Judicial Protection Research Articles

Legal nature of postponement of execution, change or establishment of the method and procedure of execution of a decision in civil proceedings

This article is devoted to the general theoretical analysis of the legal nature of such a legal phenomenon as the postponement of execution, modification, or establishment of the method and procedure of executing a decision in civil proceedings, viewed through the lens of proposed doctrinal definitions of this cross-sectoral legal institute. It is determined that in modern civil proceedings, issues of postponement and installment of execution, modification, or establishment of the method and procedure of executing court decisions are among the aspects that determine the effectiveness and fairness of justice. Attention is drawn to the fact that, under certain circumstances, postponement of execution, modification, or establishment of the method and procedure of executing a decision is more justified and rational during the execution of a court decision. It is precisely these measures ‒ postponement, installment of execution, modification, or establishment of the method and procedure of execution ‒ that allow for balancing the interests of all participants in the enforcement proceedings, as well as creating the possibility for the actual execution of the court decision in the future. The article examines scientific positions regarding the legal definition of such concepts as postponement and installment of execution, modification of the method of executing court decisions, and modification of the procedure for their execution. Based on the analysis, it is concluded that postponement, installment of execution, modification, or establishment of the method and procedure of execution are primarily aimed at ensuring the timely, complete, and impartial execution of a decision, and thereby, the actual restoration of violated rights, freedoms, and interests of individuals. Consequently, by their legal nature, these measures are more about balancing the interests of the parties in enforcement proceedings, with the aim of ensuring the full execution of the court decision and achieving the ultimate goal of judicial protection ‒ the restoration of the violated right.

Constitutionalization of Arbitration

The number of arbitration cases handled by the Constitutional Court of the Russian Federation has steadily increased over the years. The evolution of social practices and judicial approaches to arbitration procedures has prompted the supreme body for judicial protection of the Russian Constitution to repeatedly review whether the legal concepts used to resolve civil disputes by arbitration courts and international commercial arbitrations align with the nation’s basic law. The outcome of this process is a set of legal principles that define the constitutional and judicial foundations of arbitration in Russia. The above trends have facilitated the use of the integrative concept of constitutionalism in arbitration. This study highlights the constitutionalization of both arbitration and its social application. From a standalone perspective, the problems of enhancing the constitutional and legal principles of arbitration were discussed, and the further progress of constitutionalism in Russian arbitration was predicted.

Legal Protection of Copyright Works and Complex Intellectual Property Objects on Social Networks: Court Practice Issues

The paper examines modern approaches of court practice in order to determine the legal nature of complex intellectual property objects, as well as creative outputs generated on social networks. The author analyzes the Judicial Review of the Supreme Court of the Russian Federation 2024 and the practice of the Intellectual Property Rights Court, devoted to topical issues of judicial protection of creative outputs on the Internet, as well as doctrinal sources, foreign experience on the issues under consideration. A legal analysis of complex intellectual property objects, ways of using them on the Internet, as well as gaps in legislative regulation in this area is carried out. The issues of the legal status of the information intermediary, the definition of the violator in social networks, especially on telegram channels, as well as the possibilities and criteria for the application of interim measures in case of violation of copyright and related rights are considered separately. In addition, cases and examples from law enforcement practice are considered when the copyright holder may, at their discretion, allow or prohibit other persons from using the result of intellectual activity or a means of individualization, since the absence of a ban is not considered consent (permission), which is a frequent violation, especially on the Internet.

К вопросу об отнесении договора на выполнение НИОКР к алеаторной сделке

The article is devoted to the question of whether an R&D contract can be classified as an aleatory transaction. The purpose of the study is to analyze, in relation to an R&D agreement, the signs of an aleatory transaction, such as: the presence of a random event of a nature beyond the control of the participants, on which the legal consequences of the transaction depend; absence of an exchange element; risk as a fundamental element of this transaction; Features of legal regulation regarding restrictions on the right to judicial protection. Based on the results of the study, the author comes to the conclusion that the R&D agreement is a risky contractual structure, but cannot be qualified as an aleatory transaction.

