scholarly journals Towards Modern Challenges in Financing the Judiciary: Between Independence and Autonomy

2020 ◽  
Vol 3 (2-3) ◽  
pp. 134-147
Keyword(s):  
Rule Of Law ◽  
Access To Justice ◽  
Modern Approach ◽  
The Rule Of Law ◽  
Financial Autonomy ◽  
National Courts ◽  
Independent Judiciary ◽  
Democratic State ◽  
Administration Of Justice ◽  
The Right

An independent judiciary is the guarantor of a democratic state governed by the rule of law, which we strive to build in Ukraine. This independence is ensured, among other things, by a stable and sufficient funding of the national courts, which has become a significant challenge. The resolution of such issues has been sought in recent decades, but the problem of court financing has become especially acute in the context of the economic crisis and the coronavirus pandemic, which occurred in 2020. This has led to somewhat hopeless feelings about the chosen way of forming the policy of Ukrainian courts financing and its implementation. Our study attempts to analyze certain aspects of the existing mechanism of financing the judiciary in Ukraine, in particular, through the prism of financial support for judges and assistant judges during the coronavirus pandemic. The functions which they perform can be attributed to the main ones during the administration of justice. The authors propose the analysis of the case on the protection of the right of assistant judges to a decent salary, which lasted for years in all courts of the state. In connection with the coronavirus pandemic in Ukraine, a law was passed reducing the salaries of judges, which is also analyzed in the article. The search for a new, more modern approach to resolving the issue of a stable financial independence of the judiciary will help to solve urgent problems and ensure a real rule of law in Ukraine. In particular, our proposed approach to the formation of financial autonomy of the judiciary in Ukraine is suggested in this study. Key words: judiciary, access to justice during pandemic, COVID Justice, financing of the judiciary, independence of the judiciary, financial autonomy of the courts.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

scholarly journals INTERNATIONAL STANDARDS FOR ENSURING THE RIGHT OF ACCESS TO COURT FOR PARTICIPANTS OF ECONOMIC RELATIONS

2020 ◽  
pp. 34-42
Author(s):  
V.O. Koverznev ◽  
◽  
◽  
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Fundamental Rights ◽  
International Standards ◽  
Access To Justice ◽  
Court Decisions ◽  
The Rule Of Law ◽  
Economic Relations ◽  
Administration Of Justice ◽  
The Right

Transformation and sustainable development of modern countries is not possible without providing all participants in economic relations with equal access to justice, which should be based on respect for fundamental rights, the Rule of Law, transparent courts and the effective administration of justice, guaranteeing public access to information about activity of commercial courts. The term "access to court" is a complex legal category based on several basic criteria, the simultaneous provision of which guarantees the actual observance of a person's right to access to justice, in particular: 1) financial, which provides for the obligation of the state to establish such an algorithm for determining the amount of court costs, which takes into account the property of the party and does not create obstacles to the exercise of the right to go to court, while acting as a safeguard against abuse of the right to go to; 2) territorial, which provides that the system of courts of general jurisdiction should be built taking into account the territorial structure of the state, with local courts, which consider all cases as courts of first instance, should be territorially as close as possible to the person; 3) organizational — provides for the optimal organization of the judicial system, which should be simple and, at the same time, clear and effective, in the context of access to court and the procedure for protection of individual rights. In addition, both the system of general courts as a whole and each individual court of general jurisdiction must be established and carry out their procedural activities in strict accordance with national law; 4) informational, according to which each state must legislate to inform its citizens and business entities about the procedure for going to court, about the conditions of providing certain categories of socially vulnerable citizens engaged in business activities, professional legal assistance provided by lawyers at the expense of the state, as well as the cur rent procedural rules; 5) procedural, which guarantees the administration of justice on the basis of the Rule of Law, as well as impartiality and impartiality of the court and judges, reasonable timeliness of court proceedings, publicity of proceedings and promulgation of court decisions, proper motivation and justification of court decisions, ensuring effective execution of court decisions and respect for final court decision; 6) quality of legislation, which imposes on the state the obligation to adopt legislation that meets the requirements of accessibility and predictability, so that each person has the opportunity to obtain adequate information about the circumstances of the application of legal norms in a particular case.

scholarly journals Privatization of Civil Justice: Is it Undermining or Promoting the Rule of Law?

