The Right of Access to Justice as a Prerequisite for Human Rights Enforcement

Abstract

The article analyzes the ways of interpretation and enforcement of the right of access to justice. Through comparison of national and foreign studies, the author is trying to prove the demand for a wide interpretation of the right of access to justice. By providing certain national studies, the decision of the Constitutional Court of Ukraine, and in-force legal policy, the author shows that only the first “wave” of the right to access to justice is implemented in Ukraine. Due to a narrow definition of the right of access to justice, the legal policy cannot guarantee a proper level of the rule of law. This fact is supported by the annual legal ranking of the countries by the World Justice Project Rule of Law Index. The countries in the top of the rule of law rating accept a wide definition of the right of access to justice, with all four “waves” [of this right] implemented. The article describes the elements of each “wave” that are also presented by the legal framework of reforming justice in Australia, the decisions of the Supreme Court of India, the Courts of Canada, and the Supreme Court of the United States of America. Those components include: a real possibility to use legal remedies of the formal justice, access to qualified legal assistance, promotion of pre-trial dispute resolution by facilitation, mediation or arbitration, and preventing disputes arising overall. The possibility of implementing the idea mentioned hereinabove is proposed by interpreting the 3rd article of the Constitution of Ukraine that underlines that human rights, freedoms, and guarantees shall determine the essence and course of activities of the State, and highlights that ensuring human rights and freedoms shall be the main duty of the State.

Keywords

• access to justice
• adr
• alternative dispute resolution
• mediation
• facilitation
• arbitration