Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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M. C
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 41, Nº 79 (2023), 706-722
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 12/07/23 Aceptado el 15/09/23
Guarantees for the exercise of the
constitutional right of access to justice
DOI: https://doi.org/10.46398/cuestpol.4179.47
Nataliya Shelever *
Mykhailo Herevych **
Yana Fenych ***
Iryna Sukhan ****
Pavlo Cherevko *****
Abstract
Through the dialectical method and the study of the doctrine,
the research focuses on the theoretical and practical analysis
of such a multifaceted legal category as access to justice. The
author’s denition of the essence and content of the constitutional
guarantee of the right of access to justice is presented. Modern
issues of ensuring access to justice in Ukraine are highlighted.
The description of typical forms of realization of the right of
access to justice such as e-justice; constitutional complaint and right to free
legal aid is given. Factors hindering the implementation and protection of
the right of access to justice have been identied: instability of the legal
system; deciencies in the judicial practice of law enforcement; shortage of
judicial personnel and others. In the conclusions of the case, it highlights
the priority of alternative ways of guaranteeing access to justice such as
mediation, restorative justice and arbitration tribunals. Finally, the main
advantages of the specied interdisciplinary legal institute are identied.
Keywords: access to justice; right to judicial guarantees; martial law;
electronic justice; constitutional complaint.
* PhD., in Law, Associate Professor of the Department of Administrative, Financial and Informative
Law, State University «Uzhhorod National University», Uzhhorod, Ukraine. ORСID ID: https://orcid.
org/0000-0003-3641-4910. Email: nataliya.shelever@uzhnu.edu.ua
** Doctor of Philosophy, lecturer of the Department of Theory and History of the State and Law, State
University «Uzhhorod National University», Uzhhorod, Ukraine. ORСID ID: https://orcid.org/0000-
0002-0842-2828. Email: misazaratustra@ukr.net
*** PhD., in Law, Associate Professor, Associate Professor of the Department of Administrative, Financial
and Informative Law, State University «Uzhhorod National University», Uzhhorod, Ukraine. ORСID
ID: https://orcid.org/0009-0004-6857-4497. Email: yana.fenych@uzhnu.edu.ua
**** PhD., in Law, Associate Professor of the Department of Administrative, Financial and Informative
Law, State University «Uzhhorod National University», Uzhhorod, Ukraine. ORСID ID: https://orcid.
org/0009-0001-4709-0176. Email: iryna.sukhan@uzhnu.edu.ua
***** PhD., in Law, Associate Professor, Associate Professor of the Department of Civil Law and Procedure
of State University «Uzhhorod National University», Ukraine, Uzhhorod, Ukraine. ORСID ID: https://
orcid.org/0000-0002-5311-324X. Email: pavel.cherevko@uzhnu.edu.ua
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Garantías para el ejercicio del derecho constitucional
de acceso a la justicia
Resumen
Mediante el método dialéctico y el estudio de la doctrina, la investigación
se centra en el análisis teórico y práctico de una categoría jurídica tan
multifacética, como el acceso a la justicia. Se presenta la denición del
autor sobre la esencia y contenido de la garantía constitucional del derecho
de acceso a la justicia. Destacan los temas modernos de garantizar el acceso
a la justicia en Ucrania. Se da la descripción de formas típicas de realización
del derecho de acceso a la justicia como la justicia electrónica; denuncia
constitucional y derecho a asistencia jurídica gratuita. Se han identicado
factores que obstaculizan la implementación y protección del derecho
de acceso a la justicia: inestabilidad del sistema legal; deciencias en la
práctica judicial de aplicación de la ley; escasez de personal judicial y otros.
En las conclusiones del caso, destaca la prioridad de formas alternativas de
garantizar el acceso a la justicia como la mediación, la justicia restaurativa
y los tribunales de arbitraje. Finalmente, se determinan las principales
ventajas del instituto jurídico interdisciplinario especicado.
Palabras clave: acceso a la justicia; derecho a las garantías judiciales; ley
marcial; justicia electrónica; denuncia constitucional.
