Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 69
Julio
Diciembre
2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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Co mi té Ase sor
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Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 707-716
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 13/04/2021 Aceptado el 22/06/2021
Rule of law in the context of judicial
reform as a direction of ensuring the
accessibility of administrative proceedings
DOI: https://doi.org/10.46398/cuestpol.3969.44
Vyacheslav Tylchyk *
Olena Riabchenko **
Khrystofor Yarmaki ***
Yurii Riabchenko ****
Viktor Leschynsky *****
Abstract
The objective of the study is to analyze the rule of law in the
context of the implementation of reforms of the judiciary, the
judiciary, and related legal institutions as a direction to ensure
the accessibility of administrative justice in Ukraine, revealing
its relationship and interdependence. The study found that the
availability of administrative procedures is provided by the requirements
of all these generic subsystems of the principles that determine modern
standards of activity in European countries. The methodology includes a
comprehensive analysis and generalization of the available scientic and
theoretical material, as well as the formulation of relevant conclusions.
During the research, scientic cognition methods were used: terminological,
logical-semantic, functional, system-structural, logical-normative,
comparative. They highlight in the conclusions that the study found that
the amendments to the Constitution of Ukraine in the context of judicial
reform made it possible to revise the classical principles of the judiciary,
but there are still important unresolved aspects to ensure full compliance
with the rule of law, its specication in the constitutional provisions and
legislative acts of Ukraine of substantive and procedural content, among
other aspects.
* Professor, Head of the Department of Administrative Law and Process and Customs Security, Doctor of
Law, University of State Fiscal Service of Ukraine, Ukraine. ORCID ID: https://orcid.org/0000-0001-
5964-3439. Email: tilchikvv@ukr.net
** Professor, Department of Administrative Law and Process and Customs Security, Doctor of Law,
University of State Fiscal Service of Ukraine, Ukraine. ORCID ID: https://orcid.org/0000-0001-6631-
2830. Email: 80677171865@ukr.net
*** Professor, Department of Administrative law and procedure, Doctor of Law, Odessa State University
of internal aairs: Odessa, Ukraine. ORCID ID: https://orcid.org/0000-0001-7718-3093. Email:
grek1951@ukr.net
**** Associate Professor, Senior Lecturer, Department of Civil Law and Process, Doctor of Law University of
the State Fiscal Service of Ukraine, Ukraine. Ukraine. ORCID ID: https://orcid.org/0000-0002-1328-
700X. Email: 0971713748@ukr.net
***** Professor Iino Knuba, Chairman of the National Expert Building Alliance of Ukraine, Vice President
of ABU, Candidate of Science in Public Administration. National Expert Building Alliance of Ukraine,
Ukraine. ORCID ID: https://orcid.org/0000-0001-6631-3456. Email: 80677171865@ukr.net
708
Vyacheslav Tylchyk, Olena Riabchenko, Khrystofor Yarmaki, Yurii Riabchenko y Viktor
Leschynsky
Rule of law in the context of judicial reform as a direction of ensuring the accessibility of
administrative proceedings
Keywords: rule of law; human rights; access to administrative justice;
judicial reform; administrative procedures.
El estado de derecho en el contexto de la reforma
judicial como una dirección para garantizar la
accesibilidad de los procedimientos administrativos
Resumen
El objetivo del estudio es analizar el estado de derecho en el contexto
de la implementación de reformas del poder judicial, el poder judicial y
las instituciones legales relacionadas como una dirección para garantizar
la accesibilidad de la justicia administrativa en Ucrania, revelando su
relación e interdependencia. El estudio encontró que la disponibilidad de
los procedimientos administrativos es proporcionada por los requisitos
de todos estos subsistemas genéricos de los principios que determinan los
estándares modernos de actividad en los países europeos. La metodología
incluye un análisis integral y generalización del material cientíco y
teórico disponible, así como la formulación de conclusiones relevantes.
