Gazetdinov Nail Islamovich, Head of the Department of Criminal Procedure and Criminalistics of the Kazan Federal University, Associate Professor.
The article is devoted to the study of the essence of justice as the main form of implementation of the judiciary. The Constitution of the Russian Federation establishes the fundamental rights and freedoms of citizens and guarantees their protection. The main form of protection of the constitutional rights of citizens is judicial protection, carried out by the judiciary in various forms. A special place in ensuring the protection of the rights of both citizens and organizations is occupied by the activities of the courts in the administration of justice.
Key words: justice, judiciary, judicial control, legal proceedings.
Justice as a form of realization of judicial power
Gazetdinov Nail" Islamovich, head of the chair of criminal procedure and criminalistics of Kazan federal university, assistant professor.
The article concerns study of the essence of justice as a fundamental form of realization of judicial power. The Constitution of the RF consolidates fundamental rights and freedoms of citizens and guarantees protection thereof. The main form of protection of constitutional rights of citizens is judicial protection effectuated by the judicial power in various forms. The special role in ensuring protection of rights and freedoms of citizens and organization is played by activities of courts on effectuation of justice.
Key words: justice, judicial power, judicial control, judicial proceeding.
One of the main duties of the state in accordance with the Constitution of the Russian Federation (Constitution of the Russian Federation) is the protection of rights and legitimate interests. In Art. 2 of the Constitution of the Russian Federation is fixed: recognition, observance, protection of the rights and freedoms of man and citizen is the duty of the state, and in accordance with Art. 18 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen are directly applicable and are provided by justice.
According to the fair remark of I.Ya. Foinitsky, along with other duties, the state power is entrusted with the duty to "deliver justice to the population. This function calls to life the judiciary as a branch of state power, complementing its other branches of power - legislative and governmental"<1>.
<1>Foinitsky I.Ya. Course of criminal justice. SPb., 1996. T. 1. S. 145.In modern legal literature, the concept of justice in the field of criminal proceedings causes a rather lively discussion. The fact that these discussions took place in antiquity is evidenced by aphorisms.
For clarity, we can cite some aphorisms about justice from the article by I.V. Smolkova: "Justice is the soul of laws" (Cicero); "Justice is the unchanging and constant will to grant to each his right" (Justinian); "Justice is justice in action" (J. Joubert)<2>. These statements of great thinkers - philosophers are very close to today's understanding of justice and are consonant with the views of modern scientists. S.L. Lon defines justice as a special kind state activities carried out by the court<3>. A.V. Grinenko understands justice as the activities of the courts, carried out on behalf of the state in accordance with the law, to consider and resolve civil, criminal cases, cases of administrative offenses, as well as other cases within their powers.<4>. A similar definition of the concept of justice is also given by V.S. Avdonkin<5>. V.M. Semenov defines justice as a court judgment on the rights and obligations (responsibility) of any persons based on the application of the law to specific facts, cases of life, people's actions<6>. Considering various approaches to the definition of the concept of "justice", F.A. Abasheva defines this concept in criminal cases as a function assigned exclusively to the courts, aimed at resolving the charges on the merits.<7>.
<2>Cm.: Contemporary Issues judicial law. Orenburg, 2012. S. 176 - 186.<3>See: Law enforcement agencies: textbook / ed. V.P. Bozheva. M., 2012. S. 28.
<4>See: Grinenko A.V. Law enforcement agencies in questions and answers. 2nd ed. M., 2009. S. 28.
<5>See: Avdonkin V.S. Law enforcement agencies in diagrams with comments. 5th ed. M., 2010. S. 17.
<6>See: Law enforcement agencies of the Russian Federation: textbook / ed. V.M. Semenov and V.A. Boydukov. M., 2008. S. 24.
<7>See: Abasheva F.A. Administration of justice in criminal cases by the courts of first instance. Izhevsk, 2012. S. 93.<8>See: Shamardin A.A., Guskova A.P. Law enforcement agencies: textbook. allowance. Orenburg, 2012, p. 25; Bozrov V.M. Contemporary Issues Russian justice on criminal cases in the activities of military courts. Yekaterinburg, 1999, p. 18.
To substantiate their positions regarding the definition of the concept of justice given by them, the authors name as arguments the signs that, in their opinion, are characteristic and characterize the essence of this legal category.
As for the signs called by different authors, which, in their opinion, characterize the essence of justice, just as there are no identical DNA or papillary patterns of fingers, so there are no identical approaches regarding them.
Without entering into a discussion with respected authors regarding the essential characteristics of justice, we nevertheless consider it necessary to state our position on the properties of this concept: justice, of course, is the exclusive activity of the courts; this activity is aimed at protecting the rights of citizens and legal entities by establishing the objective truth in the case; this activity is carried out in a certain procedural form in strict accordance with the law; decisions taken in the process of administering justice after their entry into legal force are subject to mandatory execution.
Taking into account the analysis of the current legislation, primarily the provisions of the Constitution of the Russian Federation, and the points of view of respected scientists considered by us in this article, we can give the following definition of the concept of justice: Justice is the activity of the courts that are part of the judicial system, which is aimed at ensuring the protection of the rights and freedoms of citizens and organizations by considering and resolving civil, administrative, criminal and arbitration cases in a certain procedural form.
Regardless of the different approaches to understanding justice, the authors are unanimous in that justice is the main form of implementation of the judiciary, but the trouble is that there is no such unanimity in understanding the essence of the judiciary itself. Of course, no one argues or denies that the judiciary is one of the branches of state (supreme) power.
Chapter 7 of the Constitution of the Russian Federation is called "Judicial Power", art. 118 of this chapter of the Constitution of the Russian Federation establishes: "Judicial power is exercised through constitutional, civil, administrative and criminal proceedings." But there is no direct answer to the question of what should be understood by the judiciary in the Constitution of the Russian Federation.
According to the fair remark of L.A. Voskobitova, in many scientific research devoted to the study of the judiciary, there are two approaches to the definition of the concept of judiciary - defining it as a set of judicial bodies - courts and as the activity of courts in the exercise of the powers granted to them by law<9>. E.V. writes about the same. Burdina<10>. There is also a point of view according to which the judiciary is not a court, not a judicial system, and not even an activity for the administration of justice, but the right and opportunity belonging to the courts in a special procedural form and with special methods to resolve legal conflicts arising in society.<11>. Some authors identify the judiciary with justice<12>.
<9>See: Voskobitova L.A. Essential characteristics of the judiciary. Stavropol, 2003, p. 67.<10>See: Burdina E.V. Judicial power in the Russian Federation. Saransk, 2006, p. 49.
<11>See: Lazareva V.A. Judicial protection in the criminal process of the Russian Federation: problems of theory and practice: author. dis. ... Dr. jurid. Sciences. M., 2000. S. 14.
<12>See: Avdonkin V.S. Decree. op. S. 16.
A rather detailed description of the concept and features of the judiciary is given by A.A. Shamardin and A.P. Guskov, according to whom, this is the activity of the courts to resolve legal conflicts in society with the use of power.
The study of the essential characteristics of the judiciary is devoted to the monograph of Professor L.A. Voskobitova. Of course, this is a fundamental work on the study of the essence of the modern judiciary.<13>. But still, in our opinion, the definition of the concept of judicial power in this work seems to be insufficiently accurate.<14>. The judiciary is defined in the work as special state-power relations between the court and other subjects of law, implemented through legal proceedings, arising in the process of considering and resolving legal conflicts in order to protect and restore the violated right by the court and determine the measures of responsibility of the guilty or protect the innocent from liability. Note that state-power relations between the court and other subjects of law arise not only in the process of considering and resolving conflicts and not always with the aim of protecting and restoring the violated right, and even more so, it is not always necessary to determine the perpetrator and the measure of his responsibility. As an argument, it is enough to name the activity of the court in special proceedings in a civil process, in which there is no legal dispute and conflict and there is no guilty person, therefore, there is no responsible person. This is also indicated by I.L. Petrukhin<15>.
<13>See: Shamardin A.A., Guskova A.P. Decree. op. pp. 21 - 23.<14>See: Voskobitova L.A. Decree. op. S. 79.
<15>See: Judiciary / ed. I.L. Petrukhin. M., 2003. S. 84.
The respected authors of the above works, while discussing the concept of the judiciary, focus on characterizing the external properties of this power, respectively, the existing definitions are directly related to a greater extent with its external characteristics. It seems to us that in order to define the concept and characterize the essence of the judiciary, it is necessary to define and analyze the organization (construction) of the judiciary and its functions. It is the organization of the judicial system and the forms of exercise of the powers granted to the judiciary that determine the essence of the judiciary, because when characterizing the legislative or executive powers, the essential characterization, as a rule, is given precisely on the basis of the construction and functioning of these branches of government. We believe that the essence of the judiciary is determined by three elements: the judiciary - the court; the powers conferred by the legislature on the courts to exercise judicial power; the very activity of the court in the exercise of judicial power by exercising its powers in various forms.
Only the presence of all these three elements in the content of the judiciary gives grounds to assert the presence of the judiciary. If at least one of the above structural elements judiciary, this would mean the absence of the judiciary as a whole. I.B. also points to this. Mikhailovskaya: "... the presence of courts in itself, as well as certain rules for resolving conflicts that arise in society, does not yet indicate the presence of the phenomenon of judicial power"<16>.
