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Justice as the main function of the court. Justice as one of the important directions (functions) of the judiciary. hallmarks of justice. Supreme Courts of the Russian Federation

The category "justice" has long been known to law and legal science. The activity designated by it has always been the subject of close attention of scientists and has been repeatedly studied, but, perhaps, has never been unequivocally determined. The authors who turned to this concept singled out certain aspects of the relevant activity as the most important, without fully covering all the properties of this phenomenon.

Prior to the adoption of the current Constitution of the Russian Federation, justice was developed and studied mainly from the point of view of criminal procedural and civil procedural legislation. Despite the rather diverse formulations of the concept of justice, all authors agreed that justice is: a kind of state activity carried out only by the court with the obligatory observance of the procedural form, by considering civil and criminal cases in court sessions.

Later, after the adoption of the current Constitution of the Russian Federation, justice began to be characterized as a constitutionally fixed, special form of state activity in the field of judicial power, expressed in the protection and protection by courts of general and arbitration jurisdiction of the normal functioning of social relations that develop with the participation of citizens, enterprises and organizations, and including a mechanism for the judicial resolution of disputes about the law and other conflicts through the administration of civil, arbitration, criminal and administrative proceedings in order to restore and protect the legitimate rights and interests of an individual and the entire civil society. The Constitution of the Russian Federation adopted in 1993 significantly changed the idea of justice. First, having consolidated the principle of separation of power into three branches, for the first time, along with justice, she uses the term "judicial power" and indicates that justice is a form of exercise of judicial power.

Justice is a special type of legal activity, the implementation of which is entrusted by society and the state to the judiciary.

It is important to characterize the main, very specific properties of justice from the point of view of traditional rules of procedure. Firstly, the administration of justice in the context of complex and ramified legislation acquires some features of research work, on the one hand, it pursues the goal of finding the truth, in other words, a reliable establishment of facts, and on the other hand, it requires their accurate legal assessment, which is achieved only by a thorough analysis of the normative provisions derived from the totality of existing sources of law. Secondly, judicial activity is inconceivable outside the observance of strict procedural forms, the violation of which may be the subject of a new trial. Thirdly, the dispute resolution activity is a procedure that does not depend only on clients, because the latter do not enjoy absolute freedom to conduct proceedings on their own initiative. Fourthly, the most important principle that determines the activity on the consideration of contentious issues is the need for timely and most complete presentation of evidence. Fifthly, the courts have full jurisdiction in the sense that no other authorities have the right to question the obligation of their execution.

The role and importance of justice is due to a number of factors. These include, first of all, the fact that the administration of justice is closely connected with the adoption of decisions on cardinal issues of the implementation of socio-economic, political and personal rights and freedoms of man and citizen, the rights and legitimate interests of state and other organizations. It is justice that has the decisive word in recognizing a particular person as guilty of a crime and imposing a measure of punishment or other legally defined influence, as well as in the rehabilitation of those who were illegally and unreasonably held accountable.

The same word belongs to him in determining the legal consequences arising from the consideration of disputes between citizens related to the implementation of, say, labor, family, copyright, inventive, housing, other property or non-property rights granted to them. Justice is also a way to resolve disputes arising in the field of economic activity between state and non-state organizations, persons engaged in entrepreneurship.

Judicial decisions taken in the process or as a result of the administration of justice and often referred to in the legal literature as acts of justice, in accordance with the law, are endowed with special properties. One of them is universality. It means, in particular, that a verdict, ruling or resolution that has entered into force is binding on all state authorities, local self-government bodies, public associations, officials, other individuals and legal entities without exception and is subject to execution throughout the territory of the Russian Federation.

The law defines the social and legal significance of court decisions in civil cases somewhat differently: after they enter into force, as a rule, they are not automatically executed. For their implementation, the will of the person concerned or the occurrence of some other condition is required. But if, for example, such an expression of will is expressed, then the requirement to enforce a judgment in a civil case becomes mandatory for everyone and throughout the country.

The essence of justice, its role and significance, at the same time, are manifested not only and not so much in the fact that it, being the leading and very responsible area of law enforcement, is crowned with the adoption of generally binding decisions on cardinal issues. It has a number of other specific features. These should include, first of all, the fact that, according to the law, this type of state activity can be carried out only in specific ways, and not arbitrarily, at the discretion of some officials or bodies. And these ways the law fixes quite definitely. Article 4 of the Law on the Judicial System clearly states that justice must be administered through:

Consideration and resolution in court hearings of civil cases on disputes affecting the rights and interests of citizens, enterprises, institutions and organizations;

Consideration in court hearings of criminal cases and the application of statutory penalties to persons guilty of a crime, or acquittals are innocent.

Another distinguishing feature of justice is that this type of state activity can be carried out in compliance with a special order (procedure), which is regulated in detail by law. Finally, the distinguishing features of justice also include the fact that it can only be carried out by a special body - the court. No other body or other official has the right to carry out this activity.

Taking into account the noted distinguishing features of justice, it can be defined as law enforcement activities carried out by the court to consider and resolve civil and criminal cases with strict observance of the requirements of the law and the procedure established by it, ensuring the legality, validity, fairness and universal validity of court decisions.

Gazetdinov Nail Islamovich, Head of the Department of Criminal Procedure and Criminalistics of the Kazan Federal University, Associate Professor.

The article is devoted to the study of the essence of justice as the main form of implementation of the judiciary. The Constitution of the Russian Federation establishes the fundamental rights and freedoms of citizens and guarantees their protection. The main form of protection of the constitutional rights of citizens is judicial protection, carried out by the judiciary in various forms. A special place in ensuring the protection of the rights of both citizens and organizations is occupied by the activities of the courts in the administration of justice.

Key words: justice, judiciary, judicial control, legal proceedings.

Justice as a form of realization of judicial power

Gazetdinov Nail" Islamovich, head of the chair of criminal procedure and criminalistics of Kazan federal university, assistant professor.

The article concerns study of the essence of justice as a fundamental form of realization of judicial power. The Constitution of the RF consolidates fundamental rights and freedoms of citizens and guarantees protection thereof. The main form of protection of constitutional rights of citizens is judicial protection effectuated by the judicial power in various forms. The special role in ensuring protection of rights and freedoms of citizens and organization is played by activities of courts on effectuation of justice.

Key words: justice, judicial power, judicial control, judicial proceeding.

Among one of the main duties of the state in accordance with the Constitution of the Russian Federation (Constitution of the Russian Federation) is the protection of rights and legitimate interests. In Art. 2 of the Constitution of the Russian Federation is fixed: recognition, observance, protection of the rights and freedoms of man and citizen is the duty of the state, and in accordance with Art. 18 of the Constitution of the Russian Federation, the rights and freedoms of man and citizen are directly applicable and are provided by justice.

According to the fair remark of I.Ya. Foinitsky, along with other duties, the state power is entrusted with the duty to "deliver justice to the population. This function calls to life the judiciary as a branch of state power, complementing its other branches of power - legislative and governmental"<1>.

<1>Foinitsky I.Ya. Course of criminal justice. SPb., 1996. T. 1. S. 145.

In modern legal literature, the concept of justice in the field of criminal proceedings causes a rather lively discussion. The fact that these discussions took place in antiquity is evidenced by aphorisms.

For clarity, we can cite some aphorisms about justice from the article by I.V. Smolkova: "Justice is the soul of laws" (Cicero); "Justice is the unchanging and constant will to grant to each his right" (Justinian); "Justice is justice in action" (J. Joubert)<2>. These statements of great thinkers - philosophers are very close to today's understanding of justice and are consonant with the views of modern scientists. S.L. Lon defines justice as a special type of state activity carried out by the court<3>. A.V. Grinenko understands justice as the activities of the courts, carried out on behalf of the state in accordance with the law, to consider and resolve civil, criminal cases, cases of administrative offenses, as well as other cases within their powers.<4>. A similar definition of the concept of justice is also given by V.S. Avdonkin<5>. V.M. Semenov defines justice as a judgment of the court on the rights and obligations (responsibility) of any persons based on the application of the law to specific facts, cases of life, people's actions<6>. Considering various approaches to the definition of the concept of "justice", F.A. Abasheva defines this concept in criminal cases as a function assigned exclusively to the courts, aimed at resolving the charges on the merits.<7>.

