Preamble to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention), which is part of the Ukrainian legislation, proclaimed commitment of European governments to the rule of law. By ratifying Ukraine undertook to guarantee the Convention and its protocols to everyone who is under its jurisdiction, the rights and freedoms defined in the Convention and protocols to it. Such rights and freedoms indirectly include the right to judicial protection. In Paragraph 1 of the Part I of the Law of Ukraine №475/97 admitted by the Supreme Council of Ukraine on July 17, 1997 on the basis of which the Convention and individual protocols to it were ratified, it is stated that: “Ukraine fully recognizes on its territory […] regarding recognition mandatory and without the conclusion of a special agreement, the jurisdiction of the European Court of human rights in all matters relating to interpretation and application Conventions1“. The content of the given legal provision determines the study of the European practice of the Court of Human Rights (hereinafter - the ECtHR) and the application of domestic law taking into account the position of the ECtHR, since it is in its decisions that the content is revealed most provisions of the Convention.
Adoption of the Law of Ukraine “On Execution of Decisions and the application of the practice of the European Court of Human Rights” established the obligation states to implement the decision of the European Court of Human Rights. Article 17 of this law established that courts, while examining the cases, apply the Convention and the practice of the Court as a source of law. Article 18 of this Law determines the procedure for referring to the Convention and the practice of the European Court with the sense outlined in Article 1 of this Law, i.e. the practice of the European Court and the European Commission on Human Rights, and not only decisions on Ukraine2.
The Constitution of Ukraine guarantees everyone judicial remedies of their rights within the limitation of the constitutional, civil, economic, administrative and criminal justice system of Ukraine. The Civil Procedures Code of Ukraine stipulates (Part 4 of Article 11 of the Commercial Procedural Code of Ukraine) that the court, while examining the cases, applies the Convention on the Protection of Human Rights and Fundamental Freedoms of 1950 and protocols thereto, the binding consent of which was given by the Supreme Council of Ukraine, and the practice of the ECtHR as a source of law.
In the general legal theory and in the theory of economic procedural law of Ukraine, there are different approaches to the study of the nature of ECtHR decisions as sources of law. However, it is possible to state that there is an undeniable influence of the ECtHR's decisions on the formation and interpretation of the fundamental theoretical and normative ideas of economic procedural law of Ukraine, among which the right to judicial protection occupies a key place. It is the practice of the ECtHR that makes it possible to define the concept of limitations and obstacles in the realization of the right to judicial protection, and provides answers to the question of their admissibility in national legislation.
Part 1 of Article 6 of the Convention defines the inherent right of a person to access a court says: ”Everyone has the right to a fair and public hearing of his case within a reasonable time by an independent and impartial court established by law, which will resolve a dispute regarding his rights and obligations of a civil nature or establish the merits of any criminal charge brought against them. The rendition of judgment is announced publicly. The press and the public may not be admitted to the courtroom during all or part of the trial in the interests of morality, public order or national security in a democratic society, if the interests of minors or the protection of the privacy of the parties so require, or to the extent recognized by the court as strictly necessary - when, under special circumstances, the publicity of the proceedings may harm the interests of justice...” (Convention on the Protection of Human Rights and Fundamental Freedoms. Rome, 4.11.19503). In the construction of the above norm, separate elements of the right to judicial protection can be distinguished: the right to consider the case, which means the right of a person to apply for protection to the court; the right to implement judicial protection, which means consideration and decision of the case by the court. A mandatory condition for observing the right to legal protection is that a person must be provided with the opportunity to implement these rights without any restrictions, obstacles or complications. The above mentioned directly concerns the implementation of the right to legal protection by business entities. The main substantive aspect of the concept of access to justice in economic relations is the ability of business entities to obtain legal protection without obstacles.
The issue of legal and factual access may arise when implementing the right to judicial protection under the laws of Ukraine. In particular, in the context of disputes between jurisdictions. An example is the decision in the case “Tserkva Sela Sosulivka v. Ukraine” dated 28 February 2008, application No. 37878/023: “The Court recalls its practice, according to which paragraph 1 of Article 6 of the Convention enshrines the “right to a court”, in which the right of access to a court (the right to initiate proceedings in courts regarding rights and obligations of a civil nature) is only one of its aspects (see ”Golder v. the United Kingdom”, 21 February 1975, Series A, № 18, page 18). In order for the right of access to a court to be effective, a person must have a clear factual opportunity to challenge the act that constitutes an interference with his rights (see “Bellet v. France” judgment of 4 December 1995, Series A, № 333-B , page 42). … The Court notes that the applicant had access to these courts, but none of them considered the merits of the applicant's complaint about the impossibility of using the church building, as they considered that they did not have jurisdiction to consider such matters, despite the fact that the procedural requirements of admissibility was observed. The Court considers that such a situation amounts to a denial of justice, which violates the very essence of the applicant's right to access to court, which is guaranteed by paragraph 1 of Article 6 of the Convention. Accordingly, there was a violation of this provision. It follows that the objections of the Government about the non-exhaustion of national remedies (see paragraph 43 of the decision), previously attached to the consideration of the case on the merits (see paragraph 45 of the decision), should be rejected.”
