Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
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ORTILLO
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Asis ten tes Ad mi nis tra ti vos
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Vol. 39, Nº 70 (2021), 915-932
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 14/07/2021 Aceptado el 22/09/2021
Inuence of legal principles on justice
DOI: https://doi.org/10.46398/cuestpol.3970.56
Yury Alexandrovich Svirin *
Aleksey Vladimirovich Minbaleev **
Eduard Eduardovich Artyukhov ***
Sergej Nikolaevich Shestov ****
Aleksey Anatolyevich Davydov *****
Abstract
The objective of the article was to determine the essence and
legal implementation in Russia of principles such as: independence
of the judiciary, relative truth, contradictory nature, legal certainty
of judicial acts and discretion. In the countries of the Roman-
Germanic legal order, it is no coincidence that legal principles
are of great scientic and applied importance. The presence of a
certain system of procedural principles makes it possible to assess
the existence of justice in the country, the stability of a judicial
decision and the fairness of judicial acts. Thus, the principles of the law
directly aect the level of legality in each state. Currently, some procedural
principles give rise to a discussion in Russian doctrine about their essence
and content. The topic is presented from the point of view of general
scientic methods (systems analysis, structural and functional, historical),
the method of theoretical analysis, specic scientic methods (comparative
jurisprudence, technical and legal analysis, concretization, interpretation).
The theoretical basis was cognitive theory. It is concluded that the principle
of the independence of the judiciary is not fully operational in the Russian
Federation.
Keywords: principle of independence of the judiciary; principle of
relative truth; adversariality; principle of legal certainty for
judicial acts; principle of judicial discretion.
* Financial University under the Government of the Russian Federation, Moscow, Russia; All-Russian
State University of Justice (RPA of the Ministry of Justice of Russia), Moscow, Russia. ORCID ID:
https://orcid.org/0000-0001-7616-2637. Email: yury.svirin@bk.ru
** Kutan Moscow State Law University (MSAL), Moscow, Russia. South Ural State University,
Chelyabinsk, Russia. ORCID ID: https://orcid.org/0000-0001-5995-1802. Email: alexmin@bk.ru
*** First Deputy of the Prosecutor of Saint Petersburg, Saint Petersburg, Russia. ORCID ID: https://orcid.
org/0000-0002-7977-1515. Email: artyukhov.eduard@bk.ru
**** Academy of Labor and Social Relations, Moscow, Russia. ORCID ID: https://orcid.org/0000-0002-
6117-1423. Email: shesto.sergej@yandex.ru
***** Academy of Labor and Social Relations, Moscow, Russia. ORCID ID: https://orcid.org/0000-0003-
2336-2939. Email: aleksey.a.davydov@mail.ru
916
Yury Alexandrovich Svirin, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov,
Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
Inuencia de los principios legales en la justicia
Resumen
El objetivo del artículo fue determinar la esencia y la implementación
legal en Rusia de principios tales como: independencia del poder judicial,
verdad relativa, naturaleza contradictoria, certeza jurídica de los actos
y discreción judiciales. En los países del ordenamiento jurídico romano-
germánico, no es casualidad que los principios jurídicos sean de gran
importancia cientíca y aplicada. La presencia de un determinado sistema
de principios procesales permite evaluar la existencia de justicia en el país,
la estabilidad de una decisión judicial y la equidad de los actos judiciales.
Así, los principios de la ley afectan directamente el nivel de legalidad en
cada estado. Actualmente, algunos principios de procedimiento dan lugar a
una discusión en la doctrina rusa sobre su esencia y contenido. El tema se
expone desde el punto de vista de los métodos cientícos generales (análisis
de sistemas, estructural y funcional, histórico), el método de análisis
teórico, los métodos cientícos especícos (jurisprudencia comparada,
análisis técnico y jurídico, concretización, interpretación). La base teórica
fue la teoría cognitiva. Se concluye que el principio de la independencia del
poder judicial no es plenamente operativo en la Federación de Rusia.
Palabras Clave: principio de independencia del poder judicial; principio
de verdad relativa; adversarialidad; principio de
seguridad jurídica de los actos judiciales; principio de
discrecionalidad judicial.
Introduction
The principles of law are the subject of research not only in the general
theory of law but also in sectoral legal sciences. The concept of “principle” has
a theoretical meaning of Latin origin, meaning “foundation”, “beginning”.
The principles of each branch of law constitute the quintessence, reveal
its essence, are a criterion that individualizes the branch within the legal
system.
