Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.41 N° 77
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2023
Recibido el 18/01/23 Aceptado el 22/03/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
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Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 41, Nº 77 (2023), 256-269
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Constitutional law and judicial
guarantees: their structure and
interpretation at the national and
international level
DOI: https://doi.org/10.46398/cuestpol.4177.17
Nataliya Shelever *
Nataliia Filipska **
Larysa Varunts ***
Victoria Pylyp ****
Diana Voron *****
Abstract
The article is devoted to the study of the essence of constitutional
law, together with judicial guarantees, their interpretation and
normative consolidation in international legal acts and national
regulations, as well as to the clarication of the place of the right
to a fair trial in human rights. Thanks to the use of a system of general
scientic and special scientic concepts and methods, it was established
that the conceptualization of the right to a fair trial was given by the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and, moreover, is reected in the precedent practice of the
European Court of Human Rights. In this context, characteristic features
of the right to judicial guarantees are dened, its procedural and functional
components are distinguished, and procedural and substantive justice are
characterized. Everything allows concluding that, the characteristic features
of the constitutional right to a fair trial in a state governed by the rule of law
are dened as: the perceived ability of a person to exercise the specied
* PhD in Law, Associate Professor, Associate Professor of the Department of Administrative, Financial
and Informative Law, State University «Uzhhorod National University», Uzhhorod, Ukraine,
ORСID ID: https://orcid.org/0000-0003-3641-4910
** Candidate of legal science, Senior Lecturer at the Department of Constitutional and International
Law of Kharkiv National University of Internal Aairs, Kharkiv, Ukraine, ORСID ID: https://orcid.
org/0000-0002-9558-9422
*** Candidate of legal science, Associate Professor, Associate Professor at the Department of Constitutional
and International Law of Kharkiv National University of Internal Aairs, Kharkiv, Ukraine, ORСID ID:
https://orcid.org/0000-0002-0024-385X
**** Candidate of legal science, Associate Professor of the Department of Administrative, Financial
and Informative Law, State University «Uzhhorod National University», Uzhhorod, Ukraine,
ORСID ID: https://orcid.org/0000-0001-6483-0749
***** Candidate of legal science, Associate Professor of the Department of Administrative, Financial
and Informative Law, State University «Uzhhorod National University», Uzhhorod, Ukraine,
ORСID ID: https://orcid.org/0000-0003-0522-1921
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right; the presence of a special subject-object structure; appropriate actions
in specially created state judicial institutions to restore violated rights.
Keywords: constitutional rights; fair trial; judicial proceedings;
European Court of Human Rights; legal hermeneutics.
El derecho constitucional y las garantías judiciales:
su estructura e interpretación a nivel nacional e
internacional
Resumen
El artículo está dedicado al estudio de la esencia del derecho constitucional,
junto a las garantías judiciales, su interpretación y consolidación normativa
en los actos jurídicos internacionales y normativos nacionales, así como
tambien, a esclarecer el lugar del derecho a las garantías judiciales en
los derechos humanos. Gracias al uso de un sistema de conceptos y
métodos cientícos generales y cientícos especiales, se estableció que la
conceptualización del derecho a un juicio justo se dio gracias al Convenio
Europeo para la Protección de los Derechos Humanos y las Libertades
Fundamentales y, además, se reeja en la práctica precedente del Tribunal
Europeo de Derechos Humanos. En este contexto, se denen rasgos
característicos del derecho a las garantías judiciales, se distinguen sus
componentes procesales y funcionales y se caracteriza la justicia procesal y
sustantiva. Todo permite concluir que, los rasgos característicos del derecho
constitucional a un juicio justo en un Estado de Derecho se denen como: la
capacidad percibida de una persona para ejercer el derecho especicado; la
presencia de una estructura especial sujeto-objeto; acciones apropiadas en
instituciones judiciales estatales especialmente creadas para restaurar los
derechos violados.
