INITIATING OF A REFERENDUM AS THE INITIAL STAGE OF THE REFERENDUM PROCESS

Abstract

 Introduction. People's power, represented by the two direct forms provided for by the Constitution of Ukraine, acts as one of the foundations of the constitutional order in Ukraine. This fact, combined with the long-term absence of the practice of holding referendums, actualizes any research devoted to the issues of referendum legislation.

In contrast to the theoretical aspects of the right to a referendum, the issues of the referendum process are investigated rather secondary and not so intensively. Individual stages of the referendum procedure are not clearly regulated, or the norms are formulated in a discretionary manner, which puts the possibility of their application in one form or another, depending on the discretion of representative and other state authorities. At the same time, the very formation of a theoretical basis in relation to individual stages of the referendum process can further encourage the legislator to solve the problems of legal regulation that will be revealed during the formation of this basis, as well as act as a theoretical springboard for further research in the field of people's power and procedural forms of its implementation.

Summary of the main results of the study.In modern theoretical jurisprudence, stagedness (structuredness) is a generally recognized property of any procedural form of activity, although the issues of the general list of stages, their content and demarcation criteria are still debatable. Moreover, legal theorists have not developed a universally recognized concept of the stage of the legal process, and that is why there is often a mechanical transfer of formed ideas about stages from branch legal sciences to the general theory of law and vice versa. However, the structure of the legal process traditionally includes proceedings, stages, stages and procedural actions.

Referendum process is one of the constitutional forms of the legal process, and therefore it is also fully inherent in stagedness. Traditional for domestic constitutional and legal doctrine is the separation of three main stages of the referendum (more precisely, the referendum process) proposed by V. Pohorilko and V. Fedorenko: preparatory (referendum preparation), main (referendum holding) and final (referendum summary). Under this approach, initiation is considered as an element of the preparatory stage.

Such a "traditional" approach looks quite reasonable and logical. Indeed, the holding of a referendum requires significant preparation: starting from the formation of the very idea about the need to hold a vote on a certain issue to its submission to the discretion of the voting participants. However, this approach somewhat artificially combines procedural actions that differ in their content and specific purpose. In addition, the name of the first of the main stages does not look good enough, since preparation is required for any procedural action within the referential process, not only those performed at the initial stage.

Conclusions. Initiation is an independent, initial stage of any referendum process, regardless of the type of referendum. The purpose of this stage is to ensure proper and sufficient factual circumstances for the appointment of the relevant referendum. The content of the initiation stage covers the procedural stages and actions related to the identification of the subjects of initiation, the determination of the legality of the subject of the referendum and the jurisdiction of its formula. The initiation stage is a mandatory stage of the referendum process, regardless of the subject of initiation and the degree of obligation to hold the referendum. The referendum process should be considered started from the moment the referendum initiation stage begins. The same initiation should be considered started not from the moment of the desire to hold a referendum on the part of state bodies, representative authorities or citizens endowed with the right to participate in referendums, but from the moment of its legal fixation. The end of the initiation stage should be considered the moment of occurrence or, on the contrary, the impossibility of occurrence (in particular, due to the expiration of the time limits for overcoming legal barriers, the recognition of the issue initiated by the referendum as unconstitutional, etc.) of legal grounds for the appointment or proclamation of a referendum.