Inadmissibility of abuse of right as one of the defendant's obligations

The procedural status of the defendant consists of two elements: rights and obligations. The existence of both is interdependent since rights determine the degree of personal freedom but obligations set the limits for this freedom. Being a criminal trial participant who is prosecuted and against whom compulsory measures are taken, the defendant has a wide range of rights. There are different positions in legal science relating to the volume of obligations. According to the first position, a defendant has only rights, but according to the second one he has some obligations the range of which shall be strictly limited. The existence of these two positions has resulted in the emergence of several approaches to the ways of entrenching them in legislation of different countries. The author stresses that no separate article in Russian criminal legislation is devoted to the obligations of a defendant but some fundamental ones have been formulated on the basis of analysis of literature and norms of the Criminal Procedural Code of the Russian Federation. A defendant can use any legal means and ways to defend him-/herself, but cannot realize the delegated rights in contravention of their purpose. To prevent such a behavior, it is necessary to set a separate obligation "not to abuse the right". The present article gives the correlation between the above obligation and the requirement for the defendant to behave in good faith. There are several viewpoints on this subject. The first is that these categories are identical. The second is that they are different. The third is that the obligation to behave in good faith is broader and involves the requirement "not to abuse the right". Anyway, not to abuse the right is an obligation of the defendant. The need for legislative entrenchment of this requirement has been stipulated by the nature of criminal procedure, the purpose to guarantee a fair trial, procedural equality, protection of rights and freedoms of citizens in criminal procedure and ad-versariality of parties to a trial. The significance of the obligation not to abuse the right can be explained by its preventive and regulative functions. There should be a corresponding mechanism for its realization. The author enumerates the basic elements of such a mechanism and states that their cumulative entrenchment will prevent the abuse of right by the defendant.

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