On the defender's abuse of right to protect and the methods of the officer's reacting to their inequitable conduct

The paper aims at determining the criteria for delineating the abuse of right and lawful conduct of the defender, identifying the signs of abuse by the defender, and determining the requirements for the ways the officials in charge are to react to the defender's inequitable conduct. The attention is drawn to the fact that in case the defender has broad opportunities to protect the rights and interests of the clients, the conflict nature of the criminal process with everyone pursuing own benefits presupposes not only possible violation of prohibitions, but also outwardly legal actions that are aimed at a goal other than protection of rights and legitimate interests. Consequently, it may harm the interests of justice and other participants in the criminal process. Thus conduct is termed as abuse of right. The author posits that law enforcers have difficulties in distinguishing lawful and abusive conduct of the defender and comes to the following conclusions. First, the criteria for delineating abuse of right and lawful conduct are predetermined by public nature and are closely related to the purpose and principles of the criminal process aimed not only at protecting the legitimate interests of participants in the criminal process, but also in protecting public and state interests. Secondly, the abuse of right is a conduct that involves the deliberate use of rights or legal means in direct contradiction to their social purpose, the consequence of which is a violation of the legitimate interests of other participants in the process and of public interest. Thirdly, the abuse of right implies the simultaneous realisation of the two factors mentioned above. Fourth, the abuse of right can take place not only in the choice of improper way of exercising the law, but also in the deliberate choice of inadequate law. Fifthly, the possible abuse of right by the defender requires a response from the state when creating a mechanism for exercising its rights and identifying options for conduct. The procedure for investigating and resolving a criminal case should admonish and, if necessary, prevent the very possibility of the abuse of right by the participants in the criminal process, including the defender. The decision that the defender has abused the right during the preliminary investigation and, as a consequence, on the limitation of the right or the period for its exercise should be provided for in the law and can be taken only by the court. The mechanism of responding to the most typical situations of abuse of right by certain subjects of criminal procedure should be prescribed in the law. When the decision to limit the right is attributed by the legislator to the competence of the officer in charge, the law enforcement officer must act reasonably so that the law does not turn from effective to theoretical and illusory.

Keywords

Authors

References