La defensa técnica y la tutela efectiva en delitos contra la integridad sexual en Ecuador

This scientific article proposes as a general objective: To critically review the incidence of practical behavior of technical defense in cases of crimes against sexual integrity in Ecuadorian criminal practice, on the rights to defense and effective judicial protection. To achieve this, a qualitative approach is used, with scientific methods such as historical-logical, exegetical and analytical-synthetic methods. And, as a research technique, case review. The results show that the practical Ecuadorian criminal behavior, with respect to the technical defense, in cases of crimes against sexual integrity, is characterized by placing the anticipated testimony of the victim at the center of the evidentiary assessment, where, generally, the rights of the parties are restricted, such as, for example, the right of contradiction and the right of equality. And, around these testimonies, there are judicial evidentiary evaluations, from other evidentiary means, such as expert ones, which do not delve into the quality of the evidence, turning out to be very superficial, and subject to a weak technical defense and incapable of guaranteeing the established standards. in due process. Therefore, these evidentiary assessments also turn out to be violative of the Right to defense and the right to effective judicial protection.

Correlation of the concept of «judicial control» with the concepts of «justice» and «judicial protection» in the criminal procedure of Ukraine

In the article, the author notes that the introduction of modern approaches to the legal regulation of the judicial control mechanism into the Criminal Procedure Code of Ukraine of 2012 was one of the right ways to realize the right to a fair trial. It is noted that judicial control, along with other mechanisms of criminal procedure, also ensures the implementation of the rule of law, a qualitatively new approach to understanding the rights and freedoms of a person in criminal proceedings, and a humanistic approach to criminal proceedings. The author also notes that both practitioners and scholars have repeatedly addressed the issues of the concept of judicial control, its features, and correlation with other categories and concepts. And the research by comparing the concept of «judicial control» with the concepts of «justice» and «judicial defense» will make it possible to establish new features of judicial control in criminal proceedings in Ukraine. That is why the author set as the purpose of the study to establish the correlation between the concept of «judicial control» and the concepts of «justice» and «judicial defense» in the criminal procedure of Ukraine. The article analyzes the works of Ukrainian scholars who reveal both the above concepts and their correlation, and also uses the decision of the Constitutional Court of Ukraine. The study concludes that judicial protection is an effective mechanism for guaranteeing rights and freedoms in criminal proceedings, and judicial control is a way of judicial protection. In the author’s opinion, it should be borne in mind that such control is exercised not only during the pre-trial investigation, but also during the judicial stages of criminal proceedings. The author concludes that justice and judicial control are separate functions in criminal proceedings. Their differences are related to the stages of criminal proceedings and their purpose and form of implementation. The subjective composition of the realization of justice and judicial control is not always different. Thus, in the case provided for in Part 3 of Article 309 of the Criminal Procedure Code of Ukraine, a judge will exercise judicial control over non-appealable rulings of the investigating judge, as well as justice in the same criminal proceedings.

Ensuring the reasonableness of criminal proceedings’ terms

It is indicated that the current Criminal Procedure Code of Ukraine dated April 13, 2012 for the first time at the legislative level established such a principle of criminal proceedings as the reasonableness of terms. Yes, in accordance with Article 28 of the Criminal Code of Ukraine during criminal proceedings, each procedural action or procedural decision must be performed or made within a reasonable time. The article is devoted to the analysis of criminal proceedings’ principle “reasonable terms”. During criminal proceedings, each procedural action or procedural decision must be performed or adopted within a reasonable terms. Terms that are objectively necessary for the execution of procedural actions and the adoption of procedural decisions are considered reasonable. Reasonable terms cannot exceed the terms of execution of individual procedural actions or adoption of individual procedural decisions provided for by the CPC of Ukraine. The pre-trial investigation is carried out within a reasonable terms by the prosecutor, the investigating judge (with regard to the time frame for consideration of issues falling within his competence), and the court conducts the court proceedings. The criteria for determining the reasonableness of criminal proceedings terms are: 1) the complexity of criminal proceedings, which is determined taking into account the number of suspects, accused persons and criminal offenses in respect of which the proceedings are being carried out, the volume and specifics of procedural actions necessary for conducting a pre-trial investigation, etc.; 2) behavior of participants in criminal proceedings; 3) the manner in which investigators, prosecutors, and courts exercise their powers. Criminal proceedings against a person in custody, a minor or a criminal offense committed against a minor must be carried out immediately and considered in court as a matter of priority. It is important to ensure the reasonableness of criminal proceedings terms to study this principle not only in science, but also in judicial practice, in particular, the practice of the European Court of Human Rights. Adhering to the reasonableness of the terms of criminal proceedings will contribute to the exercise of a person’s right to judicial protection, will ensure an effective and prompt investigation and trial, and thus will ensure the fulfillment of criminal proceedings’ tasks.

