ПРОБЛЕМНІ ПИТАННЯ ВСТАНОВЛЕННЯ ФАКТУ НЕСПРОМОЖНОСТІ СУДДІ ВИКОНУВАТИ ПОВНОВАЖЕННЯ ЗА СТАНОМ ЗДОРОВ’Я

Л.М. Москвич

Л.М. Москвич https://orcid.org/0000-0001-7339-3982

Keywords: judge, state of health, dismissal of a judge, High Council of Justice, occupational diseases of judges. passport of the profession of a judge

Abstract

The legislator considers the dismissal of a judge due to health problems to be of general grounds. Nevertheless, at the moment, the implementation of this ground for dismissal is one of the most problematic due to several legal uncertainties. In particular, there is no list of diseases that give grounds for the conclusion of "inability to perform functions of justice". Accordingly, the mechanism for establishing the presence or absence of a judge's disease incompatible with the replacement of a judge guarantees a return to the position after health restoration.

The article is devoted to analysing practical problems of realising the general basis for dismissing the judge - in connection with the improper state of health. Due to the amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" of 2016, this reason for dismissing a judge remains declarative. Judges are dismissed either in resignation (if they have the required length of service) or at their request. In both the first and the second case, they are deprived of certain social guarantees to which they would be entitled if there was a mechanism for establishing deteriorating health as a result of the performance of professional functions.

The long-term lack of a fair and reasonable mechanism for establishing poor health, which hinders the performance of professional functions, entails the lack of guarantees of the independence of judges, which is a mandatory element of their legal status.

We express ideas on improving both the regulatory framework for monitoring the health of a judge and establishing a judge's health, which hinders the performance of the function of justice.

We concluded that the decision to dismiss on the grounds of inability to perform professional functions due to health should be preceded by a set of measures to find the optimal balance between the interests of a judge who has specific health problems and the state as his employer.