In modern legal doctrine, great emphasis is placed on studying the
principles of both common law and civil procedural law, since the latter
directly aect the administration of justice. The importance of legal
principles in procedural law can hardly be overestimated. First, these
principles act as guarantees for the delivery of a lawful, justied and fair
court decision. The principles of civil procedure are the principles of rational
legal proceedings, are predetermined by the very essence of the adversary
proceedings, cannot be replaced by any other guidelines without distorting
the essence and objectives of the process (criminal or civil law).
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Having emerged based on the scientic views on the role and signicance
of the judiciary, the principles become important prerequisites for the
further development and improvement of civil procedural legislation. At
the same time, the composition of the principles of one branch of law is not
an amorphous, unchangeable category. In the course of its development,
epochs, constitutions, and the goals of the state change. Therefore, at each
specic stage of development, adjustments are made to the composition
of the principles. For example, after the 1864 reform, the principle of
concentration of evidence was enshrined in the Russian civil procedure. At
present, such a principle does not exist in the judicial process in Russia,
despite the scientic judgments on the need to enshrine it.
1. Methods
During the study, we used general scientic methods of cognition,
including the principles of objectivity and the systematic approach. Along
with the general scientic methods of cognition, one applied the specic
scientic methods: theoretical analysis, comparative jurisprudence,
technical and legal analysis, concretization, interpretation and the historical
cognition method. The methodological basis of the study is the method of
the cognitive theory.
2. Results
Civil procedural principles are the normatively established fundamental
principles of civil procedural law that determine the structure of the
process, its nature and methods of carrying out legal proceedings in
civil cases. The principles of law aggregate the views of the legislator on
the nature and content of modern legal proceedings, permeate all civil
procedural institutions and determine the structure of the civil procedure
which ensures the delivery of lawful and justied decisions. Thanks to the
principles of law, it is possible to conclude whether there is justice in a
particular state.
Since the principles are some basic guidelines for lawmaking and
law enforcement agencies, at present it is impossible to imagine the
administration of justice without the principles of humanism, fairness,
legality and democracy. The principles of civil procedural law give the latter
some structural completeness, aggregate concentrate the legislator’s views
on the nature and content of legal regulation of legal proceedings in civil
cases, and seem to represent the structural basis of the branch of law. The
scholar G.L. Osokina (2006) rightly believes that the principle is at the
same time the idea that was formed as a result of scientic, professional and
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Yury Alexandrovich Svirin, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov,
Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
mass (everyday) notion of the ideal model of the branch of law, comparing
the principle with a “working tool” for regulating public relations.
The principle of the independence of the judiciary has a long history.
Thus, before the 1864 judicial reform in Russia, the court could not start
the trial without a precise and clear law, and if there was no such law,
then the court was obliged to turn to the governor, who reported this to
the Governing Senate. The interpretation of the Senate was also applied
in case of contradictions in legislation. The decisions of the court on state
matters were subject to conrmation by the governor. Thus, the court did
not have full autonomy in administering justice. Only after 1864, as a result
of judicial reform, the court in Russia acquired the status of an independent
state institution and became independent of the executive and legislative
branches.
In modern Russia, this principle is enshrined in the Constitution of
the Russian Federation and means that in administering justice, judges
are independent, subject only to the Constitution and federal law (Part 1
of Art. 120 of the Constitution). The independence of the judiciary is the
most important principle of justice. Justice can only be administered by an
independent court.
Judges should try and resolve civil cases in conditions when outside
inuence is impossible. Any interference in the activities of judges in the
administration of justice should not only be prohibited in the form of a
declaration, but, most importantly, the state should establish a mechanism
for implementing this principle. In Russia, the independence of the
judiciary is enshrined in a number of constitutional norms (Art. 120–124
of the Constitution of the Russian Federation), specied in the norms of
legislation on the judicial system of the Russian Federation. At the same
time, over the past 30 years, not three but four branches of power have
developed in Russia, and the fourth power, the presidential one, dominates
the other three including the judiciary. Moreover, the amendments to
the Constitution of the Russian Federation (adopted in 2020) actually
neutralized the principle of the independence of the judiciary. Granting the
President of the Russian Federation from 2020 the right to remove any
judge from oce, up to the judge of the Constitutional Court of the Russian
Federation, puts all judges in the Russian Federation under the control
of the presidential power, and this is a direct violation of the principle of
independence of the judiciary.
