The essence and significance of international legal assistance in civil and family matters. International legal assistance in civil cases International legal assistance in civil cases
The judicial power is limited to the territory of the respective state; therefore, the Russian court is not entitled to take any judicial action abroad. At the same time, consideration of civil cases with a “foreign element” is often associated with the service of court documents, obtaining evidence, and performing other procedural actions. All these issues are resolved within the framework of international legal assistance.
If we talk about the history of the aspect of international legal assistance, it should be noted that initially only letters rogatory were its object.
However, the development of international cooperation has led to a significant expansion of the volume of international legal assistance, which is reflected in international treaties on legal assistance in civil, family and criminal cases. In this connection, the literature uses such a term as "contractual" provision of legal assistance Svetlanov A.G. international civil procedure: modern tendencies. M., 2002. - P.84 ..
International legal aid is considered as “a single legal institution that has a common circle of subjects, the nature of actions and emerging legal relations, general principles provision of legal assistance "Marysheva N. And. Decree op. - P. 20 ..
The sources of the institution of international legal assistance are recognized as international treaties of the Russian Federation, generally recognized principles and norms international law, as well as the internal procedural legislation of the Russian Federation.
In the absence of an international treaty, the range of subjects of international legal assistance is determined by the domestic legislation of the respective state.
Consider disputes arising from civil relations May and International Commercial Arbitration Law Russian Federation 07.07.1993 N 5338-1 (as amended on 03.12.2008) "On International Commercial Arbitration" "Art. 27 allows the possibility of sending letters rogatory to foreign courts.
The subjects of international legal assistance can also be the bodies of notaries, however, it should be noted that the fulfillment by the notaries of orders from foreign institutions of justice is associated with the existence of an international treaty, which is provided for by the basics of legislation on notaries.
Individuals can also be subjects of international legal assistance, which is enshrined in the provisions of the multilateral Convention on the collection of evidence abroad for civil and commercial affairs dated March 18, 1970.
Thus, international legal assistance can be provided both on a contractual and non-contractual basis, if this is provided for by the domestic legislation of the state.
Execution by Russian Courts of Orders of Foreign Courts
Consideration of cases involving foreigners mostly associated with the need to perform certain procedural actions on the territory of the respective foreign state. For example, interviewing parties, serving court documents, questioning witnesses, on-site interviews, etc.
Accordingly, procedural actions outside the Russian Federation can be performed only by sending letters rogatory to foreign courts.
In the science of private international law, a letter of order is understood as "an appeal of a court of one state to a court of another state with a request to carry out procedural actions on the territory of another state" Boguslavsky Private international law. - M., 2005. - S. 376 ..
Legal basis for performance foreign ships are international treaties and federal law (Art. 407 Code of Civil Procedure of the Russian Federation).
1954 Hague Civil Procedure Convention, Legal Aid Convention and legal relationship in civil, family and criminal matters, 1993, Convention on the Service Abroad of Judicial and Non-Judicial Documents in Civil and Commercial Matters, 1965, Convention on the Collection Abroad of Documents in Civil and Commercial Matters, 1970, Collection of International Treaties on Mutual Legal Assistance. - M., 1996 ..
Beyond the Conventions legal basis the occurrence of obligations between the courts of the Russian Federation and the courts foreign states for the execution of letters rogatory are:
Bilateral treaties on legal assistance in civil, family and criminal matters;
Bilateral agreements on the execution of letters rogatory civil affairs with the USA 1935 with Belgium 1945-1946, Germany 1956-57
Having received the letter of order, the Ministry of Justice of the Russian Federation checks the correctness of the order and sends it to the departments (departments) of justice of the corresponding constituent entity of the Russian Federation, which, in turn, send the order to the court in the area of activity of which the procedural actions are to be performed and under the jurisdiction of which they fall persons to whom the documents are to be served.
When Russian courts address orders to foreign courts, a similar procedure is applied in reverse order.
There is also such a procedure as a direct appeal with a letter of order to a foreign court.
V pre-revolutionary Russia this procedure took place by virtue of special agreements, for example, between Russia and Germany in 1879. This procedure was the most practical and recommended procedure for intercourse.
Current Russian legislation (Article 408 of the Code of Civil Procedure) establishes two foundations possible failure in the execution of orders of foreign courts:
1. when the execution of an order contradicts the sovereignty of the Russian Federation or threatens the security of the Russian Federation;
2. when the execution of the order is not within the competence of the court.
In addition to the centralized procedure, it is necessary to provide for a procedure for direct communication between Russian courts and foreign courts on the execution of letters rogatory. The corresponding rule should be enshrined in international treaties on legal assistance.
1. In international civil procedure, legal assistance is understood as the mutual fulfillment of orders by institutions of justice of states. The need for legal assistance is due to the fact that the courts and other bodies of states have jurisdiction only on the territory of their own states, but legal proceedings in which foreign individuals and legal entities are involved often require the production of certain judicial actions, such as: serving summons, obtaining evidence, interrogation witness, etc. on the territory of another state. Such actions can be carried out only by resorting to the assistance of the justice institutions of a foreign state.
As M.I. Brun: “The custom of giving each other commissions (commissions rogatoires) has been illuminated for centuries; at the same time, the rule is observed that when a native court is asked to execute an order, it has nothing to check the competence of the applicant court, but only needs to conform to its own competence and whether the order contradicts the good morals or public order of the country. "
2. When requesting a foreign court, one of the critical issues is the way to transfer the order. In world practice, the following main ways of handling an order have developed:
1) an appeal in a diplomatic manner, where the scheme operates: the ministry of justice - the ministry of foreign affairs - consular departments embassies in foreign countries;
2) an appeal through the central bodies of justice according to the following scheme: Ministry of Justice of State "A" - Ministry of Justice of State "B";
3) the appointment of a special representative in a foreign country to carry out the assignment (used in the Anglo-American judicial system);
4) direct communication between judicial institutions in the transfer of letters rogatory.
The 1954 Civil Procedure Convention established the procedure for the transfer of letters rogatory by the consul of the requesting state to the authorities of the requested state. These authorities send the consul a document certifying the execution of the letter of order or explaining the reasons why the execution could not take place (part 1 of article 9).
Part 2 of Art. 9 of the 1954 Convention states that each Contracting State may declare, by notifying the other Contracting States, that it wishes to have letters rogatory to be executed on its territory transmitted to it by diplomatic means. In such a case, letters rogatory will be submitted for execution by the appropriate agencies through the State's Foreign Office.
By acceding to the 1954 Hague Convention, the USSR, in a note dated September 17, 1966, declared that court documents foreign authorities intended for delivery to persons residing on the territory of the USSR must be transferred for execution to the appropriate Soviet institutions in the diplomatic manner through the USSR Ministry of Foreign Affairs. Since the Republic of Belarus acceded to the Hague Convention of 1954 in the order of its succession, the diplomatic way of transferring instructions to the Republic of Belarus also operates, which must be carried out on the territory of our state.
The issue of the transfer of instructions in the Hague Convention on International Access to Justice of October 25, 1980 is regulated differently.According to the said Convention, each Contracting State must designate central authorities for receiving and transmitting requests for legal assistance directed on the basis of the Convention, and taking measures thereon and take the necessary actions. In accordance with the Decree of the President of the Republic of Belarus dated October 29, 1997 No. 553, which formalized the accession of the Republic of Belarus to the 1980 Convention on requests to the central authorities of other states.
Requests for legal assistance, drawn up in accordance with the form attached to the Convention, must be transmitted without the intervention of other authorities (part 2 of article 4). At the same time, in part 3 of Art. 4 of the Convention states: "Nothing in this article prevents the assignments from being transferred through diplomatic channels."