Palabras clave: derechos constitucionales; juicio justo; procedimientos
judiciales; Tribunal Europeo de Derechos Humanos;
hermenéutica jurídica.
Introduction
The right to a fair trial, being an integral part of the principle of the rule
of law, appears today as a fundamental legal value of any democratic society
(Matat, 2016). With the ratication of the Convention for the Protection of
Human Rights and Fundamental Freedoms of 1950 (hereinafter referred
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Constitutional law and judicial guarantees: their structure and interpretation at the national and
international level
to as the Convention), Ukraine also undertook obligations under this
international legal document, which requires the need to organize its legal
system in such a way as to ensure the real guarantee of the right provided
for by the Convention to a fair trial.
However, according to the statistical data of the European Court
of Human Rights (hereinafter referred to as the ECtHR), Ukraine is
consistently among the top ve countries in terms of the number of appeals
to the ECtHR. At the same time, almost half of the decisions of the ECtHR
relate to the violation of the right to a fair trial (Boyko, 2020).
Under such conditions, one of the key issues of modern Ukraine, on the
territory of which martial law has been introduced, is whether the modern
national judicial system is able to ensure the administration of justice and
the right of citizens to a fair trial, which is a fundamental and primary duty
of the state. Unfortunately, in the conditions of special legal regimes, these
aspects of the right to a fair trial are not always fully implemented, and the
state faces a number of problems, the complex solution of which is one of
the priority directions of a modern democratic state (Rogach et al., 2022).
1. Methodology of the study
The methodological basis of the research combines general scientic and
special scientic concepts, theories and methods of scientic knowledge of
objective reality, in particular: dialectical, formal-legal, historical-legal,
method of classication and grouping, analysis and synthesis, comparative
analysis, formal-logical method, modeling and abstraction, system, complex
and others.
Thus, the dialectical method is used to learn the content and structure
of the constitutional right to a fair trial. Historically, the legal method was
used during the analysis of the patterns of formation and development
of the principle of justice as a key principle of justice in the modern legal
state. The system method was used in the analysis of the implementation
of European standards into national legislation as a single, mutually agreed
and mutually conditioned system.
The formal-logical method made it possible to develop and form
the main denitions, and the systemic-structural method contributed
to distinguishing the elements of the right to a fair trial. Modeling and
abstraction methods were used in the process of formulating conclusions.
General epistemological methods of cognition are also widely used -
induction, deduction, analysis and synthesis, which made it possible to
study the theoretical and logical essence of the application of the principle
of justice in the judiciary of a modern European state.
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2. Analysis of recent research
Many scientists (Guyvan, 2019; Adygezalova, 2022; Rogach, 2022;
Boyko, 2020) are devoted to the question of eectiveness and eciency of
the right to a fair trial in the context of its implementation on the basis of
legal certainty in international and national law.
At the same time, it should be noted that although these scientists made
a signicant contribution to the development of the theoretical aspects of
the studied issues, the question of modern understanding of the guaranteed
Art. 6 of the Convention on the right to a fair trial, as well as the state of its
implementation in Ukraine, and the problems associated with it, insucient
attention has been paid.
The purpose of this article is to clarify the essence and dene the main
structural elements of the right to a fair trial; analysis of the modern
understanding of the right to a fair trial in the practice of the European Court
of Human Rights (hereinafter referred to as the ECtHR); determination of
the conceptual basis for improving the process of implementation into the
national legal system of the practice of the Court regarding the application
of Art. 6 of the Convention.
3. Results and discussion
The right to a fair trial is one of the fundamental rights of every
person, thanks to the functioning of which it is possible to talk about the
development of democratic, legal principles of state formation, because it
is a guarantee of the protection of violated rights, freedoms and legitimate
interests of a person. Proper and eective implementation of this right is
impossible without a clear understanding of its concept and structure.
