Cassation Instance Research Articles

Məhkəmənin hökm və ya qərarlarına yeni açılmış hallar üzrə baxılması üçün əsaslar

This research article conducted the grounds of proceedings on newly found circumstances, which are a type of particular proceedings in the criminal process of the Republic of Azerbaijan. According to newly found circumstances, the review of judgments and decisions of the court, which led to the issuance of a legally binding judgment or decision, and which were present during the investigation and trial of the case, but happens due to discovery of new unknown cases by the person who conducted the investigation or the court on the merits of the case. Chapter 54 of the Criminal Procedure Code of the Republic of Azerbaijan is devoted to the proceedings of newly opened cases. The first article - 461 of that chapter is dedicated to the grounds for considering court judgments or decisions in newly found circumstances. However, the specified article did not establish a legal understanding of the newly found circumstances. In this regard, we would suggest that Article 461 of the Criminal Procedural Code of the Republic of Azerbaijan to be amended regarding proceedings on newly opened cases and that institution to be given the following legal meaning: "Proceedings on newly found circumstances, the legally binding judgment of the court or other cases that make it possible to change any final decision are those cases that were not determined before - neither during the preliminary investigation nor at other stages of the criminal proceedings". Keywords: newly newly found circumstances, judgement, Supreme Court, the right to appeal, new verdicts, cassation instance.

Судебная экономическая экспертиза в делах о банкротстве

This work is devoted to the study of problems related to the conduct of judicial economic examinations in bankruptcy cases. The article discusses general theoretical issues related to the use of special knowledge in the arbitrazh process, as well as the legal aspects of the use of forensic examinations and their evidentiary value. A special part of the study is devoted to bankruptcy issues. Particular attention is paid to the problems related to the classification and regulatory consolidation of the methods of financial examinations conducted within this category of cases. The paper also provides a detailed study of all available judicial practice of arbitrazh courts of the first, appellate and cassation instances in bankruptcy cases for the period from 2020 to 2023.

Trends in the combination of individual and collegial in domestic criminal and civil, arbitration, administrative proceedings

All types of modern litigation are characterized by a combination of individual and collegial principles. The commonality of the concept of justice determines the conceptual universality of most institutions of criminal, arbitration, civil and administrative proceedings. It follows from this that the criteria and principles for determining the ratio of collegial and individual are or should be approximately the same in all types of processes. Recent years have been marked by an active reform of the rules on the composition of the court in these types of justice, but the novelties are not always uniform or at least coordinated. The author attempts to identify the patterns of formation of the sole or collegial composition of the court within certain types of legal proceedings and justice in general. The tendencies of modern procedural law in determining the ratio of individual and collegial in the courts of the first, appellate and cassation instances are analyzed separately.

The system of administrative courts of the Federal Republic of Germany: organization and functioning

The article is devoted to the organization and functioning of administrative courts of general and special jurisdiction in the Federal Republic of Germany. Administrative justice in Germany is an independent branch of judicial power. It is represented by administrative courts of general and special jurisdiction and is separated from constitutional, general courts and courts of labor disputes.
 The system of administrative courts of general jurisdiction in Germany covers three levels: the administrative courts, the higher administrative courts of the states and the Federal Administrative Court in Leipzig. The administrative court is the court of first instance for most administrative proceedings. The higher administrative courts of the federal states are the appellate and cassation instance of the administrative courts. Each federal state has a Supreme Administrative Court, the states of Berlin and Brandenburg share a Supreme Administrative Court, which, with the exception of Bavaria, Saxony- Anhalt and the city-states, are not located in the capital of the state to emphasize their independence from the administration in terms of location. Higher administrative courts are courts of first instance in cases of judicial review of laws and regulations, prohibition of associations by state bodies, and approval of implementation of certain infrastructure projects. The Federal Administrative Court, located in Leipzig, is the court of appeal and cassation on matters of law. The legislature also gave the Federal Administrative Court first-instance jurisdiction in public law disputes between the federal government and non-constitutional Länder, bans on mergers by the Federal Minister of the Interior or approvals for certain infrastructure projects. In these cases, the Federal Administrative Court has jurisdiction of both first and last instance.
 A feature of administrative justice in Germany is the presence of special courts of administrative justice – financial and social courts with appropriate organization and functioning. The issue of the status of judges of administrative courts, non-professional judges, representatives of public interest, judicial administration, competence and jurisdiction was considered.

