Теорія і практика правознавства (Mar 2016)
Conditions for compensation of damage from the state physical person, to the victim from criminal offense
Abstract
According to the Constitution the state guarantees the rights and freedoms, and in particular the protection of individuals affected by a criminal offence, ensuring compensation of the caused material and moral damage. However, the analysis of legislation and law enforcement practice indicates the need to strengthen the protection of the rights and interests of individuals, of victims in criminal offences. Therefore, clarification of terms require reimbursement by the state harm the physical person, the victim of a criminal offence and the conditions for granting such compensation. Relevance of the research topic: The problem of reimbursement by the state harm the physical person, the victim of a criminal offence is one of the most urgent contemporary law enforcement practice. Leaving the crime unsolved, insolvency of the guilty party to compensate damages, the failure to take measures to ensure civil action and other reasons make the protection of the legitimate interests of the victim, restoration of the violated rights. Practice shows the necessity of creating a fundamentally new mechanism capable of ensuring the timely reimbursement of the harm caused by crime to the victim. Therefore, the investigation of these issues, development of recommendations aimed at improving current legislation and its enforcement in this area are urgently needed. Recent research and publications analysis: Analysis of recent research gives reason to believe that the affected problems has been the subject of research of such scientists as A. S. Alexandrov, L. M. Baranov, V. T. Bezlepkin, There.In. Blinkova, P. G. Gureev, From.With. Saturn, V. T. Nord, S. I. Ostapenko, S. Is. Sirotenko and others. However, the update of the regulatory material, in particular amendments to the Civil code of Ukraine, adoption of the new Criminal procedural code of Ukraine, can not affect scientific and practical interest in the conditions of modernity. Paper objective: Requires clarification of the terms reimbursement from the state for damage to a physical person, the victim of a criminal offence and the conditions for granting such compensation and determining the appropriate mechanism for their implementation. Paper main body: The most important task of the state, which tends to be called legal, is to protect the rights and freedoms of each individual, using all possible means of state influence, as the functioning of a legal state due to the interests and needs of its citizens. Therefore, the harm caused to the victim as a result of a criminal offence, shall be reimbursed by the state. That must happen is an effective mechanism of state liability before the individual in the sphere of guaranteeing rights and freedoms. Thus, there will be a high level of protection of the rights and freedoms of the individual. According to the current civil legislation of Ukraine it is possible to determine General conditions for reimbursement by the state harm the physical person, the victim of a criminal offence: 1) the presence of harm; 2) wrongful conduct is a crime; 3) a causal relationship between the offense and the damage, i.e. the damage is caused by committing the crime. In the scientific literature along with the General terms of compensation by the state harm the physical person, the victim of a criminal offence is also characterized by the presence of special conditions: 1) the victim is a natural person; 2) the perpetrator is insolvent; 3) the perpetrator of criminal offence is not established; 4) a person who commits criminal offense, it is established, but avoids investigation and declared wanted. However, scientists believe that in addition to the General and special conditions of reimbursement by the state physical person harm caused by the offence, should be the conditions for granting such compensation. The European Convention on compensation of victims of violent crimes of 24 November 1983 set different conditions for compensation. First, according to the Convention compensation schemes must set an upper limit above which and a lower limit, below which losses will not be recovered. Secondly, the mode of compensation may establish a period during which appeals will be accepted for reimbursement. Third, the damages may be reduced or cancelled in light of the financial situation of the applicant. Conclusions of the research: the state must ensure the safety of every member of society, and if the authorities fail to prevent a criminal offence, the damages should be the task of the state. The fulfilment of such requirements is the responsibility of Ukraine in the light of the accession in 2005 to the European Convention of 1983, which can be implemented through the adoption of a special law.
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