Borysenko M. Organizational and legal bases to ensure unity of law enforcement by courts of Ukraine.

On the basis of the complex analysis the thesis researches organizational and legal basis of the unity of law enforcement by judicial institutions of Ukraine. The thesis defines the unity of judicial enforcement which includes legal interpretation in the administration of justice, exclusiveness of administration of justice, the right to a fair trial and the implementation of the principle ratio decidendi (availability of a legal decision). On this basis the definition of the unity of judicial law enforcement is proved as reached and supported result of equal and correct implementation of legal standards in law enforcement activities of the judicial institutions to ensure everyone the right to a fair trial based on the rule of law. The thesis also singled out preconditions of court unity of law which includes stability of legislation, the introduction of prejudicial inquiry/request, mandatory application of the case-law of the European Court of Human Rights, including the pilot decisions and ordering high specialized courts and the Supreme Court of Ukraine authority to form a single Coordination Center of law enforcement in the judicial system. The thesis supports a position that ensuring the unity of judicial law enforcement is meaningfully different from ensuring the equal application of legislation by court (courts). The latter allows only uniform interpretation of the legislation and is intended to assist the lower levels courts to solve legal disputes without regard to the substantive aspects of enforcement unity. Therefore, the purpose of the unity of judicial law enforcement is different from ensuring the equal application of legislation. The equal means the formally unified consideration and solution of similar legal by the nature disputes. It enables compliance with established practices, including law violating aim of justice. But such approach contradicts with the objective of justice. As the result the formal observance of the law by lower courts while administrating justice regardless of their content does not correspond to the rule of law. The results of the research made it possible to substantiate the need for the introduction of a number of organizational and legal measures in the context of achieving unity of law in Ukraine's judicial system by making changes and amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" and procedural legislation. It is also substantiated the necessity to establish Consultative Senate for advisory conclusions. It will enable the Supreme Court of Ukraine on the basis of exhausting all domestic remedies to apply to the European Court of Human Rights with prejudicial inquiry/request for an advisory opinion on the interpretation and application of the Convention; to strengthen the disciplinary responsibility of judges by such grounds as deliberate neglect of the conclusions set out in the decision of the Supreme Court of Ukraine; to introduce the institution of collective (class action) suit in cases of consumer protection; to strengthen a role of scientific advisory council at the high specialized court on systematizing its legal position; to create law enforcement Senate to coordinate the results of elaboration of legal positions of high specialized court with the Supreme Court of Ukraine.