Defects in Judicial Practice in Changing the Category of Crime

The author analyzes the acts of the courts of first, appellate and cassation instances and identifies shortcomings regarding the application of Part 6 of Art. 15 of the Criminal Code of the Russian Federation. It is noted that all defects should be divided into several groups: 1) inadequate, incomplete justification for decisions to change the category of crime or to refuse it; 2) lack of motivation for such decisions; 3) ignoring the consideration of the issue of changing the category of crime; 4) violation of the procedure for changing the category of crime; 5) imposing a court fine after changing the category of the crime; 6) changing the category of crime in the presence of formal obstacles; 7) failure to take into account changes in consequences following a change in the category of crime; 8) taking into account the same circumstances when applying Part 6 of Art. 15 and Art. 64, 73 of the Criminal Code of the Russian Federation; 9) other errors (in particular, discussion of the issue of changing the category of a crime of minor gravity). The explanations of the Plenum of the Supreme Court of the Russian Federation are assessed and proposals are put forward to improve law enforcement practice.

The Quality of Civil Procedure Legislation as a Necessary Prerequisite for the Accessibility and Effectiveness of Justice

The paper is devoted to the study of the provisions of modern civil procedure legislation with regard to the grounds for the cancellation or amendment of court decisions in cassation in the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation. The formulation of these grounds is unclear, which prompts their analysis. The author carries out an analysis in comparison with the grounds for the cancellation or modification of court decisions at other verification stages of civil proceedings — the appellate instance and in the cassation courts of general jurisdiction. The problem chosen for study has both theoretical and practical significance. The author substantiates that, despite the complexity and redundancy of the wording of the provisions of the law on the grounds for the cancellation (altering) of court decisions in the second cassation, in essence these grounds are the same as in the appellate and first cassation instances. The author also raises the issue of the impact of the quality of procedural legislation on the effectiveness and accessibility of justice in civil cases.

Рenalty for late return of rented property

The article deals with topical issues of applying liability measures for untimely return of property provided for use under lease terms. Based on the norms of the current legislation, the specific features of the penalty provided for in Part 2 of Art. 785 of the Civil Code of Ukraine, and outlined the problematic issues of legal qualification of the relevant accruals from the point of view of their legal nature, the calculation period, and the duration of the statute of limitations.
 It is noted that the imperfection of the legislative technique led to the emergence of opposite approaches to clarifying the nature of the increased costs of the tenant for the use of the property in the non-contractual period – such charges are considered as double rent for the use of the property and as a penalty for violating the obligation to return the property. The position regarding the possibility of simultaneous charging of rent for the period of non-contractual use of the property and a penalty as a penalty for late return of the property, which was reflected in the materials of court practice, also turned out to be controversial. The legal conclusions of the Supreme Court formed at the time of preparation of the article are presented, according to which the calculation of rent must take place exclusively during the period of validity of the lease agreement, and outside the contractual period of use of the property, a penalty in the amount of double the rent for the time the property is actually in the use of the tenant is subject to application. The corresponding position was formed by the cassation instance based on the distinction between regulatory and protective prescriptions and the impossibility of their combination (identification).
 The work indicates the need to establish the lessee’s fault in the untimely return of the property, highlighted the problematic issues of calculating the cost of using the property when renewing the lease agreement on the basis of Art. 764 of the Civil Code of Ukraine and Art. 284 of the Economic Code of Ukraine.
 Based on the results of the research, proposals were made to improve the current legislation, aimed at ensuring its unambiguous understanding by the participants of the tenancy relationship and the unification of the judicial practice of resolving disputes of the relevant category.

