should be determined by the ap- of citizens and legal entities in accor- proved projects of areas of village, town dance with the of Land Code of Ukraine; and city councils. If the territorial bound- provision of land for the use from state aries of the community not established and municipal property once again ac- by these projects, they are determined cording to the of Land Code of Ukraine; according to the boundaries adjoining withdrawal of land plots from state and communities. municipal property and so on. If it is impossible to find out the real It should be noted that from the limit of the united territorial commu- 01.03.2016 Article 12 of Land Code nity, they are determined by the deci- Ukraine began to operate in the new edi- sions of adjoining village, town and city tion. Amendments to it were made by the councils based on the project land plan- Law of Ukraine «On Amendments to ning to clarify the boundaries of their some Legislative Acts of Ukraine about territories or by court order. In the same expanding the powers of local govern- way, the problem is solved if there is ments and optimization of administrative a dispute between several local author- services»2. The mentioned a legislative ities on the limits of the united territo- 1 rial community. Про внесення змін до деяких законодав- чих актів України щодо делегування повно- In order to continue implementation важень органам місцевого самоврядування of the principles of the reform based on з розпорядження землями державної власно- the Action Plan and the Concept of re- сті і посилення державного контролю за ви- forming of the State Service of Ukraine користанням та охороною земель: проект Закону України URL: http://land.gov.ua/info/ on geodesy, cartography and cadastre the doopratsovanyi-proekt-zakonu-ukrainy-pro- draft Law of Ukraine «On Amendments vnesennia-zmin-do-deiakykh-zakonodavchykh- to Certain Legislative Acts of Ukraine aktiv-ukrainy-shchodo-delehuvannia- about delegation of authority to local povnovazhen-orhanam-mistsevoho- governments in the order state-owned samovriaduvannia-z-rozporiadzhennia-zemlia/. 2 Про внесення змін до деяких законодав- lands and the strengthening of state con- чих актів України щодо розширення повно-

268 Yearbook of ukrainian law The legal basis of expanding the power Shulha M., Ihnatenko I. of local councils in the sphere of land relations act has supplemented Art. 12 of Land appropriate certificate on the results Code Ukraine by Part 2 in which con- of a successful training. solidation of powers of village, town and The local state administration, vil- city councils in land relations in villages, lage, town, city council determine the towns and cities was provided. The pro- possibility of realization of their powers vision of information from the state land in the sphere of information from the cadastre and other issues in the sphere of State Land Cadastre. However, they take land relations were assigned to them. into account the possibility of organiza- A number of laws on amendments to tional and technical support of its imple- some legislative acts of Ukraine related mentation. to the expanding the powers of local Consequently, the laws on amend- government in the sphere of land rela- ments to some legislative acts of Ukraine tions were adopted on the basis of the on implementation of the Concept of ref- Concept of reforming and plans. ormation and plans on expanding of the Currently, the Law of Ukraine «On powers of local governments in the sphere State Land Cadastre» was amended by of land relations initiated decentralization expanding of powers of local govern- of power in the sphere of land relations. ments. Such amendments provide that At present the powers of local gov- the provision of information from the ernments in land relations has been State Land Cadastre can also be made greatly expanded on the legislative level. by administrators of the centers of Nevertheless, these changes only initiate administrative services by the proce- the implementation of the Concept of dure established by the Law of reform. They need to be continued and Ukraine «On Administrative Servic- implemented by consolidating and es», or by authorized officials of ex- amending the current legislation. Ac- ecutive bodies of local governments cording to the concept reformation of that have successfully completed management in the sphere of land rela- training in the sphere of land relations tions the main authorities of manage- and correspond to appropriate quali- ment and provision of services in the fying requirements. Training of the sphere of land relations should become person in the sphere of land relations local governments, and by the state au- is provided free of charge by the state thorities will remain functions on gener- cadastral registrar in the term not alization, monitoring of compliance with more than one month. The state cadas- the law in the exercise of their powers tral registrar gives to the person an by local authorities.

важень органів місцевого самоврядування та Published: Теорія і практика оптимізації надання адміністративних по- правознавства: електрон. наук. фах. вид. / слуг: Закон України від 10.12.2015 р. Нац. юрид. ун-т ім. Ярослава Мудрого. – № 888‑VIII // База даних «Законодавство Електрон. текст. дані. – 2016. – № 2. – України»/ВР України. URL: Режим доступу: http://tlaw.nlu.edu.ua/article/ http://zakon3.rada.gov.ua/laws/show/888–19. view/83986/82252.

№ 9/2017 269 CRIMINAL-LEGAL SCIENCES

V. Borysov, Doctor of Law, Professor, academician of the National Academy of Legal Sciences of Ukraine, Director of Academi- cian Stashis Scientific Research Institute for the Study of Crime Problems of the Na- tional Academy of Legal Sciences of Ukraine

UDС 343.3/7

CONCEPT AND TYPES OF CRIMES AGAINST OCCUPATIONAL SAFETY

Occupational safety protection has derstand not only an activity, related di- fundamental importance in modern con- rectly to the creation of products, but ditions. Deviations from legal prescrip- also any activity of an enterprise, institutions and established safety require- tion, organization or a citizen – a busi- ments, present at enterprises, mines, ness entity, where human labour is the buildings, in agriculture, can cause or do basis of operation, aimed at obtaining of cause serious harm to the life and health a socially useful result. During the man- of production workers, unauthorized ufacturing process, a person mediates, persons, property and environment. The regulates and controls the interaction protection of these goods is ensured by between him and nature by means of his occupational safety. According to the labour activity. With the help of tools, he Criminal Code of Ukraine 2001, occu- affects the object of labour under the pational safety protection is provided by existing conditions of occupational en- standards, – section X of the Special vironment. According to the laws of Section «Crimes against occupational physics, any action results in opposition safety»1. Under the occupation, we un- from both an object of labour (for example, at its modification) and tools ap- 1 Note. Clarification regarding the application of the law on criminal responsibility for crimes (see. Про практику застосування судами against the occupation safety is submitted in the України законодавства у справах про злочи- decision of the Plenum of Supreme Court of ни проти безпеки виробництва : постанова Ukraine «On the practice of courts of Ukraine Пленуму Верховного Суду України від legislation in cases of crimes against 12 червня 2009 р. № 7 // Вісн. Верхов. Суду occupational safety» dated 12 June 2009, No 7 України. – 2009. – № 8. – С. 15–19).

270 Yearbook of Ukrainian law Concept and types of crimes against Borysov V. occupational safety plied, – real factors of production. Such factor, the impact of which on a worker kind of technical labour property (influ- under certain circumstances shall result ence – opposition) is immanent to mate- in injury or other sudden health deterio- rial production. This property can take ration, is referred to as hazardous, and place in a non-material production (for probably leading (putting) to an occupa- example, at using devices, instruments, tional disease or reduction of worker apparatus for scientific research, medical efficiency – that is harmful. Depending care, technical training, etc.). on the level and duration of exposure, Occupation is a complex interaction harmful production factor can become between a person and real factors of pro- hazardous4. Not only direct labour per- duction. A person, through the above formers, but also other participants of the circumstances during or resulting from production can experience hazardous or such an interaction is exposed or may be harmful effect. Under certain conditions, exposed to production factors1 of differ- this influence can affect outsiders, plant ent nature and extent – mechanical, property or other people’s property, the chemical, thermal, electrical, electro- environment. magnetic, etc. «Everything around the Any production component can be employee affects the functional state of a direct source of this adverse impact. the organism»2. A human body tends to For example, a worker that handles a de- perceive those or other external influ- tail on machine may be injured by metal ences only as long as they do not exceed shavings, which are the subject of la- certain levels or duration. Extension of bour. Injury can be caused by a rotating acceptable exposure becomes hazardous machine element – instruments of la- or harmful3 to a person. A production bour. Thus, the possibility of hazardous or 1 Note. «Production factor» – a term used in harmful effect is an objective property technical literature and standards of occupational of interaction of a person and material safety in the characteristics of external influences on the production worker. production factors. This kind of impact 2 Балинт И. Психология безопасности of production factors cannot be ignored труда / И. Балинт, М. Мурани. – М. : Профи- in the production and development of здат, 1968. – С. 85. technical requirements to ensure its safe- 3 Note. «Dangerous» and «harmful» – the main classification types of production factors ty and conditions of harmlessness. affecting safety. These terms are used in technical, medical and legal literature in охорону праці : Закон України від 14 жовтня describing the impressive effects or adverse 1992 р. № 2694‑ХІІ в ред. Закону № 2294‑ІV production factors on man, the means of від 21 листопада 2002 р.) // Відом. Верхов. production, the environment (see. ДСТУ 2293: Ради України. – 1992. – № 49. – Ст. 668; Ві- 2014. Охорона праці. Терміни та визначення дом. Верхов. Ради України. – 2003. – № 2. – основних понять: затв. Наказом Мін економ Ст. 10 (ч. 2 ст. 5)). розвитку від 2 грудня 2014 р. № 1429 // Охо- 4 Краснов Л. М. Организация работы по рона праці : наук.‑виробн. журн. – 2015. – охране труда на предприятии / Л. М. Крас- № 10. – Дод. : На допомогу спеціалісту з охо- нов. – Днепропетровск : Проминь, 1990. – рони праці. – С. 42–49 (п. 4.14, 4.15); Про С. 14.

№ 9/2017 271 Criminal-legal sciences

With the present level of technology successful operation of techniques and and organization of production, some conventional normal conditions and possibilities of hazardous or harmful work organization. Based on this divi- influence of production factors can be sion, standards for the protection of oc- eliminated or minimized, for example, cupational safety were established in the isolating by different ways, transporta- Criminal Code of Ukraine (Clauses tion of materials in closed systems, re- 271–275). mote control of production processes. Conventional works are character- In these cases, technical and techno- ized by low risk3, which is generally as- logical measures allow localization of sociated with the nature of the injuries – hazard or harm of production. Similar they are insignificant; the number of warning of possible impressive or ad- victims – usually one person; no prop- verse effect of these factors is the most erty damage. However, we cannot un- advanced form of occupational safety. derestimate the hazard of such works. However, most factors «can be elimi- According to experts, “… accidents of- nated or reduced only through manda- ten occur at work under low risk»4. tory compliance with the rules of Unlike conventional, works with in- conduct»1, that is due to the human fac- creased risk have higher degree of prob- tor of production. «Any element of ability of injury of engaged persons. workplace can be a potential source of They are also characterized with viola- hazard under certain conditions, and it tion (error) in the proceedings: the dam- depends entirely on negligence, care- age, the outcome of such a violation can lessness or fatigue of a worker»2. be significant – death of one or more A more detailed study of causes of haz- employees, injury, severe injury, group ardous or harmful influence of produc- accidents etc. The causes of accidents (as tion factors may show defects in work well as other consequences) while per- organization at a higher level of distri- forming works with increased risk are bution: ignorance of worker, abnormal not only the specific (guilty or guilt- working conditions, lack of protective less) human behaviour, but also outside. equipment and more. 3 Depending on the intensity (de- Note. As V. A. Krasavchykov pointed, hazard is an objective possibility of gree) of possible impact of hazardous circumstances, but not more. Possibility and and harmful production factors on work- reality is not the same, although the latter ers at the production ground, one distin- implies the existence of the first. Under the case guishes ordinary (with low risk), in- in question, the possibility was realized in reality certain potentially hazardous facts must creased risk and extreme risk. This divi- take place (see: Красавчиков В. А. Возмеще- sion is carried out with a view to ние вреда, причиненного источником повы- шенной опасности / В. А. Красавчиков. – М. : 1 Балинт И. Психология безопасности Юрид. лит., 1966. – C. 21). труда / И. Балинт, М. Мурани. – М. : Профи- 4 Котик М. А. Психология и безопасность здат, 1968. – С. 145. / М. А. Котик. – Таллин : Валгус, 1989. – 2 Ibid. – С. 146. С. 53.

272 Yearbook of ukrainian law Concept and types of crimes against Borysov V. occupational safety

They can also be caused by certain prop- must be assumed that the material sub- erties of the instruments and means of strate (common basis) of increased risk production. works is not the only source of in- A number of theorists recognize the creased risk, but also the materials material substrate of works with in- (subjects) that have only individual creased risk, as well as other kinds of hazardous properties (for example, in- increased hazardous human activity, as creased spontaneous combustion of the source of increased risk1. In the individual subjects, the ability to pro- science of criminal law, M. S. Green- cess of chemicals self-destruction, the berg gave the concept of source of in- height of buildings etc.). creased risk. In his view, «sufficiently Increased risk works safety demands powerful technical system creates cer- the establishment of specific organiza- tain probability of injury because of tional and technical modes – safety lev- their incomplete accountability»2. Sub- els. Therefore, only the personnel, who jects of the material world as a source received a special training in occupa- of increased risk must have the follow- tional safety5, can perform these tasks. ing characteristics: «1) large capacity; They become a subject to an advanced 2) complexity; 3) relative reliability; occupational safety6. The list of in- 4) incomplete accountability and 5) the creased risk works is defined: it is con- ability to cause significant harm»3. In- tained in the legal and technical regula- vestigation of accidents under the in- tions, norms of other branches of law creased risk works (for example, min- (including labour)7. These include, for ing, construction) however, indicate that it is often dealt with objects that стве строительных работ / В. И. Бори- do not have all these symptoms of сов. – Харьков : Харьков. юрид. ин-т, source of increased risk, but endowed 1974. – C. 13. 5 with certain properties, that create in- Note. In ch. 2, Art. 18 Law of Ukraine «On occupational safety» dated October 14, 1992 is creased risk when using it (for exam- stated: «Workers employed in jobs with high risk ple, rock which collapses in mines, … should be held annually specific training by presence of trenches, pits in construc- means of the employer and knowledge checks tion, building materials when loading of relevant regulations about occupational 4 safety» (see: Про охорону праці : Закон Украї- or unloading manually) . Therefore, it ни від 14 жовтня 1992 р. № 2694‑ХІІ в ред. Закону № 2294‑ІV від 21 листопада 2002 р.) 1 Красавчиков В. А. Возмещение вреда, // Відом. Верхов. Ради України. – 1992. – причиненного источником повышенной опа- № 49. – Ст. 668; Відом. Верхов. Ради Украї- сности / В. А. Красавчиков. – М. : Юрид. лит., ни. – 2003. – № 2. – Ст. 10). 1966. – C. 27. 6 Борисов В. И. Квалификация преступ- 2 Гринберг М. С. Преступления в области ных нарушений правил безопасности соци- техники: (сущность и обьект) / М. C. Грин- алистического производства / В. И. Бори- берг // Правоведение. – 1962. – № 2. – С. 91. сов. – К. : УМК ВО, 1988. – C. 9. 3 Ibid. – С. 92. 7 Note. According to ch. 3. Art. 18 of the Law 4 Борисов В. И. Уголовная ответствен- of Ukraine «On occupational safety» the list of ность за нарушение правил при производ- work with high-risk is established by the

№ 9/2017 273 Criminal-legal sciences example, all works associated with siderable hazardous consequences: oc- cranes (regardless of the industry where cupational diseases of large number of they are used), high-pressure tanks, high employees, premature death of people, voltage networks etc. environmental pollution, in other words, The presence of hazardous and harm- acquires (can get) properties of hazard- ful factors in production leads to the ous production factor. need for protection of life, health, prop- Occupational safety is a part of any erty preservation, environment and oth- production’s safety, aimed at maintain- er benefits. People need safety. Special ing of internal safety, required for work- security status relieves stress, anxiety, er in the process of production. In its fear of possible hazard, security makes turn, the occupational safety includes person more confident in its actions, technical and sanitary (the latter protects hopes for the future, making it possible workers from exposure of harmful pro- for one to do the work according to the duction factors), and as of the levels of requirements of production tasks. protection – the safety of the ordinary The safety in the broad sense means (with little risk) and increased risk a state of no threat. Occupational safety works. is a technical condition, where the pos- Some productions also include sibility of the harmful effects on people, threat of harm (which can cause it) to property and the environment of hazard- non-production interests. The threat is ous and harmful factors is eliminated or formed either in production field, or minimized. This status is set and con- around (near) it, or because of such ac- trolled by a person through the system tivities. They are, as follows: interests of social relations. The term «occupa- of the outsiders (their life, health), prop- tional safety» also covers harmlessness – erty (preservation of the damage or de- the system of working conditions, which struction of property belonging to other protect workers (for some industries, as enterprises, institutions, organizations well as all outsiders) against adverse ef- or individual citizens), environment fects of harmful production factors. This (natural environment cleanliness), and effect has a relatively low intensity in its others. The need to protect them from immediate manifestation, it is unobtru- the hazards predetermines creation of sive (and therefore tolerant), but depends a special type of safety out of produc- on quantitative characteristics, and acts tion (external), yet still caused by it – for a long time, it causes (can cause) con- the public safety in production field. I. P. Lanovenko noted the specific of specially authorized central executive body of this group of crimes as «… a violation executive government for supervision of occupational safety» (see: Про охорону праці : of safety rules during such works and Закон України від 14 жовтня 1992 р. such production threatening a wide № 2694‑ХІІ в ред. Закону № 2294‑ІV від 21 range of people, with this risk gaining листопада 2002 р.) // Відом. Верхов. Ради a widespread nature. Therefore, we are України. – 1992. – № 49. – Ст. 668; Відом. Вер- хов. Ради України. – 2003. – № 2. – Ст. 10). talking about the criminal and law pro-

274 Yearbook of ukrainian law Concept and types of crimes against Borysov V. occupational safety tection of public occupational safety»1. same time, we believe that chemically They are terms for production opera- and biologically hazardous productions tion, execution of certain works, usage are extremely hazardous as well. Acci- of obtained products, which have no dents at chemically hazardous produc- impressive or devastating effects on the tion can cause massive harm to people public interest of hazardous or harmful and the environment with highly toxic factors. substances (HTS). Large stocks of the The highest level of negative impact most hazardous HTS – chlorine and of hazardous and harmful factors applies phosgene – are concentrated at enter- to extremely hazardous works, perform- prises of Ivano-Frankivsk, Dnipropetro- ing of which threaten not only the work- vsk and Donetsk regions. In case of an ers, directly involved in the production emergency at a chemically hazardous process, but also other persons within the production, the total area of the hazard- field of such production. In addition, ous zone in Ukraine can exceed 1/6 part property and environmental damage is of the territory, where over 30 % of the also present. This gives a reason to be- population resides2. Safety specialists lieve that not certain works are extreme- are aware of many accidents at chemical ly hazardous, but the production is as plants in Minamata (Japan), Love-Chan- a whole. Therefore, such production is nel (USA), Seveso (Italy), Bhopal (In- extremely hazardous. The conclusion dia) and on the factory of «Sandoz» about a particular production being ex- company in Bern (Switzerland)3. Thus, tremely hazardous derives from practice, 1976, an accident at chemical plant of considering the fact, that a certain kind «Ikmeza» company (city of Seveso, Ita- of production activity involves consider- ly), resulted in a large number of highly able probability of significant socially toxic dioxin being discharged into atmo- hazardous consequences for a wide sphere. The population of this area was range of public interests. The reasons for evacuated. However, women from the these effects are not only within human affected area were deprived of the abil- behaviour, but they are also contained in ity to give birth to healthy children. Ev- the nature of production activities. This erything was affected in this area: ani- type of activity takes place at extremely mals, birds, and flora. Dioxin turned hazardous productions. Specific litera- Seveso surroundings into a desert. The ture sources state, that special provisions researchers suggest a very slow recovery of criminal law do not protect the safety at all extremely hazardous productions. 2 Бортнічук П. М. Стійкість роботи Out of all such productions, the Criminal об’єктів у надзвичайних ситуаціях / Code recognizes only explosive and ra- П. М. Бортнічук // Безпека життєдіяльно- diation hazardous productions. At the сті. – 2004. – № 10. – С. 35. 3 Тимошенко А. С. Глобальная экологи- 1 Уголовное право Украинской ССР на ческая безопасность – международно-право- современном этапе. Особенная часть. – вой аспект / А. С. Тимошенко // Сов. государ- Киев : Наук. думка, 1985. – C. 191–192. ство и право. – 1989. – № 1. – С. 90.

