The usage of the official name of the state (justice sphere)
Journal Title: Адміністративне право і процес - Year 2016, Vol 1, Issue
Abstract
The article attempts to analyze the basic forms and methods of the usage of the offi- cial name of the state in the justice sphere. Special attention is paid to the peculiari- ties of domestic and foreign practice of constitutional and legal regulations of the or- der of usage of the official name of the state in adopting judicial decisions. It is noted that justice historically has belonged to traditional areas of the usage of the official name of the state, since justice as such was often administered and court decisions were adopted in its very name. Relevant constitutional provisions, direct statement of which is often caused by peculiarities of national political and legal traditions is in its basis. For modern constitutional states with the republican form of government, in democratic states a priori "the adoption of the judicial decisions in the name of Republic" is proposed to consider as synonymous to "adopting judicial decisions in the name of the people". Both provisions have been traditionally applied in the long-standing European constitutional and legal practice. The constitutional provision of paragraph five of Article 124 of the current Fundamental Law of Ukraine, according to which "Judicial decisions shall be ad- opted in the name of Ukraine" is well in tune with the established European consti- tutional and legal practice and generally meets the national traditions in the field of justice (Ukrainian People’s Republic, West-Ukrainian People’s Republic, the 1995 Constitutional Treaty). Attention is drawn to the fact that in the above provision of Article 124.5 of the Constitution of Ukraine the phrase "judicial decisions" is used without any reservations, and it applies to any and all acts of the court, which are called "judgments". Yet, later the legislator determined that only those "judgments by which the court proceedings are terminated, shall be adopted in the name of Ukraine" (Article 13.1 of the Law of Ukraine "On the Judicial System and Status of Judges"). Changes were made to the procedural codes in a similar way, and explanations were given by the Plenums of the Supreme Court of Ukraine and high specialised courts concerning which "judgments" should be adopted in the name of Ukraine. In fact, all court decisions were divided into those adopted in the name of Ukraine and all other (not adopted in the name of Ukraine). All this contributed to the emergence of incon- sistent application of Article 124.5 of the Constitution of Ukraine. Conclusion is made about the need to review the domestic practice of adoption of spe- cific "judgments" by courts of different jurisdictions both "in the name of Ukraine", and without the use of the latter. Herewith, decisive in this matter is strict compliance with Article 124.5 of the Constitution of Ukraine, according to which "judicial deci- sions shall be adopted by courts in the name of Ukraine".
Authors and Affiliations
Kh. P. Stetsiuk
Keywords
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