That is why the terminological awareness of the concept of the right
to a fair trial and the denition of its structural elements has important
theoretical and practical signicance, as it will ensure its meaningful
implementation in the best possible way. Moreover, it covers an extremely
wide eld of various categories, because “it concerns both institutional
and organizational aspects, as well as specics of the implementation of
individual court procedures” (Koval, 2006: 129).
First of all, we note that part of the guarantees that make up the content
of the right to a fair trial are not mentioned in Art. 6 of the Convention.
They are developed and interpreted by the precedent practice of the ECtHR.
Indeed, it is quite dicult without the application of such decisions to
unambiguously identify and outline the meaning of the terms “reasonable
term”, “legal certainty”, “justice”, “independence of judges”, “impartiality”,
etc. (Guyvan, 2019).
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Constitutional law and judicial guarantees: their structure and interpretation at the national and
international level
At the same time, it should be noted that in accordance with Part 1
of Art. 32 of the Convention, the interpretation of its norms is assigned
to the exclusive competence of the Court. Therefore, the practice of the
ECtHR, which under the specied circumstances is recognized as the
basis of the ocial international interpretation of the 1950 Convention, is
decisive for the formation of the legal relationship of the legislator of the
countries participating in the Convention and the relevant law enforcement
institutions.
The ECtHR interprets the concept of the right to a fair trial quite broadly,
in particular, based on the fact that it is of fundamental importance for
the functioning of democracy and the principle of the rule of law. Thus,
in the decision of 17.01.1970 in the case “Delcourt v. Belgium”, the ECtHR
noted that a restrictive interpretation of the right to a fair trial would not
correspond to the purpose and meaning of the provisions of Art. 6 of the
Convention on the Protection of Human Rights and Fundamental Freedoms
(Case of Delcourt v. Belgium, 1970).
Based on the fundamentality and multifacetedness of the right to a fair
trial, a uniform understanding of it is not possible without a comprehensive
understanding of the three interrelated constituent legal categories
(denitions) – “law”, “justice” and “court”.
Being a “regulatory norm of political communication”, the law should
serve as a “criterion of justice”. And in order to know what law is, one should
understand what phenomena it is connected with and where it comes from.
As noted in the scientic literature, rst of all, it got its name from justitia
– “truth, justice”, that is, law is the “art of goodness”, “equality and justice”.
That is why, like any regulatory norms, legal relations are a manifestation
of what is fair and proper. And it is no coincidence that the word “right” in
the Ukrainian language has a common root with the word’s “truth”, “right”,
“justice” (Murashyn, 2014).
Currently, the questions regarding the interpretation of the concept
of «law», the denition of its features and approaches to understanding
are suciently described in the legal literature. Without resorting to an
in-depth polemic on this matter, we share the point of view of scientists
who indicate that the term «right» is widely used in various spheres of
social life, is polysemic in its meaning and is used in such meanings as: the
presence of a person of a certain interest; the possibility of committing an
act; as a guarantee of one’s own behavior; a requirement for the behavior
of other persons; compliance with the criteria of correctness and justice;
justication, truthfulness, etc. In view of this, law should be distinguished
from the point of view of two meaningful components:
a) objective law, that is, a set of legal norms expressed (externally objectied)
in relevant legal sources - regulatory legal acts, court decisions, legal customs
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etc; b) the right is subjective, which belongs to individual persons (subjects) and
consists in the presence of certain legal opportunities for each of them» (Petryshyn
et al., 2015: 87-88).
As noted in the scientic literature, «the term «right» comes from the
root «rights», which means truth, justice» (Skakun, 2001). However, the
concept of «right» does not have a legal meaning in all cases. Legal law, in
contrast to customs, is also called «legislative law», which, in turn, is often
dened as «positive law», that is, what comes from the state and society,
expressed in written norms, contained in normative legal documents, in
particular, laws, court precedents, acts of the executive power, etc. (Skakun,
2001).
