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§ 3.1. Preconditions of development of remedial representation

it is necessary to allocate four groups of the factors which are the general preconditions of development of interbranch institute of remedial representation in the modern Russian right. 3.1.1. International legal preconditions The international law considers remedial representation as the institute, called to provide the right and freedom of the person, an equality principle of all before the law.
So, according to article 8 of the General declaration of the rights and freedom of the person, point 1 of article 14 of the International pact on the civil and political rights, point 1 of article 6 of the Convention on protection of human rights and fundamental freedoms judicial protection is understood as effective rehabilitation by independent court on the basis of fair proceeding that assumes maintenance of competitiveness and equality of the parties, including granting of sufficient remedial competences by it for 1 Reshetnikova I.V.law in civil legal proceedings. Ekaterinburg: Publishing house of Humanitarian university. 1997. With. 128. 2 Jakovlev V. F. The branch differentiation and interbranch integration as wasps are new legislation/jurisprudence systems. 1975. №1. С.20. 127 Are sewn up the interests at realisation of all legal proceedings which result has essential value for definition of the rights and objazanno-stei. The general declaration of the rights and freedom of the person specifies in equality of all before законом2. Equality before the law assumes also equal possibility of protection of the broken rights and equal possibility on representation in these relations. Maintenance of this possibility is assigned to the state, as on the international subject. So, the United Nations Organization Charter confirms the right of people of all world to creation of conditions at which legality will be observed, the International pact about the economic, social and cultural rights assigns to the states a duty according to the United Nations Charter to promote general respect and observance of the rights человека3. Assistance to respect and observance of human rights is made by the state including by a possibility to address for assistance to the remedial representative. Maintenance of the rights and freedom of the person is given to people in an economic, social, cultural, civil and political life and demands, that everyone had possibility to use a legal aid. Substantive provisions about the roles of lawyers accepted on the Eighth Congress of the United Nations under the prevention of crimes, taken place in August, 1990 in New York, have proclaimed, that maintenance of a principle of access to lawyers and a legal aid is a state duty. The governments should guarantee effective procedure and the working mechanism for real and TSit. On: the decision of the Constitutional court of the Russian Federation «On business about check of constitutionality of positions of parts by the first and the second 295 UPK RSFSR in connection with the complaint of citizen M.A.Klyuyev» from 15.01.99г. №1-ШРоссийская the newspaper. 28.01.99г. 2 General declaration of the rights and freedom of the person (the Resolution 217 A (III) General Assembly of the United Nations from 10.12.48)//the USSR and the international cooperation in the field of human rights.
Documents and materials. M. 1989. S.413-419. 3 Bulletin of the Supreme Court of the Russian Federation. 1994. №12. With. 5-11. 12ч8 Equal access to lawyers of all persons living in its territory and subordinates of its jurisdiction without division of race, colour of a skin, an ethnic origin, a floor, language, religion, political and other sights, national or a social origin, economic or other статуса1. The European Court under human rights in the practice starts with such understanding of the right to court at which as a component possibility to have access to court including by means of consultations of lawyers acts. So, on business Goldera from 21.05.75 the European Court under human rights recognised as breach of law on court refusal of the Minister of Internal Affairs of the Great Britain in the permission condemned on reception of consultations of the lawyer for decision-making on a presentation in court civil иска2. It is necessary to notice, however, that practice of the European Court under human rights interprets position of point 1 of article 6 of the European convention on protection of human rights and fundamental freedoms possibility of each person to have access to court as a part of the right to court, as the right which restrictions by the national legislation are admissible. The European Court under human rights formulates position according to which the right to access to courts is not абсолютным.3 Restrictions at a regulation of the right to court admit the European Court under human rights expedient in case of access restriction to court for insane persons during treatment (the decision on business Ashingdane from 28.05.85); the measures of the national legislation directed on prevention of unjustified excitation admitted expedient has put the persons inclined to the common barratry (the decision on business Monnell and Morris from 02.03.87); Are considered reasonable creation of system of collective claims at the decision of questions of indemnification for on - 1 About legal profession. World situations. M "Bukvitsa". 1997. S.4-5. 2 Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. № 5. S.98-100. 3 Judgement of the European court under human rights on business Goldera 21.02.75//the Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. № 5. С.Ю0. 129 tsionalizatsiju (the decision on business Lithgow and Others from 08.07.86). At the same time, similar restrictions do not influence as a whole positions about a court role in system are sewn up the rights and to the right to court. The Russian legislation in this part is represented more answering to a principle of freedom of access to justice - it does not contain similar restrictions, giving to persons the broadest possibilities for protection of the rights in court. Especially the great value is given by international law to questions of rendering of free legal aid. In particular, article 20 of the Convention concerning the civil procedure, signed in the Hague 01.03.54 (has become effective for the USSR and Russia 26.07.67) says, that on trading and to civil cases citizens of each of the Agreeing states will use in all other Agreeing states free legal aid, as own citizens of these last states according to the state legislation where free legal aid is required. In the states in which there is a legal aid on administrative affairs, positions of the previous paragraph are applied also to these affairs considered by courts of competent jurisdiction 2. Substantive provisions about a role of lawyers specify, that maintenance of financing and other resources for a legal aid poor and another neso - ? And stojatelnym to people is a government duty. Modern Russian legal realities are that, that financing of rendering of a legal aid on civil cases for requiring deprived citizens is not made by the state. Privileges on legal aid payment, statutory, as a result become expenses of the person rendering such help, - the lawyer or the notary. neshataeva So-called Article 6 of the European convention about protection of human rights and fundamental freedoms and the right to court//the Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. №5. С97. 