Access To Courts

In common law jurisdictions litigants are free to represent themselves in person. A right to self-representation in civil proceedings has been taken for granted as an obvious expression of the right of access to court. Consequently, no attempt has been made to investigate the theoretical justification of self-representation, and mandatory legal representation has never been contemplated. This article identifies three possible reasons for the conflation of the right to litigate in person with the right of access to court: (1) the long history of self-representation, (2) the conceptual perception of procedural rights as necessarily personal, and (3) the empirical belief that litigants in person are typically poor. The article challenges the capacity of these reasons to justify vesting litigants with an unfettered power to decide whether to represent themselves in person or to instruct counsel. It argues that as a matter of principle the right of access to court does not entail a right to self-representation in all circumstances. When a litigant in person lacks the skills and expertise to conduct his or her case competently and imposes a disproportionate strain on court resources, the court should be entitled to require the litigant to obtain legal representation as a prerequisite for proceeding with the case.

The introduction of mandatory legal representation by a lawyer or a
person with a bar exam in third-instance civil procedure has a clear logic. The overall goal is to professionalize the proceedings before the Supreme Court, so that parties can no longer represent themselves, unless they are themselves legally qualified. This solution should ideally contribute to rationalization and raising the quality of the procedure initiated by the second appeal/revision, that is, to enable the fulfillment of proclaimed goals of the innovated revision system - less burden
for a supreme court, as a prerequisite for greater efficiency, unification of law and jurisprudence, better protection of and equality of citizens before the law. In this paper, the introduction of mandatory legal representation with the accompanying financial burden of civil justice will be analyzed, on the one hand, in the context of the legislator’s intention to assist the supreme court in the exercise of its functions, and on the other hand, in the context of the right to access to a court. Given that the issue of access to justice and the protection of rights before judicial institutions is particularly important when citizens are faced with significant procedural costs, including lawyer’s costs, it is important to establish fair balance between restricting access to the Supreme Court and respecting guarantees contained in fundamental human right to access the court, as developed by the case law of European Court of Human Rights and the European Court of Justice.

This paper argues that the proposed Online Court is likely to suffer from various limitations if assessed within the current paradigm—that courts should never willfully compromise the quality of their judgments. The proposed Stage 3 could be understood as an invitation for a paradigm shift. At least in times of crisis, a degree of compromise over the court’s ability to arrive at correct judgments, in exchange for faster and less costly proceedings, is a legitimate trade-off—not the retreat into ‘second-class justice’ that critics of Briggs’s Interim Report alleged. Thus, if the application of Stage 3, with its radical departure from convention, would be limited to simple and straightforward cases, the Briggs reform would be just another instalment in judicial adaptation, which would ease some pain without bringing about a root treatment that is long overdue.

The legal profession has been ignoring its duty to the public.  This is true for those who cannot afford to pay for legal assistance. 
  Florida has been chasing dreams for more than 25 years - lawyers and judges have monopolized the legal profession and that raises prices to the detriment of everyone.

The article is devoted to clarifying the essence and limits of the admissible procedural conduct of the court when exercising its discretionary powers at the stage of initiating proceedings. The paper reveals the importance and influence of the Supreme Court legal positions on ensuring the stability and unity of judicial practice in aspect of lower courts’ discretionary powers availability. According to the analysis of the court orders adopted at the stage of initiating proceedings, the courts’ interpretations of the requirements for statement of claim were excessively broad, which complicates the procedure of applying for judicial protection and thus restricts access to court. Contrary to the requirements of procedural law, the courts were found to require plaintiffs and applicants to pay additional court fees, determine the nature of non-pecuniary claims incorrectly, require the statement of claim translation for defendants abroad or additional documents certifying the authority of representatives, etc. On the contrary, the procedural norms providing the civil rights protection should be interpreted in more detail, as court orders to leave a statement of claim without action are quite common due to no legal remedy specified in the application.
The court should use and consider discretionary powers as an opportunity to choose options of conduct, but within the limits provided by procedural law. In certain cases, which are related to the lack of a specific procedural norm, courts should focus their activities on the tasks of civil proceedings, promote citizens' access to court proceedings to protect the violated right, avoid both excessive formalism and excessively broad interpretation of procedural norms against participants’ interests in the case.
The introduction of case law elements into the judicial practice of Ukraine in the form of making the Supreme Court legal positions binding is a positive trend to ensure the stability and unity of judicial enforcement and the certainty of national law as a whole.
The norms of the CPC, which determine the requirements for the statement of claim and the procedure for its submission, also require the adoption of the relevant conclusions by the highest judicial institution in the judicial system of Ukraine because at this stage begins the exercise of the right to judicial protection.

