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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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-
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Vol. 41, Nº 77 (2023), 714-730
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 17/01/23 Aceptado el 25/03/23
Principle of application of the judge’s
internal beliefs under the conditions
of international rules of evidence and
corruption factors
DOI: https://doi.org/10.46398/cuestpol.4177.47
Olha Bondarenko *
Maryna Utkina **
Petro Malanchuk ***
Volodymyr Pakhomov ****
Volodymyr Sukhonos *****
Abstract
Using an interpretative methodology, the objective of the
research was to analyze the most complex and subjective
principles of justice: the principle of the judge’s internal beliefs at
the time of decision making under a system of democratic checks
and balances. Definitely, the judiciary is an important element in ensuring
the protection of human rights and the legitimacy of the supremacy of
the law. The rusting of the judiciary inevitably leads to the gradation of
basic constitutional provisions on the essence of the rule of law, as well
as fundamental rights and freedoms. The principles of justice play a
fundamental role in the administration of justice. The correct construction
of the given principles is the key to proper and application of the law in
accordance with legal and ethical standards. In this sense, it is concluded
that the internal beliefs of the judge as a person authorized to execute justice,
must be impartial, objective, consistent and independent. At the same time,
the formulation of his “internal beliefs” still allows for subjectivity, since the
criteria for the evaluation of evidence by the Court are described without
detailing or standardizing the requirements of the judicial process.
Keywords: principles of justice; evidence; judge’s internal beliefs;
corruption factors; international rules.
* Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine. ORCID ID:
https://orcid.org/0000-0002-2288-1393
** Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine. ORCID ID:
https://orcid.org/0000-0002-3801-3742
*** Department of Procedure, Sumy National Agrarian University, Ukraine. ORCID ID: https://orcid.
org/0000-0002-4501-708X
**** Department of Administrative, Economic Law and Financial and Economic Security, Sumy State
University, Ukraine. ORCID ID: https://orcid.org/0000-0003-0927-3737
***** Department of Fundamental Jurisprudence and Constitutional Law, Sumy State University, Ukraine.
ORCID ID: https://orcid.org/0000-0002-9058-5182
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Principio de aplicación de las convicciones internas del
juez en las condiciones de las reglas internacionales de la
prueba y de los factores de corrupción
Resumen
Mediante una metodología interpretativa, el objetivo de la investigación
consistió en analizar los principios de justicia más complejos y subjetivos:
el principio de las creencias internas del juez en el momento de la adopción
de la decisión bajo un sistema de pesos y contrapesos democrático.
Definitivamente,el poder judicial es un elemento importante para garantizar
la protección de los derechos humanos y la legitimidad de la supremacía
de la ley. La oxidación del poder judicial conduce inevitablemente a la
gradación de las disposiciones constitucionales básicas sobre la esencia del
Estado de derecho, así como de los derechos y libertades fundamentales.
Los principios de justicia juegan un papel fundamental en la administración
de justicia. La construcción correcta de los principios dados es la clave para
una adecuada y aplicación de la ley de acuerdo con las normas legales y
éticas. En este sentido, se concluye que las creencias internas del juez
como persona autorizada para ejecutar justicia, deben ser imparciales,
objetivas, coherentes e independientes. Al mismo tiempo, la formulación
de sus “creencias internas” sigue permitiendo la subjetividad, ya que los
criterios de evaluación de las pruebas por parte del Tribunal se describen
sin detallar ni estandarizar los requisitos del proceso judicial.
Palabras clave: principios de justicia; prueba; creencias internas del
juez; factores de corrupción; reglas internacionales
Introduction
Upon condition check and balance system is valid, the judiciary is
essential in ensuring the protection of human and civil rights, legitimacy,
and the supremacy of law. The primary function of the courts is even-handed
enforcement of the law to many disputes. This function is closely connected
to the stability and legitimacy of judicial power and the constitutional
system (Hedling, 2011).
Law enforcement, criminal investigation and prosecution are essential
components of an approach guided by the ideals of the supremacy of
law (Sanjay, Mishra, 2020). When the judicial authorities order equitable
decisions, those decisions establish an insightful precedent for the future
settlement of disputes between individuals or between the state and
individuals. On this basis, the at-trial procedure ensures effective law
enforcement and protection of the rights of individuals and groups and sets
the standard for further equitable law enforcement.
