Theory and practice of jurisprudence

Countering Organized Crime in the European Context

Yuriy Lutsenko — 2024-07-01

The importance of the topic is determined by the study of issues related to combating organized crime in the context of world security policy. The purpose of the article is to analyze foreign experience of combating crime in Italy and Great Britain at the current stage of their development. In the course of the study, attention was drawn to the fact that organized crime arises from a complex causal complex, the fight against which will be effective only when there are appropriate conditions for the formation of a system of measures (economic, social, legal, organizational, etc.), which will be aimed at blocking, neutralization of these socially dangerous modern phenomena on the basis of special law enforcement activities. The center of such activity should be represented by a law enforcement structure capable of promptly and effectively responding to existing challenges and threats that emerge from the organized crime, including at the transnational level. The paper states that the issue of socio-legal control of the activities of transnational criminal structures directly depends on the level of adaptation of national legislation to changes in crime and, first of all, its highly organized forms. When studying foreign experience of fighting crime, including in Italy, it has been found that all issues related to the fight against organized crime are under the responsibility of the Ministry of Internal Affairs. The main areas of activity of organized crime in Italy are: drug smuggling, extortion, corruption and fraud, robberies, etc. While analyzing fight against organized crime in the United Kingdom, attention has been drawn to the fact that the main areas of activity of organized crime are drug business, illegal migration, laundering of “dirty” money, corruption, fraud, illegal circulation of weapons and other explosive items, cybercrime, etc. In the course of the study, it has been emphasized that the peculiarity of such crime is its transnational and global nature. In this context, all efforts to combat organized crime in Great Britain are put into a comprehensive fight against this socially dangerous phenomenon today.

Place of Commercial Cases in the Agreement Between Ukraine and the Republic of Poland on Legal Assistance and Legal Relations in Civil and Criminal Сases of 24 May, 1993

Maksym Shcherbyuk — 2024-07-01

The relevance of the article is determined by dedicating the study to the place of сommercial сases among the categories of сasesdefined in Art. 1 of the Agreement between Ukraine and the Republic of Poland on legal assistance and legal relations in civil and criminal cases of May 24, 1993. The purpose of the work is to consider the possibility of applying contractual provisions to сommercial cases, given the fact that the latter are not defined as a type of "civil cases" as well as, for example, family or work сases. Certain aspects of Polish and Ukrainian legislation in the context of understanding and correlation of civil and economic cases are highlighted. The obtained results became possible thanks to the use of methods of scientific knowledge taking into account the peculiarities of their use in legal science. The preparation of the article became possible, and the conclusions were substantiated by using general scientific and legal methods: analysis and synthesis, deduction and induction; empirical and other methods. At the same time, it is difficult to find out exactly what goals the representatives of the authorities of Poland and Ukraine pursued in the context of not including economic сases in the 1993 Agreement. However, according to the preamble, the main purpose of concluding this agreement was to maintain friendly relations between the two states and deepen cooperation in the legal field, including in civil cases. Among Polish and Ukrainian representatives of the scientific community, there is no unanimous opinion regarding the place of economic affairs in the Agreement of 1993. In the Polish doctrine, one can find the opinion that the evaluation of statements in international treaties additionally requires taking into account their effectiveness, that is, interpreting the text so that it has a certain meaning and was useful In our opinion, taking into account the preamble and Art. 1.4 of the Agreement of 1993, which extends the provisions of the treaty to legal entities formed in accordance with the legislation of each participating state, the exclusion of economic affairs from the field of international regulation would be ineffective and too unfavorable for business entities from both countries. The obtained results, in addition to the above, also consist not only in the analysis of international treaties of Poland and Ukraine with other states, which have a similar subject of regulation to the Agreement of 1993 and the place of economic affairs in them, but also in the analysis of judicial practice of the application of this type of treaties.

