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
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
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-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
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
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
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
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 72 (2022), 729-744
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 12/10/2021 Aceptado el 28/12/2021
International legal standards for the
conduct of criminal prosecution and
its implementation in the legislation of
the Russian Federation and the Federal
Republic of Germany
DOI: https://doi.org/10.46398/cuestpol.4072.43
Aleksandr Viktorovich Grinenko *
Natalia Nikolaevna Kuznetsova **
Nadezda Valerevma Osmanova ***
Sergey Nikolaevich Khoryakov ****
Anna Vladilenovna Skachko *****
Abstract
Through the method of reviewing scientic documentation,
the objective of the study is to determine international legal
standards for the implementation of criminal prosecution and
its implementation in legislation in Russia and Germany. International
standards in the eld of criminal procedure are analyzed, from which
the category «international standards of criminal prosecution» has been
developed. To form a unied concept for the implementation of criminal
prosecution and create an eective mechanism to protect the rights of the
accused, the need for further investigation of international standards is
argued. Within the framework of this investigation, an attempt was made
to draw attention to the issues of the regulation of the implementation of
criminal prosecution in international documents, as well as the national
legislation of the Russian Federation and the Federal Republic of
Germany. It is concluded that international standards for the application
of criminal prosecution play an important role in consolidating the rule
of law and improving criminal procedure legislation, as they contribute
to the formation of a unied concept of criminal prosecution and set the
permissible limits for restricting the rights of the accused.
* Moscow State Institute of International Relations (University) of the Ministry of Foreign Aairs of the
Russian Federation (MGIMO-University), Moscow, Russia. ORCID ID: https://orcid.org/0000-0002-
9996-2714
** Lipetsk Branch of the Russian Academy of National Economy and Public Administration under the
President of the Russian Federation, Lipetsk, Russia. ORCID ID: https://orcid.org/0000-0002-4034-
0312
*** Moscow Academy of the Investigative Committee of the Russian Federation, Moscow, Russia. ORCID
ID: https://orcid.org/0000-0002-9954-909X
**** Moscow Academy of the Investigative Committee of the Russian Federation, Moscow, Russia. ORCID
ID: https://orcid.org/0000-0002-7747-3629
***** Academy of management of the Ministry of internal Aairs of Russia, Moscow, Russia. ORCID ID:
https://orcid.org/0000-0002-2878-8413
730
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
Keywords: criminal prosecution; international standards; guarantee
of the rights of the suspect; accused; concept of criminal
prosecution.
Normas jurídicas internacionales para la realización
de procesos penales y su aplicación en la legislación de la
Federación de Rusia y la República Federal de Alemania
Resumen
Mediante el método de revisión de documentación cientíca, el objetivo
del estudio es determinar los estándares legales internacionales para
la implementación del enjuiciamiento penal y su implementación en la
legislación en Rusia y Alemania. Se analizan las normas internacionales en el
campo del proceso penal, a partir de las cuales se ha desarrollado la categoría
“normas internacionales de enjuiciamiento penal”. Con el n de formar un
concepto unicado para la implementación del enjuiciamiento penal y crear
un mecanismo efectivo para proteger los derechos del acusado, se argumenta
la necesidad de una mayor investigación de las normas internacionales.
En el marco de esta investigación, se intentó llamar la atención sobre
las cuestiones de la regulación de la implementación del enjuiciamiento
penal en documentos internacionales, así como la legislación nacional de
la Federación de Rusia y la República Federal de Alemania. Se concluye
que las normas internacionales para la aplicación de la persecución penal
desempeñan un papel importante en la consolidación del estado de derecho
y la mejora de la legislación de procedimiento penal, ya que contribuyen a
la formación de un concepto unicado de enjuiciamiento penal y también
establecen los límites permisibles para restringir los derechos del acusado.
Palabras clave: persecución penal; estándares internacionales; garantía
de los derechos del sospechoso; imputado; concepto de
persecución penal.
Introduction
The norms of international law regulate the procedure for criminal
prosecution in conjunction with the issues of ensuring the rights of the
suspect, the accused, determining their legal status, protecting the interests
of these entities, regulating the powers of the prosecutor, terminating
criminal prosecution, etc.
731
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
The initial principles of building a criminal justice system formed by the
world community contain only the fundamental principles of the activities
of law enforcement agencies, paying attention to ensuring the rights and
freedoms of a person involved in criminal procedural relations in connection
with the implementation of criminal prosecution against him.
