Материал: disser_arhipov

183

Code of the Russian Federation in connection with complaints of citizen A.E. Pevzner, contains, in particular, following reasoning:

«At the same time, the question of the fate of physical evidence, including confiscation, may be decided not only by the court, but also by the head of the investigative body or investigator when making a decision or order to terminate a criminal case. In this regard, within the literal meaning of Item 1 Part 3 Article 81 of the Code of Criminal Procedure of the Russian Federation, instruments, equipment or other means of committing an offence belonging to the accused are subject to confiscation if the criminal case and the criminal prosecution is terminated formally on the basis of even rehabilitating grounds (absence of corpus delicti in the act, non-participation of the suspect or accused in the commission of the offence, etc.) and, even less so, any non-rehabilitating grounds. Of course, confiscation on the condition of termination of a criminal case or prosecution on rehabilitative grounds is unlikely to be applied in view of the obvious absurdity of such interpretation of the contested norm, but the question of the possibility of confiscation on the condition of termination of the criminal case or prosecution on non-rehabilitative grounds in law enforcement practice also cannot be solved according to the literal interpretation».311

The key idea is that it is absurd to raise the issue of confiscation, provided that the criminal case is discontinued or the prosecution is for rehabilitative reasons. That is, the nature and purpose of the confiscation of the case are in contradiction.

16) In the Dissenting Opinion of the judge of the Constitutional Court of the Russian Federation A.L. Kononov to the Ruling of 2 April 2009 No. 484-O-P the following reasoning is given:

«Since there are no rules, criteria and specific requirements for motives in the law, any reason and pretext meets the condition of motivation. Already the materials of complaints show how much redundant it is, and sometimes absurdly the executive power and judicial bodies put forward and justify such motives. Thus, public authorities easily prohibit holding events under the pretext of possible repair of roads and communications, high attendance of places of rallies and demonstrations, emergency condition of cultural objects and threat to their safety, and even the existence of an appeal of the church hierarch on the destructive nature of the event. There are also examples when public authorities knowingly create such motives for

311 See: Resolution of the Constitutional Court of the Russian Federation of 07.03.2017 No. 5–P «On the case of verification of the constitutionality of Item 1 Part 3 of Article 81 and Article 401.6 of the Code of Criminal Procedure of the Russian Federation in connection with complaints of citizen A.E. Pevzner» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

184

banning rallies and demonstrations, initiating other public actions at the same time and in the same place. Thus, the requirement to motivate the proposal of the public authority to change the time and place of the event does not represent any guarantee of the right to peaceful assembly and is actually used as a pretext for prohibiting it».312

The case of the “absurdity” which we meet here is somewhat more complex – in this case, rather, it is an obvious, in the opinion of the author of the dissenting opinion, disparity between the protected values.

17) The Dissenting Opinion of the judge of the Constitutional Court of the Russian Federation A.L. Kononov to the Resolution of 28.06.2007 No. 8-P contains, among other things, the following position:

«The dignity of the individual, as interpreted in the European legal tradition, means, above all, that the individual cannot be an object of state activity without rights. This applies not only and not so much to the deceased, but above all to his family and friends. What dignity can we talk about if the body of the deceased becomes not even an object but an property, a thing appropriated by the state, which allows itself to establish a monopoly on him and dispose of him at its own discretion? The relatives of the deceased are offered no less than to enter into a legal dispute with the state over the bodies of their loved ones, and the Constitutional Court sees its task in defending this right to a legal action, which no longer makes any sense. Of course, this is absurd, humiliating and inhumane, especially given the specific tragic circumstances of the case, when the bodies of the deceased were secretly cremated long before the Constitutional Court was addressed. By the way, neither the Constitution of the Russian Federation nor international human rights norms allow for any grounds to diminish the dignity of a person».313

312See: Ruling of the Constitutional Court of the Russian Federation No. 484–O–P of 2 April 2009 on a complaint by citizens of S. M. Shimovolos, A. V. Lashmankin and D. P. Shadrin concerning violations of their constitutional rights by Part 5 Article 5 of the Federal Law «On meetings, rallies, demonstrations, marches and picketing» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

313See: Resolution of the Constitutional Court of the Russian Federation of 28.06.2007 No. 8–P «On the verification of the constitutionality of Article 14.1 of the Federal Law «On burial and funeral business» and the Regulation on the burial of persons whose death occurred as a result of the suppression of their terrorist act in connection with the complaint of citizens K.I. Guziev and E.H. Karmova» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

185

In this case, the term “absurd” is also associated with a sharp disproportion between certain values. In addition, recalling N.A. Dmitrik’s approach, the potential conflict between law and privacy, as one of its limits, is traced in the subject matter of the dispute.

