CC BY
42«C@yL@qyiym-J©yrMaL»#2®I44),2@19 / ECONOMIC SCIENCES
УДК: 34.037
Shupitskaya A.N.,
Candidate of Legal Sciences (PhD), Associate Professor Associate Professor of Department ofInternational Law, Yanka Kupala State University of Grodno, lawyer, mediator
Moiseyeva I.A.
Candidate of Legal Sciences (PhD), Associate Professor Deputy Dean of the Faculty of Law, Yanka Kupala State University of Grodno, mediator ORCID: 0000-0003-2890-2789 GoogleScholarID: b W8_ UwIAAAAJ DOI: 10.24411/2520-6990-2019-10666 CONSTITUTIONAL PRINCIPLE OF JUSTICE AND ITS APPLICATION IN LAW
Abstract
The principle of justice is one of the basic constitutional principles of the modern state. Embodying the requirement of public life, according to which there must be a correspondence between the act and the retribution for its commission, it means the organization andfunctioning of the entire legal system, all its elements: the system of law and legislation, legal relations, legal views and beliefs, legal practice.
The principle of justice is not only the basis of law enforcement in modern states. It is also an idea linking other principles of the law enforcement process, defining the boundaries of the activities of the subject of law enforcement, the guarantee ofprotection of human rights and freedoms, the criterion for assessing the activities of law enforcement agencies.
During the implementation of law enforcement practice, there may be distortions in the implementation of the constitutional principle of justice, which have objective and subjective reasons. Their correction provides improvement of law enforcement activity, legal system, as a whole, its constitutionalization.
Key words: principle ofjustice, application, interpretation of law, law enforcement process, law enforcer.
Justice is a fundamental principle of the organization and functioning of society and the state, formed naturally as a result of the development of social relations. The principle of justice is proportionality, equivalence, equal scale of legal regulation. The principle of justice assumes the same application of the law to the subjects of social relations. However, at the same time, the subjects of social relations should be equal. If they are not equal, the principle of justice presupposes taking into account their peculiarities in the realization of the right. At the heart of this approach - the idea of society about justice, i.e. the so-called social justice, in different historical periods and in different States understood differently. As the well-known representative of the Marxist theory of state and law F. Engels argued, the Greeks and Romans considered slavery fair, and "the justice of the bourgeois of 1789 demanded the elimination of feudalism, declared unjust" [1, p.273].
The principle of justice is usually regarded as a general legal principle, a principle applicable to all branches of law. Constitutional law regulates the foundations of all spheres of social relations, thereby penetrating into the subject of legal regulation of all branches of law. Constitutional principles and norms are the basis for other legal norms. In this regard, it seems that the constitutional principles are of the nature of general law. Therefore, the principle of justice is a constitutional principle relating to fundamental constitutional basic ideas along with the principles of freedom and equality. It unites other principles, both constitutional (general legal) and branch, and ensures their interaction and implementation. As V. D. Filimonov
notes, the principle of justice includes all other principles, predetermines their content, and plays a key role in resolving legal conflicts [2, p.51].
Justice, as mentioned above, is equality, proportionality. However, equality is an independent constitutional principle. Thus, equality as an idea, a rule, on the one hand, is included in justice, and on the other -stands out as an independent. Humanism is a provision according to which a person, his rights and interests are recognized as the highest value of the state and society. Standing out on its own, it is also an aspect of the principle of justice.
The idea (principle) of justice determines branch principles, in particular, the principles of criminal law. More than that. According to V. V. Pokhmelkin, the principle of justice plays a coordinating role in the system of criminal law principles [3, p.21]. He justifies other principles of law, determines the limits of their action, the ratio in specific historical conditions. The dominant position of justice in the hierarchy of principles of criminal law indicates and R.N. Lastochkina [4, p.8]. The principle of justice was formed due to the need of the dominant social strata of the population to resolve social contradictions. It is this reason for its appearance indicates Filimonov V.D. [5, p.7]. As you know, the need for law enforcement occurs when either without a law enforcement act can not be realized the rights and freedoms of the individual (for example, can not be assigned a pension or allowance) or when already committed an act that is not compatible with the requirements of society and entailing the application of legal liability, that is offense. If we proceed from the essence of the principle of justice, understood as equivalent or equality, the very existence of law enforcement
as the activity of competent authorities, translating legal regulations into real social relations, seems fair. As for the embodiment of justice in society by removing the social on the one hand, the law enforcement process is aimed at preventing social conflicts in the future (an individual who has reached a certain age, has work experience, has paid contributions to socially necessary funds from his salary, has the right to receive a part of them) and at resolving legal disputes that have already arisen, on the other. Each offense from the social point of view is a bundle of contradictions, including disagreements between the parties to the conflict, the contradictions between the subjects of antisocial offenses and officials of state bodies, implementing on behalf of the state power activities related to the use of coercion, the conflict between the general and personal interests and needs.
