Article title Protection of Human Rights against Criminal Encroachments – a New Doctrinal Approach
Authors
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 5/2018
Сторінки [196-206]
DOI https://doi.org/10.33498/louu-2018-05-196
Annotation

The Constitution of Ukraine enshrines the rule prescribing that everyone has the right to protect his or her rights and freedoms against violations and illegal encroachments by any means other than prohibited by law, and establishes that these rights and freedoms are protected by the court. This provision is expanded in a number of decisions: in the European Convention on the Compensation of Victims of Violent Crimes (November 24, 1983) concerning the need to compensate the victim for damage thus not only alleviating, as far as possible, the injury and suffering to which he/ she was subjected but also eliminating the social conflict caused by the crime; in the judgments of the Constitutional Court of Ukraine (November 25, 1997, May 23, 2001) on the improvement of legislation with a view to developing and expanding the judicial protection of human rights and freedoms. The purpose of the article is to analyze certain issues which relate to securing of human rights against criminal encroachments in the context of new doctrinal approaches within the framework of relations under criminal law. The author highlights the gaps in the Ukrainian constitutional, criminal and procedural legislation regulating the legal relations which arise in case of a court appeal against acts, actions or omissions of officials of pre-trial investigation bodies and public prosecution bodies by citizens whose rights and freedoms are violated by a crime. It is proved that the rights of victims of crimes should be protected to the largest possible extent as soon as at the pre-trial investigation stage of criminal proceedings, i.e. before the court tries a criminal case on the merits and defends the victim’s rights. The article proposes a doctrinal solution to such an issue as the concept of the victim by recognizing the victim not only as a party to criminal proceedings, but also as a subject of relations under criminal law, thereby changing the view on the legal nature of relations which stem from ensuring the victim’s rights and freedoms. It is proven that a person who suffered from a crime stands beyond the framework of criminal law relations “the State – the offender“. At the same time, as a victim of a criminal encroachment, this person does not remain outside of legal relations altogether. Every person staying in the territory of Ukraine has legal relations with the State in the sense that according to article 3 of the Constitution of Ukraine the State is responsible to each individual for its activities and has a duty before each individual to affirm and ensure his/her rights and freedoms. Every person has the right to protection by the State of his or her rights and freedoms against criminal encroachments, and also to reinstatement of the right breached by a crime or to compensation for the damage caused to human rights. Therefore, a person affected by a crime and the State are in the relations under constitutional law, and within their framework the State has the obligations to ensure that this person has the right to protection, and to reinstate the rights breached by a criminal encroachment and compensate for damage. In this regard, there is no need to change the status of the victim of a crime into the subject of relations under criminal law arising between the State and the offender in connection with the crime committed and not in connection with the consequences of the crime which may or may not occur. It is proposed to introduce a presumption that a victim is always right as a counterbalance to the benefit of doubt principle, and this will not contradict such principles of legal proceedings as “equality of all participants of the trial before the law and the court” and “adversarial nature of the parties and freedom to provide their evidence to the court and to prove their credibility” (article 129 of the Constitution of Ukraine, articles 10, 22 of the Criminal Procedure Code of Ukraine). In the context of the current reform of the criminal procedural legislation, conceptual changes are needed to ensure that the victim of a crime may acquire the status of the number one figure in criminal proceedings. Finally, one of the legal consequences of a crime should be real, complete and prompt restoration of justice in the interests of the victim, the territorial community and the State on the whole.

 

Keywords doctrine; foundation; protection; rights and freedoms; victim; crime; compensation for damage
References

List of legal documents 
 

Legislation 
1. Konstytutsiia Ukrainy [Constitution of Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 28 chervnia 1996 r. № 254k/96-VR. URL: http://zakon0.rada.gov.ua/laws/ show/254%D0%BA/96-%D0%B2%D1%80 (accessed: 29.04.2018) (in Ukrainian). 

 

Bibliography

 

Authored books

2. Banchuk O ta inshi, Vidshkoduvannia poterpilym vid nasylnytskykh zlochyniv: yevropeiski standarty I zarubizhne zakonodavstvo [Compensation to victims of violent crime: European standards and foreign law] (Moskalenko O M 2015) (in Ukrainian).

3. Chaiun M ta inshi, Pravovi pozytsii Konstytutsiinoho Sudu Ukrainy v rishenniakh i vysnovkakh (1997-2003) [Legal Positions of the Constitutional Court of Ukraine in Judgments and Conclusions (1997-2003)] (Atika 2003) (in Ukrainian).

4. Skrypniuk O, Konstytutsiine pravo Ukrainy [Constitutional Law of Ukraine] (In Yure 2010) (in Ukrainian). Edited books

5. Yevhrafov P (red), Konstytutsiinyi Sud Ukrainy: Rishennia. Vysnovky. 1997-2001 [The Constitutional Court of Ukraine: Judgment. Conclusions. 1997-2001] (Iurinkom Inter 2001) (in Ukrainian).

 

Conference papers

6. Muzyka A, ‘Model kontseptualnoho onovlennia statusu poterpiloho vid zlochynu’ [‘The Model for Conceptual Update of the Status of the Victim of a Crime’] v II Lvivskyi forum kryminalnoi yustytsii “Pravova reforma u sferi kryminalnoi yustytsii: kliuchovi parametry ta prohnoz podalshoho rozvytkuˮ: Mizhnarodna naukovo-praktychna konferentsiia [the Second Lviv Forum of Criminal Justice “Legal Reform in the Criminal Justice Domain: Key Parameters and Forecast of Further Development”: International Scientific and Practical Conference] (Vaite 2016) (in Ukrainian).