Some Approaches to Define the Concept of “Access to Justice”

Abstract

The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule