Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido el 09/07/2022 Aceptado 17/09/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Eduviges Morales Villalobos
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Ma ría Eu ge nia Soto Hernández
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Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
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Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 74 (2022), 383-392
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Protection of human rights and
freedoms as a component of the
preventive function of the police force
DOI: https://doi.org/10.46398/cuestpol.4074.20
Natalya Panova *
Iryna Shapovalova **
Ivan Ishchenko ***
Vita Moroz ****
Iryna
Kurbatova *****
Abstract
The purpose of the research is to provide theoretical
generalization and implementation of a complex scientic and
applied task on the formation of a concept of the content of the
protection of human rights and freedoms as a component of the
preventive function of police forces, providing the development
of proposals and recommendations aimed at improving legislation
and law enforcement practice. The details of police ocers’ activities
aimed at protecting human rights and freedoms were investigated.
The methodological basis of the research was the dialectical method of
scientic cognition used to visualize the legal, functional, organizational
and procedural aspects of the protection of human rights and freedoms in
the activities of law enforcement agencies. It is concluded that the eective
performance of the task of enforcing human rights and freedoms, at least by
the National Police of Ukraine, to some extent depends on the mechanism
of adequate legal regulation of these activities by means of consistent laws
and other normative legal acts.
Keywords: human rights; human freedom; protection; security;
preventive function.
* Doctor Science in Law, Associate Professor, Head of Department of Administrative Law, Intellectual
Property and Civil Law Disciplines Kyiv Institute Intelektual Property and Law of National University
«Odessa Law Academy», Ukraine. ORCID ID: https://orcid.org/0000-0001-9139-3580
** PhD in Law, Judge of the Pavlograd District Court of the Dnipropetrovsk Region, Ukraine. ORCID ID:
https://orcid.org/0000-0003-3394-1969
*** Candidate of science of law, head of the Main Directorate of the National Police in Vinnytsia Region,
Ukraine, ORCID ID: https://orcid.org/0000-0003-0873-5207
**** Doctor of Law, Department of Administrative Law, Procedure and Administrative Activity of
Dnipropetrovsk State University of Internal Aairs, Dnipro, Ukraine. ORCID ID: https://orcid.
org/0000-0003-4433-3731
***** Prosecutor of the Department of Kyiv City Prosecutor's Oce, Doctor of Law. Ukraine. ORCID ID:
https://orcid.org/0000-0001-6636-2408
384
Natalya Panova, Iryna Shapovalova, Ivan Ishchenko, Vita Moroz y Iryna Kurbatova
Protection of human rights and freedoms as a component of the preventive function of the police force
La protección de los derechos humanos y las libertades
como componente de la función preventiva de los
cuerpos de policía
Resumen
El propósito de la investigación es brindar la generalización teórica y
la implementación de una compleja tarea cientíca y aplicada en torno
a la formación de un concepto sobre el contenido de la protección de
los derechos humanos y las libertades como componente de la función
preventiva de los cuerpos policiales, proporcionando el desarrollo de
propuestas y recomendaciones encaminadas a mejorar la legislación
y la práctica de aplicación de la ley. Se investigaron los detalles de las
actividades de los agentes de policía destinadas a proteger los derechos
humanos y las libertades. La base metodológica de la investigación fue
el método dialéctico de cognición cientíca utilizado para visualizar los
aspectos jurídicos, funcionales, organizativos y procesales de la protección
de los derechos humanos y libertades en las actividades de los organismos
encargados de hacer cumplir la ley. Se concluye que el desempeño efectivo
de la tarea de hacer cumplir los derechos humanos y las libertades, al menos
por parte de la Policía Nacional de Ucrania, depende en cierta medida del
mecanismo de regulación legal adecuada de estas actividades por medio de
leyes coherentes y otros actos jurídicos normativos.
Palabras clave: derechos humanos; libertad humana; protección;
seguridad; función preventiva.
Introduction
Proclamation of Ukraine as a state governed by the rule of law places
increased demands both on the power structures regarding clear legal
regulation, its quality and eciency, and on implementation of this
regulation. At the same time, in the conditions of intensive rule-making
and law-enforcement activities inherent in modern Ukraine, the problem of
legal and technical perfection of legal acts is primarily actualized.
It is strengthened in connection with implementation of legal policy in
our country, since domestic legal science has the task of developing a modern
concept of dening the general principles, scope, methods, methodology
of researching legal concepts and their interpretation. Eectiveness of
implementation of legal acts of Ukraine depends on performance of these
tasks, since the domestic legal framework was formed on the basis of
properly Ukrainian legal acts, as well as laws and other legal acts adopted
before the proclamation of Ukrainian independence, and therefore calked
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 383-392
in the Ukrainian language - in this case terms are preserved but not always
in their true meaning.
