Аннотация: Usage of terms like “idea of state” or “idea of law” in political philosophy lexicon refers us to archetypical symbolism of Plato’s philosophy. Beginning from the mythological epoch up to present times the notion of constant idea, determined all kinds of originated political forms, keeps its relevance. That is why aiming to attain ideal is typical for all kinds of political mind. Fundamental political and law notions of Middle Ages and the Renaissance has been developed in the frame of this theory of “ideas.” At this stage political notion had been moving significantly closer to aesthetical criteria: the state itself is considered as “masterpiece of art.” Imitation of “nature” in politics and legislation had relegated sacred prototype to the background. Political philosophy of the New Times made metaphysical allowances in this conception. Revolutionary changes supplanted archaic ideals for modern political myths. But still, as before, any political style might be described through one main style or the ruling idea. Plato’s concept has proven remarkably tenacious of life, and many political experiments of our time are still under its influence.

Ключевые слова: Платон, идея, форма, политическое, диалектика

Abstract: Usage of terms like “idea of state” or “idea of law” in political philosophy lexicon refers us to archetypical symbolism of Plato’s philosophy. Beginning from the mythological epoch up to present times the notion of constant idea, determined all kinds of originated political forms, keeps its relevance. That is why aiming to attain ideal is typical for all kinds of political mind. Fundamental political and law notions of Middle Ages and the Renaissance has been developed in the frame of this theory of “ideas.” At this stage political notion had been moving significantly closer to aesthetical criteria: the state itself is considered as “masterpiece of art.” Imitation of “nature” in politics and legislation had relegated sacred prototype to the background. Political philosophy of the New Times made metaphysical allowances in this conception. Revolutionary changes supplanted archaic ideals for modern political myths. But still, as before, any political style might be described through one main style or the ruling idea. Plato’s concept has proven remarkably tenacious of life, and many political experiments of our time are still under its influence.

Keywords: Platon, ideya, forma, politicheskoe, dialektika

Аннотация: Article is devoted one of debatable problems in the legal literature – problems of definition of concept and structure of legal culture. The concept “legal culture” is often enough used today in various state documents, in the scientific and educational literature. However degree of its readiness at theoretical level leaves much to be desired, in spite of the fact that value and necessity of use of the given concept admits the majority of theorists of the right. Already in the term “the legal culture” contains instructions on presence of two parties – the rights and cultures. The given circumstance causes various interpretations of their parity and that researchers initially put various sense in initial concepts, first of all such, as “right” and “culture.” Many domestic and foreign scientists believe that all approaches available in a science to culture as a whole, and legal culture in particular, are reduced to anthropological, sociological and philosophical. In article the author analyzes concept “legal culture,” preferring valuable approach. The given approach has allowed to unite uncountable properties of culture round concept of value. Values name all that causes to itself the positive relation, it is considered as the blessing, good, advantage, due. The valuable approach allows to carry to culture not all human activity and its results, but only that is the blessing, certain value for individuals. The legal culture at such approach is understood as set of all positive components of the legal validity in its real functioning, embodied achievements of legal thought, the legal technics and legal practice. Therefore, it is necessary to carry to the phenomena of legal culture only such elements of a legal life which do not contradict is progressive-legal development of a society. As a result of research the author comes to a conclusion that the legal culture is a set of all legal values forming an is productive-positive layer in a legal life of separate people, social groups and a society as a whole where values are understood only as the positive, progressive phenomena and processes. Despite difficulties of definition of element structure of legal culture, in the spent research clearly enough the author looks through the logic structure of the legal culture consisting of three basic interconnected elements: the rights, legal consciousness, lawful behaviour. The legal culture assumes a combination of three major components: knowledge of the right, respect for the right and socially- legal activity. The analysis of approaches to legal culture visually shows complexity and many-sided nature of a studied phenomenon, does deep working out obvious necessity valuable aspects of legal culture. In the conclusion the author allocates the basic signs of a studied phenomenon and formulates following definition: the legal culture is historically developed, caused by an economic, political, social and spiritual level of development of a society a version of spiritually-material culture which is a measure of development and use of legal values, represents a qualitative condition of legal system and level of legal development of the person and a society.