The universal nature of the constitutional principle of justice means that this fundamental idea can be directly enshrined in the law, and can also be derived from the content of legal regulations. Even if justice is not framed in the form of a legal requirement (legal prescription), the need for its application follows from the system of other legal rules. So, for example, according to the requirements of paragraph 2 of article 152 of the Civil Code of the Republic of Belarus [6] in determining the amount of compensation for moral damages taking into account the degree of fault of the violator, and other relevant circumstances, the degree of physical and moral suffering connected with individual peculiarities of the person suffering harm. There is a requirement of commensurability between the requirements of the victim and the possibilities of causing moral damage. When considering labor disputes, analyzing the actions of the employee and the employer, the law enforcement officer compares the performance of the employee's duties under article 53 of the Labor Code of the Republic of Belarus, and the employer - the duties regulated by article 54 of the Labor Code of the Republic of Belarus [7].
The principle of justice underlies the formation of the law, its sources, legal relations and legal institutions. The principle of justice is of great importance, filling the gaps in the law, eliminating the shortcomings of normative legal acts and law enforcement.
Law enforcement is one of the spheres of social reality in which the constitutional principle of justice is embodied, albeit with certain deformations. Law enforcement, as is known, is a process of implementation of the requirements of legal norms in real social relations, carried out by a special entity-a state body or official. It is this factor - the presence of a subject endowed with state powers-that distinguishes law enforcement from other forms of law enforcement. The law enforcement process is the decision of a particular case, a certain legal situation, according to V. V. Laza-rev, "the application of the law, general legal norms to specific persons and circumstances" [8, p.425]. On the one hand, it is an objective activity determined by such factors as the socio - economic situation in the country, the political factor, organizational and ideological conditions of the subjects. On the other hand, it is the activity of specific individuals, namely: investigators,
prosecutors, judges - to implement the right. On law enforcement - activities related to legal actions and legal decision-making - therefore, the impact is obvious social influence. The most common social expectations addressed to public authorities and their officials are competence, efficiency, legality and fairness [9, p.206].
The enforcement process is a set of successive stages. These usually include the establishment of the factual circumstances of the case, the definition of the legal basis of the case, its decision. Each of these stages is designed to embody the constitutional principle of justice. Thus, the basis for the beginning of the law enforcement process is the occurrence of the actual circumstances provided by it. According to article 166 of the Criminal procedure Code of the Republic of Belarus [10], the grounds for initiating a criminal case are statements by citizens, surrender, reports by officials of state bodies and other organizations, reports of a crime in the mass media, and the direct discovery by the criminal prosecution body of information indicating signs of a crime. The basis is the availability of sufficient data indicating signs of a crime or disappearance of a person (article 167 of the Criminal procedure code). Justice at this stage of the enforcement process is manifested in the ability requirements for the victims to protect their rights in case of violation by the commencement of the case and conducting an investigation or preliminary investigation after the criminal case with its procedural features associated with obtaining necessary information, conducting interrogations, investigatory experiments and examinations. Justice is manifested in the formalization of the stage of initiation of criminal proceedings, which makes it objective and impartial, free from accidents and intentional actions of persons personally opposed to the individual suspected of committing an offense.
Justice as a general legal principle is manifested in different aspects at other stages of the criminal process. At the stage of inquiry and preliminary investigation of a criminal case, for example, the question often arises about the election of the accused (suspect) a certain measure of restraint. As a manifestation of the principle of justice should be considered the establishment by the legislator of a wide range of possible measures: from the obligation to appear - to detention. A preventive measure is chosen to ensure the normal course of the criminal process: timely and high-quality conduct of procedural actions, prevention of illegal influence on victims and witnesses, establishment of the truth in the case. Accordingly, the law enforcer, choosing a measure needs to compare the proportionality of the options to achieve the stated purposes and restrictions of individual rights resulting from the application of the preventive measure. The official determines the need for a particular preventive measure. The methods established by law to monitor the legality and validity of preventive measures - filing a complaint with the court, appealing the investigator's decision to a higher official, etc. - allow checking compliance with the principle of justice in solving the above-mentioned issue.