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Olha Bondarenko, Maryna Utkina, Petro Malanchuk, Volodymyr Pakhomov y Volodymyr Sukhonos
Principle of application of the judge’s internal beliefs under the conditions of international rules
of evidence and corruption factors
Consequently, human rights are effectively protected in the
courts (Fahed, 2002). It is worth pointing out that the rust of judicial
power inevitably leads to the grading of the introductory constitutional
provisions on the essence of our state. Namely, Art. 1 of the Constitution
of Ukraine proclaims Ukraine a sovereign and independent, democratic,
social, and legal state, as well as fundamental rights and freedoms of man
and citizen. For example, all people are free and equal in their dignity and
rights, human rights and freedoms are inalienable and inviolable (Art. 21 of
the Constitution of Ukraine), and citizens have equal constitutional rights
and freedoms and are equal before the law.
Furthermore, there shall be no privileges or restrictions based on
race, the colour of skin, political, religious, and other beliefs, sex, ethnic
and social origin, property status, place of residence, linguistic or other
characteristics (Art. 24 of the Constitution of Ukraine) (Constitution of
Ukraine, 1996).
The principles of justice play a vital role in the administration of justice.
These are the fundamental guiding ideas and regulations that every judge
should follow in administering justice. Most of these principles are outlined
in international conventions, the Constitution of Ukraine and other
normative documents. At the same time, detailed and clear explanations
of the principles of justice, unfortunately, are only provided for some of
them. Incredibly ambiguous is the principle of the judge’s inner beliefs on
the legal content of which, the peculiarities of implementation in Ukraine
and the factors that may level it, the authors propose to focus on.
1. Results and Discussion
1.1. Principle of Judge’s Inner Beliefs in Accordance with
International Standards of Proof
Rendering the decision by a judge based on one’s own beliefs is critically
essential. The judge’s inner beliefs are not an unconscious impression, a
feeling that cannot be controlled, but confidence in the correctness of his
conclusions, which form the basis of the cognition. Inner beliefs are an
element of mental activity for the study and evaluation of evidence and
express the actual situation of the legal relationship established in the
case. The judge’s inner beliefs are a subjective part of his activity, which is
described in the objectively adopted decisions when the Court investigates
the circumstances of the case. Consequently, a judge cannot incur liability
for their in a case, but only an issue lawful, ex delicto option in the
administration of the law of evidence (Marchak, 2013).
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On the other hand, according to Chinn Stuart, the judge’s inner beliefs
cannot be absolute because a certain degree of impartiality is inevitable
in the judicial role; judicial impartiality is best understood as a sign of
consistent, fair interaction with the claims and interests of those outside
social groups (Chinn, 2020). Such an ambiguous perception and attitude to
this principle of justice necessitates its detailed analysis.
1.2. Legislative Consolidation of the Principle of Judge’s Inner
Beliefs
In Ukrainian law, the principle of decision rendering based on one’s
beliefs is not enshrined at the constitutional level or even in the relevant
law “On the Judiciary and the Status of Judges”. Instead, for unknown
reasons, it is duplicated in all procedural codes. Identical interpretations of
this principle are contained in Part 1 of Art. 86 of the Code of Commercial
Procedure of Ukraine, Part 1 of Art. 89 of the Civil Procedure Code
of Ukraine, and Part 1 of Art. 90 of the Code of Administrative Judicial
Procedure of Ukraine.
According to these articles, the essence of decision rendering based on
one’s own beliefs is revealed as the need for the Court to weigh the evidence
according to its inner beliefs based on a comprehensive, complete, objective,
and direct examination of the evidence in the case. A more detailed
explanation is contained in Part 1 of Art. 94 of the Criminal Procedure Code
of Ukraine because it interprets the judge’s decision based on his own beliefs,
as an assessment of the evidence based on a comprehensive, complete and
impartial examination of all circumstances of criminal proceedings, guided
by law, evaluate each piece of evidence in terms of relevance, admissibility,
reliability, and the set of evidence collected - in terms of sufficienc and
relationship for the relevant procedural decision (Criminal Procedure Code
of Ukraine, 2013).
Unfortunately, the legislator, disclosing the essence of a judge’s decision
based on his own beliefs, does not disclose the procedure for considering
and agreeing on the inner beliefs of several judges in the case of legal
investigation collegially. Therefore, the place of this principle in the process
of knowing the truth is unclear.