<16>See: Ibid. S. 13.Moreover, for the completeness and reality of the judiciary, we believe it is necessary to have a fourth element in the content of the judiciary - the presence of the powers of the courts to control the execution of their decisions.
Highlighting various forms of the exercise of judicial power, such as justice, constitutional control, judicial control in pre-trial proceedings, clarification of the current legislation on judicial practice, participation in the formation of the judiciary and assistance to the bodies of the judiciary, A.A. Shamardin and A.P. Guskov, quite rightly and rightly, they also name such a form of exercise of judicial power as ensuring enforcement of judgments <17>.
<17>See: Shamardin A.A., Guskova A.P. Decree. op. S. 25.The current Russian legislation does not assign such a function to the judiciary. According to the current legislation, the courts participate in the enforcement of court decisions only by considering the appeals of participants in enforcement proceedings with a statement or complaint about the actions or inaction of bailiffs, as well as other bodies and persons obliged to execute judicial acts. For the real exercise of judicial power, and, consequently, for the real protection of the rights of individuals and legal entities, including the rights of the state itself, the duties of protecting rights and freedoms enshrined in legislation (Articles 2, 18, 45, 46 of the Constitution of the Russian Federation, Article 2 of the Code of Civil Procedure of the Russian Federation, Article 6 of the Code of Criminal Procedure of the Russian Federation, etc.) imply the restoration of violated rights by the court in real terms, not on paper. Any decision taken by the court in accordance with Art. 6 of the Law on the Judicial System in the Russian Federation is subject to mandatory execution by the bodies and officials of the bodies for the execution of court decisions. In Art. 45 - 46 of the Constitution of the Russian Federation, the state guarantees the protection of the rights and freedoms of man and citizen, providing a guarantee of judicial protection, but as far as decisions made by the court are actually executed, the judiciary does not exercise control over this. In cases where one or another court decision aimed at protecting the rights of a particular person is not executed, can it be argued that justice has been done, that the function of exercising judicial power has been realized? Of course no. Until the court decision is actually executed, it is also impossible to talk about the fulfillment of the duty of protecting rights assigned to the courts.<18>.
<18>According to the results of the activities of the FSSP for 2013, the enforcement of judgments in enforcement proceedings is 41.4%.AND I. Foinitsky wrote about this: "The court must be a force, and for this it is necessary that all measures that ensure the possibility of trial and the actual implementation of court decisions be concentrated in the hands of the judiciary"<19>.
<19>See: Foinitsky I.Ya. Decree. op. S. 189.In this regard, there is a need to impose on the judiciary the exercise of judicial control over enforcement proceedings. By the way, before such control took place, the bailiffs were at the courts and were subordinate to the judges and the chairman of the court, who exercised control over the execution of their judicial decisions.
In view of the foregoing, the judiciary can be defined as the activity of the courts that are part of the judicial system, ensuring real protection of the rights and freedoms of citizens and organizations by exercising the judicial powers granted to them in the form of administering justice and in other forms of exercising judicial power. The definition of the judicial system in the current Constitution of the Russian Federation can also be considered not very successful.
In ch. 7 "Judicial power" of the Constitution of the Russian Federation (Article 118) the following provisions are fixed: the judicial system of the Russian Federation is established by the Constitution of the Russian Federation and the federal constitutional law (part 3); justice is carried out only by the courts (part 1); judicial power is exercised through constitutional, civil, administrative and criminal proceedings (part 2). In this article, the Basic Law, although it delimits the judiciary and justice, does not establish the “promised” judicial system either in this or in other articles, but only fixes the status of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. The 1977 constitution in art. 151 established the judicial system of the USSR as a whole, listing in this article all the courts included in this system.
Quite controversial in the legal literature is also the opinion of scientists regarding the forms of implementation of the judiciary. The fact that the main form of implementation of judicial power is the administration of justice is not disputed by anyone, moreover, according to some authors, this is the only form of implementation of judicial power.<20>.
<20>Lazareva V.A. Judicial protection in the criminal process of the Russian Federation: problems of theory and practice: author. dis. ... Dr. jurid. Sciences. M., 2000. S. 16.CM. Darovskikh names two forms of implementation of judicial power: through the administration of justice and in the form of judicial and constitutional control.<21>. V.A. Rzhevsky, N.M. Chepurnov as forms of implementation of the judiciary distinguish: justice; judicial supervision; judicial administration; judicial control in the field of executive power and judicial constitutional control<22>.
<21><22>Rzhevsky V.A., Chepurnova N.M. Judicial power in the Russian Federation: Constitutional foundations of organization and activity. M., 1996. S. 96.
The analysis of the authors' studies on the issues of the judiciary and justice and the author's own judgments of this article give reason to believe that, in addition to the main form of the implementation of the judiciary - justice, the judiciary is exercised in the form of judicial control - in the pre-trial stages and in enforcement proceedings, judicial supervision - in the judicial stages of criminal proceedings and in the form of constitutional control.
Literature
- Abasheva F.A. Administration of justice in criminal cases by the courts of first instance. Izhevsk, 2012. S. 93.
- Avdonkin V.S. Law enforcement agencies in diagrams with comments. 5th ed. M., 2010. S. 17.
- Bozrov V.M. Modern problems of Russian justice in criminal cases in the activities of military courts. Yekaterinburg, 1999, p. 18.
- Burdina E.V. Judicial power in the Russian Federation. Saransk, 2006, p. 49.
- Voskobitova L.A. Essential characteristics of the judiciary. Stavropol, 2003, p. 67.
- Grinenko A.V. Law enforcement agencies in questions and answers. 2nd ed. M., 2009. S. 28.
- Darovskikh S.M. Judicial legal positions in criminal proceedings: theoretical foundations and procedural forms: author. dis. ... Dr. jurid. Sciences. M., 2011. S. 20.
- Lazareva V.A. Judicial protection in the criminal process of the Russian Federation: problems of theory and practice: author. dis. ... Dr. jurid. Sciences. M., 2000. S. 14.
- Law enforcement agencies: textbook / ed. V.P. Bozheva. M., 2012. S. 28.
- Law enforcement agencies of the Russian Federation: textbook / ed. V.M. Semenov and V.A. Boydukov. M., 2008. S. 24.
- Rzhevsky V.A., Chepurnova N.M. Judicial power in the Russian Federation: Constitutional foundations of organization and activity. M., 1996. S. 96.
- Modern problems of judicial law. Orenburg, 2012. S. 176 - 186.
- Foinitsky I.Ya. Course of criminal justice. SPb., 1996. T. 1. S. 145.
- Shamardin A.A., Guskova A.P. Law enforcement agencies: textbook. allowance. Orenburg, 2012. S. 25.
The judiciary and justice are related concepts, close in content, but not identical. The judiciary is called upon to administer justice. Justice is kind law enforcement on the consideration and resolution of criminal and civil cases by the courts in strict accordance with the law and the procedure established by it.
Signs of Justice:
Making final decisions on the most important issues relating to human rights and freedoms, the interests of society and the state (deeming guilty or not guilty, satisfying or refusing to satisfy claims);
Obligatory force of judgments. A court decision (verdict, decision) that has entered into legal force is binding on all government agencies, local governments, public organizations, officials, legal entities and individuals throughout the Russian Federation. Failure to comply with a court decision entails the use of certain measures of state coercion (up to imprisonment);
Justice is carried out only by the court (judge);
Justice is carried out in strict accordance with the procedure established by law for the consideration and resolution of criminal and civil cases. Law (Civil Procedure Code of the Russian Federation "SZ RF", 11/18/2002, N 46, Art. 4532, Criminal Procedure Code of the Russian Federation "SZ RF", 12/24/2001, N 52 (part I), Art. 4921., The Arbitration Procedure Code of the Russian Federation "SZ RF", 29.07.2002, N 30, article 3012.) determines all the most important issues of the procedure for the administration of justice: the legal composition of the court; persons participating in the court session, their rights and obligations; the stage of the trial, etc.
Principles of justice
Justice in the Russian Federation is based on principles that reflect the essence and tasks of a democratic rule of law and are enshrined in the Constitution of the Russian Federation (Chapter 7) and in the Federal Constitutional Law of December 31, 1996 “On the Judicial System of the Russian Federation”.
Characteristics of individual principles of justice:
1) The principle of legality is the adoption of only regulatory legal acts that comply with regulatory legal acts with greater legal force and in compliance with the procedure established for their adoption, as well as strict and conscientious implementation and observance of the Constitution of the Russian Federation, laws and other regulatory acts by all state bodies, legal and natural persons, etc.
2) The principle of observance of the rights and freedoms of the individual in the administration of justice. Legal guarantees for ensuring human rights include: the right to life and the exceptional nature of the death penalty; when administering justice, any actions that harm the life or health of a person or degrade his dignity (torture, torture, etc.) are prohibited; a special procedure for the production of actions that violate the inviolability privacy a person (seizure of mail, wiretapping, etc.); Kozlova E.I., Kutafin O.E. Constitutional Law of Russia: Textbook. Lawyer, M., 2008. P.248. the inviolability of the home and the special procedure for conducting a search; establishing the responsibility of the perpetrators for the violation of the rights and freedoms of man and citizen.
3) The principle of administration of justice only by the court. Justice in the Russian Federation is carried out only by courts established in accordance with the Constitution of the Russian Federation and the Federal Law “On the Judicial System of the Russian Federation”. The creation of other (including emergency) courts is not allowed in the Russian Federation.
