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M.S. Eremenko,
POST-GRADUATE OF THE CHAIR OF THE CIVIL PROCESS,
THE URAL STATE ACADEMY OF LAW



STANDARDS OF THE COUNCIL OF EUROPE IN THE SPHERE OF CIVIL PROCEEDINGS AND THE PROBLEM OF ACCESSIBILITY OF JUSTICE


      The modern juristic literature gradually pursues the idea of growing importance of the concept of human rights as one of the basic factors determining trends and prospects of the Russian legal system development, including the system of civil jurisdiction.[1]

      This thesis has become specially topical in connection with ratification on 4 November 1950 of the European Convention On Protection of Human Rights and Fundamental Freedoms (henceforth - the Convention) by the Russian Federation, and acknowledgment of the jurisdiction of the European Court of Human Rights over issues related to construction and application of the Convention.

      The Convention is unique in many respects: it is the first international instrument aimed at protection of a wide range of civil and political rights, which simultaneously is legally binding for the contracting parties and sets forth the mechanism of control over exercise of the rights within the member-states.

      Therefore exactly the Convention is rightly regarded as one of the most perfect and efficient international treaty in the sphere of human rights.[2]

      Pursuant to the preamble to the Convention, one of the main elements of the common heritage of the European countries is the rule of law, one of the numerous aspects whereof is connected with the role of independent and impartial courts acting within the limits of the legal system. The significance of this role was reflected in para 1, Art. 6 of the Convention stipulating principles of administration of justice to ensure fair and public trial of a case within reasonable time by an impartial and independent legally established court.

      As is known, by ratifying the Convention the states undertake a double commitment: first, they are to offset any abuses of rights and freedoms protected by the Convention; second, they are to ensure consistency of their internal legislation with the Convention, for which purpose it is sometimes necessary to introduce certain changes into the legislation and law enforcement practice.

      Pursuant to Art. 6 of the Convention the member-states are bound to establish and ensure functioning of the institutions necessary for proper administration of justice and for adoption and implementation of laws guaranteeing impartial and fair judicial trials. It should be noted that supervisory bodies of the Council of Europe regard the right of access to justice and fair trial guaranteed by Art. 6 of the Convention as one of the basic characteristics of any democratic society, and by virtue thereof construe extremely widely the rules stipulated in the article concerned.

      Thus, the European Court of Human Rights in the case of Delcourt ruled that in accordance with the meaning of the Convention, the right to a fair administration of justice occupies such an important place in a democratic society that any restrictive construction of para 1, Art. 6 would be contrary to the objective and meaning of this provision. Being guided by similar considerations and pursuant to Article 15 of the Charter of the Council of Europe, the Committee of Ministers of the Council of Europe considers the measures aimed at facilitating access to courts with concurrent observance of the proper procedure of justice administration and ensures pursuance of the uniform policy with respect to the above matters by the member-states.[3]

      The foregoing leads to a reasonable conclusion that when studying the problem of accessibility of justice in arbitration and civil proceedings, it is necessary to take into account the current international legal standards of perception and solution of the problem concerned.

      Taking this circumstance into account and considering the practical nature of the research, the author finds it possible to structure the material set forth herein as applicable to separate aspects of the accessibility of justice, thus systemati9zing relevant standards of the Council of Europe in the sphere of the civil procedure. But it is necessary to make a number of preliminary remarks of general nature.

      Accessibility of Justice: Main Approaches to the Problem

      I. In the modern Russian doctrine of the civil procedure accessibility of relief at law in its
      widest meaning is connected with a number of circumstances, the most important whereof are considered to be the following:

      - the possibility of a free recourse to a court for protection of a violated or challenged right, a legally protected interest;

      - simplicity of the procedure of initiation and conduct of proceedings, as well as
      implementation of a rendered award;

      - territorial proximity of courts to persons applying for a relief;

      - availability of a system of procedural exemption from statutory duties and other legal fees;

      - the opportunity to make use of a legal assistance in court proceedings.[4] 

      II. Supervisory bodies of the Council of Europe, determining the contents of the category of accessibility of justice, reason from a general description of judicial institutions and general definition of parameters fixed in Article 6 of the Convention, which eventually allow to appraise fairness of a certain court proceeding. it is considered that prior to such an appraisal, an individual, first of all, should have an opportunity to secure trial of his case.

