KAZAN UNIVERSITY LAW REVIEW, 2018, том 3, № 4


KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Winter 2018, Number 4





        TABLE OF CONTENTS


   Damir Valeev (Kazan, Russia) Welcoming remark of the Editor-in-Chief .........................3
ARTICLES:
   Tamara Ganiyeva (Bishkek, Kyrgyzstan)
   Aida Seydakmatova (Bishkek, Kyrgyzstan)
   Investigative judge in criminal proceedings in the Kyrgyz Republic ..........................................6

   Nikolay Voplenko (Volgograd, Russia)
   Andrey Putintsev (Kazan, Russia)
   Legal justice: concept, types, and ways of implementation ..... 13

   Aron Salimgerey (Almaty, Kazakhstan)
   Vasiliy Mamonov (Almaty, Kazakhstan)
   Participation of the Republic of Kazakhstan in ensuring international security......................................... 47

COMMENTARIES:
   Evgeny Kolesnikov (Saratov, Russia)
   Constitutional and legal regulation of the freedom of mass information in the Russian Federation ................. 58

CONFERENCE REVIEWS:
   Nikita Makolkin (Kazan, Russia)
   Anastasiya Larionova (Kazan, Russia)
   Review of the XIV International scientific-practical conference “Derzhavin Readings ........................................... 66

KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Winter 2018, Number 4



            ARTICLES



                                Tamara Ganiyeva

                                Doctor of Legal Sciences, Professor, Head of the Department of Theory and History of State and Law of Law Faculty of Kyrgyz National University named after Zhusup Balasagyn

                                Aida Seydakmatova

                                PhD student of the Department of Theory and History of State and Law of Law Faculty of Kyrgyz National University named after Zhusup Balasagyn


        INVESTIGATIVE JUDGE IN CRIMINAL PROCEEDINGS
        IN THE KYRGYZ REPUBLIC



DOI: 10.30729/2541-8823-2018-3-4-6-12


    Abstract: From January 1, 2019, the Criminal Procedure Code of the Kyrgyz Republic will be added with a new institution of the criminal procedural legislation of the country - the institution of the investigative judge. The country is taking full-scale steps to introduce this institution into the judicial system. In this regard, the author in this article shows the relevance of the concept and the basic functions of the newly introduced institute of the investigative judge in the criminal justice of Kyrgyzstan, the history of the term. The representative of the working group who dealt with this issue reported that a working group had been created, which, taking into account the workload of the courts, proposed to introduce 30 positions for investigative judges. Deputy Prime Minister Zhenish Razakov held a working meeting on the introduction of the institution of investigative judges on June, 2018. The expansion of judicial control and supervision is of general interest in society of the Kyrgyz Republic.
    Keywords: institute of the investigative judge, investigative judge, judicial investigator, magistrate, powers of the investigative judge

