No 4 (2018)

This research paper covers the contemporary problems of application of a personal suretyship as a preventive measure in criminal procedure. Taking into account the preventive measures system embodied in the criminal procedure legislation, it is necessary to ensure legal, organizational and other frameworks to apply each of the existing preventive measures according to the specific situation with regard to a case. The author formulated the notion of a personal suretyship as a preventive measure and expressed the opinions about the explanation of a regulatory benchmark to which a person involved in the criminal proceedings as a guarantor should conform. The author notes the imperfection of the requirements applicable to a guarantor and embodied in the Criminal Procedure Code of the Russian Federation, among which there is no a requirement for arriving a certain age and ability to act. Based on the analysis of the existing points of view regarding the explanation of the provisions of the Criminal Procedure Code of the RF regulating the application of a personal suretyship, the practical recommendations addressed to an executor of law are formulated. In particular, the author offers the approximate (preliminary) criteria that should be considered by a person in charge authorized to apply this preventive measure in order to form the internal conviction that a claimant for the role of a guarantor with regard to a certain criminal case will be able to make moral and psychological impact on a suspected offender (defendant) and wants to ensure his/her good behavior during the proceedings.

The author expresses an offer to make amendments to the current edition of part 1 of the article 103 of the RF Criminal Procedure Code in order to expand the practice of application of a personal suretyship as a preventive measure during the criminal proceedings.

This paper deals with a philosophical explication of judicial discretion in the dispute between Herbert Hart and Ronald Dworkin, basic for the Anglo-American legal philosophy. Treating law as a system of rules, H. Hart emphasizes their “open texture” rooted in language, when, along with clear cases of use of legal terms and rules, there are borderline, problematic cases that require a judicial choice from existing alternatives, i.e. a discretion. H. Hart also conceives a moderate discretion as a means of ensuring flexibility and rationality of legal regulation, as well as the weighted solution of legal issues in accordance with social goals and values. This doctrine is contested by R. Dworkin as an inadequate description of a legal system and the delegitimation of the institution of law, which allows backdating of rights and obligations carried out by officials not elected democratically. According to the critic, the discretion is neither inevitable nor desirable. He proposes a model of law as an interpretative enterprise that includes various standards, primarily principles that ensure the proper application of rules and completeness of regulation. Being bound by his institutional debt and the best theory of the valid law, a judge always has sufficient reasons for a decision: for finding the unique right answer to any legal question.

The topicality of addressing this dispute is conditioned by the specificity (novelty) of its content and arguments as compared with similar positions in domestic Russian literature, discussing a number of important aspects of judicial discretion that are of theoretical and practical importance. The paper presents an overview of the main positions of dispute parties as well as of some of its results. In particular, the article emphasizes the significance of the debate for changing the structure of philosophical positions regarding judicial discretion, and the important role of R. Dworkin’s arguments in the ideological and methodological transformation of contemporary Anglo-American philosophy of law.

The paper analyzes the principle of separation of powers as an integral feature of a modern democratic rule-of-law state regardless of the form of government. It is highlighted that this principle has its features in each state depending on its historical, religious, ethnic, and other peculiarities. The author draws attention to the fact that the principle of separation of powers, in its traditional understanding, supposing the separation of state power in the legislative, executive and judicial powers underwent modifications to a large extent. Non-traditional state authorities appeared that fit in neither of the branches of traditional state power triad, for example, the RF Central Elections Commission, Bank of Russia, Ombudsman in the RF, Presidential Executive Office, Prosecution Office, Russian Investigative Committee, etc. In the constitutional-legal science, the approach emerged, according to which the principle of separation of powers is completely applicable at the level of local self-government.

The author highlights that the principle of separation of powers does not mean their isolation but, on the contrary, supposes their active interaction. The author emphasizes the inadmissibility of interference of powers in the jurisdiction of each other. The paper draws attention to the definite contradiction of the Articles 10 and 11 of the RF Constitution. The author defends the opinion of the researchers standing for the necessity to eliminate such discrepancies. The role of the President of the Russian Federation in the system of separation of powers is considered. In particular, the author says that the President of Russia has rather large powers in relation to all traditional branches of power: legislative, executive, and judicial. Furthermore, the head of the state has the most impact on the executive power. The author analyzes the opinion of some researchers and politicians about the consideration of the Russian Federations as a presidential republic.