Volume 12 - Issue 70
/ October 2023
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DOI: https://doi.org/10.34069/AI/2023.70.10.10
How to Cite:
Panchyshyn, R., Shumak, I., Yehorova, V., Bogdanov, O., & Martyshchenko, S. (2023). The effectiveness of justice as a component
of the constitutional right to judicial protection of local self-government. Amazonia Investiga, 12(70), 113-124.
https://doi.org/10.34069/AI/2023.70.10.10
The effectiveness of justice as a component of the constitutional right
to judicial protection of local self-government
Ефективність правосуддя як складова конституційного права на судовий захист
місцевого самоврядування
Received: September 8, 2023 Accepted: October 26, 2023
Written by:
Ruslan Panchyshyn1
https://orcid.org/0000-0002-6840-9377
Ihor Shumak2
https://orcid.org/0000-0003-3799-7476
Valentyna Yehorova3
https://orcid.org/0000-0001-8485-430X
Oleksiy Bogdanov4
https://orcid.org/0009-0000-7350-1330
Serhii Martyshchenko5
https://orcid.org/0000-0002-8193-8329
Abstract
The Ukrainian state, like any state that seeks to
assert itself in the international arena and ensure the
proper standard of living of the population, has
throughout its existence paid and currently pays a
lot of attention to the administration of justice. The
very state of the administration of justice is an
indicator of the state's interest in observing the
rights and freedoms of a person, which in turn is the
basis for recognizing such a state as a legal state, i.e.
one where the laws that establish the basic rights of
a person and the responsibility for their non-
compliance both for another person and for the state
as a whole. The existence of a legal state is
impossible without the effective functioning of all
institutions of civil society in it, in particular, local
self-government, therefore, a special place among
the issues of the administration of justice is
occupied by the issue of justice within the limits of
the protection of the rights of local self-
government, in connection with which the topic of
the mentioned study is extremely relevant. The goal
of this study is to determine the state of the
effectiveness of justice in protecting the rights of
1
Associate Professor of the Department of State and Legal and Branch Legal Disciplines Kyiv University of Law of the National
Academy of Sciences of Ukraine.
2
Ph. D., Associate Professor of the Department of Intellectual Property and Private Law, Faculty of Sociology and Law, National
Technical University of Ukraine "Ihor Sikorsky Kyiv Polytechnic Institute" (Ukraine).
3
Ph. D., Associate Professor of the Department of Intellectual Property and Private Law, Faculty of Sociology and Law, National
Technical University of Ukraine "Ihor Sikorsky Kyiv Polytechnic Institute" (Ukraine).
4
Graduate student of the Kyiv University of Law of the National Academy of Sciences of Ukraine.
5
Graduate student of the Kyiv University of Law of the National Academy of Sciences of Ukraine.
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local self-government in Ukraine. The authors used
dialectical, formal-legal, axiological, logical-legal,
hermeneutic methods, as well as the method of
content analysis, generalization, modeling,
comparison, analogy. The results of the study
showed that there are deficiencies in the
administration of justice within the framework of
the protection of the rights of local self-
government. These shortcomings include the
politicization of the judiciary, the lack of
competence of judges, the complexity of the
judicial process and the lack of transparency of the
judicial process.
Keywords: rule of law, justice, judiciary, local self-
government body, right to legal protection.
Introduction
Under the rule of law, as a modern form of
activity of state power, we should understand the
administrative and legal form of organization and
activity of public authorities and society, the
value of which is a person, his life, health, honor,
dignity, inviolability and other rights and
freedoms that are ensured due to the
interconnected activities of all branches of
government based on the rule of law (Vovk,
2020).
As L. Samofalov et al., (2016) rightly noted, the
essence of the rule of law is that legislative,
executive, and judicial bodies are closely
connected with the law. That is, under the
condition of the functioning of each of the
branches of government exclusively according to
the legislation, which in turn proclaims the
privilege of the rights and interests of the
individual, it is possible to build a model state,
which will be characterized by legal status.
According to Article 1 of the Constitution of
Ukraine (Law 254к/96-ВР, 1996), Ukraine is a
sovereign and independent, democratic, social,
and legal state. By enshrining the specified
article in the Basic Law, Ukraine confirmed its
obligations to follow the vector of development
of legal culture, legal awareness, proper state and
local governance, as well as effective justice.
