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§ 3. Judicial certificates of the European Court under the human rights, individually regulating relations connected with reasonable terms of consideration of labour and other disputes directly connected with them, and also reference to the court terms

In Russia long disposal of legal proceeding in vessels has the history, and attempts of struggle against red tape are undertaken throughout many centuries.

And only on March, 19th, 1856 at the introduction on Alexander's throne II the judiciary reform motto in the manifesto on the termination of the Crimean war in which the emperor has proclaimed has sounded: «the Truth and favour yes reign in vessels!» [342].

At last, the highest decree of emperor Alexander II about the statement of new charters of legal proceedings in which it has been told about desire «on November, 20th, 1864 has taken place to instal in Russia court fast, right, mercy and equal for citizens... To ennoble the judicial authority, to give it appropriate independence and in general to approve in our people that respect for the law without which the public welfare is impossible and which should be the constant head of actions of all and everyone, from the higher to the lowest» 1.

Reasonably interestingly, that at V All-Russia congress of judges of the Russian Federation, taken place in to Moscow on November, 27th, 2000, the President of Russia

B. V.Putin also said that «all of us want that our court was« fast, right and fair »[343 [344] [345].

The stated position has found now the embodiment in item 53 of the decision of Plenum of the Supreme Court of the Russian Federation from 17.03.2004 № 2 (in red. Decisions of Plenum of the Supreme Court of the Russian Federation from 28.12.2006 № 63, from 28.09.2010 № 22, from 24.11.2015 № 52) «About application of the Labour code of the Russian Federation by vessels of the Russian Federation» according to which in force ч.1 item 46 of the Constitution of the Russian Federation, guaranteeing to everyone judicial protection of its rights and freedom, and korrespondirujushchih to it of positions it is international - legal acts, in particular item 8 of the General Declaration of human rights, item 1 of item 6 of the Convention on protection of human rights and fundamental freedoms, and also item 1 of item 14 of the International pact about the civil and political rights, the state is obliged to provide realisation of the right to judicial protection which should be fair, competent, full and effective.

It is historically known, that process of reduction of terms of disposal of legal proceeding in an optimum condition in IX century occurred by an establishment of terms

Fulfilment of separate legal proceedings by the parties and court, introductions of the simplified kinds of manufacture for invaluable and simple affairs, and also reductions of quantity of instances. So, one part of target dates was predetermined by the new charter of civil legal proceedings for the parties, another — for court activity, however legal investigation terms as those, were not established by the novel though such offers expressed, for example, E.V.Vaskovskim1.

Meanwhile the charter of civil legal proceedings to the parties gave the right to make complaints «on a slowness» legal proceedings in court above [346 [347] [348].

As it is marked in the literature, the given approach has undergone essential changes after 1917 when reduction of terms of disposal of legal proceeding became one of priorities of legal proceedings of the new state.

Terms of consideration of civil cases have been established in GPK RSFSR 1923 with the subsequent changes and additions: at first for consideration of labour disputes («According to article entered later 53 GPK RSFSR labour disputes should be considered as in special sessions of the people's court on labour affairs, and in regional (regional) vessels not later than five days from the date of their receipt» [349]), affairs about the alimony and paternity proof, then, already in GPK RSFSR 1964 - for all categories дел1.

At first sight it seems, that legal proceedings term should be defined by time period during which the law resolves and obliges courts to consider case.

At the same time reference to the court terms, legal investigation terms, statutory, and reasonable terms of a legal investigation are different

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Categories, on what also pay attention of E.A.Tsaregorodtseva, I.V.Vorontsova and T.V.Soloveva [350 [351] [352], M.A.Filatova [353].

The rationality principle only is mentioned once (however its maintenance does not reveal) in ch. 1 items 107 GPK the Russian Federation according to which legal proceedings should be made in the time limits established by the federal act. In cases if terms are not established by the federal act, they are appointed court. Thus the legislator especially pays attention that terms should be established by court taking into account a rationality principle.