Abstract: Article is devoted one of debatable problems in the legal literature – problems of definition of concept and structure of legal culture. The concept “legal culture” is often enough used today in various state documents, in the scientific and educational literature. However degree of its readiness at theoretical level leaves much to be desired, in spite of the fact that value and necessity of use of the given concept admits the majority of theorists of the right. Already in the term “the legal culture” contains instructions on presence of two parties – the rights and cultures. The given circumstance causes various interpretations of their parity and that researchers initially put various sense in initial concepts, first of all such, as “right” and “culture.” Many domestic and foreign scientists believe that all approaches available in a science to culture as a whole, and legal culture in particular, are reduced to anthropological, sociological and philosophical. In article the author analyzes concept “legal culture,” preferring valuable approach. The given approach has allowed to unite uncountable properties of culture round concept of value. Values name all that causes to itself the positive relation, it is considered as the blessing, good, advantage, due. The valuable approach allows to carry to culture not all human activity and its results, but only that is the blessing, certain value for individuals. The legal culture at such approach is understood as set of all positive components of the legal validity in its real functioning, embodied achievements of legal thought, the legal technics and legal practice. Therefore, it is necessary to carry to the phenomena of legal culture only such elements of a legal life which do not contradict is progressive-legal development of a society. As a result of research the author comes to a conclusion that the legal culture is a set of all legal values forming an is productive-positive layer in a legal life of separate people, social groups and a society as a whole where values are understood only as the positive, progressive phenomena and processes. Despite difficulties of definition of element structure of legal culture, in the spent research clearly enough the author looks through the logic structure of the legal culture consisting of three basic interconnected elements: the rights, legal consciousness, lawful behaviour. The legal culture assumes a combination of three major components: knowledge of the right, respect for the right and socially- legal activity. The analysis of approaches to legal culture visually shows complexity and many-sided nature of a studied phenomenon, does deep working out obvious necessity valuable aspects of legal culture. In the conclusion the author allocates the basic signs of a studied phenomenon and formulates following definition: the legal culture is historically developed, caused by an economic, political, social and spiritual level of development of a society a version of spiritually-material culture which is a measure of development and use of legal values, represents a qualitative condition of legal system and level of legal development of the person and a society.

Аннотация: The subject of the article is criminal legal content of the Charter of Prince Jaroslav about church courts in 1051–1054 which not only develops the basic ideas of Prince Vladimir’s Charter, but also specifies consequences of infringement of norms of the church right. The special features of normative construction of the Charter carried out as a logic implication are considered. This implication is characterized for each separate article. The norms having criminal legal character are analyzed. Many of them are original enough and progressive for home (native) criminal law of considered period. The author outlines a circle of objects of criminal right protection which is carried out by Russian Orthodox church. They are Christian-Orthodox dogma and church ritual ceremonies, bases of Christian marriage and family, morality, principles of common patriarchal life. And categories of special victims are also allocated. The old Russian Orthodox church shows a much greater subtlety in definition of such objects “rubbing out” the flaws of secular legislator who sometimes forgot about certain categories of special victims (children, women, helpless people, etc.). Beginning of formation of some criminal legal institutes was given in the Charter. Some of them were unknown up to that time, for example the institute of participation. The idea of “double jurisdiction” to Prince’s and church court is more and more embodied in expansion of kinds of punishments which were used by church. Such jurisdictive delimitation of secular and church legislator (in some cases it was one and the same grand duke) does not lead to the chaos, and even on the contrary, is realized in double judicial form, bringing not only moral but also material satisfaction to both parties. Comparison of maintenance of norms of the Charter with the previous and modern norms and also later monuments of the home and foreign church criminal legislation is carried out on the principles of concrete historical and comparative methods. The author undertakes the attempts of etymological interpretation of some terms of the Charter which mean these or that kinds of religious encroachments. The numerous points of view of researchers of the history of the right and among their number the history of the criminal law about church crimes and punishments for them are given here. The judiciary practice of Russian Orthodox church which evidently characterizes this or that kind of punishment which was used for commiting crimes against the church is considered here.

