VOLUNTARY WAIVER OF A SUBJECTIVE RIGHT IN CRIMINAL PROCEEDINGS: PROBLEM STATEMENT, CRITERIA AND GUARANTEES

The article touches upon the issues characterizing the will of the subject of the criminal process, expressed in the nonuse of the subjective right belonging to him, as a form of refusal from it. In the course of the study, the conclusion is formulated that the ability of the subject to choose whether to use the right belonging to him or not is no less important than the very possibility of its implementation. This choice is based on the free will of the owner of the right, which can be directed both to its use and vice versa. The non-realization of the right by the subject is a waiver of the right in the case when it has the appropriate characteristics, in particular: voluntariness, awareness and freedom of choice. Based on the analysis of the norms of the current criminal procedure law, the authors identify certain procedural guarantees of voluntary refusal to exercise a subjective right by participants in legal proceedings. The authors state the thesis about the existence of factors in criminal procedural activity that are not directly provided for by legal norms, but have an impact on the process and results of decision-making by participants as a voluntary and conscious choice. The article attempts to identify these factors, describe their subjective and objective criteria, and substantiate their significance in the decision-making mechanism of the subjects of criminal procedural activity. The authors focus on the need to distinguish between freedom of will and freedom of choice, touched upon the criminal procedural aspects of the freedom of action of the participant in the process, the freedom to make decisions, as well as responsibility for these decisions. The authors substantiate the position on the need to improve criminal procedural norms in the context of expanding the guarantees of voluntary waiver of a subjective right.

waiver of right, subjective rights and legal obligations, voluntariness, participants in criminal proceedings, procedural guarantees, freedom of will, freedom of choice, expression of will, responsibility for freedom of action, passive form of waive

Revina I. V., Pashutina O. S., Chebotareva I. N. Voluntary waiver of a subjective right in criminal proceedings: problem statement, criteria and guarantees.Business. Education. Law, 2022, no. 4, pp. 240—244. DOI: 10.25683/VOLBI.2022.61.456.