Ukraine has joined a number of international organizations, which
makes it necessary to harmonize national legislation with the international
law, in particular the law of the European Union. One of the requirements
set by the majority of international organizations, whose membership
Ukraine already has or is seeking to gain, is the harmonization of its legal
acts with the legal norms and standards of these organizations, which will
aect the meaningful conceptual unity of Ukrainian regulatory acts and
other legal acts and legislation of the European Union.
The purpose of this article is to provide theoretical generalization
and implementation of a complex scientic and applied task concerning
formation of a theoretical concept about content of protection of human
rights and freedoms as a component of the preventive function
of the national police bodies providing development of proposals and
recommendations aimed at improving legislation and law enforcement
practice.
1. Literature review
In the theory of law, the mechanism of legal regulation, the mechanism
of implementation of rights and freedoms and the mechanism of ensuring
implementation of human rights and freedoms are distinguished. In
addition to the mechanism of implementation of constitutional subjective
rights and freedoms, the mechanism of ensuring implementation of these
rights is of great importance. It is a component of the mechanism of
implementation of subjective human rights and freedoms.
The need for such a mechanism arises when implementation of a
constitutional subjective right does not require intervention of the state, its
bodies and ocials as a mandatory party in the process of implementation
of this subjective right (Onishchenko, 2010). On the part of the state, only
actions are needed regarding guarantee of rights and restoration of the
violated right. The specied mechanism contains elements that contribute
to creating conditions for exercising of freedoms, protection and defense
against oenses, participation in reproduction of violated human rights.
Specics of the mechanism concerning implementation of the function
of protecting human and citizen rights by representatives of the NPU
depends on their performing their functions and tasks, as well as on the
principles of the law enforcement system. Law enforcement and human
rights protection functions are a component of the multi-functional activity
of the NPU. As an executive-administrative body of the state, the NPU has
386
Natalya Panova, Iryna Shapovalova, Ivan Ishchenko, Vita Moroz y Iryna Kurbatova
Protection of human rights and freedoms as a component of the preventive function of the police force
the state-authority necessary to fulll its duties and realize its humanistic
purpose - namely protection of human and citizen rights in accordance with
the current legislation and its own competence (Law of Ukraine, 2015).
Researcher Negodchenko believes that the mechanism of ensuring
(enforcement of) human rights and freedoms in activities of the NPU
includes the following elements: legal norms and legal acts as forms of
their presentation; individual legal documents; legal facts; legal relations;
subjective rights and legal obligations; forms and methods used to organize
exercising of subjective rights and legal obligations (Nehodchenko, 2003).
According to Husariev, the phenomenon of the legal status of an
individual determines relationship between this individual and the law used
by the state to outline limits of possible activities for the subject, his/her
position in relation to other subjects and, taking into account individual or
typical characteristics of the subject the law reects the full legal position of
this individual, his/her certain unication or limitation (Husariev, 2005).
The concept of “mechanism of protection of human rights” and the
concept of “mechanism of legal regulation” partially coincide. The latter
covers legal norms - ocial rules with the model of human behavior; legal
facts ensuring the validity of the rule of law; legal relations - specic models
of behavior for subjects based on norms and legal facts; acts of realization of
subjective rights and legal obligations in the form of observance, execution
and use of the right; acts of application of legal norms; elements of legal
awareness and legal culture (Nehodchenko, 2003).
However, the mechanism of human rights protection, unlike the legal
enforcement mechanism, integrates all this in organization and actions
of the police, it goes beyond legal regulation and it is also implemented
in legal protection and defense. The following elements are integrated
in the structure of the mechanism of enforcement of human rights: a)
law-regulatory and law-enforcement mechanisms; b) conict resolution
mechanisms; c) identication, informational, organizational, promotional
elements combined for procedural and legal regulation of behavior and legal
education of individuals with the aim of satisfying legal rights and interests
of people. This is manifested in the actions of citizens, their involvement
in public associations, human rights non-governmental organizations,
elections and other types of inuence on state and local self-government
bodies.
At the same time, during the period of the state sovereignty of Ukraine
the subject of independent research in the national legal science was
presented as only some organizational and legal principles of the mechanism
of enforcement of fundamental rights and freedoms in activities of law-
enforcement bodies. In view of this, relevance of the research is primarily
due to the need to highlight content of protection of human rights
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 383-392
and freedoms as a component of the preventive function of the
national police bodies.
2. Materials and methods
The research is based on works of foreign and Ukrainian researchers
concerning protection of human rights and freedoms as a
component of the preventive function of the national police
bodies.
The role of the National Police of Ukraine in the system of enforcement
of human rights was claried with the help of the epistemological method;
the conceptual apparatus was deepened thanks to the logical-semantic
method, and the essence of the concepts “protection” and “defense” was
dened. Components of such a mechanism of protection were investigated
by using a system-based structural method. Structural-logical method was
used to dene the main directions for optimization of protection of human
rights and freedoms in activities of the National Police of Ukraine.