In our opinion, it is inadvisable and illegal to evener this principle
during the legal investigation by the panel of judges. At the same time, it
raises the question as to whether judges should reach four all founders in
their inner beliefs. That is why there is a need to provide a generalisation or
ruling of the Supreme Court of Ukraine. The absence of these documents
necessitates recourse to scientific doctrine
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Olha Bondarenko, Maryna Utkina, Petro Malanchuk, Volodymyr Pakhomov y Volodymyr Sukhonos
Principle of application of the judge’s internal beliefs under the conditions of international rules
of evidence and corruption factors
1.3. Doctrinal interpretation of the inner beliefs as to the
evidence and the circumstances they support
Regarding the scientific interpretation of the principle of rendering
a decision by a judge based on their own beliefs, scholars are primarily
unanimous about the legal content of this principle but choose relatively
different forms of presentation of its conceptual and categorical essence.
For example, V. Marchak believes that forming a judge’s inner beliefs
relates to eliminating doubts that arise during the legal investigation.
The judge’s inner beliefs are influenced by all the evidentiary information
that is examined following the general rules of the at-trial procedure –
directly, orally and continuously, chaired by the presiding judge and with
equal rights of the participants in the process. In the psychological aspect,
it is essential to form the judge’s inner beliefs and the growth of doubt
(because of probable knowledge) in the judge’s beliefs (Marchak, 2013).
Yu. Groshevoy believes that a judge’s inner beliefs are a conscious need
of a judge, his use of his thoughts, views and knowledge. It is related to
the legal consciousness of the judge, a form of social consciousness that
combines a system of opinions, ideas, perceptions, theories, feelings,
emotions, and experiences.
They characterise the perception of people and social groups (including
through actual behaviour) of the existing and desired legal system. In
the structure of legal consciousness, there are worldviews (views, ideas,
theories), psychological (feelings, emotions, experiences) and behavioural
(lawful behaviour, behaviour, etc.), which characterise the actual human
reaction to the functioning of elements of the legal system. its development)
parties (Groshevoy, 1975).
According to A. Belkin, although the category of inner beliefs is
subjective, it has objective principles that constitute a system that contains
such elements as professional qualities, facts, characteristics and properties
of objects to be studied by the judge; the circumstances of the case, which
indicate the origin and real conditions of existed actual of the objects
to be studied; things process of research, its conditions, intermediate
requirements results, their evaluation in terms of completeness, logical
and scientific validity, reliability as exceptionally possible in specific
conditions (Belkin, 1969).
Analysis of the positions of scientists allows us to conclude that the
category of inner beliefs is subjective and depends on the characteristics of
education, worldview, and life experience if it can be read out objectively
and independently. At the same time, this can be deformed by the influence
of external factors. Can be circumstances, it is impossible to hope for a
complete coincidence of judges’ beliefs, and therefore the inner beliefs are
essentially even erred and transformed into consensus and coherence.
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1.4. Judges’ opinions of the dierent legal systems on the
essence of decision rendering based on inner beliefs
According to a judge of the Supreme Court of Canada, McDowell (F.H. v.
Mcdouga, 2008), in a situation where the evidence is on the verge of sailing
close to the wind, there are no clear rules as to when a judge may have
an inner belief as to the incorrectness or inadmissibility of the evidence.
Therefore, the judge hearing the case should consider the evidence in
collaboration with the simultaneous assessment of any doubts about their
reliability and credibility. The position of the judge of the Constitutional
Court of Ukraine, N. Shaptala, is of particular interest.
The judge is a bet that the formation of the judge’s inner beliefs in the
constitutional proceedings is influenced by objective (to establish the facts
established in Court) and subjective (traits of character, consciousness,
professionalism, legal awareness, justice of each judge) factors. Therefore,
the inner beliefs of one individual judge from all eighteen judges of
the Constitutional Court of Ukraine cannot be a standard of objective
truth (Shaptala, 2019).
1.5. Explanation of inner beliefs concerning case law
The desire to find the essence of the principle of the judge’s inner beliefs,
caused by its inadequacy and imperfection of legislative presentation,
necessitates recourse to case law. Since 2006, the phrase “The court
has critically weighed the evidence” has been increasingly used in court
decisions of Ukrainian judges. At the same time, no explanation is given as
to why the Court rejected or assessed the evidence.
The task of the Court is to establish whether the fact took place.
Establishing the presence or absence of points, the Court must motivate
its actions and consider that following Art. 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms; everyone has
the right to a fair trial, including an independent and unbiased court.
