Tsuvina T.A. Principle of Rule of Law in Civil Procedure: Theoretical and Practical Study. – Qualification scientific work. Manuscript copyright.
The dissertation for obtaining Doctor of Juridical Sciences degree, specialty 12.00.03 “Civil Law and Civil Procedure; Family Law; International Private Law”. – Yaroslav Mudryi National Law University, Ministry of Education and Science of Ukraine. – Kharkiv, 2021.
The dissertation is devoted to a comprehensive study of the rule of law as a general principle of law in its projection on the field of civil justice, with due regard to international standards of fair justice and their interpretation in the case law of the European Court of Human Rights (ECtHR).
The dissertation analyzes the historical origins and modern approaches to defining the principle of the rule of law. Based on the settled approach that distinguish between formal and substantive conceptions of the rule of law, the author identifies four main notions of the rule of law, namely: a) prohibition of arbitrariness; b) formal legality; c) formal legality combined with procedural guarantees; d) formal legality combined with procedural guarantees and recognition of the priority of human rights. It is argued that the latter notion should prevail taking into account modern trends and the process of internationalization of the rule of law.
The author addresses the following concepts: rule of law, Rechtsstaat and due process of law and demonstrates that those concepts approximate within the general framework of convergence of legal systems.
Along with the formal and substantive aspects of the rule of law, the procedural aspect of the rule of law is highlighted; it encompasses the generally accepted minimum standards of due process and fair trial within the Continental and Anglo- American legal systems and reflects the understanding of of judicial procedure as a legal form that warrants the right of everyone to be heard by an independent and impartial court stemming from respect for human dignity.
With regard to the rule of law being applied in the international context two tendencies are addressed: externalization and internationalization. The internationalization of the rule of law is seen as a process of consolidating the unified requirements of the rule of law in international instruments at the universal and regional levels and its further implementation as an international standard in national legal systems. A separate aspect of the internationalization of the rule of law is the Europeanization of the rule of law, which is to develop a unified common understanding of the requirements of the rule of law within the Council of Europe and the European Union (hereinafter – the EU).
The special attention is paid to the principle of the rule of law being enshrined in
the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (hereinafter – ECHR) and the main elements associated with the rule of law in the ECtHR case law, in particular: legality, legal certainty, respect for human rights and proportionality of restrictions, equality and non-discrimination, the right to a fair trial. The author also considers the interpretation of the principle of the rule of law in the practice of the European Court of Justice.
The author studies the development of the theory of principles of civil justice and its transformation under the influence of international standards of fair justice. The concept of the principles of civil justice is determined by a system of their axiological, genetic and functional characteristics. The expediency of studying the problem of the principles of civil justice on the methodological platform of integrative jurisprudence is substantiated. It allowed the author to consider the system of principles of civil justice as a complex hierarchical system, formed as a result of the “deployment” of the idea of the rule of law in the field of administration of justice in civil cases. From this perspective the system of principles of civil justice encompasses: 1) fundamental principles of civil justice, which may have the status of constitutional principles, universally recognized norms of international law jus cogens, and include the rule of law and sub-principles that ensure its implementation; 2) special principles of civil justice, which are requirements for the organization and administration of justice in civil cases.
From the point of view of theoretical interpretation, the rule of law is considered as a fundamental principle of civil proceedings, a universally recognized norm of international law jus cogens and an international standard of law that defines institutional, procedural and competence requirements for court and procedure in civil cases.
The rule of law is described as a meta-principle, “umbrella” fundamental principle of civil justice, which includes: a) sub-principles that form the actual procedural characteristics of the rule of law and constitute the core of the due process, namely: access to justice, independence and impartiality of court, the right to be heard; b) sub- principles that ensure the sustainability of law application in the administration of justice in civil cases, which include legality and legal certainty; c) sub-principle that ensures striking a fair balance between private and public interests in the administration of justice and the legitimacy of human rights restrictions, i.e. proportionality.
