Judicial Instances Research Articles

“The right to die”? On voluntary retirement and related obligations of the state. A study based on the law enforcement practice of the Highest Courts of Germany and the ECHR

The article examines the problems of the “right to death” – a constitutional and legal guarantee that recognizes the right of a person to end his own life at his discretion. This issue was initially considered as a downside, a kind of negative dimension of the right to life (Part 2 of Article 2 of the Basic Law of Germany). However, the focus has changed over time; the discussion is currently being conducted in the context of the right to personal self-determination. Within the framework of this article, the analysis is carried out on the basis of the law enforcement practice of the highest courts of Germany and the European Court of Human Rights. The point of contact of the German courts can be considered the recognition of the right to voluntary retirement as an act of individual self-expression, the realization of personal choice. The legal structure of the right to personal self-determination presupposes the establishment of a close connection between the right to general freedom of action (Part 1 of Article 2 of the Basic Law of the Federal Republic of Germany) and the guarantee of human dignity in accordance with Part 1 of Article 1 of the Basic Law of the Federal Republic of Germany. At the same time, the counterargument is not considered convincing, according to which the recognition of the “right to death” entails the impossibility of further personal self-realization and therefore contradicts the “life-affirming” spirit of the Basic Law, expressed, in particular, in part 2 of Article 2, since the very realization of the desire to end life is considered as an act of self-realization, which falls under constitutional protection. This constitutional and legal concept, developed by the Constitutional Court of the Federal Republic of Germany, is shared by the rest of the highest judicial instances of Germany, which complement it, in particular, by establishing state obligations to assist persons who wish to voluntarily end their own lives. The European Court of Human Rights has not yet had the opportunity to express its position on this issue, however, trends in the development of its law enforcement practice indicate that it is likely sooner or later to join the legal line of the German courts. The author identifies the argumentative shortcomings of the fundamental prerequisites for justifying the right to voluntary retirement, demonstrating not only their internal inconsistency, but also the inadmissibility of the consequences that state support for suicidal aspirations of citizens will lead to.

THE POSITION OF THE DEFENSE COUNSEL AND THE CONFIDANT — IS THE DISCREPANCY ADMISSIBLE?

The article is devoted to theoretical issues and practice of expressing the inconsistency of defense positions among the participants of criminal proceedings represented by the lawyer and the accused (defendant), at various stages of criminal proceedings, which entails the violation of the right to defense and the limits of the trial as a whole. The manifestation of the lack of agreement in the positions of the defense counsel and the defendant is most often a different interpretation of the factual circumstances (the charge), which is reflected in a change in the qualification of the act committed by the accused (defendant), often leading to the worsening of the situation of the latter. The study considers situations of possible discordance of positions of the defender and his client, leading actually to violation of the right to defense, presented the approach of judicial instances to respond to such significant violations of criminal — procedural law on the part of the defense, both at the trial stage and during the consideration of motions of preliminary investigation bodies in accordance with Article 108 of the Criminal Procedural Code of the Russian Federation, actually in these cases indicating the refusal of the lawyer — defender from the assumed defense and implementation of the right to defense

On the Role of the Supreme Court of the Russian Federation in Humanising Legislation and Law Enforcement Practice

The Supreme Court of the Russian Federation takes an active part in the humanisation of Russian legislation and law enforcement practice. This article analyses the legislative initiatives of the highest judicial instance over the past 10 years, their results, and new prospects for the humanisation of criminal legislation. Special attention is paid to the rulings and practice of the Supreme Court of the Russian Federation in criminal and civil cases with regard to the protection of constitutionally established rights and freedoms of the individual, which are the foundation of domestic legal humanism.