<2>See: Modern problems of judicial law. Orenburg, 2012. S. 176 - 186.
<3>See: Law enforcement agencies: textbook / ed. V.P. Bozheva. M., 2012. S. 28.
<4>See: Grinenko A.V. Law enforcement agencies in questions and answers. 2nd ed. M., 2009. S. 28.
<5>See: Avdonkin V.S. Law enforcement agencies in diagrams with comments. 5th ed. M., 2010. S. 17.
<6>See: Law enforcement agencies of the Russian Federation: textbook / ed. V.M. Semenov and V.A. Boydukov. M., 2008. S. 24.
<7>See: Abasheva F.A. Administration of justice in criminal cases by the courts of first instance. Izhevsk, 2012. S. 93.<8>See: Shamardin A.A., Guskova A.P. Law enforcement agencies: textbook. allowance. Orenburg, 2012, p. 25; Bozrov V.M. Modern problems of Russian justice in criminal cases in the activities of military courts. Yekaterinburg, 1999, p. 18.

To substantiate their positions regarding the definition of the concept of justice given by them, the authors name as arguments the signs that, in their opinion, are characteristic and characterize the essence of this legal category.

As for the signs called by different authors, which, in their opinion, characterize the essence of justice, then just as there are no identical DNA or papillary patterns of fingers, so there are no identical approaches regarding them.

Without entering into a discussion with respected authors regarding the essential characteristics of justice, we nevertheless consider it necessary to state our position on the properties of this concept: justice, of course, is the exclusive activity of the courts; this activity is aimed at protecting the rights of citizens and legal entities by establishing the objective truth in the case; this activity is carried out in a certain procedural form in strict accordance with the law; decisions taken in the process of administering justice after their entry into legal force are subject to mandatory execution.

Taking into account the analysis of the current legislation, primarily the provisions of the Constitution of the Russian Federation, and the points of view of respected scientists considered by us in this article, we can give the following definition of the concept of justice: Justice is the activity of the courts that are part of the judicial system, which is aimed at ensuring the protection of the rights and freedoms of citizens and organizations by considering and resolving civil, administrative, criminal and arbitration cases in a certain procedural form.

Regardless of the different approaches to understanding justice, the authors are unanimous in that justice is the main form of implementation of the judiciary, but the trouble is that there is no such unanimity in understanding the essence of the judiciary itself. Of course, no one argues or denies that the judiciary is one of the branches of state (supreme) power.

Chapter 7 of the Constitution of the Russian Federation is called "Judicial Power", art. 118 of this chapter of the Constitution of the Russian Federation establishes: "Judicial power is exercised through constitutional, civil, administrative and criminal proceedings." But there is no direct answer to the question of what should be understood by the judiciary in the Constitution of the Russian Federation.

According to the fair remark of L.A. Voskobitova, in many scientific studies devoted to the study of the judiciary, there are two approaches to the definition of the concept of the judiciary - defining it as a set of judicial bodies - courts and as the activity of the courts to exercise the powers granted to them by law<9>. E.V. writes about the same. Burdina<10>. There is also a point of view according to which the judiciary is not a court, not a judicial system, and not even an activity for the administration of justice, but the right and opportunity belonging to the courts in a special procedural form and special methods to resolve legal conflicts arising in society.<11>. Some authors identify the judiciary with justice<12>.

<9>See: Voskobitova L.A. Essential characteristics of the judiciary. Stavropol, 2003, p. 67.
<10>See: Burdina E.V. Judicial power in the Russian Federation. Saransk, 2006, p. 49.
<11>See: Lazareva V.A. Judicial protection in the criminal process of the Russian Federation: problems of theory and practice: author. dis. ... Dr. jurid. Sciences. M., 2000. S. 14.
<12>See: Avdonkin V.S. Decree. op. S. 16.

A rather detailed description of the concept and features of the judiciary is given by A.A. Shamardin and A.P. Guskov, according to whom, this is the activity of the courts to resolve legal conflicts in society with the use of power.

The study of the essential characteristics of the judiciary is devoted to the monograph of Professor L.A. Voskobitova. Of course, this is a fundamental work on the study of the essence of the modern judiciary.<13>. But still, in our opinion, the definition of the concept of judicial power in this work seems to be insufficiently accurate.<14>. The judiciary is defined in the work as special state-power relations between the court and other subjects of law, implemented through legal proceedings, arising in the process of considering and resolving legal conflicts in order to protect and restore the violated right by the court and determine the measures of responsibility of the guilty or protect the innocent from liability. Note that state-power relations between the court and other subjects of law arise not only in the process of considering and resolving conflicts and not always with the aim of protecting and restoring the violated right, and even more so, it is not always necessary to determine the perpetrator and the measure of his responsibility. It suffices as an argument to name the activity of the court in special proceedings in a civil process, in which there is no legal dispute and conflict and there is no guilty person, therefore, there is no responsible person. This is also indicated by I.L. Petrukhin<15>.

<13>See: Shamardin A.A., Guskova A.P. Decree. op. pp. 21 - 23.
<14>See: Voskobitova L.A. Decree. op. S. 79.
<15>See: Judiciary / ed. I.L. Petrukhin. M., 2003. S. 84.

The respected authors of the above works, while discussing the concept of the judiciary, focus on characterizing the external properties of this power, respectively, the existing definitions are directly related to a greater extent with its external characteristics. It seems to us that in order to define the concept and characterize the essence of the judiciary, it is necessary to define and analyze the organization (construction) of the judiciary and its functions. It is the organization of the judicial system and the forms of exercise of the powers granted to the judiciary that determine the essence of the judiciary, because when characterizing the legislative or executive powers, the essential characterization, as a rule, is given precisely on the basis of the construction and functioning of these branches of government. We believe that the essence of the judiciary is determined by three elements: the judiciary - the court; the powers conferred by the legislature on the courts to exercise judicial power; the very activity of the court in the exercise of judicial power by exercising its powers in various forms.

Only the presence of all these three elements in the content of the judiciary gives grounds to assert the presence of the judiciary. If there is not at least one of the above structural elements of the judiciary, this will mean the absence of the judiciary as a whole. I.B. also points to this. Mikhailovskaya: "... the presence of courts in itself, as well as certain rules for resolving conflicts that arise in society, does not yet indicate the presence of the phenomenon of judicial power"<16>.

<16>See: Ibid. S. 13.

Moreover, for the completeness and reality of the judiciary, we believe it is necessary to have a fourth element in the content of the judiciary - the presence of the powers of the courts to control the execution of their decisions.

Highlighting various forms of the exercise of judicial power, such as justice, constitutional control, judicial control in pre-trial proceedings, clarification of the current legislation on judicial practice, participation in the formation of the judiciary and assistance to the bodies of the judiciary, A.A. Shamardin and A.P. Guskov, quite rightly and rightly, they also name such a form of exercise of judicial power as ensuring enforcement of judgments <17>.

<17>See: Shamardin A.A., Guskova A.P. Decree. op. S. 25.

The current Russian legislation does not assign such a function to the judiciary. According to the current legislation, the courts participate in the enforcement of court decisions only by considering the appeals of participants in enforcement proceedings with a statement or complaint about the actions or inaction of bailiffs, as well as other bodies and persons obliged to execute judicial acts. For the real exercise of judicial power, and, consequently, for the real protection of the rights of individuals and legal entities, including the rights of the state itself, the duties of protecting rights and freedoms enshrined in legislation (Articles 2, 18, 45, 46 of the Constitution of the Russian Federation, Article 2 of the Code of Civil Procedure of the Russian Federation, Article 6 of the Code of Criminal Procedure of the Russian Federation, etc.) imply the restoration of violated rights by the court in real terms, not on paper. Any decision taken by the court in accordance with Art. 6 of the Law on the Judicial System in the Russian Federation is subject to mandatory execution by the bodies and officials of the bodies for the execution of court decisions. In Art. 45 - 46 of the Constitution of the Russian Federation, the state guarantees the protection of the rights and freedoms of man and citizen, providing a guarantee of judicial protection, but as far as decisions made by the court are actually executed, the judiciary does not exercise control over this. In cases where one or another court decision aimed at protecting the rights of a particular person is not executed, can it be argued that justice has been done, that the function of exercising judicial power has been realized? Of course no. Until the court decision is actually executed, it is also impossible to talk about the fulfillment of the duty of protecting rights assigned to the courts.<18>.

<18>According to the results of the activities of the FSSP for 2013, the enforcement of judgments in enforcement proceedings is 41.4%.

AND I. Foinitsky wrote about this: "The court must be a force, and for this it is necessary that all measures that ensure the possibility of trial and the actual implementation of court decisions be concentrated in the hands of the judiciary"<19>.

<19>See: Foinitsky I.Ya. Decree. op. S. 189.

