Andrushchenko O. Yu. Conflict of interest in justice: philosophical and legal study. – Manuscript.
Thesis for the academic degree of Candidate of Legal Sciences in the specialty 12.00.12 – Philosophy of Law. – Khmelnytskyi University of Management and Law named after Leonid Yuzkov under Khmelnytskyi Regional Council, Khmelnytskyi, 2020.
The thesis contains a number of philosophical and legal statements as to the nature and functioning of conflict of interest in justice as a type of social conflicts. It is proved that the scientific intent of the conflict of interests in justice was established only in the twentieth century. The importance of studying the conflict of interests in justice is predetermined by comprehension of global social changes experienced by the Ukrainian society today, mainly the issues of fair administration of justice.
The author systematizes and classifies scientific researches directly or indirectly containing the development of problems of conflict of interests in justice; singles out and analyzes the philosophical and legal papers of domestic legal philosophers in terms of philosophy of justice, as well as papers dedicated to the legal interest. Since the topic of “conflict of interests” and “conflict of interests in justice” is a new one for domestic law, it was necessary to use wide sources of knowledge, researches of foreign scholars and provisions of foreign legislation as well as developments of public organizations.
The thesis describes the author’s methodology for studying conflicts of interest in justice, which is a combination of methodological approaches and a number of scientific methods of cognition. Within this thesis, the author defines among the most significant and effective methodological approaches the following: dialectical, synergetic, hermeneutical, socio-cultural, anthropological, and systemic. Comparative, historical and legal, and formal-dogmatic methods were particularly effective.
It is shown that the concept of “conflict of interests” is a subject of philosophical interest as it implies a combination of subjective desires and aspirations, which are an immanent part of human life. Therefore, understanding the content of the conflict of interests in justice is one of the trends to clarify the specifics of social relations and the ontology of human existence. A correct understanding of the specifics of “conflicts of interest in justice” is intended to contribute to the development of a strategy for conflict prevention and elimination of the consequences of such conflicts.
The considerable attention is also paid to the characterization of the conflict of interests in justice as a type of legal conflict, which in modern conditions is a versatile social and legal phenomenon. Clarifying the nature of a legal conflict is one of the means of a scientific approach affecting the normalization of the legal space and the construction of legal reality.
The study of the phenomenon of conflict of interests in justice from the philosophical and legal view could not be complete without clarifying the definition of such concepts as court, judiciary and justice.
The author pays special attention to the issues of management and leveling the negative effects of conflicts of interest in justice. In particular, the experience of foreign countries can be used as an effective means of preventing further conflicts of interest in justice in Ukraine. In many foreign countries, moral and ethical codes are effective, the rules of which are often derived from regulations governing conflicts of interest, and cover the issues related to part-time work by employees, obtaining various gifts and benefits by them, attitude to political activities, etc.
It is proved that the phenomenon of conflict of interests in justice has a negative connotation in modern Ukraine, since negative consequences for public interests occur not only if the public body keeps on performing its functions in terms of conflict, but as a result of loss of public trust in justice caused by such activity.
According to the author, the most effective tools for preventing further conflicts of interest in justice is a system of preventive measures, the use of which shows serious changes, primarily in the worldview sphere. These measures include: training, consultations, development of instructions and training of public service personnel. This approach allows us to focus not on monitoring and prosecuting for offences in accordance with criminal law, but on establishing and complying with definite standards of conduct, as well as to clearly regulate such areas related to the activities of public officials, such as receiving gifts, part-time work, employment after dismissal, the use of private information, political activities, and so on.
The author argues that the situation of conflict of interest in justice has a moral basis, as it is determined by the moral culture of the judge, from his ability to make appropriate moral, fair decisions that are consistent with the content of justice. The precondition for a conflict of interest situation is internal personal beliefs, needs and interests related to the presence / absence in the judge of a selfish desire to use power in violation of professional ethics. It is the moral requirements for a judge to make a decision that must be perfectly acceptable in relation to a person’s life in society and the judge’s professional activity.