At the same time, not only the category of “criminal prosecution” is
absent in international law, but it also does not disclose what should be
understood by “international standard”.
This situation is due to the activities of the bodies carrying out criminal
prosecution, depending on the individual provisions of each legal system,
which makes it possible to take into account the sovereignty of states,
recognizing the right to self-determination. Such loyalty is explained by
the diversity of national legal systems, their dependence on the policy
pursued in the state, the economic situation, social situation, national and
cultural characteristics. The importance of international standards, which,
in turn, are specially formulated in this way in order to provide states
with an independent choice of tools for the implementation of the starting
principles of criminal prosecution, does not diminish.
Thus, Russian and German legislators retain the right to clarify and detail
the criminal procedural legislation, taking into account the international
standards of criminal prosecution when building the national system of law.
1. Methods
The study is based on the analysis of international regulations, German,
and Russian criminal procedure legislation.
The research methodology consisted of: systemic, formal-logical
methods, dialectical method of cognition, method of legal and technical
analysis. On the basis of the data obtained, provisions were formulated that
made it possible to highlight the denition of “international standards for
the implementation of criminal prosecution”, to develop the foundations of
a single concept for the implementation of criminal prosecution, to reveal
the essence of criminal prosecution.
2. Results
Now let us look at the research results:
(1) When dening international standards of criminal prosecution,
one should take into account the provisions of the UN General Assembly
Resolution “Establishing International Standards in the Field of Human
732
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
Rights” No. 41/120 of December 4, 1986, which, in fact, states the existence
of a system of international standards in the eld of human rights established
by it (meaning, the UN), other UN bodies and specialized agencies, and
calls for widespread ratication of existing treaties. When developing such
documents, it is necessary to take into account: their compliance with
existing international legal norms; clear formulation for further possible
use; realistic mechanism for the implementation and implementation of
the principles.
In the legal literature, there is no unied approach to understanding
the category of “international standards”, which negatively aects their
implementation in national legislation.
Some authors refer to international standards all international norms
in the eld of individual rights and freedoms (Borodin, Lyakhov, 1983;
Kondrat, 2013, p. 10).
According to S.V. Chernichenko, international standards include the
obligations of the state or requirements that members of the international
community make to each other (Chernichenko, 1989, pp. 117-120).
A.I. Zybailo and V.L. Fedorova state that international human rights
standards include a set of rules recognized by states that reect the
normative minimum in the eld of human rights, are formed as a result of the
interpretation of international human rights law by competent international
bodies and appear as models that states must follow in legislative, executive
and judicial domestic activities with permissible deviations in the form of
their exceeding or concretization (Zybailo, Fedorova, 2018, pp. 26-30).
We believe it possible to agree with the position of I.N. Kondrat in
terms of the application of the category “normative rule” to international
standards and its extension to the national systems of the member states,
for example, the Council of Europe, the European Union, the CIS, etc., that
is, in a certain region. The concept of “standards” in relation to human rights
should be considered not as a model, standard or model, but as a general
normative rule, the purpose of which is to achieve adequate sensitivity to
human rights and their equal applicability not only at the international, but
also at each of the regional levels (Khaliulin, 1997).
According to A.G. Khaliulin, it is advisable to single out “groups of
states, whose legislation has some similarities to each other: 1) the USA;
2) Great Britain and the countries of the British Commonwealth; 3) the
countries of Western Europe; 4) the countries of Eastern Europe - former
socialist states; 5) the countries of the CIS and the Baltic states – the former
republics of the USSR” (Ivanov et al., 2020).
International standards in the eld of criminal prosecution, in our
opinion, also include the positions of the ECHR, formulated by it in
733
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
decisions and judgments, which by their legal nature, although not norms
or normative rules, contain and explain the basic fundamental principles of
the European Convention on the Protection human rights and fundamental
freedoms, adopted in 1950, its interpretation and application.
(2) Despite the fact that international courts do not create norms of law,
they, interpreting the provisions of international treaties, play an important
role in the formation of international standards for the implementation of
criminal prosecution.
The jurisdiction of the ECHR extends to both the Federal Republic of
Germany and the Russian Federation, which are members of the Council
of Europe, which have ratied the European Convention for the Protection
of Human Rights and Fundamental Freedoms. So, in accordance with
Art. 32 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms, the jurisdiction of the court is all questions
concerning the interpretation and application of the provisions of this
document and the protocols thereto (Mullerson, 1991).
