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Video tags
Subtitles
Russian
00:00:03
feeling or a scientific problem, a00:00:07
certain hypothesis that00:00:11
requires development, but Alexander00:00:16
Vitalievich finally convinced me00:00:18
that00:00:20
this idea is already hanging in the air00:00:24
and sooner or later we will touch on it and00:00:28
we are now, as it were, approaching it. I00:00:32
may be very ambitious, and I00:00:35
’ll title the topic of my speech, but uh,00:00:39
the theses that I’ll deliver will probably00:00:42
show that it’s00:00:43
not so global, but may very well00:00:48
be non-standard. I’m trying to00:00:51
look at00:00:53
criminal procedural law00:00:55
and modern problems of legal understanding,00:01:00
and00:01:02
at first glance this might be not very00:01:05
connected with the first two speeches, but00:01:08
for me both speeches are about00:01:11
this,00:01:13
and when Timur Viktorovich puts00:01:17
these problems of00:01:19
interaction between constitutional00:01:21
proceedings and criminal00:01:23
proceedings on a par, and in his application he says00:01:27
that he00:01:32
takes the problems of the judicial as a kind of unifying basis rights,00:01:36
then everyone who has repeatedly addressed the00:01:40
topic of judicial law, every time they talked00:01:42
about the law,00:01:44
every time attempts were made00:01:48
to discuss Is there such a kind of00:01:52
integrated independent branch? Is it00:01:54
possible to combine what now00:01:57
seems incompatible: the00:02:00
criminal process and the civil process,00:02:02
especially now the criminal process00:02:04
Arbitration, criminal, constitutional in00:02:07
a certain way, and also questions of judicial system in a00:02:10
certain00:02:11
judicial law, which00:02:14
can00:02:16
hypothetically serve as the basis for00:02:19
researching this interaction and00:02:22
points of contact,00:02:23
it seems to me that, probably, if so00:02:29
far,00:02:30
despite the attempts of very serious00:02:34
researchers, to address this00:02:36
issue and express such a hypothesis00:02:39
proposal for this right as a certain00:02:43
industry has been formed here, then obviously there00:02:47
are objective reasons for this and it00:02:50
seems to me that we, of course,00:02:51
theoretically can talk about this00:02:54
topic, but this is the direction of reasoning.00:02:58
Well, for now it seems to me like a dead end and they will00:03:02
not actually provide the basis that is00:03:06
really needed for this kind of00:03:09
comparative00:03:11
research, and I see it in this00:03:16
direction, rather the00:03:18
basis for such a formulation of the question00:03:21
can be the theory of the judiciary;00:03:26
today it does not exist yet;00:03:29
today there are studies by00:03:32
some authors who seem to be00:03:35
groping for approaches to the theory; this and00:03:39
theorists in including Professor Marchenko,00:03:42
who has very interesting and deep00:03:45
works on this topic; these are00:03:48
the proceduralists themselves00:03:49
who are trying to understand the essence of the00:03:53
judicial power, the properties of the mechanism, and so00:03:56
on, and it seems to me that just00:03:59
theoretical approaches, the very understanding of the00:04:02
judicial power, would serve as a more00:04:06
reliable basis. although with those00:04:10
reservations, not all questions of the theory of00:04:12
the judiciary are already clear and00:04:16
researched today, and moreover, from the point of view of the00:04:19
theory as a certain field of00:04:23
science today, yes Not yet,00:04:27
so when we talk about law,00:04:33
it is still a sphere of regulation This is, after00:04:37
all, the sphere of regulation of those00:04:40
very social relations, and in this00:04:43
regard, the formulation of Alexander00:04:46
Vitalievich’s problem is incredibly interesting,00:04:49
we are just beginning to turn to00:04:53
the Constitution as a certain legal00:04:56
source that directly00:04:59
regulates public relations. And00:05:03
here the question arises, I am now before00:05:06
your eyes I’ll play a little more,00:05:07
the question arises about whether00:05:13
law is today, what00:05:21
in theory. We are used to understanding law as a00:05:24
set of norms.00:05:27
We are used to saying that00:05:30
law is divided into branches by subject, by00:05:37
method of regulation, and so on, if we00:05:41
consider criminal procedural00:05:44
law, then one of the key issues00:05:47
of characterization criminal00:05:49
procedural law, take any00:05:50
textbook,00:05:51
first of all there is a question about the sources00:05:55
and we always determine from which00:05:58
source we take this or that legal00:06:01
norm and we are now talking, let’s say, not00:06:05
only about the criminal procedural00:06:08
law, but we pose a broader question:00:06:11
criminal procedural law we have00:06:13
Seventh article in the Code of Criminal Procedure there is a00:06:16
corresponding resolution of the00:06:17
Constitutional Court which showed00:06:20
How this works The subordination of00:06:23
these laws and we are considering00:06:25
criminal procedural law in00:06:28
this row there are00:06:32
different sources but in the same order00:06:36
Arranged in the same row00:06:39
if we look at these dolls00:06:43
then00:06:45
which source is which figure00:06:48
corresponds00:06:50
among the sources we call the Constitution00:06:54
and we even write in textbooks that00:06:56
the constitution is a norm of direct action,00:06:58
here the Constitution is Which of these00:07:02
figures00:07:08
And if we look at literally the very first00:07:12
norms of the criminal procedural code00:07:14
