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NataliaGLYNSKA,

Doctor of Laws, Leading Sciences. employee of the department of research of problems of investigative, prosecutorial, judicial activity of the Research Institute named after Academician V. Stashys of the National Academy of Pedagogical Sciences of Ukraine, Kharkiv

PROBLEMATIC ISSUES OF PROVIDING CONTENT  LEGALITY OF CRIMINAL PROCEDURAL DECISIONS

From the content point of view criminal procedural decisions (further – CPD) compliance with legality standart on condition of proper application of substantive and procedural law. In modern conditions the application of the law is a creative and critical process, that is not reduced to formal following normative requirements. Specific norm always acts in the system of other legal regulators and should be examined from the angle of its compliance with the general law principles.

Those who make CPD (TWMD), within the legal competence have not only the right but also the obligation to realize the discretionary authority on election the proper legal norms, including through the use of legal analogy and its expansive interpretation on a specific case, taking into account general principles of criminal proceedings and practice of the European Court of human rights. Decisions, taken by the result of realization of such competention, belong to the group of CPD with high levels of discretion. As guarantees of such decisions legality are: when TWMD follow certain limits of using use legal analogy and expansion interpretation, as well as sufficient justification CPD. The limiters of using legal analogy in criminal proceedings naturally arise from the essence of the rule of law, which excludes the possibility of any unjustified rights and freedoms restrictions.

Law enforcement practice accumulated by analogy has no obligatory, but only possible effect and should be applied in other cases only if its credibility and argumentation. CPD compliance with legality standart from the content point of view when: it has been taken in accordance with the procedural and substantive law norm related to these relationships, as well as right interpretation of those norm in a way that is more favorable to the rights and freedoms of the trial participators.

Key words: legality, criminal procedural decision, providing content legality, law analogy.

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