Problems of Judicial Practice on Consideration of Appeals of Bankruptcy Creditors Against Decisions of Courts of General Jurisdiction

Within the framework of this article, the authors attempt to identify and highlight the conflict in the current legal regulation and judicial practice that arises when appeals courts consider complaints filed by bankruptcy creditors against decisions of courts of general jurisdiction, including the problem of abuse of the procedural right to appeal a judicial act in order to exclude bankruptcy creditors, including bona fide creditors, from the register of creditors’ claims and removing their claims from the register. The authors purposefully made a selection of relatively recent judicial practice in order to emphasize that the conflict covered has taken place up to the present time. The authors draw attention to the current lack of a unified approach not only among the court of appeal, but also among the courts of cassation instance, to the consideration of appeals of bankruptcy creditors against decisions of courts of general jurisdiction, on the basis of which the claims of “competing” creditors are included in the register of creditors’ claims. Based on the results of the analysis, the authors conclude that there is an urgent need explanations from the Supreme Court of the Russian Federation regarding the procedure for considering appeals from persons participating in the debtor’s bankruptcy case (with the exception of arbitration managers).

Legal opinion of the Supreme Court as a source of judicial lawmaking

The article reveals the modern concept of legal opinion of the Supreme Court as a source of judicial law-making. The author reviewed scientific approaches to understanding the place and role of court precedent in general and its presence in the legal system of Ukraine. It has been clarified which features of the legal position of the Supreme Court give it the properties of a judicial precedent, and also the ever-increasing importance of knowledge and use of the legal positions of the Supreme Court in the activities of all civil servants, lawyers, as well as representatives of other professions who apply the relevant norms in their work has been proven legislation.
 It has been proven that the legal opinion of the Supreme Court is the result of judicial law­making. Based on the analysis of scientific sources, the author concluded that judicial law-making in modern conditions is gaining weight, although it remains a very debatable issue. It is argued that judicial law-making should be considered in broad and narrow senses. It was found that in a broad sense, judicial law-making is the formation of conclusions by courts of all instances during the administration of justice in order to eliminate gaps in legislative regulation in the absence of a law regulating disputed legal relations. It is proved that in a narrow sense, judicial law-making is the law-making of the Supreme Court, the result of which is the formation of a judicial precedent (legal opinion).
 The author substantiates the opinion that the binding of courts during the consideration of a case by a specific way of applying the rule of law, determined in the decisions of the courts of cassation instance (court precedents) in similar legal relations, applies not only to the system of common law, but also to the states belonging to the continental systems of law. It has been proven that the binding nature of the Supreme Court's conclusions for courts of all instances should be based on the necessary balance between the independence of judges and ensuring the unity and stability of judicial practice.

Judge’s discretion in ensuring human rights and freedoms: the significance of the legal position

The article is devoted to the analysis of the judge’s discretion in ensuring human rights and freedoms and the study of the significance of the legal position of the Supreme Court. It has been established that the purpose of the Supreme Court as the highest judicial institution in Ukraine is, first of all, the formation of a justified legal position regarding the application by all courts in the further work of a specific norm of substantive law or compliance with a norm of procedural law that was incorrectly used, and thus directing practice into a unified and proper enforcement. The legal positions of the Supreme Court have a more complex nature, as there is a clear awareness of the tasks of this body as a key subject in the formation of the unity of national judicial practice. The legal literature was studied, which currently discusses the problem of deviating from the legal positions expressed earlier, whereas it is at the level of higher courts that the problem of unanimous application of legal norms by courts in similar legal relations should be resolved. The institution of departure from the pre-legal position is quite an interesting phenomenon and become widely in recent years, and this problem is connected, perhaps, with the reform of procedural legislation. It was established that a massive departure from previous legal positions violates the standards of consistency of judicial practice, and the requirement of legal certainty appeals precisely to the standards of consistency of judicial practice, according to which courts must make similar decisions in similar cases under the same factual conditions. Constancy of judicial practice means that a series of previously adopted and agreed court decisions is a convincing proof of the correct interpretation of the legal norm. Since the legislator has not establish the binding nature of previously adopted resolutions of the Supreme Court of Ukraine, however, the possibility of deviating from them is provided only to the court of cassation instance of the Supreme Court. Deviating from the legal position, the court must provide a serious and convincing argument, since there has to be valid and reasonable grounds for a different application of the law’s prescription in the same (or similar) situation with a similar legal structure. It was concluded that the principles that are guided by judges when making each specific decision and forming the corresponding legal position, namely the principles of the rule of law, justice and legality, are of particular importance.

