Publicity and openness of the judicial system is. Glasnost as a political and legal phenomenon

Glasnost is a complex political-legal, moral-humanistic and socio-psychological category that reflects people’s attitude towards real life, each other, society, the state, facts, processes, events occurring in the country and in the world. Researchers have repeatedly addressed the issue of the concept and content of publicity. In politics and science, the peak of popularity of this problem occurred during the period of perestroika. The overwhelming majority of studies devoted to transparency consider it only from the point of view of political and legal content.

In its etymological meaning, publicity is defined:

1) as accessibility to public information and discussion, control;

2) publicity;

3) general knowledge of something, publicity.

The political and legal category of transparency is understood as the principle of activity of government bodies, officials, public organizations, as a principle of interaction between the state and civil society. This element is of the greatest importance, since issues of transparency as a principle of interaction between civil society structures affect the interests of only a part of society. For example, interaction between the population and political parties. Whereas the exercise of state power is always connected with the interests of society as a whole. And already because of this everything general State activities have a special status.

Moreover, openness in relation to the state is not just a principle of activity, it is a mechanism of responsibility to the population, along with such generally recognized elements of democracy as elections, a free press, etc. Glasnost as a principle of interaction between the state and civil society represents the core of glasnost as a general social phenomenon.

There is no single approach to determining the content of publicity as a principle of interaction between the state and society in Russian science. As N.I. rightly noted. Matuzov, in modern science“There is politics, logic and dialectics of publicity. Policy - general course on publicity, logic is the sequence of its deployment and functioning, and dialectics is complexity, relativity and inconsistency this phenomenon, a clash of opposing principles within it. But there is no holistic theory of glasnost yet.”

As a rule, science uses two concepts of this phenomenon. Broad, when openness is interpreted as a constitutional, general legal principle characterizing the interaction of state and non-state structures of society. Narrow, when openness is reduced to the principle of the activities of government bodies, it is understood as the openness of the activities of government bodies on issues of personal, group, class, national, and popular interest. Such a narrowing of the content of publicity seems unjustified, since in this case only the state is characterized and the features of information processes in the sphere of civil society are not reflected at all. These aspects of publicity cannot be considered separately. The declaration of openness of the activities of government agencies, not supported by guarantees of the free circulation of such information within civil society, turns into a formality, a declaration. Moreover, as follows from the etymology of the word “glasnost”, vital importance has precisely the degree of freedom of information, its popularity in society.

We believe that we can identify several main components of the content of publicity:

The right of citizens to discuss the activities of public authorities, criticize, make comments and suggestions on issues of state and public life, including through the media, as well as use the information received in any other way that does not contradict the law. Of greatest importance in in this case has media activities to cover the work of government bodies. Moreover, this component includes the activities of the media to disseminate information about the activities of government bodies, carried out only on their own initiative. The fundamental, universal significance of this component gives rise to the illusion of its absence in publicity, as a principle of interaction between the state and civil society. The fact is that the free dissemination of information about the activities of the state is fully covered by the complex of fundamental human rights. As rightly noted by B.C. Khizhnyak, human information rights cover the receipt and dissemination of not only official, but also unofficial information.

These powers are studied by scientists independently, in isolation from other elements of publicity. And thus this component is, as it were, excluded from the composition of publicity, which is incorrect.

The dissemination of information from government bodies in society is of utmost importance, since without it, the participation of citizens in the management of state affairs will be only formal. The mode of dissemination of such information in civil society has a number of significant features compared to information about other elements of society (for example, information about the activities of political parties, religious organizations, commercial structures, etc.). This is due to the public nature of the state’s activities, since any decision of a government body affects the interests of society as a whole. Accordingly, this information should be most accessible to society and its control. On the other hand, such information can be the most dangerous and is subject to the greatest protection by the state. It is in this regard that, while proclaiming a regime of maximum openness of information about the activities of government agencies, the legislator simultaneously introduces restrictions in the form of state, official and other secrets.

Openness (publicity) of the activities of public authorities, i.e. a mode of activity in which visiting and observing the progress of work of any government body is possible by any interested subjects. In order to avoid terminological confusion, it is preferable to use the term “openness” to characterize the operating mode of government bodies, in which everyone is allowed to attend and observe the work of government bodies.

Informing the population about the functioning of government and the decisions it makes, i.e. activities of state bodies to disseminate such information.

This element of publicity characterizes active work public authorities to provide various subjects of civil society with information about their activities. And such active actions can be carried out by authorities both on their own initiative and at the request of interested parties. This component implements the right of citizens and their associations to seek and receive any information that is at the disposal of government bodies and is not classified as information with limited access.

Depending on the nature of the information, it can be divided into the following types:

• informing about current activities;
• disclosure of statistical data and final reports;
• announcement decisions taken. This information is particularly important because a decision is an act of management and initially requires knowledge.

Of the considered elements of publicity, only the first characterizes the processes within civil society, the other two relate to the activities of state bodies and represent essential principles activities of government bodies. Moreover, it is inappropriate to consider openness and information as independent principles, because their separate implementation does not provide full publicity. Openness characterizes the static state of publicity, is a decisive, necessary prerequisite for it; informing the population shifts the emphasis to the dynamic aspect of publicity, testifies to its implementation in practice.

The combination of these two components represents transparency as a principle characterizing the activities of government bodies. This component corresponds to the constitutional right of citizens to seek and receive information.

The judgment about including in the content of publicity such a component as taking into account public opinion in the implementation of government activities seems controversial. Public opinion in general is a certain reaction of society as a whole or parties, social groups, individual groups to certain events, facts, phenomena of social life that affect the interests of many people, causing a desire to understand their nature and give them political, ethical, and in some cases cases and legal assessment. It arises on the basis of a certain ideological position of the individual, his moral principles, legal consciousness, and value orientations. Public opinion may be heterogeneous; along with the true one, there may be false public opinion.