№ 9/2017 275 Criminal-legal sciences of life in this region1. A faulty valve in entire gravity of these violations and a 43 tons tank caused leakage of toxic other possible negative consequences. In methyl-isocyanate gas, which lasted 40 addition, it should be noted that draft minutes in Indian city of Bhopal, at Criminal Code of Ukraine 2001 pro- chemical plant of the American multina- posed a norm to protect the safety rate tional company «Union Carbide», in of such productions4, but while the draft December 1984. The scale of the tragedy was being prepared for the third reading, was enormous: official numbers show this norm was excluded. In our opinion, 3150 people killed. 20000 people re- it would still be appropriate to supple ceived a disability; over 200000 suffered ment the Criminal Code with a clause, from the effects of highly toxic gas poi- establishing criminal liability for viola soning. Unofficial numbers are even tion of safety rules at chemical and bio higher. For example, according to esti- logical production. mates of the Indian Council of Medical It should also be noted that a high de- Research, the deadly gas cloud «burned» gree of risk in production is not the greatest ten thousand citizens of Bhopal2. There damage resulting from an increased hazard were also cases of large uncontrolled activity; or such productive activities can- spread of viruses and strains of microor- not be recognized as legitimate5. However, ganisms due to violation of biological even the presence of potential hazard safety. According to the Ministry of brings up the need for safety conditions in Emergency Situations of the Russian production, to ensure the normal operation Federation, only in 1997 factories in this of enterprises, institutions and organiza- country had 3 accidents with release of tions, peace and prosperity both for work- biologically hazardous substances. ers and for non-workers, protection of Moreover, there was a tragedy in Sverd- property and the environment. lovsk in 1979, where the so-called an- The criminal law protects occupa- thrax killed dozens of people in tional safety from the most hazardous Chkalovskyi district, the residence of the infringements, responsibility for which 19th military town3. Chemical and bio- is set in Chapter X of Special part of the logical weapons as well as nuclear are Criminal Code. A Generic object of considered one of the most hazardous. crimes, which is stipulated in this sec- Yet the qualification of violations in the tion, are public relations bound to the production of chemical or biological safety rules under Clauses 271, 272 of 4 Проект Кримінального кодексу України, Chapter X of Special part of the Crimi- наданий Головним юридичним управлінням апарату Верховної Ради України за станом nal Code of Ukraine does not reflect the на 20.03.2001 р. // Матеріали проекту Кримі- нального кодексу України 2001 року : у 28 1 Зербіно Д. Д. Екологічні катастрофи кн. – Кн. 28 (1999-2001рр.). – 366 c. у світі та в Україні / Д. Д. Зербіно, М. Р. Гже- 5 Борисов В. И. Уголовная ответствен- гоцький. – Львів : БаК, 2005. – C. 112, 113. ность за нарушение правил при производст- 2 Ibid. – C. 32, 33. ве строительных работ / В. И. Борисов. – 3 Ibid. – C. 196. Харьков : Харьков. юрид. ин-т, 1974. – C. 12.

276 Yearbook of ukrainian law Concept and types of crimes against Borysov V. occupational safety occupational safety. Its elements (types, requirements. Dispositions of considered spheres, level) along with combining norms are blanket, and therefore their traits have qualitative autonomy that application will use legislative and other should be considered during the devel- normative legal acts (regulations, rules, opment of regulations, including the directions, standards, etc.), regulating criminal law. occupational safety, with further deter- Direct objects of certain crimes mination of the violated ones. Neglect- against the occupational safety are in- ing the blanket nature of dispositions of cluded in the system of social relations, norms of section X of Special part of the being a generic object with a set of pe- Criminal Code can result in improper culiarities. They depend primarily on the qualification of violations of safety re- type of occupational safety, safety levels, quirements in production1. nature of possible damage and scope of Responsibility for violation of legis- distribution. lation on the peoples safety during other Victims of these crimes can be either activities depending on the specific cir- only production workers (Clause 271 of cumstances of the case is accrued under CC) or production workers and third parties clauses of the Criminal Code on crimes (Clauses 272–274 of the Criminal Code), against a person life and health, in offi- or only third parties (Clause 275 of CC). cial activities, against the environment From the objective point of view, and so on. crimes against the occupational safety A mandatory feature of these crimes are designed the same way. All of them is socially hazardous consequences, di- are described in the law as crimes with vided into two types. The first type of so-called material composition, and consequences binds with the establish- therefore require establishment of an act, ment of threat of death or other serious consequences and causal relationship. consequences (the first parts of Clauses A socially hazardous act is found in 272–275 of the Criminal Code). The sec- violation through acts or omissions (or ond type consists of those consequences, in combination) of safety requirements the onset of which is associated with contained in the rules of occupational causing real harm. These are «harm to safety and production. This violation is health of a victim» (first parts of Clauses usually not a single action (inaction), but 271–275 of the Criminal Code); «loss of a set of actions, where not one but a va- life» (second parts of Clauses 271–275 riety of safety requirements is violated. of the Criminal Code) and «other serious Infringement is understood as non-com- consequences» (second parts of Clauses pliance or inadequate compliance with 271–275 of the Criminal Code). the safety requirements provided by the rules, or implementation of actions, ex- 1 Практика розгляду судами криміналь- pressly prohibited by the rules. них справ про злочини, пов’язані з порушен- Crimes against the occupational safe- ням вимог законодавства про охорону праці // Вісн. Верховн. Суду України. – 2006. – ty are a violation of only written safety № 6. – С. 25–26.

№ 9/2017 277 Criminal-legal sciences

In cases where crimes depicted in cation, determination of public hazard Clauses 271–275 of the Criminal Code degree of the offense, and the selection had consequences under different parts of of a criminal sanction. these clauses, all of these consequences The subject of crimes against the oc- should be specified in the relevant state- cupational safety is special. They are ment of case (decision, judgment) and the persons, which must fulfil the safety re- actions of the person must be qualified quirements of production. According to only for the same part of the clause of the their legal status, they can be divided Criminal Code, providing for liability for into three groups: officials and citizens – more severe consequences. business entities, expressly stated in Cl. A mandatory feature of the objective 271 of the Criminal Code, in other cases, side of the considered crimes is causal provided by law (Clauses 272–275 of the relation between the admitted violations of safety requirements and the actual Criminal Code); workers and employees harm or its possibility. The causal relation (Clauses 272–275 of the Criminal Code); of these crimes has a number of features. outsiders for the production (Clauses In particular, in most cases, this relation 273 and 274 of the Criminal Code). comes as indirect, rather than direct. In Thus, the crimes against the security addition, the onset of the consequence of the production are understood as so may be due to a violation of a number of cially hazardous guilty acts against the safety requirements. Such violations may established laws and other normative be committed by one or more subjects. legal acts on occupational safety, result Therefore, in many cases an additional ing in socially hazardous consequences expertise is held if the establishment of under criminal law, committed by the such a causal relation is necessary. subject of crime. Their objective aspect determines the According to similarity of the direct subjective aspect of crimes. Violation of objects, crimes against the occupational safety requirements may include intent safety can be classified as follows: or negligence, the consequences – only – Crimes in occupational safety negligence (in other words, a mixed (Clauses 271 and 272 of the Criminal form of guilt or negligence). The relation Code); of subject to consequences is determina- – Crimes in public occupational tive, so in general crimes against the oc- safety (Clauses 273–275 of the Criminal cupational safety are careless. Code). In cases of this category, each case must establish motives of committed Published: Питання боротьби зі violations of safety requirements, atti- злочинністю : зб. наук. пр. / редкол.: tude of subject to compliance with these В. І. Борисов та ін. – Х. : Право, 2015. – requirements, it is important for qualifi- Вип. 30. – С. 3–16.

278 Yearbook of ukrainian law V. Shepitko, Academician of NALS of Ukraine, Doctor of Legal Sciences, Profes- sor, Academic secretary of Criminal and legal Department of NALS of Ukraine, Head of Criminalistics Department of Yaro- slav Mudryi National Law University

B. Shchur, Doctor of Legal Sciences, Pro- fessor, Head of Criminal Law Department of Lviv University of Trade and Economy

UDC 343.98 NEUTRALIZATION OF COUNTERACTION TO INVESTIGATION OF CRIMES (JUDICIAL PROCEEDINGS IN CRIMINAL CASES)

Definition, Types and Forms of at the moment of its commission and in Counteraction to Investigation of the post-criminal period. Crimes The problems of counteraction to the The contemporary state of the investigation were to some extent stud- fight against crime is characterized by ied in the theory of criminalistics; the the presence of counteracting forces, notion of counteraction, its types and which create obstacles (barriers) in the forms were analyzed. Counteraction to investigation of crimes. The mechanisms the investigation is not a new problem. of such counteraction can be different A certain action implies «counterac- and can be simple or, on the contrary, tion». H. Gross notes that «criminals use sophisticated. Such actions are thought different methods»: the change of ap- over before the commission of a crime, pearance, false testimony about the posi-

№ 9/2017 279 Criminal-legal sciences tion and name, feigned diseases, secret action to the investigation, depending on signs among criminals (Gross H. Hand- the relation of certain persons to the book for Examining Magistrates as criminal event, is distinguished in crim- a System of Criminalistics – New edi- inalistics. tion, reprinted from the edition of 1908 – Traditionally, counteraction is consid- Moscow: LeksEst, 2002). ered as an action directly aimed at the At present, there are different ap- concealment of a crime (the destruction proaches to the understanding of coun- of evidence or the change of the traces of teraction to the investigation in criminal- a crime or a criminal, different simula- istics: tions of crimes, etc.), at dodging the re- – illegal activities of persons who sponsibility (failure to appear according are interested in the outcome of the case to the summons of an investigator or the (R. Belkin); court, a departure to another area, transfer – deliberate actions (or a system of to illegal status), at creating additional actions) directed at impeding the fulfill- obstacles in the solution and investigation ment of the tasks of the preliminary in- of crimes (illegal influence on the part of vestigation and the establishment of un- the mass media, the work of mala fide deniable truth with respect to a criminal lawyers, falsification of evidence on the case (V. Karagodin); part of corrupt investigators). – a system of illegal activities deter- Counteraction to the investigation is mined by objective and subjective fac- demonstrated in different forms: it is tors directed at disorganizing the work drawn attention to the concealment of connected with solving a crime, imped- crimes and criminal influence on eviden- ing the establishment of undeniable truth tiary information. However, these cate- with respect to a criminal case and ad- gories represent quite broad notions, ministration of justice by different per- which are demonstrated in different sons interested in dodging the responsi- ways. In our opinion, it is more prefer- bility by the guilty person (A. Kustov). able to consider counteraction to the in- Despite the variety of definitions of vestigation as certain influence on evi- the notion «counteraction to the investi- dentiary information. Counteraction to gation», its essence consists in deliberate the investigation is modified and be- activities of interested persons directed comes aggressive, dynamic and dis- at impeding the solution and investiga- guised. tion of crimes with the help of different The study of new forms of counter- means. Counteraction to the investiga action to the investigation is becoming tion is an activity of interested persons more and more urgent: directed at impeding the solution and – the use of the mass media and investigation of crimes by means of cre- other communications with the purpose ating obstacles on the way to the estab- of impeding an investigation; lishment of truth with respect to a crim- – the use of corrupt mechanisms for inal case. External and internal counter- counteraction;

280 Yearbook of ukrainian law Neutralization of counteraction to investigation Shepitko V., Shchur B. of crimes (judicial proceedings in criminal cases)

– falsification of evidence by law ment of crimes. The concealment of enforcement officers; criminal activities which is used by or- – the use of psychic and physical ganized criminal groups has a specific effect on participants in a criminal case character. In particular, this refers to on the part of interested persons (includ- a sharp increase in the specific weight of ing killing of certain persons). actions connected with the concealment Under current conditions, there is of crimes in the system of criminal ac- a tendency to the extension of the num- tivities; concealment gets to a new qual- ber of «interested persons» in the coun- ity level; concealment is becoming more teraction to the investigation. Besides the and more professional. persons who committed a crime, such Corrupt mechanisms of counteraction persons also include mala fide witnesses, to the investigation. Corruption is a sign injured persons, defenders and even law of organized crime. Corrupt relations are enforcement officers. a feature of the contemporary organized There is a tendency of an increase in crime. The problem of corruption on the the number of corrupt law enforcement whole and bribery in particular is be- officers. One of the widespread ways of coming especially acute in connection criminal influence on evidentiary infor- with the growth of organized crime. It is mation is the deprivation of the informa- necessary to note that at present the situ- tion that was received by subjects of the ation with corruption in Ukraine is quite investigation of evidentiary value. Most difficult. According to the data (2015) of often this is realized by means of dis- the International Non-Governmental crediting: Public Organization Transparency Inter- 1) the objective content of evidenti- national (TI), Lithuania occupies the aiy information; 32nd spot, Ukraine – the 130th spot out 2) the procedural order of the receipt of 178 (the last spots are occupied by of evidentiary information; Angola, South Sudan and Sudan). 3) the legislative order of the regula- Corrupt relations in government and tion of the receipt of evidence; administrative bodies and especially in law 4) carriers and sources of evidenti- enforcement bodies ensure a certain level aiy information. of security and timely information about Under current conditions, counterac- the directions of the activities of these bod- tion to the investigation is widely used ies for an organized criminal group. in the activities of organized criminal The use of the mass media with groups. There are some peculiarities of a criminal purpose. The mass media or certain forms of counteraction on the mass communications are regular dis- part of organized criminal groups. semination of information by means of The concealment of crimes. Under the press, the radio, the television, the current conditions, one can distinguish cinema, an audio recording, a video re- certain peculiarities in the activities of cording with the purpose of strengthen- criminals connected with the concealing spiritual values and producing influ-

№ 9/2017 281 Criminal-legal sciences ence. Mass communications are an im- above-mentioned actions can be directed portant social and political institution. at both the persons who carry out pro- Communication media have three differ- ceedings (interrogating officers, investi- ent types of techniques: gators, prosecutors, judges) and witness- 1) printed (written); es, injured persons or members of an or- 2) verbal; ganized criminal group. 3) audio and video image. Criminal Behavior. Essence of De- At present time, the Internet, Internet fensive Dominant editions and Internet technologies are The commission of any crime as- used quite often. sumes the presence of a subject of the The mass media can also fulfil tasks activity (the subject of its commission). of the leaders of organized criminal Different terms are used in the legal groups, serve their needs and receive fi- sources to define this notion: «the iden- nancial support from them. Now orga- tity of a criminal», «the subject of the nized crime can control or have their own crime», «the personality of a criminal», TV channels and certain printed media. «the guilty person», and «person, who False testimony. There are a few committed a crime». Despite certain as- problems here: pects, these terms are used as identical 1) giving false testimony by the lead- ones. There is also an opinion that denies ers and members of organized criminal the notion of the personality of a crimi- groups and the possibilities of its identi- nal, which allegedly does not contain fication and disclosure; any specific peculiarities. 2) giving false testimony by witness- The personality of a criminal not es, injured persons due to the influence only exists, but it needs to be studied. It on them by representatives of organized is necessary to agree with the opinion of criminal groups and the possibilities of A. Zelinskiy that the personality of its prevention and removal. a criminal is alpha and omega of crimi- Falsification of evidence. This refers nal psychology and its cornerstone. The to misrepresentation of evidentiary in- person who violated the law is the author formation by a special subject, in most of the crime and his/her actions turn the cases by persons who must investigate citizen into a criminal who is denied by and establish the truth. Falsification of public conscience1. When carrying out evidence is connected with corruption in criminal activities criminals acquire cer- law enforcement bodies on the part of tain knowledge and skills, habits and organized crime. . inclinations, i.e. a «criminal» style. Ad- The use of threats and violence. In the herence to the commission of crimes in process of counteraction to the investiga- a certain way is a precondition of crimi- tion organized criminal groups use ex- nal professionalization. The knowledge treme measures – from threats to physical 1 influence (the use of violence) and phys- Зелинский А. Ф. Криминальная психо- логия: научно-практ. изд. Киев: Юрин- ком ical liquidation (killing) of persons. The Интер, 1999. – С. 9.

