Conceptual approaches to the correlation of “protection” and “security” in criminal law regulation

The article analyzes the correlation between the concepts of “protection” and “defense” of rights in the general sense and in the context of ensuring the right to defense in criminal and procedural legislation of Ukraine. The author examines the differences between these concepts, emphasizing that “defense” is an active procedural right of a person which is realized through participation in criminal proceedings, while “protection” includes systemic activities of the State aimed at creating conditions for the realization of this right, as well as guarantees of protection of the right to defense against the most dangerous encroachments. The article presents the legal constructs which regulate the right to defense and substantiates the functional difference between these concepts. The author analyzes the key provisions of the legislation on the right to defense and emphasizes the need for legal protection of human and civil rights and freedoms involved in criminal proceedings. The author concludes that an effective distinction between these concepts is important for the proper application of criminal and procedural legislation and protection of human and civil rights. The purpose of the article is to clarify the theoretical and legal nature and functional correlation of the concepts of “protection” and “security” in the context of realization of the constitutional right to defense. It is concluded that in modern criminal and criminal procedure law of Ukraine, the definitions of “protection” and “protection” of human rights, although closely related, have different functional content and legal nature, which necessitates a clear distinction between them when analyzing the mechanisms of ensuring the right to defense. “Defense” is, first of all, a procedural activity carried out directly by the subject or with his/her consent, and which consists in the practical implementation of a specific subjective right aimed at counteracting criminal prosecution. Such activity, which takes the form of an active legal position, is manifested in a number of procedural actions – from engaging a defense counsel and submitting evidence to initiating complaints and statements. It has a dynamic and purposeful character, as it unfolds within the framework of a legal conflict and is focused on ensuring the realization or restoration of the violated right. “Protection” is a preventive and systematic activity initiated by the state, which involves the creation of appropriate legal and organizational conditions under which the possibility of violation of the right to defense is either excluded or minimized. This activity covers a whole range of mechanisms - from law enforcement to administrative and judicial practice, as well as the implementation of control and supervisory functions. In other words, protection is an institutionalized mechanism aimed at ensuring the effective functioning of the right to defense itself as one of the key elements of human rights guarantees.