TAMARA GANIYEVA, AIDA SEYDAKMATOVA

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    From January 1, 2019, the Criminal Procedure Code of the Kyrgyz Republic will be added with a new institution of the criminal procedural legislation of the country - the institution of the investigative judge. The country is taking full-scale steps to introduce this institution into the judicial system.
    Thus, on April 20, 2018, a meeting of the Council of Judges of the Kyrgyz Republic was held, where the members discussed the letter from the Chairman of the Supreme Court of the Republic - A.A. Tokbaeva - on the increase of the number of judges in connection with the entry into force on January 1, 2019 of the Criminal Procedure Code of February 2, 2017, which will include the term “investigative judge”.
    The representative of the working group who dealt with this issue reported that a working group had been created, which, taking into account the workload of the courts, proposed to introduce 30 positions for investigative judges. This figure was obtained as a result of the following calculation: for the courts with two or three judges, no position of the investigative judge is introduced; for the courts with three to seven judges, one position is added; and when courts have 7 or more judges, two positions are introduced. The workload of the courts was taken into account as well. In this regard, 9 million soms (currency in the Kyrgyz Republic - translator’s note) is needed for 2018 and 18 million soms for 2019. The members of the Council of Judges of the Kyrgyz Republic discussed at length the criterion for increasing the number of judges, whether to take into account the workload of the courts or to have an investigative judge in every district court. After long disputes and clarifications of the provisions of legislation, it was decided to include one investigating judge in every district court. Since there are 56 district courts in the Kyrgyz Republic, the Council of Judges of the Republic proposed to increase the number of judges by 56.
    Also, on June 7, 2018, Deputy Prime Minister Zhenish Razakov held a working meeting on the introduction of the institution of investigative judges, which was attended by the heads of the Ministry of Justice, the Ministry of Finance, representatives of the Supreme Court, and the experts who participated in the development of the new version of the Criminal Procedural Code¹.
    In this regard, it seems relevant to consider in more detail the concept and the basic functions of the newly introduced institute of the investigating judge in the criminal proceedings of Kyrgyzstan.
    According to the Criminal Procedure Code of the Kyrgyz Republic from February 2, 2017, “the investigative judge is a judge who applies measures restricting the rights and freedoms of the suspect or the accused, exercising judicial control over the legality of proceedings and decisions of an authorized official of the inquiry body, investigator, head of the investigative unit, or prosecutor”².

¹ The government of Kyrgyzstan discussed the introduction of the institute of investigative judges. https://knews.kg/2018/06/07/

² Criminal Procedure Code of the Kyrgyz Republic of February 2, 2017, no. 20 (entered into force by the Law of the Kyrgyz Republic of January 24, 2017, no. 10 from January 1, 2019). http://cbd.minjust.gov. kg/act/-view/ru-ru/111530

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    It is necessary to understand why the Criminal Procedure Code uses the term “an investigating judge”, since the concept of “investigative” can be interpreted by lawyers and ordinary citizens in different ways, assuming first of all that such a judge investigates criminal cases.

    In order to answer this question, it is necessary to refer to the history of this institution in criminal proceedings.
    When studying this issue, we found out that this institution was developed under the emperor Napoleon, when the Criminal Code of France of 1810 was adopted. The investigative judges, according to the code, were investigators under the courts and, indeed, had the authority to conduct the preliminary investigations themselves. Over time, the posts of investigative judges appeared in other Western European countries, as well as in Russia. They were also called judicial investigators, which more accurately reflected the essence of this institution at that time.
    Currently, the investigative judge (also referred to as a judge-investigator, investigating magistrate, or interrogation judge) is an official and procedural person in the legal system of several European and South American countries (usually the countries where this institution originates from the secular inquisitorial procedure). Here the investigative judge is responsible for the sole conduct of administrative and criminal judicial investigations, combining the functions of a judge and investigator and dealing with the case independently, without the jury or the defense (defense lawyer). The prosecution (prosecutor) may or may not take part in the process of consideration of the case by the investigating judge, depending on the specific legislation of a particular country. Often, the investigative judge is the first and final instance, especially if the nature of the subject matter of the investigation excludes publicity that is the possibility of making the trial public. In the countries with a magistrate court (Italy, France, and some others), the investigating judge has the status of a magistrate (the official of the judicial power is a judge, investigator, or prosecutor)¹.
    The powers of the investigative judge in some countries in certain historical periods, for example in 19th century France, were so broad that the writer Honore de Balzac called them “the most influential people in the country”².
    It follows from the foregoing that the concept of an investigative judge is apparently “associated with the French institution of the investigative judge or juge d’instruction, which was introduced in France in 1810 and later in other European countries.”³
    As Marie-Francoise Verdan, France’s magistrate in criminal matters, said in her talk at the First Bishkek International Legal Forum “Important issues of law for the Kyrgyz

¹ Big legal dictionary. Ed. by A.Ya. Sukharev, V.D. Zorkin, V.E. Krutskih. Moscow: INFRA-M, 1997, p. 907.