In this case, the actual access to the exercise of the right to judicial protection was hindered by the problem of demarcation of jurisdictions in certain categories of cases in Ukrainian legislation. The relations between which contain both civil and administrative, economic features; since there are complex legal relations involving mixed subjects. The issue of determining the jurisdiction of the courts in cases regarding the protection of the rights and legitimate interests of business entities continues to be insufficiently resolved at the Ukrainian legislative level. Today, we have a fragmented legislative consolidation of the rules for determining the appropriate jurisdiction. It needs streamlining and further development with reference to the content of part 1, article 6 of the Convention on the inalienable right of a person to access a court. As L. M. Nikolenko4 points out, the ECtHR's rulings do not directly establish the right to legal protection. They provide for the right to a fair trial and establish the state's obligation to provide an effective method of legal protection. From the practice of the ECtHR, it can be seen that the ECtHR understands the right to a court in fact as the right to implement judicial protection. This right includes not only the right to go to court, but also the right to resolve a dispute by a court (Kutic v. Croatia5). From the point of view of the ECtHR, this right can be violated when the court does not rule on appeals against decisions of limited validity within the period established by law (Musumeci v. Italy6, §§ 41-43) or in the absence of a decision (Ganci v. Italy7, § 31). The right to a trial also includes a judgment.
The right to legal protection of business entities requires the presence of specific legal guarantees that meet the requirements of international law, the practice of the ECtHR. They would allow it to be fully implemented and ensure effective recovery through justice. The main legal guarantee of implementing the right to judicial protection in economic relations is the right to appeal to the economic court in accordance with the established jurisdiction, enshrined in Article 20 of the Economic Procedural Code of Ukraine.
Obstacles to access to justice for economic entities may be related both to the peculiarities of national economic procedural legislation and to limitations determined by substantive law. For the ECtHR, the nature of restrictions or complications in the exercise of the right to access to court is not fundamentally important as it follows from Article 6 of the Convention. It access to justice is an integral element of the right to a fair trial, but the term ”accessibility” in the text of the article is directly not used. In 1975, in the case of “Holder v. Great Britain”8, the European Court noted that the very structure of Article 6 of the Convention would be meaningless and ineffective if it did not protect the right to have the case heard at all. Thus, the rule defining a person's inalienable right to access to court was enshrined in Part 1 of Article 6 of the Convention. At the same time, pointing out that the need to obtain special permits to go to court is a direct violation of the right to access to court.
The ECtHR has repeatedly emphasized that the right of access to court, enshrined in Part 1 of Article 6 of the Convention, is not absolute. It may be subject to permissible restrictions, as it by its very nature requires state regulation. When applying to a commercial court, legal limitations may be: the statute of limitations provided for by the Commercial Procedural Code of Ukraine, measures to secure a claim or regulatory regulation of such a right in relation to the powers of certain subjects. According to the practice of the ECtHR, the right of access to a court can be limited by court decisions (“Golder v. the United Kingdom”, § 38; “Stanev v. Bulgaria”, §§ 230)9. The same applies in cases concerning the criteria for the admissibility of statements, which by their nature are regulated by the government. The government uses a certain freedom of discretion in this matter (“Luordo v. Italy”, § 8510). However, the restrictions applied may not limit or reduce the right of access to the court in such a way or to such an extent that the very essence of the right is violated.
As follows, according to the standards of the ECtHR, access to justice is understood as the ability of a person to obtain legal protection without hindrance as access to independent and impartial resolution of disputes according to the procedure established in legislation on the basis of the rule of law. The task of Ukraine is the formation of such a state-legal mechanism. It should ensure effective, unimpeded realization of the right to judicial protection for all subjects of appeal.
Literature:
1. Convention on the Protection of Human Rights and Fundamental Freedoms / International document dated November 4, 1950 [ed. dated June 1, 2010]. http://zakon3.rada.gov.ua/laws/show/995_004.
2. On the implementation of decisions and application of the practice of the European Court of Human Rights / Law of Ukraine dated February 23, 2006 No. 3477-IV [ed. dated December 2, 2012]. http://zakon2.rada.gov.ua/laws/show/3477-15.
3. Convention on the Protection of Human Rights and Fundamental Freedoms // International document dated November 4, 1950 [ed. from 01.06.2010] http://zakon3.rada.gov.ua/laws/show/995_004.
4. The decision of the European Court of Human Rights in the case of “Tserkva Sela Sosulivka v. Ukraine” dated February 28, 2008, application No. 37878/02 http://zakon3.rada.gov.ua/laws/show/974_350.
5. L.M. Nikolenko Review of legal acts in the system of judicial protection in the economic judiciary of Ukraine. Scientific notes of the Taurida National University named after V.I. Vernadsky. Series “Legal sciences”. Volume 26 (65). 2013. No. 2-1 (part 1). pp. 341-351.
6. http://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001- 125528&filename=CASE %20OF%20KUTIC%20v.%20CROATIA%20- %20%5BUkrainian%20Translation%5D%20summary %20by%20the%20Lviv%20Laboratory%20of%20Human%20Rig hts.docx&logEvent=False.
7. http://hudoc.echr.coe.int/app/conversion/docx/pdf?library=ECHR&id=001-185658&filename=CASE%20OF %20MUSUMECI%20v.% 20ITALY%20%E2%80%93%20%5BRussian%20translation%5D% 20summary%20by%20Development%20of%20Legal%20Systems%20Publ.%20Co %20.pdf&logEvent=False.
8. http://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001-61423&filename=CASE%20OF %20GANCI%20v.%20ITALY.docx&logEvent=False.
9. Decision of the European Court of Human Rights in the case “Holder v. Great Britain” dated February 21, 975 http://zakon2.rada.gov.ua/laws/show/980_086
10. https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001- 204658&filename=CASE%20OF%20STANEV%20v. %20BULGARIA%20%E2%80%93%20[Russian%20translation]%20by %20Development%20of%20Legal%20Systems%20Publ.%20Co.pdf
11. https://www.legal-tools.org/doc/7059fd/pdf/
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