18) Directly related to the subject of this study is the example of the use of the term “absurd” in Item 6 of the Dissenting Opinion of the Judge of the Constitutional Court of the Russian Federation G.A. Gadzhiev to the Ruling of 02.11.2006 No. 444-O (let us give a detailed quotation to assess the logic of argumentation without referring to the full text of the Dissenting Opinion):

«As already noted, in case of the revealed ambiguity of the norm of tax legislation, all methods (means) of interpretation should be applied together. One of them is teleological interpretation, i.e. understanding the meaning of the norm in the context of the legislator’s goals, when the law enforcer takes into account not only the historically conditioned intention of the legislator, but also the goal he set for himself. Judging by the content of Sub-Item 1 Item 1 Article 220 of the Tax Code of the Russian Federation, a property deduction is granted in the sale of not any property, but property the transactions in respect of which are subject not only to registration, but also to state registration. The state is not able to control all transactions concluded by individuals when disposing of their property. Therefore, this norm deals with transactions on disposal of real estate objects. Article 164 of the Civil Code of the Russian Federation establishes that transactions with land and other immovable property are subject to state registration in the cases and in accordance with the procedure envisaged by Article 131 of the Code and the Law on Registration of Rights to Immovable Property and Transactions Therewith (Item 1). It is hardly possible to interpret the words in Sub-Item 1 Item 1 Article 220 of the Tax Code of the Russian Federation “as well as the sale of other property” as meaning that the sale of any movable property (say, a pair of pigeons) must be paid from the tax on personal income. This is an example of the so-called absurd interpretation, which cannot be carried out by law enforcers (emphasis added – V.A.). According to Item 2 of the same article, the law may establish state registration of transactions with movable property of certain types. Such state registration is provided in individual cases. Thus, according to Article 11 of the Law of the Russian Federation “On Pledge”, when pledging property subject to state registration, the pledge agreement must be registered».314

314 See: Ruling of the Constitutional Court of the Russian Federation of 02.11.2006 No. 444–O «On the complaint of the Commissioner for Human Rights in the Russian Federation on the violation of the constitutional rights of a citizen Irina Astakhova by Sub-item 1 Item 1 Article 220 of the Tax Code of the Russian Federation» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

186

The use of the reference to absurdity in this judgment (as well as the placement of such an argument in the context of a teleological interpretation) is very revealing, since it is also implicitly linked to certain approaches to the limits of law.

19) The content of the Dissenting Opinion of the Judge of the Constitutional Court of the Russian Federation B.S. Ebseev to the Ruling of 11.03.2005 No. 3-O, is not less interesting. In particular, it states:

«An attempt to interpret the normative content of its [Constitution] Article 119 (“Federal law may establish additional requirements for judges of the courts of the Russian Federation”) and Part 2 Article 121 (“A judge’s powers may be terminated or suspended only in accordance with the procedure and on the grounds established by federal law”) as allowing a federal legislator to act at its own discretion or to ignore other provisions of the Constitution of the Russian Federation is absurd in essence, as it deprives it of its rationalizing and stabilizing value and quality of the rule and supreme legal force (emphasis added – V.A.) (Article 4, Part 2; Article 15, Part 1)».315

The reference to the absurdity in this case has two meanings. Firstly, it implies absurdity of interpretation that does not take into account other provisions of the Constitution, and secondly, it is stressed that the absurdity contradicts to the rationality of law.

We believe that the examples given are sufficient to illustrate an overview of typical cases of the use of arguments that refer to the absurdity of law on the example of domestic law enforcement practice. For the purpose of collecting a critical mass of empirical and related theoretical material, let us now turn to foreign experience and doctrine.

315 See: Ruling of the Constitutional Court of the Russian Federation of 11.03.2005 No. 3–O «On the complaint of a citizen Rinat Mirgalimovich Smakov for violation of his constitutional rights by the provisions of Article 14 of the Federal Constitutional Law «On the judicial system of the Russian Federation (as amended by the Federal Constitutional Law of 15 December 2001), Item 3 Article 6.1 and Paragraph 2 Item 1 of Article 11 of the Law of the Russian Federation «On the status of judges in the Russian Federation (as amended by the Federal Law of 15 December 2001)» [Electronic resource]. – Access from the legal reference system «ConsultantPlus» (accessed: 31.01.2019).

187

§ 3.2. Development of the “absurdity doctrine” in the context of foreign practice of application of law

A generalized, but quite accurate view of the approach to the absurdity of law in foreign (both Anglo-American and Romano-Germanic) jurisdictions can provide an analysis of the discourse of the “doctrine of absurdity” in the interpretation of law. This doctrine has a promising title, however, looking ahead, we note that it also gives surprisingly little clarity about what is absurd in particular.316 One of the systematic critical generalizations of the “doctrine of absurdity” in the U.S. law, which, in fact, has been known since at least the second half of the XIXth century, was made by J. Manning in his article “The Absurdity Doctrine” (2003).317 However, this article will shed little light on the problem from the perspective we are interested in – both in terms of specific criteria of absurdity in law and in terms of general introductory to the theory of legal absurdity. Of the other two systemic articles written in response to the article by J. Manning – articles by G. Staszewsky “Avoiding Absurdity” (2006)318 and L. Jellum “But That Is Absurd! Why the Specific Absurdity Undermines Textualism” (2011)319 – we will focus on the latter, as it more consistently reveals the logic of the development of the doctrine of absurdity and the basic concepts of absurdity in law through the prism of the relevant legal culture and system.

The doctrine of absurdity in the U.S. has developed, oddly enough, as a necessary component of the textualist approach. The essence of textualism is that in order to understand the meaning of a legal text, only such methods of interpretation are used, which are directly related to the text itself. Particularly critical textualists are of another approach

316“Surprisingly little” – because the expectations that the title of the doctrine provokes are not consistent with the outcome of the reflection.

317Manning J.F. The Absurdity Doctrine // Harvard Law Review. – 2003. – Vol. 116. – PP. 2387–2486.

318Staszewski G. Avoiding Absurdity // Indiana Law Journal. – 2006. – Vol. 81. – PP. 1001–1065.

319Jellum L.D. But That Is Absurd! Why Specific Absurdity Undermines Textualism // Brooklyn Law Review. 2011.

–Vol. 76. – PP. 917–939.