This international act indicates the obligations of the member states of
the Council of Europe: “The High Contracting Parties undertake to comply
with the nal judgments of the Court in cases to which they are parties”
(Art. 46).
According to Art. 27 of the Vienna Convention on the Law of Treaties,
which enshrines one of the fundamental principles of international law
pacta sunt servanda (treaties must be enforced), “a party cannot invoke the
provisions of its domestic law as an excuse for not fullling a treaty”.
The stated provisions and the obligation to comply with them are not
unambiguous.
In the German legal literature, the place of the ECHR decisions in the
system of court decisions made by national courts is controversial (Hartwig,
2005).
Some scholars prioritize the ECHR decisions and argue that, at a
minimum, they should be viewed as “super-governmental”, “constitutional”
or even “super-constitutional”. Justifying their position, German
researchers proceed from the provisions of the Convention on Human
Rights (Art. 46), according to which the state against which the decision
is made, implementing international agreements, and acting within the
framework of international legal relations, are obliged to execute the
decisions of the Court in any case, in which they act as parties.
The Federal Constitutional Court of the Federal Republic of Germany
pointed to the obligation to review the decisions of the ECHR and developed
the duties of state bodies arising from individual judgments (decision of the
ECHR “Görgülü v. Germany”, No. 74969/01, 26 February 2004):
734
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
1. The Constitutional Court of the Federal Republic of Germany rst of
all pointed out that the European Convention on Human Rights (as
well as the protocols thereto), in national legislation, have only the
status of a federal law.
2. The Basic Law seeks to integrate Germany into the legal community
of peace-loving and free states but does not renounce the sovereignty
ultimately embodied in the German constitution. The law of treaties
is applied at the domestic level only when it is implemented in the
domestic legal system in an appropriate form and in accordance
with substantive constitutional law.
3. Administrative bodies and courts cannot abandon legal regulation in
the existing and current system of law and compliance with the law,
referring to the decision of the European Court of Human Rights.
4. The absence of challenging of the court’s decision, as well as its
execution, which violates the priority national law, may aect
fundamental rights, while if the ECHR found a violation of the
Convention with the participation of the Federal Republic of
Germany, then in each case, the peculiarities of the “internal sphere”
should be taken into account, that is the competent authorities or
courts should clearly deal with it and, if necessary, justify why they
still do not follow the international legal establishment.
Russian scholars point out that the Federal Constitutional Court of
the Federal Republic of Germany does not establish the imperativeness
of the decisions of the European Court, thereby emphasizing the need to
carefully study the judgment of the ECHR when introducing it into national
legislation (Kulikov, 2020). At the same time, it should be borne in mind
that the opinions expressed regarding the ECHR judgments do not prevent
the use of the positions formulated in the relevant court decisions as a
guideline for law enforcement and legislative activities on the observance
and implementation of human rights.
In accordance with Federal Law No. 101-FZ (July 15, 1995) “On
International Treaties of the Russian Federation”, there is a provision
according to which “international treaties of the Russian Federation
are subject to fair implementation in accordance with the terms of the
international treaties themselves, the norms of international law, the
Constitution of the Russian Federation, this Federal Law, other acts of the
legislation of the Russian Federation” (Art. 31).
According to Part 4 of Art. 15: “If an international treaty of the Russian
Federation establishes rules other than those provided by law, then the
rules of the international treaty are applied”.
735
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
At the same time, attention should be paid to the changes introduced
by the Federal Law (December 8, 2020) No. 419-FZ “On Amendments to
Article 1 of the Code of Criminal Procedure of the Russian Federation”,
according to which the application of the rules of international treaties
is not allowed in their interpretation that contradicts Constitution of the
Russian Federation.
In connection with the foregoing, the position of E.A. Torkunova (2002)
is of interest, according to which, even though the ECHR does not replace
national legislation, the participating States will have to eliminate gaps in
domestic legislation, the inconsistency of its individual provisions with
European human rights norms, as well as violations of these norms in law
enforcement practice. The presented author’s statement, in general, despite
the recent legislative changes in this area, characterizes the importance
of the positions formulated in the decisions of the ECHR and indicates
the expediency of their use as international standards, including in the
implementation of criminal prosecution.