Introduction
The state and level of ensuring human rights is one of the biggest
problems of modern society, which has complex manifestations of a
domestic and international nature. It is the availability of justice that
prevents the violation of human rights and at the same time is an eective
means of their restoration, creates real conditions for the full realization
of rights and freedoms. The judicial procedure is the most eective and
civilized guarantee of the protection of the rights and freedoms of a person
and a citizen (Kozakevych, 2021, p. 14).
The practical development of the ideas of access to justice took place
primarily thanks to the practice of the European Court of Human Rights,
which in its decisions denes the following basic elements of the right to
access to justice: the right to actual access to the court; the right to a fair
trial and timely resolution of disputes; the right to adequate compensation;
the right to apply the principles of eectiveness and eciency in the
administration of justice.
Political, economic, social, psychological, and technical factors
signicantly aect the mechanism of implementation of the right to access
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Nataliya Shelever, Mykhailo Herevych, Yana Fenych, Iryna Sukhan y Pavlo Cherevko
Guarantees for the exercise of the constitutional right of access to justice
to justice. So, for example, under martial law, access to justice mostly
depends on the level of digitalization of the state mechanism, as well as
the level of digital literacy of the population, the availability of technical
means (uninterrupted and reliable Internet connection, availability of a
smartphone, etc.).
Public trust in the court plays an important role in ensuring a person’s
right to access to justice - a complex phenomenon, the formation of which is
inuenced by various factors, such as: the activity of the courts; assessment
of their availability; convenience of court premises, reforms of the judicial
system, professionalism of judges, evaluation of the fairness of court
decisions, communication with citizens, citizens’ experience related to the
court, and stereotypes about it, and many others.
The level of trust and respect for the court can be increased by reforming
the judicial system and improving the work of the court. In addition, as
O. Kozakevych rightly points out, the evolutionary interpretation of the
international standard of access to justice is that under modern conditions
it is interpreted not only as access to courts of the traditional type, but also
as the availability of alternative methods of dispute resolution (Kozakevych,
2021, p. 38).
In order to increase the level of legal protection, the state creates
conditions for the resolution of legal disputes, using alternative and pre-trial
procedures. Thus, in 2016, a reform was carried out in the area of justice
in Ukraine. For the rst time, at the level of the Constitution of Ukraine,
the provision that «mandatory pre-trial dispute settlement procedure may
be dened by law» (Part 3, Article 124) (CONSTITUTION OF UKRAINE,
1996). An important task should be to convey information to the society
about alternative conict resolution procedures and to demonstrate
successful experience of its application. These strategies and their impact
on the implementation and protection of the right to access to justice are of
interest among academics and practitioners and will be considered in more
detail in the specied scientic article.
1. Methodology of the study
The methodological basis of the scientic article is a complex approach,
which involves the use of general scientic and special legal methods of
learning access to justice in legal doctrine, international law, national
legislation and legal practice.
The dialectical approach made it possible to determine the peculiarities
and conditionality of ensuring the constitutional principle of access to
justice and to identify the connections of ensuring access to justice with
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other principles and legal phenomena. A key role in understanding access to
justice and the forms of its provision was played by recourse to the methods
of branch legal sciences. The formal-legal (dogmatic) method is used to
learn the specic content of the right to access to justice and its meaning.
With the help of the comparative legal method, a variety of forms of
realization of the right to access to justice was revealed. The method of
theoretical generalization made it possible to single out scientic ideas about
the content of the right to access to justice available in the legal literature.
The descriptive method made it possible to formulate conclusions regarding
the features of ensuring access to justice, in particular, in the conditions of
such a special legal regime as martial law.
The use of the specied methods provided a comprehensive analysis
of various forms of implementation of the right to access to justice and
alternative means of ensuring such access.
2. Analysis of recent research
Access to justice is one of the fundamental principles of law, a
fundamental guarantee of human rights and freedoms, as well as a generally
recognized international standard for the administration of justice. That is
why the topic of access to justice is the subject of many scientic studies.