and where we establish the provision00:07:18
that the basic law governing the00:07:21
criminal process is the Code of Criminal Procedure,00:07:25
then in the PC there is00:07:30
either the second one or in the middle, or this is00:07:35
what this leads to, this leads to the fact00:07:39
that in practice00:07:42
the law enforcement officer does not always00:07:45
find the very norm in00:07:48
order to make this or that decision00:07:52
just yesterday when discussing the problems of00:07:55
introducing appellate proceedings00:07:58
by a judge The00:07:59
Leningrad City Court00:08:02
has already analyzed the first two months of00:08:05
practice and what they are getting at, and the00:08:09
deputy chairman put a00:08:12
very interesting question for discussion.00:08:14
If we are talking about the Circle of subjects who00:08:17
have the right to file an appeal, the00:08:22
judicial colleagues in criminal cases of the00:08:24
city court came to the conclusion that00:08:26
since the00:08:30
Law and the resolution The Plenum speaks not00:08:32
only about those entities that are directly00:08:34
named in the law, but also other persons00:08:37
whose questions and whose rights are affected, they00:08:40
apply a broad interpretation and00:08:43
believe that an00:08:45
investigator,00:08:47
the head of the Investigative Body, can file an appeal and00:08:50
they already have a decision where they accepted00:08:54
such appeals and made a00:08:56
decision on these appeals. The00:08:59
Moscow City Court is developing and00:09:01
says. We are fundamentally against it; in00:09:04
no case can it be expanded to such an extent,00:09:08
but the Moscow City Court is already00:09:11
receiving an appeal from an00:09:13
investigator who refers to the decision of the00:09:17
St. Petersburg court00:09:20
as a decision on a specific case and00:09:23
says Why is it possible in St. Petersburg and the00:09:25
St. Petersburg court accepts it? Why don’t you00:09:26
accept it?00:09:27
We can find the answer to this question00:09:31
in the sources.00:09:34
Every law enforcement official today demands00:09:38
from the source of law a00:09:41
clear and unambiguous answer. Tell me00:09:45
how. Write it in the text. When00:09:50
something is missing in the text, we assume that00:09:53
we need to immediately supplement this text00:09:55
change this text clarify this text00:09:58
And we are patching up the legislation ad00:10:01
infinitum And we are faced with a00:10:04
situation, firstly, we are finally00:10:08
starting technically with our00:10:10
hands What is called00:10:12
feeling and thinking to realize that it00:10:15
turns out it is impossible to write a law for00:10:18
every life situation00:10:20
it turns out that Social relations are00:10:23
much more complex00:10:25
than it can be laid down in general, here is a system of00:10:29
norms even in Germany where they consider this an00:10:33
instructive normative act and where00:10:37
the text of the law is devoid of definition,00:10:40
devoid of any ideological norms, devoid of00:10:43
any general goal-setting, but00:10:46
really just a set of rules00:10:48
if done this way then do this, the00:10:51
next step should be these are the00:10:53
instructions00:10:56
life is more complicated00:10:59
and there are not enough instructions00:11:03
intruding here and the new problems00:11:06
of which Alexander Vital also00:11:08
said today are the problems of human rights and00:11:12
I completely agree with him that as00:11:14
soon as the00:11:15
20th century the second half The 20th century00:11:19
actualized a person as the value of a00:11:24
person as a subject with00:11:27
rights so significant that he can00:11:32
argue with the state that he can00:11:35
demand something from the state.00:11:37
We find ourselves in a Situation that, by00:11:42
definition, cannot be ideally00:11:44
resolved because the00:11:47
sphere of human rights is an absolutely00:11:48
individual and what right will be00:11:52
demanded in the next second or in the00:11:55
next criminal case,00:11:58
not a single legislator can predict00:12:00
at one meeting with teachers00:12:03
at advanced training courses when00:12:05
we discussed the relationship between criminal00:12:08
procedural law and the decision of the00:12:09
European Court, the teacher00:12:12
asked me the question: in00:12:13
general, in principle, is it possible to00:12:18
demand protection of rights that are not00:12:21
written down textually in the00:12:23
criminal procedure code,00:12:26
but is it possible for the victim to demand00:12:29
access to justice in the00:12:32
criminal procedure code, by00:12:33
the way 125 mentions this term but not the00:12:37
concept itself is not disclosed; no00:12:40
mechanism for the implementation of such a right is not00:12:44
recorded in the code. So can00:12:47
the victim even 125 to use and00:12:49
complain that his00:12:51
right to access to justice has been violated if it00:12:54
itself is in that substantive and legal00:12:56
sense about which it was stated in the dissenting opinions in the decision on00:13:00
Golden v. Great Britain00:13:09
Dacha formulation of the question00:13:12
and here it seems to me that the answer00:13:15
we should look not in the multiplication of00:13:19
sources and not in the multiplication of this00:13:22
series,00:13:23
it seems to me that now it is precisely00:13:27
the development of law itself. Social00:13:30
relations themselves, their complexity, their diversity,00:13:33
their character requires a different approach00:13:37
to law.00:13:38
Well, the theorists have put before us00:13:42
some such00:13:45
dilemma or is this positive law When the00:13:48
norm is enshrined in normative facts or00:13:51