Freedom of Religion: the Doctrine of Forum Internum in the Echr's Law Enforcement Practice

Fernando de Brito Alves — 2024-07-01

The legal dimension of freedom of religion is important in the formation of civilizational approaches to state-building processes, strengthening civil society, and the humanistic outlook of citizens that would promote pluralism and tolerance and be shared by the entire community. The study of the relevant legal framework in Ukraine, the state, scope, and completeness of the reflection of the essence of freedom of conscience and religion in it and some legal documents, has necessitated the expression of our thoughts on their implementation. The purpose of this study is to analyze the right to freedom of religion and to study the application of the forum internum doctrine in the judicial and law enforcement practice of the ECHR. To achieve this, the following research tasks were solved: the author analyses the doctrine of forum internum (personal faith, internal freedom), and approaches to its content; examines models of church-state relations (in particular, the ECHR judgments on the forum internum doctrine and their impact on Ukrainian legislation). A range of methods of scientific cognition was used in the course of the study, in particular, the dialectical method (to assess the mutual influence of various legal provisions on the protection of the right to freedom of religion and religious belief), the method of structural analysis

and synthesis (in the context of the study of the doctrine of forum internum (personal faith, internal freedom), approaches to its content), historical and logical methods, methods of deduction and induction (helped to identify models of church-state relations (separating, identifying and cooperative), comparative (analyzed the ECtHR judgments on the forum internum doctrine and their impact on Ukrainian legislation). The author concludes that the doctrine of forum internum (personal faith, internal freedom) has a dualistic nature: on the one hand, it gives a person internal freedom, i.e. the ability to choose, adhere to, develop and even completely change their personal thoughts and beliefs; and on the other hand, it obliges the State to refrain from actions aimed at preventing any ideological processing of a person, interference with fundamental ideas and beliefs that are born in the depths of a person's soul. However, the state may impose restrictions on freedom of conscience and religion, but they have fairly clear limits. The author examines the genesis of the concept of "freedom of religion" in the history of legal traditions and constitutional documents and concludes that a significant period has passed during which significant changes have taken place in the stereotypes in the public consciousness, religious ideas, and state-legal relations regarding freedom of worldview. The author examines the ECtHR judgments on the forum internum doctrine and their impact on Ukrainian legislation. It is noted that, given the complex state-building processes of modern Ukraine, the institution of religious freedom requires a more detailed study in the philosophical and legal sense, which will allow for improving its conceptual framework. The author points out that the problems associated with worldview values and human rights in the area of freedom of conscience and freedom of religion make it relevant to study the doctrine of forum internum (personal faith, internal freedom) and its impact on judicial and law enforcement practice.

Civic Entrepreneurs and "Ratio Legis" During Russia’s War in Ukraine: a Case Study of Digital Petitions in Latvia and Ukraine

Didzis Melkis — 2024-07-01

Civic initiatives that manifest themselves in the legitimate form of electronic petitions (initiatives) in different countries of the world are attracting more and more attention. This is especially true in times of social crisis. The war in Ukraine has become one of the most powerful factors influencing civic activity in both Ukraine and Latvia. A significant number of civic initiatives have emerged as a result of the war. The very content and focus of this activity has changed significantly under the influence of wartime challenges, which requires a separate scientific analysis. These circumstances have actualised the authors' research in this area. This article is the first attempt to study the experience of Latvia and Ukraine in the field of electronic petitions in the context of the war in Ukraine. The purpose of the article is to examine the role and influence of civil society actors on the justification of legislation, or ratio legis, in the legislative processes of Latvia and Ukraine during the crisis caused by the Russian war in Ukraine. To achieve this goal and solve the tasks stipulated by it, the following scientific methods were used: systematic, formal legal, comparative legal, analysis and synthesis, generalisation and critical analysis. The author has studied Ukrainian and Latvian legislation defining the procedures for publishing electronic petitions and collecting signatures in their support. The analysis shows that during the first two years of the war in Ukraine, the public initiative platform ManaBalss.lv (MyVoice) in Latvia received 165 proposals on wartime issues. Of these, 49 initiatives were published that met ManaBalss.lv's quality criteria. Among them, 10 reached the legally required threshold of signatures and were submitted to the parliament (Saeima) or the respective municipalities as collective submissions. Two of these collective submissions were implemented, in particular, an amendment to the legislation legally obliging employees of state institutions to be loyal to the Republic of Latvia and its Constitution was introduced. The study also examines the history of the 2019 collective submission to the Saeima demanding the demolition of the grandiose Soviet-era Victory Monument, which is protected by an international agreement. The study also includes the Ukrainian experience of civic activism, such as the initiative to legalise same-sex civil unions. It has acquired a new vector of relevance due to the war in Ukraine. This initiative was aimed at creating legal grounds for informing de facto spouses about the injury, captivity or death of the other partner, as well as exercising rights related to the death of a partner. The study revealed the targeted, persistent influence of individual and organised public figures or social entrepreneurs on the current state of legislation in the areas that have proven to be most sensitive to the challenges of war. The study of synergies, especially between civic and political entrepreneurs, aims to improve understanding of the mutually constructive work of policymakers and strengthen democracy. A properly conceptualised and practical experience-based mechanism of digital civic participation contributes to achieving this goal. This area is promising for further research.