The institution of the family and the category of chastity in the culture of Zoroastrianism

This article examines the institution of the family in the culture of Zoroastrianism. In modern society, there is a devaluation of the institution of marriage, which emphasizes the relevance of the study of family values in traditional cultures. There is a widespread opinion that Zoroastrians welcomed consanguineous marriage, however, the presented work emphasizes that this opinion is erroneous, such a marriage was not recognized as a norm, it is mentioned only in individual cases that were discussed in judicial instances, which in itself indicates the atypical nature of this phenomenon. In Zoroastrianism, the norms of chastity and fidelity are fundamental, which ethically makes this religion related to Christianity and Islam. The purity of family relations in Zoroastrianism has a spiritual and theological meaning, draws society to the protection of nature and the essence of man. It is appropriate to perceive a kinship marriage in a spiritual dimension, that is, the creation of a family between people who adhere to the same religious teaching and share common ideological principles. Also, a related marriage can be considered as a union between a believer and the God Ahura Mazda. As a conclusion, the article notes that in Zoroastrianism, traditional marriage was welcomed and defended, similar to the one whose value is postulated in Christianity and Islam.

The Business Judgment Rule as a Protective Armor for Directors’ Responsibilities: A Comparative Study Among Mauritius, United Kingdom, and United States

Abstract The business judgment rule (BJR) is a corporate law doctrine that protects a decision of directors from fairness review by a court of law unless there is sufficient evidence that the director has breached his fiduciary duties or that the decision-making process is tainted. Given that the BJR acts as a protective armor for directors as their personal liability is not engaged for a corporate decision irrespective of its outcomes provided that some requirements are satisfied, the purpose of this paper is to critically assess whether directors of Mauritian companies are sufficiently protected and encouraged in the exercise of their duties. To achieve the research objective, the black letter research method was adopted to collect secondary data and a comparative analysis with some other countries’ rules on business judgment was conducted. A desk-based approach and content analysis were used to collect this information. The countries selected for the comparison are the United Kingdom and United States. Mauritian law does not afford protection to directors for decisions taken based on business judgment whereas this research has demonstrated that the laws of other countries being the United Kingdom and the United States as well as their judicial instances both recognize and apply the BJR.

Features of Applying Judicial Precedent in the Ukrainian judicial system

The article explores the possibility of future application of judicial precedent in the Ukrainian judicial system and the necessity of normative consolidation of its status as a source of law. Additionally, it is necessary to determine the criteria according to which judicial acts will be classified as sources of law. It is important to consider that the legal force of judicial precedent cannot be equivalent to the legal force of legislation; however, it can play a supplementary role and significantly enhance the quality and effectiveness of justice delivery. It analyzes specific works of scholars on the issue of recognizing judicial precedent as a source of law in Ukraine and its application in modern judicial practice. It is argued that the main questions arising during the investigation of the potential application of judicial precedent in Ukraine as a legal phenomenon should be analyzed through comparative analysis with legal systems where precedent is the primary source of law. It is substantiated that comprehensive and thorough research on precedent as a source of law is necessary for further improvement of the judicial system in Ukraine, driven by several reasons. Firstly, the increasing scientific interest in atypical sources of law for our country is associated with the intensive processes of Ukraine's integration into the European and global communities, as well as military actions in the country. Secondly, at the present stage, there is a significant influence of political, geographical, historical, and other factors on the legal space. The third reason for conducting research on judicial precedent is that both precedent and judicial practice are exclusively applied and legally applicable institutions directly related to the practical activities of the judicial system. It is established that unlike judicial practice, a judicial precedent, which is created by individually adopted court decisions of higher judicial instances, is a type of legal provisions developed as a result of judicial practice and one of its forms aimed at overcoming gaps in legislative regulation.

Reforming the justice process as a basis for combating corruption

Despite the ongoing measures to combat corruption in the judicial system of the Russian Federation, there remain cases when the presiding judge in a case is guided not by the norms of laws, but by personal and other material interests, which necessitates a change in the approach to identify, eliminate the causes, prevent, disclose, investigate corruption offenses, minimize and eliminate such offenses. The subject of the study is the norms of constitutional, civil and administrative law, other normative legal and judicial acts defining the procedural provisions of ongoing trials in the Russian Federation. The purpose of the research is to study the existing measures to combat corruption in the judicial system, as well as to develop proposals aimed at identifying and suppressing them. In the course of the research, the following methods were used: dialectical, logical, systemic, functional, formal-legal, comparative-legal research methods. The study analyzes the main legislative provisions related to combating corruption, as well as procedural norms of the law of judicial processes. The novelty of the research is the consideration of judicial instances as a single entity, where judges are divided not by specific courts where they carry out their official activities, but by internal conviction, and judges are united depending on the judicial instance. At the same time, the concealment of information about the judges themselves and the introduction of certain prohibitions on establishing their identity by the participants in the process will not only reduce the dependence of judges on the participants in the process, but also increase their personal security and reduce corruption. The analysis of the conducted research allowed us to establish that currently in the Russian Federation there are cases of corruption in the judicial system, where one of the main directions is the imposition of an illegal and unjustified court order, and in some cases the acquittal of a person who committed a crime. In this regard, it is proposed to reform the process of justice, which is based on the concealment of information about the identity of the presiding judges.

