Аннотация: The story of how Sergei Sergeyevich wrote an essay on the principle of immediacy of justice
The story of how Sergei Sergeyevich wrote an essay on the principle of immediacy of justice
Sergei Sergeyevich wrote a draft essay on a principle of immediacy of justice [a principle of a direct intercommunication in a justice]. The principles of a justice are different. For example, a publicity, an openness and others. But Sergei Sergeyevich decided to focus on the principle of immediacy [a principle of a direct intercommunication in a justice].
Sergei Sergeyevich's draft essay on the principle of immediacy of justice was as follows:
"Despotism and the principle of immediacy of justice
I do not think that a notable people, who obtained the Magna Carta (1215) from the English king, were naive persons. Most likely, they understood both advantages and disadvantages of real courts.
They, at the same time, perceived the court as a defense against a despotism.
Firstly, they led the matter to a (personal) participation in a formation of the court (so that not only royal officials, but also representatives of the nobility, of a "free people" act as judges).
Secondly, they either intuitively or formally logically understood the most important principles of justice and implemented their policies in accordance with these principles.
One of the traditional principles of a justice is a principle of immediacy [a principle of a direct intercommunication in a justice].
It means that a judge and a participant of process protecting own rights from a state (or - in a number of other situations), communicate (interact, see each other) in (criminal) judicial process directly.
Why is a direct contact appropriate? Why is it inappropriate to communicate, for example, in writing, or through a representatives? Or - let's fantasize - through a curtain?
I suppose that a notable people, as practical, trained (by a real world) and experienced people, understood the vulnerability of a person dependent on despotism.
And at all possible shortcomings of a court they considered necessary in long process of a (criminal) prosecution of the concrete person to do small breaks - they considered expedient to create time intervals when the Executive power loses the powers over the person and when power functions pass to the judge (to court) in full.
What can a persecuted person do in this short period of time? For example, he can (1) report important information (which that is to be recorded in the protocol), (2) complain about illegal actions, (3) even just speak freely about the events happening to him.
What can a judge do? (1) A judge may listen (the words uttered during the trial, which that is to be recorded in a protocol), (2) He may take measures within his competence in response to requests from the persecuted person. (3) a Judge may release a person, who is under criminal prosecution. - To release from custody.
None of the administrative arrangements is ideal. At the same time, experienced in the vicissitudes of life a notable persons found it useful to make such brief breaks in favor of the judiciary into a long periods of persecution of an individual by an Executive power.
Through the efforts of barons, thinkers, "free men", despotism was undermined not only by electoral procedures, but also by judicial procedures.
As for the so-called "digital opportunities", they often undermine the principle of immediacy of justice [a principle of a direct intercommunication in a justice]..."
Such was the draft of the essay.
Sergei Sergeyevich decided to re-read The Magna Carta.
There were many interesting provisions in this historical document.
It also contained provisions regarding the formation of courts.
There was also the famous position of "39. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land". (translated by G. R. C. Davis (1963) [Original: Latin]).
But the word-combination "a principle of immediacy of justice" was not found in the Magna Carta.
Sergei Sergeyevich hesitantly looked at the draft essay and decided to understand the history of a principle of immediacy of justice deeper - if will be a situation convenient for historical research.
"Whatever its history is now, whatever its history will be in future, but this principle seems to be quite a rational achievement of civilization!"
December 11, 2019 05:49
Translation from Russian into English: December 11, 2019 10:29.
Владимир Владимирович Залесский "Рассказ, как Сергей Сергеевич писал очерк о принципе непосредственности правосудия".