War damages compensation: a case study on Ukraine.

Russia's illegal, brazen and cynical full-scale invasion of Ukraine began on February 24th, 2022, and is still ongoing at the time of this research (July 2023). The damages incurred by Ukraine and its citizens during the years of occupation of the territories and the war are calculated in millions, although it is difficult to definitively determine both the methodology and specific numbers. To restore justice, it seems much more important to define a fair, transparent, and understandable procedure for compensating the losses suffered by citizens and businesses as a result of these events. This is especially important in the context of the need to implement the goals of sustainable development, in particular, ensuring equal access to justice for all. The article is devoted to these and related issues. To determine the procedure for compensating losses and damages caused by the war, we first determined what exactly can be compensated and who can apply for compensation. These and other factors determine the peculiarities of the procedure for the restoration of rights and compensation for damage caused by the war in Ukraine. In searching for an answer to the researched question, we analyzed the current legislation of Ukraine and draft laws proposed to regulate relations related to compensation for damages. We also conducted a comprehensive analysis of concepts such as losses, damages, compensation, reparations, and reimbursement as defined in national legislation and international treaties. The generalization of the case law of national courts (more than 200 analyzed decisions of the courts of the first and appeal and cassation instances for the period from February 20, 2014 to March 1, 2023, examples of which are presented in the study) indicates the presence of various approaches of compensation for damage, in understanding how to restore the violated rights of citizens.

THE RETURN OF THE CASSATION PETITION WITHOUT CONSIDERATION AND THE REVISION OF JUDICIAL ACTS THAT HAVE ENTERED INTO LEGAL FORCE (REPUBLIC OF KAZAKHSTAN AND GERMANY)

The authors reviewed the previously valid version of paragraph 6 of the first part of Article 489 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter – CPC). In which one of the grounds for the return of the petition, the protest for the revision of the judicial acts that entered into force was the existence of a judge's decision to refuse to transfer the petition with the case for consideration in the cassation instance on the same grounds that were previously considered, except for the cases provided for in part three of article 484. In the current version – the presence of the decision of the judge (judges). Thus, the old version, which was in effect until July 1, 2022, provided that the decision on refusal was made by one judge, and not by three judges (as provided after July 1, 2022). According to the earlier version of article 490 of the CPC, the petition for the revision of judicial acts that have entered into force was previously studied by the judge-rapporteur, who, within no more than ten days, in the absence of grounds for his return without consideration, filed a criminal case. In the current version of Article 490 of the CPC, part one fixes the provision that the petition for the revision of the judicial act is studied by the judge of the cassation instance, who resolves the following issues within a period of no more than ten days: 1) on the presence or absence of grounds for returning the petition on the grounds provided for in part one of Article 489 of the CPC; 2) on the presence or absence of grounds for requesting a court case; 3) on the date of preliminary consideration of the petition with the summons of the parties. The authors compares the current version of the article with the old one, which was in force until January 1, 2016, when the materials of the criminal case were required to be destroyed, if there were no grounds for returning the petition without consideration. In this norm, it is possible to see a violation of the impartiality of judicial bodies, since the court of cassation instance, when deciding, does not demand the materials of the criminal case, without giving its own assessment and without examining the actual circumstances of the case in violation.

ACTS OF THE COURT OF CASSATION OF GENERAL JURISDICTION AS JUDICIAL PRECEDENTS: PROS AND CONS

The purpose of writing this article is to analyze the definitions of the Court of Cassation, using them as a judicial precedent in judicial practice, for lower courts of their district, including magistrates, for whom the cassation instance is, in certain cases, the last verification court. The problems of legal regulation are identified, taking into account the analysis of judicial practice, legislative ways to eliminate them are proposed, comparative legal, empirical and other research methods are applied, recommendations are given on the use in practice of definitions of the cassation court of general jurisdiction.