From the point of view of content, public opinion is the product of discussion of information about the activities carried out by government authorities, and one of the most important types of social information, since it is in accordance with the opinion of the population government bodies build their own policies. On the one hand, public opinion is primary, background information, reports data on public needs, judgments and will, on the other hand, it signals the effectiveness of government activities, existing and possible contradictions. In cases where public opinion is ignored, the balance between government agencies and the social environment is disrupted. The situation becomes conflicting when agreement is not reached between them.

At the same time, taking into account public opinion is not so much a component of transparency as an independent requirement of a democratic state regime. This phenomenon characterizes the degree of influence of the population on power structures, the participation of the population in managing the affairs of the state, but not the regime of free dissemination of information about the activities of the state in society. In addition, taking public opinion into account in the work of government agencies does not constitute a legal requirement enshrined in any duties of government agencies. This is a political wish, a recommendation, but not a normative rule.

Summarizing the above, the political and legal content of publicity can be defined as a form of interaction between the state and civil society, characterized by:

• openness (transparency) of the activities of government bodies;
• the ability of the public to freely evaluate and use information about the activities of public authorities.

Based on this structure, publicity can be represented as a set of information processes that can be divided into two main types:

• movement of information about the activities of public authorities of these bodies (information producers) to subjects of civil society (openness);
• dissemination of such information within civil society, from one entity to another. Development of derivative information, assessment of received information (the ability of the public to freely evaluate and use information about the activities of government bodies).

The activities of the state are, first of all, a process of social management, but it is also an information process. Information and management processes are inextricably linked. In the process of control, the subject exerts an informational influence on the object. And in this sense, any management is a process of information processing, and information is not some secondary, additional component of management, but its internal, immanent feature, the main condition for its implementation. Publicity can be divided into two types:

• direct, which includes the perception by civil society actors of information directly emanating from government bodies and reflecting their activities (transparency);
• indirect, which includes the perception of information derived from judicial information, i.e., reflected through the subjective opinion of participants in civil society. Such indirect publicity should include information flows of the second and third stages.

Having analyzed the relationship between information and management processes, it seems possible to adjust the definition of publicity as follows: from the point of view of the information-cybernetic approach, publicity is a meta-information process - a set of processes for transmitting information that reflects the process of public administration (interaction between the state and civil society as governing and managed systems), but not included in such a management process; recipient of information, which may include an unlimited number of subjects. The basis for separating various information flows into the process of openness is the semantic aspect of information - a reflection of the management activities of the state.

Thus, in order to determine the characteristics of the publicity of justice, its difference from publicity as a general social phenomenon, it is necessary to proceed from the subject of such publicity, justice.

Summarizing the above, we can draw the following conclusions.

As a political and legal category, transparency should be understood in two aspects:

• narrow, as a synonym for openness (transparency), i.e. the principle according to which public authorities act openly to society, and society receives systematic and comprehensive information about such activities;
• broad, as the principle of interaction between the state and civil society, which includes a) openness (transparency) of the activities of public authorities; b) the ability of the public to freely evaluate and use information about the activities of government bodies.

From the point of view of the information aspect, publicity represents flows of information that differ from other information processes in the semantic aspect of the message: such information should reflect the implementation of public administration. Moreover, it can reflect both the actual activities of government bodies (the subject of management) and the reaction of civil society (the subject of management) to the implementation of such activities. Also, information processes of publicity represent mass communication, i.e. The subject in such processes is an unlimited number of subjects.

Glasnost characterizes transactions with information about public administration, and not the public administration. At the same time, the specificity of information is expressed in its semantic aspect: the reflection of a particular management process. Accordingly, to characterize publicity in the sphere judiciary it is necessary to proceed from the peculiarities of judicial activity (the subject of publicity), which is reflected in judicial information (message).

Literature

1. Matuzov N.I. Legal system and transparency / N.I. Matuzov // Questions of the theory of state and law: Perestroika and current problems of the theory of the socialist state and law: Interuniversity collection of scientific papers. - Saratov: Publishing house Sarat. University, 1991. - Issue. 9. - pp. 21-27.
2. KhizhnyakB.S. The constitutional right of a person and citizen to information in Russian Federation: diss... Ph.D. - Saratov, 1998. - 152 p.

Publicity in legal proceedings is a constitutional principle enshrined in Part 1 of Art. 123 of the Constitution of the Russian Federation and reproduced verbatim in Art. 9 of the Federal Constitutional Law "On the Judicial System of the Russian Federation".

Russian civil procedural legislation, following international standards in the field of human rights, established: “The objectives of civil proceedings are the correct and timely consideration and resolution of civil cases in order to protect violated or disputed rights, freedoms and legitimate interests of citizens” (Article 2 of the Code of Civil Procedure of the Russian Federation). According to Art. 10 of the Code of Civil Procedure of the Russian Federation, proceedings in all courts are open. Everyone who wishes to see justice done has the right to be present at any public court hearing.

The European Court of Human Rights noted that publicity and openness of judicial proceedings are aimed at protecting the parties from secret justice not subject to public control, and that it is one of the means of maintaining confidence in courts at all levels (see Article 6 of the European Convention on Human Rights person). The decisions of the Court provide a detailed description of these concepts. Thus, in the case of Pretto v. Italy (December 8, 1983) it is stated: “The public nature of the proceedings, referred to in paragraph 1 of Article 6, protects litigants from the secret administration of justice without public control; it serves as one of the ways to ensure confidence in the courts, both higher and lower. By making the administration of justice transparent, it contributes to the achievement of the objectives of paragraph 1 of Article 6, namely the fairness of judicial proceedings, the guarantee of which is one of the fundamental principles of any democratic society." In another decision (Ekbatani v. Sweden, May 26, 1988), the European Court spoke even more clearly: “... as far as publicity is concerned, all case materials are available to the general public.”