With the development of the state and social relations in general, there
was a need for normative consolidation of the rules of behavior and customs
formed in one or another sphere of life. Undoubtedly, this is the way in
which the necessary system of guarantees for the protection of the rights,
freedoms and legitimate interests of the participants in legal relations,
including in the eld of criminal justice, is being formed in the state.
And as history shows, this is done taking into account the socio-cultural,
economic, political and legal features of the state’s development. It is
thanks to the legal norms enshrined in the law that various legal conicts
and disputes are resolved in democratic states governed by the rule of law.
And in this aspect, the right to a fair trial is of great importance, which is
clearly evidenced by the norms of Art. 55 of the Constitution of Ukraine,
according to which the rights and freedoms of a person and a citizen are
protected by the court (Constitution Of Ukraine, 1996).
So, it is axiomatic that in the modern world, law is a social institution that
expresses the objective will, the degree of freedom and equality, allows the
realization, survival and reproduction of both an individual and society as
a whole. As the main regulator of joint actions, the law requires individuals
to focus on the main criterion – justice, which reects the basic values of
society that ensure its self-survival.
In scientic literature, law is interpreted in an objective and subjective
sense. In the context of our research, the subjective understanding of the
concept of law plays an important role, which is interpreted in two meanings:
1) in a broad sense - everything that follows from legal norms (objective
law) for a person and characterizes him as a subject of law; the right to
specic opportunities; 2) in the narrow (proper) way – the possibility of
a certain behavior of a person provided by a legal norm; the measure of a
person’s possible behavior is dened in legal norms (Shestopalova, 2011).
It should be noted that in the national judiciary, the subjective right
of each participant is realized through such principles as access to justice,
competition, ensuring the right to defense and the right to appeal procedural
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Constitutional law and judicial guarantees: their structure and interpretation at the national and
international level
decisions, actions or inaction, dispositiveness, etc. In particular, a person is
given a legal opportunity to use a certain right provided for by law at his
discretion; require other participants in the trial to act within the limits of
the law; apply to state bodies and ocials for the protection of their rights,
etc.
For this purpose, the state is entrusted with the obligation at the
legislative level to establish eective and ecient legal mechanisms and
guarantees for the realization of the subjective right of an individual.
An important denition that is part of the researched construction is
«justice», which has a more moral and philosophical orientation, while it
is also used in modern legal science. In this context, it is worth noting that:
Rules for judicial review of disputes, conicts, and prosecution occupy a
prominent place in the Bible. Actually, its provisions are aimed at ensuring the
correctness and justice of the relevant decisions. In particular, it is about the
equality of people before the court, the responsibility of a person for his actions,
ensuring the justice of the court decision (Murashyn, 2014: 193).
Therefore, based on the evolution of the judiciary and law in general,
it can be argued that the modern democratic principles of ensuring
the protection of human rights and freedoms cannot exist without the
functioning of a fair judiciary.
After all, in modern judicial proceedings, the court itself, being an
independent and impartial arbitrator, puts the «nal point» by considering
the case on its merits and making a nal decision, thereby resolving
contradictions between the parties to the conict, who are participants in
the relevant procedural legal relations.
As the American philosopher J. Rawls rightly points out, the main idea
embedded in the concept of justice is the idea of honesty. Justice should not
be confused with a comprehensive view of the goodness of society, for it is
only part of any such conception. For example, it is important to distinguish
the meaning of equality, which is one aspect of the concept of justice, from
the meaning of equality, which belongs to a larger social ideal (Rawls, 1999).
U. Koruts notes that «the conceptualization of the sociological-legal
category «justice» today is in a state of permanent transformation of both
its substantive and methodological content. As a social phenomenon,
justice is becoming an increasingly amorphous and unattainable
characteristic of social development, since economic processes contribute
to the concentration of public goods in rather limited social strata, which
generates property inequality, and therefore, inequality of opportunities for
individuals to realize their rights and freedoms, regardless of their formal
legislative consolidation (Koruts, 2015).
