The concept and characteristics of abuse of right in criminal proceedings

While realizing his/her rights, each participant of criminal proceedings acts in his/her own interests which can conflict with the interests of other people and justice. In law such a behavior is called the abuse of right. It is pointed out that despite the prevalence of this legal phenomenon, the term itself is a disputable one. Taking into account the fact that in the course of abuse the limits of the right are not violated, but the right is misrepresented by virtue of undue motives on the part of an authorized person, the author argues the independence and reasonableness of the concept under question. Meanwhile, it is stressed that the existence of different and even opposite views on the legal nature of the abuse of right does not enable us to formulate its generally acceptable definition. The article deals with several opinions on the essence of the phenomenon. First, the abuse of right is considered to be a type of an offense. Second, the abuse of right is a form of lawful behavior. Third, the abuse of right can be both a lawful and unlawful act contemporaneously. Fourth, the type of behavior under study is a form of "evasion of law". Moreover, the article provides brief characteristics of the approaches to the determination of the essence of the right in the Romano-Germanic and Anglo-Saxon law systems. The following characteristics of the abuse of right are based on the critical analysis of the views of both Russian and foreign lawyers: the exercise of subjective right is inconsistent with its purpose; the possibility on the part of one person to inflict harm to others when realizing his /her right; the intent of the right holder to abuse the right. The enumerated characteristics are specified in respect to criminal procedural relations and their peculiarities. It has been noted that the abuse of right is not linked with the violation of concrete legal prohibitions but with the order of exercising the right. A special role of the state in determining the legislative mechanism for the realization of legal opportunities is emphasized. The mechanism is called upon both to guarantee the rights of the participants in criminal proceedings and to establish certain limits for their exercise. Having studied the problem, the author developed the definition of the abuse of right applicable in criminal proceedings.

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