Justification of criminal procedure decisions as an element of the principle of legality

Decision-making is one of stages in development of purposeful activity. It is known that in the course of investigation there is a movement from incomplete, possible knowledge to knowledge proved, reliable. The need to adopt this or that decision on case is depending on a stage of investigation and is caused by character and contents of information which a certain official has by this time, competent to make the relevant proceeding decisions. Validity of criminal procedure decisions is one of the most important problems of criminal proceedings. The validity of criminal procedure decisions means that given decisions corresponds to the actual circumstances of criminal case have taken place in fact. The identity of decision-making in criminal proceedings consists that possible means of achievement of the goals are specified in the law, but are not elected randomly by the person, given the right to make the decision. Considering a problem of validity of proceeding decisions, it is impossible to ignore the decisions reasons concept of criminal proceedings as the decision is considered reasonable in the presence of all bases necessary for its acceptance. The purpose of article is identification of signs of a concept of criminal procedure decisions justifications. According to the purpose the following tasks are set: to carry out the analysis of a concept of proceeding decisions, consideration of validity as element of the legality principle.The methodological basis of the study is a systematic, formal-legal, research methods in combination with a comprehensive analysis of the issues studied. As a result of a research the category of decisions validity is analyzed, the proceeding decision validity assumes the existence of sufficient proofs to establish the actual facts of the case, the validity of criminal procedure decisions is important component of the legality principle in criminal proceedings and the rights for fair judicial proceedings.

Introduction

The legality is shown in an exclusive role of the existing Criminal Procedure Code of RK of 2014 at administration of justice and protection of human rights, consecutive observance of the established rules and stages of investigation and legal proceedings, obligation of court orders. This basic principle is enshrined in Article 10 of the Criminal Procedure Code of RK.

Decisions in criminal proceedings is possible to qualify as individual legal acts aimed at achievement of problems of criminal proceedings owning the qualities of legality, justification and justice in which the specially authorized state bodies and officials within their responsibility, in a concrete law order, on the basis of legal regulations and the established facts of the case, give individual and imperious instructions for the purpose of ensuring procedural work and accomplishment of problems of criminal proceedings.

The legislator submitted requirements of validity and motivation of the proceeding decisions adopted by entities of proof. It dictates the need of more detailed consideration of value of the principle of legality in general and also definitions of that place which is taken by validity and motivation in relation to this idea inpre-judicial legal proceedings. Dialectic approach to the world of the ideas is also fair, as well as for the surrounding nature. In the sphere of criminal proceedings, the idea of legality is counterbalanced with the idea of expediency.

Justification as obligatory property of the proceeding decision represents a ratio of one and all of the conclusions which are contained in the decision to the actual facts of the case and the available data and proofs. The proceeding decision will be reasonable in the presence of the necessary reasons for its acceptance.

In the criminal procedural literature, it is also reasonably considered that the principle of the criminal process may not be recognized as any provision to one degree or another characterizing the organization and activity of the inquiry bodies, investigators, prosecutors and the courts.

because «in order to be a principle, the relevant provision should determine the main, initial points in the organization and activities of these bodies, from which more personal provisions follow in its turn» [1; 27].

One more powerful remark - the principles of criminal proceedings are proved by tasks of criminal proceedings and at the same time are considered as guarantees of implementation of these tasks.

At the same time, there is a reasoned distinction between the «purpose» and «principle», since the purposes of criminal procedural regulation cover both lawmaking and law enforcement work, and the principles of the judiciary only law enforcement activity.

The concept of «purpose» answers the question - what is the work focused on, and the concept of «prin- ciple» - how, how it is executed. Consideration of justification of criminal procedure decisions as element of the principle of legality in criminal proceedings, means discussion of the principle of legality in criminal proceedings and justification as element of the principle of legality [2; 82].

For modern legal science a variety of scientific approaches to determination of a concept of legality is peculiar. Briefly we will consider these approaches.

