The article discusses the evolution of views on administrative responsibility and tendencies of development of this type of legal liability. In the Soviet and modern Russian law administrative liability has been considered as various legal phenomena - the administrative procedure of bringing to responsibility, responsibility for administrative offences and the overall legal responsibility for offences characterized by intrinsic differences. Thus, the administrative procedure of bringing to responsibility is characterized by sentencing in simplified procedures by an administrative body acting outside the field of judicial review, and as its purpose has the rapid enforcement of regulations of local and Central Government through punitive measures. The article notes that since the 60-ies of the XX century the law has provided for judicial appointment of individual punishment (corrective labour, administrative arrest, eviction in specially designated area, etc.), judicial control over the administrative authorities when inflicting a fine and has been determined by the features of guilt of a wrongful act as a basis for responsibility. By this, they limit the accountability of the administrative order, create conditions for the emergence of a new mechanism - the responsibility for administrative offences, which was finally formed with the systematization of legislation and the adoption of the Basis of Legislation of the USSR and the Union republics on Administrative Offences and the Administrative Offences Code of the RSFSR 1984. The author analyzes key concepts related to administrative responsibility, and finds that a Soviet legislator semantically matched the concept of 'administrative offence' with the term 'offence', introduced into the Administrative Offences Code 2001,which became a system error that led to the loss of the scope and criteria for regulation and eventually transformed the responsibility for administrative offences into the overall legal responsibility for a wrongdoing. Such changes from distorting mechanisms of legal liability and legislation on administrative offences has been turned into a platform for widespread use of disproportionate sanctions. This article takes an opportunity to address the problem and identifies the need for a substantial revision of all legislation, including the Criminal Code, on the basis of the principle of proportionality of punishments.
The article analyses the compatibility of state sovereignty with limited government as constitutional value. The author believes that it can be achieved only when the concept of limited state sovereignty is recognized. Very progressive concept of limited state sovereignty concept is to be the concept of sovereignty as responsibility.
Analyzing compliance of the internment to the requirement of “lawfulness” established in the international human rights law, the author concludes that the Second Additional Protocol on the Protection of Civilians in Armed Conflicts of a Non-International Character of 1977, contrary to the point of view widely represented in the international legal scholarship and used in practice, can not serve as a legal basis for the application of this measure. As such a basis can serve national regulations or sources of international law that meet the requirements of “legality”. However, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 imposes on its states-parties excessive obligations to respect the right to freedom of an individual. In the light of such obligations the internment exercised without derogation from this right and carried out on the basis of national law, would be contrary to Para. 1 of Article 5 of the Convention. In addition, the position of the European Court of Human Rights is that the Resolutions of the UN Security Council can not be regarded as providing a State’s obligation to intern without bringing a charge against detained persons and without providing legal guarantees.
This paper substantiates the conclusion that for the purpose of establishing the scope and content of the procedural rights and guarantees to be provided to civilian internees, one should refer to the regulations of international human rights law, which are also applicable in armed conflicts of non-international character. Increasing number of rights and freedoms, from which no derogations are allowed and also emergence of an array of both treaty and customary law regulations of international law on combatting enforced disappearances, influenced the development of the scope of rights and guarantees to be provided to the persons detained in the course of armed conflicts. In particular, such safeguards include: habeas corpus; right to verify the legality of detention by an independent and impartial body; right to be informed of the reasons for internment; the right to legal assistance; the right to be registered and kept in officially recognized place of internment.
The prototype of the modern institution of limitation periods for criminal prosecution appears in old Russian law. The crime under it is of a private legal nature (offense), and the main punishment is revenge on the offender. The nascent state power requires limiting revenge, which is destructive in nature, although it continues to act as a natural reaction to deviant behavior. One of these restrictions is the establishment of a certain period during which it was allowed to take revenge with impunity. In different legal systems, this period is designated differently. In old Russian law, which was influenced by Byzantine legal practice, there was a demand for the legality of revenge only in case of immediate implementation, which brings it closer to the institution of necessary defense. This also shows the beginnings of the modern institution of limitation periods, since revenge at that time satisfied the goals of punishment. The analysis of the norms of Russkaya Pravda [Russian Justice] in comparison with the norms of ancient German law is a confirmation of this. In addition, the establishment of limitation periods in old Russian law in some cases had procedural prerequisites, which are also characteristic of the modern institution of limitation periods. Nevertheless, long-standing oblivion did not receive its further development in old Russian law. The most popular institution was monetary compensation, which not only effectively replaced revenge, but also provided an economic platform for the emerging state apparatus. In such circumstances, it was economically unprofitable to limit the payment of ransom as the main type of punishment for that period of time, and first of all directly to the state in the person of the princely power. Thus, in its historical development, the institution of limitation periods for criminal prosecution at the stage of old Russian law acquires its identity and significance only when comparing and disclosing those tasks that were solved by the state in this particular period of time by applying punishment.