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Understanding the category «justice» ensures its universality both
from the point of view of the philosophical context of the legal foundations
of social relations regulation, and the purely legal content of social
relations. In the context of a trial, «justice» appears simultaneously as an
axiological category; as a means of achieving a balance of public interests
and expectations; as a basis for the formation of legal value; as the main
category in establishing the right to a fair trial» (Koruts, 2015: 38).
Making a fair decision (both a decision and a sentence) directly depends
on the substantive trial procedure itself. That is, the adoption of a fair nal
decision directly depends on the conduct of a fair trial. Therefore, in the
legal sense, justice should be considered as a property of the law, expressed,
in particular, in «an equal legal scale of behavior and in the proportionality
of legal responsibility to the oense committed or as a dimension, equality
in the legal status of subjects» (Berezhanskyy, 2017).
In the modern world, as J. MacBrayd quite rightly points out, justice
cannot be achieved where the prosecution and the defense in criminal
proceedings are in an unequal position. Such procedural inequality can be
seen, for example, when the testimony of experts is not actually neutral, but
incriminating, when the defense is deprived of full access to the materials
of the court case, when the prosecution can make submissions to the rst or
appellate instance, and the defense cannot react (MacBrayd, 2010), and the
right to a fair trial involves an internal balance of the interests of the parties,
taking into account the specics of a specic case, the evidence presented,
and the possibility of appealing the decision.
The external manifestation is disclosed through the rules on the publicity
of the proceedings within a reasonable period of time by an independent and
impartial court. The discretion of the judge in this regard acquires special
importance, since the criteria of justice are subjective. Justice should be
characterized as a property (quality) of law. Accordingly, the objectivity
of the decision depends on the extent to which the court will correctly
understand the circumstances of the case and bring them into compliance
with the legislation (Vylova, 2014).
Dening justice in a narrow sense, the ECtHR singles out such
requirements that are not specied in paragraph 1 of Art. 6 of the
Convention: proper notication and hearing, taking into account by
the court only evidence obtained by legal means, issuing a reasoned
decision, the principle of equality of parties in the adversarial process, the
prohibition of interference of other branches of government in the process
of administration of justice, the principle of legal certainty.
From such positions, «justice» in the procedural sense is an analogue
of «due judicial procedure», which, in our opinion, includes a number of
requirements in its content: proper notication and hearing, taking into
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international level
account evidence obtained only by legal means, reasonableness of the
decision; the principle of «competitiveness and equality of parties»; the
principle of legal certainty; prohibition of interference of other branches of
government in the process of administration of justice.
It should be emphasized that in the context of the conceptual reformation
of national legislation, the issue of judicial protection of human rights,
freedoms and legitimate interests is in constant focus among international
institutions, lawyers - scientists and practitioners, as well as civil society.
After all, every person wants to be sure that his constitutional rights and
freedoms will be protected in case of falling into the sphere of judicial
proceedings, and in the case of their violation, they will be restored.
That is why all legislative acts, which are adopted at the state level and
regulate a certain sphere of legal relations, must meet the requirements
declared in international legal acts and the Constitution of Ukraine. And
although the principles of justice are not directly recognized in the norms of
the Constitution of Ukraine, the specied category, being a norm-principle
of a democratic, legal society, practically permeates all its provisions.
According to the correct statement of N. Gren, in modern society,
justice is the basis of the right to a fair trial. The state and civil society
create competent bodies of state power to ensure the rights and freedoms
of citizens and to implement the functions of the state. One of the most
important functions of the rule of law is the administration of justice,
therefore this right is an important principle of the rule of law and the basis
of democratic transformations in society (Gren, 2016).
Another structural element in the construction under study is the category
«court». First of all, it should be noted that according to Art. 124 of the
Constitution of Ukraine, the function of justice at the national level is carried
out exclusively by the courts, which, among other things, are entrusted
with the duty of ensuring control over the legality and reasonableness of
making procedural decisions and conducting actions in criminal proceedings
(Constitution Of Ukraine, 1996).