Ключевые слова: Устав князя Ярослава, Устав князя Владимира, пошибание, умычники, шелепы, роспут

Abstract: The subject of the article is criminal legal content of the Charter of Prince Jaroslav about church courts in 1051–1054 which not only develops the basic ideas of Prince Vladimir’s Charter, but also specifies consequences of infringement of norms of the church right. The special features of normative construction of the Charter carried out as a logic implication are considered. This implication is characterized for each separate article. The norms having criminal legal character are analyzed. Many of them are original enough and progressive for home (native) criminal law of considered period. The author outlines a circle of objects of criminal right protection which is carried out by Russian Orthodox church. They are Christian-Orthodox dogma and church ritual ceremonies, bases of Christian marriage and family, morality, principles of common patriarchal life. And categories of special victims are also allocated. The old Russian Orthodox church shows a much greater subtlety in definition of such objects “rubbing out” the flaws of secular legislator who sometimes forgot about certain categories of special victims (children, women, helpless people, etc.). Beginning of formation of some criminal legal institutes was given in the Charter. Some of them were unknown up to that time, for example the institute of participation. The idea of “double jurisdiction” to Prince’s and church court is more and more embodied in expansion of kinds of punishments which were used by church. Such jurisdictive delimitation of secular and church legislator (in some cases it was one and the same grand duke) does not lead to the chaos, and even on the contrary, is realized in double judicial form, bringing not only moral but also material satisfaction to both parties. Comparison of maintenance of norms of the Charter with the previous and modern norms and also later monuments of the home and foreign church criminal legislation is carried out on the principles of concrete historical and comparative methods. The author undertakes the attempts of etymological interpretation of some terms of the Charter which mean these or that kinds of religious encroachments. The numerous points of view of researchers of the history of the right and among their number the history of the criminal law about church crimes and punishments for them are given here. The judiciary practice of Russian Orthodox church which evidently characterizes this or that kind of punishment which was used for commiting crimes against the church is considered here.

Keywords: Ustav knyazya Yaroslava, Ustav knyazya Vladimira, poshibanie, umychniki, shelepy, rosput

Аннотация: The article is devoted to the actual problem of international legal regulation of labour relations under globalization. Conception of protection of labor rights of employees is analyzed in this scientific work in aspect of impact of the UN and the ILO Acts on the development of Labor Law of foreign countries. Genesis of International Labor Law under globalization is characterized in this research as an adequate response to the challenges which the process of global economic, legal and social integration puts before the world community. The author underlines the specific role of the UN and the ILO Acts in new conditions which have found their realization in the interconnection between activisation of lawmaking process of International organizations and decisions of Bretton Woods Conference of 1944 in the form of adoption of Universal Declaration of Human Rights, International Covenant On Economic, Social And Cultural Rights, and International Covenant On Civil And Political Rights. Special attention is paid to the ILO Act named “Decent Work Agenda” which contains porpoises and principles of decent work. The author stresses that the conception of decent work is a system of measures carried out by ILO for elimination of negative trends which were caused by globalization processes such as “informal employment,” “precarious work,” violation of labor rights of employees. The components of decent work – productive work, protection of labour rights of employees, faire remuneration, social security, social dialogue are analyzed too. The author makes the following conclusion- global economic crisis has lead to the new understanding of the role and the meaning of decent work, which resulted in the ILO Declaration “Social Justice For A Faire Globalization” (2008) adopted by the 97 Session of General Conference of ILO. Nowadays the Decent Work Agenda can be summarized as a promotion of employment by creating a sustainable institutional and economic environment; developing and enhancing measures of social protection – social security and labour protection; promoting social dialogue and tripartism as the most appropriate methods for making labour law and institutions effective, including in respect of the recognition of the employment relationships, the promotion of good industrial relations and the building of effective labour inspection systems; respecting, promoting and realizing the fundamental principles and rights at work. The author characterizes different pointes of view of foreign scientists on the role and the meaning of the UN and the ILO Acts and comes to the conclusion that the main task of the Labor Law is seen in optimization of protection of rights and interests of employees. Much attention is paid to the labor law of the USA because they have a long history of realization of the UN and ILO Acts under globalization.

Ключевые слова: инновационная деятельность, венчурные инвестиции, новатор, наука, инновационная компания, технопарк, технополис, наукоград