But despite the presence of a signicant number of scientic works on
this topic, the issue of access to justice in the context of the processes of
democratization, European integration and globalization, the development
of information and communication technologies, which is characteristic
of a modern democratic society, remains insuciently researched. The
majority of scientic research is branch-based or fragmentary in nature.
However, in the national legislation, gaps and other technical and legal
shortcomings of the legal system, as well as the practice of applying the
relevant provisions signicantly aect the availability of justice, limiting
access to the court in one way or another. The specied circumstances
can signicantly aect the movement of the entire process, prevent the
achievement of its goals. Therefore, in today’s conditions, there is a need
for a scientic theoretical generalization of access to justice in modern
society, a search for promising and eective forms of its implementation
and provision.
The purpose of the article is a scientic analysis of the implementation
of the constitutional right to a fair trial in Ukraine, the determination of its
legal nature and the normative consolidation of the right in international
legal and national normative acts, the study of the positive experience of its
application in today’s conditions, the precedent practice of the European
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Nataliya Shelever, Mykhailo Herevych, Yana Fenych, Iryna Sukhan y Pavlo Cherevko
Guarantees for the exercise of the constitutional right of access to justice
Court of Human Rights in order to solve the main problems of practical
enforcement of the said right in the national judiciary in the conditions of
martial law in Ukraine.
3. Results and discussion
3.1. Characteristics of individual forms of realization of the
right to access to justice
In the most general sense, access to justice is the ability of a person to
freely and unimpededly initiate the procedural activities of the court or
enter an already started process and participate in it to ensure eective
protection and restoration of their violated rights, as well as to achieve
justice (Kuchynska, Shchygol, 2019, p. 22).
According to Art. 7 of the Criminal Procedure Code of Ukraine
(hereinafter referred to as the Criminal Procedure Code of Ukraine), access
to justice is a general principle of criminal proceedings. At the same time,
access to justice can also be considered in other meanings: as a right of
participants in criminal proceedings enshrined in the Code of Criminal
Procedure of Ukraine and other regulatory legal acts; as a special, unique
legal construction (sui generis); as a criminal procedural guarantee
(CRIMINAL PROCEDURAL CODE OF UKRAINE, 2012); a system of
appropriate procedural means that enables the participants in the process
to know about their rights to actively participate in the case, to use these
rights for its fair resolution (Shibiko, 2009, p. 168-169).
We believe that considering this category in only one of the proposed
meanings is inappropriate, as it may lead to a narrowing of the content of
access to justice and will not allow us to properly understand its essence
and meaning. Access to justice is a complex and multifaceted legal category
that can be considered simultaneously in several meanings: as a principle
of justice, the right of participants in justice, a special legal construction, a
constitutional guarantee, a certain procedural regime, etc.
The right of access to court must not only exist, but also be practical
and eective. The mere existence of a right in access law is not sucient.
For example, it can be violated by the following factors: the high cost of the
proceedings in view of the nancial capabilities of the person, for example,
an excessive court fee, although in general a requirement for a court fee;
lack of legal assistance; the existence of procedural obstacles that prevent
or reduce the possibility of going to court (Court practice. The right to
access to court, 2022). The COVID-19 pandemic, and later the war, made
adjustments to the activities of the judicial branch of government, forcing
the courts to ensure the protection of human rights even during war.
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In such conditions, the application of modern technologies in the
electronic justice system should be maximally aimed at facilitating the work
of both judges and court apparatuses, as well as citizens, information users
in order to reduce court costs, optimize the time spent on sending documents
and the direct appearance of participants in the court process. Electronic
justice should ensure: opening of proceedings using electronic means;
implementation of further procedural actions within the proceedings in
the environment of electronic document circulation; obtaining information
about the progress of the case by accessing the court information system;
receiving information about the results of proceedings in electronic form
(RECOMMENDATION REC (2001) 3).
