Journal of Siberian Federal University. Humanities & Social Sciences: The Use of the Decisions of the European Court of Human Rights, the Constitutional Court of the Russian Federation when Investigating the Problems of the Criminal Law of the Russian Federation (Article One)

Journal of Siberian Federal University. Humanities & Social Sciences / The Use of the Decisions of the European Court of Human Rights, the Constitutional Court of the Russian Federation when Investigating the Problems of the Criminal Law of the Russian Federation (Article One)

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Issue: Journal of Siberian Federal University. Humanities & Social Sciences. 2017 10 (7)
Authors: Plohova, Valentina I.
Contact information: Plohova, Valentina I.: Novosibirsk State University 2 Pirogova Str., Novosibirsk, 630090, Russia;
Keywords: the value of the evaluation algorithm; the validity of the criminal law; the certainty of the means; criminal law; competition; the scope of the general rule; special norms; qualification rules
Abstract: The article presents the factors dictating the further investigation of the algorithm for assessing the validity of criminal law. It is necessary to check the validity of criminal policy, criminal law drafts, to train students and legislators, to enhance the role of constitutional norms, the principles of criminal law in lawmaking and law enforcement activities; in order to interpret and apply the criminal law without excess controversy, improve it, prevent (eliminate) contradictions, fill gaps; for clarification, in-depth study of ambiguously interpreted, especially important issues of qualification of crimes (a kind of order for the science of criminal law). A further development of the algorithm is also relevant because many of the proposed criteria require an in-depth, special interpretation in relation to the criminal legal sphere, different norms of the Criminal Code of the Russian Federation, and the specifics of criminal law. The study and generalization of the decisions of the ECtHR, the Constitutional Court of the Russian Federation should serve as a form of judicial supervision of the Plenum of the Supreme Court of the Russian Federation for the activities of the courts. The study of 76 definitions of the Constitutional Court of the Russian Federation for 2016 showed that the most often complained criterion for the lawful restriction of human rights is certainty. Regarding the norms of criminal law, it is widely interpreted, includes all formal criteria for the lawful restriction of human rights, such as legality, accessibility, certainty, reasonable stability, predictability. The signs of a specific rule of criminal law are derived, according to the legal positions of the Constitutional Court of the Russian Federation, from the systemic interpretation of the norms of criminal law, i. e. not only from the objective and subjective elements of the offense described in a specific article of the Criminal Code of the Russian Federation, but also from the provisions of the General Part, other provisions of the Special Part of the Criminal Code of the Russian Federation, from their interpretation in generalizations (not equal to reviews) of judicial practice contained in decisions of the Plenum of the Supreme Court of the Russian Federation and decisions of the Presidium of the Supreme Court of the Russian Federation (the legal nature of the latter requires a separate study). Due to the systematic nature of the norms of criminal law, their interpretation changes in connection with the appearance of special rules in the Criminal Code of the Russian Federation, and any other changes in the criminal law. Well-known for a long time but not completely and clearly resolved issues are revealed. For example, these are the rules for the allocation and construction of special norms, the scope of the remaining part of the general norm when distinguishing special norms from it on different grounds (subject, method, object, etc.). The article grounds the conclusion that in the case of competition of general and special privileged norms providing for responsibility for the commission of a crime, criminal responsibility comes only in accordance with a special rule. In the absence of signs of a special norm raising the public danger of a crime, the general norm is likely to be applied
Pages: 1090-1100
Paper at repository of SibFU: https://elib.sfu-kras.ru/handle/2311/33664

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