Везде
The Value of the Legal Positions of the Constitutional Courts of Russia and Austria for the Criminal Process
Table of contents
Abstract Estimate Publication content
References Comments
Share
QR
Metrics
The Value of the Legal Positions of the Constitutional Courts of Russia and Austria for the Criminal Process
Abstract
PII
S1991-32220000622-3-1
DOI
10.12737/jzsp.2023.035
Publication type
Article
Status
Published
Authors
Natalia Ilyutchenko 
Occupation: Associate Professor at the Department of Criminal Procedure, Justice and Prosecutor’s Supervision
Affiliation: Lomonosov Moscow State University
Address: Moscow, Russia
Michael Geistlinger
Occupation: Retired Professor, Paris Lodron University Salzburg; Visiting Professor, Charles University in Prague
Affiliation: Paris Lodron University Salzburg
Address: Salzburg, Austria
Edition
Volume 19 No. 3
Pages
55-64
Abstract

The Constitutional Court of Austria, the first in Europe, served as an example for the organization of constitutional justice in Russia. The powers of the Austrian and Russian constitutional courts acting as a “negative legislator” overlap in the sphere of specific constitutional control, correction of the norms of sectoral legislation. In this regard, the constitutionalization of criminal procedure legislation in Russia and Austria, similarities and differences in the understanding of the legal positions of the constitutional courts of these countries are of scientific interest. The relevance of the study of problems is also connected with the changes in the criminal procedure legislation of Russia in 2022, the clarification of the list of new circumstances for the resumption of criminal proceedings.

The purpose of the study is to determine the significance of the legal positions of constitutional courts of similar legal systems for criminal procedure legislation.

Research objectives: analysis of individual legal positions of the constitutional courts of Russia and Austria that are significant for the criminal process; identification of the main differences in doctrinal approaches to understanding the legal positions of the constitutional court; consideration of the consequences of making norm-correcting decisions; formulation of scientifically based conclusions based on the results of the study.

Research methodology: dialectical method of cognition, general scientific methods of analysis and synthesis, special legal methods (first of all, comparative legal and logical-legal).

Conclusion: the influence of the practice of the Constitutional Court of Austria on criminal procedure legislation is significantly less than in Russia. The Constitutional Court of Austria strictly adheres to the principle of restraint, while in the practice of the Constitutional Court of Russia there are deviations from this principle in the field of criminal proceedings. There are significant objectively predetermined differences in doctrinal approaches when deciding on the place of “legal positions” in the system of sources of law. The article defines the differentiated theoretical and practical significance of the legal positions of the constitutional courts of Austria and Russia (general — for the legislator and law enforcement officer, specific — for the applicant).

Keywords
legal positions, Constitutional Court of the Russian Federation, Constitutional Court of Austria, criminal procedure, criminal procedure legislation, sources of law, resumption of criminal proceedings due to new circumstances
Date of publication
13.06.2023
Number of purchasers
12
Views
187
Readers community rating
0.0 (0 votes)
Cite Download pdf
1

References



Additional sources and materials

1.	Bondar N. S. Judicial constitutionalism: doctrine and practice. Moscow, 2018. 528 p. (In Russ.)
2.	Ershov V. V. Legal and individual regulation of the public relations. Moscow, 2018. 627 p. (In Russ.)
3.	Gadjiev Kh. I. The Impact of Legal Argumentation on the Effectiveness of International and National Justice. Journal of Russian Law, 2021, vol. 25, no. 6, pp. 148—161. (In Russ.) DOI: 10.12737/jrl.2021.080.
4.	Korshunova P. V. Legal positions of the Constitutional Court of the Russian Federation as a means of overcoming gaps in legislation. In Chernogor N. N. (ed.). Gaps in positive law: doctrine and practice. Materials of the VI International Scientific Conference of Legal Theorists “Gaps in Positive Law: Doctrine and Practice” (Moscow, February 20—21, 2020). Moscow, 2021. Pp. 262—270. (In Russ.)
5.	Marchenko M. N. Comparative law science: textbook. 2nd ed. Moscow, 2018. 784 p. (In Russ.)
6.	Mokoseeva M. A. On the issue of similarities and differences between the legal position and the decision of the russian Constitutional Court. Aktual'nye problemy ekonomiki i prava, 2015, no. 3, pp. 128—133. (In Russ.)
7.	Pabel K. Implementation of the acts of the European Court on human rights in Austria. International conference “Improvement of national mechanisms for effective implementation of the European Convention on human rights”. Saint-Petersburg, October 22—23, 2015. Pp. 69—73. (In Russ.) Available at: https://rm.coe.int/16806f1da1 (accessed: 30.12.2022).
8.	Shustrov D. G. Interpretation in constitutional law: theoretical foundations. Moscow, 2022, 208 p. (In Russ.)
9.	Smolkova I. V., Prelovskiy P. May the legal positions of the Constitutional Court of the Russian Federation concerning criminal court proceedings serve as judicial precedents? Izvestiya Irkutskoy gosudarstvennoy ekonomicheskoy akademii, 2016, vol. 26, no. 1, pp. 129—133. (In Russ.)
10.	Sokolov T. V. Decisions and legal positions of the Constitutional Court of the Russian Federation: conception, essense and correlation. Pravo i politika, 2013, no. 12(167), pp. 1707—1719. (In Russ.)
11.	Tumanov V. A. (ed.). Judicial systems of western states. Moscow, 1991. 240 p. (In Russ.)
12.	Ushakov A. V. Legal positions of the Constitutional Court of the Russian Federation in the field of protection of the social-economic rights of citizens and problems of their realization. Cand. diss. Moscow, 2021. 183 p. (In Russ.)
13.	Vasileva E. G., Ezhova E. V., Shageeva R. M. Legal positions of the Constitutional Court on problems of the criminal procedure. Moscow, 2023. 456 p. (In Russ.)
14.	Vitruk N. V. Constitutional justice. judicial-constitutional law and procedure. Moscow, 2010. 592 p. (In Russ.)
15.	Vlasenko N. A. Reasonableness and certainty in legal regulation. Moscow, 2015. 157 p. (In Russ.)
16.	Volkova N. S., Khabrieva T. Y. Legal positions of the Constitutional Court of the Russian Federation and the parliament. Moscow, 2004. 176 p. (In Russ.)
17.	Zorkin V. D. Constitutional justice: procedure and meaning. St. Petersburg, 2021. 155 p. (In Russ.)

Comments

No posts found

Write a review
Translate