Reference:
Altynnikova L.I..
On the issue of the specifics and classification of court decisions in criminal cases subject to appeal
// Law and Politics.
2025. № 3.
P. 100-111.
DOI: 10.7256/2454-0706.2025.3.73597 EDN: YHLOGE URL: https://en.nbpublish.com/library_read_article.php?id=73597
Abstract:
This article is devoted to the analysis of the legal regulation and practical activities of the courts of appeal for the review of judgments in criminal cases. The author focuses on the specifics of court decisions in criminal cases subject to appeal. In particular, the author examines in detail the features of the appeal of both final and interim court decisions in criminal cases. In addition, in the presented scientific research, the author pays special attention to the legal analysis of some restrictions regarding the appeal of court decisions. At the same time, the author analyzes the positions of the higher courts regarding the appeal of court decisions in criminal cases, and also provides relevant examples from judicial practice. The methodological basis of this research consists of the dialectical method of scientific cognition, logical, comparative legal research methods, as well as methods of analysis and synthesis, induction and deduction. The author focuses on the need to distinguish between final and interim court decisions in criminal cases, analyzing both the legislative definitions of these concepts and the doctrinal definitions of these terms. Moreover, the author substantiates the conclusion about the influence of this distinction on the procedure for appealing court decisions in criminal cases. The novelty of the presented scientific research lies, in particular, in the fact that a systematic legal analysis allowed the author to classify interim decisions of the court of first instance that have not entered into force, depending on the possibility of their independent appeal before the final court decision in the criminal case. In addition, the author's special contribution to the research of the topic of the systematization of legislative restrictions concerning the appeal of court decisions in criminal cases on appeal.
Keywords:
features of the appeal, appeal submissions, appeals, appeal, final court decisions, interim court decisions, second instance court, Court of appeal, appeal proceedings, criminal proceedings
Reference:
Belyshkov D.S..
The constitutional prohibition of the use of evidence obtained in violation of the law in the practice of the Supreme Court of the Russian Federation
// Law and Politics.
2025. № 2.
P. 52-64.
DOI: 10.7256/2454-0706.2025.2.73453 EDN: DNJPRU URL: https://en.nbpublish.com/library_read_article.php?id=73453
Abstract:
The work delves into the history of the application of the constitutional rule prohibiting the use in court of evidence obtained in violation of the law. The author achieves the goal of identifying systemic contradictions in the practice of the Supreme Court of the Russian Federation – a balance between the letter of the law and the search for truth. Since 2017, the courts have begun to sift out only evidence with "significant" violations, leaving a loophole, which is proposed to be called the "principle of good faith violation." However, the boundary between significant and non-essential violations has not been marked. This research made possible to trace the case law transition from rigid formalism to a flexible system for assessing violations. Current case law does not contain clear criteria for assessing the materiality of violations, which creates legal uncertainty and does not allow predicting the outcome of judicial discretion. The methodology of the work is based on the study of acts of the Supreme Court of Russia, using methods of analysis and the comparative legal method. The author proposed, by means of a Resolution of the Plenum of the Supreme Court of the Russian Federation, to consolidate the classification of criteria for the materiality of violations, which reflects the novelty of the study. Such a system will stop the "patronage of the prosecution": judges will stop turning a blind eye to violations of the investigation, and the accused will receive predictable guarantees. In order for the idea to work, it is necessary to consolidate the rules in a new resolution of the Supreme Court Plenum, which will become a bridge between the theory of law and judicial reality. The results of the study should be considered as a tool for reform, which will allow achieving a balance between formalism and objective truth. The evolution of approaches to the admissibility of evidence in Russian criminal proceedings reflects a deep conflict between formal guarantees of legality and the pragmatics of law enforcement. The introduction of the "period of objective truth" in 2017, fixed by Resolution No. 51 of the Plenum of the Supreme Court of the Russian Federation, shifted the focus from the unconditional exclusion of evidence violating the law to an assessment of its materiality. This gave rise to the "Principle of Good Faith Infringement", which allows preserving the evidentiary value of materials obtained with procedural violations if the court characterizes them as insignificant. However, the lack of clear criteria for materiality has led to legal uncertainty, weakened protection of the rights of the accused and risks of abuse by the investigation. The dualism between constitutional prohibition and case law threatens the rule of law by transforming procedural guarantees into a flexible prosecution tool.
Keywords:
criminal process, classification, bona fide violation, essential violations, admissibility, exception, proof, criminal proceedings, evidence, Constitutional prohibition
Reference:
Losev S.G., Morozov V.I..
Ways to improve the Institute of World Justice in Russia
// Law and Politics.
2025. № 1.
P. 33-39.
DOI: 10.7256/2454-0706.2025.1.71677 EDN: SNTKWQ URL: https://en.nbpublish.com/library_read_article.php?id=71677
Abstract:
The object of the study is the organization and activity of the Institute of Magistrates in the Russian Federation. The subject of the study is the organization of the procedure for appointing magistrates to positions in accordance with the current legislation of Russia. The problem of the implementation of the election of magistrates by the population of the subject of the Russian Federation is considered. The problem of the relationship between magistrates and federal courts is considered. The problem of the place of magistrates in the judicial system of Russia is considered. The subject of the study is also the history of the Institute of magistrates in the Russian Empire. The article analyzes the general trends in the development of the Institute of world justice in modern Russia. The problems of overloading magistrates with court cases, dependence of this judicial link on district courts, non-compliance with the provisions of the Federal Law "On Magistrates" in terms of their electability by the population are considered. The research methods are the historical method, the method of analyzing documents. The descriptive method was also used as a research method. As one of the directions for improving the domestic institute of world justice, it is proposed to remove magistrates from subordination to the system of federal courts. It is proposed to establish a congress of justices of the peace – a periodically operating body uniting all magistrates of the region. As an appellate instance, it is proposed to establish permanent collegiums of the congress: criminal, civil and administrative, which should be formed from the most experienced magistrates of the region. It is also proposed to establish a position of a reserve (reserve) justice of the peace, who should be entrusted with the duties of reviewing the cases of judges who are on vacation or absent for other reasons. The objectives of the proposed measures are to increase the independence of magistrates, increase their authority among the population of the region in which they administer justice, uniformity in law enforcement practice, and reduce the burden on magistrates and district judges.
Keywords:
Election of judges, The status of judges, courts of cassation, improvement of the judicial system, Justices of the peace, regional justice, Federal courts, judicial system, magistracy, Courts of the subjects of the Federation
Reference:
Klement'eva V.I..
The role of acts of the judicial community in the development of ideas about the moral and ethical status of judges
// Law and Politics.
2024. № 9.
P. 198-211.
DOI: 10.7256/2454-0706.2024.9.71527 EDN: HKCQCE URL: https://en.nbpublish.com/library_read_article.php?id=71527
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Abstract:
The subject of the study is formed by the principles and norms of Russian law regulating legal relations, determining the legal status of judicial community bodies, as well as materials of law enforcement practice, revealing the content and role of acts, in particular, councils of judges, which currently actually share many functions of judicial activity on issues of ongoing judicial reform and the formation of a trusting attitude of society towards the judiciary, the court and the state. The author notes that judicial ethics, which is a system of professional values based on the principle of self-government of judges, makes a special contribution to the development of ideas about the moral and ethical status of judges. The present study was carried out based on traditional general scientific methods (analysis and synthesis, etc.), and methods of legal science (system analysis, formal legal, etc.). The article reveals the importance of acts of the judicial community as a legal regulator of the moral and ethical status of judges in the Russian Federation. The special role of the Council of Judges of the Russian Federation and its specialized ethics commission is noted, as well as the role of regional councils of judges in forming ideas about the content of the moral and ethical position of judges. The study includes an overview of some conclusions of the Ethics Commission of the Council of Judges of the Russian Federation adopted in 2023. The author concludes: despite the fact that at present the legal nature of the acts of the judicial community bodies is debatable, the results of the activity of the councils of judges have a significant impact on the formation of uniform law enforcement practice in the context of individual regulation of judicial activity.
Keywords:
council of judges, ethical standards, Code of judicial ethics, acts of the judicial community, judicial self-government, judicial ethics, Council of Judges of the Russian Federation, bodies of the judicial community, status of judges, judicial power
Reference:
Semchenkov A.A..
Critical analysis of the law-making paradigm of the Constitutional Court of the Russian Federation
// Law and Politics.
2024. № 6.
P. 1-10.
DOI: 10.7256/2454-0706.2024.6.70965 EDN: HAURAW URL: https://en.nbpublish.com/library_read_article.php?id=70965
Abstract:
The constitutional control of the Constitutional Court of the Russian Federation is aimed, to a certain extent, at creating (temporary) legal norms. Law-making in itself is not the basis for the activity of the Constitutional Court of the Russian Federation, however, at the same time it is hardly possible not to recognize the existence of a special function for the creation of law for the Constitutional Court of the Russian Federation. This function of constitutional justice is implemented in practice through the prism of constitutional control. At the same time, approaches to determining the powers and functions of the Constitutional Court of the Russian Federation on this issue differ significantly from each other. Based on this, the subject of the study is the decisions and legal positions of the Constitutional Court of the Russian Federation, which have an impact on the Russian legal order. The research methods used are logical, comparative legal, formal legal, hermeneutic and empirical methods of cognition. The discussion on the role and significance of the law-making function of the Constitutional Court of the Russian Federation is far from over, and assessments of such activities of the Constitutional Court of the Russian Federation vary from radical to conservative. The author concludes that the law-making function of the Constitutional Court of the Russian Federation is a secondary function of the Russian judicial review body, it is not the necessary role of the Constitutional Court of the Russian Federation. At the same time, the processes of constitutionalization and, in particular, the creation of temporary legal norm by the Constitutional Court of the Russian Federation affect the Russian legal system.
Keywords:
the role of the Constitutional Court, judicial law, scope of powers, powers of the Constitutional Court, functions of the Constitutional Court, creation of law, Constitutional Court, rulemaking, lawmaking, law-making paradigm
Reference:
Berestennikov A.G..
To the question of the perception of legal logic by jurors (from the position of the prosecution)
// Law and Politics.
2023. № 11.
P. 81-90.
DOI: 10.7256/2454-0706.2023.11.68843 EDN: LRSQSC URL: https://en.nbpublish.com/library_read_article.php?id=68843
Abstract:
The subject of the study of this article is the peculiarities of reflection in the minds of jurors taking part in the administration of justice, the legal logic that underlies both the criminal process and the charges brought against the defendant. Considering this problem through the prism of the procedural role of the public prosecutor, the author turns to presumptions, fictions and stable expressions, that is, professional cliches that are accepted in the legal community, but may not be understandable to jurors. The article provides examples of such presumptions, fictions and cliches and reveals the difficulty of understanding their logic on the part of an ordinary person. The main conclusions of the study are reduced to the need for the public prosecutor to use preventive thinking when making an introductory statement, when forming a question sheet and during a speech in the debate of the parties. The public prosecutor should not only know the materials of the criminal case perfectly, but also be able to bring them to the attention of jurors in an accessible way. Preliminary work with the text should play an important role: presumptions, fictions and professional stamps should be excluded from it, if possible; if it is impossible to do this, it is necessary to explain their essence to the members of the board who administer justice.
Keywords:
criminal process, jurors, legal logic, fictions, presumptions, professional stamps, opening statement, public prosecutor, question paper, debate between the parties
Reference:
Kripinevich S.S..
Judicial practice and its unity: problems of definition and ways of their solution
// Law and Politics.
2023. № 11.
P. 11-21.
DOI: 10.7256/2454-0706.2023.11.68879 EDN: JNYSLO URL: https://en.nbpublish.com/library_read_article.php?id=68879
Abstract:
Emphasizing the importance of judicial practice, the author notes that based on the results of the assessment of various aspects of judicial practice, conclusions are drawn about trends in judicial activity, about the effectiveness of procedural legislation, legislation defining the rules for the formation and functioning of the judicial system, as well as other legal acts, about the level of legality in judicial activity, as well as in the activities of pre-trial proceedings (for example, in the field of criminal justice), ensuring the rights of the individual and on many other issues. Particular attention is paid in the article to the definition of the very concept of "judicial practice", based on the identified characteristic features that allowed to reveal its essence and formulate a definition. The study also draws a correlation between "general applicability" and such concepts as "unity of judicial practice" and "uniformity of judicial practice". In his research , the author comes to the following conclusions: 1. Judicial practice is a set of any procedural acts created in the course or as a result of judicial activity. Judicial practice should include both court decisions (final or interim) and protocols of judicial actions, as well as other documents that may become the basis for the occurrence of legally important consequences. 2. General applicability is considered as the possibility of using the results of one judicial body by other courts in their procedural activities. 3. The unity of judicial practice is considered as a property that is not inherent in judicial practice by definition, but it is a necessary quality that is subject to formation in judicial practice by taking appropriate measures on the part of the authorized judicial body.
Keywords:
general applicability, criminal proceedings, uniformity, judicial practice, law enforcement, unity judicial practice, Criminal proceedings, interpretation, application rules law, rules law
Reference:
Maksimova T., Markova T..
Questioning or reading out the testimony of a minor in Russian criminal procedure
// Law and Politics.
2023. № 4.
P. 1-13.
DOI: 10.7256/2454-0706.2023.4.40531 EDN: RBZFZO URL: https://en.nbpublish.com/library_read_article.php?id=40531
Abstract:
The article examines the right of the court not to summon a minor victim or witness to a court session for questioning and the possibility of announcing his testimony, which was previously given during the preliminary investigation, if technical means of recording his production were used during the interrogation with the help of video recording or filming. This problem is investigated in the context of the relationship between the immediacy of the trial, the right of the accused to defense, and above all the right of the accused to personally interrogate witnesses against him, as well as the need to protect minor victims and witnesses, providing them with additional guarantees. The subject of the study is not only the norms of the Criminal Procedure Code of the Russian Federation, but also international legal acts. The article for the first time examines the legal positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, which establish additional criteria for assessing the legality and validity of the disclosure of the testimony of minor victims and witnesses, including the conduct of a confrontation between these persons and the accused; the presence of legal representatives and a psychologist during the interrogation of minors; video recording of the interrogation at the preliminary investigation. The article formulates proposals for improving the norms of criminal procedure legislation, taking into account the balance of interests of the parties and the rights of minor participants in the process. In particular, it is proposed to conduct an interrogation of a minor in court in the absence of the defendant by his defender.
Keywords:
legal positions of the courts, testimony, immediacy of the trial, right to protection, video recording, confrontation, interrogation, minors, material violation of the law, improvement of the law
Reference:
Guliev S.A., Rzaev R.G..
Refusal to Recognize and Enforce Decisions of international Commercial Arbitrations on the Basis of Contradiction to Public Policy
// Law and Politics.
2022. № 8.
P. 37-50.
DOI: 10.7256/2454-0706.2022.8.38673 EDN: UFOXRE URL: https://en.nbpublish.com/library_read_article.php?id=38673
Abstract:
The relevance of this study is that due to the conditions of the globalization of the world economy and the development of international commercial turnover, the importance of international commercial arbitration is rapidly increasing. There is also complexity and ambiguity in understanding the legal category of "public order" because this institution is not a definitively regulated area of law enforcement in the modern legal order. This article’s research object is the social relations arising through the activities of arbitration courts in international commercial turnover. This work aims to identify the procedures, mechanisms, and features of applying the public policy clause in recognizing and enforcing international commercial arbitration decisions. When writing this article, both general scientific research methods, including analysis, synthesis, deduction, and induction, and special methods of cognition, such as comparative legal and descriptive methods, were used. One of the main methods in this work is comparative law, as it helps identify the similarities and differences of the legal systems under consideration, which are the subject of the study. The novelty lies in consideration of the correlation of issues concerning the legal nature of "public order," as well as the analysis of cases related to the procedure of refusal to recognize and enforce decisions of international commercial arbitration in the territory of a foreign state based on contradiction to public order. In the course of the study, the following conclusions were made. The complex problems that have formed in this area are almost impossible to solve by signing and putting into effect a single normative legal act at an international level. The list of cases applying this legal category in arbitration activities is non-exhaustive. The public policy clause is one of the most important components of the institutions of private international law. The institution of public order has an extraordinary character in the decisions of international commercial arbitration.
Keywords:
international relations, right, private law, commercial law, the civil code, Russia, arbitration court, arbitration, public law, international law
Reference:
Kripinevich S.S..
Civil and criminal procedural approaches to the definition of individual judicial regulation
// Law and Politics.
2022. № 7.
P. 34-42.
DOI: 10.7256/2454-0706.2022.7.38244 EDN: CZLYTN URL: https://en.nbpublish.com/library_read_article.php?id=38244
Abstract:
In legal science, such a direction of research as individual legal regulation has become widespread. On its basis, types are distinguished, including individual judicial regulation. This concept is of particular importance for criminal proceedings and its study can lead to new theoretically and practically significant results. Considering that the study of individual judicial regulation has been conducted for many years in the general theory of law, in civil law, the purpose of this work was to generalize their individual results (in terms of the main features of individual judicial regulation) and to develop the main directions of their application in the field of criminal proceedings. The object of the study was relations in the field of judicial criminal procedural activity. Methods of analysis, synthesis, generalization, comparative legal, formal legal, modeling were used in the study. The main results were expressed in the identification of knowledge useful for the science of the criminal process, obtained by scientists in the field of theory of law (V.V. Ershov, V.M. Gorshnev, S.S. Alekseev, etc.), civil law (V.V. Kulakov, A.D. Koretsky, V.V. Gruzdev, etc.) and determining their significance for conducting research of individual judicial regulation in criminal proceedings. The author's conclusion based on the results of the study is the need to develop scientific research in relation to individual judicial regulation in criminal proceedings as a potentially effective means of resolving criminal law conflicts, taking into account the developing trends of procedural contracts, agreements and other vectors that increase the level of individuality of decisions made by the court.
Keywords:
criminal procedural activity, civics, participants in criminal proceedings, legal relations, legal regulation, criminal proceedings, judicial regulation, individual legal regulation, individual judicial regulation, theory of law
Reference:
Titova I.A..
Legal regulation of the distribution of cases in courts: content, implementation, problems and areas of improvement
// Law and Politics.
2022. № 7.
P. 43-50.
DOI: 10.7256/2454-0706.2022.7.38386 EDN: DCBTNV URL: https://en.nbpublish.com/library_read_article.php?id=38386
Abstract:
The subject of the research of this article is the legal norms regulating the features of the use of automated systems for the distribution of cases in courts, as well as law enforcement practice for the organization of such activities. The object of the research is procedural relations arising during the use of this system in the judicial proceedings of the Russian Federation. The author reveals the contradictions that arise between theoretically fixed normative provisions and their practical implementation. The features and problems of the activity of courts in the application of the mechanism of automated distribution of court cases are identified. The author substantiates that it is necessary to improve legislative acts aimed at court using an electronically automated system for the distribution of court cases. Author talks about the problems of legalizing organizational rules that fix the automated procedure for the distribution of cases in courts and the distribution of the judicial burden. Considers it necessary to create a full–fledged procedural and legal mechanism for the automated distribution of cases in courts to supplement the norms of the current legislation in the relevant part with cases of impossibility of using automated equipment, as well as rules of a different order of distribution of cases. The result of the work is the original author's suggestions and recommendations that form the novelty of the work. In particular, the adoption of the Federal Law "On Judicial Workload" has been proposed, proposals have been developed in the form of draft articles on amendments and additions to the procedural codes of the Russian Federation regarding the establishment of promising directions for the formation of the composition of the court using an electronically automated system for the distribution of court cases having a "flexible" nature. Modeling which the author used the formal legal method, analytical, logical and other methods of scientific cognition.
Keywords:
composition of the court, objective distribution of cases, legal regulation, impartiality, independence of judges, procedural legislation, digital technologies, informatization of courts, digitalization, legal proceedings
Reference:
Kripinevich S.S..
Signs of individual judicial regulation in criminal proceedings and its definition
// Law and Politics.
2022. № 6.
P. 11-20.
DOI: 10.7256/2454-0706.2022.6.38243 URL: https://en.nbpublish.com/library_read_article.php?id=38243
Abstract:
Criminal proceedings are the sphere of mandatory regulation. However, its development and modern achievements of the entire legal science as a whole make it possible to make relevant clarifications to its content (legislation and activities). The purpose of the work is to identify the most significant features of individual judicial regulation in the field of criminal proceedings and offer them to the general scientific community for discussion. The main subject of this study was the theoretical concept of "individual judicial regulation" and its features in criminal proceedings. In criminal proceedings to date, such studies have been fragmentary, whereas in the theory of law, civil sciences, this area is represented by large-scale and fundamental works. It seems that the scale of the research and its long history should be realized not only in civil proceedings, civil and administrative law, but also in criminal proceedings. One of the first in this series should be the definition of the concept of "individual judicial regulation in criminal proceedings". In the course of the research, traditional scientific methodology was used: including general scientific methods (dialectics, analysis, synthesis, generalization, etc.), as well as private scientific methods - comparative legal and formal legal. The applied methods of scientific research allowed us to gain new knowledge concerning the essential features of individual judicial regulation and their use in defining this concept. The result was the author's definition of individual judicial regulation in criminal proceedings. The application of the results is possible in the field of ongoing scientific research, in terms of improving criminal procedure legislation and the practice of its application. The main conclusion of the author is the need to introduce the concept of individual judicial regulation into criminal proceedings at the level of its theoretical provisions and into the legislative framework.
Keywords:
participants in criminal proceedings, legal regulation, legal relations, criminal proceedings, the main signs, the concept, individual judicial regulation, judicial power, court decisions, procedural form
Reference:
Vasilev D..
Productivity and efficiency in the evaluation of judicial activity
// Law and Politics.
2022. № 3.
P. 49-79.
DOI: 10.7256/2454-0706.2022.3.34635 URL: https://en.nbpublish.com/library_read_article.php?id=34635
Abstract:
The article raises the question of whether it is correct to use the term "efficiency" when evaluating judicial activity using quantitative indicators of judicial statistics. These indicators are focused on the departmental needs of a closed-in judicial system. The article shows that in relation to the assessment of the activity of courts according to judicial statistics, it is correct to use the term "productivity". The thesis of the article is that when evaluating the work of courts and judges, to distinguish productivity from efficiency. It is noted that the productivity of ships and their efficiency are not directly dependent. Particular attention is paid to determining what constitutes the effectiveness of judicial activity. The author comes to the conclusion that the effectiveness of judicial work can be investigated by studying the assessments of courts and judges by their "clients" - litigants, other persons involved in the case, society as a whole. Courts act effectively if their "reputation capital" increases in the eyes of society. The currently used indicators of judicial statistics should be replaced by an assessment of the effectiveness of justice based on a sociological study of the reputation of the judiciary. The judiciary should have its own structures to monitor changes in public opinion regarding the reputation of the courts. When considering a possible methodology for assessing the reputation of courts and judges, it is noted that it is not expressed in quantitative data. Shifting the emphasis in the evaluation of judicial activity to the study of efficiency will provide feedback to the judicial system with its "clients", will form additional motivation for judges to take care of their own reputation in the eyes of public opinion.
Keywords:
stability of judicial acts, ship performance, corporate culture of courts, evaluation of judicial activity, judicial statistics, efficiency of courts, the quality of the judge's work, reputation of the court, number of court cases, procedural deadlines
Reference:
Gaponov M.D..
Consideration of the nature of the case in which a foreign court decision has been rendered, subject to recognition and enforcement in the Russian Federation
// Law and Politics.
2022. № 2.
P. 40-51.
DOI: 10.7256/2454-0706.2022.2.37452 URL: https://en.nbpublish.com/library_read_article.php?id=37452
Abstract:
The subject of the study is the legal specifics of the recognition of decisions made by foreign justice institutions and their subsequent execution by the nature of the case. The presented aspects are an integral component of effective modern cross-border legal interaction, and also provide practical guarantees for the protection of the rights of its direct participants. In the context of a specific mechanism of legal regulation of the international turnover of variable judicial acts, the most significant point is the establishment of the object of the recognition in question and subsequent execution. Within the framework of our state, the specifics of recognition and enforcement are provided for by the provisions of relevant international treaties, as well as the norms of current domestic federal legislation – in cases where it is a question of recognizing decisions for which there is no need for enforcement. The provisions of the Minsk Convention of the CIS countries, the Kiev Agreement of the CIS countries, the variable bilateral treaties of our state establishing the rules of legal assistance, other international treaties, the norms of which fix the procedure for recognition and subsequent enforcement of decisions taken by foreign justice institutions, the norms of current domestic legislation and current accumulated law enforcement practice. The author focuses on the analysis of current trends in the regulation of these relations, including through the use of relevant materials of the development of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Cases, which indicates the novelty of the study. The main conclusion of the study is to identify the variable directions of determining the range of foreign court decisions that are recognized and enforced, while taking into account the features of judicial acts and relevant proceedings that determine their formation. When analyzing a foreign court decision as a specific object of appropriate recognition and enforcement, several aspects are subject to consideration, first of all, we are talking about the nature of the individual case in connection with which the decision in question was made.
Keywords:
object of recognition, recognition of foreign decisions, enforcement of decisions, court decision, court, the nature of the court case, categories of civil cases, international civil procedure, execution of foreign decisions, foreign court decision
Reference:
Burdina E.V., Kapustin O.A..
Online reconciliation as a means of improving the access to justice
// Law and Politics.
2021. № 12.
P. 29-45.
DOI: 10.7256/2454-0706.2021.12.37170 URL: https://en.nbpublish.com/library_read_article.php?id=37170
Abstract:
The subject of this research is the problem of improving the effectiveness of conciliation procedures, their relevance to the citizens, and increasing the role and importance of the forms of pacific settlement of the dispute within the Russian system of justice in the conditions of digitalization of judicial activity. The goal of this article is to prove online reconciliation as a method for improving access to justice, as well as substantiate the integrated model of reconciliation in judicial activity using digital services and platforms. Leaning on the works of the Russian and foreign researchers (V. M. Zhuykov, S. K. Zagaynova, V. V. Yarkov, and others), the conclusion is made that the institution of reconciliation, including mediation, is historically built around the judicial system. Hindsight analysis of the judicial and non-judicial forms of dispute settlement indicates their coherent development. The implementation of the digital platform “Justice Online” in judicial activity allows improving citizens’ access to dispute resolution in or without judicial proceedings using pacific means. In the current context, reconciliation is viewed within the structure of judicial activity and consists in implementation of reconciliation procedures, including online reconciliation, in the courthouse or with the involvement of court, or via digital judicial platforms. The application of comparative legal analysis substantiates the integrated mod el of reconciliation, which has the following characteristics: access to mediation services in the courthouse; granting authorities to the court staff for elucidation of the possible methods of dispute settlement; accretion of power of reconciliation judges; integration of technological services of online reconciliation with the digital judicial platform; merger between the website of the court and the websites of mediation organizations.
Keywords:
integrated model of reconciliation, online reconciliation, digital platforms, mediation, justice, access to justice, judicial workload, institution of reconciliation, judicial activity, website
Reference:
Chirninov A.M..
Constitutional and judicial argumentation and the transformation models of normative legal regulation
// Law and Politics.
2021. № 9.
P. 39-57.
DOI: 10.7256/2454-0706.2021.9.36333 URL: https://en.nbpublish.com/library_read_article.php?id=36333
Abstract:
This article examines the correlation between constitutional argumentation and the models of transformation of legal rules occurring under the influence of constitutional judgments. With references to the case law of the Russian Constitutional Court, the German Constitutional Court, and the United States Supreme Court, the author analyzes argumentative patterns that arise when dealing with specific options for legislative correction. This article focuses on such measures as striking down a legal provision, formulating an exception to a general rule, correcting the hypothesis, disposition, and sanction of a legal norm, clarifying the mechanisms of legal regulation in terms of time, territory, and persons affected, filling legislative gaps and providing additional safeguards. The article makes an original contribution to scholarship because it explores constitutional argumentation instrumentally. Having shown that argumentation serves a supplementary function to judicial review, the author identifies the argumentative patterns prevailing in constitutional discourse and analyzes the mechanism of constructing arguments. It is argued that constitutional reasoning reflects the critical assessment of lex lata and portrays its constitutional deficiencies with a simultaneous projection of normative models that meet constitutional requirements. The article concludes that constitutional argumentation aims to demonstrate constitutionally acceptable legislative decisions and explain why, how, and in what part a challenged law is to be amended.
Keywords:
argumentative pattern, constitutional justice, normative correction, legal regulation, constitutionality, constitutional review, argumentation schemes, constitutional court, reasoning, legal argumentation
Reference:
Vasilev D..
Indicators of judicial statistics as criteria for assessing judicial activity
// Law and Politics.
2021. № 3.
P. 79-100.
DOI: 10.7256/2454-0706.2021.3.34355 URL: https://en.nbpublish.com/library_read_article.php?id=34355
Abstract:
The implementation of the constitutional principle of judicial independence directly correlates with the criteria by which their activity is being assessed. Russian courts use judicial statistics for assessing the performance of judges. This article analyzes the applicability of statistical indicators as direct indicators of the performance of judges. The hypothesis advanced that with sufficient pressure and absence of artificial manipulations, the statistical probability of maximum indicators of “quality” and “terms” tends to zero. Statistical values are determined by a range of factors, including those that do not depend on the judges. Their objective and direct imputation to judges misinforms and distorts the reality. The assessment of mental work of the judges in exact figures is pointless. The conclusion is made that the achievement of the maximum statistical indicators cannot be a value orientation of the judicial system. The simplicity of their use is deceptive. In reality, the assessment of judges by “quality”, “quantity” and “terms” is imbalanced, inconsistent, and non-functional. Statistical indicators can be used for assessing the performance of judges only as indirect indicators. In this case, it is feasible to use the “red flags” method, which means that only significant departure from the norm should be taken in account in assessing judicial activity.
Keywords:
appeal practice rate, quality of work of a judge, race for statistics, judicial statistics, evaluation of judicial activity, judicial burden, judgement mistake, stability of judicial acts, number of cases, procedural terms
Reference:
Bol'shakova V.M..
Genesis of establishment and development of the judicial system of the Russian Federation in the late XX – early XXI centuries: institutional and normative characteristics
// Law and Politics.
2021. № 3.
P. 26-36.
DOI: 10.7256/2454-0706.2021.3.35190 URL: https://en.nbpublish.com/library_read_article.php?id=35190
Abstract:
The subject of this research is the evolution of the structure of judicial system of the Russian Federation in the late XX – early XXI centuries. Description is given to the changes undergone by the Russian judicial system after dissolution of the Soviet Union. The author follows the dynamics of the normative legal changes that regulate judicial proceedings, as well as reveals the institutional framework of the modern structure of judicial system of the Russian Federation. The article illustrates the institutional and normative changes within the structure of judicial system of the Russian Federation in the late XX – early XXI centuries based on application of the comparative-legal and systemic methods of research. The novelty and the main conclusions lie in the following: it is established that the Russian Federation has issued the normative legal acts that contribute to the strengthening and unification of the Russian judicial system, uniformity of social guarantees and compensations set for judges. Currently, the judicial system of the Russian Federation is founded on the principle of combining administrative-territorial and district organization. It is determined that the judicial system of the Russian Federation consists of 1) the Constitutional Court of the Russian Federation; 2) the Supreme Court of the Russian Federation; 3) federal courts of general jurisdiction; 4) arbitration courts; 5) magistrates’ courts of the constituent entities of the Russian Federation. It is noted that since January 1, 2023, the Constitutional (statutory) courts of the constituent entities of the Russian Federation will be abolished.
Keywords:
courts of general jurisdiction, judicial institute, the judicial system, judicial branch, judicial system, structure, judicial reform, magistrates' courts, arbitration courts, jurors
Reference:
Vasilev D..
Judicial statistics and corporate structure of the Russian courts
// Law and Politics.
2020. № 12.
P. 34-49.
DOI: 10.7256/2454-0706.2020.12.34103 URL: https://en.nbpublish.com/library_read_article.php?id=34103
Abstract:
The subject of this research is the impact of assessment of judicial performance in accordance with the indicators of judicial statistics upon the organization of culture of the Russian court, which incorporates the shared by majority of judges informal rules of conduct, traditions, and values. The article describes such criteria for assessment of judicial performance as “quality”, “quantity”, and “terms”. In studying the historical origin of judicial performance assessment based on judicial statistics, it is demonstrated that the tradition of such assessment was founded in the 1930s, when political leadership who carried out repressive policy instigated “socialistic competition” between the courts and the judges. The article analyzes the impact of the “struggle for statistics” upon conduct of judges. Such circumstance that in consideration of cases the judges take into account judicial statistics violate the requirement of procedural fairness. There is a contradiction between the Russian legislation, which for the most part complies with the universally recognized international principles, and conservative organizational culture of the Russian courts. Mechanism of reproduction of the latter is the inertia of the “struggle for statistics”. In order to bring into compliance the representations of Russian judges on the acceptable conduct with the values of democratic justice, the system of assessment of judicial performance requires revision.
Keywords:
stability of judicial acts, appeal practice rate, quality of work of a judge, race for statistics, judicial statistics, evaluation of judicial activity, corporate culture of judges, judiciary, number of cases, procedural terms
Reference:
Golubev F.A..
Criminalistic characteristic of investigation of undue influence upon critical information structure of the Russian Federation
// Law and Politics.
2020. № 10.
P. 50-59.
DOI: 10.7256/2454-0706.2020.10.33985 URL: https://en.nbpublish.com/library_read_article.php?id=33985
Abstract:
This article provides comprehensive description of the crime established by the Article 274.1 of the Criminal Code of the Russian Federation. The subject of this research is the crimes in the area of information technologies and their circumstances set by the Article 274.1 of the Criminal Code of the Russian Federation, as well as comprehensive characteristic of criminal impact upon the critical information infrastructure of the Russian Federation. The subject of research also includes the concept of the object of infringement – the critical information structure of the Russian Federation, isolated circumstances of the instance of crime that determine the nature and dynamics of criminal activity thereof, classification and criminalistic characteristic of the objects of crime, essential evidence of unfavorable consequences of undue influence upon critical information structure of the Russian Federation. Definition is given to the concept of the object of infringement – the critical information structure of the Russian Federation. The author examines isolated circumstances the instance of crime that determine the nature and dynamics of criminal activity thereof. Classification and criminalistic characteristic are given to the objects of crime; essential evidence of unfavorable consequences of undue influence upon the critical information structure of the Russian Federation is identified and analyzed. The author concludes that taking into consideration the fact that currently there is no practice, guidelines, recommendations on investigation and detection of crimes established by the Article 274.1 of the Criminal Code of the Russian Federation, the crimes that fall under the indicated category have even grater latency compared to other crimes of the Chapter 28 of the Criminal Code of the Russian Federation, which necessitates the development of guidelines, recommendations, normative legal and local acts on detection, investigation and prevention of crimes in the area of computer technologies.
Keywords:
effects of crime, subjects of the crime, dynamics of criminal activity, criminal event, information structure of Russia, critical information infrastructure, information crimes, criminalistic and criminal law characteristics, the concept of the object of encroachment, cybercrime
Reference:
Byval'tseva S.G., Kovalev A.A..
Submission of prosecutorial decision in a civil procedure
// Law and Politics.
2020. № 7.
P. 114-123.
DOI: 10.7256/2454-0706.2020.7.32822 URL: https://en.nbpublish.com/library_read_article.php?id=32822
Abstract:
The object of this research is the public relations arising when the prosecutor is involved in court hearing of civil cases by intervening into a case for delivering an opinion in the appellate, cassation and supervisory bodies, as well as problematic aspects of the application of his powers to deliver an opinion in the aforementioned bodies. The subject of this research is the materials of prosecutorial law enforcement and judicial practice, norms of civil procedural legislation of the Russian Federation that regulation these public relations, as well as positions formulated on the matter. Despite the fact, that the scientific literature paid attention to the separate aspects of submission of prosecutorial decision, the questions of submission of prosecutorial decision in the retrial of civil cases did not receive due coverage. Such situation led to a contradictory approach towards the question on possibility of delivering an opinion by the prosecutor in retrial of civil cases in the theory and case law. Therefore, based on the conducted research, the author makes recommendation with regards to exercising prosecutorial powers in submission of decision in retrial of civil cases by the courts, as well as the changes in current legislation that would bring certainty into these legal relations and contribute to elimination of the emerged contradictions.
Keywords:
first Instance, civil procedure, retrial, submission, conclusion of the prosecutor, the entry, prosecutor, acts of response, legal means, eliminate Violations
Reference:
Kovalev A.A..
Status of the prosecutor in the arbitration proceedings
// Law and Politics.