      As the Convention commentators point out, there are two groups of cases in which the European Court of Human Rights consider the matter of access to courts pursuant to para 1, Art. 6 of the Convention. The first group comprises the cases connected with a protest against denial of the right of court in several types of civil cases tried by national courts or bodies of administrative justice. The second group includes claims brought in connection with burdensome costs and complicated procedures actually making access to courts impossible in spite of all formal accessibility of the latter.[5]

      1.  In cases of assumed violation of the right of court the matter concerns one very important principle consisting in the state being unable to limit or cancel the judicial control in certain spheres or with respect to certain categories of cases. Thus, the European Court of Human Rights in its judgment delivered in the case of Zoumtobel stated that every state the signatory of the Convention must guarantee every individual within its jurisdiction the right of his civil matters trial through court proceedings which have attributes of the judicial form of control.

      In a number of cases where the claimants refuted administrative proceedings as inconsistent with the above requirement, the Court has concluded that either the bodies delivering the initial judgments must follow the procedural requirements stipulated in para 1, Art. 6 of the Convention, or their judgments have to undergo the subsequent control of the judicial body which has ample powers and is called to ensure observance of the above requirements.

      2.  Another important principle determining the contents of para 1, Art. 6 of the Convention consists in that access to one or another judicial instance must not be only formally declared, but actually realizable. The European Court of Human Rights applied this principle in consideration of several cases concerning different aspects of the right of access to justice.

      Thus, in the case of Airey, the Court agreed with the claimants assertion that the judicial costs connected with the defense of her rights were the violation of her right of access to justice. Other matters (in particular, excessive complication of the procedure) were considered in the Juiffre de la Pradels case, which although not directly connected with the claimants financial standing, in fact hampered realization of the right of access to courts. The Court confirmed that the right of court stipulated in Article 6 of the Convention was not absolute; it may be restricted, but these restrictions must not impede or limit the individuals access to justice in such a way and to such an extent that it would prejudice the very essence of this right.

      III. In my opinion, broad understanding of the problem of accessibility of justice requires
      that other (apart from the above) aspects of accessibility of the judicial activity, as a whole, be included into the scope of research. Among them are the following:

      - organizations and citizens knowledge of the legal remedies;
      - publicity of civil proceedings;
      - availability of final judgments;

      Combination of the above approaches to understanding of the problem under review allows, first, to describe the system of components ensuring accessibility of justice in civil cases and, second, to single out the ways and means ensuring access to justice which correspond to each component.

      1. Ensuring Relief at Law for Violated or Challenged Rights

      As stated above, the standards of the Council of Europe respecting administration of justice in civil cases do not admit limitation of the judicial control in certain spheres or with respect to certain categories of cases.

      In Russia at present the restrictions on the recourse to court have been lifted and any legal case may actually become the subject of court proceedings. However, extension of the sphere of judicial protection (as it is now) has negative aspects, as well: it brings about considerable overwork for the judicial corps that, no doubt, has a negative effect on accessibility and effectiveness of justice.

      The way out of the situation lies, as conceived, in the opportunity given to the states - signatories of the Convention to select means and mechanisms of judicial cases distribution between judicial and non-judicial (administrative) bodies of civil jurisdiction. Thus, in the case of Le Compte, Van Leuven and De Meyere the European Court of Human Rights pointed out that requirements of flexibility and efficiency, which are completely consistent with protection of human rights, may justify the preceding interference of administrative and especially judicial bodies that is not quite in line with the requirements of para 1, Art. 6 of the Convention.

      In this connection, the suggestions that certain categories of cases of indisputable nature be exempted from the competence of judicial bodies, seem to be quite reasonable and admissible subject to preservation of the mechanism of a subsequent judicial control.[6]

      2. Knowledge of Organization and Functioning of the Judicial System

      Quite obvious (including for supervisory bodies of the Council of Europe) is the thesis that effective functioning of institutes called upon to ensure real protection of violated or challenged rights is possible exclusively when interested persons know what is to be known about remedies at law.

      Respective requirements to the states - signatories of the Convention are set forth in the Recommendations of the Committee of Ministers of the European Council dated 14 May, 1981, No. R(81)7 The Committee of Ministers to the Member-States Regarding the Ways of Furthering Access to Justice. Pursuant to para 1 of the Recommendations the competent bodies of the member-states are obliged to undertake proper measures to inform the public of the location and jurisdiction of courts, as well as the procedure of recourse to courts or defense of their interests in court proceedings.

