Legal nature and content of the right to protection of participants in criminal proceedings

Abstract

It is noted that the Constitution of Ukraine enshrines the right of citizens to protection as one of the fundamental rights of citizens and as a guarantee of the realization of all other fundamental rights of citizens. To characterize judicial protection and the right to it, it is necessary to proceed primarily from the constitutional and legal nature of the court as an independent body of state (judicial) power to ensure human and civil rights and freedoms in the form of justice. In this regard, the goal of the ongoing judicial reform in Ukraine for many years is to create an independent judiciary capable of solving the problem of maximum compliance and non-violation of the law by representatives of other branches of government. The judiciary in the system of other branches of government is independent and authoritative due to its high status, competence, authority – it is it that must guarantee the constitutional rights and freedoms of the individual, including in the field of criminal proceedings.

Of course, the current situation in science is due to the fact that the consolidation of the constitutional right to judicial protection as the right to protect human rights and freedoms from any encroachment by the judiciary was established relatively recently, but all outstanding work on judicial protection belong to the Soviet period, when the subject of judicial protection had a slightly different meaning.

The author points out that when considering the constitutional right to judicial protection in the criminal law sphere, we involuntarily encounter the ongoing discussion on the content of the concept of justice, the possibility of exercising judicial power in other forms and the status of court decisions that do not contain a final conclusion innocence of the person. Without analyzing the views on this issue, we note that this discussion is important to address the question of whether only in the form of justice can protect the rights and freedoms of the court. The author agrees with the position of VA Lazareva that "being realized in all types of judicial activity, judicial protection is a factor that brings together judicial control and justice." Thus, it should be concluded that the constitutional right to judicial protection of rights and freedoms is exercised not only in the administration of justice, but also in other forms of judicial activity: judicial control and court orders.