References to a category "rationality" are available and in other articles GPK the Russian Federation (ch. 1 items 99, item 100, ch. 1 item 136), but in one of them does not contain definition of the given concept.

As is known, in the Russian Federation terms, statutory, including for a reference to the court and consideration of labour disputes, are divided into the general and special. At an establishment of their duration the legislator a priory is based on a rationality principle in this connection, it is necessary to consider these terms too reasonable.

Article 392 TK the Russian Federation - «behind the permission of the individual labour dispute» establishes reference to the court Terms, that the worker has the right to address in court for the permission of the individual labour dispute within three months from the date of when he has learnt or should learn about infringement of the right, and on disputes on dismissal - within one month from the date of delivery to it copies of the order for dismissal or from the date of work record card delivery. Thus the employer has the right to address in court on disputes on compensation by the worker of the damage caused to the employer, within one year from the date of detection of the caused damage. At the admission under reasonable excuses of the specified terms, they can be restored court.

Thus, from interpretation of item 392 TK the Russian Federation follows, that reference to the court term behind the permission of the individual labour dispute is the period of time during which the worker (physical person) or the employer has the right to address in court with the claim about the permission of the individual labour dispute with a view of protection of the broken or challenged laws of master and servant.

It is necessary to notice, that reference to the court term behind the permission of the individual labour dispute directly is connected with term of a legal investigation court.

According to positions of item 154 GPK the Russian Federation under the general rule civil cases under labour disputes are considered and resolved by court before the expiration of two months from the date of petition receipt, and business about restoration on work - before the expiration of month [354]. By Federal acts the reduced terms of consideration and the permission of civil cases on labour спорам1 can be established also.

Thus, lawful term is always concrete certain term, unlike «reasonable term», including both lawful term, and term outside of established by the legislation.

Duty of vessels to provide appropriate protection of the rights and freedom of the person and the citizen by timely disposal of legal proceeding it has been formulated in item 1 of the decision of Plenum of the Supreme Court of the Russian Federation from 31.10.1995 № 8 (in red. Decisions of Plenum of the Supreme Court of the Russian Federation from 06.02.2007 № 5, from 16.04.2013 № 9, from 03.03.2015) «About some questions of application by vessels of the Constitution of the Russian Federation at justice realisation» [355 [356] [357] [358].

Last years the Supreme Court of the Russian Federation pays special attention to practice and execution of decisions of the European Court on consideration of complaints of citizens on justice, terms and quality of delivering justice in the Russian Federation in this connection, corresponding Decisions of Plenum where it was repeatedly specified were accepted by it on this question, that principal causes of infringement of time limits of consideration and civil cases are inadequate preparation of affairs for proceeding, lacks and omissions in activity of the vessels, connected, first of all, with the unsatisfactory organisation of litigation, decrease in the performing discipline, the insufficient control from chairmen of corresponding vessels.

At the same time and in the specified decisions of Plenum of the Supreme Court of the Russian Federation did not contain explanations about calculation of "reasonable term» 1.

On May, 4th, 2010 have been published and have become effective the Federal act from 30.04.2010 № 68-FZ «About indemnification for breach of law on legal proceedings in reasonable term or the rights to execution of the judicial certificate

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In reasonable term »and the Federal act from 30.04.2010 № 69-FZ« About modification of separate acts of the Russian Federation in connection with Federal act acceptance «About indemnification for breach of law on legal proceedings in reasonable term or the rights to execution of the judicial certificate

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In reasonable term ». [359 [360] [361] [362]

Necessity of creation of the present compensatory mechanisms of protection of the right to legal proceedings for reasonable term has been registered also in item 53 of the Constitution of the Russian Federation, where the common right on compensation by the state of the harm caused by illegal acts (or inactivity) public authorities or their officials, and subsequently and the Constitutional Court of the Russian Federation in Definition from 03.07.2008 № is fixed 734-ABOUT-p1.