      The Recommendations provide that respective information of the general nature may be available either directly with the judicial bodies or with any other competent office, the minimum scope of information on organization and functioning of the judicial system including the following matters:

      - procedural rules (provided this information does not contain legal advice on the merits of the case);
      - the procedure of recourse to courts and the time limits of such recourse;
      - procedural requirements and necessary documents;
      - means of judgments enforcement and, whenever possible, costs and expenses connected therewith.

      3. Streamlining of Civil Proceedings

      It is no secret that the civil procedure is rather often so complicated, protracted, and costly that the persons concerned experience considerable difficulties in exercise of their rights of access to justice. Therefore, the demand to simplify the civil procedure, to make it more flexible and operative, preserving concurrently the guarantees granted to the parties to proceedings by traditional procedural rules, is quite logic. Streamlining of the judicial procedure aimed at facilitating the access to justice is admissible exclusively provided the high quality of justice required in a democratic society is ensured.

      The Recommendations of the Committee of Ministers of the Council of Europe dated 14 May 1981, No. R (81) 7 The Committee of Ministers to the Member-States Regarding Ways of Furthering Access to Justice and the Recommendations dated 28 February 1984, No. R (84)5 The Committee of Ministers to the Member-States Regarding the Principles of the Civil Procedure Aimed at Improvement of the Judicial System contain the following suggestions on streamlining the civil procedure:

      - measures must be taken for facilitation or encouragement, whenever appropriate, of reconciliation or amicable settlement of a dispute prior to or during the court proceedings;

      - a counsels participation must not be obligatory in those cases when it would be reasonable that by virtue of the nature of the dispute and with the purpose to facilitate access to justice the individuals present their cases themselves;

      - a judicial process should usually consist of no more than two court sessions: the first session may be of a preparatory nature, and during the second one arguments and evidence must be adduced and, if possible, a judgment should be delivered;

      - relative sanctions should be applied against any party defaulting on necessary procedural actions to be performed within the time periods fixed by law or by a court. Depending on the circumstances, such sanctions may be as follows: deprivation of the right to perform procedural actions, a judgement awarding the damages and costs, imposition of fines, shelving of an application;

      - a court should be able to summon witnesses, and in case of default of the latter with no good reason - to impose adequate sanctions (fines, damage compensation, etc.) on them. In case of a witnesss default the court itself decides to proceed without hearing his testimony;

      - if an expert appointed by the court fails to submit his opinion or delays submission thereof without good reason, adequate sanctions may be imposed on him, as well. They may include reduction of his fee, decision on his payment of costs or damage compensation, as well as disciplinary measures to be taken by court or by a professional agency;

      - if any party acts in bad faith during proceedings and evidently breaches the procedure with the apparent aim to protract the case trial, the court should be empowered either to immediately deliver a judgment on the merits of the dispute or to impose such sanctions as, for example, fines, obligation to compensate for the damage, deprivation of the right to perform procedural actions;

      - the final judgment must be delivered at the final court session or within the shortest time thereafter. The judgment must be eminently terse;

      - respective measures must be taken to prevent misuse of remedies after delivery of a judgment. In particular, to prevent from the use in bad faith of the right of appeal, it is necessary to pay special attention to the possibility of interlocutory judgments which may be appealed against, as well as to bank interest payable on the adjudicated amount until the judgment is completely enforced.

      4. Timely Administration of Justice in Civil Cases

      Passing the Recommendations dated 14 May 1981, No. R(81)7 and 28 February 1984, No. R(84)5, the Committee of Ministers of the Council of Europe proceeded from the fact that certain rules and procedures of the civil process adopted in the member-states in certain events may hamper an efficient administration of justice. Such rules (procedures) may not already meet the requirements of a modern society, and, second, they may be misused by the parties in order to protract court proceedings. To prevent such abuses, a court must play an active role to ensure quick proceedings, at the same time respecting the rights of the parties, including the right to impartiality.