The positive law of Russia establishes that any outside inuence on
judges, interference in their activities by any state bodies, local authorities
and other bodies, organizations, ocials or citizens is unacceptable and is
punishable according to administrative and criminal legislation. Judgments
about the factual circumstances of the case, the reliability of the evidence,
the rights and obligations of the parties should be the convictions of the
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judges themselves, and not external judgments imposed on them by other
persons. As indicated in the literature, in civil law processes, when one of
the parties in the court is a state body, in 80 percent of cases the decision
will be made in favor of the state (Svirin and Shestov, 2020).
In 2013, Art.8 of the Civil Procedure Code was supplemented with a new
part 4, which states that information about extra-procedural appeals from
some subjects to judges must be made public and brought to the attention
of the participants in the process by posting on the ocial website of the
court. However, such information by itself is not considered as a basis for
challenging a judge.
Therefore, despite the system of guarantees for the independence of the
judiciary enshrined in the law, there is currently an unsolved problem of
the independence of the judiciary from the presidential power in Russia.
Moreover, in literature, one is promoting the opinion of some researchers
about establishing responsibility for scandalizing justice, because according
to the authors of the publications, unfounded criticism of the court causes
contempt of the court and infringes on judicial independence (Momotov et
al., 2019). If one accepts the expressed opinion as true, then in Russia it will
probably be impossible to criticize the court in the media at all, since the
wording “unfounded criticism” which is open to interpretation will deprive
one of the very possibility of expressing one’s opinion about the court.
The principle of relative truth is still controversial in the doctrine. After
1917, the principle of “objective truth” was promoted in the Russian civil
procedure, which followed from the Marxist-Leninist dialectics and the
principle of procedural activity of the court.
At the same time, the term “truth” is a philosophical category. In
philosophy, truth is understood as the equivalence of the content of
knowledge with its subject. Philosophers distinguish the following types of
truths: ontological, objective, logical, absolute, relative, and formal.
What is objective truth and can it be achieved in court? Objective truth
consists in comprehending the essential characteristics of an object. A true
judgment is a judgment which correctly reects objective reality. However,
truth, having objective content, is nevertheless subjective in form, and
therefore, it is relative to the form and, thus, cannot be objective a priori.
In dierent countries, both in doctrine and in jurisprudence, there are
dierent approaches to the truth that must be established in court. Thus, in
common law countries, the court establishes relative truth. In the countries
of the Romano-Germanic legal system, approaches to establishing the
truth in court vary. In Israel and in many Arab countries, the judge must
necessarily reach the truth in the case, even if the parties did not present
sucient evidence, if the truth is not reached, then the decision does not
comply with religious principles.
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Yury Alexandrovich Svirin, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov,
Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
In any case, the process of establishing the truth is associated with
the knowledge of the factual circumstances of the case. The process of
cognition in court includes not only the establishment of facts with which
the parties associate the emergence, change or termination of their rights
and obligations but also a legal assessment of the facts established by the
court. The dispute between the parties in litigation commonly comes down
to the establishment or denial of facts that have legal signicance in the
case. The court establishes the facts based on the evidence presented to the
court. Consequently, the truth in civil proceedings should be understood
as the judge’s correct judgment on the factual circumstances of the case
based on the evidence presented to the court. Moreover, the court must give
a legal assessment to the investigated circumstances. A legal assessment
of actual circumstances is subjective in form or relative to the form of the
knowledge entrusted.
The legislation on civil proceedings provides for a list of evidence with
the help of which factual circumstances are established, the procedure
for their presentation and calling, and the rules for assessing evidence. In
the interests of achieving the truth, the duty of the court to guide the civil
process is established as its guarantee.
In ancient Rome, there was a formula: Err are humanum Est (and
judges are people too). The judges base their decisions only on the evidence
provided by the litigants. The court is not entitled to collect evidence in
favor of any party. Consequently, the truth comprehended by the court is
not objective, but relative (relative to the evidence presented by the parties).
The question of the truth in court is currently the subject of debate. The
principle of objective truth is opposed to the principle of formal or relative
truth.
The principle of objective truth was enshrined in the Soviet civil
procedure. Thus, A.F. Kleinman (1954) wrote that this principle is an
expression of Lenin’s theory of cognition in the process of implementing
socialist justice. The scholar K.S. Yudelson (1956) also noted that the
achievement of objective truth in the civil process was due to the leading
role of the dictatorship of the working class, the alliance of the working
class with the peasantry, the absence of antagonistic classes and class
struggle. With the adoption of the Civil Procedure Code in 2002 in Russia,
the court was deprived of the initiative in collecting evidence but only
partially, since a certain amount of initiative remained with the court when
the court collects evidence on its own initiative (for example, appoints an
expert examination). This ambivalent position of the legislator gave rise to
conicting judgments in doctrine about the truth that should be reached in
court.