Judicial control over the observance of human rights and freedoms during the consideration of the prosecution’s motions for permission to conduct covert investigative (search) actions in terms of observance of the principles of the right to a fair trial

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming “formalism” in the course of consideration of applications for permission to conduct covert investigative (detective) actions.

Ensuring the legal interests of a person in pre-trial criminal proceedings

In the science of the criminal process, there is no unified vision of the essence of a person’s legitimate interests and guarantees of their provision at the stage of pre-trial investigation. Ensuring a legitimate interest at the stage of pre-trial criminal proceedings is not supported by the performance of duties by other participants. An effective guarantee of the realization of a person’s legitimate interests in pre-trial criminal proceedings should be the real possibility of going to court to challenge the decisions, actions or inaction of law enforcement agencies. The presence of such a legal possibility should stimulate law enforcement agencies to take active actions aimed at satisfying legitimate interests. The criminal procedural law must provide for a mechanism to protect the legal interests of a person, both those that directly follow from the criminal procedural norms and those that are not provided for by the criminal procedural law, but are consistent with the spirit and principles of criminal justice. It can be argued that the legitimate interests of a person in pre-trial criminal proceedings are general legal and not prohibited aspirations of a person. Ensuring the legal interests of a person at the pre-trial stage of the criminal process should be ensured by a general obligation (general obligation) to take active actions by state bodies aimed at ensuring legal interests. The guarantee of the realization of the legal interests of a person in pre-trial criminal proceedings is the legal regulation in the criminal procedural law of the procedure for judicial appeal of decisions, actions or inaction of law enforcement bodies (including pre-trial investigation bodies) that prevent the realization of general legal aspirations of a person at the pre-trial stage of criminal proceedings. The need for regulatory regulation of the procedure for judicial protection of legitimate interests is determined by their legal nature, which provides for regularities in the actions of the participants of criminal proceedings of an undefined nature.

Promoting corporate independent innovation through judicial protection of intellectual property rights

This study examines the impact of judicial protection of intellectual property rights on firms' independent innovation. Using a staggered difference-in-differences model with panel data from Chinese manufacturing listed businesses (2014–2021) and the successive establishment of intellectual property courts in Chinese prefectural-level cities as a quasi-natural experiment, we find that establishing intellectual property courts in China encourages businesses to accumulate more technology-based intangible assets. Mechanism analysis suggests that judicial intellectual property protection enhances enterprises' independent innovation capacity by establishing a conducive institutional framework. This stimulating effect is particularly significant for industry-leading companies with technological supremacy. Heterogeneity analysis reveals that judicial intellectual property protection increases the generation of patents and trade secrets, with a more pronounced effect on firms receiving higher government research and development subsidies and better tax incentives. This study offers valuable insights for policymakers to encourage corporate independent innovation.

Особенности защиты прав собственников, владельцев и пользователей земельных участков в суде

The article considers a number of topical issues of judicial protection of land rights. The legal and socio-economic significance of the protection of land rights at the present stage is formulated. The role of the court in protecting the rights and legitimate interests of land rights holders is analyzed. The current positions of the higher courts on the issues of dispute resolution in connection with the self-made construction and placement of objects with an underground part are investigated.

О компенсации морального вреда, причиненного решениями, действиями (бездействием) субъекта публичной власти

The article examines the issues surrounding the combination and joint consideration in administrative court proceedings of both administrative claims challenging the legality of public authority acts and civil claims for compensation of moral damage. The aim of this article is to identify and analyze the problems of legal regulation of compensation for moral damage in administrative proceedings. To achieve this aim and solve the tasks, general and special scientific methods such as analysis, synthesis, historical, systemic-structural, formal-legal, and comparative methods were used. As a result, the author came to the conclusion that it is advisable to normatively consolidate the possibility of combining a public-law administrative claim and a private-law claim for compensation of moral damage in administrative proceedings. Such an intersectoral transformation of public and private law will significantly enhance the level of judicial protection for citizens who have suffered moral harm due to a public-law violation, especially considering that a person in a dispute with the authorities is always the weaker party. The results of the study can be used as proposals for legislative changes and for shaping judicial practice regarding compensation for moral damage in administrative proceedings. The novelty of the study lies in the substantiation of scientific recommendations on the need to combine and jointly consider in administrative proceedings not only an administrative claim to declare an act of public authority illegal, but also a civil claim for compensation for moral damage.