Durante la investigación se utilizaron los métodos de cognición cientíca:
terminológico, lógico-semántico, funcional, sistema-estructural, lógico-
normativo, comparativo. Destacan en las conclusiones que el estudio
encontró que las enmiendas a la Constitución de Ucrania en el contexto
de la reforma judicial permitieron revisar los principios clásicos del poder
judicial, pero aún quedan aspectos importantes sin resolver para garantizar
el pleno cumplimiento del estado de derecho, su especicación en las
disposiciones constitucionales y actos legislativos de Ucrania de contenido
sustantivo y procesal, entre otros aspectos.
Palabras clave: estado de derecho; derechos humanos; acceso a la justicia
administrativa; reforma judicial; procedimientos
administrativos.
Introduction
The urgency of the research is due to objective political, social, legal issues
of judicial reform in Ukraine and ensuring access to justice, establishing
adequate criteria for payment and gratuitous payment of court fees, court
costs in general, which will improve the eciency and eectiveness of good
governance, implementation and protection of human and civil rights
and freedoms in the sphere of executive power, formation of European
standards of administrative justice.
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The term “rule of law” is used frequently in reference to a wide variety
of desired end states. Neither scholars nor practitioners have settled upon
an accepted denition. However, the term usually refers to a state in which
citizens, corporations and the state itself obey the law, and the laws are
derived from a democratic consensus. This is captured in a denition
proposed by the United Nations (United Nations Security Council, 2004)
The report containing this denition then suggests certain characteristics
of the rule of law, including adherence to the principles of supremacy of
law, equality before the law, fairness in application, separation of powers,
participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency. The U.S. State Department’s website
similarly describes rule of law as protecting “fundamental political, social,
and economic rights” and distinguishes between rule of law versus rule by
law in more authoritarian societies.
1. Literature review
In the context of judicial reform, the content, and features of the
introduction of the rule of law have been the subject of research by such
scholars, politicians, judges, ideologues of judicial reform as Holovatyy
(2019), Leheza et al., (2020), Pukhtetska (2010), Tylchyk Vyacheslav
(2021), Tylchyk and Tylchyk (2021) and some others. A study and an
analysis of evolutionary trends in interpretation are important
from the point of view of increasing the eciency and eectiveness
of legal interpretation of the ECtHR and national authorities applying the
ECHR, what is extremely important for parties recently acceded to
the Convention. In legal systems of such member-states mainly technical-
dogmatic methods of interpretation still prevail and judges don`t have the
necessary skills to use international jurisprudence in the national legal
system. The application of ECtHR`s decisions in national practice
allows solving not only problems of justice, but ones of a political, economic
and social settlement (Karvatska et al., 2021).
Peculiarities of the ECtHR’s interpretation are the special nature
of international human rights treaties and of the ECHR in particular,
what determines the actualisation of their interpretation in the context
of the object and the purpose of treaties, in other words paying attention
to the protection of individual rights, but not to the intentions of
the member states in concluding the ECHR. There are also peculiarities of
interpretation of institutional nature, which created certain dierences at
dierent stages of organizational transformation of the ECtHR (Karvatska
et al., 2021).
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Vyacheslav Tylchyk, Olena Riabchenko, Khrystofor Yarmaki, Yurii Riabchenko y Viktor
Leschynsky
Rule of law in the context of judicial reform as a direction of ensuring the accessibility of
administrative proceedings
An interpretational methodology developed by the ECtHR involves the
use of its own methods, among which the methods of consensus, eciency,
judicial activism, comparison, innovative interpretation, autonomous
method, and the method of “balancing” are becoming more and more
exploited. The functioning of the ECtHR as a court, its interpretive method
of building a holistic system through informal practice and setting standards
by comparing the legal rules of member states, seem legitimate enough to
dene identifying evolutionary standards, and maximally contribute to
their establishment and consolidation. The binding nature of ECtHR`s
decisions only for parties to the dispute does not preclude, rather even
arms the need for the legislation of the Member States to comply with
these standards, which must be suciently broad. Otherwise, the Court
may be charged with “legislative” decisions. However, too broad standards
make it incredibly dicult for the Court to operate (Karvatska et al., 2021).
A consensual examination allows the ECtHR to tie its decisions
to the pace of changes in national law, recognising the political
sovereignty of the respondent States and, at the same time, legitimising its
own decisions against them, adhering to the principles of a democratic state
governed by the rule of law (Karvatska et al., 2021).