A broad approach to the interpretation of access to justice is proposed, which from the point of view of institutional architecture includes access to justice, access to effective remedies, access to alternative dispute resolution (ADR) and access to international human rights vindication. The ideas of procedural centralism and procedural pluralism are considered through the prism of access to justice. It is substantiated that a broad approach to access to justice and the idea of procedural pluralism legitimizes the broad concept of the subject of civil procedural law and the broad concept of civil procedure. The reasons to assign ADR to the sphere of civil procedure are singled out, and those are: a) applicability of guarantees provided for in Art. 6 of the ECHR not only for the state courts, but also for those ADR methods that fall within the autonomous concept of “court”; b) blurring the boundaries between formal and informal procedures due to the integration of different ADR methods into civil proceedings; c) consideration of ADR as a tool to improve the efficiency of justice; d) hybridization of dispute resolution, one of the consequences of which is the emergence of online courts.
An interpretation of access to court as a central element of access to justice in civil proceedings is provided. The idea of barrier-free proportional access to court, which should be provided at the level of national legal system, is substantiated. Among the causes of violations of the right of access to court there are: shortcomings of civil procedural legislation; non-application of the norms of procedural legislation that had to be applied; misinterpretation of procedural legislation; excessive formalism; conflicts within case-law and lack of unity of judicial practice. The dissertation analyzes the main obstacles (barriers) in the exercise of the right of access to court, which are divided into the following groups: subjective, jurisdictional, temporal, procedural and financial.
The problems of judicial independence shall be seen through the prism of its
dichotomous structure, in which de jure independence of the court and de facto independence of the court are distinguished. De jure independence of the court reflects the state of normative enshrinement of the guarantees of judges’ independence, it includes: the institutional independence of the judiciary, internal independence of separate courts within the judiciary and individual independence of a judge hearing particular case. The author addresses the system of international guarantees of institutional independence of the judiciary (organizational, financial, general procedural guarantees and guarantees concerning judges’ accountability), as well as guarantees of internal independence of the court and individual independence of a judge in a particular case. De facto independence of the judiciary reflects the actual state of independence of courts and judges, and is crucial for the legitimacy of the judiciary in a democratic society.
The author proceeds from the distinction between the ethical and procedural dimensions of the court’s impartiality. The procedural dimension of court impartiality is analyzed in terms of the standards of actual and apparent court impartiality employed to determine the subjective and objective impartiality of the court. The mechanisms of ensuring the impartiality of the court include the guarantees of the right to a fair trial (paragraph 1 of Article 6 of the ECHR) which provide for conventional protection of this right, namely the possibility to remove a judge, the possibility of transferring a case to another court whenever the judge is a party to a case. Based on the analysis of the case law of the ECtHR and the legislation of foreign states, the main types of court bias that may be due to: 1) prior participation of a judge in the consideration of the case at hand or a related one; 2) prior participation of a judge in the case in another procedural status; 3) the fact that the initiators, parties or participants in the proceedings are judges or courts; 4) corporate relations; 5) family or kinship ties; 6) personal relations or connection of the judge with the participants of the trial; 7) financial or other interest of the judge; 8) public statements of the judge regarding the case or participants in the case; 9) the conduct of the judge during the proceedings; 10) previous expression of the judge’s position on a legal issue; 11) the connection of judges who hear cases in courts of different instances, among themselves. At the national level, it is advisable to establish a “rule of necessity”, which excludes the impartiality of the highest court in case of doubt about the impartiality of all judges of this court, if their elimination makes it impossible to consider the case. Legislative changes aimed at improving the regulation of the principle of impartiality of the court and mechanisms for its ensuring are proposed.
Taking into account the provisions of the ECHR and the case law of the ECtHR, applied aspects of interpretation of the principle of legality in civil proceedings in the context of the rule of law are identified, which are: a) the existence of legislative provisions that outline the limits of discretionary powers of public authorities and their permissible interference in human rights (that way protecting citizens against the arbitrariness of the state); b) compliance of the substantive and procedural legislation applied by the court with the requirements for the quality of the law; c) compliance of the substantive and procedural legislation applied by the court with the requirement of the priority of human rights as a substantive element of the rule of law; d) prohibition of retroactive effect of legislation in the administration of justice in civil cases; e) compliance with the requirements of the “court established by law”; f) prohibition of excessive formalism (legal purism).