      A court, in particular, should have the following authorities:

      - to demand such explanations from the parties as it deems appropriate;

      - to demand that the parties appear in person;

      - to summon witnesses, especially whenever the matter concerns interests of persons other than those involved in the case;

      - to supervise examination of witnesses;

      - to exclude from proceedings those witnesses whose testimony is irrelevant for this case, to limit a number of witnesses in the case.

      Unless otherwise prescribed by law, statements of claim or defense must be submitted at the earliest stage of proceedings and, in any case, before the end of the preliminary stage, if any. While considering an appeal, an appellate court usually disregards the circumstances which have not been presented before the court of original jurisdiction, unless the latter knew about them, or the person submitting them was a party to the proceedings in the original jurisdiction, or there were certain special reasons for their admittance.

      Besides, the Recommendations dated 28 February 1984, No. R(84)5 stipulate that the member-states must work out specific rules or a code of rules speeding up adjudication: a) in urgent cases; b) in cases connected with an indisputable right; c) in cases related to claims for small amounts; c) in certain categories of cases (related to traffic accidents, labour disputes, matters connected with housing lease relations, some issues of the family law, in particular, determination and review of a maintenance rate).

      The following measures are suggested for this purpose:

      - simplified methods of proceedings commencement;

      - proceedings with only one or no court sessions;

      - either written or oral proceedings, depending on circumstances;

      - ban or limitation of certain objections and explanations;

      - more flexible rules for testimony;

      - conduct of proceedings with short or no breaks;

      - appointment of court experts either ex officio or at the parties request, if possible - before the commencement of proceedings;

      - active participation of the court in a case, including in summoning the witnesses and hearing their testimony.

      5. Competence, Independence, And Impartiality of Judges

      Ensuring competence, independence, and impartiality of judges, i.e. those professional qualities which every person seeking relief expects from judges, are an important guarantee of the right of access to justice, for realization of which the member-states of the Council of Europe are responsible.

      Judges discharging their duties should meet at least the following requirements:

      1) to be accessible for and respectful towards the persons addressing him;

      2) to maintain a high level of competence necessary to adjudicate every specific case (para 1.5. of the European Charter on the Status of Judges dated 10 July, 1998).

      6. Legal Assistance and Legal Advice

      Judicial proceedings in any country presuppose various costs (statutory duties, attorneys fees and other legal costs, deposition of a bail, etc.), and the rate of the costs may vary unlimitedly.[7] This circumstance may essentially hamper or even make realization of the right of relief impossible.

      Therefore, the states - signatories of the Convention must take every necessary measure to remove economic obstacles in access to justice in civil cases. It is assumed that achievement of the above goal may be furthered by decrease of legal costs, simplification of the system of legal costs and expenses, and control over attorneys and experts fee rates (Recommendations dated May 14, 1981, No. R(81)), as well as availability of respective systems of legal assistance rendered especially to persons in a hard financial circumstances. It is the state which must finance legal assistance to such persons.

      Fundamental principles of rendering legal assistance in civil cases are fixed in the Resolution of the Committee of Ministers of the Council of Europe dated March 2, 1978, No. (78)8 On Legal Assistance and Advice:

      - in consideration of the necessity to render legal assistance, the financial status and liabilities of the interested person and the anticipated amount of legal costs should be taken into account;

      - in consideration of the necessity to render legal assistance, the authorities, proceeding from the circumstances of the case, may decide on expediency for the interested person to file an action or participate in the proceedings as a respondent, take into account the nature of the proceedings and, whenever necessary, render support only with respect to the costs unrelated to the attorneys participation in the case;

      - a legal assistance should be provided even in those cases when the interested person can pay for a part of the legal costs. In this event, the assistance may be provided with financial participation of the interested person;

      - a legal assistance must cover all costs incurred by the person in the process of his rights protection, in particular, attorneys fees, court duties, expert examination cost, compensation for the costs incurred by witnesses, etc.;

      - it would be desirable if a legal assistance relieved from deposition of a bail or a deposit for legal costs coverage;

      - it is necessary to ensure the possibility to receive a legal assistance during proceedings if the financial status of the party has changed or another circumstance has arisen that necessitates this assistance;

      - the person receiving a legal assistance, should be, whenever possible, free to choose a qualified attorney;

      - the person commissioned to participate in the case should get an adequate remuneration for the work performed in the interests of the legal assistance recipient;

      - the system of legal assistance should provide for the possibility to review a decision to deny the legal assistance;

      - financial conditions of a legal assistance must be revised and up-dated, in particular, in view of the growth of the cost of living;

      - it is necessary to notify the legal assistance system operation to the public and interested circles, in particular, those public agencies, which may be approached by potential legal assistance recipients.

