ON THE ISSUE OF THE DISTINCTION BETWEEN CONCEPTS OF «PROTECTION» AND «GUARDING» IN THE CRIMINAL PROCEEDINGS IN THE LIGHT OF INTERNATIONAL HUMAN RIGHTS STANDARDS
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 6, Issue
Abstract
In the article the content of such legal categories as «protection» («defence») and «guarding» is analyzed, specialty of the application of these concepts in the criminal procedural legislation of Ukraine, as well as in the international regulations on human rights, is explored. The main criterion for distinguishing the concept of «protection» from the concept of «guarding» is ascertained, which is the reason for the initiation of protection, namely the violation of the rights of any person or the threat of such violations. Protection is defined as an activity for the application of measures of termination of right violations or prevention of such violations in the case of such threat existence, which are carried out under the procedures of the solution to the legal dispute. On the basis of this conclusion proposals regarding amendments to the legislation to better use of law-terms «protection» and «security» are developed. As a result of the analysis of authentic English texts of international human rights standards the features of the use of the law-terms «protection» and «defence» were determined, the differences between them were identified. The main approaches to the understanding of these law-terms in the literature on criminal procedure are considered. In this matter it was distinguished a broad understanding as the protection against any violations of the rights or such threats and narrow understanding of defence as a criminal procedure function withstanding prosecution function in adversarial criminal proceedings. It was determined that the defense in criminal proceedings is a procedural function, which is a specific direction of the criminal procedural activity for protection of the rights, freedoms and interests of the person who is being prosecuted.
Authors and Affiliations
Т. В. Волошанівська
Keywords
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