According to legal procedure, everyone charged with a criminal offence
shall be presumed innocent until proven guilty (European Convention on
Human Rights, 1950).
Therefore, the Court cannot assume that a particular circumstance has
been proved. The fact either happened or it did not exist. If the Court still
has doubts, the rules on the distribution of the burden of proof should be
applied. If the party on whom the obligation is imposed does not fulfil it, the
fact is unproven, and vice versa (Tomarov, 2019).
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Olha Bondarenko, Maryna Utkina, Petro Malanchuk, Volodymyr Pakhomov y Volodymyr Sukhonos
Principle of application of the judge’s internal beliefs under the conditions of international rules
of evidence and corruption factors
2. The concept of the standard of proof: compliance by courts
with standards of human rights and justice
In terms of proof, it is vital to maintain a certain standard. The category
of the standard of proof has only relatively recently begun to be applied in
the domestic doctrine of procedural law and case law. The term standard
of proof denotes the level of probability to which a circumstance must be
proved by evidence to be considered valid derives from the doctrine of
standard law legal systems, from which it was borrowed from the theory
and practice of proof (Pilkov, 2016).
At the same time, until recently, this category was often opposed to the
principle of the Court’s assessment of the evidence based on inner beliefs
and was even criticised as an attempt to establish an artificial framework
for applying this principle. It can now be argued that the debate over
whether the category of the standard of proof is artificial, uncharacteristic
of Ukrainian procedural branches of law, and even devoid of practical
significance has gradually lost its relevanc (Pilkov, 2019).
2.1. Standard of proof in civil and commercial disputes: the
practice of customary and continental law states
Common law countries use the term “standard of proof”, which
intrinsically allows uncertainty in establishing the facts. This notion
emphasises that to recognise facts as proven, one does not need to be one
hundred per cent convinced of a particular fact.
The standard of proof is the degree of credibility of the evidence provided
by a party. The Court must recognise the burden of proof removed and the
factual circumstance - proven. It is an issue of a sufficien level of admissible
doubt at which the burden of proof is considered fulfilled
British courts use the standard of a balance of probabilities in civil cases:
it must be proved that the fact was rather than not; subjective confidence
can be measured as 51% or higher.
The balance of probabilities is estimated in absolute terms, so in a
situation where the evidence is estimated as 50*50 (plaintiff/defendant),
the dispute wins for the defendant (Rhesa Shipping Co SA v Edmonds 1,
1985).
A score of decisions can be found in the case law of the European Court
of Human Rights, where the Court refers to the “balance of probabilities” to
weigh the evidence of the case. For example, in the decision of Benderskiy v.
Ukraine on November 15, 2007, the Court applied a “balance of probability”.
The decision of J.K. and others v. Sweden on July 23, 2016, of the
European Court of Human Rights notes that this standard is inherent in civil
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cases (Tomarov, 2019). Regarding the resort to this concept in domestic law
enforcement, the authors would like to note the decision of the Supreme
Court of Ukraine on June 14, 2017, in case № 923/2075/15, where the
latter criticised the Court of Appeal for refusing to recover lucrum cessans
on the sole grounds that its size cannot be established with a reasonable
degree of credibility.
Thus, the fact of proof occurs in the case when, after analysing all the
evidence and circumstances, the judge, based on inner beliefs, is inclined
to believe that the fact instead took place. Although, in our opinion, the
very possibility of the existence of “probability” in the process of judicial
evidence is unacceptable. After all, any doubts must be interpreted in favour
of the person, but the opposite happens.
2.2. Beyond a reasonable doubt - for the criminal process: the
practice of the European Court of Human Rights
There is another known standard of proof – beyond a reasonable doubt.
Mention of him can be found in several European Court of Human Rights
decisions. Thus, judge Bonello, in his personal opinion on the case Sevtap
Veznedaroğlu v. Turkey, pointed out that: “Proof beyond a reasonable
doubt” reflects the maximum standard relevant to the issues to be addressed
in the determination of criminal liability. No one shall be deprived of his
freedom or subjected to any other punishment by a court decision unless
the guilt of such person has been proved “beyond a reasonable doubt”.
