The implementation of the principle of justice in criminal law causes many difficulties. This is due to the fact that the attitude towards it is very ambiguous. On the one hand, the principle of justice in criminal law is completely incomprehensible, and on the other, it is quite clear.
Difficulties in Enforcing
The principle of justice and other principles of criminal law are constantly referred to in decisions of the highest courts. Especially often, references to it can be found in acts of the Constitutional Court. The Constitutional Court refers to the principle of justice by virtue of its constitutionality and considers it as the basis not only of criminal proceedings, but also of the system of criminal procedure principles as a whole.
Meanwhile, many lawyers see a somewhat strange trend. Experts believe that the mention of the principle of justice in criminal law is an example of a formal reference to morality. At the same time, according to other lawyers, it is he who is the reason for the clash of opposing views on the essence of the criminal process.
In law, the principle of justice is mentioned through the prism of the provisions of Art. 6 of the Convention on the Protection of Freedoms and Human Rights and the practice of the ECHR.
Criminal Reform
As you know, at the turn of the XX-XXI centuries. many elements of government have undergone major changes. Legal institutions, including criminal law, were also transformed.
During the reform of the criminal process, the legislator tried to replace the fundamental principle of objective (material) truth with “absolute competition”. Such an understanding of the principle of adversariality is more characteristic of the Anglo-Saxon model of legal proceedings than the continental system. An attempt to change the scientific paradigm led to the need to use the principle of justice, previously unknown to Russian doctrine. The implementation of the new postulate in criminal law had to be addressed immediately by the Constitutional Court. So, in the Decree of 02.02.1996, the position is explained according to which "justice, in fact, can be such only if it meets the requirements of justice, provides an effective and timely restoration of interests and rights.
In this case, the COP had to justify this generally obvious idea. Indeed, in fact, it follows from the content of the concept of justice. The court substantiated the need to observe the principle of justice in law, referring to the preamble of the Constitution. It says the following: "We, the multinational people ... proceeding from the principles of self-determination, equal rights of peoples, respecting ... faith in goodness and justice ...". Subsequently, the Constitutional Court repeatedly pointed to this, analyzing and evaluating with its help the constitutionality of certain criminal procedure provisions.
Explanations of the COP
The court formulated explanations for a wide mass of citizens regarding approaches to understanding the content of the principle of justice.
In criminal law, firstly, an erroneous court order cannot be regarded as a fair act of justice. Therefore, it needs to be fixed. Secondly, the principle of justice in criminal law means that the circumstances of the incident in connection with which the case was instituted are established on the basis of the evidence examined. In other words, the collected materials received a proper legal assessment, the specific harm inflicted on individual entities, society and the state as a whole was identified, the real guilt was established, its degree and nature were determined.
Thirdly, in the course of resolving issues related to the detention of the subject, the application of the principle in question suggests that the court examined the legal and factual grounds for choosing or extending this preventive measure.
The opinion of lawyers
Analyzing the above explanations of the Constitutional Court, we can conclude that the principle of justice in criminal law relates mainly to elements of the principle of objective truth. The fact is that the court in the proceedings is obliged to establish the circumstances of the crime that actually took place.
At the same time, as experts note, the Constitutional Court significantly expands the essence of the principle of objective truth, taking it beyond the scope of traditional, textbook understanding. The court sees the application of the principle of justice in criminal law and in the proper qualification of actions, and in establishing legal and factual grounds for the application of preventive measures, and in solving other procedural issues. Thus, it becomes much wider than the principle of objective truth. Accordingly, for its implementation it is necessary not only to accurately establish by the investigating authorities and the court the circumstances of the crime that took place in reality, but also fair approaches when applying other provisions of the criminal procedure law.
Normative fixing
Has the approach proposed by the COP been reflected in the modern CPC? Let us turn to the text of the Code.
Even with a superficial analysis, it becomes clear that the term “justice” is used in the CPC in the narrow sense traditional for Russian doctrine. This concept designates one of the characteristics of the sentence, reflecting the right of the court to individualize the punishment based on the circumstances of the incident and the identity of the defendant within the limits prescribed by law.
In other words, we are talking about situations where the imputed sanction is formally legitimate. By virtue of this, punishment can be assessed using the categories of “fair” or “unfair”. It is in this sense that legislation enshrines the concept of justice as a property of a sentence. It exists together with other inalienable characteristics: objectivity, legality, validity.
Thus, in criminal law, the principle of justice is understood in a narrow (classical) and as broad sense as possible.
Nuances
It is worth saying that a broad understanding of the principle of justice in criminal proceedings does not always completely coincide with the approaches that have been developed in the interpretation of the Declaration of Human Rights, the Convention for the Protection of Freedoms and Rights, the International Covenant on Political and Civil Rights, despite the fact that the Constitutional Court often refers to specified regulations. In them, we recall, in certain formulations, a single idea is reproduced. It consists in the fact that each accused has the right to demand consideration of his case publicly, on a fair basis by an independent, competent, impartial court established in accordance with the law.