4) The principle of the independence of judges. Judges, Juries and Arbitrators
assessors are independent and make decisions, guided only by the law and their sense of justice, without any influence on them by anyone (including the legislative, executive authorities, as well as higher courts). Guarantees for the independence of judges are ensured by: immunity of judges; the creation of bodies of the judiciary; material and social security of judges; the right of judges to retire; strict regulation of the procedure for the administration of justice, etc.
5) The principle of legality, competence and impartiality of the court. This principle is intended to promote the correct and fair resolution of civil and criminal cases. The competence of the court is ensured by establishing a strict procedure for vesting judges, jurors and arbitrators and powers, including determining the requirements that candidates for these positions must meet. Ensuring that the case is considered by the proper composition of the court.
6) Equality of all before the law and court. The equality of all before the law means the same application of the norms of the law to all persons: giving them the same rights, imposing the same duties and uniformly imposing responsibilities. Equality before the court implies equal vesting of all persons appearing before the court in the same status (plaintiff, defendant, defendant, witness). Kozlova E.I., Kutafin O.E. Constitutional Law of Russia: Textbook. Lawyer, M., 2008. P.275.
7) The principle of competitiveness and equality of the parties involves giving the parties equal rights and opportunities to defend their rights and legitimate interests in the administration of justice. According to B.N. Panteleeva, “the pinnacle of the development of legal proceedings is considered to be the “adversarial process”, which is characterized by at least the following features: there is a complete replacement of formally absolutely equal parties by specially trained professionals.” Panteleev B.N. The judiciary and the public: cooperation strategies. - M., 2008. C.9.
8) The right of citizens to judicial protection guarantees judicial protection of the rights and freedoms of the individual from the actions (inaction) of state authorities, local governments, officials, public organizations that can be appealed to the court.
9) Presumption of innocence. Each accused of committing a crime is considered innocent until his guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force. The accused is not obliged to prove his innocence, and the investigator, the court is not entitled to impose on him the burden of proof. Unproven guilt equals proven innocence.
10) The principle of open trial of cases. The trial of cases in all courts is open. This means giving citizens who are not participating in the consideration of the case the right to be present at the court session, which increases the responsibility of all its participants and, first of all, the court.
11) The principle of the language of legal proceedings. Legal proceedings in all courts are conducted in Russian, except for federal courts of general jurisdiction, where legal proceedings may be conducted in Russian. mother tongue(a free translator may also be provided).
12) Involvement of citizens in the administration of justice. Citizens are brought to justice as jurors, arbitrators, legal status which is enshrined in the Federal Law "On jurors of federal courts of general jurisdiction in the Russian Federation" dated 20.08.2004. "SZ RF", 23.08.2004, N 34, Art. 3528. and Federal Law "On Arbitration Assessors of Arbitration Courts of the Subjects of the Russian Federation" dated 30.05.2001
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The main function of the judiciary is the administration of justice.
Justice in the Russian Federation, as noted above, is carried out only by the court represented by judges and jurors and arbitrators involved in the administration of justice in the manner prescribed by law. No other bodies and persons have the right to assume the administration of justice (Part 1, Article 118 of the Constitution of the Russian Federation, Part 1, Article 1 of the Law on the Judicial System).
It follows from the above provisions that justice in the Russian Federation is entitled to be administered only by the Courts specified in the Constitution of the Russian Federation and the Law on the Judicial System, which excludes the possibility of their functions being assigned by any other state bodies or public associations.
Judges are persons endowed in the manner prescribed by law with powers and performing their duties on a professional basis. In the cases provided for by law, justice is administered with the participation of representatives of the population acting as jurors or arbitrators.
The Constitutional Court of the Russian Federation and arbitration courts consider only those categories of cases that are assigned by law to their jurisdiction, courts of general jurisdiction - all cases on the protection of the rights, freedoms and protected interests of individuals and legal entities, except for those that fall within the exclusive competence of these courts.
The Constitution of the Russian Federation recognizes the rights and freedoms of man and citizen as directly applicable and establishes that they are provided by justice (Article 18). Everyone has the right to apply to the court for the protection of their rights and legitimate interests, which is guaranteed by law (Article 46 of the Constitution of the Russian Federation).
The Essence of Justice is to consider and resolve legal cases in court sessions: civil, administrative, arbitration, criminal and other cases in order to protect the rights, freedoms and legitimate interests of the individual, society and the state, legal entities and other organizations.
Consideration and resolution of cases in courts is carried out in a certain form and in accordance with the rules established by laws. Parties with equal rights participate in court hearings to protect their interests (in civil proceedings - the plaintiff and the defendant are their representatives, in criminal proceedings - the side of the prosecution and defense).
Judicial sessions end with the issuance of decisions that are binding on the entire territory of the Russian Federation.
The administration of justice in the courts is carried out in a manner and in the manner prescribed by law. The order of consideration of cases in courts, as noted earlier, is called judiciary, which is established by independent legislative acts (CPC, APC, Code of Criminal Procedure of the Russian Federation). In accordance with the legislation of the Russian Federation, the consideration of cases in courts is carried out in the order of constitutional, civil, administrative, arbitration and criminal proceedings.
The tasks of legal proceedings are to ensure the correct and timely consideration of legal cases subordinate to the courts in order to protect violated or contested rights, freedoms and legitimate interests of a person, citizen, legal entities and their associations; the rights of legally protected interests of the Russian Federation, constituent entities of the Russian Federation, municipalities, other persons that are subjects of civil, administrative and other legal relations.
Justice, in addition, should contribute to strengthening the rule of law and order, protecting the interests of society and the state, and preventing offenses.
In this way, the main most important signs of justice are:
Administration of justice by specially created state bodies - courts represented by judges and jurors and arbitration assessors involved in the manner prescribed by law;
Administration of justice in ways clearly regulated by law: consideration of civil, criminal and other cases in court sessions within the framework of the procedure prescribed by law through constitutional, civil, administrative, arbitration and criminal proceedings;
Court decisions are binding on all officials, bodies, organizations and citizens in respect of whom they are issued or addressed.
In this way, justice - activities carried out by the court within its competence, to consider and resolve various categories cases with strict and strict observance of the requirements of the law and the procedure established by it, which ensures the legality, validity and fairness of the decisions made.
Concept and system of principles.Principles of justice - general guidelines, initial provisions that determine the most significant aspects of the organization and activities of the bodies administering justice, - courts.
The principles of justice determine the meaning and content of all legislative norms governing the organization of the activities of the courts, characterize the means and methods by which the tasks facing the courts are carried out.
If a contradiction is found in the norms of the laws that determine the judicial system and legal proceedings, one should be guided by general principles. These principles are based on the provisions of the Constitution of the Russian Federation and international legal acts that provide standards for the organization and operation of courts, as well as the rights of an individual involved in the judicial process. These acts include, first of all, the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1996, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950.
The Constitution of the Russian Federation, taking into account generally recognized principles and norms international law, fixed a row fundamental principles defining the most essential features of the organization of the activities of the courts and the procedure for the administration of justice:
Implementation of justice only by the court (art. 118);
Independence of judges and their subordination only to the law (art. 120);
Ensuring the rights of citizens to judicial protection (Article 46),
Equality of citizens before the law and the court (art. 19), etc.
The basic principles of justice enshrined in the Constitution of the Russian Federation are reflected and developed in the legislation on the judicial system, on the Constitutional Court of the Russian Federation, on arbitration courts, military courts, and on the status of judges. They are taken into account in the procedural legislation: CPC, Code of Criminal Procedure and APC of the Russian Federation
The principles of justice have the peculiarity that the provisions contained in them are binding not only for judges, but also for all other participants in the judicial process. Should be taken into account by the legislature, for which they serve as guidelines in their legislative activities.
The principles of justice, enshrined in legislation, form a certain system, which, as a rule, includes the following principles of justice:
legality of justice;
Execution of justice only by the court;
Independence of judges and their subordination only to the law;
Ensuring the rights of citizens to judicial protection;
Providing the suspect, the accused and the defendant with the right to defense;
Implementation of justice on the basis of equality of all before the law and the court;
Competitiveness and equality of the parties;
Open trial of cases in all courts;
Presumption of innocence;
Participation of citizens in the administration of justice;
National language of legal proceedings.
These principles can be classified. Some belong to principles of the judiciary(administration of justice only by the court, independence of judges, participation of citizens in justice, etc.), others - to the principles legal proceedings(competitiveness and equality of the parties, the presumption of innocence, etc.). However, given their close connection and interdependence inherent in the organization and activities of the court, they are all considered as principles of justice in general.
Briefly characterizing each principle of justice, their essence is as follows.
The principle of legality is one of the basic democratic principles of the rule of law and acts as a universal legal principle. Its essence lies in the exact and steady observance of the laws in force in the state and other regulatory legal acts adopted on their basis by all participants. public relations: state and non-state bodies, institutions and organizations, their employees and officials, citizens and other persons located on the territory of the Russian Federation.
The main provisions of this principle are enshrined in the Constitution of the Russian Federation: “State authorities, local governments, officials, citizens and their associations are required to comply with the Constitution of the Russian Federation and laws” (part 2 of article 15).
