Konstantin Bogdanov
A loud statement was made in an interview with Rossiyskaya Gazeta by the chairman of the Investigative Committee of the Russian Federation, doctor of legal sciences, professor Alexander Bastrykin. He believes that it is necessary to exclude from the Constitution provisions on which the norms of international law are an integral part of the legal system of Russia.
The other day the Constitutional Court recognized the unconditional priority of our Constitution over the European Convention for the Protection of Human Rights and Fundamental Freedoms. You were one of the first to draw attention to the emerging contradictions between national and international law, and you proposed to amend Article 15 of the Constitution, calling the priority of international law over national law a legal diversion. How do you feel about this decision of the Constitutional Court and do you think that you still need to change the Constitution?
Alexander Bastrykin: This is the right, reasonable and most important, of course, legal decision. This position of the Constitutional Court of the Russian Federation fully complies with the Constitution of the Russian Federation, is based on it, and also takes into account the advanced experience of constitutional legal proceedings, including in such legally developed countries as Germany, Great Britain, Italy, the USA and others.
You can learn more about foreign experience. About him in recent times often talk, but mostly in the most general terms, without specifics.
Alexander Bastrykin: Disagreement with the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms, the judgments of the European Court of Human Rights also occurs in the practice of European states.
The most significant in this regard is the practice of the Federal Constitutional Court of Germany.
It relies on the legal position developed by this court, which is enshrined in its rulings from October 11 on 1985, October 14 on 2004, and July 13 on July 2010.
Thus, in resolving the issue of the execution of the European Court of Justice of February 26 on the case of Gergülu v. Germany, the Federal Constitutional Court of Germany stated the following.
In the domestic legal order, the Convention for the Protection of Human Rights has the status of a federal law and, along with the practice of the European Court, serves only as a guide for interpretation in determining the content and scope of the rights and principles of the Basic Law of the Federal Republic of Germany.
And only under the condition that it does not lead to the restriction or derogation of the fundamental rights of citizens protected by the Basic Law of the Federal Republic of Germany.
And further: the decisions of the European Court of Human Rights are not always binding on the courts of the Federal Republic of Germany, but they should not be completely ignored. National justice should consider these decisions properly and carefully adapt them to domestic law.
The same approach was used by the Constitutional Court of the Italian Republic, not agreeing with the findings of the ECHR.
In a decision of 19 in November 2012, the Italian court indicated that compliance with international obligations could not be the reason for reducing the level of protection of rights already laid down in the domestic legal order. On the contrary, it can and should be an effective tool for extending this protection.
The priority of constitutional norms is also indicated in the decision of the Constitutional Court of the Italian Republic of October 22 2014. It states that the decision of an international judicial body in the event of a conflict with the basic constitutional principles of Italian law makes it impossible for any article in the context of Article 10 to accept the Constitution of the Italian Republic, which normally provides for automatic reception of international law into the national legal system.
The Constitutional Court of the Republic of Austria, recognizing the significance of the Convention for the Protection of Human Rights and the rulings of the European Court of Human Rights based on it, also concluded in the judgment of October 14 of 1987 that it was impossible to apply the Convention’s provisions in the interpretation of the National Court of Human Rights constitutional law.
The Supreme Court of Great Britain and Northern Ireland, in a decision from October 16 of 2013, noted that the conclusions and interpretations of the Convention for the Protection of Human Rights and Fundamental Freedoms contained in the European Court of Human Rights ruling from October 6 of 2005 regarding the electoral rights of prisoners are unacceptable for the British legal system. According to its legal position, the decisions of the European Court of Human Rights are in principle not perceived as being subject to unconditional application. As a general rule, they are only "taken into account". Adherence to these decisions is recognized as possible only if they do not contradict the fundamental substantive and procedural norms of national law.
It should be emphasized that in all the cases cited, it is not a contradiction between the Convention for the Protection of Human Rights and Fundamental Freedoms and national constitutions, but a conflict of interpretations of the Convention provision given by the European Court in a particular case and the provisions of national constitutions.
Decisions of the European Court of Human Rights are not always binding on the courts of the Federal Republic of Germany, Italy, and England
Such conflicts arise in our country?
Alexander Bastrykin: A characteristic example of the most obvious discrepancy with the provisions of the Constitution of the Russian Federation is the ECtHR judgment of July 4 of the Year 2013 in the case of Anchugov and Gladkov against Russia. In it, the existence in the Russian legislation of the restriction of the electoral right of persons convicted by a court sentence was recognized as a violation of Article 3 “The right to free elections” of Protocol No. 1 to the Convention on the Protection of the Right to Elect and Be Elected Citizens Detained in Prisons. Meanwhile, Russia's consent to the execution of such a resolution would mean its violation of the articles 15 (part 1), 32 (part 3) and 79 of the Constitution of the Russian Federation.
