Systemic and non-systemic abuse of subjective rights: The concept and ways to prevent and counteract

The subject of the article is the procedure for exercising the rights and freedoms of individuals in criminal proceedings. The relevance of the subject stems from legal uncertainty, as the criminal procedure legislation lacks proper limitations for exercising the legal options of individuals. The article states that because of the absence of legal limits for exercising their rights the participants in criminal proceedings may use them in contradiction with the initial purpose, thereby infringing the rights and legitimate interests of other persons, society and the state as well; that is, these participants can abuse their subjective rights. In that regard, the authors resolve the tasks of (1) defining the concept of the abuse of a subjective right; (2) identifying both objective and subjective reasons for the abusive behaviour; (3) classifying the abuses of subjective rights; (4) determining ways to prevent and counteract the abuses of subjective rights. The research methodology of the designated issue includes general scientific and specific scientific methods of cognition, namely, dialectical, formal logical, comparative legal, systemic, analytical and synthetic ones. On the basis of those, the article provides an analysis of the current criminal procedure legislation in terms of the procedure for exercising the subjective rights of participants in criminal proceedings. It is stated that, depending on the reasons for the abusive behaviour, the following types of the abuse of subjective rights can be distinguished. First, the systemic abuse of a subjective right; this is the most common type resulting from legal uncertainty, flawed legal techniques and content of the criminal procedure legislation, and disunity of the law enforcement practice. Second, the non-systemic abuse of a subjective right; this type comprises separate cases caused by irreparable legal gaps and poor legal awareness of the individual ineptly managing the legal options granted to them. As a result of the research, the authors conclude that this classification can contribute to the development of specific ways to prevent and counteract abusive behaviour in criminal proceedings. At the same time, the most universal way of prevention is to amend the criminal procedure law with the principle of right abuse inadmissibility; this principle is to guarantee the conscientious and reasonable exercising of the rights granted.

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