      Apart from the legal assistance, removal of obstacles in access to justice is also facilitated by furthering of access to legal advice.

      Pursuant to the Resolution dated March 2, 1978, No.(78) 8, a state must ensure provision to persons in hard financial circumstances of a necessary legal advice on all matters that may concern their rights and interests. The legal advice should be provided to an applicant therefor either free of charge, or for payment of an amount corresponding to his financial capabilities.

      7. Publicity of Civil Proceedings

      It is known that public[8] proceedings are rather in the interests of the public than of the parties, since publicity inspires reliance on the system of justice administration. The European Court of Human Rights ruled in several cases that the principle of publicity must be fully observed especially in absence of one of the considerations mentioned in para 1, Art 6 of the Convention (morale, public order or national security in a democratic society, the necessity to protect privacy of the parties, or a possible abuse of justice), pursuant to which the public and the press may not be admitted to the court room in certain circumstances. The restrictions of the principle of publicity of civil proceedings provided for by Russian law mainly concur with the above rules.

      In recent years the European Court of Human Rights has admitted that the concept of public court proceedings provided for in para 1, Art 6 of the Convention includes also the right of oral proceedings at least in the original jurisdiction.[9] When one or another person petitions for oral proceedings, and there are no exceptional circumstances justifying denial thereof, the above right is deemed abused.


      8. Availability of Final Judgments

      The issue of availability of judicial acts arises in connection with the general requirement of full awareness of all the court rulings as one of the main conditions of fair law enforcement. The Committee of Ministers of the Council of Europe in its Recommendation dated 11 September, 1995, No. R(95)11 The Committee of Ministers to the Member-States Regarding Selection, Processing, Submission, and Filing of Judgments in Legal Information-Retrieval Systems pointed out that availability of objective and representational retrieval systems of information about court rulings is very important for administration of justice .

      According to these Recommendations, the purposes of the automated retrieval systems consist in the following:

      - to facilitate the work of lawyers by quick provision of complete and up-to-date information;

      - to provide all persons showing direct or indirect interest in the court rulings with required information;

      - to disseminate more quickly the information on new judgments, especially in developing branches of law;

      - to further the uniform character of the court rulings (reliability of law - Rechtssicherheit) without introduction of stagnation elements thereto;

      - to allow law drafters to make analysis of the law enforcement practice;

      - to promote research in the sphere of the court rulings;

      - in certain cases to provide information for statistical purposes.

      One can hardly overestimate the importance of the objectives of the automated retrieval systems. The very organization of the judicial system as a separate branch of the state power entails inevitably appearance of rule-making functions of judicial authorities, which, in its turn, necessitates publication (in one or another form) of acts adopted by them.

      Meanwhile, as A. Gorbuz points out, the idea of the necessity of depositing of judgments in electronic forms to ensure their free use does not prevail to-day among representatives of the judicial corps and the scholars community. Hence, there are no compulsory rules regarding the requirements (such as the means and the limits of publication, procedures of taking decisions on the nature of restrictions and/or selection of judgments, etc.).[10]

      It seems that would-be makers of such rules should follow the guiding principles set forth in the Recommendation dated 11 September 1995, No. R(95)11, in particular, the principles and criteria of judgments selection.

      Pursuant to the Recommendation, the selection of judgments may be effected according to the following criteria:

      - hierarchical selection, i.e. selection of judgments of one or several instances depending on their hierarchical status in the legal system of a respective country;

      - geographical selection, i.e. selection of judgments delivered by one or several courts selected according to their geographical location;

      - selection according to branches of law, i.e. selection of judgments delivered in one or several branches of law, such as the criminal law, the environment protection law, the procedural law, the fiscal law etc.;

      - selection on the merits, i.e. selection of judgments depending on whether they are of sufficient legal interest or not. The legal interest means that a judgment creates a rule of law, for example, sets up a legal precedent, reflects the procedural practice in such a way that the judgment seems or may seem to be important for getting proper and detailed information on the court rulings in one or another sphere of law.