282 Yearbook of ukrainian law Neutralization of counteraction to investigation Shepitko V., Shchur B. of crimes (judicial proceedings in criminal cases) of specific ways of professional criminal significant signs, which are developed activities is the key to finding the guilty by specialists with respect to a certain persons. criminal case (psychologists, psychia- The term «the personality of a crim- trists, sexologists, criminalists, etc.) with inal» is used in the criminal law scienc- the purpose of recreating the personality es. This term is also used in criminalis- of the possible criminal and searching tics. At the same time, the personality of for him/her. In special sources, there are a criminal is a social and psychological opinions that it is reasonable to form category the content of which includes other profiles for the establishment of the the aggregate of typical psychological personality of the unknown criminal and moral qualities of an individual, (stereotyped, raster, criminalistical, in- which are formed as a result of the com- formational ones). mission of crimes. The personality of When the personality of a criminal a criminal covers the whole system of acquires the procedural status of a sus- psychological qualities: inducement, at- pect or an accused, in cases when we are titudes, beliefs, emotional and volitional already speaking about a concrete per- peculiarities, etc. The study of the person, the personality of a criminal is stud- sonality of a criminal assumes the study ied in another respect. Naturally, the of psychological mechanisms of the il- guilt in this case has not been proved legal behavior, motivations of different fully yet, but there is a necessity to study types of crimes, individual psychologi- this personality, its motives, purposes, cal and social factors, situational reac- attitudes to what was done. The position tions of a person. In the context of the of the accused (suspect) can be different. contemporary state oft he science, His/her behavior, which in some cases is L. Ivanov suggests «a polysystemic conditioned by the prevalence of the de- study of the personality of a criminal in fensive (protective) dominant also, dif- criminal proceedings» or a new «crimi- fers. The study of the accused (sus- nalistic approach to the person as an in- pect) is carried out within the framework dependent system1”. of the criminal proceedings. The purpose In criminalistics, the personality of of the study of the personality of the ac- a criminal is studied, first of all, in order cused (suspect) consists in the establish- to find the person who committed ment of a psychological contact with a crime. Recently, there has been at- him/her, the determination of the level tempts to develop a psychological por- of psychological influence and the trait (profile) of a criminal – his/her per- choice of the corresponding tactical fect mental model. The psychological means, the receipt of objective informa- profile is a system of criminalistically tion from this person. That’s why the use of the information about the personality 1 Иванов Л. Н. Полисистемные исследо- of the suspect (accused) is considered to вания личности в уголовном судопроиз be rather important when carrying out водстве. Саратов: Изд-воСарат. ун-та, 2006. – С. 39–47. certain investigative actions (interroga-

№ 9/2017 283 Criminal-legal sciences tions, investigative experiments, search- an organized group, a psychological es, etc:). mechanism of the functioning of the Certain consistent patterns are inher- group as a whole is actuated. The present in the behavior of persons who com- ence of certain protection of the orga- mitted a crime. Typical forms of behav- nized group from being exposed is a reg- ior of such a person can include the fol- ular occurrence in the organized criminal lowing: 1) repentance for the committed activities. crime (surrender, actions connected with It is with the protection function of damage compensation, etc.); 2) counter- organized criminal groups that the dura- action to the investigation (the conceal- tion of their existence is connected. Such ment of the traces of the crime, incite- a protection mechanism is created al- ment to false testimony, the receipt of ready during the formation of the group. information about the course of the in- The structure of the organized criminal vestigation, the provision of false infor- group assumes the presence of special mation); 3) continuation of the criminal persons (blocks, brigades) who fulfil the activities, the commission of new crimes. function of the protection from exposure The defensive dominant prevails in (persons who ensure discipline, pursue the psychology of the person who com- persons who intend to cease the criminal mitted a crime. The dominant is a tem- activities, maintain ties with corrupt of- porarily prevailing reflex system, which ficials and law enforcement officers). conditions the work of nerve centers at There is a certain correlation be- this moment and gives a certain direction tween the protection mechanism of or- to the behavior. It is the defensive dom- ganized criminal activities and counter- inant that summarizes and accumulates action to the investigation. The protec- impulses, causes disordered activities, tion mechanism represents a potential incites the guilty person to carrying out possibility of reacting to actions on the actions, which, in the opinion of the part of law enforcement bodies. This criminal, must prevent him from being reaction can be different, depending on exposed. For this purpose, the criminal the efficiency of operational search or creates simulations, manufactures false investigative bodies. Counteraction to evidence of his/her innocence, makes the investigation is the real actuation of false statements and spreads rumors. protection mechanisms. The actuation of protection mecha- The personality of a criminal is the nisms with respect to a single criminal most important element of the criminal- and persons who committed a crime, istic characteristics of crimes. This is acting as a group (including an organized a certain typical model of a person, who group), has a significant difference. The committed a criminal act (a system of single criminal’s protection mechanism data about criminalistically significant is determined by his/her psychology and signs). The value of criminalistic char- fear of exposure. Moreover, as regards acteristics consists in the fact that their persons who commit a crime, acting as elements are interconnected and have

284 Yearbook of ukrainian law Neutralization of counteraction to investigation Shepitko V., Shchur B. of crimes (judicial proceedings in criminal cases) correlated dependence. Each element of personality of a criminal is reasonable. criminalistic characteristics of crimes The criminalistical understanding is con- has a different level of dependence on ditioned not by the study of this phenom- other elements. In particular, the element enon overall, but by certain role func- of the characteristics «the personality of tions and tasks. It is natural that the cat- a criminal» can have the following natu- egory of «the personality of a criminal» ral relations: «injured person – crimi- in criminalistics is acquiring specific nal», «traces of the crime – the way of connotation and is quite conventional its commission – criminal», «scene and with respect to its internal content. This circumstances of the crime – criminal», refers only to the extraction of criminal- «time of the commission of the crime – istically significant (typical) signs in criminal», etc. a person who committed a criminal act In the contemporary literary sources, and the possibility of manipulating them there are attempts to study and distinguish for the establishment of undeniable truth typical signs of the personality, which is regarding the case. In this respect, it is inclined to the commission of a certain possible to determine a few specific di- type of crimes, and to form a typical mod- rections: 1) the searching one (the use of el of the personality of a criminal. In the possibilities of making different criminalistics researchers study the per- types of profiles: psychological, stereo- sonality of a juvenile criminal, a criminal typed, criminalistical, informational, with psychic anomalies, the personality raster ones, etc. with the purpose of of a murderer, the personality of a mani- modeling the personality of a possible ac, etc. The development of their social criminal); 2) cognitive one (the develop- and psychological characteristics, typical ment of criminalistical characteristics models of certain categories of criminals connected with different categories of (a criminal of the violent type and his/her crimes and the saturation of such its ele- different subtypes, a criminal of the ac- ment as «the personality of a criminal» quisitive type, etc.) is of certain interest. and also their use in the practical activi- Recently they have been analyzing the ties with the purpose of effective solu- behavior of the personality in a group, in tion and investigation of crimes); 3) in- an organized group (or a criminal group), formation andtactical one (the use of the the influence of the leader on other mem- information about the personality of bers of the group. The category of «the a criminal with respect to parties to pro- personality of a criminal» in criminalis- ceedings – the suspect or the accused in tics has a conventional meaning as in the course of carrying out certain inves- some cases it allows studying the so- tigative (court) actions). called «collective» subject. This refers to Behavior of Aggrieved Person collective crimes, the commission of (Victim) a crime as part of a group. The personality of the victim – is The statement of the problem about quite a complicated character in the con- the criminalistical understanding of the text of criminaistics. An aggrieved per-

№ 9/2017 285 Criminal-legal sciences son is a person who suffered moral, A specific study of victims is reffered physical or property damage because of to as victimology. This broad interdisci- the crime. The crime mechanism implies plinary field studies victims, relationship interrelation between the criminal and between the victim and the offender1. the victim (the aggrieved person). The There have been attempts to create psychology of the conflict «offender – a «criminalistic doctrine of the aggrieved victim» can take many forms. In some person», «criminal victimology» or cases, victims oppose crime investiga- «criminalistic victimology» (V. Vandy- tion or proceeding in a criminal case. shev, B. Holyst, Ye. Tsentrov). Depending on the role of the ag- The doctrine of the victim of a crime grieved person (victim) in the implemen- in criminalistics as a criminalistic sub- tation of the criminal intent, several theory is based on the possibilities of types of behaviors on the part of the vic- victimologic analysis, aimed at collect- tim have been defined: positive, neutral ing and applying data on the injured per- and provocative. Positive behavior is son for the successful detection, investi- behavior that is aimed at the prevention gation and prosecution of offenses in of the conflict, its suppression and arrest criminal cases. the offender (socially positive behavior). In terms of criminalistics, it is impor- Neutral behavior does not conduce to the tant to differentiate between the types of commission of the crime, but does not victimity – an enhanced human capacity prevent it either (indifferent behavior). due to a number of mental and physical Provocative behavior of the victim cre- characteristics as well as the social role ates a real opportunity, contributes to the and status, under certain circumstances, implementation of criminal intent (by its to become a victim of a crime. nature, duration and intensity). Provoca- The following types of victimity tive behavior is the cause of committing have been defined: 1) a set of social and a criminal act or produces a positive ef- psychological characteristics associated fect on the formation of criminal intent. with specific characteristics of socializa- Provocative behavioris sometimes re- tion (victimogenic deformation of per- ferred to as negative. sonality); 2) professional victimity (con- Provocative behavior of the victim ditioned by the performance of certain induces negative emotional states of the social functions, such as a debt collector, criminal (aggressiveness, anger, bitter- taxi driver, police officer, etc.); 3) age ness, etc.) which causes murders, injury, victimity (as biological property); 4) vic- etc. For example, systematic humiliation timity – «pathology» (as a result of and insults can cause the emotions of a pathological condition of the person – anger, as a result of which physical dam- a serious physical disorder, physical ill- age will be inflicted on the aggressor. ness or mental illness). Frivolous or immoral actions of the victim (depravity of relations, demonstra- 1 Потерпілий від злочину (міжправове дослідження): монографія / за ред. Ю. В. Ба- tion of sexual availability, etc.) can be уліна, В. І. Борисова. Харків: Кроссроуд, provocative in cases of rape. 2008. – 364 с.

286 Yearbook of ukrainian law Neutralization of counteraction to investigation Shepitko V., Shchur B. of crimes (judicial proceedings in criminal cases)

The personality of the victim is an ticular patterns of spending leisure time, important element of a criminalistic crime the fact of (not) doing joint business, un- characteristic. The system of features re- dertaking commercial activities, the spec- lated to the victim’s personality is com- ificity of group behavior, propensity for plex and includes, as follows: general micro-groups, orientation of a micro- demographic characteristics (sex, age, group, etc.); 6) information on the activi- place of residence, work or educational ties (specifics of work, skills, profits, right institution, occupation, profession, educa- to dispose of material assets, range of tion, etc.), information on the life style, competences, the presence of conflict re- character traits or type of temperament, lations in the course of doing activities, habits and inclinations, links and relation- etc.); 7) financial situation (availability of ships. The victim data also includes infor- assets and property, cash deposits, sourc- mation on his/her victimity. The contacts, es of wealth accumulation, presence (or relationships between the victim and the absence) of debt, obtaining loans and the criminal, their nature affect the purpose, possibility of redemption, etc.); 8) crimi- motive, place, time, methods of commit- nal experience (presence (or absence) of ting and secreting the crime. convictions, connections with criminal In criminalistics details about the victim gangs, friendly relations with the persons are also important for certain investigative who were prosecuted); 9) the reasons for and judicial proceedings, for determining victim behavior (performance of certain operating practices and their tactics (the social functions (a collector, taxi driver, victim interrogation, investigative experi- a police officer, etc), social deformation ment involving the victim, inspection of an of the personality, consequence of a path- individual, preparation of samples for com- ological condition (a serious physical dis- parative examination, etc.). In the course of order, physical disability or mental ill- investigation (the trial), it is necessary to ness), a biological property, etc.). eliminate the negative influence of inter- The aggrieved persons can be dif- ested persons on the victim (threats, black- ferentiated depending on the mechanism mail, bribery, physical violence). and category of crime. There are catego- The most general program of the vic- ries of the aggrieved persons as a result tim personality research should include: of certain types of homicide (domestic 1) personal details; 2) socio-psychologi- homicide, contract murders, murders in- cal data; 3) behavior patterns (before the cident to gang confrontations, murders criminal conduct, at the time of the crime, involving rape, etc.), injury, robbery, after the crime); 4) independent refer- hooliganism, people trafficking, various ences (from employers, educational insti- sexual offenses etc. tutions, place of residence, relatives, cir- Typical Methods of Counteraction cle of acquaintances, etc.); 5) social net- to Investigation of Crimes (Judicial works (social circle, closest friends, Proceedings in Criminal Cases) conflict relations, the nature of acute con- Counteraction to investigation inflict relations and their time period, par- volves identifying opportunities to pre-

№ 9/2017 287 Criminal-legal sciences vent and neutralize it. Overcoming fac- 3) tactical means aimed at protection tual counteraction to the investigation of evidentiary information from its de- calls for appropriate reaction by law struction and distortion; enforcement officials. 4) tactical means to ensure the secu- For the current stage of develop- rity of parties to criminal proceedings; ment of criminalistics it is common to 5) tactical means aimed at the pre- turn from the study of «counteraction vention of investigation mistakes (tacti- to investigation» as a phenomena (def- cal, organizational, methodical). inition, position in criminalistic sci- Maintaining secrecy of investigation ence, types), from the development of (preliminary investigation or pre-trial criminalistic sub-theories and doctrines investigation) may be considered as associated with the counteraction, to the a means of overcoming counteraction to development of the system of proce- investigation. The concept of secrecy of dures, techniques and methods to over- investigation is becoming increasingly come and neutralize counteraction to important because of modernization of investigation in the framework of crim- counteraction of interested persons. inalistic tactics. Secrecy of investigation is informa- It is believed that the study of differ- tion concerning the circumstances, sub- ent methods and forms of counteraction ject to proof in a criminal case. This is to investigation of interested persons information, which is not disclosed in should be conducted in the sphere of the interests of investigation. tactics of criminal activities (criminal Secrecy of investigation is a kind of tactics) as a subdiscipline of criminalis- business, official secrecy; it is condi- tic tactics. As for the study of methods tioned by the specificity of professional of eliminating (neutralizing) of counter- work of the investigator. action of interested persons, with good The criminal legislation establishes reason it holds an important position in liability for the disclosure of data of pre- the investigative tactics (tactics of inves- trial investigation by a person cautioned tigative activities) as a subdiscipline of according to the procedure provided by criminalistic tactics (V. Shepitko, the legislation against the inadmissibility B. Shchur, etc.). of their disclosure, if it is committed with- The tactics of overcoming counterac- out the consent of the investigator (e.g., tion to investigation has been insuffi- Art. 387 of the Criminal Code of Ukraine). ciently developed so far. In our view, this The democratization of various direction of criminalistic tactics can be spheres of public life does not mean represented in several blocks: a straightforward rejection of the secrecy 1) tactical means to overcome per- of investigation. Since this secrecy acts jured evidence and expose false testi- as a guarantee to protect the rights and mony; legitimate interests of individual citi- 2) tactical means aimed at securing zens, protection of their safety, objective the secrecy of investigation; investigation of crimes.

288 Yearbook of ukrainian law Neutralization of counteraction to investigation Shepitko V., Shchur B. of crimes (judicial proceedings in criminal cases)

Tactical rules of maintaining secrecy investigator, prosecutor and defender of investigation: (in a civil case – a person involved in 1) compilation of the list of informa- the case, or his representative) acts as tion constituting the secrecy of investi- a falsificator. gation (preliminary investigation se- In Ukraine, no specific rule govern- crets) in a particular criminal case; ing liability for falsification of evidence 2) establishment of the scope of per- has been provided yet. However, Articles sons involved in the orbit of the criminal 372, 383 and 384 of the Criminal Code proceedings, who should be cautioned of Ukraine (Criminal prosecution of an against disclosing of the secrecy of in- innocent person; False statement on vestigation (a witness, an aggrieved per- a crime commission; False testimo- son, expert, specialist, interpreter, etc.); ny) provide for liability for acts (part 3) warning of persons against the 2) «related to the fabrication of evi- disclosure of the secrecy of investigation dence». (establishment and confirmation of Democratization of society is associ- duty); ated with increased opportunities for the 4) restriction of the scope of persons mass media (the media) to cover events present during the course of the investi- and conduct journalist investigations. gation; The media are the main source of infor- 5) restriction of access of certain in- mation about the activities of law en- dividuals to the evidentiary information; forcement agencies for the majority of 6) determination of the specifics of the population. In an effort to react work with evidential information as part quickly to the situation, the media can of investigatory-operative group (inves- report false or unverified information tigatory and intelligence group) or the about high profile or serious crimes. investigation team; Their negative role shows in publicizing 7) prohibition on unmotivated trans- information on the «order» of organized fer of the criminal case from one inves- criminal groups. With this in mind, the tigator to another; media activity should have certain limits. 8) establishment of the order of in- The system of tactical means aimed teraction of the investigator with inteli- at overcoming the counteraction to in- gency staff (B. Shchur). vestigation, may also include the The problem of falsifying evidence prevention of investigative mistakes. The as a form of counteraction to investiga- tactical mistakes of an investigator de- tion has been understudied in criminal- serve special attention. These mistakes istics. The essence of falsification of are made in the course of conducting evidence is the distortion of evidence, investigative actions, their complexes which is proof in a criminal case. Fal- (tactical operations), applying tactical sification of evidence is «the eternal options or their systems. curse» of judicial proceedings. More- Tactical mistakes of an investigator over, a special subject – the inquirer, constitute a negative result of the actions

№ 9/2017 289 Criminal-legal sciences conditioned by certain shortcomings in Thus, at the present stage of develop- his/her work. ment of criminalistic tactics its paradigm There are various reasons of tactical is changing, there are new trends and mistakes. Mistakes in many cases are theories. The content of criminalistic directly related to the investigator’s per- tactics is characterized by the formation sonality, his skills, abilities, and voli- of a new direction – the tactics of over- tional powers and character feature. coming counteraction to investigation. In particular, implementation of sim- This trend requires scientific understand- ilar actions, application of typical meth- ing, defining of its structure, develop- ods leads to a professional deformation – ment of the most efficient system of tac- development of psychological changes tics. that affect the quality of work. When at the initial stage of the investigation «ev- Published: Textbook of criminalistics. Vol erything is obvious» to the investigator, ume l : General Theory Edited by H. Malevski, it indicates a deformation of profession- V. Shepitko. – Kharkiv : Apostille Publishing al consciousness. House LLC, 2016. – P. 235–252.