Mediation and the feasibility of aplication in contraventional processes of violence against women and members of the family nucleus in Ecuador

The Ecuadorian State maintains a legal system with a guarantees tint, which is why it protects the constitutional rights of the legal subjects that inhabit it. However, the Ecuadorian culture itself has been responsible for establishing inequalities, putting women in a situation of vulnerability, causing gender violence that, currently in Ecuador, has increased drastically. Through this research, we seek to analyze the way in which mediation as an alternative method of conflict resolution can help women who are victims of violence without having to exhaust judicial instances, which on many occasions becomes ineffective due to the very nature of these. criminal infractions, as well as due to the procedural congestion that exists within the Judicial Units Against Violence against Women and Members of the Family Nucleus. Through a qualitative research approach, which will allow observing the object of study to determine if it is appropriate and above all the feasibility of mediation as a tool for contravention procedures of violence against women or members of the family nucleus, in order to counteract this conflict quickly and effectively.

Исполнимость решений Конституционного Суда Российской Федерации как индикатор эффективности конституционного правосудия. Часть II

Issues of enforceability of court decisions are among the so-called “eternal” problems that require constant attention from both the legislator and law enforcers. This circumstance is largely due to the very nature of the judiciary and its decisions, the presence of special legal mechanisms for the execution of these acts, as well as the importance of the political will of specific subjects of relevant relations to implement the requirements formulated in court decisions. It is obvious that the significance of these factors increases markedly with an increase in the level of the court that makes the appropriate decision. As a result, the greatest difficulty with execution is observed precisely in relation to decisions of higher judicial instances. Meanwhile, due to the special constitutional status of these bodies, it is their practice of implementing decisions that have a significant impact on the national legal order and the legal system itself. Given the broad, complex nature of the relevant issues, the authors offer its analysis in the framework of a publication consisting of two parts, which are two relatively independent articles. This article focuses on the analysis of the socio-political and legal characteristics of the institute for the execution of decisions of the Constitutional Court of the Russian Federation (hereinafter referred to as the Constitutional Court of the Russian Federation), including in relation to the self-execution of these acts. Issues related to legislative, law enforcement, doctrinal characteristics of the existing mechanisms for the implementation of decisions of the Constitutional Court of the Russian Federation at the federal and sub federal levels, the need to improve them deserve independent attention.

Problems of Law Enforcement Related to the use of Subsidies

The article deals with certain legal issues related to the use of budgetary funds provided in the form of subsidies as state support for individuals, individual entrepreneurs, legal entities. The article analyzes the judicial practice and legal positions of the highest judicial instances, which are formed in the resolution of disputes arising with the use of budgetary funds provided in the form of subsidies. The legal features of subsidies are disclosed.

О насилии как признаке объективной стороны преступления, предусмотренного ст. 156 УК РФ

The article explores the issue of violent acts through the disclosure of the content of the term “illtreatment”, through which the objective side of the crime provided for in Article 156 of the Criminal Code of the Russian Federation can be carried out. The issue is highlighted by the author on the basis of a systematic analysis and interpretation of criminal law norms, the studied judicial practice of courts of general jurisdiction, explanations of the highest judicial instance, as well as the points of view of legal scholars expressed on the pages of the legal literature.

