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The correlation of structure elements of criminal procedural law
Khashieva Tanzila Magomedovna, Kazakh Humanitarian Law University, Astana, Republic of Kazakhstan E-mail: santa_tm@mail.ru
The correlation of structure elements of criminal procedural law
Abstract: In this scientific article the author pays particular attention to the issue of classification of criminal procedure norms. The author determines the staging regulated by the norms subinstitutes and institutes of criminal procedure law activities as the main ground for the given variant of the structure of criminal procedure law.
Keywords: the structure of the criminal procedure law, criminal procedure institute, criminal procedure norm, staging.
Criminal Procedural Law, as well as other branches of law, has its own internal content, its structure. A. V Grinenko has absolutely properly noted that “the value of the systems approach is that it allows you to set the right structure of the law branch, to identify conditions for optimal functioning of the system, to characterize the links that exist between the structural elements of the system, it helps you to determine the place and role of the various subsystems in the system of Criminal Procedure Law and in the legal system as a whole” [1, 55].
Arguing with V. I. Svidersky who considers the structure to be the tie law ofits elements [2, 5], D. A. Kerimov accentuates that the structure is — “no more than a skeleton, organizational structure, internal architectonic with varying substantial integrity ... it can be both summative and systemic”. The properties of a system of law are inherent only in the systematic structure, but the “law is a complex and multi-structured phenomenon and not its every structure is characterized by natural connection of its elements” [3, 109-112]. It is difficult to agree with the judgment of D. A. Kerimov. The right is not arranged randomly, it is objectively and neatly organized phenomenon, its elements are peculiar for the signs of system, the branches, institutions and the rule of law constitute the structure of the legal system.
The structural elements of any branch of the law, of course, are the rules of law and the institutions. At the same time the scientists tend to distinguish other structural units. O. S. Yoffe writes: “... institution — is not only the last unit of the field of law after the rule of law (there are also sub-sectors), but it is not always the first unit, following it, as independent organic formations sometimes occur within the institution. Such formations could be called subinstinstitutions” [4, 50-64]. There is another original proposal about the extraction in the structure of criminal procedural law of the element that is intermediate between the rule and the subinstitution — so called «podsubinstituta» [5].
From the view point of P. S. Elkind, the rule of conduct must have the following characteristics in order to be considered the rule of criminal procedure: “it must be established by the state, i. e., formulated by the legislature of the state in the relevant regulations; rules of criminal procedure are the general rules of conduct for subjects of criminal procedural rights and obligations for whom they are created, because they imply
not specifically defined actions and legal relations, but repeatedly occurring actions in the process of institution, investigation, consideration and resolution of criminal cases; rules of criminal procedure — are obligatory rules of conduct for participants in criminal proceedings; the general and obligatory rule of conduct contained in the rules of criminal procedure is provided by the power of state coercion and persuasion; the rules of criminal procedure are aimed at more effective implementation of the objectives of criminal proceedings” [8, 9-15].
E. G. Lukyanova points out the following types of procedural rules, on the basis of their function in the mechanism of legal regulation:
- The rules of specific content (the actual rules of
conduct);
- The rules of general content [14, 182].
The procedural rules of specific content — a majority of legal norms ... directly establishing the procedural rights and duties of the subjects of the process, conditions and procedures for their implementation.
The content and structure of the rules of criminal procedure are determined by the goals and objectives of the criminal process. The purpose of the criminal proceedings K. V Kim refers to the protection of the rights and legitimate interests of the individual by establishing objective truth in the case [15, 144]. The objectives of the criminal proceedings are enshrined in Article 8 of the Code of Criminal Procedure.
Discussing the elements of the structure, V I. Svidersky pointed out that “... the concept of elements gets a sense ... not as an independent concept, but only in relation to the concept of structure as a link law of elements between each other, the system of their mutual relations. This condition, of course, imposes certain restrictions on the concept of elements and narrows their sense in comparison with the phenomenon” [2, 5].
D. A. Kerimov in his turn writes that such fundamental legal categories as norms, institutions, branches, the system of law, that have great theoretical and practical value, are based on the ratio of individual, special and general — this fact lies in the methodological value of their relations in the knowledge of the legal phenomena and processes [3, 114].
“A detailed regulation complicates the structure of the criminal procedural law, since, in addition to these basic
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structural units as the norm and a legal institution, there are formed subinstitutions, complex institutions and even the suh-sectors” [6, 107].
O. M. Kulpeisova singles out the following elements in the system of criminal procedural law: “1) the system of rules regulating a separate operation; 2) the system of rules regulating a certain proceedings (the main regulatory unit); 3) the system of rules regulating a separate stage inside the procedural stage — subinstitute; 4) the system of rules regulating the process stage — the institution; 5) the system of rules regulating the two largest and most significant area of criminal procedure activity: institute criminal proceedings and preliminary investigation proceedings, proceedings in the court of first instance (a preliminary hearing and the trial) — sub-sectors” [7, 115].