² Investigative judge. Wikipedia. Free encyclopedia. https://ru.wikipedia.org/wiki/

³ Golovko L.V., Inquiry and preliminary investigation in the criminal process in France. Moscow: SPARK, 1995, p. 67.

TAMARA GANIYEVA, AIDA SEYDAKMATOVA

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Republic at present and the experience of foreign countries” held on July 5 and 6 in the capital of Kyrgyzstan: “The institution of the investigative judge showed a significant progress in advancing freedoms. In a way, it was a way out of the totally inquisitorial, written and secret procedure (the accused was interrogated without knowing what he was accused of). It should be noted that we are talking about the magistrate of the court (judge) and not the prosecutor’s employee that is about the person engaged in conducting the investigation in an objective way, by collecting evidence both against and in favor of the accused. The judge not only can, but also should check the alibi submitted by the accused. And all these actions are carried out at the expense of the state budget, and not at the expense of the court expenses of the parties, as is done in Common Law. Consequently, such changes represented a significant evolution compared to the royal decrees of exile or imprisonment without trial or investigation, as was the case under the old regime.”¹
    Thus, traditionally, the powers of the investigating judges were to conduct a preliminary investigation. Nowadays, some European countries follow the path of abolishing such practice, and the functions of the investigative judge are transferred to the prosecution authorities and the police.
    At the same time, in some countries, such as Italy, Germany and France, another special position of a judge has been introduced, who is vested with the authority to supervise the observance of the rights and freedoms of citizens in the course of investigation, and also deals with the issues of arrest. “For example, in Germany such a judge is called “Ermittlungsrichter” or preliminary investigation judge, in France - “juge des libertes et de la detention” or liberty and custody judge, in Italy - “giudice per le indagini preliminari” or preliminary investigation judge².
    In the aforementioned countries, such a judge does not take part in the preliminary investigation, does not consider the criminal case on its merits, in other words, does not take a decision whether the accused or the defendant is guilty or innocent, but as mentioned above, oversees that during the pretrial proceedings the rights and freedoms of citizens are respected and protected.
    Based on the above, it can be concluded that the concept of an investigative judge in the reality of our time is not an institution of an investigative judge, as such, but an institution of a judge with regards to the rights and freedoms of citizens at the stage of preliminary investigation. In the era of globalization and integration, as well as the harmonization of law, the importance of the position of the investigative judge increases significantly, precisely because it ensures “the legality of the procedural actions of officials of the criminal prosecution bodies and considering complaints against their actions.”³

¹ Marie-Francoise Verdant. Important issues of law for the Kyrgyz Republic at present and the experience of foreign countries. Proceedings of the First Bishkek International Legal Forum. Bishkek, July 5-6, 2018.

² Analysis of the draft Code of Criminal Procedure of the Kyrgyz Republic. UNODS. United Nations Office on Drugs and Crime. Bishkek, 2014.

³ Khasenov M. Investigative judge in the criminal process. https://infozakon.kz/gov/2611