In the literature the legality is estimated as a method of implementation of the government, a political legal regime, democracy element, a social state, category of a debt, a circumstance of implementation of law and order, the leading principle of activity of state bodies and officials. Generally, the legality is estimated as the principle, a method of behavior and the mode of social life. For this research it is necessary to consider legality as the principle of activity. Note, the principle of legality may be considered as a general legal principle and as a principle of criminal proceedings.

In the mixed process the principle of legality matters: criterion of admissibility of the proofs collected by the parties; generator of activity of the prosecution; the safeguard legality guarantor in a broad sense, i.e. what allows to consider the criminal proceedings actually as legal phenomenon, but not unilaterally a public arbitrariness. The validity and motivation as the integral property of legality, in a pre-judicial part of legal proceedings allows to provide balance of interests of the parties at decision-making including about production of legal (investigative) proceedings.

At the beginning briefly, we will consider the principle of legality as general legal principle. In the law doctrine it is possible to find a large number of determinations of opinion of the legality principle. For example, the bulk of jurists consider that the legality principle should be understood how «the requirement of strict observance (applications, etc.) of laws and legal acts based on laws». Other aspect of the principle of legality also is specified in literature - it is presence of the high-quality and consistent legislation [3; 18].

However, this state is not indisputable as the opinion was expressed that there are no bases to include in a concept of legality presence of laws and disclosure of their internal contents as the legality is not the law itself and the system of the legislation, but the categorical requirement to all legal entities to execute laws and other legal instructions corresponding to them.

In literature the attention also is paid that the principle of legality means the security of not rejected accomplishment of the legislation, the availability of the organizational legal mechanism providing accomplishment of the legislation, organizational legal support of inevitability of responsibility. This opinion is completely justified [4; 28].

The principle of legality means that at goal and tasks setting, when choosing methods of their decision, at realization the subject of decision-making always has to consider the actual bases and an activity situation. Violation of this principle can lead not only to decrease in efficiency, but also to negative consequences. The subject has to perceive information on current state of criminal procedure activity constantly. He has to analyze all arriving information regarding the importance for possible decision-making.

Now we will consider justification of criminal procedure decisions as an element of the principle of legality.

The court ruling, the ruling of the judge, prosecutor, investigator, inquirer must be lawful, reasonable and motivated. The absence of a court verdict in this list, undoubtedly, should be attributed to miscalculations of legal techniques, more than in the rules governing the sentencing, it is stated that the sentence must be legal, reasonable and fair.

Note that requirements to decisions in the Criminal Procedure Code of RK are expressed in article devoted to the principle of legality.

The proceeding decision will meet the requirements of legality if it is taken out by the proper subject of criminal procedure activity, and the penal statute, other regulations are applied correctly. In criminal proceedings according to Part 4 of Article 7 of the Criminal Procedure Code of RK the prosecutor, the investigator, the investigator can make the legal decision court. However, it is the incomplete list — the head of investigative body and the chief of division of inquiry are not specified here.

Justification of proceeding decisions means that the conclusions which are contained in them are proved by set of the carried, permitted and reliable proofs, and also the fact that reasoned decision has to reflect reality conditions correctly.The actual circumstances are clarified using data, the totality of which represents a kind of informational equivalent of the factual basis of the decisions. These data, information, allowing to draw a conclusion of relatively studied events and suggest the reasons for procedural decisions.

Justification according to the law is considered as a part of the fundamental principle of criminal proceedings - the principle of legality and it shows the sense of justification. Justification is not ordinary situation. Without justification of corresponding procedural decision, the existence of the legality principle is impossible.

It was specified in one of researches that the requirement of justification obliges the specified cognizant authorities to use criminal procedure regulations only as a result of complete, comprehensive and objective establishment of concrete facts on which such regulations are aimed at. At the same time the requirements of legality and justification do not absorb and do not substitute each other. Practical value of such understanding of legality and justification requirements co-relation is quite based on principle because obliges all competent authorities of the state to use at all stages of criminal proceedings precepts of law respectively to both requirements, and monitoring bodies should check legality and justification of all acts of criminal proceedings in specific case.

Really, legality and justification are not similar opinions, but are various independent requirements imposed to proceeding decisions.