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We believe that the principle of information reliability plays a serious
role in the development of the principle of relative truth. The reliability
of information as a principle of information law and legal requirements
is enshrined in Clause 6 of Art. 3 of the Federal Law “On Information,
Information Technologies and Information Protection”. Today one can talk
about this principle as an interdisciplinary one (Svirin et al., 2021). At the
same time, the legislator does not directly determine what the reliability of
information is, the reliability criteria are not established, and it is also not
determined whether it is possible to establish reliability criteria in relation
to a particular area, and at what level it is possible to disclose information
reliability criteria.
The civil procedure legislation of the Russian Federation, like other
procedural branches, establishes reliability as one of the requirements
for evidence. Thus, part 3 of Art. 67 of the Civil Procedure Code of the
Russian Federation establishes that “the court shall assess the referability,
admissibility and authenticity of each piece of proof separately”
(Bespalov,2020). At the same time, it is not legally disclosed, which
implies the determination of the reliability, which particular truth should
be established. Whether or not the court has doubts about the reliability
of the evidence is a key factor, which indicates the relativity of the truth
established during the assessment of evidence in the process.
The principle of relative truth is closely related to the principle of
adversariality.
The study of the history of the Russian judicial process allows one to
conclude that already in the ancient Russian state, the judicial process
was based on the principle of adversariality. For example, according to
Russian Pravda or Pskov Judicial Charter (rst half of the 15
th
century),
the parties had the key roles in the trial. In this regard, V.O. Klyuchevsky
(1908: 256) wrote, “The court appears to be an indierent spectator or
passive chairman rather than the head of the case”. However, in the 1497
Sudebnik, the process already combined both the adversarial principle and
the investigative principle. Only in 1864, the adversarial principle was again
implemented in the Russian civil procedure, and the investigative principle
was rejected, which was quite a natural phenomenon, since, according to
E.V. Vaskovsky (1914: 155):
The investigative principle forces the court to abandon the role of a calm
contemplator of the combat of the parties and intervene in the procedural struggle,
and such interference is harmful and dangerous. Helping one side, the court risks
losing its composure, impartiality, objectivity and becoming an assistant to one of
the parties. The adversarial principle opens up scope for the independence of the
litigants and encourages them to show personal initiative and energy.
The reformers of law in the 19th century (notably, M.M. Speransky)
defended the idea of an adversarial process. Moreover, the discussions
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Yury Alexandrovich Svirin, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov,
Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
around adversariality were of applied importance. It is not enough to simply
textually enshrine adversariality in a normative act. One had to give this
principle certain substance, only then the principle would become a working
tool in law enforcement, and especially in judicial practice. Therefore, legal
scholars in the 19th century tried to give adversariality a certain amount of
transparency. In 1919, T. Yablochkov (1919: 2) wrote, “…the wording and
theoretical development of the doctrine of the “adversariality” of the civil
procedure has already celebrated its centenary”. However, the researchers
failed to reach a meaningful consensus.
By that time, the essence of adversariality had been developed by German
lawyers. In the code of the Prussian trial (dated July 6, 1793), the concept
of adversariality was enshrined which meant a competition of independent
subjects of the process before a judge. German scholars have formulated
the main features that characterize adversariality:
• nemo judex sine actore.
• nemo invitus ad agendum cogitur.
• ne procedat judex exocio.
• ne cat judex ultra petita, judex secundum allegata et probate judicare
debet.
• non secundum conscientian, judici t probation.
These features later determined the emergence of the principle of
“passivity of the court and the exclusive activity of the parties to the
process” in the foreign doctrine. By the way, this principle began to be used
in practical jurisprudence already in the 18
th
century.
After 1917, during the Soviet period of Russian history, the adversarial
principle was enshrined textually in the procedural code, however, in
essence and content, the principle should have been called the principle of
the “active role of the court”. Moreoevr, the principle of adversariality in
its essence was often equated to the disposition principle. In view of this,
T. Yablochkov (1919: 11) noted, “Although lawyers opposed the adversarial
principle to the disposition principle from the outside, but this dierence
does not go further than the outside. All of them declare the adversarial
principle to be the reverse side of the disposition principle”.
According to the existing legislation in the Soviet period, the adversarial
principle was seemingly neutralized by the principle of objective truth,
when the court was obliged, not being limited by the evidence presented
by the parties, to take all measures provided by law to establish the actual
circumstances of the case, i.e. the court was obliged to collect evidence on
its own initiative. Therefore, it can be said that in the Soviet period there
was a principle of quasi-adversariality, a discrepancy between the textual
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consolidation and the semantic content of the adversariality. Therefore,
the content of this principle is of great importance, the boundaries beyond
which it would be possible to assert that the adversarial principle is violated
or, on the contrary, not violated.