Thus, the development of electronic justice contributes to the expansion
of opportunities with the use of the latest technologies, provides the
opportunity to perform all procedural actions through electronic means
with appropriate identication and security mechanisms, which will create
appropriate conditions for the approximation of the Ukrainian judiciary
to international standards and speed up document circulation, ensure the
openness and transparency of judicial proceedings bodies The eectiveness
of the work of the electronic court, which involves the execution of certain
procedural actions by the court and the participants of the process with
the help of information and telecommunication technologies, depends on
compliance with certain conditions: at the legislative level, a clear procedure
for applying to the court must be developed and established; the registration
procedure should be clear and accessible, and the information should
be properly protected; the level of technology must meet international
standards and ensure ecient and productive operation of the system.
An important role in ensuring access to court belongs to a person’s right
to professional legal assistance. The introduction of the institution of free
legal aid in accordance with the standards of the Council of Europe and
the practice of the European Court of Human Rights is considered by the
Parliamentary Assembly of the Council of Europe as an important tool for
improving access to justice (Gets, 2011, p. 24). Therefore, the regulatory
framework for providing free legal aid is constantly being improved.
The system of free legal aid was created to fulll Ukraine’s obligations
to the Council of Europe and contributes to Ukraine’s observance of human
rights and fundamental freedoms dened by international conventions,
including the right to protection, the right to legal aid, the right to appear in
court immediately, the prohibition of torture or other inhuman or degrading
treatment that has proven to be eective.
Ukraine’s legal regulation of the legal aid institute is carried out taking
into account European legal doctrines. Thus, the introduction of mechanisms
for eective access to justice for the poorest sections of the population,
proposed by Recommendations No. R (93) 1 and No. R (78) 8 of the Council
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Nataliya Shelever, Mykhailo Herevych, Yana Fenych, Iryna Sukhan y Pavlo Cherevko
Guarantees for the exercise of the constitutional right of access to justice
of Ministers of Ukraine, is of great importance for the development of the
institution of free legal aid. The Committee of Ministers recommends that the
governments of participating states promote the access of the poorest sections
of the population to the law («the right to protection by law»), to extrajudicial
methods of conict resolution and access to courts (RESOLUTION (78) 8;
RECOMMENDATION No. R (93)).
In 2021, with the support of the UN Program for Reconstruction and
Peacebuilding, the free legal aid system launched the Client Cabinet service
in test mode, which aims to unify information about services and facilitate
access to this information for all users. The advantages of the Client’s Oce
include: the ability to send an online request for consultations and clarication
on legal issues; the opportunity to send photos of documents and receive a
response prepared by employees of the free legal aid system; availability of
the history of all requests and responses to them in one place; the opportunity
to write a review about the level of services received; a simple and convenient
service interface (The personal account of the client of the system of free legal
assistance started working in test mode, 2021).
Positive features include a reduction in the number of paper documents,
digitalization, the possibility of obtaining legal assistance by phone, e-mail,
in social network messengers, smartphone applications, and the client’s
electronic oces. This is an opportunity to bring the protection of the rights
of the most vulnerable groups to a new level with the help of professional
lawyers.
Also worthy of attention in the context of the study of modern means
of access to justice is the institution of a constitutional complaint, which
provides an opportunity for individual access to constitutional justice, and
therefore to full, comprehensive, large-scale, direct realization of the right of
a natural or legal person to judicial protection of their rights, freedoms and
legitimate interests (Kolodiy, 2016, p. 54). This means of protection of rights
and freedoms is more dicult for citizens to use than judicial protection. Its
application requires improvement of the complaint submission procedure
and legal clarication work on the part of lawyers.
The conditions for admissibility of constitutional complaints in European
countries include: use of all other legal options for protection of violated rights
and freedoms protected by the Constitution; compliance with established
application deadlines; a requirement for legal representation, the purpose of
which is to provide legal assistance when ling a constitutional complaint and
representation in court; payment of state duty for its submission; requirement
of fair use of one’s right; requirements for the form of a constitutional
complaint (Gultay, 2021, p. 26).