In this context, excessive formalism is seen as a deviation in application of law by the courts, which consists in too formal (literal) interpretation of procedural law regardless of the purpose of such rules, purpose and objectives of civil proceedings, and without taking into account the specific circumstances of the case, which leads to disproportionate restriction of procedural rights of the participants and violation of the right to a fair trial. Based on the above, it is proposed to reconsider the
Idea of special permission regime (‘only was is expressly provided for is allowed’) in the context of para. 1 Art. 6 of the ECHR, which will ultimately allow derogations from the requirements of procedural law in cases where the latter do not meet the requirements of the right to a fair trial, the purpose and objectives of civil proceedings from the standpoint of the principle of proportionality.
The paper provides an interpretation of such procedural elements of legal certainty as the consistency of judicial practice, the principle of finality of court decisions res judicata and enforcement of court decisions. The problem of ensuring the consistency of judicial practice is considered through the prism of two paradigms of proceedings in the court of higher instance – the paradigm of private interests and the paradigm of public interests. It is proved that from the point of view of efficiency of civil proceedings the latter paradigm is more expedient.
The author addresses different types of divergence in the practice of higher courts
and analyzes the algorithm fashioned by the ECtHR for assessing the violation of the right to a fair trial due to the lack of judicial practice uniformity. Based on the analysis of the legislation of foreign states, the mechanisms to ensure the uniformity of judicial practice are classified into: 1) ordinary (review of cases in cassation or revision); 2) special: a) those related to the consideration of a particular case (preliminary inquiries, advisory opinions, constitutional complaint); b) those that are applied outside the proceedings in a particular case (directives, guiding recommendations, rulings of the higher court’s plenum, interpretative decisions, cassation in the interests of law).
The principle of res judicata as a component of legal certainty reflects the requirement of the finality of court decisions, which in different legal systems can be implemented through different doctrines. The dissertation formulates its main structural components, which are: a) the significance of the legal grounds for review of the final and binding court decision; b) restriction of the right of state officials who were not a party to the case to appeal to the court against the final court decision in order to cancel it; c) observance of procedural rules regarding the relevant subjects of appeal; d) observance of the established time limits for appeal and prohibion of their groundless renewal; e) prohibition of a new consideration of the case on the same claim, if the final decision has already been made; f) the impossibility of circumventing the legal force of final court decisions by filing new lawsuits in court, aimed only at a new hearing and resolution of the case; g) the obligation to take for granted the facts established in the decision, which has entered into force, in the subsequent consideration of cases between the same parties.
Problematic aspects of the enforcement of court decisions in the national legal order are considered through the prism of international legal obligations in this area and regarding the decisions of the ECtHR in the cases “Yuriy Nikolaevich Ivanov v. Ukraine” and “Burmych and others v. Ukraine”. A number of measures have been proposed that will help increase the efficiency of enforcement proceedings and Ukraine’s fulfillment of its international obligations. Among the measures aimed at elimination of debts on decisions where the state is debtor, there are: improving the legislative regulation of social benefits; lifting the moratorium on the forced sale of property of state enterprises; putting in force a unified register of decisions under which the debtor is the state, followed by a simplified procedure for bringing them to enforcement (without the need for filing a separate application to initiate enforcement proceedings); setting normative regulation for effective preventive and compensatory means of protection of the right to enforcement of a court decision within a reasonable time in the context of para. 1 Art. 6 and Art. 13 ECHR.
In addition, the institutional capacity of private enforcement agents needs to be strengthened, in particular, their competence shall be further expanded so as to eventually be equal with competence of state enforcement agents; guarantees of judicial control over private enforcement agents shall be broadened by eliminating concurrent control by the Ministry of Justice of Ukraine. Given the pan-European tendency to broadening consensual framework in civil and enforcement proceedings, it should be considered appropriate to restore in national law the period for voluntary performance of court decisions; increasing the possibility of using consensual ADR methods at the stage of enforcement through mediation and counseling; and providing for a simplified procedure for the implementation of domestic and transnational agreements reached as a result of mediation.