2020. № 6.
P. 74-83.
DOI: 10.7256/2454-0706.2020.6.32358 URL: https://en.nbpublish.com/library_read_article.php?id=32358
Abstract:
The object of this research is the questions of determination of legal status of the prosecutor participating in arbitration proceedings, and problematic aspects pertaining to exercise of his powers in reference to arbitration with a claim, as well as entering the proceedings in accordance with Part 5 of the Article 52 of the Arbitration Procedure Code of the Russian Federation. The subject of this research is the materials of prosecutorial law enforcement practice and case law, as well as the norms of arbitration procedure and civil procedure legislation. The following methods were applied in the course of this work: formal-logical, comparative analysis, comparison, analysis and synthesis, systemic and structural analysis for the purpose of studying separate elements of the legal status of the prosecutor. The author conducted a comprehensive research of the legal status of the prosecutor who participates in arbitration proceedings. A conclusion is drawn that the prosecutor’s status can be defined as a government representative in his participation in the proceeding upon the initiative, or in entering the proceedings in accordance with Part 5 of the Article 52 of the Arbitration Procedure Code of the Russian Federation. In order to determine the legal status of the prosecutor, the author analyzed the powers assigned by the Arbitration Procedure Code of the Russian Federation, as well as describes separated aspects that ate not regulated by the Arbitration Procedure Code of the Russian Federation. Recommendations are given on the improvement of legislation that establishes the mechanism of exercising powers of the prosecutor in the arbitration proceedings.
Keywords:
applicant, civil proceeding, state representative, introduction, the prosecutor's conclusion, settlement agreement, powers of the prosecutor, arbitration proceeding, prosecutor, the prosecutor's office
Reference:
Topilina T..
Right of access to justice as a principle of criminal process
// Law and Politics.
2020. № 4.
P. 49-58.
DOI: 10.7256/2454-0706.2020.4.32196 URL: https://en.nbpublish.com/library_read_article.php?id=32196
Abstract:
This article analyzes the controversial issues of attributing the right of access to justice to the principles of criminal process. The author meticulously examines the origin of the right of access to justice in the Article 52 of the Constitution of the Russian Federation. The subject of this research is the norms of Russian and foreign legislation regulating the right of access to justice in criminal process. The object is the legal relations emerging in implementation of the right of access to justice. The article explores regulation of the right of access to justice in legislation of the Russian Federation and CIS member-states. It is demonstrated that the right of access to justice possesses certain characteristics that allow attributing it to the principles of criminal process: it represents an objective legal category that reflects the dominant in society political, legal and ethical ideas, and is most common legal provision in relation to other norms of law. A conclusion is substantiated that absence of the right of access to justice in criminal procedural legislation is a unique case of a gap in the principle of law.
Keywords:
principles of criminal justice, principles of justice, gaps in law, criminal process, principle of law, access to justice, stages of the criminal process, criminal procedure law, constitutional law, criminal proceedings
Reference:
Abdulvaliev A.F..
Geography of the appellate courts of general jurisdiction in Russia: problems of providing access to justice in revision of criminal cases
// Law and Politics.
2020. № 4.
P. 59-69.
DOI: 10.7256/2454-0706.2020.4.32385 URL: https://en.nbpublish.com/library_read_article.php?id=32385
Abstract:
The subject of this research is the study of the work of appellate courts of general jurisdiction on revision of criminal cases in higher jurisdiction courts based on the position of their of their geographical location on the territory of the Russian Federation. The five newly formed appellate courts of general jurisdiction do not fully contribute to realization of such principle of criminal procedure as independence of judges, as well as adherence to the requirements on directness and oral nature of judicial proceedings. The goal of this article is to examine the positions of the current appellate courts of general jurisdiction from geographical perspective. For a deeper examination of the appellate peculiarity, the scientific research into this problem was carried out with consideration of the geographical specificity of the territory of Russia and its regions, and thus the level of development of logistical infrastructure in the constituent entities of the Russian Federation. The scientific novelty consists in the original proposal for creation of twelve appellate courts of general jurisdiction throughout the territory of the Russian Federation with their permanent placement in cities not currently handled by other judicial institutions of higher jurisdiction. Such new approach should fully the citizens’ right to access justice, and also ensure the principle of independence of judges.
Keywords:
territorial remoteness, geographical factor, access to justice, judicial district, court proceedings, criminal procedure, court of appeal, judicial reform, transport accessibility, videoconference
Reference:
Chuklina E..
Case law on criminal cases in accordance with Article 205.1 and 205.2 of the Criminal Code of the Russian Federation (on materials of the Southern District Military Court)
// Law and Politics.
2019. № 12.
P. 82-93.
DOI: 10.7256/2454-0706.2019.12.31628 URL: https://en.nbpublish.com/library_read_article.php?id=31628
Abstract:
The subject of this research is the specificity of the case law on criminal cases on involvement in terrorist activity, public calls to action of terrorist activity and propaganda of terrorism. The choice for the subject is justified by the unfolding discussion in the scientific community regarding the reasonableness of introduction of these norms. Analysis of the rulings allows establishing the following parameters, characterizing the current case law on crimes in accordance with Article 205.1 and 205.2 of the Criminal Code of the Russian Federation (CCRF): socio-demographic characteristics of the convict, prior charges, nature of crime, multiple counts, and sentence. Establishing these parameters can in turn be used to determine the existing problems of qualification of the studied crimes and development of solutions. The main conclusions of the conducted research consists in confirmation of the reasonableness of introduction into the Special Part of the CCRF of norms established by the Article 205.1 and 205.2 of the CCRF, since this legislative solution filled the previously existing gap in the part of arraignment for fruitless involvement and commission of crimes of terrorist nature, as well as material support of terrorist organizations.
Keywords:
terrorism financing, terrorism propaganda, justification of terrorism, public appeals, implication, public instigation, terrorist activity, judicial practice, sentencing, prevention
Reference:
Ermakov K.V..
To the question of unification of the requirements for the candidacy of the court administrator in the courts of general jurisdiction
// Law and Politics.
2019. № 11.
P. 76-83.
DOI: 10.7256/2454-0706.2019.11.31272 URL: https://en.nbpublish.com/library_read_article.php?id=31272
Abstract:
This article explores the question of unification of the current legal norms that establish the requirements for the candidacy of the court administrator in the courts of the subjects of the Russian Federation and administrators of district courts. The author examines the current normative requirements of the Russian Federation for candidates seeking the position of court administrator of the subject of the Russian Federation and district courts. Research is also conducted on the legal status of court administrators regardless of the department within the legal system in which they perform their duties. The research is based on the comparative legal analysis of the requirements for the candidates seeking the position of court administrator of the subjects of the Russian Federation and district courts, with concretization of their official duties. The author substantiates the idea, according to which the absence of the legal requirements for the position of district court administrator with qualifying experience for the position of state civil service that would be presented to a candidate for the court of the subject of the Russian Federation, with both positions having practically identical work and function description, testifies to the absence of sufficient unified legal regulation that would eliminate legal indecision.
Keywords:
state civil service, experience, requirements, courts, management, judge, the court administrator, authority, activity organization, control
Reference:
Cherepanov M.M., Bezrukov Y.I..
To the question of prosecutor’s involvement in examination of criminal cases by the judge and with participation of members of the jury
// Law and Politics.
2019. № 6.
P. 42-49.
DOI: 10.7256/2454-0706.2019.6.29992 URL: https://en.nbpublish.com/library_read_article.php?id=29992
Abstract:
The object of this research is some relevant problems of prosecutor’s involvements in examination of criminal cases by the courts. The subject of this research is the materials of prosecutorial and judicial practice, as well as the existing legislation of the Russian Federation. Currently, the participation of prosecutors in examination of criminal cases cannot be referred to as the absolute duty in the work of the National Prosecutor's Office. Therefore, the autho0r determines the problems of subjective and objective character. Human factor can be regarded as the first group: the inappropriate organization of work of the prosecutor’s office or its structural department on ensuring prosecutors’ participation in examination of criminal cases by the courts, as well as the insufficient experience of prosecutors and neglectful attitude to their duties. The second group implies the inadequacies of certain provisions of the existing Federal Law “On the Prosecutor's Office of the Russian Federation”, including those contradicting the Criminal Procedural Code of the Russian Federation. The author underlines the urgent need for their solution, as well as proposes the original methods to overcome them. Special attention is given to education and self-education of the prosecutors, and bringing the provisions of the Articles 36 – 38 of the Federal Law On the Prosecutor's Office of the Russian Federation” in compliance with the norms of the Criminal Procedural Code of the Russian Federation.
Keywords:
imperfections of legislation, criminal case, the jury, public prosecutor, prosecutor, prosecutor's office, judge, the court, problems, solutions
Reference:
Skoblik K.V..
The impact of technologies upon decision-making in criminal procedure: foreign research review
// Law and Politics.
2019. № 5.
P. 56-64.
DOI: 10.7256/2454-0706.2019.5.29477 URL: https://en.nbpublish.com/library_read_article.php?id=29477
Abstract:
In a systematized manner, this article addresses the most interesting from the author’s perspective findings of foreign scientists, emerged at the interface of technologies and criminal justice. The research covers the questions of selecting pre-trial restrictions, anticipation of committing crime, rapid response upon its commitment, and others. The unifying concept of the review is the theory of Fourth Industrial Revolution. Interpretation of the translated information is accompanied by the author’s analytics, connecting the ideas of foreign researchers and certain theories of national advocates of processualism. The following conclusions were made in the course of this study: 1) it is possible to combine computer aided learning with the patterns of selecting pre-trial restrictions proposed by the Russian scholars; 2) concentration of efforts on comprehension of technological innovations in penal sphere may lead to the creation of “Technological Model of the Criminal Process”.
Keywords:
algorithm, the Fourth Industrial Revolution, Models of the Criminal Process, machine learning, big data, decision-making, criminal process, predictive decision, cognitive decision, pretrial detention
Reference:
Shakhbazyan S.V..
Judicial change to the category of crime: “for” and “against”
// Law and Politics.
2018. № 11.
P. 31-40.
DOI: 10.7256/2454-0706.2018.11.27569 URL: https://en.nbpublish.com/library_read_article.php?id=27569
Abstract:
This article discusses the controversial questions emerging in the context of judicial implementation of the Part 6 of the Article 15 of the Criminal Code of the Russian Federation on changing the grade of the crime for a less grave. The author identifies certain problems in legislative regulation pertinent to the transformation of the category of crime, and suggests the ways for their elimination. Part 6 of the Article 15 of the Criminal Code of the Russian Federation is viewed through the prism of liberalization and humanization of the criminal legislation. The author notes that the declared vector of liberalization and humanization of the criminal legislation can be realized via introducing the corresponding amendments into the Criminal Code and Criminal Procedure Code of the Russian Federation. The main conclusion of this research lies in the fact that the enforcement of the Part 6 of the Article 15 of the Criminal Code of the Russian Federation leads to a number of the criminal legal and criminal procedural issues that contribute to the accomplishment of objectives of the Criminal Code of the Russian Federation. The author underlines that the ambiguity of the legislative formulation casts a doubt on its unambiguous application. In case of revealing contradictions between the criminal and criminal procedure legislations, the priority should take the norms of substantive law, i.e. the Criminal Code of the Russian Federation, while the Criminal Procedure Code of the Russian Federation should be brought into accord with the criminal law.
Keywords:
nature of public danger, criminal policy, liberalization of legislation, humanization of legislation, judicial discretion, category of the crime, degree of public danger, practice of the court, crime, doctrine of criminal law
Reference:
Topilina T..
Validity of the expert testimony in criminal procedure
// Law and Politics.
2018. № 8.
P. 13-27.
DOI: 10.7256/2454-0706.2018.8.27158 URL: https://en.nbpublish.com/library_read_article.php?id=27158
Abstract:
The subject of this research is the norms of the Russian and foreign legislation that regulate the validity of expert testimony in criminal procedure. The object of this research is the legal relations emerging in the course of verification and assessment of expert testimony from the perspective of its validity in criminal procedure. The author carefully examines the criteria of validity of expert testimony in the Russian Federation and the United States. Special attention is given to the criterion of general recognition of expert methodology. The author also reviews the question of the use of specialist opinion for contesting the expert testimony from the standpoint of validity. Based on the conducted analysis, the author states that unlike the U. S. legislation, the Russian legislation does not contain the requirements for validity of the expert testimony, which results in the absence of any competition between the criminal case experts. The author’s main contribution to the research of this topic consists in analyzing the criterion of the general recognition of methodology for settling the question of validity of the expert testimony in criminal procedure.
Keywords:
EXPERT, THE RELIABILITY OF THE EXPERT TECHNIQUE, THE USE OF EXPERT METHODS, THE EVALUATION OF THE EXPERT, EVALUATION OF THE RELIABILITY OF EVIDENCE, JUDICIAL EXAMINATION, SPECIAL KNOWLEDGE, LEGAL EXPERTISE, EXPERTISE, EXPERT OPINION
Reference:
Kripinevich S.S..
Preparation for hearing of motion on investigative procedure in the criminal procedural law of the Russian Federation
// Law and Politics.
2018. № 6.
P. 1-7.
DOI: 10.7256/2454-0706.2018.6.26387 URL: https://en.nbpublish.com/library_read_article.php?id=26387
Abstract:
The object of this research is the criminal procedural relations forming in the course of preparation for trial within pretrial procedure on criminal cases, including hearing of motions on investigation. The author points out that certain aspects of judicial activity in such legal and social significance remain without proper attention from the legislator. The subject of the research is the institution of trial preparation. Its most interesting aspect is the differentiation of this institution, consequences of this process and its manifestation in the criminal procedural legislation. The author formulates proposals that would allow organizing the procedural work of the judge and other parties in the trial at the pretrial stage of the criminal procedure, including hearing of motions on investigation. Original proposals are devised and substantiated by the author pertaining to the form of realization of the pretrial preparation institution for hearing motions on investigation during pretrial in criminal cases.
Keywords:
regulation, norm, branch of law, criminal procedural law, solicitation, lex, jurisprudence, classification of legal institutions, law, investigative actions
Reference:
Ivanova I.A..
Subjective interest in administrative judicial procedure: problems of law enforcement
// Law and Politics.
2018. № 6.
P. 50-55.
DOI: 10.7256/2454-0706.2018.6.26489 URL: https://en.nbpublish.com/library_read_article.php?id=26489
Abstract:
The subject of this research is the category of subjective interest in administrative judicial procedure. The article analyzes the regulation of the Article 128 (Section 3, Part 1) of the Code of Administrative Judicial Procedure of the Russian Federation that stipulates refusal in accepting an administrative statement of claim in determining by the court the lack of legal interest of an administrative plaintiff. The author considers the scientific positions and the practice of superior courts on the question of establishing by the court of legal interest of an administrative plaintiff in the absence of partied, as well as analyzes the question of interpretation of the concept of subjective interest of an administrative plaintiff, including in legal relations on environmental protection. The following conclusions were made in the course of this work: the question on subjective interest in administrative judicial procedure can be a separate object of dispute, and a plaintiff must be afforded an opportunity to adduce evidence in order to substantiate the presence of interest. The court refusal in accepting administrative statement of claim is inadmissible in case of potential violation of the socially important interests, which can affect the interests of an administrative plaintiff. The author’s special contribution lies in conclusion on the need for adopting clarifications by the Supreme Court of the Russian Federations on the extensive interpretation of the Article 11 of the Federal Law “On Environmental Protection”.
Keywords:
Supreme Court's case-law, environmental, preventive claim, Constitutional Court's case-law, administrative procedure Code of the Russian Federation, subjective right, personal interest, Administrative judicial procedure, challenging regulations, subject of law
Reference:
Chirninov A.M..
Evaluation of proof in the constitutional judicial procedure of Russia and United States: arbitrary assessment of evidence or standards of proof?
// Law and Politics.
2018. № 2.
P. 1-8.
DOI: 10.7256/2454-0706.2018.2.25280 URL: https://en.nbpublish.com/library_read_article.php?id=25280
Abstract:
The article examines approaches to the assessment of evidence used by Russian and American courts. The main purpose of the paper was to identify the distinctive features of judicial review of legislation that a lawmaker should take into account while selecting optimal rules for the assessment of evidence in constitutional litigation. The author pays particular attention to the epistemological foundations and procedural aspects of a direct perception of evidence that leads to a conclusion on whether or not facts at issue exist. Using methods of comparative law and analyzing in detail the rules on the assessment of evidence, he determines the historical reasons why Russia adopted the concept of free evaluation of evidence, whereas the United States opted for the objective standards of proof, such as «preponderance of the evidence», «clear and convincing evidence», and «beyond a reasonable doubt». The article demonstrates that rules on the assessment of evidence should take into consideration the structural properties inherent to constitutional litigation, including the consequences of the constitutional decision-making process, the necessity to decide constitutional cases on a probabilistic basis, and the generalized nature of facts affecting the constitutionality of laws.
Keywords:
constitutional justice, inquisitorial system of justice, adversarial system of justice, standards of proof, free evaluation of evidence, constitutional litigation, assessment of evidence, legislative fact, probability, relevance of evidence
Reference:
Kripinevich S.S..
Institution of preparation for trial in the Russian criminal procedure law and prospects of its development
// Law and Politics.
2018. № 1.
P. 48-55.
DOI: 10.7256/2454-0706.2018.1.24937 URL: https://en.nbpublish.com/library_read_article.php?id=24937
Abstract:
The institution of preparation of criminal cases for trial is defined by the order of procedural actions and procedural decisions at the time of transfer of the criminal case from the prosecutor’s office to the court. The results of the corresponding criminal procedure work of the authorized subjects are defined by the efficiency of trial of the criminal case in court, including such aspect as speediness of trial of the criminal case. The importance of the procedural tasks before the institution of preparation of criminal cases, the need for optimization of the ways and means of their solution actualizes the academic research on the corresponding issues. One of the factors contributing to current increase of academic interest towards this institution is the development of judicial work at the pretrial stages, which seems to require advancement and normative formalization of the precepts of preparation for trial in cases submitted to court by the parties of the criminal justice according to the Article 125 of the Criminal Procedure Code of the Russian Federation, recommendation of the branch of preliminary investigation on detective work, execution of preventative measures, etc.
Keywords:
Pretrial, Legal norms, Trial, Jurisprudence, Law, Judicial process, Court session, Preparation, Institution, Criminal procedure law
Reference:
Timoshina E.V..