The Agreement on the Procedure for the Resolution of Disputes Related to the Implementation economic activity of March 20, 1992, the courts and other bodies of the CIS member states undertake to provide mutual legal assistance, which includes: the service, forwarding of documents and the performance of procedural actions, in particular: the examination, hearing of the parties, witnesses, experts and other persons.
When providing legal assistance, the competent courts and other bodies of the CIS member states communicate directly with each other. When executing orders, the competent courts and other bodies from which assistance is sought shall apply the legislation of their state. When executing orders, documents are presented in the language of the requesting state or in Russian.
3. The most detailed issues of rendering legal assistance are settled in the Minsk Convention of 1993 and the Chisinau Convention of 2002.
The Contracting Parties communicate with each other through their central territorial or other bodies of justice, unless a different procedure for communication has been established by the Conventions.
The scope of legal assistance in relation to civil cases includes: sending and serving documents to the addressee, conducting examinations, conducting examinations, interrogating the parties, civil plaintiffs, civil defendants, and their representatives.
When executing orders for the provision of legal assistance, the justice institution of the requested Contracting Party shall apply its legislation, but at the request of the justice institution of the requesting Contracting Party, it may apply the procedural rules of the requesting Contracting Party, if they do not contradict the legislation of the requested Contracting Party. In this case, the requesting Contracting Party must submit the text of the procedural law (paragraph 1 of article 8 of the Convention).
The Conventions establish the procedure for summoning victims, civil plaintiffs and defendants, their representatives, witnesses, experts and other persons. All specified persons shall be reimbursed for expenses related to travel, as well as stay in the territory of the calling Party and unreceived salary for days of distraction from work; experts are also entitled to remuneration for conducting expert examinations.
Documents issued in the established form and sealed with the official stamp on the territory of one of the Contracting Parties shall be accepted in the territories of all other Contracting Parties without any special certification.
Sending documents on registration of acts civil status carried out free of charge directly through the civil registration authorities of the Contracting Parties with notification of citizens about the transfer of documents. The Contracting Parties also undertook to send each other, without translation and free of charge, documents on education, work experience and other documents relating to personal, property or moral rights and the interests of citizens.
4. In the Republic of Belarus, the procedure for executing orders of courts of foreign states and handling orders to foreign states are regulated, in addition to international treaties, by the norms of the Code of Civil Procedure and the Code of Civil Procedure of the Republic of Belarus.
In accordance with Art. 560 of the Code of Civil Procedure, the courts of the Republic of Belarus execute the instructions of foreign courts for the performance of certain procedural actions (delivery of summons and other procedural documents, interrogation of the parties and witnesses, examination, on-site inspection, etc.).
Orders of foreign courts cannot be executed if:
1) the execution of the order would contradict the sovereignty or threaten the security of the Republic of Belarus;
2) execution of orders is not within the competence of the court.
Orders of foreign courts on the performance of certain procedural actions are executed in accordance with the legislation of the Republic of Belarus.
In turn, the courts of the Republic of Belarus, in the presence of an international treaty, may apply to foreign courts with instructions on the performance of certain procedural actions. The procedure for the communication of the courts of the Republic of Belarus with foreign courts is determined by national legislation and international treaties of the Republic of Belarus.
5. In the Economic Procedural Code of the Republic of Belarus, instructions on the performance of certain procedural actions are regulated by Art. 204, where it is indicated that the economic court executes the transferred to it in the manner prescribed legislative acts and (or) international treaties of the Republic of Belarus, instructions from foreign courts and competent authorities of foreign states on the performance of certain procedural actions (serving summons and other documents, obtaining written evidence, conducting an examination, on-site inspection, etc.).
Orders of a foreign court or a competent authority of a foreign state are not subject to execution if:
1) the execution of the order contradicts public policy The Republic of Belarus;
2) the execution of the order does not fall within the competence of the economic court of the Republic of Belarus;
3) the authenticity of the order as a document on the basis of which the performance of certain procedural actions is requested has not been established.
The Economic Court issues rulings on the execution of the order or on the refusal to execute it, which are sent to the appropriate foreign court or the competent authority of a foreign state. The rulings on the execution of the order or on the refusal to execute it may be appealed in the prescribed manner.
The commercial courts of the Republic of Belarus may, in turn, apply to foreign courts or competent authorities of foreign states with instructions on the performance of certain procedural actions.
Legal assistance in civil cases goes beyond purely procedural legal relations.
Based legal form implementation of the assigned duties, the following groups of subjects of international legal assistance in civil cases can be distinguished:
a) carrying out lawmaking (international organizations, states and state bodies);
b) implementing law enforcement (institutions of justice, bodies performing notarial functions, diplomatic missions and consular offices, etc.);
c) those involved in the process of providing international legal assistance in civil cases in connection with the protection of subjective rights and legitimate interests of individuals and legal entities, as well as in connection with the provision of assistance to competent state bodies and officials.
In the field of lawmaking, the role of international organizations lies primarily in their ability to unite the efforts of states in developing optimal mechanisms for the legal regulation of international legal relations in this area.
Central place among the international organizations that carry out lawmaking activities in the field of international legal assistance in civil cases, the UN is.
Some conventions, adopted with the direct participation of the UN Commission on International Law, today constitute an essential part of the legal framework for international legal assistance in civil matters. Among them are the conventions on diplomatic relations (1961) and consular relations (1963) adopted in different years in Vienna; on the law of international treaties (1969); on the law of international treaties between states and international organizations or between international organizations (1986).
Within the framework of the CIS, the following documents have been adopted that regulate the status of subjects of international legal assistance in civil cases: Agreement on the Procedure for Resolving Disputes Related to the Implementation of Economic Activities (1992); Agreement on the Mutual Recognition of Rights and the Regulation of Property Relations (1992); The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 1993), which became the first multilateral convention that served as the basis for the conclusion of many bilateral international treaties between the CIS member states; Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Chisinau, 2002).
The state, being the subject of international legal assistance in civil matters, performs the function of lawmaking both in the international arena and within the country, since it acts as a subject of both international and national law. External law-making activities of the state predetermine the intensification of internal law-making functions.
The Russian Federation is characterized by two ways of implementing international legal obligations to include legal regulations on international legal assistance in civil matters to the national legal system. The first is the presence in the Constitution of the Russian Federation of a reference norm (part 4 of article 15), according to which the generally recognized principles and norms of international law and international treaties of the Russian Federation are part of its legal system; if an international treaty of the Russian Federation establishes rules other than those provided for by law, the rules of the international treaty are applied. The second way is to enact the norms of domestic law. V this case the adoption in the civil, civil and arbitration-procedural laws of a set of norms governing the status of subjects of international legal assistance in civil cases indicates incorporation.
Law enforcement in the field of international legal assistance in civil cases is implemented, firstly, when initiating international legal assistance within the framework of its powers (sending an appropriate request to the competent authorities and officials of a foreign state); secondly, in the execution of an international legal order received from a foreign state. The subjects carrying out law enforcement in the field of international legal assistance in civil cases, first of all, should include the Ministry of Justice of Russia and territorial institutions of justice, bodies vested with the right to apply with an international legal request. In addition, law enforcement in this area can be implemented diplomatic missions and consular offices.