The principle of proportionality is considered in the general broad sense and in specific, procedural meaning. In the broad sense, it is the standard for legitimating the restrictions of the rights in civil proceedings. There are three aspects of the application of the proportionality test in the administration of justice in civil cases: a) when the court assesses the legitimacy of interference with substantial rights; b) when the court assesses the legitimacy of restriction of the procedural rights of the parties to the case; c) when the court resolves the conflict between certain guarantees of the right to a fair trial. Proportionality in the specific procedural sense appears as a requirement that sets the limits of the judge’s discretion in choosing the track of the case and discretion with regard to further guidance of the case, which ensures the effectiveness of civil proceedings in terms of balancing public and private interests.
It is proved that the discretionary powers of the court in civil proceedings call for
the implementation of judicial case management (judicial management of the case). Judicial case management is considered as the exercise by the court of a set of discretionary powers aimed at managing the time and course of court proceedings in accordance with the principles of proportionality and cooperation of court and parties to achieve the task of civil proceedings and ensure effective consideration and resolution of civil cases. The principles of judicial case management (the principle of proportionality, the principle of cooperation between the parties and the court, the principle of legitimate aim) are enumerated. So as its structural elements, which include the following groups of powers: 1) the power to choose the proceedings (procedure) according to the rules of which the case is to be considered; 2) powers during the consideration of the case: a) powers of the court to manage the time of the trial (judicial time management); b) the powers of the court aimed at preparing the case for trial, concentration of the process and evidence; c) the powers of the court to facilitate the settlement of the dispute between the parties; d) the powers of the court in the field of promoting the application of ADR; e) powers of the court regarding court fees; f) the power of the court to take security measures; g) the powers of the court to prevent the abuse of procedural rights and to eliminate them, the application of measures of procedural coercion to persons violating procedural rules. As a separate direction of reforming national legislation in terms of the implementation of judicial case management, it is proposed to introduce court-related mediation at the level of national legislation.
A general characteristic of the principle of the right to be heard is given, which
provides a party to the proceedings with the opportunity to bring to court their claims and objections, effectively present their legal position before the court on equal terms with those given to the other party. It has been proven that the implementation of this principle is associated with three groups of guarantees. The first type of guarantee is a precondition for the exercise of the right to be heard and is a requirement for proper notification of the person about the time and place of the case. The second is the core of the understanding of the right to be heard and is employed during the proceedings. It includes an oral hearing; opportunity to participate in the case; the principle of “equality of arms” and the adversarial nature of the process. The third group of guarantees is employed after consideration of the case on the merits and concerns the reasoning of the court decision.
It is proved that the principle of proportionality is of exceptional importance for the implementation of guarantees of the right to be heard. It is substantiated that the right to an oral hearing is not an absolute one and may be restricted taking into account the requirements of the principle of proportionality. In order to fashion an effective national model of oral civil proceedings, it is proposed to take into account the following criteria: a) the nature of legal and factual issues to be resolved by the court during the consideration of a particular case; b) evidence to be examined by the court; c) the importance of the case for the applicant; d) the possibility of effective representation of the interests of the party in the absence of oral hearings.
The formulated conclusions and practical recommendations contained in the dissertation can be used in further research (to improve the development of modern science of civil procedural law, namely: to further develop the doctrine of principles of civil justice and international standards of justice in civil cases), in lawmaking (to improve the provisions of the current Code of Civil Procedure of Ukraine with regard to the principles of civil procedure), in jurisprudence (while considering and resolving civil cases), in education and methodological work (in teaching and preparing textbooks for courses “Civil Procedure”, “Alternative Resolution of Civil Disputes”, and “Right to a Fair Trial in Civil Cases”).
Key words: rule of law; access to justice; independence of the judiciary;
impartiality of the court; the right to be heard; legality; legal certainty; proportionality.