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48 Wschodnioeuropejskie Czasopismo Naukowe (East European Scientific Journal)^ 3(31), 2018 йаай
ЮРИДИЧЕСКИЕ НАУКИ
Verlos N.V.
Candidate of Juridical Sciences, docent Department of Constitutional and Labor Law Zaporizhzhya National University
RECEPTION OF THE E-DEMOCRACY INSTITUTE IN UKRAINE IN THE MODERN CONDITIONS
OF CONSTITUTIONAL REFORMATION
Abstract: Actual problems of reception of the European standards of electronic democracy in the context of active process of constitutional and legal reformation in this direction are investigated in the article.
In the course of research it was determined that theoretical-methodological and conceptual principles of transformation processes that overcame Ukraine lately force to look at the construction of the modern state system through the prism of necessity of further development and qualitatively renewed understanding foremost institutes of direct democracy by the reception of the European standards of е-democracy.
Key words: e-democracy, e-parliament, e-legislation, e-mediation, e-elections, e-referendum, e-initiative, epetition.
Formulation of the problem. Prompt rates of scientific and technical progress in all spheres of activity of society cannot but influence on practice of the state building both in Ukraine, and in the world. Increase and wide use of information and communicative technologies by all segments of the population is a global tendency of world development today.
Recently in the world technological prerequisites for modernization of institute of popular sovereignty are created by introduction of qualitatively updated democratic procedures.
Of course, the constitutional right cannot but react the mentioned processes appropriately, "constitutionality" as a legal phenomenon exists in the integral unity with the legal nature of modern democracy. Really, the democracy, in its modern understanding, demands constitutional and legal reforming with simultaneous introduction of more elastic forms of identification of citizens. But for this purpose it is necessary to create the corresponding standard basis of active socio-political interaction between citizens and institutes of the public power.
The proclaimed course of foreign policy towards European integration with orientation towards fundamental democratic values of the European culture forces to increase attention to necessity of formation of the constitutional legislation in this direction. And therefore the reception of e-democracy in the course of constitutional and legal modernization can become the irreplaceable tool in formation of Ukraine as the democratic, independent, social, constitutional state. That's why the chosen theme in modern conditions of formation of the state of Ukraine is rather actual and demands thorough research.
Analysis of recent research and publications. The general theoretical concepts of e-democracy were considered in the writings of foreign scholars, namely 3. Brzezinski, D. Bell, R. Katz, M. Castells, J. Masuda, F. Mahlupa, M. Porata, T. Stounier, E. Toffler and others. Among the domestic scientists, the problem of e-democracy was explored in the works of Semenchenko, K. Voznyuk, N. Dragomyretska, O. Zagayetska, O. Zagvoyskaya, T. Kaminska, A. Kaminska, V.
Klyutsevsky, K. Linov, I. Lopushinsky, M. Mikhalova , Y. Oliynyk, N. Pavlyutenko, M. Pasichnyk, A. Se-menov, K. Sinitsky, A. Shalimov, O. Dubas, P. Klymushin, A. Serenok and others.
The purpose of this article. The purpose of this article is to study the actual problems of the reception of European standards of electronic democracy in the context of the active process of constitutional and legal reform in this direction.
Basic research materials. The terms "electronic democracy", "network democracy", "cyberdemoc-racy", "virtual democracy", "web democracy", "computer democracy", "digital democracy", etc. begin to take root and to be used actively at the end of the XX century, especially in the countries with the developed information and communicative technologies. Of course, with gradual introduction of information and communicative technologies to all spheres of public activity management processes, document exchange in bodies of the public power arise and become simpler, the dialogue between the power and civil society develops in the online mode. Therefore with development of electronic democracy the public power has an opportunity to react more actively to needs of citizens, and citizens, in turn to take part in management of the public and local affairs.
In 2006 the Council of Europe creates the special Committee on electronic democracy (CAHDE) which plays a role of the intergovernmental working group which members are representatives of 47 countries of the Council of Europe, other international organizations, in particular the CE, OSCE or the UNO, and also committees of the Council of Europe.
In 2009 the Committee of Ministers of the Council of Europe Recommendation was accepted CM / Rec (2009) 1 for member countries of the Council of Europe on electronic democracy in which, besides the rest, the strengthening of democracy, democratic institutes and processes is offered; to consider and to introduce electronic democracy by means of ICT [1].