Combating Child Pornography: International Legal Regulation and Experience of Ukraine and Foreign Countries

Volodymyr Iemelianenko — 2024-07-01

The relevance of the topic is determined by the fact that child pornography is a serious threat to the safety and well-being of children, and combating it requires a comprehensive approach at the national level and international cooperation. Thus, the purpose of this study is to analyse international legal regulation in the field of combating child pornography, the experience of Ukraine and such foreign countries as France, Japan, India, the United Kingdom and Canada. The objectives are to identify the main regulatory provisions, mechanisms and approaches aimed at preventing and combating child pornography. The study was conducted using a number of scientific methods, including dialectical, formal and logical, analysis, comparison and generalisation methods. The authors draw attention to the concept of child pornography. It is determined what actions are considered to be the crime of child pornography and are criminalized. The recommendations and obligations of countries that have ratified these acts are analyzed. The article analyses the issues of criminalization of child pornography offenses in the legislation of the respective countries, criminal liability measures, establishment of national organizations and structures to combat it, etc. It was concluded that the maximum term of imprisonment an offender can receive in Canada and Great Britain, and one of the smallest – in Japan and India. The article also disproves the hypothesis that approaches to combating child pornography are identical in individual countries with different legal systems. The authors draw attention to the problem of determining the status of graphic materials and works of artificial intelligence that contain signs of child pornography. The authors also raise the issue of criminal legal assessment of viewing child pornography, including live broadcasts. It is stated that no country is immune to this form of child sexual exploitation. Attention is drawn to international cooperation, which is key to sharing best practices, resources and information between countries. It is argued that national governments, law enforcement agencies and civil society need to work together in a concerted effort to ensure the protection of children in the world. This is important, among other things, to combat the avoidance of responsibility by criminals.

Private Standards of Non-Governmental Organizations in the Field of Sanitary and Phytosanitary Measures Application

Nataliia Karpinska — 2024-07-01

The relevance of the article is as follows: on the one hand, the importance of sanitary and phytosanitary measures as an integrating category, a category that stands at the crossroads of agrarian, environmental, social and international policies is not yet fully realised and therefore significantly underestimated; on the other hand, at the present stage, it is impossible to ignore the objective growth of the role and importance of non-governmental organisations in regulating the relations in the field of sanitary and phytosanitary measures.

The purpose of the article is to identify and highlight the range of issues related to the relations between the State and non-governmental organisations which approve their own standards in the field of sanitary and phytosanitary measures, between the World Trade Organization (WTO) and the same non-governmental organisations, and also between the WTO and the State under whose jurisdiction a non-governmental organisation approves its own standards in the field of sanitary and phytosanitary measures. The leading methods of scientific cognition were: the dialectical method, which served as the methodological basis for scientific cognition, reflecting the relationship between theory and practice, as well as the conceptual provisions of legal science; formal logical method was used to analyse the content of current national and European legislation on the legal regulation of the application of private standards in the field of sanitary and phytosanitary measures; the comparative legal method was used to analyse and study the EU requirements, in particular the provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures and practical mechanisms that can be implemented in national legislation and put into practice; the conclusions and proposals contained in the article are formulated using the method of dogmatic (logical) analysis. The article covers a range of issues related to the relations between the State and non-governmental organisations that approve their own standards in the field of sanitary and phytosanitary measures and notes that internal corporate standards and policies play a significant role in the activities of most international companies, which ensure that company employees comply with the requirements of both international and national legislation.