In this regard, there is a need to impose on the judiciary the exercise of judicial control over enforcement proceedings. By the way, before such control took place, bailiffs were at the courts and were subordinate to the judges and the chairman of the court, who exercised control over the execution of their judicial decisions.

In view of the foregoing, the judiciary can be defined as the activity of the courts that are part of the judicial system, ensuring real protection of the rights and freedoms of citizens and organizations by exercising the judicial powers granted to them in the form of administering justice and in other forms of exercising judicial power. The definition of the judicial system in the current Constitution of the Russian Federation can also be considered not very successful.

In ch. 7 "Judicial power" of the Constitution of the Russian Federation (Article 118) the following provisions are fixed: the judicial system of the Russian Federation is established by the Constitution of the Russian Federation and the federal constitutional law (part 3); justice is carried out only by the courts (part 1); judicial power is exercised through constitutional, civil, administrative and criminal proceedings (part 2). In this article, the Basic Law, although it delimits the judiciary and justice, does not establish the “promised” judicial system either in this or in other articles, but only fixes the status of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. The 1977 constitution in Art. 151 established the judicial system of the USSR as a whole, listing in this article all the courts included in this system.

Quite controversial in the legal literature is also the opinion of scientists regarding the forms of implementation of the judiciary. The fact that the main form of implementation of judicial power is the administration of justice is not disputed by anyone, moreover, according to some authors, this is the only form of implementation of judicial power.<20>.

<20>Lazareva V.A. Judicial protection in the criminal process of the Russian Federation: problems of theory and practice: author. dis. ... Dr. jurid. Sciences. M., 2000. S. 16.

CM. Darovskikh names two forms of implementation of judicial power: through the administration of justice and in the form of judicial and constitutional control.<21>. V.A. Rzhevsky, N.M. Chepurnov as forms of implementation of the judiciary distinguish: justice; judicial supervision; judicial administration; judicial control in the field of executive power and judicial constitutional control<22>.

<21>
<22>Rzhevsky V.A., Chepurnova N.M. Judicial power in the Russian Federation: Constitutional foundations of organization and activity. M., 1996. S. 96.

The analysis of the authors' studies on the issues of the judiciary and justice and the author's own judgments of this article give reason to believe that, in addition to the main form of the implementation of the judiciary - justice, the judiciary is exercised in the form of judicial control - in the pre-trial stages and in enforcement proceedings, judicial supervision - in the judicial stages of criminal proceedings and in the form of constitutional control.

Literature

Abasheva F.A. Administration of justice in criminal cases by the courts of first instance. Izhevsk, 2012. S. 93.
Avdonkin V.S. Law enforcement agencies in diagrams with comments. 5th ed. M., 2010. S. 17.
Bozrov V.M. Modern problems of Russian justice in criminal cases in the activities of military courts. Yekaterinburg, 1999, p. 18.
Burdina E.V. Judicial power in the Russian Federation. Saransk, 2006, p. 49.
Voskobitova L.A. Essential characteristics of the judiciary. Stavropol, 2003, p. 67.
Grinenko A.V. Law enforcement agencies in questions and answers. 2nd ed. M., 2009. S. 28.
Darovskikh S.M. Judicial legal positions in criminal proceedings: theoretical foundations and procedural forms: author. dis. ... Dr. jurid. Sciences. M., 2011. S. 20.
Lazareva V.A. Judicial protection in the criminal process of the Russian Federation: problems of theory and practice: author. dis. ... Dr. jurid. Sciences. M., 2000. S. 14.
Law enforcement agencies: textbook / ed. V.P. Bozheva. M., 2012. S. 28.
Law enforcement agencies of the Russian Federation: textbook / ed. V.M. Semenov and V.A. Boydukov. M., 2008. S. 24.
Rzhevsky V.A., Chepurnova N.M. Judicial power in the Russian Federation: Constitutional foundations of organization and activity. M., 1996. S. 96.
Modern problems of judicial law. Orenburg, 2012. S. 176 - 186.
Foinitsky I.Ya. Course of criminal justice. SPb., 1996. T. 1. S. 145.
Shamardin A.A., Guskova A.P. Law enforcement agencies: textbook. allowance. Orenburg, 2012. S. 25.

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Ministry of Education and Science of the Russian Federation

Federal State Autonomous Educational Institution

higher professional education

"Russian State Vocational Pedagogical University"

Course work

By discipline: LAW ENFORCEMENT BODIES

On the topic: Justice as the main function of the judiciary

Is done by a student

Yarusov D.S.

gr. W - 212PVD

Yekaterinburg 2014

Introduction

Conclusion

List of used literature

Introduction

The most important condition for the effectiveness of justice has always been and remains well-developed legislation, the existence of codes and unified legal acts, free from contradictions. Stable laws and well-functioning justice are the fulcrum on which citizens' trust in state power rests. Guarantees of justice are guarantees of individual freedom, hence the need for a constitutional level of securing these guarantees.

Many years of experience in the operation of the Constitution of the Russian Federation confirms the correctness of the ideas embodied in it about the division of power, the role of the judiciary in ensuring the rights and freedoms of man and citizen, the appointment of justice, its types and principles of implementation. Nevertheless, many questions of this problem, both in theory and in practice, are perceived far from being unambiguous. The problem of constitutionalism in Russian legal life not only does not lose its significance, but, on the contrary, is becoming more and more relevant and socially significant.

The relevance of the topic of the course work is determined by the need to study the mechanism, principles and features of the constitutional regulation of criminal justice. The constitutional regulation of this type of justice, as is known, is carried out within the framework of the legal regulation of justice and the judiciary in general, it is not distinguished into a special, specific type of constitutional regulation.

The purpose of the work is to study and highlight the constitutional foundations of guarantees of justice. Achieving this goal led to the solution of the following tasks: justice constitutional human rights power

Definition of the concept, essence and meaning of Russian justice, characterization of its main features;

The study of the concept and system of principles of justice;

Describe the content of the constitutional guarantees of justice.

The object of the study is the social relations regulated by law that arise in the process of ensuring the reality of the constitutional guarantees of justice in the Russian Federation.

The subject of the research is theoretical ideas about the essence and system of constitutional guarantees of justice, the content of the constitutional and legal support of their reality; legal norms regulating the structure and procedure for the operation of the constitutional and legal mechanism for ensuring the reality of constitutional guarantees and principles of justice in the Russian Federation, the practice of functioning of this mechanism.

Methodological basis of the study. The course work uses the dialectical method of cognition, analysis and synthesis, induction and deduction, as well as systemic, comparative, structural-functional, formal-logical and other general scientific research methods. The legal problems of the work predetermined the use of formal legal, comparative legal, statistical and other methods of scientific research.

The degree of scientific development of the topic. Worldview approaches to the problems of constitutional and legal regulation, theoretical understanding in the context of the problem under consideration of constitutional norms and constitutional and legal relations are based on scientific research by legal theorists and constitutionalists: S.A. Avakyan, S.S. Alekseeva, M.V. Baglaia, M.I. I.A. Ivannikov, G. Kelsen, E.I. Kozlova, O.E. Kutafin, M.N. Marchenko, N.I. Hovsepyan, V.A. Rzhevsky, V.E. Chirkina, DYuL. Shulzhenko, and other authors. Important for the study of the social purpose of justice, the system and the normative content of its constitutional principles were the works in the field of international standards of justice L.B. Alekseeva, E. Bradley, E. Grotrain, M. Janis, L. Doswald-Beck, R. Kay, G.E. Lukyantseva, N. Mole, O.I. Rabtsevich, V.A. Tumanova, K. Harby, J.-M. Henkerts, L.M. Entia and other authors.

Emphasizing the importance of the accumulated theoretical experience, recognizing the enormous contribution of scientists to the study of general issues raised in the dissertation work, it should be recognized that the problem of constitutional and legal support for the reality of constitutional guarantees of justice was not, in essence, the subject of a comprehensive scientific analysis. The inconsistency of the understanding of the system and the normative content of the constitutional guarantees of justice by R.F. There are various approaches to the construction and operation of the constitutional and legal mechanism for ensuring their reality, the system and content of the relevant guarantees, which leads to a decrease in the effectiveness of the constitutional and legal regulation of the organization and activities of courts in the exercise of judicial power. These circumstances necessitate further study of these problems in order to develop scientific and practical recommendations for improving legislation and the right to apply in this area.