is it a natural right, when no00:13:53
normative definition is needed at all,00:13:55
there is the right to life, but it exists00:13:57
even if we do not enshrine it, it is00:14:00
still00:14:01
criminal procedural law00:14:04
regulates the sphere of public relations Hmm,00:14:07
therefore, without certainty and systematicity,00:14:11
this law is not a guarantee,00:14:15
and today we constantly emphasize the00:14:18
guarantee value of procedural norms,00:14:21
rules are needed only to00:14:24
ensure compliance with rights to ensure the00:14:28
legality of the actions of government bodies and the00:14:31
executive branch in pre-trial00:14:33
proceedings, and especially the judicial branch,00:14:35
which does not operate outside the law at all, the00:14:38
first part of Article 11800:14:44
We always its Constitution is not always00:14:47
used in only one sense; the00:14:49
subject of justice is only the court,00:14:53
but there is another meaning: the court as a00:14:57
subject of justice. What makes the00:15:00
content of the judicial power justice becomes,00:15:05
that is, the right and the ability of the court to judge the00:15:10
right to judge on the basis of law,00:15:15
and this is the subject area of00:15:19
conflict resolution from disputes of other legal00:15:22
issues that are assigned by law to the00:15:24
competence here exclusively within the framework of00:15:27
law,00:15:29
therefore we must determine what00:15:33
this base is for the00:15:37
implementation of one of the types of00:15:39
legal proceedings, one of the means of00:15:42
implementing the judicial power of criminal00:15:45
proceedings,00:15:46
and here we are faced, in my00:15:50
opinion,00:15:51
with a new requirement of life in understanding00:15:57
criminal procedural law and its00:15:59
sources and I’ll play a little again, we have00:16:04
some kind of social00:16:08
situation of criminal procedural00:16:11
social relations00:16:13
and we00:16:14
begin legal proceedings,00:16:17
open the corresponding article of the00:16:19
criminal procedural code and00:16:22
get a direct answer Well, in the same00:16:25
regulation of appeal we we get an00:16:28
exact answer, a list of entities that00:16:31
can file an appeal00:16:34
or an appeal presentation, a list of00:16:37
decisions of judicial bodies that are00:16:40
subject to appeal,00:16:42
then rules that delimit what00:16:46
can be appealed independently,00:16:48
including interim decisions. And what does an00:16:50
appeal require only simultaneously00:16:52
with the final decision, and so on00:16:55
But here we are faced with a situation for00:16:58
which there is no answer in the law, the investigator is one of00:17:01
these subjects or00:17:03
not, what should the00:17:06
court be guided by? When making such a decision, what should the00:17:11
theory be guided by?00:17:13
Answering the requests of practice, what should we00:17:17
do?00:17:18
You can, of course, say, it seems to me like00:17:21
this, but the judge cannot in his decision00:17:24
to refer to the fact that it seems to someone that00:17:28
he needs a legal basis00:17:31
Where to look for a legal basis if not in00:17:36
the text if there is no direct text of this00:17:40
legal norm00:17:42
Here I am destroying this system of00:17:46
sources only visually I play with dolls00:17:50
differently00:17:52
the system of sources can persist and00:17:55
moreover, it seems to me that this is00:17:58
not an exhausted system; it can expand at any moment,00:18:02
but we begin to work with it00:18:05
differently for a banal00:18:08
obvious legal situation, if an article of the00:18:11
criminal procedural code gives a00:18:14
sexual answer, we will limit ourselves to00:18:17
using only this level of00:18:19
sources. But how only the question is more complicated,00:18:26
we need a different amount of research00:18:31
to find a legal norm,00:18:35
and from the text of the Code of Criminal Procedure we are forced00:18:40
to look for something else where the00:18:46
same legal relationship is more comprehensively regulated, and00:18:51
perhaps we will simply add to a particular norm of the00:18:54
Code of Criminal Procedure00:18:57
the Area of all principles of the criminal procedure00:19:00
and then we will understand the answer to this question.00:19:04
Well, for example, with this same investigator,00:19:08
I can, theoretically reasoning,00:19:11
build the arguments of my vision for00:19:16
my answer. If we are talking about the fact that00:19:20
appeal proceedings are a test of the00:19:23
justice of the decision made,00:19:27
and if the judiciary00:19:30
resolves a dispute between the state and a private00:19:34
person,00:19:36
then a The question is, what is the investigator’s00:19:39
role, what place does he occupy in00:19:44
this series of social relations? The00:19:46
regional city court of Moscow00:19:49
Leningradsky St. Petersburg says,00:19:52
well, he’s the prosecution00:19:56
correctly speaking.00:19:57
And we further argue who the prosecution is. Is it00:20:01
these disparate00:20:04
officials or is it a somewhat00:20:07
hierarchically structured party00:20:12
And here is a00:20:13
different situation and here is a different00:20:17
regulation the00:20:18
investigator has his own functions in00:20:22
carrying out the prosecution the head of the00:20:25
investigative body has his own the prosecutor has00:20:28
his own00:20:30
and if the question arises00:20:34
why the investigator is filing a complaint00:20:42
he has the right to argue00:20:47
about the court decision he00:20:52
cannot have a personal interest00:20:56
he cannot file a complaint But if00:21:00
we look at the prosecutor who, at the00:21:02