Written cassation proceedings in domestic criminal procedure: application of law and perspectives for improvement

The article is dedicated to the examination of the issue of the institute of written cassation proceedings in domestic criminal procedure, its application of law, and perspectives for improvement. The advantages and disadvantages of conducting written proceedings are analyzed. The problematic aspects of implementing written proceedings in the cassation instance are discussed, and ways to improve the norms of criminal procedural legislation are proposed. These improvements aim to strengthen the legal stability of judicial decisions, procedural efficiency, the effective execution of criminal proceedings’ objectives, and ensuring the adequate protection of the rights of its participants.The introduction of the rule regarding the inclusion in domestic normative acts of the provision on assigning the jurisdiction of the court of cassation instance in criminal proceedings to decide on the form of cassation proceedings is reasonable. During the initiation of cassation proceedings, depending on the sufficiency of the materials for considering the cassation complaint present in the case, the court must appoint cassation review either in written proceedings or in a court session. However, if the court, choosing the written form of proceedings, concludes after studying the provided materials that they are insufficient for delivering a lawful and justified decision, it must issue a resolution for the case to be considered in a court session.Enhancing the norms of criminal procedural legislation in the proposed manner will contribute to strengthening the legal stability of judicial decisions, procedural economy, ensuring an adequate level of protection of the rights of its participants, and solidifying the definition of written proceedings through the review of court decisions among the main trends of amendments to the Criminal Procedure Code of Ukraine. This will foster an understanding of the significance and crucial importance of this institution in criminal proceedings.

Peace agreements at certain stages of the civil process

The article is devoted to the analysis of the main theoretical and practical problems of the classification of settlement agreements according to the criterion of the stages of the civil process. The author supports the concept common in the theory of the civil process, according to which the stages of the civil process are distinguished according to the criterion of the closest procedural goal. According to this approach, it is claimed that it is possible to single out settlement agreements that can be concluded at the stage of preparatory proceedings, the stage of dispute settlement with the participation of a judge, the stage of consideration of the case on the merits, the stage of appellate appeal of court decisions, the stage of cassation appeal of court decisions, the stage of review of court decisions under newly discovered and exceptional circumstances, stages of execution of court decisions. The possibility of concluding a settlement agreement at the stage of opening proceedings in the case is denied, since this stage does not involve the participation of the defendant, who learns about the civil case only after receiving a court order to open proceedings in the case. In addition, according to the formed position of the Supreme Court, the conclusion of a settlement agreement is possible only after the opening of proceedings.It is indicated that at any stage of the civil process, where it is allowed to conclude a settlement agreement, its approval by the court is possible, except for the stage of settlement of the dispute with the participation of a judge, where the concluded agreement is approved at the stage of preparatory proceedings. It is noted that when concluding a settlement agreement at the stages related to the appeal and execution of the court decision, it should be taken into account that the dispute about the right has already been resolved by the court of first instance. Therefore, the legislator allows the court of appeal and cassation instance to declare invalid the court decisions of the courts of the lower instance when concluding a settlement agreement at these stages of the civil process. At the stage of execution of the court decision, it is not recognized as invalid, but the approval of the settlement agreement is carried out by the court, and not by a state or private executor.Motives for concluding a settlement agreement are determined after the legal dispute in a civil case has already been resolved by the court of first instance.