Abstract: The article is devoted to the actual problem of international legal regulation of labour relations under globalization. Conception of protection of labor rights of employees is analyzed in this scientific work in aspect of impact of the UN and the ILO Acts on the development of Labor Law of foreign countries. Genesis of International Labor Law under globalization is characterized in this research as an adequate response to the challenges which the process of global economic, legal and social integration puts before the world community. The author underlines the specific role of the UN and the ILO Acts in new conditions which have found their realization in the interconnection between activisation of lawmaking process of International organizations and decisions of Bretton Woods Conference of 1944 in the form of adoption of Universal Declaration of Human Rights, International Covenant On Economic, Social And Cultural Rights, and International Covenant On Civil And Political Rights. Special attention is paid to the ILO Act named “Decent Work Agenda” which contains porpoises and principles of decent work. The author stresses that the conception of decent work is a system of measures carried out by ILO for elimination of negative trends which were caused by globalization processes such as “informal employment,” “precarious work,” violation of labor rights of employees. The components of decent work – productive work, protection of labour rights of employees, faire remuneration, social security, social dialogue are analyzed too. The author makes the following conclusion- global economic crisis has lead to the new understanding of the role and the meaning of decent work, which resulted in the ILO Declaration “Social Justice For A Faire Globalization” (2008) adopted by the 97 Session of General Conference of ILO. Nowadays the Decent Work Agenda can be summarized as a promotion of employment by creating a sustainable institutional and economic environment; developing and enhancing measures of social protection – social security and labour protection; promoting social dialogue and tripartism as the most appropriate methods for making labour law and institutions effective, including in respect of the recognition of the employment relationships, the promotion of good industrial relations and the building of effective labour inspection systems; respecting, promoting and realizing the fundamental principles and rights at work. The author characterizes different pointes of view of foreign scientists on the role and the meaning of the UN and the ILO Acts and comes to the conclusion that the main task of the Labor Law is seen in optimization of protection of rights and interests of employees. Much attention is paid to the labor law of the USA because they have a long history of realization of the UN and ILO Acts under globalization.

Keywords: venchurnye investitsii, novator, nauka, innovatsionnaya kompaniya, tekhnopark, tekhnopolis, naukograd

Аннотация: The expression of the nature of a legal notion is its content. The essence is not a mere inner feature of the phenomenon but it also determines the mode of its objectification. In the context of the content of penal treatment the term “measure” is traditionally used which is understood as rather independent means of expression of the answer of the state on commitment of a socially dangerous act. The question of the list of measures of penal treatment remains open in the science of criminal law. Its controversial state is explained by discrepancy of determinative criteria. In some cases their role is fulfilled by the attributes of treatment, more rarely it is emphasized especially. Taking into consideration the analysis of the technical literature, it is possible to make out two objective criteria that are necessary and sufficient to refer these penal means or other to measures of treatment. The role of the given criteria is fulfilled by the most recognizable and easily defined attributes characterizing the essence and the content of the legal institution. Firstly, the basis of an imposition (an application) of measures is the commitment of a socially dangerous act prohibited by the penal statute. Secondly, such measures have an exclusive, original set of restrictions of rights and freedom. As a rule, criminalists estimate only the essential attribute. Among special criteria the content of treatment – restriction of rights – is made out less often and observed inconsistently. The existing situation is explained by the fact that the psychological perception and the social significance of a compulsion are elucidated in the majority of works. However, within the bounds of the law the socially-psychological aspect cannot be cognized deeply enough and should act only as means of the explanation of legal problems. It is the degree of difference of the legal treatment that allows ascertaining the discrepancy of measures in the social area. The realization of penal treatment is not reduced to the imposition and the execution of one of the measures regulated by the law, but it exists in a lawenforcement practice in their various combination. In this connection it is expedient to point to forms of compulsion. The philosophical category “form” acts as a designation of a way of actualization of the substance; of the definitely realized content. Therefore, the form of penal treatment represents a more complex organization of legal reaction including a number of measures of penal nature. Each of measures and forms is distinguished by the specificity of quantity (duration) and quality (nature) of manifestation of restrictions. To summarize, penal treatment is possible to be defined as the purposeful eager activity of the state consisting in compelling treatment based on the penal statute by depriving or limiting of rights and freedom of a person who committed a socially dangerous act. Penal regulation does not always answer to the real nature of legal institutions. Their uniform interpretation can be promoted by fixing a definition of measures of penal treatment. The systematic reforming of the penal statute seems possible only after creation of an integral scientific theory of treatment.