Methodology of judicial interpretation: genesis and evolution of realistic approach
// Law and Politics.
2017. № 12.
P. 1-13.
DOI: 10.7256/2454-0706.2017.12.25079 URL: https://en.nbpublish.com/library_read_article.php?id=25079
Abstract:
The subject of this research is the processes and genesis of the evolution of realistic approach towards the methodology of judicial interpretation in comparison to formalistic style of judicial interpretation. Based on the references of the works of the representatives of the school of free will, American and Scandinavian legal realism, as well as modern neorealism, the author determines the key characteristics of the genesis and evolution of realism as a style of judicial interpretation, expounds the trends of its development, answers the question of causes for the leading position of this approach in the modern legal doctrine, primarily in other countries, as well as the policy of judicial interpretation. The novelty of the conducted research consists in determining the trends of evolution of the realistic approach, which evolved (1) from recognition of ambiguity of the meaning of the legal text as the object of interpretation – to the thesis on excessiveness of text for execution of the act of interpretation; (2) from recognition of allowability of textual substitution of interpretation – to establishing the exclusivity of creative interpretation as a specific function of the court; (3) from recognition of limitation of the cognitive function of interpretation – to establishing voluntaristic nature of the act of interpretation; (4) from recognition of institutional limitations, placed on the courts by the principle of delegation of power – to establishment of judicial authority as a new subject of sovereignty.
Keywords:
judicial law-making, the school of free law, judicial formalism, the neorealist theory of interpretation, legal realism, methodology of judicial interpretation, creative interpretation, legal positivism, revived natural law, constitutional justice
Reference:
Belikova K.M..
Some aspects of marriage and family relations of India from the position of the courts
// Law and Politics.
2017. № 9.
P. 52-61.
DOI: 10.7256/2454-0706.2017.9.23629 URL: https://en.nbpublish.com/library_read_article.php?id=23629
Abstract:
The subject matter of this article comprises legal aspects of marriage and divorce relations of India - one of the biggest partners of Russia – from the position of Indian courts to the questions of procedural resolution of such relations. Marriage and family are the most traditional legal institutions, but even they have changed over time. The article covers the most important facets of the functionality of marriage and family relations – marriage and divorce. The author comes from the subjective-objective orientation processes and phenomena in the surrounding world. From this position, the author uses general scientific methods (system analysis and synthesis of normative and practical materials, etc.) and special legal methods of legal research (comparative, of interpretation of legal norms, etc.). The main conclusions of the research are that approaches vary depending on the personal status of spousal approaches to several issues in the field of marriage and family relations: alimony, consideration of needs of one of the divorcing spouses (usually women), etc. These differentiated approaches provide obstacles to the creation of a uniform regime of such relationship while the case law follows life, filling norms with content that is adequate to life, in order to give full protection to the rights of the spouse receiving support. The results presented in this article are the source of relevant and up to date information about the existing law of one of the fastest growing countries in the world, and thus can be useful for practitioners with ties to India, as well as law enforcement bodies in Russia. It also serves as a source of valuable information that enriches the domestic private law.
Keywords:
alimony, property, courts, personal status, legal precedent, divorce, family, marriage, India, children
Reference:
Belikova K.M..
The role of judicial interpretations in development of matrimonial law in the People’s Republic of China (certain aspects)
// Law and Politics.
2017. № 7.
P. 48-55.
DOI: 10.7256/2454-0706.2017.7.23430 URL: https://en.nbpublish.com/library_read_article.php?id=23430
Abstract:
The subject of this article is the legal aspects of matrimonial relations in of the largest partners of Russia – China, from the perspective of determining the role of judicial interpretation in evolution of the procedural practice in this sphere. The traditional family law is considered a legal branch that is less affected by changes; however, the changes take place. The author covers the most essential aspects of functionality of the matrimonial relations – since the conclusion of marriage up until divorce. Special attention is given to the question of appraisal of judicial interpretation by the citizens of People’s Republic of China. The author leans on the subjective-objective set of the processes and phenomena in the surrounding world. The main conclusion of the conducted research lies in the position that under the conditions of ambiguity and contradiction of the approaches of legislation and judicial practice, people themselves take on the protection of their rights. Results of the work serve as a source of relevant information on the acting law of one of the dynamically developing countries of the world, and thus, can be valuable for the practitioners who maintain ties with China, as well as the law enforcement agencies in Russia; it also enriches the science of the national private law.
Keywords:
property jointly owned, spouses, judicial Interpretations, litigation, divorce, family, marriage, China, personal property, community property
Reference:
Bagautdinov R.R..
Complex approach towards unification of the norms of civil and arbitrary procedures
// Law and Politics.
2017. № 3.
P. 30-36.
DOI: 10.7256/2454-0706.2017.3.21587 URL: https://en.nbpublish.com/library_read_article.php?id=21587
Abstract:
The subject of this research is the application of complex approach towards unification of the norms of civil and arbitrary procedures, as well as consideration of the international experience, successful, implementation of civil law institutions within one group of countries that are unique to these countries, results of scientific examination, historical experience, and account of the established judicial practice in their combination and interconnection as the single complex of conditions necessary for exclusion of the conflicts in unification of the norms of civil and arbitrary procedures in the Russian Federation. The main conclusion of the conducted research consists in the following: there is a need for taking into account the cross-sectoral vector of development and improvement of law, and because the norms of substantive law are closely related to the norms of procedural law, as well as are mutually complementing, emerges the demand in organization of the lawmaking process, considering a specific doctrine. The author suggest systematization of the scientific examination on unification of the norms of civil and arbitrary procedures according to the doctrinal affiliation for the appropriate understanding of applicability of the context of solution, proposed by the result of the research.
Keywords:
paradigm of civil procedure , concept of the Unified Civil Procedural Code of the Russian Federation, context of solutions, complex approach, systematic approach, systematization, harmonization of procedural law, civil procedure law, reform of the civil law, codification
Reference:
Danielyan A.S..
Role and importance of the Supreme Court of Israel in organization and functioning of the national legal system
// Law and Politics.
2017. № 3.
P. 86-95.
DOI: 10.7256/2454-0706.2017.3.22217 URL: https://en.nbpublish.com/library_read_article.php?id=22217
Abstract:
This article describes the evolution of cultural and legal views of the Supreme Court, which served as a starting point in formation and maintenance of the constitutional rights and freedoms in the Israeli society. The author examines the main stages of the Israeli Supreme Court, as well as provides a description of the main elements that influenced the formation of modern image of the Supreme Court and its role in establishing the legal culture of Israeli society. Particular attention is given to the transformation that took place in the work of the highest judicial authority of the State of Israel over the period of 1980-1990, which consists in transition towards the policy of judicial activism. The goal of the research lies in examination of activities of the Supreme Court of Israel, the analysis of the Court's role in the national legal system and its impact on the legal culture of the Israeli society. Based on the result of this work, the author concludes that the Supreme Court of Israel has played an important role in establishing and ensuring the constitutional rights and freedoms to Israeli society, and until present day, is the founder of legal innovations in the country.
Keywords:
legal convergence, case law, common law, mixed jurisdiction, Supreme Court, Israeli legal system, Israel, legal environment, judicial branch, judicial activism
Reference:
Reshetnyak V.I..
E-justice in Australia’s civil process
// Law and Politics.
2016. № 12.
P. 1513-1517.
DOI: 10.7256/2454-0706.2016.12.52744 URL: https://en.nbpublish.com/library_read_article.php?id=52744
Abstract:
The subject of this research is the examination of the use of information technologies in judicial system of Australia. For implementation of the new ways of handling cases, improvement of the access to the system of justice and increase of its efficiency, Australia’s judicial system develops the e-court strategy, which is called to encourage the achievement of goals of procedures, as well as provides multiple new opportunities, for example: informing citizens and lawyers about the work of courts in its various manifestations; ensuring accessibility of court rulings in civil cases for broad range of public; electronic data maintenance; electronic court filing; “online court proceedings”; system of case management; communication and circulation of documents between the court and the participants of the process or parties in the judicial procedure; substantiation by the parties of their position, creation of factual material, and provision of evidence to the court in the course of the legal case. The author demonstrates that the use of information technologies allows reducing the time required to conclude the case, decrease the cost of the procedure, simplify the process, as well as ensure the openness and accessibility of the court, increase efficiency of justice on civil cases. The conclusion is made that under the current conditions, the improvement of judicial system, including Russian, is associated with the development of information and communication technologies and their impactful use in the legal field.
Keywords:
Parties, Court case, Australia’s judicial system, Russia’s legal system, System of electronic filing, Openness of the court, Efficiency of justice, E-justice, Information technologies, Civil process
Reference:
Papina M.A..
Implementation of the Articles 12, 75, and 225 of the Arbitration Procedural Code of the Russian Federation by the arbitration courts: certain issues
// Law and Politics.
2016. № 11.
P. 1346-1350.
DOI: 10.7256/2454-0706.2016.11.52721 URL: https://en.nbpublish.com/library_read_article.php?id=52721
Abstract:
This article represents an attempt to determine the existing gaps in legislation of the Russian Federation, as well as suggests the ways for their solution within the framework of protection of rights of the Russian and foreign citizens and legal entities. The goal of this research is the comprehensive reconstruction of the process of implementation of the international treaties of the Russian Federation and national legislation, using translation of the written evidence by arbitration courts in Russia. Generalizations and conclusions contained in this work can be applied in development of the course of lectures regarding the issues of the international private law; delivering lectures of the arbitration procedure guidelines; preparation of textbooks on international private law and arbitration procedure in the Russian Federation; and further scientific formulation of the topic. The article is written based on generalization of the extensive judicial practice of the arbitration courts, comparative-contrastive analysis of the Constitution of the Russian Federation, corresponding bilateral, regional, and multilateral agreements and conventions. The topic of the use of the documents comprised by the courts in foreign languages has always been of great interest for the Russian science. However, only individual chapters of textbooks or articles were dedicated to this problematic. At the same time, the emerging questions were usually examined in the context of separate scientific disciplines (arbitration procedure, international private law, etc.). Relevant issues such as forwarding of the court decisions in address of the foreign courts and execution of the instructions from foreign courts, as well as recognition of foreign documents by a court of the Russian Federation that reviews certain arbitration cases, require detailed examination. The results of the research fulfil the lack of information pertaining to the role of the interpreter in practice of the arbitration courts of the Russian Federation. It is necessary to pass the Federal Law of the Russian Federation “On State Interpreters”. The solution of the stated problem will allow ensuring legal support of the citizens of Russia in the constantly changing market circumstances.
Keywords:
Diploma, State civil service, Legal aid, Written evidence, Notary, Interpreter, Judicial system, Foreign entity, Legislation, International treaties of the Russian Federation
Reference:
Idirov E.I..
On some issues of improving the work of a magistrate in the Republic of Kazakhstan
// Law and Politics.
2016. № 10.
P. 1313-1317.
DOI: 10.7256/2454-0706.2016.10.52717 URL: https://en.nbpublish.com/library_read_article.php?id=52717
Abstract:
The subject of this research is the procedural work of magistrates introduced into the Criminal Code of the Republic of Kazakhstan from the beginning of 2015. The author draws attention to the fact that the scope of authority of the new procedural figure is not sufficient for proper and independent execution of judicial control at the pretrial stage of criminal process. Portion of authority by the new Criminal Procedural Code of the Republic of Kazakhstan was also part of the competency of the court. Based on this fact, the author proposes a comprehensive solution to the issues of improving the work of the magistrate. Among the main conclusions of the conducted research are the proposals for improvements to the work of magistrates, which are not completely verified from the perspective of scientific substantiation and practical implementation, but have the goal to attempt to examine the benefits and flaws of the new institution to ensure protection of citizens, improvement of the quality of the pretrial investigation, and judicial control at the pretrial stage of the judicial process.
Keywords:
Control over investigation, Justice, Sanctioning, Judicial control, Pretrial process, Criminal Procedural Code of the Republic of Kazakh, Criminal procedure, Magistrate, Judge, Court
Reference:
Brezhnev O.V..
Establishment and research of the factual circumstances at the constitutional legal proceedings: theoretical and practical issues
// Law and Politics.
2016. № 9.
P. 1155-1161.
DOI: 10.7256/2454-0706.2016.9.52697 URL: https://en.nbpublish.com/library_read_article.php?id=52697
Abstract:
The subject of this research is the legal relations, arising in the sphere of constitutional legal proceedings in establishing and researching the factual circumstances of the case. In comparative terms the author shows the amount of the factual circumstances, researched at various stages of the constitutional justice, and reveals the procedural specifics of their establishment, depending on the organizational form of constitutional legal proceedings and features of the concrete power of the Constitutional Court of the Russian Federation. Emphasis is made on the difference between the constitutional legal proceedings in respect to the establishment and research of the factual circumstances and other procedural forms of the judicial power. Based on an analysis of the legislation and judicial practice the author determines an auxiliary and subsidiary role of the factual circumstances in the course of the proceedings, subordinate to the Constitutional Court. Taking into account the prospects of development of justice in Russia the author demonstrates the procedural means for the establishment of these circumstances, highlights the most significant current trends regarding the impact of the need to research the factual circumstances to determine the competence of the body of constitutional control.
Keywords:
justice, powers, norm, constitution, inquiry, legislation, factual circumstances, court, proceedings, process
Reference:
Lichidov A.A..
Claim on recognition of real right as non-existent in disputes on the rights to real estate
// Law and Politics.
2016. № 9.
P. 1149-1154.
DOI: 10.7256/2454-0706.2016.9.52696 URL: https://en.nbpublish.com/library_read_article.php?id=52696
Abstract:
This article examines the problematic issues pertaining to means of defense of civil rights. The author explores the possibility of defense against violation of rights through the means unlisted in the Russian Civil legislation, as well as the practice of their application in arbitration courts. Analysis is conducted on the points of views that exist in legal literature regarding the discussion on applicability of the norms on laches towards the demand for recognition of the right to ownership and claim to recognition absence of the real right. This work raises the issue of the possibility of application of claim to recognize the absence of real right in liability dispute. The author also examines the issue of implementation of the term of laches on claims to recognize the absence of real right, as well as the justification of the possibility to apply this term in a claim. A comparison is made between the declaratory judgment and nugatory claim.
Keywords:
Real estate, Laches, Dispute, Real right, Real action, Claim, Declaratory judgment, Court, Civil law, right
Reference:
Zheldybina T.A..
Judicial practice and legal precedent: acceptance as the source of law in light of modernization of lawmaking in Russia
// Law and Politics.
2016. № 8.
P. 1060-1067.
DOI: 10.7256/2454-0706.2016.8.52685 URL: https://en.nbpublish.com/library_read_article.php?id=52685
Abstract:
The problem of judicial lawmaking is one of the relevant for the modern legal science. The subject of this research is judicial practice and legal precedent as the possible, acceptable, and valid sources of Russian law. The goal of this work consists in development of the theoretical positions, which contain substantiation of the importance of the official recognition of judicial practice and legal precedent as the sources of law in the conditions of promotion of the judicial reform along with the work on harmonization of legislation. The scientific novelty lies in the fact that this article is first to examine a complex of questions pertaining to inclusion of the judicial practice and legal precedent into the ranks of the sources of law in light of modernization of the Russian lawmaking. The author suggests theoretical positions and practical recommendations which allow developing the doctrine of judicial practice and legal precedent in Russia.
Keywords:
Internationalization of legislation, Globalization of law, Judicial authority, Law enforcement, Judicial legal provisions, Sources of law, Lawmaking, Prejudice, Legal precedent, Judicial practice
Reference:
Panokin A.M..
Examination of new evidence in the court of appeals
// Law and Politics.
2016. № 7.
P. 902-909.
DOI: 10.7256/2454-0706.2016.7.52666 URL: https://en.nbpublish.com/library_read_article.php?id=52666
Abstract:
This work studies the issues of proof in the court of appeals, namely the questions of examination of new evidence, which received the assessment of the court of first instance, examinations on file that were not examined by the court of first instance, as well as examinations by the same rules of new evidence presented by the parties. An important place belongs to the analysis of the normative legal regulations and legal positions of the Constitutional Court of the Russian Federation, Plenum of the Supreme Court of the Russian Federation, and courts of appeal of a number of the constituents of the Russian Federation on the issue of examination of new evidence in the courts of appeal. The author makes a conclusion on the need to overcome the current practice of hearing of a case in a court of appeals without examination of evidence, which does not allow to increase the level of legal protection of rights, freedoms, and legal interests of citizens and organizations involved in the sphere of criminal procedure that are guaranteed by the Constitution of the Russian Federation and federal laws.
Keywords:
Proof, Verification of evidence, Examination of evidence, Additional materials, Cassation, New evidence, Evidence, Court of appeals, Court of first instance, Appeal
Reference:
Filimonov I.A., Filimonov A.A..
Theory and practice of punishment in the form of deprivation of the right to hold certain positions or engage in certain activities
// Law and Politics.
2016. № 6.
P. 754-760.
DOI: 10.7256/2454-0706.2016.6.52648 URL: https://en.nbpublish.com/library_read_article.php?id=52648
Abstract:
The authors consider the law enforcement aspects of the sentencing in the form of deprivation of the right to hold certain positions or engage in certain activities as a punishment for certain crimes. In the course of the investigation the authors used the formal-logical method, systemic analysis, comparative law, questionnaires, surveys and statistical method. The authors draw attention to the need to increase the application of the penalty of deprivation of the right to occupy certain positions or engage in certain activities as an additional punishment in cases of corruption offenses. It is noted that in a number of articles of the Special Part of the Criminal Code specifies commission of a crime by a person using his official position is an aggravating circumstance, but the penalties do not list the aforementioned method of punishment. The authors substantiate the feasibility of introducing sanctions in a number of articles of the Special Part of the Criminal Code the penalty of deprivation of the right to occupy certain positions or engage in certain activities as a mandatory additional penalty. Proposals are made to appointment of punishment in the form of deprivation of the right to occupy certain positions or engage in certain activities of punishment by restricting the scope of the prohibition, in particular by reference to the performance of specific powers (for example, healthcare workers).
Keywords:
imposition of sentence, criminal penalties, crime, officer, work, title, deprivation of rights, sentence, official authority, legal precedent
Reference:
Yarovenko V.V..
Participation of attesting witnesses in an investigation
// Law and Politics.
2016. № 6.
