Uridičeskaâ Nauka i Pravoohranitelʹnaâ Praktika (Dec 2014)
Does the justice concur witn court adjudication of criminal case?
Abstract
Two formulas are confronted in the article: “justice in the Russian Federation is administered only by court” and “court adjudicates criminal cases”. Different scientific standpoints are analyzed. The viewpoint on justice as any court procedural activity (including pre-trial control of preliminary investigation bodies) and arguments justifying it are studied, notably justice is not only judicial proceeding and conclusion on guilt and liability, but also deciding issues on arrest, search, taking other measures of criminal procedure constraint. The author proposes to consider justice in its direct meaning and in the narrow sense as the court activity on trying and adjudicating criminal cases. The rest of the court’s functions including the function of pre-trial control of preliminary investigation bodies cannot be considered as justice. The criminal case adjudication totally concurs with justice, and “justice” remains the priority legislative term. It is proved that justice as criminal case adjudication begins in the stage of preparing for judicial sitting, but it is executed in all the following degrees of jurisdiction and also when reopening the case due to newly discovered facts. In such cases reversal and revision of a sentence are possible, which is court’s prerogative forming a justice function. The judicial proceeding in the stage of executing a sentence is not considered as justice because in this case the sentence is not reversed or revised, its legality and validity are not examined and questioned, but execution of punishment can be amended.