Ключевые слова: Концепция защиты трудовых прав, глобализация, акты ООН и МОТ, достойный труд, Декларация МОТ «О социальной справедливости в целях глобализации», трудовое право США

Abstract: The expression of the nature of a legal notion is its content. The essence is not a mere inner feature of the phenomenon but it also determines the mode of its objectification. In the context of the content of penal treatment the term “measure” is traditionally used which is understood as rather independent means of expression of the answer of the state on commitment of a socially dangerous act. The question of the list of measures of penal treatment remains open in the science of criminal law. Its controversial state is explained by discrepancy of determinative criteria. In some cases their role is fulfilled by the attributes of treatment, more rarely it is emphasized especially. Taking into consideration the analysis of the technical literature, it is possible to make out two objective criteria that are necessary and sufficient to refer these penal means or other to measures of treatment. The role of the given criteria is fulfilled by the most recognizable and easily defined attributes characterizing the essence and the content of the legal institution. Firstly, the basis of an imposition (an application) of measures is the commitment of a socially dangerous act prohibited by the penal statute. Secondly, such measures have an exclusive, original set of restrictions of rights and freedom. As a rule, criminalists estimate only the essential attribute. Among special criteria the content of treatment – restriction of rights – is made out less often and observed inconsistently. The existing situation is explained by the fact that the psychological perception and the social significance of a compulsion are elucidated in the majority of works. However, within the bounds of the law the socially-psychological aspect cannot be cognized deeply enough and should act only as means of the explanation of legal problems. It is the degree of difference of the legal treatment that allows ascertaining the discrepancy of measures in the social area. The realization of penal treatment is not reduced to the imposition and the execution of one of the measures regulated by the law, but it exists in a lawenforcement practice in their various combination. In this connection it is expedient to point to forms of compulsion. The philosophical category “form” acts as a designation of a way of actualization of the substance; of the definitely realized content. Therefore, the form of penal treatment represents a more complex organization of legal reaction including a number of measures of penal nature. Each of measures and forms is distinguished by the specificity of quantity (duration) and quality (nature) of manifestation of restrictions. To summarize, penal treatment is possible to be defined as the purposeful eager activity of the state consisting in compelling treatment based on the penal statute by depriving or limiting of rights and freedom of a person who committed a socially dangerous act. Penal regulation does not always answer to the real nature of legal institutions. Their uniform interpretation can be promoted by fixing a definition of measures of penal treatment. The systematic reforming of the penal statute seems possible only after creation of an integral scientific theory of treatment.

Keywords: Kontseptsiya zashchity trudovykh prav, globalizatsiya, akty OON i MOT, dostoinyi trud, trudovoe pravo SShA

Аннотация: The evidentiary value of the expert’s statement depend on optimisation of use of special knowledge of the expert in criminal trial, on objectivity of the data received by the expert, on exception of expert errors and on definition of an estimation criteria of the expert’s statement. Control strengthening from one part of the process which interests are mentioned by judicial examination can become one of the methods to raise objectivity of expert judgements. Such control can be carried out by means of commission examination. The experts can be appointed by the process parties’ petition. In a regulation of an order of appointment of representative commission judicial examination, it is necessary to provide the possibility for the subject appointing examination to assign a duty of its organisation on the concrete person or the head of an expert establishment. The defence council or the victim should be given the right to declare such a petition. If the commission judicial examination is produced the question arises about the place of production of researches. The function of the organisation of representative judicial examination is expedient to assign to the expert – the organizer. It is demanded to considerate a standard regulation of complex judicial examination. Complex examination is made by experts of various specialities. Thus, process of complex judicial examinations can be more effective if in criminally-remedial code as the subjects, authorised to define complex character of examination to specify the head of expert establishment. It is also expediently to give accurate definition of complex examination, having noted its basic feature – the decision of a uniform expert problem and a formulation of the general conclusion. One more form of production of examination which are provided in Criminal Procedure Code, but not realised in practical activities is the examination in the presence of the parties. The judicial examination in a controllable order can become more effective especially in the presence of the expert involved by one of the parties. As a result of such presence it is necessary to give the expert the right to make remarks on its addition and specification into the expert’s statement. All brought remarks on addition and expert’s statement specification should be stipulated and certified by signatures of these persons. Apparently, the total document of presence by judicial examination by the expert can be the conclusion of the expert, if the questions on a course of the examination are put before the expert by the parties. The developed practice does not allow participants of the process the defence or the suspect (accused) to receive the information about the experts or to have possibility to petition the court to attract as an expert a particular person. In order to optimisate the process of attraction of judicial experts to examination the state should register all experts having the right of examinations in specially created body.