P. 746-753.
DOI: 10.7256/2454-0706.2016.6.52647 URL: https://en.nbpublish.com/library_read_article.php?id=52647
Abstract:
The subject of this research is the legal regulation of the participation of the attesting witnesses in investigations. The author gives attention to the legislative changes of the institution of attesting witnesses in Russia, which prompted a discussion among both, scholars and legal professionals. The article explores various opinions of scholars and the investigative-legal practice of investigative work involving attesting witnesses. An undefined, and an important from the practical point of view factor, is the questioning of the attesting witness on the witness stand and acceptance of their statement as proof. The author comes to the conclusion that there is a need for changes in the participation of attesting witnesses in investigations with consideration of the realities of today. A guarantee of the validity of evidence will in time be ensured by use of technological means of recording of facts used by the investigators and specialists, rather than by participation of attesting witness in investigations. In order to exclude the problem of validity of the recording of evidence via technological means, it is necessary to implement Part 2 of the Article 303 of the Criminal Code of the Russian Federation, which establishes responsibility of the detectives and investigators for falsification of evidence.
Keywords:
Testimony, Investigation, Evidence, Attesting witness, Protection, Recording, Technological means, Court, Investigator, Inquiry
Reference:
Kurza N.V..
Problems of judicial interpretation of the provisions of administrative regulations in implementation of administrative procedure
// Law and Politics.
2016. № 5.
P. 626-631.
DOI: 10.7256/2454-0706.2016.5.52633 URL: https://en.nbpublish.com/library_read_article.php?id=52633
Abstract:
The subject of this research is the judicial practice in cases that challenge the provisions of administrative regulations. In connection with the entry into force of the Administrative Procedure Code of the Russian Federation the practice is in its infancy, and we can see the transformation of the judicial interpretation of disputes in cases arising from public relations. Administrative Regulations establish the procedures for the implementation of certain types of state control, and as such, may limit the rights and legal interests of citizens and organizations. The object of this research is public relations arising in the sphere of protection of the rights and freedoms of citizens in the courts. The author carefully examines the features of the administrative regulations as regulatory legal acts. The scientific novelty of this research is substantiated by the author's approach to the establishment of the legal nature of administrative regulations, as well as identification of the prerequisites for increasing the quality of these legal regulations. Summarizing the practice of the Constitutional Court of the Russian Federation and the Supreme Court, the author makes a number of proposals aimed at optimization of overcoming gaps in administrative regulations by means of judicial interpretation. Key findings of the study concern the issues of increase of efficiency of the administrative proceedings.
Keywords:
constitutional control, legal certainty, administrative jurisdiction, court, administrative regulations, legal regulation, normative legal act, judicial interpretation, administrative claim, public service
Reference:
Abdulin R.S..
The place and role of the Plenum of the Supreme Court of the Soviet Union (RSFSR) and Russian Federation within judicial administration
// Law and Politics.
2016. № 5.
P. 619-625.
DOI: 10.7256/2454-0706.2016.5.52632 URL: https://en.nbpublish.com/library_read_article.php?id=52632
Abstract:
This article is dedicated to the place and role of the Plenum of the Supreme Court of the Soviet Union (RSFSR) and Russian Federation within judicial administration and internal systemic administration of the modern judicial authority. The author raises the question about the legal nature of the ruling positions of the Plenums of the Supreme Court of the Soviet Union (RSFSR) and Russian Federation, since there is no concurrence on this matter and the issue continues to remain controversial. The author comes to the conclusion that the status of the rulings of the of the Plenums of the Supreme Court of the Soviet Union (RSFSR) and Russian Federation is not correctly formulated within legislative acts. The competency of the Plenum – “de jure” is the interpretation and clarification of the acting legislation, while “de facto” is practically the current authority of judicial administration, which combines various branches of cognition and administration. The scientific novelty is established by the very posing of the question and by the fact that the goals and tasks in this article have not yet been approached from this perspective within Russian juridical science. The author makes an attempt to understand the process of activity of this collegial branch within judicial administration during the Soviet era and the internal systemic administration of the present time.
Keywords:
judicial community, modern era, Soviet, systemic administration, judicial administration, Plenum, Supreme court, juridical nature, interpretation and clarification, administrative body
Reference:
Baryshev E.O..
The case of «Furman v. Georgia» and its influence on the advancement of the institution of the death penalty in the USA.
// Law and Politics.
2016. № 3.
P. 380-387.
DOI: 10.7256/2454-0706.2016.3.52605 URL: https://en.nbpublish.com/library_read_article.php?id=52605
Abstract:
The subject of this research is a review of the legal aspects of cases of «Furman v. Georgia», «Gregg v. Georgia» and other significant cases having influenced the development of the institution of the death penalty in the United States of America in the second half of the XX century. The author elaborates the history of the case of «Furman v. Georgia», discusses social and legal prerequisites for the imposition of a moratorium on the death penalty in 1972 and its abolition in 1976. A special attention is paid to the analysis of positions of judges of the Supreme Court of the United States and post-Furman trends. The main methods of the research are formal-legal and comparative-legal. The work is based on the analysis of the key cases of the Supreme Court of the United States. Significant emphasis is given to consideration of the evolution of the issue by using the historical method. The main conclusions of the research are the following: 1) the introduction of a temporary moratorium on the death penalty in the USA was a necessary stage in the legal evolution; 2) the pause was necessary for the reforming of criminal procedure legislation, solving urgent socio-legal problems connected with the death penalty. The novelty of this research consists of the fact that previously in Russian literature the issue of imposition and subsequent abolition of the moratorium on the death penalty in the United States has not been studied comprehensively. The author concludes that it is unlikely that in the future the question of the constitutionality of the death penalty in the US will come under the question, as there is a trend of improvement of legal procedure was set in the second half of the XXth century.
Keywords:
Furman v. Georgia, Miranda warning, Amendments to Constitution, U. S. Constitution, U. S. Supreme Court, Moratorium, Verdict, Death penalty, The United State of America, Gregg v. Georgia, Gregg v. Georgia, Furman v. Georgia, Miranda Warning, Amendments to Constitution, United States Constitution, Supreme Court, Moratorium, Sentence, Capital punishment, The United States
Reference:
Nasonov S.A..
Disagreement with the guilty jury verdict: comparative law and theoretical methods.
// Law and Politics.
2016. № 2.
P. 248-253.
DOI: 10.7256/2454-0706.2016.2.52591 URL: https://en.nbpublish.com/library_read_article.php?id=52591
Abstract:
The article is devoted to possibilities of the disagreement of the professional judge (or a chamber) with a guilty verdict of the jury and procedural mechanisms of realization of such disagreement.The article discusses three procedural models of realization of disagreement of the professional judge with a guilty verdict of the jury: the abolishment of the verdict by a chief judge (or a chamber); the adherence of a chamber of professional judges to the minority of jurors; the annulment of the verdict in the Court of Appeal.The first model is characterized by the ability of a chief judge to cancel the jury's verdict and give a sentence contrary to it (the Anglo-American procedure in the jury trial) or discharge the jury and begin the process again (continental process).The second model is enshrined in Belgian legislation and alleges the possibility of summing up votes of professional judges with the minority of jurors (who voted for acquit) and give an acquittal verdict by a simple majority of votes. The author believes that this procedure is a guarantee following from the presumption of innocence.The third model of a disagreement with a guilty verdict of the jury arises from specifics of an appeal in countries with Anglo-Saxon type of criminal proceeding, allowing the abolition of a guilty verdict on certain foundations. The author examines the legislative regulation of the possibility of disagreement of the presiding judge with a guilty verdict according to the CPC of the Russian Federation and certain problems arising in the judicial practice.
Keywords:
jurors, jury verdict, incontestability of the verdict, chief judge, sentence, acquittal verdict, guilty verdict, acquittal sentence, abolishment of the verdict, judgment
Reference:
Belikova K.M..
Some issues of labor dispute-settlement with participation of a foreign element within the BRICS countries: the example of Brazil and China
// Law and Politics.
2016. № 1.
P. 107-115.
DOI: 10.7256/2454-0706.2016.1.52576 URL: https://en.nbpublish.com/library_read_article.php?id=52576
Abstract:
The article touches upon certain issues of labor dispute-settlement with participation of a foreign element within the BRICS countries on the example of Brazil and China – two countries that have diametrically opposite views on the approaches to such a settlement, while reaching, at times, similar results. The author's attention is concentrated on the litigation and conciliation-arbitration methods of resolving disputes in the context of the court–based and out-of-court (prejudicial) forms of settlement, as well as subjective-objective predetermination of any processes. Scientific novelty of the research is determined by the fact that this work is essentially the first comprehensive and systematic study of the problems of legal framework of labor relations complicated by a foreign element within the BRICS countries in modern conditions. The problems of Russia and foreign member-states of the BRICS - Brazil, India, China and South Africa – have been recently attracting the attention of economists, scientists, and politicians. However, the article contains the results of solving fundamentally different tasks, thus current scientific material and labor laws two of the five BRICS countries have been collected and analyzed in the context of labor dispute-settlement within their legal orders.
Keywords:
out-of-court settlement, BRICS, Brazil, China, Labor law, Foreign element, labor disputes settlement, settlement in court, ILO Conventions, adjudication
Reference:
Karasev R.E..
Decisions of the Constitutional Court of the Russian Federation: problems of execution
// Law and Politics.
2015. № 12.
P. 1719-1727.
DOI: 10.7256/2454-0706.2015.12.52557 URL: https://en.nbpublish.com/library_read_article.php?id=52557
Abstract:
The subject of this research is the public relations pertaining to executions of the decisions of the Constitutional Court of the Russian Federation. The article examines the questions of juridical power of the decisions of the Constitutions Court of the Russian Federation, their direct effect, the legal mechanism of the execution of the decisions of the branches of constitutional review, including the duties of the competent branches on amendments to the legislation in accord with the legal positions of the Constitutional Court, as well as the questions of responsibility for failure to carry out the decisions of the Constitutional Court of the Russian Federation. The author concludes that the current legislation does not provide the order of implementation of the decisions of the Constitutional Court of the Russian Federation, but does hold responsible the government branches and officials for execution of the normative legal acts in accordance with the Constitution and the legal position of the Constitutional Court that are ruled by the court as unconstitutional. Due to this fact, there is a need for correction of the current legislation that regulates the questions of execution of the decisions of the Constitutional Court.
Keywords:
Rights, Responsibility, Constitution, Constitutional Court, Judicial system, Constitutional review, Judicial authority, Efficiency, Execution, Liberties
Reference:
Gulemin A.N..
Towards e-government: foreign and international experience in e-justice
// Law and Politics.
2015. № 12.
P. 1714-1718.
DOI: 10.7256/2454-0706.2015.12.52556 URL: https://en.nbpublish.com/library_read_article.php?id=52556
Abstract:
This article presents the generalized analysis of the e-justice systems implemented and operating in the foreign countries, which characterize main trends of development of this process in the world. The author examines the most successful projects of e-justice systems on Singapore, Turkey, Croatia, and Belgium. The key principles of functioning of this systems, as well as characteristic features of each system are being determined. It is ascertained that the development of e-justice systems in foreign countries is taking place within the framework of such large projects as e-management, and complies with the general goal of simplification of cooperation between the citizens and government authorities. In the course of this research, the author indicates the positive, as well as the negative aspects of implementation of the e-justice system. In terms of using the e-justice, professional lawyers become practically the necessary intermediaries between the citizens and the judicial authority, which can hinder the access to justice and increase the court costs of both sides. The implementation of such systems in impossible not only without introduction of changes into the current procedural codes, but also without a thorough analysis on all levels of threats to an individual, society, and the state from spread of such conduct of court proceedings.
Keywords:
civil proceedings, arbitration proceedings, information society, e-management, information systems, court proceedings, e-government, e-justice, information law, justice
Reference:
Brezhnev O.V..
Authority of the constitutional (charter) courts of the constituents of the Russian Federation associated with the abstract normative control: general and special within legal legislation
// Law and Politics.
2015. № 11.
P. 1558-1566.
DOI: 10.7256/2454-0706.2015.11.52532 URL: https://en.nbpublish.com/library_read_article.php?id=52532
Abstract:
The subject of this research is the legal norms of the constituents of the Russian Federation regulating the authority of the constitutional (charter) courts pertaining to abstracts normative control and order of their implementation. In a comparative sense the author demonstrates the general and special aspects characteristic to such regulation, as well as the problems that arise in the work of regional branches of the constitutional justice in implementation of corresponding norms. The work reveals the influence of the positions of the Federal Constitutional Law “On Constitutional Court of the Russian Federation” upon the legal regulation of this authority of the judicial branches of the constitutional (charter) control of the constituents of the Federation. Taking into consideration the prospects of development of the constitutional justice in Russia and the need to solve the issues of judicial reform, the author demonstrates the positive and problematic aspects of the legislative regulation of the competency of the constitutional (charter) courts of the constituents of the Federation, and notes the most significant trends emerging in the modern approaches towards the content of this institution.
Keywords:
justice, authority, norm, constitution, inquiry, legislation, Abstract normative control, court, proceedings, charter
Reference:
Nasonov S.A..
Continental model of jury trial proceedings: genesis and particularities of the procedure
// Law and Politics.
2015. № 11.
P. 1567-1572.
DOI: 10.7256/2454-0706.2015.11.52533 URL: https://en.nbpublish.com/library_read_article.php?id=52533
Abstract:
This article examines the genesis and evolution of the continental model of jury trial proceedings. The first historical form of continental model of jury trial emerged at the end of the XVIII century in France, after which it spread throughout virtually all of Europe in the XIX century. The work reveals the particularities of the continental model emerging throughout the stages of court trials and arguments; in the system of questions faced by the jury; jury verdicts. The author notes that the subject of court trial and arguments in the continental model were extremely broad; information about the identity of the defendant was examined with participation of the jury. The continental model of jury trial had an unbalanced defense and prosecution bases: the prosecutor possessed significantly greater rights that the defense, while the court had discretional authority in the area of evidence. At the same time, the jurors had a broad arsenal of rights in the criminal procedure and were allowed to take the evidence into the deliberation room. The author makes a conclusion that the research of the historical experience of the continental model of the court proceedings involving jury is important for the search of ways to improve this form of procedure in modern Russia.
Keywords:
verdict, jurors, pleadings, judicial enquiry, continental model, jury trial, question list, competitiveness, questioning, witness
Reference:
Shakhbazyan S.V..
Courts’ discretion to demote a charge to a lesser category of crime
// Law and Politics.
2015. № 11.
P. 1573-1576.
DOI: 10.7256/2454-0706.2015.11.52534 URL: https://en.nbpublish.com/library_read_article.php?id=52534
Abstract:
This article examines the positions of Part 6 of Article 15 of the Criminal Code of the Russian Federation (CCRF) on authority of the courts to lower the category of a crime, as well as the grounds and conditions for such decision. The author gives attention to the wide boundaries of the court’s discretion in making a decision in accordance with the Part 6 of Article 15, and analyzes law enforcement practice and clarification of the Supreme Court of the Russian Federation on this issue. This work presents criticism on the Federal Law No. 420-FZ regarding the amendment it made to the Part 6 of Article 15, which contains corruptogenic factors and contradicts Article 10 of the Constitution of the Russian Federation. The scientific novelty lies in the attempt to attract the attention of scientists and practicians to the problematic issues emerging in relation to the application of Part 6 of the Article 15, particularly: which procedural document should reflect the court’s decision to lower the category of a crime, and which juridical consequences could follow the court’s decision to change the category of a committed crime.
Keywords:
aggravating circumstances, mitigating circumstances, separation of powers, court decision, conciliation of parties, factual circumstances, conditions and grounds, crime category, categorization of crime, interpretation
Reference:
Vinokurov A.Yu..
Ruling No. 2-P of the Constitutional Court of the Russian Federation from February 17, 2015 and the importance of its resolutive part for the theory and practice of prosecutor’s supervision
// Law and Politics.
2015. № 10.
P. 1427-1432.
DOI: 10.7256/2454-0706.2015.10.52514 URL: https://en.nbpublish.com/library_read_article.php?id=52514
Abstract:
The subject of this study is the positions of the resolutive part of the ruling No. 2-P of the Constitutional Court of the Russian Federation, which, upon examination of complaints and results of a session, rendered a number of important positions, called to define the vectors of development of science in prosecution for the foreseeable future, as well as influence the correction of law enforcement practice in the work of prosecutors carrying out the oversight of law obedience. In the process of studying the key positions of the resolutive part of the examined ruling, the author compares the position of the Constitutional Court of the Russian Federation with the current law enforcement practice, as well as the theoretical views within prosecution. The main conclusions of the conducted research come to the fact the Constitutional Court of the Russian Federation in its ruling confirmed the legality of a number of current behavioral models of prosecutors in carrying out oversight of law obedience, and in some instances even exceeded expectations.
Keywords:
Lawfulness, Law obedience, Constitutional Court, Prosecutor’s office, Prosecutor’s power, Ruling, Legal position, Inspection, Prosecutor, Prosecutor’s supervision
Reference:
Stukonog I.V..
The limits of judicial control over the adherence to the principle of reasonable term for pretrial stages of criminal procedure
// Law and Politics.
2015. № 8.
P. 1134-1140.
DOI: 10.7256/2454-0706.2015.8.52477 URL: https://en.nbpublish.com/library_read_article.php?id=52477
Abstract:
The subject of this research is the institution of judicial control over the adherence to the reasonable term for pretrial stages of criminal procedure. The object of this research is the principle of reasonable term for criminal procedure, its definition and criteria set by the legislation, as well as judicial control as one of the acting mechanisms of its realization. The author gives a detailed review of such aspects of this topic as efficiency of the rules on reasonableness of the term for criminal procedure, and sufficiency of the enacted criteria of said principle of the procedure. The main conclusions of the conducted research are the theses on insufficient normative regulation of the limitations of judicial control over the adherence to the reasonableness of terms for pretrial stages of criminal procedure, including during review of complaints of violation of the procedural terms, the need for additional examination of the forming judicial practice even by the highest judicial branch on criminal cases.
Keywords:
Reasonable term, Criminal procedure, Judicial control, Procedural terms, Pretrial stage, Review of complaints, Participants of the criminal procedure, Court, Term of examination, Term of preliminary investigation
Reference:
Ponazhev Yu.O..
The problems resulting from dissolution of a loan agreement
// Law and Politics.
2015. № 6.