In the presence of the specified bases for introduction of the norms promoting consideration of lawsuits and execution of judicial certificates in reasonable terms, the principal cause which has served to acceptance of named laws, decision ESPCH from 15.01.2009 on business «Burdov (Burdov) was so-called"pilot"concerning Russia against

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The Russian Federation »(№ 2)» (the complaint № 33509/04) in which it is specified, that the state-respondent is obliged not only to pay indemnification to the citizen, but is obliged «to enter within six months from the date of the introduction of the present Decision into force according to item 2 of item 44 of the Convention an effective internal remedy at law or a combination of such remedies at law which will provide adequate and sufficient compensation in connection with default or untimely execution of [363 [364] decisions of national vessels taking into account the conventional principles established in case practice of the European Court» 1.

As a subject of the present research the given laws are not, it is necessary to notice, that they have been subjected the careful analysis in many researches [365 [366] [367].

So, JU.V.Uspensky, considering concept «reasonable term», without the sufficient argument in its basis puts the Letter of the Director of Legal department of the Ministry of Finance of the Russian Federation from 07.07.2010 № 08-06-06/582 «About indemnification for

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Breach of law on execution of the judicial certificate in reasonable term », specifying that in it the explanation concerning term application« reasonable term »has been given. He also complains that the Ministry of Finance of the Russian Federation does not give the unequivocal definition, it is necessary to recognise what term"unreasonable"and as it to estimate: months, years? And there and then refers to certain private position ESPCH according to which"unreasonable"the term estimated годами1 is. Believes also necessary, considering practice of the European Court (not resulting that of examples) to take for a basis two-year-old term. Thus, as though having thought suddenly, expresses opinion, that this term should be defined in each concrete case taking into account the various circumstances specified in the law [368 [369] [370].

Meanwhile the Ministry of Finance of the Russian Federation (and the more so the director of Legal department) is not authorised to make to explanation vessels about the concept maintenance «reasonable term» and terms of its calculation for, it not powers of enforcement authority and as already it has been specified above, is the constitutional prerogative only the Supreme Court of the Russian Federation.

In this occasion the Constitutional Court of the Russian Federation in the Decision from 19.07.2011 № 17-P «On business about check of constitutionality of position of point 5 of a part of first article 244.6 of the Civil code of practice of the Russian Federation...» Has come to fair conclusions that concept «reasonable term» has estimated character in this connection «the measure of reasonable duration of legal proceedings cannot be identical to all affairs». Thus the Constitutional Court of the Russian Federation has noticed, that practice of the European Court, confirms, that the concept of reasonable term

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Proceeding assumes an individual approach.

According to ch. ch. 1, 2 items 6.1. GPK the Russian Federations, entered by the Federal act from 30.04.2010 № 69-FZ, legal proceedings in vessels and judicial decision execution are carried out in reasonable terms.

Trial in vessels is carried out in the terms established by the named Code. Prolongation of these terms is admissible in cases and is perfectly in order, which are established GPK, but legal proceedings should be carried out in reasonable term.

From positions ch. 5 items 3 of the Federal act of the Russian Federation «About indemnification for breach of law on legal proceedings in reasonable term or the rights to execution of the judicial certificate in reasonable term» follow, that "limiting" term in civil legal proceedings considers duration of consideration of a civil case no more than three years.

At the same time excess of the general duration of legal proceedings on the civil, administrative business, equal to three years, not always testifies to breach of law on legal proceedings in reasonable term as well as legal proceedings realisation on civil, administrative business in time less than three years, taking into account concrete circumstances of business can testify to breach of law on legal proceedings in reasonable срок1.

Source of a remedial category «reasonable term of proceeding» is item 1 of item 6 of the European Convention, according to which «everyone in case of dispute on its civil rights and duties... Has the right to the fair... Trial in reasonable term... Court», being the conventional fundamental law of everyone.