In the Council of Europe Recommendation the following sectors (directions) of e-democracy signifi-
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cantly extended and defined: 1) e-parliament, 2) e-leg-islation, 3) e-justice, 4) e-mediation (pre-judicial solution of disputes), 5) e-environment (ecology), 6) e-elec-tions, 7) e-referendum, 8) e-initiatives, 9) e-voting, 10) e-consultations, 11) e-petitions, 12) e-election propaganda, 13) e-polls.
The reception of model of electronic democracy modeled in these recommendations and its active implementation in the Ukrainian legislation really is the perspective direction of development of our state, but it should be considered that it is necessary to introduce gradually separate instruments of e-democracy extremely deliberately and moderately not to cause the emergence of such negative legal phenomena as "a legal deculturation", "legal annihilation" and "a legal mutation". Because thoughtless copying of rules of law of foreign countries without features of mentality, traditions, culture (including legal) can lead to the absolutely opposite result.
Reception of the European standards of e-democ-racy by Ukraine already happens and gradually separate elements are implemented in the national legal system. So, national scientists, in particular Solovyov S.H. and Danilenko V.H. [2, p.10, 11] suggest to divide the process of formation of e-democracy in Ukraine into several stages:
I stage (2000-2001) It is offered to define as preparatory, formation of the most general aspects of use of modern ICT, formation of necessary basis for further actions of the state in general.
II stage (2002-2003) Directly connected with formation of mechanisms of the electronic government in Ukraine which was directed to increase clearness of activity of public and local authorities, to improve knowledge of citizens of activity of these bodies and to activize feedback between the power and society by means of the Internet.
It is conditionally possible to reckon this stage from the Resolution of Cabinet of Ministers of Ukraine "About a publication order in the Internet of information on activity of regulatory authorities" (of January 4, 2002 3-2002p) by which it is approved "A publication order on the Internet of information on activity of the executive authority"
III stage began in 2003 with adoption of the Resolution of Cabinet of Ministers of Ukraine "About actions for creation of electronic information system "electronic government" (of February 24, 2003 No. 208) and lasts till now.
Owing to the mentioned and other actions it is possible to note today that in Ukraine each public authority has the official website on which information on activity is posted, Laws and other regulations are published, and also the bills, most important for the state, are discussed. Interregional online conferences on questions of the state construction are held.
The normative definition of e-democracy is fixed in Strategy of development of information society in Ukraine 2013. According to this strategy, the electronic democracy is understood as a form of the public relations at which citizens and the organizations are in-
volved in creation of the state and public administration, and also in local self-government by wide use of information and communicative technologies [3].
So, we will try to consider separate institutes of e-democracy which are recommended by the Council of Europe and to define problems which arise on the way of their reception by domestic legal system.
As it is noted in recommendations, e-parliament is the use of ICT by meeting of representatives that is parliament, parliamentarians, administrative personnel for execution of the tasks, especially for the purpose of an active involvement of citizens. The electronic parliament treats with general, consultative and discuss meetings at the international, state, regional and local levels. Reception of this form of e-democracy means attraction of large amount of interested parties: members of parliament, administrative personnel, voters, citizens, mass media. E-parliament uses also the other sectors of e-democracy: e-legislation, e-voting, e-petitions, e-consultations. Besides it can offer the best knowledge and advanced implementation of communication with participants, employees, and also contact with the public, than actually transparency of the public power will be provided.
E-legislation is rather faithful to the sector of e-parliament. It is the use of ICT for commenting, discussions, drawing up, a structuring, formatting, sending, correction, voting and publication of laws which were adopted by parliament. The electronic legislation does legislative procedures more transparent, improves its contents, provides access and by that improves knowledge of laws among citizens.