1. Justice as the main function of the judiciary

1.1 The concept, essence and meaning of justice

Later, after the adoption of the current Constitution of the Russian Federation, justice began to be characterized as a constitutionally fixed, special form of state activity in the field of judicial power, expressed in the protection and protection by courts of general and arbitration jurisdiction of the normal functioning of social relations that develop with the participation of citizens, enterprises and organizations. , and including a mechanism for the judicial resolution of disputes about the law and other conflicts through the administration of civil, arbitration, criminal and administrative proceedings in order to restore and protect the legitimate rights and interests of a person and the entire civil society. The Constitution of the Russian Federation adopted in 1993 significantly changed the idea of justice. First, having consolidated the principle of separation of power into three branches, for the first time, along with justice, she uses the term "judicial power" and indicates that justice is a form of exercise of judicial power.

Justice is a special type of legal activity, the implementation of which is entrusted by society and the state to the judiciary.

Consideration and resolution in court hearings of civil cases on disputes affecting the rights and interests of citizens, enterprises, institutions and organizations;

Consideration in court hearings of criminal cases and the application of statutory penalties to persons guilty of a crime, or acquittals are innocent.

1.2 The concept and system of principles of justice

The principles of the exercise of judicial power are the basic, guiding provisions of the most general nature, fixed by law, determining the organization and activities of the courts. The principles of justice are interconnected and form a single system. The most important principles of justice are enshrined in the Constitution of the Russian Federation (Articles 46-50, 118-124). The constitutional principles of justice are also disclosed in the Federal Law "On the Judicial System of the Russian Federation" (1996), and in other federal laws.

The principles of justice determine the meaning and content of all legislative norms regulating the organization and activities of the courts, characterize the means and methods by which the tasks facing the courts are performed. In the event of a conflict of legal norms, gaps in the legislation regulating the order of the judiciary and legal proceedings, contradictions between individual norms and the principles of the administration of justice, the norms-principles should always be applied, since they are of guiding importance and determine the meaning of any law.

The principles of justice are imperative in nature and contain instructions that are binding on all citizens, officials and bodies involved in the judiciary and judicial activities.

The principles of justice are based on the provisions of international legal acts that define standards in the field of organization and operation of courts, as well as the rights of an individual involved in the orbit of legal proceedings (the Universal Declaration of Human Rights, etc.).

The Constitution of the Russian Federation, guided by international legal standards, has fixed as principles the main provisions that determine the most important features of the organization of the activities of the judiciary and the procedure for the administration of justice.

Most of the principles of justice are enshrined in the Constitution of the Russian Federation. The principles of justice are also reflected in the legislation on the judicial system, the status of judges, and sectoral procedural legislation.

The judicial reform, actively implemented in recent years and aimed at strengthening the judiciary and increasing the authority of the court, fills the principles of justice enshrined in the Constitution of the Russian Federation with a new democratic content.

The principles of justice can be conditionally classified according to their content. Based on whether the principles determine the procedure for judicial proceedings or the procedure for the organization and activities of the organization and activities of bodies and persons administering justice, all principles can be divided into two groups:

1. judiciary principles (administration of justice only by the court, the independence of the court and the independence of judges, etc.);

2. legal proceedings (presumption of innocence, etc.).

Each of the principles of justice is an independent legal provision that determines one or more aspects of the activities of the courts. However, this does not mean that the principles of justice are completely autonomous and independent of each other. The principles of justice constitute such an integral system, which is a combination of these principles, taken in their interconnection, determining the essence and content of legal norms and institutions regulated by the framework of a single legal field. The operation of the principles of justice is different.

The constitutional principles of justice are the initial normative regulations that determine the most significant features of the content of the legal regulation of social relations in the field of justice and, accordingly, fix homeostasis social phenomena, the existence of which is vital for modern society. Taking into account their increased social value, the state is obliged to guarantee the existence in public life of a set of certain conditions and means under which these principles become real and feasible in practice.

Let's take a closer look at the principles of justice.

The principle of legality

Legality is considered to be the observance and implementation of the provisions of the Constitution of the Russian Federation, laws and other legal acts corresponding to them by all state and non-state institutions and organizations, their employees and to the Basic provisions of this principle are enshrined in Part 2 of Art. 15 of the Constitution of the Russian Federation, which says: "State authorities, local governments, officials, citizens and their associations are required to comply with the Constitution of the Russian Federation and laws."

On the same basis, the courts are obliged to observe not only laws in general, but also the hierarchy of laws.

A feature of the modern understanding of the principle of legality is that it allows, under certain conditions, the possibility of non-application by the courts of laws, including federal ones.

For justice, this principle is of particular importance due to the fact that this type of state activity is closely related to the steadfast observance of the requirements of the law and the procedure established by it for the consideration of civil and criminal cases.

All other principles of justice serve as guarantees for the observance of the rule of law. Their observance will mean observance of the principle of legality.

The principle of the administration of justice only by the court

Justice is carried out only by the court. Article 49 of the Constitution of the Russian Federation indicates that a person can be found guilty only by a court verdict. Article 1 of the Law "On the Judicial System" states: "No one can be found guilty of a crime, or subjected to criminal punishment except by a court verdict and in accordance with the law." In other words, only a court acting on the basis of the prescriptions of the law can find a person guilty and impose a criminal punishment on him.

The requirement that this type of state activity be carried out only by the courts also means that acts of justice, which, after their entry into legal force, acquire universally binding significance, are subject to steady implementation. Only higher judicial bodies have the right to cancel or change them in compliance with strict procedural rules and guarantees that protect the rights and legitimate interests of citizens, as well as the legitimate interests of society and the state.

The principle of the independence of judges

The principle of independence of judges is proclaimed in many legislative acts: in the Constitution of the Russian Federation (Article 120), the Law on the Judicial System (Article 5), the Law on the Status of Judges (Part 4 Article 1), the Law on the Constitutional Court (Article 5, 13 and 29), the Law on Arbitration Courts (Article 6), the Law on the Judiciary (Article 12), the Code of Criminal Procedure (Article 16), the Code of Civil Procedure (Article 7), the APC (Article 5), etc.

The essence of this principle of justice lies in the desire to ensure such conditions in which the court could have a real opportunity to make responsible decisions without outside interference, without any pressure or other influence, on a solid basis of the provisions of the law and only the law.

Considerable attention is paid to the development and implementation of guarantees for the independence of judges. The independence of judges is ensured by: the procedure for the administration of justice provided for by law; prohibition, under the threat of responsibility, of anyone's interference in the administration of justice; the established procedure for the suspension or termination of the powers of a judge; the right of a judge to resign; immunity of the judge; the system of bodies of the judiciary; providing the judge at the expense of the state with material and social security corresponding to his high status.

The principle of administering justice on the basis of equality of all before the law and the court

Equality before the law is the equal application of the provisions enshrined in legislation to all citizens. This means not only the granting of rights, their implementation, but also the assignment of duties, the possibility of applying and applying responsibility in accordance with those legislative acts that regulate the administration of justice.

The concept of equality before the court does not differ significantly from the concept of equality before the law. It means vesting all citizens who appear before the court in one capacity or another with equal procedural rights and corresponding duties. The rules of procedure in all general and military courts are the same, regardless of who is held liable, recognized as a victim, filed a civil suit, is the defendant in such a claim, etc. The rules of procedure are the same for cases considered by arbitration courts.

The principle of ensuring the right of citizens to judicial protection

Freedom of access to legal protection provided by the courts is considered to be one of the pillars of democracy. It is an expression of a line towards the division of the main branches of state power, a clear delineation of their functions and the establishment of the so-called system of checks and balances.

The Constitution of the Russian Federation states that everyone is guaranteed judicial protection of his rights and freedoms, and that decisions and actions (or inaction) of state authorities, local governments, public associations and officials can be appealed to the court.

The principle of competitiveness and equality of the parties

In accordance with Part 3 of Art. 123 of the Constitution of the Russian Federation, justice is carried out "on the basis of competitiveness and equality of the parties." This principle is very consonant and similar in content to the above principle of the administration of justice on the basis of equality of citizens before the law and the court.

Competitiveness of the judicial process means its construction, in which the functions of the court to resolve the case are separated from the functions of the prosecution and the functions of the defense, and the function of the prosecution is performed by one side, and the function of the defense is the other. These parties are endowed with different procedural rights to provide evidence, file motions, appeal against actions and decisions of the court.

In other words, justice is adversarial when the parties (participants) in the consideration of a court case can actively and on an equal footing argue, prove their case, express their arguments freely, give their interpretation of facts and events, evidence related to the case under consideration, relevant laws or other legal acts and thereby help the search for truth, justice, ensuring the legality and validity of an act of justice. At the same time, the court should play the role of a body that actively contributes to the search for truth and participates in it itself, controls the legality of the actions of the parties, and ensures the steady observance of all the rules of the trial established by law.

