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Vol 19, No 1 (2022)
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THEORY AND HISTORY OF LAW AND STATE, HISTORY OF LAW AND STATE STUDIES

6-22 749
Abstract

Based on a set of archival materials, the article shows the evolution of the views of the famous Russian lawyer Anatoly Fedorovich Koni in the 1900-1910’s on the essence and principles of the criminal process. Koni developed his creative potential in three aspects: practical, theoretical and legislative. At the beginning of the twentieth century, the theoretical and legislative activities of the senator came to the fore. As a practical lawyer, he actively participated in the drafting of comments on the Charter of criminal proceedings (where he gave a scientific assessment of the final debate in court, the accusatory speech of the prosecutor, the private prosecution, the defense speech of the lawyer, the conclusion of the prosecutor in cassation proceedings, etc.). As a participant in the legislative process, Koni defended in the State Council (in the early 1910s) bills aimed at improving procedural law. He defended the preservation of the rite of trial, insisted on changing the clarification to jurors of the issue of punishment for the accused, limiting the powers of the justice of the peace, etc. The role of the senator was especially active in 1917, when, as chairman of the subcommittee to change the Charter of Criminal Procedure, Koni had a decisive influence to change the judicial process in the Russian Republic. A huge contribution to the development of the foundations of criminal justice was made by the work of Anatoly Fedorovich – Judicial Ethics. In it, he set a high ethical and legal standard of conduct for all participants in the process. The study analyzes in detail those legal institutions of the criminal process that have become the object of study by the senator. Including the principles of procedural law, the procedure for considering cases of crimes of the press, the procedure for the rite of passage to court, the procedure for explaining to jurors the consequences of their sentence, the status of a private attorney, the status of a prosecutor in court, etc. The senator's ideas about the evolution of procedural norms are considered separately. The purpose of this work is to establish the contribution of A.F. Koni in the development of criminal justice through his theoretical and legislative activities. In preparing the publication, the problem-chronological method, as well as the historical method, were used.

CONSTITUTIONAL LAW, CONSTITUTIONAL JUDICIAL PROCEEDINGS, MUNICIPAL LAW

23-38 706
Abstract

The article discusses various approaches to the premature discontinuing of the life of a terminally ill patient both at the state and international level. The purpose of this study is to revise the previously established approach to the use of euthanasia in the Russian Federation. A different view of the use of euthanasia is necessary, among other things, because in some cases, only the premature termination of a person's life may be the only way to end his suffering from a vain struggle with an incurable disease. The difficulties associated with the use of the euthanasia procedure over a long time period are a topic of discussion for many scientists. The relevance of this topic is emphasized by the rapidly changing views on the possibility of using euthanasia from an ethical point of view. More and more international organizations are expressing their own views on euthanasia and assisted suicide. As for the legal order of individual states, there is a tendency to use one of three approaches to ending the suffering of a patient by causing death: the first approach is characterized by a prohibition on the use of euthanasia under the threat of criminal punishment and qualifying such an act as murder in the absence of a special corpus delicti; in the second approach, euthanasia is also a criminal offense, however, the criminal law of states using this approach establishes a special offense that provides for a milder punishment than murder; in the third approach, the law provides for the right to use euthanasia. The article provides a comparative analysis of the euthanasia procedure used in Belgium and the assisted suicide procedure used in Switzerland. In addition, the point of view of the European Court of Human Rights on the issues under consideration is given. The main research method is the analysis of scientific literature on the research topic, the analysis of normative acts of domestic and foreign legislation, a comparative analysis of the legal order of states that carry out various approaches to the application of the euthanasia procedure.

39-53 411
Abstract

The Constitution of the Russian Federation absolutely fulfills its value purpose only when its provisions find their real embodiment in socio-political relations. In this context, the process of implementing the Constitution and its axiological provisions, which is the subject of this study, acquires a high degree of significance. The methodological basis of the study is a combination of such scientific methods as: formal-legal and structural-functional methods, comparison method, the method of searching and analyzing scientific and normative material. The scientific basis of the study is made by the works of outstanding scholars in the field of the theory of law and constitutional law. With regard to the implementation of constitutional values in the state programs of the Russian Federation, such properties of the Constitution as reality, direct action and programmatic nature acquire a special meaning. In addition, in the study of the implementation of constitutional values in the content of state programs of the Russian Federation, the question of the forms of implementation of the corresponding constitutional prescriptions acquires significant scientific and practical significance. Special forms of implementation of constitutional values in the content of state programs are: reflection in key aspects of the content of the state program (goals, objectives, directions) of provisions developing ideas of a particular constitutional value, as well as concretization of constitutional values in the content of state programs of the Russian Federation. For the implementation of constitutional values in the content of state programs, the current historical situation, the features of the current legal regime, the nature of international relations, etc. are essential. The degree to which society and the state are approaching this goal serves as a criterion for the effectiveness of the implementation under consideration. The main provisions of this research work and the key conclusions drawn from its results can serve as the basis for further scientific research concerning issues related to the implementation of constitutional values both in the content of state programs and in other forms, as well as issues related to the functioning of the mechanism of this implementation.