Simultaneously, issues of Ukrainian justice, in
particular its effectiveness, are currently causing
a lot of discussion and dissatisfaction both within
the state itself and among its international
partners. Thus, as of 2020, the Ukrainian state
took third place among the states that signed the
Convention for the Protection of Human Rights
and Fundamental Freedoms and recognized the
jurisdiction of the European Court of Human
Rights (Council of Europe, 1950), in terms of the
number of complaints filed to the specified
international judicial institution, against Ukraine.
At the same time, most of these complaints are
based precisely on the expression of mistrust in
the decisions of various instances made by
national courts, i.e. they are direct evidence of
shortcomings in the administration of Ukrainian
justice (Zubov, 2020).
Thus, a significant part of public life in the state
is covered by the content of local self-
government activities, consequently, the
spectrum of rights and interests arising in
connection with such activities is quite wide, as
a result of which judicial protection of such rights
constitutes a significant part of the administration
of justice in the state as a whole. At the same
time, in the administration of justice within the
limits of the constitutional right of judicial
protection of local self-government, there are
tangible features.
The specified features are due, in particular, to
the fact that when justice is administered within
the framework of the protection of the rights of
local self-government, the rights of all members
of the relevant territorial community are
simultaneously protected, whose interests are
represented in court by an authorized official or
local self-government body in the relevant
procedural role of the plaintiff or defendant.
Given the above, the object of this study is legal
relations that arise during the administration of
justice within the limits of the constitutional right
to judicial protection of local self-government,
tangible features are seen.
The tasks of this study are:
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1. determination of the optimal approach for
objective assessment of the state of the
effectiveness of justice concerning the
judicial protection of local self-government;
2. establishing the peculiarities of the
administration of justice within the
constitutional right of judicial protection of
local self-government and their influence on
its effectiveness.
Theoretical Framework or Literature Review
The study of the indicated problems and the
fulfillment of the tasks became possible thanks to
the development of a significant theoretical and
scientific base, among the creators of which the
following should be singled out.
The understanding of the meaning of the rule of
law and its relationship with the effectiveness of
justice in matters of local self-government
protection was facilitated by the works of
scientist P. Vovk (2020), in which different
domestic scientific approaches to the meaning of
the concept of "rule of law" are compared, the
analysis of which helped determine the final
vision of the specified concept is within the scope
of the research subject.
The joint work of L. Samofalov, O. Samofalov,
and D. Shevchenko (2016) added to the
understanding of the essence of existence and the
need for the development of civil society since
the mentioned work contains a description of the
topical issues of its historical formation and
modern features of its formation.
O. Zubov (2020) considered the issue of the
development and efficiency of the judiciary in
Ukraine by the requirements of international
standards, which is especially important in the
conditions of Ukraine's active course of
European integration. The mentioned work was
of considerable importance within the scope of
this study, as it allowed us to compare the actual
effectiveness of Ukrainian justice in comparison
with its model desired by international law.
A remarkable role in the fulfillment of one of the
tasks of this study was played by the opinion of
L. Moskvych (2010), which was used as the basis
for identifying the most optimal approach to
determining the criteria for the effectiveness of
justice, in contrast, in particular, to the opinion of
M. Yasyniuk (2020), which has a somewhat
narrower vision of the specified criteria.
Yu. Kamardina and Yu. Koveino (2020), in their
research, on the theoretical and legal foundations
of the protection of the rights of local self-
government bodies justifiably focused attention
on the special public-legal status of local self-
government bodies, which should determine the
peculiarities of their protection.
Instead, O. Baymuratov (1996) focused on the
study of the interaction of local self-government
bodies with other authorized subjects of law,
within which he established the essence and
significance of public interests underlying local
self-government, therefore subject to discussion
within the limits of the existence of its
constitutional right to protection.
The works of O. Leonov (2019, 2020), which
thoroughly consider the issues of approaches to
understanding the protection of the rights of local
self-government, characterize various criteria for
their judicial protection, and also analyze
international legal standards in the field of
protection of local self-government, became a
significant platform for achieving the set goals of
the research. , which in turn became the basis for
modeling the further development vector of local
self-government and the judiciary in the direction
of increasing the level of efficiency of the latter.