“State” is usually recognized as a fundamental political concept in legal consciousness. It is often “excluded” from history: ancient and modern political concepts are often united under the one umbrella term without underlining the crucial discrepancy between them. This paper emphasizes the distinction between “universalist” and “critical” approaches to “State”. “Universalists” are trying to detect the birth of “State” in the second millennium BC, interconnect origins of “Law” and “State”. Critical approaches highlight the historical contextuality of emergence of State that was a unique social institute which appeared in Europe during the early Modern Times. In the second approach, Law becomes a phenomenon which existence has not been determined by the State for a long time.
the elements of some crimes assume that the subject has special features specified in the disposition of the article of the Special part of the criminal law. The analysis of these features allows us to refer them to the status-role characteristics of the individual, which makes it possible to use the sociological theory of social statuses and roles for the purpose of criminological study of the mechanism of intentional criminal behavior and the place of these characteristics in it. Given the prevailing ideas about the elements of the mechanism of criminal behavior substantiates the impact of social status and the role of the individual in her moral formation, the origin and development of criminal motivation, the value for specific situations and the process of committing a crime. However, the author refrains from conclusions about the causal relationship between the status-role position of the person and Commission of the crime, and on the basis of sociological research finds that the social status and role determine, on the one hand, the content and nature of the interactions of the individual with society, and with another – influence of personal characteristics of the individual, his needs, values, correcting them. In other words, in relation to the mechanism of intentional criminal behavior, social status and role are of dual importance, since they are both internal conditions and external factors of its Commission. So, as internal conditions, they cause the appearance of personality features that are reflected in the features of social perception, motivation and goal-setting. And acting as external factors, social status and role characterize a specific life situation in which a crime is committed and which, being recognized as guilty, also affects the processes of motivation and goal-setting.
This article became the fourth one of a series of studies by the author of various aspects of the independence of the judiciary. It is dedicated to the implementation of the principle of irremovability of judges as one of the proclaimed guarantees of their independence.
The article analyzes the institutional and individual independence of the courts and the judges, and concludes that it is the individual independence of judges that plays a special role in ensuring the independence of the entire judiciary as a whole.
As part of the research, the reader's attention is drawn to the constituent elements of the irremovability of judges: the period of empowering the status of federal judges and a special procedure for suspension and termination of their powers.
The author criticizes various age limits set by the legislator in terms of termination of the power of a judge. In his opinion, such a differentiated approach contradicts both the general principle of equality and the principle of the unity of the status of judges. As a result, сhief judges of the higher courts, taking into account the possibility of their repeated reassignment, become harmfully dependent on the person who has the right to nominate them for the positions of Chair and Vice-President of the corresponding court.
There are disappointing forecasts for the implementation of the constitutional amendment that expands the power of the Russian President to revoke the status of judges of the Constitutional, Supreme, cassation and appeal courts of the Russian Federation.
The article examines in detail the procedure for bringing judges to disciplinary responsibility, which is again set to ensure their independence. However, the procedure rather allows to be used for the purpose of controlling and exerting pressure on judges, taking into consideration the existing shortcomings. In this regard, the author justifies and suggests an impressive list of measures which may affect and change the situation. These measures include changing the structure of the qualification boards of judges, restricting the participation of the judicial leadership and higher courts in them, their expansion by the judges of the Constitutional Court, strengthening public participation in them and establishing the possibility to contest the decisions of the qualification boards of judges by applicant citizens.
The construction of the legal (legalistic) assessment that is widely applied in the context of criminal law has not been properly analyzed as an institution of the relevant branch of law. This article analyzes the concept of the legal (legalistic) assessment, considers the elements of its structure (object, subject, ground and nature) and peculiarities if its manifestation. The article examines the process of implementation of this construction within the framework of the branch of criminal law, in particular, it addresses the issue of consideration of the qualification of crimes (criminal law qualification) as a type of legal (legalistic) assessment. As the analysis of sources has shown, in the doctrine of criminal law the legal (legalistic) assessment has been applied to particular categories and subcategories of crimes, objects of criminal infringement, some elements of the objective side of the crime, actions the criminality of which can be excluded, particular institutions of criminal law, particular articles of the CC of the RF, particular criminal law categories. The author justifies the statement that particular criminal law prohibitions must be subjected to the comprehensive assessment. A criminal law prohibition must be assessed as a regulatory legal prescription, a legislative legal construction that enshrines all possible types (models) of criminal conduct declared illegal under the criminal legislation in a specific historical period; as a formal state power command of regulatory nature that contains a personal obligation not to commit (omit to commit) socially dangerous acts declared illegal by the criminal law and that interpret social relations from the perspective of the mechanism of criminal law impact. The author concludes that in respect of a particular criminal prohibition its social causation and validity must be assessed, as well as its semantic content and the form of presentation as a criminal law prescription. At the same time the practice of implementation of a particular prohibition, i.e. its assessment as a state power command of regulatory nature, is to be assessed as well. Legal assessment of a criminal law prohibition that includes determination of its essential elements and characteristics and that is aimed at determining its social value is caused by the ambiguity of its social and legal nature. This is largely due to the grounds for assessment of a particular prohibition that also depend on the choice of the subject of assessment. Comprehensive legal assessment of a particular legal prohibition, having objective and subjective nature, should reflect the assessment of its various incarnations, acting as a "bridge" connecting theory and practice.