TO laws include:
1) federal laws, which are subdivided on the:
Federal constitutional laws, such as the Law on the Judicial System, the Law on Arbitration Courts, etc.;
Current federal laws, such as the Law on Magistrates, the Law on the Status of Judges, etc.,
2) laws of subjects of the Russian Federation: constitutions (charters) and other laws.
Federal laws are binding on the entire territory of the Russian Federation, and legislative acts issued by the authorities of the subjects of the Russian Federation are valid on the territory of a particular subject of the Russian Federation. Federal laws must comply with the Constitution of the Russian Federation. Legislative acts of the constituent entities of the Russian Federation - federal legislation. Other regulatory legal acts (decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, acts of other state authorities) are applied within the limits established by laws, and they should not contradict them.
The Constitution of the Russian Federation provides: “The court, having established, when considering a case, that an act of a state or other body does not comply with the law, makes a decision in accordance with the law” (part 2 of article 120).
Understanding the principle of legality implies the possibility of the courts applying the generally recognized principles and norms of international law and the provisions of international treaties, which, in accordance with Part 4 of Art. 15 of the Constitution of the Russian Federation are an integral part of its legal system. The international obligations of the Russian Federation take precedence over the norms of domestic legislation: if an international treaty of the Russian Federation establishes other rules than those provided for by Russian legislation, then the rules of the international treaty are applied. No one has the right to apply a federal law that is contrary to the international treaties of the Russian Federation.
Execution of justice only by the court. In accordance with the Constitution of the Russian Federation, justice in the Russian Federation is carried out only by the court (part 1 of article 118). Only the court can decide on the merits within its competence a civil, criminal, administrative, arbitration, as well as a case considered in the order of constitutional legal proceedings.
This principle is specified in Art. 4 of the Law on the Judicial System, which establishes that justice in the Russian Federation is carried out only by courts established in accordance with the Constitution of the Russian Federation and the above Law. Establishment of emergency courts and courts not provided for by this law is not allowed.
For the first time, the principle of administering justice only by the court was enshrined in legislation during the period of judicial and legal reform in the 60s. 20th century in connection with publicizing numerous facts of extrajudicial repressions in the 20-40s and early 50s. (application of measures of criminal and administrative influence) in fact to innocent citizens.
These measures were taken in most cases not by courts in compliance with procedural norms and guarantees, but by extrajudicial bodies (“special meetings”, “troikas”, “twos” and other quasi-judicial bodies), created specifically for the purpose of speeding up the massacre of “enemies of the people” and creating visibility of the trial. The actions and verdicts of these emergency bodies had nothing in common with the understanding of the legality, validity and fairness of the decisions being made, which is invested in these concepts today. In order not to repeat such tragic events in the life of our state and society, the principle of administering justice only by the court was proclaimed.
Courts empowered to administer justice, are listed in Art. 4 Laws on the Judicial System. These include federal courts:
Constitutional Court of the Russian Federation;
- the Supreme Court of the Russian Federation, the supreme courts of the republics, regional and regional courts, courts of federal cities, courts of the autonomous region and autonomous districts, district, military and specialized courts;
The Supreme Arbitration Court of the Russian Federation, arbitration courts of districts (arbitration courts of cassation), arbitration courts of appeal, arbitration courts of constituent entities of the Russian Federation and specialized arbitration courts;
The courts of the constituent entities of the Russian Federation are constitutional (statutory) courts and justices of the peace.
Only these courts named in the Law on the Judicial System have the right to administer justice. No other state or other bodies are authorized to exercise this species activities, because they do not have the appropriate powers.
Acts of justice (sentences and other judicial decisions) may be canceled or changed only by higher courts in compliance with the procedural rules and guarantees established by law, ensuring the observance of the rights, freedoms and legitimate interests of citizens, as well as the legitimate interests of society and the state. After the entry into force, the acts of the courts acquire a generally binding character and are subject to strict execution.
Implementation of justice on the basis of equality of all before the law and the courts. This principle is enshrined in many legislative acts. The Constitution of the Russian Federation provides: “All are equal before the law and the courts. The state guarantees equality of rights and freedoms of a person and a citizen, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances ... "(Part 1 , 2 verse 19). This principle is reflected in Art. 7 of the Law on the Judicial System.
Equality before the law and the court presupposes the existence of uniform norms applied in the process of legal proceedings, a single standard in the application by the court of legislative norms to all persons involved in the orbit of judicial activity, as well as in granting everyone equal rights, opportunities for their implementation, imposing the same duties, equal possibilities for liability.
The law, in particular, establishes that persons having the same procedural status of a plaintiff, defendant, suspect, accused, victim, witness, expert, etc., are vested with equal rights and obligations.
At the same time, the law provides for some exceptions to the rule of equality of all before the law and the court, establishing a special regime for limiting immunity and bringing to criminal and administrative responsibility. So, the Constitution of the Russian Federation in Art. 98 establishes the immunity of members of the Federation Council and deputies of the State Duma of the Russian Federation during the entire term of their powers. Legislation on the status of judges in the Russian Federation and the prosecutor's office establishes separate guarantees for the immunity of judges and prosecutors. A special procedure for bringing to criminal liability is also applied to a number of other officials.
The establishment of exemptions from the principle of equality before the law and the court is due to the importance of the functions performed by the named persons and the necessary provision of their independence in the exercise of these functions.
Independence of judges and their subordination only to the Constitution of the Russian Federation and federal law. The main criterion for assessing the state of justice in the country, the legality, validity and fairness of decisions taken by the court, is the legal status of the court in the system of power structures. The ratio of branches of power in this structure is revealed at the constitutional level - Art. 10 of the Constitution of the Russian Federation. This article contains not only a provision on the division of state power into legislative, executive and judicial, but recognizes the bodies of these branches of power as independent. Essence independence judicial power is set out in Art. 120 of the Constitution of the Russian Federation: judges are independent and subject only to the Constitution of the Russian Federation and federal law. The function of the court as a state body that resolves social conflicts with the help of law is the administration of justice.
The term "judicial power", which is included in the title of Ch. 7 of the Constitution of the Russian Federation, is not identical to the concept of "justice". Independent, independent power can be provided by its strength, power, ability to withstand the pressure of other branches of power. Only with a relatively equal balance of power is it possible to provide "checks and balances" on which the relationship of the three branches of power is based. Most often, the strength and independence of the judiciary are opposed by officials representing the executive branch, since they do not accept any form of control over their activities, including the courts. Obviously, the position of the court as a body of power is one of the important guarantees of the independence of judges in the administration of justice. This position of the judiciary, unlike other branches, is facilitated by the following system and functional features of this power:
Judicial power is not concentrated in one body, it is vested in a hierarchical system of courts - from the lowest to the highest;
Judges resolve cases on their own, guided solely by law and inner conviction. In the activities of other branches of power, other motives and preferences may also prevail (expediency, maximum benefit, profit);
Representatives of other directions of power are hierarchically and functionally dependent on each other;
Judicial activity is carried out according to the rules, principles of general legal significance, mandatory regardless of legal proceedings.
From the foregoing, it follows that the very construction of the judicial system and the function of justice are aimed at the independent activity of judges, their independence in decision-making. However, this guarantee is not enough to ensure the independence of the court. The history of the development of different legal systems indicates that, as a rule, the independence of judges is not only the result of a long struggle between the judiciary and other branches of government, but also the creation of a whole system of legal guarantees for the activities of the court at the domestic and international levels. The fundamental principles of the independence and impartiality of judges are reflected in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Part 1, Article 6) and in the Basic Principles Concerning the Independence of the Judiciary, adopted by the VII UN Congress in September 1985.
The law on the judiciary establishes: “The judiciary is independent and acts independently of the legislative and executive powers” (Article 1). This constitutional provision was first introduced into the Constitution of the Russian Federation of 1978 in 1992.
Guarantees for the independence of judges are contained in the Constitution of the Russian Federation and the Law on the Status of Judges. The constitutional guarantees include:
Independence of the judiciary;
Irremovability and immunity of judges;
Financing of courts only from the federal budget.
The Law on the Status of Judges supplements this system of guarantees of independence: “by the procedure for the administration of justice provided for by law; prohibition, under threat of responsibility, of anyone's interference in the administration of justice; the established procedure for the suspension and termination of the powers of a judge; the right to resign; immunity of the judge; the system of bodies of the judiciary; by providing the judge, at the expense of the state, with material and social security corresponding to his high status” (clause 1, article 9). Any interference in the activities of a judge in the administration of justice is recognized as unacceptable and is prosecuted by law (clause 1, article 10 of the Law on the Status of Judges).
Corresponding to this system of guarantees of independence are measures of responsibility for non-compliance by a judge with the requirements to follow guarantees, the implementation of which depends on his personal will. Thus, the powers of a judge are suspended by the decision of the bodies of the judiciary by the qualification board, in particular, in the event that a judge is held criminally liable or taken into custody.