pre-trial stage, has a supervisory function that is directly00:21:04
prescribed to him, and in relation to00:21:08
all other criminal00:21:09
proceedings, being a party to the00:21:12
prosecution only in the first instance,00:21:15
already in the appellate instance, he ceases to be a00:21:18
party to the prosecution00:21:20
already in the appellate instance, the prosecutor00:21:22
participates because it has a different00:21:25
function00:21:27
and00:21:28
supervision of legality from the law on the00:21:32
prosecutor's office has not yet been excluded as a function of the00:21:34
prosecutor. So it can be. In this00:21:37
logic, when we include the general norms of the00:21:40
Code of Criminal Procedure and the provisions of related normative00:21:43
acts and constitutional provisions,00:21:47
and then a legal norm of a different content is born00:21:54
and this is the reasoning allows this00:21:57
norm to be found,00:21:59
to formulate the00:22:03
relevant articles of normative acts00:22:05
that are in the National00:22:07
Legislation, to make a decision and00:22:10
justify it with reference to these00:22:12
normative acts.00:22:14
But this is a slightly different understanding of00:22:16
criminal procedural law,00:22:19
in some cases we lack the Code of Criminal Procedure,00:22:24
we appeal to00:22:26
the Constitution of the Russian Federation, we say00:22:30
that this is a norm of direct action00:22:32
and the same principle of ensuring the00:22:36
state’s access to00:22:38
justice for the victim is the principle of Article 52 of the00:22:42
Constitution. And if we look at our00:22:45
textbooks on criminal proceedings, then00:22:47
excuse me, each author puts 52 wherever he00:22:51
wants and there are practically no textbooks Where00:22:56
this principle is stated as an00:22:58
independent principle of criminal00:23:01
proceedings00:23:03
Well, here is our textbook on the judicial system00:23:06
is trying to destroy this approach and00:23:10
includes this norm as a norm00:23:12
regulating00:23:13
criminal procedural relations00:23:15
and in order to understand that there is access00:23:18
to justice, we cannot do without 52 of the Constitution00:23:20
and it is formed by00:23:23
maintaining this norm00:23:25
when we try to formulate a complete norm00:23:28
If we are faced with00:23:32
more in a difficult situation, sometimes we00:23:37
even lack the Constitution. Do you remember Until00:23:40
recently, uh, we were always00:23:44
reproached for unreasonable periods of00:23:47
detention, but we had nothing to answer00:23:49
because we all the time in the European00:23:52
Court referred to the procedure for extending00:23:54
these periods And they said, well how did we00:23:56
act according to the law00:23:57
and the European Court says no, we’re00:23:59
talking about something else altogether,00:24:01
if00:24:03
in one case00:24:08
the convict asked to participate in the00:24:11
cassation instance, he was convicted by the00:24:14
Irkutsk regional court, the case is being00:24:16
considered in cassation by the Supreme00:24:18
Court at the judicial collegium, the convict00:24:21
says I want to participate, his two00:24:24
they are transporting for months And in the case several00:24:26
accomplices, after some time, the00:24:29
cassation authority receives a complaint from the00:24:31
second one with a statement that I00:24:34
also want to participate,00:24:36
but this has already begun to be copied, the00:24:38
second one is also being transferred separately for 4 months00:24:41
and both are copied,00:24:43
then some more time uh Moscow00:24:47
decides the issue there When to schedule a00:24:50
trial schedules a00:24:52
trial and ensures participation00:24:54
this is the first from Irkutsk of two convicts who00:24:58
appealed the verdict via00:25:00
videoconference00:25:07
we did everything exactly in accordance with the00:25:12
bull we did not violate a single article of the Code of Criminal Procedure did00:25:18
we do it right have we applied the norm00:25:20
of procedural law, have we00:25:22
found it correctly, have we assessed the entire00:25:26
scope of legal regulation of this00:25:29
social situation, the situation of00:25:31
social relations of procedural00:25:33
relations, it turns out that we need to include00:25:38
some other sources here and expand the00:25:42
understanding of this procedural norm,00:25:46
this may also be a provision00:25:49
of the European convention, but in the00:25:53
convention itself, we do not understand what a00:25:55
reasonable period means; there is00:25:57
no way to do without it. Therefore,00:26:00
when we included a00:26:02
constitutional norm, we00:26:06
also do not always00:26:08
directly understand how it works in a constitutional norm,00:26:12
and sometimes we also need to cover this with a00:26:16
decision of the Constitutional Court, which00:26:20
establishes the constitutional and legal00:26:22
meaning of this legal norm,00:26:25
if everything is clear, we can be at00:26:28
the level of the Constitution, we can refer00:26:32
directly to the norms of the European Convention,00:26:36
and sometimes from above we still have to00:26:39
cover this with precedent decisions of the European Court00:26:42
in specific cases in order00:26:44
to understand what is behind the term reasonable00:26:46
time, right now we are working in this00:26:49
project on appeals with foreign00:26:51
experts and foreign experts, uh,00:26:55
having worked uh with organizational issues00:26:58
in our judicial system yesterday, a00:27:01
Dutch Expert expressed his ability00:27:05
that things are going well with deadlines in the Russian Federation.00:27:08
Well, if only for00:27:12
several years in a row, judicial statistics00:27:14