In a criminal case, the circumstances set out in article 89 of the Code of Criminal Procedure of the Re-
<<c©yl©ququm~j©y©mal>>#20qq)),2(0]9 / economic sciences
public of Belarus [11] shall be established: the existence of a socially dangerous act provided for by criminal law (time, place, method and other circumstances of its commission), the guilt of the accused in the commission of the crime, the circumstances mitigating and aggravating responsibility, characterizing the personality of the accused. Accordingly, the principle of justice is also manifested here both in the material aspect and in its procedural expression. Unfortunately, the practice of bringing charges for committing criminal acts with the following wording "at an unspecified time", "in the presence of unidentified persons" and "in circumstances not determined during the investigation" is now widespread in the Republic of Belarus. It is unlikely that such application of the norms of the Criminal procedure Code of the Republic of Belarus can be considered fair. After all, it leads to arbitrariness and does not allow to distinguish between legal and non-legal behavior.
Legal procedural principles such as adversarial proceedings and equality of the parties are derived from and determined by the principle of equity, as mentioned above. Their implementation is facilitated by one of the most important procedural rights of the suspect or accused - the right to a defense. Violation of the right to protection means illegality of process.
The constitutional principle of justice is implemented in the course of the administration of justice. Observance of lawfulness in the law enforcement process, the principle of protection of the rights and freedoms of the individual, the right to protection, the principle of comprehensive, full and objective research of all circumstances of the case, equality of citizens, the independence of the court, etc. aimed at achieving an equitable result: disclosure of crimes, expose criminals, punish the guilty, reparation to the victim. Both the procedure for the administration of justice and its content are intended to contribute to the achievement of a just result. An independent aspect of justice is the determination of the offender's punishment. According to part 7 of article 3 of the Criminal code of the Republic of Belarus [12], a person who has committed a crime must be sentenced or another measure of criminal responsibility necessary and sufficient for its correction. It is fair to respect the proportionality between the offence committed and the penalty imposed for it. The principle of justice predetermines the principle of individualization of punishment, the main purpose of which is to prevent excessively harsh and unreasonably lenient judgments of the courts. The latter are possible in the case of incompetence of the law enforcement officer, his lack of professionalism. But also in the case of social pressure on the judge. Justice, like law enforcement in General, is not free from shortcomings. And these errors can occur for various reasons, both objective and subjective, and at different stages of law enforcement. As the researchers correctly state: "Judicial errors are" wrongness in the thought and actions of justice, wrong-ness in understanding the motive of a criminal act, in its qualification and sentencing" [13, p.196]. Errors in law enforcement arise from the accusatory bias, which, in turn, is a consequence of the continental type of criminal procedure, regulated by the code of Napoleon of
1808 [14, p.95]. Another reason - frames. In other words, the personality of the law enforcer, its level of general and professional culture. "The judge is not the only interpreter of the law ... but only the judge can make the interpretation binding"[15, p.308]. The problem of understanding and interpretation of the rule of law by the law enforcer is quite a serious problem. The same rule of law is interpreted differently at different stages of the development of social relations. The law enforcer should not take a dogmatic approach to the interpretation of the legal norm. When considering the particular, it is necessary to see the general. In this case, it may be thought that the authors recommend not to comply with legal requirements, which is an absolute mistake. Compliance with legal rules is the basis of law and order. Nevertheless, said observance should not be blind.
The interpretation of law is of great importance in the implementation of the principle of justice. Especially the official one. The subject of official law enforcement interpretation of the Constitution of the Republic of Belarus and laws is the Constitutional Court of the Republic of Belarus. It seems that he, his activities, is the guarantor of the principle of justice. And the activity of the Constitutional Court of the Republic of Belarus is a confirmation of that. For example, by its decision of 10 April 2018. No. s-1122/2018 Constitutional Court of the Republic of Belarus has recognized the need to implement the rule of law, respect for the constitutional right to judicial protection to bridge the gap of the constitutional-legal regulation in terms of ensuring the right to judicial protection of the interested parties in the writ proceedings, the rights and legitimate interests are affected by a determination of the court order, by making appropriate changes in the Civil procedural and Economic procedural Codes of the Republic of Belarus. Thus he proceeded from the provisions of part one of article 2 of the Constitution of the Republic of Belarus, according to which man, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the state, parts one and three of article 21 of the Basic Law of the Bel-arusian state, in accordance with which the rights and freedoms of citizens of the Republic of Belarus is the supreme goal of the state that guarantees the rights and freedoms of citizens of Belarus that are enshrined in the Constitution, laws and international commitments of the state. The Constitutional Court of the Republic of Belarus also took note of the first part of article 60 of the Constitution of the Republic of Belarus, according to which guaranteed protection of rights and freedoms by a competent, independent and impartial Tribunal within the period specified in law. According to the Belarusian Constitutional Court, such a decision is consistent with article 8 of the Universal Declaration of Human Rights and the International Covenant on civil and political rights (art.2, par. 3 (a) and (b)). The Constitutional Court, in considering cases, also relied on its previous decisions, in which it repeatedly pointed out that the free and unhindered access to justice enshrined in international legal acts is an achievement of modern civilization, an integral part of the fundamental constitutional right of citizens and legal persons to judicial
protection [16]. Another example of a fair interpretation of the law, and, consequently, a fair decision of the Constitutional Court of the Republic of Belarus - the decision on the admission of a lawyer in the criminal process. According to the Constitutional Court of the Republic of Belarus, the legal regulation, in which the possibility to use the assistance of a lawyer depends on the discretion of other persons, does not ensure the full implementation of the constitutional provision on the right the right to legal aid (article 62 of the Constitution) does not allow interested persons to properly protect their rights and freedoms, does not contribute to the timeliness and effectiveness of the restoration of violated rights. The Constitutional Court of the Republic of Belarus considered that the Criminal procedure Code of the Republic of Belarus must be a mechanism for the smooth and timely entry of counsel (subject to the conditions provided for by part 4 of article 44, paragraphs 1 to 6 of part 1 of article 87 of the Criminal procedure Code, and the presence of his attorney certificate, and warrants for the right to participate in criminal proceedings) in criminal proceedings at any stage, eliminating the discretion of the criminal prosecution [17].