The first element of the structure or the smallest unit of the division of criminal procedural law -is the rule of law. The objectives and principles of the criminal process are implemented by means of rules of criminal law. From the view point of P. S. Elkind, the rule of conduct must have the following characteristics in order to be considered the rule of criminal procedure: “it must be established by the state, i. e., formulated by the legislature of the state in the relevant regulations; rules of criminal procedure are the general rules of conduct for subjects of criminal procedural rights and obligations for whom they are created, because they imply not specifically defined actions and legal relations, but repeatedly occurring actions in the process of institution, investigation, consideration and resolution of criminal cases; rules of criminal procedure — are obligatory rules of conduct for participants in criminal proceedings; the general and obligatory rule of conduct contained in the rules of criminal procedure is provided by the power of state coercion and persuasion; the rules of criminal procedure are aimed at more effective implementation of the objectives of criminal proceedings” [8, 9-15].
Criminal Procedure Institute is a structural element branch of criminal procedure, which consists of a set of rules of criminal procedure regulating criminal procedure relations in the field of investigation, consideration and resolution of criminal cases that are believed to be the form of implementation of the objectives and principles of the criminal justice system.
Criminal Procedure institution can be considered as:
- A set of rules of criminal procedure, aimed at resolving the criminal procedure relations arising in the course of implementation of activities related to the investigation, consideration and resolution of criminal cases and thus resulting in realizing the objectives and principles of the criminal proceedings;
- A principle element of the structure of criminal procedural law, along with the norm, subinstitute, sub-sector. The status of «core» element of branch structure is connected with the institute’s ability to personalize the mechanism of criminal procedure regulation, fully governing «its» sector of criminal procedure relations, which, as it has been repeatedly emphasized, are lined in relatively independent regions. After all, “one legal rule, no matter of what degree of important
rule it includes, can not constitute a legal institution, as it is unable to settle fully the public relations” [10, 63].
The element of system of Kazakhstan law. “Unlike other structural elements of the law system this branch, without breaking the system of communication, has a relative autonomy capable of independent functioning in the General system of law...” [11, 292].
Accordingly, if in the first two cases, being the element of the branch of the criminal procedure law, the Institute possesses a relative autonomy but in the system of law it does lose this quality, for it regulates the part of the subject criminal procedure law, which is in its turn the element of the system of law capable of functioning independently the regulation of criminal procedure relations.
Staging classification of relations constituting a subject of civil procedural law, according to Y. K. Osipov, is the basis for allocation of institutions in this field [12, 55]. In his opinion, in order to highlight the Institute in the field of law it is necessary to identify the signs by which homogeneous social relations are divided into certain types, which are the subject of regulation of the Institute. We believe that the staging classification of institutions can also be quite applicable to the criminal procedure law. The stages of the criminal process are completed blocks of criminal procedural relations, however, the related and interdependent. The beginning of each new stage is due to the completion of the previous one. However, it should be noted that some stages of the criminal process involve independent areas of relations, requiring autonomous regulation. Being guided by this conviction some scholars tend falsely to call the set of norms regulating such stages subbranches of criminal procedure law. In particular, among the stages of the criminal process, consisting of the subdivisions that complicate their content, the court proceeding and the preliminary investigation are especially highlighted [7, 115]. We believe the stage of the proceedings to be regulated by the Institute of Law. A.M Larin also expresses his disagreement concerning the “artificially emphasized” by S. S Alekseev such subsectors in the criminal procedure law, as the preliminary investigation and the proceedings in the Court of First Instance [13, 149]. Given the characteristics of subbranches of law presented above, A. M. Larin rightly disagrees with the allocation in the criminal procedure law “the right of the court of first instance” and “the right of a criminal case and investigation”. The setting apart of these stages from all other stages of criminal proceedings would indicate the violation of the system of equivalent stages of criminal process. We have also ascertained that “staged criterion” is one of the grounds for the allocation of institutions in the criminal procedural law, as the stages of the criminal process are governed by the relevant criminal procedure institutions. O. M. Kul-peisova has different opinion by calling “sub-branches - the system of rules governing the two most significant part of criminal procedure: a) the institution of criminal proceedings and preliminary investigation; b) the proceedings in the court of first instance (a preliminary hearing and the trial)” [7, 115].
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The correlation of structure elements of criminal procedural law
S. S. Alekseev, who made a significant contribution to the study of the legal institution, wrote that “sub-branch is the highest form of union of legal institutions ... — a complex mix of institutions and associations” (S. S. Alekseev, 1987). The structure of the sub-branches usually includes a general institution that establishes common basic provisions for several legal institutions governing the special complex of social relations of this branch of law, but not for all
legal institutions of the field. The sub- branch is such union of institutions that is characterized by a high degree of specialization, differentiation and integration of its constituent legal entities.
The value of the structural elements of criminal procedure lies primarily in the providing a comprehensive legal regulation of relations in the course of investigation, consideration and resolution of criminal cases.
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