290 Yearbook of ukrainian law V. Zhuravel, Professor of Criminalistics’ Department Yaroslav Mudryi National Law University, Doctor of Legal Sciences, Corresponding Member of NALS of Ukraine

UDC 343.98 DEFINITION AND SCIENTIFIC PRINCIPLES OF CRIMINALISTIC DIAGNOSTICS AND CRIMINALISTIC FORECASTING

Criminalistic diagnostics (V. Snet- The objects of criminalistic diag- kov, 1972) is a criminalistic theory, nostics are the material bodies, phe- where the cognition of changes, that nomena, situations that existed at the have taken place in the result of a crime, moment of crime. They are classified causes and conditions of such changes into the diagnosing and diagnostic. The on the basis of selective examination of former includes the objects, situations, the properties and conditions of the in- phenomena, properties, qualities, con- teracting objects in order to determine ditions, relations, the links between the mechanism of the criminal event as which require recognition. Diagnosing a whole or its individual fragments, is objects are the material media of attri- studied (Yu.Korukhov, 1998). butes that display the properties and The etymological meaning of the impact of the events and their condi- term «diagnostics» has three notions: tions on them. recognition, distinction and determina- The diagnosing objects include the tion. Criminalistic diagnostics accumu- traces-reflections (handwritten text, lates all the above mentioned three no- casts, photos, etc.), parts of objects, sub- tions and can be defined as a goal (task), stances (solids, liquids, gas-like), reflec- process and method of cognizing the tive images. One uses samples, primar- properties and state of the object (situa- ily the reference materials (tables, at- tion) in order to establish the changes lases) containing the characteristics of taken places therein, identifying the the objects under examination, their im- causes of such changes and their connec- ages, as well as collections of natural tion with the committed crime. objects.

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Diagnostics as well as identification time of the collision, the method of pro- is based on the examination of the ob- ducing counterfeit money, etc.); ject’s attributes. The diagnostic attribute c) specification of the tangible struc- is the one, using which one may judge ture of the crime scene’s situation (com- about the properties of the item reflected pliance of the objects (traces, evi- in the object’s trace, their change in time, dence) found at the scene with the mech- conditions, where the objects have inter- anism of crime, possibility of leaving acted. However, in contrast to the iden- traces of the crime instrument on the tification, while making the diagnostics, offender and his clothing, etc.); one is focused on the mechanism and d) determination of the temporal fea- conditions for the formation and mani- tures of the criminal event (when it oc- festation of traces. A distinguishing fea- curred, how long it might have been ture of diagnostics against identification necessary to commit the crime, in which is the fact that when performing identi- sequence the actions have took place, fication there is always a material object, which traces had been made earlier, and in the course of the object can be which of them later, etc.); missing (for example, a man is missing, e) ascertainment of properties of the but according to the traces on the way as acting objects (how many people par- available to the investigator, the approx- ticipated in the crime commission, the imate height of the man who has left the role of each of them in realizing the of- said traces can be determined). fensive intent, the person’s criminal skills, etc.); Criminalistic diagnostics solves a set f) specification of cause-effect rela- of problems that are aimed at studying tionships (what caused the fire, possibil- the internal properties and state of the ity of spontaneous firing without pulling object, its external characteristics (time, the trigger, etc.). location, operation), mechanism of the There are several areas (types) of di- origin and development of processes (the agnostic examinations: nature of interaction between an object 1. Diagnostic examination of the and the like). Among these problems properties and state of the object upon there are: direct examination thereof: a) ascertainment of the spatial struc- 1.1. Examination of the object’s ture of the criminal event situation properties, including its compliance with (where, what situation was around at the particular (set standards) features (e.g., crime scene, the exact location of the whether the object belongs to firearms). vehicle’s collision, which of the avail- 1.2. Determination of the actual state able tracks are attributable to the com- of the object, presence or absence of any mitted crime, etc.); deviations from its normal parameters b) ascertainment of the mechanism (e.g., whether the given firearm is fault- of individual phases (stages) of the event less, whether it is suitable for shooting). (the area or nature of the barriers’ break- 1.3. Specification of the object’s ini- ing, inter-position of the vehicles at the tial state (e.g., which changes have been

292 Yearbook of ukrainian law Definition and scientific principlesof Zhuravel V. criminalistic diagnostics and criminalistic... made to the original text of the document 3.1.2. Specification of individual under examination). phases (stages, fragments) of the event. 1.4. Determination of the causes and (e.g., which direction the vehicle has conditions for changing of properties been on as it appears from the traces on (state) of the object (e.g., which fact has the road surface). caused the rupture of the shotgun’s bar- 3.1.3. Determination of the mecha- rel). nism of the events in its dynamics (e.g., 2. Diagnostic examinations of the which parts of the vehicles have been in properties and state of the object by its contact at the collision). image. 3.1.4. Ascertainment of the possibil- 2.1. Determination the trace’s infor- ity (impossibility) to commit some ac- mativeness degree (e.g., if there are fin- tions under certain conditions (e.g., gerprints on the bottle, and if any, wheth- whether it is possible to shot from the er they are suitable for the identifica- given shotgun when it has fallen onto the tion). floor from a meter height). 2.2. Ascertainment of the properties 3.1.5. Determination of the consis- and state of the object at the time of tency (inconsistency) of the actions with manifestation (e.g., what conditions the special rules (e.g., which deviations from writer was in at the time of writing the special rules have been committed when manuscript). making the forms of such document). 2.3. Ascertainment of the properties 3.2. Determination of the conditions of acting objects by traces-reflections (situation). (e.g., how many people have partici- 3.2.2. Determination of the time (pe- pated in the crime commission, the role riod) or chronological sequence of ac- of each of them in realizing the offensive tions (events) (e.g., which sequence has intent, the person’s criminal skills, etc.). taken place judging by traces at the 2.4. Specification of the cause of scene, which actions the criminal has changes in the properties or state of the made). object (e.g., whether a particular text has 3.2.3. Determination of the place of been washed out, corrected, etched). the action (its location, boundaries), po- 3. Examination of the mechanisms, sitions of the participants (e.g., the inter- processes and actions upon the results position between the gunman and the (objects, maps). affected at the moment of shooting). 3. Determination of the mechanism’s 3.3. Determination of the causality. structure. 3.3.2. Determination of the cause for 3.1.1. Determination of the option to the observed outcome (e.g., the cause of re-create the mechanism and circum- the lock’s fault is, the cause of fire). stances of the event subject to the avail- 3.3.3. Ascertainment of the causal able maps (e.g., which mode (maneuver, relation between the actions and conse- braking) the vehicle’s driving was in quences (e.g., the extent to which the before hitting a pedestrian). actions of the vehicle’s driver have

№ 9/2017 293 Criminal-legal sciences caused the occurrence of the traffic ac- In his/her turn, the investigator car- cident). ries out the diagnostics of: 4. Ascertainment of criminogenic (1) criminal situation on the basis of factors. examination into the mechanism of 4.1. Ascertainment of the causes and crime (method of preparation, commis- conditions of the criminal event (e.g., sion and concealment, actions by par- which factors have contributed to the ticipants of the event) according to its commission of the crime, which imper- manifestation; fections of the documents have contrib- (2) investigation situation on the ba- uted to the falsification thereof) (Yu. sis of analysis of the available evidence, Korukhov, 1999). characteristics of personalities of the Criminalistic diagnostics is imple- participants to the criminal process in mented in the expert and investigative order to predict the prospects of its de- practice. The essence of expert diagnos- velopment; tic study is to reveal, in the object under (3) involvement of the individual examination, the deviation from the into the crime based on him showing the norm, to set the cause of such changes elements of the clue-like behavior; and to determine the extent where such (4) position of the questioned and cause is connected with the event (mech- searched according to the nature of his/ anisms) of the crime. For these purposes, her conduct, voluntary and involuntary one performs a comparison of the results responses. obtained with a similar one. Criminalistic Forecasting The methods of the expert diagnos- Criminalistic forecasting is a type of tics examination include the following predictions in the fight against crime stages (phases): area, focused on building and verifica- 1. Preparatory stage: tion of forecasts that reflects the pros- 1.1. Clarification of the task. Aware- pects and directions of the criminalistics ness of the object (situation). development and development of its 1.2. Specification of the possibility cognition objects in future. The objects to make the examination. of criminalistic forecasting include the 2. Major examination: functional side of criminal activities and 2.1. Analysis of diagnostic attri- of the actions to identify and investigate butes. crimes. Such objects are treated as sys- 2.2. Comparative examination temic formations, the elements of which through the use of analogues. include: mechanism, way (modus ope 2.3. Synthesis of findings. randi), situation of the crime, motive of 3. Final stage: the criminal activity, ideal and tangible 3.1. Assessment of the examination traces left from the offender’s interaction results. with the environment, techniques and 3.2. Setting forth of conclusions. methods to cognize the factors constitut- 3.3. Drawing of the opinion. ing a crime; behaviour of professional

294 Yearbook of ukrainian law Definition and scientific principlesof Zhuravel V. criminalistic diagnostics and criminalistic... and non-professional participants to the and upon the improvement of that prac- investigative process, etc. tice on basis of the criminalistics’ Criminalistic forecasting performs achievements, etc.); a number of functions, which are impor- 5) provisions as developed in crimi- tant for theoretical researching and prac- nalistic forecasting are subject to the tical activities. Among those, it is worth specificity of the scope and object of mentioning the heuristic, search, regula- cognition and which serve as the meth- tory, integrative, orienting, proactive and odological basis for theoretical studies pragmatic functions. and practice of the criminalistic forecast Theoretical and methodological ba- formation. sis for performing the criminalistic fore- The result of criminalistic forecast- casting includes: ing involves both the information media 1) philosophic concepts, beliefs, in on potential directions and tendencies particular the recognition of validity as that the cognition objects will develop the objective reality, historicity of the to. Forecasts can be divided into the phenomenon and processes (events) and search and regulatory ones, constructive their continuity, interaction of the past, and destructive ones, current (operating), present and future, and so on; short-term and long-term ones, group 2) provisions, rules and guidelines as and individual forecasts. developed in the general prognostics and The accuracy and validity of crimi- being the algorithmic instructions for nalistic forecasts depend primarily on forming of criminalistic forecasts (de- the collection and analysis of informa- pendence of the forecast reliability on its tion as required for making of such type information base and number of proba- of the activity: both formal and informal, ble forecasting alternatives; submission internal and external, quantitative and of forecasting methods to the laws of qualitative. epistemology and logic, etc.); The sources of reference for forecast- 3) concepts initiated in certain areas ing information may include the following: of knowledge: theory of law, criminal 1. Scientific evidence: law and criminal procedure law, crimi- a) provisions of the general theory nology, psychology, psychiatry and those and particular criminalistic theories: data as have been rendered as applicable in as regards the frequency of ways (modus composition of criminalistic forecasts; operandi) to commit and conceal the 4) laws and principles as set forth in crimes, trace-making mechanisms, skills criminalistics as the basic ones for the of criminal activity upon maintaining the formation of forecasting theory (the law stability of the determining factors; of active and creative adaptation for the b) results of scientometric surveys in purpose of proceedings as achieved by criminalistics, in particular, the conclu- various sciences; the law of conditional- sions as for directions, intensity and con- ity of criminalistic guidelines upon the tent of the dissertation theses on specific needs of practice to combat the crime issues of criminalistics;

№ 9/2017 295 Criminal-legal sciences

c) information featuring the current 2) methods of processing the source in- level of development of the natural and formation (preparation of analytical ex- technical sciences, data of which are planatory notes, forecast scenario writ- used in criminalistics, as well as tenden- ing); 3) methods to obtain prognostic cies and prospects for development of information (expert opinions, extrapola- scientific and technical progress; tion, modeling); 4) methods of checking d) results of sociological, legal and and evaluation (verification) of prognos- criminological forecasts; tic findings (indirect quantitative esti- e) survey data being the results of mates, additional survey of experts, con- surveying, interviewing the researchers struction of auxiliary models). and practitioners, as well as the conclu- Criminalistic forecasting can be of sions (opinions) of the experts as for scientific, scientifically applied and prac- object and situation of the forecast. tical orientations. 2. Statistical data: Forecasting of researches and results a) statistical criminalistic data, being thereof is associated with the develop- the information about the persons who ment of criminalistics in general, with have committed crimes, criminal meth- specification of the ways and the poten- ods and relevant traces, objects of crim- tial consequences of its development; inal offense; alongside forecasting is regarded as an b) quantitative features of the crime, internal, integral function of the science. its individual types and dynamics. Criminalistic forecasting is conductive 3. Summarized data of practices (infor enhancement of the cognitive area, cluding the foreign experience): being a kind of reference for finding the a) information on the new ways to most optimal ways and directions for commit crimes, new varieties of criminal scientific searching. offenses, transformation of the environ- Scientifically applied forecasting is ment, where these or those offenses are aimed at anticipating the prospects of committed; changes in the nature, methods, mecha- b) information about the efficiency nism and other structural elements of of various tools, techniques and methods certain types of criminal activity, in pe- of criminalistics for investigation pro- culiarities of their attributes’ manifesta- cess into a particular type of crimes; tions, and respectively, in potential c) information on the new tools and changes in the activity for exposing, in- techniques of judicial investigations, etc. vestigating and preventing such crimes. as emerged in the practice. Its essence lies in the fact that on basis Criminalistic forecasting is carried of the theoretical system of knowledge out through use of various methods, and regarding regularities of the forecast ob- it is necessary to point out the following jects development (knowledge about the among them: 1) the methods for obtain- past and present, their relationships with ing source information for forecasting other objects, forecast background, etc.), (questionnaires, interviews, monitoring); the assumption is formulated about the

296 Yearbook of ukrainian law Definition and scientific principlesof Zhuravel V. criminalistic diagnostics and criminalistic... most probable changes in the qualitative proceedings. Empirical data as for fea- state of such objects in future (modifica- tures of the particular subject, his behav- tion of existing or appearance of new iour indicate to the forecast background, ways (modus operandi) for the crimes the conditions, where a particular fore- commitment and cover-ups, items of the casted act would take place, aimed at criminal offense, etc.). The resulting pro- extraction of typical representations out jections determine the orientation of de- of those that are the most appropriate for velopments on guidelines for improve- this particular case. For example, it is the ment of methods of investigation of such examination and analysis of the spatial criminal acts being changed. Thus, the arrangement of typical places where se- identification of tendencies of the bur- rial murders with rapes are committed, glars’ adaptability to the changing condi- and thereby a development of the models tions of the facilities’ security against for forecasting of likely areas of poten- criminal offenses has made it necessary tial recurrent offenses of that category to take into account this fact in order to that allows for locating the boundaries develop appropriate guidelines for im- of the alleged criminal under the real proving the methods of investigation and conditions, since the criminal’s choice performance of preventive works. of the place to commit the criminal of- Practical forecasting reflects the fense is to a large extent connected with specificity of anticipations in the inves- the place of his residence or the location tigative and judicial enquiry and special of the original «base» where he usually search activity. Basis for the projections works at crimes, and so on. includes the generalized views on typical By the scale of coverage of the facts development of the objects, phenomena and circumstances as reflected in the and processes of certain kinds. The fore- forecast assumptions, in terms of prob- casts are made online on basis of such lems to be solved in the judicial and ingeneral concepts in respect to the spe- vestigative practice, forecasting is dif- cific real investigation situations, sub- ferentiated into the strategic, tactical and jects, their behaviour and actions, etc. individual ones. The first type relates to The source information for making of the forecasting of the investigation and such forecasts is, in the first place, the court proceedings prospects in the case theoretical knowledge in the sphere of as a whole; its findings precede the set- criminology, psychology, theory of re- ting out of leads, provision of planning, flection, etc., for example, information identification of the most appropriate about the typical criminalistic features forms of interaction, characterize the of the type of crime, to which the events possible alternatives for development of under investigation relate, about typical the investigative and judicial situations; tendencies of investigative situations, consequences of their procedural deci- psychological aspects of the suspects’ sions and arrangements as made to neu- behaviour and the one of other persons tralize or minimize the negative results who are fallen into the scope of court from their implementation, etc. The sec-

№ 9/2017 297 Criminal-legal sciences ond one is related to forecasting of pro- its goals, tasks and scope than the scien- ductivity of the scheduled tactical op- tific one, and therefore a brief explana- erations, investigative actions and tacti- tory note, which reflects the results of the cal techniques in order to solve tactical development and diverse guidelines be- problems in specific situations within the ing of a constructive (promoting to real- investigation and court proceedings; the ization of forecasts) or destructive (pre- effects of using the gained results for venting the implementation of situations, proving; tactical risk and the tools to events, and circumstances as described minimize it. Individual forecasting is in criminalistic forecasts) nature, is the aimed at drawing up a predictive model form for realization of forecasts. The of the potential behaviour of participants results of individual forecasting are rein the pre-trial investigation and in the flected in the plans of investigation or in court proceedings, for example, the be- the plans for performance of individual haviour of a suspect at interrogation: investigative actions and tactical opera- responses, counteractions, etc. tions. The most common and effective Talking about the prospects for de- form for realization of the criminalistic velopment of criminalistic methods, forecasts is a set of guidelines for indi- techniques and tools, the guidances viduals (body) making a decision on the should be of a constructive, creative na- basis of prognostic findings and that is ture and must contribute to the improve- organically included in future planning ment or creation of new technical crimi- documents. This includes both the plan- nalistic tools and techniques, such as the ning of the scientific examinations and proposals to create the most favourable their results, i.e. an implementation of conditions for development thereof and scientific achievements in the areas that the like. In this case, the proposed guide- are assessed as the most promising, as lines can be based on the past experience well as upon planning of the investiga- (including the foreign one) of such tasks’ tion as a whole or of individual investi- solutions and are operating on the al- gations. That being said, the content of ready approved methods, and may be of guidelines as shown in the final docu- a purely exploratory nature, i.e. can in- ment varies depending on the nature and clude the proposals for finding the new specificity of the forecast object, forecast ways and means to ensure the achieve- development goals and areas of exami- ment of prognostic conclusions in re- nations. Thus, the results of scientific spect to the development of the examina- criminalistic forecasting can be mani- tion objects. fested through their accumulation in the Implementation of criminalistic fore- program document, which determines casts in the judicial investigative and the strategic area for making of examina- special search activities is focused on tions by a specific scientific team. optimizing the planning and organiza- Scientifically-applied criminalistic tion of investigation, court proceedings, forecasting is somewhat narrower due to and on increase of the investigation and

298 Yearbook of ukrainian law Definition and scientific principlesof Zhuravel V. criminalistic diagnostics and criminalistic... search operations arrangements’ effi- optimal conduct of any investigative ac- ciency (setting out and verification of tion and those facilitating the solution of leads, evaluation of the investigative, the problem to reduce the level of tacti- judicial and operating search situations, cal risk). making of tactical decisions, specification of the optimal system on tactical Published: Textbook of criminalistics. Vol techniques as the major means influenc- ume l : General Theory Edited by H. Malevski, V. Shepitko (підручник). – Kharkiv : Apostille ing the situation and its individual com- Publishing House LLC, 2016. – P. 211–216, ponents, as well as those providing the 290–296.

