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R.E. Gukasyan,


      Accessibility of justice in civil cases is fixed in Art. 46 of the Constitution of the Russian Federation guaranteeing every person the judicial protection of his rights and freedoms. No restrictions of this right are admissible. The procedural legislation defines this possibility more concretely as applicable to different stages of the civil procedure and legal situations.

      Accessibility of justice means not only the possibility to initiate proceedings, but also the possibility to use all procedural remedies provided for by the procedural legislation. In this respect accessibility of justice may be interpreted as: a) the possibility to initiate (institute) proceedings; b) the possibility to appeal against a judgment (a determination); c) the possibility to institute review proceedings of judicial rulings in the exercise of supervisory power; d) the possibility to review court rulings by virtue of discovery of new circumstances. Accessibility of all the above stages constitute accessibility of justice in civil proceedings. It does not depend on whose initiative a separate stage of the civil procedure is instituted: on the initiative of the persons having a personal interest or on the initiative of the persons conveying a public interest. The most important thing is that the judicial mechanism is put into operation.

      Every stage of a civil procedure is strictly regulated by the procedural legislation, though it may contain rules hampering accessibility of this particular stage. If such rules are identified, they must be eliminated, since they are contrary to Art. 46 of the Constitution of the Russian Federation.

      The commencement of realization of accessibility of justice is a recourse to a court, acceptance of a statement of claim by a judge. Art. 129 of the Code of Civil Practice (the CCP) sets forth the grounds for rejection of claims, including, inter alia, the determination on accepting the claim abandonment and on termination of the proceedings by virtue thereof, which has come into effect and was issued in the dispute between the same parties, on the same contention, and on the same grounds (para 3, Art. 129 of the CCP). This rule prevents exercising the right of court since it disregards the difference between continuing substantive relations and those realizable at a time. The abandonment of a claim related to continuing substantive relations cannot be the ground for rejection of a statement of claim, since the legal relations being the subject of the dispute still persist.
      The matter concerns division of common property, common right of enjoyment, recovery of a child’s support, a divorce, etc.

      In the above and similar cases the second recourse to the court is quite lawful, since even after delivery of a determination on termination of the proceedings, substantive relationship remains unchanged and may be altered compulsorily by a court ruling.

      Pursuant to Articles 4 and 42 of the CCP (in the former version) public and local authorities, organizations, and individuals could apply to a court for protection of the rights and interests of others protected by law. These subjects, applying to a court on their own behalf, realized the public interest and promoted restoration of the violated law and order. The consent of the persons in whose interests the proceedings were initiated was not required. However, during the proceedings preference was given to the will of the subjects having personal (private) interest. If they waived the procedure, the proceedings were terminated. Actions of the persons initiating civil proceedings aimed at protection of the rights and interests of others protected by law were an additional guarantee of the accessibility of justice.

      Following the amendments introduced into Art. 42 of the CCP by the Law dated 7 August 2000, public and local authorities, organizations, and individuals may apply to a court to protect the interests of adult capable persons only at the latter’s request. In such circumstances, such legal recourse does not appear to be an additional guarantee of accessibility of a relief at law any more, but represents a peculiar form of a free legal assistance existing alongside with the assistance rendered by attorneys and other representatives for value.

      Immediate enforcement of judgments and determinations and impossibility to appeal against these do not ensure complete realization of accessibility of justice. Therefore, it was quite rightful that in strict compliance with the Constitution of the Russian Federation the laws were amended so that to provide for the possibility to appeal to courts of review against judgments and determinations issued in the original jurisdiction of the Supreme Court of the Russian Federation. Later, the amendments introduced by the Law of 7 August 2000 provided for immediate entry into force of separate judgments in cases related to protection of suffrages (Art. 208 of the CCP). This is a direct evidence of a certain restriction of accessibility of justice that can hardly be justified, since it would have been quite enough to provide for immediate enforcement of judgments, preserving the possibility to appeal against the latter in the court of review.

      The stage of review of effective judicial rulings in the exercise of supervisory power occupies a special place. Accessibility of this stage of the civil procedure for persons in dispute is complicated by the necessity of will declaration by the highest officers of a court and office of a public prosecutor, who after familiarization with the case materials and identification of violations may file a protest against the effective judicial rulings before a competent court. The persons in dispute may only inform these officers, although the same may be done by non-participating persons. It is evident that the driving force at this stage of procedure is a public interest, rather than a personal one, conveyed by the highest officers of the court and office of a public prosecutor verifying the rightness of judicial acts.

      Abrogation by the Law of 7 August 2000 of Articles 11, 12 of the CCP, which provide for the supervision by the courts of superior jurisdiction and an office of a public prosecutor over the judicial activities, in no way means that verification of judicial acts of lower courts is not carried out by the courts of superior jurisdiction and that a public prosecutor does not discharge the functions of supervision in the civil procedure. All this actually takes place, but in the form and to the extent not affecting the independence of judges in the civil procedure.

      Hence, accessibility of justice in the supervisory instance is inseparable from the will declared by competent officers of a court and an office of a public prosecutor. Under the law these persons should not have their personal interest in the case, they must convey the public interest in justice. But none of the representatives of the public authority, including a public prosecutor and a judge, are «personification of lawfulness» as it is sometimes presented. There is only a factual presumption that the public interest is realized through their actions. That it is only a presumption is attested by the fact that by virtue of law the actions of any representative of the power, including those of a judge, may be appealed against in the manner prescribed by law. The presumption that an officer acts in the public interests may be refuted.

      Therefore, in the course of reforming the civil process there is no necessity to give preference either to a judge or a public prosecutor to file a protest. Both of them can equally perform this function as exponents of public interests, or may ignore the public interest for the sake of their personal interests. There can be no guarantee here, since any human activities, in whatever spheres these are carried out, are subject to by one and the same influence. This circumstances should be taken into account in rule-making and unfavorable consequences thereof should be minimized as far as possible .

      At the stage of review of judicial rulings as a result of new circumstances discovery, accessibility of justice is ensured by the vesting the persons in dispute with the right to file applications, though this right may be exercised within three months from the day when the circumstances are discovered. A public prosecutor can file an application with no time limits. Time limits for the persons in dispute are not justified since, apart from other things, they are not connected with expiration of the time period after delivery of the ruling to be revised, but with the date when the new circumstances were discovered, and this may occur much later. The rights of persons in dispute to institute review of the case according to new circumstances must be equated with the rights of a public prosecutor.

      It should be noted that access to justice currently lies in the sphere of economy, rather than the legal one. Lack of sufficient financing of courts ensuring smooth functioning of justice affects all aspects of accessibility, entails non-observance of time limits of consideration of cases and other violations of the procedural legislation. The problem concerned goes beyond the framework of the legal sphere and is solved with due regard for the priorities and economic capabilities of the state. An attempt to solve it by legal means (artificial reduction of the number of cases in courts, cutting down the number of persons having the right to file a protest in exercise of the supervisory power, etc.) will hardly further accessibility and effectiveness of justice.

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