In its activities, on the one hand, the court protects public interests from
encroachments by individuals, and on the other hand, the interests of an
individual from threats emanating from other individuals or the government
itself. Indeed, in a legal, democratic state, the court occupies a special position
regarding the protection of the rights, freedoms and legitimate interests of
the individual and society in general.
As evidenced by the analysis of doctrinal studies, among lawyers there is
no single point of view regarding the understanding of the concept of «court».
It is likely that the scientic controversy is caused by the lack of legislative
(ocial) clarication of the concept of court. For example, in Art. 17 of the
Law of Ukraine «On the Judicial System and the Status of Judges» only states
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that the judicial system is built according to the principles of territoriality,
specialization and instance, while the highest court in the judicial system is
the Supreme Court.
In general, the judicial system in Ukraine consists of: «1) local courts;
2) appellate courts; 3) Supreme Court. At the same time, higher specialized
courts operate in the judicial system to consider certain categories of cases
in accordance with this Law» (On The Judicial System And The Status Of
Judges: Law of Ukraine, 2016).
In the precedent practice of the ECtHR, the concept of «court» should not
necessarily be considered as «a court of the classical type, integrated into the
standard system of state courts» (Case of Campbell and Fell v. The United
Kingdom, 1984). So, as rightly emphasized in the doctrine, the very term
«court» used in Art. 6 of the Convention is interpreted by the ECtHR in a
broad sense, and the concept of «court», in addition to actual judicial bodies,
may include arbitrations, professional disciplinary bodies, bodies dealing
with land issues, authorities of the permit system, etc. (Tregubov, 2010).
Based on this, E. Tregubov dened the following system of criteria
(characteristics of such bodies), laid down by the ECHR as the basis for
recognition of this or that body by a «court» in the sense of Art. 6 of the
Convention: «1) the ability to make binding decisions; 2) mandatory legislative
regulation of the functioning and activity of the «court»; 3) the presence of
a function established by law regarding consideration of legally signicant
issues; 4) guaranteed independence from other branches of state power and
participants in the case» (Tregubov, 2010).
Today, at the national level, the specied criteria are enshrined in the
Law of Ukraine «On the Judiciary and the Status of Judges» dated June 2,
2016, which denes «the organization of the judiciary and the administration
of justice in Ukraine, which operates on the principles of the rule of law in
accordance with European standards and ensures the right of everyone to fair
court» (On The Judiciary And The Status Of Judges: Law of Ukraine, 2016).
Also, the court must be independent and impartial, and its activities must
be legal, that is, carried out in accordance with the law. A legal court is the
necessary basis for the consideration of a case by a competent court, which, on
the principles of the rule of law and according to a dened procedure, resolves
legal disputes based on the law. Therefore, the state should not interfere in the
results of the trial, because otherwise such principles of judicial proceedings
as legality, equality of parties, etc. will be violated.
As can be seen from the analysis of scientic sources, the legal doctrine
pays close attention to the denition of the concept of the right to a fair
trial, which is due to several main, generally related factors. First of all, this
conceptualization is due to Ukraine’s ratication of the Convention on the
Protection of Human Rights and Fundamental Freedoms, in Art. 6 of which
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Constitutional law and judicial guarantees: their structure and interpretation at the national and
international level
this right is guaranteed. Also, in the norms of Art. 55 of the Constitution
of Ukraine enshrined the right of everyone to a fair trial (Constitution Of
Ukraine, 1996), and in Art. 2 of the Law of Ukraine «On the Judiciary and
the Status of Judges» dated 02.06.2016 denes that the court, administering
justice on the basis of the rule of law, ensures everyone the right to a fair
trial (On The Judiciary And The Status Of Judges: Law of Ukraine, 2016).