№ 9/2017 299 V. Gorodovenko, Doctor of legal sciences, associate professor, President of the Court of Appeal of Zaporizhia region, Honored lawyer of Ukraine

UDC 342.56:347.97/99(477) Separate matters concerning organization of the Judicial System of Ukraine according to principles of territoriality and specialization in the context of the modern constitutional reform

The up-to-date problems concerning The problem of implementation of transformation of the Judicial System of the mentioned constitutional principles Ukraine have a multifaceted nature. Dur- has been a topic for a scientific discus- ing the regular stage of the court reform sion in Ukraine during a prolonged pe- in Ukraine which was marked by adop- riod of time. Some aspects of this matter tion of the Law of Ukraine «On Amend- were viewed in works by V. Brintsev, ing the Constitution of Ukraine (in the V. Dolezhan, M. Koziubra, R. Kuybida, sphere of justice)»1 a number of urgent I. Marochkin, L. Moskvitch, I. Nazarov, tasks concerning optimization of the ju- O. Ovcharenko, M. Onishchuk, dicial system was solved. The key task S. Prylutskiy, D. Prytyka, A. Selivanov, consisted in rationalization of the judi- N. Selizniova, V. Serduk, N. Sybiliova, cial system and organization of this Sys- V. Stefaniuk, D. Fiolevskiy, V. Shyshkin tem on principles of territoriality and and others. The abovementioned authors specialization. (p.1, Art.125 of the Con- maintain various positions concerning stitution of Ukraine). implementation of principles of territoriality and specialization. In general, this 1 Закон України «Про внесення змін до кон- means that the matter of choosing orga- ституції України (щодо правосуддя) № 1401‑VIII від 02.06.2016 [Електрон. ресурс]. – nizational structure of the judicial sys- Режим доступу: http://zakon3.rada. tem is very important and quite difficult. gov.ua/laws/show/1401–19. – Заголовок з екрана. The necessity of carrying out a com-

300 Yearbook of Ukrainian law Separate matters concerning organization Gorodovenko V. of the Judicial System of Ukraine... plex research namely in terms of court of the principle of territoriality lies in the specialization and territorial structure of following: а) absence of territories which the judicial system should help to de- would be out of a court jurisdiction, velop an optimal way for solving prob- b) territorially convenient location of lems related with determining the struc- courts, c) existence of a sufficient num- ture of specialized courts and with orga- ber of courts and judges on the territory nization according to the principle of of the state2. territoriality of juridical bodies of R. Kuybida views territoriality as Ukraine. a decentralization of lower sections of Therefore, the goal of our research the system of courts of general jurisdic- consists in determining the essence and tion (local courts and appeal courts). importance of principles of territoriality Therefore, each local court and each ap- and specialization; as well as in imple- peal court has its own territorial jurisdic- mentation of these principles in the pro- tion and competence of a court is based cess of organizing activities of juridical on jural relationships arising or existing bodies; showing their influence on the on the definite territory. According to the system of courts of general jurisdiction; author, the task of organizing courts on and finally analyzing the new court leg- the basis of territoriality principle con- islation. sists in bringing local courts and appeal Chapter VIII of the Constitution of courts closer to people3. Ukraine defines the main organizational V. Stefaniuk thinks that the main principles of the judicial system. Terri- principle of territoriality principle con- toriality is defined as one of fundamental sists in the fact that territorial courts principles. Territoriality in the sphere of should be closer to people and that each constructing a new judicial system con- citizen should know how a court where sists in conformity of courts of general he/she should protect his/her rights is jurisdiction with administrative and ter- chosen in the complex judicial system4. ritorial structure defined in article 133 of N. V. Stibiliova made an apt remark the Constitution. This principle is stipu- that the right for an «own» i.e. «legal» lated by the necessity to implement jus- judge is one of meaningful components tice on the entire territory of Ukraine and of territoriality. On one hand this require- to bring it closer to citizens1. ment consists in the fact that each person It is namely definition of the princi- should know in advance the jurisdiction ple of territoriality that appears to be especially interesting for practicians and 2 Організація судової влади в Україні : навч. посіб. / І. Є. Марочкіна, Н. В. Сібільо- representatives of the legal science. So, вої. – Х. : Одіссей, 2007. – 328 с. I. Marochkin points out that the meaning 3 Куйбіда Р. О. Реформування правосуддя в Україні: стан і перспективи : монографія / 1 Конституція України: наук.‑практ. Ко- Р. О. Куйбіда. – К. Атіка, 2004. – 288 с. ментар / В. Б. Авер’янов, О. В. Батанов, 4 Стефанюк В. С. Судова система України Ю. В. Баулін та ін. – Х.: Право; К.: Вид. дім та судова реформа /В. С. Стефанюк. – К. : «Ін Юре», 2003. – 808 с. Юрінком Інтер, 2001. – 176 с.

№ 9/2017 301 Criminal-legal sciences his/her affair belongs to and each person The principle of territoriality appears must be sure that nobody and nothing will to be the most important when defining deprive this person from his/her right to the network (location) of local courts. It appeal to this court. On the other hand, it is so because this network should be guarantees organizational independence branched in order to provide each per- of the court power because each judge sonality with a real opportunity to get to must be sure that the territorial jurisdic- a judicial institution for essential settling tion of the court (the court district) can be his/her affair. Within the system of gen- changed or liquidated only in accordance eral jurisdiction courts territoriality has with the law and only in cases determined its quite peculiar manifestations. In ad- by the law1. dition to that, principles should be pre- Let us look through organizational sented as the most stable legal standards. aspects of court territorial accessibility However, during the recent decades the (proximity). Territoriality is represented essence of principles used by the domes- as brunches of lower sections of the sys- tic judicial system has been continu- tem of general jurisdiction courts (local ously changing. When analyzing evolu- courts and appeal courts); and it ensures tion of legislation about the judicial sys- territorial bordering of competence of tem we can see that the composition of homogeneous courts (and so is it defines standards mainly depend on the will of borders of court districts). That is why the legislator. each of these courts has its own territo- On the ground of this, the Law of Ukraine «On the Judicial System and rial jurisdiction. And this means that Status of Judges» has defined that local competence of a separate court is based general courts are presented as district on jural relationships arising or existing courts created in one or several dis- on the definite territory. That is an im- tricts in cities, or in a city, or in a dis- portant guarantee for resolution of legal trict (districts) and a city (cities). (p. 1, disputes within adequate periods in con- Art.21). ditions of complicating legal relations A court is created and liquidated in and an increasing number of legal dis- accordance with the law the project of putes. If in case of such a big country as which is brought to the Verkhovna Ukraine the entire legal system were Rada of Ukraine by the President of centralized in a single place justice Ukraine after consultations with the would appear to be objectively inacces- High (Supreme) Council of Justice sible for the majority of population of (p.p. 1, 2, Art.19). Reasons for creating this country2. or liquidation of a court include changes of the judicial system defined by 1 Сібільова Н. В. Теоретичні основи побу- this Law, the necessity to ensure acces- дови судової системи України / Н. В. Сібіль- sibility of justice, optimizing spend- ова // Право України. – 2009. – C. 38–45. ings of the state budget or changes in 2 Куйбіда Р. О. Реформування правосуддя в Україні: стан і перспективи: монографія / the administrative and territorial struc- Р. О. Куйбіда – К.: Атіка, 2004. – 288 с. ture.

302 Yearbook of ukrainian law Separate matters concerning organization Gorodovenko V. of the Judicial System of Ukraine...

The mentioned theses show devia- Status of Judges», territorial organization from the strict peg of organization tion of local courts became based on of judicial bodies to the administrative up-to-date international experience of and territorial structure; and the men- constructing the system of courts of gen- tioned approach has become a conse- eral jurisdiction and organization of quence of legislator’s understanding these courts outside administrative and specifics of their activity related with territorial units. implementation of a subjective criterion, Nevertheless, scientific sources pro- activity that is not based on administra- pose quite foundational arguments against tive and territorial devision. practical implementation of the above- We should agree with V. V. Serduk mentioned approach. In particular, who pointed out that the notion «court O. M. Ovcharenko proves that in this district» is not identical to the notion case, we deal with competition of prin- «administrative-territorial unit» because ciples of accessibility of justice and judg- the essence of the first notion consists in es’ independence; and taking into account organization of a court (courts) on a cer- the priority of convenient and compre- tain territory, territorial jurisdiction of hensible location of courts for the popula- which does not coincide with the admin- tion accessibility must be given prefer- istrative and territorial devision accepted ence2. In our opinion, the problem of in- in the state. Moreover, in case with the dependence of courts from the executive second notion priority belongs to the authorities appears to be the most acute constitutionally defined administrative in the system of administrative proceed- and territorial structure which results in ings. Probably a more logical solution creation of administrative and territorial would be to create district administrative units. In addition to that, administrative courts in specially defined judicial dis- and territorial subdivision presupposes tricts, which would coincide with admin- creation of general administrating au- istrative and territorial units. And that was thorities; and a special creation called the initial idea of administrative justice «court district» outlines territorial com- creators. However, as it may often occur petence of courts having a right to con- it was not completely implemented and duct court proceedings on this territory1. during the process of creating the system In terms of applying the principle of of administrative courts, district courts territoriality in accordance with the Law were created in regional centers, in Kyiv of Ukraine «On the Judicial System and and Sevastopol. In addition to that, parts of affairs of administrative jurisdiction are now viewed by local general courts. 1 Сердюк В. В. Територіальність як прин- цип побудови системи судів загальної юрис- It becomes quite evident that such an ap- дикції: нові підходи до реалізації / В. В. Сер- proach to the matter of organizing the дюк // Вісник Академії адвокатури Украї- ни. – 2015. – Т. 12, № 2. – С. 161–169. – Режим 2 Овчаренко О. М. Доступність правосуд- доступу: http://nbuv.gov.ua/UJRN/ дя та гарантії його реалізації: монографія / vaau_2015_12_2_22 О. М. Овчаренко. – Х.: Право, 2008. – 304 с.

№ 9/2017 303 Criminal-legal sciences work of administrative courts has signifi- should not be used for organizing appeal cantly narrowed the initial idea laid in the courts for viewing civil cases, criminal process of their creation. cases and cases concerning administra- Some scientists also express an opin- tive offenses. Our point of view can be ion that despite the instructions of the substantiated by the fact that in view of judicial law concerning creation of new specifics of court cases viewed by these districts for local administrative courts courts there are no preconditions for (that presupposes separation of certain their dependence on local state authori- special territories being under jurisdiction ties and public authorities. of the respective courts; and these territo- Summing up the mentioned informa- ries should not be identified with admin- tion, we should point out the following. istrative and territorial units) the idea of In accordance with the Constitution of congruity of these units with court dis- Ukraine and the Law of Ukraine «On the tricts was consistently implemented. Judicial System and Status of Judges» Creating districts of appeal courts territoriality is one of the principles of with borders coinciding with borders of building courts of general jurisdiction. administrative and territorial divisions General practice defines two approaches also requires detailed comprehension to defining the essence of this principle. from the point of expediency and ratio- According to the first approach, territo- nality. So, creation of several appeal dis- rial jurisdiction of a court is defined tricts within one or several administra- through the borders of the court district, tive and territorial units (regions) was which do not coincide with borders of the partially used while constructing appeal respective administrative and territorial courts, commercial courts and adminis- unit. Most judicial systems in Western trative courts with several administrative European countries are built in this way. and territorial units combined under their The main advantage of such a construc- jurisdiction; and that gives an opportu- tion consists in court independence from nity to avoid influence of local authori- administration of the respective territory. ties’ interests on results of retrials in case According to the second approach, terri- with certain affairs. torial jurisdiction of a court is limited In addition, at the same time, in view through one or several administrative and of the fact that the previous edition of territorial units. This scheme is wide- Art. 26 of the Law of Ukraine «On the spread in countries of Eastern and Central Judicial System and Status of Judges» Europe as well as in CIS countries. Ad- defined appeal courts for viewing civil vantages of this scheme include: (а) con- cases, criminal cases and cases concern- venience for population and legal entities, ing administrative offenses as appeal (b) physical accessibility of courts for courts created in accordance with re- citizens, (c) compliance of the judicial spective decrees of the President of system with the territorial structure of Ukraine in separate appeal districts, we state authorities (in particular criminal think that the abovementioned approach justice authorities).

304 Yearbook of ukrainian law Separate matters concerning organization Gorodovenko V. of the Judicial System of Ukraine...

Territoriality in the basis of building of key factors influencing the level of the judicial system of Ukraine means the court competence and quality of taken following: (а) compliance of the system court decisions. of general jurisdiction courts to the sys- According to Article 18 of the Law tem of administrative and territorial de- of Ukraine «On the Judicial System and vision; (b) absence of territories in the Status of Judges», (effective at the mo- country, which would be out of court ment of preparing this report) Ukrainian jurisdiction. Taking into account the oc- courts of general jurisdiction are special- cupied territory of Ukraine (the Autono- ized in civil, criminal, economic, admin- mous Republic of Crimea and the city of istrative cases as well as in cases on ad- Sevastopol), a peculiar attention in case ministrative offenses. with amendments to the Constitution of In its turn, the reform of the Constitu- Ukraine was paid to the principle of ter- tion of Ukraine has preserved the consti- ritoriality which was clearly defined in tutional principle of specialization and p.6 Art. 136, and namely: «Justice in the consolidated theses about actions in the Autonomous Republic of Crimea is per- judicial system of administrative courts formed by courts of Ukraine» (c) view- (the first and the fifth part of the Article ing a case by a judge of a court whose 125 of the Constitution of Ukraine); and territorial jurisdiction includes this case to a certain extent that may be perceived (in accordance with the legally defined as inconsistency between the principle procedure of distribution of court cases). of specialization (according to part 1 Art. 125 of the Constitution of Ukraine it As it has already been mentioned, the concerned the judicial system in gener- principle of specialization is one of prin- al), and definition of only administrative ciples used for organization of the judicial courts as specialized courts. And more- system of Ukraine. Application of this over, in its resolution concerning legisla- principle is a necessary condition and an tive draft «On Amending the Constitu- important precondition for realization of tion of Ukraine (in the sphere of justice)» theses of Art.55 of the Constitution of the Plenum of the Supreme Court of Ukraine securing protection of each per- Ukraine points out that consolidation of sonality’s rights and freedoms in court. autonomous administrative courts on the We may be sure that just and competent constitutional level is unwarranted1. So, protection of rights and legal interests of citizens and legal entities can be reached 1 Висновок Пленуму Верховного Суду only in case of performing a high-quality України стосовно законопроекту «Про вне- justice. And this high-quality justice in- сення змін до Конституції України (щодо cludes many circumstances: respective правосуддя)» (реєстр. № 3524 від 25 листо- пада 2015 року) [Електрон. ресурс]. – Режим preparation and selection of high-skilled доступу: http://www.scourt.gov.ua/clients/vsu/ and righteous personnel, proper financial vsu.nsf/7864c99c46598282c2257b4c0037c014/ and logistic support of judicial activities c803389466f6921ec2257f2b002b34da/$FILE/ etc. In addition, at the same time judicial %D0 %92 %D0 %98 %D0 %A1 %D0 %9D%D0 %9E%D0 %92 %D0 %9E%D0 %9A.pdf – Заго- specialization should be recognized one ловок з екрана

№ 9/2017 305 Criminal-legal sciences referring to the Conclusion No 15 of the appeal instance. So, for example, there Consultative Council of European Judg- is a proposal that the Supreme Anti-cor- es (hereinafter referred to as the ruption Court should view cases con- CCJE) where the CCJE analyzed judicial cerning corruption offenses which are in specialization in European countries and the jurisdiction of the National Anti- marked out that specialization of judges corruption Bureau of Ukraine (i.e. cases (judicial devisions or departments) and concerning corruption accusations of not specialization of courts is the most judges, public prosecutors, people’s dep- widespread. The Plenum warns, that the uties, senior officials and executive au- main risk of specialization consists in thorities). Taking into account the ab- separation of specialized judges from the sence of a clearly defined competence of main judiciary; specialization may lead the mentioned court, scope of authori- to fragmentation of the law and the pro- ties, procedure of implementation, process by means of separating specialized cedure of formation and resignation of judges from legal realities in other the judiciary there is a question whether spheres and potentially isolating them such a court can be considered extraor- from general principles and fundamental dinary or peculiar. At the same time, tak- rights and that may undermine the prin- ing into account norms of the legislative ciple of legal unity. draft, the Supreme Anti-corruption Court However, the legislator went further formed with a purpose to hear a certain and in the Law of Ukraine «On the Ju- category of cases is not an ordinary one dicial System and Status of Judges», the and may significantly differ from the external specialization is broadened by general procedure of hearing court cases. means of creating the Supreme Anti- It is worth noting that application of corruption Court and the Supreme Court the specialization principle to the judi- on Matters of Intellectual Property. cial system is performed by means of According to the presented informa- organizational and legal measures used tion, on the level of the first instance and on the level of the state judicial system appeal instance the process of specializa- for separating specialized courts within tion will be performed in form of orga- the judicial system. Creation of special- nizational devision into local courts (and ized courts is a more complicated form appeal courts), general courts, commer- of the judicial specialization, which is cial courts and administrative courts; and implemented on the level of the judicial at the same time the Supreme Anti-cor- system of the state. As far as this form ruption and the Supreme Court on Mat- concerns to the entire judicial system it ters of Intellectual Property must be cre- touches a broad circle of organizational ated, they should act as courts of the first and legal matters (including financial instance in case with certain categories matters). of affairs (p.1 Art. 31). In other words, Therefore, V. Stefaniuk notes that organizational specialization of courts specialized courts are created depending differs on levels of the first instance and on the needs of the society and opportu-