included data00:27:16
reviewed within up to two months00:27:18
considered in up to three months00:27:20
considered more than three months and the00:27:22
corresponding organizational00:27:24
disciplinary and other moral00:27:27
measures for the one who is longer and I00:27:30
have a question from a colleague: Is it possible to formally apply the same terms to00:27:33
criminal or civil cases?00:27:39
Die but in two months to consider00:27:42
Eduard Borisovich ran away and the load00:27:45
that00:27:47
he voiced to Yaroslavichka I00:27:51
really want to ask what about the quality of00:27:54
decisions.00:27:56
He is forced to hurry and decide. This is00:27:59
within the time frame that was given to him.00:28:03
I understand perfectly well that this is beyond00:28:05
human strength and I perfectly understand00:28:08
that he is doing something is forced to sacrifice00:28:11
and any judge finds himself in exactly this00:28:14
position,00:28:15
and if we include here not only the00:28:18
formal indication of a reasonable period, but00:28:22
also cover this with the practice of the00:28:25
European Court, then it turns out that a00:28:28
reasonable period is said in a completely different way.00:28:29
There are simply criteria00:28:32
that00:28:34
allow us to meaningfully evaluate whether it was reasonable or there00:28:37
was not a reasonable term, reasonable, this is not a00:28:40
calendar period, but this is a meaningful00:28:42
period, and without this00:28:46
array of dolls, the decision of the European Court cannot00:28:50
do without me there are not enough dolls for the00:28:53
full scope of00:28:56
today’s procedural norm, I00:28:58
left the largest doll For the00:29:01
broader context of the norms of international00:29:03
law,00:29:05
because today international law is00:29:07
so intruding into regulation,00:29:10
I’m only taking the sphere of criminal00:29:13
proceedings as we, in general, have00:29:15
never known such a situation,00:29:18
have never encountered such a situation, now the00:29:21
European convention is more or less close to us.00:29:24
We have been00:29:26
here since 1998, trying to probe and try to00:29:28
understand to delve into and begin to00:29:31
understand at least something at the level of theory at the level of00:29:34
practice, they cite, as an00:29:39
example,00:29:40
unique court decisions when a judge00:29:44
somewhere in some court in the region00:29:48
referred to an00:29:51
article of the convention in his decision or is this a unique00:29:56
decision of the European Court? But the majority00:29:59
is not, the majority do not do this even in00:30:03
the case when Here is a real specific00:30:06
situation, the decision that has already been made is simply identical,00:30:10
and yet we are00:30:13
not yet working with this source, and if00:30:16
you look at international legal00:30:18
regulation, then Today we have00:30:20
dozens if not hundreds of all kinds of not00:30:24
only generally recognized00:30:27
norms of international law, principles of00:30:30
international law such as the00:30:32
well-known international covenant, even00:30:36
the norms of the Universal Declaration, which we do00:30:38
not accept as a source of law,00:30:41
but nevertheless we somehow appeal to00:30:44
this source. But there is also a lot of00:30:47
norms that in international law00:30:49
are called norms of soft law,00:30:52
they are not among the general00:30:54
mandatory ones,00:30:56
they are either recognized or not recognized by00:31:01
default by agreement,00:31:03
right now in Russia they are discussing, for example, the00:31:07
principles and criteria for assessing00:31:11
juvenile justice.00:31:13
Well, we have a very positive attitude towards juvenile justice.00:31:17
uh, wary because the00:31:21
Russian Orthodox Church very clearly told us that this is00:31:24
bad and don’t even think about it. If you are00:31:26
believers there, don’t dare say this word at all,00:31:28
but international law at this00:31:31
time is developing somehow differently00:31:34
and the judge has a question: What kind00:31:37
of what understanding of the legal norm should you00:31:41
use? Do00:31:42
you include this understanding of the Beijing00:31:45
rules? Do you include this understanding of00:31:49
the criteria that were created simply for00:31:52
evaluation by the00:31:54
United Nations committee,00:31:56
they sent them to all countries and they say,00:31:59
just in case Look, we00:32:01
evaluate this way, including And what the00:32:04
number of00:32:05
minors in00:32:07
custody And how many00:32:09
minors are sentenced to00:32:11
imprisonment And how many00:32:13
minors have died while00:32:20
in our custody, does anyone take this indicator into account00:32:23
and the judge, when prescribing a00:32:26
preventive measure or a penalty, is00:32:30
familiar with these figures and is focused on these00:32:33
indicators Yes no we do00:32:36
n’t know yet. But life is developing in this00:32:39
direction. Therefore, this is the00:32:43
thought that I think is the thought of a00:32:47
holographic00:32:48
volumetric understanding of criminal00:32:52
procedural law and the volumetric00:32:55
formation of a criminal procedural00:32:57
norm;00:33:00
there is no consideration of sources as a series of00:33:03
posited ones,00:33:06
but their combination in some general approach. In00:33:11
some general understanding, and it00:33:14
seemed to me that00:33:18
Alexander Vitalievich took exactly this step today00:33:20
when he showed how the norms of00:33:23
the Constitution and criminal procedural00:33:26
law are connected, so it seemed to me that he simply00:33:28
took on this small doll of00:33:32