Conflict resolution
In criminal law, the principle of justice is not limited solely to the assignment of punishment to the defendant, corresponding to the gravity and nature of the act. It involves providing a wide range of procedural guarantees and rights to:
- access to justice;
- consideration of the case by a court established in accordance with the law;
- independence and impartiality of the proceedings;
- equality of production participants;
- protection;
- publicity during the proceedings;
- appeal against rulings;
- final decision;
- execution of court orders;
- Consideration of the matter within a reasonable time.
Obviously, without their implementation it is difficult to execute a fair trial. But let's look at this situation. Suppose an independent and impartial court openly considered a matter within a reasonable time, in which the citizen fully admitted his guilt. At the same time, the court did not interrogate the witnesses, attracted an interpreter and counsel, had enough time to prepare materials for the proceedings. Is it possible in this case to consider the verdict fair, and, accordingly, justice completed? It seems that no. The formal observance of the requirements was ensured not by the establishment of the person actually involved in the act, but by the conviction of the citizen. Moreover, it is far from the fact that he is guilty. Therefore, one cannot speak of true justice in isolation from the requirements for a comprehensive, objective and complete establishment of the circumstances of the case.
Material understanding of the principle
Based on the above reasoning, we can distinguish 2 aspects of understanding justice in the framework of the criminal process. First of all, we are talking about a formal or exclusively procedural embodiment of the principle of justice. This approach has been developed mainly on the basis of the legal position of the ECHR.
Secondly, we should talk about real or essential justice. The approach to its understanding is developed on the basis of decisions of the Constitutional Court.
At the same time, one cannot say that a material (essential) understanding of the principle of justice contradicts generally accepted international standards and the requirements for justice. This conclusion is confirmed by the analysis of international legal requirements. In the criminal law system, justice requires at least:
- the obligation of authorized state bodies to ensure the restoration of rights unreasonably violated during the proceedings;
- fair trial and resolution of issues affecting the interests and rights of participants, within the time limits established by law;
- the duty of the prosecutor, the court, the body of inquiry, the investigator to take all permissible measures to resolve the case, to identify circumstances that prove and disprove the guilt of the person, to give them a correct legal assessment.
Of course, society needs trust in a fair trial. Unjustified inequality will lead to the loss of authority by the courts.
It is a material (essential), and not a formal understanding of the principle of justice that does not just not contradict, but to a greater extent meets the constitutional-legal and generally accepted international standards of legal proceedings.
Application examples
Based on all the above points of view, reasoning, explanation and justification, we can state the following. The principle of justice in the material (essential) sense assumes that all criminal procedural decisions are aimed at the most complete clarification of the actual circumstances of the incident, compliance with the true meaning of institutions, criminal procedural procedures and the truth.
With this approach, it becomes clear that justice is not some kind of autonomous principle that exists separately, isolated from the rest. On the contrary, it acts as a kind of general criterion. It helps to understand the meaning of the remaining principles of legal proceedings.
For example, competitiveness and equality of participants are fair when they take into account the a priori, obvious, inevitable inequality of opportunities and means that the state and private person possess. That is why it becomes necessary to “restrain” this competitiveness by providing additional rights and guarantees to defense or imposing obligations on the investigating authorities to conduct an objective, comprehensive and complete investigation of the case.
For the same reason, it is true that the right to remain silent and, accordingly, not to be responsible for providing false information, not to prove, to use the assistance of a lawyer, whose work is paid including by budgetary funds, is granted to the less protected party to the proceedings. And it is in favor of the defense, and not the accusation (even if the victim refers to it) that fatal doubts are interpreted.
Similarly, it is necessary to understand the principles regarding the inviolability of the home, the individual, private life, etc. Given the principle of justice, this inviolability cannot be considered absolute. There is always (and there is a reference to this in the Constitution) the possibility of its limitation. But this, of course, must have good reason. Accordingly, a limitation of immunity is valid only if it is determined by the actual circumstances of the case in question.
Conclusion
Examples can go on forever. But already on the basis of the above cases, we can conclude that the principle of justice in the criminal process seems to permeate all other criminal procedural rules and principles. Moreover, it largely determines their content. According to some lawyers, the principle of justice can be considered the central element of the criminal process. Recently, more and more experts, both at the international and national levels, are joining this point of view.
It must be said that the Constitutional Court considers existing postulates according to their hierarchy. So, for example, in Resolution No. 4-P of 2005, the Constitutional Court indicates that the judicial procedure can be considered an effective mechanism to ensure the protection of freedoms and rights, if it meets the requirements of justice and is based on the principles of competitiveness and equality of participants.