An Examination of the Administrative Courts of Ukraine in the Context of Understanding the Concept of “a Court Established by Law”’
Summary: 1. Introduction. – 2. ‘Full Level of Jurisdiction’ as a Defining Characteristic of the Body Administering Justice. – 3. ‘Full Level of Jurisdiction’ for Administrative Courts (features of providing means of national procedural law). – 4. The Concept of ‘A Court Established by Law’ in National Laws. – 5. The Concept of ‘A Court Established by Law’ in the Practice of National Courts. – 6. Conclusions.
Abstract
Background: Constituent parts of the right to a fair trial, which presuppose the need for the existence of institutions in a state that are authorised to review and resolve legal conflicts and united by the concept of ‘a court established by law’, are identified and studied in this article. The study is based on the decisions of the European Court of Human Rights, which outlines the criteria to which any institution authorised to administer justice must correspond. The aim of the study is to verify the Ukrainian laws that determine the principles of developing and functioning administrative courts in order to enshrine in their texts the requirements arising from the content of a legal formula for a ‘court established by law’.
Methods: In this article, the authors use the following special legal methods: conceptual-legal, comparative-legal, formal-legal, and others. For example, with the help of the formal-legal method, it was possible to analyse the current trends in the practice of national administrative courts in compliance with the proposed requirements.
Results and Conclusions: The article states that the operation of Ukrainian laws creates the right conditions for administrative courts to be perceived as institutions with ‘full jurisdiction’ in resolving public disputes of any kind. At the same time, the authors conclude that there are cases in which the courts violate the provisions of Art. 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, despite the fact that such provisions have been implemented in the national administrative, procedural law.
About Authors
Marchenko Olena,
Candid. of Legal Science (equiv. to Ph.D.), Senior Lecturer at Administrative Law Department, Yaroslav Mudryi National Law University, Kharkiv, Ukraine o.o.marchenko@nlu.edu.ua https://orcid.org/0000- 0002-6988-2430
Corresponding author, responsible for conceptualization and methodology. Competing interests: No competing interests were disclosed. Disclaimer: The author declares that her opinion and views expressed in this article are free of any impact of any organizations.
Pysarenko Nadiia,
Ph.D. (Law), Associate Professor at Administrative Law Department, Yaroslav Mudryi National Law University, Kharkiv, Ukraine n.b.pysarenko@nlu.edu.ua https://orcid.org/0000-0003-2159-5459
Co- author, responsible for data collection and writing. Competing interests: Any competing interests were announced. Disclaimer: The author declares that her opinion and views expressed in this article are free of any impact of any organizations, including those related to her service as a member of the Scientific and Advisory Board of the Supreme Court.
Balakarieva Iryna,
Candid. Of Legal Science (equiv. to Ph.D.), Assistant Professor at Administrative Law Department, Yaroslav Mudryi National Law University, Kharkiv, Ukraine i.m.balakaryeva@nlu.edu.ua https:// orcid.org/0000-0001-8312-0216
Co-author, responsible for data collection and writing. Competing interests: Any competing interests were announced. Disclaimer: The author declares that her opinion and views expressed in this article are free of any impact of any organizations.
Managing editor – Dr Tetiana Tsuvina. English Editor – Dr Sarah White.
Copyright: © 2022 Marchenko O, Pysarenko N, Balakarieva I. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
References
-
Fulei TI, Application of the case law of the European Court of Human Rights in administrative justice (2nd edn, 2015) 128.
-
Kuibida RO, Shishkin VI (eds), Fundamentals of administrative proceedings and administrative law (Staryi Svit 2006).
-
Khotynska-Nor OZ, ‘The influence of the legal opinions of The European Court of Human Rights on the development of justice in Ukraine: material aspect’ (2014) 11 Bulletin of the
Bar Academy of Ukraine 8-18.
-
Lukaides L, ‘Fair Trial. Commentary to Article 6, paragraph 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2004) 2 Russian Justice 8-20.
-
Pysarenko NB, ‘Applicability of guarantees of the right to a fair trial in administrative proceedings: the case law of the European Court of Human Rights and Ukrainian realities’ (2016) 3 (86) Bulletin of the National Academy of Law of Ukraine 214-228.
-
Recommendation No R (80) 2 on the exercise of discretion by administrative authorities:
-
Schmidt-Assmann E, General Administrative Law as an Idea of Regulation: Basic Principles and Tasks of Administrative Law Systematics (H Ryzhkov, I Soiko & A Bakanov transl. from German, O Syroid ed., КІS 2009).
-
The Code of Administrative Proceedings of Ukraine (as amended of 3 October 2017) <https://zakon.rada.gov.ua/laws/show/2747-15> accessed 1 December 2021.
-
Tolochko O,‘The right to a fair trial (Article 6 ECHR) in the light of Ukrainian law and case law’ in OL Zhukovska (ed), European Convention on Human Rights: Basics, Application Practice, Ukrainian Context (VIPOL 2004) 233-270.
-
Tsuvina TA, The right to a trial in civil proceedings (Slovo 2015).
-
Vavrynchuk TB, ‘Review of the case law of the European Court of Human Rights under Article 6 of the European Convention on Human Rights (Civil Procedure) in Ukraine’ (2014) 1 Law and Civil Society 171-189.a
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Marchenko O, Pysarenko N, Balakarieva I ‘An Examination of the Administrative Courts of Ukraine in the Context of Understanding the Concept of “a Court Established by Law”’ 2022 2 (14) Access to Justice in Eastern Europe Pp. 96-112. DOI: https://doi.org/10.33327/AJEE-18-5.2-a000218