The positive features of the introduction of the institution of individual
constitutional complaint in Ukraine include: the possibility of legal protection
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of human rights against illegal and unjust decisions of judges; indirect
protection against arbitrary intervention of state bodies; abolition of legal
norms that contradict and violate human rights; formation of legal culture
and legal awareness of society; formation of ideas about the possibilities
of legal protection; the need to take into account national characteristics
and traditions; the possibility of analyzing the law enforcement practice of
the Constitutional Court of Ukraine and further inuencing it through its
decisions.
In our opinion, in order to achieve the quality of access to justice, it is
important to create an eective system of alternative conict resolution
both within the framework of ocial court proceedings and in conjunction
with it, which contributes to the development of civil society institutions
and the protection of human rights. Alternative resolution of cases is an
interdisciplinary institution, as it is on the border of dierent branches of
law.
Alternative resolution of cases is an interdisciplinary legal institution
that provides for the legal possibility of choosing between court proceedings
and other non-state procedures for resolving disputes or conicts based on
voluntary agreement by the parties of the procedural order and establishing
the corresponding rights and obligations of the conicting parties.
First of all, we consider it important to clarify the essence of restorative
justice, which consists in the reconciliation of the oender and the victim
without the intervention of competent state authorities, its comprehensive
implementation in the legal system of Ukraine should play a positive role
in ensuring the protection of human rights and legitimate interests. Within
the framework of restorative justice, the interests of the individual (victim,
oender), community and society are satised more fully than within
the framework of punitive justice. The center of attention is the interests
of the victim, the oender is encouraged to evaluate and understand his
misconduct.
Recommendation CM/Rec (2018) 8 dated 03.10.2018 on restorative
justice in criminal cases draws attention to the need to expand the
opportunities for participation of interested parties, including the victim
and the oender, other interested parties and the general public, in order
to eliminate and compensate damage caused by the crime. And restorative
justice is recognized as a method by which the needs and interests of these
parties can be identied and met in a balanced, fair and collaborative way
(RECOMMENDATION CM/REC(2018)8).
Thus, restorative justice is an innovative approach to responding to an
oense and its consequences, a form of justice, the main purpose of which
is to create conditions for the reconciliation of the victim and the oender
with the help of a mediator, as well as to eliminate the consequences caused
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Nataliya Shelever, Mykhailo Herevych, Yana Fenych, Iryna Sukhan y Pavlo Cherevko
Guarantees for the exercise of the constitutional right of access to justice
by the oense. It provides equal attention to the needs and feelings of the
victim and the oender, promotes more eective compensation for damage
and reconciliation of the parties.
One of the most common forms of implementation of restorative justice
is mediation, the procedure of which is signicantly dierent from the
traditional judicial form of protection of citizens’ rights, in which the parties
are considered as adversaries; the course of the process is determined by
the procedural law, which, as a rule, takes place in public proceedings.
In contrast to court proceedings, the participation of both parties to the
dispute in the mediation process is voluntary, and the mediator is freely
chosen by the parties; each party has the opportunity to withdraw from the
process at any time.
It can be stated that the concept of integration of mediation into the
judicial system has recently become increasingly relevant. The purpose
of implementing mediation is to provide citizens with the opportunity to
choose the most appropriate mechanism for settling a legal dispute. This
will motivate citizens and contribute to increasing personal responsibility
for resolving their disputes.
Another aspect of the need to consider mediation in the context of
access to justice should be emphasized. The European integration vector
of the legal policy of Ukraine, which provides for the approximation of
national legislation to the law of the European Union, determines the
appeal to the positions that determine the role of mediation in the justice
system. The Directive of the European Parliament and the Council of the
European Union «On certain aspects of mediation in civil and commercial
matters» dated May 21, 2008 clearly states that alternative out-of-court
procedures are aimed at ensuring better access to justice. «Ensuring better
access to justice, which forms part of the European Union’s policy aimed at
establishing an area of freedom, security and justice, should include access
to both judicial and extrajudicial dispute resolution methods» (DIRECTIVE
OF THE EUROPEAN PARLIAMENT AND OF THE EU COUNCIL «ON
CERTAIN ASPECTS OF MEDIATION IN CIVIL AND COMMERCIAL
CASES», 2008).
