International standard of access to justice and subject of civil procedural law

The existence of various forms of protection of civil rights is a positive fact in the context of the implementation of the international standard of access to justice. At the same time, in its practice, the ECHR has repeatedly emphasised the need for an autonomous interpretation of the concept of “court” in paragraph 1 of Article 6 of the ECHR, which should not be understood exclusively as a state court, but should be considered in its essential meaning (Regent Company v. Ukraine). This approach entails the need to comply with the standards of fair trial not only by courts but also by other bodies of civil jurisdiction, which, in the opinion of the ECHR, meet the characteristics of “court”, which are: a) the presence of full jurisdiction to clearly established procedures; b) the existence of the power to make binding judgments, which may not be set aside other than by a court of higher instance; c) incoherence of the court with the conclusions of other bodies used in the case; d) the existence of guarantees of independence and impartiality of the relevant body [35, p. 122-123]. Thus, the ECHR assumes that the term “court” should be interpreted broadly, sometimes including quasi-judicial and non-judicial bodies, in particular, disciplinary commissions of doctors and lawyers, administrative bodies that authorised land sales, the High Council of Justice, the parliamentary committee etc. (Ringeisen v. Austria; Sramek v. Austria; Oleksandr Volkov v. Ukraine). In addition, the ECHR extended, with some limitations, the guarantees of paragraph 1 of Article 6 of the ECHR for arbitration (Regent Company v. Ukraine; Court v. the Czech Republic), which in the sense of the above provisions are considered “courts”, despite the fact that by their nature they are a method of ADR. This clearly indicates the existence of common fundamental approaches to court proceedings and through quasi-judicial ADR methods, although with some peculiarities regarding the latter, which should be considered in the context of general standards of the right to a fair trial.

So, the problem of forms of protection, although genetically and institutionally determined by the status of judiciary and the fundamental value of justice, reflects the real state of the procedural sphere of legal regulation (the sphere of civil jurisdiction in general) as a system of civil courts, other bodies that protect civil rights, and the system of relevant civil procedures. This conclusion is of conceptual significance for the theory of civil procedural law from the standpoint the ontological essence of the interaction of the principle of the fundamental principle of the rule of law, the constitutional right to judicial protection and the convention right to a fair trial, which in the practice of the ECHR applies to procedures during which civil rights and obligations are determined. In this respect, it is extremely important that the constitutional right to a judicial protection and the convention right to a fair trial, which has a broader subject of legal regulation, are, so to speak, hybridised. The phenomenon of such hybridization determines the fact not only of the real interaction of the right to a court at the national and international levels, but also the fact of ontological unity of legal relations arising in connection with the trial to determine civil rights and obligations [34, p. 105].

At the same time, this theoretical approach should not be taken as undermining the basic constitutional values of justice, in particular, recognising that justice in Ukraine is administered exclusively by courts and delegating court functions, as well as assigning these functions to other bodies or officials is impossible (Article 124 of the Constitution of Ukraine). At the constitutional level, the indisputable values of justice are fixed as a form of exercising the judiciary, which must be separated from the legislative and executive, and have specific, unique functions. Interpretation of Art. 124 of the Constitution of Ukraine is found in the practice of the Constitutional Court of Ukraine. Thus, considering the case on the constitutional petition of 51 People's Deputies of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) with the provisions of para. 7, 11 st. 2, art. 3, item 9 of Art. 4 and Section VIII “Arbitration Self-Government” of the Law “On Arbitration Courts” (case on the tasks of the arbitration court) [43], The Constitutional Court of Ukraine noted that justice is an independent branch of state activity, which courts carry out by considering and resolving in court in a special, established by law, procedural form of civil, criminal and other cases. Instead, arbitration of disputes between the parties in the field of civil and commercial relations is defined as a type of non-state jurisdictional activity, which arbitration courts carry out based on the laws of Ukraine by applying, in particular, arbitration methods. The exercise by arbitration courts of the function of protection provided for in paragraph 7 of Article 2, Article 3 of the law of Ukraine “on arbitration courts” is not the exercise of justice, but the resolving the disputes between the parties in civil and economic legal relations within the limits of the right defined in Part 5 of Article 55 of the Constitution of Ukraine. It is noted that arbitration is not justice, and the decisions of arbitration courts are only acts of non-state jurisdictional institutions to resolve disputes between the parties in the field of civil and economic relations. Arbitration courts make decisions only on their own behalf, and these decisions themselves, adopted within the current legislation, are binding only on the parties to the dispute. Ensuring the enforcement of decisions of arbitration courts is beyond the scope of arbitration and is the task of the competent courts and the state executive service.