In Ukraine for providing these forms of e-democ-racy (e-parliament and the e-legislation) there is an official site of the Verkhovna Rada, site of the parliament of Ukraine on which all taking place events, legislative and lawmaking activity, results of voting, activity of deputy corps and another are published. The official site has been designed since 1994, but actively functions since 2008 though the Regulation "About the Website of the Verkhovna Rada of Ukraine on the Global net Internet" was approved in May, 2001. Today the organization of activity of the website occurs on the basis of the Order of the Head of VRU "About web resources of the Verkhovna Rada of Ukraine" of May 19, 2015 [4]. Therefore existence of the official site of parliament is a necessary component of e-democracy because it provides transparency of legislative activity of the Verkhovna Rada of Ukraine, public discussion of bills and in general simplifies the access to legislative base for citizens.
The following form of e-democracy is e-justice. It is the use of ICT in justice realization by all interested persons in the legal sphere for the purpose of increase of efficiency and quality of judicial services. It includes electronic communication and data exchange, and also access to the information of judicial character.
Ukraine rather effectively adopted the institute of e-justice. So, according to the Law of Ukraine "About access to judgments" of 22.12.2005 [5] electronic service is put, that is the Unified state register of judgments which is the automated system of collecting, storage, protection, the account, search and providing
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electronic copies of judgments to which openness of activity of the courts of the general jurisdiction, the forecast of judgments and assistance in identical application of the legislation is provided.
Gradually there is a reception of institute of an electronic form of the address and petition which exists, for example, in the government of Great Britain (where the e-petition can be sent directly to the prime minister) or in parliament of Scotland (where the developed and introduced operating system allows to initiate officially addresses of citizens, to collect signatures and to send them to Parliament online), which could adapt this electronic right to the on-line world.
Also owing to the general tendency of development of e-democracy the Law of Ukraine was adopted on July 2, 2015 "About alteration of the Law of Ukraine "About the address of citizens" of the electronic turn and the electronic petition"[6]. According to this Law citizens can address the President of Ukraine, Parliament, Cabinet of Ministers of Ukraine, local government bodies with electronic petitions through the official website of body to which it is addressed, or through the website of civil association which collects signatures in support of the electronic petition. Service of the e-petition already actively functions on websites of the President of Ukraine, the Verkhovna Rada of Ukraine.
But at the local level the service of e-petition was introduced by only some cities (Kyiv, Lviv, Kharkiv, Dnipro, Odesa, Irpin, Kryvyj Rih and others), though now the Uniform System of Local Petitions project is gradually realized as one of the directions of Uniform system of citizens' initiatives which is created within the "Electronic Board for the Accountability of the Power and Participation of Society" program which is financed by the Swiss Confederation and is carried out by Fund Eastern Europe, Fund InnovaBridge in partnership with the State agency concerning electronic control [7].
Rather important form of e-democracy are e-elec-tions, e-referendum, e-initiatives which mean the use of ICT in the specified actions at one or several stages of their implementation. And also e-voting which means the use of ICT on elections or referendum, at least, for vote tabulation.
Today systems of direct electronic vote are applied in Belgium, Brazil, India, Venezuela, the USA and other countries. Process of voting takes place for account of the candidate or party, and results are displayed on the touch screen of the electronic system installed on the polling precinct. Using this system there is no need for printing voting bulletins. Data of voting process are placed on the local carrier or are transferred to the central server by the ciphered channels. For example, in Belgium each voice is registered at the same time on the local carrier and the paper check which falls to a ballot box for duplication of data in case of breakage [8].
In the countries of Europe constantly there are attempts to introduce e-elections (Spain, Italy, Portugal, Germany, Estonia, Ireland and others), but attempts to change considerably and finally the installed system of formation of authorities were not crowned with success yet. Though in the long term the mentioned forms of
democracy will promote bigger transparency, efficiency, mobility of carrying out elective campaigns in forming bodies of the public power, besides it will significantly reduce expenditure for financing of elective process.
Reception of e-elections as perspective form of democracy in Ukraine has as many advantages, and a lot of disadvantages. Really in the course of search of optimum electoral system which most precisely would display and considered opinion of citizens in the course of formation of bodies of the public power most of politicians and scientists incline to pro-portion electoral system with open lists, which is the most democratic, but rather difficult in calculation of results.