Among the objective factors that serve as an obstacle to ensuring the independence of judges, as practice has shown in various historical periods, was the actual priority of the executive branch. The instrument of this priority was the "material force" - the financing of courts and the provision of other material and organizational guarantees to the courts and judges by the executive branch. Only an unconditional guarantee of the state in this area can serve as a reliable basis for strengthening the independence of judges. Even in cases where a judge acts independently of the influence of the executive branch, invisible pressure from outside creates psychological discomfort, infringes on the judge's moral feelings and can negatively affect his entire system of moral values. The constant feeling of dependence on higher bodies and officials in some way, the expectation of turnover after the first three or five years of being a judge can damage his independence and affect compliance with the requirement to make a decision based on the law in accordance with the inner convictions of the judge. The ongoing judicial reform testifies to the special impact on the moral state of judges of attempts to limit their immunity as a guarantee of independence. The executive power showed initiative in this and proposed to revive such forms of judges' liability as disciplinary and administrative, which are absent in the Law on the Status of Judges, and to simplify the procedure for bringing a judge to criminal liability. In 1992, the status of judges was acquired through the efforts of the judiciary, through democratic procedures - studying the opinions of not only judges, but also representatives of other legal professions and discussing the draft of the above-mentioned Law by judges of courts of all levels. Supporters of depriving judges of their immunity refer to the equality of all before the law and the court (Article 19 of the Constitution of the Russian Federation), which indicates an inadequate assessment of the special role of the court in the life of society and the state. This norm of the Constitution of the Russian Federation just emphasizes the special position of the law and the court. Socially significant official duties, the independent position of judges as a determining condition for their impartiality, without which the existence of justice is unthinkable, decision-making under conditions in which, as a rule, the interests in the dispute of only one party - a participant in the judicial procedure, are satisfied, and the other does not agree with the decision. All this together puts the judge in a special position, in which immunity is a priority over the “equality” that should be extended to other officials. Types of disciplinary liability provided for in Art. 12 of the Law on the Status of Judges are limited to such types as warning and early termination of the powers of a judge. However, the regime of responsibility for a disciplinary offense that remains during the year may lead to adverse consequences for the judge.
It should be said that the practice of bringing judges of the Soviet court to disciplinary responsibility, associated with the removal of the “punished” judge (the argument is the lack of trust in the “tried judge”), depriving him of incentives, constantly reminding him of “incomplete official compliance”, humiliated the dignity of the judge. At the same time, if a judge does not correspond to his position, he must be deprived of his powers, which was provided for by the previous version of the Law on the Status of Judges. It should also be taken into account that a number of chairmen of the courts agree with this innovation, since they have the initiative to start disciplinary proceedings, to perform the function of managing the behavior of a judge, which can become a tool for manipulating his independence.
Administrative responsibility testifies to the denial of immunity to the judge. IN modern conditions administrative responsibility can become an instrument of reprisals, for example, representatives of the police with an objectionable judge or a manifestation of a negative attitude towards the court, which often took place in practice. The Law on the Status of Judges provides that a decision on the issue of bringing a judge to administrative responsibility by a judicial panel of a higher court consisting of three judges is given 10 days after the receipt of the proposal of the Prosecutor General of the Russian Federation (clause 4, article 16).
However, a judge detained on suspicion of committing a crime or on any other grounds, or forcibly brought to any state body, if the identity of this judge could not be known at the time of detention, after establishing his identity, is subject to immediate release. A personal search of a judge is not allowed, except in cases provided for by federal law in order to ensure the safety of other people (clause 5, article 16 of the Law). In addition, the detention of a judge is possible only in an exceptional case - in the case of his detention at the scene of the crime. In all other cases, after establishing his identity, he must be immediately released (Article 449 of the Code of Criminal Procedure of the Russian Federation). Therefore, a judge detained on suspicion of committing a crime or on any other grounds, or forcibly brought to any state body, if the identity of this judge could not be known at the time of detention, after establishing his identity, is subject to immediate release. Failure to comply with this procedure indicates a humiliation of the dignity of the judge and a decrease in the authority of the court.
The expansion of the responsibility of judges by significantly limiting their immunity can have a negative impact on justice through the moral state of the judge. Fear of the insecurity of oneself and loved ones, the expectation of adverse consequences of making a decision in a particular case, can lead to a state in which the judge prefers to obey the law to seek compromises and even concession to the side from which adverse consequences can be expected. A system of such concessions can lead to a reassessment of moral values and even the rejection of some of them, such as duty, honor, and observance of other moral principles. The materials of the qualification boards show that in a number of cases the unseemly act of a judge is a syndrome of fear of the consequences for the decision taken. In addition, the behavior of a judge is inadequate, the adoption of decisions that call into question his fairness reduces the level of trust of citizens and organizations in the court and a particular judge, and the doubt that the judge is independent and inviolable excludes confidence in the justice of the decision, undermines the authority of justice in a broad sense. public opinion.
The complexity of solving the problem of the independence of judges lies in the fact that, along with the above objective factors, a significant role in ensuring that belongs to subjective factors related to the personality of the judge. Indeed, without independence, the main condition of justice cannot be achieved - an impartial, objective examination by the court of the circumstances of the case. In Russian normative legal acts, independence is combined with independence.
Determining the relationship between the principle of independence and impartiality is important for assessing the subjective state of a judge in the administration of justice. The ideal model seems to be the relationship between the principles under consideration, if all the guarantees of independence, which we indicated above, are provided. In this case, there are good grounds for confidence in the impartiality of the judge. If it is called into question, then this is a gap in his ethical education, which can lead to a violation of moral standards, and sometimes the commission of a crime (the phenomenon of corruption, abuse of official position). Other options for the relationship between the independence of a judge and his impartiality are also possible. When the independent position of a judge is insufficiently secured, for example, in the case of covert or direct dictation by the executive branch, on which the well-being of a judge or court depends, the behavior of a judge can manifest itself in two opposite forms - a refusal to act impartially in the administration of justice in a particular case, or full observance of ethical principles and norms, fidelity to judicial duty despite the risk of losing any advantages and benefits. Of interest is the last of these options of behavior, when the judge adequately fulfills his professional duty and remains impartial, despite possible undesirable consequences for himself. Such a judge, in the presence of the slightest reason to doubt his objectivity, disinterest in the outcome of the case, declares self-recusal and explains to the participants in the process the motives of his behavior. By means of self-withdrawal, if it is sufficiently justified, the judge demonstrates such moral qualities as honesty, the ability to assess the situation and prevent the violation of individual rights in legal proceedings.
The indication in the law of “other” circumstances that give grounds to believe that the judge is personally, directly or indirectly interested in this case, implies the inclusion of a mechanism for the moral assessment of the impartiality of the judge by the participants in the process. In practice, there are cases when a judge declares self-withdrawal not as a result of such an assessment of the situation, but as a manifestation of personal interest, for example, in order to get rid of participation in the proceedings of a complex or biased case. These cases give grounds to believe that the judge is morally unstable, protecting himself from adverse consequences for himself. In a number of cases, the law itself provides grounds for distrust of the judge's moral qualities. This applies, in particular, to the prohibition to participate in the consideration of the case to the judge who checked at the pre-trial stages of the process the legality and validity of the arrest or extension of the term in custody (part 1 of article 63 of the Code of Criminal Procedure of the Russian Federation). In this case, repeated resolution of complaints by the same judge is allowed. Represents that the solution of a private issue that does not determine the conclusion of guilt and punishment should not serve as a basis for expressing distrust of the judge and presuming his partiality. A logical conclusion follows: if the judge positively decides on the issue of arrest or extension of the period of detention, he is considered biased against the accused; if a preventive measure not related to arrest is chosen, the judge is not trusted by the state represented by the accuser. This provision of the law casts doubt on the moral potential of a judge, although the institution of challenge seems to be a sufficient legal basis for resolving the issue of the impartiality of a judge. At the same time, one should proceed from the fact that the orientation of the judicial reform towards changing the conditions for the existence of the court, the constitutional consolidation of guarantees for the independence of judges, and the high judicial status are aimed at changing not only the characteristics of the “formal organization of the Code of Judicial Ethics” of the court, but also the self-consciousness of the judges themselves. This, in particular, is subject to the task of adopting the Code of Judicial Ethics, approved by the VIII All-Russian Congress of Judges in May 2012, the rules of which define the mandatory boundaries of such self-awareness and are aimed at freeing a judge from predilections that could affect the quality of justice administered by him, and from the influence of friends and relatives, participants in the process, public opinion.
An independent judge is independent of outside influence. Impartiality, as a purely ethical category, gives moral meaning to independence, imposing a moral duty on the judge - to follow this independence, and not wait until it is ensured.
The absence of favorable conditions for the independence of a judge and the court as a whole cannot serve as an argument that reduces the responsibility for the quality of justice, precisely because independence is not limited to legal prescriptions, but includes moral requirements to follow professional duty, regardless of any influences and influences. The peculiarity of moral requirements lies in their obligatory nature, regardless of the changes to which the law is subjected. Thus, the system of adversarial justice significantly changes the nature of the judge's activity, eliminates his initiative in ensuring the comprehensiveness and completeness of judicial research. The competition procedure in the conditions of publicity, the mandatory ensuring of equality of the parties, a reasoned decision - all this is aimed at the impartial leadership of the judge in the process of examining evidence.
The most important thing in relation to a judge is public trust, confidence that justice is carried out in accordance with the law. In order to maintain such confidence among citizens, a judge must comply with the moral norms that prevail in society, which makes justice accessible and understandable to members of society.
