Problems of legality

To the Question of the Jury Trial in Ukraine: Historical and Legal Analysis

Viktor Yermolaiev — 2024-11-19

The article deals with the historical and legal origins of the jury in Ukraine, and highlights its main stages: 1) the first stage of the period of Kievan Rus in the judicial system when there were vervni (community-based courts), the institution of «Judicial men» was the examination procedure for civil and criminal cases involving members of the local community, the use of purification sworn, different tests – ordeal (Dei Judicium) in deciding the guiltiness of the defendant. One of the oldest forms of public participation in the administration of justice was veche (public assembly); 2) the second phase of the background of the jury in Ukraine falls on a day the Polish-Lithuanian domination of the Ukrainian lands at the end of XIV – first half ХVіі century; 3) Ukrainian National Revolution of 1648, the process of state-building and Republican statehood initiated the new, third stage, when the process of state-building created own judicial system – the General Court, regimental, centesimal and community (village) courts; 4) next, the fourth stage in the history of the jury in Ukraine was connected with the conduct of the Russian Empire Judicial Reform in 1864 and the introduction and operation of this institution of legal proceedings in the Ukrainian lands. At first Judicial Reform was based on the principles of separation of the judiciary from the legislative, executive and administrative, independence and immovability of judges, introduced All estates courts and the institute of ju- ries in district courts. The District Court was the court of first instance in all civil and criminal cases that were beyond the jurisdiction of magistrates courts. The final pages in the history of the formation and development of the court with the participation of the people in the judicial system of Ukraine were connected with the era of the National Liberation Struggle 1917–1920; 5) With the declaration and building of independent democratic state of Ukraine there were launched a new, modern stage in the long history of the jury. Ukrainian lawmakers, on a new qualitative modern level of consolidated and developed the domestic and foreign traditions and experiences of this form of people participation in the justice system. They made them the important part of the current judicial reform in Ukraine. Institutes of people’s assessors and juries may affect positively to democratization of the judicial system and strengthen public confidence to judiciary and judges, believe in justice and law. The main attention of the article was focused on the analysis of the provisions of legal regulations in 1864, the Soviet legislation on People’s Court, and the restoration of the jury in current Legislation in force.

EU Values as a Guide for Ukrainian Legal System

Tetyana Komarova — 2024-11-19

The relevance of the research topic is connected with Ukraine's candidate status for joining the European Union which raised the question of Ukraine's fulfillment of its obligations to implement part of the EU acquis into the national legal system. The European Union pays special attention not only to the fulfillment of obligations for the implementation of specifically defined EU legal acts, but also to the respect and dissemination of its values by the candidate states. After all, the biggest challenge that the EU has faced at the current stage of its functioning is the violation of EU values by Member States and weak mechanisms for countering such violations. This, of course, requires a rethinking of approaches to the protection of values enshrined in Art. 2 of the EU Treaty: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The practice of the Court of Justice of the EU, which was a response to the violation of the rule of law by Poland and Hungary, has a great impact on the trends in the protection of EU values. Therefore, the purpose of the research is to study the evolution of the status of EU values, their interpretation by the Court of Justice of the EU, as well as the analysis of their protection mechanisms. In the research the study of the practice of the Court of Justice of the EU in the field of the rule of law is analyzed because it is important for Ukraine, as it contains the interpretation of this value, which is common to Ukraine and the EU and the observance of which plays a key role in Ukraine's successful entry into the Union.

Law and Political Religion: the Theology of Soviet Law

Dmytro Vovk — 2024-11-19

That paper is one of my works, in which I try to apply the concept of political religion to Soviet law studies. Many political philosophers and scholars use this concept for describing the nature of totalitarian regimes, for which metapolitical goals (achieving communism, Nation defense etc.) and the tasks of their own legitimacy strengthening and increasing the control of society presuppose the usage of means which are religious by their nature. Political studies of political religion are quite developed, but legal theory pays almost no attention to such concept. So, in the paper I am trying to answer the question: if Soviet political regime can be defined as political religion, what does it means for law? In this paper I pay significant attention to Soviet law theology, that is the development of Marxism-Leninism dogmas in legal realm, which I call the “symbol of faith” of Soviet Law. I show how the “symbol of faith” guided Soviet legal studies, what philosophical and legal problems they raised and the ways Soviet scholars solved them. I mean such problems as connection between law and economics, law and state, law and factual social relations, the role of law in achieving communism. In 1920s there were different versions of Marxist legal theory (Evgeny Pashukanis, Mikhail Reysner, Pyotr Stuchka, and others), but at the beginning of 1930s the unification of approaches was being made (the 1938 narrow-normative definition of law by Andrey Vyshinsky became its). The Vyshinsky’s definition was partly rejected during post-Stalin era, the new attempts to substantiate the broader understanding of law by connecting it with legal conscience and legal relations appeared. Though these conceptions were formally substantiated as attempts to find “the right one” Marxist understanding of law, their authors were rather trying to reconcile their own vision of law with official ideology. In the paper I also delineate how Soviet law theology influenced Soviet law system. By using some examples, I argue that this theology was not just the set of ideas far from legal practice. For example, Soviet ideological dogmas determined the development of the socialistic legality doctrine as the key doctrine of Soviet legal order. At the same time Soviet legal system has never been developed exclusively under influence of Soviet political religion; it always was a mixture of influences, including Marxist-Leninist teachings, civil law tradition, political reasons etc.

