Procedural Guarantees

The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Procedural Guarantees


legal measures established by law to ensure proper administration of justice. Soviet legislation, which regulates the rights of individuals and organizations, takes particular care to create favorable conditions for the actual realization of these rights by establishing a detailed system of procedural guarantees. This system is made up of a combination of democratic principles and institutions, procedural forms, legal relations, and the entire system of Soviet court procedure.

Procedural guarantees are designed to secure the establishment of the truth and the correct realization of justice in every civil and criminal case. (In this sense they are called guarantees of justice.) In addition, there are numerous measures to protect the rights and legal interests of the citizens who take part in judicial proceedings—the suspect, the defendant, the injured party, the civil plaintiff, and the civil respondent. In Soviet court proceedings, guarantees of the rights of these citizens are simultaneously guarantees of justice.

Although they are closely related and indissolubly connected, the rights and their guarantees are essentially distinct from each other and should not be considered identical. For example, the Constitution of the USSR established the principles of inviolability of person (art. 127) and inviolability of the home and the privacy of correspondence (art. 128). These are subjective rights of the citizens, on the basis of which they may demand the observance by government bodies of given principles. In turn, the existence of a subjective right of the citizen entails the obligation of government bodies and officials to ensure the realization of this right, and the very fulfillment of this obligation is the guarantee of the corresponding right. Such guarantees include, for example, the articles of the Basic Principles of Criminal Procedure of the USSR and the Union Republics of 1958, which declare that no one may be prosecuted except according to the principles and procedures established by law (art. 4). Further, Soviet criminal procedure provides that no one may be arrested except by decree of the court or with the approval of the procurator, and the procurator is required to free at once anyone who has been illegally deprived of his freedom or who is being held under arrest beyond the time limit provided for by law or a judicial verdict (art. 6).

The inviolability of the home and the privacy of correspondence, which are established by the Constitution of the USSR, are guaranteed by Article 35 of the Basic Principles of Legislation on the Judicial System of the USSR and the Union and Autonomous Republics of 1958, which directs that a search may only be made on the basis of a decree of an investigative agency or an investigator and only with the approval of the procurator. Only in instances where there can be no delay may the search be conducted by the investigative agency or the investigator, without the approval of the procurator. However, the procurator must be informed within 24 hours that the search has been conducted. Letters may be seized and removed from the post or telegraph offices only with approval of the procurator or according to court decree.

The Constitution of the USSR (art. 111) proclaims the right of the accused to defend himself. This right has been guaranteed by numerous procedural rules. The defendant has the right to know what he is accused of (the suspect, what he is suspected of). He has the right to testify, present evidence, file applications and challenges, and lodge complaints against actions and decisions of the investigator, the procurator, and the court. Corresponding to the subjective right of the accused are the obligations of government bodies to explain to the accused his rights and guarantee the possibility of their realization, to notify the accused of the charge, and to inform him of all the materials of the preliminary investigation. In addition, government bodies are obliged to deliver to the accused a copy of the conclusion to indict no later than three days before the opening of the court hearing and to admit to participation in the case counsel chosen by the accused or, in the instances provided by law, counsel appointed by the court.

The strict observance of procedural guarantees is the necessary condition for strengthening legality in Soviet judicial procedure.


The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
The Protocol consists, according to Mendez, in putting in place a set of guidelines for non-coercive interviews by the police and the corresponding legal and procedural guarantees.
In a joint statement on the recently passed 'Digital Security Act, 2018', they said the law unduly restricts the freedom of expression, freedom of the media and undermines judicial procedural guarantees. The diplomats said the law, in its current form, could be used to suppress and criminalise the legitimate exercise of these freedoms.
"The Commission considers that the indefinite detention of asylum seekers in transit zones without respecting the applicable procedural guarantees is in breach of EU rules," it said in a statement.
The UN General Assembly resolution urges the Islamic Republic to "cease the widespread and systematic use of arbitrary detention, including the use of such practices to target dual and foreign nationals, and to uphold, in law and in practice, procedural guarantees to ensure fair trial standards, including timely access to legal representation of one's choice from the time of arrest through all stages of trial and all appeals."
In particular, the extent of recounting, unclear reasons for ordering it, lack of transparency and breaches of procedural guarantees in carrying it out, as well as the results whereby the ruling party gained votes by large margins, strongly support the suspicion of unfairness," held the judges in Strasbourg.
Accordingly, all procedural guarantees would be purposeless without protecting for the implementation of the result of the proceedings.
In light of the growing consensus that the way in which substantive competition rules are enforced plays a crucial role in achieving the goals of the law, scholars of law explore procedural guarantees that should be provided in competition proceedings.
Unlike criminal code prohibitions against hate speech, the Human Rights Commission provides no procedural guarantees, such as the presumption of innocence, against the accused.
It also stated that the court further failed to address the violations of the right to fair trial before an independent and impartial judiciary that administrative detainees face by military courts and their rights to procedural guarantees as stipulated under Article 75 of Additional Protocol I to the Geneva Conventions.
Compared to the European Convention and the jurisprudence of the European Court, the right to due process has been seen as a summary of the procedural guarantees contained in Article 6 of the Convention: the examination of the case in a fair and public way within a reasonable time by independent and impartial tribunal.

Full browser ?