PDF

Oleg TKACHUK,

Judge of the High Specialized Court of Ukraine for Civil and Criminal Cases, Candidate of Law, Associate Professor

ROLE OF JUDGE IN CIVIL JUDICIAL PROCEEDINGS AS COMPONENT OF RIGHT TO FAIR TRIAL

The article provides the analysis of the role of a judge as the main component of right to fair trial while justice administering in civil cases. The issues, which must be studied in this field, have been outlined. There are some opinions in the article that fairness of civil judicial proceedings directly depends on the honesty, integrity and fairness of the very judge.

Herewith, it is proved that the fairness of separate representatives of state power is personification and manifestation of the fairness of the whole system. Particularly, each person’s right to fair court can be realized, firstly, due to fair judges. Certainly, they also must be educated, qualified, virtuous. But the essence of fairness of the judicial system directly consists of the fairness of each judge. Law can be perfect; the procedure of consideration in court can be described clearly. However, it is impossible even to talk about fair justice due to the absence of a fair individual, who would solve a case in good conscience, impartially and honestly, taking into account all circumstances of the case and the situation of parties. Just due to a judge’s fairness the rule of law is possible, since it is the essence of this fairness but not the reflection of formality of law, which cannot always take into account all natural and fundamental human rights and freedoms.

In this article it is noted that human rights must be protected by law. Moreover, any disputes as for these rights must be considered by a competent unbiased and independent court, which will apply procedures providing complete equality and fairness as for all parties and will solve the dispute according to the existent laws known by public and openly declared. Herewith, court shall take into account the fact that human rights are higher than any law.

The right to fair, independent and unbiased trial is declared in the Universal Declaration of Human Rights (article 10) [4] and the International Covenant on Civil and Political Rights (article 14) [5], as well as in the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) [6].

Key words: justice, fairness, judge, court, human fundamental rights.

References

Connie A. F. The moral image of Pushkin. Bulletin of Literature. 1921. № 3. [russ.]

Justice, goddess of justice Encyclopedic dictionary of Brockhaus and Efron: in 86 vols. (82 vols. And 4 additions). SPB., 1890–1907. [russ.]

Ehrenberg V. Die Rechtsidee im frühen Griechentum. Lpz., 1921.[deu.]

Universal Declaration of Human Rights URL: http://zakon5.rada.gov.ua/laws/show/995_015. [ukr.]

International Covenant on Civil and Political Rights. URL: http://zakon3.rada.gov.ua/laws/show/995_043. [ukr.]

Convention for the Protection of Human Rights and Fundamental Freedoms. URL: http://zakon1.rada.gov.ua/laws/show/995_004. [ukr.]

Horodovenko V. V. The principle of justice of the judiciary: general theoretical aspects. Lawyer. 2012. № 2 (137). [ukr.]

Prokopenko O. B. Problems of formation of a fair judiciary URL: http://www.scourt.gov.ua/clients/vs.nsf/0/93F02E30DB82D6E1C22575D800393608. [ukr.]

Luspenyk D. D. Application in case law of evidentiary presumptions and fictions in the system of division of responsibilities for proving under the new CPC of Ukraine. [ukr.]

Law of Ukraine. 2005. № 8. P. 56–60. [ukr.]

Kozyubra M. I. Rule of law and Ukraine. URL: http://cau.in.ua/ua/activities/analytics/id/kozjubra-m.i.-verhovenstvo-prava-i-ukrajina-632/. [ukr.]

Tarasyshyna O. M. Justice and tolerance in modern law of Ukraine: author's ref. dis. … Cand. jurid. Science: 12.00.01. Odessa National Law Academy. Odessa, 2008. 21 p. [ukr.]

Supreme Specialized Court of Ukraine for Civil and Criminal Cases / Judicial Statistics. URL: http://sc.gov.ua/ua/sudova_statistika.html. [ukr.]

Code of Judicial Ethics. URL: http://dna.court.gov.ua/sud0590/pravo/9/. [ukr.]