What are your proposals in connection with the decision of the Constitutional Court of Russia? What do we have to do?
Alexander Bastrykin: First, continue and expand the practice of the participation of the Constitutional Court of the Russian Federation in resolving such legal conflicts. Secondly, to continue work on improving the Constitution of the Russian Federation. So that it clearly defines the value hierarchy of normative legal acts. Of course, it is necessary to exclude from the Constitution the provisions according to which the generally accepted principles and norms of international law are an integral part of the legal system of the Russian Federation. To this end, it will be necessary to initiate the issue of adopting a law on the Constitutional Assembly, which is not yet available. In addition to the provisions on the priority of international law, a number of other constitutional provisions could be adjusted to reflect the more than 20-year effect of our Constitution. The main law, like other legislative acts, needs to be improved to reflect the current realities, as it happens in all countries.
But these are all questions of a remote perspective. At the present time, it is necessary to bring our legislation in line with the decision of the Constitutional Court. In particular, it is necessary to empower the Constitutional Court not only with the right, but also with the obligation to check the constitutionality of treaties and norms of international law prepared for signing and ratification, as well as the interpretation that was given to them in the resolution of the case by an international judicial body. Indeed, as we have already noted, disagreements often do not lie in the direct contradiction of the norms of the international law of our Constitution, but in the interpretation that the international judicial authorities attach to such norms.
But a few years ago, the Constitutional Court already decided on this issue. And then the questions arising in connection with the execution of judgments of the European Court of Human Rights were already the subject of consideration by the Constitutional Court of Russia. That is, this is not a problem today?
Alexander Bastrykin: In the Resolution of 26 February 2010 of the Year, the Constitutional Court of the Russian Federation noted the need to legislate a mechanism for the implementation of the final rulings of the European Court of Human Rights. In this regard, the Federal Constitutional Law of June 4 of 2014, Article 101 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" was supplemented. A provision appeared that in cases where an intergovernmental body for the protection of human rights found a violation by the Russian court of these rights when applying the law or certain of its provisions, the question of the possibility of applying the relevant law can only be resolved after confirming its compliance with the Russian Constitution. The Russian Court of General Jurisdiction, as well as the Arbitration Court, are obliged to file a request with the Constitutional Court of the Russian Federation. They must ask to verify the constitutionality of this law. In this case, the proceedings are suspended.
Alexander Ivanovich, you have met, talked with judges and staff of the ECHR, analyzed the practice of his work.
Alexander Bastrykin: The ECHR, from my point of view, unnecessarily exaggerates and, I would even say without sufficient reason, absolutizes the importance of international law in the consideration of specific cases in its proceedings. It is for this reason that in his practice, especially in the process of implementation of the decisions of the ECHR, there are often sharp legal conflicts. The consequence of such is the unwillingness of states to execute its decisions.
It seems to me that when considering complaints, the judges of the ECHR do not pay enough attention to analyzing the specifics of the domestic legislation of the respective countries, their fundamentals and, above all, constitutional, basic provisions, legal traditions, peculiarities, and finally, legal ideology and legal psychology prevailing in a particular state .
Unfortunately, legal dogmatism prevails.
What do you mean?
Alexander Bastrykin: It does not take into account the criminal situation in a particular country, the overall crime rate, the proportion of serious and especially grave crimes in it, the attitude of society to dangerous criminal acts. Hence sometimes the insufficiently substantiated decisions of the ECtHR concerning measures of coercion against the accused or the defendant, assertions that they are “excessively tough”. Well, what to order to do: to release the bandit, the murderer from custody and to release on his own recognizance. It was after such decisions of the Russian courts that “our” criminals flee abroad, but, as a rule, “enlightened Europe” does not rush to give them away. There are many such examples.
The ECHR is mainly engaged in protecting the rights of the accused and defendants. This is certainly an important, necessary thing. But a truly fair court must take into account and protect the interests and victims. After all, they, too, have the right to defense, to be lawful and fair. Therefore, the ECtHR, when rendering a verdict on the complaint of an accused or convicted person, for example, in the case of the murder of a child, it would be nice to ask the opinion of the parents of the deceased.
In some decisions of the ECHR, there is a clear presumption of the guilt of the state and the unconditional innocence of the applicant in the problems that appeared to the person who applied there. But there is no need to prove that the judge’s bias and bias are the right way to make an unjust decision.
It seems that the ECHR is overly keen on subjective, value judgments. We have already said this. For example, “excessive coercion” is a very subjective concept, in particular for each society and state. Therefore, such evaluation categories should be applied extremely carefully and in any case not to abuse them.
The ECtHR quite often and, as a rule, rightly reproaches national jurisdictions for exceeding the "reasonable" terms of investigation and consideration of criminal cases by national courts. But he himself is not an example in this regard. The procedures for handling complaints at the ECHR are stretched for years. Where is the notorious "rationality of terms" here?