It is obvious to us that without the corresponding justification and motivation the movement to the purpose of criminal procedure proof cannot be lawful. But also, justification and motivation of any legal proceedings, decisions by entities of proof without existence of accurately certain aim eventually leads to an arbitrariness and voluntarism of the officials of investigation authorities invested by powers of authority and inquiry (as option: to unilaterality, incompleteness of proof).

Justification and motivation of legal proceedings and decisions by entities of pre-judicial proof through a prism of category of the objective (material) truth is a key condition of adoption of truly lawful, proceeding decisions and conducting legal proceedings in a pre-judicial part of criminal proceedings.

Methods and Materials

Methodological basis of a research are systemically logical, technical, comparative law methods of a research in combination with the complex analysis of the studied questions. In this research the method of the critical analysis of researches results and the theory provision of decision making was also applied.

Justification of decisions in criminal proceedings is studied enough in legal literature in connection with cumulative opinion of decisions (P.A. Lupinskaya, Yu.V. Manayev) and in relation to a sentence» (I.D. Perlov). At the level of scientific research, the actual justification of criminal procedure decisions is studied (A.V. Smirnov). The actual bases of decisions are understood as the reality conditions fixed in hypotheses of applicable laws. However, the concept of information justification of criminal procedure decisions is represented insufficiently developed. In a general view, the information bases were investigated separately, within separate problems: first, evidence and averment (V.N. Grigoriev, N.M. Kipnis, N.V. Zhogin, etc.); secondly, presumptions (M.S. Strogovich, V.I. Kaminskaya),pre-judictions and facts of common knowledge (V.D. Arsenyev, F.N. Fatkullin).

Theoretical base of the article was made of monographic researches of criminal procedure and criminalistic sciences concerning investigative and judicial actions, participation in criminal proceedings.

Results

In literature the legality is estimated as a method of implementation of the government, a political legal regime, democracy element, a social state, category of a duty, a condition of law and order implementation, and the basic principle of activity of state bodies and officials. Generally, the legality is considered as the principle, a method of behavior and the mode of social life. For this research it is necessary to consider legality as the principle of activity. Note, it is possible to consider the principle of legality as general legal principle and as the principle of criminal proceedings.

The legality as the principle of decision-making in criminal procedure activity cannot be considered in a separation from its more general contents. It is the only principle of the right, the branch of law and activity. The legality is the general legal principle transformed to features of criminal proceedings. It is a basis of ensuring usual activity of the country, ensuring the rights and the interests of the personality, law enforcement in the country. The legality assumes uniform approach at formulation of requirements and granting the rights.

Proceeding from sense of Article 10 of the Criminal Procedure Code of the Republic of Kazakhstan the legality principle is referred, first of all, to the bodies conducting criminal proceedings. We think that it is not absolutely correct as the mode of legality extends to all participants of criminal procedure activity. The legality in criminal proceedings has the specifics. Respecting the rule of law means: a) application of a binding method of legal regulation («everything that is authorized is permitted»), b) not only legal, but also actual justification of decisions and actions, c) exact execution of instructions.

The legality in criminal proceedings contains the specifics. Respecting the rule of law means: a) use of a binding method of legal regulation («everything is permitted, actually that is authorized»), b) not only legal, but also actual justification of decisions and acts, c) accurate accomplishment of instructions.

Justification of law-enforcement acts means that identification of all having relevant facts, a careful and impartial research and recognition of their credibility, a deviation of all unproven and doubtful facts3.

«Justification of the decision is a ratio of the conclusions stated in it about the actual facts of the case to proofs which are in case and which are received as a result of the activities for collecting, check and assessment of proofs preceding the decision» '1.

Yu.V. Manayev, L.M. Repkin in relation to decisions of the investigator define justification of proceeding decisions as «the regulatory requirement interconnected with their legality consisting in validity, motivation and, as a result of it, in the reality of the facts and circumstances which need to be established at initiation of criminal case and at various stages of a stage of preparatory investigation» [5; 117].