The study revealed the following results: 1) the issue of risks of private standards has been updated, namely, they are not always based on scientific data, as required by the Agreement on the Application of Sanitary and Phytosanitary Measures; differ from international standards; such standards are stricter than official sanitary and phytosanitary requirements; require additional costs for small suppliers; private standards are set without transparency, consultation and appeal systems; private standards are diverse and not harmonised; the rule of

Further research on the purpose of increasing the influence of private standards in international trade; development and justification of the procedure for introducing standards; determination of the role of the state and its responsibility; analysis of the prospects for the introduction of stricter requirements by non-governmental organisations; development of methodological foundations for the extension of certain international legal obligations to private individuals are considered promising.

International experience of implementing e-justice: best practices and challenges

Kristina Piatyhora — 2024-07-01

Abstract

The implementation of e-justice is an important aspect of the modernization of judicial systems around the world. Research and analysis of international experience allows to identify best practices and challenges faced by other countries during the implementation of electronic justice, which will help develop own strategy for reforming the judicial system or adapt them for Ukraine. That is why, the purpose of this article is to analyze the international experience of implementing electronic justice, classify countries according to the degree of development of e-justice, as well as identify best practices that can be applied in Ukraine. Conducting this research is extremely important and relevant, as it will reveal the level of implementation of electronic technologies in the judicial system of different countries of the world and determine the best strategies and practices, as well as factors that slow down this process. The research methodology was formed by a set of general scientific and special methods of cognition, namely, methods of dialectics, system analysis, comparative legal, classification and typology, formal logical, historical and empirical methods. The article analyzes in detail the experience of implementing e-justice in foreign countries, in particular in Estonia, Lithuania, Austria, Germany, Poland, Moldova, Greece, and Serbia. Attention is focused on the lack of a comprehensive approach to assessing the level of implementation of electronic justice in foreign countries in the scientific space, and the author's classification of countries according to the degree of implementation of electronic justice, which are divided into countries with a high, medium and low level of such implementation, is proposed. Based on the results of the research, it was concluded that countries with a high level of implementation of e-justice have a well-developed infrastructure and legal framework. Countries with an average level of e-justice implementation are actively working on the implementation of e-justice, but still have certain aspects for improvement. Conversely, low-implementation countries face a number of obstacles and need significant efforts to improve their judicial systems.

Legal problems of ensuring the quality of underground drinking water in Ukraine

Maryna Cherkashyna — 2024-07-01

The article is devoted to the analysis of the legal provision on the quality of underground drinking water in Ukraine and the current trends in the development of national legislation in the specified area, taking into account the Directives of the European Union regulating the issue of water relations in the field under study. Drinking water is one of the most important human needs as evidenced by numerous scientific studies including legal ones, in particular, the formulation of scientific approaches to understanding the right to drinking water and ensuring its safety as one of the basic human rights. The problem with the lack of drinking water of appropriate quality appears due to many factors and the demand for fresh underground water has increased rapidly. As a result, the anthropogenic load on the underground hydrosphere and the risk of pollution and depletion of these waters have increased. Therefore, the underground waters of Ukraine are gaining more and more importance and the legal problems of their protection and quality assurance are urgent. The study consists of three parts considerating: legal basis for ensuring the quality of underground drinking water in Ukraine; the concept of underground drinking water as an object of legal relations for protection and use; peculiarities of legal provision of safety and quality of underground drinking water in Ukraine. Current issues of underground water protection, problems of legislative regulation of state accounting, state monitoring and state control of the quality of underground drinking water on the territory of Ukraine are considered. The main problems of legal assurance of the quality of underground drinking water and the ways to solve them are determined. Particular attention is paid to the improvement of the quality standards for underground drinking water and their legislative enshrining. Proposals for improving the legal provision for the quality of underground drinking water in Ukraine, including the experience of the European Union, have been developed and substantiated.