Therefore, mediation is an organic addition to the judicial system and
is designed to contribute to the improvement of social relations, increasing
public trust in the institution of law. Therefore, an important task is
educational activity aimed at widely informing the parties to the conict
about the possibilities of mediation and its advantages, which should be
entrusted primarily to judges.
Another independent, special jurisdictional form of conict resolution,
alternative in the eld of private law, which is based on the principle of
the autonomy of the will of the parties, should be considered arbitration of
disputes (Kozakevych, 2021, p. 131).
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The advantages of arbitration are that it frees the overburdened judicial
system from a large number of legal cases, makes it possible to «reduce»
the costs of litigation and is economical for the parties to the dispute. The
advantages should also include: simplication of the court proceedings;
short terms of the case review process; the possibility of choosing a judge; the
possibility of ling a claim in an arbitration court, regardless of the location
of the defendant; preservation of condentiality, voluntary participation in
the arbitration process; freedom of choice of arbitration rules; control of
the parties by the review procedure and its result; the nality of the decision
and the possibility of appealing it only on procedural grounds; immediate
entry into force of the decision of the arbitration court and the possibility
of its enforcement.
With the adoption of the law «On Arbitration Courts» (ON
ARBITRATION COURTS: THE LAW OF UKRAINE, 2004), Ukraine took
a step towards joining the states with a developed system of alternative
methods of resolving legal conicts and demonstrated to the whole world
its real desire to democratize society and implement legal reform.
This important element of self-regulation of society in various spheres of
life is an integral attribute of the eective functioning of the law and order
mechanism, it indicates a high level of legal awareness of the population in
a legal state, the presence of harmony in society and ensuring justice and
democracy.
Despite the existence of a large number of arbitration courts in Ukraine,
the number of considered cases is insignicant. To improve the situation,
the following measures should be taken: ensuring an adequate level of
informing citizens and professional lawyers about arbitration courts as an
alternative way of resolving disputes, eliminating legislative shortcomings
in the regulation of arbitration proceedings, taking into account modern
trends.
3.2. Modern problems of ensuring access to justice in Ukraine
With the beginning of the full-scale military invasion of the aggressor
country on the territory of Ukraine, the judicial system of Ukraine faced
many organizational, material, technical and procedural problems that
require immediate solutions to ensure the proper administration of justice
in courts of all jurisdictions.
First of all, it is worth paying attention to the imperfection of the
mechanisms of compliance with the right to consider the case within a
reasonable time in Ukraine. In particular, the understang of courts and
inadequate funding of the judicial system remain an unresolved problem.
716
Nataliya Shelever, Mykhailo Herevych, Yana Fenych, Iryna Sukhan y Pavlo Cherevko
Guarantees for the exercise of the constitutional right of access to justice
In particular, the Law of Ukraine No. 193-IX dated 16.10.2019 «On
Amendments to the Law of Ukraine «On the Judiciary and the Status of
Judges» and some laws of Ukraine on the activities of judicial governance
bodies» (ON AMENDMENTS TO THE LAW OF UKRAINE «ON THE
JUDICIARY AND STATUS OF JUDGES»: LAW OF UKRAINE, 2019) the
powers of all members of the High Qualication Commission of Judges
of Ukraine were prematurely terminated. At the same time, in recent
years, there has been a shortage of judges in the judicial system who are
able to administer justice; as a result, the courts are overburdened, which
often leads to violations of reasonable deadlines for the resolution of legal
disputes.
The problem of nancing the judicial system and providing it with material
resources for the administration of justice remains unresolved. Thus, there
have been more frequent cases of courts informing about the impossibility
of sending court summonses, notices and other information from the court,
including procedural documents by post due to underfunding of expenses
related to sending postal correspondence; a signicant part of court
premises was destroyed or damaged by bombing. The level of nancing of
the wage fund for employees of the courts is inadequate (Lubinets, 2022).