criminal procedural law00:33:34
[music]00:33:35
very large and very significant for00:33:39
We00:33:40
would like to expand the cap of the Constitution.00:33:44
Maybe I’m wrong, this is00:33:46
just a hypothesis, thank you, thank you00:33:49
[music]00:33:58
Here, choose judicial law is not suitable,00:34:01
but the judicial power is coming more. Is it00:34:04
possible to consider somehow connecting00:34:07
these things and if the judicial power00:34:10
should apparently be what? -the law regulating the00:34:13
judicial power cannot be considered the00:34:14
doctrine of power in a modern key, not00:34:17
as the creation of a judicial code, but as00:34:19
precisely the legal basis for activity00:34:23
[music]00:34:27
in the approach that Alexander00:34:31
Vitalievich applied for me,00:34:34
judicial law, the foundations of the legal judicial00:34:39
power of00:34:40
the Constitution, we include here in the same00:34:45
basis and criminal00:34:49
civil-arbitration procedural00:34:51
codes, including procedural norms00:34:53
of law in the constitutional court, only00:34:56
due to the fact that the second part of Article 118 of00:34:59
the Constitution told us unequivocally. And this00:35:04
cannot be interpreted differently; judicial00:35:08
power is exercised through00:35:15
legal proceedings; there is00:35:21
no other way to exercise judicial power, and this once again to the problems of00:35:25
today’s reform of the verification stages,00:35:28
look what’s happening. We don’t even00:35:30
notice this at all. Vitalievich00:35:32
said that the change in jurisdiction00:35:34
concerns and affects the interests of the00:35:37
jury here. And you look from the point of view of00:35:40
the implementation of judicial power00:35:43
if the Supreme Court refuses the00:35:46
first instance has already refused00:35:48
if it reduces its appellate powers to a minimum00:35:52
and its supervisory00:35:56
powers will generally be one-time how much00:36:00
judicial power does it have where has the00:36:04
judicial power gone?00:36:07
As a subject of the Federation,00:36:09
the state today can provide00:36:12
citizens in different subjects of the Federation00:36:16
with the same level of judicial protection00:36:20
We live in different regions, we understand00:36:23
that regions are very different from each other00:36:27
And Unfortunately, there are regions where you00:36:30
can’t count on judicial protection at all00:36:32
and the only hope for00:36:35
protection is that we will reach the Supreme Court.00:36:38
And today the Supreme Court says no no00:36:40
no, I don’t need the judiciary, I’m00:36:43
answered by opponents, but the Supreme Court00:36:46
has the right to00:36:48
clarification.00:36:49
And this Sorry, not the judiciary00:36:53
because the clarification of the Supreme Court00:36:55
outside the framework of the court of proceedings is any00:36:59
other powers it has, in addition to the judicial00:37:02
power, it also has powers as a00:37:04
state body about the judicial00:37:07
power it is only where work is on a00:37:09
specific criminal case and the judicial00:37:12
power only at the moment when it is00:37:14
proceedings on a specific case at all00:37:18
other times the judicial power00:37:20
is resting00:37:28
my personal attitude to the fact that the article is00:37:31
about the prosecutor's office of the Russian Federation00:37:37
Well, how absurd00:37:39
how absurd the00:37:42
absurdity of the legislator at the time of the00:37:44
development and adoption of the Constitution of00:37:48
1993, we still did not really understand what the00:37:52
judicial power is, we are only on00:37:54
the political level, this term00:37:56
was used and the legal essence of this00:37:59
concept We, unfortunately, did not know and at the00:38:02
same time we did not know. Where to put the00:38:05
prosecutor’s office, it was pitiful to throw it out completely,00:38:07
but remember that flurry of00:38:10
criticism of the prosecutor’s office that we00:38:13
started with in the nineties,00:38:16
now we understand that in conditions of00:38:19
such a huge Federation00:38:21
Well, probably00:38:23
Tsar Peter was maybe not so00:38:27
wrong, the00:38:35
legislator won’t even think about it00:38:37
and he will never understand us00:38:41
If we build these functionalities very logically00:38:49
What does the legislator do, the legislator00:38:51
regulates Social relations with the00:38:54
help of laws And who ensures the00:38:56
execution of the laws, we say the Accounts00:38:59
Chamber, the00:39:01
Accounts Chamber counts the money, and00:39:04
here the laws are enforced; it ensures the execution of00:39:07
one single law on the budget and00:39:10
that’s all. And all the other laws and look00:39:13
what a gap we ourselves have created,00:39:18
the legislator is simply engaged in the00:39:25
law of creativity, the laws of creativity, the00:39:28
softest expression when we understand00:39:31
that in Changes to criminal law are made00:39:35
at almost every meeting of the00:39:36
State Duma because this is the00:39:39
most striking activity that a00:39:43
deputy can demonstrate; to00:39:45
introduce some kind of killer amendment00:39:48
to the Criminal Code, and the fact that00:39:52
Criminal Law and the stability of00:39:54
Criminal Law is the basis for the stability of the00:39:57
state; it is the basis of national00:40:01
security alone in any case, the00:40:04
judicial power in the conditions of00:40:06
legislative changes cannot00:40:09
ensure the stability00:40:12
of power. And this is one of the functions of the judicial00:40:15
power00:40:17
and who can explain this to the legislator today00:40:22
if, of course, the prosecutor’s office were put in00:40:26