Justification according to the law is considered as a part of the fundamental principle of criminal proceedings - the principle of legality and it shows the sense of justification. Justification is not an ordinary state. Without justification of proper procedural decisions the existence of the legality principle is impossible.

The validity is closely connected with motivation. As P.A. Lupinskaya precisely defined, motivation is a logical form of validity. If the validity assumes accounting of actual data, conditions of decision-making and a set of other factors, then the motivation is logical connections between the studied and considered circumstances [6; 55].

Thus, validity of criminal procedure decisions – an important element of the legality principle. The validity is closely connected with motivation. As P.A. Lupinskaya precisely defined, motivation is a logical form of validity. If the validity assumes accounting of actual data, conditions of decision-making and a set of other factors, then the motivation is logical connections between the studied and considered circumstances [6].

Thus, validity of criminal procedure decisions – an important element of the legality principle. The validity of criminal proceeding decisions, further we will note, hat the right to a fair trial is not exhausted by international provisions.

I believe that the right for fair judicial proceedings incorporates the right to validity of the made criminal procedure decisions. Judicial proceedings in criminal proceedings cannot be considered fair if there is no purpose, guarantees and a condition of pronouncement of the justified final judgment. It is impossible to agree with a position according to which the right for fair judicial proceedings does not guarantee at all that in process the truth has to be established and according to it the public justice is restored».

Establishment of the truth is especially essential in a case of conviction. Fair judicial proceedings in criminal proceedings have to be directed to establishment of the truth because the solution of the tasks facingcriminal proceedings is impossible without aspiration of achievement of the truth. M.S. Strogovich considered that the legality and validity are two necessary and integrally connected properties of the judicial sentence, and certainly, it is impossible to separate them mechanically from each other as an unreasonable sentence, i.e. the sentence which is not corresponding to the actual facts of the case, not leaning on good-quality and carefully checked proofs, - thereby it will be also an illegal sentence, and the illegal sentence decreed as a result of the judicial proceedings conducted with violation of the legal procedure, with constraint of defendant's right to a legal defense etc., at the same time will be an unreasonable sentence.

But for all that, according to M.S. Strogovich, legality and validity various, though connected with each other necessary properties of a sentence: the legality of a sentence is its resolution according to requirements of the law, and the validity of a sentence is its correctness in essence, i.e. its validity of authentically established facts [7; 128].

In other research it was noted that «emphasizing interrelation of legality and validity of a sentence, we are obliged to show that the concept of legality of a sentence is wider, than a concept of validity, it includes the requirement of the resolution of a reasonable sentence» 2'1. Let's note that legality and validity are various qualities of a sentence.

Thus, one may say, that the validity of criminal proceeding decisions is considered as an important component of the principle of legality in criminal legal proceedings - and the rights for fair judicial proceedings.

Discussion

Almost all scientists-proceduralists agree in opinion, that legality and validity are various, but densely connected properties of a sentence. It is real, that legality and validity are various, closely connected properties charged to a sentence: the groundless sentence cannot be lawful. At the same time the reasonable sentence is not always considered lawful as the legality of a sentence assumes not only the correct permission of business on a being, but also observance of all requirements of the law in a pre-judicial stage of process and in a stage judicial trials, and also right qualification of action. At the same time validity of a sentence is a base of the resolution of lawful sentence. It is impossible to agree with opinion that the legality is broader than validity as they are various requirements.

The following question which should be considered is a compliance of validity and motivation. Let's note that the validity and motivation are closely connected, but also various properties of a sentence.

Questions of validity and motivation ratio of a sentence repeatedly were considered in criminal procedure literature. For example, it was claimed that motivation - one of criterion of the resolution of a reasonable sentence. In other research it was said that the concept of validity of a sentence is wider, than a concept of its motivation. At the same there may be cases where the sentence is reasonable, but not motivated and, on the contrary, when it is motivated, but not reasonable.

The motivation of a sentence always finds connection of proofs and conclusions of court, that is the logical party ofa sentence validity. The motivation, as though, it finds, shows in out of validity of a sentence, gives it external expression. However, all this does not give the grounds for identification of concepts, validity and motivation.

