THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY
The article is devoted to the definition of the essence of institutional administrative and legal guarantees for a judge immunity, on this basis the definition of promising areas in current administrative and legal legislation development. There is used an approach that administrative and legal g...
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| Format: | Article |
| Language: | English |
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University of Warsaw
2021-12-01
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| Series: | Journal of International Legal Communication |
| Subjects: | |
| Online Access: | https://jilc.e-science.space/wp-content/uploads/2022/03/JILC3071-081Timush.pdf |
| _version_ | 1818032383708889088 |
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| author | Diana Timush |
| author_facet | Diana Timush |
| author_sort | Diana Timush |
| collection | DOAJ |
| description | The article is devoted to the definition of the essence of institutional
administrative and legal guarantees for a judge immunity, on this basis the definition of
promising areas in current administrative and legal legislation development. There is
used an approach that administrative and legal guarantees are a specific concept of legal
means, methods and conditions which, being applied, allow to ensure a certain state of
public relations. Being in their “potential” state also has a protective effect, which can be
described as preventive. In the course of the research, institutional administrative and legal
guarantees of a judge’s inviolability were identified: impossibility to detain or to be kept in
detention or arrest a judge without the consent of the High Council of Justice (paragraph 1,
part 1, Article 49 of the Law of Ukraine “On Judiciary and Status of Judges”); impossibility
to bring a judge to legal responsibility for the adopted decision (paragraph 2, part 1 of
Article 49 of the said Law); the impossibility of using a pretext or forcible delivery to a
judge, except for the pretext or bringing it to court (Part 3 of Article 49 of this Law); the
presence of a special subject of notification of suspicion of committing a criminal offense –
only the Prosecutor General of Ukraine or his deputy (Part 4 of Article 49 of this Law);
establishment of exhaustive terms of removal of a judge from the administration of justice
in connection with criminal prosecution (Part 5 of Article 49 of the said Law); establishment
of a special subject of an application for obtaining a court permit to carry out operativesearch or investigative actions against a judge – the Prosecutor General of Ukraine or his
deputy, the head of the regional prosecutor’s office or his deputy (Part 9 of Article 49 of
this Law); establishment of special rules of jurisdiction of consideration of cases concerning
accusation, application of operative-search or investigative actions, precautionary measures
against a judge (part 10 of Article 49 of the said Law); determination of a special subject
of liability for damage caused by a court – the state (Part 11 of Article 49 of this Law). It
is substantiated that the implementation of institutional guarantees of the immunity of a
judge is a necessary condition for the proper implementation of all institutional principles
of the judiciary. Regarding some principles, these guarantees are a direct factor in their
implementation (including the principles of independence, impartiality, justice, rule of law).
It is proved that the institutional administrative and legal guarantees of a judge immunity
do not have the features of a legal institution in full sense, and therefore they cannot be
characterized as a legal institution. However, they have a certain integrity and specificity,
as well as a relationship. The legal relations arising in connection with the implementation
of these guarantees are characterized by a certain homogeneity, in particular with regard
to their object – ensuring the inviolability of a judge. Therefore, the complex nature of
institutional administrative and legal guarantees of judges immunity, of guarantees as a
separate legal phenomenon is pointed out. |
| first_indexed | 2024-12-10T06:06:30Z |
| format | Article |
| id | doaj.art-a1a31b2dcb2b4f4ebb2e6dc08cb5b391 |
| institution | Directory Open Access Journal |
| issn | 2720-1643 |
| language | English |
| last_indexed | 2024-12-10T06:06:30Z |
| publishDate | 2021-12-01 |
| publisher | University of Warsaw |
| record_format | Article |
| series | Journal of International Legal Communication |
| spelling | doaj.art-a1a31b2dcb2b4f4ebb2e6dc08cb5b3912022-12-22T01:59:41ZengUniversity of WarsawJournal of International Legal Communication2720-16432021-12-0133718110.32612/uw.27201643.2021.3.pp.71-81THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITYDiana Timush0https://orcid.org/0000-0002-8555-1770National Aviation University, UkraineThe article is devoted to the definition of the essence of institutional administrative and legal guarantees for a judge immunity, on this basis the definition of promising areas in current administrative and legal legislation development. There is used an approach that administrative and legal guarantees are a specific concept of legal means, methods and conditions which, being applied, allow to ensure a certain state of public relations. Being in their “potential” state also has a protective effect, which can be described as preventive. In the course of the research, institutional administrative and legal guarantees of a judge’s inviolability were identified: impossibility to detain or to be kept in detention or arrest a judge without the consent of the High Council of Justice (paragraph 1, part 1, Article 49 of the Law of Ukraine “On Judiciary and Status of Judges”); impossibility to bring a judge to legal responsibility for the adopted decision (paragraph 2, part 1 of Article 49 of the said Law); the impossibility of using a pretext or forcible delivery to a judge, except for the pretext or bringing it to court (Part 3 of Article 49 of this Law); the presence of a special subject of notification of suspicion of committing a criminal offense – only the Prosecutor General of Ukraine or his deputy (Part 4 of Article 49 of this Law); establishment of exhaustive terms of removal of a judge from the administration of justice in connection with criminal prosecution (Part 5 of Article 49 of the said Law); establishment of a special subject of an application for obtaining a court permit to carry out operativesearch or investigative actions against a judge – the Prosecutor General of Ukraine or his deputy, the head of the regional prosecutor’s office or his deputy (Part 9 of Article 49 of this Law); establishment of special rules of jurisdiction of consideration of cases concerning accusation, application of operative-search or investigative actions, precautionary measures against a judge (part 10 of Article 49 of the said Law); determination of a special subject of liability for damage caused by a court – the state (Part 11 of Article 49 of this Law). It is substantiated that the implementation of institutional guarantees of the immunity of a judge is a necessary condition for the proper implementation of all institutional principles of the judiciary. Regarding some principles, these guarantees are a direct factor in their implementation (including the principles of independence, impartiality, justice, rule of law). It is proved that the institutional administrative and legal guarantees of a judge immunity do not have the features of a legal institution in full sense, and therefore they cannot be characterized as a legal institution. However, they have a certain integrity and specificity, as well as a relationship. The legal relations arising in connection with the implementation of these guarantees are characterized by a certain homogeneity, in particular with regard to their object – ensuring the inviolability of a judge. Therefore, the complex nature of institutional administrative and legal guarantees of judges immunity, of guarantees as a separate legal phenomenon is pointed out.https://jilc.e-science.space/wp-content/uploads/2022/03/JILC3071-081Timush.pdflegal guaranteesadministrative and legal guaranteesimmunity of a judgejudgejudiciaryjudicial system |
| spellingShingle | Diana Timush THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY Journal of International Legal Communication legal guarantees administrative and legal guarantees immunity of a judge judge judiciary judicial system |
| title | THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY |
| title_full | THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY |
| title_fullStr | THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY |
| title_full_unstemmed | THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY |
| title_short | THE ESSENCE OF INSTITUTIONAL ADMINISTRATIVE AND LEGAL GUARANTEES FOR A JUDGE IMMUNITY |
| title_sort | essence of institutional administrative and legal guarantees for a judge immunity |
| topic | legal guarantees administrative and legal guarantees immunity of a judge judge judiciary judicial system |
| url | https://jilc.e-science.space/wp-content/uploads/2022/03/JILC3071-081Timush.pdf |
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