Measures to ensure the institutional independence of the judiciary
Authors: Hdanskyi Nazar 
Published: December 2023

Abstract. In accordance with international legal standards in Ukraine, the independence of judges is guaranteed by the Constitution (part one of Article 126). It is prohibited to influence the judge in any way (part two of Article 126 of the Constitution of Ukraine). Also, the first part of Article 129 of the Basic Law of Ukraine states that a judge, when administering justice, is independent and governed by the rule of law. The institutional independence of the judiciary is implicitly embodied at the level of the text of the Constitution of Ukraine, in addition to the above-mentioned norms, also in part one of article 6 (state power in Ukraine is exercised on the basis of its division into legislative, executive and judicial), parts one and two of article 8 (in Ukraine the principle of the rule of law is recognized and applied. In addition, the content of Articles 128, 129-1, 130, 130-1, 131 of the Basic Law of Ukraine gives the scientist grounds for the conclusion that the institutional independence of the judiciary is also guaranteed by the independent procedure for appointing a judge to a position determined at the constitutional level, the binding nature of a court decision , ensuring the proper financial maintenance of judges and financing of the judicial system, independent mechanisms for selecting judges and bringing them to disciplinary responsibility, independence of judicial self-government and governance. The above constitutional guarantees of the independence of the judiciary are specified at the legislative level - first of all, in the Law of Ukraine "On the Judiciary and the Status of Judges", most of the articles of which to one degree or another are related to the principle of independence of judges, in addition, Article 6 of the Law is separately devoted to this issue. We must emphasize that the independence of the judiciary is a necessary basis of a civilized society, the real provision of which is, in turn, a mandatory condition for building a legal democratic state - in the modern world, it is an axiom that does not need any additional argumentation. We consider the independence of the judiciary as a phenomenon caused by internal and external factors. The internal aspect of an independent court can have many components, but, first of all, it is based on the moral principles and ethical norms of a specific person - a judge. Here, the concept of independence is very closely intertwined with such categories as impartiality, impartiality and justice, ultimately denoting a certain way of thinking. After all, it is obvious that each person perceives the same circumstances individually, through the prism of their own ideas about the world. Specific factors that someone will leave out of consideration (for example, statements, comments of colleagues, publications, etc.), for another can have a decisive influence on the formation of an attitude towards a certain person or a certain situation, therefore, the lack of moral maturity of a person who administers justice can nullify the constitutional and legally established guarantees of judge independence. Let us emphasize that internal independence in the context described above is the personal duty of every holder of judicial power - a judge, which originates from the moral and ethical qualities of a specific person and determines the corresponding results of his activity. The external factor that ensures the review and decision of the case by an independent judge is the independence of the judiciary as one of the main values of a modern democratic state, as a sign of the relationship of a judge (a specific holder of judicial power during the performance of his official duties) with any subjects. It is argued that the institutional independence of the judiciary is a complex and multifaceted phenomenon, since it should be considered as the prevention of any undue external influence on the judiciary, its full autonomy from other branches of government, which not only means non-interference in the function of justice, but also involves compliance judicial independence in all its aspects, manifestations, guarantees of independence and inviolability of judges in full. Such independence is universal in the constitutional and legal dimension due to its significance as an essential requirement of the principle of separation of powers, the rule of law and the right to judicial protection. Today, as the analysis of the latest trends in the practice of the Court regarding the protection of judicial independence convinces, it is not individual guarantees of judicial independence that are violated, but an intervention in the institutional independence of the judicial branch of government in Ukraine as an independent arbiter from among other branches of government through the implementation of a set of legislative changes regarding the national judiciary. systems that encroached on its constitutionally defined structure and key guarantees of the independence of judges (the principle of immutability of judges, their proper financial maintenance, ensuring the independence of judicial governance). This testifies to the presence of signs of a crisis in the relationship between the legislative and judicial branches of power, which undermines public trust in the latter, contradicts the constitutional principles of separation of powers, the rule of law, nullifies the right to judicial protection, weakening the constitutional legal order in general.