The principle of competition and equality of the parties. Significant influence on modern law-making and law enforcement activities in the field of criminal, civil, arbitration and administrative proceedings was made by the inclusion in the Constitution of the Russian Federation of the principle of competitiveness and equality of the parties (part 3 of article 123). This principle has been known to Russian legislation for more than 140 years, but the fate of its application directly depended on the political regime and the legal system generated by it at each historical stage of the development of the state. Under socialism prevailed negative attitude officials of law enforcement and other state bodies and this institution of the “bourgeois” legal system, which can be explained by the fact that adversarialism as a form of justice is characterized by a certain disunity and one-sidedness of the activities of the participants in the process, which was not consistent with the implementation of the state task of combating crime by the joint efforts of these participants.
Adversarial justice is characterized by the division of the activities of the parties and the court into three independent functions - prosecution (criminal prosecution), defense and resolution of the case, in contrast to the search form that has been in force until recently, which was distinguished by mixing these functions and concentrating them with one participant (at the preliminary investigation with the investigator , in the judicial stages of the process - with the judge). A feature of the correlation of these functions is that, firstly, the parties are endowed with procedural equality and, secondly, more than one function cannot be assigned to the same person - a participant in legal proceedings.
The well-known Russian jurist I. Ya. Foinitsky expounded the historical conditionality and essence of competition in an accessible form: special bodies for each procedural function. Then, without ceasing to be public, it becomes competitive. . At the same time, an uninterested and impartial intermediary - the court - should be placed between the parties. According to I. Ya. Foinitsky, attempts to eliminate the parties as independently acting participants and entrusting the court with the functions of the parties leads to "a complete distortion of judicial activity."
The adversarial construction of legal proceedings is also a consequence of the form of state organization of society based on the separation of powers. The independence of the judiciary serves as a guarantee of resolving social conflicts with the help of law objectively, regardless of the position on a particular case of the executive authorities, including the prosecution and preliminary investigation bodies related to them. Competitiveness protects the court, subject to independent and independent justice, from the influence (pressure) of the executive authorities, including the prosecutor's office.
Litigation in civil, arbitration and administrative cases is traditionally carried out on the basis of competition. In criminal proceedings, its implementation was associated with the difficulties of transition from the search form to the adversarial one. This transition began long before the entry into force of the Code of Criminal Procedure of the Russian Federation - after the adoption of the Constitution of the Russian Federation in 1993 and enshrined in Part 3 of Art. 123 of the principle under consideration. A significant contribution to the legal interpretation of the principle of competitiveness was made by the Constitutional Court of the Russian Federation, which, in its decisions and rulings, to one degree or another referred to the essence of competitiveness. But a special role in the implementation of this principle belongs to the regulation of proceedings in a jury trial, based on an adversarial form of justice. The practice of the court for 10 years before the adoption of the Code of Criminal Procedure of the Russian Federation created the basis for taking into account the negative and positive aspects of the operation of the principle and the further development of procedures for its application in traditional justice.
In criminal proceedings, the purpose of the activities of the criminal prosecution bodies is a comprehensive and complete study of the circumstances of the case, establishing the event of the crime and the guilt of the accused. But in the conditions of competitiveness, this goal is determined, on the one hand, by the obligation to comply with the provisions of Art. 6 of the Code of Criminal Procedure of the Russian Federation on the appointment of criminal proceedings - the protection of the rights and legitimate interests of the participants in the process, on the other hand, the need to abandon the criminal prosecution of the innocent and release them from punishment. This is equally addressed to the court and the representative of the executive power in the person of the prosecutor.
Not only the essence of the competitiveness principle needs to be interpreted, but also the provision contained in it. on equality of arms. In a number of publications, it is explained by the close connection of competitiveness with the principle of equality of all before the law and the court (Part 1, Article 19 of the Constitution of the Russian Federation). The essence of this principle is that the state guarantees the equality of human and civil rights and freedoms and prohibits any form of restriction of the rights of citizens on the grounds of social, racial, national, linguistic or religious affiliation. Violation of equality on these grounds, according to some authors, "leads to the destruction or violation of the equality of the parties in the administration of justice." should be distinguished concept of equality, which is determined by the provisions of Art. 19 of the Constitution of the Russian Federation and implies the inadmissibility of discrimination against anyone on social, personal, religious and other grounds, from the concept equality included in the content of the principle of competitiveness. The latter means granting each of the parties to the conflict a set of rights that ensure the possibility of their procedural equality before the court in cases of filing petitions, providing evidence, participating in judicial and other actions. At the same time, it should be borne in mind that in criminal proceedings, as well as in other legal branches, adversarialism must be observed throughout the entire proceedings - and therefore procedural equality applies to all its stages. The legislator, unfortunately, did not in all cases comply with these provisions of the Constitution of the Russian Federation when developing the Code of Criminal Procedure of the Russian Federation. This, to a certain extent, explains the need for constant amendments and additions to this procedural normative legal act. Yes, still not fully the procedure for the participation of a defense counsel in the process of collecting evidence in a criminal case and presenting it to the court is regulated. According to Part 1 of Art. 88 of the Code of Criminal Procedure of the Russian Federation, the collected evidence can become such only after they have been assessed by a judge, prosecutor, investigator, interrogator, jurors in terms of the relevance, admissibility, reliability of this evidence, and all the evidence collected in the aggregate - sufficiency for resolving a criminal case. Justice is possible when a party applies (claims) to the court (in foreign legal systems this also applies to criminal proceedings) and there is a system of rules and procedures for resolving this claim. At the same time, the competitiveness of the process is based on the opposition of the interests of the parties. However, it involves not only the confrontation of their arguments and arguments - the main idea of competition - in the joint activity of the participants, performing the functions corresponding to their powers on the basis of the rules of checks and balances, characteristic of the construction of separation of powers.
What does it consist of the essence of each function, implemented, in particular, in adversarial criminal proceedings?
Blame function(criminal prosecution) is the source and driving force criminal procedure activity. It originates when a criminal case is initiated and ends when the verdict enters into force, and under certain conditions it can terminate at any stage of the procedure. The function includes, along with the initiation of proceedings, the formulation of the charge, through the collection and consolidation of evidence, the preparation of the indictment (conclusion), the maintenance of the charge in court. It does not exclude the adoption of decisions that protect the suspect, the accused from unfounded accusations. Such a two-pronged design of the activities of the prosecution authorities is due to its public nature, the powers that the state gives to the prosecutor (prosecutor), acting on his behalf and in the interests of the individual, society and the state. He is responsible for protecting the rights and legitimate interests of not only the victim and other participants on the part of the prosecution - the legal representative, civil plaintiff, private prosecutor, but also in accordance with Part 2 of Art. 6 Code of Criminal Procedure of the Russian Federation criminal prosecution and fair punishment. The latter meet the purpose of criminal proceedings to the same extent as the refusal to prosecute the innocent, the release from punishment, the rehabilitation of everyone who has been unreasonably subjected to criminal prosecution.
Resisting the accusation protection function is expressed in the actions of the suspect, the accused and their lawyers, aimed at using all the methods and means of protection specified in the law in order to identify circumstances that refute the accusation or mitigate the responsibility of the accused or suspect. This function is performed by the accused (suspect), his defense counsel, the legal representative of a minor suspect or accused, as well as a civil defender in the framework of protection from real or alleged harm. The investigator and the prosecutor do not participate in the performance of this function, although they are obliged to investigate the circumstances favorable to the accused. Defense against prosecution acquired the technology of its implementation in connection with the enshrining in the Constitution of the Russian Federation of the principle of the presumption of innocence (Article 49):
Everyone accused of committing a crime is presumed innocent until his guilt is confirmed by a court verdict that has entered into legal force;
The accused is not required to prove his innocence;
Unremovable doubts about his guilt are interpreted in favor of the accused.
These constitutional provisions indicate that the function of the prosecution does not prejudice the conclusions about the guilt of the person brought to criminal responsibility, and that the function of defense in an adversarial environment does not exclude the active refutation of the arguments of the prosecution.
The right to have a defense counsel is vested in: a detainee; taken into custody; accused of committing a crime from the moment of detention, detention or indictment (part 2 of article 48 of the Constitution of the Russian Federation). The performance of the protection function seems to be difficult during the preliminary investigation, since the legal and real opportunities opposition of the defense to the prosecution at this stage of the criminal procedure is limited. This primarily applies to the presentation by the defense of evidence, participation in the conduct of investigative actions, familiarization with the materials received.
The International Covenant on Civil and Political Rights, to which Russia has joined, among the mandatory minimum requirements for the judicial procedure in criminal cases, provides for the establishment in the national legislation of the countries that have signed this pact: legal guarantees of the rights of the accused to defense on the basis of full equality:
Be informed of the nature and basis of the charge;
Have sufficient time and opportunity to defend yourself and communicate with your chosen counsel;
To be tried without undue delay;
To be tried in his presence and to defend himself in person or through a defense counsel of his own choosing;
If he does not have counsel, to be informed of this right and to have counsel appointed in any case where the interests of justice so require, free of charge to him in any such case when he does not have sufficient means to pay for such counsel (art. 14).