Meanwhile still fifteen years ago the Chairman of the Supreme Court of the Russian Federation V.M.Lebedev at V All-Russia congress of judges noticed, that in the Russian Federation with infringement of time limits every sixth civil case [371 [372] is considered.

On the past on December, 2-4nd, 2008 VII congress of judges of Russia to which the meeting spent on January, 28-31th, 2008 by the Supreme Court of the Russian Federation together with Judicial department at the Supreme Court of the Russian Federation and preceded

The Russian academy of justice, D.A.Medvedev, being the President of the Russian Federation, 1 and the Chairman of the Supreme Court of the Russian Federation V.M.Lebedev a red line have underlined a question of observance of reasonable terms of disposal of legal proceeding by vessels of all levels of the country [373 [374] [375].

As under human rights with 1959 on 2013, after the introduction into action of the Convention for Russia with 1998 on 2013 from 1318 decisions accepted by Court, (all it is accepted 1475, on 70 infringements is not established) on which one infringement is recognised at least, 631 decision - the statistics of the European Court testifies to breach of law on fair proceeding, 169 - about breach of law on proceeding in reasonable term and 53 - about long default of a judgement, that in an aggregate number constitutes more than 50 % and testifies to infringement of item 6 of the Convention.

As writes S.F.Afanasev, the careful analysis has shown, that the conflicts arising from labour legal relations, than 3 months (the Netherlands and Spain), 440 days (Slovenia), 695 days (Italy) [376] are considered not less.

From numerous decisions of the European Court concerning the Russian Federation it is known about proceedings under the labour disputes which duration has constituted more than seven years [377], more than 6 years and

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Six months, five years and five months, five years, about five years etc.

In spite of the fact that the aggregate term of enforcement of the judicial decision which has entered validity and obligatory for execution, according to ch. 1 items 36 of the Federal act from 02.10.2007 № 229-FZ (red. In red. Federal acts as of 03.07.2016 № 326-FZ) «About final process» 5 constitutes two months from the date of excitation of final process, practice of the European Court testifies, as under labour disputes it can not be executed more than one year and two, three and four years, five years, about six, more than seven [378 [379] [380] [381] [382] [383] [384] [385] and eight лет3, and even more than 10 лет4 and can be not executed at date of complaint consideration in European Суде5.

Similar judicial precedents of the European Court concerning Ukraine, testify, that default of certificates of judicial and other bodies equal to them under labour disputes (for example, the commissions on labour disputes), seven take place also лет6, about five with

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Half of years.

At the same time it is necessary to pay attention that duration of proceeding concerning collecting of wages less

Eight months, according to ESPCH, corresponds to the requirement «the reasonable

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Term ».

Besides, according to items 42, 43, 47 decisions ESPCH from 23.09.2010 on business «Vasilchenko (Vasilchenko) against the Russian Federation» (the complaint № 34784/02) in which excessive duration (more than three years) proceeding on business of the applicant about its restoration in a former post, payments of the salary and the extra charges connected with service was appealed, and also indemnifications of the moral harm caused by displacement from [386 [387] [388] [389] [390] [391] [392] [393] posts, the European Court has noticed, that considering the general efforts and the diligence, shown by the national authorities, and also that fact, that business were considered in instances of various level and the court decision part, concerning restoration on work, has been executed in reasonable term, the European Court has considered, that the requirement of "reasonable term» in the present business is broken not было1.

The problem of a rationality of term of proceeding, or as considers M de Salvia, is better to tell, a rationality of proceedings, is actual for many правопорядкові

Thus obosnovanno there is a question: what is «reasonable term» legal investigations and who most «reasonable term» defines this or

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Should define?

In F.Brockhaus and I.Efron's dictionary reason (an armour. ratio), mind (grech. vou

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A source: SHVETSOVA MARINA VJACHESLAVOVNA. JUDICIAL CERTIFICATES of the EUROPEAN COURT UNDER HUMAN RIGHTS In SPHERE of LABOUR And OTHER LEGAL RELATIONS DIRECTLY CONNECTED With THEM. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2016

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