Procedures as the basis for the renewal of the legitimacy of governing institutions

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Procedures as the basis for the renewal of the legitimacy of governing institutions

Journal Title: Альманах права - Year 2018, Vol 9, Issue 9

Abstract

The concept of «fair procedures» (or due process) is directly related to the exercise of the constitutional rights and legal interests of persons and citizens. At their core, these procedures concern the fairness with which state bodies deal with a citizen or person in all of their actions. They create a balance between the influence of powers granted to authorities and the need to protect a person’s rights by establishing procedural limitations in the exercise of the conferred powers. As set out in Article 6 of the European Convention on Human Rights (dealing with the right to a fair trial), which is incorporated into the body of Ukrainian law, the procedural aspects of state actions must be aligned with the notion of procedural fairness. Further, standards governing a fair trial are not just restricted to a criminal trial, or even to judicial processes alone, since there is no exhaustive list of elements describing what constitutes a fair trial. Since the notion of «fair procedures» is not directly defined in the Ukrainian Constitution, there is a need to formulate and articulate a national concept of «fair procedures» through the decisions of the judiciary. Article 6 of the Convention, and the corresponding Article 129 of the Constitution of Ukraine, provide that a judge must be independent and governed by the rule of law in the determination and application of justice. This means that a court need not only rely on the principles of natural justice in determining standards of «fair procedures», but may find support for its findings in what constitute the foundations of Ukrainian justice, including: respect, the right to be heard, reasonableness, and unbiased decisions. These principles form, in the eyes of citizens, the basis of the legitimacy of not just judicial decisions, but also the acts of other branches of power; they encompass not only the judicial process, but also cover the pre-trial resolution of disputes, and the acts and di sputes that result from the interaction between the person and state authorities. Therefore, the concepts of «due process» or «fair procedures» relate to quasi-judicial matters, or even the process of adopting and/or appealing administrative acts in the administrative process. They are derived from the foundation of the rule of law, involving notions of social justice, freedom, and equality before the law. These determine the obligation of the state to treat a person fairly and to respect their dignity. Based on the criteria described above, the notion of procedural fairness thus underpins the rule of law’s application to the content and implementation of legislative acts and the acts of administrative authorities. Essentially, the effectiveness of «fair procedures» is measured not only by whether they achieve a desired legislative or administrative result, but by the fact that the result was secured through the fair treatment of a person that has been negatively affected by a judicial decision or administrative act.

Authors and Affiliations

Myroslava Bilak

Keywords

fair procedures procedural justice legitimacy of actions by state authorities

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EP ID EP544551
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