Towards a Legal Framework that Protects Freedom of Expression in Electoral Processes

Bohdan Mokhonchuk — 2024-11-19

In democratic countries attention is devoted to the issue of freedom of speech and freedom of expression and the role of public authorities during elections. Freedom of speech and freedom of expression are guaranteed at both the international and national levels today. The international community has created a significant number of international agreements and acts of “soft law” on standards of freedom of expression. In particular, the Code of Good Practice in Electoral Matters establishes as the first General condition for democratic elections the respect for fundamental human rights, and particularly freedom of expression, assembly and association, without which there can be no true democracy. On the one hand, the problem of ensuring freedom of expression during elections is caused by the wider limits of permissible criticism of candidates and the importance of coverage of the election process, on the other hand, it caused by restrictions on the conduct of election campaigning and the necessity to provide equal access to the media for the subjects of the electoral process. In this context, it is important to find a balance between the right to free elections, freedom of speech and other rights, freedoms and interests of the subjects of the electoral process. This article researches the modern problems of national legal guarantee of freedom of speech and freedom of expression and international electoral standards on the protection of freedom of speech and freedom of expression in the electoral process.

Artificial Intelligence for Judicial Decision-making: Some Potential Risks

Yulia Razmetaeva — 2024-11-19

The article explores the issue of implementing artificial intelligence in judicial decision-making, accentuating potential risks and challenges. It highlights the need to consider justice, fairness and the rule of law when applying AI, and provides arguments for a reasonable and limited algorithmization. The article focuses on the problems of algorithmizing complex judicial processes, particularly regarding the selection of legal principles and AI’s potential negative impact on the individualized nature of justice. Among the risks, the tendency of AI towards rationalization and standardization of decisions, its limited ability to interpret human characteristics and case circumstances, and the substitution of legal certainty with algorithmic predictability are emphasized. The article also discusses the difficulties related to the understanding and interpretation of legal texts by algorithms, noting that AI is incapable of thinking and making moral judgment. Special attention is given to the issue of legal reasoning: the article argues that court decisions must not only be justified but also convincing to society, which is impossible to achieve with AI due to its incapability to comprehend discourse and case context. The article concludes that despite technological advances, the complete replacement of human judgment with AI carries risks and may lead to a distortion of the very concept of justice and its devaluation.

(In)Coherence of the EU External Policy Impact on Business and Human Rights Developments in the Eastern Europe and Central Asia

Olena Uvarova — 2024-11-19

The lack of coherence in the impact of the EU's external policy on business and human rights (hereinafter – BHR) development is particularly evident in its relations with post-Soviet countries. This issue has become even more relevant following the European Council’s decision to grant Ukraine and Moldova candidate country status in June 2022. Despite the geopolitical significance of this decision, human rights issues in the document are addressed solely in the context of government institutional reforms, while the Green agenda is focused on energy and the green transition, neglecting human rights and the role of business in these processes. The aim of this article is to examine the role of the EU’s external policy in the development of BHR in Eastern Europe and Central Asia, as well as to determine how this policy influences the balance between economic development and the promotion of responsible business conduct in the region.

The study employs qualitative analysis methods, including an examination of EU documents, policy decisions, and strategies aimed at regulating business conduct and protecting human rights in post-Soviet countries. Additionally, comparative analysis methods were applied to identify the influence of key EU external policy factors on the BHR landscape in the region. The research revealed that the EU policy demonstrates an imbalance between promoting a market economy and encouraging responsible business practices. The absence of clear principles to ensure a balance between economic and social objectives has led to situations where human rights and environmental issues are marginalized, and the role of business in respecting these rights is inadequately considered. Further research could focus on analyzing specific cases of the EU's external policy impact on BHR in each country in the region and on developing recommendations for the EU to enhance its approaches to ensure greater alignment between economic interests and human rights protection.