Based on the analyzed definitions of the concept of “conflict of interest”, its features in the field of justice were identified, namely: conflict of interest is a consequence of the contradictions between personal (material and intangible) interests of the judge and the principles of justice, its content; its derivation from social and moral conflicts; three levels of conflict of interest (microgroup, mesogroup, macroenvironment); the real threat of illegal actions by the person who has it; moral basis, which allows to consider it as an internal conflict of the judge, which arises from the conflict between personal interests and the fundamental principles of justice, which in the course of his professional activities may influence the commission or omission of actions, decision-making, generating distrust and condemnation civil society.
Thus, a “conflict of interest” means a person having a private interest in the area in which he or she performs his or her official or representative duties, which may or has affected the objectivity or impartiality of his or her decisions or actions or omissions specified powers. Conflicts of interest in the judiciary may arise directly during the exercise of a judge’s powers and lead to a violation of the principles of independence and impartiality of the judiciary, fair trial, and objectivity in decision- making. It also occurs in the activities of other court employees, who may try to influence the process of consideration of cases by judges, promote or recommend for employment to court their close relatives bypassing the established procedures, providing unjustified benefits, and so on.
It is pointed out that the concept of «conflict of interests», which is widely used in domestic legislation today, is a reaction to the standards of the developed world legal policy and the need to solve applied problems in the sphere of justice. The current legal rules in the domestic legal space are largely the result of the implementation of legal and juridical mechanisms that were formed in other countries under their specific conditions.
The dissertation emphasizes that the concepts of “court”, “justice”, “legislation” and “justice” denote similar phenomena of legal life and, at first glance, may not be differentiated. If the concepts of “court”, “justice”, “justice” are more familiar, more elaborate and more frequently used, the concept of “legislation” should be understood as meaning a special type of justice that is implemented in accordance with applicable law, ie with the letter, and not the spirit of the law. An example of the phenomenon of legislation can be considered the realities of Soviet justice. That is, the phenomena that are denoted by these concepts today are genetically the first in their occurrence, older than the concepts that denote them.
The author analyzes two effective ways to resolve conflicts of interest in justice – independent and forced or external. The first of these ways is possible if the participants of the conflict have a high moral culture and are engaged in civic activities. Independent settlement of a conflict of interest enables a person to avoid the negative consequences of an external (forced) settlement of a conflict of interest. The most common measures of independent settlement of conflicts of interest in justice are: recusal (acceptance of recusal) when considering a certain issue; refusal of a person to participate in taking a certain decision by a collegial body.
As for the second way, it is widely used in the practice of European states and is part of the general anti-corruption policy. The choice of external prevention of conflicts of interest depends on a number of circumstances in each particular case. The most used measures are measures of external settlement of conflict of interests in justice such as: elimination of a person from performing tasks, taking actions, making a decision or participation in the decision in terms of a real or potential conflict of interest; external monitoring of a relevant task performance by a person, taking certain actions or decisions by such a person; restricting access of a person to certain information; review of person’s official duties; the transfer of a person to another position; dismissal of a person, focused to resolve the permanent conflict of interest. The external way to resolve conflicts of interest in justice provides the use of legal sanctions.
Analyzing foreign experience, the dissertation proposes to identify such components of prevention and settlement of conflicts of interest as the presence in the system of public administration of a specialized body for civil service management and regulation of employee behavior; availability of standards of conduct in the civil service (in the form of a code or in another form); the existence of mechanisms of official control, ie a wide range of sanctions used as a measure of responsibility for breach of official duties.
Key words: law, court, judiciaay, justice, social conflict, legal conflict, conflict of interests in justice, current legislation, conflict of interest settlement.
http://old.univer.km.ua/doc/specvr/diss_Andrushchenko.pdf?fbclid=IwAR36zmEdJ04O8wOeJbOjqmts2y-nzpScW7Ffqn5IvvV0YWf4S9gc3LtZv48