its rightful place and made it the body00:40:29
ensuring this steady00:40:33
uniform understanding and application00:40:35
laws00:40:37
there then, of course, it should be an00:40:39
instrument of the legislative power; this00:40:42
Legislative power should give it00:40:43
instructions to accept information from it00:40:46
and take measures based on this00:40:48
information,00:41:21
which we his speeches00:41:23
stated in advance, the general principles of law, their00:41:28
role in the harmonization of the norms of console and00:41:31
international Criminal00:41:33
law and legal proceedings. But since There00:41:37
probably won’t be enough time for everything. I’ll00:41:40
try to be closer to the topic of our00:41:44
conference. I00:41:45
would like to remind you that the general principles of00:41:49
law are the initial normative00:41:52
guiding principle that00:41:54
affects the essence of law,00:41:57
determining its main content and00:42:00
social value00:42:02
in the course of the development of human civilization,00:42:06
on the basis of general principles of law,00:42:08
national legal systems are formed00:42:13
industries and institutions,00:42:17
legal postulates are formed, the rules of legal00:42:21
logic of legal technology00:42:24
are fixed, imperative requirements for the00:42:27
norm of creative00:42:30
law enforcement activity00:42:36
[music]00:42:39
some single comprehensive list of00:42:43
general principles of law00:42:46
or their established classification00:42:50
Not yet, but in practice they are increasingly00:42:54
used both within00:42:56
the state and in the international00:42:58
legal regulation of00:43:01
law enforcement and legal proceedings, the00:43:04
Soviet period rejected the very00:43:06
possibility of the existence of general00:43:08
principles of law because they said that there00:43:14
is and cannot be anything in common between the Socialist system, but in recent00:43:18
years, thank God, the attitude to the approach has changed;00:43:22
others began to note that the criteria for00:43:29
classifying principles into the category of general00:43:32
legal ones is their universality of the00:43:36
sectoral nature00:43:40
as well as recognition by the international00:43:42
community of states as00:43:45
legally binding rules of conduct00:43:48
that are used to apply00:43:50
specific legal norms in determining the00:43:54
rights and obligations of subjects of rights00:43:58
general principles of law can be in00:44:01
complex correlation with the principles of00:44:04
national legal systems there are00:44:08
principles of international it is00:44:10
simpler there is in principle on certain00:44:13
branches of00:44:14
international law, including00:44:16
international Criminal00:44:18
law, international court of00:44:21
justice, how this term is sometimes used.00:44:25
Well, for example, the00:44:27
common law principle of equality, which00:44:31
has its roots in the00:44:34
ancient Roman postulate, equal over equal00:44:37
has no power, is00:44:39
currently concretized by the00:44:41
conson principle of equality of all before the00:44:44
law and international00:44:47
sovereign equality for00:44:49
example, when settling disputes in an00:44:52
international court of an organization, the00:44:57
general principle of legal certainty00:45:00
is in close relationship with the00:45:03
conson principles of00:45:05
legality of the supremacy of law, as well as with00:45:09
such axioms as no one can00:45:12
transfer to another more rights than to have00:45:16
laws or a contract itself establishing00:45:18
liability or aggravating laws does not have00:45:21
retroactive effect00:45:24
the contract has an00:45:26
advantage over the previous00:45:30
priority over the previous00:45:35
provision of judicial protection of violated00:45:38
rights,00:45:39
embodied as in material such00:45:42
social norms is more general00:45:45
in relation to such principles as00:45:48
justice is an unchangeable and constant00:45:52
Will to provide everyone with his rights is still00:45:56
there,00:46:00
let him be heard and00:46:04
no one can the other side to be a judge in your00:46:06
own case, this principle,00:46:09
Dear00:46:10
Vitalshchina, called this a00:46:14
negative position: deceptions cannot be proven;00:46:17
they destroy legal00:46:20
consequences; no one can invoke00:46:24
ignorance of the laws as an excuse;00:46:26
the right cannot arise from an00:46:29
offense; let’s say, concretization of00:46:33
the principle of ensuring00:46:38
judicial protection of those violated;00:46:41
in general, the principles of law are received as their own00:46:45
consolidation in constitutions00:46:47
is an important resource for00:46:50
improving the00:46:51
law enforcement process;00:46:54
therefore, the00:46:56
practice of applying general00:46:59
principles of law by the00:47:01
courts of Russia and, above all, by the00:47:05
country’s consolidation court is of great importance. The first was done back in00:47:09
1992, then by a00:47:12
decision of the Constitutional Court with00:47:15
Russia, two on November 10,00:47:19
1992, two decrees President Yeltsin were00:47:22
recognized as not complying with the general00:47:25
principle of law according to which the Law and00:47:29
other normative acts providing for00:47:32
restrictions on the rights of citizens come into force00:47:35
only after its official publication; the00:47:42
legal principle of justice was00:47:44
repeatedly referred to by the intonation court00:47:47
when considering issues in the field of00:47:49
criminal and criminal procedural00:47:52
law,00:47:54
thus revealing the console the content of the00:47:56
right to judicial protection, the Constitutional00:47:59