Thus, we can conclude that despite the fact that in accordance with domestic law courts are recognised as the core of the system of civil jurisdiction, the existence of various procedural forms of protection of civil rights does not deny the exclusivity and unity of the judiciary, which together mean formal and effective constitution state of a single and equal court for all. This approach makes it obvious that the concepts of civil litigation and civil procedure do not coincide, as the latter covers not only civil litigation, but also other jurisdictional procedures for consideration and resolution of civil cases [34, p. 106]. The broad concept of understanding the subject of civil procedural law, proposed at one time by N.B. Zaider, has not received wide support in scientific circles, but now it seems extremely relevant, given the recent reforms of civil procedural legislation in Ukraine and foreign countries, the evolution of civil procedure and the further differentiation of various forms of legal proceedings. This approach allows identifying the most common patterns of formation of the procedural sphere and the functioning of the system of civil jurisdiction to optimise procedural law in general.

The expediency of a broad approach to defining the subject of civil procedural law should also be considered in view of the need to build a new value paradigm of civil procedure in the context of the fundamental principle of the rule of law, which focuses on respect for human rights and freedoms. Civil litigation and ADR are related to a single subject matter, which is a dispute over civil rights and obligations. European doctrine of civil procedure recognizes the fact that justice should not necessarily be carried out exclusively in courts, because alternative methods of dispute resolution, for example, mediation, are sometimes more appropriate procedures for resolving a particular dispute, because they allow achieving better results than classical legal proceedings in terms of the possibility of developing solutions that satisfy both parties, eliminating the dispute between them. Thus, the Supreme Court of Canada, in interpreting the principle of proportionality, noted that “a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. This requires a shift in culture [...]. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure” (Hryniak v. Mauldin, SCC 7, [2014] 1 S.C.R. 87). It is in this sense that both the judiciary and the ADR ensure access to justice in civil matters in a democratic society governed by the rule of law. Separately in this context, attention should also be paid to the hybridization of civil proceedings, which is associated with the blurring of the boundaries between “formal” and “informal”, “public” and “private” justice [24, p. 335]. A clear example of such hybridization is the integration of mediation into litigation, which results in, on the one hand, a certain degree of formalization and the introduction of some element of publicity, and on the other - strengthening the consensual principle in civil proceedings. Successes in expanding the scope of ADR methods have given grounds to talk even about the “privatization” of the field of civil litigation [2, p. 294]. In fact, this indicates the gradual blurring of the boundaries between public and private justice in the modem world, based on the idea of procedural pluralism and recognition of the polymorphic structure of dispute resolution, which should be explored in all its diversity, not separately.

CONCLUSIONS

Analysis of modern approaches to defining the concept of access to justice leads to the urgent need to rethink some classic postulates of the theory of civil procedural law, due to Ukraine's desire to integrate into the European legal space and recognition of the rule of law as a fundamental principle of law in a democratic society. Despite the lack of established views in foreign and domestic literature on the interpretation of the concept of access to justice in civil cases, we can trace certain patterns in this area. The study concludes that a broad approach to the interpretation of the international standard of access to justice in civil cases is appropriate, according to which its elements such as access to justice, access to effective remedies and access to ADR can be distinguished. This approach is based on the idea of procedural pluralism, which is based on the provision of coexistence of multiple forms of protection of violated rights of persons, the effectiveness of which is determined based on the specifics of a particular dispute. Under this approach, the court is recognised as only one of the possible appropriate ways of resolving disputes, along with other ways of resolving disputes.

Nowadays, we can say that the idea of procedural centralism corresponds to the domestic narrow concept of the subject of civil procedural law, and the idea of procedural pluralism - with a broad concept of the subject of civil procedural law. Considering the autonomous interpretation of the term “court” in the practice of the ECHR regarding the interpretation of paragraph 1 of Article 6 of the ECHR, as well as the growing popularity of alternative dispute resolution, it is now advisable to adopt a broad approach to defining the subject of civil procedural law, which should cover both the classical form of judicial protection (civil litigation) and various ADR methods, in particular arbitration, international commercial arbitration, mediation, conciliation, etc. In view of the above, the concepts of civil litigation and civil process do not coincide and are not identical. Civil procedure are a more general concept that encompasses both civil litigation and other jurisdictional procedures for the consideration and resolution of civil cases to protect the subjective rights and interests of disputant.

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