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    Among the post-Soviet countries, such position was first introduced in 2012 in the new Criminal Procedure Code of Ukraine. According to it, the powers of the investigating judge were to exercise judicial control over the observance of the rights and freedoms of persons involved in investigative actions at the pretrial stage of criminal proceedings.
    In the Baltic countries, such functions for the supervision of the rights and freedoms of the individual in the investigative stage of the criminal process are assigned to special judges, who have a wide range of powers to protect the rights of citizens.
    In the Russian Federation, there is no investigative judge, but the judicial control aimed to ensure of the rights and freedoms of citizens is extended to a number of investigative actions, including covert ones, which cannot be carried out without a court decision.
    The Criminal Procedure Code of the Kyrgyz Republic, which will be adopted in January 2019, synthesized a more acceptable for the country version of the criminal procedure law of the countries of the Romano-Germanic system, which allows creating guarantees to ensure the constitutional rights and freedoms of a person and citizen in the work of criminal investigation agencies. One of these guarantees, of course, will be the position of investigative judge, as a judge on the rights and freedoms of a person and a citizen, implemented through the powers fixed in article 31 of the said code¹.
    Now we will list the powers of the investigative judge regulated in the new Code. First of all, in the course of the investigation, the investigating judge makes decisions on the following matters: the legality and reasonableness of the detention of a person suspected of committing a crime and /or misconduct; the personal search; the inspection of the dwelling, as well as other objects owned (or used in other capacity) by persons living in them, in the absence of their consent; the seizure and (or) search; the application of preventive measures; the extension of the term of preventive measures; the temporary removal of the accused from the post; conducting special investigative actions; the placement of the suspect or the accused in custody, in a medical or psychiatric hospital to carry out the relevant examinations; the exhumation in the absence of consent of close relatives, the spouse of the deceased; on the imposition of arrest or removal of arrest on property, including funds of individuals and legal entities, held in accounts and in deposits or in custody with banks and other credit organizations, securities and their certificates.
    Also in the course of investigation, the investigating judge is authorized to consider complaints from participants in the criminal process about actions or lack of action and decisions by officials of the prosecution authorities, investigation and inquiry.
    In addition, the new Criminal Procedure Code of the Republic provides for such powers of the investigative judge that are innovative for the criminal process: depositing “during pretrial proceedings the testimony of persons who cannot appear for good reasons

1

   Criminal Procedure Code of the Kyrgyz Republic of February 2, 2017, no. 20 (entered into force by the Law of the Kyrgyz Republic of January 24, 2017, no. 10 from January 1, 2019). http://cbd.minjust.gov. kg/act/-view/ru-ru/111530

TAMARA GANIYEVA, AIDA SEYDAKMATOVA

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or to avoid the traumatic effects during the interrogation at the court hearing when considering the case on its merits”¹, deciding whether the deposit is to be expropriated by the state in cases where the accused has violated the Code; deciding on the application of security measures in relation to witnesses, victims and other participants in criminal proceedings; approval of the procedural cooperation agreement.
    According to the new regulatory act, the investigating judge does not handle the issues that may be a subject for judicial review in resolving the case on the merits, cannot give instructions about the direction of the investigation and conducting investigative actions, take actions and make decisions instead of the persons conducting pretrial proceedings or the supervising prosecutor.
    In conclusion, it should be noted that the expansion of judicial control and supervision through creation of a new institution of the investigative judge in the Criminal Procedure Code of the Kyrgyz Republic, generates interest in society and is supported by all social strata, due to the fact that the judiciary is the crown of justice in the country and it serves to protect the rights and human freedoms at the pretrial stage of the criminal process.

References

    Big legal dictionary. Ed. by A.Ya. Sukharev, V.D. Zorkin, V.E. Krutskih. Moscow: INFRA-M, 1997
    Golovko L.V., Inquiry and preliminary investigation in the criminal process in France. Moscow: SPARK, 1995.
    Marie-Francoise Verdant. Important issues of law for the Kyrgyz Republic at present and the experience of foreign countries. Proceedings of the First Bishkek International Legal Forum. Bishkek, July 5-6, 2018.
    Analysis of the draft Code of Criminal Procedure of the Kyrgyz Republic. UNODS. United Nations Office on Drugs and Crime. Bishkek, 2014.
    Khasenov M. Investigative judge in the criminal process. https://infozakon.kz/gov/ 2611

Information about the authors


    Tamara Ganiyeva (Bishkek, Kyrgyzstan) - Doctor of Legal Sciences, Professor, Head of the Department of Theory and History of State and Law of Law Faculty of Kyrgyz National University named after Zhusup Balasagyn (132/2 Kievskaya St., Bishkek, 720001, Kyrgyzstan; e-mail: tganieva@bk.ru);


