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The Role of Legal Certainty Principle in Provision of Access to Justice in Ukraine in Wartime

Summary: 1. Introduction. – 2. Access to justice and access to court: challenges caused by war. – 3. Approaches to the principle of legal certainty. – 4. Views of Ukrainian scholars on the principle of legal certainty. – 5. Coordination of legal certainty and access to justice. – 5.1 Access to justice as an element of the rule of law along with legal certainty. – 5.2 Access to justice as a way of ensuring legal certainty. – 5.3 Access to justice and the influence of legal certainty requirements. – 6. Conclusion.

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 Background: The paper offers the analysis of implementation of legal certainty principle and access to justice in Ukraine. Both are regarded in connection to the rule of law principle; their coordination is shown in cases when the application of rule of law is required to patch the holes of imperfect judicial system facing the challenges of the ongoing war.

Methods: The methods of legal reasoning and analysis are used to present the main approaches to legal certainty principle as well as to the access to justice. Additionally, with the help of comparative method their meaning and influence on the legal practice are established. The method of analogy is used to predict the possible solutions in order to improve access to justice in Ukraine.

Results and Conclusions: Legal certainty is an element of the rule of law, it provides predictability in legal regulation, the clarity of legal norms, and demands the propriate way of legal acts enforcement as well as prohibits retroactivity. It challenges respect to the legitimate expectations and provides stability in legal regulation. The improvement in the application of the right to access to justice is beneficial for the legal certainty and vice versa. When legal certainty is violated due to the gap in legislation, unclarity of legal norms or controversy of legislative provisions and violated rights of the claimant could be restored, if the right of access to court is fully guaranteed. It is stated that res judicata, a requirement for legal certainty is a demand that is also common to access to justice.

Abstract

Background: The paper offers the analysis of implementation of legal certainty principle and access to justice in Ukraine. Both are regarded in connection to the rule of law principle; their coordination is shown in cases when the application of rule of law is required to patch the holes of imperfect judicial system facing the challenges of the ongoing war.

Methods: The methods of legal reasoning and analysis are used to present the main approaches to legal certainty principle as well as to the access to justice. Additionally, with the help of comparative method their meaning and influence on the legal practice are established. The method of analogy is used to predict the possible solutions in order to improve access to justice in Ukraine.

Results and Conclusions: Legal certainty is an element of the rule of law, it provides predictability in legal regulation, the clarity of legal norms, and demands the propriate way of legal acts enforcement as well as prohibits retroactivity. It challenges respect to the legitimate expectations and provides stability in legal regulation. The improvement in the application of the right to access to justice is beneficial for the legal certainty and vice versa. When legal certainty is violated due to the gap in legislation, unclarity of legal norms or controversy of legislative provisions and violated rights of the claimant could be restored, if the right of access to court is fully guaranteed. It is stated that res judicata, a requirement for legal certainty is a demand that is also common to access to justice.

About Authors

 


Hanna Ostapenko  


Cand. of Science of Law (Equiv. Ph.D.), Associate Professor at the Intellectual Property and Information Law Department, Taras Shevchenko National University of Kyiv, Ukraine

hannaostapenko@knu.ua

https://orcid.org/0000-0003-0529-2551

Author, responsible for writing and research. Disclaimer: The author declares that her opinion and views expressed in this manuscript are free of any impact of any organizations. 
Translation: The content of this article was written by author and is under the authors’ responsibility.

Funding: The authors received no financial support for the research, authorship, and/or publication of this article. The Journal provided funding for the publication of this article.

Managing editor – Dr. Olha Dunaievska. English Editor – Lucy Baldwin.

Copyright: © 2023 Hanna Ostapenko. 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.

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Keywords

  • legal certainty, rule of law, access to justice, access to court, legitimate expectations

Publication history

  •  Submitted on 05 Feb 2023 / Revised 1st 25 Feb 2023 / Revised 2nd 5 Apr 2023 / 

    Approved 20 Jun 2023 / Published online: 3 Jul 2023 / Last Publicahed: 1 Aug 2023

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