2. Results and discussion
The current version of the Code of Administrative Procedure of Ukraine
enshrines an approach developed based on anthropocentrism, developed
in the context of constitutional and administrative reform, but its content
needs to be improved to take into account modern requirements for the
rule of law, in particular the accessibility of administrative proceedings. a
set of nancial, administrative, organizational, and technical guarantees,
norms, regulations that provide not only formal but also real ability to
provide judicial protection of violated rights in the system of administrative
courts. For a long time, domestic legal thought was based on the principles
of compliance with the rule of law, so the principle of legality occupied a
central place in doctrinal and special legal research. Only a part of domestic
scholars in the last ten years have begun to recognize the fundamental
importance of the principle of the rule of law and its essential elements, the
expediency of their introduction in the national doctrine and legal system.
The content and place of the rule of law are currently enshrined in the
Constitution of Ukraine, special laws governing the activities of central
government, in particular, the judiciary, but formal consolidation is not
enough to implement the rule of law, it is necessary to develop an eective
administrative mechanism and protection of human rights, which includes
the development of criteria for the availability of administrative proceedings
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in Ukraine, taking into account the experience of leading European
countries. It is necessary to trace national approaches to enshrining the
requirements of the rule of law in national legislation on the judiciary, the
status of judges, codied procedural acts in order to formulate proposals
to update and detail the requirements of the rule of law in general and in
particular – accessibility of administrative proceedings as a component of
the rule of law in court administrative proceedings. According to the results
of the analysis of the system of acts of legislation of Ukraine, the principle of
the rule of law is mentioned in more than 300 acts of legislation.
The conducted quantitative analysis allows to testify that for the last
twenty years there has been a signicant implementation of the requirements
of the rule of law in the current legislation of Ukraine, but the problems
of interpretation of the content, the requirements of the rule of law, the
grounds for appealing against non-compliance. various state institutions,
primarily – the judiciary, because it is thanks to them is the counteraction
to illegal actions, inaction of the subjects of power (Ivanenko, 2020). In
this regard, the aspects of ensuring compliance with the requirements
of accessibility of administrative proceedings, which should be a central
component of domestic administrative procedural legislation, need a new
solution. After all, by ensuring the availability of administrative justice,
trust in the government and the state increases, and the rate of corruption
and arbitrariness in society decreases. Comprehensive implementation
of the requirements of the rule of law in its modern European sense will
bring the domestic substantive and procedural legislation in line with the
requirements of adaptation of Ukrainian legislation to the legislation of the
European Union.
For the rst time in Ukrainian legislation, the principle of the rule of law
was enshrined at the level of the proposal of the National’s Deputy Serhii
Holovatyy to amend the article of the Constitution of Ukraine on the night
before its adoption. Few people paid attention to this at that time, because
mostly deputies were not acquainted with European and international
acts, recommendations, and mostly relied on the high authority of the
deputy, who dealt with this issue for more than twenty years. The denition
of the rule of law enshrined in the Constitution of Ukraine has become
epoch-making, as its denition has been disseminated in many other
pieces of legislation, including by-laws. In all versions of the constitutions
of independent Ukraine, the content of the rule of law has not changed,
although aspects of its observance and the practice of judicial protection
have developed signicantly (Holovatyy, 2019).
Legislation on the status of judges, the judiciary, and the judiciary in
Ukraine is one of the most reformed segments of national legislation, which
reects the key ideas of judicial and constitutional reform. Unfortunately,
many other segments of domestic law are inferior in implementing the
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Vyacheslav Tylchyk, Olena Riabchenko, Khrystofor Yarmaki, Yurii Riabchenko y Viktor
Leschynsky
Rule of law in the context of judicial reform as a direction of ensuring the accessibility of
administrative proceedings
ideas of the rule of law in various types of proceedings. The advantage of
introducing the requirements of the rule of law in the legislation on the status
of judges, the judiciary, the judiciary in Ukraine is: the presence of a clear
formula, xed in the procedural legislation; the existence of clearly dened
grounds for the application of the case law of the European Court of Human
Rights to review cases of violation of the principles of the rule of law by
various actors; the existence of clearly dened principles of administrative
proceedings, which directly x the content and basic characteristics of the
principle of the rule of law. In contrast, in several segments of the system of
legislation of Ukraine still remain undened content, meaning of the rule of
law, as well as grounds for review of certain decisions, actions, inaction of
authorized bodies due to non-compliance with the rule of law.