A particularly wide range of entities empowered to apply for international legal assistance in civil matters. In 2001, the Russian Federation, when acceding to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965, made a statement, according to which the bodies competent under Russian law to apply for legal assistance within the framework of their powers are:
a) federal courts: Constitutional Court RF; courts general jurisdiction(The Supreme Court of the Russian Federation, the supreme courts of the republics, regional and regional courts, city courts federal significance, courts of the autonomous region and autonomous regions, district courts, military and specialized courts); federal arbitration courts (the Supreme Arbitration Court of the Russian Federation, federal arbitration courts of districts (arbitration cassation courts), arbitration courts of appeal, arbitration courts of the constituent entities of the Federation);
b) courts of the constituent entities of the Federation: constitutional (charter) courts, justices of the peace of the constituent entities of the Federation.
v) federal bodies executive power and executive authorities of the constituent entities of the Federation;
d) the bodies of the prosecutor's office of the Russian Federation.
e) bodies of registration of acts of civil status;
f) notaries and other officials authorized to carry out notarial activities:
Notaries involved in private practice;
Notaries of state notary offices;
Officials of the executive authorities (in the absence of locality notary);
Officials of consular institutions of the Russian Federation performing notarial functions on the territory of foreign states;
g) guardianship and trusteeship bodies;
h) lawyers.
On November 10, 2004, the UN General Assembly adopted the Convention on jurisdictional immunities states and their property. It is open for signature until January 17, 2007.
Multilateral conventions can be universal and regional. Universal treaties are concluded by states belonging to different regions the globe, to various socio-political and legal systems. The universal agreements are those that are of the greatest practical importance, for example Vienna Convention UN on contracts for the international sale of goods in 1980 (65 states participate, including Russia and other CIS states), New York Convention on the Recognition and Enforcement of Foreign arbitral awards 1958, in which 135 states participate, including Russia and other CIS states.
Regional agreements are usually understood as agreements that are adopted and operate within one region, as a rule, within the framework of a regional integration grouping of states.
Of the conventions concluded on regional level, we will point out the main agreements in the field of private international law between the CIS countries:
1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk Convention 1993) and its Protocol 1997. The new version of the Convention was adopted in Chisinau on October 7, 2002 (Chisinau Convention 2002) ... For the parties to the Chisinau Convention, the 1993 Minsk Convention and its 1997 Protocol will expire. However, for the states parties to the Chisinau Convention that have not signed the Chisinau Convention (Turkmenistan, Uzbekistan), the 1993 Minsk Convention and the 1997 Protocol thereto will be in force;
Agreement on the procedure for resolving disputes related to the implementation of economic activities, 1992 (Kiev agreement 1992);
Agreement on the Procedure for Mutual Execution of Decisions of Arbitration, Economic and Economic Courts in the Territories of the Member States of the Commonwealth of 1998 (Moscow Agreement);
1994 Eurasian Patent Convention
Examples include the Agreement of July 6, 1992, which approved the Regulations on the CIS Economic Court, the Agreement on the Transit Procedure of February 8, 1992, the Agreement on Cooperation in the Field of Investment Activities of December 24, 1993, the Convention on protection of investors' rights dated March 28, 1997 No.
Bilateral treaties are concluded between two states. As noted in the literature, their advantage over multilateral treaties is that they can better take into account the interests of the contracting states. However, at the same time, their application in practice is more difficult, since they create a differentiated regime of legal regulation in the same area (for example, in the field of investment promotion and protection).
The division of contracts into self-executing and non-self-executing is essential.
The norms of self-executing contracts, due to their detailed elaboration and completeness, can be used to regulate the relevant relations without any concretizing and complementary norms.
A non-self-executing treaty, even if the state authorizes the application of its rules within the country, requires for the execution of an act of domestic rule-making that specifies the provisions of the relevant document.
From the point of view of the content (subject of regulation), the following groups of international treaties can be distinguished, which were especially widely used at the turn of the 20th - 21st centuries, which contain provisions related to the sphere of private international law:
Treaties on human rights, on the legal status of citizens;
Legal aid agreements;
Treaties on the Promotion and Protection of Foreign Investments;
Treaties in the field of international trade and economic cooperation;
Ownership agreements;
Contracts in the field of transport, carriage of goods and passengers;
International Settlement Agreements;
Double Taxation Avoidance Agreements;
Agreements in the field intellectual property;
Family and inheritance law agreements;
Agreements on social security;
Consular conventions;
Contracts in the field of international civil procedure;
International commercial arbitration agreements.
Among the bilateral treaties, the most interesting for Russia are such complex treaties as treaties on legal assistance. They contain provisions not only on cooperation between the judicial authorities, including on the execution of letters rogatory, but also rules on the law applicable to relevant relations in the field of civil and family law, and provisions on jurisdiction, recognition and enforcement judgments.
As of January 1, 2005, Russia was a party to the agreements on legal assistance concluded with: Azerbaijan (1992), Albania (1995), Algeria (1982), Argentina (2000), Bulgaria (1975 g.), Hungary (1958, 1971), Vietnam (1981), Greece (1981), Georgia (1995), Egypt (1997), India (2000), Iraq (1973), Iran (1996), Spain (1990), Italy (1979), Yemen (1985), Cyprus (1984), PRC (1992), DPRK (1957), Cuba (1984), Kyrgyzstan (1992), Latvia (1993), Lithuania (1992), Moldova (1993), Mongolia (1988), Poland ( 1996), Romania (1958), Turkey (1997), Tunisia (1984), Finland (1978), Czechoslovakia (1982), Estonia (1993). On January 17, 2001, a bilateral agreement was concluded with Belarus on the procedure for the mutual execution of judicial acts on economic disputes.
A number of provisions concerning the field of private international law are contained in the Agreement on Partnership and Cooperation, establishing a partnership between the Russian Federation, on the one hand, and the European Communities and their member states, on the other hand (Corfu Island, June 24, 1994; entered into force in 1998), as well as in the 1994 Energy Charter Treaty and other agreements. In connection with the enlargement of the EU membership, on April 27, 2004, the Russian Federation and the EU signed a Protocol to this Partnership Agreement.
The development of integration processes has led to the conclusion of agreements operating in relations between members of a particular grouping of states. So, European law, which is usually understood as EU law, according to the generally accepted classification, consists of the so-called primary right The EU, which primarily includes treaties on the creation of the EEC, as well as international treaties that amend and supplement them (the Amsterdam Treaty, which entered into force in 1999), and secondary EU law, which is created by the bodies of this Union through the adoption of regulations, directives and other acts (decisions). Initially, a number of agreements were concluded between the EU member states (formerly the EEC). These agreements include primarily the 1980 Rome Convention on the Law Applicable to contractual obligations... It entered into force for Belgium, Great Britain, Denmark, Greece, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal. The Rome Convention belongs to the accompanying EU law. However, its significance has gone far beyond the EU due to the fact that this Convention reflects modern trends in the development of private international law.
In 1968, the EEC member states concluded the Brussels Convention on Judicial Competence and Enforcement of Judgments in Civil and Commercial Matters ( new edition 1979). The European states that are members of the EFTA concluded in 1988 in Lugano an agreement on the jurisdiction and enforcement of judgments in civil and commercial matters. On January 1, 1992, it entered into force in relations between France, the Netherlands and Switzerland. Thus, the provisions of the 1968 Brussels EEC Convention were extended to Switzerland, a member of the EFTA.
After the 1999 Amsterdam Treaty came into force, many previously concluded multilateral agreements from the so-called primary EU law were transferred to the category of secondary EU law. This trend is especially evident in the field of procedural law, family law, labor law and others. Along with a number of EU regulations regarding jurisdiction, recognition and enforcement of judgments, since May 31, 2002, Regulation No. 1346 of May 29, 2000 on insolvency procedures has been in effect.
Of the numerous conventions of a regional nature concluded on the American continent in the field of private international law, it should be noted, first of all, the Bustamante Code, named after its compiler, a well-known Cuban lawyer. The Code, consisting of 437 articles, is the most detailed international treaty on private international law. It was adopted in 1928 at the VI Pan American Conference and ratified by 15 countries of Central and South America.