Thus, on the basis of the foregoing, we come to the conclusion that the
international standards for the implementation of criminal prosecution
include the normative rules enshrined in international declarations,
conventions, protocols, pacts, treaties both at the international and regional
levels, as well as the position of the ECHR, formulated by him in decisions
and judgments, which are not norms by their legal nature, but in fact
contain and explain the starting fundamental principles of the European
Convention on Human Rights.
(3) Let us turn to the international documents that enshrine the
principles of criminal prosecution, the mechanism for its implementation,
and apply to the jurisdiction of the Federal Republic of Germany and the
Russian Federation.
International criminal prosecution standards can be divided into two
groups.
The rst group includes the following international standards
established by the Universal Declaration of Human Rights, adopted by the
UN General Assembly on December 10, 1948, which are to consolidate: (a)
the rights to life, liberty and security of person ”(Art. 3), to equal protection
of the law (Art. 7), equality of all people before the law (Art. 7); free
movement and choice of residence (Part 1 of Art. 13); to own property (Part
1 of Art. 17); (b) the prohibition of torture or cruel, inhuman or degrading
treatment (Art. 5), conviction for a crime that, at the time of its commission,
did not constitute a crime under national or international law (Part 2 of Art.
11); arbitrary deprivation of a person of his property (Part 2 of Art. 17).
International standards of criminal prosecution are also enshrined in the
International Covenant on Civil and Political Rights adopted on December
736
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
16, 1966, by Resolution 2200 (XXI) at the 1496th plenary meeting of the
UN General Assembly, which specied some international legal standards
related to the implementation of criminal prosecution and set forth in The
Universal Declaration of Human Rights and established new ones.
Thus, this document contains such international legal standards that
are subject to mandatory observance, such as: (a) prohibition of torture,
cruel, inhuman or degrading treatment (Art. 7); (b) the right to life, liberty
and security of person (Art. 9); (c) inviolability of the home, privacy of
correspondence, protection of honor and reputation (Part 1 of Art. 17);
(d) the right to equal protection of the law from arbitrary or unlawful
interference with private and family life (Part 2 of Art. 17); (e) the right to
free movement and choice of residence (Parts 1 and 2 of Art. 12).
The second group of international legal standards for the implementation
of criminal prosecution includes the normative rules that secure the rights
of a person when a criminal charge is brought against him, as well as those
related to the conditions of a possible restriction of inalienable rights and
freedoms in the event of a criminal charge of a person and his arrest. Such
standards are also enshrined in the Universal Declaration of Human
Rights and contain the following postulates in the form of:
(a) the rights of every person on the basis of full equality in order to
determine his rights and obligations, as well as to establish the validity of the
criminal charge brought against him, to a criminal case in compliance with
requirements of justice by an independent and impartial court (Art. 10);
(b) prohibition of arbitrary arrest and detention: “no one may be subjected
to arbitrary arrest, detention or exile” (Art. 9); (c) the duty of the state to
ensure judicial control and, if there are grounds, rehabilitation of a person
who has been illegally detained or imprisoned: “everyone has the right to
eective restoration of his rights by the competent national courts in case of
violation of his fundamental rights conferred on him by the constitution or
law” (Art. 8); “Every person accused of committing a crime has the right to
be presumed innocent until his guilt is established legally through a public
trial, in which he is provided with all the opportunities for defense” (Parts
1 of Art. 11).
The International Covenant on Civil and Political Rights has
signicantly expanded the international legal standards enshrined in the
Universal Declaration of Human Rights, complementing the second group
of standards we have identied in this study with normative provisions
concerning: (a) the mandatory establishment of the grounds, conditions
of arrest and detention (Part 1 of Art. 9); (b) the obligation to notify the
detainee of the grounds for detention and inform him of the charges
brought against him (Part 2 of Art. 9); (c) providing a person with additional
guarantees when a criminal charge is brought against him (Part 3 of Art.
14): to be notied of the nature and basis of the criminal charge against
737
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
him in his native language (if necessary, use the free help of an interpreter);
to receive sucient time and opportunity to prepare a defense, including
free of charge with the help of a designated defense lawyer; to freely testify
or confess guilt without coercion; (d) judicial control during the arrest or
detention of a person in order to determine the legality of the restriction of
the rights of the person arrested or detained, respectively (Parts 3 and 4 of
Art. 9); (e) the grounds for the release from custody of persons in the event
of the presentation (at any stage of the criminal proceedings) of guarantees
to appear in court (Part 3 of Art. 9); (f) the peculiarities of criminal
prosecution against juvenile accused, aimed more at the re-education of
minors (Para. b of Part 2 of Art. 10, Part 4 of Art. 14).