306 Yearbook of ukrainian law Separate matters concerning organization Gorodovenko V. of the Judicial System of Ukraine... nities of state financing on various stag- system) one should clearly define goals es of judicial system construction and which are going to be reached thanks to development1. these reforms. Based on the Law of According to I. Bondarenko, special- Ukraine «On the Judicial System and ization in the sphere of courts of general Status of Judges» dated June 2, 2016 the jurisdiction presupposes creation of ju- result will be further complexity of the dicial hierarchical sections with a spe- judicial system. cialized competence in separate spheres In addition to this, we should point of legislation, which are the most sig- out that creation of separate judicial nificant in the society2. branches of various jurisdictions causes We can agree to a certain extent with various legal assessments. Traditionally, the fact that the specialization of courts supporters of the idea to create special- formed up to date in the judicial system ized courts give three main arguments: does not already meet the needs of the specifics of the subject of legal regula- society and requirements to a law-bound tion, availability of procedural peculiar- state and that it requires improvement. ities of a separate case and the need in But is creation of such new judicial in- specially prepared specialists in a defi- stitutions really justified from the finan- nite sphere. V. V. Serduk pointed out that cial, judicial and procedural point of specialized courts might be created in view? The proposed reforming of the cases when this is stipulated by the spe- judicial system (the proposed legislative cifics of court cases depending on the draft) will require significant financial, nature of jural relationships and pecu- human and moral resources. Introduc- liarities of the legal status of subjects of tion of new courts in Ukraine has never legal proceedings. So, in Ukraine during taken place without complications. Tak- various periods proposals were made ing into account the fact that in condi- concerning creation of financial (tax), tions of proper financing and after cer- labor courts and other specialized tain corrective measures in the sphere of courts3. procedural legislation the current judi- On the basis of analyzing foreign ex- cial system will have an opportunity to perience of functioning of specialized operate effectively, we think that before courts, P. Serkov points out main char- introduction of any reformatory ideas (in acteristics of specialized courts: first of particular ideas about creation of new all, the purpose of creating specialized judicial institutions inside the judicial courts consists in creating necessary organizational and procedural conditions 1 Стефанюк В. С. Судова система України for the most efficient hearing categories та судова реформа /В. С. Стефанюк. – of cases which are really widespread К. :Юрінком Інтер, 2001. – 176с. and/or which have a peculiar social im- 2 Бондаренко І. Судова система України та її реформування у сучасних умовах / 3 Городовенко В. В. Принципи судової І. Бондаренко // Право України. – 202. – № 8 – влади: монографія / В. В. Городовенко. – Х.: С. 37–41 право, 2012. – 448 с.

№ 9/2017 307 Criminal-legal sciences portance; the second point is that such accordance with the subjective criterion courts are created within existing sys- and concerning creation of judicial insti- tems of general jurisdiction courts with tutions of juvenile justice. Specialized general competence; the third point is literature includes various positions con- that the subject competence of such cerning the necessity to create special- courts is defined exhaustively; the fourth ized courts hearing cases of juvenile point is that these are courts which usu- persons and jurisdiction of such courts ally hear cases only in the first instance should be defined through the concrete and higher instances for them are courts subject of legislation (i.e. juveniles and with a more general competence1. From underaged persons) with the simultane- the presented information, it can be seen ous simplification of the procedure of that specialization is based on organiza- hearing such cases. The necessity to sim- tional and procedural conditions. plify the procedure of cases concerning And in addition to that, we think that underage (juvenile) persons was viewed when solving the matter concerning fur- by scientists during the soviet period. In ther development of the specialization particular, M. Gernet proved the neces- principle by means of creating other spe- sity to simplify the procedure by de- cialized courts one should take into ac- crease of negative influence on children count the existing legal regulations and and teenagers that can be reached by judicial practice. At the same time, cre- means of substituting court proceedings ation of specialized courts should be with a conversation of judge with the based on organizational and legal pre- underaged person with participation of conditions. In particular, the first impor- a guardian as well as with closed court tant legal precondition consists in avail- proceedings. In addition to that, the au- ability of a body of normative data, thor paid his attention to possibility of which should be profoundly studied and hearing cases concerning juvenile per- properly used (in accordance with its sons solely by the judge; availability of specifics). Another important legal pre- requirements concerning the level of condition consists in available peculiar- professional training of judges in the ities of regulating the respective group sphere of juvenile psychology; restric- of jural relationships and these pecu- tions in publicity of judicial proceedings liarities stipulate the specifics of the ju- and restrictions of formal accusation of dicial procedure and give an opportunity a crime; appeal of the court decission in to define legal proceedings in these cas- accordance with peculiar rules of judi- es as special proceedings. cial proceedings2. In this context, we should mention According to M. Vilgushynskiy, the the lasting scholarly discussion concern- introduced principle of judicial system ing specialization of judicial bodies in specialization in Ukraine means that

1 Правосудие в современном мире: моног- 2 Гернет М. Н. Изучение преступности рафія / под. ред. В. М. Лебедева, Т. Я. Хабри- в СССР: Избр. произвед. – М.: Юрид. лит., евой. – М. : Норма : ИНФРА-М, 2102. – 704 1974. – С. 603–604

308 Yearbook of ukrainian law Separate matters concerning organization Gorodovenko V. of the Judicial System of Ukraine... certain subsystems of judicial bodies creating the system of administrative act in the system of courts of general courts in Ukraine has also confirmed jurisdiction and these subsystems are this. In general, few authors in the sci- authorized to hear cases of only a cer- entific juridical literature dispute the tain category and to exercise justice fact that rational specialization of judg- according to the norms of special pro- es (with introduction of the respective cedural codes; so these subsystems are procedural form) gives an opportunity unified and maximally adapted for hear- to effectively solve the task of special- ing categories of cases belonging to ization in the judicial system. An im- their competence. Such system of courts portant point is that this form of work of general jurisdiction completely meets performed by judges requires addition- international standards in the sphere of al expenses of the state for creating and organizing the judicial system which maintaining a separate judicial infra- foresee the necessity to create a respec- structure. tive procedural order of hearing cases Therefore, specialization as a prin- of a definite subject. In addition to that, ciple of constructing the judicial system the author points out that specialization means that definite courts being ele- of courts and judges is an obligatory ments of this system are authorized to condition for improving the quality of hear and to solve court cases arising judicial activities1. from definite kinds of jural relationships Opponents of judicial specialization («external» specialization). Specializa- give other arguments. G. I. Nickerov tion as a principle used for organizing argues that it contributes to weakening activities of a certain judicial institution of the judiciary2. In addition to that, means that definite judges are defined in creating a separate judicial branch is it or definite judicial assemblies (pan- related with significant financial ex- els) are created in it (these judicial as- penses of the state, which can be taken semblies (panels) are authorized to hear by advanced economies. It also requires court cases arising from definite kinds of significant organizational expenses re- jural relationships – «internal» special- lated with giving premises, providing ization). In worldwide practice special- courts with necessary technical facili- ization of courts is presented in three ties, equipment, hardware, software, main models: (a) all-embracing special- skilled personnel. The experience of ization with creation of separate judicial subsystems having their own mecha- 1 Вільгушинський М. Й. До питання ре- nisms of appealing court decisions; алізації принципу спеціалізації в системі судів загальної юрисдикції / М. Й. Вільгу- (b) partial specialization when separate шинський // Адвокат (укр.). – 2012. – № 6. – judicial institutions on the level of the С. 9–13 first instance are created and in higher 2 Никеров Г. И. Судебная власть в право- judicial instances specialization of judg- вом государстве (опыт сравнительного ис- es is presupposed; (c) specialization of следования) / Г. И. Никеров // Гос-во и пра- во. – 2001. – № 3. – С. 20. judges at judicial institutions. The Ukrai-

№ 9/2017 309 Criminal-legal sciences nian Judicial System combines elements es yet it has proved its efficiency. How- of the first and the third models of spe- ever, the creation of separate branches of cialization. specialized courts in Ukraine may be We think that, first of all, specializa- performed only after reaching social and tion of judges should be developed in political consensus on this matter. Ukraine (especially in courts of the first instance). This method requires signifi- Published: Право України. – 2016. – № 7. – cant financial and organizational expens- С. 34–43.

310 Yearbook of ukrainian law L. Loboyko, Doctor of Law, Professor, head of department of the investigation of problems of a criminal process, criminalistics and judicial system, Academician Stashis Scientific Research Institute for the Study of Crime Problems of the National Academy of Legal Sciences of Ukraine

UDC 343.131 THE PRINCIPLE OF THE SCIENTIFIC VALIDITY IN THE FORMATION OF THE MODERN CRIMINAL PROCEDURE OF UKRAINE

The problem. The formation pro- tion should be considered as the main cess of the criminal procedure is con- principle of building a modern criminal tinuous. It consists of elements which are procedure. significant more (a preparation of system The analysis of the recent re- law projects like the criminal procedural searches and publications. The fol- code of Ukraine (hereinafter is CPC) or lowing scientists previously covered the less (submission of point resolution problems of the scientific validity of changes). The experience of lawmaking construction of the criminal procedure: in Ukraine shows, that the positions V. G. Goncharenko, J. M. Groshevskii, stated are not always scientificly rele- V. S. Zelenetskii, O. V. Kaplina, vant. Consequently, some of criminal V. T. Malyarenko, V. T. Nor, M. A. Pog- procedural law institutes do not corre- oretskii, V. M. Tertyshnyk, O. G. Shylo, spond to modern requirements of the M. E. Shumylo and others. However, society for the functioning of procedure their publications mostly cover some system, causing a problematic situation. aspects of the scientific method to the The essence of the latter is that the issues reformation of some institutes and reg- of modern social life related to anti- ulations of the criminal procedure of crime are being solved using outdated law. The question about the scientific procedural mechanisms. Modern crimi- validity as a principle of formation of nal procedure can be built only when the modern criminal procedure was based on advanced, modern research never brought up before in the science results. That is why scientific substantia- of the criminal process, and this fact, in

№ 9/2017 311 Criminal-legal sciences turn, gave birth to this particular re- pendence of Ukraine and it consisted search. mostly in the reformation of the domes- A general problem statement. A set tic criminal procedural legislation aimed of tasks must be performed for the dis- at achieveing international, partucilary, closure of the principle of the validity of European, standards of the procedure. the modern criminal procedure forma- The reformation of any legislation tion. Firstly, one must define a problem branch is a procedure. Thus, like any of usage of the scientific position in other process, it cannot function prop- building of the modern criminal proce- erly without the main provisions or rules, dure in Ukraine. Then one must clarify which are referred to as principles. The the person responsible for the identifica- reformation of the criminal procedural tion of conceptual methods for the ref- legislation should be held based on a set ormation of the criminal procedure leg- of principles as well. Otherwise, it will islation in conditions, when it is impos- be impossible to achieve the goal of the sible to achieve a unity in scientists’ reform – the formation of the modern positions on the main questions of the criminal procedure. reformation. The result of a reform, carried out Statement of the main research without the mentioned principles, may material. The criminal procedure as an come in a form of unexpected results. In activity, regulated by law, can be consid- this case, the reform will result in a cre- ered modern1 only when its main provi- ation of a law, which does not corre- sions correspond to the modern society spond to the society anticipation. Con- submission about its political, social, sequences of this reformation could be economic, scientific and other essentials. hardly foreseen, but one can unambigu- In a globalizing world, the modern crim- ously claim that a new law cannot in any inal procedure has to meet not only na- way be accepted as effective and modern tional, but also foreign leading progres- in the way of its accordance to require- sive concepts of development of the ments of our time. society, State and law (legislation), in- The process of the formation of the cluding a criminal procedural code. domestic criminal procedure continues However, it is worthwhile to consider with the adoption of the new CPC and the fact that the number of procedural its entering into force on November 20, systems is equal to the number of States. 2012. After coming into force, the CPC There are just as many different proce- was amended a total of thirty six times, dural systems as there are states in gen- in other words, one amendment per eral. month. The two so-called «dictatorial The formation of the modern crimi- laws» of January 16, 2014 were abol- nal procedure has begun with the inde- ished on January 28, 2016. After the adoption of new CPC, the question about 1 Note: A word «modern» in this conext the theoretical basis of the reformation means time-bound, the one that corresponds with current needs. of the criminal procedural legislation

312 Yearbook of ukrainian law The principle of the scientific validity Loboyko L. in the formation of the modern criminal procedure remains relevant. For instance, in Rus- V. G. Goncharenko notes that opti- sian Federation, the fundamental work mal content and techniques of criminal of I. L. Petruhin, which is dedicated to procedural law is possible only with the the theoretical basis of the reformation clear theoretical concepts ensured.3 An of the criminal process,12;2 was issued attempt to develop a theoretical concep- three years after the entering into force tion of new CPC, which should reflect of the new Russian CPC. Nevertheless, modern presentations about the state and it remains relevant nowadays. law, already occurred in Ukraine.4 Yet Every successful amendment can be the author did not define foundations of aimed at the formation of both up-to- the formation of the modern procedural date and «out-of-date» criminal proce- system, while he was keen on the exten- dure. Different scientists can percieve sion of the rights and liberties of subjects the same legislative provision amend- of the criminal procedure (predominate- ing the CPC in both modern and arly, of victim and crime investigator), chaic manner. The most reliable refer- who received a purely declarative char- ence point of the criminal procedure, as acteristic in his work. He narrowed down shows, is its scientific validity, because, the competition in the process to the as they say – science is the domain equalization of the rights of the victim where all modern knowledge is pro- and the accused, whereas the trends of duced. criminal procedural law lead to the con- The theoretical contradictions about struction of adversarial model of crimi- its basis, ways, results and so on are the nal justice with the presence of the pros- main reasons of the delay of the con- ecution and defense. Moreover, prosecu- struction of the criminal procedure in tor plays a key role among the members a way of the reformation of the corre- of the criminal proceedings on the pros- spondent legislation branch in Ukraine. ecution side. In these conditions, the question about The lack of doctrinal development in the substance of the principle of the sci- the field of criminal procedure is a ma- entific validity of the formation of the jor, if not the main reason that the So- modern criminal procedure becomes viet CPC (1960) was functional in a special relevance and sense for the Ukraine much longer than in any other solving of the question about the adjust- post-Soviet country. While the new ment of the theoretical conceptual posi- criminal law at the time of entry into tions of scientists. 3 Гончаренко В. Деякі зауваження 1 Петрухин И. Л. Теоретические основы у зв’язку з прийняттям нового Кримінально- реформы уголовного процесса в России :в процесуального кодексу України / В. Гонча- 2‑х ч. / И. Л. Петрухин. – М. : Проспект, ренко // Вісн. Акад. прав. наук України. – 2004. – Ч. 1. – 221 с. 2003. – № 2–3. – С. 704–705. 2 Петрухин И. Л. Теоретические основы 4 Тертишник В. М. Концепція Криміналь- реформы уголовного процесса в России :в но-процесуального кодексу України / 2‑х ч. / И. Л. Петрухин. – М. : Проспект, В. М. Тертишник. – Дніпропетровськ : Юрид. 2004. – Ч. 2. – 192 с. акад. МВС України, 2003. – 40 с.

№ 9/2017 313 Criminal-legal sciences force of the CPC in 2012 acted for the inal procedure, yet only one should be past eleven years. M. V. Onishuk com- chosen. Alternatively, a variety of pro- mented on this, «Today we find our- cedural models can be used to gradually selves in a situation of a peasant, who is compose a single one – adequate to the unable to harness a horse named Judi- social relations that prevail in the coun- ciary to the cart named Procedural Code try at some point of its existence. … And this «peasant helplessness» is There exists a large variety of opin- due to doctrinal uncertainty 1. ions about the «design» of the modern Scientific research should focus on criminal procedure of Ukraine in a sci- determining the principle of building ence of the criminal procedure3. a criminal process. And since the major- But, as noted above, since indepen- ity of the practice and experience of do- dence, a science-based concept of inte- mestic criminal procedural activities grated, comprehensive reform of the shows that the mankind did not come up criminal procedure law that would define with a better way of this than the com- structural benchmarks of a modern crim- petitive one, it is advisable to guide the inal procedure has not been prepared. theoretical developments to determine Even the urge to reform the criminal pro- optimal ways of introducing competition cedure law, which was narrowed down in the domestic process. Competitive- to an adoption of the new CPC, was only ness for modern domestic criminal pro- discussed in a form of scientific articles. cess has to become the universal prin- Part of the scientific validity of the ciple that, in psychological studies, is principle of building a modern criminal referred to as the «conceptual core», process is wide, the maximum possible which resembles a hand that can wear involvement of scientists in the discus- different gloves2. sion and study of certain legal provi- There is no sense to prove the need sions, especially those that define the of the scientific validity of the various conceptual bases of the process. Adher- activity processes, because it became an ence to this approach is important in the axiom. Here I would like to draw atten- transition from the old to the new model tion to such an important sign of scientific approach to law reform, as the vari- 3 Бойко В. Щодо деяких положень нового кримінально-процесуального законодавства ety of scientific views on trends of the країни [Електронний ресурс] / Н. Бобечко, modern criminal proceedings. There is В. Бойко //Право України. – 2003. – № 1 // a lot of views, as well as models of crim- Режим доступу : http://www.lawbook.by.ru/ magaz/pravoukr/0301/24.shtml. – Заголовок 1 Оніщук М. Судово-правова реформа: чи з екрана; Маляренко В. Окремі проблеми буде дано відповіді на виклик часу / реформування кримінальної юстиції М. Оніщук // Право України. – 2003. – № 5. – в Україні [Електронний ресурс] / В. Маля- С. 15–19. ренко / Академічні читання / Київс. регіонал. 2 Козлов Н. И. Формула успеха, или Фи- центр Акад. прав. наук України (Київ, лософия жизни эффективного человека / 22.10.2008) // Режим доступу : Н. И. Козлов. – М. : АСТ-ПРЕСС КНИГА, http://www.bod.kiev.ua/jurnal/20_13.htm. – За- 2004. – 264 с. головок з екрана.