The Code consists of an introductory section and four books (international civil law, international trade law, international criminal law, international procedural law). The Code was approved in in full Cuba, Guatemala, Honduras, Panama and Peru, four countries (Brazil, Haiti, Dominican Republic and Venezuela) made reservations on specific articles, countries such as Bolivia, Costa Rica, Chile, Ecuador and El Salvador made a general reservation upon ratification that the Code does not apply in the event of its conflict in the present or in the future with their domestic law, which made their attitude to the convention very symbolic. Argentina, Colombia, Mexico, Paraguay and the United States refused to sign the convention, with the United States referring to the fact that the competence federal government does not include the signing of agreements on private law matters that are solely the purview of the states.
Since 1975, conferences on private international law of the countries of the American continent have been regularly held. At the first conference (1975) in Panama, six conventions were adopted, at the second (1979) in Montevideo - seven conventions on various issues of private international law.
At a conference in La Paz in 1984, four conventions were adopted (the Inter-American conventions on the legal capacity and capacity of legal entities in private international law, on conflict of laws rules ah concerning the adoption of minors, jurisdiction and extraterritorial action Foreign Judgments, Protocol Additional to the Inter-American Convention on the Collection of Evidence Abroad). At a conference in Montevideo in 1989, four conventions were adopted (on the obligation to maintain persons, on the return of minors from other countries, on international transport cargo by road).
At the fifth conference in 1994 in Mexico City, the Inter-American Convention on the Law Applicable to International Contracts was adopted. The Convention consists of 30 articles, which are characterized by an approach that is significantly different from the European one reflected in the Hague Conventions of 1955, 1978 and 1986.
A number of developing countries, in the absence of legal regulation in a number of areas, are characterized by an interest in conducting international unification both regional and universal. Thus, in 1962, an agreement was signed in Libreville on the establishment of the Afro-Malagasy Industrial Property Office (OAMPI), providing uniform standards for the protection of inventions, registration of trademarks and industrial designs. This agreement was revised and supplemented in 1977. In 1978, a similar agreement was concluded by a group of other African states, former British colonies.
The Asian-African Legal Advisory Committee has adopted a Model Agreement for Bilateral Agreements on Legal Assistance and Evidence.
Thus, the conclusion of international conventions, the wide coverage of the issues regulated by them led to the fact that in a number of areas the main source of private international law is an international treaty. This trend is typical for economic, scientific and technical cooperation, regulation of rail, air, road transport, and intellectual property.
4. Task... During the interrogation of the accused, his lawyer, lawyer V.Ya. Samsonov. asked to leave them alone to give his client advice as part of providing him legal aid... The investigator refused to comply with the lawyer's request. Is the refusal of the investigator legitimate?
Article 53. Powers of a defense attorney
1.From the moment of admission to participation in a criminal case, a defense attorney has the right:
1) have a date with the suspect, the accused in accordance with paragraph 3 of part four of Article 46 and paragraph 9 of part four of Article 47 of this Code;
5) participate in the interrogation of the suspect, the accused, as well as in other investigative actions carried out with the participation of the suspect, the accused, or at his request or at the request of the defense lawyer himself in the manner prescribed by this Code;
8) submit petitions and challenges;
2. Defense attorney involved in the proceedings investigative action, in the framework of providing legal assistance to his client, he has the right to give him in the presence of the investigator brief consultations, ask, with the permission of the investigator, questions to the interrogated persons, make written comments about the correctness and completeness of the records in the protocol of this investigative action. The investigator can deflect the questions of the defense lawyer, but is obliged to enter the reserved questions in the protocol.
Article 46. Suspect
4. The suspect has the right to:
3) use the help of a defense attorney from the moment provided for in paragraphs 2 and 3 of part three of Article 49 of this Code, and have a meeting with him in private and confidentially before the first interrogation of the suspect;
The refusal of the investigator is legitimate. Meetings in private and in confidence take place before the first interrogation.
O.G. NIKULSHINA, candidate legal sciences, Associate Professor of the Department of Private Law, Russian State University for the Humanities International legal aid is an integral part of justice. Regulatory regulation international legal assistance is carried out by the state, including Russia, where the state is the monopoly subject of its provision.
This article was copied from https://www.website
O.G. NIKULSHIN,
Candidate of Law, Associate Professor of the Department of Private Law of the Russian State University for the Humanities
International legal aid is an integral part of justice. The normative regulation of international legal assistance is carried out by the state, including Russia, where the state is the monopoly subject of its provision.
International legal assistance is a necessary condition for the administration of justice (if a foreign element is involved in the case or there is a need for procedural actions in another state). Accordingly, the level of implementation of legal aid should be taken into account when determining the criteria for the effectiveness of legal proceedings. The proper implementation of international legal assistance affects the ability of the courts to ensure the rights of persons involved in civil and family matters.
International legal assistance in civil and family matters is a set of actions of competent national bodies and officials of one state to assist in the administration of justice in civil and family matters to the relevant bodies and officials of another state, regulated by a complex of international and domestic legal norms.
International legal assistance in civil and family matters at the domestic level is an intersectoral education. The principles of the relevant procedural branches, as well as international law, should apply to it. Undoubtedly, peremptory principles are subject to application in the regulation of issues of international legal assistance. The closest are the principles of cooperation, sovereign equality of states, conscientious fulfillment of obligations, non-interference in internal affairs, respect for human rights and fundamental freedoms.
The first group is made up of interstate relations, which are manifested in the following:
· A state enters into relations with another state regarding the conclusion of an international treaty regulating the procedure for the implementation of international legal assistance, or the possibility of its implementation in the absence of an appropriate treaty;
· The authorized body of one state communicates with the authorized body of another state in order to receive and transmit the results of international legal assistance (procedural documents, information, persons, etc., depending on the institution of international legal assistance).
The second group is of an intrastate nature and includes relations:
Institutions of justice of the requested state with national government bodies, for example, with a higher authority, other state bodies (the legal relationship is of an administrative nature);
· Institutions executing an order with an entity that performs actions in order to provide international legal assistance (legal relationship is of a procedural nature).
The presence of peremptory principles of international law gives rise to immediate rights and responsibilities with the relevant actors. The principle of cooperation between states obliges sovereign entities to maintain contacts with other states, to interact on issues important to the parties, and not to isolate themselves within their borders or other associations. States are obliged to provide international legal assistance (including in civil and family matters) in the form of cooperation, guided by a peremptory norm of general international law.
but legal regulation relations only on the basis of a general peremptory norm of international law is clearly insufficient. It is quite logical to detail and concretize the relationship by creating a written or customary norm. Obviously, this stage does not take place in each specific case of the provision of international legal assistance in civil and family matters, nevertheless, it cannot be ignored.
The legal relations that develop in the field of international legal assistance in civil and family matters are public law - administrative, procedural. Relations between two authorized bodies of different states are of an international legal nature, not a public one.
The main subjects in legal relations for the provision of international legal assistance are states. This is no coincidence: since international legal assistance (including in civil and family matters) is international in nature, the assistance of another state is necessary in the administration of justice. For the emergence of cooperation relations, it is necessary to obtain the consent of states to accept the results of the activities of foreign state bodies for the purpose of their own procedural actions. The state, in fact, is an abstract phenomenon; it manifests itself outside through the organs it has created. With regard to international legal assistance, states determine the competent authorities for subsequent joint actions. In case of non-fulfillment or improper fulfillment of the obligations assumed, the state will bear responsibility.
In the legal literature, the greatest discussions arise regarding the object of legal relations developing in the field of international legal assistance. The most justified position of V.M. Shurshalova. Objects of the rule of law and legal relations are characterized by them as certain material and intangible benefits, the achievement of which states strive and which meet the vital interests of the subjects participating in legal relations. It is important that these benefits cannot be achieved by the forces of one state. The author identifies three groups of objects of international relations: 1) peace, peaceful cooperation, security; 2) material (economic) benefits; 3) the benefits of the cultural, scientific and social development of peoples.