The named International Covenant in the specified article contains a number of provisions specific to the function of protection:
The right to interrogate witnesses testifying against him;
The right to call and interrogate their witnesses under the same conditions;
Not be compelled to testify against oneself and plead guilty. Failure to comply with at least one of these provisions is considered by international means as a violation of the right to fair justice.
procedural function resolution of a criminal case belongs to the court. Only within the framework of this function is justice carried out and its tasks are realized. The content of this function, carried out taking into account the norms provided for by Part 3 of Art. 123 of the Constitution of the Russian Federation, art. 15 of the Criminal Procedure Code of the Russian Federation and similar provisions of international law, excludes the obligation of the court to ensure the comprehensiveness and completeness of the investigation of the circumstances of the case, to identify both incriminating and exculpatory circumstances, as well as mitigating and aggravating circumstances. The Code of Criminal Procedure of the Russian Federation, unlike the Code of Criminal Procedure of the RSFSR, does not contain the function of prosecution, which was previously performed by the Soviet court. However, international acts on human rights, which Russia has joined, first of all emphasize the independent position of the court both from other branches of government and from the parties to criminal proceedings.
European Convention in Art. 6 reveals the essence of the function of resolving the case by the court. This article enshrines the right of every person, in the determination of his civil rights and obligations or in the consideration of any criminal charge against him, to a fair public hearing within a reasonable time by an independent and impartial court established by law (para. 1). The constitutional foundations of such independence are provided by the separation of the executive and judicial powers (Article 10 of the Constitution of the Russian Federation).
Based on the meaning of Art. 6 of the Convention, the court has full jurisdiction, it is independent not only from the executive branch, but also from the parties to the criminal process. Therefore, if any of the judges is professionally or personally subordinate to one of the parties to the trial or is in one form or another associated with it, this undermines the credibility of the court, its independence and impartiality. The concept of fair trial is addressed to the court, because the parties perform a one-sided function.
In this way, independence- this is, first of all, an equal opportunity for the parties to present their materials and not have significant advantages in the implementation of the procedural function presented by the party. In the context of paragraph 1 of Art. 6 of the Convention is "equality of baseline conditions - procedural, but not actual equality between the prosecutor and the accused."
From a similar understanding of the status of a judge comes the International Covenant on Civil and Political Rights, paragraph 1 of Art. 14 of which, as noted above, states that everyone who has been charged has the right to a fair hearing by a competent, independent tribunal established and operating on the basis of the law. The court does not act on the side of the prosecution or the defense, but creates the necessary conditions for the parties to fulfill their procedural obligations and exercise the rights granted to them. At the same time, he is not an arbitrator between the disputing parties, as many jurists write about it. The forthcoming decision on the case is inevitably connected with the need to delve into the essence of the evidence examined by the parties, by raising questions, clarifying the testimony.
The judge has no right to prevent the parties from exercising their powers, to give preference to one of them. But he should not be ahead of the parties in posing questions to persons summoned on their initiative, be active in the announcement of written materials. The court should do this only with the agreement of the parties. He also acts when he summons new persons to the court session or conducts new judicial actions.
Providing everyone with judicial protection of rights and freedoms. The rights and freedoms of man and citizen in the Russian Federation are directly applicable. They determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are provided with justice (Article 18 of the Constitution of the Russian Federation).
The right to judicial protection is enshrined in Art. 46 of the Constitution of the Russian Federation, which is formulated in accordance with the norms of international law, including Art. 8 of the Universal Declaration of Human Rights and Art. 6 of the European Convention and the protection of human rights and fundamental freedoms.
The essence of judicial protection is that any actions (inaction) and decisions of state bodies, officials, public associations, citizens and other persons that can infringe on someone's rights and legitimate interests and cause damage to them can be challenged and appealed to the court in the manner established by law.
Depending on the nature of the violated right, protection can be carried out in the order of Constitutional, civil, arbitration, administrative and criminal proceedings.
All participants in legal relations, without exception, - citizens, foreign citizens, stateless persons, as well as legal entities, have the right to apply to the court. Physically incapacitated citizens (minors, patients) can defend their rights in court through a representative - a lawyer, parents or other legal representative.
Citizens who applied to the court must prove the fact of violation of their rights and freedoms. The legality of the contested actions (or inaction) rests with the bodies and persons whose actions are being appealed.
If the complaint or statement of the persons who applied to the court is established as justified, the court recognizes the contested actions (or inaction) as illegal, cancels the measures of responsibility applied to the citizen or otherwise restores his violated rights. When the court recognizes the contested actions as legal, not violating the rights and freedoms of the persons who applied to the court, it refuses to satisfy the complaint or application. The decision of the court can be challenged by filing a complaint with a higher court.
Everyone has the right to apply for the protection of rights and freedoms to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted (part 3 of article 46 of the Constitution of the Russian Federation). After Russia's accession to the Council of Europe (in 1998), citizens of the Russian Federation began to apply to the European Court of Human Rights (ECHR). Thus, in 2011, 64,500 complaints were filed for consideration by citizens of countries belonging to European Union, including 12,485 of them came from Russia. Most often, citizens of the Russian Federation applied to the European Court on issues of access to justice, its publicity, openness and openness, and the resolution of cases within a reasonable time.
Ensuring the right to receive qualified legal assistance. One of the most important constitutional principles of the implementation of justice is the principle of ensuring everyone the right to receive qualified legal assistance, provided for in Art. 48 of the Constitution of the Russian Federation.
Everyone is guaranteed the right to receive qualified legal assistance. In cases stipulated by law, legal assistance is provided free of charge (Part 1);
Every detainee, taken into custody, accused of committing a crime has the right to use the assistance of a lawyer (defender) from the moment, respectively, of detention, detention or charge (Part 2).
This principle is specified in Art. 16 Code of Criminal Procedure of the Russian Federation. In legal literature, it is often referred to as the principle of ensuring the accused's right to defense.
Right to protection- a set of procedural rights granted to the suspect and the accused, which provide them with the opportunity to refute the accusation or suspicion of committing a crime, defend their innocence, and seek mitigation of responsibility.
A suspect is a person who is detained on suspicion of committing a crime, or against whom a criminal case has been initiated on the grounds provided for in the Code of Criminal Procedure of the Russian Federation.
Accused - a person in respect of whom, in accordance with the established procedure, a decision was made to bring him as an accused. The accused, in respect of whom the case is accepted for proceedings by the court, is called the defendant. Subsequently, depending on the nature of the sentence pronounced by the court, the defendant is called convicted or acquitted.
The suspect and the accused may exercise their right to defense or refuse to exercise it, defend themselves independently or with the help of a defense counsel and (or) legal representative.
The Code of Criminal Procedure of the Russian Federation obliges persons responsible for conducting a case to explain the procedural rights to the participants in the process and ensure the possibility of their implementation. One of the most important guarantees of ensuring the right to defense of the suspected, the accused is the admission of a defense counsel from the early stages of the preliminary investigation: the defense counsel of the accused - from the moment of detention, the application of a measure of restraint in the form of detention, the initiation of a criminal case, the announcement of a decision on the appointment of a forensic psychological examination and the implementation other measures that waste his rights (Article 49 of the Code of Criminal Procedure of the Russian Federation).
Representatives of trade unions and other public organizations in cases of members of these organizations, as well as other persons in cases provided for by law (parents, trustees) may be admitted as defenders in criminal proceedings, in addition to a lawyer.
If, in the cases specified by law, a defense counsel is not invited by the accused or suspect, their legal representatives or other persons, the investigator, the person conducting the inquiry, the prosecutor, the court are obliged to ensure the participation of the defense counsel.
The Constitution of the Russian Federation provides that in cases provided for by law, legal assistance is provided free of charge (part 2 of article 48). If a lawyer participates in the production of a preliminary investigation or court proceedings to appoint an inquirer, investigator, prosecutor or court, the costs of remuneration for his labor are compensated from the federal budget.
Open trial of cases in all courts, publicity of legal proceedings. The Constitution of the Russian Federation establishes: “The trial of cases in all courts is open. Hearing a case in a closed session is allowed in cases stipulated by federal law” (Part 1, Article 123).
The principle of publicity trial is also enshrined in the procedural legislation of the Russian Federation - Art. 10 Code of Civil Procedure of the Russian Federation, Art. 11 APC RF, art. 24.3 of the Code of Administrative Offenses of the Russian Federation and Art. 241 Code of Criminal Procedure of the Russian Federation. This complies with the requirements of the International Covenant on Civil and Political Rights (clause 1, article 14) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (clause 6).
The essence of this principle is that the court considers civil, arbitration, administrative, criminal and other cases in open court. Any citizen who has reached the age of 16 has the right to be present at the trial of any civil, criminal and other case. The exception is cases when the court, in accordance with the law, decides to consider the case in a closed court session.
The significance of this principle is to establish the "transparency" of justice, the possibility of a kind of control by citizens, the public, the media over justice, which is an additional guarantee of the objectivity, legality and fairness of decisions taken by the court, the precise implementation of the procedure for the administration of justice provided for by law.
The obligatory open trial of cases extends to all judicial instances - first, second (appeal), cassation and supervisory.
The legislator, implementing the constitutional principle of publicity of legal proceedings, established the cases when the consideration of cases can be held in closed court sessions:
If it is necessary to observe other interests protected by law - the interests of observing state or other secrets protected by law (private life, commercial secrets, the fact of adoption (adoption) of a child;
When this is required by the interests of ensuring the safety of participants in judicial proceedings;
In other cases provided for by law (part 2 of article 11 of the APC of the Russian Federation; part 2 of article 10 of the Code of Civil Procedure of the Russian Federation; part 1 of article 24.3 of the Code of Administrative Offenses of the Russian Federation; part 2 of article 241 of the Code of Criminal Procedure of the Russian Federation).
