Waiver of right as a complex problem relating to criminal procedure law and criminal proceedings

On the basis and analysis of A.S. Gambaryan's monograph, this article considers the problems associated with the admissibility, manifestation forms, permissible limits and consequences of the waiver of right. The issue is whether certain recent amendments to the criminal procedure legislation do not actually restrict a number of inalienable rights; whether there has been a kind of a covert denial of "absolute values". The article considers two types of the waiver of right. The first is defined as an objective surrender of certain human rights (caused by the legal awareness of the people); the second stands for a surrender by a person (including a participant in criminal proceedings) of their subjective rights. The authors substantiate that the surrender of a subjective right may take one of the following forms; 1) a surrender of exercising the powers that are elements of the subjective right; 2) a surrender of the subjective right through giving consent to the state interference with the right; 3) a surrender of the subjective right through committing an unlawful (illegal) act (or abuse of the right). The authors argue that the need to protect public interests implies that certain rights cannot be subject to surrender; also it indicates a number of limits to the trial participant's waiver of their subjective rights. For example, the participation of the accused in the court hearing should be considered not only as their right, but also as their duty. The trial is a procedural form of the administration of justice, so its significance is not limited to making the final decision. The defendant's direct participation in the procedure not only provides an important safeguard for the court decision validity, but also contributes to fulfilling the social and educational goals of the criminal procedure. In a public criminal trial, a person accused of committing a crime must literally "stand trial". The fact of the defendant's participation in the procedure of administering justice introduces the idea of fair justice to the victim and society, and has a strong educational potential as well. The article also considers the possibility of limiting the rights of the accused in case of their abuse of these rights (for example, in the case of the court procedure violation). Moreover, the authors take into account a nonstandard situation when the defendant deliberately brings themselves to a state of procedural incapacity precluding their participation in the proceedings (for example, a hunger strike or a use of narcotic drugs).

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