THE RIGHT TO DEFENSE IN THE SYSTEM OF GUARANTEES OF THE RIGHTS OF PARTICIPANTS TO COURT PROCEEDINGS ON CRIMINAL MISDEMEANORS

Abstract

The article raises the controversial issues of realization of the right to defense as a guarantee of the rights of participants to court proceedings on criminal misdemeanors and develops the ways of their solution. It is determined that the differentiation of the criminal procedural form in the direction of simplification is certainly appropriate and should in no way limit (violate) the rights of participants to criminal proceedings, and the standards for guaranteeing the rights of participants to criminal proceedings should be the same for all criminal proceedings, and deviations from such guarantee should be lawful. The author emphasizes that the realization of the right to defense in criminal misdemeanor proceedings is inextricably linked to the observance of the principle of legal certainty in the regulation of this institution. At the same time, the analysis of the legal procedure of criminal misdemeanor proceedings has led to the conclusion that the principle of legal certainty is insufficiently observed in the legislative regulation of this procedure. The author proves that defense counsel is an important subject of simplified criminal misdemeanor proceedings, but since the acts which may be considered under the simplified procedure do not pose an increased public danger, the participation of defense counsel in such proceedings is not recognized as mandatory and is mostly not applied. It is noted that it is the participation of a defense counsel in criminal misdemeanor proceedings which will protect against violation of a person's rights, delay in the process and will contribute to the fulfillment of the purpose of differentiation of criminal proceedings with a balance in the fulfillment of its tasks. It is summarized that, in general, the current CPC of Ukraine enshrines a sufficient concept of guaranteeing the rights of individuals in criminal misdemeanor proceedings, but its individual elements should be clarified by introducing appropriate legislative changes, which will contribute primarily to legal certainty and end the discussion regarding the legislative violation of the rights of participants to criminal misdemeanor proceedings.