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system of the standard legal acts forming a legal basis of the organisation and activity of investigation. A role of judicial precedents in development of a legal basis of the organisation and activity of investigation of the USA

In spite of the fact that prospecting activity is connected with enough specific sphere of relations, and appreciably activity of bodies of investigation differs from activity of other state bodies, as a whole system of the rules of law regulating prospecting activity, has the same basic structure and is subordinated to the same laws on which legal regulation of all state activity in the USA is under construction.

At the same time, along with similarity of the general principles of construction of a legal basis, legal regulation of questions of the organisation and activity of prospecting services has also a number of prominent features. In bolshej to a measure these features follow from specificity of the most prospecting activity, in smaller - are caused by features of legal system of the United States. Thus specificity peculiar to investigation is shown as at various historical stages of development of investigation, and with reference to various aspects of adjustable relations. This specificity and in that role which is played formation of a legal basis of the organisation and activity of investigation by laws, subordinate legislation standard legal acts and judicial precedents is shown.

Modern system of the standard legal acts constituting a legal basis of the organisation and activity of investigation, it is possible to present as follows:

1) the Constitution of the USA (defines the general principles and laws of construction of a legal basis of the organisation and investigation activity);

2) federal acts of the USA;

3) subordinate legislation standard legal acts;

- Certificates of the US president (executive orders, instructions, memorandums etc.);

- Certificates of the bodies, subordinated to the president (directors of the national

Investigations; the Minister of Defence of the USA [406]; the certificates published by heads of the federal ministries, having in the structure prospecting services, and also the certificates published by heads of prospecting services).

Owing to that that the legal system of the USA is a legal system of the typical representative of the countries of an Anglo-Saxon legal family, speaking about legal regulation of any state activity in the USA (as, however, and about legal regulation in the Anglo-Saxon legal system in general), it is necessary to take into consideration normotvorcheskie function of a judicial branch of the power. Taking out the decisions having case force, the Supreme Court of the USA and the courts of justice subordinated to him can create thereby the new rule of law. Also such situation when the similar, newly founded rule of law will be directed on a regulation of a certain circle of the relations connected with investigation enough looks natural. Therefore, not denying that fact, that the leading part in formation of a legal basis of the organisation and activity of investigation of the USA belongs to laws and subordinate legislation standard legal acts, nevertheless it is necessary to pay attention and to the potential analysis normotvorcheskoj to judicial authority activity.

Taking into account practice which have historically developed in the United States the Supreme Court of the USA and the courts of justice subordinated to him aspire to avoid any intervention in the questions connected with prospecting activity [407].

Nevertheless, basic features of the Anglo-Saxon nature of legal system of the USA do not allow the judicial authority to withdraw to the full from influence on development of a legal basis of the organisation and activity of the American investigation: the role of judicial precedents in formation and development of a legal basis of the organisation and investigation activity though historically also was not a legal basis of the prospecting organisation defining for development and activity, nevertheless always was

Also remains enough appreciable.

Till second half XIX century it was difficult to result at least one example of that judicially in the USA any questions connected with prospecting activity were resolved. Investigation was considered as an integral part of military activity, prospecting bodies were created only for fighting operations and operated against the military opponent of the United States. If to it to add still rather high degree of privacy in investigation work there is obvious enough that fact, that prospecting activity could not come into the view of a judicial branch of the power which primary goal is the resolution of disputes between the parties and which has not the right to express behind proceeding frameworks the opinion concerning regulation of those or other relations.

Even after in second half XIX centuries in the military man, voennomorskom the ministries and State department there were constant prospecting services which led prospecting activity not only and not so much in interests of prospecting support of fighting operations of army, the judicial authority (as however and legislative) practically does not take part in formation of a legal basis of prospecting activity. During this period of more important there was other function of the judicial authority - the right of vessels to interpret position of the Constitution of the USA and accepted in conformity with it of laws and subordinate legislation standard legal acts. The judicial authority for the first time in 1875 legally proves a constitutional law of the president to hire agents for conducting

Prospecting activity [408].

In the XX-th century courts influence development of legal regulation of prospecting activity any more only owing to the right to interpret the right of legislative and executive branches of the power concerning investigation. In some cases decisions of vessels create the new rule of law, sometimes rather essentially expanding the competence of prospecting services. Most a vivid example - judgements of the thirtieth years concerning legitimacy of listening by special services of telephone conversations at carrying out of investigations.

In 1934 the Congress of the USA has passed the Law on communications which has entered an interdiction for listening of telephone and other negotiations, and also for realisation of perlustration of the correspondence at carrying out of investigations [409]. Thereby the legislature has considerably complicated process of getting of proofs for suit. However, on occasion courts nevertheless found possibility to bypass the similar mandatory provision. For example, when in December, 1937 on one of lawsuits the proofs extracted by means of listening of telephone conversations have been presented [410] Supreme Court of the USA, despite of a legislative interdiction, court has accepted them to consideration, having specified in inapplicability of positions of the Law on communications of 1934 when the message has been sent through border of staff and having called into question possibility of application of the restrictions fixed in the law to divisions of the federal government.

Taking into consideration that role which plays the judicial precedent in Anglo-Saxon legal system, it is possible to approve with confidence, that the decision the court has actually created the new rule of law authorising special services and organs of inquiry to extract the information, intercepting telephone conversations or perlustrating the post correspondence. Moreover, considering definitive character of the judgements which are taken out by the Supreme Court [411], the statement that judgements in some cases participate in process of formation of a legal basis of activity of prospecting services is lawful also.

Despite the fact that what judgements can make direct impact on formation and development of a legal basis of prospecting activity, the scale of this influence nevertheless is rather limited. It is possible to result only enough small number of historical examples when the rule of law created by a judgement would become a component of a legal basis of the organisation and investigation activity. More global character carries that influence which is rendered by courts of justice on the general character of development of a legal basis of prospecting activity and on in what direction will develop a legal basis of prospecting activity laws and the subordinate legislation standard legal acts much more actively claimed in this process, rather than judicial precedents.

Interpreting a question on the constitutional basis of prospecting activity and on powers of the legislative and executive authorities concerning investigation, the Supreme Court of the USA, other federal courts of the United States actually predetermine a measure of influence of laws and subordinate legislation standard legal acts on formation and development of a legal basis of prospecting activity. For example, the recognition the judicial authority of special powers of the president in sphere of investigation [412] long time kept the Congress of the USA from intervention not only in questions of the control over investigation, but also in questions of legal regulation of activity of prospecting bodies.

At the same time, as soon as the judicial authority has a little softened the categorical position, having specified that in the course of prospecting activity there can be collisions between constitutional laws and freedom of citizens and interests of national safety [413], the Congress of the USA has accepted the whole series of the laws regulating those spheres and directions of activity of prospecting and counterprospecting services which potentially could cause a damage to the rights and freedom of the American citizens. In the tideway of recommendations of the Supreme Court of the USA about business Keith [414] Congress of the USA has made to the seventieth years serious amendments to the Law on freedom of the information [415], the Law on protection of a private life 1974 [416], the Law on supervision over foreign secret services 1978 [417] has passed.

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A source: Dundukov Michael Jurevich. INVESTIGATION In the MACHINERY OF GOVERNMENT of the USA (ISTORIKO-LEGAL ASPECT). The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow 2014. 2014

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