In spades, the authors consider the rigidity of this standard to be
justified. However, in other areas of legal regulation, the standard of proof
must be proportionate to the aim pursued: it must have the highest degree
of certainty in criminal cases and a working degree of probability. In
considering opposing versions of events, the Court is obliged to establish:
1) to whom the law places the burden of proof, 2) whether the statutory
assumptions are in favour of one of the parties, and 3) the “balance of
probabilities”, which in the presence of versions contrary to the statements
of the opposing party, seems more acceptable and credible. In our view, the
standard of proof “beyond a reasonable doubt” is incorrectly applied in the
“civil” proceedings in the cases before the Court.
As far as the authors know, the Court is the only Court in Europe that
requires evidence “beyond a reasonable doubt” in non-criminal cases (Rhesa
shipping company v. Edmunds, 1985). For example, in Kobets v. Ukraine,
the Court reiterates that, per its case law, it is guided by the reference point
of proof “beyond a reasonable doubt” (Avshar v. Turkey). Such proof should
follow from a set of signs or irrefutable presumptions, sufficientl weighty,
clear, and consistent with each other (Sevtap Veznedaroğlu v. Turkey,
2000).
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Principle of application of the judge’s internal beliefs under the conditions of international rules
of evidence and corruption factors
The European Court of Human Rights subsequently recognised that
this standard should indeed be higher in criminal cases than in civil cases (§
38 of the judgment on February 11, 2003, in Ringvold v. Norway, Kobets v.
Ukraine, 2008). It could be said that from this position, it logically follows
that in civil (commercial) cases, the standard of proof should be lower than
in criminal ones.
The authors hope that, based on the ruling of the European Court of
Human Rights, the Supreme Court of Ukraine will also lift the veil of secrecy
over the words “inner beliefs” and explain that the standard “balance of
probabilities” (or “reasonable degree of reliability”) should be applied
in civil and commercial matters. Instead, it is essential to use a higher
standard “beyond a reasonable doubt” in criminal proceedings. Perhaps the
most acute is the unjustifiably high standard of proof of damages in civil
and commercial cases (Tomarov, 2019).
3. Factors that may aect the judge’s inner beliefs and measures
to eliminate them: an example of Ukraine as one of the former
states of the Soviet Union
The authors are convinced that no matter what standard of proof a judge
is guided by, adherence to the principle of inner beliefs must be mandatory.
At the same time, unfortunately, Ukraine’s judicial system is exceptionally
corruption-ridden. The problem of corruption in the judiciary is a typical
phenomenon in developing countries.
For them, such corruption is more damaging than any other, as even
the presumption of corruption in the judiciary raises broad doubts about
the success of anti-corruption activities and the effectiv ness of judicial
remedies (Moskvich, 2015). Currently, the influence of the judge is perceived
as an everyday phenomenon. For example, the escalation of distrust in the
judiciary in 2020 was caused by the Constitutional Court of Ukraine, which
effectively dismantled an essential element of Ukraine’s anti-corruption
infrastructure. He provided that those who supplied false information in
the declarations of a person authorised to perform state and local self-
government functions would no longer be subject to criminal liability.
The Court stripped the National Agency for the Prevention of Corruption
of almost all powers and removed the system of property declarations from
public control. These steps were against the law. The decision was not
justified. The Court exceeded the scope of the constitutional submission
and even repealed some anti-corruption norms, which it did not ask to
consider (Zhernakov, 2020).
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The possibility of such situations is due to several factors that adversely
affect the Court’s impartiality, independence, and impartiality. Therefore
the decision-making process is not based on the inner conviction of the
judge but under the influence of corruption factors
4. Corruption during the selection process of judges
Today, although the process is formally complex and overly bureaucratic,
consisting of fifteen stages, it still leaves options for corruption. It is as if
the central place is given to the High Judicial Qualifications Commission
of Ukraine, then the High Judicial Council, which considers the
recommendations and directly analyses the candidate’s identity, and the
President of Ukraine benches for the first time. The possibility of tampering
with the High Judicial Qualifications Commission of Ukraine and the High
Judicial Council is significant
In addition, the reforms of these institutions need to be improved.
Analysis of the Transparency International recommendation for Ukraine
testifies to a downward course of annual non-fulfilment of one condition
– forming an independent and professional judicial power. According to
Transparency International experts, this recommendation is an extremely
high priority. In addition, no changes have occurred over the years of
judicial reform. During 2019, the President and the Verkhovna Rada
of Ukraine tried several times to initiate a painful change process. Even
though people’s deputies adopted the first law of the President in 2019, the
Constitutional Court of Ukraine declared the main provisions of this law
unconstitutional.