Ключевые слова: содержание, уголовно-правовое воздействие, формы воздействия, меры уголовно-правового воздействия, меры уголовно-правового характера, уголовная ответственность, государственное принуждение, ограничение прав

Abstract: The evidentiary value of the expert’s statement depend on optimisation of use of special knowledge of the expert in criminal trial, on objectivity of the data received by the expert, on exception of expert errors and on definition of an estimation criteria of the expert’s statement. Control strengthening from one part of the process which interests are mentioned by judicial examination can become one of the methods to raise objectivity of expert judgements. Such control can be carried out by means of commission examination. The experts can be appointed by the process parties’ petition. In a regulation of an order of appointment of representative commission judicial examination, it is necessary to provide the possibility for the subject appointing examination to assign a duty of its organisation on the concrete person or the head of an expert establishment. The defence council or the victim should be given the right to declare such a petition. If the commission judicial examination is produced the question arises about the place of production of researches. The function of the organisation of representative judicial examination is expedient to assign to the expert – the organizer. It is demanded to considerate a standard regulation of complex judicial examination. Complex examination is made by experts of various specialities. Thus, process of complex judicial examinations can be more effective if in criminally-remedial code as the subjects, authorised to define complex character of examination to specify the head of expert establishment. It is also expediently to give accurate definition of complex examination, having noted its basic feature – the decision of a uniform expert problem and a formulation of the general conclusion. One more form of production of examination which are provided in Criminal Procedure Code, but not realised in practical activities is the examination in the presence of the parties. The judicial examination in a controllable order can become more effective especially in the presence of the expert involved by one of the parties. As a result of such presence it is necessary to give the expert the right to make remarks on its addition and specification into the expert’s statement. All brought remarks on addition and expert’s statement specification should be stipulated and certified by signatures of these persons. Apparently, the total document of presence by judicial examination by the expert can be the conclusion of the expert, if the questions on a course of the examination are put before the expert by the parties. The developed practice does not allow participants of the process the defence or the suspect (accused) to receive the information about the experts or to have possibility to petition the court to attract as an expert a particular person. In order to optimisate the process of attraction of judicial experts to examination the state should register all experts having the right of examinations in specially created body.

Keywords: soderzhanie, ugolovno-pravovoe vozdeistvie, formy vozdeistviya, mery ugolovno-pravovogo vozdeistviya, mery ugolovno-pravovogo kharaktera, gosudarstvennoe prinuzhdenie, ogranichenie prav

Аннотация: International Law Commission in the Articles on responsibility of States for internationally wrongful acts, the text of which is annexed to the resolution of the General Assembly 56/83 adopted on 12.12.2001, among the elements of internationally wrongful act indicate that such an act must be attributable to a State under international law. According to the general rule a State is responsible for the conduct of any State organ. Besides, the Commission indicates the special rules of attribution – the conduct of persons or entities exercising elements of governmental authority; the conduct of organs placed at the disposal of a State by another State; excess of authority or contravention of instructions; the conduct directed or controlled by a State; the conduct carried out in the absence or default of official authorities; the conduct of an insurrectional or other movement; the conduct acknowledged and adopted by a State as its own. The situations which generate a question about attribution to a State the conduct of a person or group of persons if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (article 8) are the most widespread and difficult in qualification cases. The International Court of Justice (ICJ) addressed these qustions frequently. The article considered concepts which have been developed by the International court thereupon in the cases concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America, Judgment of 27 June 1986), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, Judgment of 19 December 2005), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007). In the case concerning Military and Paramilitary Activities in and against Nicaragua the Court has already set fairly high threshold of participation of the state in actions of private persons that it was possible to consider that the given forces operate on behalf of the given state. According to the Court, it is not enough to exercise only general control over armed groups for attribution of their behavior to the State, it is necessary to prove actual management and the control over concrete actions. The Court declared that yet despite the heavy subsidies and other support provided to the contras by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in al1 fields as to justify treating the contras as acting on its behalf. To give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The International Court of Justice does not reject the same approach in subsequent cases, including after well-known case IT-94-1 Prosecutor v. Tadic, (1999), Judgment of 15th July 1999, in which the International Criminal Tribunal on the Former Yugoslavia (ICTFY) concluded, that for the purposes of the treatment the armed conflict in Bosnia and Herzegovina as an international armed conflict it is enough to find that FRY had an “overall control” of Bosnian Serbs, which does not demand the edition of special orders or the instructions concerning separate military actions. In the case of application of the Convention on the Prevention and Punishment of the Crime of Genocide the Court rejected the arguments of ICTFY. Considering whether the conduct of bosnian serbs carried out the act of genocide in Srebrenica in 1995 is attributable to the FRY, the Court declares: “[I]t has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.” This approach was exposed to criticism. The criticism has especially increased after acts of terrorism on September, 11th, 2001 and the following US forces attacks against Afganistan where actual government allowed that the al- Kaide used its territory as bases for terrorists and for the organization and fulfillment of terrorist attacks, that was regarded as a change of standards of the concept of an armed attack in the sense of the article 51 of the Charter of the United Nations. In this connection it is necessary to conclude that under the influence of state practice, Security Council decisions and other international legal agencies activities set by the International Court of Justice strict criteria of attribution of conduct to a state in case of armed attack of terrorists, considering exclusiveness and an urgency of protection against such attacks, will be extended.

