INFRINGEMENT OF THE RIGHT TO PROTECT THE BOARD AS A CASE CIRCUMSTANCES OBJECT
Journal Title: Юридичний науковий електронний журнал - Year 2017, Vol 4, Issue
Abstract
The article clarifies the essence of the concept of «the right to protection», defines the forms of violations of the right to protection, which are revealed at the stage of cassation proceedings, analyzes the norms of domestic legislation, studies the positions of domestic and foreign scientists, discloses the problems of legal regulation in this area, developed scientifically grounded recommendations for improvement of the current legislation of Ukraine. It is noted that in the scientific literature there is no unity in the understanding of the phrase «the right to protection». The reason for the diversity of scientific views is the unequal subject of scientific research, since researchers focused on various aspects of this phenomenon. The article states that the right to defense is a complicated material procedural category that encompasses the complex of procedural rights of a suspect, accused, defendant, convict, which realization enables him to exercise protection personally or with the help of a lawyer, as well as to require from actors who carry out proceedings, ensure the rights granted to them. Also, the article compares the concept of «right to protection» and the phrase «the right to legal aid». In particular, the author claims that the right to legal assistance includes the provision of legal services to any person who needs them, and the right to protection arises from a person from the moment the criminal prosecution begins. Therefore, the subjects who are entitled to protection are suspects, accused, acquitted, convicted. At the same time, these concepts can be encompassed by each other, depending on the meaning in which they are used. An analysis of the practice of the High Specialized Court for the examination of civil and criminal matters for the determination of violations of the right to protection at the stage of cassation procedure makes it possible to classify violations that are permitted by lower instance courts as follows: violations related to the implementation of protection directly against the accused; violations connected with insecurity of the participation of a lawyer in a court of criminal proceeding of the appellate instance; violations related to ensuring the protection of the defender; other violations are connected with the duty of the state to ensure the possibility of effective protection. It is substantiated that in order to ensure the observance of human rights at the stages of appeal and cassation proceedings, it is necessary to introduce responsibility for the judge’s mistakes in insecurity of the right to protection. In particular, for the first judge’s mistake connected with the violation of the right to defense, it is necessary to declare a reprimand and, for a repeated one, within the next five years, to dismiss him.
Authors and Affiliations
В. В Шапула
Keywords
Related Articles
- EP ID EP480058
- DOI -
- Views 79
- Downloads 0
INTERNATIONAL EXPERIENCE OF LEGAL REGULATION INTERNAL ARMED CONFLICTS
The article examines and analyzes the issues of international experience in the legal regulation of internal armed conflicts. Features and main components of the aforementioned concept are considered. The peculiarities o...
THE FORMATION AND DEVELOPMENT OF THE SYSTEM OF STATE COURTS OF VOLHYNIAN VOIVODESHIP (1566–1795)
The article is devoted to research of the system of state courts of Volhynian Voivodeship (time period from the second part XI century till end of XIII century). The author analyzed a competence, historical aspects of th...
GUARANTEE TO COMPLETE GENERAL PRINCIPLES OF INTERNATIONAL LAW
The article is devoted to the problem of ensuring the observance of the general principles of international law both nationally and internationally. In particular, the issue of harmonization of domestic law with generall...
THEORETICAL AND LEGAL ASPECTS OF EXERCISING CONTROL OVER ACTIVITIES OF POLITICAL PARTIES
The research paper explores theoretical and legal aspects of exercising control over the activities of political parties. It examines the main models of regulatory control over the activities of political parties and det...
FORMATION AND DEVELOPMENT OF CONCEPTUAL FOUNDATIONS OF HUMAN RIGHT FOR LIFE IN THE HISTORY OF WORLD POLITICAL AND LEGAL DOCTRINE
The article deals with the formation and development of the conceptual foundations of human rights for life in the history of world political and legal doctrine. It was investigated that human rights are a complex multid...