Validity of property rental agreements during the martial state

After the beginning of the full-scale invasion of the Russian Federation, many Ukrainians were forced to seek happiness abroad, in other unoccupied territories of Ukraine. The paper analyzes the letter of the Chamber of Commerce and Industry dated February 28, 2022. The definition of martial law as circumstances of force majeure (circumstances of force majeure) is indicated. The issue of the validity of contracts that expired under martial law was also highlighted. Such contracts are the most problematic, since they expired during the period of martial law and it is not known what to do with them, whether they will be automatically extended. Amendments to the Civil Code of Ukraine were proposed, which specifically relate to the issue of extending the validity of real estate lease contracts during the period of martial law. The purpose of the paper is to highlight the problem of the validity of property lease contracts under martial law, to suggest ways to solve this situation. The paper also raised the issue of payment of contracts subject to limited use of the relevant property. Yes, because due to the war, a large number of Ukrainians are unable to use rented property or are very limited in its use. The corresponding norms of the Civil Code of Ukraine were noted, which provide that in such a case it will be necessary to reduce the amount of the corresponding rent. In case of impossibility of using such property due to objective circumstances, such lease is subject to cancellation. On this issue, an analogy was drawn with the times of the coronavirus pandemic, as well as the times of the Anti-Terrorist Operation. The relevant judicial practice of the cassation instance was also given, according to which the tenant must prove the existence of a cause-and-effect relationship between the impossibility of using the property and the force majeure circumstance. It was analyzed that the judicial practice on the issue of the need for a cause-and-effect relationship between the impossibility of using the property and the force majeure circumstance did not change with the beginning of the full-scale war and remained the same.

СТАНОВЛЕННЯ І РОЗВИТОК АДМІНІСТРАТИВНОЇ ЮСТИЦІЇ У ФРАНЦІЇ У КІНЦІ XVIII–XIX СТОЛІТЬ

The article is devoted to the coverage of historical prerequisites to formation of the modern model of administrative justice in France at the end of the XVIII–XIX centuries. The place and role of administrative justice in the constitutions of France at the end of the XVIII–XIX centuries are characterized. Napoleon Bonaparte's state-legal reforms and their influence on the development of administrative justice in France are analyzed. The process of formation of the State Councils, their structure and functions in the XIX century is shown. Considerable attention is paid to highlighting the powers of the State Council in the preparation of normative and legal acts and its cooperation with the head of the French state and the French parliament National Assembly. Thus, on February 17, 1800, a supplementary Organic Law was adopted, which introduced the body of administrative justice – the Prefectural Council – in the departments. It became the first instance of administrative judicature. In addition, the prefecture council performed the functions of an advisory body to the prefect. The State Council was the highest appellate and at the same time cassation instance of administrative proceedings. During the time of Napoleon Bonaparte, in France, for the first time in Europe, a system of control of the the legality of administration decisions was introduced. This model of administrative justice continues to function in France to this day. Considerable attention is paid to the analysis of the functions and powers of individual structural parts of the State Council, such as the collegium of racketeers and the judicial collegium.

ON CERTAIN ISSUES OF ANALOGICAL LEGAL REASONING IN CIVIL PROCEEDINGS IN UKRAINE

The article is devoted to the application of the analogy of the law in civil proceedings in Ukraine. It has been found that despite the lack of legislative enshrinement of the procedural analogy in the Civil Procedure Code of Ukraine, its application is consistent with the legal opinion of the Grand Chamber of the Supreme Court and is therefore legitimate. The court of cassation instance has already formed the practice of applying procedural analogy, in particular in matters of judicial control over the execution of court decisions and restoration of lost proceedings. An analysis of potential cases of the need to apply the analogy of the law in the Civil Procedure Code of Ukraine was carried out, and recommendations were formulated for the application of certain civil procedural norms by analogy of the law. The grounds for applying the analogy of the law and the subsidiary application of legal norms are delineated; it is established that if the law provides for subsidiary application (for example, the rules on simplified claim proceedings - to the appeal proceedings), then it has priority over the analogy of the law. It is justified that in those cases where it is possible to apply a systematic interpretation of legal norms, there is no gap, and the application of analogy in such a case is impossible. The exceptional nature of the application by analogy of the norms of other branches of procedural law has been proven - only in the case of impossibility of the application by analogy of the norms that regulate civil proceedings. Thus, it is appropriate to apply the norm of Part 3 of Article 415 of the Criminal Procedure Code of Ukraine regarding the binding nature of the conclusions of the appellate court after the annulment of the verdict in the part of the civil claim and the appointment of reconsideration of the civil claim in accordance with the Civil Procedure Code of Ukraine. At the same time, the application of norms from other procedural branches should not introduce into civil proceedings those institutions, principles and procedures that are not characteristic of it. It has been established that it is impossible to expand the range of procedural obligations of the participants in cases and to expand the list of grounds for the application of procedural coercion measures in the manner of applying the analogy of the law. The need for legislative power to respond to gaps in the civil procedural law revealed by law enforcement practice is substantiated; the necessity of enshrining the procedural analogy in the text of the Civil Procedure Code of Ukraine, as well as the grounds and limits of its application, is motivated.