After 2002, in the doctrine of civil procedure, the concept prevailed
according to which a certain role is assigned to the court in the interests
of ensuring the legality in the implementation of the adversarial principle.
Therefore, there is currently no “pure” adversariality in Russian civil
proceedings where the court would play a passive role in the process, and
the process would be reduced to a “free play of the litigants”.
The court determines what circumstances are relevant to the case and
which of the parties should prove them. The court has the right to invite
the participants in the case to submit additional evidence, checks the
relevance of the evidence presented to the case under consideration, nally
establishes the content of the issues on which an expert opinion is required,
can appoint an expert examination on its own initiative if it is impossible to
correctly resolve the case without the expert opinion.
According to some researchers (for example, D.Ya. Maleshin), the Civil
Procedure Code of Russia establishes a kind of combination of initiative
of the parties and the activity of the court. Therefore, there seems to be a
principle of limited adversariality in place (Maleshin, 2011). However, in
science there are dierent perspectives on this issue. Some scholars insist
on the need to strengthen the role of the court in collecting evidence, while
others, on the contrary, defend the pure principle of adversariality.
According to Yu.F. Bespalov (2020), the adversarial principle applies
only to the persons participating in the case, and the court manages the
process, xes the limits of such leadership. Since the court always manages
the entire process (and not only in the implementation of adversariality),
it can be assumed that the court is excluded from the adversarial principle,
and therefore does not have the right to demand any evidence.
It seems to us that the process should be built on the principle of pure
adversariality, and the intervention of the court is permissible insofar
as it does not contradict the postulates of the parties’ independence and
procedural economy. This rule should apply only in the civil law process.
In administrative proceedings, the court should not be deprived of the
opportunity, on its own initiative, to send letters rogatory and requests to
obtain evidence, since the litigants in an administrative dispute are not
equal subjects.
Adversariality in civil procedure should have the following features:
1. The court should not go beyond the requirements of the parties.
2. The court should not seek and take into account facts and evidence
that are not presented to the court by the parties.
924
Yury Alexandrovich Svirin, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov,
Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
3. The parties are given the right to compete before the court regarding
the merits of their case.
4. The adversary nature allows the court to come to a conviction about
the right of the litigants to the degree of certainty that is necessary
for an error-free solution of the case.
5. The adversarial principle is also based on the obligation of the court
to properly notify the persons involved in the case about the time
and place of the trial. If any person was not properly notied about
the process, he was not able to present evidence to substantiate his
claims or objections, and therefore, in this case, the adversarial
principle was violated. Thus, the content of the adversarial principle
is: proper notication of the persons participating in the case about
the time and place of the process; representation to all participants
in the process to freely give explanations, present evidence, and le
petitions for the demand for evidence.
The adversarial principle is also based on the obligation of the court to
properly notify the persons involved in the case about the time and place of
the trial. If any person was not properly notied about the trial, the person
was not able to present evidence to substantiate their claims or objections,
and therefore, in this case, the adversarial principle was violated. Thus,
the content of the adversarial principle is proper notication of the case
participants about the time and place of the trial; enabling all participants
to freely give explanations, present evidence, and le petitions for the
discovery of evidence.
The European Court of Human Rights (1993) under one of the aspects
of the adversarial principle understands the rule according to which “every
party to civil proceedings should have the opportunity to present his case
to the court in circumstances which do not place him at a substantial
disadvantage vis-à-vis the opposing party”. However, the cited judicial norm
itself, in turn, has some uncertainty, since the norm deals with a reasonable
opportunity to present one’s version. In this case, we also cannot outline
reasonable boundaries of the adversarial principle since the boundaries
depend on the judicial discretion and, therefore, are implicit.
The principle of legal certainty in the Russian doctrine is the least
developed. Proceduralists practically do not attach importance to
the principle of legal certainty in their works, which, in our opinion,
undeservedly remains outside the boundaries of scientic research in the
doctrine of law. Meanwhile, it is quite obvious that this principle is inherent
in all procedural branches of law, which makes the principle intersectoral.
The content of the principle of legal certainty is quite extensive.