      The selection should be effected so that to ensure objectivity and representativeness of the data base. The selection should, on the one hand, ensure wide and comprehensive access to the information on the judgments and, on the other hand, exclude probability of accumulation of useless information.

      Conclusion

      Within the framework hereof the author considers it impossible to enter into discussion of the degree of obligation of the above prescriptions contained in Resolutions of the Committee of Ministers of the Council of Europe, and law provisions worded by the European Court of Human Rights in specific cases trial. The bodies of the Council of Europe are evidently not entitled either to reverse the judgments delivered by a public authority or a national court, or to perform an abstract judicial control over the rules of national laws.

      Nevertheless, the Convention application practice shows that the states adjudicated guilty of violation of the Convention rules usually take measures to eliminate such violations, including through amendment of law. Thus, in Germany there were taken necessary measures to expedite civil proceedings; in Ireland the judicial procedure was simplified and systems of legal assistance and advice were set up; in Sweden the judicial procedure of governmental decrees review was introduced, etc.[11]

      It seems that in the near future this country will have to traverse a difficult path of bringing the legal thinking, law-making activities, and law enforcement practice in line with the standards of the Council of Europe, including those in the sphere of the civil proceedings.


[1]  See, for example: S.S. Alekseev, Pravo: azbuka - teoriya - philosophiya - opyt kompleksnogo issledovaniya (Law: the ABC - Theory - Philosophy -Experience of a Comprehensive Research). Moscow, 1999, p.608;
      V.V. Yarkov, Budushchee sistemy grazhdanskoi yurisdiktsii : popytka prognoza, v: Sistema grazhdanskoi yurisdiktsii v kanun XXI veka: sovremennoe sostoyanie i perspektivy razvitiya (The Future of the System of Civil Jurisdiction: an Attempt at a Forecast, in: The System of Civil Jurisdiction on the Eve of XXI Century: the Current Situation and Prospects of Developmen, Intercollege Collection of Scientific Works. Ekaterinburg, 2000, p. 42-43.

[2]  D. Gomien. Kommentarij k Evropeiskoi konventsii o zashchite prav cheloveka (Comments on the European Convention on Human Rights Protection). Strasbourg, 1995, p.5.
[3]  Pursuant to para b, Art. 15 of the Statute of the Council of Europe conclusions of the Committee of Ministers in due circumstances may be made in the form of recommendations to the governments of the Members of the Council of Europe, and the Committee of Ministers may request that the governments report on the progress of implementation of such recommendations.
[4]  I.V. Reshetnikova, V.V. Yarkov. Sudebnaya reforma v sfere grazhdanskoi yurisdiktsii v Rossii (The Judicial Reform in the Civil Jurisdiction in Russia), in: Sudebnaya reforma: problemy grazhdanskoi yurisdiktsii ( The Judicial Reform: Problems of the Civil Jurisdiction), Ekaterinburg, 1996, p. 28.
[5]  Gomien D., Zvaak L., Harris D. Evropeiskaya konventsiya o pravah cheloveka (European Convention on Human Rights and European Social Charter: Law and Practice), Moscow, 1998, p. 204.
[6]  See, for example, V.F. Yakovlev, My dolzhny sokhranit slozhivshuyusya sudebnuyu systemu, v: Rossijskaya yustitsiya (We Should Preserve the Existing Court Practice, in: Russian Justice). 2001, No.1, p. 7.
[7]  This is attested by the rulings of the European Court of Human Rights. Thus, in the case of Tolstoi-Miloslavsky the plaintiff alleged that his right of access to justice had been violated because his right of appeal was conditioned on the necessity to remit by post 124,900 pounds sterling within fourteen days as a guarantee of coverage of the adversarys costs.
[8]  In the Russian legal tradition the term openness is used instead of the term publicity. For the purposes of this work and with due regard for the terminology of the Convention, these notions will be used as equivalents.
[9]  D. Gomien, L. Zvaak, D. Harris, ditto, p. 211.
[10]  Dostupnost sudebnogo resheniya, v: Rossijskaya Yustitsiya (Availability of a Judgment , in: Russian Justice), 2001, No. 1, p. 37.
[11]  Prava cheloveka: postoyannaya zadacha Soveta Evropy (Human Rights: Continual Task of the Council of Europe). Moscow, 1996, pp. 13-14.


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