Within the scope of the aforementioned, the work
of O. Chernezhenko (2019) also contributed to
this research, in which, in continuation of the
study of international legal standards for the
protection of local self-government, certain
guarantees of local self-government, proclaimed
by the European Charter of Local Self-
Government (Council of Europe, 1985), which
should be considered the basis for the formation
of the European constitutional model, were
considered local self-government, in particular
for European integration.
The research of S. Panasyuk (2016) is aimed at
studying the practical international experience of
the judiciary on the protection of local self-
government, which is embodied in the legal
positions outlined in the decisions of the
European Court of Human Rights, which
provides a noteworthy opportunity to compare
the national judicial practice with the
international one to take into account the
recommendations of the latter in activities of
national Ukrainian judicial bodies.
The issues of practical protection of the rights of
local self-government were raised in the writings
of I. Ruschak (2013), considered these issues in
terms of appeals against decisions, actions, or
inaction of local self-government bodies in the
administrative procedure.
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Foreign scientists also left their mark in research.
In particular, in the works of the Lithuanian
scientist V. Kondratienė (2008), the theoretical
and practical aspects of the legal regulation of
local self-government systems and models in
their relationship with the concepts established in
European law are considered in detail.
Professor of the Polish University B. Dolnytski
(2009), examining local self-government in
Poland, investigated in detail the principal
purpose of local self-government activities, the
main of which he identified as meeting the needs
of the community. This point of view was
supported by P. Dzekanski and A. Olak (2014),
as well as K. Pavlovska (2013). Thus, this
approach is the most appropriate, as it reveals the
major goal of building and developing local self-
government.
Scientist and practitioner Karol Kiczka (2018)
rightly noted the importance of the state
guaranteeing the functioning of an impartial,
independent, and effective judiciary in matters of
organization and activities of local self-
government.
Like Ukrainian scholars, the German scholar
B. Schaffarzik (2002) paid a lot of attention to the
European Charter of Local Self-Government,
recognizing it as the primacy in matters of
ensuring the protection of local self-government.
Previous studies have shown that the
effectiveness of justice in protecting the rights of
local self-government is a complex and
multifaceted issue that requires more detailed
investigation. This motivated the authors of this
article to conduct research.
Methodology
An objective and thorough study of the chosen
topic and, as a result, the fulfillment of the
assigned tasks became possible thanks to the
comprehensive use of a set of general scientific
and special methods of scientific knowledge.
In particular, with the help of the dialectical
method, a general vision and understanding of
the peculiarities of the protection of the rights of
local self-government was formed, which
became possible thanks to the clarification of the
properties and relationships that arise in the legal
relations associated with such protection.
The formal legal method was used to determine
the legal content of the main concepts within the
scope of this study, the main of which is the
concept of local self-government.
The specified method in combination with the
method of content analysis, which consists of the
possibility of comparing the provisions of
various legal sources, helped to determine the
essence of the specified concept through the
comparison of its interpretations in various
regulatory and legal acts.
Understanding the essence and meaning of local
self-government and the importance of its
protection was also served by the axiological
method, which revealed the main value
characteristics of the existence and proper
functioning of local self-government in the state,
through which many functions are performed in
the interests of the entire society in the person of
the relevant territorial community.
The method of system-structural analysis was
used to determine the relationship between such
concepts as local self-government, the right of
local self-government, and the protection of local
self-government.
Thanks to the method of generalization, it was
possible to single out the relevant features and
shortcomings of justice within the protection of
local self-government, which, in turn, made it
possible to follow the dynamics of the
effectiveness of the judiciary.
Using the logical-legal method, several proposals
were formulated to improve the efficiency of
justice in matters of local self-government
protection, in particular, it was proposed to
regulate the criteria for evaluating the
effectiveness of justice at the normative level and
to raise the level of qualifications of judges
considering cases involving local self-
government, etc.
The modeling method was used to provide
examples of real-life situations involving local
self-government bodies, which can be seen from
the judicial practice placed in the Unified State
Register of Court Decisions. The specified
method allowed us to assume the occurrence of
possible negative consequences in the absence of
a timely and proper response to the deficiencies
in justice regarding the protection of the rights of
local self-government.
The comparison method was widely used, in
particular, to find out the optimal approach to
determining the criteria for judicial efficiency.
Consequently, thanks to the comparison of
various concepts currently offered by the theory
of law to the specified criteria, it became possible
to choose the exact scientific understanding that
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best meets the research goal and allows the most
complete assessment of the effectiveness of the
judiciary in protecting the rights of local self-
government.