Trying cases in the presence of the public has a preventive value, instilling respect for law and order. T.G. Morshchakova believes “that an open trial can have a positive meaning only if it demonstrates the objectivity and impartiality of the court, strict adherence to the procedure, equal and respectful attitude towards the parties and other participants in the process, and a high general culture” 3 . It's hard to argue with this opinion. However, this problem also has another important aspect - the publication of court decisions is in itself a strong incentive to increase the level of professionalism of the judiciary, because the judge, knowing that his decision on a particular case will be published, will more carefully approach the study of the entire evidence base and making the decision itself.

Transparency in judicial activities is impossible without maintaining order during the trial. Those present in the courtroom are required to respect the court, comply with the rules and procedures adopted in the court, and obey the orders of the presiding judge. Violators may be subject to penalties that are organizational guarantees of the principle of transparency.

Hearing a case in closed session is allowed only in cases provided for by federal law. This constitutional guarantee of publicity of legal proceedings is in accordance with generally accepted principles and norms of international law. Proceedings in closed court sessions are carried out only in certain categories of cases (those constituting a state secret, the secret of the adoption of a child, etc.). Thus, a case containing information constituting a state secret must be ordered by a judge to be considered in a closed court session, regardless of the opinion on this issue of the persons participating in the case. Information constituting a state secret and their list are established by the Law of the Russian Federation of July 21, 1993 “On State Secrets” and the Decree of the President of the Russian Federation of November 30, 1995 “On approval of the list of information classified as state secrets.”

In order to protect the secrecy of personal correspondence, telegraphic or other messages, their disclosure and examination in an open court session is permitted only with the consent of the persons between whom the correspondence and messages occurred. During a closed court session, only the parties, their representatives and other participants in the process specified in the relevant legislation remain in the courtroom. When considering a case in a closed court session, the court is obliged to issue a reasoned ruling. IN judicial practice There are cases when a court hearing is closed because witnesses are afraid to testify in the presence of the public. In these cases, the judges directly referred to Art. 14 of the International Covenant on Civil and Political Rights and Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides for the possibility of a closed hearing “when publicity would violate the interests of justice” (see, for example, the resolution of the Presidium of the Supreme Court of the Russian Federation of September 27, 1996).

According to Part 1 of Art. 6 of the European Convention on Human Rights: “The judgment shall be announced publicly, but the press and the public may be excluded from all or part of the hearing for reasons of morals, public order or national security in a democratic society, if so required in the interests of minors or for the protection of privacy parties, or - to the extent strictly necessary in the opinion of the court - in special circumstances where publicity would prejudice the interests of justice." A similar provision is contained in Art. 14 of the International Covenant on Civil and Political Rights, with the exception that the Covenant, unlike the Convention, allows the decision not to be made public civil case, “when the interests of minors require otherwise or when matrimonial disputes or child custody are involved.” The Constitution of the Russian Federation stipulates: “Proceedings in all courts are open. Hearing a case in a closed court session is permitted in cases provided for by federal law” (Article 123).

In accordance with paragraph 1 of Art. 6 of the European Convention on Human Rights, “everyone has the right, in the determination of his civil rights and obligations... to a fair public hearing within a reasonable time.” Article 14 of the International Covenant on Civil and Political Rights also refers to the right to be tried without undue delay. However, the European Court found that if in civil proceedings “the applicant did not show the diligence that can be expected from a party to such a dispute” and thereby “contributed to the prolongation of the proceedings”, violations of the time limits for consideration of the case are not detected. Although "the applicants cannot be blamed for not making full use of the remedies available to them under domestic law", their conduct constitutes an objective fact for which the State cannot be held responsible and which must be taken into account for the purpose of determining whether the reasonable time limit referred to in paragraph 1 has been exceeded. 1 tbsp. 6 European Convention on Human Rights *(4) .

Thus, in the case of Vernillo v. France, in a civil case lasting 8 years, no violation was found, since the “similar” delays caused by the court amounted to only one year of this period, while the defendants were responsible for delays of 1 year and 8. 5 months, and the plaintiffs - for delays amounting to about 2.5 years.

It is noteworthy that, regulating issues of publicity judicial trial, international norms speak only of the presence of representatives of the press and the public. As for the expanded interpretation, which allows for the possibility, in particular, of using audio equipment, photography and video recording, it is quite obvious and justified that this is left to the discretion of each individual state. Moreover, many European states (for example, England, France) traditionally do not allow this possibility, considering it incompatible with the dignity and interests of justice. Russian legislation has taken a completely unambiguous position on this issue. According to Part 7 of Art. 10 of the Code of Civil Procedure of the Russian Federation “persons participating in the case and citizens present at an open court hearing have the right to record the progress of the trial in writing, as well as using audio recording means. Photography, video recording, broadcast of the court hearing on radio and television are permitted with permission court".

