Abuse of the right to cassation appeal: Its types and prevention measures

The article substantiates the urgent relevance of studying the issues of abuse of right in court proceedings, namely, in the criminal procedure verification stages when a verdict already entered into force is being verified. The primary reason for this is that such proceedings (including cassation proceedings) should ensure the stability of the verdict. The author argues that the urgency of the task of ensuring the verdict stability is related to the fact that the object of the cassation check (a verdict that has entered into force) must be recognized as res judicata and cannot be arbitrarily reviewed just due to simple disagreement of one of the parties in the criminal proceedings. Moreover, the abuse of the right to appeal against the verdict entered into force can completely debase the legal force of the verdict, since this creates a situation where even after the verdict has entered into force no one can be sure that it will remain unchanged and be executed. The following types of the abuse of the right to cassation appeal are distinguished: (1) filing unreasonable cassation appeals, which are appeals either indicating no valid grounds for cassation, or containing false information about violations of the law; (2) filing cassation appeals, both repeated and new, that entail a full review of the criminal case before the same cassation court; 3) filing cassation appeals outside the time limit established for cassation appeal against the verdict. Further, the article analyses each of these types of the abuse of the right to appeal the verdict and formulates the conclusion on whether the current criminal procedure legislation contains any measures to prevent the abuse of the right or rather contributes to such behaviour. On the basis of the analysis, the author formulates proposals aimed at re-establishing measures to prevent the abuse of the right of cassation appeal in the current cassation proceedings as follows: (1) Federal Law No. 361-FZ of 11 November 2018 is necessary to change; the introduced complete cassation should be abolished, while maintaining the stage of the cassation appeal sole examination by the judge of the cassation court; (2) the ban on filing new cassation appeals before the same cassation court is necessary to restore.

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