Implementation of the Defense by a Lawyer at the Stage of Execution of the Sentence

The article deals with problematic issues in the determination by the legislator of the procedural status of a lawyer participating in criminal enforcement proceedings to consider issues arising in the process of execution of final court. An analysis of the norms of criminal procedure legislation on the powers of a lawyer and his functions to protect the rights of convicts was carried out. Attention is drawn to the imperfection of the regulatory regulation of the procedural position of a lawyer when carrying out his activities in the enforcement process to protect the rights of convicts. Differences in the legislative norms on the name of a person who protects the rights of a convicted person in a penitentiary dispute have been established, which require improvement of the current legislation. The article presents various points of view of process scientists regarding the legal status of a person providing qualified legal assistance to convicted persons in court proceedings to resolve issues of execution of a sentence. The scientific position defining the exercise of representative functions by a lawyer in executive proceedings has been criticized, since the main function of a lawyer, regardless of the type of legal proceedings, is to provide qualified legal assistance during criminal proceedings, the purpose of which is to protect violated or disputed rights, freedoms and interests of a person in need. The article reflects some positions of the Constitutional Court of the Russian Federation on the regulation of the provisions of the penal enforcement proceedings, including issues of the participation of a lawyer, which have a significant impact on the criminal process as a whole and ensuring the implementation of general legal principles of judicial proceedings, including ensuring the right to defense. The procedural norms of the legislation regulating the powers of the defense counsel in the implementation of the protection of the rights of convicts in the courts of the first, appeal and cassation instances are analyzed. Attention is drawn to the lack of legislative regulation of cases of mandatory participation and the procedure for appointing a lawyer in enforcement proceedings. The results of the study lead to the conclusion that it is necessary to endow a lawyer who protects the rights of convicts at the stage of execution of a sentence with the procedural status of a defender with legally fixed powers.

Проблемные аспекты судебной защиты прав собственников жилых помещений при переселении из аварийного жилья в Российской Федерации

Introduction. One of the most relevant and at the same time problematic areas of protection of housing rights in Russia is the protection of the rights of citizens during relocation from dilapidated and unsafe housing. The resettlement from the uninhabitable housing stock is one of the most important areas of the social policy of the Russian Federation. At the same time, the process of resettlement of citizens does not always and not in all subjects of the Russian Federation proceed without conflict and in compliance with the requirements of federal legislation. The rights of citizens are often violated by local governments responsible for their resettlement, which forces them to resort to judicial and other legal protection procedures. Theoretical analysis. The introduction of amendments to the Housing Code of the Russian Federation in terms of the introduction of part 8.2 of article 32 created legal uncertainty in understanding the development of housing legal relations over time and the content of the principle of retroactive effect of the law. In practice, this has led to numerous litigations between local governments, that insist on the need for direct application of this rule, and citizens who have acquired ownership of residential premises in houses recognized as unsafe and have lost the right to receive new housing instead of uninhabitable. Empirical analysis. It was revealed that the courts of the first appeal and cassation instances, when considering the same category of cases, apply the norms of part 8.2 of article 32 of the Housing Code of the Russian Federation in different ways. In some cases, the courts took the side of local governments, defining housing relations as continuing in time, others defended the positions of citizens who appealed to the facts of acquiring housing and including them in regional departmental resettlement programs before the relevant changes to housing legislation were made. An important role in eliminating uncertainty in judicial practice was played by the Supreme Court of the Russian Federation, which, by its decision, confirmed the correctness of the positions of citizens. Results. The authors proposed the directions for improving the current housing legislation, which, according to their opinion, will ensure, among other things, the observance and protection of the rights of citizens.