Россинский С.Б. Проблемы конкуренции предварительного и последующего судебного контроля за производством следственных действий в жилище

Аннотация: The subject of this paper is the study of one of the most important issues of criminal procedure today – the mechanism of judicial review of the activity of inquiry and preliminary investigation bodies with respect to the constitutional right to immunity of residence. Thus the critical analysis of different views of the problem and the author’s own guarantee of the right to immunity of residence in criminal justice. However the author believes that the judicial review shouldn’t be idealized and that this instrument of criminal procedure (including the ensuring of the right to immunity of residence) is far from being absolutely perfect and contains a lot of unsolved procedural and practical issues. One of the most important problems pointed to by the author is the so called competition between the preliminary and subsequent judicial review as two independent forms of ensuring legality while conducting investigatory actions. Incidentally, in the modern criminal procedural legislature “competition” is won by the preliminary judicial review; it is this type of review that takes priority over other mechanisms of ensuring the right to immunity of residence. However, neither the international standards of human rights ensuring, nor the provisions of the Constitution of the Russian Federation are the sources of this priority. The author comes to the conclusion that the above mentioned priority is only accounted for by the legislator’s intention to once again demonstrate the Russian Federation’s transition to the entirely new theoretical foundation of criminal justice based on the absolute priority of human rights. At the same time thus created mechanism of judicial review has a certain number of essential flaws amounting to two important problems. The first of them consists in creating additional legal obstacles for quick and efficient criminal investigation at the initial stage. In order to overcome such obstacles preliminary investigation officers often either avoid conducting a number of investigatory actions or abuse the opportunity of conducting such actions in situations of urgency, which only results in aggravating the risk of limiting the right to immunity of residence. The second problem, in the author’s opinion, consists in the fact that the preliminary judicial review during the examination, search of the premises or a seizure from them is conducted secretly and thus makes the adversarial procedure impossible. That, in its turn, by no means conforms with the idea of realisation of judicial power and in fact turns judicial review into a kind of administrative procedure. The author’s analysis of various statistic data leads to the conclusion that this kind of pocedural mechanism is extremely ineffective. Moreover, in his article the author motivates his point of view that this mechanism gives rise to further unsupervised activity of inquire and preliminary investigation bodies. As a result the author makes a conclusion about complete practical incompetence of preliminary judicial review as far as ensuring the right to immunity of residence is concerned. The author sees the way out of the situation in substituting subsequent review for preliminary review. It is the mechanism of subsequent review, according to the author, that will be capable of creating real guarantees for ensuring the right to immunity of residence in criminal justice.

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Abstract: The subject of this paper is the study of one of the most important issues of criminal procedure today – the mechanism of judicial review of the activity of inquiry and preliminary investigation bodies with respect to the constitutional right to immunity of residence. Thus the critical analysis of different views of the problem and the author’s own guarantee of the right to immunity of residence in criminal justice. However the author believes that the judicial review shouldn’t be idealized and that this instrument of criminal procedure (including the ensuring of the right to immunity of residence) is far from being absolutely perfect and contains a lot of unsolved procedural and practical issues. One of the most important problems pointed to by the author is the so called competition between the preliminary and subsequent judicial review as two independent forms of ensuring legality while conducting investigatory actions. Incidentally, in the modern criminal procedural legislature “competition” is won by the preliminary judicial review; it is this type of review that takes priority over other mechanisms of ensuring the right to immunity of residence. However, neither the international standards of human rights ensuring, nor the provisions of the Constitution of the Russian Federation are the sources of this priority. The author comes to the conclusion that the above mentioned priority is only accounted for by the legislator’s intention to once again demonstrate the Russian Federation’s transition to the entirely new theoretical foundation of criminal justice based on the absolute priority of human rights. At the same time thus created mechanism of judicial review has a certain number of essential flaws amounting to two important problems. The first of them consists in creating additional legal obstacles for quick and efficient criminal investigation at the initial stage. In order to overcome such obstacles preliminary investigation officers often either avoid conducting a number of investigatory actions or abuse the opportunity of conducting such actions in situations of urgency, which only results in aggravating the risk of limiting the right to immunity of residence. The second problem, in the author’s opinion, consists in the fact that the preliminary judicial review during the examination, search of the premises or a seizure from them is conducted secretly and thus makes the adversarial procedure impossible. That, in its turn, by no means conforms with the idea of realisation of judicial power and in fact turns judicial review into a kind of administrative procedure. The author’s analysis of various statistic data leads to the conclusion that this kind of pocedural mechanism is extremely ineffective. Moreover, in his article the author motivates his point of view that this mechanism gives rise to further unsupervised activity of inquire and preliminary investigation bodies. As a result the author makes a conclusion about complete practical incompetence of preliminary judicial review as far as ensuring the right to immunity of residence is concerned. The author sees the way out of the situation in substituting subsequent review for preliminary review. It is the mechanism of subsequent review, according to the author, that will be capable of creating real guarantees for ensuring the right to immunity of residence in criminal justice.

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