The next attempt to implement the reform was also initiated by the
President of Ukraine through bill draft No. 3711 on Amendments to the
Law of Ukraine, “On the Judiciary and the Status of Judges” and some laws
of Ukraine on the activities of the Supreme Court and judicial authorities.
However, it has been criticised by the Venice Commission and the expert
community and is awaiting a conclusion and a second reading.
The virtuous composition of the High Judicial Council, elected with the
participation of the international community and public experts, remains a
valid requirement of the International Monetary Fund, a recommendation
of the Venice Commission and the public. However, this did not affect the
steps to restart this body. The composition of the High Judicial Qualifications
Commission of Ukraine is also awaiting renewal. Still, it is unknown
when such reformatting will finally occur and whether the experience
of independent competition procedures will be considered (Corruption
Perceptions Index, 2020).
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Principle of application of the judge’s internal beliefs under the conditions of international rules
of evidence and corruption factors
In general, the critical issues in judicial reform are:
1. low trust in the judicial power mainly due to corruption, dishonesty
of many judges, dependence and patronage;
2. inefficienc of activity and even boycott of reforms by the High
Judicial Council;
3. failure to restart the High Judicial Council and the High Judicial
Qualifications Commission of Ukraine to clean up and renew the
judicial power;
4. chaos in the restructuring of local and appellate courts, filling
positions not through competitions but by transferring current
judges to new courts;
5. poor access to justice due to a shortage of staff in the courts, a heavy
workload on judges and delays in the trial;
6. lack of motivation and orientation of judges to meet the needs of
parties that are users of justice services;
7. weak development of electronic services and digital Court;
8. lack of proper jury instruction;
9. the lack of procedural consolidation of the procedure for
implementing the principles of justice and their detailed normative
interpretation (Successful judicial reform is impossible without the
involvement of all stakeholders – politicians and experts, 2020).
All these conditions necessitate a change in Ukraine’s approach
to forming judicial power. Three main judicial selection models are
currently used: assignment, by-election and so-called “hybrid” selection
systems. (Berkson, 1980). All plans require a high level of legal culture,
objectivity and impartiality. At the same time, when selecting the judge, he
must have unquestionable authority and trust among the population.
In addition, tampering when making a selection is also complicated.
Citizens tend to be guided not only by the candidate’s professional qualities
but also to consider his personality. At the same time, such guidelines
can allow the sending of fairer but less professional candidates. In these
circumstances, it only makes sense that judges are motivated to collect dues
and seek voters’ approval. While such steps may seem harmless, they can
lead to campaigns and interest groups involved in dirty cases and sometimes
teach a judge to make decisions based on political beliefs (Odland, 2016).
If the authors talk about Ukrainian society, the legal consciousness of
citizens is just beginning to take shape, so it is too early to talk about their
readiness to elect the judiciary. That is why it is now advisable to adhere
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to the existing system of assignment of judges, improving it through
mandatory interviews with candidates.
It is appropriate to involve representatives of public anti-corruption
organisations in this interview, which can provide comprehensive financial
monitoring of the applicants’ lifestyle and check their social networks for
illegal enrichment or hidden wealth. In addition, it is essential to conduct a
polygraph examination to prevent persons prone to committing corruption
offences from accessing judicial powe (Kulish et al., 2020).
5. Corrupt inuence on judges
The second probable corruption factor that can level decisions based on
inner beliefs is the possibility of influencing judges. Ensuring the complete
independence of the judiciary in the format that exists in most European
countries is quite problematic. In the absence of state regulation of this
problem, full integration of Ukraine into European national structures,
especially accession to the EU, is impossible (Grinyuk, 2004). Judicial
corruption is specific because, in the case of receiving an illegal benefit in
exchange for the use of his powers, the judge makes a decision or sentence
on behalf of the state.
Hence, the rule of law covers the corruptor. Another feature of corruption
in judicial power is its latent nature. The situation is practically excluded
when the judge personally hints at the need to offer him some illegal
benefit, and even more so, personally receives it from the person directly
interested. Another feature of judicial corruption is its corporatism, which
can be explained by the absence of criminal cases initiated on corruption in
the courts (Gladiy, 2014).
Illegal corruption influence can be both external and administrative.