According to the State Judicial Administration of Ukraine, one of the main
negative factors that prevents the possibility of expanding and improving
the functionality of the implemented subsystems of the Unied Judicial
Information and Telecommunication System (hereinafter –UJITS), as well
as developing new subsystems, is the lack of budget allocations. The stated
circumstances prompted the State Judicial Administration of Ukraine to
address the relevant public letter to the Cabinet of Ministers of Ukraine and
the Ministry of Finance of Ukraine (ON THE PUBLIC APPEAL OF THE
SUPREME COUNCIL OF JUSTICE TO THE CABINET OF MINISTERS OF
UKRAINE AND THE MINISTRY OF FINANCE OF UKRAINE: DECISION
OF THE SUPREME COUNCIL OF JUSTICE, 2023).
At the time of conducting this research, there was no reaction from
the mentioned state bodies to the appeal. An important guarantee of legal,
fair and eective justice is the objective and impartial distribution of cases
between judges in compliance with the principles of priority and the same
number of proceedings for each judge (even workload). At the same time,
in the conditions of martial law, situations are possible: network equipment
goes out of operation, interruptions with electricity and communication,
the Internet, etc., which make access to UJITS impossible and thus can
«paralyze» the work of the courts.
Thus, the head of the relevant court, whose powers include monitoring
the eectiveness of the court apparatus, organizing the maintenance of
court statistics in the court and information and analytical support for
the activities of judges in order to improve the quality of the judiciary, etc.
717
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 706-722
(Articles 24, 29, 34, 39, 42 of the Law of Ukraine «On the Judiciary and the
Status of Judges») should ensure the distribution of cases between judges
in compliance with the relevant principles (ON THE JUDICIAL SYSTEM
AND STATUS OF JUDGES: THE LAW OF UKRAINE, 2016).
Due to the lack of opportunity to administer justice in the temporarily
occupied territories of Ukraine, as well as in damaged or completely
destroyed courts, the territorial jurisdiction of court cases of 80 courts was
changed during the year by order of the Chairman of the Supreme Court. As
a result, court cases are reassigned to automatic distribution in the courts
that have jurisdiction, and their proceedings are restarted. This negatively
aected the observance of the right to a trial within a reasonable time,
guaranteed by Article 6 of the Convention on the Protection of Human
Rights and Fundamental Freedoms (Lubinets, 2022). The reason for these
violations can be seen in the absence of a normative legal act, which would
regulate the procedure for the transfer of court cases in the event of a change
in the territorial jurisdiction of their consideration.
The state of war in the country also aected access to court decisions.
In accordance with Part 2 of Art. 2 of the Law of Ukraine «On Access to
Court Decisions» all court decisions are open and subject to publication in
electronic form no later than the next day after their production and signing,
except for decisions on seizure of property and temporary access to things
and documents in criminal proceedings, which are subject to publication no
earlier than the day of their application for execution. Limiting or delaying
general access to electronic resources of the USSR for reasons other than
those dened by the laws of Ukraine «On access to court decisions», «On
state secrets» is not allowed (ON ACCESS TO COURT DECISIONS: LAW
OF UKRAINE, 2005).
At the same time, from February 24 to June 20, 2022, full public access
to the Unied State Register of Court Decisions was limited, as well as
access to such website services as «Judiciary of Ukraine», «List of cases
assigned for consideration», «State of consideration of cases», which
contained information about the day, time, and place of the court hearing
in the case. Cases of limiting general access to court decisions in the Unied
State Register of Court Decisions still occur today.
It is necessary to pay attention to other organizational and legal
problems of ensuring the right to access court decisions. In particular, the
Law of Ukraine «On Access to Court Decisions» currently does not contain
such grounds for restricting access to the Unied State Register of Court
Decisions as threats of cyberattacks, prevention of threats to the life and
health of judges and participants in the judicial process, the introduction
on the entire territory of Ukraine or some of its parts of martial law or state
of emergency.
