Signs of individual judicial regulation in criminal proceedings and its definition

Kripinevich Svetlana Sergeevna PhD in Law Deputy Head of the Department of Criminal Procedure Law named after N.V. Radutnaya, Russian State University of Justice, Moscow 117418, Russia, g. Moscow, ul. Novocheremushkinskaya, 69 s.kripinevich@yandex.ru Other publications by this author

The requirements specified in Article 7 of the Code of Criminal Procedure of the Russian Federation (legality, validity, motivation) apply to procedural judicial decisions, and Article 297 of the Code of Criminal Procedure of the Russian Federation also applies to the court verdict. With regard to court decisions in the modern theory of criminal procedure and related activities, many questions arise, both from the point of view of the totality of the requirements put forward ^[20], and their content and nature. We note the reasoned position of a number of scientists regarding the problems of appealing and reviewing court decisions ^[21], their stability in pre-trial proceedings ^[22], etc.

The search for ways to solve them is currently being carried out without taking into account the category of individual judicial regulation, which may be constructive and have a positive impact on the entire criminal process. In particular, we are talking about the fact that individual judicial regulation involves the practical implementation of the "feedback principle" ^[23], which will allow to identify gaps in legislative regulation and subsequently adjust the procedure of judicial decision-making, as well as their properties, features of the content of individual court decisions taken in alternative forms of judicial proceedings, in pre-trial proceedings in criminal cases, etc.

The positive, in our opinion, lies in clarifying and developing procedures for making procedural court decisions, optimizing judicial competence in the implementation of individual regulation, giving a complete legal appearance to this activity in criminal proceedings, including in relation to special forms of judicial proceedings. It should be taken into account that the procedures of individual judicial regulation are also considered as an element of its essence ^[24].

Let us note another feature of individual judicial regulation (the third), distinguished in the theory of law – content. This feature is one of the main ones and allows us to consider this concept from the point of view of its content. In addition, the content of individual judicial regulation in relation to criminal proceedings determines the setting of goals, the formation of a range of tasks and the definition of ways to solve them in judicial activity. In some scientific works, the content of individual judicial regulation is formulated as a specification of judicial discretion. At the same time, the activity of the court on individual regulation consists of a variety of procedural actions, including obtaining information about the content of the legal relationship under investigation (for example, the nature and circumstances of the charge), verification and legal assessment of information, substantive and procedural qualification of the situation in the criminal case, the choice of the most correct solution (if such a choice is provided by the criminal codeprocedural law). Discretion in this scheme is really visible at almost all stages. However, not only discretion.

Among the mandatory elements of the content of individual judicial regulation is the selection and interpretation of the norms to be applied, the clarification of their content in relation to a specific procedural situation. In criminal proceedings, this kind of activity takes place not only in relation to the final procedural decision – the verdict of the court, but also in relation to other possible situations, for example, admission or refusal of admission of a person who is not a lawyer as a defender, (requires an assessment by the court of the qualifications and other potential of such a person), appointment by an expert, invitation of a specialist and many others. The court is obliged, on the one hand, to act clearly within the limits established by law, and on the other hand, to individualize its decision each time based on specific circumstances that may change court decisions.

For example, in a criminal case, the court considered an application for admission as a defender of a person who is not a lawyer and refused to satisfy it, in another situation, it granted such a request. In both cases, the higher court instance confirmed the legality of the court decision.

Accordingly, the essential feature of individual judicial regulation is to a greater extent not the discretion of the court, but the legal statement of a certain situation. Therefore, the identification of individual judicial regulation with judicial discretion, we believe, is not true. By its content, both the concept itself and the procedural activity of the court designated by it in criminal proceedings is a complex complex consisting of several systems, each of which has its own legislative basis and regulatory features (for example, the competence of the court in the field of resolving a criminal case does not have such a basis as discretion, but is based on imperative rules).

The fourth feature of individual judicial regulation is its procedural form. In the theory of law, this feature is considered as mandatory and one cannot disagree with this. In criminal proceedings, the procedural form of individual judicial regulation has not been considered so far. Taking into account the considerations expressed regarding the content of the relevant judicial activity, it is fashionable to assume that the procedural form should include rules that determine not only the entire process of obtaining the necessary information, its legal assessment and qualification of the conclusions drawn, but also the feedback procedure for eliminating existing legislative gaps.

Summing up, we propose the following definition of individual judicial regulation.

Individual judicial regulation in criminal proceedings is a derivative law enforcement activity of the court, which has a criminal procedural nature, consisting of procedural actions of the court aimed at clarifying factual circumstances and their legal assessment, based on the interpretation of the meaning and adaptation of the general procedural norm to specific conditions, leading to the adoption of a procedural decision that has the significance of a legal fact.