On the one hand, the content of the above principle is enshrined
in paragraph 9 of Art. 391-9 of the Civil Procedure Code of the Russian
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Federation. The importance of this principle in the trial is noted in the
Resolution of the Supreme Arbitration Court of the Russian Federation
dated 20 Nov. 2012 No. 2013/12 in which the highest judicial body noted
that the recognition of the prejudicial signicance of a court decision, being
aimed at ensuring the stability and binding nature of the court decision,
excluding a possible conict judicial acts, assumes that the facts established
by the court during the trial of one case, pending their refutation, are
accepted by another court in another case, if the facts are important for
the resolution of the case. Thus, prejudicialness serves as a means of
maintaining the consistency of judicial acts and ensures the operation of
the principle of legal certainty (Supreme Arbitration (Commercial) Court of
the Russian Federation, 2012).
We believe that the principle of legal certainty means that a court
decision must comply with the uniformity of court practice which is formed
in the decisions of the country’s highest court. Thus, the decisions of the
Plenum of the Supreme Court of the Russian Federation set out the legal
positions of the highest court, ll gaps in law, and contain comments on
the practice of applying a particular norm of positive law. For example, the
Supreme Court of the Russian Federation, in its Resolution No. 8 dated 31
Oct. 1995, as amended on 6 Feb. 2007, formulated a legal position that if
the applicable law or other normative act of the constituent entity of the
Russian Federation contradicts the federal law adopted on issues that are
under the jurisdiction of Russia, or the joint jurisdiction of the Russian
Federation and the subject of the Russian Federation, then, based on the
provisions of part 5 of Art. 76 of the Constitution of the Russian Federation,
the court must make a decision in accordance with federal law. If there are
contradictions between the act of the subject of the Russian Federation and
the Russian Federation, adopted on issues related to the jurisdiction of the
subject, the act of the subject of the Russian Federation shall be applied
(Supreme Court of the Russian Federation, 1995).
The principle of legal certainty has a very broad substantive aspect but
researchers have not yet developed a uniform opinion. The scholar Yu.S.
Taranets (2018) reduces the essence of the principle of legal certainty to
clarity and non-inconsistency of normative legal acts. O. A. Egorova and
Yu.F. Bespalov understand the content of the principle of legal certainty
as the compliance of judicial acts of Russian courts with the positions of
the European Court of Human Rights. However, this point of view is not
indisputable and contradicts both the legal positions of the Supreme Court
of the Russian Federation and the European Court of Human Rights.
For example, the Resolution of the Plenum of the Supreme Court dated
27 Jul. 2013 No. 21 “On the application by courts of general jurisdiction
of the Convention for the Protection of Human Rights and Fundamental
Freedoms dated 4 November 1950 and the Protocols thereto” indicates that
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Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
if the court’s decision was executed at the time when the judgment of the
European Court became nal, in which it was established that when making
this decision the provisions of the Convention or the Protocols thereto
were violated, the cancellation of such a decision on a new circumstance
in connection with the said judgment of the European Court prevails over
the principle of legal certainty. From the above context, it is clear that the
legal positions of the European Court are not included in the content of the
principle of legal certainty. We believe that the principle of legal certainty
should be considered only in conjunction with the legal positions of the
highest court of Russia and with the legal positions of the Constitutional
Court of Russia.
A completely dierent interpretation of the principle of legal certainty
is given by the European Court of Human Rights which denes it as (res
judicata) the inadmissibility of reconsideration of a once resolved case, the
impossibility of either party to demand a nal judgment only for a second
hearing and to receive another court decision. The reconsideration should
not be seen as a disguised appeal in the presence of two perspectives on the
case. Moreover, the higher court has the right to reconsider the case only to
correct an error. In view of this, S.I. Knyazkin (2020: 322) notes, “...legal
certainty is associated with the nality of a judicial act. And the criterion
for the nality of a judicial act is its coming into legal force”. However, it is
dicult to agree with such a concept since the court’s decision comes into
legal force after the appeal, and in Russia there are still three verication
instances (two cassation courts and judicial supervision) after that.
Therefore, such a large number of verifying instances of court decisions in
Russia undoubtedly violates the principle of legal certainty of a judicial act.
The principle of judicial discretion, like the principle of legal certainty, is
a subject of discussion in the doctrine.
The question of the possibility of judicial discretion attracted the
attention of researchers as early as the 19
th
century and provoked intense
discussions among scholars of jurisprudence. At the beginning of the 20
th
century, in European countries, researchers substantiated the idea of “free
choice of law”, the essence of which boiled down to expanding judicial
discretion. However, to date, the issue of the limits of judicial discretion
has not been resolved either in Russia or in other European countries.
The legal term “discretion” is quite often found in normative legal acts
regulating private and public legal relations in the form of direct or indirect
consolidation. The norms of civil law stipulate that the subjects of civil legal
relations exercise their powers by their own will, in their interest and, at
their discretion, i.e. the legislator identies discretion as an element of the
legal personality of a person in substantive law.