The object of international legal assistance is international relations of the third group, aimed at cultural, scientific and social development peoples. The object of legal relations of international legal assistance is inextricably linked with the object of the rules of law governing its provision, and is correlated as private and general.
The object of legal aid treaties is “cooperation in the provision of legal aid”. This wording is used in most special international treaties.
The object of the rules of law governing the provision of international legal assistance is the relations of cooperation between states in the field of protection of family, inheritance rights citizens, as well as in the area law enforcement(broadly as an activity law enforcement- police, courts, prosecutors, etc.).
International legal aid is rather diverse in its content. Its division into classification groups is due to many factors. The presence of branches of the judiciary makes it possible to assert about international legal assistance in civil, family, criminal, and arbitration cases. The various tasks of international cooperation in the activities of the judiciary explain the existence of separate institutions in the framework of international legal assistance.
The concept of "institution of law" has received its detailed development in jurisprudence, science, theory of state and law. Traditionally, the institution of law is usually understood as a separate group of legal norms that regulate public relations of a specific type. A complex, or complex, institution is part of various branches of law. Within the framework of a complex institution, sub-institutes are distinguished.
The institutions of international legal assistance in civil and family matters include:
· Fulfillment of orders for the performance of certain procedural actions (interviewing parties, third parties, witnesses, carrying out an examination, serving documents, research and transfer of evidence);
· Summoning the participants in the process (plaintiffs, defendants, witnesses, experts, etc.) to a foreign state;
· Provision of information about the law, as well as other information (establishment of addresses and other data);
· Recognition and execution of court decisions in civil and family matters, executive notices.
Institutions of international legal assistance are characterized by the homogeneity of the factual content, which is expressed in the work of the competent authorities to provide assistance to the courts and other institutions of justice of the requesting state in connection with the consideration of civil, family and criminal cases.
Institutions of international legal aid are designed to regulate an independent, relatively isolated group of relations developing in the field of promoting the administration of justice in another state. Interaction with foreign state bodies is regulated by national legislation, the part of it that deals with procedural relations.
In national regulations, as a rule, the possibility of cooperation with a foreign state is fixed. These relations were directly consolidated in international treaties. They, in particular, indicate the specific bodies of communication, the procedure for interaction, the rights and obligations of the parties.
Institutions of international legal assistance are complex and complex by their legal nature. International legal assistance is part of various branches of domestic law (criminal procedural, civil procedural, arbitration procedural, private international), as well as in various legal systems - international and domestic. The unifying element of the institutions of international legal assistance is the object of legal relations.
Bibliography
1 See: V.M. Shurshalov International legal relations... - M., 1971.
Share the article with your colleagues:Chapter I. Mutual legal assistance of the CIS countries in civil and family matters.
§ 1. Legal protection and legal assistance.
§ 2. Execution of letters rogatory.
§ 3. Legal relations of the CIS countries. t
Chapter II. Mutual legal assistance of the CIS countries in criminal matters.
§ 1. Execution of orders.
§ 2. Issuance.
§ 3. Execution of criminal prosecution.
Chapter III. Recognition and execution of decisions of judicial and other bodies of the CIS countries.
§ 1. Recognition and enforcement of decisions of state courts.
§ 2. Recognition and execution of decisions of arbitration courts (arbitration tribunals). t
§ 3. Recognition and execution of notarial deeds.
§ 4. A brief overview of the national legislation of the CIS countries.
Recommended list of dissertations
International legal framework for the provision of mutual legal assistance in criminal matters between the CIS and Baltic countries 2002, candidate of legal sciences Rakhimov, Barodar Mustafoevich
Application of International Law in Russian Criminal Procedure: Problems of Theory and Practice 1999, Candidate of Legal Sciences Volzhenkina, Valentina Mikhailovna
Legal assistance in criminal cases as a complex formation in international criminal and criminal procedure law 2008, Doctor of Law Lazutin, Lev Alexandrovich
International cooperation of the bodies of preliminary investigation of the Ministry of Internal Affairs of the Russian Federation in the field of criminal proceedings 2004, Candidate of Legal Sciences Spanov, Bekzhan Isaevich
Legal assistance in criminal cases: Based on materials from Kyrgyz. Rep. and RF 1997, Candidate of Legal Sciences Tabaldieva, Venera Sharshenbekovna
Dissertation introduction (part of the abstract) on the topic "Interstate regulation of legal assistance in civil, family and criminal cases: On the example of the CIS countries"
The principle of cooperation between states is one of the basic principles of international law1. This principle runs through the entire content of the Charter of the United Nations. Its normative content is set out in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.2
The Declaration says: “States are obliged to cooperate with each other, regardless of the differences in their political, economic and social systems, in various fields of interstate relations with the aim of maintaining international peace and security and promoting international economic stability and progress, the general welfare of peoples and international cooperation, free from discrimination based on such differences. "
Cooperation of states in the field of legal assistance is an important form of international cooperation in legal sphere... The main goals of such cooperation are: ensuring legal rights and the interests of its citizens and legal entities; the fight against criminal offenses; promoting the effective administration of justice.
1 See: V.I. Kuznetsov, R.A. Tuzmukhamedov, N.A. Ushakov. From the Decree on Peace to the Declaration of Peace. M., 1972.S. 18; International cooperation and international law. M., 1977.S. 31; Mazov V.A. Helsinki Principles and International Law. M., 1980.S. 28; Talalaev A.N. Helsinki: principles and reality. M., 1985.S. 43.
2 Public International Law. Collection of documents. In 2 vols. M., 1996.Vol. 1.P. 52.
3 See: N.A. Ushakov International Law Course. In 7 volumes.Vol. 2.M., 1989.S. 39.
The provision of international legal assistance is carried out on the basis of special bilateral and multilateral treaties concluded by sovereign states as the main subjects of international
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States provide assistance to each other in civil, family and criminal cases by conducting procedural actions, extradition of persons to prosecute or enforce a sentence, recognition and enforcement of court decisions in civil cases, sentences in part civil action, executive notices, as well as by drawing up, sending and serving documents. In addition, states provide each other with information about the domestic legislation in force or in force in their territories and the practice of its application.
The amount of assistance depends on the state of international relations and relations with a particular country. International agreements can be concluded on the entire range of relations traditionally referred to as legal assistance or on specific issues. In addition to the specified provisions, agreements on the provision of international legal assistance may contain rules that eliminate conflicts of law of the contracting states.
The relevance of the research topic is as follows.
First, the deepening of international cooperation leads to the need to resolve disputes that often arise between citizens and legal entities different states in judicial procedure... Since the number of lawsuits with a foreign element is steadily increasing every year, the problem of ensuring the rights and legitimate interests of foreigners in trial becomes more and more important. The right of everyone to equal protection of the law, including fair and impartial trial was first enshrined at the international level in the Universal Declaration of Human Rights adopted by the UN General Assembly c. 1948 The recognition of this right by the world community served as the basis for the intensification of cooperation
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As a result of these global processes, there is currently a tendency to expand cooperation between states in the provision of legal assistance in civil, criminal and other cases on the basis of international treaties. This fully applies to Russia, which has always been active in this area and is a party to the main universal conventions, regional agreements and bilateral treaties on legal assistance.
Since 1992, the Russian Federation has concluded more than two dozen bilateral agreements in the field of mutual legal assistance with the countries of the “far abroad”. This is more than was concluded during the entire Soviet period.
In 1999-2001. Russia has joined several important universal Hague conventions. Having become a member of the Council of Europe in 1996, the Russian Federation began to actively join the European conventions. Thus, our state seeks to expand and deepen international relations related to the provision of mutual legal assistance. And the implementation of such a policy should be carried out on a strictly scientific basis.
