Abuse of rights of parties to a criminal trial under adversariality

Adversariality in itself is impossible under the restricted initiative of the parties to litigation with limited procedural possibilities for defending their interests and lack of a detailed system of their judicial rights. In case of a wide range of rights, there is optionality as a manifestation of free will for the disposal of these rights. From this point of view, adversariality and optionality in the criminal process should be regarded as an unconditional benefit allowing participants to a trial to exercise activity and protect their rights and legitimate interests, far from being silent and weak-willed additions in the course of the trial. On the other hand, where there is right as a subjective possibility to defend one's interests, there is abuse of right as a special form of legal conduct, which has a very ambiguous nature that needs to be studied. From this point of view, adversariality is a kind of a "catalyst" for the parties to abuse their rights. Abuse of rights in criminal proceedings can be defined as a kind of legal conduct of a participant to a trial who does not have the power to use it. It consists in using the procedural possibilities granted to the participant by law to realise their illegal interest, thereby violating the rights and legitimate interests of other participants to a trial. It seems that the presented design should give fairly clear criteria for delimiting the abuse of subjective right from the lawful conduct of the participant to a trial in general and the lawful forms of procedural competition occurring in the adversarial court, in particular. The first criterion is the goal set by the bearer of right and for the sake of which he or she uses it. If this goal relates to the legitimate interest of the bearer of the right, then his or her conduct cannot be regarded as an abuse of right under any circumstances. The second criterion separating abuse of the right from lawful conduct is the fact of violation of rights and legitimate interests of other participants to a trial. Moreover, this criterion depends on the previous one, since the violation of rights and legitimate interests can only be in case of abuse of right, i.e. its use for illegal purposes.

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