TYPICAL MISTAKES IN THE COURSE OF DECIDING THE ISSUE OF CIVIL PROCEEDINGS COMMENCE (ON MATERIALS OF JUDICIAL PRACTICE)

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TYPICAL MISTAKES IN THE COURSE OF DECIDING THE ISSUE OF CIVIL PROCEEDINGS COMMENCE (ON MATERIALS OF JUDICIAL PRACTICE)

Journal Title: «Приватне та публічне право» - Year 2018, Vol 2, Issue

Abstract

The article analyzes the principles of access to justice, as well as practical aspects of the right to judicial protection in civil legal proceedings of Ukraine. The right to a court is an inalienable right of a person, linked to the rule of law, which follows from the preamble of the ECHR. In its decisions, the ECHR has developed criteria for the rule of law, considers the elements of the right to a court as part of the rule of law principle. The Constitution of Ukraine and the Law of Ukraine “On the Judiciary and Status of Judges” provide that everyone is guaranteed protection of his rights, freedoms and interests within a reasonable time by an independent, impartial and fair court established by law. No one shall be deprived of the right to have his case examined in a court under whose jurisdiction it is attributed to by a procedural law. Based on the materials of judicial practice review conducted by the author during his work in the Sumy Oblast Court of Appeal, the compliance of the regional courts with the norms of procedural law and guidance clarifications of the SCU Plenum was checked. Typical mistakes that occur at the stage of commencing proceedings were identified and analyzed. Materials of the review show that individual judges create artificial barriers for plaintiffs to access justice, and the latter do not always enjoy the right to appeal against relevant court decisions. An integral part of access to a court is the duty of the national courts to justify the decisions taken, but some judges do not give reasons for refusing in the commencement of proceedings. The issue of distinguishing civil cases from cases of administrative jurisdiction also remains complicated. Practical recommendations for the exercise of the constitutional right of citizens to judicial protection are expressed. According to the ECHR’s practice, a person’s right to a court can be subject to certain procedural requirements. However, if the application is not properly drafted, it should be left without consideration, and not denied the commencement of proceedings because the application cannot have been examined in the framework of civil proceedings. The author analyzes scientific approaches to the issues of procedural guarantees of access to justice in Ukraine, the means and ways to protect this right. The necessity of raising standards applicable to judges as regards performance of their professional duties, as well as increasing the activity of the parties to judicial proceedings in situations of creating barriers to access to justice is justified. In particular, attention is drawn to the fact that judicial and legal reform in the state should ensure the bringing the administration of justice closer to the standards and recommendations of the Council of Europe. In modern conditions, standards applicable to judges as regards performance of their professional duties and the quality of decisions taken are raising, the competence of judges as lawyers is becoming one of the main factors for restoring confidence in the judiciary. A judge may be disciplined on the grounds of illegal denial of access to justice, failure to indicate in the judgment reasons for accepting or rejecting the arguments of the parties on the merits of the dispute and / or admitting violations of human rights and fundamental freedoms. The accessibility of justice is the standard that reflects the objectives of civil litigation. To implement these tasks, judges should strictly comply with the requirements of the procedural law on the jurisdiction of disputes, principally refer to the form and content of statements of claim, and ensure compliance of the content of court decisions with the provision of the procedural law. At the same time, parties to judicial proceedings should be proactive in situations of creating barriers to access to justice.

Authors and Affiliations

В. Б. Бойко

Keywords

jurisdiction statement of claim court decision access to justice a fair trial commencement of proceedings judicial reform

EP ID EP589520
DOI -
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