Принцип справедливості як вимога судової процедури

In order to find law, its instrumental component, i. e., the rules of law, are not law by themselves (this position is advocated by foreign researchers). What determines law is its functional component, i.e., the procedure of application to different people and different situations. The doctrinal changes in approaches to understanding the essence of legal proceedings and their purpose, the transition to the principle of adversarial proceedings could not affect both the process of judicial cognition and its results. A fair trial is carried out as a result of guaranteeing equality of the parties in the process, observance of the principle of competition, publicity, reasonable time for consideration of the case, independence and impartiality of the court, and its establishment on the basis of the law.

The legal status of participants is reflected in their dispositivity and competitiveness and is certified by the openness of the process and impartiality of the court.

 The article analyzes the fairness of court proceedings as the main indicator of the effectiveness of law. The author proves that the principle of equality of participants to the proceedings is intended to guarantee formal justice, the essence of which is the need for equal treatment of people without discrimination on any objective or subjective grounds. 

The author analyzes the conceptual approach of the European Court of Human Rights to ensuring equality of opportunities for participants. The Court constantly points out that the equality of litigants before the law and the court must be ensured from a legal and organizational point of view by the unity of the legal regime under which procedural rights are mediated. This means that legal prescriptions in different jurisdictions should be formed on the basis of a common understanding of justice as an objective category. Guided by these approaches, equality of participants to a trial, as well as other requirements of fair trial, should not be established in relation to participants to a particular trial, but should be guaranteed as a higher order principle and ensured in relation to all subjects who have applied to court for protection of their rights. The author provides some practical positions of the ECJ in the commented area. 

Considerable attention has been paid to the observance of human rights to a fair trial during the review of court decisions in higher instances. This is especially important when reviewing specific cases where one of the parties has violated the right to a fair and lawful decision. Therefore, it is necessary to guarantee the practical application of the principle of equality of parties, primarily when examining evidence and appealing against unmotivated court decisions, when the relevant arguments of the parties are simply ignored by the court. 

It is stated that the institute of disciplinary liability of a judge has a large number of evaluative concepts which do not contribute to their unambiguous understanding and interpretation. They are not easy to interpret and apply in practice. Even lawyers with extensive experience in disciplinary practice often cannot immediately distinguish a disciplinary offense, for example, from a judge’s honest mistake.  

The subject of assessment by the High Council of Justice and the basis for disciplinary liability of a judge is the behavior of a judge that contains all objective and subjective signs of one of the disciplinary offenses provided for in Article 106 of the Law of Ukraine “On the Judicial System and Status of Judges”. The author of the complaint’s disagreement with the judge’s rulings cannot be a ground for bringing the judge to disciplinary responsibility. The Law of Ukraine “On the High Council of Justice” (Article 45(1)(4)) stipulates that disciplinary proceedings should be denied if the essence of the complaint is limited to disagreement with a court decision.