Значимость подтверждения достоверности копий оспариваемых судебных актов в контексте права на доступ к правосудию
It is a well-known fact that the main tendency in development of procedural law is exemption of redundant barriers for excercising the right to access to justice and simplifying the procedures of initiating the proceedings. This is a ground for introducing and exploiting e-justice in practice. Besides that there is always development in justice system, in process of appealing against court’s decisions, in execution of judgement and in healing measures.
Against this background seems to be inadequate the situation when an entity or any other legal person that intends to dispute enforceable court rulings faces artificial barriers in the form of requirement to furnish certified copies of court orders. Moreover, those certified copies procedurally as a result of complaint investigation are kept in trial contents where there are already the originals which implies readmission of them at every step of disputing.
Such unreasonable requests often force interested person contrary to his dissent with the results of judicial enforcement to abandon further dispute. This kind of practice reflects harmfully on human rights but improves judicial statistics. Current situation is inconsistent with wording of part 1 article 46 of the Constitution of Russian Federation. It assumes the possibility to correct judicial mistakes after a trial in judicial instance decision of which comes into legal force.
In this article as a result of detailed procedural analysis the inconsistency and redundancy of such formal request is settled down. It’s provided that the legislator should abandon this kind of request with any negative consequences for judicial purposes.
This article opens a series of works devoted to the issue of the independence of the judiciary in the Russian Federation. It notes that, starting with the requirements for a candidate for the position of a judge, it is necessary to exclude as much as possible the discretion in assessing and deciding on the applicant's compliance with the objective requirements for the candidate for the position of judge.
The author, when analyzing the norms regulating the criteria that a candidate for a high judicial status must match, comes to the conclusion that they are imperfect and have the opportunity to carry out unreasonable interference.
So, for example, it raises questions of a statutory prohibition for a candidate and a judge to have a residence permit in a foreign state. According to the author, the procedure for determining the candidate's (and the current judge's) illnesses that impede the exercise of the judge's authority is also ambiguous. With the existing system for regulating the procedure for initiating criminal cases and the absence of any additional guarantees for candidates for the position of a judge, the prohibition imposed on the applicant, who was recognized as a suspect or accused of committing a crime, may also pose a serious problem. Finally, the author criticizes the wording of the norm that puts forward the requirements for the formation of a candidate.
Based on the results of the analysis, proposals are made to correct the discussed regulatory flaws, which, in the author's opinion, will eliminate existing contradictions, make the selection procedure more open and understandable, including for challenging illegal refusals to admit to refereeing, will broaden the choice of the judge among the most qualified and worthy candidates.
In the present paper the author discusses in detail some of the transformations in the judiciary of Hungary, being a part of the large-scale constitutional reform. These transformations are evaluated both in terms of their potential effectiveness, and also in terms of compliance with European standards of fair trial. For that purpose, the author analyzes the current rules of judicial legislation in their systemic unity, the critical opinions of the Venice Commission and other expert and human rights institutions, as well as publications in scientific literature and media. The author dwells on three issues: the mechanism of the change of venue of cases, court clerks’ participation in the administration of justice and direct constitutional complaint.
Із традиційною свободою думки, саркастичной аргументовано Ричард Познер береться змалювати не тільки наявну традицію суддівського мислення, а й ту, якою вона має бути. Зрозумілой дотепно автор роз’яснює відмінності між визначеними ним дев’ятьма ііггеллектуальними стилями правосуддя, наводить докази існування прірви між науковцями-нравниками та суддями, окреслює прагматичний підхід до правосуддя.
In the basis of book lies the dialectical description of the judicial system as a purposeful system having a complex hierarchy and rules of functioning, which is in continuous interaction of its internal elements and external factors of influence, including other branches of government, therefore structural changes of the judicial system in itself, as well as its competence and the quality of justice in general are observed. Consideration by the author of judicial system as an integrated dynamic system allows to reveal a number of regularities in its cyclical development. Society, as it is known, develops in a spiral. Exactly this model of evolution in philosophy arose as a result of the interaction of the three laws of dialectics: the unity and conflict of opposites, the transition of quantitative changes into qualitative, and the negation of negation. The court as a mirror of society repeats the convolutions of its development. The line forming a spiral is the hierarchy of the judicial system. At the same time this line, as the spiral of lower order, represents the unification and differentiation of judges’ specialization in consideration and resolution of cases, in jurisdiction and official knowledge of controversies, as well as the centralization and decentralization of judicial control, and as a consequence, the redistribution of powers between the judicial instances (appeal, cassation, supervision). Reduction or increase in number of judicial instances occurs simultaneously with the change of the administrative-territorial division of the state, and principles of government, the population size, and hence the number of cases coming to court. Depending on what authority (judicial or non-judicial) heads the judicial system and carries out check of the court decisions, there is the correction of its principles and procedures. The domestic judicial system, having passed some cycles, recently passed the bifurcation point and again is in an unstable state. Evidence of this is the merger of higher judiciary in the system of arbitration courts and courts of general jurisdiction, despite the fact that this task was not included in the Federal target program for development of the judicial system until 2020. Complex study of factors influencing the judicial system will allow us to comprehend the global processes in society and the state – as being fundamentals in forming the structure of the judicial system and principles of its functioning. Such researches are useful for fledged understanding the history of the development of the domestic judicial system and its trends. Therefore, taking into account the history of transformations and their scales, the book gives a new understanding of the modern state of judicial system and possibility of its modeling – with due regard for the mistakes of the past.
The problem of access to justice continues to be relevant both in the practice of the European Court of Human Rights and at the level of national legal regulation. The purpose of this article is to systematize the accumulated theoretical ideas about the access to justice and analyze their practical implementation by the ECHR. The study begins with a historical overview of views on access to justice. It is concluded that indirectly this problem was understood by mankind since the time of Roman law, but the systematization and specification were obtained only in the second half of the twentieth century. Then the article gives a brief comparative analysis of the concepts of "access to justice", "the right to access to justice", "access to court". This analysis is based, among other things, on the Russian doctrine. The main part of the article is devoted to the practice of the ECHR. Thus, the analysis of the practice begins with a review of Case of Golder v. the United Kingdom, the judgment on which became the foundation and basis for the further positions of the ECHR. It also provides an overview of the dissenting opinions of judges who have not accepted the need to ensure access to justice as an independent element of the right to a fair trial. Further, the article reveals the approaches of the ECHR to restrictions on the right of access to justice, compares the legal position of the ECHR, when such restrictions are possible, and when they violate the Convention for the Protection of Human Rightsand Fundamental Freedoms and fundamental freedoms (European Convention). Finally, considerable attention is paid to the question of what essential features justice should possess for the purposes of the right of access to justice. At the end of the article, a brief overview of the areas where access to justice intersects with other elements of the right to a fair trial is given. Article is based on comparative legal and historical methods of analysis.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/