Efficiency of justice. Judicial activity is characterized by the most important indicators: quality and efficiency (compliance with procedural deadlines). According to generally accepted principles and norms of international law, to be tried without undue delay is one of the fundamental human rights, inextricably linked with the right to a fair trial. Timeliness is considered as ensuring that a case is considered and a decision is made within the time limits provided by law. So, according to Art. 154 of the Code of Civil Procedure of the Russian Federation, civil cases are considered and resolved by the court before the expiration of two months from the date of receipt of the application to the court, and by a magistrate - before the expiration of a month from the date of acceptance of the application for proceedings. Despite the fact that the Supreme Court of the Russian Federation and the Ministry of Justice of the Russian Federation have always linked the problem of deadlines with the effectiveness of protecting the rights of citizens, neither in science, nor in law, nor in practice has efficiency ever been considered as a specific right of a person going to court or brought to court, to consider his case without undue delay (within a reasonable time). In this regard, it is reasonable to supplement Art. 2 of the Code of Civil Procedure of the Russian Federation, part 2 as follows: “A person who has applied for judicial protection has the right to expect and demand from the court promptness in considering and resolving a civil case.”

The Plenum of the Supreme Court of the Russian Federation has repeatedly analyzed the state of affairs in compliance with the deadlines for consideration of criminal and civil cases by the courts and adopted appropriate decisions. In the Resolution of the Plenum of the Supreme Court of the Russian Federation dated August 24, 1993 No. 7 “On the timing of consideration of criminal and civil cases by the courts of the Russian Federation,” along with a statement of the presence of factors that negatively affect the timeliness of consideration of cases that do not depend on the attitude of judges to their duties (for example, unsatisfactory material and technical support of the courts), it is noted: “The main reasons for violation of procedural deadlines are shortcomings and omissions in the activities of the courts associated with the unsatisfactory organization of the judicial process, a decrease in executive discipline, and insufficient control on the part of the chairmen of the relevant courts.” The possibility of the existence of unwritten constitutional rights recognized by judges as such is also allowed by the Russian Constitution: “The listing in the Constitution of the Russian Federation of fundamental rights and freedoms should not be interpreted as a denial or derogation of other generally recognized rights and freedoms of man and citizen” (Part 1 of Article 55 ).

Of fundamental importance for the implementation of the constitutional principle of independence of courts was the creation in accordance with the requirements of Art. 30 and 31 of the Law on the Judicial System of the Judicial Department at the Supreme Court of the Russian Federation. With its advent, the functions of personnel, logistics and financial support for courts of general jurisdiction were transferred from the jurisdiction of the Ministry of Justice of the Russian Federation, i.e. executive power, under the jurisdiction of the judicial community.

Federal Law No. 188-FZ of December 17, 1998 “On Justices of the Peace in the Russian Federation” made it possible to introduce in practice the institution of Justices of the Peace, close to the population. By the beginning of 2002, there were over 3 thousand justices of the peace in Russia. Their work has brought real results to the population: it has become easier for a citizen to appeal to a magistrate, the time frame for resolving civil cases has been somewhat shortened, and the procedure for appealing court decisions has been simplified. Since complaints against decisions of magistrates are considered by federal courts of district courts (Article 320 of the Code of Civil Procedure of the Russian Federation), residents of villages and regional centers do not need to travel to the regional center to participate in the court of second instance. Thus, at more citizens have a real opportunity to defend their rights in court.

> PRINCIPLE OF GLASNOST: theoretical, comparative legal and historical legal aspects

> General content of the principle of openness and its constitutional and legal foundations. The relationship between the concepts of transparency, publicity, openness of justice and openness of judicial activity

Principles of civil procedural law(process) are called its fundamental provisions, fundamental legal ideas enshrined in the rules of law of the most general nature. They permeate all civil procedural institutions and determine such a construction civil process, which ensures the adoption of legal and informed decisions and their execution.

Principles are the basis of the system of norms of civil procedural law, the central concepts, the core principles of the entire system of procedural laws.

A legal principle is always specifically enshrined in the rules of law, or it must be abstracted from the rules of current law. A legal idea, a concept that is not enshrined in the rules of law, remains to exist only in the field of legal teaching and doctrine.

The principles of civil procedural law concentrate the legislator's views on the nature and content of modern legal proceedings for the consideration and resolution by courts of legal conflicts and other cases (cases of special proceedings).

The principles of civil and arbitration procedural law are expressed both in individual rules of the most general content, and in a whole series of procedural rules that guarantee the implementation of general legal requirements in practice. Without guaranteeing norms, principles turn into calls and slogans. Since the principles of civil procedural law are implemented in procedural activities, they are not only principles of law, but also principles of civil procedure.

For educational purposes, it is customary in legal science to identify the composition of the principles of each branch of law, including civil procedural law.

The social significance of publicity is that it puts the work of the court under the control of society and ensures a connection between the court and society. Public proceedings have positive impact on judges participating in the case of their representatives from the point of view of public control over their activities and affects their compliance with the norms of civil procedural law.

This principle is one of the prerequisites for the issuance of well-founded and lawful judicial decisions and the subsequent assessment by society of the work of the courts and the functioning of the justice system.

Publicity extends to the entire course of legal proceedings, including the examination of evidence, as well as the announcement of a court decision. Public proceedings have a strong impact on judges, persons involved in the case, their representatives and have a positive effect on their compliance with the rules of civil procedural law. This principle is one of the prerequisites for making reasonable and lawful judicial decisions.

The principle of publicity of proceedings in courts of general jurisdiction is enshrined in Art. 123 of the Constitution of the Russian Federation, in Art. 9 FKZ "On the Judicial System of the Russian Federation" Federal Constitutional Law of December 31, 1996 N 1-FKZ "On the Judicial System of the Russian Federation" (as amended on December 15, 2001, July 4, 2003, April 5, 2005 , November 9, December 27, 2009), in Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (ratified by Russia on May 15, 1988), in Art. 16 of the International Covenant on Economic, Social and Cultural Rights of December 16, 1966 (came into force for the USSR on March 23, 1976)

The provisions of this principle apply not only to the stage of trial at first instance, which is central in civil proceedings, but also to all subsequent stages of the proceedings in court.