The principle of ensuring the suspect, the accused and the defendant the right to defense

The Constitution of the Russian Federation (Article 48) provides that everyone is guaranteed the right to receive qualified legal assistance. In cases stipulated by law, legal assistance is provided free of charge.

Such a broad understanding of the principle under consideration is based on the recognition of three initial provisions.

First, the provisions that the accused (suspect, defendant) should be endowed with a set of such rights, the implementation of which would allow him to effectively protect his rights and legitimate interests. Secondly, provisions on the right of the accused to use the assistance of a defense lawyer. The accused (suspect, defendant) may invite himself (and in some cases have an appointed) defense counsel. Thirdly, the provisions on imposing on the persons conducting the inquiry, investigators, prosecutors and judges the obligation to carry out actions aimed at promoting the protection of suspects, accused or defendants. The protection of the latter is not considered only their personal matter.

The principle of publicity of legal proceedings

“Proceedings in all courts,” says part 1 of article 123 of the Constitution of the Russian Federation, “are open. Hearing a case in camera is allowed in cases provided for by federal law.”

The essence of this principle is to provide an opportunity for all citizens who are not participants in the process in a particular court case to be present during its proceedings. This contributes to ensuring the democracy of justice: the opportunity given to citizens to be in the premises where a civil or criminal case is being tried is a kind of people's control over justice, disciplines the court, forces it to be more responsible in resolving emerging issues, both in substance and in form. take care that everything that happens in court is as convincing and justified as possible. officials, citizens. At the same time, exceptions are allowed from this general rule: persons under the age of 16 are not allowed into the hall where an open court session on a criminal case is taking place; for pedagogical reasons; due to the lack of space in the hall, the presiding officer may order, in order to maintain the necessary order, to restrict the access of visitors.

In addition, the legislation establishes the rules for holding closed sessions of the court. Such meetings should be held in the interests of protecting state secrets. Hearing of civil and criminal cases in closed sessions is conducted in compliance with all rules of legal proceedings. The decisions or verdict are always announced publicly.

The principle of participation of citizens in the administration of justice

The legal basis for this principle of justice is constitutional provisions. "Citizens of the Russian Federation," says Part 5 of Article 32 of the Constitution of the Russian Federation, "have the right to participate in the administration of justice." Such participation is most often expressed in the involvement of representatives of the people in the consideration of civil and criminal cases, the adoption of decisions on them, and sometimes in the performance of other functions.

When considering court cases and making decisions on them, people's assessors enjoy practically equal rights with professional judges. A significant part of court cases is considered with the participation of people's assessors. Jurors are only involved in criminal cases. It is important to keep in mind that today, with the participation of a jury, criminal cases can only be tried in those regional, regional and city courts in respect of which there are special decisions of the legislator, and, as noted above, only at the request of the defendant who is held accountable for the crime, punishable by imprisonment for more than fifteen years, life imprisonment or the death penalty.

So, the principles of justice have a number of features: they are objective; general character; are guidelines; enshrined in law.

2.1 Characteristics of constitutional guarantees of justice

Several articles of the Constitution of the Russian Federation enshrine guarantees generally recognized in the civilized world, which also have the significance of the principles of democratic justice. These guarantees form the basis of criminal procedural legislation and are aimed at eliminating arbitrariness in court proceedings. Guarantees of justice are guarantees of individual freedom, hence the need for a constitutional level of securing these guarantees. In fighting crime, the state can and should deprive those who violate the criminal law, but it is obliged to do this in compliance with the democratic procedure established by law.

Jurisdiction Guarantees

It is important for a person that his case be considered in that court and by the judge who, in accordance with the law, should consider it, of which he must be notified in advance. A change in jurisdiction, which is very common in practice due to the workload of the courts or for other reasons, can put a person at a disadvantage, deprive him of the internal psychological balance necessary to defend himself on a criminal charge or to act as a party in a civil case.

The Constitution establishes that no one may be deprived of the right to have his case heard in that court and by that judge to whose jurisdiction it is assigned by law. This guarantee applies equally to both criminal and civil proceedings.

For example, the Constitutional Court of the Russian Federation in its decision on the case on the verification of Article 44 of the Code of Criminal Procedure and Article 123 of the Code of Civil Procedure noted the following. The transfer of a case by a higher court from one court to which it has jurisdiction to another court provided for by these articles does not contradict the Constitution of the Russian Federation if it is carried out within the framework of a judicial procedure in the presence of precise grounds (circumstances) specified in the procedural law itself, on which the case cannot be considered in court. the court and the judge to whose jurisdiction it is attributed by law, and, therefore, is subject to transfer to another court. Meanwhile, these articles, giving the chairman of a higher court the authority to change the established jurisdiction of criminal and civil cases, actually make the solution of this issue dependent not on the will of the legislator expressed in the law, but on the subjective discretion of one or another head of the judicial body, since, in particular, it does not contain any prescriptions that formally define the range of grounds on which it is possible to transfer cases from one court to another. The goals indicated in them, for the achievement of which such a transfer is provided, practically do not limit the discretion of the law enforcer, since they allow the possibility of a broad interpretation, and, consequently, arbitrary application of the contested provisions. The Constitutional Court of the Russian Federation recognized these articles of the Code of Criminal Procedure and the Code of Civil Procedure to the extent that they allow the transfer of a case from one court to which it has jurisdiction to another court without the adoption of an appropriate procedural judicial act and in the absence of precise grounds indicated in the procedural law itself, on which the case cannot be considered in the court and by the judge to whose jurisdiction it is attributed by law, and, therefore, is subject to transfer to another court that does not comply with the Constitution of the Russian Federation.

The current procedural rules, due to their vagueness, give officials the opportunity to manipulate the rules on jurisdiction. It is possible that in the court that has jurisdiction over the case, there are no judges who have the right to consider it, that the defendant is an employee of this court, etc. But all such situations should be clearly regulated in the procedural legislation.

Right to Legal Aid

The right to legal assistance as a whole has a multi-stage history of development. It began to acquire its real democratic features in Russia as a result of constitutional regulation in accordance with generally recognized international legal standards.

The term "right to legal aid" can be used in two senses. In subjective terms, this is a fixed and guaranteed opportunity for a person to claim qualified legal assistance in meeting their legitimate needs and interests. The right to legal assistance in an objective sense acts as a complex legal institution, consisting of norms of international, constitutional and other branches of law united by common principles.

The right to legal assistance has its inherent principles, the main of which are: the freedom of each person to choose a person capable of providing legal assistance; freedom of communication of a person with a person providing legal assistance to him; the principle of confidentiality of communication with a person providing legal assistance.

The minimum standards for qualified legal assistance are mandatory requirements for its quality, including: the presence of a legal education for a person providing legal assistance; presenting special requirements to a person providing certain types of legal assistance (membership in a bar association, etc.); activity and constructiveness of providing legal assistance.

There are two main types of legal assistance: legal assistance in the formation of legal consciousness and legal culture; legal assistance in ensuring and protecting the rights and freedoms of the individual.

This right implies that anyone who needs qualified legal assistance can obtain it by contacting a lawyer. The lawyer is independent and builds his relationship with the client on the basis of confidentiality, i.e. not entitled to divulge information entrusted to him. In criminal proceedings, a lawyer acts as a defender of the suspect, accused, defendant and convicted person, and in civil proceedings he represents the interests of the plaintiff, defendant, third party. Legal assistance may also be provided to persons held administratively liable.

The assistance of a lawyer is subject to payment. But not everyone is able to pay for this help. Therefore, the Constitution establishes that in cases provided for by law, legal assistance is provided free of charge.

Legal assistance is especially important for a person when they are detained on suspicion of a crime. It happens that such suspicions turn out to be unjustified, and the investigating authorities act in violation of human rights. The participation of a lawyer in the early stages of the criminal process, although it complicates the investigation, is intended to help a person prove his innocence and ensure that investigative actions are carried out in compliance with the law. This concept of criminal procedure theory, which has been the subject of heated controversy for many years, is reflected in the Constitution, which gives every detainee, prisoner, accused of a crime the right to be assisted by a lawyer from the moment of arrest, detention or charge, respectively (Art. .48). The right to protection is derived from the right to freedom, since the meaning of protection is to achieve human freedom. Hence the scrupulous and detailed regulation of this right in order to give a person maximum opportunities to defend his case. For the same purposes, the Code of Criminal Procedure regulates in detail the rights and actions of a lawyer at all stages of the criminal process.