Court of Russia formulated a legal00:48:01
position according to which this right00:48:04
presupposes specific guarantees00:48:08
that would allow it to be implemented in00:48:12
full and ensure effective00:48:16
restoration of rights through00:48:18
justice that meets the requirements of00:48:22
fairness; the principle of fairness, the00:48:25
absence of the opportunity to revise an00:48:28
erroneous judicial act, implores and00:48:31
limits the right to judicial protection the00:48:34
constitutional decision was dry on00:48:36
February 3, 98,00:48:39
here is the stated legal position as00:48:43
being of a general nature,00:48:45
another decision of the00:48:47
Constitutional Court on00:48:50
May 28, 99 extended Ena to all00:48:54
types of00:48:56
proceedings, including criminal00:49:00
court proceedings, the00:49:05
legal meaning of the law adopted on June 28,00:49:09
200000:49:11
by the state Duma of the act on amnesty, the00:49:14
console court in its resolution of00:49:18
July 5, 2001 noted the strength of the presumption of00:49:23
good faith and reasonableness of the actions of the00:49:26
console bodies,00:49:28
it is assumed that based on common00:49:31
interests in the exercise of the power00:49:34
to declare an amnesty, the00:49:36
State Duma cannot go00:49:39
beyond the console; the limits of the00:49:43
wide discretion granted to it are determined; the00:49:47
defined limits determined primarily by00:49:52
general legal principles00:49:55
mandatory in a democratic society.00:49:58
According to these principles, it would not correspond00:50:01
in particular to the nature and purpose of the00:50:04
amnesty act by creating conditions for00:50:09
exemption from criminal00:50:11
liability for acts committed00:50:14
after the announcement of the amnesty because it00:50:17
ends because it00:50:22
provoked the commission of00:50:23
crimes and would deprive00:50:27
potential victims defense I00:50:32
would still like to conclude by noting the following00:50:35
that the00:50:36
judicial interpretation of generally accepted00:50:39
general legal principles, on the one hand,00:50:42
allows us to identify their modern meaning and00:50:46
deep content, which turns out to be00:50:49
necessary to eliminate gaps,00:50:52
and on the other hand, is one of the00:50:55
criteria for00:50:57
the independence of the court of power in its00:51:00
interaction with the legislative and00:51:02
executive branches of government, general00:51:06
principles of law can be used00:51:08
as a means of eliminating gaps in00:51:12
the law not only by the constitutional court but also by00:51:15
other00:51:16
courts, and I would like to note00:51:20
that the use of one or another00:51:24
general principle of law by the courts does not mean00:51:27
automatically eliminating the gap or00:51:30
eliminating conflicts; the principles of law00:51:33
allow us to overcome the uncertainty00:51:36
of the legal regulation in a specific00:51:38
dispute or situation in the execution of the same00:51:42
gap and resolution of the conflict00:51:55
Dear colleagues, we very much ask for the words of00:51:59
Liliya Gennadievna Lifanova, since she00:52:02
needs an airplane, so let us slightly00:52:06
change the speakers in succession. Moreover,00:52:09
this very issue is narrow, but the termination of00:52:13
criminal prosecution has00:52:16
recently been00:52:18
discussed00:52:21
discussed further in a number of decisions that00:52:23
we will soon see the00:52:26
termination of criminal prosecution,00:52:30
but now the topic will be the topic of the speech00:52:35
will be different than the stated reason00:52:39
for leaving the speech. I want to say that in00:52:44
my report some00:52:46
points will probably be illustrated.00:52:52
Well, in general, the question of respecting the00:52:54
constitutional rights of persons involved in the00:52:56
field of criminal proceedings as00:52:58
is known in the legal literature,00:52:59
it has been studied for a long time and in a multifaceted manner in more00:53:02
than dissertation works, if you00:53:05
believe the electronic catalog of the Russian00:53:06
State Library, in one00:53:08
context or another, this issue was given00:53:10
attention to the results of each00:53:12
dissertation research, as we00:53:13
know, according to procedural requirements,00:53:15
it is being introduced into the practical activities of00:53:17
law enforcement agencies and It would seem00:53:20
no longer should there remain any00:53:22
problems in observing the00:53:24
constitutional rights of citizens in criminal00:53:26
proceedings? Unfortunately, this is00:53:28
not the case;00:53:29
the writing of this article aroseDescription:
Воскобитова Лидия Алексеевна -- доктор юридических наук, профессор, заведующая кафедрой уголовно-процессуального права Московского государственного юридического университета имени О.Е. Кутафина (МГЮА). Выступление на Всероссийской научно-практической конференции «Взаимосвязь конституционного и уголовного судопроизводств», 22 марта 2013 года, г. Санкт-Петербург). http://www.iuaj.net/node/1215
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This feature is available in the UDL Helper extension. Make sure that "Show the video snapshot button" is checked in the settings. A camera icon should appear in the lower right corner of the player to the left of the "Settings" icon. When you click on it, the current frame from the video will be saved to your computer in JPEG format.
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It costs nothing. Our services are absolutely free for all users. There are no PRO subscriptions, no restrictions on the number or maximum length of downloaded videos.