Arbitration of commercial disputes in the Republic of Kazakhstan and Europe: Issues of theory and practice

Relevance. The relevance of the study is due to the need to resolve problems related to the alternative settlement of economic disputes in Kazakhstan.Purpose. The purpose of the study is to conduct a detailed analysis of the activities of the institute of arbitration in accordance with the current legislation.Methodology. Among the methods used, it is worth noting logical analysis, functional analysis, dogmatic, legal hermeneutics, deduction, induction, and others.Results. The study revealed that this legal institute provides an opportunity for subjects of commercial legal relations to control dispute resolution independently; it also has a number of advantages in comparison with state judicial instances. The main organisations that implement arbitration proceedings in Kazakhstan were considered. The regulatory framework that governs arbitration in the Republic was also examined. It was noted that the main problematic aspects of the functioning of the institute of arbitration in Kazakhstan are related to the delimitation of competence, cancellation of the arbitration agreement, securing a claim, recognition and enforcement of the arbitration agreement. A comparative legal analysis of commercial dispute arbitration in Kazakhstan and Europe was conducted. In particular, the experience of such countries as Great Britain, France, Germany, Poland, Switzerland, Sweden, and others was investigated.Conclusions. The practical value of the results obtained consists in providing recommendations that will improve the effectiveness of one of the most important legal institutes, increase the level of trust and credibility of arbitration in Kazakhstan before foreign persons, and provide a more guaranteed mechanism for ensuring the right of subjects to choose a method of resolving a commercial dispute.

Shifting blame from the actions of the accused to medical professionals

A constant, clear trend is observed toward the appointment of forensic medical examinations in criminal and civil claims to healthcare institutions and individual medical workers. In some cases, criminal cases were initiated against medical workers without sufficient grounds. In their grief, relatives are not always able to objectively assess the actions of medical workers, which is often the reason for contacting investigative and judicial instances. Lawyers also support them in this. Often, medical workers receive complaints because they do not know how to properly explain to the patient and relatives the complexity of the situation and insist on hospitalization. All this is taken into service by lawyers, including medical professionals. Thanks to their actions, the prosecutor’s office, investigation, and courts are forced to do unnecessary and not always necessary work. All the above has become more often manifested during the investigation and trials to mitigate the guilt of the accused in criminal cases that harm health. The defendant or the representative of the defense declares that the consequences of the injury caused to the victim or the death of the victim are the result of the improper actions of medical workers, that is, the victim received inappropriate medical care. Explaining the purpose pursued by these people is difficult. However, such statements only lead to a delay in investigative actions and trials, appointment of additional, and sometimes repeated, forensic medical examinations, including commissions. In court hearings, not only forensic medical experts who conducted examinations are called witnesses to the incident but also medical workers. The presented work provides an expert observation of the death of a 4-year-old child. During the investigation and trial, the issue of inappropriate medical care arose, and a forensic medical examination commission was appointed. The forensic medical examination revealed that the child received appropriate medical care and had no connection with bodily harm.

Few more words about the violation of the right of the accused to use the help of a lawyer

The article considers such a basis for the cancellation or modification of the sentence by the court of appeal as the consideration of a criminal case without the participation of a defender (lawyer), when his participation is mandatory in accordance with the the Code of Criminal Procedure, or with another violation of the right of the accused to use the help of a defender. This issue is investigated by the author in the context of the fact that paragraph 4 of Part 2 of Article 389.17 of the Code of Criminal Procedure of the Russian Federation includes two independent grounds for revoking the decision. The main focus is on the category of "other violations". Based on the study of judicial practice, the author notes the variety of cases that are considered by higher authorities as violations of paragraph 4, part 2 of Article 389.17 of the Code of Criminal Procedure of the Russian Federation and entail the cancellation of the decision of the court of first instance. The article gives a critical assessment of the approach according to which the violation of the defendant's right to use the help of a defender can in certain cases be compensated by the court of appeal, therefore, the detection of such a violation should not always entail the return of the criminal case to a new trial in the court of first instance. It is noted that this approach is obviously incorrect, and this position is justified. When writing an article, the author uses such methods as analysis, synthesis, logical, comparative legal, formal legal. The author concludes that if the court of appeal, in violation of the defendant's right to use the help of a defender in the court of first instance, does not send the case to a new trial, but independently makes up for the violation, it thereby deprives the defendant of the opportunity to exercise proper protection in two judicial instances. The session of the court of appeal cannot fully replace the proceedings in the court of first instance, since the rules for examining evidence are established in the appellate instance, which differ from the rules of the court of first instance (in terms of the procedure for research). The author of the article considers the position of the courts to be correct, in which the courts recognize the violation of the defendant's right to use the help of a defender as an irreparable violation, which should entail the cancellation of the decision with the referral of the case to the court of first instance. The article presents the positions of process scientists on the problem under consideration.