But perhaps the most important thing is that the ECHR does not take into account the extremely important fact that the legislation in force in a particular state is usually based on the basic provisions of the national Constitution. Moreover, the provisions of the Basic Law of States, as a rule, permeate the fabric of the country's sectoral legislation. So, for example, the criminal procedural legislation of Russia is fully consistent with the fundamental principles of our Constitution, permeated not only by its “letter”, but also by its “spirit”. Moreover, a number of the most important constitutional provisions are reproduced in the criminal procedure law and form its basis. The ECtHR cannot ignore this. Moreover, he should be very attentive to the question of whether decisions and actions taken by national law enforcement agencies that are appealed to the ECHR comply with the provisions of the Constitution of the state. If so, then the criticism of the ECtHR on such a decision should be very specific, correct and flawless. And, without any doubt, the provisions of the Constitutions on which this or that decision of the national law enforcement agency, especially the court of national jurisdiction, is based, cannot be subject to legal ostracism by the European Court of Justice.
Of particular interest to our readers is the investigation of criminal cases of crimes committed in Ukraine. Open the veil of investigative secrets, how is the work of the Investigation Committee organized in this direction?
Alexander Bastrykin: Last year, in the structure of the Main Investigation Department, a specialized department was created to investigate crimes involving the use of prohibited means and methods of warfare. There are already more 50 criminal cases in production management. These are cases on the facts of genocide, numerous unknown disappearances, kidnappings, murders, obstruction of journalistic activities, calls for the unleashing of an aggressive war, the rehabilitation of Nazism and other crimes.
The headquarters of the Investigative Committee also formed an operational headquarters in connection with the investigation of crimes against the peace and security of mankind in Ukraine, which was personally led by me. The main function of the headquarters is to coordinate the activities of the investigating authorities to identify, uncover and investigate crimes of this category, including on matters of interaction with other law enforcement agencies.
How are you going to hold accountable citizens who are abroad? After all, it is clear that they themselves will not come to you, and so far no one intends to issue them.
Alexander Bastrykin: First, if they fall into the hands of our competent authorities, they can be convicted by a Russian court. There are examples of this, and there are plenty of them.
Secondly, it cannot be ruled out that in the future, following the example of the former Yugoslavia, Kosovo or other countries, an international tribunal for Ukraine will be created, which will give a legal assessment of the actions of Ukrainian officials and military personnel in the south-east of this country.
Thirdly, under certain conditions, these crimes may be considered by the International Criminal Court in The Hague. The Rome Statute of the International Criminal Court allows the jurisdiction of this court to be extended, including to crimes committed on the territory of states that are not parties to the statute.
It is possible that in the future an international tribunal for crimes in Ukraine will be created
How do you intend to fight the, so to say, not always pure information campaign that has unfolded around these matters?
Alexander Bastrykin: You can only fight the information "war" with the truth. The White Book prepared by the IC of Russia has already been published, which contains a description of the atrocities that took place in Ukraine.
What role does the Investigation Committee play in countering extremism?
Alexander Bastrykin: I will answer, referring to the numbers. Only in 2014, a criminal case was opened on 591 on extremist crimes, which is 28 percent more than in 2013. Investigated 4 criminal cases on the organization of criminal extremist communities. The convictions for them entered into force. In 2013-2015, 25 people were prosecuted for organizing the activities of extremist entities.
Meanwhile, practice shows that the spread of extremism is promoted by widespread violations of the Federal Law of November 2 2013 No. 304-ФЗ, which banned the sale of SIM cards in non-stationary trading facilities without fixing the identity of the acquirer. Here, the relevant supervisory and control bodies should establish order.
About the capabilities of your experts literally tell miracles. So what modern scientific and technical means investigators use in their daily work?
Alexander Bastrykin: DNA laboratories equipped with the latest technology are actively working. And in general, the arsenal of forensic units consists of high-tech equipment, both domestic and foreign production.
This allows you to achieve good results. On average, the country discloses up to 93 percent homicide and up to 95 percent rape. I will also note that retribution for most of the criminals came precisely because of the principled position of the investigators of the TFR, their coordinated actions with the operational services of the Ministry of Internal Affairs and the Federal Security Service of Russia.
The truth is not outdated that cadres decide everything. Once about your department said that they work alone, sorry, jerks. What object?
Alexander Bastrykin: Of course, how successfully we will be able to solve all the tasks assigned to us largely depends on our human resources. Today, as the public prestige of our profession increases, many young people really join our ranks, a natural process of changing generations. We sincerely welcome those young people who come into our system, realizing their desire to serve the state, their people, to devote themselves to an interesting profession. And such young professionals who are passionate about their profession are our main potential. I note that for work in our department we carefully select the investigative personnel, taking into account not only the business, but also the moral and ethical qualities of people.