In its essence and content, the category “international standard” is
synonymous with the United Nations Minimum Rule Standards, which,
like other international documents (declarations, covenants, conventions,
treaties), contain the guiding principles of international law.
Such documents include, for example: (1) Standard Minimum Rules for
the Treatment of Prisoners, adopted by the United Nations Congress on the
Prevention of Crime and the Treatment of Oenders in 1955 in Geneva. It
should be noted that this document was the rst to use the term “standard
rules”; (2) Standard Minimum Rules for Non-custodial Measures (Tokyo
Rules, December 14, 1990); (3) Standard Minimum Rules for the Treatment
of Prisoners (The Nelson Mandela Rules) (December 17, 2015); and the
UN Standard Minimum Rules for the Administration of Juvenile Justice
(the Beijing Rules), adopted by UN General Assembly resolution 40/33 of
November 29, 1985.
For example, the Beijing Rules grant states the right to independently
determine the age of criminal responsibility for minors who may be
prosecuted, while the lower limit of such age “should not be set too low”
(Para. 4.1).
For a juvenile who is being prosecuted, additional procedures are
established in the form of immediate notication of the parent or guardian
of the juvenile about the detention, the use of detention as a last resort, as
well as replacement of detention with other milder special measures.
International legal standards in the eld of criminal prosecution are
formed as a result of the work of regional international organizations
(Council of Europe, CIS, etc.). A signicant role in this area is played by
the activities of the Council of Europe, in the documents of which the
requirement addressed to the member states is established to comply with
the basic standards and principles in the eld of human rights and freedoms
developed by the organization and formulated in the conventions, protocols
to it, agreements, and in case of violation - to use means for their restoration
and compensation for harm caused by such violation (Khaliulin, 1997, p.
47).
738
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
Such standards in the eld of criminal prosecution include the
normative rules formulated in the European Convention for the Protection
of Human Rights and Fundamental Freedoms (1950) and its Protocols;
The Convention on Compensation for Victims of Violent Crimes (1983);
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (1987) and its Protocols, etc.
The provisions of the above-mentioned international documents are
naturally reected in the national legislation of the Federal Republic
of Germany and in the Russian Federation – states cannot ignore the
provisions contained in the documents, since they are either parties to
an international treaty, or directly participated in their development and
adoption.
(4) Let us consider some examples of the implementation of international
standards in the criminal procedure legislation of the Federal Republic of
Germany and the Russian Federation.
A signicant step towards building a democratic state governed by
the rule of law was the entry of the Russian Federation into the Council
of Europe in 1996, the subsequent adoption of the Federal Law No. 54-FZ
(March 30, 1998) “On Ratication of the Convention for the Protection of
Human Rights and Fundamental Freedoms and the Protocols to it” and
the state’s undertaking to bring Russian legislation and the practice of its
application in line with European standards.
The most important direction of the judicial reform in accordance with
international documents was the protection and unswerving observance of
fundamental human rights and freedoms in criminal proceedings, as well
as the strengthening or establishment of judicial control over the legality
of restricting such rights in the implementation of criminal prosecution
against a person.
The consequence of the ongoing judicial reform and the actions of the
legislator was the development and adoption on December 18, 2001 of the
Code of Criminal Procedure of the Russian Federation, which reected the
main provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms, according to which everyone has the right
to liberty and security of person, no one can be deprived of liberty except
lawful being taken into custody by a competent court, whereby each person
in custody is promptly brought before a judge or other ocial with judicial
power, is entitled to trial within a reasonable time or to release pending trial
(Art. 5).
The protracted alignment of the Russian criminal procedural legislation
with international standards and the Constitution of the Russian
Federation served as the basis for the receipt of relevant complaints rst to
the Constitutional Court of the Russian Federation, and then to the ECHR.
739
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
According to the Decree of the Constitutional Court of the Russian
Federation of March 14, 2002, No. 6-P, the provisions of Articles 90, 96,
122 and 216 of the RSFSR Code of Criminal Procedure were recognized as
inconsistent with the Constitution of the Russian Federation, allowing the
detention of a person suspected of committing a crime for a period of more
than 48 hours and as a preventive measure of taking into custody without a
court decision. Federal Law No. 59-FZ of May 29, 2002 “On Amendments
and Additions to the Federal Law “On the Enactment of the Code of Criminal
Procedure of the Russian Federation”, the judicial procedure for choosing a
preventive measure in the form of detention was put into eect.
