THE WAIVER OF SUBJECTIVE RIGHT AND THE ENFORCEMENT OF PROCEDURAL RIGHTS

The paper discusses the issues of limiting the waiver of subjective rights in the context of the enforcement of procedural rights. The author notes that the essence of a subjective right is that a person is free to decide whether to use this right or not. The enforcement of a subjective right contradicts with its essence. Only a person decides what is good or bad for him or her. Based on this view, the author concludes that no one can enforce any of his or her rights. At the same time, the author writes that, in the exceptional cases, the law may provide for the possibility of the procedural rights enforcement. Based on the certain public interests, the state, in certain situations, refuses to comply with the requirement to exercise by a person his or her subjective rights and provides for the mechanisms of their enforcement by law. In the paper, the author discusses the enforcement of the defendant’s right to defense, the right to judicial protection, the right to appeal a judicial act, and considers the cases of the enforcement of the right to judicial protection as a part of the procedural law of the RA.

In the paper, the author emphasizes the institution of the obligatory participation of a defender as a procedural mechanism of enforcement of the defendant’s right to defense. The cases when the participation of a defender is mandatory regardless of the wishes of an accused are listed.

The author concludes that no one can enforce any of his or her own rights. In the exceptional cases, the law may provide for the possibility of the procedural rights enforcement. In certain situations, the state refuses to comply with the requirement to exercise subjective rights by a person and provides for mechanisms of their enforcement by the law.