In addition, in paragraph 9 of the decision of the Constitutional Court
of Ukraine dated 30.01.2003 No. 3-рп/2003 it is stated that justice in its
essence is recognized as such only if it meets the requirements of justice
and ensures the eective restoration of rights (Case on consideration by
the court individual resolutions of the investigator and prosecutor, 2003).
So, as we can see, the practice goes by considering the constitutional
right to judicial protection as a component of the right to a fair trial. At the
same time, it is worth supporting the point of view expressed by N. Sakara,
that it is more appropriate to distinguish the concept of «fair trial» in a
broad and narrow sense.
In a broad sense, this concept includes both institutional and procedural
aspects, that is, all the elements provided for in Article 1. 6 of the Convention,
since it cannot be a question of a fair trial if the case is considered, for example,
in violation of the principles of the administration of justice only by the court, the
independence of judges and their submission only to the law, publicity, and others.
In a narrow sense, this concept applies only to the requirement of «fairness» of
the procedure, which in the text of the article of the Convention is used along with
the procedural requirements of publicity and reasonableness of the trial period
(Sakara, 2010: 133).
Therefore, the right to a fair trial in the broadest sense should be
considered as a fundamental subjective right of a person, enshrined in
international and national legal acts, recognized by the international
community, endowed with a complex complex structure and including
a system of general standards of a fair trial in international and national
judicial institutions.
The right to a fair trial includes a set of not only procedural elements-
rights, but also institutional and functional ones, in particular, access to
justice, independence and impartiality of the court, publicity and openness
of court proceedings.
In our opinion, the characteristic features of the constitutional right to a
fair trial in a state governed by the rule of law should include: the perceived
ability of a person to exercise this right; special subject-object composition;
as a result, appropriate actions in specially created state judicial institutions
aimed at restoring violated rights.
Today, the right to a fair trial is enshrined and guaranteed both at the
international and national levels, while not disclosing its content. This,
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of course, determines the existence of scientic polemics regarding its
legal understanding. However, in the conditions of a radical reform of the
judiciary, the issue of a uniform understanding and enforcement of this
right becomes particularly relevant, because the ECtHR has repeatedly
stated the violation of the right to a fair trial in its various aspects.
Taking into account the existing doctrinal developments regarding the
denition of the structure of the right to a fair trial, we consider it expedient
to distinguish two interrelated elements of the right to a fair trial, regardless
of the scope of the judiciary, as functional elements of the right to a fair trial
(access to justice; independence and impartiality of the court; publicity and
openness of judicial proceedings) and procedural elements of the right to
a fair trial (competition of the parties; reasonableness of terms; appeal of
procedural decisions, actions or inaction).
Conclusions
The constitutional right to a fair trial is a self-sucient procedural right
– a guarantee of ensuring, protecting and restoring all other human rights
by applying to the court, which will make a fair decision on the basis of fair
procedures. Characteristic features of the constitutional right to a fair trial
in a state governed by the rule of law are dened as: the perceived ability
of a person to exercise the specied right; the presence of a special subject-
object structure; appropriate actions in specially created state judicial
institutions aimed at restoring violated rights.
The right to a fair trial in a broad sense should be considered as a
fundamental subjective human right, enshrined in international and
national legal acts, recognized by the international community, endowed
with a complex complex structure and including a system of general
standards of fair trial in international and national courts institutions.
The right to a fair trial includes a set of not only procedural elements
(competence of the parties; reasonableness of terms; appeal of procedural
decisions, actions or inaction), but also a functional component (access to
justice, independence and impartiality of the court, publicity and openness
of court proceedings).
The term «trial justice» encompasses the unity of procedural and
substantive justice. Procedural justice consists in the implementation of
judicial proceedings in accordance with the procedural form established
by law, which in its essence meets the requirements of justice. Substantive
justice is characterized by the content of the decision made by the court
during the resolution of a specic dispute or case.
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Constitutional law and judicial guarantees: their structure and interpretation at the national and
international level
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Esta revista fue editada en formato digital y publicada
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