One of the main principles of criminal proceedings is the rule of law. It implies the observance by the participants of the process of the duties and rights of others, the implementation of activities within the competence enshrined in normative acts. This is especially true for the prosecutor, investigator, court, interrogating officer and other authorized officials.
Let us further consider the features of the application of the principle of legality by these entities, as enshrined in Art. 7 Code of Criminal Procedure, with the comments of lawyers.
The content of the norm
In Art. 7 of the Code of Criminal Procedure of the Russian Federation , it is established that the body of inquiry, investigator, court, prosecutor, interrogating officer, heads of the body or unit of inquiry cannot apply federal laws whose provisions are contrary to the Code of Criminal Procedure.
The court may determine in the course of the proceedings that the normative acts are inconsistent with the Code. In such situations, she makes a decision in accordance with the CPC.
Violation of the provisions of the Code by authorized persons and bodies indicated above entails the inadmissibility of evidence obtained in the course of legal proceedings.
According to Part 4 of Art. 7 of the Code of Criminal Procedure of the Russian Federation , acts issued by a court, prosecutor, investigator, body of inquiry, interrogating officer must be motivated, justified and legal. This requirement applies to definitions, decisions and other decisions.
Specificity of the norm
The principle of legality is based on the provisions of Article 15 of the Constitution.
In 1, 2 parts of Art. 7 of the Code of Criminal Procedure established the priority of the Code over federal law in the conduct of criminal procedure. This provision, however, does not apply to the FCL or international agreements. These regulations are endowed with greater legal force than the Code.
This position is also confirmed by the provisions of the Resolution of the Constitutional Court No. 13-P of 2004.
Limitations
The priority of the CPC over other ordinary federal laws may be limited by the subject of regulation. For the Criminal Procedure Code, they are faced with criminal proceedings, that is, the procedure for conducting cases at the pre-trial and judicial stages. Accordingly, the Code cannot substitute or repeal the provisions of the legislation establishing criminality, punishable behavior, amount, types of punishments or powers of special bodies to impute criminal sanctions against the guilty. It follows that in the presence of a special subject of regulatory regulation over the CPC, other federal laws take precedence.
The provisions of the Code do not prevail when legislative acts provide for additional guarantees of the interests and rights of certain categories of entities, including those related to their special procedural provision.
Nuance
In accordance with the constitutional legal meaning, Art. 7 of the Code of Criminal Procedure of the Russian Federation does not exclude the implementation in the course of procedural measures of the provisions of other laws, if they enshrined guarantees of freedoms and rights of their participants. Consequently, the norm cannot be considered as violating the constitutional rights of interested parties.
Unconditional priority of the Code when making decisions
It is fixed by the 2nd part of Art. 7 Code of Criminal Procedure . The norm stipulates that the provisions of the Code when making decisions should be guided not only by the court, but also by other participants in the process, endowed with the appropriate powers. In particular, we are talking about the bodies and employees involved in solving crimes, as well as monitoring the legality of the investigation.
As for the court, when deciding on the merits of the case, it should be guided by the provisions of Article 316 Code of Criminal Procedure. In part 7 , for example, it is established that if the court concludes that the accusation with which the defendant agrees is proved by the materials collected during the proceedings, he decides the sentence and imposes a punishment on the person. Moreover, its size should not exceed 2/3 of the deadline / size of the most severe sanction provided for what was done.
Admissibility of evidence
When collecting materials for the subsequent proof of certain circumstances, only those methods that are fixed at the legislative level should be used.
Part 3 of Article 7 of the CPC is based on the provisions of part 2 of norm 50 of the Constitution. According to it, evidence obtained in violation of federal law cannot be considered admissible and applied in legal proceedings. Accordingly, the accusation cannot be built on such information; the court does not have the right to use them when assessing the wrongfulness of an act and establishing the involvement of a specific subject in it.
These provisions apply to evidence obtained in violation of not only the Code of Criminal Procedure, but also other federal laws, including the Code of Civil Procedure, the Code of Administrative Offenses, etc.
ECtHR position
In accordance with the approach used by the European Court, the concept of the admissibility of certain materials in criminal proceedings is primarily the subject of regulation of the legal system of a particular state. It is the domestic courts that evaluate the evidence obtained for their relevance and admissibility.
The task of the NCHR, in accordance with the Convention, is not to establish that the evidence was properly admitted as evidence, but to determine whether the proceedings as a whole were fair.
Comments on Part 4 of Art. 7 Code of Criminal Procedure
The principle of legality implies the strict implementation of the requirements enshrined in the Code and regulating the content and forms of procedural documents. In the preparation of the relevant acts, inter alia, the norms of civil and criminal law must be observed.
The requirement of validity enshrined in part 4 of article 7 of the Code of Criminal Procedure of the Russian Federation , suggests that the conclusions that are present in the document are confirmed by evidence collected during the proceedings, they take into account all information related to the identity of the defendant / accused (suspect) , etc.
When making this or that decision, authorized employees must be guided by the principle of equality of citizens before the court and the law, and take into account their interests and rights.
The requirement of motivation is considered an expression of the validity and legality of the decision.
The court ruling is divided into several parts. One of the essential elements of the document is the motivation part. It reflects the motives, grounds for the decision. Their presence enhances the credibility of the act, gives it procedural flawlessness.
In addition, the motives reflected in the decision allow you to verify the correctness of its adoption.
The procedural document is recognized as justified, motivated, legal only if the procedural decision / action recorded in it was necessitated, made / performed subject to the conditions provided for by the CPC and convincingly reasoned by appropriate arguments.