According to the above articles, proceedings in all courts are open. Hearing cases in closed sessions is permitted in cases provided for by federal law.

In accordance with this principle, citizens have the right to be present when courts consider cases from beginning to end at all stages of the process (in the court of first instance, cassation and supervisory instances, when reviewing decisions based on newly discovered circumstances) and personally perceive everything that happens in the courtroom .

However, keep in mind that transparency in supervisory authorities, as rightly noted in the theory of civil procedure, must be real, which requires the adoption of measures such as moving judicial supervisory work from offices to courtrooms and timely notification of cases to be considered supervisory authority due to the discovery of new circumstances.

Developing and specifying the principle of openness in civil proceedings, the Code of Civil Procedure of the Russian Federation, Civil Procedure Code of the Russian Federation dated November 14, 2002 N 138-FZ, as amended by the Federal Law dated May 4, 2011 N 98-FZ. establishes a Commentary on the Civil Procedure Code of the Russian Federation / Rep. ed. G.P.Ivliev - M.: Yurayt-Izdat, 2009. :

The hearing of cases in all courts is open (clause 1 of article 10);

Persons participating in the case and citizens present at an open court hearing have the right to record the progress of the trial in writing, as well as through audio recording; photography, video recording, broadcast of the court hearing on radio and television are allowed with the permission of the court (clause 7 of article 10);

Court decisions are announced publicly, except in cases where such announcement of decisions affects the rights and legitimate interests of minors.

Introduction by the legislator to the Civil Procedure Code (CPC) legal norms granting persons participating in the case, citizens present at an open court hearing, the right to record the progress of the trial in writing, as well as using audio recording means, not only significantly expanded the scope of publicity in civil proceedings, but also contributed to the emergence of new forms of its implementation, and consequently, strengthening the principle of transparency in civil proceedings.

The public proclamation of the decision should not be accompanied by the disclosure of information, in order to preserve the secrecy of which the court hearing was held in whole or in part behind closed doors.

It seems that such a decision should not reflect the information that served as the basis for the closed court hearing, or, in case of extreme necessity, mention it indirectly in the form of references to the relevant sheets of the case.

So, one of the components of the principle of publicity is the transparency (transparency, accessibility) of court hearings for the public and the media. This means that when considering civil cases, any persons, including representatives of the media, who are not participants in this trial, can be present at the court hearing. So, according to Art. 47 of the Law of the Russian Federation “On the Mass Media” of December 27, 1991, Law of the Russian Federation of December 27, 1991 N 2124-1 (as amended on February 9, 2009) “On the Mass Media.” The changes introduced by Federal Law No. 10-FZ dated 02/09/2009 came into force on January 1, 2010. a journalist has the right to visit government bodies and organizations, including courts, to make recordings using audio and video equipment, filming and photography, except for cases provided for by law. However, journalists specializing in judicial information, in addition to ethical, moral and general education, must have a special judicial and legal education, which will allow them to correctly understand the course of legal proceedings and, therefore, convey objective information, as well as express critical comments with knowledge of the matter Osokina G.L. . Civil process. A common part. Tutorial- 2nd ed. M., “Norma”, 2008..

The boundaries and criteria for determining the boundaries of openness of judicial activity are the most difficult in ensuring the rights of citizens to access information about the judicial system.

According to Part 4 of Art. 29 of the Constitution of the Russian Federation, everyone has the right to freely seek, receive, produce and disseminate information in any legal way; The exercise of the right to information is limited by the requirements of the law.

The Constitution of the Russian Federation directly states that one of the grounds for limiting the right to information is state secrets. The list of information constituting a state secret is determined by a special federal law.

According to Part 1 of Art. 24 of the Constitution of the Russian Federation, the collection, storage, use and dissemination of information about the private life of a person without his consent is not allowed. This constitutional norm is one of the guarantees of a complex of personal human rights - the right to privacy, the right to personal and family secrets, the right to protect one’s honor and good name; the right to privacy of correspondence, telephone conversations and other messages (Article 23 of the Constitution of the Russian Federation).

These constitutional provisions compete with the constitutional principle of openness (publicity) in the administration of justice. In this case, the principle of publicity of legal proceedings takes precedence over the right to privacy, personal and family secrets.

This priority, in turn, is based on the general constitutional principles of guaranteeing rights and freedoms in accordance with the Constitution of the Russian Federation and the principle of limiting human rights and freedoms by the boundaries of the exercise of rights and freedoms by other persons (Part 1.2 of Article 17 of the Constitution of the Russian Federation), the possibility of limiting rights and freedoms person and citizen by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (Part 3 of Article 55 of the Constitution of the Russian Federation).

According to Part 2 of Art. 24 of the Constitution of the Russian Federation, state authorities and local government bodies, their officials are obliged to provide everyone with the opportunity to familiarize themselves with documents and materials that directly affect their rights and freedoms, unless otherwise provided by law.

This constitutional possibility of requiring familiarization with documents and materials is limited by two criteria: a) acceptance federal law, providing for the limitation of this possibility and b) the content of the requested documents (they must directly affect the rights and freedoms of the person).

For example, according to Part 2 of Art. 10 Law of the Russian Federation of June 26, 1992 No. 132-1 “On the status of judges in the Russian Federation” Law of the Russian Federation of June 26, 1992 No. 3132-I “On the status of judges in the Russian Federation” (as amended on April 14, December 24 1993, June 21, 1995, July 17, 1999, June 20, 2000, December 15, 2001, August 22, 2004, April 5, 2005, March 2, July 24, 2007, 25 December 2008, May 7, June 2, 28, July 17, September 27, November 9, 28, 2009, March 29, July 1, 2010) the judge is not obliged to give any explanations on the merits of those considered or pending proceedings, as well as present them to anyone for review, except in cases and in the manner prescribed by procedural law.