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Discretion from the point of view of the Russian language is the freedom
to choose something, therefore, due to the disposition in private law,
discretion exists objectively, organically woven into the legal instruments
of private law. Moreover, discretion is an integral part of the existence of
private legal relations. Therefore, in private substantive law, discretion is
used quite often and this is primarily due to the fact that in private legal
relations there are many evaluative categories. In this sense, the positivist
understanding of law for private relations is narrow and needs to be
overcome with the help of such an instrument as discretion.
Since the discretion used by the subjects of law for the emergence,
change or termination of legal relations is an evaluative category, this often
provokes a legal conict between them, which is subsequently transferred
to the court for resolution, which should also launch the mechanism of
discretion but only the judicial one. According to M.N. Ilyushina (2018),
judicial practice, within the framework of judicial discretion, tries to
streamline the use of evaluative categories as much as possible, which, in
fact, is aimed at the stability of civil turnover. However, it is dicult to
agree with this conclusion since if at rst in the substantive law the parties
act at their own discretion, then the judge decides the issue at their own
discretion, then a relevant question arises: where is the law here? What
should be used to predict a court decision, what are the limits of such
discretion?
Naturally, judicial discretion is derived from and follows discretion in
private law. Meanwhile, the legal natures of discretion in private law and
in procedural law are dierent. In civil procedural law, this refers the
discretion of a judge when making a decision, and some researchers raise
this mechanism to the rank of a principle of procedural law. I.A. Pokrovskii
(1998) rightly pointed out that discretion is the right to more freely interpret,
complete and even correct the law in accordance with the requirements of
justice and the dictates of the judicial conscience. However, such a formula
of discretion can only be applied if judicial acts are recognized as a source
of law, otherwise it will lead to chaos and unpredictability in the delivery of
judicial verdicts.
In fact, in the Russian process, judicial discretion is the discretionary
power of the court when the court is granted the right of discretion, i.e.
choice of judicial opinion. However, this should not mean that the court can
act as the court pleases. The court is obliged to use the right granted to it in
accordance with the purpose of justice, subject to the limits of discretion.
The principle of discretion gives the court freedom, but the freedom must
be limited by the framework, i.e. must have a limit.
We believe that judicial discretion is a principle of procedural law,
despite the fact that it is not textually enshrined in procedural norms, but
the principle has a semantic meaning and follows from many articles of
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Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
the procedural law. As it is known, there are two ways to consolidate the
principles of law: textual and semantic. The principle of judicial discretion
was enshrined in semantic form in the procedural codes of the RSFSR of
1922 and 1964, where it was stated that the court made a decision based on
its socialist sense of justice. Thus, already in the Soviet period, the principle
of judicial discretion was enshrined in Russian procedural law.
In civil law as well as in other private branches of law, in contrast to public
law, discretionary action applies to any person exercising their powers by
their own will and in accordance with their interests. Judicial discretion
applies only to the court which has the right to varying opinions on certain
issues. At the same time, the uncertainty of the content and essence of
“discretion” in the norms of positive law and the vagueness of its limits
lead to the fact that discretion in private law then tries to make up for the
court in the framework of the civil process also by including the mechanism
of judicial discretion. However, as pointed out by D.B. Abushenko (2015),
the inability to resolve this issue guided by legal means leads to numerous
discussions and recommendations in the academic literature. In view of
this, the judicial discretion should be limited by strict framework (limits).
Unfortunately, such limits are not established in the norms of positive law,
therefore, judges, based on their own subjective limits of discretion, often
give dierent interpretations of the same norm of law, actually changing its
meaning and content.
The limits of judicial discretion are extremely complex, and not
unequivocally dened in the doctrine. Thus, V.I. Chernyshev pointed out
that the primary role in resolving this issue belonged to the formation of
legal consciousness and legal culture. Judges should not be “ocials in
justice”, and the activities of the court should not undermine faith in justice
or generate legal nihilism in the minds of people (Chernyshev, 2005: 218).
It is important that the judicial discretion does not turn into arbitrariness.
The guarantee of inadmissibility of judicial arbitrariness, it would seem, is
the norms of law that form the boundaries of judicial discretion. However,
in this case, we know that many norms of private law contain disposition
principles, are vague and full of uncertainty. In view of this, V.A. Vaipan
(2020: 6) writes,
If doubts arise about the correctness of the perception of norms due to
the ambiguity, uncertainty of their provisions, the identication of systemic
contradictions in law, etc., it becomes necessary to interpret legal prescriptions
based on their objective goals and content, identify the true meaning of the norms
to prevent socially unfair actions (inaction) in the process of their implementation.
