Category: Tribune of young scientis
Pages: 169-179
Library: Actual problems of criminal justice
Location: Pravova Ednist Ltd
Year: 2018
N° catalog: 4
File: 4_2018_vilgushunskyi.pdf
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The article devoted to the study of foreign experience in legal regulation of the principles of openness and transparency in the system of constitutional fundamentals of judicial system and justice, which connected with organization of criminal procedure. It is developed science-based recommendations for enhancement of efficacious legislation of Ukraine with the consideration of advanced foreign practice. First of all, one should pay attention to the fact that the rules on publicity (publicity, openness) of justice are in the constitutions of almost all states. From the point of view of the content of these principles, their elements and reflection in the constitutional and legal norms, the rules on the judicial system and the criminal process, it should be noted that it is about transparency and openness of the procedure of judicial proceedings (including for representatives of the mass media), as well as on publicity announcement of court decision.

The first approach is to formulate transparency and openness in the administration of justice in the form of principles in which it (justice) is based. At the same time, the relevant rule is contained in the section on judicial power. Such an approach is practiced by many countries among them: Ukraine, Bulgaria, Austria, Azerbaijan, Belarus, Greece, Denmark, Turkey, Netherlands, Croatia, Romania, Macedonia, Lithuania, Moldova, Georgia, Turkmenistan, Uzbekistan, Russian Federation, Kuwait, Iran, Yemen, Vietnam, China, India, and others. Thus, in the Constitution of Ukraine (Clause 6 Article 129) it is determined that one of the main principles of legal proceedings is the publicity of the trial and its complete fixation by technical means.

The consolidation of the fundamental principles of the exercise of judicial power in the constitutions of the states itself is necessary and extremely important for the whole system of administration of justice.

The essence of the second approach is that publicity and openness of justice, expressed in the openness of court hearings and court proceedings as a whole, are enshrined in the constitutions as an inherent and guaranteed right of everyone to a public or open trial. Accordingly, the indicated is fixed in the sections on the main (constitutional) rights. The study showed that many countries have such an approach, including: Finland, Sweden, Switzerland, Poland, Estonia, Hungary, Armenia, Venezuela, Mexico, Argentina, Iraq, Thailand, Philippines, etc. Thus, the Constitution of the Argentine Republic (Part 22, Article 75) states that a number of international sources, including the American Declaration on the Rights and Duties of Persons, the Universal Declaration of Human Rights, the American Convention on Human Rights, is legally valid, equal Constitution of the Argentine Republic.

The third approach is expressed in the more detailed consolidation of the principles of transparency and openness of justice at the constitutional level, both as a constitutional right, and as a formulation of the principle of the exercise of judicial power (respectively, in various sections of the constitutions). These countries include: Spain, Brazil, the Republic of Korea, Japan, some others.

An integral element that forms the basis of publicity and openness of justice, is the public order of announcing a court decision. At the same time, it is equally important, regulated by foreign law and approved practice of its application, it is the duties of the judicial system to publish judicial decisions. Interesting in this sense, the German experience of publishing decisions: all decisions that are, or in principle, may be public interest are published.

Keywords: principle, fundamentals transparency, openness, justice, judicial authority, judicial system, criminal procedure. 

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