It should be borne in mind that this norm is addressed to judges, and not to the court as a government body.

Other restrictions on citizens’ access to information about judicial activities and court proceedings are possible:

1. Time restrictions: the court, like any government institution, operates in accordance with labor legislation from 9-00 to 18-00 with a lunch break.

2. Age restrictions: presence in the courtroom in criminal proceedings is permitted from the age of 16.

3. Restrictions on the location of the court and the place of the court hearing:

a) the most accessible location of the court for citizens facilitates their access to the court. By this issue there is an Order of the Judicial Department when Supreme Court of the Russian Federation, which approved the rules for the design and construction of district (city) court buildings. In accordance with these rules, the construction of new court buildings must be designed taking into account the convenience of citizens of passage and access to these buildings;

b) access to the courtroom is objectively limited by the number of seats. The Judicial Department of the Supreme Court of the Russian Federation in this act recommends planning the construction of courtrooms with a calculation of from 40 to 90 seats for courtrooms in criminal cases and at least 30 seats for courtrooms in civil cases;

c) access to the court building is limited for reasons of ensuring security measures for judicial activities and normal conditions holding a court hearing.

These restrictions are established on the basis of acts of the Judicial Department and court regulations. This problem is not regulated at the legislative level only because until recent years it was not so relevant for the legislator and not so simple for the legal establishment of criteria and organizational methods for limiting access to court wide range citizens. Today the time has come to regulate this issue legislatively;

d) access to the courtroom is limited by court decision (closed court session, restriction of the presence in the courtroom of persons who violate order in the courtroom, etc.).

4. Restrictions on various categories of citizens: the legislation does not have any restrictions on access to information about judicial activities depending on categories of citizens. There is some indirect element of limitation. Thus, the Law of the Russian Federation of December 27, 1991 No. 2124-1 “On the Mass Media” (hereinafter referred to as the Law of the Russian Federation “On the Mass Media”) provides for the institution of accreditation of journalists.

The court accredits the declared journalist and facilitates his receipt of information about judicial activities (notifies him in advance about the calendar of cases being considered, provides him with documents of interest, a pass to the courthouse, etc.). An unaccredited journalist actually has a more limited range of opportunities to obtain information in a given court.

It must be emphasized that the problem of publicity (transparency) of the final court decision lies not only in its mandatory public announcement, but also in the practice of publishing court decisions in the media and the Internet, which has become widespread in recent years, including on the websites of courts at various levels. Proposals are being made to create total electronic databases of court decisions.

Such publications are permissible only if the guarantees of everyone’s rights to inviolability and privacy are observed, i.e. For publication of a court decision in the media, the consent of the participants in the trial must be obtained. Commentary on the Civil Procedure Code of the Russian Federation (article-by-article) (edited by G.A. Zhilin). - "TK Welby", 2009..

The principle of publicity of justice, on the one hand, and the principle of freedom of speech and mass information (Article 29 of the Constitution), on the other, presuppose free access of all interested parties, and above all representatives of the media, to judicial information. However, access to such information by media representatives should have its limits.

On this subject in the Information Policy Concept judicial system Resolution of the Council of Judges of the Russian Federation "On the Concept of Information Policy of the Judicial System" No. 60 dated November 16, 2001, correctly notes that only in exceptional cases with the consent of the persons who took part in the case and upon the request of the editor, the journalist can familiarize himself with the materials of the case.

The purpose of the principle of transparency is to strengthen confidence in justice, in this sense it has socio-political significance. In addition, through notification of the media about events trials publicity of legal proceedings serves a certain degree of public control over justice.

The principle of transparency of justice is proclaimed in various international acts and treaties, such as the “Universal Declaration of Human Rights of 1948”, “European Convention of Human Rights and Fundamental Freedoms” and others. Also this principle is also enshrined in the domestic legislation of Russia, in particular in the Constitution of the Russian Federation, the Civil Procedural Code of the Russian Federation, the Arbitration Procedural Code of the Russian Federation, and other normative legal acts.

According to Article 2 of the Civil procedural code The tasks of civil proceedings in the Russian Federation are the correct and timely consideration and resolution of civil cases in order to protect the violated or disputed rights, freedoms and legitimate interests of citizens, organizations, rights and interests of the Russian Federation, municipalities, and other persons who are subjects of civil, labor or other legal relations. Civil proceedings At the same time, it should contribute to the strengthening of law and order, the prevention of crime, and the formation of a respectful attitude towards the law and the court.

Despite its great practical importance, in legal science the openness of legal proceedings is understood ambiguously; there is no single term characterizing this phenomenon; the legal nature of openness in the sphere of the judiciary is also unclearly defined, which leads to difficulties in determining the content of this phenomenon. Thus, the concepts of “publicity”, “openness”, “transparency” are often considered as synonyms. Without disputing the validity of this approach, it is necessary to note the following.

In its etymological meaning, “glasnost” is defined as:

1) accessibility to public information and discussion, control;

2) publicity;

3) general knowledge of something, publicity

The concept of “transparency” was developed in Western science and in Lately It is quite widely used in Russian science and the press. The literal translation into Russian of this term means “transparent”, that is, clearly visible, obvious, easily understood.

Meanwhile, the concept of “openness” means accessibility to everyone, sincerity, and non-concealment of the truth.

“Publicity” means carrying out any activity in the presence of the public, openness, something public and not private.

