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  • Имплементация права на суд, созданный на основании закона, в процессуальное законодательство Российской Федерации

Book chapter

Имплементация права на суд, созданный на основании закона, в процессуальное законодательство Российской Федерации

С. 92-103.
Фокин Е. А.

The research focuses on the influence of the legal positions of the European Court of Human Rights concerning the right to a tribunal established by law on the development of the Russian procedural law. The article reveals the main elements of the right to a tribunal established by law, and considers the main problematic issues of the implementation of these elements to the national law. The study is based on the most significant legal positions of the ECHR on the issues of concern. Thus, in the Posokhov v. Russia case, the ECtHR concluded that the Russian legislative norms governing the formation of the tribunal are imperfect. In the Moiseev v. Russia case the ECHR pointed out that the frequent replacement of the composition of judges provokes doubts about the independence and impartiality of the court and the trial as a whole. Then the article proceeds to study Russian legislative regulation and law enforcement in order to compare Russian approaches with the requirements of the ECtHR case-law. It is concluded that the Russian commercial courts and the Russian commercial procedural legislation, which provides for the most detailed rules on trial formation, are closest to the standards of the ECHR. In the case-law of commercial courts there are occasions of reversals of judgment because of violation of the procedure trial formation. At the same time, in the courts of common jurisdiction, some unsolved problems remain, associated with the lack of sufficient transparency in the trial formation in specific cases. In conclusion it is alleged that despite the progress achieved in the implementation of the legal positions of the ECHR the right to a tribunal established by law, into Russian legislation and law enforcement practice, the implementation process is not yet completed and requires continuation.