External influence is the influence of some politicians, government officials
businesses and criminal elements to obtain the desired outcome of the
case. Thus the judge can be interested in such corrupt relations, and on
the contrary. At the same time, fear for one’s work, and in some cases for
one’s safety and the safety of one’s relatives, encourages corruption. The
subject of such corrupt practices does not always have the form of money or
property. After all, the essence of corruption is much broader and therefore
includes other so-called soft forms of corruption.
In particular, the indicators of non-political ties in the judicial power
indicate their transformation into family businesses (Matsievsky and
Matsievsky, 2014). Patronage is support, encouragement, privileges, and
the possibility of financial incentives provided by a person or organisation.
Patronage is manifested in the misuse of state resources to promote the
interests of a particular individual or collective actors (Babkina, 2011).
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Olha Bondarenko, Maryna Utkina, Petro Malanchuk, Volodymyr Pakhomov y Volodymyr Sukhonos
Principle of application of the judge’s internal beliefs under the conditions of international rules
of evidence and corruption factors
Counteraction to such corruption factors is possible by:
1. ensuring the unity of judicial practice by the more active and
detailed implementation of generalisations of judicial approach and
decisions of the plenum of the Supreme Court of Ukraine;
2. strengthening public control by creating specialised public
organisations that will specialise in disclosing corruption risks in
the judiciary;
3. equipping courtrooms with video cameras and microphones capable
of recording the behaviour of all present.
As for the administrative pressure on a judge, which distorts the inner
conviction, it is manifested in undue pressure from the chairman of the
Court or influential groups within the judicial system. For example, in 2020,
the National Anti-Corruption Bureau of Ukraine released cassettes allegedly
recorded in the offic of the head of the Kyiv District Administrative Court,
P. Vovk.
These records seem to capture P. Vovk and other judges who plan to
influence different courts and judicial authorities while boasting that they
“own two courts - the district and the constitutional”. Despite public outcry
and further criminal investigation, the High Judicial Council unanimously
refused to remove these judges. The people involved in the case (Zhernakov,
2020) constantly delay the pre-trial investigation of these acts. To eliminate
this corruption factor, it is essential to:
1) ensure the unity of judicial practice through the more active and
detailed implementation of generalisations of judicial practice and
resolutions of the plenum of the Supreme Court of Ukraine;
2) provide appropriate funding for the independent operation of the
judiciary;
3) expand guarantees of support for the independence of judges and take
measures to prevent actual dependence of judges on higher courts.
6. Lack of an eective mechanism for bringing a judge to
responsibility
Another negative factor that allows judges to make decisions during the
distortion of inner beliefs is the lack of an effective mechanism for bringing
a judge to justice. One of the elements of a judge’s punishment for the
administration of justice is that judges, due to their special status, belong to
specific subjects of criminal responsibility. In particular, a separate Law of
Ukraine, “On the Judiciary and the Status of Judges determines their legal
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nature. Only those persons who comply with the legislation requirements
are admitted to the position of a judge; most of the measures to ensure
criminal proceedings cannot be applied to them.
At the same time, there are certain peculiarities characteristic of criminal
cases in which judges are suspects. Criminal and ethical offences related to
violating the principle of the judge’s independent beliefs negatively affect
the image of the judicial power, reduce public confidence in the judiciary,
and create public distrust in the ability to protect violated rights by a fair,
independent and fair court. That is why, in our opinion, it is necessary to
abolish the inviolability of the judiciary as an archaism, an attribute of
the privileged status of judges, compared to other citizens, and hence the
distorted application of Art. 21 of the Constitution of Ukraine, which insists
on the equality of all citizens.
Conclusions
Summarising the above, the authors emphasise that the judge’s inner
beliefs as a person authorised to execute justice must be impartial, objective,
fair and independent. At the same time, the formulation of “internal beliefs”
still allows for subjectivity, as the criteria for evaluating evidence by the
Court are described without detailing and standardised requirements for
such a process.
Moreover, it has been established that inner beliefs depend on the type of
proceedings and the standard of proof. It was found that especially harmful
factors that can affect the process of evaluating evidence by a judge and
distort his inner beliefs include corruption factors: the imperfection of the
process of selection for the position of a judge, illegal corruption influence
on a judge (internal and external) and the lack of an effective mechanism
for bringing a judge to justice. These factors can distort a judge’s inner
beliefs (legal and ethical guidelines). Emphasis is placed on the need to take
narrowly oriented measures to eliminate these corruption factors.
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