CONSTITUTIONAL AND LEGAL GUARANTEES OF THE RIGHT TO JUDICIAL PROTECTION AND PROBLEMS OF THEIR IMPLEMENTATION

Abstract

The ongoing reform of procedural legislation has a strong impact on the implementation of constitutional principles of judicial proceedings. The constitutional obligation of the Russian state to protect human and civil rights in a number of cases conflicts with the procedural form of the administration of justice. Conversely, the constitutional right of everyone to judicial protection, understood as an absolute right to initiate judicial proceedings, often leads to the abuse of justice as an exclusive function of the state. Purpose: to determine the essence of the right to judicial protection, its limits, and to define whether certain procedural institutions comply with the constitutional and legal guarantees of the right to judicial protection. Methods: formal and dialectical logic, comparison, interpretation of legal norms, legal and dogmatic. Results: the paper reveals a contradiction to the constitutional foundations of the theory of «electronic justice», «electronic court», «digitalization of justice». The principle of administration of justice by the court alone and the constitutional requirements for a judge do not permit the transfer of powers to implement justice to any other authorities, let alone computer software. The constitutional right to judicial protection, as an objective right, must be distinguished from the right to apply to a court in a particular case. The article proposes to limit the right to initiate administrative proceedings in cases of challenging normative legal acts, decisions and actions (inactions) of state authorities by the need to justify the breach of the public interest (interest of unlimited number of persons) by the act or action (inaction) contested. The article justifies the necessity of legislative fixing of the criterion of differentiation of cases considered in civil proceedings from cases subject to consideration in administrative proceedings. It is proposed to fix the presence of civil law requirements in the application as a basis for refusing to accept an administrative claim and terminating the proceedings. The principle of confidentiality of the judicial conciliation procedure is contrary to the constitutional principle of publicity of the proceedings that is why the «notarial conciliation procedure» seems to be more appropriate.

Keywords

• right to judicial protection
• constitutional principles
• procedural form of protection
• civil proceedings
• administrative proceedings
• judicial conciliation procedure
• publicity
• confidentiality
• electronic court
• principle of administration of justice by the court alone