In that case applications of information technologies, on one hand, considerably will simplified calculation of results of vote and will reduce a possibility of influence on members of electoral commissions. On the other hand, in case of unauthorized penetration into electoral system it will be easy to forge election results and it will be difficult to protest results in court. Also in Ukraine the introduction of e-elections (as well as e-referendum) is interfered by the fact that not each potential voter has skills of treating with information and communicative technologies that, in turn, or will reduce the number of persons interested to take part in elections, or will promote violation of the principle of confidential voting (or equalities). Therefore for reception of institute of e-elections in Ukraine still it is necessary to improve the legislation, to develop information technologies, to renew credibility to the power and to increase computer literacy of the population.
In recommendations of the Council of Europe it is indicated the need of introduction the other forms of e-democracy which only begin to take root in Ukraine among which it is possible to call e-mediation, e-envi-ronment, e-consultation, an e-initiative, e-poll, but they need reconsideration (from the power and from the public) of necessity and importance of introduction in practice of creation of the state.
Conclusions and perspectives of further research. The listed forms of e-democracy are the important tool in the course of adoption of important political decisions both at nation-wide, and at the local level, but introduction of such forms of democracy is interfered first of all by loss of belief of citizens in the public power, social apathy, legal nihilism, insufficient development of ICT, etc. Though if the power had an opportunity to learn the opinion quickly of the public before adoption of important decisions, and the most important, would listen to it, it really would promote development of democracy and effective interaction of the power and citizens.
Thus, proceeding from the abovesaid it is possible to note that the theoretical-methodological and conceptual principles of transformational processes which captured Ukraine recently force to look on creation of modern great power statehood through the prism of necessity of further development and qualitatively updated understanding first of all of institutes of direct democracy by reception of the European standards of e-democracy. First of all for this purpose it is necessary
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to carry out gradual formation in Ukraine of qualitatively updated digital society with an active civic stand.
Experience of foreign countries, at appropriate adaptation to domestic conditions, it is possible and it is necessary to use for development of institute of e-de-mocracy in Ukraine. Among necessary perspective offers on the solution of this problem it is possible to specify the following: 1) to unify the legislation with the provided possibility of use by means of e-democ-racy; 2) to develop the mechanism of rendering e-ser-vices to the population; 3) to improve the legislation (including at the highest, constitutional level) in the sphere of information relations, and especially an order of responsibility for the corresponding violations; 4) to settle normatively an order and terms of carrying out online consultations with the public on the most important questions (for example, in the form of an advisory referendum) and step by step to carry out actions for introduction of other forms of e-democracy according to the recommended European standards.
References
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Самогин Артем Сергеевич
студент 3 курса ФГБОУ ВО "Московский технологический университет" г.Москва
Samogin Artyom Sergeevich
3rd year student Moscow Technological University (MIREA)
ФАКТИЧЕСКОЕ ИЗЪЯТИЕ ЗЕМЕЛЬНЫХ УЧАСТКОВ ДЛЯ ПУБЛИЧНЫХ НУЖД:
СУДЕБНЫЕ ВАРИАНТЫ ЗАЩИТЫ ПРАВ ЗЕМЛЕВЛАДЕЛЬЦЕВ. ACTUAL SEIZURE OF LAND PLOTS FOR PUBLIC NEEDS: JUDICIAL OPTIONS FOR THE PROTECTION OF LANDOWNERS ' RIGHTS
Аннотация: в настоящей работе рассмотрен вопрос относительно фактического изъятия земельных участков для публичных нужд, а также способы судебной защиты прав землевладельцев.
Annotation: in the present work the question concerning the actual withdrawal of the parcels of land for public needs is considered, and also ways of judicial protection of the rights of landowners.
Ключевые слова: фактическое изъятие, земельные участки, публичные (государственные и муниципальные) нужды, способы защиты.
Keywords: actual withdrawal, land plots, public (state and municipal) needs, ways of protection.
Актуальность темы обусловлена тем, что в настоящий момент право собственности представляет собой один из основополагающих институтов правовой системы Российской Федерации. Таким образом, в судебной практике преобладают способы защиты имущественных прав и права собственности, с помощью которых они восстанавливаются и защищаются. Актуальность проблематики
защиты имущественных и, в частности, вещных прав в последние годы увеличилась вследствие расширения в гражданском обороте частного сектора. Данное обстоятельство привело к четко прослеживаемой в последние несколько лет тенденции к столкновению государственных имущественных интересов с имущественными интересами частных собственников. В качестве одного из результатов
