Issue: № 8, 2024
Doi: https://doi.org/10.37634/efp.2024.8.2
It is noted that in order to establish the content of the right to defense, it is necessary to examine the subjective signs of the criminal offense provided for in Art. 374 of the Criminal Code of Ukraine. It is emphasized that the subject of violation of the right to defense is special and clearly defined in Art. 374 of the Criminal Code of Ukraine - investigator, investigator, prosecutor, judge. The signs of a violation of the right to defense by a special subject have been determined. The prerequisites for the legality of a person occupying the position of inquirer, investigator, prosecutor, judge, as well as the peculiarities of the legal personality of a special subject of a criminal offense provided for in Art. 374 of the Criminal Code of Ukraine. The qualified composition of this criminal offense was analyzed. It was determined that the purpose and motive of the violation of the right to defense are not important for the qualification of a criminal offense under Art. 374 of the Criminal Code of Ukraine. It is noted that the absence of signs of a special subject in a person excludes the possibility of bringing him to criminal responsibility as the perpetrator of a crime that can be committed by a special subject, it is expedient to agree with those scientists who maintain the position that the issue of recognition of a person who is a general subject of a crime, a co-perpetrator of a crime with a special subject should be decided individually, based on specific circumstances, taking into account the specifics of the objective features (objective side) of the crime. The subject of violation of the right to protection is special, the characteristics of which are defined in Part 2 of Art. 18 of the Criminal Code of Ukraine, according to which the special subject of a criminal offense is a convicted natural person who committed a criminal offense at the age from which criminal responsibility can arise, the subject of which can only be a certain person. Taking into account the above, it can be stated that the inquirer, investigator, prosecutor, judge as special subjects are not only characterized by the features of a general subject, such as age and sanity, but also belong to persons with special legal personality - the ability of a person in to acquire a certain legal status and act as a bearer of the subjective rights and legal duties of an inquirer, investigator, prosecutor, judge.
Keywords : right to defense, criminal offense, subjective side of criminal offense, subject of criminal offense, jurisdiction, justice, judicial discretion
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