The method of analogy made it possible to take
into account in this research on the protection of
the rights of local self-government the use of the
provisions contained in the legislative framework
and judicial practice, in particular of the
Constitutional Court of Ukraine, regarding the
protection of the right to judicial protection of a
person.
The hermeneutic method served as a basis for
identifying and studying the meaning of specific
procedural and legal conflicts in the protection of
the rights of local self-government, which exist
in the theoretical plane and are manifested in
practice, as well as negatively affect the
effectiveness of justice within the scope of the
study.
Results and Discussion
Regarding the first task of the research, it is
significant to note that efficiency as a
characteristic of justice is a relative and
evaluative concept, which gives rise to the
presence in theory and practice of different
approaches to its understanding and definition
and, as a result, different evaluation criteria.
In particular, the scientific research of
L. Moskvych (2010) seems interesting within the
scope of the mentioned issue, as a result of which
the scientist concluded the expediency of
distinguishing four main groups of efficiency
criteria:
1. those that reflect the standards of the
organization of the judicial system;
2. criteria that make it possible to assess the
quality of the work of the judicial system and
are related to the achievement of the positive
goals of justice;
3. those that reflect the standards of
professionalism of judges and court
employees;
4. criteria for assessing the level of legitimacy
of the court institution in society (p. 32).
Thus, in the opinion of the specified scientist, the
first category of efficiency criteria should include
the following criteria: accessibility of the judicial
system, independence of the court, specialization
of the judicial system, and unity of judicial
practice. To the second group, she assigned the
criteria of fairness, impartiality, and timeliness of
the trial. The third category of efficiency criteria
is represented by the professionalism of judges
and court staff, and the fourth by the legitimacy
of the court and its authority as a court
(Moskvych, 2010).
This vision of the approach to evaluating the
effectiveness of the judicial activity, in contrast
to many others, that are included in the
theoretical base of the study of justice, is quite
apt, since it does not give preference to
quantitative indicators, as can be seen from the
study of Yasyniuk M.M. (2020), who, although
he mentions the presence of qualitative indicators
of justice, in particular, noting that the
effectiveness of the judicial system is not limited
to statistical data, although they reproduce
individual qualitative indicators, but focuses on
the quantitative expressions of that or other
phenomenon in the judicial sphere, which
characterizes the effectiveness of justice in
general.
As a rule, justice in the state as a whole is
evaluated for effectiveness, however, the study
of the administration of justice in certain spheres
of social life is characterized by the presence of
certain features that are not reflected in the
general vision of the state of justice, but are
important for its further improvement, since the
gradual identification and elimination of
shortcomings individual court proceedings will
lead to an increase in the general level of justice
efficiency within the entire state.
Therefore, the determination of the most optimal
approach to establishing the criteria for
evaluating the effectiveness of justice is
mandatory for the fulfillment of the second task
of the research, within which it is worth noting
the following.
As already mentioned above, a significant part of
public life in the state is covered by the content
of local self-government activities.
In European law, local self-government is the
right and ability of local self-government bodies
to manage and manage the main part of state
affairs under the competence established by law,
taking full responsibility for this and being
guided by the interests of local self-government
(Kondratienė, 2008).
All tasks of local self-government have the
character of social tasks in the sense that they
serve to meet the collective needs of the entire
society (Dolnytski, 2009).
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International legal norms position local self-
government as an influential and permanent
element of the organizational structure of a
modern state, whose place in the system of
government bodies is primarily determined by
the national legislator (Kiczka, 2018).
Part 1 of Article 140 of the Constitution of
Ukraine declares that local self-government is
the right of a territorial community – residents of
a village or a voluntary association of residents
of several villages, towns, and cities into a rural
community - to independently resolve issues of
local importance within the limits of the
Constitution and laws of Ukraine
(Law 254к/96-ВР, 1996).
In turn, under part 3 of Article 140 of the
specified normative legal act of the highest force,
local self-government is carried out by the
territorial community per the procedure
established by law, both directly and through
local self-government bodies: village, settlement,
city councils and their executive bodies
(Law 254к/96-ВР, 1996).
Thus, local self-government can be considered in
two main aspects: as the right of a person to
participate in solving issues of local importance
(conditionally – the right to local self-
government) and as the right of persons or bodies
authorized by the relevant territorial community
to perform the functions of local self-
government.