The right to defense is one of the absolute rights, since under no circumstances can a person be denied it if he is accused of a criminal offence. This nature of this right was confirmed by the Constitutional Court of the Russian Federation.

So, the right to legal assistance is a natural and inalienable right of every person and is an organic part of the legal status of the individual. The right to legal assistance is not limited to the right of a person to the assistance of a lawyer, it includes the whole range of opportunities guaranteed by this right to protect the rights and freedoms of man and citizen.

Presumption of innocence

This guarantee prohibits anyone from treating a suspect, accused or defendant as a criminal until a court verdict has been issued and entered into legal force. The court and only the court has the right to recognize a person guilty of a crime. Without such recognition, no one can be subjected to criminal punishment, restricted in rights, dishonored in the press, etc. Forming this guarantee, the Constitution of the Russian Federation emphasizes that guilt must be proven "in the manner prescribed by federal law." Which implies observance of the right to defense and other procedural guarantees to the accused.

The accused is not required to prove his innocence. The burden of proof lies with the prosecutor, investigator and the person conducting the inquiry. Failure to comply with these requirements of the law leads to the dismissal of the case and the acquittal of the defendant. Even the confession of guilt by the accused is not enough to pass a guilty verdict, it can be taken into account only if it is confirmed by the totality of evidence.

The presumption of innocence has another important facet: irremovable doubts about the guilt of a person are interpreted in favor of the accused. Therefore, any fact or evidence presented that raises doubts and cannot be dispelled is recognized as non-existent. All these constitutional guarantees (Article 49) contribute to the solution of one of the main tasks of justice: to prevent the conviction of the innocent.

Observance of the presumption of innocence at all stages of criminal proceedings should be the duty of the investigator, prosecutor, judge. Unfortunately, as practice shows, so far these are only good wishes. The tragic events of Russian and Soviet history have irrefutably confirmed that any reduction or curtailment of procedural guarantees can only lead to arbitrariness and lawlessness and never to a real intensification of the fight against crime. And this must be remembered by those who dismiss the presumption of innocence, or call to rise above the principle of the presumption of innocence.

Reconviction prohibition

Article 50 of the Russian Constitution contains an important guarantee that no one can be re-convicted for the same crime. This means that a criminal case against a citizen cannot be initiated, and the initiated case must be terminated if this person has already been tried on the same charge and the court has passed a sentence or dismissed the case. You can be tried again on the same charge only if the court verdict is canceled in the order of judicial supervision, and the case is referred to the court for a new trial.

The prohibition of repeated conviction for the same crime acquires a purely practical meaning in several legal situations; it can be difficult when a person is convicted by the courts of a foreign state. At the same time, it must be borne in mind that not all states fully consider the verdicts of foreign courts. Difficulties may arise in determining whether the act is the same or whether new circumstances, one way or another made known to the prosecution, turn this act into another, not the same.

Invalidity of illegally obtained evidence

At all stages of the criminal process, it is unacceptable to use evidence obtained in violation of the law. A person must be guaranteed against such "methods" of the work of the court and investigation, and this is served by the norm contained in Part 2 of Art. 50 of the Constitution of the Russian Federation. Evidence, upon receipt of which the humiliation of the dignity of a person, torture and violence, illegal intrusion into a home, abuse of family secrets, unauthorized wiretapping of telephone conversations, etc., etc., is not allowed. In other words, no information obtained in violation of human rights and freedoms is recognized as evidence. and citizen. Even in the case when, for example, the investigating authorities, conducting an unauthorized search at the apartment of a suspect, discover a warehouse of weapons or drugs there, the information received should not be admitted as evidence.

Right to review

Anyone convicted of a crime has the right to have their sentence reviewed by a higher court, as well as to ask for pardon or commutation of punishment. Review of the sentence is a necessary guarantee against judicial errors, the procedure for its implementation is regulated by the Code of Criminal Procedure.

Pardon - release from punishment or its replacement with another, milder punishment. The convict has the right only to ask for it, and the right to grant pardon belongs to the President of the Russian Federation. Therefore, the denial of pardon cannot be appealed.

“Everyone convicted of a criminal offense has the right to have his sentence or punishment imposed on him reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be regulated by law.” Exceptions may be made to this right in respect of minor offenses recognized as such by law, or where the person concerned has already been tried in first instance by a supreme court or found guilty and convicted by a judicial review of his acquittal.

Guarantee against self-blame

In accordance with Article 51 of the Constitution of the Russian Federation, a person cannot be forced to testify against himself or to plead guilty. He also cannot be required to testify against his spouse and close relatives, the circle of which is determined by federal law. The Code of Criminal Procedure includes among them parents, children, siblings, adoptive parents and adopted children, grandfather, grandmother, grandchildren, spouse. Consequently, a person has the right to refuse to testify if these testimonies convict him and his close relatives of committing a crime, i.e. can be used against his interests. The law may establish other cases of exemption from the obligation to testify, such cases are specified in the Code of Criminal Procedure.

Rights of victims of crime and abuse of power

If, as a result of a crime or abuse of power, moral, physical or property damage has been caused to a person, then this damage is subject to compensation. The state shall provide the victims with access to justice and compensation for the damage caused.

Thus, the law protects the rights of victims of a crime, provides them with certain procedural rights. A number of criminal cases are subject to initiation only on the complaint of the victim, and the termination of these cases depends on the victim in case of reconciliation with the accused. But some cases, starting on the complaint of the victim, cannot be terminated at his request due to their increased public danger.

A person who has suffered material damage from a crime has the right to demand compensation for this damage. The corresponding civil action is considered together with the criminal case. But the rights of the victim are guaranteed by the Constitution (Article 52) also in relation to "abuse of power", which means the possibility of judicial appeal against the actions of an official, which, even if they are not a crime, violate the law. By securing the various rights of the victim in criminal, administrative and civil proceedings, the state thereby creates a real mechanism for judicial enforcement of the rights of victims.

Federal Law "On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings" dated December 29, 2004 No. A system of state protection measures for victims, witnesses, experts, private prosecutors, legal representatives and other persons has been established, including security and social protection measures.

In accordance with the Law, the Government of the Russian Federation approved the Rules for the application of certain security measures in relation to victims, witnesses and other participants in criminal proceedings (Decree of the Government of the Russian Federation of October 27, 2006)

In the content of the right to compensation for harm from the offender or persons responsible for his behavior, one can single out: the right to return property; the right to compensation for the value of lost property; the right to reimbursement of expenses incurred as a result of victimization; the right to receive lost profits; the right to compensation for moral damage; the right to provide services; the right to restoration.

Prohibition of the retroactive effect of the law

The dynamism of life gives rise to the need to change the laws. They can change in the direction of strengthening or, conversely, weakening responsibility for some acts. But this gives rise to the danger that a person who has committed an offense will, after some time, be held accountable under a law that was not in force at the time the offense was committed. To prevent this from happening, the Constitution of the Russian Federation (Article 54) enshrines a well-known guarantee in democratic law: the law establishing or aggravating liability does not have retroactive effect. Consequently, no one can be held responsible for an act that was not recognized as an offense at the time it was committed.

If, however, a law is adopted that abolishes or mitigates liability, then, in accordance with the principle of humanism, the retroactive force of the law is recognized. In this case, the constitutional guarantee establishes: if, after the commission of an offense, responsibility for it is eliminated or mitigated, a new law is applied. These rules of operation of the law in time are valid for all branches of law. They are enshrined in the norms of criminal, civil, labor, administrative and other legislation of the Russian Federation.

2.2 Problems of the constitutional and legal guarantee of the human rights function of the judiciary

The social nature of the judiciary consists in resolving by judges, from the position of justice, conflicts of opposing interests in society. The key to the legal nature of the judiciary lies in the fact that judges in a particular case delimit the free spheres of the disputing parties and formulate the corresponding generally binding consequences.

The constitutional and legal parameters of ensuring the human rights function of the judiciary are determined by the characteristics of this function, which is a subfunction of a relatively more general concept - the law enforcement function of the judiciary. The human rights function is understood as the direction of the impact of the court on social relations, which has as its goal the enforcement of violated or contested rights and freedoms of man and citizen.

Guarantee - a kind of security, i.e. such a special form of universal interaction of the elements of reality, in which some elements act as a condition for the existence or functioning of other elements. The appearance in this system of the subject of social management requires strengthening the ordinary security impact in certain aspects, which is achieved with the help of additional means (guarantees). Guarantees are called upon to carry out special (increased) security, acting as additional measures, means and methods that purposefully create, in a complex, the required conditions (environment) for the existence and functioning of the secured object.