Consequently, we can say that these concepts have a slightly different semantic connotation, and “glasnost” is a broader concept that includes and implies the presence of others. We should also agree with those authors who express certain concerns due to the foreign language origin and the unusual sound of “transparency” for the Russian language, which is undesirable for legal technology

IN scientific literature the principle of openness of civil proceedings, as a rule, is understood as such a procedure for considering civil cases in which access to the courtroom is free for all citizens, representatives of the press, etc., and the progress and results of the process can be freely covered in the press or other media

At the same time, sometimes publicity is understood as a principle of legal proceedings and extends not only to judicial stages, however, this is more typical for works devoted to the transparency of the criminal process, or when covering general theoretical problems of the transparency of justice

Publicity of civil proceedings is not just a general theoretical position, but a guiding requirement established by law that underlies the activities of the judiciary, that is, a procedural principle. Accordingly, its content is of a legal nature, and the use and execution of legal rights and obligations associated with it are guaranteed by measures of state coercion.

Based on the foregoing, the principle of transparency of justice requires, firstly, the development of legal awareness and education, and secondly, the establishment of additional guarantees for the implementation of the tasks of legal proceedings

In the legal literature there is an opinion that the principle of publicity of civil proceedings combines two aspects: publicity for everyone and publicity for the parties, and in the latter case it operates more widely.

However, it seems that the parties’ ability to familiarize themselves with the case materials, their right to be notified of the time and place of the consideration of the case, to participate in the trial in their case, to receive court order in this case is not so much the implementation of the principle of public justice, but the implementation of their rights and obligations, due to the specifics of their legal status as parties to civil proceedings.

It should be noted that in the theory of civil procedural law in foreign countries this is exactly the approach that is used, and therefore the principle of publicity is understood in two aspects: 1) the principle of publicity as a generally binding principle of legal proceedings; 2) the principle of publicity (openness) of the parties.

In the first sense, this principle is of a public (state-legal) nature, since it follows from the principles of democracy and the rule of law and represents the openness of legal proceedings to everyone. In the second sense, the principle of publicity means giving the parties to the case the right to view procedural acts and be present when the evidence is examined.

Publicity extends to the entire course of legal proceedings, including the examination of evidence, as well as the announcement of a court decision.

The principle of publicity of judicial proceedings is closely interconnected with other principles, in particular with the principles of orality and immediacy. At the same time, any deviation from orality and immediacy inevitably limits publicity, at least formally the case was heard in an open court, therefore the strict implementation of these principles acts as one of the necessary conditions for the publicity of civil proceedings.

However, with all this, these principles should not be mixed either. The immediacy and orality of judicial proceedings are such procedural means that primarily contribute to the discovery of the truth, the correct establishment of the factual circumstances of the case, the elimination of possible errors, that is, they are a guarantee of the correctness and validity of the court decision, and only optionally - a guarantee of publicity. That is why the right to observe the progress of legal proceedings is most often implied, but is not highlighted as an independent component of the principle of openness of judicial proceedings.

In addition, the principle of transparency of civil proceedings is closely related to the principle of accessibility of justice.

Thus, the openness of the civil process contributes to its accessibility, while at the same time, the accessibility of justice affects the trust of citizens and society in the court.

In the constitutional and legal legislation of Russia, the concept of “openness of judicial activity” is used only in the meaning of “openness of proceedings in courts” (clause 1 of article 123 of the Constitution of the Russian Federation, article 9 of the Federal Constitutional Law of December 31, 1996 No. 1-FKZ “ On the judicial system of the Russian Federation").

In the scientific literature and in court practice, this principle is revealed in the following substantive elements:

1) purpose of the principle of openness -- necessary condition:

a) fair consideration of the case by an independent and impartial court;

b) providing opportunities for participants in legal proceedings to protect their rights and interests;

c) the court’s performance of its educational functions, the preventive impact of justice;

2) organizational content is expressed:

a) the opportunity for all citizens who have reached a certain age to be present at the trial and follow its progress;

b) the opportunity to cover the results of the process in the media;

c) the judge’s right to choose the location of the court hearing in order to ensure the possibility of the presence of a larger number of citizens at the court session (the social significance of the process, the educational nature of the court decision);

3) legal guarantees:

a) mandatory announcement of all decisions made as a result of the consideration of the case and during its consideration;

b) consideration of cases in closed sessions is unacceptable, except for the cases specified in the law;

c) the obligation to publicly announce a court decision in closed proceedings.

The concept of “glasnost” is also used by the Russian legislator in relation to judicial activities. But it is used identically to the concept of “openness of judicial proceedings” (for example, Article 9 of the Federal Constitutional Law “On the Judicial System of the Russian Federation”, Article 6 of the Federal Constitutional Law of April 28, 1995 No. 1-FKZ “On arbitration courts In Russian federation").

Thus, the concepts of “openness” and “publicity” of judicial proceedings are used primarily and mainly to specify and ensure the principle of a fair trial in full accordance with Part 1 of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

It seems that the concept of “information openness in the activities of the court” goes beyond the concept of “openness of the judicial process.”

Information openness characterizes the relationship between public authorities and citizens on issues of proper information support for the latter and appropriate public control over the quality of public services provided to the population. In this sense, information openness in the activities of the court presupposes the implementation of a number of constitutional provisions:

a) the right to information (according to Part 4 of Article 29 of the Constitution of the Russian Federation, everyone has the right to freely seek, receive, transmit, produce and distribute information in any legal way);

b) the right of everyone to access documents and materials of state authorities and local government bodies that directly affect his rights and freedoms (Clause 2 of Article 24 of the Constitution of the Russian Federation).

