欧洲人权法院法律理论与实践中的过度形式主义理论

Oksana Shcherbaniuk, Tetiana Bohdanevych
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摘要

作为组织某些现存争端和解决社会内部矛盾的一种手段,自有史以来,程序手续的制度就变得十分必要。无论是司法程序还是非司法程序,程序手续的存在都是为了限制程序过程中的某些情况。众所周知,有几项原则对程序的手续进行了规范,主要是规定了程序限制。因此,这些理性价值旨在实现目的原则。文章的方法论基础是以唯物辩证法为基础的辩证认识方法,并运用了分析、综合、归纳、演绎、抽象、具体化、类比、假设建立法、系统结构法等一般科学方法。通过研究,发现了法院在适用程序法规则时过度形式主义的案例。研究结果的实际意义在于防止执法机关今后再犯此类错误。通过撰写本文,作者确定了过度形式主义的主要表现形式是法院为案件当事人执行程序规则设置程序障碍、国家立法对程序规则的严格解释以及以形式理由退回行政诉求。事实证明,在解决是否接受申诉书的问题上过度的形式主义会导致公平司法保护权受到侵犯。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Doctrine of Excessive Formalism in the Legal Theory and Practice of the European Court of Human Rights
As a means of organising certain existing disputes and resolving conflicts within society, it has made the institution of procedural formalities necessary since the beginning of history. The existence of formalities in a proceeding, whether judicial or extrajudicial, serves to limit certain situations in the course of the process. It is well known that there are several principles that regulate the formalities of procedure, mainly by establishing procedural limits. These reason values are thus aimed at achieving the principles of purpose. The methodological basis of the article is the dialectical method of cognition based on materialistic dialectic with the use of such general scientific methods as analysis, synthesis, induction, deduction, abstraction, specification, analogy, hypothesis building method, and the system-structural method. The study has resulted in the identification of cases of excessive formalism by courts when applying the rules of procedural law. The practical significance of the results obtained is to prevent such mistakes by law enforcement authorities in the future. As a result of writing this article, the author has established that the main manifestations of excessive formalism are the creation by the court of procedural obstacles to the implementation of procedural rules by the parties to the case, strict interpretation by national legislation of the procedural rules, and return of an administrative claim on formal grounds. It is proved that excessive formalism in resolving the issue of acceptance of a statement of claim leads to a violation of the right to fair judicial protection.
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