Legal guarantee is not an automatic momentary act, but a dialectically developing process. The source of development lies in the unity and struggle of opposites between the social practice of protecting the rights of the individual, on the one hand, and the humanitarian standards of justice generated by it, on the other.

Constitutional and legal guarantees are regulated by the norms of all types of sources of the branch of constitutional (state) law, and not only by the Constitution. Based on the foregoing, constitutional and legal guarantee is defined as a constitutional and legal impact on social relations in order to achieve such a quality of the elements of the judicial system and the conditions for their functioning, under which the judiciary reliably protects the rights and freedoms of the individual. Constitutional and legal guarantees are means of strengthening the influence of the branch of constitutional law on regulated social relations, which increase the effect of ensuring the human rights function of the court.

The system of constitutional and legal guarantees of the human rights function of the judiciary includes three substantially different subsystems interacting with each other - ideal, normative and material. The latter constitute three levels of the system of constitutional and legal guarantees:

1) constitutional and legal ideology

2) positive constitutional law

3) the scope of the emergence and implementation of constitutional legal relations.

The ideal subsystem includes the following elements: constitutional and legal values, constitutional and legal goals, constitutional and legal axioms, concepts, concepts, theories.

The attitude to the object of guarantee predetermines the division of guarantees into external and internal, depending on whether guaranteeing entities are included or not included in the judicial system. The subjects exercising the judiciary either simultaneously perform the human rights function or directly organize its implementation, which creates increased opportunities for them to most competently determine the direction and rational measure of the guaranteeing impact. However, for the same reasons, these actors have advantages for abusing their position and disorienting society.

From the point of view of spheres (areas) of the guaranteeing impact on the conditions for the implementation of the human rights function by the court, one can distinguish: institutional guarantees, procedural guarantees, power-delegative guarantees, information and legal guarantees, tort law guarantees.

Through the prism of a functional orientation, one can distinguish between regulatory and protective guarantees. In the first case, these are guaranteeing elements that create or strengthen positive conditions and prerequisites for implementation through the issuance of regulatory norms, for example, the formation of a panel of judges, the right to access information about judicial activities, the procedure for obtaining it, the volume and procedure for financing courts. Protective guaranteeing elements are expressed in measures of "opposition" to the negative factors of the human rights process and are aimed at deterring the abuse of judicial power. They are formalized in protective legal norms and consist in the right to appeal judicial acts, to review judicial decisions, control public opinion, the ability to suspend or terminate the powers of judges, etc.

Openness of information about the functioning of the judiciary is designed to achieve three main goals:

1) the establishment of a regime under which information about violations of procedural norms, judicial ethics or abuses of judges by judges will inevitably reach the subjects capable of correctly qualifying it and countering violations with preventive and preventive measures;

2) creation for the people as a subject of power and social self-government of an empirical base for assessing the moral and business qualities of judges, the legality and fairness of the organization and activities of the judiciary, the conformity of the legal consciousness of the people with legal norms and justice;

3) overcoming the elitist, snobbish approach of judges to their activities, increasing the degree of citizens' trust in justice.

The main function of publicity is public control. Its significance is due to the fact that it is the only way (except for international bodies) external to the judiciary to verify that the court observes human rights. The people are deprived of the opportunity to manage the affairs of the state if they are in an information vacuum or use unreliable information about the functioning of the courts. The solution to the problem related to ensuring the accessibility of justice lies in the differentiation of judicial procedures, simplification of the forms of legal proceedings, as well as the use of alternative methods of dispute resolution and conciliation procedures, in the creation of quasi-judicial bodies for pre-trial resolution of disputes about the law. At the same time, it is especially emphasized that "judicial protection must always be present, be guaranteed - this is its success."

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LEGAL SCIENCES

JUSTICE AS THE MAIN FUNCTION OF THE JUDICIARY: THE CONCEPT AND FORMS OF IMPLEMENTATION

PC. LYSOV,

full-time adjunct of the department of constitutional and municipal law

Moscow University of the Ministry of Internal Affairs of Russia Scientific specialty: 12.00.02 - constitutional law; constitutional litigation

Email: [email protected]

Supervisor: candidate of legal sciences, associate professor Limonov A.M.

Reviewer: Doctor of Law Goncharov I.V.

Annotation. The article examines the forms of justice and their relationship with the types of legal proceedings. The author concludes that there are constitutional, administrative, civil and criminal types of justice. Based on the study, the concept of justice is proposed.

Key words: justice, legal proceedings, judiciary, courts, judicial system, constitutional control.

JUSTICE AS MAIN FUNCTION OF JUDICIAL AUTHORITY: CONCEPT AND REALIZATION FORMS

graduated in a military academy of full-time tuition of chair of the constitutional and municipal law

of the Ministry of Internal Affairs Moscow university of Russia

Abstract. The article investigates the forms of justice and their relationship with the types of legal proceedings. The author concludes that there is constitutional, administrative, civil and criminal justice types. Based on the research suggests the concept of justice.

Keywords: justice, the judiciary, the judiciary, the courts, the judiciary, the constitutional.

In part 2 of Art. 118 of the Constitution of the Russian Federation stipulates that judicial power is exercised through constitutional, civil, administrative and criminal proceedings. A similar list of types of legal proceedings is reproduced in Part 3 of Art. 1 of the Federal Constitutional Law of the Russian Federation of December 31, 1996 No. 1-FKZ “On the Judicial System of the Russian Federation”1.

When deciding whether the forms (types) of justice correspond to the types of legal proceedings, it should be assumed that legal proceedings and justice are concepts that are close, but not identical. The first can end without resolving the dispute (consideration of the claim) on the merits of the conflict under consideration, i.e. without the administration of justice. From the point of view of the stage-by-stage implementation of legal responsibility, legal proceedings are wider than justice by an appropriate amount (for example, criminal proceedings are wider than the concept of justice in criminal cases, primarily due to the pre-trial stages of criminal proceedings).

Legal proceedings are the activities of the court regulated by a set of procedural norms in the relevant area of material law.

new relationships. In a simplified form, litigation is a legal procedure for considering cases. Legal proceedings can also be understood as a set of procedural actions and legal relations regulated by special procedural rules that develop between the court and other participants in legal proceedings when considering and resolving cases within the competence of this court2.

The question of the forms (or types) of justice is debatable. Initially, the concept of justice, based on the norms of the legislation on the judiciary, included only the activities of the courts to consider and resolve civil and criminal cases. The existence of constitutional, administrative and arbitration justice is still the subject of ongoing discussions.

So, at present, in connection with the growing role of the judiciary in the regulation of public relations, the question arises of the legal nature of the activities of the courts considering cases of

1 SZ RF. 1997. No. 1. Art. one.

2 Kryazhkov V.A., Lazarev L.V. Constitutional justice in the Russian Federation. M., 1998. S. 146, 147.

I.¿¿¿b"-

LEGAL SCIENCES

Actual problems of constitutional law

administrative offenses. Opposite views were expressed in the specialized literature regarding the nature of the activities of the court considering cases of administrative offenses.

IN AND. Shvetsov, for example, believes that justice includes the activities of the court to consider both civil and criminal cases, as well as cases of administrative offenses3.

K.F. Gutsenko, referring to Art. 4 of the Law of the RSFSR “On the Judicial System of the RSFSR”, believes that the activities of judges related to the consideration and resolution of cases of administrative offenses are beyond the bounds of justice4.

Indeed, in Art. 4 of the Law of July 8, 1981 No. 976 (which became invalid on January 1, 2013) “On the Judicial System of the RSFSR”5, which is called “Administration of justice through the consideration of civil and criminal cases by the court”, justice is substantively limited to the consideration of only civil and criminal cases under the rules of the Code of Civil Procedure and the Code of Criminal Procedure.

Federal laws adopted later corrected this lack of normative regulation of the forms of justice.

So, in part 2 of Art. 1 of the Federal Law of the Russian Federation of December 17, 1998 No. 188-FZ “On Justices of the Peace in the Russian Federation”6 expressly refers to the administration of justice in cases of administrative offenses.

In Art. 4 of the Federal Constitutional Law of the Russian Federation of February 7, 2011 No. 1-FKZ “On the Courts of General Jurisdiction in the Russian Federation”7 (which replaced the Law of the RSFSR “On the Judicial System”), which is called “The Administration of Justice by Courts of General Jurisdiction”, it is fixed that the courts of general jurisdiction exercise justice by resolving disputes and considering cases within their competence through civil, administrative and criminal proceedings.