For example, this applies to legislation on civil service and reform of
the responsibility of civil servants, legislation on the protection of citizens’
rights, education, culture, social protection, which is dominated by
previous positivist traditions of understanding the content of legal relations
and their legal regulation. Turning to the analysis of legislative acts, we
should rst consider the provisions of the current Law of Ukraine: “On the
Judiciary and the Status of Judges” of 02.06.2016 № 1402-VIII (On the
Judiciary and the Status of Judges, 2016: 129), in which the principle of the
rule of law is enshrined in the law as integral element, ambush, principle
of justice. In particular, the direct xation of the rule of law is enshrined
in this law in Article 2, which states that: “The court, administering justice
on the basis of the rule of law, guarantees everyone the right to a fair trial
and respect for other rights and freedoms guaranteed by the Constitution
and laws. Ukraine, as well as international treaties, the consent of which is
given by the Verkhovna Rada of Ukraine” (On the Judiciary and the Status
of Judges, 2016).
It is necessary to point out separately the provisions of Article 7 of the
said law, in which in Part 3 of Art. 7 stipulates that: “Access to justice for
every person is ensured in accordance with the Constitution of Ukraine and
in the manner prescribed by the laws of Ukraine” (On the Judiciary and the
Status of Judges, 2016: 130).
This is an important guarantee that contributes to the creation of
statutory guarantees, the limits of possible behavior of subjects in the
protection of violated rights in the courts. Unfortunately, the declared
provisions are complex in their content and forms of implementation, so it
is necessary to improve the administrative and legal provision of access to
justice in general and sectoral manifestations.
Among the proposals aimed at developing the provisions of the analyzed
law, it should be noted, rst, the feasibility of creating legally dened, detailed
requirements for compliance with the requirements of access to justice,
dividing these aspects into the most important groups related to current
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issues of access to justice in general. in industrial aspects – pay attention
to the expediency of special, high requirements to ensure accessibility,
including administrative proceedings, as also in this area there are the
most important human relationships and the state on behalf of government
agencies and review their decisions in court. According to the results of the
study, the content of the rule of law is still not suciently specied both
among the key functional sections of the competence of central executive
bodies and in bylaws, which leaves a large scope of research in both positive
and controversial administrative proceedings.
In particular, in administrative proceedings, all illegal decisions made
on the basis of and within the powers granted by law to executive authorities
and local governments may be appealed. However, in the special laws
governing their activities, the relevant requirements for compliance with
the criteria of the rule of law are still not detailed, so in direct activities,
interaction of executive bodies, local governments with citizens can often
not clearly establish the legal basis for the rule of law. Therefore, the only
eective way to protect violated requirements of the rule of law in positive
administrative proceedings is to appeal to the administrative courts of
Ukraine, and in most cases – outside the national jurisdiction, and appeal
to the European Court of Human Rights due to lack of relevant legislation.
provisions, state-building practices, etc (Leheza et al., 2018).
In our opinion, it is more expedient to analyze domestic legislation not
only by normative assessment, verication of the formula for enshrining the
rule of law in specic legislation, but also by their comprehensive analysis
and relationship with the fundamental provisions of international and
domestic legislation, which gradually implement the relevant requirements
(Leheza et al., 2020).
The development of the rule of law is covered in several well-known
documents of international and regional European organizations -
the United Nations, the European Union, the Council of Europe, the
Organization for Security and Cooperation in Europe and many others,
which reproduce the complex process of developing a global theoretical
and legal approach. formation of unied fundamental principles of national
legal systems (Leschynsky and Leschynsky, 2021).