Rethinking Regulation: Integrating Large Language Models in International Arbitration

Tetiana Tsuvina — 2024-11-19

The article is devoted to the relevant from theoretical and practical points of view issue of using so-called Large Language Models (LLMs) in international arbitration as a type of general-purpose artificial intelligence (AI) aimed at speech recognition and selection of answers with the highest probability, such as ChatGPT, Bildi, Gemini, etc. The purpose of the article is to analyse the challenges arising from the use of LLMs in international arbitration and to develop recommendations for their proper and bona fide application. The article uses the following research methods: the dialectical method (for studying the nature and content of LLMs and the specifics of their application in international arbitration), the method of analysis and synthesis (for analysing and systematising the main challenges of using LLMs in international arbitration), the systemic and structural method (for characterising the right to a fair trial and analysing the specifics of its application in international arbitration), comparative legal method (for examining the provisions of the legislation of certain countries regulating the functioning of international arbitration).Through the prism of the provisions of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) and the UNCITRAL Model Law on International Commercial Arbitration (1985), the article examines the main challenges of using LLMs in arbitration, in particular, the need to comply with the requirements of due process and ensure guarantees of the right to a fair trial, the reasoning of arbitral awards, arbitrator impartiality and confidentiality, as well as the right to be heard in arbitration. The authors have analysed specific guidelines on the use of AI in international arbitration in certain institutions, in particular, the Silicon Valley Arbitration and Mediation Center (SVAMC) Guidelines on the Use of AI in Arbitration. This allowed the authors to propose a Checklist for the use of LLMs in international arbitration, which can be applied to the bona fide use of AI in international arbitration proceedings.

The Russian War Against Ukraine: a Case Study in Climate, Conflict, and Green Recovery

Євгенія Копиця — 2024-11-19

The Russian war against Ukraine, having brought monumental social, economic, and environmental devastation, serves as acompelling case study demonstrating the broader implications of climate crises, underscoring the complex interplay between fossil fuel dependency and geopolitical tensions, and illustrating that the ﬁght for climate justice and the ﬁght for peace are deeply interconnected.

Meanwhile, Ukraine has the potential to leverage post-war reconstruction as an unprecedented opportunity for comprehensive decarbonisation and ecological recovery. Examining the limitations of the international climate change regime and exploring controversial aspects of fossil fuel production, this paper highlights the hidden climate costs of war, and investigates the concept of ‘climate change as a battle’ and how it can frame the global discourse on climate security and climate justice. It argues thataddressing climate change is akin to ﬁghting a war, requiring mobilisation of resources, political will, and international solidarity. In this context, Ukraine’s experience oﬀers valuable lessons for the global community as it navigates the complex challenges of post-conﬂict recovery while simultaneously addressing the urgent need for climate action. With the right assistance, Ukraine could emerge as a front-runner in the global energy transition, inspiring other nations to pursue ambitious climate action even in the face of adversity.

Implementing Open Science Principles in Ukrainian Legislation: European Experiences and National Specificities

Dmytro Luchenko — 2024-11-19

In the context of Ukraine's European integration and ongoing scientific sector reform, implementing Open Science principles has become increasingly relevant for the national academic community. This paper analyzes EU and Ukrainian legislation regarding open access to scientific and technical information and research infrastructure, while also proposing ways to improve the quality assessment system for scientific and technical activities. The authors employ a comprehensive methodology, combining general scientific methods (analysis, synthesis, comparison, and historical analysis) with specialized legal research methods (doctrinal analysis, forecasting, and modeling) to conduct a multifaceted study and support their conclusions on the need for legislative updates. The first section examines the legal framework supporting open access to scientific and technical information, arguing for the introduction of new legislative concepts including «open access to scientific and technical information», «public funding of scientific research», «research data,», «metadata». The second section addresses copyright protection within the open science context, proposing amendments to Ukrainian legislation regarding open access to scientific publications, in-depth text and data analysis, regulation of orphan works, and the right of secondary publication. The third section evaluates the alignment of Ukrainian legislation with open science principles in research assessment and incentivization, recommending a new certification methodology for scientific institutions that balances quantitative metrics with substantive qualitative assessment. The fourth section examines EU policy and legislation on open access to research infrastructure, proposing updates to Ukrainian legislative terminology by introducing concepts such as «open access to research infrastructure» and «research infrastructure register». The final section analyzes the academic integrity draft law from an Open Science policy perspective, offering recommendations for improving specific legal provisions.