enforcement is moral communication about the core of the legal system, as it
draws the boundaries of legally recognised use of coercion. Thus, we may observe
these boundaries as the self-understanding of procedural law concerning coercion,
while bearing in mind the unresolvability of moral positions.
In Horsby v Greece, the ECtHR established that the right to execution of
judgment is included within the right to a fair trial. The argument behind this
position accentuates that access to court would be ineffective without the execution of the final and binding judgment.
22 Furthermore, the scope of access to
justice has been elaborated in Burdov v Russia, where the ECtHR established
that some delay in enforcement is acceptable as long as it does not impair the
litigant’s right.
23 It has also been established that the enforcement provided
should be exhaustive and full, and no partial enforcement suffices to accommodate the demands set by the case law.
24 However, certain procedural steps may
be expected of the litigant to access enforcement.
25 Still, the states must provide
the necessary means for enforcing compliance from private individuals but cannot
be held responsible for the non-compliance of these third parties.
26
Thus, law’s internal programme of due process criteria, which is grounded in the
moral discourse of human rights, dissects all aspects and phases of the dispute
resolution process. These criteria addressed both the threshold of litigation costs,
27
actual conduct of proceedings as discussed above, and even the enforcement phase
after the final decision has been rendered. Unlike sovereignty or private autonomy,
elements of these moral communications about dispute resolution can be located
overall.
28 Sovereignty, in turn, is to be found in territorial jurisdiction and structure
of cross-border legal instruments. Private autonomy is located in consent of the
parties as an alternative jurisdiction and in respect of the parties’ freedom of
contract. These effects take place on an abstract level, whereas due process criteria
depicted here functions on a more concrete level. Self-evidently, corresponding
examples of private autonomy can be located on the same concrete level in sections
of procedural legislation providing for parties’ freedom of contract within the court
proceedings or in acceptance of arbitral clauses. Concrete workings of sovereignty
can be found in treaty stipulations on margins of appreciation and in ordre public
clauses, which aim at procuring the unity of national legal systems.
This leads us to the following. Human rights in general and access to justice in the
particular context of dispute resolution are moral communications about law that
form lasting structures within the legal system. The non-compliance with these
structures, namely with the due process criteria, may lead to disappointment of
expectations and to setting aside the judgment rendered at the end of a dispute
resolution procedure. Thus, we find the elusive justificatory narrative of access to
justice in the structuralised moral communication embedded in the due process
criteria.
7.2.2 What’s wrong with access to justice?
The due process criteria represent the positivisation of moral communication
about dispute resolution. This is to say that due process is a reflection of the
Access to justice 169
draws the boundaries of legally recognised use of coercion. Thus, we may observe
these boundaries as the self-understanding of procedural law concerning coercion,
while bearing in mind the unresolvability of moral positions.
In Horsby v Greece, the ECtHR established that the right to execution of
judgment is included within the right to a fair trial. The argument behind this
position accentuates that access to court would be ineffective without the execution of the final and binding judgment.
22 Furthermore, the scope of access to
justice has been elaborated in Burdov v Russia, where the ECtHR established
that some delay in enforcement is acceptable as long as it does not impair the
litigant’s right.
23 It has also been established that the enforcement provided
should be exhaustive and full, and no partial enforcement suffices to accommodate the demands set by the case law.
24 However, certain procedural steps may
be expected of the litigant to access enforcement.
25 Still, the states must provide
the necessary means for enforcing compliance from private individuals but cannot
be held responsible for the non-compliance of these third parties.
26
Thus, law’s internal programme of due process criteria, which is grounded in the
moral discourse of human rights, dissects all aspects and phases of the dispute
resolution process. These criteria addressed both the threshold of litigation costs,
27
actual conduct of proceedings as discussed above, and even the enforcement phase
after the final decision has been rendered. Unlike sovereignty or private autonomy,
elements of these moral communications about dispute resolution can be located
overall.
28 Sovereignty, in turn, is to be found in territorial jurisdiction and structure
of cross-border legal instruments. Private autonomy is located in consent of the
parties as an alternative jurisdiction and in respect of the parties’ freedom of
contract. These effects take place on an abstract level, whereas due process criteria
depicted here functions on a more concrete level. Self-evidently, corresponding
examples of private autonomy can be located on the same concrete level in sections
of procedural legislation providing for parties’ freedom of contract within the court
proceedings or in acceptance of arbitral clauses. Concrete workings of sovereignty
can be found in treaty stipulations on margins of appreciation and in ordre public
clauses, which aim at procuring the unity of national legal systems.
This leads us to the following. Human rights in general and access to justice in the
particular context of dispute resolution are moral communications about law that
form lasting structures within the legal system. The non-compliance with these
structures, namely with the due process criteria, may lead to disappointment of
expectations and to setting aside the judgment rendered at the end of a dispute
resolution procedure. Thus, we find the elusive justificatory narrative of access to
justice in the structuralised moral communication embedded in the due process
criteria.
7.2.2 What’s wrong with access to justice?
The due process criteria represent the positivisation of moral communication
about dispute resolution. This is to say that due process is a reflection of the
Access to justice 169