The analysis allows us to draw the following conclusions:
- The constitutional principle of justice, which is a universal idea, was formed naturally, as a result of the need of society to resolve social conflicts arising in it.
- The principle of justice embodies other principles, unites them and ensures their interaction and implementation.
- The constitutional principle of justice determines all stages of law enforcement and is of particular importance in the administration of justice.
List of references
1. Civil Code of the Republic of Belarus [Electronic resource] / / ETALON. Legislation of The Republic of Belarus / National center for legal information. Resp. Belarus. Minsk, 2019.
2. Kazimirchuk, V. P., Kudryavtsev, V. N. Modern sociology of law: Textbook for universities / V. P. Kazimirchuk, V. N. Kudryavtsev. M.: Jurist, 1995. 297c.
3. Kalinowski, K. B. Accusatory bias in criminal proceedings: regulatory background the current Russian legislation // the Prosecution and justification in the post-Soviet criminal justice: collection of articles / edited by V. V. Volkov. M.: Norma, 2015. 289c.
4. Carbone, J. Sociology of Law // J. Carbone. Legal sociology. M., 1986. 352c.
5. Lastochkina, V. N. The apparent injustice of punishment as a basis for the abolition or change of sentence: abstract. dis....cand. The faculty of law sciences / V. N. Swallow. Kazan, 1983. 202c.
6. Marx K., Engels F. Composition. Volume 18 / K. Marx, F. Engels. Compositions. Volume 18. M.: State publishing house of political literature, 19541966.
7. Pokhmelkin, V. V. Social justice and criminal responsibility / V. V. Pokhmelkin. Krasnoyarsk, 1990. 177c.
8. Problems of the general theory of law and state: Textbook for universities / Ed. by V.S.Nersesyanc, M.: Publishing House Norma, 2002. 832c.
9. The decision of the Constitutional Court of the Republic of Belarus of April 10, 2018. No. z-1122/2018 on the right to judicial protection of the interested parties in the writ proceedings [Electronic resource] / @2009-1018 The Constitutional Court of the Republic of Belarus. http://www.kc.gov.by/main.aspx?guid=49113). Date of access 18.03.18.
10. The decision of the Constitutional Court of the Republic of Belarus from June 21, 2017. No. z-1089/2017 on ensuring the right to full and timely legal assistance in criminal proceedings / @2009-1018 The Constitutional Court of the Republic of Belarus. http://www.kc.gov.by/main.aspx?guid=46753. Date of access 18.03.18.
11. Labor Code of the Republic of Belarus [Electronic resource] / / ETALON. Legislation of The Republic of Belarus / National center for legal information. Resp. Belarus. Minsk, 2018.
12. Criminal Code of the Republic of Belarus [Electronic resource] / / ETALON. Legislation of The Republic of Belarus / National center for legal information. Resp. Belarus. Minsk, 2018.
13. Criminal procedure Code of the Republic of Belarus [Electronic resource] / / ETALON. Legislation of The Republic of Belarus / National center for legal information. Resp. Belarus. Minsk, 2018.
14. Filimonov, V. D. Principles of criminal law / V. D. Filimonov. M., 2002. 238c.
15. Filimonov, V. D. Justice as a principle of law / V. D. Filimonov / / State and law. 2009. No. 9. C. 513.
16. Legal sociology. Textbook for universities. Ex.ed. Glazyrin V. A. M.: Publishing house Norma (Publishing group Norma-Infra M), 2000. 368c.