As it was fairly noticed if under validity to perceive «only presence at a motivation sentence (that is only the outer side of validity of a sentence), then political and procedural value of superior court control of lower courts activity is emasculated. The sentence can be well written, convincingly sound, but it is impossible to call it reasonable if it is not true». Actually, the motivation of a sentence has to serve expression of validity in out.

Thus, the motivation and validity of a sentence are closely interconnected, but not similar opinions. The sentence can be motivated, but not proved in essence. And if a sentence is not proved, then it is illegal. The validity of a sentence assumes that the sentence has to be true and be based on body of evidence, investigated in court session. Motivation is only external expression of validity, and also manifestation of legality of a sentence. The motivation helps to make a sentence reasonable.

Now we will consider circumstances of issuance of sound and fair judgement. Let's note that in competitive process to issue sound and fair judgement the best circumstances are formed.

First, the sentence will be reasonable under a condition if it is factual, taking place in fact, if these facts are not replaced with the assumptions and hypotheses of court. As it was fairly noticed, «the assumptions are unsafe at assessment of the indirect evidence to which numerous communications and dependences are peculiar. They are trying to fill in unidentified facts with assumptions, which leads the court to a wrong decision».The factual circumstances of the case must be established by the court and a reasonable decision must answer them.

The second condition of issuance of a reasonable sentence is that the actual conditions of case have to be established by proofs. In order that the proofs could establish circumstances of the committed crime in full accordance with reality, they must be «honest, have to answer a number of the conditions formulated by the law and practice of the courts activity», i.e. confirmations are obliged to meet requirements imposed on the Criminal Procedure Code of RK.

Conclusions

The theoretical importance of the carried-out study lies in carrying out the complex legal analysis of questions of validity of final criminal proceeding decisions of court. The practical importance of work lies in a possibility of use of the theoretical conclusions and provisions formulated in article for improvement of the legislation andalso in law-enforcement work. The main provisions and conclusions have every chance to be applied when developing educational and methodological literature and in the course of teaching courses. Also, the provisions, conclusions and recommendations contained in article, can be used for carrying out further scientific research on the provided task.

Not all problems are resolved in the course of the given research work, but it gives new opportunities for continuation and development of the offers stated in this article.

 

References

  1. Abasheva, F.A., & Segal, O.A. (2010). Printsip zakonnosti v arbitrazhnom protsesse [The principle of legality in arbitration process]. Izhevsk: Izhevskii filial Nizhehorodskoi akademii MVD Rossii [in Russian].
  2. Ivanov, A.A. (2010). Printsip zakonnosti yuridicheskoi otvetstvennosti [Principle of legal responsibility legality]. Tolyatti: Toliattinskii hosudarstvennyi universitet [in Russian].
  3. Podol'nyj, N. (1999). Osnovaniia priniatiia protsessualnykh reshenii [Bases of adoption of proceeding decisions]. Rossiiskaia yustitsiia – Russian justice, 2, 40–41 [in Russian].
  4. Manayev, Yu.V., & Repkin, L.M. (1981). Creation of procedural acts of the investigation. Volhohrad.
  5. Sarkisian, S.A., Kaspin, V.I., Lisichkin, V.A., Minaev, E.S., & Pasechnik, G.S. (1977). Teoriia prohnozirovaniia i priniatiia reshenii [Introduction to the theory of decision-making. Theory of forecasting and decision-making]. Moscow: Vysshaia shkola [in Russian].
  6. Lupinskaya, P.A. (1976). Resheniia v uholovnom sudoproizvodstve. Ikh vidy, soderzhanie i formy [Decisions in criminal proceedings. Their types, contents and forms]. Moscow: Yuridicheskaia literatura [in Russian].
  7. Strogovich, M.S. (1968). Kurs sovetskoho uholovnoho protsessa: Osnovnye polozheniia nauki sovetskoho uholovnoho protsessa [Course of the Soviet criminal proceedings: Basic provisions of science of the Soviet criminal proceedings]. Moscow: Nauka [in Russian].
Year: 2019
City: Karaganda
Category: Law