Criminal threats to environmental safety in the agro-industrial complex

The purpose of this work is to study threats to environmental safety in the field of crop production, to identify errors and difficulties arising in the process of criminal legal counteraction to them and to develop proposals to resolve these problems. Design/methodology/approach: in the course of the study, general scientific and special methods were used: formal-logical, systematic, comparative-legal, statistical, sociological, document analysis, expert assessments. Findings: non-compliance with the requirements of environmental legislation in the implementation of activities in the field of crop production creates a variety of threats to the environment, harms its individual components. This actualizes the issues of increasing the effectiveness of criminal legal counteraction to environmental crimes Originality/value: particular attention should be paid to improving the practice of applying the norms regulating responsibility for environmental crimes committed in the field of crop production, strict observance of the principles of justice and legality. To do this, it seems necessary to develop methodological recommendations on the qualification of environmental crimes and make appropriate additions to the acts of official interpretation emanating from the highest judicial instances

The Supreme Court of the Russian Federation as Successor to the Supreme Court of the RSFSR: Historical and Legal Aspects

A democratic legal state is featured by a judicial system capable of effectively protecting the interests of citizens and organizations. In historical and legal studies, it is crucial to study how its main institutions were formed and developed. The study seeks to define the peculiarities of the legal and organizational foundations underlying the RSFSR Supreme Court’s creation and its subsequent development in modern Russia. This goal can only be reached by completing the following tasks: – To provide an overview of the historical and legal aspects of the activities of the domestic higher courts; – To describe the legal acts governing the structure of the highest judicial instance, both in the RSFSR and in modern Russia; – To explore how the competencies of the Supreme Court of the RSFSR and the Supreme Court of the Russian Federation have been evolved. This study analyzes the activities of the highest judicial bodies using a structural and functional approach; the historical and legal method and the analysis method are used to determine the scope of the highest courts’ authority and their significance at different stages of development. Through the analysis of the legal framework, a legal assessment is given to the activities of the Supreme Court of the RSFSR, and it is also concluded that the Supreme Court of the Russian Federation is its successor, since both courts in different historical eras were the highest judicial instance, whose function was to supervise lower courts and ensure uniformity of judicial practice.

Problematic aspects of the practice of reducing penalties in Russian civil law

The established practice of applying Articles 330-333 of the Civil Code of the Russian Federation does not always contribute to the effective use of penalties to ensure the fulfillment of obligations. This may be due to the lack of a legal definition of "lost profit" in the law, clear criteria for the apparent disproportionality of the penalty to the consequences of non-fulfillment of the obligation, with the presence in Article 330 of the Civil Code of the Russian Federation of the evaluation category "apparent disproportionality", which the courts interpret differently, and sometimes bypassing explanations on this score of higher judicial instances. Legal uncertainty is created by the norms of Parts 1 and 2 of Article 333 of the Civil Code of the Russian Federation, which do not allow making an unambiguous conclusion about the legality of applying their provisions to reduce the legal penalty to persons engaged in entrepreneurial activity. The subject of scientific research is to identify problematic issues of law enforcement practice to reduce the penalty in accordance with Article 333 of the Civil Code of the Russian Federation. The paper uses formal legal and comparative legal analysis of judicial practice in order to formulate the author's conclusions regarding the subject of the study.Through the application of this methodology, it was established that the courts are based on the norms of Articles 330-333, 394 of the Civil Code of the Russian Federation, explanations of the Plenum of the Supreme Court of the Russian Federation No. 7 of 03/24/2016, No. 81 of 12/22/2011, acts of the Constitutional and Supreme Arbitration Court of the Russian Federation, as well as on the provisions of federal laws and other regulatory legal acts, however, the practice of applying Part 1 of art. 333 The Civil Code of the Russian Federation in relation to persons engaged in entrepreneurial activity is dichotomous, there is no uniformity. According to the results of the study, problems were identified, solutions were proposed, expressed in the consolidation in Article 333 of the Civil Code of the Russian Federation of clear grounds (criterion) for reducing the penalty in order to avoid excessively broad judicial discretion, and in fact arbitrary judicial interpretation of the apparent disproportionality of the penalty to the consequences of non-fulfillment of the obligation.