LAND LAW, NATURAL RESOURCES LAW, ECOLOGICAL LAW, AGRICULTURAL LAW

54-67 320
Abstract

The article discusses the formation and development of the legislation of the Republic of Belarus in the field of nuclear waste management, gives a description of the main trends in its development. The legislation of the Republic of Belarus in the field of nuclear waste management establishes requirements for the procedures for selecting sites for the placement of facilities where radioactive waste is handled, requirements for the design, construction, operation and closure of these facilities, as well as for conducting a safety assessment of the relevant facilities. Legal regulation in this area should be developed in such a way that the negative impact on the environment is minimized and the environmental rights of everyone are protected. On the basis of the Author’s approaches, the periodization of the regulatory legal framework of the study area is distinguished. The following stages of the formation and development of legislation in the field of nuclear waste management in the Republic of Belarus have been identified: Stage 1 – Soviet (1954–1985); Stage 2 – Chernobyl (1986–1991); Stage 3 – post-Soviet (1992–to the present), having their own characteristics characteristic of the corresponding period. This division is historically conditioned, since the influence of historical facts was reflected in the development of legal regulation in the field of nuclear waste management. It is also noted that the establishment of a clear delimitation of the competence of the Ministry of Emergency Situations and the Ministry of Health in establishing regulatory regulation in the field of nuclear waste management will improve the quality of legal regulation, and will help ensure the systematization and codification of the legislation of the area we are studying. It is concluded that it is necessary to improve legislation in the field of nuclear waste management in close cooperation between representatives of science, through the exchange of scientific and technical information (best practice), which is an important element of scientific, legal, economic and technical development.

CRIMINAL LAW AND CRIMINOLOGY, PENITENTIARY LAW

68-90 430
Abstract

The article provides a comparative analysis of legal acts regulating the organization of forensic activities, as well as the legal status of knowledgeable persons in criminal proceedings in Russia and Latvia. Comparative legal analysis of normative acts consists in comparing the prescriptions of legal norms, legislative terms and definitions, allowing one to see the general and special, typical and unique in the regulation of forensic activities, as well as the rights and obligations, the volume and nature of the procedural functions of knowledgeable persons in criminal proceedings Russia and Latvia. The study is carried out on the basis of a comprehensive comparative legal analysis of the latest editions of criminal procedure laws (codes), laws in the field of organizing forensic activities in Russia and Latvia, by-laws, as well as other primary sources, including foreign ones, in the original language. Knowledgeable persons, i.e. persons applying special knowledge in criminal proceedings in Russia, are experts and specialists, in Latvia – experts, auditors and specialists. The legal status of knowledgeable persons in criminal proceedings in Russia and Latvia is largely comparable, but not identical. And, despite the transformation of the criminal procedural legislation of Latvia, in accordance with international legal norms and standards of the European Union, the provision of Soviet law on the use by knowledgeable persons of special knowledge in legal proceedings was preserved in the Latvian criminal process. The Code of Criminal Procedure of Russia classifies an expert and a specialist as other participants in criminal proceedings, that is, persons performing the function of promoting justice. Whereas the Latvian Criminal Procedure Law refers an expert and an auditor to persons having powers in criminal proceedings, a specialist – to other persons involved in criminal proceedings. And, if the expert and the auditor in the Criminal Procedure Law of Latvia are considered as independent participants in the criminal process, then the role of a specialist in legal proceedings is reduced to the level of “auxiliary personnel”. An expert and an auditor, according to the requirements of the Criminal Procedure Law of Latvia, are involved in criminal proceedings to give an opinion and fulfill the obligation to provide evidence, that is, as “means of ensuring judicial evidence”. Specialist – to assist officials performing procedural actions in fixing the progress and results of their conduct, using technical means to identify circumstances relevant to the case, but without conducting practical research in search of traces of a criminal act. The results of the comparative legal analysis of the normative acts regulating the rights, obligations, scope and nature of the procedural functions of knowledgeable persons in the criminal proceedings of Russia and Latvia allow us to expand our understanding of the application of special knowledge in the criminal proceedings of foreign states, as well as to critically assess the national criminal procedure legislation for the purpose of its further improvement and optimization. Based on the results of the study of the normative acts of Russia and Latvia, certain problematic aspects of the legal regulation of the procedural status of knowledgeable persons in the Russian criminal procedure legislation is noted, and generalizing conclusions are made.