718
Nataliya Shelever, Mykhailo Herevych, Yana Fenych, Iryna Sukhan y Pavlo Cherevko
Guarantees for the exercise of the constitutional right of access to justice
In order to comply with the principle of legal certainty of the legislation,
the Ministry of Justice was asked to consider the possibility of developing a
draft law on supplementing the fourth part of Article 4 of the Law of Ukraine
«On Access to Court Decisions» with a rule on the possibility of limiting the
right to freely use the ocial web portal of the judiciary of Ukraine for the
period of the legal regime of military or state of emergency (ON ACCESS TO
COURT DECISIONS: THE LAW OF UKRAINE, 2005).
Also, the provisions of the Criminal Procedure Code of Ukraine do
not provide for the possibility of conducting a court session in the mode
of a video conference using its own technical means, as is normalized in
civil, economic and administrative types of judicial proceedings. At the
same time, the beginning of active military operations on the territory of
Ukraine changed the view of the courts to the possibility of conducting
criminal proceedings remotely using their own technical means in criminal
proceedings.
In particular, the Supreme Court in the letter dated 03.03.2022
No. 2/0/2-22 «Regarding certain issues of conducting criminal proceedings
under martial law» recommended that in cases where, due to objective
circumstances, a participant in criminal proceedings cannot participate
in a hearing in the mode of video conferencing using the technical means
specied by the Code of Criminal Procedure of Ukraine; as an exception,
it is possible to allow the participation of such a participant in the video
conference mode using other means, while attention should be paid to
explaining to such a participant his procedural rights and obligations
(Regarding certain issues of conducting criminal proceedings under martial
law. Letter of the Supreme Court , 2022).
Currently, we consider this approach understandable, because judges
are faced with forced long breaks in court proceedings due to the presence
of the accused, witnesses, experts in the temporarily occupied territories,
the impossibility of questioning witnesses, experts due to the failure to
establish their actual location, internal movement of persons, etc.
Conclusions
Access to justice is a multifaceted legal category that can be considered
simultaneously in several meanings: as a principle of justice, the right
of participants in justice, a special legal construction, a constitutional
guarantee, a certain procedural regime, etc.
The right to access to justice as a constitutional guarantee is dened
by the norms of substantive and procedural law, a separate human
right, which consists in the possibility of unhindered use of judicial and
719
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 706-722
alternative procedures for the fair and eective protection of one’s rights. It
is the duty of the state to create appropriate conditions for the realization
of every person’s right of access to justice, which will be fair and legal, and
the objectivity and independence of the court will be the main feature of the
rule of law and the justice of the court.
The following typical forms of realization of the right to access to justice
are distinguished: electronic justice (automatic distribution of cases;
exchange of procedural documents in electronic form; electronic record
keeping; implementation of judicial proceedings in the mode of video
conference); constitutional complaint; the right to free legal aid.
Factors hindering the implementation and protection of the right
to access to justice include: instability of the legal system (unstable and
imperfect procedural legislation); shortcomings of law-enforcement court
practice; the shortage of judicial personnel, due to the unlled number
of vacancies; complicated procedure for applying to the court, excessive
regulation of issues related to requirements for the submission of evidence
and claims; high cost of quality legal services; low level of legal culture.
The formation and development of alternative dispute resolution in
modern conditions (mediation; restorative justice; arbitration courts)
should become a priority direction for ensuring access to justice. The main
advantages of the specied interdisciplinary legal institute are dened
as: simplicity of procedures; saving time and money; the possibility of
choosing an intermediary; condentiality of dispute resolution, the ability
of the parties to personally control the proceedings and its outcome. The
introduction and active use of the institute of alternative means of dispute
resolution in the national legal system will contribute to improving citizens’
access to justice, reducing the burden on the courts, shortening the
terms of consideration of cases, reducing court costs, eective resolution
of legal disputes, improving the quality of court decisions and achieving
reconciliation between the parties, increasing level of legal culture of
society.
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Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79