Regional judicial capacity and corporate total factor productivity: Evidence from the establishment of circuit courts

The strategic importance of total factor productivity (TFP) in the high-quality development phase of enterprises is increasingly prominent, and understanding the impact of regional judicial capacity on corporate TFP is crucial. We treat the establishment of Circuit Courts as a quasi-natural experiment for regional judicial capacity and construct the staggered difference-in-differences model to examine how regional judicial capacity affects corporate TFP. We find that the establishment of Circuit Courts significantly enhances corporate TFP. Mechanism tests show that the establishment of Circuit Courts improves the macro-level market competition environment, legal environment, and contractual environment, enhances micro-level resource allocation efficiency, strengthens innovation capacity, reduces bribery expenses, eases financing constraints, and promotes specialized division of labor, thereby improving corporate TFP. The positive effects of Circuit Courts are more pronounced among firms in regions with higher levels of local protection and administrative intervention, lower levels of intellectual property judicial protection, weaker product market competition intensity, and among non-state-owned enterprises without political connections. Our results remain robust after a series of robustness and endogenous tests. Overall, this study not only reveals the important role of judicial capacity enhancement on enterprise development, but also provides evidence support for deepening the reform of the judicial system and improving the Circuit Courts system.

Constitutional and legal responsibility of state bodies and senior officials

Kyrgyzstan, with increased political activity and dynamic changes in the governance system, faces problems with the constitutional and legal responsibility of state bodies and their officials, which require the development of effective forms of governance for sustainable strategic development to address them. Therefore, the study aimed to identify problematic aspects of constitutional and legal responsibility in Kyrgyzstan. Statistical analysis, formal logical and comparative methods, and legal and comparative methods were used in the study. The main problems in the system of constitutional and legal liability in Kyrgyzstan were identified, which include insufficient clarity and application of regulations, incomplete implementation of mechanisms for supervision and control over the activities of state bodies and their officials, and limited access of citizens to judicial protection in cases of violation of their constitutional rights. In addition, the study identified problems in the court practice of considering cases of constitutional and legal liability, including delays in the process of consideration and insufficient effectiveness of the measures taken. Based on these findings, specific recommendations were developed containing proposals for improving the legislation, namely, defining the mechanisms of constitutional and legal liability and eliminating contradictions in regulations, strengthening verification mechanisms and mandatory introduction of a reporting system, expanding the possibility of going to court, including reducing barriers to access to legal aid. Thus, the practical significance of this study is that its findings provide a basis for the development of specific measures and reforms aimed at improving the system of constitutional and legal liability in Kyrgyzstan and ensuring the protection of the constitutional rights of citizens

EU Boots on the Ground and Effective Judicial Protection against Frontex’s Operational Powers in Return: Lessons from Case T‑600/21

EU Boots on the Ground and Effective Judicial Protection against Frontex’s Operational Powers in Return: Lessons from Case T‑600/21

Genesis, current status, and prospects for the development of the institution of negotiation in Ukraine