Aware of the existing negative law enforcement practice, the legislator
continued to improve the procedure for choosing a preventive measure
in the form of detention and already in 2003 made amendments to Part
1 of Art. 108 of the Code of Criminal Procedure of the Russian Federation,
according to which a judge’s decision on the choice of a preventive measure
in the form of detention must indicate specic, factual circumstances on
the basis of which the judge made such a decision, in addition, the choice of
a preventive measure is permissible only if there is a reasonable suspicion
(Popenkov et al., 2021).
The criminal procedural legislation of the Federal Republic of Germany
in the eld of choosing a preventive measure in the form of detention
contains, in fact, provisions similar to the Code of Criminal Procedure of the
Russian Federation with some exceptions/additions. So, according to §112
(Para. 1, sentence 1) of the CPC of the Federal Republic of Germany, one
of the prerequisites for detention is the presence of substantial suspicion
of a criminal act, which means the belief that the accused has committed a
criminal act or participated in its commission, i.e., all signs of punishment
and conditions of criminal prosecution are present.
It is of interest to present to each citizen (both the person against
whom a crime has been committed and any other person, for example, an
eyewitness) in exceptional cases (Para. 1 of §127 of the Code of Criminal
Procedure of the Federal Republic of Germany) the right to take a criminal
procedural measure in the form of detention in relation to a person
caught on the crime scene of the suspect in the commission of a criminal
act, provided that such detention cannot be carried out by the authorized
bodies. The purpose of such detention is to ensure criminal prosecution.
After the arrest, the law enforcement agencies have an additional
obligation to inform about the reasons for the arrest, including the criminal
act.
In the ocial translation of the European Convention on Human Rights
into Russian, the category “immediately” is used. In the English version
it is understood as “promptly”, which translates as “quickly”, and in the
740
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
German we nd the following translation: “in kürzester Zeit”, i.e., as soon
as possible.
Information about the criminal act, that is, on the charges brought
forward, in practice during the arrest is the initial one and can subsequently
be supplemented if necessary. A short-term delay in the provision of
information is possible until the point in time when the information can
be processed properly (Löwe, Rosenberg, 2016). The criminal procedure
legislation of the Federal Republic of Germany does not indicate how long
the detained person is notied of the suspicion.
In the judgments of the ECHR, the judges additionally explain how
to understand the corresponding time of notication formulated in the
European Convention. Thus, information may not be provided at the time
of arrest, but it must be announced within a few hours after it, as indicated
in several judgments of the ECHR.
Thus, in the case “Zuyev v Russia” (Application no. 16262/05, §84) The
ECHR concluded that the period between Z.’s arrest and the notication
of the charges against him, equal to 14 hours, was excessive. As the
court indicated, during this period Z. remained in a state of confusion
and uncertainty as to the reasons for the deprivation of liberty (a similar
reasoning was used in the judgment of the European Court of April 21, 2011,
in the case Nechiporuk and Yonkalo v Ukraine), application no. 42310/04,
§210).
Thus, using the example of the analysis carried out, we see that the
international the standards of criminal prosecution concerning the
prohibition of arbitrary arrest, as well as the need to establish its grounds
and conditions, the duty of law enforcement agencies to inform the
detainee of these grounds and the criminal charge are reected in the
national criminal procedure legislation. In the Russian Federation, there is
a specic time limit for such notication, which is three hours. In the Code
of Criminal Procedure of the Federal Republic of Germany, such a term is
not specied in such detail that, in our opinion, it is subject to change to
more detailed regulation of the powers of authority of persons conducting
criminal prosecution and authorized to detain on suspicion of committing a
crime, preventing violations of human rights, as well as providing additional
guarantees to the detainee.
(5) When touching upon the powers of the authorities to comply with
international standards reected in national legislation, it is necessary to
refer to the international documents dening the activities of the prosecutor
in carrying out criminal prosecution, namely to Recommendation No.
R (2000) 19 of the Committee of Ministers of the Council of Europe to
member states “On the role of the prosecutor’s oce in the criminal justice
system”, adopted by the Committee of Ministers of the Council of Europe
741
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
on October 6, 2000 at the 724th meeting of the Ministers’ representatives.
According to this document, regardless of the forms of criminal
prosecution, systems of law enforcement agencies and justice, prosecutors
in all criminal justice systems should have the authority to resolve issues
on the initiation, continuation of criminal prosecution; maintaining the
prosecution in court; appeal against a court decision.