P. 843-847.
DOI: 10.7256/2454-0706.2015.6.52443 URL: https://en.nbpublish.com/library_read_article.php?id=52443
Abstract:
The subject of this research is the legal consequences resulting from dissolution of a loan agreement. The author examines the main methods of dissolving a loan agreement. This research presents an analysis of issues that emerge in legal precedent due to dissolution of loan agreements, including the information on which violations of a loan agreement can serve as sufficient grounds to request the dissolution, while the loan agreement can be dissolved as a result of significant changes in the circumstances. The article presents legal precedent on each of the means of dissolving a loan agreement. The author proposes criteria for allowing dissolution of a loan agreement due to significant violations of the agreement or changes in the circumstances. The author concludes that there are three main ways of dissolving a loan agreement, and states that the permissibility of dissolution of the credit agreement in each specific case can only be resolved by analyzing the legal precedent.
Keywords:
Legal relations, Loan agreement, Dissolution of a loan agreement, Termination of contract, Breach of contract, Change of circumstances, Early payoff, Unilateral refusal, Reimbursement of losses, Extending credit
Reference:
Gerasimova A.E..
The history and modernity of the principle of equal protection of the laws in the United States (on the example of overcoming racial discrimination)
// Law and Politics.
2015. № 6.
P. 840-842.
DOI: 10.7256/2454-0706.2015.6.52442 URL: https://en.nbpublish.com/library_read_article.php?id=52442
Abstract:
This article examines the issues associated with the history of emergence of the principle of equal protection of the laws throughout the period since the introduction of the 14th amendment to the U.S. Constitution until present time. Through the prism of legal precedent, the author analyzes such phenomena as discrimination and positive discrimination, the “positive measures” policy of the US government, and mechanisms of verification of presence or absence of signs of discrimination within any given act of the branches of government. The author makes a conclusion on the existence of two types of discrimination of African-American population: direct discrimination and positive discrimination. As a mechanism for deterring discrimination, the author examines the method of “strict scrutiny” formed by the legal precedent of the Supreme Court of the United States. This mechanism could be used to prevent discrimination in other social areas, thus its application could also enrich the Russian legal science and practice.
Keywords:
U.S. Constitution, USA, 14th Amendment, Supreme court of the United States, positive discrimination, discrimination, equal protection, public interest, 5th Amendment, Strict scrutiny
Reference:
Rerikht A.A..
The legal institution of independence of the judiciary within Russian legal doctrine: determination of the concepts, functions, status and place within the legal system
// Law and Politics.
2015. № 5.
P. 690-696.
DOI: 10.7256/2454-0706.2015.5.52422 URL: https://en.nbpublish.com/library_read_article.php?id=52422
Abstract:
The article states the goals and content of the legal construct of “independence of the judicial authority/court/judges” recognized as an independent legal institution. The author defines the original concepts, and lists the subjects of judicial independence, i.e. the judicial authority, courts and judges, determines their status and influence according to the Constitution of the Russian Federation and federal legislation. A separate analysis is conducted on the concept of independence by the Russian and German doctrines, as well as the notions of “independence of the judiciary”, and “independence of judicial authority”. The article gives the classification of the norms that regulate the independence of the judiciary. The author proposes to introduce into discourse (first and foremost into scientific) the notion of “the zone of independence of the judiciary” and explains its content, meaning, and prospects for implementation in legal comparative research and improvements to the Russian legislation.
Keywords:
Law, Court, Judge, Independence, Guarantees, Legal institution, Judicial authority, Russia, Comparison of regulations, Procedural law
Reference:
Popov E.A..
Sociologist as an expert: expanding the boundaries of law enforcement
// Law and Politics.
2015. № 3.
P. 373-377.
DOI: 10.7256/2454-0706.2015.3.52384 URL: https://en.nbpublish.com/library_read_article.php?id=52384
Abstract:
This article is dedicated to the various aspects of sociologists’ participation in the judicial sociological investigation. It reveals the difficulties and problem areas within the development of social knowledge as a whole and sociology in particular, which can affect the quality of forensic science within the framework of a specific criminal investigation. The author presents certain methods of raising the level of forensic examination by involving professional sociologists. Expansion of the boundaries of law enforcement allows a sociologist to participate in a wide spectrum of forensic examinations. The following are some of the main conclusions made in this research: the addition of new complex multivariable notions within criminal law justifies the need for involvement into forensic investigations of professionals such as sociologists; the level of success of forensic sociological investigation depends not only on the professional competency of the expert sociologist, but also on their knowledge of the legal environment.
Keywords:
Society, sociology, forensic science, expert, social group, sociological investigation, commune, law enforcement, legal environment, legal norm
Reference:
Burdin D.A..
Modern models of selection and appointment of the judiciary in foreign countries
// Law and Politics.
2015. № 3.
P. 368-372.
DOI: 10.7256/2454-0706.2015.3.52383 URL: https://en.nbpublish.com/library_read_article.php?id=52383
Abstract:
The subject of this research is the modern foreign systems of formation of the judiciary. The national models of recruitment of judges differ in their methods, criteria and the stages of selection of candidates for vacant judicial posts. Their features were formed as a result of historical development, and depending on the constitutional order, the territorial structure of the country, socio-cultural and economic context. Political, legal and scientific challenge is to identify the most perfect system of selection and appointment of judges, which would ensure the appointment of judges from the best available candidates. This work deals with the classification of modern models of recruitment of judicial personnel. As a classification attribute, the author examines the established system of methods of selection and appointment of judges. Among the conclusions is the fact that the merit selection is the predominant type of formation of the judiciary in the modern period compared with the election of judges. The paper traces the evolution of methods of formation of the judiciary in the United States. It is argued that most European countries use a system of competitive selection of judges on the basis of merit. An analysis of existing practices identified a number of problematic issues that require further modification of competitive selection models, including those associated with the definition of competitive selection criteria and processes for their expert evaluation.
Keywords:
best practices, models, candidate for the post of judge, criteria for selection, method, formation of the judiciary, merit selection, competitive selection, election of judges, appointment of judges
Reference:
Sychev D.A..
Some questions of classification of criminal procedural functions in the Russian criminal trial
// Law and Politics.
2015. № 3.
P. 357-367.
DOI: 10.7256/2454-0706.2015.3.52382 URL: https://en.nbpublish.com/library_read_article.php?id=52382
Abstract:
This article discusses and analyzes the different approaches to the determination of the number of criminal procedural functions in the Russian criminal trial. It is concluded that the joint criminal process associated with more than three main functions of criminal procedure. It is determined that there are three main features of criminal procedure specific to criminal proceedings in Russia. The author highlights the key arguments in favor of the qualitative differentiation of procedural functions of organs and persons in criminal proceedings and the main functions of criminal procedure as qualitative characteristics of the process. The author gives classification of criminal procedural functions. General scientific methods of gaining new scientific knowledge, in particular, systemic analysis and systemic theory, formal logical and other methods that would allow examining the correlation in legal relations in the sphere of criminal proceedings, as well as private methods - historical, comparative legal. The author determines the number by the number of criminal procedural functions inherent in the Russian criminal trial, as well as proposes an original classification. The author gives criteria of differentiation of criminal procedural functions from the functions of organs and persons, as well as the division of procedural functions into basic and advanced. The non-functional activity of the subjects of domestic criminal proceedings is being exposed.
Keywords:
system of functions, procedural features, competitiveness, the functions of the subjects, detective work, man functions, Criminal procedural functions, additional functions, criminal consequences, investigation
Reference:
Karasev R.E..
Constitutional (charter) courts of the constituent members
of the Russian Federation: cooperation with other judicial
branches in the sphere of protection of human and citizen’s
rights and liberties
// Law and Politics.
2015. № 1.
P. 89-93.
DOI: 10.7256/2454-0706.2015.1.52352 URL: https://en.nbpublish.com/library_read_article.php?id=52352
Abstract:
The subject of this research is the constitutional (charter) courts of the Russian Federation and their cooperation
with the other judicial branches in the sphere of protection of human rights and liberties. The article touches on
the issues of competency of the constitutional (charter) courts of the Russian Federation as compared to other judicial
branches. A special attention is given to the establishing of a unified system of branches of constitutional justice by the
Constitutional Court of the Russian Federation and the authorities of the constitutional control of the constituents of the
Russian Federation. The scientific novelty consists in the author’s conclusion on the need to provide constructive cooperation
between the constitutional (charter) courts of the constituent members of the Russian Federation and other judicial
branches. This would be an important part of improving the system of protection of human and citizen’s rights and liberties
within Russia and the next step in the building of a legal state and civil society.
Keywords:
Constitution, Constitutional Court, statute, constituents of the Russian Federation, authority, rights and liberties, advocacy, civil society.
Reference:
Vasilieva T.Y..
On the need to establish an institution
of examining magistrates within the framework
of the policy of the Russian Federation on improving
the national judicial system
// Law and Politics.
2015. № 1.
P. 84-88.
DOI: 10.7256/2454-0706.2015.1.52351 URL: https://en.nbpublish.com/library_read_article.php?id=52351
Abstract:
The main direction of development of the judicial system of the Russian Federation is the strengthening of the
constitutional protection of citizens’ right for legal defense. In author’s opinion, one of the ways of realizing this concept
would be the establishing of an institution of examining magistrates specializing in reviewing the problems on election of
the measures of restraint in the form of detaining, prolonging the term of detention, conducting additional investigative
actions that limit the constitutional rights of the citizens, as well as reviewing the complaints about the activities of members
of law enforcement. Establishing the institution of examining magistrates would provide the following benefits within
the criminal procedure: ease the load on the courts of general jurisdiction; contribute to a more thorough and objective
court review of the complaints filed in accordance with the article 125 of the Criminal Procedure Code of the Russian
Federation on the law enforcement officials conducting the investigation; eliminate the forming of an accusatory trend in
reviewing a criminal case and therefore, would ensure following the adversarial principle in execution of judicial control
over the procedural activity of the investigative branches.
Keywords:
Examining magistrate, legal defense, constitutional guarantees, judicial control, measures of restraint, procedural actions, Criminal Procedure Code.
Reference:
Klimova Y.A..
The problems of expanding the procedural autonomy
of investigators
// Law and Politics.
2014. № 12.
P. 1893-1895.
DOI: 10.7256/2454-0706.2014.12.52325 URL: https://en.nbpublish.com/library_read_article.php?id=52325
Abstract:
The subject of this research is the complex of the norms of the Criminal Procedure Code of the Russian Federation that regulate the
legal status of an investigator, their competence and authority. The author also analyses the problems associated with expansion of the procedural
autonomy of investigators in light of the reading of a Federal Bill No. 555400-6 “On amendments to the Criminal procedure code of the Russian
Federation in the part of giving the investigator the right to appeal certain decisions of the Prosecutor in a criminal case, made by indictment or
indictments decree”. The scientific novelty consists in the fact that this work researches the problematic aspects of the normative regulation of
the procedural autonomy of investigators, taking into account the recent changes to the Criminal Procedure Code of the Russian Federation and
a bill that is currently being reviewed by the State Duma. The author makes a conclusion about the need of a complex organizational approach
to the solution of the problem of legal regulation of the procedural autonomy of investigators, in order to create optimal conditions for a timely
investigation of crimes and forwarding the case to the prosecutor on one hand, and ensuring protection of the rights and legal interests of victims,
defendants, and other involved parties on the other.
Keywords:
Procedural autonomy, investigator, bill, changes, appeal of a decision, prosecutor, reform, preliminary investigation, indictment, indictment decree.
Reference:
Koss A.V., Gerasimova E.V..
The problems of the reasonableness of the duration
of criminal procedure at the processing stage due to new
or newly discovered circumstances in light of the rulings
of the Constitutional Court of the Russian Federation
and the European Court for Human Rights
// Law and Politics.
2014. № 12.
P. 1896-1902.
DOI: 10.7256/2454-0706.2014.12.52326 URL: https://en.nbpublish.com/library_read_article.php?id=52326
Abstract:
The parties involved in the criminal procedure, as well as other persons whose rights or interests are being affected by the investigation
are often faced with a lengthy process, which inevitably carries violations of their rights. The problems of defining the term of a criminal
procedure are the subject of the research in criminal process and constitutional law of the Russian Federation. This article raises questions of
uncertainty and indefiniteness of the term of procedure of criminal cases due to new and newly discovered circumstances. In order to resolve
the issue of indefiniteness of the duration of the procedure the authors analyze approaches to the definition of “reasonableness” of the length
of time formulated within court proceedings of the Constitutional Court of the Russian Federation and the European Court for Human Rights.
Taking into account the legal positions of the Constitutional Court of the Russian Federation and the European Court for Human Rights on the
“reasonableness” of the duration of court proceedings the authors propose using the general term of proceedings of preliminary investigation
(article 162 of the Criminal Procedure Code of the Russian Federation). This term should commence on the day of the beginning of investigation
and end on the day that the prosecutor compiles his findings and submits them to the court, or on the day of announcing the drop of investigation.
Keywords:
Reasonable term of investigation, criminal procedure, Constitutional Court of the Russian Federation, European Court for Human Rights, new evidence, legal protection of rights, European Convention, fair trial, court proceedings.
Reference:
Brezhnev, O.V..
Law “On the Constitutional Court of the Russian Federation”:
novel features of 2014 and problems of their implementation
// Law and Politics.
2014. № 9.
P. 1405-1414.
DOI: 10.7256/2454-0706.2014.9.52269 URL: https://en.nbpublish.com/library_read_article.php?id=52269
Abstract:
The article concerns the complex of legislative decisions taken in 2014, which were aimed at the reform of the
federal constitutional justice. These decisions concern the competence of the Constitutional Court of the Russian Federation,
organization of its activities, status of the judges and the procedures for the constitutional judicial procedure (changes in
the grounds for refusal to accept the claim, clarification on the periods for various procedural actions, strengthening of
written elements in judicial proceedings, etc.). Special attention is paid to the analysis of the issues directly influencing the
procedural status of a citizen as a participant of constitutional judicial proceedings providing for the possibility to protect
his rights via implementation of this form of judicial power. In the process of studies the author used general scientific
(dialectic, systemic) and special (comparative legal, formal legal) methods, allowing to single out the key problems related
to the current stage of reform of the constitutional justice and to establish the possible solutions. The article discusses the
main directions in the development of legislative regulation of the Russian constitutional justice: guaranteeing it accessibility
for the people in order to guarantee protection of their basic rights and freedoms, improvements in the procedural
form of implementation of the competence in the sphere of judicial constitutional control, formation of the mechanism for
overcoming possible conflicts between the decision of international bodies on human rights and acts of the Constitutional
Court of the Russian Federation. The author points out the defects of the current legislation in this sphere (incomplete
and unclear norms, possibilities for their ambiguous interpretation, lack of coordination between some legal provisions.
And the author offers some legislative measures in order to deal with these defects.
Keywords:
Sonstitutional control, justice, claim, court, reform, status, procedure, request, legislation, norm.
Reference:
Karasev, R.E..
The Constitutional Court of the Russian Federation:
forms of interaction with the judicial bodies in the process
of protection of human rights
// Law and Politics.
2014. № 9.
P. 1415-1424.
DOI: 10.7256/2454-0706.2014.9.52270 URL: https://en.nbpublish.com/library_read_article.php?id=52270
Abstract:
The object of studies in this article involves the interaction between the Constitutional Court of the Russian
Federation and the judicial bodies in the process of protection of basic rights and freedoms. The author evaluates the
definition of forms of interaction within two aspects: as an activity for the implementation of the specific area of competence,
causing legal consequences for the party to such an interaction (indirect relations) and as means of organization
of joint activities of parties within the framework of competence established by law for the purpose of protection of basic
human rights and freedoms (direct relations). The article concern two basic forms of interaction between the Constitutional
Court and the judicial bodies: decision of the Constitutional Court and constitutional request. The article also concerns
the issues of protection of basic human rights and freedoms in the Constitutional Court before the proceedings on a case
are completed, as well as the problems regarding contradictions in the positions of the supreme courts. In the process of
studies the author employs general and specific scientific methods, such as comparative legal studies, scientific analysis,
synthesis. Using these methods, the author made a conclusion that in order to improve efficiency of protection of human
rights and freedoms at the stage before the proceedings in a case are completed by the court of general jurisdiction or
an arbitration court, there is need to stimulate the court for the use of constitutional request via the relevant motion. The
article provides recommendation regarding the contents of such a motion. The author also offers his own option for the
solution of the problem regarding contradictions in the positions of the supreme courts via the institution of interaction.
Keywords:
The Constitution of the Russian Federation, the Constitutional Court, justice, constitutional request, constitutional claim, human rights activities, rights and freedoms, judicial protection, decision of the Constitutional Court, supreme courts.
Reference:
Rotar, A.I..
Function of the victim in criminal process in Russia
// Law and Politics.
2014. № 8.
P. 1217-1223.
DOI: 10.7256/2454-0706.2014.8.52249 URL: https://en.nbpublish.com/library_read_article.php?id=52249
Abstract:
The object of studies involves norms of international criminal legislation of Russia, decisions of the Constitutional Court
of the Russian Federation, regulating procedural position of a victim in the criminal process of Russia, including analysis of role
of victim among other participants, implemented function in the course of criminal judicial proceedings, correlation of the legal
categories of “accusation” and “criminal prosecution”, specific features of implementation of specific directions of activities, as
well as theoretical developments in this sphere, including scientific articles, dissertation studies and monographs of renowned
procedural scholars. The methodological basis includes general scientific methods, such as a analysis and synthesis, method of
systemic approach, as well as main conceptual provisions of the modern doctrine of international criminal law. The studies show
that some authors call the function of a victim “accusation”, and others refer to “criminal prosecution”. The author analyzes the
correlation of these categories drawing a conclusion that “criminal prosecution” should be regarded as part of “accusation”.
The analysis of “accusation” as a function has allowed to draw a conclusion on its contents: criminal prosecution, formulation
(presenting) an accusation, support of accusation in court. These directions of activities should be regarded as sub-functions
of the main function of accusation. Specific features of procedural status of a victim allows to single out his capabilities in the
sphere of said types of procedural activity. As a result a conclusion is made that while being the main participant of criminal
judicial proceedings, the victim is one of the key participants of a trial, the official bodies and officers implement an obligation
on protection and restoration of violated or limited rights, being obliged to initiate a criminal case, establish an accused person
and support prosecution in trial. The article also offers a new text of Art. 22 of the Criminal Procedural Code of the Russian
Federation, the author considers that its title and contents should conform to other norms of the Criminal Procedural Code of
the Russian Federation and the legal understanding of function of “accusation” as provided for in this article.