Secondly, issues related to legal relations between the countries of the Commonwealth are very relevant today. Independent States(CIS). The presence of close ties between these states, due to the process of common historical development, predetermines the need for active cooperation in the field of international legal assistance. In this regard, it is important to study the agreements of the CIS countries aimed at solving these problems.
The CIS Charter, signed in 1993, identified mutual legal assistance and cooperation in other spheres of legal relations among the goals of the Commonwealth. A more detailed description of these provisions was found in Article 20 of the Charter. It states that the member states carry out cooperation in the field of law, in particular, through the conclusion of multilateral and bilateral treaties on the provision of legal assistance and contribute to the approximation of national legislation4. All this testified to the understanding of the need to improve the mechanism of cooperation in this area, which was realized through the international legal acts adopted after this.
Thus, the CIS countries concluded a multilateral agreement in the field of mutual legal assistance in 1993 by signing in Minsk the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (hereinafter referred to as the 1993 Minsk Convention). This extensive and multifaceted international document, which laid the legal foundations for fruitful cooperation in this area, plays today a key role in relations between the CIS countries.
At the same time, agreements on certain aspects of international legal assistance were concluded by Russia both before and after the signing of the 1993 Minsk Convention. mutual execution of decisions of arbitration, economic and economic courts in the territories of the member states of the Commonwealth of 1998. The provisions of these international legal acts and their correlation deserve serious scientific study.
Thirdly, the Minsk Convention of 1993 is an important international legal act and in itself is of great interest for research. Its peculiarity lies in the fact that for the first time in the practice of signing such agreements, it was possible to develop a unified approach to such a wide range of problems to be solved with an equally wide range of participants. This testifies, on the one hand, to the homogeneity of the tasks facing the signatory countries, and, on the other hand, to common views on the ways of their solution.
The state of scientific elaboration of the topic. Soviet and Russian lawyers made a significant contribution to the study of the problems of providing international legal assistance. However, most of the works are devoted to certain aspects of the legal regulation of relations between states in this area. Sometimes they are considered in the context of the problems of the international civil process. However, agreements on legal assistance are a tool by which the contracting states on a reciprocal basis ensure the protection of the rights and legitimate interests of their citizens in their territories not only in civil but also in criminal matters. In addition, such agreements often contain conflict of laws rules on the basis of which the contracting states regulate relations in the civil law sphere.
In the Russian and foreign scientific literature, issues of extradition (extradition), the provision of legal protection to foreigners, the recognition and enforcement of foreign court decisions are widely covered. At the same time, there is no comprehensive approach to the study of all aspects traditionally related to international legal assistance. To date, there are practically no scientific works of a monographic nature, in which all these issues would be analyzed in detail. An exception is N.I. Marysheva, in which the author tried to comprehensively approach the topic under study5.
All of the above fully applies to legal regulation
5 See: N.I. Marysheva. International legal assistance in civil and criminal cases. Dis. Dr. jurid. sciences in the form of scientific. report. M .: IZSP, 1996. providing legal assistance to the CIS countries, while the legal basis for cooperation of these states in this area deserves serious scientific research. These circumstances determined the relevance of the chosen research topic, predetermined its goals and objectives, object and subject.
The purpose and objectives of the study. The main objectives of this study are:
1) a comprehensive study of the legal foundations of interstate regulation of the provision of legal assistance in civil, family and criminal cases of the CIS countries in the context of the already accumulated international experience and taking into account the specifics of the relationship of new states in the post-Soviet space;
2) study and description of the mechanism for the implementation on the territory of the Russian Federation of international legal norms governing the provision of mutual legal assistance between states in general and between the CIS countries in particular.
To study and systematize the available scientific knowledge in the field of interstate regulation of the provision of legal assistance;
Explore the theoretical and practical problems of interstate regulation of the provision of legal assistance in civil, family and criminal cases;
Conduct a study of the legal foundations of mutual legal assistance of the CIS countries in civil and family matters;
Analyze the procedure for providing mutual legal assistance to the CIS countries in criminal cases;
Carry out a study of the mechanism of execution in the Russian Federation of instructions in the framework of the provision of mutual legal assistance of countries
CIS for civil, family and criminal cases;
Analyze the procedure for the recognition and enforcement in the Russian Federation of decisions of judicial and other bodies of the CIS countries.
The object of the research is the legal relations arising between states in general and the CIS countries in particular regarding the provision of mutual legal assistance in civil, family and criminal cases.
The subject of the research is the resolutions of the UN General Assembly, universal and regional international conventions, including the Minsk Convention of 1993, bilateral treaties on mutual legal assistance; internal legal acts of the Russian Federation: the Russian Constitution of 1993, federal laws and regulations including departmental acts; special literature and analytical materials on the object of research.
Scientific novelty of the research. The work was written with the involvement of the latest regulatory material... The dissertation analyzes the provisions of the most important universal agreements in the field of international legal assistance, to which Russia has become a party in recent years.
Thus, in 2001, the Russian Federation acceded to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 (Federal Law No. 10-FZ of February 12, 2001) and the Hague Convention on the Obtaining Abroad of Evidence on civil or commercial cases 1970 (Federal Law of February 12, 2001 No. 11-FZ).
Federal Law No. 190-FZ of October 25, 1999, the Russian Federation ratified the 1957 European Convention on Extradition,
The 1975 Additional Protocol and the 1978 Second Additional Protocol to it. By the other Federal Law No. 19E-FZ of October 25, 1999, Russia ratified the 1959 European Convention on Mutual Legal Assistance in Criminal Matters and the 1978 Additional Protocol thereto.
Along with these acts, the work examines the norms of recently entered into force bilateral treaties on legal assistance of the Russian Federation with India, Poland, the United States and other countries.
In addition, over the past two years, in fact, all procedural legislation has been updated in Russia. Part three Civil Code Of the Russian Federation, containing Section VI Private International Law, entered into force on March 1, 2002. From July 1, 2002, the Criminal Code, adopted in 2001, came into effect. procedural code Of the Russian Federation, Section XVIII of which regulates the procedure for interaction of courts, prosecutors, investigators and inquiry bodies with the relevant competent authorities and officials of foreign states and international organizations. This section is new. Never before has international cooperation in the field of criminal proceedings been reflected in Russian criminal procedural legislation in such a volume, breadth and detail. In 2003, the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, adopted in 2002, came into effect in full. Justice with a foreign element, and the enforcement of foreign judgments in Russia is carried out in accordance with the norms enshrined in them.
When working on the dissertation, the latest Scientific research reflecting various aspects in the field of international legal assistance.
Writing a work using the specified material testifies to its novelty.
The following provisions are submitted to the defense.
1. The conclusion of the 1993 Minsk Convention was caused by the need to ensure the legal rights and interests of citizens of the newly independent states and other persons living in their territories. The CIS member states as sovereign subjects of international law could solve this problem only on the basis of an international agreement. Having concluded the Minsk Convention of 1993, its participants recognized the commonality of the tasks they face and confirmed a common view on the ways of their solution.
2. The Minsk Convention of 1993 is a regional international agreement governing the entire range of relations traditionally related to international legal assistance: service of procedural documents, execution of orders for the performance of procedural actions in civil and criminal cases, mutual recognition and enforcement of judicial and other decisions, search and extradition of persons to prosecute them or to enforce a sentence, criminal prosecution of their own citizens for crimes committed in the territories of contracting states, drafting and sending documents, exchange legal information... However, the amount of legal assistance enshrined in the 1993 Minsk Convention. is not exhaustive, it is limited only to internal procedural rules contracting parties.