2 Bulletin of the Supreme Arbitration Court. 1996. №12. 3 About legal profession. World situations. С.5. 130 Guarantee of appropriate rendering of the qualified legal aid the international community considers presence of the independent legal trade understood as existence of necessary quantity of persons, possessing knowledge in the field of right and called to render a legal aid without intervention from the state. According to Substantive provisions about a role of lawyers activity of lawyers should be guaranteed by the state refusal in a recognition of the right of the lawyer having access in practice, in particular, is impossible, to represent the client if this lawyer has not been disqualified according to the national law and practice of its application and Положениями1. It is represented, that in Russia there is no necessary quantity of persons possessing appropriate qualification and rendering a legal aid without state intervention. Position far from large cities is especially sad where even to find the qualified lawyer is the big problem. The Russian Federation as a member of the Council of Europe should be capable to observe the European convention on protection of human rights and fundamental freedoms and Reports to it as the states, entering the Council of Europe, first of all assume joining to the mechanism of protection of the rights and fundamental freedoms человека2. It is especially important, as Russia has joined Report №11 to the Convention on protection of human rights and the fundamental freedoms, providing jurisdiction of new European court by the rights человека3. Article 6 of the European convention about protection of human rights and fundamental freedoms says, that each person has the right at definition of its civil rights and duties to fair and public trial in reasonable term the independent and impartial court created on the basis of the law. Interpretation of this article in system with article 14 of the European convention specifying, that 1 In the same place. 2 Shestakov L.N. Russia-member of the Council of Europe: some legal questions//the Bulletin of the Moscow university. A series the Right. 1997. №4. С.63. 3 Meeting of the legislation of the Russian Federation. 1998. №44. Item 5400. sh Using the rights and freedom recognised in the present Convention, should be provided without any discrimination including on the basis of a property status or to any other circumstances, allows to draw a conclusion, that using a legal aid necessary for protection of the rights in court, should not contact possibility of property compensation for such help concerning persons who cannot give such возмещение1. Ministers of Justice of the countries of Europe at the twentieth meeting «Efficiency and justice of justice on civil, criminal and administrative affairs» (on June, 11-12th, 1996, the city of Budapest) have confirmed necessity to guarantee to citizens access to system of effective and fair justice, necessity of acceptance of measures for the given direction. Member states of the Council of Europe at creation of system of the effective legal aid which is one of such measures, are guided by following principles: • Granting on the same conditions, as to own citizens, a legal aid on civil cases to citizens of member states of the Council of Europe and the persons constantly living in their territory (the Resolution (76) 5, accepted by Committee of ministers 18.02.96 at 254 session of assistants министров2); • Legal aid granting should be considered not as the mercy certificate, and as the obligation laying on all society as a whole. Thus such duty is based that the right to access to justice and fair trial is guaranteed by article 6 of the European convention under human rights of 1950, such right is one of the basic signs of the democratic state, and also that it is necessary to take all necessary measures for the purpose of elimination of economic obstacles for access to pra - 1 Meeting of the legislation. 1998. №20. Item 2143. 2 Russian justice. 1997. №6. С.2. 132 vosudiju (the Resolution (78) 8, accepted by Committee of ministers 01.03.78 at 284 session of assistants министров1); • Nobody can be deprived owing to obstacles of economic character of possibility of use or are sewn up the rights in any vessels. For this purpose any person should have the right to a necessary legal aid in proceeding. By consideration of questions on necessity it is necessary to consider financial possibilities of the person and court costs. Responsibility for legal aid financing should be assigned to the state. The legal aid should be carried out by the person, having the right to practise as the lawyer according to legal rules of the given state (Addition to the Resolution (78)) 2; • The lawyer is responsible for conducting business in civil procedure frameworks: when there is an excitation of obviously unreasonable claim, unfair behaviour, obvious infringement of procedure with the obvious purpose to tighten trial, the court should or collect a legal cost from the lawyer, either impose the penalty, or deprive of the right to legal proceedings. Professional associations of lawyers should to suggest apply measures of disciplinary influence, if it was one of their members (Addition to recommendation R (84) 5 from 28.02.84) 3. According to the Convention on legal aid on civil, family and to the criminal cases, concluded by the member countries CIS, the Russian Federation ratified by Federal assembly 01.08.94 and become effective for Russia with 10.12.944, citizens of each of the CIS countries use in all CIS countries an equal legal protection property and individual rights along with own citizens. Proceeding from this general principle citizens of any of the CIS countries in any member country CIS have the right freely and free about - The Russian justice. 1997. №6. S.Z. 2 In the same place. 3 In the same place. S.5-6. 4 Meeting of the legislation of the Russian Federation. 1994. №15. Item 1684. 133 rashchatsja in courts which competence civil cases concern to have representatives, to submit petitions, to carry out other legal proceedings on the same conditions, as citizens given страны1. The Russian norms providing access to justice and regulating questions of judicial representation as a whole correspond to international legal standards. In some cases the Russian remedial legislation gives to persons of more possibilities for protection of their rights in vessels. However practice of application of the legislation shows, that access to court is complicated as a result of enough long terms during which addressed for judicial protection awarding judgement expect; absence of necessary quantity of the persons representing an independent legal procession; absence of financing by the state of rendering assistance by the deprived.
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A source: Khalatov, Sergey Aleksandrovich. Problems of representation in civil Legal proceedings / thesis. 2002

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