2020 ◽  
pp. 34-45
Author(s):  
Tatjana Zoroska Kamilovska
Keyword(s):  
Rule Of Law ◽  
Cost Effective ◽  
Access To Justice ◽  
Civil Justice ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
Public Resources ◽  
Public Commitment ◽  
Civil Justice System ◽  
The Eu

The crisis of civil justice system is present in many countries in the EU and worldwide and it takes different forms. In response, many different pathways are explored in order to overcome not only the growing sense of crisis, but also its manifestations. One of the suggested routes in the ongoing efforts to improve access to civil justice at the EU and national levels is the privatization of justice through the ADR mechanisms. In many areas, with the encouragement and support of governments and other policy-making bodies, the administration of justice is being encouraged to leave the courts for alternative forums. Thereby, the ADR are presented as mechanisms which are facilitating informal, fast, cost-effective and affordable access to justice, at the same time preserving public resources. Yet, in spite of these undeniable benefits, ADR mechanisms are subject of some doubts and expressed concerns. One of the major concerns, which has already sparked a wider debate, is whether the informal and private nature of ADR is hostile to the Rule of Law and ultimately to justice itself. Namely, if the privatization of civil justice is considered in the context of the fundamental public commitment to provide substantive justice on an equal basis to all citizens, the question arises whether the ADR mechanisms are capable to secure and foster the virtues of the Rule of Law (publicity, transparency, fairness, equality, etc.). The purpose of this paper is to contribute to this debate, renewing the interest in analysing the relationship between the privatization of civil justice and the concept of the Rule of Law. In the light of evolving social, economic and political circumstances, the paper attempts to answer the question whether the growing privatized dispute resolution landscape is undermining or promoting the rule of law.

scholarly journals DERIVING FROM THE BASIC LEGAL AND DEMOCRATIC RULE OF THE STATE AND THE RIGHT OF THE PERSON IN PRINCIPLE TO CARRY OUT MATERIAL-LEGAL CLAIMS ONLY IN PART AS AN EXPRESSION OF A LEGAL AND DEMOCRATIC STATE

2021 ◽  
pp. 57-64
Author(s):  
Reinis Odiņš
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Point Of View ◽  
Normal Theory ◽  
The Rule Of Law ◽  
Democratic State ◽  
Democratic Rule ◽  
Private Autonomy ◽  
The Right ◽  
Democratic Norms

In the article, the author looks at the origin of the principle of the private autonomy from the point of view of the basic normal theory, stating that the basic legal and democratic norms of the country are derived from the rule of law. Moreover, the private autonomy also includes, in principle, the right of a person to exercise the right to carry out material legal claims, even in part, if the person so wishes.

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

2020 ◽  
Vol 8 (1) ◽  
pp. 149-171
Author(s):  
Joseph Sergon ◽  
Prof Albert Mumma
Keyword(s):  
Dispute Resolution ◽  
Rule Of Law ◽  
Access To Justice ◽  
Community Members ◽  
The Rule Of Law ◽  
Natural Justice ◽  
Study Approach ◽  
The Right ◽  
Formal Justice

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

New Zealand: Country Report on Human Rights

2009 ◽  
Vol 40 (1) ◽  
pp. 57
Author(s):  
Natalie Baird ◽  
Susan Glazebrook ◽  
Sasha Holden
Keyword(s):  
Human Rights ◽  
New Zealand ◽  
Rule Of Law ◽  
Language Education ◽  
Indigenous Rights ◽  
Legal Framework ◽  
Access To Justice ◽  
Country Report ◽  
The Rule Of Law ◽  
The Right

This article provides a country report on the status of human rights in New Zealand. The article covers New Zealand's adherence to the rule of law, culture and language, education system, health system and environmental rights. The authors draw conclusions from each section: New Zealand's commitment to the rule of law is generally strong, albeit with concerns regarding access to justice. Positive developments were undertaken regarding language but disappointing in its indigenous rights. The right to education is generally secure, but some vulnerabilities remain. New Zealand has a generally favourable health services system. Finally, although New Zealand's legal framework does not recognise the right to an environment of a particular quality, the Resource Management Act 1991 provides a strong participatory framework.  

scholarly journals New Zealand: Country Report on Human Rights

2009 ◽  
Vol 40 (1) ◽  
pp. 57
Author(s):  
Natalie Baird ◽  
Susan Glazebrook ◽  
Sasha Holden
Keyword(s):  
Human Rights ◽  
New Zealand ◽  
Rule Of Law ◽  
Language Education ◽  
Indigenous Rights ◽  
Legal Framework ◽  
Access To Justice ◽  
Country Report ◽  
The Rule Of Law ◽  
The Right

This article provides a country report on the status of human rights in New Zealand. The article covers New Zealand's adherence to the rule of law, culture and language, education system, health system and environmental rights. The authors draw conclusions from each section: New Zealand's commitment to the rule of law is generally strong, albeit with concerns regarding access to justice. Positive developments were undertaken regarding language but disappointing in its indigenous rights. The right to education is generally secure, but some vulnerabilities remain. New Zealand has a generally favourable health services system. Finally, although New Zealand's legal framework does not recognise the right to an environment of a particular quality, the Resource Management Act 1991 provides a strong participatory framework.  

scholarly journals The Right to Non-Discrimination: Interpretive Practice of the Ecthr