3. The Minsk Convention of 1993 does not replace existing treaties and conventions for its participants and does not prevent the conclusion of new agreements in the field of international legal assistance. Therefore, the CIS countries can participate in other universal, regional and bilateral agreements related to this area of international relations.
4. The CIS countries, having concluded the 1993 Minsk Convention, provided all persons living in their territories with equal legal protection in respect of their personal and property rights. The same applies to legal entities. The provision of such a "national treatment" meets the established international practice in this sphere of relations and contributes to the fullest protection of the rights and legitimate interests of individuals and legal entities.
5. The procedure for executing orders in civil and criminal cases, enshrined in the 1993 Minsk Convention, fully complies with generally accepted international practice. However, the presence of close ties between the countries of the Commonwealth has made it possible to improve this practice. In particular, by actually recognizing the Russian language as a universal means of communication in this sphere of relations, many problems associated with the language barrier were solved.
6. The provision of mutual legal assistance in criminal cases is an urgent need for all members of the world community in general and the CIS countries in particular. The CIS countries extradite persons to prosecute them and to carry out a sentence under the conditions stipulated by the 1993 Minsk Convention. , and avoiding just punishment, on the other.
7. The parties to the 1993 Minsk Convention recognize and execute court decisions arising from civil relations, as well as decisions of courts in criminal cases on compensation for harm. The relations of states regarding the mutual recognition of sentences and the transfer of persons sentenced to imprisonment for further serving the sentence constitute an independent subject. international agreements... In 1999, the Convention on the Transfer of Sentenced to Deprivation of Liberty for Further Serving of Sentence, concluded by the CIS member states in 1998, entered into force. Russian citizens deprived of the opportunity to serve their sentence in their homeland.
8. In addition to the Minsk Convention of 1993, the recognition and enforcement of foreign court decisions in disputes between economic entities is governed by the Kiev Agreement on the Procedure for the Resolution of Disputes Related to the Implementation of Economic Activities in 1992, the Moscow Agreement on the Procedure for the Mutual Execution of Awards of Arbitration, Economic and Economic Courts in the Territories member states of the Commonwealth of 1998 and a number of other agreements regulating relations in the economic sphere. In the process of applying the norms of these agreements, considerable experience has been accumulated, which must be extended to other areas. civil relations... In particular, it would be useful to provide in the 1993 Minsk Convention a procedure when, on the basis of executive document of a claimant issued on the territory of any CIS country, the bank serving the debtor writes off the awarded amount from the bank account of the debtor.
9. The procedure for recognition and enforcement of decisions of arbitration courts (arbitration tribunals) has some peculiarities. So, for the execution in the territory of the Russian Federation of the decision of the arbitration court (arbitration) adopted in Russia, in contrast to the decision of a foreign arbitration court (arbitration), the recognition procedure is not required. Russian standards procedural legislation in the field of recognition and enforcement of foreign arbitral (arbitral) awards fully comply with the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
10. The Minsk Convention of 1993, being a completely viable international agreement that fully meets the requirements for such documents, at the same time needs to be improved. In this regard, it is proposed to implement the following measures:
1) determine a complete list of Russian central, territorial and other bodies authorized to carry out direct communications in the field of legal assistance, and consolidate it at the international level, as required by Article 5 of the 1993 Minsk Convention;
2) to improve the organization of work on the execution of orders, develop samples of the relevant forms and consolidate them at the international level as an annex to the 1993 Minsk Convention;
3) in order to streamline payment issues, develop a regulatory legal act regulating the procedure and amount of reimbursement of expenses and payment of remuneration to persons in connection with their summons to the bodies of inquiry, preliminary investigation, the prosecutor's office or the court in the framework of mutual legal assistance and also consolidate it at the international level as an annex to the 1993 Minsk Convention;
4) in order to streamline matters of jurisdiction, state paragraph 1 of Article 22 of the 1993 Minsk Convention in the following wording: in accordance with this Convention, the court which instituted the case later leaves the application without consideration ”;
5) in order to improve the issues of inheritance of escheat property, state Article 46 of the 1993 Minsk Convention in the following wording: “Article 46. Desecrated property. If, according to the legislation of the Contracting Parties, the inherited property as escheat becomes the property of the state, then movable property is transferred to the state, the citizen of which was the testator at the time of death, and the immovable property becomes the property of the state in whose territory it is located. "
These measures could be implemented with the completion of the 1993 Minsk Convention.
11. Russian procedural legislation governing the execution of orders basically corresponds to the established international practice in general and the provisions of the 1993 Minsk Convention in particular. The provisions of Russian procedural legislation and the norms of the 1993 Minsk Convention mutually complement and concretize each other. However, the internal Russian procedure execution of international orders requires additional regulatory support. In particular, it is proposed to develop a normative legal act regulating the procedure for the provision of legal assistance by the courts and notaries of Russia to justice institutions of foreign states and on the procedure for seeking legal assistance from these institutions.
12. The legislation of the CIS countries regarding the recognition and enforcement of foreign judgments is very close to each other. The content of the norms is often completely the same. Therefore, in many countries, the old Soviet legislation continues to operate with only some changes, mainly concerning the names of sovereign states. At the same time, there is a tendency of some CIS countries, including Russia, to update and improve the previous legislation. This trend appears to be more promising.
The theoretical and methodological basis of the study is the work of domestic legal scholars who, to one degree or another, dealt with the problems of cooperation between states in the provision of international legal assistance: I.P. Blishchenko, M.M. Boguslavsky, S.V. Borodin, P.M. Valeeva, L.N. Galenskaya, A.A. Egorova, N.Yu. Erpylevoy, JI.B. Efremova, R.F. Zakharova, M.I. Kleandrova, B.M. Klimenko, Yu.A. Korolev, V.I. Kuznetsova, L.A. Lunts, E.G. Lyakhova, V.A. Mazova, N.I. Marysheva, A.S. Mikhlina, E.G. Moiseeva, Yu.G. Morozova, T.N. Moskalkova, Z.A. Nikolaeva, V.V. Pustogarova, K.S. Rodionova, A.N. Talalaeva, Yu.A. Tikhomirova, R.A. Tuzmukhamedova, L.N. Shestakova, G.G. Shinkaretskaya, V.N. Shumsky, N.A. Ushakova,
I.V. Fisenko, N.P. Yablokov and others.
When working on the dissertation, the latest analytical developments of practicing lawyers were used: N.D. Budashova, T.N. Neshataeva, N.V. Pavlova, N.B. Slyusar, V.V. Starzhenetsky, G.I. Sharamova, N.A. Shebanova, abstracts and dissertations of Al-Khaled Maysara, D.K. Bekesheva, N.A. Marysheva.
The work on the dissertation was carried out using methodological principles common to all social sciences: objectivity, scientific character, historicism, and a systematic approach. The solution of the set tasks was achieved by means of the general scientific dialectical method of cognition. The main private scientific methods studies were: structural-functional, comparative-legal, logical, historical and the method of systems analysis.
The scientific and practical significance of the work is seen, firstly, in the systematization of scientific knowledge in the field of international legal assistance; secondly, in the description of the "mechanism for the implementation. on the territory of the Russian Federation of agreements in this area of international relations; thirdly, in the development of specific proposals to improve the legal framework for cooperation of the CIS countries in the field of mutual legal assistance.