Nowadays, in accordance with international standards in the Federal
Republic of Germany, the prosecutor’s oce has fully retained the function
of criminal prosecution, which is enshrined in national legislation as the
prosecutor’s duty to bring public charges, organize the prosecution of
all criminal acts (§152), refuse public prosecution (§153a-153f), limit the
prosecution (§154a) or temporarily stop the proceedings (§154f).
In the Russian Federation, the prosecutor has never been the only
subject of criminal prosecution, initially its main function was to supervise
government ocials, and after the adoption of the Federal Law “On
Amendments and Additions to the Code of Criminal Procedure of the
Russian Federation” dated June 5, 2007 No. 87-FZ, the powers of the
Russian prosecutor to carry out criminal prosecution have undergone
signicant changes and, in fact, at the stage of pre-trial proceedings were
reduced to the conclusion of a pre-trial agreement (Clause 5.2, Part 2
of Art. 37 of the Code of Criminal Procedure of the Russian Federation)
and the approval of accusatory documents drawn up by the preliminary
investigation authorities (Clause 14, Part 2 of Art. 37 of the Code of Criminal
Procedure of the Russian Federation).
Based on the afore-mentioned information, it can be stated that
international standards in the eld of criminal prosecution are presented
in international law not only in the form of norms-principles, but also
in the form of securing the legal personality of the prosecutor in the
implementation of criminal prosecution. At the same time, in terms of
granting the prosecutor sucient powers to carry out criminal prosecution
at the pre-trial stages of criminal proceedings, the Russian legal system
does not fully meet international standards. This provision is subject to
legislative regulation.
Consideration of the issue of criminal prosecution would be incomplete
without resolving the question of the adversarial nature of the parties: “If
the law stipulates the adversarial principle in its regulations, it demonstrates
the level of democracy in the State, humanization and justice of criminal
law, protection of rights, freedom, and legal interests of persons, and equal
and eective defense by law and courts.
The adversarial system as a general independent principle is specied in
Art. 123, Para. 3 of the Constitution of the Russian Federation. Moreover,
this principle is enshrined in art. 6 of the European Convention on Human
742
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
Rights since the adversarial principle ensures legal justice. Notably, the
analysis of the European Court of Human Rights practices revealed that
the adversarial approach lies in providing the defense and prosecution
with equal opportunities to study the evidence of the other party and state
their opinion on it. Consequently, it ensures the equality of the parties in
criminal proceedings (Pushkarev et al., 2020).
This ensures the solution of the fundamental tasks of protecting the
rights, freedoms, and interests of the individual in the context of the
fairness of criminal proceedings but will also eliminate the inconsistency of
its individual norms governing criminal prosecution and protection from it
(Pushkarev et al., 2021).
Conclusion
Based on the analysis of generally recognized principles, norms of
international law, the law enforcement practice of the ECHR, the positions
of scientists who have studied the legal nature and essence of international
standards, the following should be noted.
A common understanding of the essence of criminal prosecution, the
denition of its beginning, timing, and procedural order, as well as the
system of bodies implementing it, in international norms, decisions of the
ECHR has yet to be formulated.
International standards for the implementation of criminal prosecution
are specially formulated in such a way as to provide states to independently
choose the means and mechanism for implementing the initial principles
of criminal prosecution, which is explained by the variety of national legal
systems, their dependence on the policy pursued in the state, the economic
situation, social situation, national and cultural characteristics.
Thus, the legislator of both the Russian Federation and the Federal
Republic of Germany retains the right to clarify and detail the guidelines,
international standards for the implementation of criminal prosecution,
taking them into account when building the current system of state law.
International standards for the implementation of criminal prosecution
play an important role in building the rule of law and improving national
criminal procedure legislation, since they contribute to the formation of a
unied concept of criminal prosecution and establish the permissible limits
for limiting the rights of the suspect, the accused.
743
CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 729-744
Bibliographic References6
BORODIN, S.V., LYAKHOV, E.G. 1983. “International cooperation in the
ght against criminal crime” In: Problems of the UN activities in the
prevention of crime and the treatment of oenders. Moscow, Russia.
CHERNICHENKO, Stanislav Valentinovixh. 1989. Development of international
standards and procedures in the eld of human rights. In: Human rights
in the history of mankind and in the modern world. Moscow, Russia.