Article 145 of the Basic Law stipulates that the
rights of local self-government are protected in
court (Law 254к/96-ВР, 1996). Hence, taking
into account the above conditional division of the
right of local self-government according to the
interpretation of its content, the judicial
protection of the specified right can also be
considered from two sides: the judicial protection
of the right of a person to participate in local self-
government and the judicial protection of the
exercise of local self-government itself.
The current legislation of Ukraine provides for
several forms of individual participation in local
self-government, among which direct and
indirect methods are distinguished. Direct
participation in the organization and activities of
local self-government bodies by being elected to
an elected local voting body (active method) or
voting in local elections as a voter (passive
participation) is a direct way of exercising a
person's right to local self-government.
This form of relationship with local self-
government in the political sense involves the
honorable participation of individuals in the
performance of specific management tasks, the
so-called personal self-government (Dzekanski,
& Olak, 2014).
In contrast to direct methods aimed at
participation in local self-government within a
wide range of issues of local importance, indirect
methods are represented by various forms of
participation in solving those issues that arise in
each specific situation and can be expressed in
the organization or participation in public
initiatives, thematic forums and meetings,
general meetings, rallies, surveys, preparation
and submission of appeals, proposals, petitions,
etc.
Each of the specified rights-opportunities is
subject to judicial protection of the constitutional
right of local self-government, which takes place
according to the rules of administrative
proceedings, since in any case, it is of a public-
law nature, while the most regulated is the
judicial proceedings regarding direct ways of
implementing the right of local self-government,
which includes, in particular, the election
process.
The peculiarity of the administration of justice
within the protection of the specified component
of the right of local self-government is that at the
same time the protection of electoral rights
guaranteed by separate provisions, in particular,
of the Constitution of Ukraine, which in turn can
be regarded as a positive indicator for the
effectiveness of justice, as it testifies to the
economic efficiency of the judicial process.
The effectiveness of justice within the limits of
the specified disputes is also positively affected
by the presence of legally defined features of the
consideration of the specified category of cases
regarding the jurisdiction of the court competent
to resolve the specified dispute, the terms of
submitting a statement to the court about the
violation of the right to vote (in the case of
contesting local elections, also the right to local
self-government), terms of their consideration by
the court, as well as other procedural issues
regarding the announcement and delivery of the
court decision, notification of the parties, etc.
(Law 2747-IV, 2005).
The consideration of disputes related to the
second component of the law of local self-
government – the direct implementation by
officials and local self-government bodies of the
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functions provided by law to resolve issues of
local importance – has a more extensive impact
on the effectiveness of justice as a whole.
Nonetheless, there is no definition of the concept
of "protection of the rights of local self-
government bodies" in the national municipal
legislation, so it is appropriate to consider the
specified legal category in the context of the
concept of "protection of the rights of local self-
government" (Kamardina, & Koveyno, 2020).
An analysis of the current legislation of Ukraine,
in particular the provisions of the Law of Ukraine
"On Local Self-Government in Ukraine"
(Law 280/97-ВР, 1997), makes it possible to
conclude a significant range of own and
delegated powers possessed by local self-
government in Ukraine. Therefore, the rights of
local self-government are manifested in each of
the spheres of public life when authorized bodies
or persons exercise the relevant powers and are
accompanied by certain sectoral rights of local
self-government depending on the sphere of
performance of its functions, while cases of
violation of the specified rights, the restoration of
which requires judicial intervention, are not
included.
Judicial protection of the rights of local self-
government involves taking into account
particular specific interests that are
systematically and permanently produced in the
field of local self-government at the level of the
relevant territorial community by its residents-
members. As M. Baymuratov (1996) rightly
noted, these interests appear in the form of three
interconnected groups of public interests: the
interests of the territory on which the territorial
community functions, the interests of the
territorial community itself, and the interests of a
specific resident-member of the territorial
community.
Thus, the Constitution of Ukraine provides for
direct judicial protection of the rights of the
territorial community (the rights of local self-
government) and not only judicial protection of
local self-government bodies (Leonov, 2019).
It is significant that the importance of protecting
the rights of local self-government is emphasized
not only at the level of the Basic Law of the state,
but is also reflected in international legal
regulation, in particular in Article 11 of the
European Charter of Local Self-Government,
1985, which aims to protect local self-
government as an institution (Schaffarzik, 2002).