Similar dissertations in the specialty "International law, European law", 12.00.10 HAC code
International cooperation in the field of criminal proceedings of the Russian Federation at the stage of preliminary investigation 2004, candidate of legal sciences Mazaeva, Natalya Nikolaevna
Procedural aspects of international cooperation of the preliminary investigation bodies under the Ministry of Internal Affairs of the Russian Federation 1999, Candidate of Legal Sciences Karaseva, Elena Valentinovna
Proceedings in Cases with Foreign Persons in Russian Courts: Theory and Practice 2003, Doctor of Law Vasilchikova, Nina Aleksandrovna
Legal regulation of the status of Russians in the CIS countries
Legal regulation of the status of citizens of the Russian Federation in the CIS countries 2003, candidate of legal sciences Skakov, Boris Borisovich
Conclusion of the thesis on the topic "International law, European law", Mikhailenko, Konstantin Evgenievich
CONCLUSION
As already noted, one of the main goals of cooperation between states in the legal field is to ensure the legitimate rights and interests of their citizens and legal entities abroad.
The historical process of the formation of the status of a foreign citizen, the definition of his rights and obligations stretched over many centuries. In ancient times, ordinary foreigners for the most part were powerless and often despised. Only the ambassadors of sovereign rulers had privileges and were subject to protection. Later needs economic development and trade made the protection of the rights of foreigners vital.
In ancient Greece, a special institution of patronage to foreigners arose - proxenia: special attorneys (proxenes) provided hospitality and patronage to citizens from another Greek city-state. The latter, in comparison with other foreigners, enjoyed certain rights in relation to taxes, trade and courts, and even some honorable privileges.
In ancient Rome, where, according to the laws of the XII tables, ordinary foreigners were deprived of all rights, the institution of patronage was introduced, reminiscent of the Greek proxenia: a special executive- Praetor Peregrinus - was in charge of the affairs of foreigners who were in Rome, and resolved their disputes with local authorities and citizens. Some scholars see these institutions as the prototype of modern consular law.
The institution of consuls, which emerged with the growth of cities, trade and navigation in the Middle Ages in the merchant colonies of the Italian city-republics, was, apparently, the only way to protect the rights of foreigners. At first they were honorary consuls, who were elected by foreign merchants of this city, but already in the XV - XVII centuries they mostly turned into officials who were appointed by the government and sent abroad to defend the rights, trade and other interests of their subjects. The organization of the consular service, the rights and obligations of consuls were regulated by special consular conventions, as well as by the domestic legislation of states.
Only with the establishment of bourgeois relations in the XVII - XVIII centuries the legal status of foreigners began to change dramatically. In a number of European countries, they were equated in civil rights to their own citizens, that is, they began to be granted "national treatment" in accordance with the principle that all people, regardless of their nationality, have inalienable natural rights.
Everyone's right to equal protection of the law, including a fair and impartial trial, was first enshrined at the international level in the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948. The recognition of this right by the world community served as the basis for enhancing cooperation between states in the legal sphere. ...
The basic principles of the Declaration were consolidated at the regional level when concluding the relevant agreements. Within the framework of the Council of Europe, for example, these provisions were developed and concretized in the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. about his civil rights and obligations or, if any criminal charge is brought against him, has the right to a fair and public hearing in reasonable time an independent and impartial court established by law ”1.
Since a person has rights and fundamental freedoms does not depend on his citizenship and place of permanent residence, the fundamental provisions of the above international instruments should fully apply to all persons under the jurisdiction of any state. The provisions on granting foreigners legal protection on an equal basis with their own citizens are contained in current legislation most modern states. Thus, Article 62 of the Constitution of the Russian Federation stipulates that foreign citizens enjoy rights and obligations in the Russian Federation on an equal basis with citizens of the Russian Federation.
Although the procedural rights of foreigners are regulated by domestic law, sovereign states seek to consolidate the legal status of their citizens at the international level. Many international agreements on legal aid, concluded in the second half of the 20th century, contain provisions according to which the contracting parties grant their citizens national treatment on a reciprocal basis.
Currently, there is a tendency to expand cooperation in the provision of legal assistance in civil, criminal and other cases on the basis of international treaties. This fully applies to Russia, which has always been active in this area and is a party to the main universal conventions, regional agreements and bilateral treaties on legal assistance.
International economic cooperation, the deepening of which has become a characteristic phenomenon for the second half of the 20th century, presupposes the active development of relations not only between states, but also between individuals and legal entities. different countries more and more actively involved in the international economic turnover. This factor, as well as the expansion of interpersonal contacts, which is greatly facilitated by the simplification of international communication, leads to the need to resolve trade and civil disputes, which often arise between citizens and legal entities of different states, in court. Expanding connections new Russia with the world community and, above all, with the European states, today they demand an intensification of international cooperation, including in the legal sphere.
The development of international cooperation in the field of legal assistance means both the conclusion of new bilateral and multilateral agreements and the improvement of existing agreements in this area. Some of them have already been updated. In 2001, for example, the 1996 agreement between the Russian Federation and the Republic of Poland on legal assistance and legal relations in civil and criminal matters was ratified, which replaced the agreement on the same issues in 1957.
The purpose of this study was determined to solve the spirit of interrelated tasks: first, to study the legal foundations of interstate regulation of the provision of legal assistance in civil, family and criminal cases of the CIS countries in the context of the already accumulated international experience and taking into account the specifics of the relationship of new states in the post-Soviet space; and secondly, to study the mechanism for the implementation on the territory of the Russian Federation of international legal norms governing the provision of mutual legal assistance between states in general and between the CIS countries in particular.
As part of solving the tasks set, an extensive international legal material was studied, including universal and regional international conventions, as well as bilateral treaties on the provision of mutual legal assistance. Taking into account the results obtained, the authors analyzed the provisions of the 1993 Minsk Convention and other agreements of the CIS countries in this area of relations. A comparative legal analysis of the norms of Russian conflict of laws and procedural legislation was carried out for their compliance with the provisions of international agreements.
Chapter I of this dissertation dealt with the issues of legal protection, legal assistance and legal relations in civil cases in the framework of the provision of international legal assistance. The main subject of the research was the international legal regulation of relations between the CIS countries in this area. Special attention is paid to the analysis of the conflict of laws rules governing the relations of the countries - participants of the Minsk Convention of 1993. Such an analysis was carried out taking into account the conflict of laws, substantive and procedural provisions Russian legislation
Chapter II of this dissertation analyzed the issues of legal assistance and legal relations in criminal cases in the framework of international legal assistance. The main subject of the research was the international legal regulation of relations between the CIS countries in this area. Particular attention is paid to the analysis of the criminal prosecution procedure, as well as the extradition of persons for prosecution or criminal prosecution. This analysis was carried out taking into account the requirements of the criminal procedure legislation of the Russian Federation.
Chapter III of this dissertation examined the issues of mutual recognition of decisions of judicial and other bodies of foreign states, in the framework of providing international legal assistance. The subject of a detailed study was the process of international legal regulation of mutual recognition and execution of decisions of justice institutions of the CIS countries on issues arising from civil and family relations. Close attention is paid to the study of the Russian procedural legislation governing the procedure for the recognition and execution in the territory of the Russian Federation of decisions of judicial and other bodies of foreign states. In addition, a brief overview of the procedure for the recognition and enforcement of foreign judgments in the CIS countries is provided.
The practical significance of this study is seen, firstly, in the systematization of scientific knowledge in the field of international legal assistance; secondly, in the description of the mechanism for the implementation on the territory of the Russian Federation of agreements in this area of international relations; thirdly, in the development of specific proposals for improving the legal and regulatory framework for cooperation between the CIS countries in the field of mutual legal assistance.
International legal assistance, being an important element of interstate cooperation, serves to bring national legal systems closer together and to strengthen confidence between countries.
List of dissertation research literature Candidate of Legal Sciences Mikhailenko, Konstantin Evgenievich, 2003
2. Charter of the United Nations and Statute International Court of Justice(San Francisco, June 26, 1945). Applicable international law. Collection of documents. In 3 volumes.Vol. 1.M., 1996.
3. Universal Declaration of Human Rights (New York, December 12, 1948) // Russian newspaper, 10.12.1998.
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