Formation of Early National Constitutionalism from the Second Half of the Seventeenth to the Beginning of the Eighteenth Centuries

Anatolii Kozachenko — 2024-07-01

Abstract

The relevance of the topic lies in the need to disprove the pseudo-scientific statements of the political leadership of the Russian Federation concerning absence of a historical tradition of Ukrainian state-building and national constitutionalism. The article is aimed at analyzing the main sources of constitutional law of the Ukrainian state and peculiarities of the process of formation of early national constitutionalism from the second half of the seventeenth to the beginning of the eighteenth centuries. In the course of the study, the historical comparative and historical typological scientific methods have been used which have made it possible to establish the characteristics of formation of national constitutionalism. Based on the principle of historicism, the objective regularities of the emergence and development of constitutionalism in Ukraine have been revealed.

In the article, the process of rise of early national constitutionalism from the second half of the seventeenth to the beginning of the eighteenth centuries has been researched on the basis of the analysis of the sources of constitutional law of Ukraine such as Cossack customary law, Magdeburg law, constitutional legal acts, and treaties. Being in progress, this process was based on its own state and legal experience, in particular, of Zaporizhzhia Sich, as well as the experience of European countries. The key features of constitutionalism were the recognition and statutory expression of rights and freedoms, introduction of a republican form of government, and mechanisms for limiting the state power.

It has been proved that the sources of Ukrainian constitutionalism of the Hetmanate period reflect treaty socio-political traditions that existed in the countries of Central and Eastern Europe. The main treaty tradition, which became the basis for the development of Ukrainian constitutionalism, was an effort to protect the interests of the Ukrainian state and representatives of its national elite in various treaty forms, which laid the foundations for legal regulation of social relations.

It should be taken in consideration that the features of the process of formation of early national constitutionalism from the second half of the seventeenth to the beginning of the eighteenth centuries were as follows: it was in progress simultaneously with the revival of the Ukrainian state and national liberation war with the Polish-Lithuanian Commonwealth and Tsardom of Muscovy, as well as struggle of officers’ groups for power, confrontation between officers and lower strata of Cossacks. The formation of early national constitutionalism took place under the conditions of significant human and material losses, which was called the Ruin in the national historical science.

The prospect of further research into the formation of Ukrainian constitutionalism is caused by the fact that the national historical and legal science and the science of constitutional law have not developed a unified position on the time and features of its emergence and development yet.

International Economic Sanctions. Part 1. History and Theory

Ivan Yakoviyk — 2024-07-01

The relevance of this research lies in examining the evolution of approaches to the application of international economic sanctions at the level of nation-states and international organizations; the reasons for their increasing popularity after the end of the Cold War; and determining the conditions for their effectiveness. The study aims to analyze and synthesize information on the application of economic sanctions, compare approaches to understanding their content and purpose across different historical periods, assess their humanitarian consequences, and formulate conclusions and recommendations for both theoretical and practical purposes. The research employed a wide range of approaches and methods, including the formal-legal method, which allowed for the formulation of basic terms, concepts, features, constructs, and classifications; the historical method, which aided in analyzing the evolution of approaches to the application of economic sanctions; the systemic method, which clarified the mechanisms for imposing, modifying, and lifting economic sanctions; and the comparative legal method of scientific inquiry, which was used to evaluate approaches to the legal regulation of economic sanctions at various stages of historical development. The results of the study include determining the role of international universal organizations, particularly the League of Nations and the UN, in recognizing and enshrining economic sanctions in international law as legitimate means of inducing sanctioned states to engage in desired activities. It has been established that the consequences of applying economic sanctions are ambiguous; in addition to positive effects, they can in some cases hinder peace processes and post-conflict recovery, impede the activities of peacekeeping organizations, undermine negotiations, and exacerbate disagreements between conflicting parties. Despite the possibility of negative consequences, economic sanctions remain popular as a means of demonstrating power or the ability to influence the behavior of a sanctioned government without resorting to military conflict. To mitigate the negative impact of sanctions on peacekeeping efforts, it is recommended that initiators set clear objectives when introducing economic sanctions; conduct regular substantive reviews of their impact; and expand exceptions to sanctions for peacekeeping activities, among other measures. The consequences of economic sanctions for the sanctioned country are primarily manifested in their impact on trade conditions. It is noted that economic sanctions are not necessarily more effective in the case of multilateral sanctions than in unilateral actions. The research observes that economic sanctions affect supporters and opponents of the ruling regime in the sanctioned country differently and may, in some cases, contribute to the consolidation of society around the ruling regime. The study concludes that despite existing shortcomings, economic sanctions have become an important tool for national governments and international organizations in responding to foreign policy challenges.