Depending on the circumstances of the case, on these grounds, either the entire court session or part of it may be closed. The court shall issue a reasoned ruling or ruling on the trial of the case in a closed court session in respect of all or part of the trial.
However, in all cases, cases in closed court sessions are considered in compliance with all the rules of legal proceedings, and court decisions and sentences (in any case, introductory and operative parts) are announced publicly in an open court session.
Presumption of innocence. Presumption An assumption that is assumed to be true until proven otherwise. It follows from this that every man is a good man, until proven otherwise.
The principle of the presumption of innocence is reflected in a number of international legal acts. So, in Art. Article 14 of the International Covenant on Civil and Political Rights provides that "everyone accused of a criminal offense has the right to be presumed innocent until proven guilty according to law." A similar wording is found in Art. 11 of the Universal Declaration of Human Rights and Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The essence of the principle of innocence in Russian legal proceedings is formulated in Part 1 of Art. 49 of the Constitution of the Russian Federation: “Everyone accused of committing a crime is considered innocent until his guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force” and in Art. 14 Code of Criminal Procedure of the Russian Federation.
The main provisions of the criminal procedure legislation on the presumption of innocence come down to the following:
No one can be held criminally liable except on the grounds and in the manner prescribed by law;
The guilt of a person in committing a crime must be proved by the appropriate subjects of criminal procedure activity (inquirer, investigator, prosecutor, private prosecutor, victim, etc.) by collecting, evaluating and verifying the evidence provided for by the criminal procedure law in compliance with the requirements of all criminal procedure rules ;
Evidence obtained in violation of the requirements of the law is inadmissible and cannot be used as the basis for an accusation;
The accused is not required to prove his innocence, he can testify or refuse to do so;
It is forbidden to obtain testimony of the accused by violence, threats and other illegal measures;
The recognition by the accused of his guilt can be taken as the basis of the accusation only if the recognition is confirmed by the totality of other evidence collected in the case;
All irremovable doubts about the guilt of a person shall be interpreted in favor of the accused.
The effect of the presumption of innocence in relation to a citizen brought to criminal responsibility shall be terminated from the moment of establishing his guilt in the commission of a crime by a court verdict that has entered into legal force. The guilt of a person must be established by evidence examined in a court session; a court verdict cannot be based on assumptions.
By virtue of the presumption of innocence, if the guilt of a person in committing a crime is not established by the evidence examined in court, the person will be considered innocent. In this case, the court issues an acquittal.
Ensuring the use of one's native language in court. According to the Constitution of the Russian Federation, “Everyone has the right to use their native language, to freely choose the language of communication ...” (Part 2, Article 26).
Taking into account these constitutional provisions, the issue of the language of legal proceedings and office work in the courts is being resolved. Law of the Russian Federation of October 25, 1991 No. 1807-I “On the Languages of the Peoples of the Russian Federation” established that legal proceedings and office work in courts are conducted in the state language of the Russian Federation or the state language of the republic in whose territory the court is located (Article 18). This norm is specified in the Law on the Judicial System, as well as the Federal Law of June 1, 2005 No. 53-FZ “On the State Language of the Russian Federation”.
The law on the judicial system provides that legal proceedings and office work in the Constitutional, Supreme, Supreme Arbitration Courts of the Russian Federation, other arbitration courts, military courts are carried out in Russian - the state language of the Russian Federation. Litigation and office work in other federal courts of general jurisdiction may also be conducted in the state language of the republic in whose territory the court is located. This provision also applies to the courts of the constituent entities of the Russian Federation (magistrates, constitutional and statutory courts). Persons who do not speak the language of legal proceedings are guaranteed the right to speak and give explanations in their native language or in any other freely chosen language of communication, as well as to use the services of an interpreter (Article 10).
The aforementioned Law on the State Language states that official language The Russian Federation is subject to mandatory use in constitutional, civil, criminal, administrative proceedings, proceedings in arbitration courts, office work in federal courts, proceedings and office work with justices of the peace and in other courts of the constituent entities of the Russian Federation (clause 4, part 1, article 3).
The importance of the constitutional principle of the state and national language of legal proceedings lies in the fact that without the declared right of everyone to freely use their native language, it is impossible to implement many other basic principles of justice, which were discussed above. Violation of the constitutional principles of justice entails, as a rule, the annulment of court decisions.
the legislation of the Russian Federation;
Coordinating the activities of law enforcement agencies to combat crime;
Initiation of cases on administrative offenses and conducting an administrative investigation in accordance with the powers established by the Code of Administrative Offenses of the Russian Federation on administrative offenses and other federal laws;
Participation in accordance with the procedural legislation of the Russian Federation in the consideration of cases by courts, arbitration courts, appeal against decisions, sentences, rulings and decisions of courts that contradict the law;
Participation in law-making activities;
The international cooperation(clauses 2-5, article 1 of the Law on the Prosecutor's Office).
In essence, all of the above functions that are vested in the prosecution authorities are the main areas of activity of the prosecution authorities and the achievement of their goals.
Depending on a particular goal that needs to be achieved in their activities, the prosecution authorities decide various and numerous tasks. Conventionally, all the tasks of the prosecutor's office are divided into three kinds: general, special and private. General the tasks of the prosecutor's office are reduced to ensuring law and order in Russia. Special- are allowed in the implementation of the main activities of the prosecutor's office. Private- in the course of using the means of prosecutorial response.
All the main activities of the prosecutor's office are implemented by it, based on the following principles: unity and centralization, independence from federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments, public associations; publicity and legitimacy.
Principles of unity and centralization bodies of the prosecutor's office are that these bodies represent a single system headed by the Prosecutor General of the Russian Federation, they fulfill common goals and tasks facing the prosecutor's offices of all levels. In accordance with these principles, the activities of the prosecution authorities are determined by the commonality of forms and methods, methods of exercising supervision over the implementation of laws, the unity of the means of prosecutorial response to identified violations of the law, as well as taking measures to prevent violations of the law. In addition, the Prosecutor's Office of the Russian Federation is a single federal centralized system of bodies and institutions. It means:
Established procedure for appointing prosecutors;
Financing of all prosecution bodies at the expense of the federal budget;
Subordination of lower prosecutors to higher ones and to the Prosecutor General of the Russian Federation;
Prosecutors cannot be members of elected and other bodies formed by state authorities and local self-government bodies.
The principle of independence. The Prosecutor's Office is a body independent of anyone and, above all, it exercises powers independently of federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments, public associations and in strict accordance with the laws in force on the territory of the Russian Federation (para. 1 paragraph 2 article 4 of the Law on the Prosecutor's Office);
The independence of prosecutorial oversight presupposes the exercise of supervision over the correct and uniform application of the laws, in spite of any local differences and in spite of any local influences. Influence in any form of federal government bodies, government bodies of the constituent entities of the Russian Federation, local governments, public associations, the media, their representatives, as well as officials on prosecutors in order to influence their decisions or obstruct in any or the form of their activity entails liability established by law (clause 1, article 5 of the Law on the Prosecutor's Office). For example, interference in the activities of the prosecutor in the exercise of his duties in the field of criminal proceedings entails criminal liability.
The prosecutor, including another prosecutor's employee, is not obliged to give any explanations on the merits of the cases and materials being processed by them, and also to provide them to anyone for review, except as otherwise provided by law. At the same time, no one has the right, without the permission of the prosecutor, to disclose the materials of inspections conducted by the prosecution authorities until they are completed.
Publicity in the exercise of prosecutorial supervision means that the prosecutor's office performs its functions publicly to the extent that this does not contradict the requirements of the legislation of the Russian Federation on the protection of the rights and freedoms of citizens, on state and other secrets specially protected by law. The prosecution authorities inform the federal government authorities, government authorities of the constituent entities of the Russian Federation, local governments, as well as the population about the state of legality (paragraphs 2, 3, paragraph 2, article 4 of the Law on the Prosecutor's Office).
The principle of legality-universal legal status, which consists in the exact and steady observance of the requirements by all participants in public relations. However, this principle has its own specifics in relation to the prosecutor's office: all activities of these bodies must be carried out on the basis of the law and in strict accordance with it, with the strictest observance by all persons exercising prosecutorial supervision of the legal norms governing their activities and to be applied in the process of exercising prosecutorial supervision. The prosecution authorities must ensure the exact and uniform implementation of the laws by all individuals and legal entities. The organization and procedure for the activities of the Prosecutor's Office of the Russian Federation and the powers of prosecutors are determined by the Constitution of the Russian Federation, the Law on the Prosecutor's Office and other federal laws, international treaties RF. The Prosecutor's Office of the Russian Federation cannot be entrusted with the performance of functions not provided for by federal laws (Article 3 of the Law on the Prosecutor's Office).
One of general conditions activities of the prosecutor's office, which in their significance are similar to the principles of the activities of the prosecutor's office, is the provision on obligatory fulfillment of the requirements of the prosecutor. The requirements of the prosecutor arising from his powers are subject to unconditional execution within the prescribed period. Statistical and other information, certificates, documents and their copies necessary for the implementation of the functions assigned to the prosecution authorities are provided at the request of the prosecutor and investigator free of charge. Failure to comply with the requirements of the prosecutor arising from their powers, as well as evading the appearance when they are summoned, entails liability established by law (Article 6 of the Law on the Prosecutor's Office).