At the same time, we are making maximum efforts to save valuable personnel, to preserve the atmosphere of partnership, mutual assistance and constant attention to our veterans in the investigative bodies of the Investigative Committee. This is one of our strongest traditions. Only on this basis can we bring up truly competent, modern-minded investigators who are able to work with complete efficiency for the good of the country and society.
We are talking on the eve of the festive day for you - 25 July, the Day of the Russian investigative officer. The holiday is young, established by a decree of the Russian government in 2013 year. How will your congratulations?
Alexander Bastrykin: For the most part, young employees work in good faith, with full dedication, and are well trained. The main positive results of the work of the IC of Russia were achieved as a result of their work.
All the staff of the Investigative Committee have already received congratulations from the leadership of something like this: "Dear colleagues, dear veterans of investigation! I fully share with you the joy of the holiday and sincerely wish you and your loved ones good health, strength of spirit and success in any endeavors! I count on your principles, professionalism, high moral qualities and strength of mind in serving the Law! "
Alexander Ivanovich, what is the reason for setting this date in the Russian calendar?
Alexander Bastrykin: The most important role in stories The formation of an independent investigation belongs to Emperor Peter I. In the course of judicial reform, by personal decree of July 25 1713, he founded the investigative office of Mikhail Ivanovich Volkonsky, directly subordinate to the emperor. In fact, we realize what three centuries ago was conceived and began to be carried out by our glorious ancestors.
This year - 15 January, it has already been four years since the start of the activities of the newly formed investigative body - the Investigative Committee of the Russian Federation. Since the formation of the Investigation Committee, almost three and a half million reports of crimes have been examined, over 500 thousands of cases have been initiated, over 360 thousands of cases have been sent to the courts. Almost 29 of thousands of crimes were uncovered, cases of which were suspended in previous years and before the reform of the investigating authorities were gathering dust on the shelves. And this is more than 2800 murders, 3 thousands of rapes and the facts of deliberately causing serious harm to the health of citizens.
Corruption
In many cases, corruption serves as a fuel for extremism. This is one of the patients for the country. Convicted of corruption has become more?
Alexander Bastrykin: We have focused our main efforts on curbing the most dangerous manifestations of corruption. In 2014, 11 432 filed such criminal cases. Understanding the scale of this phenomenon, we work in close cooperation with the bodies of inquiry, since these latent crimes are detected mainly by methods of operational-search activity. We try to form high-quality material for judicial review.
Persons convicted of corruption became more deprived of liberty, sentences became more severe, as was noted by the Chairman of the Supreme Court of the Russian Federation at a meeting of judges on the results of work for 2014 a year.
Close working contact has been established with the Court of Auditors. In the format of a joint working group, continuous interaction with the Accounts Chamber was ensured at the stages of both control measures and preliminary investigation.
Currently, we are continuing to investigate a number of corruption criminal cases against high-ranking officials and officials. Among them is the former governor of the Sakhalin region, Alexander Khoroshavin, who is accused of taking bribes. In the first episode, this is a bribe in the amount of more than 5,6 million dollars, which he demanded as a “kickback” under the state contract from the director of Sakhalin-based company Energostroy. In the second episode, 15, RUR million received as a bribe for actions related to the release subsidies for the support of agricultural producers. I would like to note that our investigators worked very quickly and managed to seize the property of the accused, including bank accounts. The official himself is in custody and, I think, will soon appear Before the court.
Experts say that the legislative framework is not sufficiently developed in our country to combat economic crime. What did your department manage to do?
Alexander Bastrykin: The State Duma introduced draft laws on countering corruption and abuse during privatization, withdrawing capital abroad to avoid taxation, suppressing financial pyramids, and criminal-law protection of enterprises of strategic importance developed by the Investigation Committee.
I believe that their implementation in the conditions of the need for sustainable development of the Russian economy, relying on our own resources, an independent financial system and a strong production base, strengthening social stability seems very relevant.
Help "RG"
In 2014, investigators of the Investigative Committee filed criminal cases with a criminal offense against 630 for persons with a special legal status. These include 12 deputies of the legislative body of the subject of the Russian Federation, 6 executives and 32 investigator of the Ministry of Internal Affairs, 5 executives and 9 investigators of the Investigation Committee, 11 prosecutors and 3 assistant prosecutor, 2 judge, 1 investigator of the drug control, 1, 435 judge, 52 investigator of the drug control, 45, XNUMX judge, XNUMX investigator of the drug control, XNUMX, NNXX investigator, XNUMX, XNUMX investigator, XNUMX, XNUMX investigator, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, XNUMX, NNXX XNUMX lawyer, XNUMX members of election commissions.
Information