As of 2024, the use of alternative dispute resolution is becoming increasingly relevant caused by the complicated access to justice due to martial law. The purpose of this study was to analyse the historical experience of using negotiations in Ukraine from the Middle Ages to the present day and to identify the vectors for further development of this institution. Both general scientific and special scientific methods were employed: formal legal and comparative legal methods. It was found that the term “negotiation” can be used in several meanings: 1) the process of reaching an agreement; 2) the stage of court proceedings; 3) the stage of mediation, conciliation, or other methods of alternative dispute resolution; 4) a separate method of alternative dispute resolution. As the times of Kyivan Rus, the Ruska Pravda prescribed an analogue of negotiations – the replacement of blood revenge with a payoff; in the 16th-century Lithuanian statutes, the negotiation process was called “unity”. The “Rights by which the Little Russian people are judged” of the mid-18th century defined two forms of documents drafted as a result of negotiations: a conciliation agreement (without the participation of mediators) and a conciliation verdict (with the participation of mediators). During the Soviet era, legislation tended to establish the right to judicial protection depending on the previous use of alternative dispute resolution. However, since Ukraine’s independence, this trend has changed, and the law now prescribes the right of everyone to choose how to protect their rights. Further vectors for the development of the institution of negotiations in Ukraine may include the introduction of various types of platforms for remote participation in the negotiation process, as well as the development of the legal framework towards detailing negotiation procedures. The findings of this study can be used in teaching disciplines of the historical and legal cycle in higher education institutions of Ukraine, as well as for further forecasting the development of this institution and its improvement

Opening of bankruptcy proceedings at the initiative of the creditor

In cases where a debtor in an obligation becomes unable to pay “on account” any more, the only way left to the creditor or creditors of such debtor to protect their financial interests is to open bankruptcy proceedings against such debtor. However, in practice, not everything is so simple, which makes it necessary to study this issue. The purpose of the article is to reveal relevant issues that arise during the opening of bankruptcy proceedings at the initiative of the creditor, to study the problems that arise in this area and to formulate proposals for improving Ukrainian bankruptcy legislation. The creditor’s appeal to the court with an application to open bankruptcy proceedings against his debtor is one of the manifestations of the right of the initiating creditor to judicial protection. It is emphasized that the possibility of the creditor to apply to the debt repayment mechanisms of his insolvent debtor through bankruptcy procedures is provided only for those creditors who have monetary claims against legal entities. If the debtor of the creditor is a natural person, then such a creditor is limited in the ability to protect his rights through bankruptcy procedures, and can use all the tools offered by the legislation in this area, only in the event that the debtor himself – a natural person shows a desire to initiate proceedings in an insolvency case against himself. It is proposed to provide in the legislation of Ukraine the right of a creditor to initiate bankruptcy proceedings against a debtor who is an individual entrepreneur. The conditions for opening bankruptcy proceedings at the creditor’s request have been studied. The presence of a legal dispute as a reason for refusing to open bankruptcy proceedings was analyzed, and judicial practice in this area was studied. The provisions of the bankruptcy legislation regarding the ability of the initiating creditor to submit a proposal for the nomination of an arbitration manager to perform the powers of a property manager or a restructuring manager before the day of the start of operation of the Unified Judicial Information and Telecommunication System in the application for opening proceedings in the bankruptcy case have been analyzed.

Искусственный интеллект в судебной деятельности — от идеи к применению

The article analyzes the existing definitions of artificial intelligence (AI). The authors examines the impact of AI on key aspects of justice and analyzes current trends related to the use of AI in the judicial system. The article highlights various aspects of the implementation of AI, raising questions about the permissible limits of using AI capabilities in a civil way and possible negative consequences arising in this regard. It is pointed out the need for careful attention to the algorithms used and the objectivity of the data obtained using AI. Attention is paid to the role of judges and society in the context of the use of modern technologies. The authors emphasizes the importance of creating a new legislative regulation of AI, in order to ensure compliance with procedural principles and guarantee proper judicial protection of participants in legal proceedings. The article raises important issues of the use of AI in courts, stimulating discussion of the conditions, directions and boundaries of the use of AI in court proceedings.

О конституционно-правовом закреплении публичного статуса адвокатуры

This article is devoted to understanding the constitutional and legal consolidation of the public status of the bar as a non-governmental institution of social structure, serving as a mechanism for the implementation of constitutional guarantees of the rule of law and judicial protection of rights. Based on the philosophy of modern times and the basic postulates of the general theory of conflict, the work examines the competitive process of learning the truth in justice by organizing a system in the form of a simulated controlled conflict. Keywords

Article 47 of the EU Charter and Effective Judicial Protection, Volume 1: The Court of Justice’s Perspective, by Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile. (Oxford: Hart Publishing, 2022)

Article 47 of the EU Charter and Effective Judicial Protection, Volume 1: The Court of Justice’s Perspective, by Matteo Bonelli, Mariolina Eliantonio and Giulia Gentile. (Oxford: Hart Publishing, 2022)