Guarantees of the rights of a criminally prosecuted person: from the normative ideal to a dynamic system

Abstract

Introduction. The constitutional axiom of the highest value of human rights conflicts with the dominance of the public interest in criminal prosecution, which requires special legal mechanisms, the absence of which leads to the relativisation of individual rights.Purpose. The author aims to comprehensively analyze the system of guarantees of the rights and legitimate interests of a criminally prosecuted person, identify the systemic gap between normative consolidation and law enforcement practice, develop a theoretically grounded classification of guarantees and proposals for their improvement.Methods. The methodological basis of the research includes general scientific methods (analysis, synthesis, systems approach) and specific scientific methods: formal legal, comparative legal, logical, legal modeling, as well as an empirical method (survey of law enforcers).Results. The guarantees of the rights of a criminally prosecuted person are dynamic and institutional-activity-based, consisting of three core elements: consistent norms, good faith conduct of officials, and active defense counsel. A persistent polarization in the perception of guarantees is revealed between lawyers (93% associate them with the exclusion of evidence) and operatives (87% insist on departmental approval of operational-search measures). A three-level classification is substantiated: condition-guarantees, status-instrumental guarantees, and special guarantees of proportionality and quality of law. It is proposed to legalize the category of “proper quality of law” in Federal Law No. 5-FZ of June 14, 1994 as a guarantee standard.Conclusions. The effectiveness of guarantees is determined by the synchronous functioning of all three elements; the most vulnerable stage is the pre-procedural “non-status zone”. The reality of constitutional guarantees directly depends on overcoming the accusatory bias and eliminating the “non-status zones” in operational investigative activities.