3. Results and discussion
The legislation on human and citizen rights and freedoms in Ukraine
meets high international legal standards; a democratic concept of the
relationship between a person and the state has been established, according
to this concept a person in Ukraine is recognized as the highest social value;
the ratio and role of structural elements of a citizen legal status of a citizen
are changing, since the priority belongs not his/her duties, but to his/her
rights and freedoms.
At the same time, the current legal status of Ukrainian citizens is
characterized by weak social and legal protection, insucient guarantee of
rights and freedoms, and the absence of the necessary security mechanisms.
In Ukraine, the issue of not only the declaration, but also the possibility of
exercising and protecting human and citizen rights is being addressed and
updated. Human life requires real implementation of declared rights and
freedoms, i.e. development of a legal mechanism for their enforcement,
which should guarantee eciency of rights, freedoms and duties determined
by the Constitution.
Eectiveness of the principle of the rule of law established by Art.8 of the
Constitution of Ukraine (Law of Ukraine, 1996) is conditioned by legal laws,
the exercise of the state power on the basis of its division into legislative,
executive and judicial ones, as well as by the equality of legal entities before
the law and the court, the responsibility of the state to a person, and not
388
Natalya Panova, Iryna Shapovalova, Ivan Ishchenko, Vita Moroz y Iryna Kurbatova
Protection of human rights and freedoms as a component of the preventive function of the police force
only that of a person to the state , recognition of personality, his/her life
and health, honor and dignity, inviolability and security.
In the context of implementing the conceptual idea of the rule of law
and international standards of human rights in Ukraine, actualized is the
problem of lling with real content the rights and freedoms of a person
and citizen established by the Constitution of Ukraine, giving them a real
declarative status. Since the “reality of rights and freedoms of citizens”
(its essence) is highlighted with the help of a system of interconnected
material and procedural aspects of the mechanism of providing this reality
(implementation, protection, defense) (Leheza et al., 2021).
Also actualized is the problem of determining the role of the state, its
bodies, in particular the National Police of Ukraine (hereinafter referred to
as the NPU), in the provision of human rights and freedoms, as well as the
limits of their interference and responsibility. The NPU, which is the central
body of executive power that serves society by means of ensuring protection
of human rights and freedoms, counteracting crime, maintaining public
safety and order (Law of Ukraine, 2015) is the closest to the population in
terms of their competences. Activities of NPU representatives are subject
to the requirement of legality which is within the limits of the rule of law
and consists in preventing arbitrariness in relation to a person. According
to the type of legal regulation, the NPU should adhere to the principle of
prohibition: “anything not directly permitted by the law is prohibited.”
Therefore, procedures (processes) of implementing prescriptions of legal
norms concerning protection and defense of human rights and freedoms are
signicant, which requires clarifying the specics of professional activities
of each unit in these processes (Leheza et al., 2021).
The NPU faces important tasks in the context of Ukraine’s orientation
towards joining the European Union, the leading one of these tasks consists
in strengthening the authority of its employees among the population,
transforming them into real servants of people, ready to provide timely
assistance and guarantee protection of rights and freedoms to citizens of
Ukraine.
Nowadays, every person increasingly understands that the essence
of his/her rights and freedoms consists not so much in their declarative
proclamation but faster in ensuring their implementation as well as in
material, legal and other guarantees provided by the state and its bodies
for their consistent and comprehensive implementation. Special law
enforcement means play an important role among these guarantees.
Along with other legal institutions and law enforcement agencies the
NPU belongs to the general system of guaranteeing rights and freedoms
of individuals by the Ukrainian state. Eectiveness of activities in this
direction is conditioned through broad powers provided by the Constitution
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of Ukraine (Law of Ukraine,1996), the Law of Ukraine “On the National
Police” (Law of Ukraine, 2015) and other legislative acts in order to ensure
legality and observance of human rights and freedoms by means of initiative
(proactiveness), authority among the country’ s population as well as by
means of accessibility.
Observance of human rights and freedoms, formation of a proper and
eective national system of judicial protection is one of the urgent tasks
of the state. From now on, the main activity of our state is human rights
and freedoms, and guarantees of their implementation. The Constitution of
Ukraine entrusts the state with armation and provision of these rights and
freedoms as its main duty. No wonder, in contrast to the previous appeal “A
person for the state”, the Constitution of Ukraine in 1996 proclaimed a new
one “The state for a person”.
The state is responsible to the people for its activity. Armation and
provision of human rights and freedoms is the main duty of the state
(Article 3). Philosophical development of the problems of human rights and
freedoms (from liberal-humanistic positions) is associated with the name
of I. Kant. The philosopher noted:
If there is a science that is really needed by a person it is the one that I
teach, - and specically, the one that properly shows a person his/her place
in the world, that teaches what one must be in order to be a person (Bilous,
2019: 35).