It should be noted that Ukraine, being a member
of the Council of Europe and a signatory of the
Charter, which, by the way, it ratified
(Law 452/97-ВР, 1997), undertook to implement
it in full and without reservations (Panasyuk,
2016, p 67).
Thus, local self-government is an essential basis
of any democratic government and makes an
extraordinary contribution to the development of
democracy, effective administration, and
decentralization of power, consequently, the state
must protect it as an institution, and therefore it
must be special constitutional protection
(Chernezhenko, 2019).
It is worth noting that in the practice of the
Constitutional Court of Ukraine, there are no
decisions regarding the application of Article 145
of the Constitution of Ukraine, nevertheless,
decisions were made regarding the interpretation
of the general right to personal protection
(Decision 9-zp, 1997), which may be applied in
terms of the fact that local self-government
protects the rights of a whole group of persons at
once, each of whom has the right to protection.
Instead, the effectiveness of justice in protecting
the constitutional right of local self-government
should be evaluated within the scope of
consideration of real disputes involving local
self-government, in which local self-government
bodies can act as both plaintiff and defendant.
Thus, an official or a local self-government body
has the right, which corresponds to the
corresponding duty, to carry out public self-
government following the requirements of the
law. At the same time, individual entities often
prevent such management, in particular by trying
to persuade the self-governing entity to perform
its functions contrary to the law by applying to
the court.
At the same time, within the scope of the
implementation of such justice, a paradox arises,
which consists in the fact that the interests of one
person - a specific representative of a territorial
community (or group of people) are opposed by
the interests of the entire territorial community,
which is represented by an authorized body of
local self-government or an official, and, in such
in court proceedings, the concretely established
right of one person is countered by the theoretical
collective right of local self-government to
unhindered implementation of public
administration in the manner established by law.
Moreover, taking into account that the local self-
government body is a subject of power, which
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only performs the functions provided by law,
does not have any personal interest, and does not
bear personal losses, justice is often meticulous
about such a body and gives priority to specific
individual rights, regulating it the fact that the
local self-government body will not suffer if it
deviates relatively from the rule of law to satisfy
the interests of the individual. However, at the
same time, the court does not take into account
the above-mentioned right of local self-
government in terms of the right to proper public
administration, which violates the rights of the
entire territorial community to resolve the
relevant personal issues of a specific person who
is a party to a court case.
Another problem of the judiciary, which
negatively impacts the efficiency of justice, lies
in the area of its resource personnel support,
namely, it concerns the professionalism of
judges. This statement in no way calls into
question their qualification, however, a large
number of social legal relations in which the right
of local self-government is implemented cover
various spheres of public life, which are
regulated by a significant array of normative
legal acts and are accompanied by significant
features of the procedures for the implementation
of the functions of local self-government in
practice, in which it is not easy for judges to deal
with the case in a relatively short time, taking into
account the workload of other cases. Thus, the
sphere of activity of local self-government
includes, in particular, the fields of education,
construction, trade, land resources, registration
and management of real property rights,
registration of place of residence, etc., within
which many separate procedures for granting
licenses, permits, approvals, other social and
administrative services, etc., within which
controversial issues arise that require
intervention to protect the relevant law of judicial
institutions.
Concurrently, the modern legislation of Ukraine,
to a certain extent, does not take into account the
peculiarities of the functioning and methods of
decision-making by local self-government
bodies (Ruschak, 2013), just as the judicial
system does not have a detailed division by
sphere of social relations by jurisdiction, in
connection with than judges (as a rule of courts
of administrative direction, since the local self-
government in most cases appears in the case as
a subject of authority in matters of its
performance of public-authority management)
has to independently investigate the intricacies of
certain legal relations to make a legal, and fair
decision. In this case, cases of the court making
an unsatisfactory decision related to the lack of
sufficient knowledge of the judge about the
performance of certain functions by the local
self-government and their features may not be an
exception, which in turn indicates insufficient
effectiveness of justice in matters of protection of
local self-government.
A solution to the specified problem can be the
systematic holding of educational seminars or
training for acting judges by specialists in the
relevant field of local self-government on
specific issues of the performance of their powers
by local self-government bodies in each specific
field to replenish the theoretical knowledge of
judges obtained from the relevant regulatory and
legal framework, and familiarization with the
practical side of local self-government.
