The Applicability of the Right to a Fair Trial in Civil Proceedings: The Experience in Ukraine

Abstract

In this note, the author attempts to prove that the right to a fair trial is essentially a substantive right; that is, a right that combines the manifestations of a fundamental right. At the same time, this right imposes some positive duties on the State to provide for it. It has national and supranational regulations, and at the same time reflects subjective law and axioms, as well as elements of procedural and substantive law. Attention is drawn to the fact that in Ukraine the legal nature of this right is implemented only partially, since neither legislation nor judicial practice recognize it as an independent object of protection. Taking into account the provisions of Para 1, Art. 6 of the ECHRs and the case law of the ECtHR , the research proposes to define the scope of the applicability of the right to a fair trial proceeding from: (1) legally bound subjects, which may include not only courts within the judicial system of the country concerned on the basis of the law, but also other jurisdictional and quasi-judicial bodies; and (2) the procedures in which the guarantees of a fair trial must be observed. Depending on the existence or absence of a dispute over the rights in them the latter is divided into ‘disputed’, ‘conditionally disputed’ or ‘indisputable’. It is proved that the requirements of Art. 6, Para 1 of the ECHR do not apply to them, but that they are mandatory under the first two procedures. An attempt to analyse the recent positions of the ECtHR on the possibility of including protection measures in the scope of the application is made. Also, the author determines which of those protection measures provided in national law falls within the scope of this regulation. Furthermore, the author draws attention to the fact that the rights and duties to protect a person who is invoked must be ‘civil in nature’ in order to be covered by the guarantees of a fair trial. On the basis of certain criteria the author identifies procedures in the national legal system within which the right to a fair trial must be guaranteed. Keywords: a right to a fair trial, substantive law, scope of applicability of the fair trial right, court, established by law, judicial procedures, legal dispute, diversification of judicial procedures, ‘civilistic’ rights and duties.