2021 ◽  
Vol 7 (2) ◽  
pp. 24-38
Author(s):  
Svitlana KARVATSKA ◽  
◽  
Ivan TORONCHUK ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Analysis ◽  
The Rule Of Law ◽  
Human Rights Protection ◽  
Political Sovereignty ◽  
Democratic State ◽  
European Court ◽  
Indirect Discrimination ◽  
The Right

The article conducts a legal analysis of the case-law of the European Court of Human Rights on the protection of the right to non-discrimination, which is a fundamental and general principle concerning human rights protection. During the period of functioning of the ECtHR, the Court has processed a huge amount of cases concerning violation of the right to equality and the inextricably linked principle of non-discrimination under Art. 14 and Art. 1 of Protocol № 12 of the ECHR. The evolution of the interpretation of the ECtHR shows the transformation of approaches to the interpretation of the right to non-discrimination. The court gradually began to expand the range of possible violations, from outright prohibition to the detection and the statement of indirect discrimination, and its decisions contributed to the normative formulations of the principle of non-discrimination in national systems and its gradual transformation from a purely declarative to a coherent effective mechanism of protection of discrimination victims and a mechanism of the approval of democracy, human dignity. The rule of law forms the central principle of interpretation of the Convention. A consensual investigation allows the ECHR to tie its decisions to the pace of change in national law, recognizing the political sovereignty of the respondent States and, at the same time, legitimizing its own decisions against them, adhering to the principles of a democratic state governed by the rule of law. The purpose of this article is to analyze peculiarities of the ECtHR's interpretive practice in cases concerning the right to non-discrimination.

scholarly journals The concept of rule of law and the notion of justice in the survival of the Nigerian State

2021 ◽  
Vol 20 (1) ◽  
pp. 25-32
Author(s):  
John Alade Ayodele
Keyword(s):  
Rule Of Law ◽  
Access To Justice ◽  
Law And Order ◽  
Human Right ◽  
The Sustainable Development ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
Principles Of Justice ◽  
Law And Justice ◽  
Developed Nations

Upholding the rule of law and adherence to the principles of justice play an important role in the economic and social development of a Nation, this is because rule of law and justice to all guarantee peace, security and stability. For a Nation to be ranked among the committee of civilized and developed Nations, rule of law and principles of justice must be upheld. Using the doctrinal methodology, this work assessed Nigerian State from the perspective of her adherence to the rule of law and upliftment of justice. This work reaffirms that for Nigeria as a State to achieve the Sustainable Development Goal 16, will depend on her commitment to the notion of the ideal character of the rule of law as a guiding principle for organizing life in society and access to justice as the essential instrument for the protection of human right. The work concluded that upholding law and order, providing predictable and efficient judgments through the institutional framework and attributes believed necessary to actuate the rule of law such as well trained law enforcement officers, functional courts, independent judiciary, comprehensive law and equipped correctional facilities and homes are the things upon which the Nigerian state can continue, prosper and survive.

scholarly journals Ensuring the exercise of the right to access to justice as a mandatory attribute of a constitutional state

2021 ◽  
pp. 311-316
Author(s):  
Y. І. Sverba
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Access To Justice ◽  
Special Role ◽  
The Rule Of Law ◽  
Constitutional State ◽  
The Right

The article analyzes both the positive and negative obligations of the state regarding the right to access to justice. Based on the principle of separation of powers into legislative, executive and judicial, emphasis on the need for real justice in constitutional state, as well as ensuring its accessibility, is made. Some aspects of the European Court of Human Rights case-law in the field of access to justice are considered. It is also hypothesized that the ECtHR case-law ensures the dynamic development of the European Convention on Human Rights provisions. In particular, the article analyses several ECtHR decisions which explicitly state that the Convention is intended to guarantee not theoretical and illusory, but practical and effective rights («Matthews v. The United Kingdom», «Bellet v. France and others»). The decision of the Constitutional Court of Ukraine is studied, which, inter alia, reveals the special role of constitutional and administrative proceedings in ensuring the rule of law. The obligation of the state to ensure equal access to justice is stated, since the purpose of justice is to protect violated, disputed rights, freedoms that belong directly to the person applying to the court for their protection. Therefore, the exercise of the right guaranteed by part two of Article 55 of the Constitution of Ukraine to appeal court decisions, actions or omissions of subjects of power must be ensured in accordance with the stated purpose of justice. At the same time, this right connects to the opportunity of every person to justify before the court conviction in the illegality of interference by the subjects of power in rights and freedoms concerned. The article analyses the decision of the Grand Chamber of the Supreme Court, which reveals the legal nature of ensuring access to justice in criminal, or administrative offenses. It is stated that the attributes of the rule of law are not limited to the justice and access to it, and their autonomous existence is impossible in a society where other democratic institutions do not work. Keywords: the rule of law, justice, access to justice, constitutional state, human rights, legal aid.

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