The variety of spheres in which local self-
government is involved gives rise to a large
number of different legal relations, which,
unfortunately, can be interpreted and considered
by judges in different ways, considering that one
of the urgent problems of the judiciary, which
negatively affects the effectiveness of justice, is
the different interpretation of the rules
jurisdictional subject matter jurisdiction of
disputes regarding violation of the rights of local
self-government.
Thus, the scope of powers of local self-
government defined by law, although
accompanied by a public-law component, is
often related to the rights of individuals or legal
entities of a civil-law nature. For example,
disposal of real estate objects of a communal
form of ownership (entering into a lease
agreement, privatization, etc.) results in the
emergence of housing or other property rights in
a person, which are protected in civil proceedings
under paragraph 1 of part 1 of article 19 of the
Civil Procedure Code of Ukraine (Law 1618-IV,
2004). At once, the local self-government body
in these legal relations remains a subject of
power, which carries out public management,
that is, it is a subject of administrative law, but
given the subject of the dispute, such a dispute
with the subject of power will not be resolved
according to the rules of administrative
jurisdiction.
However, in practice, not all disputes with the
subject of authority can be easily and correctly
distributed by jurisdiction, which in turn leads to
a violation of jurisdiction, consideration by
courts of different jurisdictions of disputes
similar in substance, or, in general, simultaneous
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consideration in several jurisdictions of the same
and the same dispute.
For example, according to the provisions of the
Law of Ukraine (Law 280/97-ВР, 1997) "On
Local Self-Government in Ukraine" (1997), in
particular, according to clause 7 of part 1 of
article 2, the authority to register the place of
residence of individuals is delegated to local self-
government bodies - the relevant executive
bodies of the village, settlement or city council.
At the same time, from the selective analysis of
depersonalized decisions of the Unified State
Register of Court Decisions, it can be seen that
the registration of the place of residence by
society in general, as well as by the court in
particular, is still perceived as the basis for the
emergence of housing rights for individuals, in
connection with which the lion's share of cases
regarding the implementation by the body
registration of the place of residence of natural
persons with relevant powers is interpreted as a
matter related to residential rights and is
considered according to the rules of civil
procedural legislation.
In turn, the registration of the place of residence
does not give rise to housing rights in a person,
as well as any other rights of a civil law nature.
Therefore, taking into account that the body of
registration of the place of residence is a subject
of authority, the action, decision, or inaction of
which is contested within the administrative
proceedings, as evidenced by clause 1 of part 1
of article 19 of the Code of Administrative
Procedure of Ukraine (Law 2747-IV, 2005), it is
the courts of administrative jurisdiction that have
to consider disputes arising between a person and
a local self-government body regarding issues of
registration of place of residence.
This position is also reflected in judicial practice
since the Unified State Register of Court
Decisions is full of decisions of administrative
courts of various instances, adopted within the
limits of the specified type of the subject of the
dispute. That is, two different judicial practices
are formed based on similar disputes: within civil
and administrative proceedings.
However, the wider the judicial practice, the
more generalizations, clarifications, and reviews
of it are, made by higher judicial authorities, the
more comprehensive and detailed the legal
regulation and regulation of the activities of local
self-government, its subjects, and bodies, and
therefore the more it is easier and faster not only
to issue court decisions on specific issues of
protection of local self-government but also to
make changes and additions to the current
legislation or adopt new laws regarding local
self-government more quickly (Leonov, 2020).
Hence, the result of the activity of the courts
should be, in particular, the presence in the legal
circulation of only those legal acts that do not
violate the rights of local self-government
(Pavlovska, 2013).
Taking into account the above, the current state
of judicial practice regarding the protection of
local self-government is a vivid example of the
presence of significant shortcomings in the
administration of justice, which inhibits not only
the development of the judiciary but also local
self-government.
Conclusions
Completion of the first task led to the formation
of the opinion that equal attention to both
quantitative and qualitative criteria of the
effectiveness of justice will allow to provide it
with a comprehensive assessment, taking into
account the organizational and fundamental
foundations of the judicial system, as a separate
branch of government, represented by the
relevant bodies-courts, normatively - the
procedural basis of the specified system, which
includes the assessment of the court decisions
themselves, the timeliness of their adoption and
compliance with the legislation, the resource
provision of justice of a material and personnel
nature, the level of trust in the judiciary, etc.