¹ Criminal Procedure Code of the Kyrgyz Republic of February 2, 2017, no. 20 (entered into force by the Law of the Kyrgyz Republic of January 24, 2017, no. 10 from January 1, 2019). http://cbd.minjust.gov. kg/act/-view/ru-ru/111530

KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Winter 2018, Number 4

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   Aida Seydakmatova (Bishkek, Kyrgyzstan) - PhD student of the Department of Theory and History of State and Law of Law Faculty of Kyrgyz National University named after Zhusup Balasagyn (132/2 Kievskaya St., Bishkek, 720001, Kyrgyzstan; e-mail: Kaftgip@university.kg).

Recommended citation

   Tamara Ganiyeva, Aida Seydakmatova. Investigative judge in criminal proceedings in the Kyrgyz Republic. Kazan University Law Review. 2018; 3 (4): 6-12. DOI: 10.30729/ 2541-8823-2018-3-4-6-12

KAZAN UNIVERSITY LAW REVIEW ■ Volume 3, Winter 2018, Number 4






                                Nikolay Voplenko

                                Doctor of Legal Sciences, Professor of the Department of Theory and History of State and Law, Volgograd Institute of Business

                                Andrey Putintsev

                                PhD student of the Department of Theory and History of State and Law, Kazan (Volga region) Federal University



        LEGAL JUSTICE: CONCEPT, TYPES, AND WAYS OF IMPLEMENTATION



DOI: 10.30729/2541-8823-2018-3-4-13-46

    Abstract: The authors of the article make an attempt to comprehensively analyze the phenomenon of social justice from the standpoint of the modern Russian legal science. The article aims at laying the foundations of a “medium-level” theory that describes legal justice by synthesizing the groundwork of sectoral legal sciences and philosophy. The category of legal justice is understood, first of all, as an assessment system of legal phenomena, closely related to the mechanism of legal regulation. Conceptually, it is a synthesis of two basic qualities - moral validity and legality of law facts. The article justifies the relevance of the topic of legal justice through the link with national security issues and considers such important issues of the theory of legal justice as its concept, types (forms), content, correlation with categories of truth and freedom, concluding that the latter are its most important prerequisites. On the basis of a deep theoretical analysis, the manifestations of justice in objective law are revealed. The authors point out the problems that arise during transition of the abstract category of “legal justice” to a practical sphere and suggest the ways to eliminate them. The authors argue that the main method to improve the system of official legal justice would be to include the provisions on justice into objective law, which requires the improvement of law-making techniques.
    Keywords: legal justice, freedom, truth, legality, legitimacy, national security.

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    1. The relevance of social justice issues
    Justice as a general scientific category continues to attract attention, and theoretical views on it are constantly changing. This is quite natural, because it is connected with the ability of justice to penetrate into the most diverse spheres of human activity. On the other hand, behind the process of scientific research stands the eternal human desire to find the most optimal socially sensitive criteria for assessing and regulating a harmoniously organized and developing society.
    The tradition, that expressing the desire of people to create a state of social justice, was embodied in the ideas of a “rule-of-law”, “welfare state”, and “socially oriented state”. All these concepts in one form or another imply the formation of economic, political-legal and moral-sensitive mechanisms and means ensuring a socially guaranteed level of justice. At the same time, a number of authors express their opposition to the idea of social justice, which varies widely, from skepticism to a sharply negative attitude.
    Thus, for example, according to Friedrich von Hayek, “social justice” destroys genuinely moral feelings, encouraging “malicious and destructive prejudices.” It also rejects (especially explicitly - in the form of egalitarianism) the most fundamental moral principles, without which no community of free people can exist. F. von Hayek calls social justice “nonsense,” “cheating,” and “dangerous threat to civilization”¹. In the concept of this thinker, a rational alternative to social justice is the salutary force of the market economy, which spontaneously organizes the conditions of human life in civil society. Thus, according to F. von Hayek, it is the market that is fair. Any intervention of the state and political system in the sphere of justice leads to abuse. Social justice, therefore, can take place only in a command economy, in a system with rigidly centralized control, like an army². There is no positive criterion of justice for F. von Hayek; his concept is based solely on the basis of negative rules of fair behavior. From the point of view of F. von Hayek, only the behavior of the subject can be fair, but not the result of such behavior.
    In our view, such a position does not seem to be sufficiently substantiated. From the point of view of dialectics, in order to judge the injustice of any actions, it is required to have a positive standard of activity. There is also no reason to break the causal relationship between behavior and its results. Therefore, the fairness or injustice of the behavior of subjects programs and determines the corresponding result of their activity.
    In our opinion, the inviability of F. von Hayek’s view is not only in his blind belief that the market egoism of catallactics itself will give rise to criteria and practice of fair human activity, but mainly that the author completely deprives humanity, especially its disadvantaged part, of hope and faith in the creation of a justly built state-organized society on the principles of the officially proclaimed and effectively implemented social justice system.
    And these reflections lead to another aspect of the relevance of the topic of legal justice. Regardless of the theoretical and legal views on this category, it will be inherently