Application оf Administrative Procedures in Tax Law as a Means of Unloading the Judicial System

Olga Dmytryk — 2024-07-01

The relevance of the chosen problem lies in the need for general unification of administrative procedures. A long practical and theoretical discussion was implemented in the Law of Ukraine "On Administrative Procedure" adopted by the Verkhovna Rada of Ukraine. This act provides for the unification of administrative procedures (with a certain exception), which will affect administrative procedures in tax law (tax procedures). The adoption of the Law of Ukraine "On Administrative Procedure" led to the need to amend the Tax Code of Ukraine (TC of Ukraine). This provides for the period between publication and entry into force of the Law of Ukraine "On Administrative Procedure". The article examines the influence of the Law of Ukraine "On Administrative Procedure" on administrative procedures in tax law. Individual provisions of the TC of Ukraine are analyzed, which will require bringing into compliance with the requirements for administrative procedure. The main focus is on the provisions of Art. 56 of the Tax Code of Ukraine, which regulates the procedure for appealing decisions of regulatory bodies, and which will require significant changes. The procedure of administrative appeal against decisions of regulatory bodies for bringing into compliance with unified requirements will require conceptual changes – expansion of the object of appeal. Currently, the ТC of Ukraine provides for the possibility of administrative appeal exclusively against the decisions of the supervisory authority. Instead, according to the requirements of the Law of Ukraine "On Administrative Procedure", not only the decision is subject to appeal, but also actions and inaction. It is also necessary to bring into compliance with the provisions on the procedure for filing a complaint, terms of appeal and consideration, renewal of missed deadlines. The situation when changes to the ТC of Ukraine for the unification of administrative procedures will not be made on time has been investigated. The Law of Ukraine "On Administrative Procedure"provides the possibility of establishing the peculiarities of administrative proceedings for certain categories of administrative cases. At the same time, the features should comply with the principles of the administrative procedure, which also found their fixation in the above regulatory legal act. The expediency of the principles of administrative procedure is considered from the point of view of the possibility of monitoring compliance with them and the consequences of violation.

Some Issues of Determining Subject Matter Jurisdiction: the Experience of Ukraine and Germany

Anatolii Getman — 2024-07-01

The article examines the issues of delimitation of judicial jurisdictions in the categories of cases arising out of the challenges posed by martial law in Ukraine. The relevance of the study is stipulated by the growing controversy over the issues of delimitation of judicial jurisdictions in the categories of disputes which concern socially vulnerable groups of the population and are becoming more and more widespread. The purpose of the article is to study the issues of delimitation of judicial jurisdictions based on a comparative legal analysis of legislation and case law of Ukraine and Germany. In order to achieve this goal and solve the tasks stipulated by it, the following scientific methods were used: systematic, formal legal, comparative legal, analysis and synthesis, generalisation and critical analysis. The author examines domestic and German procedural legislation which defines the rules for delimitation of subject matter jurisdiction. The author highlights the issues of resolving cases related to establishing the fact of cohabitation of a woman and a man in the same family without marriage, which is necessary for further exercise of the person's right to receive a one-time financial assistance. The author examines the conditions and possibilities for a court to go beyond the established subject matter jurisdiction with a view to ensuring proper protection of a person's right in Germany. The author proves that it is impossible to apply such an approach in Ukraine without appropriate amendments to the existing procedural acts. On this basis, the author critically analyses the case law of the Supreme Court and draws relevant conclusions.