314 Yearbook of ukrainian law The principle of the scientific validity Loboyko L. in the formation of the modern criminal procedure

(«structure») of the criminal process, tists, experts and officials. Therefore, the such as during the preparation of the new involvement of people, who, while being draft CPC. There is an option of basicly well trained specialists, refuse to be in- gathering all scientists engaged in re- volved in an active legislative work, is search on the criminal procedure, and try unfavourable. It should be noted that to work out some sort of a coordinated sometimes a high level of activity comes position for its science-based model. from people who, to put it mildly, are not However, this way goes nowhere. prepared for legislative work. Participa- Firstly, it is hardly possible to gather tion of such persons has little to no good all scientists, and even so it would be use, and in some cases, they can also very difficult to work together. cause damage to the quality of legislation. Secondly, even in a much smaller At the stage of discussion of the bill, workgroup, the decisions on controver- which defines the conceptual framework sial issues would be adopted by voting, of modern formation of criminal proce- and thus, a minority of the involved sci- dure, leading scientific publication entists would still be dissatisfied with the grounds should be used as means of dis- decisions. cussion for the most debatable provi- Thirdly, not all scientists are compe- sions – general or specific procedural tent in all matters of criminal procedure. institutions. Unfortunately, the prepara- Typically, scientists are engaged in cer- tion period of the project of the CPC did tain research topics, areas in the field of not held such discussions. Therefore, the procedural legal theory that, in our view, highest state authorities had to intervene is also positive because in this way you into the process of reforming the crimi- can achieve depth and quality of re- nal procedure law. search. Therefore, a similar divisional Verkhovna Rada was such an author- approach should be reflected in the ity in 1992. It adopted the Concept of workgroups. Scientists or groups of sci- judicial reform in Ukraine1 (hereinafter – entists develop drafts of individual arti- the Concept 1992). Among the factors cles or chapters and then use the meet- that influenced the need for judicial re- ings of the entire group to initiate a dis- form at the time, the key role was played cussion on the draft specific articles or by the fact that «the courts of the Repub- chapters composed into a draft law. Proj- lic, the entire justice system and existing ect of the CPC, so to speak, becomes legislation regulating the activities of law a product of the research of narrow spe- enforcement agencies are going through cialists on particular topics (chapters, a deep crisis caused by many factors and sections). is experiencing a negative impact on its Fourthly, the preparation of future legislation, which must define the concep- 1 Концепція судово-правової реформи tual fundamentals of modern criminal в Україні, затверджена постановою Верхов- procedure, should be provided by an ac- ної Ради України від 28 квітня 1992 р. // Ві- дом. Верхов. Ради України. – 1992. – № 30. – tive part of the legal community – scien- Ст. 426.

№ 9/2017 315 Criminal-legal sciences activities. The courts did not always reli- Since the abovementioned Concepts ably protect the rights and freedoms, and were approved by the President of at times have been a tool in the command- Ukraine, they received a mandatory administrative system projecting the will characteristic in the development of the of the highest authority (the state). The CPC. Defining the concept for reform of court had no authority, and the authority the criminal procedural law, the Presi- enjoyed unlimited power over it. Judicial dent left the right to seek and implement and legal reform should lead the judicial into the CPC the most effective, science- system as well as all areas of law in line based way of procedural activities to the with the socio-economic and political scientists. changes that occurred in the community» Certainly, the concept for reforming (Section 1 of the Concept 1992). As we the criminal procedural law determined can see, in the Concept 1992, Verkhovna by the President of Ukraine did not ex- Rada of Ukraine demonstrated an intent clude the scientific achievements of do- to bring criminal procedure in accordance mestic and foreign legal science. The with the temporal notions of rights and model of criminal proceedings, as de- freedoms and modernize the system alto- fined in the Concept and implemented in gether. the current CPC, was based largely on The president of Ukraine took further the results of a comparative legal analy- responsibility for the reformation of sis of domestic criminal procedural law judgment and the system of the criminal and the laws of the European Union and law in general. He approved two ground the practice of the European Court of documents for the reformation of the Human Rights. Such fundamental ap- criminal procedural legislation: the Con- proach justifies itself at the present stage cept for improving the justice system to of creation of national law in a state that ensure fair trial in Ukraine in line with aspires European integration. European standards1 and the Concept of It would seem that the scientists Criminal Justice Reform in Ukraine2. working on the construction of modern criminal procedure (members of work- 1 Концепція вдосконалення судівництва ing groups and experts) could only in- для утвердження справедливого суду troduce draft legislation to scientific re- в Україні відповідно до європейських стан- дартів, схвалена Указом Президента України sults, taking into account the contents of від 10 травня 2006 р. № 361/2006 // Офіц. вісн. the above Concepts. However, there are України. – 2006. – № 19. – Ст. 23. several problems related to the use of 2 Концепція реформування кримінальної achievements of the science of criminal юстиції України, затверджена Указом Пре- procedure while working on these proj- зидента України від 8 квітня 2008 року № 311/2008 «Про рішення Ради національної ects. безпеки і оборони України від 15 лютого Firstly, the scientific results and the 2008 року «Про хід реформування системи position is expressed on the basis of dif- кримінальної юстиції та правоохоронних ferent methodological approaches. For органів» // Офіц. вісн. Президента України. – 2008. – № 12. – Ст. 486. example, the methodological basis of the

316 Yearbook of ukrainian law The principle of the scientific validity Loboyko L. in the formation of the modern criminal procedure

CPC draft in 2012 was the Concept of by the members of the relevant working Criminal Justice Reform in Ukraine. groups based on their ability to «fit» into That is why some scientists denied a list a concept of a draft. Therefore, certain of novelties, which did not correlate with scientific statements will inevitably be the theoretical dogmas that existed in our left behind. This is sometimes perceived country for decades. Basic theoretical negatively by the author and may cause contradiction between traditional (con- rejection and criticism of both of the servative) and modern scientific views draft, and the subsequent law, adopted on the current CPC, which defines the on its basis. parameters of modern criminal proce- Fourthly, some scientific positions, dure is purely related to its functional claiming to play a key role in the formu- purpose. lation of certain norms that amend law, Secondly, the criminal procedure is are expressed in different time periods. commonly regarded to be a way of the The loss of relevance by certain provi- struggle with the crime.1 The new do- sions make it impossible to use them in mestic doctrine, however, one that is the preparation of the bill, since the traditional for modern Europe, a crimi- scope of it is to contribute to the devel- nal procedure is understood as a means opment of modern criminal proceedings. of solving of legal conflict. The essence Discussion on certain provisions boils of the first approach is the implementa- down to whether national traditions pre- tion of criminal proceedings for the iden- vailing in science, law and practice im- tification of a guilty person and further plementation should be taken into ac- punishment. The second approach in- count in the process of formation of volves the need to regulate by means of modern criminal procedure. It seems that criminal procedure the criminal legal only the ones that «fit» into the current conflict, which has a minor impact. As understanding of law in general and for the grave crimes, all the «ability» of criminal procedural law in particular and the criminal and criminal procedural law the concept of the particular draft should should be used. be taken into account. Thirdly, the science of criminal pro- Summarizing the talk over the scien- cedure often shows not one but two or tific validity of the principle of building more points of view on the same issue. a modern criminal procedure, we have Moreover, they all can be scientifically come to the following conclusions: the justified within the research boundaries, problem of the usage of provisions of in which these positions are formulated. scientific works on legislative changes The selection of the position formulated aimed at building a modern criminal pro- based on scientific research is carried out cedure resides in their quantitative and qualitative diversity; in a situation, when 1 Подольный Н. А. Может ли борьба с пре- it is impossible to achieve single position ступностью быть задачей уголовного судо- on the application of a theoretical model производства / Н. А. Подольный // Современ- ное право. – 2004. – № 9. – С. 38–41. of the modern criminal procedure, the

№ 9/2017 317 Criminal-legal sciences responsibility for defining conceptual entific interpretation of criminal proce- approaches to this issue should be taken dure activities; exploration of the pos- by one or more of higher state authority sibility of providing scientific and (Parliament and / or the President). methodological recommendations on Further research possibilities. The specific criminal proceedings on differ- topic explored in this article is quite ca- ent stages of its existence. pacious. In order to complete this study, Published: Питання боротьби зі further research should be held in the злочинністю: зб. наук. пр. / редкол.: following areas: clarification on the is- В. І. Борисов та ін. – Х. : Право, 2016. – sues of practical implementation of sci- Вип. 31. – С. 30–40.

318 Yearbook of ukrainian law O. Shilo, Head of the Department of Crim- inal Procedure and the investigative activities of the Yaroslav Mudryi National Law University, Doctor of Legal Sciences, Pro- fessor

UDC 343.13(477):061.1ЄС-044.332 THE PROBLEMS OF THE ADAPTATION OF THE CRIMINAL PROCEDURAL LEGISLATION TO THE EUROPEAN UNION LAW

A general problem statement. The state of the European values of respect Law of Ukraine dated September the for human rights and fundamental free- 16th, 2014 ratified the Association doms, democracy, the rule of law. Agreement between Ukraine, on one One of Ukraine’s obligations en- hand, and the European Atomic Energy shrined in the Preamble to the Associa- Community and its Member States1 tion Agreement with the EU is the grad- (hereinafter, the Association Agreement ual adaptation of Ukraine’s legislation to with the EU), on the other hand. It is the EU acquis in accordance with the hard to overemphasize the importance of directions set out in this Agreement and this event for Ukraine, because it finally its effective implementation. created a strategic framework of further A prominent place among these areas reforming processes in all spheres of is taken by the fight against crime and social life, all of which will ensure the corruption; cooperation in the fight establishment and recognition by the against terrorism; combating money laundering and terrorist financing; inter- 1 Угода про асоціацію між Україною, з од- national cooperation in combating il- нієї сторони, та європейським союзом, Євро- licit drug trafficking, psychotropic sub- пейським співтовариством з атомної енергії stances and precursors; legal assistance. і їхніми державами-членами, з іншої сторо- It is necessary to separately note the ни: ратифіковано із заявою Законом України competence of the EU in the field of № 1678‑VII від 16.09.2014 р. // Верховна Рада України : офіц. веб-портал. – Режим доступу: criminal process, the development of http://zakon5.rada.gov.ua/laws/show/984_011?te which began with the entry into force of (дата звернення: 03.06.2016). – Заголовок the Maastricht Treaty in 1992, which з екрана.

№ 9/2017 319 Criminal-legal sciences gave the EU institutions the right to issue these areas of international cooperation acts in the form of «general position» – have gained strategic importance as they crime-combating conventions. With the are aimed at creating a common Euro- entry into force in 1999, the Amsterdam pean area of freedom, security and justice, Treaty gave EU institutions the compe- the protection of the member-states tences to make framework decisions in against threats that can prevent their fur- the field of criminal proceedings, the first ther development and are a danger to the of which was the framework decision on world as a whole. Therefore, a significant the rights of victims. part of the Association Agreement with The purpose of the study. The the EU is devoted to cooperation in the above necessitates the study on adapta- field of justice and security. tion of the Ukrainian law to the EU law, According to Article 22 of the As- including criminal procedure law, clari- sociation Agreement with the EU coop- fying lines of its adaptation and develop- eration of the parties is targeted, inter ment prospects of the science of criminal alia, at the following issues: a) smug- procedure, which will create a proper gling of, and trafficking in, human be- theoretical background of future legisla- ings as well as firearms and illicit drugs; tive innovations. b) smuggling in goods; c) economic The analysis of recent research. crimes in the field of taxation; d) corrup- The issue of adaptation of the criminal tion, both in the private and public sec- procedural legislation of Ukraine to the tor; e) forgery of documents; f) cyber- EU legislation is relatively new to the crimes. The Parties enhance bilateral, science of criminal procedure, which regional and international cooperation in explains its insufficient level of scien- this field, including cooperation that in- tific development. This issue is com- volves Europol. The Parties shall further monly addressed in papers of scientists develop their cooperation in the fields of, in the field of international law, although inter alia: (a) the exchange of best prac- there are some scientific resources avail- tices, including the experience on inves- able from other areas of law, in particu- tigation techniques and crime research; lar, the following authors should be (b) the exchange of information in line noted: O. D. Krupchan, V. I. Muraviova, with applicable rules; (c) capacity-build- K. B. Pusan, T. M. Sereda, O. M. Siniuk, ing, including training and, where ap- O. I. Trahniuk, I. V. Iakoviuk and others. propriate, the exchange of staff; (d) is- The main part. Getting into the stat- sues relating to the protection of wit- ed problems, it should be noted, that the nesses and victims. The Parties are first EU founding treaties did not contain committed to implementing effectively provisions on cooperation in the field of the UN Convention against Transnation- criminal law, since the purpose of its cre- al Organised Crime1 and its three Proto- ation was the development of integration 1 in the social and economic sphere. How- Конвенція Організації Об’єднаних На- цій проти транснаціональної організованої ever, in current globalization conditions, злочинності, прийнята резолюцією 55/25

320 Yearbook of ukrainian law The problems of the adaptation Shilo O. of the criminal procedural legislation... cols, the UN Convention against Corrup- United Nations Global Counter-Terror- tion1 and other relevant international ism Strategy of 20063 and other relevant instruments. UN instruments, and applicable interna- Combating money laundering and tional conventions and instruments. The terrorist financing within the meaning of Parties shall do so in particular by ex- Article 20 of the Association Agreement changing: (a) information on terrorist with the EU provides for enhancement groups and their support networks; of bilateral and international cooperation (b) experience and information on ter- in this field also at operational level. The rorism trends and on the means and Parties ensure implementation of rele- methods of combating terrorism, includ- vant international standards, in particular ing in technical areas, and training, and those of the Financial Action Task Force (c) experience in respect of terrorism (FATF) and standards equivalent to those prevention. adopted by the Union. Cooperation in the fight against il- In the fight against terrorism, Article licit drugs, and on precursors and psy- 23 of the Association Agreement with chotropic substances aims to combat il- the EU provides for cooperation in the licit drugs, reduce the supply of, traffick- prevention and suppression of acts of ing in, and the demand for illicit drugs, terrorism in accordance with interna- and cope with the health and social con- tional law, international human rights sequences of drug abuse. It shall also law, refugee law and humanitarian law, aim at a more effective prevention of and the respective laws and regulations diversion of chemical precursors used of the Parties. In particular, the Parties for the illicit manufacture of narcotic agree to cooperate based on the full im- drugs and psychotropic substances. plementation of Resolution No. 1373 of Following its European aspirations the UN Security Council of 20012, the and the European choice, Ukraine should ensure the gradual adaptation of domes- Генеральної Асамблеї від 15 листопада 2000 tic legislation regulating legal relations року: ратифіковано із застереженнями і зая- in these fields to the European Union вами Законом України № 1433‑IV від law. In line with the provisions of the 04.02.2004 // Верховна Рада України: офіц. веб-портал. – Режим доступу: 2001 року // Верховна Рада України: офіц. http://zakon5.rada.gov.ua/laws/show/995_789 веб-портал. – Режим доступу: (дата звернення: 03.06.2016). – Заголовок http://zakon0.rada.gov.ua/laws/show/995_854 з екрана c16 (дата звернення: 03.06.2016). – Заголовок 1 Конвенція Організації Об’єднаних На- з екрана. цій проти корупції: ратифіковано із заявами 3 Глобальна Контртерористична Страте- Законом України № 251‑V від 18.10.2006 р.// гія ООН: Резолюція та план дій (A/ Верховна Рада України: офіц. веб-портал. – RES/60/288), ухвал. Генеральною Асамблеєю Режим доступу: http://zakon0.rada.gov.ua/ ООН у 2006 році// Ел. ресурс: режим досту- laws/show/995_c16 (дата звернення: пу http://unrcca.unmissions.org/Portals/unrcca/ 03.06.2016). – Заголовок з екрана. Counter-Terrorism/phase_1/3d_expert_meeting/ 2 Резолюція 1373 (2001), схвалена Радою Concept_Note_ru.pdf (дата звернення: безпеки на 4385‑му засіданні, 28 вересня 06.06.2016). – Заголовок з екрана.