The Constitution of Ukraine and the current legislation assign the
function of protecting the rights and freedoms of citizens of Ukraine to the
state represented by competent state bodies; and the state shall guarantee
everyone the right to apply for protection of his/her violated rights (Leheza
et al., 2022).
One of the main tasks of the law-enforcement activities of the NPU is to
ensure rights and freedoms and, above all, safety of people. The police (along
with other law-enforcement bodies) is called to ensure operation of the
mechanism of legal protection and defense of human rights and freedoms,
its functions are various: from creating safe conditions for implementation
of human rights and freedoms in public places to protection against
criminal violations and encroachments on human rights and freedoms with
the adoption of legal coercive measures (Skuratovskaia, 2016).
The basis of the mechanism of protecting rights and freedoms of a
person and citizen is formed by legal principles, norms (legal guarantees),
as well as conditions and requirements to the NPU activities, activities of its
ocials, citizens who collectively ensure compliance, implementation and
protection of rights and freedoms of citizens.
390
Natalya Panova, Iryna Shapovalova, Ivan Ishchenko, Vita Moroz y Iryna Kurbatova
Protection of human rights and freedoms as a component of the preventive function of the police force
The most important element of the mechanism for enforcement of
rights and freedoms, (one that largely determines eectiveness of other
elements) is the guarantee of enforcement of rights and freedoms. The main
purpose of this element is to create necessary conditions for immediate,
eective and reliable protection and defense as well as or provision of
legal assistance. Up to date, there is an urgent need for further research
of guarantees concerning enforcement of rights and freedoms and nding
ways to increase their eectiveness (Leheza et al., 2020).
Guarantees of enforcement of human rights and freedoms as a general
concept are the main means to provide each individual with eective
protection and defense of human rights. One of the types of legal guarantees
is legal responsibility as a specic legal means of ensuring realization,
protection and defense of human rights and freedoms as well as fulllment
of legal obligations (Leheza et al., 2018).
Legal liability is a compulsory restriction or deprivation of certain
benets provided by the law and applied by the state authorities. It is always
accompanied by moral condemnation of oenders. There are the following
main types of legal liability disciplinary one, civil one, administrative one
and criminal one (Leheza et al., 2022).
Legal liability is applied only under certain circumstances stipulated by
the law, which are specied by the cause of liability. Such a cause is the fact
of committing an oense.
In contrast to other types of liabilities (moral one, public one, family
one), legal liability shall be applied only to those who have committed an
oense, i.e., violated the rule of law, the law, as far as legal responsibility
of a person is individual (Art. 61 of the Constitution of Ukraine) (Law of
Ukraine,1996). Oenses (violations) are reected in certain actions, mostly
active ones, in particular, in behavior that contradicts legal norms, that is,
illegal behavior. At the same time, such behavior always harms someone:
other people, organizations, society or the state. As far as such behavior
causes negative social consequences it is prohibited by the law (Husariev,
2005).
Legal guarantees of rights and freedoms are a set of conditions, special
legal methods and means used for unhindered implementation of these
rights and freedoms, their protection and assurance. Such guarantees,
recorded in the Constitution and legal acts, form the legal mechanism for
implementation of laws. Since the system of legal guarantees of human
rights and freedoms is a normative-legal means, they should be considered
as a complex of mutually connected and mutually interacting normative-
legal and institutional-organizational guarantees (Leheza et al., 2022).
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 383-392
Conclusions
So, eective performance of the task of enforcement of human rights
and freedoms by the NPU depends to some extent on the mechanism
of proper legal regulation of these activities by means of laws and other
normative legal acts. The purpose of such legal regulation should be as
follows: determining the range of social relations that need to be ensured
by the NPU (the content, scope of implementation, list of entities using
certain opportunities are specied in the normative acts); highlighting
the powers (rights and duties) of the NPU services, their ocials during
implementation of rights and freedoms of citizens, state bodies and their
representatives, public organizations, as well as the legal regulation
of preventive measures, means of persuasion and coercion, grounds,
conditions, order of their application; determining types and measures of
liability of NPU employees for non-fulllment or improper fulllment of
powers concerning enforcement of rights and freedoms of citizens (ensuring
the principle of legality in activities performed by police ocers).
The mechanism of organizational and legal enforcement of human
rights and freedoms by the NPU is a single, integrally and qualitatively
independent phenomenon of the legal system, which is a complex of
interconnected and interacting prerequisites, means and conditions that
create appropriate legal and factual opportunities for everyone to fully
exercise his/her rights and freedoms.
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Esta revista fue editada en formato digital y publicada
en octubre de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 74