¹ Hayek, F. von. Law, legislation and freedom. Moscow: Irsen Publ., 2006. P. 246, 265, 247.

² Ibid.

NIKOLAY VOPLENKO, ANDREY PUTINTSEV

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in demand from practice. The society that has lost faith in justice becomes uncontrollable, and the demand for transformation is growing in it, including in a revolutionary way. Legislation that does not embody justice loses its universal character and is perceived as arbitrariness.
    Such legislation will either be ignored at the level of administration of law and law enforcement, or it will acquire negative effectiveness, destructively affecting the regulated public relations. A positivist solution of this problem in the spirit of the well-known principle of “dura lex, sed lex” is doomed to failure due to the dependence of the legal system on other regulatory systems of society. Legislation that contradicts economic logic, moral and religious norms will regulate the social relations with less effectiveness than if it is supported by other regulators. As regards the radical natural-legal interpretation, we consider it to be similarly unacceptable. According to this interpretation the norms of social behavior, conceived as natural in a specific historical situation, have an unequivocal priority. Such an approach makes it difficult to explain the stable structure of law as such (inevitably including a wide range of norms, the origin of which can hardly be assessed as natural) and ignores the differences in views of certain thinkers or social groups - which exactly rights they consider natural. The reference to the sanctity of authority in a situation where such authority is challenged makes legal conviction impossible, leading to the dominance of coercion in legal regulation and reducing its level of effectiveness.
    It is obvious that a kind of synthetic category is needed that can explain the interaction of law and morality (and other forms of what is traditionally called public consciousness) as social regulators in the process of influencing social relations.
    Thus, the scientific development of a seemingly philosophical and legal issue of legal justice in the light of the problems of ensuring national security and social stability takes on special practical importance.

    2. The concept of social justice
    The topic of social justice has been in the focus of attention of one of the authors of this article for a long time. Thus, back in 1979, N.N. Voplenko defined social justice as a determined by the material conditions of society concrete historical system of social relations and the corresponding feelings, emotions, evaluations, ideas, theories and norms, related to the distribution of material and spiritual benefits, rights and duties with a view to create a harmoniously and progressively developing society¹.
    It appears that this definition as a whole has stood the test of time and is suitable for use in the conditions of modern Russia. Of course, any concept is doomed to a certain incompleteness, since it is impossible to grasp all the characteristics of a social phenomenon, therefore it seems appropriate to specifically reflect the additional aspects of social justice that are not included in this definition.
    First of all, for social justice various social institutions are important, the institutions that define a specific historical and social configuration of the system of social justice,

1

   Voplenko N.N. Social justice and forms of its representation in law. Soviet state and law, 1979, no. 10. P. 43.