ADMINISTRATIVE LAW, ADMINISTRATIVE PROCESS

91-108 338
Abstract

The research paper examines the legal category of procedural (proceedings) law “Right to a Fair Trial” as a fundamental element of the European Human Rights Convention and the judicial practice of the European Court of Human Rights. The Authors concentrate mainly on the general part of Article 6 and focus on crucial aspects of the mentioned right which have become significant for the daily legal practice in the Russian Federation, Republic of Austria and other member states. In the domestic Russian legal doctrine, there are sectoral and international legal studies devoted to the Convention for the Protection of Human Rights and Fundamental Freedoms, the functioning of the European Court of Human Rights and the legal nature of its acts (A. Abashidze, E. Alisevich, M. Biryukov, S. Kalashnikova,

V. Tumanov, K. Aristova).Along with this, from the standpoint of conventional rights, Russian legal scholars studied the procedural features of the implementation of acts of the European Court of Human Rights and the application of conventional norms in civil, arbitration and criminal cases (I. Vorontsova, T. Solovieva, M. Glazkova, S. Afanasiev, L. Volosatova, E. Iodkovsky, K. Mashkova, etc.).The private-scientific research methods used by the Authors in the presented scientific article, predominantly comparative, require the study of the works of foreign scholars in the field of law, which include P. Leanza, O. Pridal, D. Spielmann, V. M. Zupancic, H. Mosler, A. Buyse. Despite the rather large volume of doctrinal sources on the nature and implementation of conventional rights, the issues of applying the right to a fair trial in administrative disputes and cases arising from public law relations have not become the subject of scientific research. The empirical basis of the study conducted by the Authors is composed of 66 pilot judgments and other acts of the European Court of Human Rights on complaints from individuals against Russia, Austria, France, Finland, the Netherlands, Great Britain, Switzerland and other member states of the Council of Europe; judicial acts of the courts of Russia, Austria and other European countries. It is concluded that the practice of Article 6 of the European Human Rights Convention by the European Court has had a remarkable and sometimes unprecedented impact on public law and law enforcement activities of the European countries that are parties to the Convention. As Russian and Austrian experience shows, the decision of the European Court on behalf of the enforcement of Article 6 in one specific case can induce the state not only to adopt a separate law, but also to carry out serious institutional changes. Many such examples are given below by the Authors, which testify that the decisions of the European Court are able to act as a powerful law-forming force on the national level.

109-123 797
Abstract

Based on the analysis of legal acts, with the involvement of the works of Russian and foreign scientists, the results of modern research, this article describes the current state of the branch of administrative procedural law in Russia. On the basis of the doctrinal provisions of Russian and foreign administrative and administrative procedural legislation, the concept, content, structure and system of building the administrative process and administrative procedural law in Russia are studied. The purpose of the study is to formulate generalized recommendations for the legislator to eliminate existing gaps in legal regulation, to determine the directions and trends in the construction and development of the sectoral concept of the theory of administrative process and administrative procedural law, to develop proposals for improving the mechanism of legal regulation. In achieving the goal of the study, the Author relied on modern methods of cognition, identified and developed by legal science and tested by practice. The general methodological basis was the method of materialistic dialectics and conceptual analysis of legal reality, allowing to consider and reveal the problems of categorical understanding of the administrative process and administrative procedural law in a complex, inseparable unity with other legal phenomena and categories. In the course of the study, private scientific and special methods of cognition were used: formal-logical, analogies and generalizations (when presenting the entire research material and drawing conclusions); methods of systematic and comparative legal analysis (when studying normative legal acts and other sources); historical and statistical methods (in the process of retrospective study of legal acts, special literature on the issues under study); content analysis (in the process of sampling and analysis of certain provisions of legislative and other regulatory legal acts, statistical data, monographs, scientific publications). Using the method of legal modeling, proposals were formulated and substantiated for the modern interpretation of administrative procedural law in the mechanism of legal regulation, its role and place in the structure of Russian law. Within the framework of this study, appropriate legal tools are proposed for resolving the most important tasks today in the field of administrative procedural legal relations. For this reason, the core of the modern doctrine of administrative procedural law, in our opinion, can be the concept of the administrative process as a complex normative formation, strictly regulated by the legislation of the established procedure for the activities of its participants in resolving judicial administrative cases and cases of administrative offenses regulated by the norms of administrative procedural law. the rights. It is summarized that in a modern civilized civil society it is impossible only by the presence of norms and branches of substantive law to judge the development and democracy of the legal system of the state. Procedural norms play an important and increasingly significant role in ensuring the rule of law, protecting the rights, freedoms and legitimate interests of citizens and organizations from unlawful encroachments. Without fundamental scientific research on the legal process and the theory of procedural law in general and administrative procedural law in particular, it is impossible to assess the real state of the mechanism of legal regulation. And, consequently, the real state of law in the country and the degree of real protection of the rights, freedoms and legitimate interests of its citizens, organizations and businesses from unlawful interference in their legitimate activities by bodies and officials of the official administration.



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ISSN 2658-7602 (Print)
ISSN 2658-7610 (Online)