Therefore, to objectively evaluate the
effectiveness of justice in the state at the
normative level, a generally recognized approach
to the evaluation of justice must be developed,
which will serve as an example of maintaining a
balance between different, but equally important,
aspects of justice, which are necessary for
forming a judgment about its effectiveness,
because exclusively aggregate analysis of
indicators according to the above criteria will
allow determining the actual state of the judicial
branch of government in the state and, if
necessary, to form a further plan of necessary and
sufficient measures to increase the level of the
revealed state of justice.
Within the framework of the second task, it
became possible to conclude that, unfortunately,
in practice, the effectiveness of justice in the
protection of the rights of local self-government
in such disputes cannot be considered exemplary
for the following reasons:
− the right of local self-government to proper
public administration by judicial authorities
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is often identified exclusively with the rights
and obligations of the relevant local self-
government body, and not of the entire
territorial community, the representative of
which is such a body, especially when the
latter acts in the procedural status of the
defendant, which prevents the court from
carrying out a fair consideration of the
relevant case;
− uncertainty regarding the jurisdiction of the
dispute leads to the consideration of the case
by courts of different jurisdictions, which
have opposite views on the dispute given its
nature (protection of housing rights or
protection against an unlawful decision of a
local self-government body), which are
expressed in completely different
motivational parts of decisions when
resolving similar disputes, which is a
significant obstacle to the formation of a
unified judicial practice;
− a significant range of powers of local self-
government and their imperfect normative
and legal regulation leads to complications
for judges when considering relevant cases,
due to their limited knowledge of material
and procedural features of the functioning of
local self-government.
Several steps can be taken to implement
improvements in the evaluation of justice and the
protection of local self-government rights. Here
are some suggestions:
Development of a Generally Recognized
Approach to Justice Evaluation:
Establish a working group or commission
comprising legal experts, scholars, and
representatives from the judiciary to
collaboratively develop a generally recognized
approach to justice evaluation.
The approach should encompass both
quantitative and qualitative criteria, considering
organizational and fundamental foundations of
the judicial system. It should include criteria such
as the assessment of court decisions, timeliness,
compliance with legislation, resource provision,
and public trust in the judiciary.
Ensure that the developed approach serves as a
comprehensive and balanced model for
evaluating justice, addressing various aspects
crucial for an effective judicial system.
Implementation of Normative Changes:
Based on the developed approach, propose and
implement normative changes in the legal system
to formalize the criteria for justice evaluation.
Clearly define the roles, responsibilities, and
jurisdiction of different courts to reduce
uncertainty regarding dispute jurisdiction.
Address the identified issues related to the range
of powers of local self-government through
legislative amendments, providing clearer norms
and guidelines for judges.
Capacity Building for Judges:
Provide training programs for judges to enhance
their knowledge of the material and procedural
features of local self-government.
Create specialized training modules to address
the challenges identified in the study, such as the
complexities arising from the imperfect
normative and legal regulation of local self-
government.
Promoting Consistency in Judicial Decisions:
Encourage communication and collaboration
among different jurisdictions to promote a
unified approach to similar disputes.
Establish mechanisms for judges to share
experiences and best practices, fostering
consistency in the motivational parts of decisions
and contributing to the formation of a unified
judicial practice.
Monitoring and Review:
Implement a monitoring and review mechanism
to periodically assess the effectiveness of the
reforms and the developed approach to justice
evaluation.
Collect feedback from stakeholders, including
legal practitioners, scholars, and representatives
of local self-government bodies, to make
continuous improvements.
Advocacy for Reform:
Use the findings of the study to advocate for
broader reforms in the sphere of justice within
the protection of local self-government.
Engage with policymakers, legislators, and
relevant stakeholders to garner support for the
necessary and sufficient measures identified in
the study.
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Public Awareness and Trust-Building:
Conduct public awareness campaigns to inform
citizens about the reforms and improvements in
the justice system.
Promote transparency in the judicial process to
enhance public trust in the judiciary.
By implementing these recommendations, there
can appear a systematic and comprehensive
approach to improving the evaluation of justice
and enhancing the protection of local self-
government rights. This would contribute to the
overall effectiveness of the judicial system and
the fulfillment of constitutional rights.
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