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National Program of Adaptation of the Ukraine, adopted on April 12, 20123, Ukrainian law to the European Union which laid down the foundation for fur- approved by the Law of Ukraine on ther legislative innovations in the field March 18, 20041, the adaptation is to of criminal justice. Adversarial criminal bring Ukraine laws and other legal acts proceedings; separation of criminal pro- in compliance with the acquis commu- cedural functions; substantial expansion nautare. This requires the adoption of of judicial review during the preliminary Ukraine’s legislation, the creation of in- investigation and procedural capabilities stitutional mechanisms and appropriate of the defense in relation to the collec- actions both at the international level in tion of information about facts that may relations between Ukraine and the EU be forensic evidence; implementation of and in the rule of law in Ukraine2. the principle of immutability of the pros- In this context it should be noted, that ecutor in criminal proceedings; radical the regulation of the fight against crime change in the model of the initial phase and corruption in Ukraine in recent years of criminal proceedings; normalization has undergone a conceptual change. Since of tacit activities of the prosecution to 2012, Ukraine has begun to adopt the leg- verify statements about the crime and islation in this area not only introducing collect information about the facts that significant new legal institutions, most of may be relevant forensic evidence, which still have not been known to the known as undisclosed investigative national legislation and are implementing (search) actions; discretionary expansion European standards, but also representing and implementation of consensual pro- a new ideology of criminal justice, the es- cedures in this regard (primarily, the in- sence of which is the recognition of the stitute of deals in criminal proceed- supreme value of human rights and free- ings) that provide opportunities to ef- doms, and their security and protection – fectively protect the private interests of the duty of the state to be carried out by its participants in criminal proceedings and authorities in compliance with the Euro- also to resolve criminal legal conflict; pean standards of human rights and the widespread use of recording means in administration of justice. the implementation of criminal proceed- Such legislative acts, first of all, in- ings – these are only a small fraction of clude the Criminal Procedure Code of the conceptual changes that have occurred in criminal procedural legislation 1 Про Загальнодержавну програму адап- of Ukraine with the adoption of the new тації законодавства України до законодавст- CPC and are aimed at introducing the ва Європейського Союзу: Закон України № 1629‑IV від 18 березня 2004 року // Відом. European values and standards of human Верхов.Ради України. – 2004. – № 29. – Ст.367. rights and freedoms into the field of 2 Муравйов В. Зближення законодавства України з правом Європейського Союзу: су- 3 Кримінальний процесуальний кодекс часний стан та перспективи // Вісник Київсь- України: Закон України № 4651‑VI від 13 кого національного університету імені Тара- квітня 2012 року// Відом.Верхов.Ради Украї- са Шевченка. – 2007. – № 35–36. – С. 46–51. ни. – 2013. – № 9–10. № 11–12, № 13. – Ст.88.

322 Yearbook of ukrainian law The problems of the adaptation Shilo O. of the criminal procedural legislation... criminal justice. In the same context, the Ukraine» dated October 14, 20144, «On changes to the CPC of Ukraine should the State Bureau of Investigation» dated also be noted which are made by the Law November 12, 20155, «On the National of Ukraine «On amendments to the Police», dated February 7, 20156 «On Criminal Code and the Criminal Proce- probation», dated February 5, 20157 and dural Code of Ukraine in view of recom- others. mendations of the sixth report by the These legislative acts significantly European Commission on the implemen- altered the regulation of some existing tation by Ukraine of the EU visa liberal- institutions in the criminal justice system ization action plan, which are aimed to (including the prosecutor’s office in improve the procedures of asset seizure terms of optimization of its powers and and special confiscation» dated February limitations of the scope of powers in ac- 18, 2016, which significantly changed cordance with the recommendations of the procedure for seizure of property, in the Council of Europe) and created new particular, in order to ensure special con- institutions, the functionality of which is fiscation; they provided for the possibil- to ensure the effective functioning of the ity of seizure of third party property if field of criminal justice at a level that there are sufficient grounds to believe corresponds to the European values and that it will be subject to special confisca- standards of human rights, public expec- tion, etc. tations regarding the fight against crime Adaptive processes towards the Eu- and corruption, increased confidence in ropean integration of Ukraine are re- the police and courts (in particular, the flected in the latest legislation, which is National Police, the National Anti-Cor- also a source of the criminal procedural ruption Bureau of Ukraine, the free legal law of Ukraine – namely, the Laws of assistance system, probation authorities, Ukraine «On free legal assistance» dated etc.). June 2, 20111; «On the right to a fair However, as stated in the Strategy of trial» dated February 12, 20152’ «On Reforming the Judiciary System, Judi- Prosecution» dated October 14, 20143, «On National Anti-Corruption Bureau of 4 Про Національне антикорупційне бюро України: Закон України№ 1698‑VII від 14 жовтня 2014 року // Відом. Верхов. Ради 1 Про безоплатну правову допомогу: За- України. – 2014. – № 47ю – Ст.2051. кон України № 3460‑VI 02 червня 2011 року// 5 Про Державне бюро розслідувань: Закон Відом.Верхов. Ради України. – 2011. – № 51. – України № 794‑VIII від 12 листопада 2015 ст.577. року // Відом. Верхов.Ради України. – 2016. – 2 Про забезпечення права на справедли- № 6. – Ст.55. вий суд: Закон України № 192‑VIII від 12 6 Про Національну поліцію: Закон Украї- лютого 2015 року№ //Відом.Верхов. Ради ни № 580‑VIII від 02 липня 2015 року // Ві- України. – 2015. -№ 18, № 19–20. – Ст.132. дом. Верхов. Ради України. – 2015. – № 40– 3 Про прокуратуру: Закон України 41. – Ст.379. № 1697‑VII від 14 жовтня 2014 року //Відом. 7 Про пробацію: Закон України № 160‑VIII Верхов. Ради України. – 2015. – № 2–3. – від 5 лютого 2015 року // Відом. Верхов. Ст.12. Ради. – 2015. – № 13. – Ст. 93.

№ 9/2017 323 Criminal-legal sciences cial Proceedings and Related Legal In- cedural legislation of Ukraine in order to stitutions for 2015–2020, approved by adapt it to EU acquis in the criminal jus- the Decree of the President of Ukraine tice sector, current regulation of the con- on May 20, 20151, there exist systemic duct of criminal proceedings, law en- problems in the strategic planning and in forcement practices of preliminary in- the legislative process; the functioning vestigation bodies and the court allows of prosecutor’s offices and criminal jus- to identify priorities in this area, which tice as related legal institutions has its should include the following provisions: shortcomings; the existing legal assis- – introduction of the mode of imple- tance system proved the lack of func- mentation of the European standards of tional ability and the justice system to- criminal justice that in addition to the day does not properly perform its task. quality of the criminal procedural law, These factors determine the need for which, as noted above, implemented an integrated approach to the criminal these standards into national judicial justice sector reform, the implementa- proceedings, also implies the need to tion of measures envisaged by the Strat- change professional legal awareness of egy and Action Plan to implement the law enforcement officers and judges, Strategy of Reforming the Judiciary Sys- forming of law enforcement practices in tem, Judicial Proceedings and Related line with the requirements of the Consti- Legal Institutions for 2015–2020, ad- tution of Ukraine, as focused on the Eu- opted by the Council on Judicial Reform. ropean values and standards, as well as As a result of the implementation of the practices of the European Court of the provisions, the judicial system of Human Rights; Ukraine and related legal institutions will – Creation of the appropriate legal be guided, as stated in the Strategy, in its framework to combat cybercrime. Un- work by the rule of law in an effective, derstanding of the extreme importance efficient and coordinated manner; they to solve this problem led to Decree of the will be accountable to the citizens of President of Ukraine dated March 15, Ukraine, be free from any political influ- 2016 No. 96/2016 approving the Ukrai- ence and will meet the standards and best nian Cybersecurity Strategy, which aims practices of the European Union. to create conditions for the safe function- Analysis of the strategic directions ing of cyberspace, its use for the benefit of further reforming of the criminal proof individuals, the society and the state. The next expected step is the adoption 1 Про Стратегію реформування судоу- of the relevant law of Ukraine. строю, судочинства та суміжних правових One of the ways to ensure cyberse- інститутів на 2015–2020 роки: Указ Прези- дента України № 276/2015 від 20 травня 2015 curity of Ukraine according to paragraph року // Верховна Рада України: офіц. веб- 4.5 stated in the Strategy is the fight портал. – Режим доступу: against cybercrime, which provides for http://zakon5.rada.gov.ua/laws/show/276/2015 the implementation, inter alia, of the fol- (дата звернення: 03.06.2016). – Заголовок з екрана. lowing measures in an established man-

324 Yearbook of ukrainian law The problems of the adaptation Shilo O. of the criminal procedural legislation... ner: – creation of an effective and easy criminal procedural nature, aimed at op- contact center to report cases of cyber- timizing the pre-trial investigation of crime and fraud in cyberspace, improved cybercrime and implementation of evi- speed of response to cybercrime by law dence in court. Some of them have not enforcement bodies, including their re- been yet covered by the current criminal gional units; – improved procedural procedural legislation of Ukraine and mechanisms for the collection of evi- are, therefore, promising directions of its dence in electronic form relating to development. This is quite logical, since crime, improved classification methods, the Strategy formalizes a policy of the tools and techniques to identify and re- state in cyber security and therefore de- cord cybercrime, expert research; – in- termines strategic objectives, the de- troduction of court-ordered blocking of tailed determination of which should be determined (identified) information re- reflected in sectoral legislation. sources (information services) by tele- Normalization of these measures is communications operators and provid- essential because, as practice shows, the ers; – normalization of procedures for investigation of such crimes raises a num- making writs on emergency recording ber of problems, particularly relating to: – and subsequent storage of computer the inability to conduct covert investiga- data, traffic storage binding on telecom- tive (detective) actions in many criminal munications operators and providers; – proceedings (despite the fact that the resolution of issues of the possibility of crime for which the criminal proceedings urgent implementation of procedural ac- have been initiated is not serious); – dif- tions in real time with the use of elec- ficulty to prove the involvement of a par- tronic documents and digital signa- ticular person in the commitment of tures; – implementation of the scheme a crime in the case where computer equip- (protocol) of coordination of law en- ment is used by several persons; – inabil- forcement agencies to combat cyber- ity to extract traces of the crime from the crime; – training of judges (investigating virtual space; – the need to attract special- judges), investigators and prosecutors to ists to participate in the conduct of inves- work with the evidence relating to the tigation (search) operations (search, re- crime received electronically, with due view) and to involve experts to conduct regard to the specifics of cybercrime; – examinations aimed at gathering evi- introduction of a special procedure for dence; – complexity of identifying and interception from telecommunications recording traces of the crime in telecom- channels in case of cybercrime investi- munication networks, given the ease of gations; – training of law enforcement change and destruction of computer in- officers. formation; – short-term preservation of It should be noted that the compo- information by providers (including IP nents of a specified area of the fight address, allowing to identify the location against cybercrime, as follows from the of the person allegedly involved in the above, include a number of measures of crime), etc.;

№ 9/2017 325 Criminal-legal sciences

– Creation of an effective witness third stage analyzes risk factors and es- and victim protection from threats re- timates their value in order to establish lated to participation in criminal pro- the likelihood of adverse consequences ceedings in respect of grave and espe- for the witness, which may also affect cially grave crimes. The value of this the achievement of the goal of the crim- task as guarantees of rights and legiti- inal justice system. Risk analysis in- mate interests of a person in criminal cludes risk assessment and risk reduction proceedings and guarantees of justice led methods or reduction of related adverse to its consolidation in Article 22 of the effects that can be prevented by law en- Association Agreement with the EU, forcement agencies. The fourth stage which include the provision that the par- includes control over security measures ties will continue to develop coopera- applied to witnesses1. tion, inter alia, on matters relating to the In Ukraine, the Law of Ukraine «On protection of witnesses and victims. the safety of persons involved in crimi- The European approach to the pro- nal proceedings» dated December 23, tection of witness and victim is that such 1993 and the Criminal Procedural Code protection is percieved as a duty of the of Ukraine regulate the issue of security state, the most important value of which of the witness and the victim. Unlike the is a person, his/her rights and freedoms. Criminal Procedural Code of Ukraine of Therefore, in the most of the Member 1960, the current Criminal Procedural States there is a witness protection pro- Code of Ukraine does not contain a chap- gram present (national, federal, region- ter on the grounds and procedure for al). The protection of witnesses and vic- application of security measures and tims in criminal proceedings in almost provides specific provisions relating to all the EU member states is a resource- the consolidation of the right to security intensive program that provides a num- as part of the legal status of individual ber of security measures for these indi- stakeholders; the possibility of a closed viduals used at various stages of activi- court session; features of the procedure: ties of law enforcement agencies that presentation of a person for identifica- implement this program. The risk man- tion, disclosure of material to another agement approach is used, which con- party, appealing of decisions, actions or sists of certain stages of work. The first omissions by the investigator or prosecu- stage assesses threats to the witness. The tor in the application of security mea- results of assessment of these threats are sures; legal proceedings in the mode of important to address the issues of inclu- a video conference in court sessions. The sion of the witness in the protection pro- new component as compared to the pre- grams and selection of specific protec- viously applicable law is the duty of the tive measures. The second stage deals with risk classification by levels of risk 1 Краснова К. А. Защита свидетелей в го- (high, medium, low) allowing finding сударствах-членах ЕС // [Електронний ре- сурс] – Режим доступу: http://sbsnews.eu/ru out what protections should apply. The (Дата звернення 06.06.2016 р.)

326 Yearbook of ukrainian law The problems of the adaptation Shilo O. of the criminal procedural legislation... investigating judge to take necessary ist attacks, etc. In this context, it should measures to ensure the safety of the per- be noted that the Criminal Procedural son logically following from the general Code of Ukraine contains separate chap- duties of investigating judges regarding ter IX –1 «Special pre-trial investigation the human rights. under martial law, in an emergency or in However, as evidenced by the law an anti-terrorist operation area», which enforcement practice, the security of par- includes only one article. It is clear that ticipants of criminal proceedings has yet legal regulation of this highly relevant remained the segment of law enforce- issue cannot be considered sufficient. ment which requires significant im- Because the exercise of criminal pro- provement and intensification of coop- ceedings in these conditions has signifi- eration, introduction of new mechanisms cant characteristics which with due re- to protect witnesses and victims, devel- gard to Article 92 of the Constitution of opment of appropriate programs based Ukraine shall be governed solely by the on the experience in addressing this is- law, but not by subordinate regulatory sue in the Member States; acts, as it is currently the case; – Strengthening of the cooperation – elimination of corruption risks of the preliminary investigation bodies of the criminal procedural legislation and courts of Ukraine with the compe- of Ukraine that create conditions for tent authorities of the EU Member States corruption practices of persons enon cooperation in the form of mutual gaged in criminal proceedings. Such legal assistance in criminal matters and risks are related to the imperfection of extradition. This particularly applies to the legislation regulating criminal pro- inter-agency cooperation at the national ceedings. In particular, the issue is the level in the form of joint investigative inaccuracy of wordings used in law teams created to investigate crimes com- that, in turn, creates the preconditions mitted in the territories of several states for a variety of approaches to their sys- or if the interests of these states are vio- tematic interpretation, the use of bi- lated; improvement of the procedure for ased notions, the lack of uniform stan- extradition of the person, mutual recog- dards of the legal technology to ensure nition of examination conducted in the the quality of criminal procedural deci- territory of another state, etc.; sions, the admissibility of discretion- – Use of all possible mechanisms to ary powers, the opacity of certain de- combat terrorism and prevent the exist- cision-making mechanisms and proce- ing threat of international terrorism. This dural commission proceedings, area requires improvement of the exist- inadequate mechanisms of prosecuto- ing regulatory framework for law en- rial oversight and judicial control, etc. forcement agencies, and intensification Given the above, there is no doubt the of cooperation of the competent author- fact that under today’s conditions the ities to exchange information on terrorist anti-corruption nature of the legisla- groups, experience in preventing terror- tion is one of the high-quality content

№ 9/2017 327 Criminal-legal sciences criteria for the positive law. In this re- eas aimed at preventing corruption in gard, the anti-corruption examination this area. introduced by the Law of Ukraine «On These provisions are certainly not an Prevention of Corruption» dated Octo- exhaustive list thereof, as the European ber 14, 2014 seems justified, which is integration processes in Ukraine provide defined by the legislator as an activity for the need for a system of legislative, of discovery in legal acts, draft legal institutional, organizational measures acts, provisions, which alone or in aimed at harmonizing the legislation of combination with other rules can con- Ukraine in criminal justice and security tribute to the commission of corruption with the European Union law. offenses or corruption-related offenses Conclusions and prospects. In con- (Article 1 of the Law). Moreover, this clusion, it should be noted that the adap- mandatory anti-corruption examina- tation of the criminal procedural law of tion in accordance with Article 55 of Ukraine with the EU acquis requires ap- the said Law involves bills of Ukraine propriate scientific support, conduction (except for anti-corruption examina- of fundamental research on the issues tion of the draft legal acts submitted to that represent the essence of the above the Verkhovna Rada of Ukraine by the and other provisions. This, in my opin- deputies of Ukraine, which is imple- ion, defines the priority development mented by the Committee of the Verk- areas of the science of criminal proceed- hovna Rada of Ukraine the competence ings, the essence of which are: of which includes the fight against cor- – Creation of theoretical concepts of ruption), acts of the President of adaptation of the criminal procedural Ukraine, other regulations developed law of Ukraine to the EU acquis; by the Cabinet of Ministers of Ukraine. – Continuous monitoring of law en- Being one of the most important pre- forcement practice in order to determine ventive measures in combating corrup- its compliance with the European stan- tion, as evidenced by the international dards on human rights and the adminis- practice, the introduction of anti-cor- tration of justice, on the basis of which ruption examination of legislation in it is possible to create a theoretical foun- Ukraine is extremely important be- dation for future changes and amend- cause the corruptogenic risks (fac- ments to the current legislation (this tors) that contribute to corruption of- monitoring should be carried out by ex- fenses or facilitate their commission perts in criminal proceedings, with are often laid it at the level of legisla- which it would be expedient to create tion. a team); Therefore, the problem of assess- – Theoretical development of anti- ment of the criminal procedural legisla- corruption standards of criminal proce- tion of Ukraine seems very relevant in dural legislation of Ukraine; terms of its corrupt implications in order – Research of challenges of global- to identify the priority improvement ar- ization of legal regulation in the field of

328 Yearbook of ukrainian law The problems of the adaptation Shilo O. of the criminal procedural legislation... criminal justice and convergence of pro- 2012 establishing minimum standards on cedural forms; the rights, support and protection of vic- – Scientific substantiation of pro- tims of crime); posals aimed at harmonizing the nation- – Study on the introduction of alter- al legislation of Ukraine with the Euro- natives to the criminal prosecution, etc. pean standards on the rights of victims Published: Вісник Національної академії of crime (in particular, it is the case with правових наук України. – 2016. – № 2(85). – Directive 2012/29/EU dated October 25, С. 109–122.

№ 9/2017 329 Збірник наукових праць

Щорічник українського права

№ 9/2017

(англійською мовою)

Відповідальний за випуск О. В. Петришин

Статті публікуються в авторському перекладі і редакції

Технічний редактор О. А. Федосєєва

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