Keywords:
Victim, functions, sub-functions, interest, public prosecution, criminal prosecution, criminal judicial proceedings, procedural status, supporting prosecution.
Reference:
Zhelonkin, V.S..
On the goals of cassation proceedings in the Russian
criminal process at its current stage of development
// Law and Politics.
2014. № 7.
P. 1017-1023.
DOI: 10.7256/2454-0706.2014.7.52230 URL: https://en.nbpublish.com/library_read_article.php?id=52230
Abstract:
On January 1, 2013 the Federal Law of December 12, 2010 N. 433-FZ “On Amendments to the Criminal Procedural
Code of the Russian Federation and Loss of Effect of Some Legislative Acts (Provisions of Legislative Acts) of the Russian
Federation” came into force, and it changed the very basis of understanding of nature, contents and object of cassation
procedure, influencing the goals of review of the judgments, which have already entered into force. Taking into account the
new interpretation of the object of cassation proceedings by the legislator, the understanding of the goals of revision of the
judgments, which have already entered into force also needs to be revised. The methodological basis for the article is formed
with the dialectic method of cognition. It also involved special scientific research methods, such as systemic-structural,
specific sociological, comparative legal methods. The article substantiates the conclusion that the analysis of legislative
novelties involving revision of the judgments, which are already in force show the tendency of bringing the Russian criminal
procedural legislation closer to the legislations of the states of the continental legal system. It is manifested by the range and
contents of goals of cassation proceedings. They include guaranteeing lawfulness of a judgment, methodological supervision
of judicial practice, guaranteeing the uniformity of judicial practice, guaranteeing stability of judgments on criminal cases.
Keywords:
Criminal judicial proceedings, revision of judgment, cassation proceedings, supervisory proceedings, object of cassation proceedings, goals of cassation proceedings, lawfulness of a judgment, stability of a judgment, grounded judgment, fair judgment.
Reference:
Karastelev, V.E..
Problems of formation of the institution of representatives
of the general public in the qualifi cation boards
of judges in Russia
// Law and Politics.
2014. № 7.
P. 1005-1016.
DOI: 10.7256/2454-0706.2014.7.52229 URL: https://en.nbpublish.com/library_read_article.php?id=52229
Abstract:
The author studies the institution of representative of general public in the qualification boards of judges
(QBJ) in Russia. Throughout the period of its existence this institution did not mange to become the platform for the civil
participation and the instrument for the protection of the rights of citizens, it just became an imitating substitute. What
is the real situation, and how may the imitation problem be solved? This article attempts to provide the answers to these
questions. Reorganization of the institution of the representative of the general public in the QBJ mostly involves the normative
approach, when the object of amendment involves legal norms. However, this approach can hardly be expected
to cardinally change the existing negative practice. The author used sociological approach for gaining data, normative
method for analysis of legal acts and actor method for development of the criteria for the civil participation. The institution
of the representative of the general public in the QBJ is hardly sufficiently studied. The article provides the data on
cadres and legal fundamentals for the work in the dynamics from 2010 to 2014. The said institution is public based upon
its functions and it serves as an instrument of public (civil) control. In fact, it is a closed, non-public, and non-influential
actor in the judicial community. The goals of expressing the interests of the judges prevail over the expression of interests
of the people. The implemented policy involves working with “convenient” organizations, mostly, higher education institutions
and businesses, and not the real civil organizations, which was facilitated by the broad interpretation of the term
“representative of the general public” and the existing practice. And due attention to the significant changes in the list of
cadres for the candidates is necessary for the change. The author offers the criteria for the choice of the representatives of
the general public. Since participation of the representatives in the QBJ is one of the types of public control, by supporting rotation of cadres from civil NGOs cultivating such practice, it may be possible to solve the problem of simulation of the
civil participation in the activities of the judicial community.
Keywords:
Representative of the general public, qualification board of judges, civil participation, public control, institution, public organization, civil control, judicial community, justice, human rights.
Reference:
Milchakova, O.V..
Law and politics in the activities
of the Constitutional Court of Croatia
// Law and Politics.
2014. № 5.
P. 684-694.
DOI: 10.7256/2454-0706.2014.5.52198 URL: https://en.nbpublish.com/library_read_article.php?id=52198
Abstract:
The article is devoted to one of the topical current issues: correlation of law and politics in the activities of the Constitutional
Court of Croatia. The studies of various aspects of the relevant problems is based upon the studies of the constitutional legal status
and practice of the Constitutional Court in the Republic of Croatia. Croatia joined the European Union just recently (from July 1,
2013). The date when the mandates of half of the judges of the Constitutional Court of Croatia expires (2015) is drawing near, and
the legislation allows the parliament to elect the same persons for the positions of constitutional judges for a new term. In such a
situation, it is quite interesting to follow the practical activities of the Constitutional Court in order to establish whether the Court
is capable of being sufficiently independent of politics dealing solely with legal matters in the process of constitutional control. In
the course of the analysis of constitutional legal status and practice of the Constitutional Court the author mostly used formal legal,
comparative legal and statistical methods. The article provides a complex evaluation of the legislative constructions provided in
Croatia, which on the one hand are aimed at guaranteeing political neutrality of the Constitutional Court, while on the other hand
providing the Court with the possibility to directly interfere in the political discussions. The author drew her conclusions on the correlation
between law and politics in the activities of the Constitutional Court based on a number of “headline-making cases”, such
as “On Sexual Education”, “On Obligatory Vaccination”, “On Medical Fertilization”, “On Prohibition of Same-Sex Marriages”.
Keywords:
Constitutional Court, Croatia, constitutional justice, constitutional control, constitutionality of medical conception, constitutionality of medical fertilization, constitutionality of obligatory vaccination, prohibition of same-sex marriages, discretion of the Constitutional Court, “political issue” doctrine, political character of constitutional justice.
Reference:
Karasev, R.E..
The Constitutional Court of the Russian Federation:
means of protection of basic rights and freedoms
of individual and citizen
// Law and Politics.
2014. № 4.
P. 486-492.
DOI: 10.7256/2454-0706.2014.4.52181 URL: https://en.nbpublish.com/library_read_article.php?id=52181
Abstract:
The object of studies in this article involves the means of protection of basic rights and freedoms of individual and citizen
in the Constitutional Court of the Russian Federation, their distinctive and characteristic features, as well as the problems regarding
use of these means. The author singles out and evaluates three main means of protection of rights and freedoms within the procedures
of competitive and abstract constitutional control: filing a constitutional claim, sending a constitutional request by a court, sending
a constitutional request by a public body or a public official. In the process of studies the author used general scientific methods of
analysis and synthesis, as well as special legal methods: comparative legal method, method of interpretation of law. Scientific novelty
is due to the specification and systematization of the mechanism of protection of rights and freedoms of individual and citizen within
the framework of the constitutional judicial proceedings, conclusions of the author regarding the need to change the existing criteria
for admissibility of a constitutional complaint, as well as the conclusions regarding mediated character of protection of basic rights
and freedoms when examining of constitutional requests of courts and public bodies and officials. The results of studies may be used
in the further studies in the sphere of problems of protection of basic rights and freedoms of individual and citizen.
Keywords:
the Constitutional Court, the Constitution, constitutional control, judicial power, judicial power, rights and freedoms, judicial protection, complaint, request, judicial proceedings, law-protection activity.
Reference:
Milchakova, O.V..
The modern models for the judicial constitutional control
in the former Yugoslavia states
// Law and Politics.
2014. № 3.
P. 326-336.
DOI: 10.7256/2454-0706.2014.3.52165 URL: https://en.nbpublish.com/library_read_article.php?id=52165
Abstract:
The article concerns the models of judicial constitutional control in the states currently existing at the territory
of the Former Yugoslavia (Bosnia, Herzegovina, Macedonia, Serbia, Slovenia, Croatia, Montenegro). These states have
a history of Socialistic past, which is similar to Russia, and their experience is especially interest, since their tradition
was continuous for more than half a century. The author provides consecutive analysis of the similarities and differences
in the process of formation, competence, procedures of the constitutional courts in the former Yugoslavian states, their
places within the systems of state government bodies. The author used mostly historical and formal legal method for the
analysis, and also comparative legal method. The results of study allow to state that these states have an European model
of judicial constitutional control. Finally, the author draws a conclusion that in all of the Former Yugoslavia states the
constitutional courts are regarded as independent state bodies, which are not included into any branches of state power,
while they de facto implement judicial power, their proceedings are de facto part of judiciary.
Keywords:
former Yugoslavia states, constitutional control, constitutional court, American model, European model, Constitution, constitutional proceedings, judicial power, constitutionality, actio popularis.
Reference:
Sokolov, T.V..
Constitutional judicial procedure:
the mechanism for the implementation of judicial power?!
// Law and Politics.
2014. № 3.
P. 313-325.
DOI: 10.7256/2454-0706.2014.3.52164 URL: https://en.nbpublish.com/library_read_article.php?id=52164
Abstract:
Procedural (justice) function of the Constitutional Court of the Russian Federation and the Constitutional (Ustav) Courts of
the constituent subjects of the Russian Federation is challenged in the scholarly writings, these bodies are not recognized as classical
courts, and their activities are not recognized as part of national justice. The causes for such doctrinal views include the differences
between the procedural forms of constitutional judicial process and other types of judicial process, as well as the absence of doctrinal
attempts of procedural evaluation of the phenomenon of the Russian constitutional justice. The article is devoted to the studies of
the activities of the constitutional courts as a part of national justice system, uncovering and analysis of its ties with the institution of
judicial power. The methodology of the procedural evaluation of constitutional judicial procedure chosen by the author includes the
doctrine of judicial law, which is the general theory of judicial law and is currently undergoing a Renaissance, since its interdisciplinary
dimension allows for interdisciplinary studies in the sphere of justice, and for the evaluation of the novel legal institutions, such as
the constitutional judicial procedure is within the framework of the Russian procedural science. The constitutional judicial procedure
is viewed through the prism of the implementation of the mechanism of judicial power via judicial proceedings, the structure of which
is offered by L.A. Voskobitova, and the positions of the “Court” in accordance with the Art. 6 of the European Convention on Human
Rights. As a result, it is stated that it is a type of mechanism for the implementation of judicial power in the special sphere of material
legal relation, and it is a constituent element of the national justice.
Keywords:
the Constitutional Court, constitutional judicial process, constitutional judicial proceedings, judicial law, doctrine of judicial law, judicial power, mechanism for the implementation of power, fair judicial proceedings, revising judicial decisions, the European context.
Reference:
Eseva, E.Y..
Freedom of judicial power in the modern Russia
// Law and Politics.
2014. № 3.
P. 307-312.
DOI: 10.7256/2454-0706.2014.3.52163 URL: https://en.nbpublish.com/library_read_article.php?id=52163
Abstract:
The article concerns the problem of implementation of the principle of separation of powers in Russia at the current stage
of development. The author analyzes the current Russian legislation regarding the position of the judiciary and the judges, providing
evaluation of the practical work of judicial system, showing the defects in the legal field on this issue. Currently the judicial power
does not fulfill its main function – to limit the legislative and executive branches of government, to implement legal control over
their activities, and there is need to amend the Russian legislation based upon the generally recognized principles of law.
Keywords:
jurisprudence, separation of powers, independence, irremovability, reform, democracy, influence, direct elections, disciplinary judgment seat, ruling political forces.
Reference:
Zagrivko D.S..
Guidelines for the implementation of administrative
proceedings in the Russian Federation
// Law and Politics.
2014. № 2.
P. 181-186.
DOI: 10.7256/2454-0706.2014.2.52149 URL: https://en.nbpublish.com/library_read_article.php?id=52149
Abstract:
This article is devoted to the study of the principles of the implementation of administrative justice
in Russia. Under the principles of administrative law refers to the main ideas, requirements, regulations,
expressing its essence and determining the content of administrative and legal regulations. It should be noted
that each branch of law has a set of General principles, characteristic for all its branches, and their own,
giving her uniqueness. In essence, the principles are the fundamentals of the industry, a kind of quintessence
of its norms. One of the fundamental principles of any branch of law is a competition of parties, which did
not find their legislative ref lection of the Code of administrative offences.
Keywords:
Jurisprudence, principles, competitiveness, proving, the administrative process, equality, the right to defense, the prosecution, justice, administrative responsibility.
Reference:
Milchakova O.V..
The limits of intervention of the European Court
of Human Rights in the work of the Constitutional Court
of Bosnia and Herzegovina
// Law and Politics.
2014. № 2.
P. 171-180.
DOI: 10.7256/2454-0706.2014.2.52148 URL: https://en.nbpublish.com/library_read_article.php?id=52148
Abstract:
The article concerns the peculiarities of relationship between the European Court of Human Rights (ECHR)
and national constitutional courts. In order to identify the specifics of this relationship, the author turns to Bosnia and
Herzegovina (BiH), the third part of the Constitutional Court of which is appointed directly by the Chairman of the ECHR.
Based on the analysis of foreign law, the case law of the ECHR and the Constitutional Court of BiH, as well as specific
historical facts and political developments, the article reflects different aspects of the relationship of these courts, including
problems related to the implementation of the ECHR decisions. In conducting the research of the specified subjects,
the author mainly used legalistic and historical methods. The results of study led the author to the conclusion that there
are virtually no limits to ECHR intervention in the activities of the Constitutional Court of BiH; the latter seems to be
more independent from the national authorities than from the ECHR. However, other countries and international and
supranational institutions and organizations often use both political and financial levers of influence on BiH in order to
force it to fulfill ECHR decisions until the constitutional reform takes place.
Keywords:
Bosnia and Herzegovina, the Former Yugoslavia, the Constitutional Court, the Constitution, the Constitutional control, the European Court, the ECHR, the European Convention, Conventional control, access to the court.
Reference:
Primakov, D.Ya..
The Israeli model of judicial activism
// Law and Politics.
2014. № 1.
P. 57-63.
DOI: 10.7256/2454-0706.2014.1.52138 URL: https://en.nbpublish.com/library_read_article.php?id=52138
Abstract:
The active part of the Supreme Court and a special position of the judiciary system in the structure of
the distribution of powers played a special role in the formation of the Israeli right. Historically, a special place
of the court in Jewish law and culture is due to the fact that in a certain sense, the judge in the community level
was the only law enforcement official; moreover, he often performed functions in the role of a legislator. The
article examines the formation stages of the Supreme Court of Israel and the acquisition of its independence.
Also, we can see here the concerns that declare that with the new President of the Supreme Court, this body will
become less independent.
Keywords:
jurisprudence, judge, the Israeli right, activism, Barak, discretion, basic laws, executive branch and Knesset.
Reference:
Kalyak, A.M..
Implementation of the bases of the constitutional
order in the practice of the Constitutional Court
of the Russian Federation
// Law and Politics.
2013. № 13.
P. 1813-1817.
DOI: 10.7256/2454-0706.2013.13.52117 URL: https://en.nbpublish.com/library_read_article.php?id=52117
Abstract:
The traditional scheme for the logical syllogism, as used when making judicial decisions is changed
in the practice of the Constitutional Court of the Russian Federation. A substantial prerequisite is not some
specific norm, but rather a system of the bases of the constitutional order, forming the boundaries of legislative
activities on certain issues. Since most of the provisions of the Constitution of the Russian Federation in Chapter
1 “Fundamentals of the Constitutional Order” are abstract, constitutional norm control includes evaluation of
political viability of the norms in the acts in question.
Keywords:
jurisprudence, constitutionalism, politics, interpretation, implementation, constitution, fundamentals, order, syllogism, change.
Reference:
Ageev, V.N..
Limitations to basic rights and freedoms
of state servants in the decisions
of the Constitutional Court of the Russian Federation
// Law and Politics.
2013. № 13.
P. 1818-1824.
DOI: 10.7256/2454-0706.2013.13.52118 URL: https://en.nbpublish.com/library_read_article.php?id=52118
Abstract:
The article contains references to the fact that the state is allowed to establish some limitations to human
rights and basic freedoms of individuals and citizens in order to achieve the purpose which is set for it by the society,
that is, to guarantee security of citizens and state. The author formulates a definition for the limitations to basic human
rights and freedoms of individuals and citizens. He analyzes the issues of limitations of rights and freedoms of persons
in state service in the Russian Federation, noting that limitations for the persons joining state service serves the purpose
of guaranteeing efficient professional activities in the spheres of competence of state bodies, and precludes possible
abuse of rights by the servants, as well as, serves as one of the means of fighting corruption. The author analyzes the
legal position of the Constitutional Court of the Russian Federation on the lawfulness of limitations of rights and freedoms
of state servants, and formulates an universal position of the Constitutional Court of the Russian Federation on
this issue, under which the limitations and prohibitions for the state servants due to their state service are acceptable
for constitutionally valuable goals.
Keywords:
jurisprudence, rights, freedoms, limitations of rights and freedoms, fighting corruption, state service, state servant, Constitutional Court, judicial power, legal positions.
Reference:
Sokolov, T.V..
Decisions and legal positions
of the Constitutional Court of the Russian Federation:
nature, types and correlation
// Law and Politics.
2013. № 12.
P. 1707-1719.
DOI: 10.7256/2454-0706.2013.12.52107 URL: https://en.nbpublish.com/library_read_article.php?id=52107
Abstract:
The article provides a novel differentiated approach towards the nature of decisions and legal positions of
the Constitutional Court of the Russian Federation. Depending on the presence of general conclusions author offers to
distinguish among the decisions the normative enforcement (no conclusions regarding the status of legal norm); normative
interpretation (conclusion on actual contents of the norm); normative correction (changing the contents of a legal
norm due to a constitutional defect of a legal norm). Accordingly, these decisions serve as acts of legal enforcement, legal
interpretation, and sources of law. The legal positions of the Court, which are conclusions of the court on the questions
posed to them, are different from the decisions. Decisions and legal positions correlate as form and contents, part and
whole. The author offers to distinguish normative and doctrinal legal positions, negative and positive legal positions,
temporary and permanent legal positions. The author proves that the normative legal positions of the Court, as expressed
in normatively correcting decisions of the Court serve as a specific source of law, which may not be included into any of
the previously known groups of such sources, due to its unique legal qualities.
Keywords:
the Constitutional Court, legal norm, legal position, correcting legal norms, interpreting legal norms, doctrine of the Constitutional Court, source of law, form of law, precedent, judicial law.
Reference:
Nitsenko, R.A..
