CONSTITUTIONAL AND LEGAL PROVISION FOR THE SUSTAINABILITY OF THE HIGH COUNCIL OF JUSTICE: THE EXPERIENCE OF UKRAINE AND SPAIN

Abstract

The purpose of the article is to study the current issues of the effectiveness of legal support for the formation of the High Council of Justice, in particular, to analyze the institutional powers to appoint members of the High Council of Justice. The author also intends to analyze the preconditions and causes of the justice crisis which occurred in Spain and was caused by the prolonged failure to renew the composition of the judicial governance body and to consider the peculiarities of Spanish national legislation and the legal status of the General Judicial Council.Methods used in the study of this topic: systematic analysis, comparison, methods of logical and structural analysis, which were used to highlight the legal basis for the formation of the General Judicial Council of Spain, outlines the prerequisites and causes of the difficulties that led to the blockade of this body.The article resulted in the formulation of current challenges to the formation of a constitutional body, outlining different approaches to understanding the role of judicial governance bodies in the system of justice, identifying shortcomings and inconsistent features of institutional legal regulation of the process of selection and appointment of candidates for the position of a member of the High Council of Justice. The author highlights the main details of the ECHR judgment “Lorenzo Bragado and Others v. Spain”, which addresses the issue of the long absence of appointments to the General Judicial Council due to the protracted inability to reach a consensus between political parties in the Parliament.Conclusions. In general, the article is devoted to the relevant and important topic of ensuring compliance with the standard of independence of the justice system from external factors, in particular, the constitutional status of the judicial governance body in the justice system. In addition to assessing the legal framework, it is important to understand the functional subjectivity of the judicial governance body: it is a matter of distinguishing between representative and managerial functions, the essence of whichdirectly affects the approach to the institutional composition of the appointment procedure. The issue of whether candidates for the position of a member of the judicial governance body have legitimate expectations regarding the results of the competition and whether there is a dispute about the right to do so deserves special attention, especially given the political nature of the work of the appointing entities. Particular attention should be paid to the possibility of protecting the right to a fair trial for persons participating in the competitive selection process for the position, but not for those already holding it. The untimely renewal of the composition of the judicial governance body leads not only to an encroachment on the objective public interest in observance of the constitutional order, but may also lead to a violation of the subjective rights of individual stakeholders.