Resumen: El propósito de este artículo es proporcionar una referencia breve acerca de las medidas adoptadas por los órganos jurisdiccionales y tribunales arbitrales en diversos países, con el fin de garantizar el acceso a la justicia durante la pandemia por el COVID-19. Así mismo, se hace referencia a las posibilidades de potenciar el uso de las plataformas digitales tanto en procesos judiciales gestionados por los órganos jurisdiccionales como aquellos canalizados por los medios alternativos de solución de controversias, con especial referencia al arbitraje comercial, durante la pandemia por el COVID-19 y con posterioridad a esta. Se destaca también la conveniencia del uso de cláusulas escalonadas para establecer una pauta eficiente en la solución de controversias mediante la aplicación progresiva de los medios alternativos.
Abstract: The purpose of this article is to provide a brief reference about the measures adopted by the jurisdictional bodies and arbitration courts in various countries to guarantee access to justice during the COVID-19 pandemic. Likewise, reference is made to the possibilities of promoting the use of digital platforms both in judicial processes managed by the courts and those channeled through alternative dispute resolution means, with special reference to commercial arbitration, during the COVID-19 pandemic and thereafter. The convenience of the use of multi-tiered clauses to establish an efficient guideline in the settlement of disputes through the progressive application of alternative means is also highlighted.

In this paper I respond to comments by Professors Ori Aronson, Tali Fisher, Jona Goldschmidt and David Luban, made in a symposium hosted by the Hebrew University, on my book Injustice in Person: The Right to Self-Representation (Oxford University Press 2015).

It is a satisfying moment in a scholar’s life when his work is noticed, let alone discussed by first-rate scholars whose distinguished work has been highly influential on his own. I am deeply grateful to Ori Aronson, Talia Fisher, Jona Goldschmidt, and David Luban for participating in the symposium on my book Injustice in Person: The Right to Self-representation (Oxford University Press 2015), hosted by the Jerusalem Review of Legal Studies at the Hebrew University. I also thank Ori Herstein and Alon Harel, who organized the event and are editing this volume. I very much enjoyed the insightful engagement with the book, both during the symposium and in the written commentaries. The thoroughness, carefulness, originality, depth, and above all generosity of each of them humble and inspire me. They helped me better understand my own position on the scope and justifiability of a right to self-representation. I am delighted to now have the opportunity to respond, and to clarify and refine some of my thoughts in the light of these comments, and so contribute to the debate that has emerged since the publication of the book.

В Национальном реестре правовых актов 4 мая было официально опубликовано Решение Конституционного Суда Республики Беларусь от 26 апреля 2016 г. № Р-1030/2016 «О праве на обжалование решений налоговых органов, действий (бездействия) их должностных лиц», вынесенное в рамках производства по устранению пробелов. Решение можно охарактеризовать, как относительно безвредное и симптоматичное.

Сама проблема, ставшая основанием для обращения в Конституционный Суд, не стоила и «выеденного яйца». Решением налогового органа (о нарушении налогового законодательства частным предприятием, допущенного в результате действий (бездействия) А.М. Барташевича) были затронуты права и законные интересы данного гражданина, но положения Общей части Налогового Кодекса Республики Беларусь не позволяли обжаловать решения налогового органа лицам, не являющимся плательщиками (коим гражданин уже не являлся). Ситуация осложнялась еще и тем, что принятие решения о нарушении налогового законодательства открывало дорогу для привлечения данного гражданина к субсидиарной ответственности по обязательствам организации. Тем не менее, гражданин обратился в районный суд г. Минска с жалобой на решение ИМНС.

This paper deals with the diplomatic relations between the Armenian aristocracy (as a whole and as individuals respectively) and the most important neighboring Christian monarch, the Eastern Roman (Byzantine) Emperor. The study concentrates on the period from the partition of Greater Armenia (387 AD) between Rome and Persia and the end of the Arsacid rule until the renewal of the Armenian monarchy under the Bagratids. During these centuries characterized by the absence of an Armenian King, foreign powers came to terms on the one hand with individual powerful noblemen, who were appointed to represent the entire Armenia, bearing the title of marzpan, sparapet, patrik and others, while on the other hand they negotiated directly with various aristocratic houses (as they did in former times). Based on contemporaneous Armenian, Greek, and other sources the paper aims to analyze the contents of the covenants between Armenian aristocrats and Byzantine Emperors (declaration of allegiance, bestowal of titles, military assistance, etc.), the diplomatic means and customs (oath, presents, charters – the “diplomatics of diplomacy”), the sources’ terminology and the interpretation of the relations between the Emperor and the Armenian aristocracy given by the sources. The description of these relations in the Armenian sources is consequently compared to the depiction of those of the Armenian aristocrats’ to the Sasanian Great King and the Arab Caliph. In that way, a “Byzantinocentric” interpretation of Armenia’s foreign relations during this period should be avoided, while at the same time efforts are made to detect specific elements of the Armeno-Byzantine political relations in Late Antiquity and the Early Middle Ages.