ECHR. February 26, 2004. Case No. 74969/01, Görgülü v Germany.
FEDERAL LAW NO. 101-FZ. July 15, 1995. On International Treaties of
the Russian Federation. Available online. In: Date of consultation:
08/10/2021.
FEDERAL LAW NO. 419-FZ. December 8, 2020. On Amendments to
Article 1 of the Code of Criminal Procedure of the Russian Federation.
Available online. In: https://rg.ru/2020/12/11/upk-dok.html. Date of
consultation: 08/10/2021.
FEDERAL LAW NO. 54-FZ. March 30, 1998. On Ratication of the Convention
for the Protection of Human Rights and Fundamental Freedoms and
the Protocols to it. Available online. In http://www.kremlin.ru/acts/
bank/12169 Date of consultation: 08/10/2021.
HARTWIG, Matthias. 2005. “Much Ado About Human Rights: The Federal
Constitutional Court Confronts the European Court of Human Rights”
In: German Law Journal. Vol. 6, No. 5, p. 869-894.
IVANOV, Dmitriy Aleksandrovich; FADEEV, Pavel Vladimirovich;
ALIMAMEDOV, Elmir Nizamievich; DUNG, Vo Kim. 2020. “Provision
of the rights and legitimate interests of legal entities that HAVE been
victims of crimes” In: Revista Turismo Estudos & Práticas. No. S5, pp.
47-59.
KHALIULIN, Alexander Germanovich. 1997. Criminal prosecution as a
function of the RF prosecutor’s oce (problems of implementation of
legal reform): dissertation. Moscow, Russia.
KONDRAT, Ivan Nikolaevich. 2013. Protection of the rights of participants in
criminal proceedings in pre-trial proceedings: international standards
and implementation mechanism in the Russian Federation. Dissertation.
Moscow, Russia.
6 Some fonts were originally organized in the APA style, for this reason they could not adapt to the
standard of this journal.
744
Aleksandr Viktorovich Grinenko, Natalia Nikolaevna Kuznetsova, Nadezda Valerevma Osmanova,
Sergey Nikolaevich Khoryakov y Anna Vladilenovna Skachko
International legal standards for the conduct of criminal prosecution and its implementation in
the legislation of the Russian Federation and the Federal Republic of Germany
KULIKOV, Mikhail Alekseevich. 2020. Preventive measures under the
legislation of the Russian Federation and other states of the Romano-
Germanic legal family (continental system of law). Dissertation. Moscow,
Russia.
LÖWE, E; ROSENBERG, W. 2016. Löwe-Rosenberg. Die Strafprozeßordnung
und das Gerichtsverfassungsgesetz. De Gruyter. Berlin, Germany.
MULLERSON, Rein Avovich. 1991. Human rights: ideas, norms, reality.
Yuridicheskaya literature. Moscow, Russia.
POPENKOV, Anton Valerevich; IVANOV, Dmitriy Aleksandrovich;
KHORYAKOV Sergey Nikolaevich; POSELSKAYA, Lyudmila
Nikolaevna. 2021. “Ensuring the Right of The Suspect and the Accused
for Defense” In: Propósitos y Representaciones. Vol. 9, No. S3.
PUSHKAREV, Viktor Victorovich; GAEVOY, Alexander Ivanovich;
KOLCHURIN, Andrei Gennadievich; BUKHAROV, Nikolay Nikolaevich;
PCHOLOVSKY, Nikolay Kazimirovich. 2021. “Ensuring the principle
of adversarial parties by the investigator at the end of the criminal
prosecution” In: Laplage em Revista. Vol. 7, No. Extra-A, pp. 304-310.
PUSHKAREV, Viktor Victorovich; TRISHKINA, Ekaterina Alekseevna;
TOKAREVA, Ekaterina Viktorovna; CUONG, Bui Tran. 2020. “The
Adversarial Approach in the Pretrial Phase of Prosecution” In: Cuestiones
Políticas. Vol. 37, No. 65, pp. 281-287.
TORKUNOVA, Ekaterina Anatolievna. 2002. Legal basis for the implementation
of the constitutional right of Russian citizens to judicial protection in the
European Court: author. dissertation. Moscow, Russia.
ZYBAILO, Alla; FEDOROVA, Viktoriya. 2018. “On the question of the legal
nature and essence of international standards of human rights and
freedoms” In: Journal of International Law and International Relations.
Vol. 1-2, No. 84-85, pp. 26-30.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en enero de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 72