Moral Damage Compensation to Victims of Crimes in the Context of Contradictions Existing between Higher Courts

The issues of applying the rules for moral damage compensation as a way to protect the rights of victims of crimes are traditionally among the most controversial. The problems of establishing the grounds for compensation, as well as determining its size, corresponding to the degree of fault of the offender, the nature of the victim’s suffering and other noteworthy circumstances, throughout the validity of the norms of the updated Civil Code of the Russian Federation, attracted the attention of not only representatives of civil doctrine, but also of higher judicial instances. In most cases, the conclusions formulated by the latter were in full compliance with the norms of civil legislation, they did not contradict each other and in their entirety ensured uniformity in the application of provisions on compensation for moral damage and due protection of the rights of injured citizens. However, an analysis of the acts of the Supreme and Constitutional Courts issued over the past two years indicate that there are significant contradictions in their approaches to determining the grounds for the admissibility of compensation and the specifics of its application, which is increasingly reflected in regional and appellate judicial practice. Thus, in contradiction with the established positions of the Supreme Court are the provisions formulated by the Constitutional Court in Resolution No. 45‑P of 26.10.2021, where the latter, in essence, defined the presumption of moral suffering in a person when the crime against him is committed, as well as in Resolution No. 7‑P of 02.03.2023, where the Constitutional Court provided for the possibility of compensation of moral harm in favor of a person who, by definition, is not able to bear these sufferings — a child who was not born at the time of his parent’s death. Such a narrative, of course, cannot be evaluated positively and needs a thorough doctrinal assessment.

The Systemic Equivalence Test and the Presumption of Equivalent Protection in European Human Rights Law—A Critical Appraisal

AbstractThe systemic equivalence test constitutes an important tool in European Human Rights Law: It is used in order to structure the different systems of protection that apply in a common space and to common addressees. More precisely, where there is “systemic” equivalence between different legal orders protecting fundamental rights, a presumption of compatibility of concrete legal acts is applied. While this technique is very useful in the context of a multi-layered legal landscape, this systemic approach currently seems to be very poorly conceptualized by the various judicial instances calling upon it. This may entail risks for the protection of fundamental rights in Europe, as certain acts may benefit from a presumption of conformity even though they are adopted by legal systems that do not have the qualities required to benefit from it. This article critically assesses this technique, and provides avenues for improvement of its use.

Regulation of the Concept of "Electric Energy Power" in Acts of International Law and Decisions of International Judicial Instances

The subject of the study is the peculiarities of the regulation of the legal category "electric energy (power)" in international acts (regulatory and judicial). The object of the study is recognized as the international foundations of the legal regulation of the concept of "electric energy (power)", reflected in the sources of international law and in the decisions of international judicial bodies. The purpose of the scientific article is to substantiate the need to unify the norms of international law with a reflection of the generally recognized position regarding the concept of "electric energy (power)" and the formation of the author's vision of the definition of this term.The author examines in detail the positions regarding the understanding of this term in international acts of various international organizations and judicial instances, emphasizes the importance of international unification in this direction, expresses the author's position on the meaning of the dynamically developing spheres of activity and economy of each modern state. Each State is called upon not only to provide its citizens and their collective entities with electric power resources on a safe and uninterrupted basis, but also to implement these functions in international relations regulated by acts of international law. The importance of the unification of the concept of "electric energy (power)" as a tool for the approximation of the legislation of individual countries aimed at fst)" in the acts of international law is designed to ensure both energy security and the identity of national legal regulation by including in the sources of law to the maximum extent textually and essentially similar from a legal point of view categories and their definitions. A special contribution of the author is to conduct a detailed analysis of numerous acts of international law (normative, judicial), which include in their content the concept of "electric energy (power)", the characteristics of various positions, carrying out their comparative characteristics. The novelty of the research is reflected in the formation of an opinion regarding the understanding of the legal category "electric energy (power)", its reflection in the author's definition.