Mitigation and aggravation of sentence
in Russian criminal law
// Law and Politics.
2013. № 12.
P. 1701-1706.
DOI: 10.7256/2454-0706.2013.12.52106 URL: https://en.nbpublish.com/library_read_article.php?id=52106
Abstract:
The article concerns the rules for assigning punishments for the crimes, which according to the law may be punished with
death penalty or life sentence. The author analyzes the norms of the Criminal Code of the Russian Federation and the Criminal
Procedural Code of the Russian Federation, paying attention to the issues of mitigation of punishment in case when deprivation
of freedom (term in prison) is assigned. The author also analyzes the issues of historic development of norms on mitigation and
aggravation of punishment. The methodological basis for the study is formed by the combination of principles and methods of
scientific analysis. The article uses dialectic and private law methods. The article includes an attempt of scientific analysis of the
issues regarding obligatory mitigation of punishments under the provisions of p. 2-5 of Art. 62 of the Criminal Code of the Russian
Federation. The author defines the contents of the norms on obligatory mitigation and aggravation of punishment. In the process
of study the author singles out the difficulties in understanding of the norms on obligatory mitigation and aggravation of sentence
due to lack of clarity in their legislative formulae. The author also attempted to form propositions on the current situation and
perspectives for the development of the rules for obligatory mitigation and aggravation of sentence taking into account the latest
legislative amendments.
Keywords:
attempted crime, recidivism, trial by jury, capital punishment, aggravating circumstances, mitigating circumstances, obligatory aggravation, obligatory mitigation, assigning punishment, conflict of laws.
Reference:
Milchakova, O.V..
On the issue of stages of constitutional judicial process
// Law and Politics.
2013. № 12.
P. 1694-1700.
DOI: 10.7256/2454-0706.2013.12.52105 URL: https://en.nbpublish.com/library_read_article.php?id=52105
Abstract:
The article includes a novel approach to the stages of constitutional judicial process, which previously was not
expressed within the science of constitutional law. The basis for the studies was formed by the procedures of the constitutional
courts of the states formed in the territory of former Yugoslavia (Bosnia and Herzegovina, Macedonia, Serbia,
Slovenia, Croatia, Montenegro), which are used in order to implement the functions of the constitutional justice bodies.
Attention is paid to the specific features of initiating proceedings in the constitutional courts of the former Yugoslavia
states, which is due to the right of the courts to initiate proceedings on constitutionality and lawfulness of acts by their
own initiative. For the studies the author uses comparative and legal normative analysis. The author makes a conclusion
that the stages of constitutional judicial process are very similar to the stages of “classic” judicial process, but they do
have their specific features. At the same time, the author supports the position that the stage of formation of the grounds
for initiation of the constitutional proceedings should be regarded as the first stage of constitutional judicial process, and
the revision of the decision of a constitutional court should be regarded as the last stage.
Keywords:
constitutional judicial process, constitutional court, stages of the process, constitutionality, lawfulness, former Yugoslavia states, constitutional proceedings, constitutional justice, constitutional control, Constitution.
Reference:
Karasev, R. E..
Judicial protection of rights:
concept, defi nition, and place in the framework
of protecting the rights and liberties
of the man and the citizen
// Law and Politics.
2013. № 11.
P. 1511-1519.
DOI: 10.7256/2454-0706.2013.11.52082 URL: https://en.nbpublish.com/library_read_article.php?id=52082
Abstract:
In the twenty years since the adoption of the Constitution of the Russian Federation, the Russian state and its society
have continued to develop. The effectiveness of the protection of the rights and liberties of the man and the citizen is a current
issue. This article examines terms such as ‘legal protection’, ‘state protection’, and ‘ judicial protection’ as they apply to the rights
and liberties of the man and the citizen, and considers their correlation. Comparative legal research results in the conclusion
that legal protection is a category most closely related to state and judicial protection. Particular attention is given to judicial
protection, and its inherent characteristics are outlined. Judicial protection is considered in two ways: from the perspective of
parties applying to the courts for protection, and from the perspective of the judiciary exercising their powers in the administration
of justice. As a result of this analysis, and by using the formal legal research method, the author presents a definition for
the idea of ‘ judicial protection of the rights and freedoms of the man and the citizen.’ The article also addresses obstacles to
the effective functioning of the courts and offers some solutions, as well as assessing government policy to reform the judicial
system. This article can be used in the study of problems of judicial protection of constitutional rights and liberties of man and
citizen in the Russian Federation.
Keywords:
Constitution of the Russian Federation, civil society, human rights, protection of rights, state protection, judicial protection, administration of justice, judicial bodies, court amalgamation, effectiveness of the administration of justice
Reference:
Bozrov, V. M..
Judicial independence
and academic doctrinal-legal opinion
// Law and Politics.
2013. № 11.
P. 1508-1510.
DOI: 10.7256/2454-0706.2013.11.52081 URL: https://en.nbpublish.com/library_read_article.php?id=52081
Abstract:
This article explores doctrinal legal opinion vis-a-vis the principle of procedural independence of judges. It analyses
the problem of the legal essence of the doctrinal-legal opinion of the academic – a specialist in a particular area of law – and
the importance of such an opinion in deciding a criminal case correctly. The article identifies factors which prevent the widespread
adoption of these opinions in judicial work. It is based on the results of a comparative analysis of the relevant case law
of the Russian Constitutional Court, as well as that of a number of regional and provincial courts of the Ural Federal District.
The research utilises techniques of observation, generalization, induction, analysis and synthesis, and comparative law as
well as the empirical method. The article’s academic novelty lies in its determining of the legal nature of doctrinal opinions
and its justification for their role in the resolution of situational problems which arise in the administration of criminal justice.
Keywords:
judge, doctrinally-legal opinion, independence of the judiciary, criminal justice, problems, disregard of knowledge, expert opinion, dynamism, validity of legal proceedings, judicial independence
Reference:
Sokolov, T.V..
Interrelation between constitutional and criminal judicial
procedures: the current situation
// Law and Politics.
2013. № 10.
P. 1350-1372.
DOI: 10.7256/2454-0706.2013.10.52064 URL: https://en.nbpublish.com/library_read_article.php?id=52064
Abstract:
The article provides the author’s concept of correlation between constitutional and criminal judicial procedures,
aimed to guarantee efficient, realistic and timely judicial protection of rights and freedoms. The special legal
methodology for the concept was the doctrine of judicial law, which is a currently reviving general legal universal theory
of judicial power and procedural law, and from its standpoint the process in law (legal process) is judicial procedure,
and the “broad” understanding of procedural law is wrongful. The nature of correlation among the various types of
judicial procedure (inter-procedural connections) is due to the very nature of judicial procedure, which is regarded at
the same time as a mechanism for implementation of judicial power, implementation of law and a complicated social
system. The interrelation between various types of judicial procedure is mutual and direct influence of process and
(or) results of two types of judicial procedure. It is due to material legal and procedural information prerequisites
(factors). The study of correlation between types of judicial procedure is taken through the consistent characterizing
of the forms of such interrelation. The article defines the structure for the interrelation, including vector of influence,
basis, consequences and terms of interrelation. The article singles out and describes the forms of interrelation between
constitutional and criminal judicial procedures, including initiating, preventive, prejudicial, normative correcting, normative
interpretive, revision one, and the author defines the perspectives for the improvement of their legal regulation.
Keywords:
judicial law, interrelation between types of judicial procedure, Constitutional Court, judicial process, correction of legal norms, interpretation of law, request by a court, claim by a citizen, renewing judicial procedure, prejudicial.
Reference:
Brezhnev, O.V..
Institution of revision of decisions
of a Constitutional (Ustav) Court of the constituent subject
of the Russian Federation:
theoretical and practical problems
// Law and Politics.
2013. № 9.
P. 1151-1159.
DOI: 10.7256/2454-0706.2013.9.52038 URL: https://en.nbpublish.com/library_read_article.php?id=52038
Abstract:
The institution of revision of decisions of a Constitutional (Ustav) Court is provided for under the legislation of
a number of constituent subjects of the Russian Federation. To which degree is it compatible with the specific features
of constitutional judicial procedure, providing for the finality of all acts of constitutional justice bodies? The article
contains an evaluation of theoretical provisions regarding roles and value of the institution of revision of decisions of
a Constitutional (Ustav) Court as a guarantee of lawfulness in the sphere of constitutional judicial procedure. Based
upon the methodology of theoretical analysis of the said institution, the author provides a comparison of key procedural
models for the revision of decision of regional constitutional justice bodies from the standpoints of order of initiation of
this procedure, its grounds, types of decisions subject to revision, range of participants of the judicial hearing, sphere
of competence of a Constitutional (Ustav) Court. Taking into account the perspectives of development of the constitutional
justice in Russia, as well as the need to achieve the goals of the current judicial reform, the author shows positive
and negative elements of legal regulation in the sphere of review of decisions of a Constitutional (Ustav) Court of the
constituent subject of the Russian Federation, reflecting the most important tendencies in the modern approaches to
this subject. Based upon the study, the author draws conclusions on the need to provide more details into the procedure
of review of decisions of a Constitutional (Ustav) Court of the constituent subject of the Russian Federation, including
clear regulation of its bases and limitations of its use by preclusive term, which shall allow to conform to the principle
of legal certainty in constitutional judicial procedure.
Keywords:
jurisprudence, review, decision, constitutional, Ustav, court, judicial procedure, bases, competence.
Reference:
Lyubchenko, M.Y..
On the issue on the value of the Decisions
of the European Court of Human Rights
// Law and Politics.
2013. № 8.
P. 1052-1061.
DOI: 10.7256/2454-0706.2013.8.52027 URL: https://en.nbpublish.com/library_read_article.php?id=52027
Abstract:
This article is devoted to the definition of the legal force of final decisions of the ECHR. The first part of the article
provides for the definition of the practice of the EHCR, as well as distinction between the final decisions and other forms of
objective activities of the ECHR. The second part or the article provides for the structural non-uniformity of the decisions of
the ECHR, the author establishes the legal force of the positions on the fair compensation (a); interpretation of the norms of the
European Convention on Human Rights (b); and on the established facts in a case (c).
Keywords:
jurisprudence, ECHR, decision, interpretation, European Convention on Human Rights, res interpretata, precedent, interaction, reporting, res judicata
Reference:
Ratushnaya B. P..
The Problems of Motivation of Judicial Decisions in the
Ukraine
// Law and Politics.
2013. № 6.
P. 798-802.
DOI: 10.7256/2454-0706.2013.6.51994 URL: https://en.nbpublish.com/library_read_article.php?id=51994
Abstract:
The article studies theoretical and legislative problems
of motivation of judicial decisions in the Ukraine. Based
on the analysis of the Ukrainian procedural legislation, theoretical
researches on the matter and case law of the European
Court of Human Rights, the author proves that motivation of
judicial decisions along with their legality and justification is
one of the important requirements for the quality of judicial
decisions. Observation of this requirement shows that the judicial procedure in general and the process of determination
of actual circumstances of a case are just and fair. It has also
been established that motivation of a judicial act also relates
to description of motives as a result of thinking activity based
on which the court has made certain decisions. It is stated that
except for the Code of Criminal Procedure, Ukrainian court
legislation does not have the legal enforcement of an independent
demand to provide motivation of judicial decisions. In
this respect, the author offers to make certain changes in the
procedural legislation of the Ukraine except for the Code of
Criminal Procedure of the Ukraine which already has all necessary
provisions.
Keywords:
Law studies, law enforcement, requirement, legality, justification, motivation, decision, practice, legislation, court.
Reference:
Eseva, E.Y..
Freedom of judiciary in the modern Russia
// Law and Politics.
2013. № 5.
P. 661-666.
DOI: 10.7256/2454-0706.2013.5.51977 URL: https://en.nbpublish.com/library_read_article.php?id=51977
Abstract:
The problem of implementing the principle of separation
of powers in Russia at the present stage of development.
We analyze the current Russian legislation regulating
the position of the judiciary and judges. The functioning
of the judicial system considered in practice, identified
gaps in the legal field on this issue. The point is that
today the judiciary is clearly not doing its primary function
– containment and restriction of the legislative and
executive authorities, the implementation of legal control
over their activities and the need to change the legislation
of Russia on the basis of universally recognized
principles of international law.
Keywords:
separation of powers, the judiciary, the independence, tenure of judges, the ruling political forces, judicial reform, democracy, constitution, the disciplinary court presence, influence on the judiciary, direct election of judges.
Reference:
Eseva, E.Y..
Challenge of a judge in a civil process. Reality or fiction?
// Law and Politics.
2013. № 4.
P. 504-508.
DOI: 10.7256/2454-0706.2013.4.51958 URL: https://en.nbpublish.com/library_read_article.php?id=51958
Abstract:
The article deals with the problem of implementation of
right of participants of a judicial process for challenging
a particular judge in order to remove him from a process.
The author analyzes the modern Russian legislation, which
regulates the relations in the sphere of judicial protection
of rights and freedoms of an individual, and for the hearing
of his case by a just and impartial court. The institution of
challenge to a judge is viewed from the point of view of
its functional direction, not as a formal norm, but as legal
means for correct and timely hearing and adjudication
in a civil case. One should mention that this institution is
neither logical, nor efficient in its current state in the civil
procedure, and the legislation needs to be amended based
on the globally recognized legal principles.
Keywords:
jurisprudence, civil process, challenge, grounds for challenge, legislation, Roman law, objectivity, fairness, impartiality, Constitution.
Reference:
Tsaliev, A.M..
On the need for the further decentralization
and democratization of the judicial branch
of power in Russia
// Law and Politics.
2013. № 4.
P. 499-503.
DOI: 10.7256/2454-0706.2013.4.51957 URL: https://en.nbpublish.com/library_read_article.php?id=51957
Abstract:
The article is devoted to the topical problems of decentralization
and democratization of the judicial branch of
power in the Russian Federation. Based upon the analysis
of federal and regional legislation, the author illustrates
the positive dynamics in resolving these problems, such as
introduction of the institution of non-judicial (preliminary
to judicial) dispute regulation among the participants of
civil law relations, the new Federal Law “On alternative
procedure of dispute resolution with the help of mediator
(On Mediation)”, the Federal Law “On Access to Information
to the Court Activities in the Russian Federation”,
etc. Taking into account the positive experience of the foreign
states, the author proposes to apply a number of efficient
measures, which are aimed for the improvement of
judicial structure and procedure in the Russian Federation.
In particular, he finds it necessary to optimize the correlation
of federal and regional judicial bodies, to provide
legislative guarantees for the more active participation of
people in the formation of the judicial corpus, to widen the
scope of forms of participation of people in implementation
of justice, to spread the practice of non-judicial and
preliminary-to-judicial dispute resolution, etc.
Keywords:
jurisprudence, the Constitution of the Russian Federation, the judicial power, the court, the judge, federalism, democracy, law, justice, judicial structure.
Reference:
Konovalov, A.O..
Some problems related to the implementation of right for
access to information on the activities of the courts in Russia
(based on the materials from the Siberian Federal District).
// Law and Politics.
2013. № 3.
P. 345-349.
DOI: 10.7256/2454-0706.2013.3.51937 URL: https://en.nbpublish.com/library_read_article.php?id=51937
Abstract:
The article is devoted to the analysis of practice of implementation
of the right for access to information in the activities of
the courts in the constituent subjects of the Russian Federation
within the Siberian Federal District. The author provides
results of the study on such types of rights of access, as presence
in an open judicial hearing, or provision of information
upon the request of information user in the Siberian Federal
District. The article also contains the conclusions of the author
on the current situation in the sphere of open information
on federal courts of general jurisdiction, arbitration courts and the Department for Administration of Justice in the Siberian
Federal Districts. The author also provides suggestions on the
improvement of the current legislation and legal practice in the
sphere of access to information on the activities of the courts.
Keywords:
jurisprudence, information on the activities of the courts, access to information, request for information, official website, refusal to provide information, photographing, video recording, audio recording, the Department for the Administration of Justice, Siberian Federal District, court.
Reference:
Abdulvaliev, A.F..
The prerequisites and perspectives of the introduction
of an electronic form of the criminal case file into the
activities of the judicial bodies.
// Law and Politics.
2013. № 1.
P. 58-65.
DOI: 10.7256/2454-0706.2013.1.51901 URL: https://en.nbpublish.com/library_read_article.php?id=51901
Abstract:
A number of legal scholars and practicing lawyers prefer
novel and progressive technologies in the criminal judicial
procedure, including the electronic case file. Also, the federal
programs on development of judicial system contain some
prerequisites, which “push” the judicial system towards the
introduction of the electronic case files. However, it seems
more reasonable to develop federal programs for the pre-trial
criminal procedures. The existing provisions for the modern
technologies shall allow to introduce the electronic case files
in the nearest decade, and it shall not require any considerable
amendments in the Criminal Procedural Code of the Russian
Federation. However, it shall be necessary to provide legislative
regulation for the application of this technology, to avoid
barriers and problems, which may arise due to the introduction
of an electronic form of criminal cases.
Keywords:
jurisprudence, judicial procedure, criminal, process, court, technologies, electronic, carrier, information, program.
Reference:
Brezhnev, O.V..
The plenipotentiary on human rights as a participant of
the constitutional judicial procedure: problems, tendencies
and perspectives.
// Law and Politics.
2012. № 12.
P. 1995-2002.
DOI: 10.7256/2454-0706.2012.12.51878 URL: https://en.nbpublish.com/library_read_article.php?id=51878
Abstract:
The institution of the Plenipotentiary on Human Rights
assists establishment of the guarantees of protection of
constitutional rights and freedoms of persons. That is
why, there is need for the Plenipotentiary in the Russian
Federation to cooperate with the similar officials in
the constituent subjects of the Russian Federation and
other elements of mechanisms for the protection of
human rights, such as the constitutional justice bodies.
The article provides comparative analysis of possible
models of such participation of the Plenipotentiary
in the constitutional judicial process: as a party, as a
person who has a right to take part in such procedure in
the public legal goals, as an invited officer. Taking into
consideration the perspectives of constitutional justice
in Russia and the need to achieve the goals of judicial
reform, the author points out positive aspects and topical
issues in the sphere of legislative regulation of protection
of human rights via the constitutional control. Then
the author points out the tendencies in the procedural
statuses of the Plenipotentiary on Human Rights as a
participant of constitutional judicial process.
Keywords:
jurisprudence, plenipotentiary, rights, freedoms, constitutional, justice, judicial procedure, status, complaint, procedure.
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