The trial is one of the most important types of judicial activity, the central link in the administration of justice as a special function of state power. The openness of this process is a necessary condition for ensuring its main quality - impartiality and objectivity.

The openness of judicial activity characterizes the activity of courts as public authorities performing a public function.

The concept of “publicity” more accurately reflects the essence of the relationship between the court as a government body and society.

In modern domestic legal literature, the concept of “publicity” seems ambiguous.

Translated from Latin, publicus means “state”, “community”, “public”, “public”. This expression is often used in contrast to privatus. Publicum in turn means “state, public place or structure", "public" Bartoszek M. Roman law: (Concept, terms, definitions) / Transl. from Czech M., 1989. P. 250..

In addition, in Roman law the term publice was used, i.e. officially. The academic dictionary of the Russian language reveals this concept somewhat differently. According to the compilers of the dictionary, public means “performed in the presence of the public”, “intended for everyone”, “open, public (report, execution, etc.)”, “open for wide visits, viewing (library, exhibition, etc.) .P.)". Thus, the concept of “publicity” has several interrelated but not coinciding semantic shades.

Modern Russian legislation uses terms whose formulation includes this concept. Thus, in a number of legislative acts the term “publication” is used, i.e. bringing to the attention of a wide range of the population any socially significant information through the media. For example, in Art. 15 of the Constitution of the Russian Federation establishes that laws are subject to official publication. More often, the use of the concept “public” is associated with civil law regulation.

In Art. 426 Civil Code The Russian Federation regulates a public contract - an agreement between a commercial organization and an indefinite circle of interested parties (buyers, passengers, consumers); in subsection III of the Code of Civil Procedure of the Russian Federation the concept of “public legal relations” is used. The characteristics of a legal entity include such quality as publicity Greshnevikov I.P. Subjects civil law: entity in law and legislation. St. Petersburg, 2002. P. 155. .

G. Hegel considered publicity as general awareness in the affairs of the state. Hegel G. Philosophy of Law. M., 1990. P. 351. . In development of these ideas, I.N. Homerov characterizes the state as a specific public organization. By publicity he understands the openness of a state organization. “The state is to a certain extent (partially) public, that is, an open part of society. This is that part of society that is open to all its members, as well as to members of other societies, more than its other parts” Gomerov I.N. State and state power. M., 2002. P. 477. .

Currently, in the theory of state and law, despite the presence of differences, “most authors agree that the presence of public power is fundamental for any state organization, fundamentally distinguishing it from a pre-state organization” General theory state and law: Academic course: In 2 volumes. T. 1: Theory of state. M., 2007. P. 94. . The term “publicity” is firmly established when characterizing state and municipal authorities and their functions.

Thus, the concept of “public” is associated with: a) the state; b) ideas of universality; c) general significance and d) special subjects - state or municipal authorities (the last two positions relate to the characteristics of public functions). Therefore, the sign of openness cannot be considered successful in identifying the characteristics of a state, since it is inherent only in the democratic type of political regimes. Moreover, the openness of the state is in principle no different from the openness of other large social and political organizations, be it a church or a political party.

The concept of “public” in relation to the state is not controversial. As for this concept in relation to a corporation, there is no unambiguous approach.

So E.A. Pozdnyakov writes: “The formation of a strong intermediary link in the form of a system of various corporations could serve as an intermediate and at the same time a connecting node between an individual and a society organized into a state, between private and general interests.” Pozdnyakov E.A. Philosophy of state and law. M., 1995. P. 121..

Located between private and public interests, corporate interest in this sense has a dual nature. Therefore, there is always the problem of attributing corporate interest to one or another specific area, which raises, for example, the following questions: is church law public or municipal government political? Applying the concept of “public” to all corporations is hardly correct. Some of them, for example, municipalities, undoubtedly have the attribute of publicity, others, such as joint-stock companies with private or mixed capital, are subjects of private law.

In addition, it is important to note the existing relationship between publicity and personality. The individual in the dichotomy noted above is entirely attributed to the private sphere and is opposed to the state and society. In fact, this is largely a theoretical construct. Plato and Aristotle also said that “man is by nature a political being.” Therefore, the individual is an integral part of both the corporation and the state.

In this regard, the concept of “public” is applicable to it. Each personality includes public and private principles, but public principles are to one degree or another alienated from the personality. Private, or individual, principles always remain with the individual.

In our opinion, it is fundamentally incorrect to use the concept of “public” as opposed to the concept of “private”, as a conflict with the private. In fact, they are dialectically interconnected.

From the above conceptual analysis it follows that the openness of judicial activity is one of the manifestations of publicity. Publicity should be considered a priority category in relation to openness.

The court operates publicly. At the same time, the openness of its activities may be limited by law or court regulations in accordance with the objectives of the implementation of the public function of state power. The subjective right of everyone to open access to information about judicial activities is closely interconnected with the public interests of the administration of justice, which may be limiters of this right.

The content of openness as one of the aspects of the manifestation of publicity of judicial activity should include: the open nature of the rules and procedures of judicial activity; publicity of legal proceedings; the open nature of the formation of the judiciary; public awareness of the mechanism for exercising judicial power; open data on all levels of the judicial system, on court decisions; judicial statistics data; awareness of the most significant cases and disputes considered in court for the public.

In this case, “publicity” means openness to society, to public control. This general position for the relationship between the public authority and society, based on the democratic nature of the Russian Federation (Part 1 of Article 1 of the Constitution of the Russian Federation) and the role of the multinational people as the only source power in Russia, which exercises it directly, as well as through government bodies (Parts 1.2, Article 3 of the Constitution of the Russian Federation). The people are the sources of power and its main controller. Publicity (openness) of power is necessary means implementation of this assessment and control.