Since judicial discretion borders on judicial arbitrariness, the attitude to
this principle of law is not unambiguous, from complete rejection to its full
approval. Such a diversication of opinions occurs due to the peculiarities
of the understanding of law and the dierent attitudes of researchers to
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legal phenomena, due to which the term discretion can take on dierent
meanings.
In jurisprudence, there are two movements in terms of judicial discretion.
According to some researchers (I.A. Pokrovskii, G.F. Shershenevich, etc.),
there can be no judicial discretion since the latter does not comply with the
law and is arbitrary. Therefore, the interpretation of the law by the judge
should be only explanatory, nothing can be added or subtracted. A judge
must strictly follow the dictates of the law, being an executor of the law, and
judicial practice cannot be a source of law. According to another point of
view, it is not possible to completely exclude judicial discretion, and in some
cases discreation is even useful. In foreign literature, judicial discretion is
also compared with freedom in decision-making (Garner and Black, 2009).
In English law, there is a term “abuse of discretion” when the court
did not exercise its right to judicial discretion and did not make an
informed decision. The imperfection of the law, its incompleteness,
the impossibility of foreseeing everything in advance on the part of the
legislator create fertile ground for judicial discretion. As S.A. Muromtsev
(1877: 15) points out, “The presence of gaps is objective, in this case the
court together with jurisprudence creates independent norms that govern
vital interests”. S.A. Muromtsev (1877: 43) proceeds to say that a judge,
in addition to interpreting, criticizing and developing positive law, is also
engaged in independent creativity, based on science and judicial practice.
H. Hart (1994) adheres to the same position, emphasizing that judges need
discretion to ll in dangerous gaps. According to L.N. Berg (2007), judicial
discretion is applied at all stages of law enforcement, from clarifying the
factual circumstances of the case to drawing up a decision.
It seems to us that in order not to reduce the discretion to arbitrariness,
it must be assessed using the legal method, based on the general, objective
and constant essence of law. However, it should be noted that since any
activity has an element of arbitrariness, then in this case it is not impossible.
It is clear that judicial discretion can correct the shortcomings of legal
regulation and be aimed at protecting the violated right. Therefore, judicial
discretion should be considered not as an end but as a means of achieving
the goal of legal proceedings.
Conclusion
As a result of the study, the following conclusions were made:
1. The principle of the independence of the judiciary is not fully
operational in the Russian Federation. According to the Russian
Constitution, not three but four powers have developed and are
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Yury Alexandrovich Svirin, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov,
Sergej Nikolaevich Shestov y Aleksey Anatolyevich Davydov
Inuence of legal principles on justice
operating. The judiciary is separate from the executive and legislative
branches but is controlled by the presidential power.
2. In modern civil proceedings in Russia, in contrast to the Soviet civil
procedure, by virtue of the adversarial principle, the court establishes
not an objective truth but a relative one. The truth established in the
judicial process is relative since the court receives information and
draws conclusions on the basis of the evidence presented to the court
by the parties, i.e. the truth is related to the ability of the parties to
convince the court that they are right.
3. The civil law process must be based on the principle of pure
adversariality. The court should be deprived of the initiative to
collect evidence. The intervention of the court is permissible only if
assistance is provided to the parties to the extent that it does not
contradict the postulates of procedural independence and activity
of the parties. This rule should apply only in the civil law process.
In administrative proceedings, the court should not be deprived of
the opportunity, on its own initiative, to send letters rogatory and
requests to obtain evidence, since the litigants in an administrative
dispute are not equal subjects.
4. The essence of the principle of legal certainty lies in the fact that a
court decision must comply with the uniformity of judicial practice
which is formed in the acts of the highest judicial body of the country.
This principle is currently not valid in the Russian Federation, which
leads to conicting decisions in similar cases even in the same court
in the Russian Federation.
5. The principle of judicial discretion is not enshrined in the procedural
law of Russia. At the same time, “discretion” as a legal mechanism is
quite often used in private law. In the procedural doctrine, there are
discussions about the implementation of this principle in the judicial
process. The consolidation of this principle has both positive and
negative sides. On the one hand, the court, using judicial discretion,
lls in the gaps in the law which makes it possible to administer
justice. On the other hand, judicial discretion determines judicial
arbitrariness. Therefore, before introducing this principle into the
process, it is necessary to formulate its limits which the court will not
have the right to cross.
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