Administrative proceedings meet all the criteria of justice. At the same time, one should proceed from the presence of its own procedural regulation of the administrative

a series of legal proceedings provided for in the Code of Administrative Offenses of the Russian Federation, and from the presence of administrative responsibility, expressed in the relevant administrative and legal sanctions enshrined in the law and providing for liability for an administrative offense committed. All this lends validity to the conclusion that there is justice in the form of court resolution of cases of administrative offenses.

V.P. Bozhev believes that the activity of arbitration courts is the administration of justice and has all its features8.

In accordance with Art. 4 of the Law on Arbitration Courts and Art. 1 of the Arbitration Procedure Code of the Russian Federation, arbitration courts administer justice by resolving economic disputes and considering other cases referred to their competence by the relevant laws. Arbitration courts are judicial bodies that are part of the judicial system of the Russian Federation, they are guided by a special Arbitration Procedure Code, apply substantive law, guided by the principle of legality, consider arbitration cases with the participation of the parties in court hearings, judicial acts of these courts have generally binding force. Thus, it is concluded that the activity of arbitration courts is the administration of justice, has all its features.

In our opinion, arbitration proceedings have all the features of an independent form of legal proceedings, but not justice.

An integral substantive sign of justice is the resolution of the dispute on the merits, the solution of the question of the guilt or innocence of the persons held accountable, and the application of punishment to the guilty on this basis. The type of justice (except constitutional) corresponds to its own branch of substantive law and the corresponding type of legal responsibility.

3 Magomedov A.M., Sergeev A.M., Shvetsov V.I. Judiciary in the Russian Federation: textbook. allowance. Issue. 1 / ed. IN AND. Shvetsov. M., 1995. S. 38.

4 Gutsenko K.F., Kovalev M.A. Law enforcement agencies in the Russian Federation. M., 2000. S. 49.

5 Gazette of the RSFSR Armed Forces. 1981. No. 28. Art. 976.

6 SZ RF. 1998. No. 51. Art. 6270.

8 Law enforcement agencies of the Russian Federation: textbook / ed. V.P. Bozheva; 2nd ed., rev. and additional M., 1997. S. 55.

LEGAL SCIENCES

Actual problems of constitutional law

In the activities of the system of arbitration courts, there is no inalienable sign of an independent type of justice - the application of its own substantive law. Arbitration courts, based on their own procedural legislative regulation of legal proceedings, apply the norms of the Civil Code of the Russian Federation. In this regard, according to the author, it is more correct to conclude that the activity of arbitration courts is a kind of justice carried out in civil proceedings.

The question of the existence of constitutional justice is also debatable. The competence of the Constitutional Court of the Russian Federation and its acts differ significantly in their content from the law enforcement acts of all other courts.

The qualitative difference between the content of the activities of the Constitutional Court and the activities of other courts administering justice is that the latter apply laws, resolving specific situations and disputes. The Constitutional Court controls the compliance of normative acts with the Constitution of the Russian Federation or checks the constitutionality of the law applied or to be applied in the proceedings on a particular case (Articles 120 and 125 of the Constitution of the Russian Federation). In addition, although the decisions of the Constitutional Court of the Russian Federation are binding and apply to the sphere of activity of all courts that form the judicial system of the Russian Federation, it is not a higher court and does not belong to any part of the judicial system.

Neither the Constitution of the Russian Federation, nor the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”9 found the concept of “constitutional justice” to be normatively fixed. In Art. 1 of the Law on the Constitutional Court, the latter is called the judicial body of constitutional control, independently and independently exercising judicial power through constitutional proceedings.

Nevertheless, the use of the concept of "constitutional justice" seems to be legitimate. The Constitutional Court of the Russian Federation is a body of justice. Another thing is that the justice he carries out is specific, as are his powers.

The powers of the Constitutional Court of the Russian Federation and the basic principles of its activities are enshrined in Art. 125 of the Constitution of the Russian Federation and Art. 3 and 5 of the Law on the Constitutional Court. Yes, Art. 125 of the Constitution of the Russian Federation entrusts this body with the authority to verify the constitutionality of the normative acts listed in it, which may lead to the loss of legal force by such acts, disputes over competence between federal government bodies and some other cases. The Constitution of the Russian Federation does not grant such powers to other courts (judicial bodies).

In the Resolution of the Constitutional Court of the Russian Federation of June 16, 1998 No. 19-P in the case of the interpretation of certain provisions of Art. 125-127 of the Constitution of the Russian Federation10 constitutional proceedings are called a special form of justice (clause 3, part 4).

The specificity of constitutional justice lies in the fact that the Constitutional Court of the Russian Federation decides exclusively on issues of law (parts 3, 4 of the Law on the Constitutional Court). The Constitutional Court of the Russian Federation, when verifying normative legal acts from the point of view of their compliance with the Constitution of the Russian Federation, does not establish the actual circumstances, the study of which is within the competence of other law enforcement agencies and underlies their legal decisions in specific cases. Being by their nature the only judicial acts that deprive norms that contradict the Constitution of legal force, they have the same scope in time, space and circle of persons as decisions of a rule-making body, which is not inherent in law enforcement acts of courts of general jurisdiction and arbitration courts.

Acts of the Constitutional Court of the Russian Federation have a general normative value, they are characterized by signs of abstractness and generalization, which make it possible to draw conclusions from them for action in a similar situation. The legal force of judicial acts of the Constitution

10 Constitutional Court of the Russian Federation: Resolutions. Definitions. 1997-1998 / resp. ed. T.G. Morshcha-kova. M., 2000. S. 14-22.

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LEGAL SCIENCES

Actual problems of constitutional law

of the judicial Court is higher in comparison with the acts of the courts of general and arbitration jurisdiction11.

The most important feature of constitutional justice is that in its implementation, the dispute about the right is resolved on the merits. In a number of cases, decisions of the Constitutional Court impose constitutional responsibility on the legislator, expressed in the obligation of the body that issued the act to adopt the necessary changes in terms of legal norms recognized as unconstitutional.

The implementation of constitutional control by specialized bodies - constitutional courts allows for centralized constitutional control. Constitutional courts are endowed with constitutional jurisdiction (special competence) exercised through independent judicial proceedings12.

As N.V. Vitruk, constitutional justice is a synthesis, an alloy of two principles. Its content is constitutional control, which is implemented in the form of legal proceedings. It is this form that ensures the objectivity and impartiality of constitutional control. As a result, an independent type of state-power control activity arises, carried out in a specialized judicial procedure. The highest form of constitutional control is constitutional justice13.

Thus, justice is the component of the main functional content of the judiciary and the activities of the judiciary carried out in accordance with the procedural procedure established by law to consider and resolve constitutional, administrative, civil and criminal legal disputes and conflicts.

So, A.P. Ryzhakov, for example, refers to justice administered in the usual forms, the activities of the court to consider criminal and civil cases14.

To the special forms of justice, the specified author, firstly, ranks the activities of the court in considering cases of administrative offenses, and, secondly, the activities of the Constitutional Court of the Russian Federation, constitutional (charter) courts of the Russian Federation, which consists in resolving the merits of cases within their jurisdiction.

In our opinion, justice in the form of consideration of cases of administrative offenses should be classified as ordinary forms, since it fully corresponds not only to the signs of justice, but is also based on the principles of justice, which are basically either general legal or intersectoral. The system of principles of justice in cases of administrative offenses is similar to the system of principles of justice in criminal cases.

Thus, justice carried out in the usual forms is the activity of the court (magistrates and federal courts) to consider criminal, administrative and civil cases in the first and appeal instances, designed to resolve the dispute on the merits, to establish the guilt of a person in committing a crime, to apply to him a measure of punishment or to acquit the innocent, as well as to establish the guilt of the person in committing an administrative offense, to impose an administrative penalty, or to terminate the case by proceedings.

Only constitutional justice should be considered a special or specific form of justice. In the literature, it is sometimes reasonably called not only a special, but also the highest form of justice.

11 Kazhlaev S.A. On the Rulemaking of the Constitutional Court of the Russian Federation // Journal of Russian Law. 2004. No. 9. S. 27, 28.

12 According to some researchers, the constitutional judicial procedure, which forms constitutional legal proceedings, has every reason to separate into an independent branch of law (Rossinsky B.V. On the issue of constitutional judicial process as a type of legal process in the Russian Federation // Russian Justice. 2012. No. 6. S. 49).

13 Vitruk N.V. Constitutional Justice in Russia (1991 - 2001): Essays on theory and practice. M., 2001. S. 73.

14 Ryzhakov A.P. Law enforcement agencies: a textbook. M., 2000. S. 41.

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