In the European legal system, based on this principle, the principles
of good governance and the principles of good administration have
been developed. “The principles of good governance are one of the
most important elements of the principle of the rule of law, are in direct
connection with the fundamental principles of public administration. The
diculty of implementing the principles of good governance in Ukraine
is due not only to the terminological and cognitive aspects, but also to a
number of objectively existing factors that hinder this process: high levels of
corruption, resistance to democratic reforms, including administrative and
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Vyacheslav Tylchyk, Olena Riabchenko, Khrystofor Yarmaki, Yurii Riabchenko y Viktor
Leschynsky
Rule of law in the context of judicial reform as a direction of ensuring the accessibility of
administrative proceedings
legal direction within the apparatus of public administration, obsolescence
of views and approaches to management both among civil servants and
among scientists, researchers; biased attitude to the proposed models of
reforms” (Tylchyk and Leschynsky, 2021).
The case law of the European Court of Human Rights is an important
guideline for modern approaches to understanding the rule of law and
its essential elements. Generalization of the practice of interpreting the
content and elements of the principle of the rule of law was carried out in
the scientic works of A. A. Pukhtetska, where it was determined that “as
a result of systematization of decisions of the European Court of Human
Rights, which contain provisions on the rule of law, to the main groups of
decisions, which specify the content of the rule of law (given that in one
case or decision may contain two or more features, essential elements of the
principle of the rule of law in accordance with their understanding, formed
by the case law of the European Court of Human Rights)” (Pukhtetska,
2010).
In particular, the cited study identied the following groups of cases
of the European Court of Human Rights that are important for the
implementation of the rule of law in Ukraine: “1) decisions of the European
Court of Human Rights decisions containing references to the content,
legal signicance of the concept and / or the principle of the rule of law
in the generalized sense; 2) the decision of the European Court of Human
Rights, which contains requirements for the quality of law, including legal
restrictions on the exercise of human rights and freedoms; 3) judgments
of the European Court of Human Rights, which address various aspects of
access to justice and a fair trial, which ensures a special mechanism of the
Convention and compliance with the rule of law; 4) decisions of the European
Court of Human Rights, which establish the limits of discretionary powers
and requirements for limiting the arbitrariness of public authorities in
accordance with the principle of the rule of law; 5) decisions of the European
Court of Human Rights, which contain requirements for eective control
over the exercise of human rights and fundamental freedoms guaranteed
by the Convention, and are related to the implementation of the rule of
law. This list of judgments of the European Court of Human Rights is not
exhaustive but allows us to see the most typical aspects of the application
of the rule of law and to help judges make a decision (Pukhtetska, 2009).
Conclusion
Amendments to the Constitution of Ukraine in the context of judicial
reform have revised the classical principles of the judiciary of Ukraine, but
still remain unresolved important aspects of ensuring full compliance with
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the rule of law, its specication in constitutional provisions and current
legislation of Ukraine substantive and procedural content.
Interpretation of the concept, features, criteria of the rule of law
in Ukrainian legislation is supercial, without proper specication of
components and properties, the interdependence of these requirements
with related concepts of good governance, proper administration, which
are at the heart of modern European legislation and is a guideline for legal
reforms.
In 2005, the content of the rule of law was enshrined in the context
of key requirements in the Code of Administrative Procedure of Ukraine,
however, the proposed approach to the interpretation of its content and
essential features, in our opinion, remains quite limited, does not directly
enshrine such essential elements as: accessibility judicial proceedings,
proper legislation, quality of law, execution of court decisions, eciency
of decision-making, responsibility to private persons of public authorities.
It should be claried that the availability of administrative proceedings
is provided by the requirements of all these generic subsystems of the
principles that determine modern standards of activity in European
countries. In particular, they are combined with the requirements of
appealing administrative decisions of all administrative bodies, as well as,
in fact, the properties of administrative acts dened by law - require appeal
all administrative acts that are contrary to the goals, objectives, competence
of the administrative body, in violation of substantive or procedural law, as
well as in case of fraud, etc.
Thus, the implementation of the requirements of accessibility of
administrative proceedings is an integral part of the system of European
standards of public administration.
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Esta revista fue editada en formato digital y publicada
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