Ключевые слова: уголовный процесс, эксперт, экспертиза, специалист, специальные знания

Abstract: International Law Commission in the Articles on responsibility of States for internationally wrongful acts, the text of which is annexed to the resolution of the General Assembly 56/83 adopted on 12.12.2001, among the elements of internationally wrongful act indicate that such an act must be attributable to a State under international law. According to the general rule a State is responsible for the conduct of any State organ. Besides, the Commission indicates the special rules of attribution – the conduct of persons or entities exercising elements of governmental authority; the conduct of organs placed at the disposal of a State by another State; excess of authority or contravention of instructions; the conduct directed or controlled by a State; the conduct carried out in the absence or default of official authorities; the conduct of an insurrectional or other movement; the conduct acknowledged and adopted by a State as its own. The situations which generate a question about attribution to a State the conduct of a person or group of persons if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (article 8) are the most widespread and difficult in qualification cases. The International Court of Justice (ICJ) addressed these qustions frequently. The article considered concepts which have been developed by the International court thereupon in the cases concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America, Judgment of 27 June 1986), Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, Judgment of 19 December 2005), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007). In the case concerning Military and Paramilitary Activities in and against Nicaragua the Court has already set fairly high threshold of participation of the state in actions of private persons that it was possible to consider that the given forces operate on behalf of the given state. According to the Court, it is not enough to exercise only general control over armed groups for attribution of their behavior to the State, it is necessary to prove actual management and the control over concrete actions. The Court declared that yet despite the heavy subsidies and other support provided to the contras by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in al1 fields as to justify treating the contras as acting on its behalf. To give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. The International Court of Justice does not reject the same approach in subsequent cases, including after well-known case IT-94-1 Prosecutor v. Tadic, (1999), Judgment of 15th July 1999, in which the International Criminal Tribunal on the Former Yugoslavia (ICTFY) concluded, that for the purposes of the treatment the armed conflict in Bosnia and Herzegovina as an international armed conflict it is enough to find that FRY had an “overall control” of Bosnian Serbs, which does not demand the edition of special orders or the instructions concerning separate military actions. In the case of application of the Convention on the Prevention and Punishment of the Crime of Genocide the Court rejected the arguments of ICTFY. Considering whether the conduct of bosnian serbs carried out the act of genocide in Srebrenica in 1995 is attributable to the FRY, the Court declares: “[I]t has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations.” This approach was exposed to criticism. The criticism has especially increased after acts of terrorism on September, 11th, 2001 and the following US forces attacks against Afganistan where actual government allowed that the al- Kaide used its territory as bases for terrorists and for the organization and fulfillment of terrorist attacks, that was regarded as a change of standards of the concept of an armed attack in the sense of the article 51 of the Charter of the United Nations. In this connection it is necessary to conclude that under the influence of state practice, Security Council decisions and other international legal agencies activities set by the International Court of Justice strict criteria of attribution of conduct to a state in case of armed attack of terrorists, considering exclusiveness and an urgency of protection against such attacks, will be extended.

Keywords: ugolovnyi protsess, ekspert, ekspertiza, spetsialist

Ключевые слова: международно-правовая ответственность, Международный Суд ООН, международное правонарушение, присвоение поведения государству, международная правоприменительная практика

Keywords: Mezhdunarodnyi Sud OON, mezhdunarodnoe pravonarushenie, prisvoenie povedeniya gosudarstvu