Do citizens have effective access to the judiciary, also for judicial review of governmental action?

Formally, Ukrainian legislation provides effective access of citizens to the judiciary. There are some provisions of our law that states some norms:

• Article 55 Of constitution of Ukraine:

Human and citizen rights and freedoms shall be protected by court.

Everyone shall be guaranteed the right to challenge in court the decisions, actions, or inactivity of State power, local self-government bodies, officials and officers.

Everyone shall have the right to appeal for the protection of his rights to the

…

After exhausting all domestic legal instruments, everyone shall have the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.

Everyone shall have the right to protect his rights and freedoms from violations and illegal encroachments by any means other than prohibited by law.

• Article 7 «Right to Judicial Protection» (Law on the Judiciary and the Status of Judges)

1. Everyone shall enjoy a guaranteed protection of their rights, freedoms and interests by an independent and impartial court established according to law.

2. Courts of first instance, courts of appeals, courts of cassation and the Supreme Court of Ukraine shall operate in Ukraine to ensure fair and unbiased consideration of cases within reasonable time, established by law.

3. Everyone shall have the right to take part in the consideration of his/her case in a court of any level in the manner prescribed by the procedural law.

4. Foreigners, stateless persons, and foreign legal entities shall enjoy in Ukraine the right to court protection on equal terms with the citizens and legal entities of Ukraine.

• Article 21. Access to justice and the binding nature of court rulings (Criminal procedure code of Ukraine):

1. Everyone shall be guaranteed the right to a fair trial and resolution of the case within reasonable time limits by independent and impartial court established on the basis of law.

2. Court’s judgment or ruling that took legal effect as prescribed by the present Code shall be binding and subject to unconditional execution in the entire territory of Ukraine.

3. Everyone has the right to participate in any judicial hearings of the matter related to their rights and duties in accordance with the procedure set forth in the present Code.

4. Unless otherwise prescribed by in the present Code, conducting criminal proceedings may not be an obstacle to a person’s access to any other legal remedies to protect their rights in case where in the course of the criminal proceedings their rights enshrined in the Constitution of Ukraine and international treaties of Ukraine are being infringed.

There are, of course, other provisions that are located in other procedure codes. But there are some necessary limits. Without them every judicial system can become chaotic. For example, in our country there is a court fee, aimed to restrict an abuse that can happen in our life (we can imagine if there would be no court fee. Every company could eliminate any others to take a sector of economic and it’s even difficult show how many cases a court has to decide). So sometimes there is necessity to restrict this right, what is, I think, normal. To prove this position, there is practice of the European Court of Human Rights, which expresses in some cases. There is an example in “Interights manual for lawyers — Right to A Fair Trial under the ECHR (Article 6)”, which says: “In Ashingdane v United Kingdom (1985), the Court expressly stated that the right of access to court is not absolute: it is open to States to impose restrictions on would be litigants, as long as these restrictions pursue a legitimate aim and are not so wide ranging as to destroy the very essence of the right. In that case, it was held that it is legitimate to impose restrictions on the access to court of mental patients to protect those responsible for them from being unfairly harassed by litigation. Thus a limitation of the liability of authorities responsible for patients for acts done negligently or in bad faith, coupled with a requirement that substantial grounds for contending that there was negligence or bad faith had to be demonstrated to the court before proceedings could go ahead, has been held compatible with Article 6(1)”.

Also I’d like to say that the right of access to court thus also includes the right to obtain a decision from a court. The European Court of Human Rights found a violation of the right to access where the domestic courts have apparently lost the case file and thus failed to deliver a judgment (Dubinskaya v Russia (2006)). I think, the same things were, are and will be in Ukraine.

Another example of limits of this right can be event when a person who would like to sue someone but can’t do it because of an incapacity or something else. Of course, there is the provision which guaranty rights of such persons (according to civil procedure code of Ukraine a prosecutor can represent this person at court, but practically how the prosecutor can get to know that there is such a the person who needs a help, especially when such a person lives alone).

One more example — sometimes there is distance between a court and a person who wants to sue. It can get a case when the person doesn’t want to get over the kilometers which creates impossibility to protect a right of a person.

It means that, unfortunately, there is a difference between reality and what is written in our legislation. Fortunately, our law gives us to protect our rights, but the question is that it’s impossible to guaranty our rights in 100%, so there is always a case when person can’t protect her/his right because of weakness of application of law.

To the second question of this topic — judicial review of governmental action, I can say that there is a possibility to review governmental action. We have Administrative judicial code of Ukraine which permits to protect citizens’ rights if they are infringed by a state body by means of the adoption or the change of legal provisions. But of course not always it’s possible to protect somebody’s right, even though this person is right.